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<!--
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<para>
LAWRENCE LESSIG
(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
-professor of law and a John A.
-Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the
-Stanford Center for Internet and Society and is chairman of the Creative
- Commons
+professor of law and a John A. Wilson Distinguished Faculty Scholar
+at Stanford Law School, is founder of the Stanford Center for Internet
+and Society and is chairman of the Creative Commons
(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
-The author of The Future of Ideas (Random
-House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig
-is a member of the boards of the Public Library of Science, the Electronic Frontier
-Foundation, and Public Knowledge. He was the winner of the Free Software
-Foundation's Award for the Advancement of Free Software, twice listed in
- BusinessWeek's
-"e.biz 25," and named one of Scientific American's "50 visionaries." A
-graduate of the University of Pennsylvania, Cambridge University, and Yale Law
-School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court
-of Appeals.
+The author of The Future of Ideas (Random House, 2001) and Code: And
+Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
+the boards of the Public Library of Science, the Electronic Frontier
+Foundation, and Public Knowledge. He was the winner of the Free
+Software Foundation's Award for the Advancement of Free Software,
+twice listed in BusinessWeek's "e.biz 25," and named one of Scientific
+American's "50 visionaries." A graduate of the University of
+Pennsylvania, Cambridge University, and Yale Law School, Lessig
+clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
+Appeals.
</para>
</abstract>
</bookinfo>
<!-- PAGE BREAK 1 -->
<para>
-You can buy a copy of this book
-by clicking on one of the links below:
+You can buy a copy of this book by clicking on one of the links below:
</para>
<itemizedlist mark="number" spacing="compact">
<listitem><para><ulink url="http://www.amazon.com/">Amazon</ulink></para></listitem>
<!-- PAGE BREAK 3 -->
<para>
ALSO BY LAWRENCE LESSIG
-The Future of Ideas: The Fate of the Commons
+<sbr/>The Future of Ideas: The Fate of the Commons
in a Connected World
-Code: And Other Laws of Cyberspace
+<sbr/>Code: And Other Laws of Cyberspace
</para>
<!-- PAGE BREAK 4 -->
<para>
THE PENGUIN PRESS
-NEW YORK
+<sbr/>NEW YORK
</para>
<!-- PAGE BREAK 5 -->
<para>
FREE CULTURE
-HOW BIG MEDIA USES TECHNOLOGY AND THE
+</para>
+
+<para>
HOW BIG MEDIA USES TECHNOLOGY AND
-LAW TO LOCK DOWN CULTURE AND CONTROL
THE LAW TO LOCK DOWN CULTURE
-CREATIVITY
AND CONTROL CREATIVITY
+</para>
+
+<para>
LAWRENCE LESSIG
</para>
<!-- PAGE BREAK 6 -->
<para>
THE PENGUIN PRESS
-a member of
-Penguin Group (USA) Inc.
-375 Hudson Street
-New York, New York
-Copyright © Lawrence Lessig,
-All rights reserved
-Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
-The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co.
+<sbr/>a member of Penguin Group (USA) Inc. 375 Hudson Street New
+York, New York
+<sbr/>Copyright © Lawrence Lessig,
+<sbr/>All rights reserved
+<sbr/>Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
+The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co.
Reprinted with permission.
-Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
-All rights reserved. Reprinted with permission.
-Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
-Library of Congress Cataloging-in-Publication Data
-Lessig, Lawrence.
+<sbr/>Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
+<sbr/>All rights reserved. Reprinted with permission.
+<sbr/>Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
+<sbr/>Library of Congress Cataloging-in-Publication Data
+<sbr/>Lessig, Lawrence.
Free culture : how big media uses technology and the law to lock down
culture and control creativity / Lawrence Lessig.
-p. cm.
-Includes index.
-ISBN 1-59420-006-8 (hardcover)
-1. Intellectual property--United States. 2. Mass media--United States.
-3. Technological innovations--United States. 4. Art--United States. I. Title.
-KF2979.L47
-343.7309'9--dc22
-This book is printed on acid-free paper.
-Printed in the United States of America
-1 3 5 7 9 10 8 6 4
-Designed by Marysarah Quinn
-Without limiting the rights under copyright reserved above, no part of this publication may
-be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or
-by any means (electronic, mechanical, photocopying, recording or otherwise), without the
-prior written permission of both the copyright owner and the above publisher of this book.
-The scanning, uploading, and distribution of this book via the Internet or via any other
-means without the permission of the publisher is illegal and punishable by law. Please
- purchase
-only authorized electronic editions and do not participate in or encourage electronic
-piracy of copyrighted materials. Your support of the author's rights is appreciated.
+<sbr/>p. cm.
+<sbr/>Includes index.
+<sbr/>ISBN 1-59420-006-8 (hardcover)
+<sbr/>1. Intellectual property—United States. 2. Mass media—United States.
+<sbr/>3. Technological innovations—United States. 4. Art—United States. I. Title.
+<sbr/>KF2979.L47
+<sbr/>343.7309'9—dc22
+<sbr/>This book is printed on acid-free paper.
+<sbr/>Printed in the United States of America
+<sbr/>1 3 5 7 9 10 8 6 4
+<sbr/>Designed by Marysarah Quinn
+</para>
+
+<para>
+&translationblock;
+</para>
+
+<para>
+Without limiting the rights under copyright reserved above, no part of
+this publication may be reproduced, stored in or introduced into a
+retrieval system, or transmitted, in any form or by any means
+(electronic, mechanical, photocopying, recording or otherwise),
+without the prior written permission of both the copyright owner and
+the above publisher of this book. The scanning, uploading, and
+distribution of this book via the Internet or via any other means
+without the permission of the publisher is illegal and punishable by
+law. Please purchase only authorized electronic editions and do not
+participate in or encourage electronic piracy of copyrighted
+materials. Your support of the author's rights is appreciated.
</para>
<!-- PAGE BREAK 7 -->
<para>
-To Eric Eldred--whose work first drew me
-to this cause, and for whom
+To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
</para>
<figure id="CreativeCommons">
<title>Creative Commons, Some rights reserved</title>
-<graphic fileref="webcc.gif"></graphic>
+<graphic fileref="images/cc.png"></graphic>
</figure>
<toc id="toc"></toc>
</para>
</blockquote>
<para>
-Pogue was skeptical of the core argument of the book--that
+Pogue was skeptical of the core argument of the book—that
software,
-or "code," functioned as a kind of law--and his review suggested
+or "code," functioned as a kind of law—and his review suggested
the happy thought that if life in cyberspace got bad, we could always
"drizzle, drazzle, druzzle, drome"-like simply flip a switch and be back
home. Turn off the modem, unplug the computer, and any troubles
that exist in that space wouldn't "affect" us anymore.
</para>
<para>
-Pogue might have been right in 1999--I'm skeptical, but maybe.
+Pogue might have been right in 1999—I'm skeptical, but maybe.
But even if he was right then, the point is not right now: Free Culture
is about the troubles the Internet causes even after the modem is turned
<!-- PAGE BREAK 12 -->
</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
- freesoftware
-
movement<footnote><para>
-Richard M. Stallman, Free Software, Free Societies 57 ( Joshua Gay, ed. 2002).
+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
+freesoftware movement<footnote>
+<para>
+Richard M. Stallman, Free Software, Free Societies 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 free culture
-supports and protects creators and innovators. It does this directly by
-granting intellectual property rights. But it does so indirectly by
- limiting
-the reach of those rights, to guarantee that follow-on creators and
-innovators remain as free as possible from the control of the past. A free
-culture is not a culture without property, just as a free market is not a
-market in which everything is free. The opposite of a free culture is a
-"permission culture"--a culture in which creators get to create only
-with the permission of the powerful, or of creators from the past.
+trade," "free enterprise," "free will," and "free elections." A free
+culture supports and protects creators and innovators. It does this
+directly by granting intellectual property rights. But it does so
+indirectly by limiting the reach of those rights, to guarantee that
+follow-on creators and innovators remain as free as possible from the
+control of the past. A free culture is not a culture without property,
+just as a free market is not a market in which everything is free. The
+opposite of a free culture is a "permission culture"—a culture in
+which creators get to create only with the permission of the powerful,
+or of creators from the past.
</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
particular industries of culture that defined the twentieth century.
-Whether you are on the Left or the Right, if you are in this sense
- disinterested,
-then the story I tell here will trouble you. For the changes I
-describe affect values that both sides of our political culture deem
- fundamental.
+Whether you are on the Left or the Right, if you are in this sense
+disinterested, then the story I tell here will trouble you. For the
+changes I describe affect values that both sides of our political
+culture deem fundamental.
</para>
+<indexterm><primary>CodePink Women in Peace</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 Women for Peace and the National Rifle Association,
- between
- liberal Olympia Snowe and conservative Ted Stevens," he
- formulated
-perhaps most simply just what was at stake: the concentration
-of power. And as he asked,
+As William Safire described marching "uncomfortably alongside CodePink
+Women for Peace and the National Rifle Association, between liberal
+Olympia Snowe and conservative Ted Stevens," he formulated perhaps
+most simply just what was at stake: the concentration of power. And as
+he asked,
</para>
<blockquote>
<para>
-Does that sound unconservative? Not to me. The concentration
-of power--political, corporate, media, cultural--should be
- anathema
-to conservatives. The diffusion of power through local
- control,
-thereby encouraging individual participation, is the essence
-of federalism and the greatest expression of democracy.<footnote><para>
-William Safire, "The Great Media Gulp," New York Times, 22 May 2003.
+Does that sound unconservative? Not to me. The concentration of
+power—political, corporate, media, cultural—should be anathema to
+conservatives. The diffusion of power through local control, thereby
+encouraging individual participation, is the essence of federalism and
+the greatest expression of democracy.<footnote><para> William Safire,
+"The Great Media Gulp," New York Times, 22 May 2003.
</para></footnote>
</para>
</blockquote>
<para>
This idea is an element of the argument of Free Culture, though my
-focus is not just on the concentration of power produced by
- concentrations
-in ownership, but more importantly, if because less visibly, on the
-concentration of power produced by a radical change in the effective
-scope of the law. The law is changing; that change is altering the way our
-culture gets made; that change should worry you--whether or not you
-care about the Internet, and whether you're on Safire's left or on his right.
-The inspiration for the title and for much of the argument of
-this book comes from the work of Richard Stallman and the Free
- Software
-Foundation. Indeed, as I reread Stallman's own work, especially
-the essays in Free Software, Free Society, I realize that all of the
- theoretical
-insights I develop here are insights Stallman described decades
-ago. One could thus well argue that this work is "merely" derivative.
+focus is not just on the concentration of power produced by
+concentrations in ownership, but more importantly, if because less
+visibly, on the concentration of power produced by a radical change in
+the effective scope of the law. The law is changing; that change is
+altering the way our culture gets made; that change should worry
+you—whether or not you care about the Internet, and whether you're on
+Safire's left or on his right. The inspiration for the title and for
+much of the argument of this book comes from the work of Richard
+Stallman and the Free Software Foundation. Indeed, as I reread
+Stallman's own work, especially the essays in Free Software, Free
+Society, I realize that all of the theoretical insights I develop here
+are insights Stallman described decades ago. One could thus well argue
+that this work is "merely" derivative.
</para>
<para>
I accept that criticism, if indeed it is a criticism. The work of a
</para>
<para>
Then came airplanes, and for the first time, this principle of American
-law--deep within the foundations of our tradition, and acknowledged
-by the most important legal thinkers of our past--mattered. If
+law—deep within the foundations of our tradition, and acknowledged
+by the most important legal thinkers of our past—mattered. If
my land reaches to the heavens, what happens when United flies over
my field? Do I have the right to banish it from my property? Am I allowed
to enter into an exclusive license with Delta Airlines? Could we
Review
48 (1996): 1293, 1333. See also Paul Goldstein, Real Property
(Mineola,
-N.Y.: Foundation Press, 1984), 111213.
+N.Y.: Foundation Press, 1984), 1112–13.
</para></footnote>
</para>
</blockquote>
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 "obvious" to everyone else—the power of
+"common sense"—would prevail. Their "private interest" would not be
allowed to defeat an obvious public gain.
</para>
<para>
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
-for his most significant invention--FM radio. Until then, consumer radio
+for his most significant invention—FM radio. Until then, consumer radio
had been amplitude-modulated (AM) radio. The theorists
of the day had said that frequency-modulated (FM) radio could never
work. They were right about FM radio in a narrow band of spectrum.
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was
+sounded like a glass of water being poured. . . . A paper was
crumpled and torn; it sounded like paper and not like a crackling
forest fire. . . . Sousa marches were played from records and a
piano
<blockquote>
<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--
+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
</para>
</blockquote>
<para>
-Armstrong's invention threatened RCA's AM empire, so the
- company
-launched a campaign to smother FM radio. While FM may have
-been a superior technology, Sarnoff was a superior tactician. As one
- author
+Armstrong's invention threatened RCA's AM empire, so the company
+launched a campaign to smother FM radio. While FM may have been a
+superior technology, Sarnoff was a superior tactician. As one author
described,
</para>
<blockquote>
<para>
-The forces for FM, largely engineering, could not overcome the
-weight of strategy devised by the sales, patent, and legal offices
-to subdue this threat to corporate position. For FM, if allowed to
-develop unrestrained, posed . . . a complete reordering of radio
-power . . . and the eventual overthrow of the carefully restricted
-AM system on which RCA had grown to power.<footnote><para>
-Lessing, 226.
+The forces for FM, largely engineering, could not overcome the weight
+of strategy devised by the sales, patent, and legal offices to subdue
+this threat to corporate position. For FM, if allowed to develop
+unrestrained, posed . . . a complete reordering of radio power
+. . . and the eventual overthrow of the carefully restricted AM system
+on which RCA had grown to power.<footnote><para>Lessing, 226.
</para></footnote>
</para>
</blockquote>
impatient, RCA began to use its power with the government to stall
FM radio's deployment generally. In 1936, RCA hired the former head
of the FCC and assigned him the task of assuring that the FCC assign
-spectrum in a way that would castrate FM--principally by moving FM
+spectrum in a way that would castrate FM—principally by moving FM
radio to a different band of spectrum. At first, these efforts failed. But
when Armstrong and the nation were distracted by World War II,
RCA's work began to be more successful. Soon after the war ended, the
The series of body blows that FM radio received right after the
war, in a series of rulings manipulated through the FCC by the
big radio interests, were almost incredible in their force and
-
deviousness.<footnote><para>
+deviousness.<footnote><para>
Lessing, 256.
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
FM radio users were to be moved to a totally new spectrum band. The
least temporarily.
</para>
<para>
-Armstrong resisted RCA's efforts. In response, RCA resisted
- Armstrong's
-patents. After incorporating FM technology into the emerging
-standard for television, RCA declared the patents invalid--baselessly,
-and almost fifteen years after they were issued. It thus refused to pay
-him royalties. For six years, Armstrong fought an expensive war of
- litigation
-to defend the patents. Finally, just as the patents expired, RCA
-offered a settlement so low that it would not even cover Armstrong's
-lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong
-wrote a short note to his wife and then stepped out of a
- thirteenth-story
-window to his death.
+Armstrong resisted RCA's efforts. In response, RCA resisted
+Armstrong's patents. After incorporating FM technology into the
+emerging standard for television, RCA declared the patents
+invalid—baselessly, and almost fifteen years after they were
+issued. It thus refused to pay him royalties. For six years, Armstrong
+fought an expensive war of litigation to defend the patents. Finally,
+just as the patents expired, RCA offered a settlement so low that it
+would not even cover Armstrong's lawyers' fees. Defeated, broken, and
+now broke, in 1954 Armstrong wrote a short note to his wife and then
+stepped out of a thirteenth-story window to his death.
</para>
<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 the
-beginning, government and government agencies have been subject
-to capture. They are more likely captured when a powerful interest is
-threatened by either a legal or technical change. That powerful interest
-too often exerts its influence within the government to get the
- government
-to protect it. The rhetoric of this protection is of course always
-public spirited; the reality is something different. Ideas that were as
-solid as rock in one age, but that, left to themselves, would crumble in
+rarely with heroic drama, but sometimes, this is how it works. From
+the beginning, government and government agencies have been subject to
+capture. They are more likely captured when a powerful interest is
+threatened by either a legal or technical change. That powerful
+interest too often exerts its influence within the government to get
+the government to protect it. The rhetoric of this protection is of
+course always public spirited; the reality is something
+different. Ideas that were as solid as rock in one age, but that, left
+to themselves, would crumble in
<!-- 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
</para>
<para>
As the Internet has been integrated into ordinary life, it has
-changed things. Some of these changes are technical--the Internet has
+changed things. Some of these changes are technical—the Internet has
made communication faster, it has lowered the cost of gathering data,
and so on. These technical changes are not the focus of this book. They
are important. They are not well understood. But they are the sort of
with the creation or spread of this form of culture, and it left this
culture
"free." The ordinary ways in which ordinary individuals shared and
-transformed their culture--telling stories, reenacting scenes from plays
-or TV, participating in fan clubs, sharing music, making tapes--were
+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.
</para>
<para>
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial
-marketplace.<footnote><para>
+marketplace.<footnote>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<para>
This is not the only purpose of copyright, though it is the overwhelmingly
-primary purpose of the copyright established in the federal constitution.
+primary purpose of the copyright established in the federal constitution.
State copyright law historically protected not just the commercial interest in
publication, but also a privacy interest. By granting authors the exclusive
right to first publication, state copyright law gave authors the power to
control the spread of facts about them. See Samuel D. Warren and Louis
D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193,
-198200.
+198–200.
</para></footnote>
This is also, of
course, an important part of creativity and culture, and it has become
to draw within its control a vast amount of culture and
creativity
that it never reached before. The technology that preserved the
-balance of our history--between uses of our culture that were free and
-uses of our culture that were only upon permission--has been undone.
+balance of our history—between uses of our culture that were free and
+uses of our culture that were only upon permission—has been undone.
The consequence is that we are less and less a free culture, more and
more a permission culture.
</para>
wider and more diverse range of creators; those creators could produce
and distribute a much more vibrant range of creativity; and depending
upon a few important factors, those creators could earn more on average
-from this system than creators do today--all so long as the RCAs of our
+from this system than creators do today—all so long as the RCAs of our
day don't use the law to protect themselves against this competition.
</para>
<para>
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
+mainly about a much simpler brace of questions—whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
-has been waged against the technologies of the Internet--what
+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," New York
Times, 17 January 2002.
-</para></footnote>--has been framed as a battle about the
+</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
war, most think that we need only decide whether we're for property or
against it.
our Republic, guaranteed creators the right to build freely upon their
past, and protected creators and innovators from either state or private
control. The First Amendment protected creators against state control.
-And as Professor Neil Netanel powerfully argues,<footnote><para>
+And as Professor Neil Netanel powerfully argues,<footnote>
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<para>
Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
Journal 106 (1996): 283.
</para></footnote>
-copyright law,
- properly
-balanced, protected creators against private control. Our tradition
-was thus neither Soviet nor the tradition of patrons. It instead carved out
-a wide berth within which creators could cultivate and extend our culture.
+copyright law, properly balanced, protected creators against private
+control. Our tradition was thus neither Soviet nor the tradition of
+patrons. It instead carved out a wide berth within which creators
+could cultivate and extend our culture.
</para>
<para>
Yet the law's response to the Internet, when tied to changes in the
-technology of the Internet itself, has massively increased the effective
-regulation of creativity in America. To build upon or critique the
- culture
-around us one must ask, Oliver Twistlike, for permission first.
-Permission is, of course, often granted--but it is not often granted to
-the critical or the independent. We have built a kind of cultural
- nobility;
-those within the noble class live easily; those outside it don't. But it
-is nobility of any form that is alien to our tradition.
+technology of the Internet itself, has massively increased the
+effective regulation of creativity in America. To build upon or
+critique the culture around us one must ask, Oliver Twist–like,
+for permission first. Permission is, of course, often
+granted—but it is not often granted to the critical or the
+independent. We have built a kind of cultural nobility; those within
+the noble class live easily; those outside it don't. But it is
+nobility of any form that is alien to our tradition.
</para>
<!-- PAGE BREAK 26 -->
<para>
My method is not the usual method of an academic. I don't want to
plunge you into a complex argument, buttressed with references to
obscure
-French theorists--however natural that is for the weird sort we
+French theorists—however natural that is for the weird sort we
academics have become. Instead I begin in each part with a collection
of stories that set a context within which these apparently simple ideas
can be more fully understood.
the Internet might permit, and rather than taking time to let "common
sense" resolve how best to respond, we are allowing those most
threatened
-by the changes to use their power to change the law--and more
+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.
</para>
<para>
-We allow this, I believe, not because it is right, and not because
-most of us really believe in these changes. We allow it because the
- interests
-most threatened are among the most powerful players in our
-depressingly compromised process of making law. This book is the
-story of one more consequence of this form of corruption--a
- consequence
+We allow this, I believe, not because it is right, and not because
+most of us really believe in these changes. We allow it because the
+interests most threatened are among the most powerful players in our
+depressingly compromised process of making law. This book is the story
+of one more consequence of this form of corruption—a consequence
to which most of us remain oblivious.
</para>
</chapter>
A generation of Americans, the warriors warn, is being raised to
believe
that "property" should be "free." Forget tattoos, never mind body
-piercing--our kids are becoming thieves!
+piercing—our kids are becoming thieves!
</para>
<para>
There's no doubt that "piracy" is wrong, and that pirates should be
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the "if value, then right"
- theory
-of creative property<footnote><para>
+theory of creative property<footnote><para>
<!-- f2 -->
See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
</para></footnote>
---if there is value, then someone must have a
+—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
+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
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins," Boston Globe, 24 November 2002.
</para></footnote>
-There was "value"
-(the songs) so there must have been a "right"--even against the Girl
-Scouts.
+There was "value" (the songs) so there must have been a
+"right"—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
</para>
<para>
Instead, in our tradition, intellectual property is an instrument. It
-sets the groundwork for a richly creative society but remains
- subservient
-to the value of creativity. The current debate has this turned
-around. We have become so concerned with protecting the instrument
-that we are losing sight of the value.
+sets the groundwork for a richly creative society but remains
+subservient to the value of creativity. The current debate has this
+turned around. We have become so concerned with protecting the
+instrument that we are losing sight of the value.
</para>
<para>
The source of this confusion is a distinction that the law no longer
-takes care to draw--the distinction between republishing someone's
+takes care to draw—the distinction between republishing someone's
work on the one hand and building upon or transforming that work on
the other. Copyright law at its birth had only publishing as its concern;
copyright law today regulates both.
</para>
<para>
-Before the technologies of the Internet, this conflation didn't
- matter
+Before the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive; that
meant the vast majority of publishing was commercial. Commercial
-entities could bear the burden of the law--even the burden of the
+entities could bear the burden of the law—even the burden of the
Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
</para>
+<indexterm><primary>Florida, Richard</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, the
-extension matters a lot. The burden of this law now vastly outweighs
-any original benefit--certainly as it affects noncommercial creativity,
-and increasingly as it affects commercial creativity as well. Thus, as
-we'll see more clearly in the chapters below, the law's role is less and
-less to support creativity, and more and more to protect certain
- industries
-against competition. Just at the time digital technology could
-unleash an extraordinary range of commercial and noncommercial
-creativity, the law burdens this creativity with insanely complex and
-vague rules and with the threat of obscenely severe penalties. We may
+commercial creators but effectively that of anyone. Although that
+expansion would not matter much if copyright law regulated only
+"copying," when the law regulates as broadly and obscurely as it does,
+the extension matters a lot. The burden of this law now vastly
+outweighs any original benefit—certainly as it affects
+noncommercial creativity, and increasingly as it affects commercial
+creativity as well. Thus, as we'll see more clearly in the chapters
+below, the law's role is less and less to support creativity, and more
+and more to protect certain industries against competition. Just at
+the time digital technology could unleash an extraordinary range of
+commercial and noncommercial creativity, the law burdens this
+creativity with insanely complex and vague rules and with the threat
+of obscenely severe penalties. We may
<!-- PAGE BREAK 33 -->
-be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote><para>
+be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote>
+<indexterm><primary>Florida, Richard</primary></indexterm>
+<para>
<!-- f4 -->
-In The Rise of the Creative Class (New York: Basic Books, 2002), Richard
-Florida documents a shift in the nature of labor toward a labor of
- creativity.
-His work, however, doesn't directly address the legal conditions under
-which that creativity is enabled or stifled. I certainly agree with him about
-the importance and significance of this change, but I also believe the
- conditions
-under which it will be enabled are much more tenuous.
+In The Rise of the Creative Class (New York: Basic Books, 2002),
+Richard Florida documents a shift in the nature of labor toward a
+labor of creativity. His work, however, doesn't directly address the
+legal conditions under which that creativity is enabled or stifled. I
+certainly agree with him about the importance and significance of this
+change, but I also believe the conditions under which it will be
+enabled are much more tenuous.
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
to life the character that would become Mickey Mouse.
</para>
<para>
-Synchronized sound had been introduced to film a year earlier in
-the movie The Jazz Singer. That success led Walt Disney to copy the
-technique and mix sound with cartoons. No one knew whether it
-would work or, if it did work, whether it would win an audience. But
-when Disney ran a test in the summer of 1928, the results were
- unambiguous.
+Synchronized sound had been introduced to film a year earlier in the
+movie The Jazz Singer. That success led Walt Disney to copy the
+technique and mix sound with cartoons. No one knew whether it would
+work or, if it did work, whether it would win an audience. But when
+Disney ran a test in the summer of 1928, the results were unambiguous.
As Disney describes that first experiment,
</para>
<blockquote>
<!-- PAGE BREAK 35 -->
</para>
<para>
-The boys worked from a music and sound-effects score. After
-several false starts, sound and action got off with the gun. The
-mouth organist played the tune, the rest of us in the sound
- department
-bammed tin pans and blew slide whistles on the beat.
-The synchronization was pretty close.
+The boys worked from a music and sound-effects score. After several
+false starts, sound and action got off with the gun. The mouth
+organist played the tune, the rest of us in the sound department
+bammed tin pans and blew slide whistles on the beat. The
+synchronization was pretty close.
</para>
<para>
The effect on our little audience was nothing less than
<!-- f1 -->
Leonard Maltin, Of Mice and Magic: A History of American Animated
Cartoons
-(New York: Penguin Books, 1987), 3435.
+(New York: Penguin Books, 1987), 34–35.
</para></footnote>
</para>
</blockquote>
in my life. Nothing since has ever equaled it."
</para>
<para>
-Disney had created something very new, based upon something
- relatively
-new. Synchronized sound brought life to a form of creativity
-that had rarely--except in Disney's hands--been anything more than
-filler for other films. Throughout animation's early history, it was
- Disney's
-invention that set the standard that others struggled to match.
-And quite often, Disney's great genius, his spark of creativity, was built
-upon the work of others.
+Disney had created something very new, based upon something relatively
+new. Synchronized sound brought life to a form of creativity that had
+rarely—except in Disney's hands—been anything more than
+filler for other films. Throughout animation's early history, it was
+Disney's invention that set the standard that others struggled to
+match. And quite often, Disney's great genius, his spark of
+creativity, was built upon the work of others.
</para>
<para>
This much is familiar. What you might not know is that 1928 also
silent film, he had mastered using broad physical comedy as a way to
spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was
a classic of this form, famous among film buffs for its incredible stunts.
-The film was classic Keaton--wildly popular and among the best of its
+The film was classic Keaton—wildly popular and among the best of its
genre.
</para>
<para>
Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
<!-- PAGE BREAK 36 -->
The coincidence of titles is not coincidental. Steamboat Willie is a
- direct
-cartoon parody of Steamboat Bill,<footnote><para>
+direct cartoon parody of Steamboat Bill,<footnote><para>
<!-- f2 -->
I am grateful to David Gerstein and his careful history, described at
<ulink url="http://free-culture.cc/notes/">link #4</ulink>.
Straw," 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 The Jazz Singer that we get Steamboat Willie. It is also from
-Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the
-song "Steamboat Bill," that we get Steamboat Willie, and then from
-Steamboat Willie, Mickey Mouse.
+and both are built upon a common song as a source. It is not just from
+the invention of synchronized sound in The Jazz Singer that we get
+Steamboat Willie. It is also from Buster Keaton's invention of
+Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill,"
+that we get Steamboat Willie, and then from Steamboat Willie, Mickey
+Mouse.
</para>
<para>
This "borrowing" was nothing unique, either for Disney or for the
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
+that Ate the Public Domain," 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
-knockoffs--slight variations on winning themes; retellings of ancient
-stories. The key to success was the brilliance of the differences. With
-Disney, it was sound that gave his animation its spark. Later, it was the
-quality of his work relative to the production-line cartoons with which
-he competed. Yet these additions were built upon a base that was
- borrowed.
-Disney added to the work of others before him, creating
- something
-new out of something just barely old.
+So did many others. Early cartoons are filled with
+knockoffs—slight variations on winning themes; retellings of
+ancient stories. The key to success was the brilliance of the
+differences. With Disney, it was sound that gave his animation its
+spark. Later, it was the quality of his work relative to the
+production-line cartoons with which he competed. Yet these additions
+were built upon a base that was borrowed. Disney added to the work of
+others before him, creating something new out of something just barely
+old.
</para>
<para>
Sometimes this borrowing was slight. Sometimes it was significant.
-Think about the fairy tales of the Brothers Grimm. If you're as
- oblivious
-as I was, you're likely to think that these tales are happy, sweet
- stories,
-appropriate for any child at bedtime. In fact, the Grimm fairy tales
-are, well, for us, grim. It is a rare and perhaps overly ambitious parent
-who would dare to read these bloody, moralistic stories to his or her
-child, at bedtime or anytime.
-</para>
-<para>
-Disney took these stories and retold them in a way that carried
-them into a new age. He animated the stories, with both characters and
+Think about the fairy tales of the Brothers Grimm. If you're as
+oblivious as I was, you're likely to think that these tales are happy,
+sweet stories, appropriate for any child at bedtime. In fact, the
+Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
+overly ambitious parent who would dare to read these bloody,
+moralistic stories to his or her child, at bedtime or anytime.
+</para>
+<para>
+Disney took these stories and retold them in a way that carried them
+into a new age. He animated the stories, with both characters and
light. Without removing the elements of fear and danger altogether, he
-made funny what was dark and injected a genuine emotion of
- compassion
+made funny what was dark and injected a genuine emotion of compassion
where before there was fear. And not just with the work of the
-Brothers Grimm. Indeed, the catalog of Disney work drawing upon
-the work of others is astonishing when set together: Snow White
-(1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi
-(1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland
-(1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp
+Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
+work of others is astonishing when set together: Snow White (1937),
+Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of
+the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin
+Hood (1952), Peter Pan (1953), Lady and the Tramp
<!-- PAGE BREAK 37 -->
(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
-The Sword in the Stone (1963), and The Jungle Book (1967)--not to
-mention a recent example that we should perhaps quickly forget,
- Treasure
-Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped
-creativity from the culture around him, mixed that creativity with his
-own extraordinary talent, and then burned that mix into the soul of his
-culture. Rip, mix, and burn.
-</para>
-<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 culture around us
-and makes it something different.
-</para>
-<para>
-In 1928, the culture that Disney was free to draw upon was
- relatively
-fresh. The public domain in 1928 was not very old and was
+The Sword in the Stone (1963), and The Jungle Book (1967)—not to
+mention a recent example that we should perhaps quickly forget,
+Treasure Planet (2003). In all of these cases, Disney (or Disney,
+Inc.) ripped creativity from the culture around him, mixed that
+creativity with his own extraordinary talent, and then burned that mix
+into the soul of his culture. Rip, mix, and burn.
+</para>
+<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
+culture around us and makes it something different.
+</para>
+<para> In 1928, the culture that Disney was free to draw upon was
+relatively fresh. The public domain in 1928 was not very old and was
therefore quite vibrant. The average term of copyright was just around
-thirty years--for that minority of creative work that was in fact copyrighted.<footnote><para>
+thirty years—for that minority of creative work that was in fact
+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
- determining
+determining
the weighted average of total registrations for any particular year,
and the proportion renewing. Thus, if 100 copyrights are registered in year
1, and only 15 are renewed, and the renewal term is 28 years, then the
- average
+average
term is 32.2 years. For the renewal data and other relevant data, see the
Web site associated with this book, available at
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
required the permission of the copyright owner.
</para>
<para>
-At the end of a copyright term, a work passes into the public
- domain.
+At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
permission and, hence, no lawyers. The public domain is a "lawyer-free
zone." Thus, most of the content from the nineteenth century was free
-for Disney to use and build upon in 1928. It was free for anyone--
-whether connected or not, whether rich or not, whether approved or
-not--to use and build upon.
+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.
</para>
<para>
-This is the ways things always were--until quite recently. For most
+This is the ways things always were—until quite recently. For most
of our history, the public domain was just over the horizon. From
until 1978, the average copyright term was never more than thirty-two
years, meaning that most culture just a generation and a half old was
<!-- PAGE BREAK 38 -->
free for anyone to build upon without the permission of anyone else.
-Today's equivalent would be for creative work from the 1960s and
-1970s to now be free for the next Walt Disney to build upon without
-permission. Yet today, the public domain is presumptive only for
- content
-from before the Great Depression.
+Today's equivalent would be for creative work from the 1960s and 1970s
+to now be free for the next Walt Disney to build upon without
+permission. Yet today, the public domain is presumptive only for
+content from before the Great Depression.
</para>
<para>
-Of course, Walt Disney had no monopoly on "Walt Disney
- creativity."
-Nor does America. The norm of free culture has, until recently,
-and except within totalitarian nations, been broadly exploited and quite
+Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+Nor does America. The norm of free culture has, until recently, and
+except within totalitarian nations, been broadly exploited and quite
universal.
</para>
<para>
-Consider, for example, a form of creativity that seems strange to
-many Americans but that is inescapable within Japanese culture:
-manga, or comics. The Japanese are fanatics about comics. Some 40
-percent of publications are comics, and 30 percent of publication
- revenue
-derives from comics. They are everywhere in Japanese society, at
-every magazine stand, carried by a large proportion of commuters on
-Japan's extraordinary system of public transportation.
+Consider, for example, a form of creativity that seems strange to many
+Americans but that is inescapable within Japanese culture: manga, or
+comics. The Japanese are fanatics about comics. Some 40 percent of
+publications are comics, and 30 percent of publication revenue derives
+from comics. They are everywhere in Japanese society, at every
+magazine stand, carried by a large proportion of commuters on Japan's
+extraordinary system of public transportation.
</para>
<para>
Americans tend to look down upon this form of culture. That's an
-unattractive characteristic of ours. We're likely to misunderstand much
-about manga, because few of us have ever read anything close to the
-stories that these "graphic novels" tell. For the Japanese, manga cover
-every aspect of social life. For us, comics are "men in tights." And
- anyway,
-it's not as if the New York subways are filled with readers of Joyce
-or even Hemingway. People of different cultures distract themselves in
-different ways, the Japanese in this interestingly different way.
+unattractive characteristic of ours. We're likely to misunderstand
+much about manga, because few of us have ever read anything close to
+the stories that these "graphic novels" tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are "men in tights."
+And anyway, it's not as if the New York subways are filled with
+readers of Joyce or even Hemingway. People of different cultures
+distract themselves in different ways, the Japanese in this
+interestingly different way.
</para>
<para>
But my purpose here is not to understand manga. It is to describe a
contribution to the art he copies, by transforming it either subtly or
<!-- PAGE BREAK 39 -->
significantly. A doujinshi comic can thus take a mainstream comic and
-develop it differently--with a different story line. Or the comic can
+develop it differently—with a different story line. Or the comic can
keep the character in character but change its look slightly. There is no
formula for what makes the doujinshi sufficiently "different." But they
must be different if they are to be considered true doujinshi. Indeed,
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
-these bits of Walt Disney creativity. More than 450,000 Japanese
-come together twice a year, in the largest public gathering in the
- country,
+These copycat comics are not a tiny part of the manga market. They are
+huge. More than 33,000 "circles" of creators from across Japan produce
+these bits of Walt Disney creativity. More than 450,000 Japanese come
+together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
mainstream commercial manga market. In some ways, it obviously
competes with that market, but there is no sustained effort by those
-who control the commercial manga market to shut the doujinshi
- market
+who control the commercial manga market to shut the doujinshi market
down. It flourishes, despite the competition and despite the law.
</para>
<para>
-The most puzzling feature of the doujinshi market, for those
-trained in the law, at least, is that it is allowed to exist at all. Under
-Japanese copyright law, which in this respect (on paper) mirrors
- American
-copyright law, the doujinshi market is an illegal one. Doujinshi are
-plainly "derivative works." There is no general practice by doujinshi
-artists of securing the permission of the manga creators. Instead, the
-practice is simply to take and modify the creations of others, as Walt
-Disney did with Steamboat Bill, Jr. Under both Japanese and American
-law, that "taking" without the permission of the original copyright
-owner is illegal. It is an infringement of the original copyright to make
-a copy or a derivative work without the original copyright owner's
-permission.
+The most puzzling feature of the doujinshi market, for those trained
+in the law, at least, is that it is allowed to exist at all. Under
+Japanese copyright law, which in this respect (on paper) mirrors
+American copyright law, the doujinshi market is an illegal
+one. Doujinshi are plainly "derivative works." There is no general
+practice by doujinshi artists of securing the permission of the manga
+creators. Instead, the practice is simply to take and modify the
+creations of others, as Walt Disney did with Steamboat Bill, Jr. Under
+both Japanese and American law, that "taking" without the permission
+of the original copyright owner is illegal. It is an infringement of
+the original copyright to make a copy or a derivative work without the
+original copyright owner's permission.
</para>
<para>
Yet this illegal market exists and indeed flourishes in Japan, and in
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
+other. . . . That's how [the artists] learn to draw—by going into comic
books and not tracing them, but looking at them and copying them"
and building from them.<footnote><para>
<!-- f5 -->
which are fifty years old."
</para>
<para>
-The norm in Japan mitigates this legal difficulty. Some say it is
- precisely
-the benefit accruing to the Japanese manga market that explains
-the mitigation. Temple University law professor Salil Mehra, for
- example,
-hypothesizes that the manga market accepts these technical
-violations because they spur the manga market to be more wealthy and
-productive. Everyone would be worse off if doujinshi were banned, so
-the law does not ban doujinshi.<footnote><para>
+The norm in Japan mitigates this legal difficulty. Some say it is
+precisely the benefit accruing to the Japanese manga market that
+explains the mitigation. Temple University law professor Salil Mehra,
+for example, hypothesizes that the manga market accepts these
+technical violations because they spur the manga market to be more
+wealthy and productive. Everyone would be worse off if doujinshi were
+banned, so the law does not ban doujinshi.<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?" Rutgers Law
-Review 55 (2002): 155, 182. "[T]here might be a collective economic
- rationality
-that would lead manga and anime artists to forgo bringing legal
-actions for infringement. One hypothesis is that all manga artists may be
-better off collectively if they set aside their individual self-interest and
- decide
-not to press their legal rights. This is essentially a prisoner's dilemma
-solved."
+Review 55 (2002): 155, 182. "[T]here might be a collective economic
+rationality that would lead manga and anime artists to forgo bringing
+legal actions for infringement. One hypothesis is that all manga
+artists may be better off collectively if they set aside their
+individual self-interest and decide not to press their legal
+rights. This is essentially a prisoner's dilemma solved."
</para></footnote>
</para>
<para>
-The problem with this story, however, as Mehra plainly
- acknowledges,
+The problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response is not
-clear. It may well be that the market as a whole is better off if
- doujinshi
-are permitted rather than banned, but that doesn't explain why
- individual
-copyright owners don't sue nonetheless. If the law has no
-general exception for doujinshi, and indeed in some cases individual
-manga artists have sued doujinshi artists, why is there not a more
- general
-pattern of blocking this "free taking" by the doujinshi culture?
+clear. It may well be that the market as a whole is better off if
+doujinshi are permitted rather than banned, but that doesn't explain
+why individual copyright owners don't sue nonetheless. If the law has
+no general exception for doujinshi, and indeed in some cases
+individual manga artists have sued doujinshi artists, why is there not
+a more general pattern of blocking this "free taking" by the doujinshi
+culture?
</para>
<para>
I spent four wonderful months in Japan, and I asked this question
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
- 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>
+We live in a world that celebrates "property." I am one of those
+celebrants. I believe in the value of property in general, and I also
+believe in the value of that weird form of property that lawyers call
+"intellectual property."<footnote><para>
<!-- f7 -->
The term intellectual property is of relatively recent origin. See Siva
Vaidhyanathan,
University
Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York:
Random House, 2001), 293 n. 26. The term accurately describes a set of
-"property" rights--copyright, patents, trademark, and trade-secret--but the
+"property" rights—copyright, patents, trademark, and trade-secret—but the
nature of those rights is very different.
</para></footnote>
A large, diverse society cannot survive without
intellectual property.
</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 part of a process of
-production, including commercial as well as noncommercial
- production.
-If Disney animators had stolen a set of pencils to draw Steamboat
-Willie, we'd have no hesitation in condemning that taking as wrong--
-even though trivial, even if unnoticed. Yet there was nothing wrong, at
-least under the law of the day, with Disney's taking from Buster Keaton
-or from the Brothers Grimm. There was nothing wrong with the
- taking
-from Keaton because Disney's use would have been considered
-"fair." There was nothing wrong with the taking from the Grimms
- because
-the Grimms' work was in the public domain.
+But it takes just a second's reflection to realize that there is
+plenty of value out there that "property" doesn't capture. I don't
+mean "money can't buy you love," but rather, value that is plainly
+part of a process of production, including commercial as well as
+noncommercial production. If Disney animators had stolen a set of
+pencils to draw Steamboat Willie, we'd have no hesitation in
+condemning that taking as wrong— even though trivial, even if
+unnoticed. Yet there was nothing wrong, at least under the law of the
+day, with Disney's taking from Buster Keaton or from the Brothers
+Grimm. There was nothing wrong with the taking from Keaton because
+Disney's use would have been considered "fair." There was nothing
+wrong with the taking from the Grimms because the Grimms' work was in
+the public domain.
</para>
<para>
-Thus, even though the things that Disney took--or more generally,
-the things taken by anyone exercising Walt Disney creativity--are
+Thus, even though the things that Disney took—or more generally,
+the things taken by anyone exercising Walt Disney creativity—are
valuable, our tradition does not treat those takings as wrong. Some
<!-- PAGE BREAK 42 -->
-things remain free for the taking within a free culture, and that
- freedom
-is good.
+things remain free for the taking within a free culture, and that
+freedom is good.
</para>
<para>
The same with the doujinshi culture. If a doujinshi artist broke into
a publisher's office and ran off with a thousand copies of his latest
-work--or even one copy--without paying, we'd have no hesitation in
+work—or even one copy—without paying, we'd have no hesitation in
saying the artist was wrong. In addition to having trespassed, he would
have stolen something of value. The law bans that stealing in whatever
form, whether large or small.
</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
- 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
- Einstein,
-but may I have permission to use your theory of relativity to show
-that you were wrong about quantum physics?") Acting companies
- perform
-adaptations of the works of Shakespeare without securing
- permission
-from anyone. (Does anyone believe Shakespeare would be
+say that the copycat comic artists are "stealing." This form of Walt
+Disney creativity is seen as fair and right, even if lawyers in
+particular find it hard to say why.
+</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
+Einstein, but may I have permission to use your theory of relativity
+to show that you were wrong about quantum physics?") Acting companies
+perform adaptations of the works of Shakespeare without securing
+permission from anyone. (Does anyone believe Shakespeare would be
better spread within our culture if there were a central Shakespeare
rights clearinghouse that all productions of Shakespeare must appeal
to first?) And Hollywood goes through cycles with a certain kind of
-movie: five asteroid films in the late 1990s; two volcano disaster films
-in 1997.
+movie: five asteroid films in the late 1990s; two volcano disaster
+films in 1997.
</para>
<para>
Creators here and everywhere are always and at all times building
permission and without compensating the original creator. No society,
free or controlled, has ever demanded that every use be paid for or that
permission for Walt Disney creativity must always be sought. Instead,
-every society has left a certain bit of its culture free for the taking--free
+every society has left a certain bit of its culture free for the taking—free
societies more fully than unfree, perhaps, but all societies to some degree.
<!-- PAGE BREAK 43 -->
</para>
<para>
-The hard question is therefore not whether a culture is free. All
- cultures
-are free to some degree. The hard question instead is "How free is
-this culture?" How much, and how broadly, is the culture free for
- others
-to take and build upon? Is that freedom limited to party members?
-To members of the royal family? To the top ten corporations on the
-New York Stock Exchange? Or is that freedom spread broadly? To
-artists generally, whether affiliated with the Met or not? To musicians
-generally, whether white or not? To filmmakers generally, whether
- affiliated
-with a studio or not?
+The hard question is therefore not whether a culture is free. All
+cultures are free to some degree. The hard question instead is "How
+free is this culture?" How much, and how broadly, is the culture free
+for others to take and build upon? Is that freedom limited to party
+members? To members of the royal family? To the top ten corporations
+on the New York Stock Exchange? Or is that freedom spread broadly? To
+artists generally, whether affiliated with the Met or not? To
+musicians generally, whether white or not? To filmmakers generally,
+whether affiliated with a studio or not?
</para>
<para>
Free cultures are cultures that leave a great deal open for others to
<sect1 id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
<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 "photographs." Appropriately enough, they
+were called "daguerreotypes." The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
-Association that helped regulate the industry, as do all such
- associations,
-by keeping competition down so as to keep prices up.)
+Association that helped regulate the industry, as do all such
+associations, by keeping competition down so as to keep prices up.)
</para>
<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 be
-kept wet, the process still remained expensive and cumbersome. In the
-1870s, dry plates were developed, making it easier to separate the
- taking
-of a picture from its developing. These were still plates of glass, and
-thus it was still not a process within reach of most amateurs.
+This pushed inventors to find simpler and cheaper ways to make
+"automatic pictures." William Talbot soon discovered a process for
+making "negatives." But because the negatives were glass, and had to
+be kept wet, the process still remained expensive and cumbersome. In
+the 1870s, dry plates were developed, making it easier to separate the
+taking of a picture from its developing. These were still plates of
+glass, and thus it was still not a process within reach of most
+amateurs.
</para>
<para>
The technological change that made mass photography possible
<!-- PAGE BREAK 45 -->
Eastman, himself an amateur photographer, was frustrated by the
technology of photographs made with plates. In a flash of insight (so
-to speak), Eastman saw that if the film could be made to be flexible, it
-could be held on a single spindle. That roll could then be sent to a
- developer,
-driving the costs of photography down substantially. By
- lowering
-the costs, Eastman expected he could dramatically broaden the
+to speak), Eastman saw that if the film could be made to be flexible,
+it could be held on a single spindle. That roll could then be sent to
+a developer, driving the costs of photography down substantially. By
+lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
</para>
<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>
+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>
<!-- f1 -->
Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in The Kodak Primer:
</para>
<blockquote>
<para>
-The principle of the Kodak system is the separation of the work
-that any person whomsoever can do in making a photograph,
-from the work that only an expert can do. . . . We furnish
- anybody,
-man, woman or child, who has sufficient intelligence to
-point a box straight and press a button, with an instrument which
-altogether removes from the practice of photography the
- necessity
-for exceptional facilities or, in fact, any special knowledge of
-the art. It can be employed without preliminary study, without a
-
darkroom and without chemicals.<footnote><para>
+The principle of the Kodak system is the separation of the work that
+any person whomsoever can do in making a photograph, from the work
+that only an expert can do. . . . We furnish anybody, man, woman or
+child, who has sufficient intelligence to point a box straight and
+press a button, with an instrument which altogether removes from the
+practice of photography the necessity for exceptional facilities or,
+in fact, any special knowledge of the art. It can be employed without
+preliminary study, without a darkroom and without
+chemicals.<footnote>
+<indexterm><primary>Coe, Brian</primary></indexterm>
+<para>
<!-- f2 -->
Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
Based on a chart in Jenkins, p. 178.
</para></footnote>
</para>
+<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<!-- PAGE BREAK 46 -->
The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
-glimpse of places they would never otherwise see. Amateur
- photography
+glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had
-never been able to do before. As author Brian Coe notes, "For the first
-time the snapshot album provided the man on the street with a
- permanent
-record of his family and its activities. . . . For the first time in
-history there exists an authentic visual record of the appearance and
- activities
-of the common man made without [literary] interpretation
-or bias."<footnote><para>
+never been able to do before. As author Brian Coe notes, "For the
+first time the snapshot album provided the man on the street with a
+permanent record of his family and its activities. . . . For the first
+time in history there exists an authentic visual record of the
+appearance and activities of the common man made without [literary]
+interpretation or bias."<footnote><para>
<!-- f5 -->
Coe, 58.
</para></footnote>
</para>
<para>
-In this way, the Kodak camera and film were technologies of
- expression.
-The pencil or paintbrush was also a technology of expression,
-of course. But it took years of training before they could be deployed by
-amateurs in any useful or effective way. With the Kodak, expression
-was possible much sooner and more simply. The barrier to expression
-was lowered. Snobs would sneer at its "quality"; professionals would
-discount it as irrelevant. But watch a child study how best to frame a
-picture and you get a sense of the experience of creativity that the
- Kodak
-enabled. Democratic tools gave ordinary people a way to express
-themselves more easily than any tools could have before.
+In this way, the Kodak camera and film were technologies of
+expression. The pencil or paintbrush was also a technology of
+expression, of course. But it took years of training before they could
+be deployed by amateurs in any useful or effective way. With the
+Kodak, expression was possible much sooner and more simply. The
+barrier to expression was lowered. Snobs would sneer at its "quality";
+professionals would discount it as irrelevant. But watch a child study
+how best to frame a picture and you get a sense of the experience of
+creativity that the Kodak enabled. Democratic tools gave ordinary
+people a way to express themselves more easily than any tools could
+have before.
</para>
<para>
What was required for this technology to flourish? Obviously,
-Eastman's genius was an important part. But also important was the
- legal
-environment within which Eastman's invention grew. For early in
-the history of photography, there was a series of judicial decisions that
-could well have changed the course of photography substantially.
+Eastman's genius was an important part. But also important was the
+legal environment within which Eastman's invention grew. For early in
+the history of photography, there was a series of judicial decisions
+that could well have changed the course of photography substantially.
Courts were asked whether the photographer, amateur or professional,
required permission before he could capture and print whatever image
he wanted. Their answer was no.<footnote><para>
</para></footnote>
</para>
<para>
-The arguments in favor of requiring permission will sound
- surprisingly
-familiar. The photographer was "taking" something from the
- person
-or building whose photograph he shot--pirating something of
-value. Some even thought he was taking the target's soul. Just as
- Disney
-was not free to take the pencils that his animators used to draw
+The arguments in favor of requiring permission will sound surprisingly
+familiar. The photographer was "taking" something from the person or
+building whose photograph he shot—pirating something of
+value. Some even thought he was taking the target's soul. Just as
+Disney was not free to take the pencils that his animators used to
+draw
<!-- PAGE BREAK 47 -->
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
</para>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<para>
On the other side was an argument that should be familiar, as well.
Sure, there may be something of value being used. But citizens should
have the right to capture at least those images that stand in public view.
(Louis Brandeis, who would become a Supreme Court Justice, thought
-the rule should be different for images from private spaces.<footnote><para>
+the rule should be different for images from private spaces.<footnote>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<indexterm><primary>Warren, Samuel D.</primary></indexterm>
+<para>
<!-- f7 -->
-Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
- Harvard
-Law Review 4 (1890): 193.
-</para></footnote>) It may be
-that this means that the photographer gets something for nothing. Just
-as Disney could take inspiration from Steamboat Bill, Jr. or the
- Brothers
-Grimm, the photographer should be free to capture an image
- without
-compensating the source.
+Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
+Harvard Law Review 4 (1890): 193.
+</para></footnote>) It may be that this means that the photographer
+gets something for nothing. Just as Disney could take inspiration from
+Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
+free to capture an image without compensating the source.
</para>
<para>
Fortunately for Mr. Eastman, and for photography in general, these
-early decisions went in favor of the pirates. In general, no permission
-would be required before an image could be captured and shared with
-others. Instead, permission was presumed. Freedom was the default.
-(The law would eventually craft an exception for famous people:
- commercial
-photographers who snap pictures of famous people for
- commercial
-purposes have more restrictions than the rest of us. But in the
-ordinary case, the image can be captured without clearing the rights to
-do the capturing.<footnote><para>
+early decisions went in favor of the pirates. In general, no
+permission would be required before an image could be captured and
+shared with others. Instead, permission was presumed. Freedom was the
+default. (The law would eventually craft an exception for famous
+people: commercial photographers who snap pictures of famous people
+for commercial purposes have more restrictions than the rest of
+us. But in the ordinary case, the image can be captured without
+clearing the rights to do the capturing.<footnote><para>
<!-- f8 -->
See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
-Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
- Review
-48 (1960) 398407; White v. Samsung Electronics America, Inc., 971 F.
-2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
+Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
+Review 48 (1960) 398–407; White v. Samsung Electronics America,
+Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
+(1993).
</para></footnote>)
</para>
<para>
-We can only speculate about how photography would have
- developed
-had the law gone the other way. If the presumption had been
-against the photographer, then the photographer would have had to
-demonstrate permission. Perhaps Eastman Kodak would have had to
-demonstrate permission, too, before it developed the film upon which
-images were captured. After all, if permission were not granted, then
-Eastman Kodak would be benefiting from the "theft" committed by
-the photographer. Just as Napster benefited from the copyright
- infringements
-committed by Napster users, Kodak would be benefiting
+We can only speculate about how photography would have developed had
+the law gone the other way. If the presumption had been against the
+photographer, then the photographer would have had to demonstrate
+permission. Perhaps Eastman Kodak would have had to demonstrate
+permission, too, before it developed the film upon which images were
+captured. After all, if permission were not granted, then Eastman
+Kodak would be benefiting from the "theft" committed by the
+photographer. Just as Napster benefited from the copyright
+infringements committed by Napster users, Kodak would be benefiting
from the "image-right" infringement of its photographers. We could
imagine the law then requiring that some form of permission be
-demonstrated before a company developed pictures. We could imagine
-a system developing to demonstrate that permission.
+demonstrated before a company developed pictures. We could imagine a
+system developing to demonstrate that permission.
</para>
<para>
<!-- PAGE BREAK 48 -->
-But though we could imagine this system of permission, it would
-be very hard to see how photography could have flourished as it did if
-the requirement for permission had been built into the rules that
- govern
-it. Photography would have existed. It would have grown in
- importance
-over time. Professionals would have continued to use the
-technology as they did--since professionals could have more easily borne
-the burdens of the permission system. But the spread of photography
-to ordinary people would not have occurred. Nothing like that growth
-would have been realized. And certainly, nothing like that growth in a
-democratic technology of expression would have been realized.
-If you drive through San Francisco's Presidio, you might see two
-gaudy yellow school buses painted over with colorful and striking
- images,
-and the logo "Just Think!" in place of the name of a school. But
-there's little that's "just" cerebral in the projects that these busses
- enable.
-These buses are filled with technologies that teach kids to tinker
-with film. Not the film of Eastman. Not even the film of your VCR.
-Rather the "film" of digital cameras. Just Think! is a project that
- enables
-kids to make films, as a way to understand and critique the filmed
-culture that they find all around them. Each year, these busses travel to
-more than thirty schools and enable three hundred to five hundred
-children to learn something about media by doing something with
- media.
-By doing, they think. By tinkering, they learn.
-</para>
-<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 real-time
-digital video editing system cost $25,000. Today you can get
- professional
-quality for $595."<footnote><para>
+But though we could imagine this system of permission, it would be
+very hard to see how photography could have flourished as it did if
+the requirement for permission had been built into the rules that
+govern it. Photography would have existed. It would have grown in
+importance over time. Professionals would have continued to use the
+technology as they did—since professionals could have more
+easily borne the burdens of the permission system. But the spread of
+photography to ordinary people would not have occurred. Nothing like
+that growth would have been realized. And certainly, nothing like that
+growth in a democratic technology of expression would have been
+realized. If you drive through San Francisco's Presidio, you might
+see two gaudy yellow school buses painted over with colorful and
+striking images, and the logo "Just Think!" in place of the name of a
+school. But there's little that's "just" cerebral in the projects that
+these busses enable. These buses are filled with technologies that
+teach kids to tinker with film. Not the film of Eastman. Not even the
+film of your VCR. Rather the "film" of digital cameras. Just Think!
+is a project that enables kids to make films, as a way to understand
+and critique the filmed culture that they find all around them. Each
+year, these busses travel to more than thirty schools and enable three
+hundred to five hundred children to learn something about media by
+doing something with media. By doing, they think. By tinkering, they
+learn.
+</para>
+<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
+real-time digital video editing system cost $25,000. Today you can get
+professional quality for $595."<footnote><para>
<!-- f9 -->
H. Edward Goldberg, "Essential Presentation Tools: Hardware and
Software
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
- deconstruct
-media images. Its aim is to make [kids] literate about the way
-media works, the way it's constructed, the way it's delivered, and the
-way people access it."
+Think!, puts it, "is the ability . . . to understand, analyze, and
+deconstruct media images. Its aim is to make [kids] literate about the
+way media works, the way it's constructed, the way it's delivered, and
+the way people access it."
</para>
<para>
This may seem like an odd way to think about "literacy." For most
<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>
+commercials generally,<footnote><para>
<!-- f10 -->
Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
<para>
A growing field of academics and activists sees this form of literacy
as crucial to the next generation of culture. For though anyone who has
-written understands how difficult writing is--how difficult it is to
+written understands how difficult writing is—how difficult it is to
sequence
the story, to keep a reader's attention, to craft language to be
-understandable--few of us have any real sense of how difficult media
+understandable—few of us have any real sense of how difficult media
is. Or more fundamentally, few of us have a sense of how media works,
how it holds an audience or leads it through a story, how it triggers
emotion or builds suspense.
<!-- 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><para>
+ texture."<footnote>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
2002.
</para></footnote>
But as computers open up an interactive space where a story is
"played" as well as experienced, that grammar changes. The simple
-control of narrative is lost, and so other techniques are necessary.
- Author
+control of narrative is lost, and so other techniques are necessary. Author
Michael Crichton had mastered the narrative of science fiction.
But when he tried to design a computer game based on one of his
works, it was a new craft he had to learn. How to lead people through
to a wildly successful author.<footnote><para>
<!-- f12 -->
See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
- November
-2000, available at
+November 2000, available at
<ulink url="http://free-culture.cc/notes/">link #8</ulink>; "Timeline," 22 November 2000,
- available
-at
+available at
<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
</para></footnote>
</para>
+<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
+This skill is precisely the craft a filmmaker learns. As Daley
+describes, "people are very surprised about how they are led through a
film. [I]t is perfectly constructed to keep you from seeing it, so you
have no idea. If a filmmaker succeeds you do not know how you were
led." If you know you were led through a film, the film has failed.
</para>
<para>
-Yet the push for an expanded literacy--one that goes beyond text to
-include audio and visual elements--is not about making better film
- directors.
-The aim is not to improve the profession of filmmaking at all.
-Instead, as Daley explained,
+Yet the push for an expanded literacy—one that goes beyond text
+to include audio and visual elements—is not about making better
+film directors. The aim is not to improve the profession of
+filmmaking at all. Instead, as Daley explained,
</para>
<blockquote>
<para>
<!-- PAGE BREAK 51 -->
and this literacy in particular, is to "empower people to choose the
appropriate
-language for what they need to create or express."<footnote><para>
+language for what they need to create or express."<footnote>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<para>
<!-- f13 -->
Interview with Daley and Barish.
</para></footnote> It is to enable
Ibid.
</para></footnote>
</para>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
-As with any language, this language comes more easily to some
-than to others. It doesn't necessarily come more easily to those who
- excel
-in written language. Daley and Stephanie Barish, director of the
- Institute
-for Multimedia Literacy at the Annenberg Center, describe one
-particularly poignant example of a project they ran in a high school.
-The high school was a very poor inner-city Los Angeles school. In all
-the traditional measures of success, this school was a failure. But Daley
-and Barish ran a program that gave kids an opportunity to use film
-to express meaning about something the students know something
-about--gun violence.
+As with any language, this language comes more easily to some than to
+others. It doesn't necessarily come more easily to those who excel in
+written language. Daley and Stephanie Barish, director of the
+Institute for Multimedia Literacy at the Annenberg Center, describe
+one particularly poignant example of a project they ran in a high
+school. The high school was a very poor inner-city Los Angeles
+school. In all the traditional measures of success, this school was a
+failure. But Daley and Barish ran a program that gave kids an
+opportunity to use film to express meaning about something the
+students know something about—gun violence.
</para>
<para>
The class was held on Friday afternoons, and it created a relatively
getting the kids to come, the challenge in this class was keeping them
away. The "kids were showing up at 6 A.M. and leaving at 5 at night,"
said Barish. They were working harder than in any other class to do
-what education should be about--learning how to express themselves.
+what education should be about—learning how to express themselves.
</para>
<para>
-Using whatever "free web stuff they could find," and relatively
- simple
+Using whatever "free web stuff they could find," and relatively simple
tools to enable the kids to mix "image, sound, and text," Barish said
this class produced a series of projects that showed something about
gun violence that few would otherwise understand. This was an issue
-close to the lives of these students. The project "gave them a tool and
-empowered them to be able to both understand it and talk about it,"
-Barish explained. That tool succeeded in creating expression--far more
-successfully and powerfully than could have been created using only
-text. "If you had said to these students, `you have to do it in text,' they
-would've just thrown their hands up and gone and done something
-else," Barish described, in part, no doubt, because expressing
- themselves
-in text is not something these students can do well. Yet neither
-is text a form in which these ideas can be expressed well. The power of
-this message depended upon its connection to this form of expression.
+close to the lives of these students. The project "gave them a tool
+and empowered them to be able to both understand it and talk about
+it," Barish explained. That tool succeeded in creating
+expression—far more successfully and powerfully than could have
+been created using only text. "If you had said to these students, `you
+have to do it in text,' they would've just thrown their hands up and
+gone and done something else," Barish described, in part, no doubt,
+because expressing themselves in text is not something these students
+can do well. Yet neither is text a form in which these ideas can be
+expressed well. The power of this message depended upon its connection
+to this form of expression.
</para>
<para>
explained, is about giving students a way of "constructing
meaning."
To say that that means just writing is like saying teaching writing
-is only about teaching kids how to spell. Text is one part--and
+is only about teaching kids how to spell. Text is one part—and
increasingly,
-not the most powerful part--of constructing meaning. As Daley
+not the most powerful part—of constructing meaning. As Daley
explained in the most moving part of our interview,
</para>
<blockquote>
<para>
What you want is to give these students ways of constructing
meaning. If all you give them is text, they're not going to do it.
-Because they can't. You know, you've got Johnny who can look at
-a video, he can play a video game, he can do graffiti all over your
+Because they can't. You know, you've got Johnny who can look at a
+video, he can play a video game, he can do graffiti all over your
walls, he can take your car apart, and he can do all sorts of other
-things. He just can't read your text. So Johnny comes to school
-and you say, "Johnny, you're illiterate. Nothing you can do
- matters."
-Well, Johnny then has two choices: He can dismiss you or
-he [can] dismiss himself. If his ego is healthy at all, he's going to
-dismiss you. [But i]nstead, if you say, "Well, with all these things
-that you can do, let's talk about this issue. Play for me music that
-you think reflects that, or show me images that you think reflect
-that, or draw for me something that reflects that." Not by giving
-a kid a video camera and . . . saying, "Let's go have fun with the
-video camera and make a little movie." But instead, really help
-you take these elements that you understand, that are your
- language,
-and construct meaning about the topic. . . .
+things. He just can't read your text. So Johnny comes to school and
+you say, "Johnny, you're illiterate. Nothing you can do matters."
+Well, Johnny then has two choices: He can dismiss you or he [can]
+dismiss himself. If his ego is healthy at all, he's going to dismiss
+you. [But i]nstead, if you say, "Well, with all these things that you
+can do, let's talk about this issue. Play for me music that you think
+reflects that, or show me images that you think reflect that, or draw
+for me something that reflects that." Not by giving a kid a video
+camera and . . . saying, "Let's go have fun with the video camera and
+make a little movie." But instead, really help you take these elements
+that you understand, that are your language, and construct meaning
+about the topic. . . .
</para>
<para>
That empowers enormously. And then what happens, of
</para>
</blockquote>
<para>
-When two planes crashed into the World Trade Center, another into
-the Pentagon, and a fourth into a Pennsylvania field, all media around
-the world shifted to this news. Every moment of just about every day for
-that week, and for weeks after, television in particular, and media
- generally,
-retold the story of the events we had just witnessed. The telling was
-a retelling, because we had seen the events that were described. The
- genius
-of this awful act of terrorism was that the delayed second attack was
-perfectly timed to assure that the whole world would be watching.
+When two planes crashed into the World Trade Center, another into the
+Pentagon, and a fourth into a Pennsylvania field, all media around the
+world shifted to this news. Every moment of just about every day for
+that week, and for weeks after, television in particular, and media
+generally, retold the story of the events we had just witnessed. The
+telling was a retelling, because we had seen the events that were
+described. The genius of this awful act of terrorism was that the
+delayed second attack was perfectly timed to assure that the whole
+world would be watching.
</para>
<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," and
-seriousness. This was news choreographed in the way we have
- increasingly
-come to expect it, "news as entertainment," even if the
- entertainment
-is tragedy.
+scored for the intermissions, and fancy graphics that flashed across
+the screen. There was a formula to interviews. There was "balance,"
+and seriousness. This was news choreographed in the way we have
+increasingly come to expect it, "news as entertainment," even if the
+entertainment is tragedy.
</para>
+<indexterm><primary>ABC</primary></indexterm>
+<indexterm><primary>CBS</primary></indexterm>
<para>
-But in addition to this produced news about the "tragedy of
- September
+But in addition to this produced news about the "tragedy of September
11," those of us tied to the Internet came to see a very different
production as well. The Internet was filled with accounts of the same
events. Yet these Internet accounts had a very different flavor. Some
people constructed photo pages that captured images from around the
world and presented them as slide shows with text. Some offered open
letters. There were sound recordings. There was anger and frustration.
-There were attempts to provide context. There was, in short, an
- extraordinary
-worldwide barn raising, in the sense Mike Godwin uses
-the term in his book Cyber Rights, around a news event that had
- captured
-the attention of the world. There was ABC and CBS, but there
+There were attempts to provide context. There was, in short, an
+extraordinary worldwide barn raising, in the sense Mike Godwin uses
+the term in his book Cyber Rights, around a news event that had
+captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
</para>
<para>
-I don't mean simply to praise the Internet--though I do think the
+I don't mean simply to praise the Internet—though I do think the
people who supported this form of speech should be praised. I mean
-instead to point to a significance in this form of speech. For like a
- Kodak,
-the Internet enables people to capture images. And like in a movie
-
+instead to point to a significance in this form of speech. For like a
+Kodak, the Internet enables people to capture images. And like in a
+movie
<!-- PAGE BREAK 54 -->
by a student on the "Just Think!" bus, the visual images could be mixed
with sound or text.
</para>
<para>
-But unlike any technology for simply capturing images, the
- Internet
+But unlike any technology for simply capturing images, the Internet
allows these creations to be shared with an extraordinary number of
-people, practically instantaneously. This is something new in our
- tradition--not
-just that culture can be captured mechanically, and obviously
-not just that events are commented upon critically, but that this mix of
-captured images, sound, and commentary can be widely spread
- practically
-instantaneously.
+people, practically instantaneously. This is something new in our
+tradition—not just that culture can be captured mechanically,
+and obviously not just that events are commented upon critically, but
+that this mix of captured images, sound, and commentary can be widely
+spread practically instantaneously.
</para>
<para>
September 11 was not an aberration. It was a beginning. Around
was just beginning to come into public consciousness: the Web-log, or
blog. The blog is a kind of public diary, and within some cultures, such
as in Japan, it functions very much like a diary. In those cultures, it
-records private facts in a public way--it's a kind of electronic Jerry
+records private facts in a public way—it's a kind of electronic Jerry
Springer, available anywhere in the world.
</para>
<para>
-But in the United States, blogs have taken on a very different
- character.
-There are some who use the space simply to talk about their
- private
-life. But there are many who use the space to engage in public
-discourse. Discussing matters of public import, criticizing others who
-are mistaken in their views, criticizing politicians about the decisions
-they make, offering solutions to problems we all see: blogs create the
-sense of a virtual public meeting, but one in which we don't all hope to
-be there at the same time and in which conversations are not
- necessarily
-linked. The best of the blog entries are relatively short; they point
-directly to words used by others, criticizing with or adding to them.
-They are arguably the most important form of unchoreographed
- public
-discourse that we have.
-</para>
-<para>
-That's a strong statement. Yet it says as much about our democracy
-as it does about blogs. This is the part of America that is most difficult
-for those of us who love America to accept: Our democracy has
- atrophied.
-Of course we have elections, and most of the time the courts
- allow
-those elections to count. A relatively small number of people vote
+But in the United States, blogs have taken on a very different
+character. There are some who use the space simply to talk about
+their private life. But there are many who use the space to engage in
+public discourse. Discussing matters of public import, criticizing
+others who are mistaken in their views, criticizing politicians about
+the decisions they make, offering solutions to problems we all see:
+blogs create the sense of a virtual public meeting, but one in which
+we don't all hope to be there at the same time and in which
+conversations are not necessarily linked. The best of the blog entries
+are relatively short; they point directly to words used by others,
+criticizing with or adding to them. They are arguably the most
+important form of unchoreographed public discourse that we have.
+</para>
+<para>
+That's a strong statement. Yet it says as much about our democracy as
+it does about blogs. This is the part of America that is most
+difficult for those of us who love America to accept: Our democracy
+has atrophied. Of course we have elections, and most of the time the
+courts allow those elections to count. A relatively small number of
+people vote
<!-- PAGE BREAK 55 -->
-in those elections. The cycle of these elections has become totally
- professionalized
-and routinized. Most of us think this is democracy.
+in those elections. The cycle of these elections has become totally
+professionalized and routinized. Most of us think this is democracy.
</para>
<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
+elections. In our tradition, it also means control through reasoned
+discourse. This was the idea that captured the imagination of Alexis
+de Tocqueville, the nineteenth-century French lawyer who wrote the
most important account of early "Democracy in America." It wasn't
-popular elections that fascinated him--it was the jury, an institution
-that gave ordinary people the right to choose life or death for other
- citizens.
-And most fascinating for him was that the jury didn't just vote
-about the outcome they would impose. They deliberated. Members
- argued
-about the "right" result; they tried to persuade each other of the
-"right" result, and in criminal cases at least, they had to agree upon a
-unanimous result for the process to come to an end.<footnote><para>
+popular elections that fascinated him—it was the jury, an
+institution that gave ordinary people the right to choose life or
+death for other citizens. And most fascinating for him was that the
+jury didn't just vote about the outcome they would impose. They
+deliberated. Members argued about the "right" result; they tried to
+persuade each other of the "right" result, and in criminal cases at
+least, they had to agree upon a unanimous result for the process to
+come to an end.<footnote><para>
<!-- f15 -->
See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans.
Henry Reeve (New York: Bantam Books, 2000), ch. 16.
and isolated discourse becomes more extreme.<footnote><para>
<!-- f17 -->
Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
-6580, 175, 182, 183, 192.
+65–80, 175, 182, 183, 192.
</para></footnote> We say what our
friends want to hear, and hear very little beyond what our friends say.
</para>
</para></footnote>
</para>
<para>
-This different cycle is possible because the same commercial
- pressures
+This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
newspapers are commercial entities. They must work to keep attention.
-If they lose readers, they lose revenue. Like sharks, they must move on.
+If they lose readers, they lose revenue. Like sharks, they must move
+on.
</para>
<para>
But bloggers don't have a similar constraint. They can obsess, they
-can focus, they can get serious. If a particular blogger writes a
- particularly
-interesting story, more and more people link to that story. And as
-the number of links to a particular story increases, it rises in the ranks
-of stories. People read what is popular; what is popular has been
- selected
-by a very democratic process of peer-generated rankings.
+can focus, they can get serious. If a particular blogger writes a
+particularly interesting story, more and more people link to that
+story. And as the number of links to a particular story increases, it
+rises in the ranks of stories. People read what is popular; what is
+popular has been selected by a very democratic process of
+peer-generated rankings.
</para>
<para>
There's a second way, as well, in which blogs have a different cycle
conflict of interest is so easily disclosed that you know you can sort of
get it out of the way."
</para>
+<indexterm><primary>CNN</primary></indexterm>
<para>
These conflicts become more important as media becomes more
-concentrated (more on this below). A concentrated media can hide
-more from the public than an unconcentrated media can--as CNN
-admitted it did after the Iraq war because it was afraid of the
- consequences
-to its own employees.<footnote><para>
+concentrated (more on this below). A concentrated media can hide more
+from the public than an unconcentrated media can—as CNN admitted
+it did after the Iraq war because it was afraid of the consequences to
+its own employees.<footnote><para>
<!-- f19 -->
Telephone interview with David Winer, 16 April 2003.
</para></footnote>
-It also needs to sustain a more
- coherent
-account. (In the middle of the Iraq war, I read a post on the
-Internet from someone who was at that time listening to a satellite
- uplink
-with a reporter in Iraq. The New York headquarters was telling the
-reporter over and over that her account of the war was too bleak: She
-needed to offer a more optimistic story. When she told New York that
-wasn't warranted, they told her that they were writing "the story.")
-</para>
-<para>
-Blog space gives amateurs a way to enter the debate--"amateur" not
-in the sense of inexperienced, but in the sense of an Olympic athlete,
-meaning not paid by anyone to give their reports. It allows for a much
-broader range of input into a story, as reporting on the Columbia
- disaster
-revealed, when hundreds from across the southwest United States
-turned to the Internet to retell what they had seen.<footnote><para>
+It also needs to sustain a more coherent
+account. (In the middle of the Iraq war, I read a post on the Internet
+from someone who was at that time listening to a satellite uplink with
+a reporter in Iraq. The New York headquarters was telling the reporter
+over and over that her account of the war was too bleak: She needed to
+offer a more optimistic story. When she told New York that wasn't
+warranted, they told her that they were writing "the story.")
+</para>
+<para> Blog space gives amateurs a way to enter the
+debate—"amateur" not in the sense of inexperienced, but in the
+sense of an Olympic athlete, meaning not paid by anyone to give their
+reports. It allows for a much broader range of input into a story, as
+reporting on the Columbia disaster revealed, when hundreds from across
+the southwest United States turned to the Internet to retell what they
+had seen.<footnote><para>
<!-- f20 -->
-John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
- Information
-Online," New York Times, 2 February 2003, A28; Staci D. Kramer,
-"Shuttle Disaster Coverage Mixed, but Strong Overall," Online
- Journalism
-Review, 2 February 2003, available at
+John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
+Information Online," New York Times, 2 February 2003, A28; Staci
+D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
+Online Journalism Review, 2 February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #10</ulink>.
</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.
+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.
</para>
<para>
-Winer is optimistic about the future of journalism infected with
-blogs. "It's going to become an essential skill," Winer predicts, for
- public
-figures and increasingly for private figures as well. It's not clear that
-"journalism" is happy about this--some journalists have been told to
-curtail their blogging.<footnote><para>
+Winer is optimistic about the future of journalism infected
+with blogs. "It's going to become an essential skill," Winer predicts,
+for public figures and increasingly for private figures as well. It's
+not clear that "journalism" is happy about this—some journalists
+have been told to curtail their blogging.<footnote>
+<indexterm><primary>CNN</primary></indexterm>
+<para>
<!-- f21 -->
See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
York Times, 29 September 2003, C4. ("Not all news organizations have
-been as accepting of employees who blog. Kevin Sites, a CNN
- correspondent
-in Iraq who started a blog about his reporting of the war on March 9,
-stopped posting 12 days later at his bosses' request. Last year Steve
- Olafson,
-a Houston Chronicle reporter, was fired for keeping a personal Web log,
-published under a pseudonym, that dealt with some of the issues and
-people he was covering.")
+been as accepting of employees who blog. Kevin Sites, a CNN
+correspondent in Iraq who started a blog about his reporting of the
+war on March 9, stopped posting 12 days later at his bosses'
+request. Last year Steve Olafson, a Houston Chronicle reporter, was
+fired for keeping a personal Web log, published under a pseudonym,
+that dealt with some of the issues and people he was covering.")
</para></footnote>
But it is clear that we are still in transition. "A
lawnmower
engines, automobiles, radios, and so on." But digital
technologies
-enable a different kind of tinkering--with abstract ideas though
+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 -->
you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
</para>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
Brown is talking about what Elizabeth Daley, Stephanie Barish,
and Just Think! teach: that this tinkering with culture teaches as well
of recognition.
</para>
<para>
-Yet the freedom to tinker with these objects is not guaranteed.
- Indeed,
-as we'll see through the course of this book, that freedom is
- increasingly
-highly contested. While there's no doubt that your father
-had the right to tinker with the car engine, there's great doubt that your
-child will have the right to tinker with the images she finds all around.
-The law and, increasingly, technology interfere with a freedom that
-technology, and curiosity, would otherwise ensure.
+Yet the freedom to tinker with these objects is not guaranteed.
+Indeed, as we'll see through the course of this book, that freedom is
+increasingly highly contested. While there's no doubt that your father
+had the right to tinker with the car engine, there's great doubt that
+your child will have the right to tinker with the images she finds all
+around. The law and, increasingly, technology interfere with a
+freedom that technology, and curiosity, would otherwise ensure.
</para>
<para>
-These restrictions have become the focus of researchers and
- scholars.
-Professor Ed Felten of Princeton (whom we'll see more of in
- chapter
+These restrictions have become the focus of researchers and scholars.
+Professor Ed Felten of Princeton (whom we'll see more of in chapter
10) has developed a powerful argument in favor of the "right to
-tinker" as it applies to computer science and to knowledge in general.<footnote><para>
+tinker" as it applies to computer science and to knowledge in
+general.<footnote><para>
<!-- f22 -->
-See, for example, Edward Felten and Andrew Appel, "Technological
- Access
+See, for example, Edward Felten and Andrew Appel, "Technological Access
Control Interferes with Noninfringing Scholarship," Communications
of the Association for Computer Machinery 43 (2000): 9.
</para></footnote>
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."
+"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."
</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
-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."
+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."
</para>
<para>
We're building a technology that takes the magic of Kodak, mixes
<sect1 id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
<para>
-In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled
-as a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
-His major at RPI was information technology. Though he is not a
- programmer,
-in October Jesse decided to begin to tinker with search
- engine
-technology that was available on the RPI network.
+In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
+a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
+His major at RPI was information technology. Though he is not a
+programmer, in October Jesse decided to begin to tinker with search
+engine technology that was available on the RPI network.
</para>
<para>
-RPI is one of America's foremost technological research
- institutions.
-It offers degrees in fields ranging from architecture and
- engineering
-to information sciences. More than 65 percent of its five
-thousand undergraduates finished in the top 10 percent of their high
-school class. The school is thus a perfect mix of talent and experience
-to imagine and then build, a generation for the network age.
+RPI is one of America's foremost technological research institutions.
+It offers degrees in fields ranging from architecture and engineering
+to information sciences. More than 65 percent of its five thousand
+undergraduates finished in the top 10 percent of their high school
+class. The school is thus a perfect mix of talent and experience to
+imagine and then build, a generation for the network age.
</para>
<para>
-RPI's computer network links students, faculty, and administration
-to one another. It also links RPI to the Internet. Not everything
- available
-on the RPI network is available on the Internet. But the network
-is designed to enable students to get access to the Internet, as well as
-more intimate access to other members of the RPI community.
+RPI's computer network links students, faculty, and administration to
+one another. It also links RPI to the Internet. Not everything
+available on the RPI network is available on the Internet. But the
+network is designed to enable students to get access to the Internet,
+as well as more intimate access to other members of the RPI community.
</para>
<para>
Search engines are a measure of a network's intimacy. Google
<!-- 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, search engines
-that search within the network of a particular institution, is to provide
-users of that institution with better access to material from that
- institution.
-Businesses do this all the time, enabling employees to have
- access
-to material that people outside the business can't get. Universities
-do it as well.
-</para>
-<para>
-These engines are enabled by the network technology itself.
- Microsoft,
-for example, has a network file system that makes it very easy
-for search engines tuned to that network to query the system for
- information
-about the publicly (within that network) available content.
-Jesse's search engine was built to take advantage of this technology. It
-used Microsoft's network file system to build an index of all the files
-available within the RPI network.
-</para>
-<para>
-Jesse's wasn't the first search engine built for the RPI network.
- Indeed,
-his engine was a simple modification of engines that others had
-built. His single most important improvement over those engines was
-to fix a bug within the Microsoft file-sharing system that could cause a
-user's computer to crash. With the engines that existed before, if you
-tried to access a file through a Windows browser that was on a
- computer
-that was off-line, your computer could crash. Jesse modified the
-system a bit to fix that problem, by adding a button that a user could
-click to see if the machine holding the file was still on-line.
+brought the Internet much closer to all of us by fantastically
+improving the quality of search on the network. Specialty search
+engines can do this even better. The idea of "intranet" search
+engines, search engines that search within the network of a particular
+institution, is to provide users of that institution with better
+access to material from that institution. Businesses do this all the
+time, enabling employees to have access to material that people
+outside the business can't get. Universities do it as well.
+</para>
+<para>
+These engines are enabled by the network technology itself.
+Microsoft, for example, has a network file system that makes it very
+easy for search engines tuned to that network to query the system for
+information about the publicly (within that network) available
+content. Jesse's search engine was built to take advantage of this
+technology. It used Microsoft's network file system to build an index
+of all the files available within the RPI network.
+</para>
+<para>
+Jesse's wasn't the first search engine built for the RPI network.
+Indeed, his engine was a simple modification of engines that others
+had built. His single most important improvement over those engines
+was to fix a bug within the Microsoft file-sharing system that could
+cause a user's computer to crash. With the engines that existed
+before, if you tried to access a file through a Windows browser that
+was on a computer that was off-line, your computer could crash. Jesse
+modified the system a bit to fix that problem, by adding a button that
+a user could click to see if the machine holding the file was still
+on-line.
</para>
<para>
Jesse's engine went on-line in late October. Over the following six
which students could use to put on their own Web sites; copies of notes
or research; copies of information pamphlets; movie clips that
students
-might have created; university brochures--basically anything that
+might have created; university brochures—basically anything that
<!-- PAGE BREAK 63 -->
users of the RPI network made available in a public folder of their
computer.
</para>
<para>
But the index also included music files. In fact, one quarter of the
-files that Jesse's search engine listed were music files. But that means,
-of course, that three quarters were not, and--so that this point is
- absolutely
-clear--Jesse did nothing to induce people to put music files in
-their public folders. He did nothing to target the search engine to these
-files. He was a kid tinkering with a Google-like technology at a
- university
-where he was studying information science, and hence,
- tinkering
-was the aim. Unlike Google, or Microsoft, for that matter, he made
-no money from this tinkering; he was not connected to any business
-that would make any money from this experiment. He was a kid
- tinkering
-with technology in an environment where tinkering with
- technology
-was precisely what he was supposed to do.
+files that Jesse's search engine listed were music files. But that
+means, of course, that three quarters were not, and—so that this
+point is absolutely clear—Jesse did nothing to induce people to
+put music files in their public folders. He did nothing to target the
+search engine to these files. He was a kid tinkering with a
+Google-like technology at a university where he was studying
+information science, and hence, tinkering was the aim. Unlike Google,
+or Microsoft, for that matter, he made no money from this tinkering;
+he was not connected to any business that would make any money from
+this experiment. He was a kid tinkering with technology in an
+environment where tinkering with technology was precisely what he was
+supposed to do.
</para>
<para>
On April 3, 2003, Jesse was contacted by the dean of students at
RPI. The dean informed Jesse that the Recording Industry Association
of America, the RIAA, would be filing a lawsuit against him and three
-other students whom he didn't even know, two of them at other
- universities.
-A few hours later, Jesse was served with papers from the suit.
-As he read these papers and watched the news reports about them, he
-was increasingly astonished.
-</para>
-<para>
-"It was absurd," he told me. "I don't think I did anything wrong. . . .
-I don't think there's anything wrong with the search engine that I ran
-or . . . what I had done to it. I mean, I hadn't modified it in any way
-that promoted or enhanced the work of pirates. I just modified the
-search engine in a way that would make it easier to use"--again, a
-search engine, which Jesse had not himself built, using the Windows
- filesharing
-system, which Jesse had not himself built, to enable members
-of the RPI community to get access to content, which Jesse had not
-himself created or posted, and the vast majority of which had nothing
-to do with music.
+other students whom he didn't even know, two of them at other
+universities. A few hours later, Jesse was served with papers from
+the suit. As he read these papers and watched the news reports about
+them, he was increasingly astonished.
+</para>
+<para>
+"It was absurd," he told me. "I don't think I did anything
+wrong. . . . I don't think there's anything wrong with the search
+engine that I ran or . . . what I had done to it. I mean, I hadn't
+modified it in any way that promoted or enhanced the work of
+pirates. I just modified the search engine in a way that would make it
+easier to use"—again, a search engine, which Jesse had not
+himself built, using the Windows filesharing system, which Jesse had
+not himself built, to enable members of the RPI community to get
+access to content, which Jesse had not himself created or posted, and
+the vast majority of which had nothing to do with music.
</para>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
was different in detail, the bottom line in each was exactly the same:
huge demands for "damages" that the RIAA claimed it was entitled to.
If you added up the claims, these four lawsuits were asking courts in
-the United States to award the plaintiffs close to $100 billion--six
+the United States to award the plaintiffs close to $100 billion—six
times the total profit of the film industry in 2001.<footnote><para>
<!-- f1 -->
Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
</para>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
-refused. They wanted him to agree to an injunction that would
- essentially
-make it impossible for him to work in many fields of technology
-for the rest of his life. He refused. They made him understand that this
-process of being sued was not going to be pleasant. (As Jesse's father
-recounted to me, the chief lawyer on the case, Matt Oppenheimer, told
-Jesse, "You don't want to pay another visit to a dentist like me.") And
-throughout, the RIAA insisted it would not settle the case until it took
-every penny Jesse had saved.
+refused. They wanted him to agree to an injunction that would
+essentially make it impossible for him to work in many fields of
+technology for the rest of his life. He refused. They made him
+understand that this process of being sued was not going to be
+pleasant. (As Jesse's father recounted to me, the chief lawyer on the
+case, Matt Oppenheimer, told Jesse, "You don't want to pay another
+visit to a dentist like me.") And throughout, the RIAA insisted it
+would not settle the case until it took every penny Jesse had saved.
</para>
<para>
Jesse's family was outraged at these claims. They wanted to fight.
paper saying he and his family were bankrupt.
</para>
<para>
-So Jesse faced a mafia-like choice: $250,000 and a chance at
- winning,
+So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
<para>
artist makes $45,900.<footnote><para>
<!-- f2 -->
Occupational Employment Survey, U.S. Dept. of Labor (2001)
-(272042--Musicians and Singers). See also National Endowment for
+(27–2042—Musicians and Singers). See also National Endowment for
the Arts, More Than One in a Blue Moon (2000).
</para></footnote>
There are plenty of ways for the RIAA to affect
and direct policy. So where is the morality in taking money from a
- student
-for running a search engine?<footnote><para>
+student for running a search engine?<footnote><para>
<!-- f3 -->
Douglas Lichtman makes a related point in "KaZaA and Punishment,"
Wall Street Journal, 10 September 2003, A24.
I was definitely not an activist [before]. I never really meant to be
an activist. . . . [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
- absurd
-what the RIAA has done.
+absurd what the RIAA has done.
</para>
</blockquote>
<para>
<sect1 id="pirates">
<title>CHAPTER FOUR: "Pirates"</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
+their permission—if "if value, then right" is true—then the history of
the content industry is a history of piracy. Every important sector of
-"big media" today--film, records, radio, and cable TV--was born of a
+"big media" today—film, records, radio, and cable TV—was born of a
kind of piracy so defined. The consistent story is how last generation's
-pirates join this generation's country club--until now.
+pirates join this generation's country club—until now.
</para>
<sect2 id="film">
<title>Film</title>
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- f1 -->
I am grateful to Peter DiMauro for pointing me to this extraordinary
- history.
-See also Siva Vaidhyanathan, Copyrights and Copywrongs, 8793,
+history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
which details Edison's "adventures" with copyright and patent.
</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
- Company,
-and were based on Thomas Edison's creative property--patents.
-Edison formed the MPPC to exercise the rights this creative property
+Creators and directors migrated from the East Coast to California in
+the early twentieth century in part to escape controls that patents
+granted the inventor of filmmaking, Thomas Edison. These controls were
+exercised through a monopoly "trust," the Motion Pictures Patents
+Company, and were based on Thomas Edison's creative
+property—patents. Edison formed the MPPC to exercise the rights
+this creative property
<!-- PAGE BREAK 67 -->
gave him, and the MPPC was serious about the control it demanded.
</para>
imported film stock to create their own underground market.
</para>
<para>
-With the country experiencing a tremendous expansion in the
-number of nickelodeons, the Patents Company reacted to the
- independent
-movement by forming a strong-arm subsidiary known
-as the General Film Company to block the entry of non-licensed
-independents. With coercive tactics that have become legendary,
-General Film confiscated unlicensed equipment, discontinued
-product supply to theaters which showed unlicensed films, and
-effectively monopolized distribution with the acquisition of all
-U.S. film exchanges, except for the one owned by the independent
-William Fox who defied the Trust even after his license was
- revoked.<footnote><para>
+With the country experiencing a tremendous expansion in the number of
+nickelodeons, the Patents Company reacted to the independent movement
+by forming a strong-arm subsidiary known as the General Film Company
+to block the entry of non-licensed independents. With coercive tactics
+that have become legendary, General Film confiscated unlicensed
+equipment, discontinued product supply to theaters which showed
+unlicensed films, and effectively monopolized distribution with the
+acquisition of all U.S. film exchanges, except for the one owned by
+the independent William Fox who defied the Trust even after his
+license was revoked.<footnote><para>
<!-- f2 -->
J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
posted at "The Edison Movie Monopoly: The Motion Picture Patents
Company vs. the Independent Outlaws," available at
-<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
- discussion
-of the economic motive behind both these limits and the limits
-imposed by Victor on phonographs, see Randal C. Picker, "From Edison
-to the Broadcast Flag: Mechanisms of Consent and Refusal and the
- Propertization
-of Copyright" (September 2002), University of Chicago Law
-School, James M. Olin Program in Law and Economics, Working Paper
-No. 159.
-</para></footnote>
+<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
+discussion of the economic motive behind both these limits and the
+limits imposed by Victor on phonographs, see Randal C. Picker, "From
+Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
+the Propertization of Copyright" (September 2002), University of
+Chicago Law School, James M. Olin Program in Law and Economics,
+Working Paper No. 159. </para></footnote>
</para>
</blockquote>
<para>
The Napsters of those days, the "independents," were companies like
-Fox. And no less than today, these independents were vigorously
- resisted.
-"Shooting was disrupted by machinery stolen, and `accidents'
-resulting in loss of negatives, equipment, buildings and sometimes life
-and limb frequently occurred."<footnote><para>
+Fox. And no less than today, these independents were vigorously
+resisted. "Shooting was disrupted by machinery stolen, and
+`accidents' resulting in loss of negatives, equipment, buildings and
+sometimes life and limb frequently occurred."<footnote><para>
<!-- f3 -->
Marc Wanamaker, "The First Studios," The Silents Majority, archived at
-
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
-That led the independents to flee the
-East Coast. California was remote enough from Edison's reach that
- filmmakers
-there could pirate his inventions without fear of the law. And the
-leaders of Hollywood filmmaking, Fox most prominently, did just that.
+That led the independents to flee the East
+Coast. California was remote enough from Edison's reach that
+filmmakers there could pirate his inventions without fear of the
+law. And the leaders of Hollywood filmmaking, Fox most prominently,
+did just that.
</para>
<para>
Of course, California grew quickly, and the effective enforcement
<!-- PAGE BREAK 68 -->
time), by the time enough federal marshals appeared, the patents had
-expired. A new industry had been born, in part from the piracy of
- Edison's
-creative property.
+expired. A new industry had been born, in part from the piracy of
+Edison's creative property.
</para>
</sect2>
<sect2 id="recordedmusic">
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
</para>
-<para>
-But what if I wanted to record "Happy Mose," using Edison's
-phonograph or Fourneaux's player piano? Here the law stumbled. It was
-clear enough that I would have to buy any copy of the musical score that
-I performed in making this recording. And it was clear enough that I
-would have to pay for any public performance of the work I was
- recording.
-But it wasn't totally clear that I would have to pay for a "public
- performance"
-if I recorded the song in my own house (even today, you don't
-owe the Beatles anything if you sing their songs in the shower), or if I
-recorded the song from memory (copies in your brain are not--yet--
-regulated by copyright law). So if I simply sang the song into a
- recording
-device in the privacy of my own home, it wasn't clear that I owed the
-composer anything. And more importantly, it wasn't clear whether I
-owed the composer anything if I then made copies of those recordings.
-Because of this gap in the law, then, I could effectively pirate someone
-else's song without paying its composer anything.
+<indexterm><primary>Beatles</primary></indexterm>
+<para>
+But what if I wanted to record "Happy Mose," using Edison's phonograph
+or Fourneaux's player piano? Here the law stumbled. It was clear
+enough that I would have to buy any copy of the musical score that I
+performed in making this recording. And it was clear enough that I
+would have to pay for any public performance of the work I was
+recording. But it wasn't totally clear that I would have to pay for a
+"public performance" if I recorded the song in my own house (even
+today, you don't owe the Beatles anything if you sing their songs in
+the shower), or if I recorded the song from memory (copies in your
+brain are not—yet— regulated by copyright law). So if I
+simply sang the song into a recording device in the privacy of my own
+home, it wasn't clear that I owed the composer anything. And more
+importantly, it wasn't clear whether I owed the composer anything if I
+then made copies of those recordings. Because of this gap in the law,
+then, I could effectively pirate someone else's song without paying
+its composer anything.
</para>
<para>
The composers (and publishers) were none too happy about
<para>
Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same and
-copyrights it. Along come the phonographic companies and
- companies
-who cut music rolls and deliberately steal the work of the brain
-
of the composer and publisher without any regard for [their] rights.<footnote><para>
+copyrights it. Along come the phonographic companies and companies who
+cut music rolls and deliberately steal the work of the brain of the
+composer and publisher without any regard for [their]
+rights.<footnote><para>
<!-- f4 -->
To Amend and Consolidate the Acts Respecting Copyright: Hearings on
S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th
-Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of
-South Dakota, chairman), reprinted in Legislative History of the
-Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
- Hackensack,
-N.J.: Rothman Reprints, 1976).
+Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
+of South Dakota, chairman), reprinted in Legislative History of the
+Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
+Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
</para>
</blockquote>
genius of American composers,"<footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(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>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(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>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23
- (statement
-of John Philip Sousa, composer).
+(statement of John Philip Sousa, composer).
</para></footnote>
</para>
<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
-introduction of automatic music players has not deprived any
- composer
-of anything he had before their introduction." Rather, the
- machines
+These arguments have familiar echoes in the wars of our day. So, too,
+do the arguments on the other side. The innovators who developed the
+player piano argued that "it is perfectly demonstrable that the
+introduction of automatic music players has not deprived any composer
+of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
-To Amend and Consolidate the Acts Respecting Copyright, 28384
+To Amend and Consolidate the Acts Respecting Copyright, 283–84
(statement of Albert Walker, representative of the Auto-Music
Perforating
Company of New York).
thus set by Grisham, and copyright law ordinarily says you have no
permission to use Grisham's work except with permission of Grisham.
</para>
+<indexterm><primary>Beatles</primary></indexterm>
<para>
But the law governing recordings gives recording artists less. And
thus, in effect, the law subsidizes the recording industry through a kind
-of piracy--by giving recording artists a weaker right than it otherwise
+of piracy—by giving recording artists a weaker right than it otherwise
gives creative authors. The Beatles have less control over their creative
work than Grisham does. And the beneficiaries of this less control are
the recording industry and the public. The recording industry gets
improved
quality, and a greater choice.<footnote><para>
<!-- f11 -->
-Copyright Law Revision: Report to Accompany H.R. 2512, House
- Committee
-on the Judiciary, 90th Cong., 1st sess., House Document no. 83,
-(8 March 1967). I am grateful to Glenn Brown for drawing my attention
-to this report.
-</para></footnote>
+Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
+on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
+March 1967). I am grateful to Glenn Brown for drawing my attention to
+this report.</para></footnote>
</para>
</blockquote>
<para>
Cable TV was also born of a kind of piracy.
</para>
<para>
-When cable entrepreneurs first started wiring communities with
-cable television in 1948, most refused to pay broadcasters for the
- content
-that they echoed to their customers. Even when the cable
- companies
+When cable entrepreneurs first started wiring communities with cable
+television in 1948, most refused to pay broadcasters for the content
+that they echoed to their customers. Even when the cable companies
started selling access to television broadcasts, they refused to pay
<!-- PAGE BREAK 73 -->
for what they sold. Cable companies were thus Napsterizing
- broadcasters'
-content, but more egregiously than anything Napster ever did--
-Napster never charged for the content it enabled others to give away.
+broadcasters' content, but more egregiously than anything Napster ever
+did— Napster never charged for the content it enabled others to
+give away.
</para>
+<indexterm><primary>Anello, Douglas</primary></indexterm>
+<indexterm><primary>Burdick, Quentin</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>
<!-- 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).
-</para></footnote>
-There may have
-been a "public interest" in spreading the reach of cable TV, but as
- Douglas
-Anello, general counsel to the National Association of
- Broadcasters,
-asked Senator Quentin Burdick during testimony, "Does public
+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).
+</para></footnote>
+There may have been a "public interest" in spreading the reach of cable
+TV, but as Douglas Anello, general counsel to the National Association
+of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
interest dictate that you use somebody else's property?"<footnote><para>
<!-- f14 -->
-Copyright Law Revision--CATV, 116 (statement of Douglas A. Anello,
+Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
general counsel of the National Association of Broadcasters).
</para></footnote>
As another broadcaster put it,
only business I know of where the product that is being sold is not
paid for.<footnote><para>
<!-- f15 -->
-Copyright Law Revision--CATV, 126 (statement of Ernest W. Jennes,
+Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes,
general counsel of the Association of Maximum Service Telecasters, Inc.).
</para></footnote>
</para>
</blockquote>
<para>
-Again, the demand of the copyright holders seemed reasonable
-enough:
+Again, the demand of the copyright holders seemed reasonable enough:
</para>
<blockquote>
<para>
piracy and I don't think there is any lesser word to describe it. I
think there are harsher words which would fit it.<footnote><para>
<!-- f16 -->
-Copyright Law Revision--CATV, 169 (joint statement of Arthur B.
+Copyright Law Revision—CATV, 169 (joint statement of Arthur B.
Krim, president of United Artists Corp., and John Sinn, president of
United Artists Television, Inc.).
</para></footnote>
</para>
</blockquote>
<para>
-These were "free-ride[rs]," Screen Actor's Guild president
- Charlton
-
Heston said, who were "depriving actors of compensation."<footnote><para>
+These were "free-ride[rs]," Screen Actor's Guild president Charlton
+Heston said, who were "depriving actors of
+compensation."<footnote><para>
<!-- f17 -->
-Copyright Law Revision--CATV, 209 (statement of Charlton Heston,
+Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
</para></footnote>
</para>
<para>
-But again, there was another side to the debate. As Assistant
- Attorney
+But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
</para>
<blockquote>
<para>
-Our point here is that unlike the problem of whether you have
-any copyright protection at all, the problem here is whether
- copyright
-holders who are already compensated, who already have a
-monopoly, should be permitted to extend that monopoly. . . . The
+Our point here is that unlike the problem of whether you have any
+copyright protection at all, the problem here is whether copyright
+holders who are already compensated, who already have a monopoly,
+should be permitted to extend that monopoly. . . . The
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
how far back they should carry their right to compensation.<footnote><para>
<!-- f18 -->
-Copyright Law Revision--CATV, 216 (statement of Edwin M.
- Zimmerman,
-acting assistant attorney general).
+Copyright Law Revision—CATV, 216 (statement of Edwin M.
+Zimmerman, acting assistant attorney general).
</para></footnote>
</para>
</blockquote>
<para>
-Copyright owners took the cable companies to court. Twice the
-Supreme Court held that the cable companies owed the copyright
-owners nothing.
+Copyright owners took the cable companies to court. Twice the Supreme
+Court held that the cable companies owed the copyright owners nothing.
</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."
-In the end, Congress resolved this question in the same way that it
- resolved
-the question about record players and player pianos. Yes, cable
-companies would have to pay for the content that they broadcast; but
-the price they would have to pay was not set by the copyright owner.
-The price was set by law, so that the broadcasters couldn't exercise veto
-power over the emerging technologies of cable. Cable companies thus
-built their empire in part upon a "piracy" of the value created by
- broadcasters'
-content.
-</para>
-<para>
-These separate stories sing a common theme. If "piracy"
-means using value from someone else's creative property without
- permission
-from that creator--as it is increasingly described today<footnote><para>
+In the end, Congress resolved this question in the same way that it
+resolved the question about record players and player pianos. Yes,
+cable companies would have to pay for the content that they broadcast;
+but the price they would have to pay was not set by the copyright
+owner. The price was set by law, so that the broadcasters couldn't
+exercise veto power over the emerging technologies of cable. Cable
+companies thus built their empire in part upon a "piracy" of the value
+created by broadcasters' content.
+</para>
+<para>
+These separate stories sing a common theme. If "piracy" means
+using value from someone else's creative property without permission
+from that creator—as it is increasingly described
+today<footnote><para>
<!-- f19 -->
-See, for example, National Music Publisher's Association, The Engine of Free
-Expression: Copyright on the Internet--The Myth of Free Information,
- available
-at
-<ulink url="http://free-culture.cc/notes/">link #13</ulink>. "The threat of piracy--the use of someone else's creative
-work without permission or compensation--has grown with the Internet."
-</para></footnote>
---
-then every industry affected by copyright today is the product and
-beneficiary of a certain kind of piracy. Film, records, radio, cable
-TV. . . . The list is long and could well be expanded. Every generation
-welcomes the pirates from the last. Every generation--until now.
+See, for example, National Music Publisher's Association, The Engine
+of Free Expression: Copyright on the Internet—The Myth of Free
+Information, available at
+<ulink url="http://free-culture.cc/notes/">link #13</ulink>. "The
+threat of piracy—the use of someone else's creative work without
+permission or compensation—has grown with the Internet."
+</para></footnote>
+— then every industry affected by copyright today is the product
+and beneficiary of a certain kind of piracy. Film, records, radio,
+cable TV. . . . The list is long and could well be expanded. Every
+generation welcomes the pirates from the last. Every
+generation—until now.
</para>
<!-- PAGE BREAK 75 -->
</sect2>
<sect1 id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
-
-There is piracy of copyrighted material. Lots of it. This piracy
-comes in many forms. The most significant is commercial piracy, the
+There is piracy of copyrighted material. Lots of it. This piracy comes
+in many forms. The most significant is commercial piracy, the
unauthorized taking of other people's content within a commercial
-context. Despite the many justifications that are offered in its defense,
-this taking is wrong. No one should condone it, and the law should
-stop it.
+context. Despite the many justifications that are offered in its
+defense, this taking is wrong. No one should condone it, and the law
+should stop it.
</para>
<para>
But as well as copy-shop piracy, there is another kind of "taking"
that is more directly related to the Internet. That taking, too, seems
wrong to many, and it is wrong much of the time. Before we paint this
taking "piracy," however, we should understand its nature a bit more.
-For the harm of this taking is significantly more ambiguous than
- outright
-copying, and the law should account for that ambiguity, as it has
-so often done in the past.
+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.
<!-- PAGE BREAK 76 -->
</para>
<sect2 id="piracy-i">
<para>
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
-content, copy it, and sell it--all without the permission of a copyright
+content, copy it, and sell it—all without the permission of a copyright
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy<footnote><para>
<!-- f1 -->
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: Who Owns
-the Knowledge Economy? (New York: The New Press, 2003), 1013, 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.
-</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.
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
+Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
+209. The Trade-Related Aspects of Intellectual Property Rights
+(TRIPS) agreement obligates member nations to create administrative
+and enforcement mechanisms for intellectual property rights, a costly
+proposition for developing countries. Additionally, patent rights may
+lead to higher prices for staple industries such as
+agriculture. Critics of TRIPS question the disparity between burdens
+imposed upon developing countries and benefits conferred to
+industrialized nations. TRIPS does permit governments to use patents
+for public, noncommercial uses without first obtaining the patent
+holder's permission. Developing nations may be able to use this to
+gain the benefits of foreign patents at lower prices. This is a
+promising strategy for developing nations within the TRIPS framework.
+</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>
<para>
Alternatively, we could try to excuse this piracy by noting that in
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
-14490. "In some instances . . . the impact of piracy on the copyright holder's
+144–90. "In some instances . . . the impact of piracy on the copyright holder's
ability to appropriate the value of the work will be negligible. One obvious
instance
is the case where the individual engaging in pirating would not have
then Microsoft can give its product away, as it did, for example, with
Internet Explorer to fight Netscape. A property right means
giving
-the property owner the right to say who gets access to what--at
+the property owner the right to say who gets access to what—at
least ordinarily. And if the law properly balances the rights of the
copyright
owner with the rights of access, then violating the law is still
is flat out wrong.
</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 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.
+But as the examples from the four chapters that introduced this part
+suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
+at least, not all "piracy" is wrong if that term is understood in the
+way it is increasingly used today. Many kinds of "piracy" are useful
+and productive, to produce either new content or new ways of doing
+business. Neither our tradition nor any tradition has ever banned all
+"piracy" in that sense of the term.
</para>
<para>
This doesn't mean that there are no questions raised by the latest
Like every great advance in innovation on the Internet (and,
arguably,
off the Internet as well<footnote><para>
-<!-- f5 -->
+<!-- f5 -->
See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
National Bestseller That Changed the Way We Do Business (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
This job usually falls to outside innovators, who reassemble existing
technology
in inventive ways. For a discussion of Christensen's ideas, see
-Lawrence Lessig, Future, 8992, 139.
+Lawrence Lessig, Future, 89–92, 139.
</para></footnote>), Shawn Fanning and crew had simply
put together components that had been developed independently.
</para>
boasts over 100 million members.) These services' systems are different
architecturally, though not very different in function: Each enables
users to make content available to any number of other users. With a
-p2p system, you can share your favorite songs with your best friend--
+p2p system, you can share your favorite songs with your best friend—
or your 20,000 best friends.
</para>
<para>
Americans
have tasted file-sharing technology. A study by Ipsos-Insight in
September 2002 estimated that 60 million Americans had downloaded
-music
--28 percent of Americans older than 12.<footnote><para>
+music
—28 percent of Americans older than 12.<footnote><para>
<!-- f7 -->
See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
(September 2002), reporting that 28 percent of Americans aged twelve
does not. And even among the part that is technically copyright
infringement,
calculating the actual harm to copyright owners is more
-complicated than one might think. So consider--a bit more carefully
-than the polarized voices around this debate usually do--the kinds of
+complicated than one might think. So consider—a bit more carefully
+than the polarized voices around this debate usually do—the kinds of
sharing that file sharing enables, and the kinds of harm it entails.
</para>
<para>
available.)
For content not sold, this is still technically a violation of
copyright, though because the copyright owner is not selling the
-content anymore, the economic harm is zero--the same harm
+content anymore, the economic harm is zero—the same harm
that occurs when I sell my collection of 1960s 45-rpm records to
a local collector.
</para></listitem>
of the law, only type D sharing is clearly legal. From the
perspective of economics, only type A sharing is clearly harmful.<footnote><para>
<!-- f9 -->
-See Liebowitz, Rethinking the Network Economy,14849.
+See Liebowitz, Rethinking the Network Economy,148–49.
</para></footnote>
Type B sharing is illegal but plainly beneficial. Type C sharing is
illegal,
yet good for society (since more exposure to music is good) and
harmless to the artist (since the work is not otherwise available). So
-how sharing matters on balance is a hard question to answer--and
+how sharing matters on balance is a hard question to answer—and
certainly
much more difficult than the current rhetoric around the issue
suggests.
of consumers older than ten had taped music to a cassette format. U.S.
Congress, Office of Technology Assessment, Copyright and Home Copying:
Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
-Government Printing Office, October 1989), 14556.
+Government Printing Office, October 1989), 145–56.
</para></footnote>
The labels claimed that every album taped was an
album unsold, and when record sales fell by 11.4 percent in 1981, the
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
-not the fault of the tapers--who did not [stop after MTV came into
+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
+being]—but had to a large extent resulted from stagnation in musical
innovation at the major labels."<footnote><para>
<!-- f11 -->
U.S. Congress, Copyright and Home Copying, 4.
<para>
But just because the industry was wrong before does not mean it is
wrong today. To evaluate the real threat that p2p sharing presents to
-the industry in particular, and society in general--or at least the
- society
-that inherits the tradition that gave us the film industry, the record
-industry, the radio industry, cable TV, and the VCR--the question is
-not simply whether type A sharing is harmful. The question is also how
-harmful type A sharing is, and how beneficial the other types of
- sharing
-are.
+the industry in particular, and society in general—or at least
+the society that inherits the tradition that gave us the film
+industry, the record industry, the radio industry, cable TV, and the
+VCR—the question is not simply whether type A sharing is
+harmful. The question is also how harmful type A sharing is, and how
+beneficial the other types of sharing are.
</para>
<para>
We start to answer this question by focusing on the net harm, from
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><para>
+price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote>
<!-- f13 -->
+<indexterm><primary>Black, Jane</primary></indexterm>
+<para>
Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
- February
-2003, available at
+February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #17</ulink>.
-</para></footnote>
-Competition
-from other forms of media could also account for some of the decline.
-As Jane Black of BusinessWeek notes, "The soundtrack to the film High
-Fidelity has a list price of $18.98. You could get the whole movie [on
-DVD] for $19.99."<footnote><para>
-<!-- f14 -->
+</para>
+</footnote>
+Competition from other forms of media could also account for some of the
+decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film
+High Fidelity has a list price of $18.98. You could get the whole movie
+
[on DVD] for $19.99."<footnote><para>
+<!-- f14 -->
Ibid.
</para></footnote>
</para>
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
+downloading a song and stealing a CD?"—but their own
numbers
reveal the difference. If I steal a CD, then there is one less CD to
sell. Every taking is a lost sale. But on the basis of the numbers the
RIAA provides, it is absolutely clear that the same is not true of
-downloads. If every download were a lost sale--if every use of Kazaa
-"rob[bed] the author of [his] profit"--then the industry would have
+downloads. If every download were a lost sale—if every use of Kazaa
+"rob[bed] the author of [his] profit"—then the industry would have
suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6
times the number of CDs sold were downloaded for free, and yet sales
revenue dropped by just 6.7 percent, then there is a huge difference
"downloading a song and stealing a CD."
</para>
<para>
-These are the harms--alleged and perhaps exaggerated but, let's
+These are the harms—alleged and perhaps exaggerated but, let's
assume,
real. What of the benefits? File sharing may impose costs on the
recording industry. What value does it produce in addition to these
costs?
</para>
<para>
-One benefit is type C sharing--making available content that is
+One benefit is type C sharing—making available content that is
technically still under copyright but is no longer commercially
available.
This is not a small category of content. There are millions of
tracks that are no longer commercially available.<footnote><para>
<!-- f15 -->
By one estimate, 75 percent of the music released by the major labels is no
-longer in print. See Online Entertainment and Copyright Law--Coming
+longer in print. See Online Entertainment and Copyright Law—Coming
Soon to a Digital Device Near You: Hearing Before the Senate
Committee
on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared
make it available.
</para>
<para>
-In real space--long before the Internet--the market had a simple
+In real space—long before the Internet—the market had a simple
<!-- PAGE BREAK 85 -->
response to this problem: used book and record stores. There are
thousands
before statutory licensing, they don't have to pay the copyright
owner for the content they sell.
</para>
+<indexterm><primary>Bernstein, Leonard</primary></indexterm>
<para>
Type C sharing, then, is very much like used book stores or used
-record stores. It is different, of course, because the person making the
-content available isn't making money from making the content
- available.
-It is also different, of course, because in real space, when I sell a
-record, I don't have it anymore, while in cyberspace, when someone
-shares my 1949 recording of Bernstein's "Two Love Songs," I still have
-it. That difference would matter economically if the owner of the
-copyright were selling the record in competition to my sharing. But
-we're talking about the class of content that is not currently
- commercially
-available. The Internet is making it available, through
- cooperative
-sharing, without competing with the market.
+record stores. It is different, of course, because the person making
+the content available isn't making money from making the content
+available. It is also different, of course, because in real space,
+when I sell a record, I don't have it anymore, while in cyberspace,
+when someone shares my 1949 recording of Bernstein's "Two Love Songs,"
+I still have it. That difference would matter economically if the
+owner of the copyright were selling the record in competition to my
+sharing. But we're talking about the class of content that is not
+currently commercially available. The Internet is making it available,
+through cooperative sharing, without competing with the market.
</para>
<para>
It may well be, all things considered, that it would be better if the
</para>
<para>
Finally, and perhaps most importantly, file-sharing networks enable
-type D sharing to occur--the sharing of content that copyright owners
+type D sharing to occur—the sharing of content that copyright owners
want to have shared or for which there is no continuing copyright. This
sharing clearly benefits authors and society. Science fiction author
Cory Doctorow, for example, released his first novel, Down and Out in
great book!)
</para>
<para>
-Likewise for work in the public domain: This sharing benefits
- society
+Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
of type A sharing destroy the opportunity for type D sharing, then we
lose something important in order to protect type A content.
</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 efficiencies?
-What is the content that otherwise would be unavailable?"
+The point throughout is this: While the recording industry
+understandably says, "This is how much we've lost," we must also ask,
+"How much has society gained from p2p sharing? What are the
+efficiencies? What is the content that otherwise would be
+unavailable?"
</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 legal and good.
-And like the piracy I described in chapter 4, much of this piracy is
- motivated
-by a new way of spreading content caused by changes in the
-technology of distribution. Thus, consistent with the tradition that
-gave us Hollywood, radio, the recording industry, and cable TV, the
-question we should be asking about file sharing is how best to preserve
-its benefits while minimizing (to the extent possible) the wrongful harm
-it causes artists. The question is one of balance. The law should seek
-that balance, and that balance will be found only with time.
+For unlike the piracy I described in the first section of this
+chapter, much of the "piracy" that file sharing enables is plainly
+legal and good. And like the piracy I described in chapter 4, much of
+this piracy is motivated by a new way of spreading content caused by
+changes in the technology of distribution. Thus, consistent with the
+tradition that gave us Hollywood, radio, the recording industry, and
+cable TV, the question we should be asking about file sharing is how
+best to preserve its benefits while minimizing (to the extent
+possible) the wrongful harm it causes artists. The question is one of
+balance. The law should seek that balance, and that balance will be
+found only with time.
</para>
<para>
"But isn't the war just a war against illegal sharing? Isn't the target
<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an account of the litigation and its toll on
Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn
Fanning's
-Napster (New York: Crown Business, 2003), 26982.
+Napster (New York: Crown Business, 2003), 269–82.
</para></footnote>
</para>
<para>
<!-- PAGE BREAK 88 -->
This compromise, like the compromise affecting records and player
-pianos, served two important goals--indeed, the two central goals of
+pianos, served two important goals—indeed, the two central goals of
any copyright legislation. First, the law assured that new innovators
would have the freedom to develop new ways to deliver content.
Second,
control
over the future (cable).
</para>
+<indexterm><primary>Betamax</primary></indexterm>
<para>
-In the same year that Congress struck this balance, two major
- producers
-and distributors of film content filed a lawsuit against another
-technology, the video tape recorder (VTR, or as we refer to them today,
-VCRs) that Sony had produced, the Betamax. Disney's and Universal's
-claim against Sony was relatively simple: Sony produced a device,
- Disney
-and Universal claimed, that enabled consumers to engage in
- copyright
-infringement. Because the device that Sony built had a "record"
-button, the device could be used to record copyrighted movies and
-shows. Sony was therefore benefiting from the copyright infringement
-of its customers. It should therefore, Disney and Universal claimed, be
-partially liable for that infringement.
+In the same year that Congress struck this balance, two major
+producers and distributors of film content filed a lawsuit against
+another technology, the video tape recorder (VTR, or as we refer to
+them today, VCRs) that Sony had produced, the Betamax. Disney's and
+Universal's claim against Sony was relatively simple: Sony produced a
+device, Disney and Universal claimed, that enabled consumers to engage
+in copyright infringement. Because the device that Sony built had a
+"record" button, the device could be used to record copyrighted movies
+and shows. Sony was therefore benefiting from the copyright
+infringement of its customers. It should therefore, Disney and
+Universal claimed, be partially liable for that infringement.
</para>
<para>
There was something to Disney's and Universal's claim. Sony did
doubt the majority of shows would not have authorized copying. And
<!-- PAGE BREAK 89 -->
in the face of this obvious preference, Sony could have designed its
- system
-to minimize the opportunity for copyright infringement. It did
+system to minimize the opportunity for copyright infringement. It did
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
</para>
<para>
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "When
-there are 20, 30, 40 million of these VCRs in the land, we will be
- invaded
-by millions of `tapeworms,' eating away at the very heart and
-essence of the most precious asset the copyright owner has, his
- copyright."<footnote><para>
+champion. Valenti called VCRs "tapeworms." He warned, "When there are
+20, 30, 40 million of these VCRs in the land, we will be invaded by
+millions of `tapeworms,' eating away at the very heart and essence of
+the most precious asset the copyright owner has, his
+copyright."<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
-on the after-theater marketplace caused by the hundreds of
- millions
-of tapings that will adversely impact on the future of the creative
+"One does not have to be trained in sophisticated marketing and
+creative judgment," he told Congress, "to understand the devastation
+on the after-theater marketplace caused by the hundreds of millions of
+tapings that will adversely impact on the future of the creative
community in this country. It is simply a question of basic economics
and plain common sense."<footnote><para>
<!-- f19 -->
Universal City Studios, Inc. v. Sony Corp. of America, 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 copyright
- infringement
-without creating a mechanism to compensate copyright
-owners," Valenti testified, Congress would "take from the owners the
-very essence of their property: the exclusive right to control who may
-use their work, that is, who may copy it and thereby profit from its
- reproduction."<footnote><para>
+— a use the Court would later hold was not "fair." By
+"allowing VCR owners to copy freely by the means of an exemption from
+copyright infringementwithout creating a mechanism to compensate
+copyrightowners," Valenti testified, Congress would "take from the
+owners the very essence of their property: the exclusive right to
+control who may use their work, that is, who may copy it and thereby
+profit from its reproduction."<footnote><para>
<!-- f21 -->
Copyright Infringements (Audio and Video Recorders), 485 (testimony
of Jack Valenti).
</para>
<para>
It took eight years for this case to be resolved by the Supreme
-Court. In the interim, the Ninth Circuit Court of Appeals, which
- includes
-Hollywood in its jurisdiction--leading Judge Alex Kozinski,
-who sits on that court, refers to it as the "Hollywood Circuit"--held
-that Sony would be liable for the copyright infringement made
- possible
-by its machines. Under the Ninth Circuit's rule, this totally
- familiar
-technology--which Jack Valenti had called "the Boston Strangler
-of the American film industry" (worse yet, it was a Japanese Boston
-Strangler of the American film industry)--was an illegal technology.<footnote><para>
+Court. In the interim, the Ninth Circuit Court of Appeals, which
+includes Hollywood in its jurisdiction—leading Judge Alex Kozinski,
+who sits on that court, refers to it as the "Hollywood Circuit"—held
+that Sony would be liable for the copyright infringement made possible
+by its machines. Under the Ninth Circuit's rule, this totally familiar
+technology—which Jack Valenti had called "the Boston Strangler of the
+American film industry" (worse yet, it was a Japanese Boston Strangler
+of the American film industry)—was an illegal
+technology.<footnote><para>
<!-- f22 -->
Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
1981).
4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
eliminate the opportunity for free riding in the sense I've described. See
Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag,"
-University of Chicago Law Review 70 (2003): 29396.
+University of Chicago Law Review 70 (2003): 293–96.
</para></footnote>
In each case, throughout our history,
that change meant that someone got a "free ride" on someone else's
odd. I understand what I am taking when I take the picnic table you
put in your backyard. I am taking a thing, the picnic table, and after I
take it, you don't have it. But what am I taking when I take the good
-idea you had to put a picnic table in the backyard--by, for example,
+idea you had to put a picnic table in the backyard—by, for example,
going
to Sears, buying a table, and putting it in my backyard? What is the
thing I am taking then?
The point is not just about the thingness of picnic tables versus
ideas, though that's an important difference. The point instead is that
<!-- PAGE BREAK 95 -->
-in the ordinary case--indeed, in practically every case except for a
+in the ordinary case—indeed, in practically every case except for a
narrow
-range of exceptions--ideas released to the world are free. I don't
-take anything from you when I copy the way you dress--though I
+range of exceptions—ideas released to the world are free. I don't
+take anything from you when I copy the way you dress—though I
might seem weird if I did it every day, and especially weird if you are a
woman. Instead, as Thomas Jefferson said (and as is especially true
when I copy the way someone else dresses), "He who receives an idea
<!-- f1 -->
Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert
-Ellery Bergh, eds., 1903), 330, 33334.
+Ellery Bergh, eds., 1903), 330, 333–34.
</para></footnote>
</para>
<para>
property.
</para>
<para>
-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
+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"
material
is property" in context. Where did the idea come from? What are
its limits? How does it function in practice? After these stories, the
-significance of this true statement--"copyright material is property"--
+significance of this true statement—"copyright material is property"—
will be a bit more clear, and its implications will be revealed as quite
different from the implications that the copyright warriors would have
us draw.
Juliet, he published an astonishing array of works that still remain at the
heart of the English canon, including collected works of Shakespeare, Ben
Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson,
-Bookseller," American Scholar 61:3 (1992): 42431.
+Bookseller," American Scholar 61:3 (1992): 424–31.
</para></footnote>
Tonson was the
most prominent of a small group of publishers called the Conger<footnote><para>
<!-- f2 -->
Lyman Ray Patterson, Copyright in Historical Perspective (Nashville:
Vanderbilt
-University Press, 1968), 15152.
+University Press, 1968), 151–52.
</para></footnote>
who
controlled bookselling in England during the eighteenth century. The
<para>
The reason is that the English hadn't yet agreed on what a
"copyright"
-was--indeed, no one had. At the time the English passed the
+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
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.
+to print—no less, of course, but also no more.
</para>
<para>
Even that limited right was viewed with skepticism by the British.
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—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
Booksellers sound quaint and harmless to us. They were not viewed
as harmless in seventeenth-century England. Members of the Conger
<!-- PAGE BREAK 100 -->
-were increasingly seen as monopolists of the worst kind--tools of the
+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
<!-- f6 -->
Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
Law Review 40 (1987): 28. For a wonderfully compelling account, see
-Vaidhyanathan, 3748.
+Vaidhyanathan, 37–48.
</para></footnote>
The bookseller didn't care squat for the rights of the
author.
Donaldson.<footnote><para>
<!-- f7 -->
For a compelling account, see David Saunders, Authorship and Copyright
-(London: Routledge, 1992), 6269.
+(London: Routledge, 1992), 62–69.
</para></footnote>
</para>
<para>
control the publication of any book assigned to them.
</para>
<para>
-Considered as a matter of abstract justice--reasoning as if justice
-were just a matter of logical deduction from first principles--Mansfield's
+Considered as a matter of abstract justice—reasoning as if justice
+were just a matter of logical deduction from first principles—Mansfield's
conclusion might make some sense. But what it ignored was the larger
issue that Parliament had struggled with in 1710: How best to limit
<!-- PAGE BREAK 103 -->
The fight to defend the limits of the Statute of Anne was not to end
there, however, and it is here that Donaldson enters the mix.
</para>
+<indexterm><primary>Beckett, Thomas</primary></indexterm>
<para>
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
The reports about the law lords' votes are mixed. On some counts,
it looks as if perpetual copyright prevailed. But there is no ambiguity
<!-- PAGE BREAK 104 -->
-about how the House of Lords voted as whole. By a two-to-one
- majority
+about how the House of Lords voted as whole. By a two-to-one majority
(22 to 11) they voted to reject the idea of perpetual copyrights.
-Whatever one's understanding of the common law, now a copyright
-was fixed for a limited time, after which the work protected by
- copyright
+Whatever one's understanding of the common law, now a copyright was
+fixed for a limited time, after which the work protected by copyright
passed into the public domain.
</para>
+<indexterm><primary>Bacon, Francis</primary></indexterm>
<para>
"The public domain." Before the case of Donaldson v. Beckett, there
was no clear idea of a public domain in England. Before 1774, there
was a strong argument that common law copyrights were perpetual.
After 1774, the public domain was born. For the first time in
- Anglo-American
-history, the legal control over creative works expired, and the
-greatest works in English history--including those of Shakespeare,
-Bacon, Milton, Johnson, and Bunyan--were free of legal restraint.
+Anglo-American history, the legal control over creative works expired,
+and the greatest works in English history—including those of
+Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of
+legal restraint.
</para>
<para>
It is hard for us to imagine, but this decision by the House of Lords
culture and its growth would no longer be controlled by a small group
of publishers. As every free market does, this free market of free culture
would grow as the consumers and producers chose. English culture
-would develop as the many English readers chose to let it develop--
+would develop as the many English readers chose to let it develop—
chose in the books they bought and wrote; chose in the memes they
repeated and endorsed. Chose in a competitive context, not a context
in which the choices about what culture is available to people and
<para>
Then, as Else told me, "two things happened. First we
discovered
-. . . that Matt Groening doesn't own his own creation--or at least
+. . . that Matt Groening doesn't own his own creation—or at least
that someone [at Fox] believes he doesn't own his own creation." And
second, Fox "wanted ten thousand dollars as a licensing fee for us to use
this four-point-five seconds of . . . entirely unsolicited Simpsons which
Favorite Simpsons," then you need to get permission from the
copyright
owner. And the copyright owner (rightly, in my view) can charge
-whatever she wants--$10 or $1,000,000. That's her right, as set by
+whatever she wants—$10 or $1,000,000. That's her right, as set by
the law.
</para>
<para>
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 Simpsons episode is clearly a fair use of The Simpsons--and fair use
+of a Simpsons episode is clearly a fair use of The Simpsons—and fair use
does not require the permission of anyone.
</para>
<para>
</sect1>
<sect1 id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
+<indexterm><primary>Allen, Paul</primary></indexterm>
+<indexterm><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 develop digital entertainment. Long before the Internet
-became popular, Starwave began investing in new technology for
- delivering
+In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
+was an innovative company founded by Microsoft cofounder Paul Allen to
+develop digital entertainment. Long before the Internet became
+popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben had a special interest in new technology. He was intrigued by
-the emerging market for CD-ROM technology--not to distribute
-film, but to do things with film that otherwise would be very difficult.
-In 1993, he launched an initiative to develop a product to build
- retrospectives
-on the work of particular actors. The first actor chosen was
-Clint Eastwood. The idea was to showcase all of the work of
- Eastwood,
-with clips from his films and interviews with figures important
-to his career.
-</para>
-<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,
+the emerging market for CD-ROM technology—not to distribute
+film, but to do things with film that otherwise would be very
+difficult. In 1993, he launched an initiative to develop a product to
+build retrospectives on the work of particular actors. The first actor
+chosen was Clint Eastwood. The idea was to showcase all of the work of
+Eastwood, with clips from his films and interviews with figures
+important to his career.
+</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,
asking him about his career. Because Starwave produced those
interviews, it was free to include them on the CD.
</para>
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
-goal was that we were going to have a clip from every one of
- Eastwood's
-films," Alben told me. It was here that the problem arose. "No
-one had ever really done this before," Alben explained. "No one had
-ever tried to do this in the context of an artistic look at an actor's
-career."
+goal was that we were going to have a clip from every one of
+Eastwood's films," Alben told me. It was here that the problem
+arose. "No one had ever really done this before," Alben explained. "No
+one had ever tried to do this in the context of an artistic look at an
+actor's career."
</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?"
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben replied, "Well, we're going to have to clear rights from
everyone who appears in these films, and the music and everything
else that we want to use in these film clips." Slade said, "Great! Go
-for it."<footnote><para>
+for it."<footnote>
+<indexterm>
+<primary>artists</primary>
+<secondary>publicity rights on images of</secondary>
+</indexterm>
+<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.
+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.
</para></footnote>
</para>
<para>
</para>
<blockquote>
<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 Dirty Harry. But you then need to get the guy on the ground
-who's wiggling under the gun and you need to get his
- permission.
-And then you have to decide what you are going to pay
-him.
+So we very mechanically went about looking up the film clips. We made
+some artistic decisions about what film clips to include—of
+course we were going to use the "Make my day" clip from Dirty
+Harry. But you then need to get the guy on the ground who's wiggling
+under the gun and you need to get his permission. And then you have
+to decide what you are going to pay him.
</para>
<para>
<!-- PAGE BREAK 113 -->
rate for the right to reuse that performance. We're talking
about a clip of less than a minute, but to reuse that performance
in the CD-ROM the rate at the time was about $600.
-So we had to identify the people--some of them were hard to
+So we had to identify the people—some of them were hard to
identify because in Eastwood movies you can't tell who's the guy
-crashing through the glass--is it the actor or is it the stuntman?
+crashing through the glass—is it the actor or is it the stuntman?
And then we just, we put together a team, my assistant and some
others, and we just started calling people.
</para>
</blockquote>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
-Some actors were glad to help--Donald Sutherland, for example,
+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
career.
</para>
<para>
-It was one year later--"and even then we weren't sure whether we
+It was one year later—"and even then we weren't sure whether we
were totally in the clear."
</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
</para>
<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 the music, there's the screenplay, there's the director,
-there's the actors." But we just broke it down. We just put it into
-its constituent parts and said, "Okay, there's this many actors, this
-many directors, . . . this many musicians," and we just went at it
-very systematically and cleared the rights.
+Everyone thought it would be too hard. Everyone just threw up their
+hands and said, "Oh, my gosh, a film, it's so many copyrights, there's
+the music, there's the screenplay, there's the director, there's the
+actors." But we just broke it down. We just put it into its
+constituent parts and said, "Okay, there's this many actors, this many
+directors, . . . this many musicians," and we just went at it very
+systematically and cleared the rights.
</para>
</blockquote>
<para>
And no doubt, the product itself was exceptionally good. Eastwood
loved it, and it sold very well.
</para>
+<indexterm><primary>Alben, Alex</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
- nothing
-so useless as doing efficiently that which should not be done at
-all."<footnote><para>
+take a year's work simply to clear rights. No doubt Alben had done
+this efficiently, but as Peter Drucker has famously quipped, "There is
+nothing so useless as doing efficiently that which should not be done
+at all."<footnote><para>
<!-- f2 -->
U.S. Department of Commerce Office of Acquisition Management, Seven
Steps to Performance-Based Services Acquisition, available at
<blockquote>
<para>
Absolutely. I think that if there were some fair-licensing
- mechanism--where
+ mechanism—where
you weren't subject to hold-ups and you weren't
-subject to estranged former spouses--you'd see a lot more of this
+subject to estranged former spouses—you'd see a lot more of this
work, because it wouldn't be so daunting to try to put together a
<!-- PAGE BREAK 115 -->
retrospective of someone's career and meaningfully illustrate it
one of these things together.
</para>
</blockquote>
-<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?
-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
+<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?
+These costs are the burdens of a kind of regulation. Put on a
+Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
-how much it's going to cost to negotiate them. (Remember the idea
-that land runs to the heavens, and imagine the pilot purchasing
- flythrough
+how much it's going to cost to negotiate them. (Remember the idea that
+land runs to the heavens, and imagine the pilot purchasing flythrough
rights as he negotiates to fly from Los Angeles to San Francisco.)
These rights might well have once made sense; but as circumstances
-change, they make no sense at all. Or at least, a well-trained,
- regulationminimizing
-Republican should look at the rights and ask, "Does this
-still make sense?"
+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?"
</para>
<para>
I've seen the flash of recognition when people get this point, but only
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
</para>
+<indexterm><primary>Nimmer, David</primary></indexterm>
<para>
When the lights came up, I looked over to my copanelist, David
Nimmer, perhaps the leading copyright scholar and practitioner in the
began his talk with a question: "Do you know how many federal laws
were just violated in this room?"
</para>
+<indexterm><primary>Boies, David</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
-rights to these clips; technically, what they had done violated the law.
-Of course, it wasn't as if they or anyone were going to be prosecuted for
-this violation (the presence of 250 judges and a gaggle of federal
- marshals
-notwithstanding). But Nimmer was making an important point:
-A year before anyone would have heard of the word Napster, and two
-years before another member of our panel, David Boies, would defend
-Napster before the Ninth Circuit Court of Appeals, Nimmer was
- trying
-to get the judges to see that the law would not be friendly to the
-capacities that this technology would enable. Technology means you
-can now do amazing things easily; but you couldn't easily do them
-legally.
+rights to these clips; technically, what they had done violated the
+law. Of course, it wasn't as if they or anyone were going to be
+prosecuted for this violation (the presence of 250 judges and a gaggle
+of federal marshals notwithstanding). But Nimmer was making an
+important point: A year before anyone would have heard of the word
+Napster, and two years before another member of our panel, David
+Boies, would defend Napster before the Ninth Circuit Court of Appeals,
+Nimmer was trying to get the judges to see that the law would not be
+friendly to the capacities that this technology would
+enable. Technology means you can now do amazing things easily; but you
+couldn't easily do them legally.
</para>
<para>
We live in a "cut and paste" culture enabled by technology. Anyone
building a presentation knows the extraordinary freedom that the cut
-and paste architecture of the Internet created--in a second you can
+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>
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
-its archives, musicians are able to string together mixes of sound never
-before imagined; filmmakers are able to build movies out of clips on
-computers around the world. An extraordinary site in Sweden takes
-images of politicians and blends them with music to create biting
- political
-commentary. A site called Camp Chaos has produced some of
-the most biting criticism of the record industry that there is through
-the mixing of Flash! and music.
+its archives, musicians are able to string together mixes of sound
+never before imagined; filmmakers are able to build movies out of
+clips on computers around the world. An extraordinary site in Sweden
+takes images of politicians and blends them with music to create
+biting political commentary. A site called Camp Chaos has produced
+some of the most biting criticism of the record industry that there is
+through the mixing of Flash! and music.
</para>
<para>
All of these creations are technically illegal. Even if the creators
clearance rules, it doesn't get released.
</para>
<para>
-To some, these stories suggest a solution: Let's alter the mix of
-rights so that people are free to build upon our culture. Free to add or
-mix as they see fit. We could even make this change without
- necessarily
-requiring that the "free" use be free as in "free beer." Instead, the
- system
-could simply make it easy for follow-on creators to compensate
-artists without requiring an army of lawyers to come along: a rule, for
-example, that says "the royalty owed the copyright owner of an
- unregistered
-work for the derivative reuse of his work will be a flat 1 percent
-of net revenues, to be held in escrow for the copyright owner." Under
-this rule, the copyright owner could benefit from some royalty, but he
-would not have the benefit of a full property right (meaning the right
-to name his own price) unless he registers the work.
+To some, these stories suggest a solution: Let's alter the mix of
+rights so that people are free to build upon our culture. Free to add
+or mix as they see fit. We could even make this change without
+necessarily requiring that the "free" use be free as in "free beer."
+Instead, the system could simply make it easy for follow-on creators
+to compensate artists without requiring an army of lawyers to come
+along: a rule, for example, that says "the royalty owed the copyright
+owner of an unregistered work for the derivative reuse of his work
+will be a flat 1 percent of net revenues, to be held in escrow for the
+copyright owner." Under this rule, the copyright owner could benefit
+from some royalty, but he would not have the benefit of a full
+property right (meaning the right to name his own price) unless he
+registers the work.
</para>
<para>
Who could possibly object to this? And what reason would there be
What reason would anyone have to oppose it?
</para>
<para>
-In February 2003, DreamWorks studios announced an
- agreement
-with Mike Myers, the comic genius of Saturday Night Live and
+In February 2003, DreamWorks studios announced an agreement with Mike
+Myers, the comic genius of Saturday Night Live 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
-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."
-</para>
-<para>
-The announcement called this "film sampling." As Myers
- explained,
-"Film Sampling is an exciting way to put an original spin on
-existing films and allow audiences to see old movies in a new light. Rap
+Austin Powers. According to the announcement, Myers and Dream-Works
+would work together to form a "unique filmmaking pact." Under the
+agreement, DreamWorks "will acquire the rights to existing motion
+picture hits and classics, write new storylines and—with the use
+of stateof-the-art digital technology—insert Myers and other
+actors into the film, thereby creating an entirely new piece of
+entertainment."
+</para>
+<para>
+The announcement called this "film sampling." As Myers explained,
+"Film Sampling is an exciting way to put an original spin on existing
+films and allow audiences to see old movies in a new light. Rap
artists have been doing this for years with music and now we are able
to take that same concept and apply it to film." Steven Spielberg is
-quoted as saying, "If anyone can create a way to bring old films to new
-audiences, it is Mike."
+quoted as saying, "If anyone can create a way to bring old films to
+new audiences, it is Mike."
</para>
<para>
Spielberg is right. Film sampling by Myers will be brilliant. But if
you don't think about it, you might miss the truly astonishing point
-about this announcement. As the vast majority of our film heritage
- remains
-under copyright, the real meaning of the DreamWorks
- announcement
-is just this: It is Mike Myers and only Mike Myers who is
+about this announcement. As the vast majority of our film heritage
+remains under copyright, the real meaning of the DreamWorks
+announcement is just this: It is Mike Myers and only Mike Myers who is
free to sample. Any general freedom to build upon the film archive of
our culture, a freedom in other contexts presumed for us all, is now a
-privilege reserved for the funny and famous--and presumably rich.
+privilege reserved for the funny and famous—and presumably rich.
</para>
<para>
This privilege becomes reserved for two sorts of reasons. The first
These costs mirror the costs with fair use: You either pay a lawyer to
defend your fair use rights or pay a lawyer to track down permissions
so you don't have to rely upon fair use rights. Either way, the creative
-process is a process of paying lawyers--again a privilege, or perhaps a
+process is a process of paying lawyers—again a privilege, or perhaps a
curse, reserved for the few.
</para>
<!-- PAGE BREAK 119 -->
<sect1 id="collectors">
<title>CHAPTER NINE: Collectors</title>
<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 "bots"—computer codes designed to
+"spider," or automatically search the Internet and copy content—began
running across the Net. Page by page, these bots copied Internet-based
information onto a small set of computers located in a basement in San
Francisco's Presidio. Once the bots finished the whole of the Internet,
there's no way for you to know whether the content you are reading is
the same as the content you read before. The page may seem the same,
but the content could easily be different. The Internet is Orwell's
- library--constantly
+ library—constantly
updated, without any reliable memory.
</para>
<para>
or to Bull Connor's water cannon in 1963, you could go to your public
library and look at the newspapers. Those papers probably exist on
microfiche. If you're lucky, they exist in paper, too. Either way, you
-are free, using a library, to go back and remember--not just what it is
+are free, using a library, to go back and remember—not just what it is
convenient to remember, but remember something close to the truth.
</para>
<para>
important
to maintain in some historical form. It's just bizarre to think that
we have scads of archives of newspapers from tiny towns around the
-world, yet there is but one copy of the Internet--the one kept by the
+world, yet there is but one copy of the Internet—the one kept by the
Internet
Archive.
</para>
<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
+terabytes of material"—and was "ten times larger than the Library of
Congress." And this was just the first of the archives that Kahle set
out to build. In addition to the Internet Archive, Kahle has been
constructing
culture
is available for anyone to see today. Three hours of news are
recorded
-each evening by Vanderbilt University--thanks to a specific
+each evening by Vanderbilt University—thanks to a specific
exemption in the copyright law. That content is indexed, and is available
to scholars for a very low fee. "But other than that, [television] is almost
unavailable," Kahle told me. "If you were Barbara Walters you could get
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
+borrow back the deposits—for an unlimited time at no cost. In 1915
alone, there were more than 5,475 films deposited and "borrowed back."
Thus, when the copyrights to films expire, there is no copy held by any
-library. The copy exists--if it exists at all--in the library archive of the
+library. The copy exists—if it exists at all—in the library archive of the
film company.<footnote><para>
-<!-- f2 -->
+<!-- f2 -->
Doug Herrick, "Toward a National Film Collection: Motion Pictures at the
-Library of Congress," Film Library Quarterly 13 nos. 23 (1980): 5;
+Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5;
Anthony
Slide, Nitrate Won't Wait: A History of Film Preservation in the United
States ( Jefferson, N.C.: McFarland & Co., 1992), 36.
</para>
<para>
The same is generally true about television. Television broadcasts
-were originally not copyrighted--there was no way to capture the
+were originally not copyrighted—there was no way to capture the
broadcasts, so there was no fear of "theft." But as technology enabled
capturing, broadcasters relied increasingly upon the law. The law
required
culture.
Want to see a copy of the "Duck and Cover" film that instructed
children how to save themselves in the middle of nuclear attack? Go to
-archive.org, and you can download the film in a few minutes--for free.
+archive.org, and you can download the film in a few minutes—for free.
</para>
<para>
Here again, Kahle is providing access to a part of our culture that
culture.
Not during the commercial life of a bit of creative property, but
during
-a second life that all creative property has--a noncommercial life.
+a second life that all creative property has—a noncommercial life.
</para>
<para>
For here is an idea that we should more clearly recognize. Every bit
creative
property does not hold true with the most important components
of popular culture in the twentieth and twenty-first centuries. For
-these--television, movies, music, radio, the Internet--there is no
+these—television, movies, music, radio, the Internet—there is no
guarantee
of a second life. For these sorts of culture, it is as if we've replaced
libraries with Barnes & Noble superstores. With this culture, what's
<!-- PAGE BREAK 126 -->
some to criticize it. Some will use it, as Walt Disney did, to re-create
the past for the future. These technologies promise something that had
-become unimaginable for much of our past--a future for our past. The
+become unimaginable for much of our past—a future for our past. The
technology of digital arts could make the dream of the Library of
Alexandria real again.
</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 Johnson's administration--literally. The famous picture
+with Lyndon Johnson's administration—literally. The famous picture
of Johnson's swearing-in on Air Force One after the assassination of
President Kennedy has Valenti in the background. In his almost forty
years of running the MPAA, Valenti has established himself as perhaps
before him has had as much influence over that organization, or over
Washington. As a Texan, Valenti has mastered the single most
important
-political skill of a Southerner--the ability to appear simple and
+political skill of a Southerner—the ability to appear simple and
slow while hiding a lightning-fast intellect. To this day, Valenti plays
the simple, humble man. But this Harvard MBA, and author of four
books, who finished high school at the age of fifteen and flew more
ordinary
meaning of "property" to "lawyer talk," see Bruce Ackerman, Private
Property and the Constitution (New Haven: Yale University Press, 1977),
-2627.
+26–27.
</para></footnote> it has never been the
case, nor should it be, that "creative property owners" have been
"accorded
<para>
The framers of our Constitution loved "property." Indeed, so
strongly did they love property that they built into the Constitution an
-important requirement. If the government takes your property--if it
-condemns your house, or acquires a slice of land from your farm--it is
+important requirement. If the government takes your property—if it
+condemns your house, or acquires a slice of land from your farm—it is
required, under the Fifth Amendment's "Takings Clause," to pay you
"just compensation" for that taking. The Constitution thus guarantees
that property is, in a certain sense, sacred. It cannot ever be taken from
<para>
<!-- PAGE BREAK 132 -->
-To answer these questions, we need a more general way to talk
-about how property is protected. More precisely, we need a more
- general
-way than the narrow language of the law allows. In Code and Other
-Laws of Cyberspace, I used a simple model to capture this more general
-perspective. For any particular right or regulation, this model asks how
-four different modalities of regulation interact to support or weaken
-the right or regulation. I represented it with this diagram:
+To answer these questions, we need a more general way to talk about
+how property is protected. More precisely, we need a more general way
+than the narrow language of the law allows. In Code and Other Laws of
+Cyberspace, I used a simple model to capture this more general
+perspective. For any particular right or regulation, this model asks
+how four different modalities of regulation interact to support or
+weaken the right or regulation. I represented it with this diagram:
</para>
<figure id="fig-1331">
-<title></title>
-<graphic fileref="1331.jpg"></graphic>
+<title>How four different modalities of regulation interact to support or weaken the right or regulation.</title>
+<graphic fileref="images/1331.png"></graphic>
</figure>
<para>
At the center of this picture is a regulated dot: the individual or
case throughout, we can describe this either as regulation or as a right.
For simplicity's sake, I will speak only of regulations.) The ovals
represent
-four ways in which the individual or group might be regulated--
+four ways in which the individual or group might be regulated—
either constrained or, alternatively, enabled. Law is the most obvious
constraint (to lawyers, at least). It constrains by threatening
punishments
an ex ante rule. It is imposed by the state.
</para>
<para>
-Norms are a different kind of constraint. They, too, punish an
- individual
-for violating a rule. But the punishment of a norm is imposed by
-a community, not (or not only) by the state. There may be no law
-against spitting, but that doesn't mean you won't be punished if you
-spit on the ground while standing in line at a movie. The punishment
-might not be harsh, though depending upon the community, it could
-easily be more harsh than many of the punishments imposed by the
-state. The mark of the difference is not the severity of the rule, but the
-source of the enforcement.
+Norms are a different kind of constraint. They, too, punish an
+individual for violating a rule. But the punishment of a norm is
+imposed by a community, not (or not only) by the state. There may be
+no law against spitting, but that doesn't mean you won't be punished
+if you spit on the ground while standing in line at a movie. The
+punishment might not be harsh, though depending upon the community, it
+could easily be more harsh than many of the punishments imposed by the
+state. The mark of the difference is not the severity of the rule, but
+the source of the enforcement.
</para>
<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 do N. These constraints are obviously not independent of law or
-norms--it is property law that defines what must be bought if it is to be
-taken legally; it is norms that say what is appropriately sold. But given a
-set of norms, and a background of property and contract law, the
- market
-imposes a simultaneous constraint upon how an individual or group
-might behave.
-</para>
-<para>
-Finally, and for the moment, perhaps, most mysteriously,
- "architecture"--the
-physical world as one finds it--is a constraint on
- behavior.
-A fallen bridge might constrain your ability to get across a
-river. Railroad tracks might constrain the ability of a community to
-integrate its social life. As with the market, architecture does not
- effect
-its constraint through ex post punishments. Instead, also as with
-the market, architecture effects its constraint through simultaneous
-conditions. These conditions are imposed not by courts enforcing
- contracts,
-or by police punishing theft, but by nature, by "architecture."
-If a 500-pound boulder blocks your way, it is the law of gravity that
-enforces this constraint. If a $500 airplane ticket stands between
-you and a flight to New York, it is the market that enforces this
- constraint.
+through conditions: You can do X if you pay Y; you'll be paid M if you
+do N. These constraints are obviously not independent of law or
+norms—it is property law that defines what must be bought if it is to
+be taken legally; it is norms that say what is appropriately sold. But
+given a set of norms, and a background of property and contract law,
+the market imposes a simultaneous constraint upon how an individual or
+group might behave.
+</para>
+<para>
+Finally, and for the moment, perhaps, most mysteriously,
+"architecture"—the physical world as one finds it—is a constraint on
+behavior. A fallen bridge might constrain your ability to get across
+a river. Railroad tracks might constrain the ability of a community to
+integrate its social life. As with the market, architecture does not
+effect its constraint through ex post punishments. Instead, also as
+with the market, architecture effects its constraint through
+simultaneous conditions. These conditions are imposed not by courts
+enforcing contracts, or by police punishing theft, but by nature, by
+"architecture." If a 500-pound boulder blocks your way, it is the law
+of gravity that enforces this constraint. If a $500 airplane ticket
+stands between you and a flight to New York, it is the market that
+enforces this constraint.
</para>
<para>
change the other three. The right of the other three is more timidly
expressed.
See Lawrence Lessig, Code: And Other Laws of Cyberspace (New
-York: Basic Books, 1999): 9095; Lawrence Lessig, "The New Chicago
+York: Basic Books, 1999): 90–95; Lawrence Lessig, "The New Chicago
School," Journal of Legal Studies, June 1998.
</para></footnote>
The law, in other words, sometimes
rapidly. The law might be used to fund ads that stigmatize reckless
driving. Or the law might be used to require that other laws be more
<!-- PAGE BREAK 135 -->
-strict--a federal requirement that states decrease the speed limit, for
-example--so as to decrease the attractiveness of fast driving.
+strict—a federal requirement that states decrease the speed limit, for
+example—so as to decrease the attractiveness of fast driving.
</para>
<figure id="fig-1361">
-<title></title>
-<graphic fileref="1361.jpg"></graphic>
+<title>Law has a special role in affecting the three.</title>
+<graphic fileref="images/1361.png"></graphic>
</figure>
<para>
These constraints can thus change, and they can be changed. To
-understand the effective protection of liberty or protection of property
-at any particular moment, we must track these changes over time. A
- restriction
-imposed by one modality might be erased by another. A
- freedom
-enabled by one modality might be displaced by another.<footnote><para>
-<!-- f4 -->
-Some people object to this way of talking about "liberty." They object
- because
-their focus when considering the constraints that exist at any
- particular
-moment are constraints imposed exclusively by the government. For
-instance, if a storm destroys a bridge, these people think it is meaningless
-to say that one's liberty has been restrained. A bridge has washed out, and
-it's harder to get from one place to another. To talk about this as a loss of
-freedom, they say, is to confuse the stuff of politics with the vagaries of
- ordinary
-life.
-I don't mean to deny the value in this narrower view, which depends
-upon the context of the inquiry. I do, however, mean to argue against any
-insistence that this narrower view is the only proper view of liberty. As I
-argued in Code, we come from a long tradition of political thought with a
-broader focus than the narrow question of what the government did when.
-John Stuart Mill defended freedom of speech, for example, from the
-tyranny of narrow minds, not from the fear of government prosecution;
-John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19.
-John R. Commons famously defended the economic freedom of labor
-from constraints imposed by the market; John R. Commons, "The Right
-to Work," in Malcom Rutherford and Warren J. Samuels, eds., John R.
-Commons: Selected Essays (London: Routledge: 1997), 62. The Americans
-with Disabilities Act increases the liberty of people with physical
- disabilities
-by changing the architecture of certain public places, thereby making
-access to those places easier; 42 United States Code, section 12101 (2000).
-Each of these interventions to change existing conditions changes the
-liberty of a particular group. The effect of those interventions should be
-accounted for in order to understand the effective liberty that each of these
-groups might face.
-</para></footnote>
+understand the effective protection of liberty or protection of
+property at any particular moment, we must track these changes over
+time. A restriction imposed by one modality might be erased by
+another. A freedom enabled by one modality might be displaced by
+another.<footnote>
+<indexterm><primary>Commons, John R.</primary></indexterm>
+<para>
+<!-- f4 -->
+Some people object to this way of talking about "liberty." They object
+because their focus when considering the constraints that exist at any
+particular moment are constraints imposed exclusively by the
+government. For instance, if a storm destroys a bridge, these people
+think it is meaningless to say that one's liberty has been
+restrained. A bridge has washed out, and it's harder to get from one
+place to another. To talk about this as a loss of freedom, they say,
+is to confuse the stuff of politics with the vagaries of ordinary
+life. I don't mean to deny the value in this narrower view, which
+depends upon the context of the inquiry. I do, however, mean to argue
+against any insistence that this narrower view is the only proper view
+of liberty. As I argued in Code, we come from a long tradition of
+political thought with a broader focus than the narrow question of
+what the government did when. John Stuart Mill defended freedom of
+speech, for example, from the tyranny of narrow minds, not from the
+fear of government prosecution; John Stuart Mill, On Liberty (Indiana:
+Hackett Publishing Co., 1978), 19. John R. Commons famously defended
+the economic freedom of labor from constraints imposed by the market;
+John R. Commons, "The Right to Work," in Malcom Rutherford and Warren
+J. Samuels, eds., John R. Commons: Selected Essays (London:
+Routledge: 1997), 62. The Americans with Disabilities Act increases
+the liberty of people with physical disabilities by changing the
+architecture of certain public places, thereby making access to those
+places easier; 42 United States Code, section 12101 (2000). Each of
+these interventions to change existing conditions changes the liberty
+of a particular group. The effect of those interventions should be
+accounted for in order to understand the effective liberty that each
+of these groups might face. </para></footnote>
</para>
<sect2 id="hollywood">
<title>Why Hollywood Is Right</title>
<para>
-
The most obvious point that this model reveals is just why, or just
how, Hollywood is right. The copyright warriors have rallied Congress
and the courts to defend copyright. This model helps us see why that
rallying makes sense.
</para>
<para>
-Let's say this is the picture of copyright's regulation before the
- Internet:
+Let's say this is the picture of copyright's regulation before the
+Internet:
</para>
<figure id="fig-1371">
-<title></title>
-<graphic fileref="1371.jpg"></graphic>
+<title>Copyright's regulation before the Internet.</title>
+<graphic fileref="images/1331.png"></graphic>
</figure>
<para>
<!-- PAGE BREAK 136 -->
-There is balance between law, norms, market, and architecture. The
-law limits the ability to copy and share content, by imposing penalties
-on those who copy and share content. Those penalties are reinforced by
-technologies that make it hard to copy and share content (architecture)
-and expensive to copy and share content (market). Finally, those
- penalties
-are mitigated by norms we all recognize--kids, for example, taping
-other kids' records. These uses of copyrighted material may well be
- infringement,
-but the norms of our society (before the Internet, at least)
-had no problem with this form of infringement.
-</para>
-<para>
-Enter the Internet, or, more precisely, technologies such as MP3s
-and p2p sharing. Now the constraint of architecture changes
- dramatically,
+There is balance between law, norms, market, and architecture. The law
+limits the ability to copy and share content, by imposing penalties on
+those who copy and share content. Those penalties are reinforced by
+technologies that make it hard to copy and share content
+(architecture) and expensive to copy and share content
+(market). Finally, those penalties are mitigated by norms we all
+recognize—kids, for example, taping other kids' records. These
+uses of copyrighted material may well be infringement, but the norms
+of our society (before the Internet, at least) had no problem with
+this form of infringement.
+</para>
+<para>
+Enter the Internet, or, more precisely, technologies such as MP3s and
+p2p sharing. Now the constraint of architecture changes dramatically,
as does the constraint of the market. And as both the market and
architecture relax the regulation of copyright, norms pile on. The
-happy balance (for the warriors, at least) of life before the Internet
- becomes
-an effective state of anarchy after the Internet.
+happy balance (for the warriors, at least) of life before the Internet
+becomes an effective state of anarchy after the Internet.
</para>
<para>
-Thus the sense of, and justification for, the warriors' response.
- Technology
-has changed, the warriors say, and the effect of this change,
-when ramified through the market and norms, is that a balance of
- protection
-for the copyright owners' rights has been lost. This is Iraq
+Thus the sense of, and justification for, the warriors' response.
+Technology has changed, the warriors say, and the effect of this
+change, when ramified through the market and norms, is that a balance
+of protection for the copyright owners' rights has been lost. This is
+Iraq
<!-- PAGE BREAK 137 -->
after the fall of Saddam, but this time no government is justifying the
looting that results.
</para>
<figure id="fig-1381">
-<title></title>
-<graphic fileref="1381.jpg"></graphic>
+<title>effective state of anarchy after the Internet.</title>
+<graphic fileref="images/1381.png"></graphic>
</figure>
<para>
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce
- Department
-(one heavily influenced by the copyright warriors) in 1995,
+warriors. Indeed, in a "White Paper" prepared by the Commerce
+Department (one heavily influenced by the copyright warriors) in 1995,
this mix of regulatory modalities had already been identified and the
-strategy to respond already mapped. In response to the changes the
- Internet
-had effected, the White Paper argued (1) Congress should
-strengthen intellectual property law, (2) businesses should adopt
- innovative
-marketing techniques, (3) technologists should push to develop
-code to protect copyrighted material, and (4) educators should educate
-kids to better protect copyright.
-</para>
-<para>
-This mixed strategy is just what copyright needed--if it was to
- preserve
-the particular balance that existed before the change induced by
-the Internet. And it's just what we should expect the content industry
-to push for. It is as American as apple pie to consider the happy life
-you have as an entitlement, and to look to the law to protect it if
- something
-comes along to change that happy life. Homeowners living in a
+strategy to respond already mapped. In response to the changes the
+Internet had effected, the White Paper argued (1) Congress should
+strengthen intellectual property law, (2) businesses should adopt
+innovative marketing techniques, (3) technologists should push to
+develop code to protect copyrighted material, and (4) educators should
+educate kids to better protect copyright.
+</para>
+<para>
+This mixed strategy is just what copyright needed—if it was to
+preserve the particular balance that existed before the change induced
+by the Internet. And it's just what we should expect the content
+industry to push for. It is as American as apple pie to consider the
+happy life you have as an entitlement, and to look to the law to
+protect it if something comes along to change that happy
+life. Homeowners living in a
<!-- PAGE BREAK 138 -->
flood plain have no hesitation appealing to the government to rebuild
-(and rebuild again) when a flood (architecture) wipes away their
- property
-(law). Farmers have no hesitation appealing to the government to
-bail them out when a virus (architecture) devastates their crop. Unions
-have no hesitation appealing to the government to bail them out when
-imports (market) wipe out the U.S. steel industry.
+(and rebuild again) when a flood (architecture) wipes away their
+property (law). Farmers have no hesitation appealing to the government
+to bail them out when a virus (architecture) devastates their
+crop. Unions have no hesitation appealing to the government to bail
+them out when imports (market) wipe out the U.S. steel industry.
</para>
<para>
Thus, there's nothing wrong or surprising in the content industry's
-campaign to protect itself from the harmful consequences of a
- technological
-innovation. And I would be the last person to argue that the
-changing technology of the Internet has not had a profound effect on the
-content industry's way of doing business, or as John Seely Brown
- describes
-it, its "architecture of revenue."
+campaign to protect itself from the harmful consequences of a
+technological innovation. And I would be the last person to argue that
+the changing technology of the Internet has not had a profound effect
+on the content industry's way of doing business, or as John Seely
+Brown describes it, its "architecture of revenue."
</para>
<para>
-But just because a particular interest asks for government support,
-it doesn't follow that support should be granted. And just because
- technology
-has weakened a particular way of doing business, it doesn't
- follow
-that the government should intervene to support that old way of
+But just because a particular interest asks for government support, it
+doesn't follow that support should be granted. And just because
+technology has weakened a particular way of doing business, it doesn't
+follow that the government should intervene to support that old way of
doing business. Kodak, for example, has lost perhaps as much as 20
percent of their traditional film market to the emerging technologies
of digital cameras.<footnote><para>
<!-- f5 -->
-See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
- BusinessWeek
-online, 2 August 1999, available at
-<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more recent
-analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can
-Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003,
- available
-at
+See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+BusinessWeek online, 2 August 1999, available at
+<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more
+recent analysis of Kodak's place in the market, see Chana
+R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6
+October 2003, available at
<ulink url="http://free-culture.cc/notes/">link #24</ulink>.
</para></footnote>
-Does anyone believe the government should ban
-digital cameras just to support Kodak? Highways have weakened the
-freight business for railroads. Does anyone think we should ban trucks
-from roads for the purpose of protecting the railroads? Closer to the
- subject
-of this book, remote channel changers have weakened the
- "stickiness"
-of television advertising (if a boring commercial comes on the
-TV, the remote makes it easy to surf ), and it may well be that this
-change has weakened the television advertising market. But does
- anyone
-believe we should regulate remotes to reinforce commercial
- television?
-(Maybe by limiting them to function only once a second, or to
-switch to only ten channels within an hour?)
+
+Does anyone believe the government should ban digital cameras just to
+support Kodak? Highways have weakened the freight business for
+railroads. Does anyone think we should ban trucks from roads for the
+purpose of protecting the railroads? Closer to the subject of this
+book, remote channel changers have weakened the "stickiness" of
+television advertising (if a boring commercial comes on the TV, the
+remote makes it easy to surf ), and it may well be that this change
+has weakened the television advertising market. But does anyone
+believe we should regulate remotes to reinforce commercial television?
+(Maybe by limiting them to function only once a second, or to switch
+to only ten channels within an hour?)
</para>
<para>
The obvious answer to these obviously rhetorical questions is no.
1991, in a memo criticizing software patents, "established companies
have an interest in excluding future competitors."<footnote><para>
<!-- f6 -->
-Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 17071.
+Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71.
</para></footnote>
And relative to a
startup, established companies also have the means. (Think RCA and
</para>
<para>
Thus, while it is understandable for industries threatened with new
-technologies that change the way they do business to look to the
- government
-for protection, it is the special duty of policy makers to
- guarantee
-that that protection not become a deterrent to progress. It is the
-duty of policy makers, in other words, to assure that the changes they
-create, in response to the request of those hurt by changing technology,
-are changes that preserve the incentives and opportunities for
- innovation
-and change.
-</para>
-<para>
-In the context of laws regulating speech--which include, obviously,
-copyright law--that duty is even stronger. When the industry
- complaining
-about changing technologies is asking Congress to respond in
-a way that burdens speech and creativity, policy makers should be
- especially
-wary of the request. It is always a bad deal for the government
-to get into the business of regulating speech markets. The risks and
-dangers of that game are precisely why our framers created the First
-Amendment to our Constitution: "Congress shall make no law . . .
-abridging the freedom of speech." So when Congress is being asked to
-pass laws that would "abridge" the freedom of speech, it should ask--
-carefully--whether such regulation is justified.
+technologies that change the way they do business to look to the
+government for protection, it is the special duty of policy makers to
+guarantee that that protection not become a deterrent to progress. It
+is the duty of policy makers, in other words, to assure that the
+changes they create, in response to the request of those hurt by
+changing technology, are changes that preserve the incentives and
+opportunities for innovation and change.
+</para>
+<para>
+In the context of laws regulating speech—which include,
+obviously, copyright law—that duty is even stronger. When the
+industry complaining about changing technologies is asking Congress to
+respond in a way that burdens speech and creativity, policy makers
+should be especially wary of the request. It is always a bad deal for
+the government to get into the business of regulating speech
+markets. The risks and dangers of that game are precisely why our
+framers created the First Amendment to our Constitution: "Congress
+shall make no law . . . abridging the freedom of speech." So when
+Congress is being asked to pass laws that would "abridge" the freedom
+of speech, it should ask— carefully—whether such
+regulation is justified.
</para>
<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 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.
+"justified." My argument is about their effect. For before we get to
+the question of justification, a hard question that depends a great
+deal upon your values, we should first ask whether we understand the
+effect of the changes the content industry wants.
</para>
<para>
Here's the metaphor that will capture the argument to follow.
important and valuable and probably saved lives, possibly millions.
</para>
<para>
-But in 1962, Rachel Carson published Silent Spring, which argued
-that DDT, whatever its primary benefits, was also having unintended
-environmental consequences. Birds were losing the ability to
- reproduce.
-Whole chains of the ecology were being destroyed.
+But in 1962, Rachel Carson published Silent Spring, which argued that
+DDT, whatever its primary benefits, was also having unintended
+environmental consequences. Birds were losing the ability to
+reproduce. Whole chains of the ecology were being destroyed.
</para>
<para>
-No one set out to destroy the environment. Paul Müller certainly
-did not aim to harm any birds. But the effort to solve one set of
- problems
-produced another set which, in the view of some, was far worse
-than the problems that were originally attacked. Or more accurately,
-the problems DDT caused were worse than the problems it solved, at
-least when considering the other, more environmentally friendly ways
-to solve the problems that DDT was meant to solve.
+No one set out to destroy the environment. Paul Müller certainly did
+not aim to harm any birds. But the effort to solve one set of problems
+produced another set which, in the view of some, was far worse than
+the problems that were originally attacked. Or more accurately, the
+problems DDT caused were worse than the problems it solved, at least
+when considering the other, more environmentally friendly ways to
+solve the problems that DDT was meant to solve.
</para>
<para>
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an "environmentalism" for
culture.<footnote><para>
<!-- f7 -->
-See, for example, James Boyle, "A Politics of Intellectual Property:
- Environmentalism
-for the Net?" Duke Law Journal 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
-protect authors will have unintended consequences for the cultural
- environment,
-much like DDT had for the natural environment. And just
+See, for example, James Boyle, "A Politics of Intellectual Property:
+Environmentalism for the Net?" Duke Law Journal 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
+protect authors will have unintended consequences for the cultural
+environment, much like DDT had for the natural environment. And just
<!-- PAGE BREAK 141 -->
as criticism of DDT is not an endorsement of malaria or an attack on
-farmers, so, too, is criticism of one particular set of regulations
- protecting
-copyright not an endorsement of anarchy or an attack on authors.
-It is an environment of creativity that we seek, and we should be aware
-of our actions' effects on the environment.
+farmers, so, too, is criticism of one particular set of regulations
+protecting copyright not an endorsement of anarchy or an attack on
+authors. It is an environment of creativity that we seek, and we
+should be aware of our actions' effects on the environment.
</para>
<para>
My argument, in the balance of this chapter, tries to map exactly
<sect2 id="beginnings">
<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
+America copied English copyright law. Actually, we copied and improved
+English copyright law. Our Constitution makes the purpose of "creative
+property" rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
</para>
<para>
-The power to establish "creative property" rights is granted to
- Congress
-in a way that, for our Constitution, at least, is very odd. Article I,
-section 8, clause 8 of our Constitution states that:
+The power to establish "creative property" rights is granted to
+Congress in a way that, for our Constitution, at least, is very
+odd. Article I, section 8, clause 8 of our Constitution states that:
</para>
<para>
Congress has the power to promote the Progress of Science and
the exclusive Right to their respective Writings and Discoveries.
<!-- PAGE BREAK 142 -->
-We can call this the "Progress Clause," for notice what this clause does
-not say. It does not say Congress has the power to grant "creative
- property
-rights." It says that Congress has the power to promote progress. The
-grant of power is its purpose, and its purpose is a public one, not the
-purpose of enriching publishers, nor even primarily the purpose of
- rewarding
-authors.
+We can call this the "Progress Clause," for notice what this clause
+does not say. It does not say Congress has the power to grant
+"creative property rights." It says that Congress has the power to
+promote progress. The grant of power is its purpose, and its purpose
+is a public one, not the purpose of enriching publishers, nor even
+primarily the purpose of rewarding authors.
</para>
<para>
-The Progress Clause expressly limits the term of copyrights. As we
-saw in chapter 6, the English limited the term of copyright so as to
- assure
-that a few would not exercise disproportionate control over culture
-by exercising disproportionate control over publishing. We can assume
-the framers followed the English for a similar purpose. Indeed, unlike
-the English, the framers reinforced that objective, by requiring that
-copyrights extend "to Authors" only.
+The Progress Clause expressly limits the term of copyrights. As we saw
+in chapter 6, the English limited the term of copyright so as to
+assure that a few would not exercise disproportionate control over
+culture by exercising disproportionate control over publishing. We can
+assume the framers followed the English for a similar purpose. Indeed,
+unlike the English, the framers reinforced that objective, by
+requiring that copyrights extend "to Authors" only.
</para>
<para>
The design of the Progress Clause reflects something about the
-Constitution's design in general. To avoid a problem, the framers built
-structure. To prevent the concentrated power of publishers, they built
-a structure that kept copyrights away from publishers and kept them
-short. To prevent the concentrated power of a church, they banned the
-federal government from establishing a church. To prevent
- concentrating
-power in the federal government, they built structures to reinforce
-the power of the states--including the Senate, whose members were
-at the time selected by the states, and an electoral college, also selected
-by the states, to select the president. In each case, a structure built
-checks and balances into the constitutional frame, structured to
- prevent
-otherwise inevitable concentrations of power.
-</para>
-<para>
-I doubt the framers would recognize the regulation we call
- "copyright"
-today. The scope of that regulation is far beyond anything they
-ever considered. To begin to understand what they did, we need to put
-our "copyright" in context: We need to see how it has changed in the
-210 years since they first struck its design.
+Constitution's design in general. To avoid a problem, the framers
+built structure. To prevent the concentrated power of publishers, they
+built a structure that kept copyrights away from publishers and kept
+them short. To prevent the concentrated power of a church, they banned
+the federal government from establishing a church. To prevent
+concentrating power in the federal government, they built structures
+to reinforce the power of the states—including the Senate, whose
+members were at the time selected by the states, and an electoral
+college, also selected by the states, to select the president. In each
+case, a structure built checks and balances into the constitutional
+frame, structured to prevent otherwise inevitable concentrations of
+power.
+</para>
+<para>
+I doubt the framers would recognize the regulation we call "copyright"
+today. The scope of that regulation is far beyond anything they ever
+considered. To begin to understand what they did, we need to put our
+"copyright" in context: We need to see how it has changed in the 210
+years since they first struck its design.
</para>
<para>
Some of these changes come from the law: some in light of changes
started here:
</para>
<figure id="fig-1441">
-<title></title>
-<graphic fileref="1441.jpg"></graphic>
+<title>Copyright's regulation before the Internet.</title>
+<graphic fileref="images/1331.png"></graphic>
</figure>
<para>
We will end here:
</para>
<figure id="fig-1442">
-<title></title>
-<graphic fileref="1442.jpg"></graphic>
+<title>"Copyright" today.</title>
+<graphic fileref="images/1442.png"></graphic>
</figure>
<para>
Let me explain how.
authorship.<footnote><para>
<!-- f8 -->
William W. Crosskey, Politics and the Constitution in the History of the
-United States (London: Cambridge University Press, 1953), vol. 1, 48586:
+United States (London: Cambridge University Press, 1953), vol. 1, 485–86:
"extinguish[ing], by plain implication of `the supreme Law of the Land,'
the perpetual rights which authors had, or were supposed by some to have, under
the Common Law" (emphasis added).
state copyrights expired as well.
</para>
<para>
-In 1790, Congress enacted the first copyright law. It created a
- federal
-copyright and secured that copyright for fourteen years. If the
- author
-was alive at the end of that fourteen years, then he could opt to
-renew the copyright for another fourteen years. If he did not renew the
-copyright, his work passed into the public domain.
-</para>
-<para>
-While there were many works created in the United States in the
-first ten years of the Republic, only 5 percent of the works were
- actually
-registered under the federal copyright regime. Of all the work
- created
-in the United States both before 1790 and from 1790 through
-1800, 95 percent immediately passed into the public domain; the
- balance
-would pass into the pubic domain within twenty-eight years at
-most, and more likely within fourteen years.<footnote><para>
-<!-- f9 -->
-Although 13,000 titles were published in the United States from 1790 to
-1799, only 556 copyright registrations were filed; John Tebbel, A History of
-Book Publishing in the United States, vol. 1, The Creation of an Industry,
-16301865 (New York: Bowker, 1972), 141. Of the 21,000 imprints
-recorded before 1790, only twelve were copyrighted under the 1790 act;
-William J. Maher, Copyright Term, Retrospective Extension and the
- Copyright
-Law of 1790 in Historical Context, 710 (2002), available at
-<ulink url="http://free-culture.cc/notes/">link #25</ulink>.
-Thus, the overwhelming majority of works fell immediately into the
- public
-domain. Even those works that were copyrighted fell into the public
-domain quickly, because the term of copyright was short. The initial term
-of copyright was fourteen years, with the option of renewal for an
- additional
-fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124.
-</para></footnote>
+In 1790, Congress enacted the first copyright law. It created a
+federal copyright and secured that copyright for fourteen years. If
+the author was alive at the end of that fourteen years, then he could
+opt to renew the copyright for another fourteen years. If he did not
+renew the copyright, his work passed into the public domain.
+</para>
+<para>
+While there were many works created in the United States in the first
+ten years of the Republic, only 5 percent of the works were actually
+registered under the federal copyright regime. Of all the work created
+in the United States both before 1790 and from 1790 through 1800, 95
+percent immediately passed into the public domain; the balance would
+pass into the pubic domain within twenty-eight years at most, and more
+likely within fourteen years.<footnote><para>
+<!-- f9 -->
+Although 13,000 titles were published in the United States from 1790
+to 1799, only 556 copyright registrations were filed; John Tebbel, A
+History of Book Publishing in the United States, vol. 1, The Creation
+of an Industry, 1630–1865 (New York: Bowker, 1972), 141. Of the 21,000
+imprints recorded before 1790, only twelve were copyrighted under the
+1790 act; William J. Maher, Copyright Term, Retrospective Extension
+and the Copyright Law of 1790 in Historical Context, 7–10 (2002),
+available at <ulink url="http://free-culture.cc/notes/">link
+#25</ulink>. Thus, the overwhelming majority of works fell
+immediately into the public domain. Even those works that were
+copyrighted fell into the public domain quickly, because the term of
+copyright was short. The initial term of copyright was fourteen years,
+with the option of renewal for an additional fourteen years. Copyright
+Act of May 31, 1790, §1, 1 stat. 124. </para></footnote>
</para>
<para>
This system of renewal was a crucial part of the American system
of copyright. It assured that the maximum terms of copyright would be
<!-- PAGE BREAK 145 -->
granted only for works where they were wanted. After the initial term
-of fourteen years, if it wasn't worth it to an author to renew his
- copyright,
-then it wasn't worth it to society to insist on the copyright, either.
+of fourteen years, if it wasn't worth it to an author to renew his
+copyright, then it wasn't worth it to society to insist on the
+copyright, either.
</para>
<para>
Fourteen years may not seem long to us, but for the vast majority of
-copyright owners at that time, it was long enough: Only a small
- minority
-of them renewed their copyright after fourteen years; the
- balance
-allowed their work to pass into the public domain.<footnote><para>
+copyright owners at that time, it was long enough: Only a small
+minority of them renewed their copyright after fourteen years; the
+balance allowed their work to pass into the public
+domain.<footnote><para>
<!-- f10 -->
-Few copyright holders ever chose to renew their copyrights. For instance,
-of the 25,006 copyrights registered in 1883, only 894 were renewed in
-1910. For a year-by-year analysis of copyright renewal rates, see Barbara
-A. Ringer, "Study No. 31: Renewal of Copyright," Studies on Copyright,
-vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more recent
-and comprehensive analysis, see William M. Landes and Richard A.
- Posner,
-"Indefinitely Renewable Copyright," University of Chicago Law
- Review
-70 (2003): 471, 498501, and accompanying figures.
-</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,"
+Studies on Copyright, vol. 1 (New York: Practicing Law Institute,
+1963), 618. For a more recent and comprehensive analysis, see William
+M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright,"
+University of Chicago Law Review 70 (2003): 471, 498–501, and
+accompanying figures. </para></footnote>
</para>
<para>
Even today, this structure would make sense. Most creative work
has an actual commercial life of just a couple of years. Most books fall
out of print after one year.<footnote><para>
<!-- f11 -->
-See Ringer, ch. 9, n. 2.
-</para></footnote>
-When that happens, the used books are
-traded free of copyright regulation. Thus the books are no longer
- effectively
-controlled by copyright. The only practical commercial use of the
-books at that time is to sell the books as used books; that use--because
-it does not involve publication--is effectively free.
+See Ringer, ch. 9, n. 2. </para></footnote> When that happens, the
+used books are traded free of copyright regulation. Thus the books are
+no longer effectively controlled by copyright. The only practical
+commercial use of the books at that time is to sell the books as used
+books; that use—because it does not involve publication—is
+effectively free.
</para>
<para>
-In the first hundred years of the Republic, the term of copyright
-was changed once. In 1831, the term was increased from a maximum
-of 28 years to a maximum of 42 by increasing the initial term of
- copyright
+In the first hundred years of the Republic, the term of copyright was
+changed once. In 1831, the term was increased from a maximum of 28
+years to a maximum of 42 by increasing the initial term of copyright
from 14 years to 28 years. In the next fifty years of the Republic,
the term increased once again. In 1909, Congress extended the renewal
term of 14 years to 28 years, setting a maximum term of 56 years.
</para>
<para>
-Then, beginning in 1962, Congress started a practice that has
- defined
+Then, beginning in 1962, Congress started a practice that has defined
copyright law since. Eleven times in the last forty years, Congress
has extended the terms of existing copyrights; twice in those forty
years, Congress extended the term of future copyrights. Initially, the
extensions of existing copyrights were short, a mere one to two years.
In 1976, Congress extended all existing copyrights by nineteen years.
-And in 1998, in the Sonny Bono Copyright Term Extension Act,
-Congress extended the term of existing and future copyrights by
-twenty years.
+And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
+extended the term of existing and future copyrights by twenty years.
</para>
<para>
The effect of these extensions is simply to toll, or delay, the passing
</para>
<para>
The United States abandoned this sensible system in 1976. For
-all works created after 1978, there was only one copyright term--the
+all works created after 1978, there was only one copyright term—the
maximum term. For "natural" authors, that term was life plus fifty
years. For corporations, the term was seventy-five years. Then, in 1992,
Congress abandoned the renewal requirement for all works created
was ninety-five years.
</para>
<para>
-This change meant that American law no longer had an automatic
-way to assure that works that were no longer exploited passed into the
-public domain. And indeed, after these changes, it is unclear whether
-it is even possible to put works into the public domain. The public
- domain
-is orphaned by these changes in copyright law. Despite the
- requirement
-that terms be "limited," we have no evidence that anything
-will limit them.
+This change meant that American law no longer had an automatic way to
+assure that works that were no longer exploited passed into the public
+domain. And indeed, after these changes, it is unclear whether it is
+even possible to put works into the public domain. The public domain
+is orphaned by these changes in copyright law. Despite the requirement
+that terms be "limited," we have no evidence that anything will limit
+them.
</para>
<para>
The effect of these changes on the average duration of copyright is
(such as a drama based on a published book).
</para>
<para>
-This, too, has changed dramatically. While the contours of
- copyright
+This, too, has changed dramatically. While the contours of copyright
today are extremely hard to describe simply, in general terms, the
-right covers practically any creative work that is reduced to a tangible
-form. It covers music as well as architecture, drama as well as computer
-programs. It gives the copyright owner of that creative work not only
-the exclusive right to "publish" the work, but also the exclusive right of
-control over any "copies" of that work. And most significant for our
-purposes here, the right gives the copyright owner control over not
-only his or her particular work, but also any "derivative work" that might
-grow out of the original work. In this way, the right covers more
- creative
-work, protects the creative work more broadly, and protects works
-that are based in a significant way on the initial creative work.
-</para>
-<para>
-At the same time that the scope of copyright has expanded,
- procedural
-limitations on the right have been relaxed. I've already described
-the complete removal of the renewal requirement in 1992. In addition
+right covers practically any creative work that is reduced to a
+tangible form. It covers music as well as architecture, drama as well
+as computer programs. It gives the copyright owner of that creative
+work not only the exclusive right to "publish" the work, but also the
+exclusive right of control over any "copies" of that work. And most
+significant for our purposes here, the right gives the copyright owner
+control over not only his or her particular work, but also any
+"derivative work" that might grow out of the original work. In this
+way, the right covers more creative work, protects the creative work
+more broadly, and protects works that are based in a significant way
+on the initial creative work.
+</para>
+<para>
+At the same time that the scope of copyright has expanded, procedural
+limitations on the right have been relaxed. I've already described the
+complete removal of the renewal requirement in 1992. In addition
<!-- PAGE BREAK 148 -->
to the renewal requirement, for most of the history of American
- copyright
-law, there was a requirement that a work be registered before it
-could receive the protection of a copyright. There was also a
- requirement
-that any copyrighted work be marked either with that famous ©
-or the word copyright. And for most of the history of American
- copyright
-law, there was a requirement that works be deposited with the
-government before a copyright could be secured.
+copyright law, there was a requirement that a work be registered
+before it could receive the protection of a copyright. There was also
+a requirement that any copyrighted work be marked either with that
+famous © or the word copyright. And for most of the history of
+American copyright law, there was a requirement that works be
+deposited with the government before a copyright could be secured.
</para>
<para>
-The reason for the registration requirement was the sensible
- understanding
-that for most works, no copyright was required. Again, in the
-first ten years of the Republic, 95 percent of works eligible for
- copyright
-were never copyrighted. Thus, the rule reflected the norm: Most
-works apparently didn't need copyright, so registration narrowed the
-regulation of the law to the few that did. The same reasoning justified
-the requirement that a work be marked as copyrighted--that way it
-was easy to know whether a copyright was being claimed. The
- requirement
-that works be deposited was to assure that after the copyright
- expired,
-there would be a copy of the work somewhere so that it could be
-copied by others without locating the original author.
+The reason for the registration requirement was the sensible
+understanding that for most works, no copyright was required. Again,
+in the first ten years of the Republic, 95 percent of works eligible
+for copyright were never copyrighted. Thus, the rule reflected the
+norm: Most works apparently didn't need copyright, so registration
+narrowed the regulation of the law to the few that did. The same
+reasoning justified the requirement that a work be marked as
+copyrighted—that way it was easy to know whether a copyright was
+being claimed. The requirement that works be deposited was to assure
+that after the copyright expired, there would be a copy of the work
+somewhere so that it could be copied by others without locating the
+original author.
</para>
<para>
-All of these "formalities" were abolished in the American system
-when we decided to follow European copyright law. There is no
- requirement
-that you register a work to get a copyright; the copyright
-now is automatic; the copyright exists whether or not you mark your
-work with a ©; and the copyright exists whether or not you actually
-make a copy available for others to copy.
+All of these "formalities" were abolished in the American system when
+we decided to follow European copyright law. There is no requirement
+that you register a work to get a copyright; the copyright now is
+automatic; the copyright exists whether or not you mark your work with
+a ©; and the copyright exists whether or not you actually make a
+copy available for others to copy.
</para>
<para>
-Consider a practical example to understand the scope of these
- differences.
+Consider a practical example to understand the scope of these
+differences.
</para>
<para>
If, in 1790, you wrote a book and you were one of the 5 percent who
actually copyrighted that book, then the copyright law protected you
-against another publisher's taking your book and republishing it
- without
-your permission. The aim of the act was to regulate publishers so
-as to prevent that kind of unfair competition. In 1790, there were 174
-publishers in the United States.<footnote><para>
+against another publisher's taking your book and republishing it
+without your permission. The aim of the act was to regulate publishers
+so as to prevent that kind of unfair competition. In 1790, there were
+174 publishers in the United States.<footnote><para>
<!-- f13 -->
See Thomas Bender and David Sampliner, "Poets, Pirates, and the
Creation
of American Literature," 29 New York University Journal of
International
Law and Politics 255 (1997), and James Gilraeth, ed., Federal
-Copyright Records, 17901800 (U.S. G.P.O., 1987).
+Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
</para></footnote>
The Copyright Act was thus a tiny
regulation of a tiny proportion of a tiny part of the creative market in
-the United States--publishers.
+the United States—publishers.
</para>
<para>
<!-- PAGE BREAK 149 -->
automatically protected. Indeed, not just your book. Every e-mail,
every note to your spouse, every doodle, every creative act that's
reduced
-to a tangible form--all of this is automatically copyrighted.
+to a tangible form—all of this is automatically copyrighted.
There is no need to register or mark your work. The protection follows
the creation, not the steps you take to protect it.
</para>
<!-- PAGE BREAK 150 -->
In preventing that joke, the law created an astonishing power within
-a free culture--at least, it's astonishing when you understand that the
+a free culture—at least, it's astonishing when you understand that the
law applies not just to the commercial publisher but to anyone with a
computer. I understand the wrong in duplicating and selling someone
else's work. But whatever that wrong is, transforming someone else's
work is a different wrong. Some view transformation as no wrong at
-all--they believe that our law, as the framers penned it, should not
+all—they believe that our law, as the framers penned it, should not
protect
derivative rights at all.<footnote><para>
<!-- f14 -->
of the First Amendment) between mere "copies" and derivative works. See
Jed Rubenfeld, "The Freedom of Imagination: Copyright's
Constitutionality,"
-Yale Law Journal 112 (2002): 160 (see especially pp. 5359).
+Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59).
</para></footnote>
These two different uses of my creative work are
treated the same.
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 copyrighted
+regulates more than "copies"—a public performance of a copyrighted
song, for example, is regulated even though performance per se doesn't
make a copy; 17 United States Code, section 106(4). And it certainly
sometimes
empty circle.
</para>
<figure id="fig-1521">
-<title></title>
-<graphic fileref="1521.jpg"></graphic>
+<title>All potential uses of a book.</title>
+<graphic fileref="images/1521.png"></graphic>
</figure>
<para>
<!-- PAGE BREAK 152 -->
-Think about a book in real space, and imagine this circle to
- represent
-all its potential uses. Most of these uses are unregulated by copyright
-law, because the uses don't create a copy. If you read a book, that act is not
-regulated by copyright law. If you give someone the book, that act is
-not regulated by copyright law. If you resell a book, that act is not
- regulated
-(copyright law expressly states that after the first sale of a book,
-the copyright owner can impose no further conditions on the
- disposition
-of the book). If you sleep on the book or use it to hold up a lamp or
-let your puppy chew it up, those acts are not regulated by copyright law,
-because those acts do not make a copy.
+Think about a book in real space, and imagine this circle to represent
+all its potential uses. Most of these uses are unregulated by
+copyright law, because the uses don't create a copy. If you read a
+book, that act is not regulated by copyright law. If you give someone
+the book, that act is not regulated by copyright law. If you resell a
+book, that act is not regulated (copyright law expressly states that
+after the first sale of a book, the copyright owner can impose no
+further conditions on the disposition of the book). If you sleep on
+the book or use it to hold up a lamp or let your puppy chew it up,
+those acts are not regulated by copyright law, because those acts do
+not make a copy.
</para>
<figure id="fig-1531">
-<title></title>
-<graphic fileref="1531.jpg"></graphic>
+<title>Examples of unregulated uses of a book.</title>
+<graphic fileref="images/1531.png"></graphic>
</figure>
<para>
Obviously, however, some uses of a copyrighted book are regulated
</para>
<!-- PAGE BREAK 153 -->
<figure id="fig-1541">
-<title></title>
-<graphic fileref="1541.jpg"></graphic>
+<title>Republishing stands at the core of this circle of possible uses of a copyrighted work.</title>
+<graphic fileref="images/1541.png"></graphic>
</figure>
<para>
These are uses that themselves involve copying, but which the law treats
policy (and possibly First Amendment) reasons.
</para>
<figure id="fig-1542">
-<title></title>
-<graphic fileref="1542.jpg"></graphic>
+<title>Unregulated copying considered "fair uses."</title>
+<graphic fileref="images/1542.png"></graphic>
</figure>
<para> </para>
<figure id="fig-1551">
-<title></title>
-<graphic fileref="1551.jpg"></graphic>
+<title>Uses that before were presumptively unregulated are now presumptively regulated.</title>
+<graphic fileref="images/1551.png"></graphic>
</figure>
<para>
<!-- PAGE BREAK 154 -->
are nonetheless deemed "fair" regardless of the copyright owner's views.
</para>
<para>
-Enter the Internet--a distributed, digital network where every use
+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 rather that
are now presumptively regulated. No longer is there a set of
presumptively unregulated uses that define a freedom associated with a
copyrighted work. Instead, each use is now subject to the copyright,
-because each use also makes a copy--category 1 gets sucked into
+because each use also makes a copy—category 1 gets sucked into
category
2. And those who would defend the unregulated uses of
copyrighted
nothing
to say about whether you read the book once, ten times, or every
<!-- PAGE BREAK 155 -->
-night before you went to bed. None of those instances of use--reading--
+night before you went to bed. None of those instances of use—reading—
could be regulated by copyright law because none of those uses
produced
a copy.
This point about fair use is totally ignored, even by advocates for
free culture. We have been cornered into arguing that our rights
depend
-upon fair use--never even addressing the earlier question about
+upon fair use—never even addressing the earlier question about
the expansion in effective regulation. A thin protection grounded in
fair use makes sense when the vast majority of uses are unregulated. But
when everything becomes presumptively regulated, then the
(rather than sending the tapes) to distributors of their videos. Two
years later, Disney told Video Pipeline to stop. The owner of Video
<!-- PAGE BREAK 157 -->
-Pipeline asked Disney to talk about the matter--he had built a
+Pipeline asked Disney to talk about the matter—he had built a
business
on distributing this content as a way to help sell Disney films; he
had customers who depended upon his delivering this content. Disney
court to declare that these rights were in fact their rights.
</para>
<para>
-Disney countersued--for $100 million in damages. Those damages
+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
<!-- f19 -->
See David Lange, "Recognizing the Public Domain," Law and
Contemporary
-Problems 44 (1981): 17273.
+Problems 44 (1981): 172–73.
</para></footnote>
</para>
<para>
Warner Brothers that the Marx Brothers "were brothers long before
you were."<footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 13.
+Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3.
</para></footnote>
The Marx Brothers therefore owned the word brothers,
and if Warner Brothers insisted on trying to control Casablanca, then
called Permissions.
</para>
<figure id="fig-1611">
-<title>Acrobat eBook Reader</title>
-<graphic fileref="1611.jpg"></graphic>
+<title>Picture of an old version of Adobe eBook Reader</title>
+<graphic fileref="images/1611.png"></graphic>
</figure>
<para>
-If you click on the Permissions button, you'll see a list of the
- permissions
-that the publisher purports to grant with this book.
+If you click on the Permissions button, you'll see a list of the
+permissions that the publisher purports to grant with this book.
</para>
<figure id="fig-1612">
-<title></title>
-<graphic fileref="1612.jpg"></graphic>
+<title>List of the permissions that the publisher purports to grant.</title>
+<graphic fileref="images/1612.png"></graphic>
</figure>
<para>
<!-- PAGE BREAK 161 -->
computer.
</para>
<para>
-Here's the e-book for another
-work in the public domain
- (including
-the translation):
- Aristotle's
-Politics.
+Here's the e-book for another work in the public domain (including the
+translation): Aristotle's Politics.
</para>
<figure id="fig-1621">
-<title></title>
-<graphic fileref="1621.jpg"></graphic>
+<title>E-book of Aristotle;s "Politics"</title>
+<graphic fileref="images/1621.png"></graphic>
</figure>
<para>
According to its permissions, no printing or copying is permitted
the book.
</para>
<figure id="fig-1622">
-<title></title>
-<graphic fileref="1622.jpg"></graphic>
+<title>List of the permissions for Aristotle;s "Politics".</title>
+<graphic fileref="images/1622.png"></graphic>
</figure>
<para>
Finally (and most embarrassingly), here are the permissions for the
</para>
<!-- PAGE BREAK 162 -->
<figure id="fig-1631">
-<title></title>
-<graphic fileref="1631.jpg"></graphic>
+<title>List of the permissions for "The Future of Ideas".</title>
+<graphic fileref="images/1631.png"></graphic>
</figure>
<para>
No copying, no printing, and don't you dare try to listen to this book!
</para>
<para>
-Now, the Adobe eBook Reader calls these controls "permissions"--
+Now, the Adobe eBook Reader calls these controls "permissions"—
as if the publisher has the power to control how you use these works.
For works under copyright, the copyright owner certainly does have
-the power--up to the limits of the copyright law. But for work not
+the power—up to the limits of the copyright law. But for work not
under
copyright, there is no such copyright power.<footnote><para>
<!-- f21 -->
on my computer, far beyond the control that the law would enable.
</para>
<para>
-The control comes instead from the code--from the technology
+The control comes instead from the code—from the technology
within which the e-book "lives." Though the e-book says that these are
permissions, they are not the sort of "permissions" that most of us deal
with. When a teenager gets "permission" to stay out till midnight, she
restrictions:
After ten pages, the eBook Reader will not print any more pages.
It's the same with the silly restriction that says that you can't use the
-Read Aloud button to read my book aloud--it's not that the company
+Read Aloud button to read my book aloud—it's not that the company
will sue you if you do; instead, if you push the Read Aloud button with
my book, the machine simply won't read aloud.
</para>
Permissions for that book, you got the following report:
</para>
<figure id="fig-1641">
-<title></title>
-<graphic fileref="1641.jpg"></graphic>
+<title>List of the permissions for "Alice's Adventures in
+Wonderland".</title>
+<graphic fileref="images/1641.png"></graphic>
</figure>
<para>
<!-- PAGE BREAK 164 -->
seemed, to say the least, absurd.
</para>
<para>
-Adobe responded quickly that it was absurd to think that it was
- trying
-to restrict the right to read a book aloud. Obviously it was only
- restricting
-the ability to use the Read Aloud button to have the book read
-aloud. But the question Adobe never did answer is this: Would Adobe
-thus agree that a consumer was free to use software to hack around the
-restrictions built into the eBook Reader? If some company (call it
-Elcomsoft) developed a program to disable the technological
- protection
-built into an Adobe eBook so that a blind person, say, could use a
-computer to read the book aloud, would Adobe agree that such a use of
-an eBook Reader was fair? Adobe didn't answer because the answer,
-however absurd it might seem, is no.
+Adobe responded quickly that it was absurd to think that it was trying
+to restrict the right to read a book aloud. Obviously it was only
+restricting the ability to use the Read Aloud button to have the book
+read aloud. But the question Adobe never did answer is this: Would
+Adobe thus agree that a consumer was free to use software to hack
+around the restrictions built into the eBook Reader? If some company
+(call it Elcomsoft) developed a program to disable the technological
+protection built into an Adobe eBook so that a blind person, say,
+could use a computer to read the book aloud, would Adobe agree that
+such a use of an eBook Reader was fair? Adobe didn't answer because
+the answer, however absurd it might seem, is no.
</para>
<para>
The point is not to blame Adobe. Indeed, Adobe is among the most
innovative companies developing strategies to balance open access to
-content with incentives for companies to innovate. But Adobe's
- technology
-enables control, and Adobe has an incentive to defend this
- control.
-That incentive is understandable, yet what it creates is often crazy.
+content with incentives for companies to innovate. But Adobe's
+technology enables control, and Adobe has an incentive to defend this
+control. That incentive is understandable, yet what it creates is
+often crazy.
</para>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
<para>
Consider the robotic dog made by Sony named "Aibo." The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
</para>
<para>
"Teach" here has a special meaning. Aibos are just cute computers.
-You teach a computer how to do something by programming it
- differently.
-So to say that aibopet.com was giving information about how to
-teach the dog to do new tricks is just to say that aibopet.com was
- giving
-information to users of the Aibo pet about how to hack their
- computer
-"dog" to make it do new tricks (thus, aibohack.com).
+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).
</para>
<para>
If you're not a programmer or don't know many programmers, the
well. There's a well-deserved respect that goes with the talent to hack
ethically.
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
<para>
-The Aibo fan was displaying a bit of both when he hacked the
- program
-and offered to the world a bit of code that would enable the Aibo
-to dance jazz. The dog wasn't programmed to dance jazz. It was a
-clever bit of tinkering that turned the dog into a more talented creature
+The Aibo fan was displaying a bit of both when he hacked the program
+and offered to the world a bit of code that would enable the Aibo to
+dance jazz. The dog wasn't programmed to dance jazz. It was a clever
+bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
<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,
-is it permissible for a dog to dance jazz in the United States? We
- forget
-that stories about the backcountry still flow across much of the
+is it permissible for a dog to dance jazz in the United States? We
+forget that stories about the backcountry still flow across much of
+the
<!-- PAGE BREAK 166 -->
-world. So let's just be clear before we continue: It's not a crime
- anywhere
-(anymore) to dance jazz. Nor is it a crime to teach your dog to
-dance jazz. Nor should it be a crime (though we don't have a lot to go
-on here) to teach your robot dog to dance jazz. Dancing jazz is a
- completely
-legal activity. One imagines that the owner of aibopet.com
-thought, What possible problem could there be with teaching a robot dog to
-dance?
-</para>
-<para>
-Let's put the dog to sleep for a minute, and turn to a pony show--
+world. So let's just be clear before we continue: It's not a crime
+anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
+to dance jazz. Nor should it be a crime (though we don't have a lot to
+go on here) to teach your robot dog to dance jazz. Dancing jazz is a
+completely legal activity. One imagines that the owner of aibopet.com
+thought, What possible problem could there be with teaching a robot
+dog to dance?
+</para>
+<para>
+Let's put the dog to sleep for a minute, and turn to a pony show—
not literally a pony show, but rather a paper that a Princeton academic
named Ed Felten prepared for a conference. This Princeton academic
is well known and respected. He was hired by the government in the
about Felten and USENIX v. RIAA Legal Case," available at
<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
</para></footnote>
-He and a
-group of colleagues were working on a paper to be submitted at
- conference.
-The paper was intended to describe the weakness in an
- encryption
-system being developed by the Secure Digital Music Initiative as
-a technique to control the distribution of music.
+He and a group of colleagues were working on a paper to be submitted
+at conference. The paper was intended to describe the weakness in an
+encryption system being developed by the Secure Digital Music
+Initiative as a technique to control the distribution of music.
</para>
<para>
The SDMI coalition had as its goal a technology to enable content
-owners to exercise much better control over their content than the
- Internet,
-as it originally stood, granted them. Using encryption, SDMI
+owners to exercise much better control over their content than the
+Internet, as it originally stood, granted them. Using encryption, SDMI
hoped to develop a standard that would allow the content owner to say
-"this music cannot be copied," and have a computer respect that
- command.
-The technology was to be part of a "trusted system" of control
-that would get content owners to trust the system of the Internet much
-more.
+"this music cannot be copied," and have a computer respect that
+command. The technology was to be part of a "trusted system" of
+control that would get content owners to trust the system of the
+Internet much more.
</para>
<para>
-When SDMI thought it was close to a standard, it set up a
- competition.
+When SDMI thought it was close to a standard, it set up a competition.
In exchange for providing contestants with the code to an
SDMI-encrypted bit of content, contestants were to try to crack it
and, if they did, report the problems to the consortium.
</para>
<para>
<!-- PAGE BREAK 167 -->
-Felten and his team figured out the encryption system quickly. He
-and the team saw the weakness of this system as a type: Many
- encryption
+Felten and his team figured out the encryption system quickly. He and
+the team saw the weakness of this system as a type: Many encryption
systems would suffer the same weakness, and Felten and his team
thought it worthwhile to point this out to those who study encryption.
</para>
<para>
Let's review just what Felten was doing. Again, this is the United
States. We have a principle of free speech. We have this principle not
-just because it is the law, but also because it is a really great idea. A
-strongly protected tradition of free speech is likely to encourage a wide
-range of criticism. That criticism is likely, in turn, to improve the
- systems
-or people or ideas criticized.
+just because it is the law, but also because it is a really great
+idea. A strongly protected tradition of free speech is likely to
+encourage a wide range of criticism. That criticism is likely, in
+turn, to improve the systems or people or ideas criticized.
</para>
<para>
What Felten and his colleagues were doing was publishing a paper
<blockquote>
<para>
Your site contains information providing the means to circumvent
-AIBO-ware's copy protection protocol constituting a violation of
-the anti-circumvention provisions of the Digital Millennium
- Copyright
-Act.
+AIBO-ware's copy protection protocol constituting a violation of the
+anti-circumvention provisions of the Digital Millennium Copyright Act.
</para>
</blockquote>
<para>
<para>
Any disclosure of information gained from participating in the
<!-- 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").
+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").
</para>
</blockquote>
<para>
The DMCA was enacted as a response to copyright owners' first fear
about cyberspace. The fear was that copyright control was effectively
dead; the response was to find technologies that might compensate.
-These new technologies would be copyright protection technologies--
+These new technologies would be copyright protection technologies—
technologies to control the replication and distribution of copyrighted
material. They were designed as code to modify the original code of the
Internet, to reestablish some protection for copyright owners.
</para>
<para>
-The DMCA was a bit of law intended to back up the protection of
-this code designed to protect copyrighted material. It was, we could
-say, legal code intended to buttress software code which itself was
- intended
-to support the legal code of copyright.
+The DMCA was a bit of law intended to back up the protection of this
+code designed to protect copyrighted material. It was, we could say,
+legal code intended to buttress software code which itself was
+intended to support the legal code of copyright.
</para>
<para>
-But the DMCA was not designed merely to protect copyrighted
-works to the extent copyright law protected them. Its protection, that
-is, did not end at the line that copyright law drew. The DMCA
- regulated
+But the DMCA was not designed merely to protect copyrighted works to
+the extent copyright law protected them. Its protection, that is, did
+not end at the line that copyright law drew. The DMCA regulated
devices that were designed to circumvent copyright protection
measures. It was designed to ban those devices, whether or not the use
-of the copyrighted material made possible by that circumvention
-would have been a copyright violation.
+of the copyrighted material made possible by that circumvention would
+have been a copyright violation.
</para>
<para>
-Aibopet.com and Felten make the point. The Aibo hack
- circumvented
-a copyright protection system for the purpose of enabling the
-dog to dance jazz. That enablement no doubt involved the use of
- copyrighted
-material. But as aibopet.com's site was noncommercial, and the
-use did not enable subsequent copyright infringements, there's no doubt
-that aibopet.com's hack was fair use of Sony's copyrighted material. Yet
+Aibopet.com and Felten make the point. The Aibo hack circumvented a
+copyright protection system for the purpose of enabling the dog to
+dance jazz. That enablement no doubt involved the use of copyrighted
+material. But as aibopet.com's site was noncommercial, and the use did
+not enable subsequent copyright infringements, there's no doubt that
+aibopet.com's hack was fair use of Sony's copyrighted material. Yet
fair use is not a defense to the DMCA. The question is not whether the
<!-- PAGE BREAK 169 -->
use of the copyrighted material was a copyright violation. The question
</para>
<para>
The threat against Felten was more attenuated, but it followed the
-same line of reasoning. By publishing a paper describing how a
- copyright
-protection system could be circumvented, the RIAA lawyer
- suggested,
-Felten himself was distributing a circumvention technology.
+same line of reasoning. By publishing a paper describing how a
+copyright protection system could be circumvented, the RIAA lawyer
+suggested, Felten himself was distributing a circumvention technology.
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
</para>
<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
+The bizarreness of these arguments is captured in a cartoon drawn in
+1981 by Paul Conrad. At that time, a court in California had held that
+the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology
-that were legal: Fred Rogers, aka "Mr. Rogers," for example, had
- testified
-in that case that he wanted people to feel free to tape Mr. Rogers'
-Neighborhood.
+that were legal: Fred Rogers, aka "Mr. Rogers," for example, had
+testified in that case that he wanted people to feel free to tape
+Mr. Rogers' Neighborhood.
</para>
<blockquote>
<para>
Some public stations, as well as commercial stations, program the
-"Neighborhood" at hours when some children cannot use it. I
-think that it's a real service to families to be able to record such
-programs and show them at appropriate times. I have always felt
-that with the advent of all of this new technology that allows
-people to tape the "Neighborhood" off-the-air, and I'm
- speaking
-for the "Neighborhood" because that's what I produce,
-that they then become much more active in the programming of
-their family's television life. Very frankly, I am opposed to people
-being programmed by others. My whole approach in
- broadcasting
-has always been "You are an important person just the way
-you are. You can make healthy decisions." Maybe I'm going on
-too long, but I just feel that anything that allows a person to be
-more active in the control of his or her life, in a healthy way, is
+"Neighborhood" at hours when some children cannot use it. I think that
+it's a real service to families to be able to record such programs and
+show them at appropriate times. I have always felt that with the
+advent of all of this new technology that allows people to tape the
+"Neighborhood" off-the-air, and I'm speaking for the "Neighborhood"
+because that's what I produce, that they then become much more active
+in the programming of their family's television life. Very frankly, I
+am opposed to people being programmed by others. My whole approach in
+broadcasting has always been "You are an important person just the way
+you are. You can make healthy decisions." Maybe I'm going on too long,
+but I just feel that anything that allows a person to be more active
+in the control of his or her life, in a healthy way, is
important.<footnote><para>
<!-- f23 -->
Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of
-the VCR (New York: W. W. Norton, 1987), 27071.
+the VCR (New York: W. W. Norton, 1987), 270–71.
</para></footnote>
</para>
</blockquote>
</para>
<para>
The anticircumvention provisions of the DMCA target copyright
-circumvention technologies. Circumvention technologies can be used
-for different ends. They can be used, for example, to enable massive
- pirating
-of copyrighted material--a bad end. Or they can be used to
- enable
-the use of particular copyrighted materials in ways that would be
-considered fair use--a good end.
+circumvention technologies. Circumvention technologies can be used for
+different ends. They can be used, for example, to enable massive
+pirating of copyrighted material—a bad end. Or they can be used
+to enable the use of particular copyrighted materials in ways that
+would be considered fair use—a good end.
</para>
<para>
A handgun can be used to shoot a police officer or a child. Most
and bad uses.
</para>
<figure id="fig-1711">
-<title></title>
-<graphic fileref="1711.jpg"></graphic>
+<title>VCR/handgun cartoon.</title>
+<graphic fileref="images/1711.png"></graphic>
</figure>
<para>
The obvious point of Conrad's cartoon is the weirdness of a world
permits guns, despite the obvious and tragic harm they do.
</para>
<para>
-The Aibo and RIAA examples demonstrate how copyright owners
-are changing the balance that copyright law grants. Using code,
- copyright
-owners restrict fair use; using the DMCA, they punish those who
-would attempt to evade the restrictions on fair use that they impose
-through code. Technology becomes a means by which fair use can be
-erased; the law of the DMCA backs up that erasing.
+The Aibo and RIAA examples demonstrate how copyright owners are
+changing the balance that copyright law grants. Using code, copyright
+owners restrict fair use; using the DMCA, they punish those who would
+attempt to evade the restrictions on fair use that they impose through
+code. Technology becomes a means by which fair use can be erased; the
+law of the DMCA backs up that erasing.
</para>
<para>
This is how code becomes law. The controls built into the technology
of copy and access protection become rules the violation of which is also
-a violation of the law. In this way, the code extends the law--increasing its
+a violation of the law. In this way, the code extends the law—increasing its
regulation, even if the subject it regulates (activities that would otherwise
plainly constitute fair use) is beyond the reach of the law. Code becomes
law; code extends the law; code thus extends the control that copyright
-owners effect--at least for those copyright holders with the lawyers
+owners effect—at least for those copyright holders with the lawyers
who can write the nasty letters that Felten and aibopet.com received.
</para>
<para>
-There is one final aspect of the interaction between architecture
-and law that contributes to the force of copyright's regulation. This is
+There is one final aspect of the interaction between architecture and
+law that contributes to the force of copyright's regulation. This is
the ease with which infringements of the law can be detected. For
contrary to the rhetoric common at the birth of cyberspace that on the
-Internet, no one knows you're a dog, increasingly, given changing
- technologies
-deployed on the Internet, it is easy to find the dog who
- committed
-a legal wrong. The technologies of the Internet are open to
-snoops as well as sharers, and the snoops are increasingly good at
- tracking
-down the identity of those who violate the rules.
+Internet, no one knows you're a dog, increasingly, given changing
+technologies deployed on the Internet, it is easy to find the dog who
+committed a legal wrong. The technologies of the Internet are open to
+snoops as well as sharers, and the snoops are increasingly good at
+tracking down the identity of those who violate the rules.
</para>
<para>
<!-- PAGE BREAK 172 -->
For example, imagine you were part of a Star Trek fan club. You
gathered every month to share trivia, and maybe to enact a kind of fan
-fiction about the show. One person would play Spock, another,
- Captain
-Kirk. The characters would begin with a plot from a real story,
-then simply continue it.<footnote><para>
+fiction about the show. One person would play Spock, another, Captain
+Kirk. The characters would begin with a plot from a real story, then
+simply continue it.<footnote><para>
<!-- f24 -->
For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions,
Copyright, Fan Fiction, and a New Common Law," Loyola of Los Angeles
</para></footnote>
</para>
<para>
-Before the Internet, this was, in effect, a totally unregulated
- activity.
-No matter what happened inside your club room, you would never
-be interfered with by the copyright police. You were free in that space
-to do as you wished with this part of our culture. You were allowed to
-build on it as you wished without fear of legal control.
+Before the Internet, this was, in effect, a totally unregulated
+activity. No matter what happened inside your club room, you would
+never be interfered with by the copyright police. You were free in
+that space to do as you wished with this part of our culture. You were
+allowed to build on it as you wished without fear of legal control.
</para>
<para>
But if you moved your club onto the Internet, and made it generally
-available for others to join, the story would be very different. Bots
- scouring
-the Net for trademark and copyright infringement would quickly
-find your site. Your posting of fan fiction, depending upon the
- ownership
-of the series that you're depicting, could well inspire a lawyer's
-threat. And ignoring the lawyer's threat would be extremely costly
- indeed.
-The law of copyright is extremely efficient. The penalties are
- severe,
-and the process is quick.
+available for others to join, the story would be very different. Bots
+scouring the Net for trademark and copyright infringement would
+quickly find your site. Your posting of fan fiction, depending upon
+the ownership of the series that you're depicting, could well inspire
+a lawyer's threat. And ignoring the lawyer's threat would be extremely
+costly indeed. The law of copyright is extremely efficient. The
+penalties are severe, and the process is quick.
</para>
<para>
This change in the effective force of the law is caused by a change
<sect2 id="marketconcentration">
<title>Market: Concentration</title>
<para>
-So copyright's duration has increased dramatically--tripled in the past
-thirty years. And copyright's scope has increased as well--from
- regulating
-only publishers to now regulating just about everyone. And
-copyright's reach has changed, as every action becomes a copy and
-hence presumptively regulated. And as technologists find better ways
+So copyright's duration has increased dramatically—tripled in
+the past thirty years. And copyright's scope has increased as
+well—from regulating only publishers to now regulating just
+about everyone. And copyright's reach has changed, as every action
+becomes a copy and hence presumptively regulated. And as technologists
+find better ways
<!-- PAGE BREAK 173 -->
-to control the use of content, and as copyright is increasingly enforced
-through technology, copyright's force changes, too. Misuse is easier to
-find and easier to control. This regulation of the creative process, which
-began as a tiny regulation governing a tiny part of the market for
- creative
-work, has become the single most important regulator of
- creativity
-there is. It is a massive expansion in the scope of the government's
-control over innovation and creativity; it would be totally
- unrecognizable
-to those who gave birth to copyright's control.
+to control the use of content, and as copyright is increasingly
+enforced through technology, copyright's force changes, too. Misuse is
+easier to find and easier to control. This regulation of the creative
+process, which began as a tiny regulation governing a tiny part of the
+market for creative work, has become the single most important
+regulator of creativity there is. It is a massive expansion in the
+scope of the government's control over innovation and creativity; it
+would be totally unrecognizable to those who gave birth to copyright's
+control.
</para>
<para>
Still, in my view, all of these changes would not matter much if it
<para>
This is the change in the concentration and integration of the media.
In the past twenty years, the nature of media ownership has undergone
-a radical alteration, caused by changes in legal rules governing the
- media.
-Before this change happened, the different forms of media were
+a radical alteration, caused by changes in legal rules governing the
+media. Before this change happened, the different forms of media were
owned by separate media companies. Now, the media is increasingly
-owned by only a few companies. Indeed, after the changes that the
-FCC announced in June 2003, most expect that within a few years, we
-will live in a world where just three companies control more than
-percent of the media.
+owned by only a few companies. Indeed, after the changes that the FCC
+announced in June 2003, most expect that within a few years, we will
+live in a world where just three companies control more than percent
+of the media.
</para>
<para>
These changes are of two sorts: the scope of concentration, and its
nature.
</para>
+<indexterm><primary>BMG</primary></indexterm>
<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>
<!-- f25 -->
FCC Oversight: Hearing Before the Senate Commerce, Science and
-Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
- (statement
-of Senator John McCain).
-</para></footnote>
-The five recording labels of Universal Music Group, BMG, Sony
- Music
-Entertainment, Warner Music Group, and EMI control 84.8
- percent
-of the U.S. music market.<footnote><para>
+Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
+(statement of Senator John McCain). </para></footnote>
+The five recording labels of Universal Music Group, BMG, Sony Music
+Entertainment, Warner Music Group, and EMI control 84.8 percent of the
+U.S. music market.<footnote><para>
<!-- f26 -->
Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
Slide," New York Times, 23 December 2002.
The story with radio is even more dramatic. Before deregulation,
the nation's largest radio broadcasting conglomerate owned fewer than
<!-- PAGE BREAK 174 -->
-seventy-five stations. Today one company owns more than 1,200 stations.
-During that period of consolidation, the total number of radio owners
-dropped by 34 percent. Today, in most markets, the two largest
- broadcasters
-control 74 percent of that market's revenues. Overall, just four
-companies control 90 percent of the nation's radio advertising revenues.
+seventy-five stations. Today one company owns more than 1,200
+stations. During that period of consolidation, the total number of
+radio owners dropped by 34 percent. Today, in most markets, the two
+largest broadcasters control 74 percent of that market's
+revenues. Overall, just four companies control 90 percent of the
+nation's radio advertising revenues.
</para>
<para>
-Newspaper ownership is becoming more concentrated as well.
- Today,
-there are six hundred fewer daily newspapers in the United States
-than there were eighty years ago, and ten companies control half of the
+Newspaper ownership is becoming more concentrated as well. Today,
+there are six hundred fewer daily newspapers in the United States than
+there were eighty years ago, and ten companies control half of the
nation's circulation. There are twenty major newspaper publishers in
the United States. The top ten film studios receive 99 percent of all
-film revenue. The ten largest cable companies account for 85 percent of
-all cable revenue. This is a market far from the free press the framers
-sought to protect. Indeed, it is a market that is quite well protected--
-by the market.
+film revenue. The ten largest cable companies account for 85 percent
+of all cable revenue. This is a market far from the free press the
+framers sought to protect. Indeed, it is a market that is quite well
+protected— by the market.
</para>
<para>
Concentration in size alone is one thing. The more invidious
</para>
<blockquote>
<para>
-Murdoch's companies now constitute a production system
- unmatched
-in its integration. They supply content--Fox movies . . .
-Fox TV shows . . . Fox-controlled sports broadcasts, plus
- newspapers
-and books. They sell the content to the public and to
- advertisers--in
-newspapers, on the broadcast network, on the cable
-channels. And they operate the physical distribution system
-through which the content reaches the customers. Murdoch's
-satellite systems now distribute News Corp. content in Europe
-and Asia; if Murdoch becomes DirecTV's largest single owner,
-that system will serve the same function in the United States.<footnote><para>
+Murdoch's companies now constitute a production system
+unmatched in its integration. They supply content—Fox movies
+. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus
+newspapers and books. They sell the content to the public and to
+advertisers—in newspapers, on the broadcast network, on the
+cable channels. And they operate the physical distribution system
+through which the content reaches the customers. Murdoch's satellite
+systems now distribute News Corp. content in Europe and Asia; if
+Murdoch becomes DirecTV's largest single owner, that system will serve
+the same function in the United States.<footnote><para>
<!-- f28 -->
James Fallows, "The Age of Murdoch," Atlantic Monthly (September
2003): 89.
pattern better than a thousand words could do:
</para>
<figure id="fig-1761">
-<title></title>
-<graphic fileref="1761.jpg"></graphic>
+<title>Pattern of modern media ownership.</title>
+<graphic fileref="images/1761.png"></graphic>
</figure>
<para>
<!-- PAGE BREAK 175 -->
contrary, I am beginning to change my mind.
</para>
<para>
-Here's a representative story that begins to suggest how this
- integration
-may matter.
+Here's a representative story that begins to suggest how this
+integration may matter.
</para>
+<indexterm><primary>Lear, Norman</primary></indexterm>
<indexterm><primary>ABC</primary></indexterm>
+<indexterm><primary>All in the Family</primary></indexterm>
<para>
In 1969, Norman Lear created a pilot for All in the Family. He took
the pilot to ABC. The network didn't like it. It was too edgy, they told
producers;
that separation would guarantee Lear freedom. And as late as
1992, because of these rules, the vast majority of prime time
- television--75
-percent of it--was "independent" of the networks.
+ television—75
+percent of it—was "independent" of the networks.
</para>
<para>
In 1994, the FCC abandoned the rules that required this
Ibid.
</para></footnote>
</para>
+<indexterm><primary>All in the Family</primary></indexterm>
<para>
Today, another Norman Lear with another All in the Family would
find that he had the choice either to make the show less edgy or to be
wants to convey. This is not the communist party, though from the
inside,
it must feel a bit like the communist party. No one can question
-without risk of consequence--not necessarily banishment to Siberia,
+without risk of consequence—not necessarily banishment to Siberia,
but punishment nonetheless. Independent, critical, different views are
quashed. This is not the environment for a democracy.
</para>
+<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
Business School Press, 1997). Christensen acknowledges that the idea was
first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of
Design Hierarchies and Market Concepts in Technological Evolution,"
-Research Policy 14 (1985): 23551. For a more recent study, see Richard
+Research Policy 14 (1985): 235–51. For a more recent study, see Richard
Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are
-Built to Last Underperform the Market--and How to Successfully Transform
+Built to Last Underperform the Market—and How to Successfully Transform
Them (New York: Currency/Doubleday, 2001).
</para></footnote>
mistake. I am not pro drugs. Indeed, I come from a family once
<!-- PAGE BREAK 178 -->
-wrecked by drugs--though the drugs that wrecked my family were all
+wrecked by drugs—though the drugs that wrecked my family were all
quite legal. I believe this war is a profound mistake because the
collateral
damage from it is so great as to make waging the war insane.
see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial
Advertising
on Television and Radio," Yale Law and Policy Review 6 (1988):
-44979, and for a more recent summary of the stance of the FCC and the
+449–79, and for a more recent summary of the stance of the FCC and the
courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d
872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
the networks. In a recent example from San Francisco, the San Francisco
</para></footnote>
</para>
<para>
-I'd be happy to defend the networks' rights, as well--if we lived in
+I'd be happy to defend the networks' rights, as well—if we lived in
a media market that was truly diverse. But concentration in the media
throws that condition into doubt. If a handful of companies control
access
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 "property" has changed—
when we recognize how it might now interact with both technology
and markets to mean that the effective constraint on the liberty to
cultivate
-our culture is dramatically different--the claim begins to seem
+our culture is dramatically different—the claim begins to seem
<!-- PAGE BREAK 180 -->
less innocent and obvious. Given (1) the power of technology to
power. Not an adjustment that increases its term. Rather, an
adjustment
to restore the balance that has traditionally defined copyright's
-regulation--a weakening of that regulation, to strengthen creativity.
+regulation—a weakening of that regulation, to strengthen creativity.
</para>
<para>
Copyright law has not been a rock of Gibraltar. It's not a set of
independent
of the networks. Never has copyright protected such a wide
range of rights, against as broad a range of actors, for a term that was
-remotely as long. This form of regulation--a tiny regulation of a tiny
-part of the creative energy of a nation at the founding--is now a
+remotely as long. This form of regulation—a tiny regulation of a tiny
+part of the creative energy of a nation at the founding—is now a
massive
regulation of the overall creative process. Law plus technology plus
the market now interact to turn this historically benign regulation into
known.<footnote><para>
<!-- f35 -->
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
-copyright law in the digital age. See Vaidhyanathan, 15960.
+copyright law in the digital age. See Vaidhyanathan, 159–60.
</para></footnote>
</para>
<para>
</table>
<para>
-Derivative works were now regulated by copyright law--if
+Derivative works were now regulated by copyright law—if
published,
which again, given the economics of publishing at the time,
means if offered commercially. But noncommercial publishing and
<para>
Every realm is governed by copyright law, whereas before most
creativity
-was not. The law now regulates the full range of creativity--
+was not. The law now regulates the full range of creativity—
<!-- PAGE BREAK 183 -->
-commercial or not, transformative or not--with the same rules designed
+commercial or not, transformative or not—with the same rules designed
to regulate commercial publishers.
</para>
<para>
<para>
The doctor continues: "I think I may say with reasonable certainty
that in order to cure him completely, all that we need to do is a simple
-and easy surgical operation--namely, to remove these irritant bodies
+and easy surgical operation—namely, to remove these irritant bodies
[the eyes]."
</para>
<para>
with a chimera. For example, in the battle over the question "What is
p2p file sharing?" both sides have it right, and both sides have it wrong.
One side says, "File sharing is just like two kids taping each others'
-records--the sort of thing we've been doing for the last thirty years
+records—the sort of thing we've been doing for the last thirty years
without any question at all." That's true, at least in part. When I tell my
best friend to try out a new CD that I've bought, but rather than just
send the CD, I point him to my p2p server, that is, in all relevant
</para>
<para>
The point is not that it is as neither side describes. The point is that
-it is both--both as the RIAA describes it and as Kazaa describes it. It
+it is both—both as the RIAA describes it and as Kazaa describes it. It
is a chimera. And rather than simply denying what the other side
asserts,
we need to begin to think about how we should respond to this
<sect2 id="constrain">
<title>Constraining Creators</title>
<para>
-In the next ten years we will see an explosion of digital technologies.
-These technologies will enable almost anyone to capture and share
-content. Capturing and sharing content, of course, is what humans have
-done since the dawn of man. It is how we learn and communicate. But
-capturing and sharing through digital technology is different. The
- fidelity
-and power are different. You could send an e-mail telling
- someone
-about a joke you saw on Comedy Central, or you could send the
-clip. You could write an essay about the inconsistencies in the
- arguments
-of the politician you most love to hate, or you could make a short
-film that puts statement against statement. You could write a poem to
-express your love, or you could weave together a string--a mash-up--
-of songs from your favorite artists in a collage and make it available on
-the Net.
+In the next ten years we will see an explosion of digital
+technologies. These technologies will enable almost anyone to capture
+and share content. Capturing and sharing content, of course, is what
+humans have done since the dawn of man. It is how we learn and
+communicate. But capturing and sharing through digital technology is
+different. The fidelity and power are different. You could send an
+e-mail telling someone about a joke you saw on Comedy Central, or you
+could send the clip. You could write an essay about the
+inconsistencies in the arguments of the politician you most love to
+hate, or you could make a short film that puts statement against
+statement. You could write a poem to express your love, or you could
+weave together a string—a mash-up— of songs from your
+favorite artists in a collage and make it available on the Net.
</para>
<para>
This digital "capturing and sharing" is in part an extension of the
-capturing and sharing that has always been integral to our culture, and
-in part it is something new. It is continuous with the Kodak, but it
- explodes
-the boundaries of Kodak-like technologies. The technology of
-digital "capturing and sharing" promises a world of extraordinarily
- diverse
-creativity that can be easily and broadly shared. And as that
- creativity
-is applied to democracy, it will enable a broad range of citizens
-to use technology to express and criticize and contribute to the culture
-all around.
+capturing and sharing that has always been integral to our culture,
+and in part it is something new. It is continuous with the Kodak, but
+it explodes the boundaries of Kodak-like technologies. The technology
+of digital "capturing and sharing" promises a world of extraordinarily
+diverse creativity that can be easily and broadly shared. And as that
+creativity is applied to democracy, it will enable a broad range of
+citizens to use technology to express and criticize and contribute to
+the culture all around.
</para>
<para>
Technology has thus given us an opportunity to do something with
culture that has only ever been possible for individuals in small groups,
<!-- PAGE BREAK 194 -->
-isolated from others. Think about an old man telling a story to a
- collection
-of neighbors in a small town. Now imagine that same
- storytelling
-extended across the globe.
+
+isolated from others. Think about an old man telling a story to a
+collection of neighbors in a small town. Now imagine that same
+storytelling extended across the globe.
</para>
<para>
Yet all this is possible only if the activity is presumptively legal. In
work is presumptively illegal.
</para>
<para>
-That presumption will increasingly chill creativity, as the examples
-of extreme penalties for vague infringements continue to proliferate. It
-is impossible to get a clear sense of what's allowed and what's not, and at
-the same time, the penalties for crossing the line are astonishingly harsh.
-The four students who were threatened by the RIAA ( Jesse Jordan of
-chapter 3 was just one) were threatened with a $98 billion lawsuit for
-building search engines that permitted songs to be copied. Yet
- World-Com--which
-defrauded investors of $11 billion, resulting in a loss to
- investors
-in market capitalization of over $200 billion--received a fine of a
-mere $750 million.<footnote><para>
-<!-- f1. --> See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
- (Hoboken,
-N.J.: John Wiley & Sons, 2003), 176, 204; for details of the
- settlement,
-see MCI press release, "MCI Wins U.S. District Court Approval for
-SEC Settlement" (7 July 2003), available at
+That presumption will increasingly chill creativity, as the
+examples of extreme penalties for vague infringements continue to
+proliferate. It is impossible to get a clear sense of what's allowed
+and what's not, and at the same time, the penalties for crossing the
+line are astonishingly harsh. The four students who were threatened
+by the RIAA ( Jesse Jordan of chapter 3 was just one) were threatened
+with a $98 billion lawsuit for building search engines that permitted
+songs to be copied. Yet World-Com—which defrauded investors of
+$11 billion, resulting in a loss to investors in market capitalization
+of over $200 billion—received a fine of a mere $750
+million.<footnote><para>
+<!-- f1. -->
+See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
+(Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of
+the settlement, see MCI press release, "MCI Wins U.S. District Court
+Approval for SEC Settlement" (7 July 2003), available at
<ulink url="http://free-culture.cc/notes/">link #37</ulink>.
</para></footnote>
- And under legislation being pushed in Congress
-right now, a doctor who negligently removes the wrong leg in an
- operation
-would be liable for no more than $250,000 in damages for pain and
+And under legislation being pushed in Congress right now, a doctor who
+negligently removes the wrong leg in an operation would be liable for
+no more than $250,000 in damages for pain and
suffering.<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
and hence only those who can pay are allowed to create. As was the
case in the Soviet Union, though for very different reasons, we will
begin
-to see a world of underground art--not because the message is
+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
critical or reflective.
</para>
<para>
-Part of the reason for this fear of illegality has to do with the
- changing
-law. I described that change in detail in chapter 10. But an even
-bigger part has to do with the increasing ease with which infractions
-can be tracked. As users of file-sharing systems discovered in 2002, it
-is a trivial matter for copyright owners to get courts to order Internet
-service providers to reveal who has what content. It is as if your cassette
-tape player transmitted a list of the songs that you played in the privacy
-of your own home that anyone could tune into for whatever reason
-they chose.
+Part of the reason for this fear of illegality has to do with the
+changing law. I described that change in detail in chapter 10. But an
+even bigger part has to do with the increasing ease with which
+infractions can be tracked. As users of file-sharing systems
+discovered in 2002, it is a trivial matter for copyright owners to get
+courts to order Internet service providers to reveal who has what
+content. It is as if your cassette tape player transmitted a list of
+the songs that you played in the privacy of your own home that anyone
+could tune into for whatever reason they chose.
</para>
<para>
Never in our history has a painter had to worry about whether
<!-- PAGE BREAK 196 -->
But fair use in America simply means the right to hire a lawyer to
defend your right to create. And as lawyers love to forget, our system
-for defending rights such as fair use is astonishingly bad--in practically
-every context, but especially here. It costs too much, it delivers too
-slowly, and what it delivers often has little connection to the justice
- underlying
-the claim. The legal system may be tolerable for the very rich.
-For everyone else, it is an embarrassment to a tradition that prides
- itself
-on the rule of law.
-</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 should allow. But it is a measure of how out of touch our legal
-system has become that anyone actually believes this. The rules that
-publishers impose upon writers, the rules that film distributors impose
-upon filmmakers, the rules that newspapers impose upon journalists--
-these are the real laws governing creativity. And these rules have little
-relationship to the "law" with which judges comfort themselves.
-</para>
-<para>
-For in a world that threatens $150,000 for a single willful
- infringement
-of a copyright, and which demands tens of thousands of dollars to
-even defend against a copyright infringement claim, and which would
-never return to the wrongfully accused defendant anything of the costs
-she suffered to defend her right to speak--in that world, the
- astonishingly
-broad regulations that pass under the name "copyright" silence
-speech and creativity. And in that world, it takes a studied blindness for
-people to continue to believe they live in a culture that is free.
-</para>
-<para>
-As Jed Horovitz, the businessman behind Video Pipeline, said
-to me,
+for defending rights such as fair use is astonishingly bad—in
+practically every context, but especially here. It costs too much, it
+delivers too slowly, and what it delivers often has little connection
+to the justice underlying the claim. The legal system may be tolerable
+for the very rich. For everyone else, it is an embarrassment to a
+tradition that prides itself on the rule of law.
+</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
+should allow. But it is a measure of how out of touch our legal system
+has become that anyone actually believes this. The rules that
+publishers impose upon writers, the rules that film distributors
+impose upon filmmakers, the rules that newspapers impose upon
+journalists— these are the real laws governing creativity. And
+these rules have little relationship to the "law" with which judges
+comfort themselves.
+</para>
+<para>
+For in a world that threatens $150,000 for a single willful
+infringement of a copyright, and which demands tens of thousands of
+dollars to even defend against a copyright infringement claim, and
+which would never return to the wrongfully accused defendant anything
+of the costs she suffered to defend her right to speak—in that
+world, the astonishingly broad regulations that pass under the name
+"copyright" silence speech and creativity. And in that world, it takes
+a studied blindness for people to continue to believe they live in a
+culture that is free.
+</para>
+<para>
+As Jed Horovitz, the businessman behind Video Pipeline, said to me,
</para>
<blockquote>
<para>
-We're losing [creative] opportunities right and left. Creative
-people are being forced not to express themselves. Thoughts are
-not being expressed. And while a lot of stuff may [still] be created,
-it still won't get distributed. Even if the stuff gets made . . . you're
-not going to get it distributed in the mainstream media unless
+We're losing [creative] opportunities right and left. Creative people
+are being forced not to express themselves. Thoughts are not being
+expressed. And while a lot of stuff may [still] be created, it still
+won't get distributed. Even if the stuff gets made . . . you're not
+going to get it distributed in the mainstream media unless
<!-- 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 permission. That's the point at which they control it.
+cleared." You're not even going to get it on PBS without that kind of
+permission. That's the point at which they control it.
</para>
</blockquote>
</sect2>
<sect2 id="innovators">
<title>Constraining Innovators</title>
<para>
-The story of the last section was a crunchy-lefty story--creativity
-quashed, artists who can't speak, yada yada yada. Maybe that doesn't
-get you going. Maybe you think there's enough weird art out there, and
-enough expression that is critical of what seems to be just about
- everything.
-And if you think that, you might think there's little in this story
-to worry you.
+The story of the last section was a crunchy-lefty
+story—creativity quashed, artists who can't speak, yada yada
+yada. Maybe that doesn't get you going. Maybe you think there's enough
+weird art out there, and enough expression that is critical of what
+seems to be just about everything. And if you think that, you might
+think there's little in this story to worry you.
</para>
<para>
-But there's an aspect of this story that is not lefty in any sense.
- Indeed,
-it is an aspect that could be written by the most extreme
- promarket
-ideologue. And if you're one of these sorts (and a special one at
-that, 188 pages into a book like this), then you can see this other aspect
-by substituting "free market" every place I've spoken of "free culture."
-The point is the same, even if the interests affecting culture are more
-fundamental.
+But there's an aspect of this story that is not lefty in any sense.
+Indeed, it is an aspect that could be written by the most extreme
+promarket ideologue. And if you're one of these sorts (and a special
+one at that, 188 pages into a book like this), then you can see this
+other aspect by substituting "free market" every place I've spoken of
+"free culture." The point is the same, even if the interests
+affecting culture are more fundamental.
</para>
<para>
The charge I've been making about the regulation of culture is the
-same charge free marketers make about regulating markets. Everyone,
-of course, concedes that some regulation of markets is necessary--at a
-minimum, we need rules of property and contract, and courts to
- enforce
-both. Likewise, in this culture debate, everyone concedes that at
-least some framework of copyright is also required. But both
- perspectives
-vehemently insist that just because some regulation is good, it
-doesn't follow that more regulation is better. And both perspectives are
-constantly attuned to the ways in which regulation simply enables the
-powerful industries of today to protect themselves against the
- competitors
-of tomorrow.
-</para>
+same charge free marketers make about regulating markets. Everyone, of
+course, concedes that some regulation of markets is necessary—at
+a minimum, we need rules of property and contract, and courts to
+enforce both. Likewise, in this culture debate, everyone concedes that
+at least some framework of copyright is also required. But both
+perspectives vehemently insist that just because some regulation is
+good, it doesn't follow that more regulation is better. And both
+perspectives are constantly attuned to the ways in which regulation
+simply enables the powerful industries of today to protect themselves
+against the competitors of tomorrow.
+</para>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
strategy that I described in chapter 10. The consequence of this
- massive
-threat of liability tied to the murky boundaries of copyright law is
-that innovators who want to innovate in this space can safely innovate
-only if they have the sign-off from last generation's dominant
- industries.
-That lesson has been taught through a series of cases that were
-designed and executed to teach venture capitalists a lesson. That
- lesson--what
-former Napster CEO Hank Barry calls a "nuclear pall" that
-has fallen over the Valley--has been learned.
+massive threat of liability tied to the murky boundaries of copyright
+law is that innovators who want to innovate in this space can safely
+innovate only if they have the sign-off from last generation's
+dominant industries. That lesson has been taught through a series of
+cases that were designed and executed to teach venture capitalists a
+lesson. That lesson—what former Napster CEO Hank Barry calls a
+"nuclear pall" that has fallen over the Valley—has been learned.
</para>
<para>
Consider one example to make the point, a story whose beginning
even I (pessimist extraordinaire) would never have predicted.
</para>
<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 facilitate new ways to get access to content. Their goal was also
-to facilitate new ways to create content. Unlike the major labels,
-MP3.com offered creators a venue to distribute their creativity,
- without
-demanding an exclusive engagement from the creators.
+In 1997, Michael Roberts launched a company called MP3.com. MP3.com
+was keen to remake the music business. Their goal was not just to
+facilitate new ways to get access to content. Their goal was also to
+facilitate new ways to create content. Unlike the major labels,
+MP3.com offered creators a venue to distribute their creativity,
+without demanding an exclusive engagement from the creators.
</para>
<para>
-To make this system work, however, MP3.com needed a reliable
-way to recommend music to its users. The idea behind this alternative
-was to leverage the revealed preferences of music listeners to
- recommend
-new artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
+To make this system work, however, MP3.com needed a reliable way to
+recommend music to its users. The idea behind this alternative was to
+leverage the revealed preferences of music listeners to recommend new
+artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
Raitt. And so on.
</para>
<para>
-This idea required a simple way to gather data about user
- preferences.
-MP3.com came up with an extraordinarily clever way to gather
-this preference data. In January 2000, the company launched a service
+This idea required a simple way to gather data about user preferences.
+MP3.com came up with an extraordinarily clever way to gather this
+preference data. In January 2000, the company launched a service
called my.mp3.com. Using software provided by MP3.com, a user would
-sign into an account and then insert into her computer a CD. The
- software
-would identify the CD, and then give the user access to that
- content.
-So, for example, if you inserted a CD by Jill Sobule, then
-wherever you were--at work or at home--you could get access to that
-music once you signed into your account. The system was therefore a
-kind of music-lockbox.
+sign into an account and then insert into her computer a CD. The
+software would identify the CD, and then give the user access to that
+content. So, for example, if you inserted a CD by Jill Sobule, then
+wherever you were—at work or at home—you could get access
+to that music once you signed into your account. The system was
+therefore a kind of music-lockbox.
</para>
<para>
No doubt some could use this system to illegally copy content. But
the kind of content the users liked.
</para>
<para>
-To make this system function, however, MP3.com needed to copy
-50,000 CDs to a server. (In principle, it could have been the user who
-uploaded the music, but that would have taken a great deal of time, and
-would have produced a product of questionable quality.) It therefore
-purchased 50,000 CDs from a store, and started the process of making
-copies of those CDs. Again, it would not serve the content from those
-copies to anyone except those who authenticated that they had a copy
-of the CD they wanted to access. So while this was 50,000 copies, it
-was 50,000 copies directed at giving customers something they had
- already
-bought.
+To make this system function, however, MP3.com needed to copy 50,000
+CDs to a server. (In principle, it could have been the user who
+uploaded the music, but that would have taken a great deal of time,
+and would have produced a product of questionable quality.) It
+therefore purchased 50,000 CDs from a store, and started the process
+of making copies of those CDs. Again, it would not serve the content
+from those copies to anyone except those who authenticated that they
+had a copy of the CD they wanted to access. So while this was 50,000
+copies, it was 50,000 copies directed at giving customers something
+they had already bought.
</para>
<para>
Nine days after MP3.com launched its service, the five major labels,
-headed by the RIAA, brought a lawsuit against MP3.com. MP3.com
-settled with four of the five. Nine months later, a federal judge found
+headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
+with four of the five. Nine months later, a federal judge found
MP3.com to have been guilty of willful infringement with respect to
the fifth. Applying the law as it is, the judge imposed a fine against
MP3.com of $118 million. MP3.com then settled with the remaining
-plaintiff, Vivendi Universal, paying over $54 million. Vivendi
- purchased
-MP3.com just about a year later.
+plaintiff, Vivendi Universal, paying over $54 million. Vivendi
+purchased MP3.com just about a year later.
</para>
<para>
That part of the story I have told before. Now consider its conclusion.
</para>
<para>
-After Vivendi purchased MP3.com, Vivendi turned around and
-filed a malpractice lawsuit against the lawyers who had advised it that
-they had a good faith claim that the service they wanted to offer would
-be considered legal under copyright law. This lawsuit alleged that it
-should have been obvious that the courts would find this behavior
- illegal;
-therefore, this lawsuit sought to punish any lawyer who had dared
-to suggest that the law was less restrictive than the labels demanded.
+After Vivendi purchased MP3.com, Vivendi turned around and filed a
+malpractice lawsuit against the lawyers who had advised it that they
+had a good faith claim that the service they wanted to offer would be
+considered legal under copyright law. This lawsuit alleged that it
+should have been obvious that the courts would find this behavior
+illegal; therefore, this lawsuit sought to punish any lawyer who had
+dared to suggest that the law was less restrictive than the labels
+demanded.
</para>
<para>
-The clear purpose of this lawsuit (which was settled for an
- unspecified
-amount shortly after the story was no longer covered in the press)
-was to send an unequivocal message to lawyers advising clients in this
+The clear purpose of this lawsuit (which was settled for an
+unspecified amount shortly after the story was no longer covered in
+the press) was to send an unequivocal message to lawyers advising
+clients in this
<!-- PAGE BREAK 200 -->
space: It is not just your clients who might suffer if the content
- industry
-directs its guns against them. It is also you. So those of you who
- believe
-the law should be less restrictive should realize that such a view of
-the law will cost you and your firm dearly.
+industry directs its guns against them. It is also you. So those of
+you who believe the law should be less restrictive should realize that
+such a view of the law will cost you and your firm dearly.
</para>
+<indexterm><primary>Hummer, John</primary></indexterm>
+<indexterm><primary>Barry, Hank</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
2.0, Rafe Needleman describes a discussion with BMW:
</para>
<blockquote>
+<indexterm><primary>BMW</primary></indexterm>
<para>
I asked why, with all the storage capacity and computer power in
the car, there was no way to play MP3 files. I was told that BMW
engineers in Germany had rigged a new vehicle to play MP3s via
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
- forward
-for release stateside. Even today, no new cars are sold in the
-United States with bona fide MP3 players. . . . <footnote><para>
-<!-- f5. --> Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+forward for release stateside. Even today, no new cars are sold in the
+United States with bona fide MP3 players. . . . <footnote>
+<indexterm><primary>Needleman, Rafe</primary></indexterm>
+<para>
+<!-- f5. -->
+Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
2003, available at
-<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli
-for this example.
+<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful
+to Dr. Mohammad Al-Ubaydli for this example.
</para></footnote>
</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 that the
-law empowers copyright holders to exercise. It is a system that will
- obviously
-and necessarily stifle new innovation. It is hard enough to start
-a company. It is impossibly hard if that company is constantly
- threatened
-by litigation.
+This is the world of the mafia—filled with "your money or your
+life" offers, governed in the end not by courts but by the threats
+that the law empowers copyright holders to exercise. It is a system
+that will obviously and necessarily stifle new innovation. It is hard
+enough to start a company. It is impossibly hard if that company is
+constantly threatened by litigation.
</para>
<para>
The building of a permission culture, rather than a free culture, is
the first important way in which the changes I have described will
burden
-innovation. A permission culture means a lawyer's culture--a
+innovation. A permission culture means a lawyer's culture—a
culture
in which the ability to create requires a call to your lawyer. Again,
I am not antilawyer, at least when they're kept in their proper place. I
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
the Berkman Center for Internet and Society at Harvard Law School
-(2003), 3335, available at
+(2003), 33–35, available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
</para></footnote>
for technology they might deploy that would hunt down copyright
violators
and disable their machines.<footnote><para>
-<!-- f7. --> GartnerG2, 2627.
+<!-- f7. --> GartnerG2, 26–27.
</para></footnote>
</para>
</para>
<para>
There is one more obvious way in which this war has harmed
- innovation--again,
+ innovation—again,
a story that will be quite familiar to the free market
crowd.
</para>
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, 3334, available at
+World," 27 June 2003, 33–34, available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
</para></footnote>
But there is one
As I described in chapter 4, when a radio station plays a song, the
recording artist doesn't get paid for that "radio performance" unless he
or she is also the composer. So, for example if Marilyn Monroe had
-recorded a version of "Happy Birthday"--to memorialize her famous
-performance before President Kennedy at Madison Square Garden--
+recorded a version of "Happy Birthday"—to memorialize her famous
+performance before President Kennedy at Madison Square Garden—
then whenever that recording was played on the radio, the current
copyright
owners of "Happy Birthday" would get some money, whereas
</para>
</blockquote>
<para>
-This potential for FM radio was never realized--not because
+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>
hypothetical
Marilyn Monroe when it plays her hypothetical recording of
"Happy Birthday" on the air, Internet radio does. Not only is the law not
-neutral toward Internet radio--the law actually burdens Internet radio
+neutral toward Internet radio—the law actually burdens Internet radio
more than it burdens terrestrial radio.
</para>
<para>
This financial burden is not slight. As Harvard law professor
-William Fisher estimates, if an Internet radio station distributed
- adfree
+William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
over $1 million a year.<footnote><para>
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>
<para>
-In a rare bit of candor, one RIAA expert admitted what seemed
- obvious
+In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
Policy at Real Networks, told me,
</para>
led Jordan to choose to pay all the money he had in the world
($12,000) to make the suit go away. The same strategy animates the
RIAA's suits against individual users. In September 2003, the RIAA
-sued 261 individuals--including a twelve-year-old girl living in public
+sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
was.<footnote><para>
-<!-- f16. --> Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
+<!-- f16. -->
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
Angeles Times, 10 September 2003, Business.
</para></footnote>
- As these scapegoats discovered, it will always cost more to
- defend
+As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
year old, for example, like Jesse Jordan, paid her life savings of $2,000
to settle the case.) Our law is an awful system for defending rights. It
</para>
<para>
Wars of prohibition are nothing new in America. This one is just
-something more extreme than anything we've seen before. We
- experimented
-with alcohol prohibition, at a time when the per capita
- consumption
-of alcohol was 1.5 gallons per capita per year. The war against
-drinking initially reduced that consumption to just 30 percent of its
-preprohibition levels, but by the end of prohibition, consumption was
-up to 70 percent of the preprohibition level. Americans were drinking
-just about as much, but now, a vast number were criminals.<footnote><para>
-<!-- f17. --> Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
- Prohibition,"
-American Economic Review 81, no. 2 (1991): 242.
-</para></footnote>
- We have
-
+something more extreme than anything we've seen before. We
+experimented with alcohol prohibition, at a time when the per capita
+consumption of alcohol was 1.5 gallons per capita per year. The war
+against drinking initially reduced that consumption to just 30 percent
+of its preprohibition levels, but by the end of prohibition,
+consumption was up to 70 percent of the preprohibition
+level. Americans were drinking just about as much, but now, a vast
+number were criminals.<footnote><para>
+<!-- f17. -->
+Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
+Prohibition," American Economic Review 81, no. 2 (1991): 242.
+</para></footnote>
+We have
<!-- PAGE BREAK 210 -->
-launched a war on drugs aimed at reducing the consumption of
- regulated
+launched a war on drugs aimed at reducing the consumption of regulated
narcotics that 7 percent (or 16 million) Americans now use.<footnote><para>
-<!-- f18. --> National Drug Control Policy: Hearing Before the House Government
+<!-- f18. -->
+National Drug Control Policy: Hearing Before the House Government
Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
John P. Walters, director of National Drug Control Policy).
</para></footnote>
-
-That is a drop from the high (so to speak) in 1979 of 14 percent of the
-population. We regulate automobiles to the point where the vast
- majority
-of Americans violate the law every day. We run such a complex
-tax system that a majority of cash businesses regularly cheat.<footnote><para>
-<!-- f19. --> See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
- Compliance,"
-Journal of Economic Literature 36 (1998): 818 (survey of compliance
-literature).
+That is a drop from the high (so to speak) in 1979 of 14 percent of
+the population. We regulate automobiles to the point where the vast
+majority of Americans violate the law every day. We run such a complex
+tax system that a majority of cash businesses regularly
+cheat.<footnote><para>
+<!-- f19. -->
+See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
+Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+compliance literature).
</para></footnote>
- We
-pride ourselves on our "free society," but an endless array of ordinary
-behavior is regulated within our society. And as a result, a huge
- proportion
-of Americans regularly violate at least some law.
+We pride ourselves on our "free society," but an endless array of
+ordinary behavior is regulated within our society. And as a result, a
+huge proportion of Americans regularly violate at least some law.
</para>
<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 Nesson told
-a class at Stanford, each year law schools admit thousands of students
-who have illegally downloaded music, illegally consumed alcohol and
-sometimes drugs, illegally worked without paying taxes, illegally driven
-cars. These are kids for whom behaving illegally is increasingly the
-norm. And then we, as law professors, are supposed to teach them how
-to behave ethically--how to say no to bribes, or keep client funds
- separate,
-or honor a demand to disclose a document that will mean that
-your case is over. Generations of Americans--more significantly in
-some parts of America than in others, but still, everywhere in America
-today--can't live their lives both normally and legally, since "normally"
-entails a certain degree of illegality.
+salient issue for teachers like me, whose job it is to teach law
+students about the importance of "ethics." As my colleague Charlie
+Nesson told a class at Stanford, each year law schools admit thousands
+of students who have illegally downloaded music, illegally consumed
+alcohol and sometimes drugs, illegally worked without paying taxes,
+illegally driven cars. These are kids for whom behaving illegally is
+increasingly the norm. And then we, as law professors, are supposed to
+teach them how to behave ethically—how to say no to bribes, or
+keep client funds separate, or honor a demand to disclose a document
+that will mean that your case is over. Generations of
+Americans—more significantly in some parts of America than in
+others, but still, everywhere in America today—can't live their
+lives both normally and legally, since "normally" entails a certain
+degree of illegality.
</para>
<para>
The response to this general illegality is either to enforce the law
-more severely or to change the law. We, as a society, have to learn how
-to make that choice more rationally. Whether a law makes sense
- depends,
-in part, at least, upon whether the costs of the law, both
- intended
-and collateral, outweigh the benefits. If the costs, intended and
-collateral, do outweigh the benefits, then the law ought to be changed.
-Alternatively, if the costs of the existing system are much greater than
-the costs of an alternative, then we have a good reason to consider the
-alternative.
+more severely or to change the law. We, as a society, have to learn
+how to make that choice more rationally. Whether a law makes sense
+depends, in part, at least, upon whether the costs of the law, both
+intended and collateral, outweigh the benefits. If the costs, intended
+and collateral, do outweigh the benefits, then the law ought to be
+changed. Alternatively, if the costs of the existing system are much
+greater than the costs of an alternative, then we have a good reason
+to consider the alternative.
</para>
<para>
week. A society is right to ban murder always and everywhere.
</para>
<para>
-My point is instead one that democracies understood for
- generations,
-but that we recently have learned to forget. The rule of law
-depends upon people obeying the law. The more often, and more
- repeatedly,
-we as citizens experience violating the law, the less we respect
-the law. Obviously, in most cases, the important issue is the law, not
-respect for the law. I don't care whether the rapist respects the law or
-not; I want to catch and incarcerate the rapist. But I do care whether
-my students respect the law. And I do care if the rules of law sow
- increasing
-disrespect because of the extreme of regulation they impose.
-Twenty million Americans have come of age since the Internet
- introduced
-this different idea of "sharing." We need to be able to call these
-twenty million Americans "citizens," not "felons."
-</para>
-<para>
-When at least forty-three million citizens download content from
-the Internet, and when they use tools to combine that content in ways
-unauthorized by copyright holders, the first question we should be
- asking
-is not how best to involve the FBI. The first question should be
-whether this particular prohibition is really necessary in order to achieve
-the proper ends that copyright law serves. Is there another way to
-assure that artists get paid without transforming forty-three million
-Americans into felons? Does it make sense if there are other ways to
-assure that artists get paid without transforming America into a nation
-of felons?
+My point is instead one that democracies understood for generations,
+but that we recently have learned to forget. The rule of law depends
+upon people obeying the law. The more often, and more repeatedly, we
+as citizens experience violating the law, the less we respect the
+law. Obviously, in most cases, the important issue is the law, not
+respect for the law. I don't care whether the rapist respects the law
+or not; I want to catch and incarcerate the rapist. But I do care
+whether my students respect the law. And I do care if the rules of law
+sow increasing disrespect because of the extreme of regulation they
+impose. Twenty million Americans have come of age since the Internet
+introduced this different idea of "sharing." We need to be able to
+call these twenty million Americans "citizens," not "felons."
+</para>
+<para>
+When at least forty-three million citizens download content from the
+Internet, and when they use tools to combine that content in ways
+unauthorized by copyright holders, the first question we should be
+asking is not how best to involve the FBI. The first question should
+be whether this particular prohibition is really necessary in order to
+achieve the proper ends that copyright law serves. Is there another
+way to assure that artists get paid without transforming forty-three
+million Americans into felons? Does it make sense if there are other
+ways to assure that artists get paid without transforming America into
+a nation of felons?
</para>
<para>
This abstract point can be made more clear with a particular example.
</para>
<para>
-We all own CDs. Many of us still own phonograph records. These
-pieces of plastic encode music that in a certain sense we have bought.
-The law protects our right to buy and sell that plastic: It is not a
- copyright
-infringement for me to sell all my classical records at a used
+We all own CDs. Many of us still own phonograph records. These pieces
+of plastic encode music that in a certain sense we have bought. The
+law protects our right to buy and sell that plastic: It is not a
+copyright infringement for me to sell all my classical records at a
+used
<!-- PAGE BREAK 212 -->
record store and buy jazz records to replace them. That "use" of the
phonograph records that is effectively free. Because these recordings
were made without copy-protection technologies, I am "free" to copy,
or "rip," music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that "freedom" was a right:
-In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
- capacities
-of digital technologies.
+Apple Corporation went so far as to suggest that "freedom" was a
+right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+capacities of digital technologies.
</para>
+<indexterm><primary>Adromeda</primary></indexterm>
<para>
This "use" of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
-them in one archive. Then, using Apple's iTunes, or a wonderful
- program
-called Andromeda, we can build different play lists of our music:
-Bach, Baroque, Love Songs, Love Songs of Significant Others--the
-potential is endless. And by reducing the costs of mixing play lists,
-these technologies help build a creativity with play lists that is itself
- independently
-valuable. Compilations of songs are creative and
- meaningful
-in their own right.
-</para>
-<para>
-This use is enabled by unprotected media--either CDs or records.
+them in one archive. Then, using Apple's iTunes, or a wonderful
+program called Andromeda, we can build different play lists of our
+music: Bach, Baroque, Love Songs, Love Songs of Significant
+Others—the potential is endless. And by reducing the costs of
+mixing play lists, these technologies help build a creativity with
+play lists that is itself independently valuable. Compilations of
+songs are creative and meaningful in their own right.
+</para>
+<para>
+This use is enabled by unprotected media—either CDs or records.
But unprotected media also enable file sharing. File sharing threatens
-(or so the content industry believes) the ability of creators to earn a fair
-return from their creativity. And thus, many are beginning to
- experiment
-with technologies to eliminate unprotected media. These
- technologies,
-for example, would enable CDs that could not be ripped. Or
-they might enable spy programs to identify ripped content on people's
-machines.
+(or so the content industry believes) the ability of creators to earn
+a fair return from their creativity. And thus, many are beginning to
+experiment with technologies to eliminate unprotected media. These
+technologies, for example, would enable CDs that could not be
+ripped. Or they might enable spy programs to identify ripped content
+on people's machines.
</para>
<para>
If these technologies took off, then the building of large archives of
-your own music would become quite difficult. You might hang in
-hacker circles, and get technology to disable the technologies that
- protect
+your own music would become quite difficult. You might hang in hacker
+circles, and get technology to disable the technologies that protect
the content. Trading in those technologies is illegal, but maybe that
doesn't bother you much. In any case, for the vast majority of people,
these protection technologies would effectively destroy the archiving
<!-- 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 "digital rights
+management" system.
</para>
<para>
If the only way to assure that artists get paid were the elimination
-of the ability to freely move content, then these technologies to
- interfere
-with the freedom to move content would be justifiable. But what
-if there were another way to assure that artists are paid, without
- locking
-down any content? What if, in other words, a different system
-could assure compensation to artists while also preserving the freedom
-to move content easily?
-</para>
-<para>
-My point just now is not to prove that there is such a system. I
- offer
-a version of such a system in the last chapter of this book. For now,
-the only point is the relatively uncontroversial one: If a different system
-achieved the same legitimate objectives that the existing copyright
- system
-achieved, but left consumers and creators much more free, then
-we'd have a very good reason to pursue this alternative--namely,
- freedom.
-The choice, in other words, would not be between property and
-piracy; the choice would be between different property systems and the
-freedoms each allowed.
+of the ability to freely move content, then these technologies to
+interfere with the freedom to move content would be justifiable. But
+what if there were another way to assure that artists are paid,
+without locking down any content? What if, in other words, a different
+system could assure compensation to artists while also preserving the
+freedom to move content easily?
</para>
<para>
-I believe there is a way to assure that artists are paid without
- turning
-forty-three million Americans into felons. But the salient feature
-of this alternative is that it would lead to a very different market for
-producing and distributing creativity. The dominant few, who today
-control the vast majority of the distribution of content in the world,
-would no longer exercise this extreme of control. Rather, they would go
-the way of the horse-drawn buggy.
-</para>
-<para>
-Except that this generation's buggy manufacturers have already
-saddled Congress, and are riding the law to protect themselves against
-this new form of competition. For them the choice is between
- fortythree
+My point just now is not to prove that there is such a system. I offer
+a version of such a system in the last chapter of this book. For now,
+the only point is the relatively uncontroversial one: If a different
+system achieved the same legitimate objectives that the existing
+copyright system achieved, but left consumers and creators much more
+free, then we'd have a very good reason to pursue this
+alternative—namely, freedom. The choice, in other words, would
+not be between property and piracy; the choice would be between
+different property systems and the freedoms each allowed.
+</para>
+<para>
+I believe there is a way to assure that artists are paid without
+turning forty-three million Americans into felons. But the salient
+feature of this alternative is that it would lead to a very different
+market for producing and distributing creativity. The dominant few,
+who today control the vast majority of the distribution of content in
+the world, would no longer exercise this extreme of control. Rather,
+they would go the way of the horse-drawn buggy.
+</para>
+<para>
+Except that this generation's buggy manufacturers have already saddled
+Congress, and are riding the law to protect themselves against this
+new form of competition. For them the choice is between fortythree
million Americans as criminals and their own survival.
</para>
<para>
-It is understandable why they choose as they do. It is not
- understandable
-why we as a democracy continue to choose as we do. Jack
+It is understandable why they choose as they do. It is not
+understandable why we as a democracy continue to choose as we do. Jack
<!-- PAGE BREAK 214 -->
-Valenti is charming; but not so charming as to justify giving up a
- tradition
-as deep and important as our tradition of free culture.
-There's one more aspect to this corruption that is particularly
- important
-to civil liberties, and follows directly from any war of
- prohibition.
-As Electronic Frontier Foundation attorney Fred von Lohmann
-describes, this is the "collateral damage" that "arises whenever you turn
-a very large percentage of the population into criminals." This is the
-collateral damage to civil liberties generally.
+
+Valenti is charming; but not so charming as to justify giving up a
+tradition as deep and important as our tradition of free culture.
+There's one more aspect to this corruption that is particularly
+important to civil liberties, and follows directly from any war of
+prohibition. As Electronic Frontier Foundation attorney Fred von
+Lohmann describes, this is the "collateral damage" that "arises
+whenever you turn a very large percentage of the population into
+criminals." This is the collateral damage to civil liberties
+generally.
</para>
<para>
"If you can treat someone as a putative lawbreaker," von Lohmann
</para>
<blockquote>
<para>
-then all of a sudden a lot of basic civil liberty protections
- evaporate
-to one degree or another. . . . If you're a copyright infringer,
-how can you hope to have any privacy rights? If you're a copyright
-infringer, how can you hope to be secure against seizures of your
-computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh,
-well, but that person's a criminal, a lawbreaker." Well, what this
-campaign against file sharing has done is turn a remarkable
- percentage
-of the American Internet-using population into
- "lawbreakers."
+then all of a sudden a lot of basic civil liberty protections
+evaporate to one degree or another. . . . If you're a copyright
+infringer, how can you hope to have any privacy rights? If you're a
+copyright infringer, how can you hope to be secure against seizures of
+your computer? How can you hope to continue to receive Internet
+access? . . . Our sensibilities change as soon as we think, "Oh, well,
+but that person's a criminal, a lawbreaker." Well, what this campaign
+against file sharing has done is turn a remarkable percentage of the
+American Internet-using population into "lawbreakers."
</para>
</blockquote>
<para>
effectively erase much of the privacy most would presume.
</para>
<para>
-Users of the Internet began to see this generally in 2003 as the
-RIAA launched its campaign to force Internet service providers to turn
-over the names of customers who the RIAA believed were violating
-copyright law. Verizon fought that demand and lost. With a simple
- request
-to a judge, and without any notice to the customer at all, the
-identity of an Internet user is revealed.
+Users of the Internet began to see this generally in 2003 as the RIAA
+launched its campaign to force Internet service providers to turn over
+the names of customers who the RIAA believed were violating copyright
+law. Verizon fought that demand and lost. With a simple request to a
+judge, and without any notice to the customer at all, the identity of
+an Internet user is revealed.
</para>
<para>
-
<!-- PAGE BREAK 215 -->
-The RIAA then expanded this campaign, by announcing a general
-strategy to sue individual users of the Internet who are alleged to have
+The RIAA then expanded this campaign, by announcing a general strategy
+to sue individual users of the Internet who are alleged to have
downloaded copyrighted music from file-sharing systems. But as we've
-seen, the potential damages from these suits are astronomical: If a
- family's
-computer is used to download a single CD's worth of music, the
-family could be liable for $2 million in damages. That didn't stop the
-RIAA from suing a number of these families, just as they had sued
+seen, the potential damages from these suits are astronomical: If a
+family's computer is used to download a single CD's worth of music,
+the family could be liable for $2 million in damages. That didn't stop
+the RIAA from suing a number of these families, just as they had sued
Jesse Jordan.<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,"
- Washington
-Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents Pull
-Plug on File `Stealing'; With the Music Industry Cracking Down on File
-Swapping, Parents are Yanking Software from Home PCs to Avoid Being
-Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham,
-"Recording Industry Sues Parents," USA Today, 15 September 2003, 4D;
-John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either,"
-New York Times, 25 September 2003, C1; Margo Varadi, "Is Brianna a
-Criminal?" Toronto Star, 18 September 2003, P7.
+<!-- f20. -->
+See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
+Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
+File Swapping, Parents are Yanking Software from Home PCs to Avoid
+Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," USA Today, 15 September
+2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
+Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
</para></footnote>
</para>
Even this understates the espionage that is being waged by the
RIAA. A report from CNN late last summer described a strategy the
RIAA had adopted to track Napster users.<footnote><para>
-<!-- f21. --> See "Revealed: How RIAA Tracks Downloaders: Music Industry
- Discloses
-Some Methods Used," CNN.com, available at
+<!-- f21. -->
+See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used," CNN.com, available at
<ulink url="http://free-culture.cc/notes/">link #47</ulink>.
</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."
-</para>
-<para>
-So imagine the following not-implausible scenario: Imagine a
-friend gives a CD to your daughter--a collection of songs just like the
-cassettes you used to make as a kid. You don't know, and neither does
-your daughter, where these songs came from. But she copies these
-songs onto her computer. She then takes her computer to college and
-connects it to a college network, and if the college network is
- "cooperating"
-with the RIAA's espionage, and she hasn't properly protected
-her content from the network (do you know how to do that yourself ?),
-then the RIAA will be able to identify your daughter as a "criminal."
-And under the rules that universities are beginning to deploy,<footnote><para>
-<!-- f22. --> See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," Boston
-Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued
-over Music Sites; Industry Group Targets File Sharing at Colleges,"
- Washington
-Post, 4 April 2003, E1; Elizabeth Armstrong, "Students `Rip, Mix,
-Burn' at Their Own Risk," Christian Science Monitor, 2 September 2003,
-20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to
- Loyola;
-Two Students Names Are Handed Over; Lawsuit Possible," Chicago
-Tribune, 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on
-Universities," Internet News, 30 January 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #48</ulink>; Benny
-Evangelista, "Download Warning 101: Freshman Orientation This Fall to
-Include Record Industry Warnings Against File Sharing," San Francisco
-Chronicle, 11 August 2003, E11; "Raid, Letters Are Weapons at
- Universities,"
-USA Today, 26 September 2000, 3D.
-</para></footnote>
- your
-daughter can lose the right to use the university's computer network.
-She can, in some cases, be expelled.
+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."
+</para>
+<para>
+So imagine the following not-implausible scenario: Imagine a
+friend gives a CD to your daughter—a collection of songs just
+like the cassettes you used to make as a kid. You don't know, and
+neither does your daughter, where these songs came from. But she
+copies these songs onto her computer. She then takes her computer to
+college and connects it to a college network, and if the college
+network is "cooperating" with the RIAA's espionage, and she hasn't
+properly protected her content from the network (do you know how to do
+that yourself ?), then the RIAA will be able to identify your daughter
+as a "criminal." And under the rules that universities are beginning
+to deploy,<footnote><para>
+<!-- f22. -->
+See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
+Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+Students Sued over Music Sites; Industry Group Targets File Sharing at
+Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
+Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
+Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," Internet News, 30 January
+2003, available at <ulink url="http://free-culture.cc/notes/">link
+#48</ulink>; Benny Evangelista, "Download Warning 101: Freshman
+Orientation This Fall to Include Record Industry Warnings Against File
+Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," USA Today, 26 September 2000, 3D.
+</para></footnote>
+your daughter can lose the right to use the university's computer
+network. She can, in some cases, be expelled.
</para>
<para>
Now, of course, she'll have the right to defend herself. You can hire
-a lawyer for her (at $300 per hour, if you're lucky), and she can plead
-that she didn't know anything about the source of the songs or that
-they came from Napster. And it may well be that the university believes
-her. But the university might not believe her. It might treat this
- "contraband"
-as presumptive of guilt. And as any number of college students
+a lawyer for her (at $300 per hour, if you're lucky), and she can
+plead that she didn't know anything about the source of the songs or
+that they came from Napster. And it may well be that the university
+believes her. But the university might not believe her. It might treat
+this "contraband" as presumptive of guilt. And as any number of
+college students
<!-- PAGE BREAK 216 -->
have already learned, our presumptions about innocence disappear in
So when we're talking about numbers like forty to sixty million
Americans that are essentially copyright infringers, you create a
situation where the civil liberties of those people are very much in
-peril in a general matter. [I don't] think [there is any] analog
-where you could randomly choose any person off the street and be
-confident that they were committing an unlawful act that could
-put them on the hook for potential felony liability or hundreds of
-millions of dollars of civil liability. Certainly we all speed, but
-speeding isn't the kind of an act for which we routinely forfeit
-civil liberties. Some people use drugs, and I think that's the
- closest
-analog, [but] many have noted that the war against drugs has
-eroded all of our civil liberties because it's treated so many
- Americans
-as criminals. Well, I think it's fair to say that file sharing
-is an order of magnitude larger number of Americans than drug
-use. . . . If forty to sixty million Americans have become
- lawbreakers,
-then we're really on a slippery slope to lose a lot of civil
-liberties for all forty to sixty million of them.
+peril in a general matter. [I don't] think [there is any] analog where
+you could randomly choose any person off the street and be confident
+that they were committing an unlawful act that could put them on the
+hook for potential felony liability or hundreds of millions of dollars
+of civil liability. Certainly we all speed, but speeding isn't the
+kind of an act for which we routinely forfeit civil liberties. Some
+people use drugs, and I think that's the closest analog, [but] many
+have noted that the war against drugs has eroded all of our civil
+liberties because it's treated so many Americans as criminals. Well, I
+think it's fair to say that file sharing is an order of magnitude
+larger number of Americans than drug use. . . . If forty to sixty
+million Americans have become lawbreakers, then we're really on a
+slippery slope to lose a lot of civil liberties for all forty to sixty
+million of them.
</para>
</blockquote>
<para>
-When forty to sixty million Americans are considered "criminals"
-under the law, and when the law could achieve the same objective--
-securing rights to authors--without these millions being considered
-"criminals," who is the villain? Americans or the law? Which is
- American,
-a constant war on our own people or a concerted effort through
-our democracy to change our law?
+When forty to sixty million Americans are considered "criminals" under
+the law, and when the law could achieve the same objective—
+securing rights to authors—without these millions being
+considered "criminals," who is the villain? Americans or the law?
+Which is American, a constant war on our own people or a concerted
+effort through our democracy to change our law?
</para>
<!-- PAGE BREAK 217 -->
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
-grabs the bucket. Before you have a chance to tell her to stop--or
- before
-she understands just why she should stop--the bucket is in the air.
-The gasoline is about to hit the blazing car. And the fire that gasoline
-will ignite is about to ignite everything around.
+grabs the bucket. Before you have a chance to tell her to
+stop—or before she understands just why she should
+stop—the bucket is in the air. The gasoline is about to hit the
+blazing car. And the fire that gasoline will ignite is about to ignite
+everything around.
</para>
<para>
-A war about copyright rages all around--and we're all focusing on the
-wrong thing. No doubt, current technologies threaten existing
- businesses.
-No doubt they may threaten artists. But technologies change.
-The industry and technologists have plenty of ways to use technology
-to protect themselves against the current threats of the Internet. This
-is a fire that if let alone would burn itself out.
+A war about copyright rages all around—and we're all focusing on
+the wrong thing. No doubt, current technologies threaten existing
+businesses. No doubt they may threaten artists. But technologies
+change. The industry and technologists have plenty of ways to use
+technology to protect themselves against the current threats of the
+Internet. This is a fire that if let alone would burn itself out.
</para>
<para>
<!-- PAGE BREAK 219 -->
Yet policy makers are not willing to leave this fire to itself. Primed
-with plenty of lobbyists' money, they are keen to intervene to eliminate
-the problem they perceive. But the problem they perceive is not the real
-threat this culture faces. For while we watch this small fire in the
- corner,
-there is a massive change in the way culture is made that is
- happening
-all around.
+with plenty of lobbyists' money, they are keen to intervene to
+eliminate the problem they perceive. But the problem they perceive is
+not the real threat this culture faces. For while we watch this small
+fire in the corner, there is a massive change in the way culture is
+made that is happening all around.
</para>
<para>
-Somehow we have to find a way to turn attention to this more
- important
-and fundamental issue. Somehow we have to find a way to
-avoid pouring gasoline onto this fire.
+Somehow we have to find a way to turn attention to this more important
+and fundamental issue. Somehow we have to find a way to avoid pouring
+gasoline onto this fire.
</para>
<para>
-We have not found that way yet. Instead, we seem trapped in a
- simpler,
-binary view. However much many people push to frame this
- debate
-more broadly, it is the simple, binary view that remains. We
-rubberneck to look at the fire when we should be keeping our eyes on
-the road.
+We have not found that way yet. Instead, we seem trapped in a simpler,
+binary view. However much many people push to frame this debate more
+broadly, it is the simple, binary view that remains. We rubberneck to
+look at the fire when we should be keeping our eyes on the road.
</para>
<para>
This challenge has been my life these last few years. It has also been
-my failure. In the two chapters that follow, I describe one small brace
-of efforts, so far failed, to find a way to refocus this debate. We must
-understand these failures if we're to understand what success will
- require.
+my failure. In the two chapters that follow, I describe one small
+brace of efforts, so far failed, to find a way to refocus this
+debate. We must understand these failures if we're to understand what
+success will require.
</para>
<!-- PAGE BREAK 220 -->
<sect1 id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
<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 least
-one did something about it. Eric Eldred, a retired computer
- programmer
-living in New Hampshire, decided to put Hawthorne on the
+In 1995, a father was frustrated that his daughters didn't seem to
+like Hawthorne. No doubt there was more than one such father, but at
+least one did something about it. Eric Eldred, a retired computer
+programmer living in New Hampshire, decided to put Hawthorne on the
Web. An electronic version, Eldred thought, with links to pictures and
explanatory text, would make this nineteenth-century author's work
come alive.
</para>
<para>
-It didn't work--at least for his daughters. They didn't find
- Hawthorne
-any more interesting than before. But Eldred's experiment gave
-birth to a hobby, and his hobby begat a cause: Eldred would build a
-library of public domain works by scanning these works and making
+It didn't work—at least for his daughters. They didn't find
+Hawthorne any more interesting than before. But Eldred's experiment
+gave birth to a hobby, and his hobby begat a cause: Eldred would build
+a library of public domain works by scanning these works and making
them available for free.
</para>
<para>
works. Instead, Eldred was producing derivative works from these
public domain works. Just as Disney turned Grimm into stories more
<!-- PAGE BREAK 221 -->
-accessible to the twentieth century, Eldred transformed Hawthorne,
-and many others, into a form more accessible--technically
- accessible--today.
+accessible to the twentieth century, Eldred transformed Hawthorne, and
+many others, into a form more accessible—technically
+accessible—today.
</para>
<para>
-Eldred's freedom to do this with Hawthorne's work grew from the
-same source as Disney's. Hawthorne's Scarlet Letter had passed into the
-public domain in 1907. It was free for anyone to take without the
- permission
-of the Hawthorne estate or anyone else. Some, such as Dover
+Eldred's freedom to do this with Hawthorne's work grew from the same
+source as Disney's. Hawthorne's Scarlet Letter had passed into the
+public domain in 1907. It was free for anyone to take without the
+permission of the Hawthorne estate or anyone else. Some, such as Dover
Press and Penguin Classics, take works from the public domain and
produce printed editions, which they sell in bookstores across the
country. Others, such as Disney, take these stories and turn them into
animated cartoons, sometimes successfully (Cinderella), sometimes not
-(The Hunchback of Notre Dame, Treasure Planet). These are all
- commercial
-publications of public domain works.
-</para>
-<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
-Internet was limited to people with large egos or with political or
- social
-causes. But with the Internet, it includes a wide range of
- individuals
-and groups dedicated to spreading culture generally.<footnote><para>
-<!-- f1. --> There's a parallel here with pornography that is a bit hard to describe, but
-it's a strong one. One phenomenon that the Internet created was a world
-of noncommercial pornographers--people who were distributing porn
-but were not making money directly or indirectly from that distribution.
-Such a class didn't exist before the Internet came into being because the
-costs of distributing porn were so high. Yet this new class of distributors
-got special attention in the Supreme Court, when the Court struck down
-the Communications Decency Act of 1996. It was partly because of the
-burden on noncommercial speakers that the statute was found to exceed
-Congress's power. The same point could have been made about
- noncommercial
+(The Hunchback of Notre Dame, Treasure Planet). These are all
+commercial publications of public domain works.
+</para>
+<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
+Internet was limited to people with large egos or with political or
+social causes. But with the Internet, it includes a wide range of
+individuals and groups dedicated to spreading culture
+generally.<footnote><para>
+<!-- f1. -->
+There's a parallel here with pornography that is a bit hard to
+describe, but it's a strong one. One phenomenon that the Internet
+created was a world of noncommercial pornographers—people who
+were distributing porn but were not making money directly or
+indirectly from that distribution. Such a class didn't exist before
+the Internet came into being because the costs of distributing porn
+were so high. Yet this new class of distributors got special attention
+in the Supreme Court, when the Court struck down the Communications
+Decency Act of 1996. It was partly because of the burden on
+noncommercial speakers that the statute was found to exceed Congress's
+power. The same point could have been made about noncommercial
publishers after the advent of the Internet. The Eric Eldreds of the
-world before the Internet were extremely few. Yet one would think it at
-least as important to protect the Eldreds of the world as to protect
- noncommercial
-pornographers.
-</para></footnote>
-
+world before the Internet were extremely few. Yet one would think it
+at least as important to protect the Eldreds of the world as to
+protect noncommercial pornographers.</para></footnote>
</para>
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
collection of poems New Hampshire was slated to pass into the public
-domain. Eldred wanted to post that collection in his free public library.
-But Congress got in the way. As I described in chapter 10, in 1998, for
-the eleventh time in forty years, Congress extended the terms of
- existing
-copyrights--this time by twenty years. Eldred would not be free to
-add any works more recent than 1923 to his collection until 2019.
- Indeed,
-no copyrighted work would pass into the public domain until
-that year (and not even then, if Congress extends the term again). By
-contrast, in the same period, more than 1 million patents will pass into
-the public domain.
+domain. Eldred wanted to post that collection in his free public
+library. But Congress got in the way. As I described in chapter 10,
+in 1998, for the eleventh time in forty years, Congress extended the
+terms of existing copyrights—this time by twenty years. Eldred
+would not be free to add any works more recent than 1923 to his
+collection until 2019. Indeed, no copyrighted work would pass into
+the public domain until that year (and not even then, if Congress
+extends the term again). By contrast, in the same period, more than 1
+million patents will pass into the public domain.
</para>
<para>
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>
-<!-- f2. --> The full text is: "Sonny [Bono] wanted the term of copyright protection to
-last forever. I am informed by staff that such a change would violate the
-Constitution. I invite all of you to work with me to strengthen our
- copyright
-laws in all of the ways available to us. As you know, there is also Jack
-Valenti's proposal for a term to last forever less one day. Perhaps the
- Committee
-may look at that next Congress," 144 Cong. Rec. H9946, 9951-2
-(October 7, 1998).
+"copyrights should be forever."<footnote><para>
+<!-- f2. -->
+The full text is: "Sonny [Bono] wanted the term of copyright
+protection to last forever. I am informed by staff that such a change
+would violate the Constitution. I invite all of you to work with me to
+strengthen our copyright laws in all of the ways available to us. As
+you know, there is also Jack Valenti's proposal for a term to last
+forever less one day. Perhaps the Committee may look at that next
+Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
</para></footnote>
</para>
civil disobedience. In a series of interviews, Eldred announced that he
would publish as planned, CTEA notwithstanding. But because of a
second law passed in 1998, the NET (No Electronic Theft) Act, his act
-of publishing would make Eldred a felon--whether or not anyone
+of publishing would make Eldred a felon—whether or not anyone
complained. This was a dangerous strategy for a disabled programmer
to undertake.
</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
+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--
+ specific—to
+"promote . . . Progress"—through means that are also specific—
by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times."
</para>
<para>
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
+the Constitution plainly forbids—perpetual terms "on the installment
plan," as Professor Peter Jaszi so nicely put it.
</para>
<para>
beneficiaries
of Congress's acts to raise and give money to Congress to induce
it to act. There's only so much time; there's only so much Congress can
-do. Why not limit its actions to those things it must do--and those
+do. Why not limit its actions to those things it must do—and those
things that pay? Extending copyright terms pays.
</para>
<para>
copyrights. Which for us means over $1,000,000."
</para>
<para>
-You quickly get the point--you as the member of the board and, I
+You quickly get the point—you as the member of the board and, I
trust, you the reader. Each time copyrights are about to expire, every
beneficiary in the position of the Robert Frost estate faces the same
choice: If they can contribute to get a law passed to extend copyrights,
context
of the Commerce Clause was that the interpretation offered by the
government would allow the government unending power to regulate
-commerce--the limitation to interstate commerce notwithstanding. The
+commerce—the limitation to interstate commerce notwithstanding. The
same point is true in the context of the Copyright Clause. Here, too, the
government's interpretation would allow the government unending power
-to regulate copyrights--the limitation to "limited times" notwithstanding.
+to regulate copyrights—the limitation to "limited times" notwithstanding.
</para></footnote>
And if it is applied to the
Progress Clause, the principle should yield the conclusion that
</para>
<para>
If, that is, the principle announced in Lopez stood for a principle.
-Many believed the decision in Lopez stood for politics--a conservative
+Many believed the decision in Lopez stood for politics—a conservative
Supreme Court, which believed in states' rights, using its power over
Congress to advance its own personal political preferences. But I
rejected
the argument in Eldred was not about. By insisting on the
Constitution's
limits to copyright, obviously Eldred was not endorsing piracy.
-Indeed, in an obvious sense, he was fighting a kind of piracy--piracy of
+Indeed, in an obvious sense, he was fighting a kind of piracy—piracy of
the public domain. When Robert Frost wrote his work and when Walt
Disney created Mickey Mouse, the maximum copyright term was just
fifty-six years. Because of interim changes, Frost and Disney had
enjoyed a seventy-five-year monopoly for their work. They had
gotten the benefit of the bargain that the Constitution envisions: In
exchange for a monopoly protected for fifty-six years, they created new
-work. But now these entities were using their power--expressed
-through the power of lobbyists' money--to get another twenty-year
+work. But now these entities were using their power—expressed
+through the power of lobbyists' money—to get another twenty-year
dollop of monopoly. That twenty-year dollop would be taken from the
public domain. Eric Eldred was fighting a piracy that affects us all.
</para>
</para>
<para>
Think practically about the consequence of this
- extension--practically,
+ extension—practically,
as a businessperson, and not as a lawyer eager for more legal
<!-- PAGE BREAK 229 -->
practically
about how impossibly difficult it would be to track down
thousands
-of such records--especially since the person who registered is
+of such records—especially since the person who registered is
not necessarily the current owner. And we're just talking about 1930!
</para>
<para>
consequence
for other creative works is much more dire.
</para>
+<indexterm><primary>Agee, Michael</primary></indexterm>
<para>
-Consider the story of Michael Agee, chairman of Hal Roach
- Studios,
-which owns the copyrights for the Laurel and Hardy films. Agee
-is a direct beneficiary of the Bono Act. The Laurel and Hardy films
-were made between 1921 and 1951. Only one of these films, The Lucky
-Dog, is currently out of copyright. But for the CTEA, films made after
-1923 would have begun entering the public domain. Because Agee
-controls the exclusive rights for these popular films, he makes a great
-deal of money. According to one estimate, "Roach has sold about
-60,000 videocassettes and 50,000 DVDs of the duo's silent films."<footnote><para>
-<!-- f11. --> See David G. Savage, "High Court Scene of Showdown on Copyright
-Law," Los Angeles Times, 6 October 2002; David Streitfeld, "Classic
-Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today
-on Striking Down Copyright Extension," Orlando Sentinel Tribune, 9
- October
-2002.
+Consider the story of Michael Agee, chairman of Hal Roach Studios,
+which owns the copyrights for the Laurel and Hardy films. Agee is a
+direct beneficiary of the Bono Act. The Laurel and Hardy films were
+made between 1921 and 1951. Only one of these films, The Lucky Dog, is
+currently out of copyright. But for the CTEA, films made after 1923
+would have begun entering the public domain. Because Agee controls the
+exclusive rights for these popular films, he makes a great deal of
+money. According to one estimate, "Roach has sold about 60,000
+videocassettes and 50,000 DVDs of the duo's silent
+films."<footnote><para>
+<!-- f11. -->
+See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
+Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
+Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
</para></footnote>
</para>
<para>
-Yet Agee opposed the CTEA. His reasons demonstrate a rare
-virtue in this culture: selflessness. He argued in a brief before the
-Supreme Court that the Sonny Bono Copyright Term Extension Act
-will, if left standing, destroy a whole generation of American film.
+Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
+this culture: selflessness. He argued in a brief before the Supreme
+Court that the Sonny Bono Copyright Term Extension Act will, if left
+standing, destroy a whole generation of American film.
</para>
<para>
His argument is straightforward. A tiny fraction of this work has
<!-- PAGE BREAK 231 -->
-any continuing commercial value. The rest--to the extent it survives at
-all--sits in vaults gathering dust. It may be that some of this work not
-now commercially valuable will be deemed to be valuable by the
- owners
-of the vaults. For this to occur, however, the commercial benefit
-from the work must exceed the costs of making the work available for
-distribution.
+any continuing commercial value. The rest—to the extent it
+survives at all—sits in vaults gathering dust. It may be that
+some of this work not now commercially valuable will be deemed to be
+valuable by the owners of the vaults. For this to occur, however, the
+commercial benefit from the work must exceed the costs of making the
+work available for distribution.
</para>
<para>
We can't know the benefits, but we do know a lot about the costs.
spending Friday night watching new movies and spending
Friday
night watching a 1930 news documentary. The noncommercial life
-of culture is important and valuable--for entertainment but also, and
+of culture is important and valuable—for entertainment but also, and
more importantly, for knowledge. To understand who we are, and
where we came from, and how we have made the mistakes that we
have, we need to have access to this history.
our history, when a work ended its commercial life, there was no
copyright-related use that would be inhibited by an exclusive right.
When a book went out of print, you could not buy it from a publisher.
-But you could still buy it from a used book store, and when a used book
-store sells it, in America, at least, there is no need to pay the copyright
-owner anything. Thus, the ordinary use of a book after its commercial
-life ended was a use that was independent of copyright law.
+But you could still buy it from a used book store, and when a used
+book store sells it, in America, at least, there is no need to pay the
+copyright owner anything. Thus, the ordinary use of a book after its
+commercial life ended was a use that was independent of copyright law.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
-a film--the real economic costs, not the lawyer costs--were so high, it
-was never at all feasible to preserve or restore film. Like the remains of
-a great dinner, when it's over, it's over. Once a film passed out of its
-commercial life, it may have been archived for a bit, but that was the
-end of its life so long as the market didn't have more to offer.
+a film—the real economic costs, not the lawyer costs—were
+so high, it was never at all feasible to preserve or restore
+film. Like the remains of a great dinner, when it's over, it's
+over. Once a film passed out of its commercial life, it may have been
+archived for a bit, but that was the end of its life so long as the
+market didn't have more to offer.
</para>
<para>
In other words, though copyright has been relatively short for most
technologies is to enable the archive that Brewster Kahle dreams of.
Digital technologies now make it possible to preserve and give access
to all sorts of knowledge. Once a book goes out of print, we can now
-imagine digitizing it and making it available to everyone, forever. Once
-a film goes out of distribution, we could digitize it and make it
- available
-to everyone, forever. Digital technologies give new life to
- copyrighted
-material after it passes out of its commercial life. It is now
-possible to preserve and assure universal access to this knowledge and
-culture, whereas before it was not.
+imagine digitizing it and making it available to everyone,
+forever. Once a film goes out of distribution, we could digitize it
+and make it available to everyone, forever. Digital technologies give
+new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to
+this knowledge and culture, whereas before it was not.
</para>
<para>
<!-- PAGE BREAK 234 -->
-And now copyright law does get in the way. Every step of
- producing
-this digital archive of our culture infringes on the exclusive right of
-copyright. To digitize a book is to copy it. To do that requires
- permission
-of the copyright owner. The same with music, film, or any other
-aspect of our culture protected by copyright. The effort to make these
-things available to history, or to researchers, or to those who just want
-to explore, is now inhibited by a set of rules that were written for a
- radically
-different context.
-</para>
-<para>
-Here is the core of the harm that comes from extending terms:
-Now that technology enables us to rebuild the library of Alexandria,
-the law gets in the way. And it doesn't get in the way for any useful
-copyright purpose, for the purpose of copyright is to enable the
- commercial
-market that spreads culture. No, we are talking about culture
-after it has lived its commercial life. In this context, copyright is
- serving
-no purpose at all related to the spread of knowledge. In this
- context,
-copyright is not an engine of free expression. Copyright is a brake.
+And now copyright law does get in the way. Every step of producing
+this digital archive of our culture infringes on the exclusive right
+of copyright. To digitize a book is to copy it. To do that requires
+permission of the copyright owner. The same with music, film, or any
+other aspect of our culture protected by copyright. The effort to make
+these things available to history, or to researchers, or to those who
+just want to explore, is now inhibited by a set of rules that were
+written for a radically different context.
+</para>
+<para>
+Here is the core of the harm that comes from extending terms: Now that
+technology enables us to rebuild the library of Alexandria, the law
+gets in the way. And it doesn't get in the way for any useful
+copyright purpose, for the purpose of copyright is to enable the
+commercial market that spreads culture. No, we are talking about
+culture after it has lived its commercial life. In this context,
+copyright is serving no purpose at all related to the spread of
+knowledge. In this context, copyright is not an engine of free
+expression. Copyright is a brake.
</para>
<para>
You may well ask, "But if digital technologies lower the costs for
culture widely?"
</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 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.
+Maybe. Someday. But there is absolutely no evidence to suggest that
+publishers would be as complete as libraries. If Barnes & Noble
+offered to lend books from its stores for a low price, would that
+eliminate the need for libraries? Only if you think that the only role
+of a library is to serve what "the market" would demand. But if you
+think the role of a library is bigger than this—if you think its
+role is to archive culture, whether there's a demand for any
+particular bit of that culture or not—then we can't count on the
+commercial market to do our library work for us.
</para>
<para>
I would be the first to agree that it should do as much as it can: We
market is not doing the job, then we should allow nonmarket forces the
<!-- PAGE BREAK 235 -->
-freedom to fill the gaps. As one researcher calculated for American
- culture,
-94 percent of the films, books, and music produced between
+freedom to fill the gaps. As one researcher calculated for American
+culture, 94 percent of the films, books, and music produced between
and 1946 is not commercially available. However much you love the
-commercial market, if access is a value, then 6 percent is a failure to
-provide that value.<footnote><para>
-<!-- f13. --> Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
- December
-2002, available at
+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
+December 2002, available at
<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
</para></footnote>
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in
- federal
+In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
district court in Washington, D.C., asking the court to declare the
Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
- violated
-the Constitution's "limited Times" requirement, and (2) that
- extending
-terms by another twenty years violated the First Amendment.
+central claims that we made were (1) that extending existing terms
+violated the Constitution's "limited Times" requirement, and (2) that
+extending terms by another twenty years violated the First Amendment.
</para>
<para>
-The district court dismissed our claims without even hearing an
- argument.
-A panel of the Court of Appeals for the D.C. Circuit also
- dismissed
-our claims, though after hearing an extensive argument. But
+The district court dismissed our claims without even hearing an
+argument. A panel of the Court of Appeals for the D.C. Circuit also
+dismissed our claims, though after hearing an extensive argument. But
that decision at least had a dissent, by one of the most conservative
judges on that court. That dissent gave our claims life.
</para>
it was simple: If Congress can extend existing terms, then there is no
"stopping point" to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are "limited." Thus, Judge Sentelle argued, the court had to
-interpret the term "limited Times" to give it meaning. And the best
- interpretation,
-Judge Sentelle argued, would be to deny Congress the
+terms that are "limited." Thus, Judge Sentelle argued, the court had
+to interpret the term "limited Times" to give it meaning. And the best
+interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
</para>
<para>
<!-- PAGE BREAK 236 -->
D.C. Circuit, Judge David Tatel. Both the most conservative and the
-most liberal judges in the D.C. Circuit believed Congress had
- overstepped
-its bounds.
+most liberal judges in the D.C. Circuit believed Congress had
+overstepped its bounds.
</para>
<para>
It was here that most expected Eldred v. Ashcroft would die, for the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still astonishingly
-hard. If you know anything at all about this story, you know that we
-lost the appeal. And if you know something more than just the
- minimum,
-you probably think there was no way this case could have been
-won. After our defeat, I received literally thousands of missives by
-well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
- significant
-to me than the e-mail from my client, Eric Eldred.
+It is over a year later as I write these words. It is still
+astonishingly hard. If you know anything at all about this story, you
+know that we lost the appeal. And if you know something more than just
+the minimum, you probably think there was no way this case could have
+been won. After our defeat, I received literally thousands of missives
+by well-wishers and supporters, thanking me for my work on behalf of
+this noble but doomed cause. And none from this pile was more
+significant to me than the e-mail from my client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
retell this story to myself, I can never escape believing that my own
mistake lost it.
</para>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the
-very end. Our case had been supported from the very beginning by an
- extraordinary
-lawyer, Geoffrey Stewart, and by the law firm he had moved
-to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat
+The mistake was made early, though it became obvious only at the very
+end. Our case had been supported from the very beginning by an
+extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
+moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
+heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
- ignored
-this pressure (something that few law firms today would ever
+ignored this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Bromberg, Dan</primary></indexterm>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
my hope was to make this argument against a background of briefs that
covered the full range of political views. To show that this claim against
the CTEA was grounded in law and not politics, then, we tried to
-gather the widest range of credible critics--credible not because they
+gather the widest range of credible critics—credible not because they
were rich and famous, but because they, in the aggregate, demonstrated
that this law was unconstitutional regardless of one's politics.
</para>
judge, Judge Sentelle.
</para>
<para>
-In the Supreme Court, the briefs on our side were about as diverse
-as it gets. They included an extraordinary historical brief by the Free
+In the Supreme Court, the briefs on our side were about as diverse as
+it gets. They included an extraordinary historical brief by the Free
<!-- PAGE BREAK 239 -->
-Software Foundation (home of the GNU project that made GNU/
-Linux possible). They included a powerful brief about the costs of
- uncertainty
-by Intel. There were two law professors' briefs, one by
- copyright
-scholars and one by First Amendment scholars. There was an
-exhaustive and uncontroverted brief by the world's experts in the
- history
-of the Progress Clause. And of course, there was a new brief by
-Eagle Forum, repeating and strengthening its arguments.
+Software Foundation (home of the GNU project that made GNU/ Linux
+possible). They included a powerful brief about the costs of
+uncertainty by Intel. There were two law professors' briefs, one by
+copyright scholars and one by First Amendment scholars. There was an
+exhaustive and uncontroverted brief by the world's experts in the
+history of the Progress Clause. And of course, there was a new brief
+by Eagle Forum, repeating and strengthening its arguments.
</para>
<para>
Those briefs framed a legal argument. Then to support the legal
Law Libraries, and the National Writers Union.
</para>
<para>
-But two briefs captured the policy argument best. One made the
- argument
-I've already described: A brief by Hal Roach Studios argued that
-unless the law was struck, a whole generation of American film would
-disappear. The other made the economic argument absolutely clear.
+But two briefs captured the policy argument best. One made the
+argument I've already described: A brief by Hal Roach Studios argued
+that unless the law was struck, a whole generation of American film
+would disappear. The other made the economic argument absolutely
+clear.
</para>
+<indexterm><primary>Akerlof, George</primary></indexterm>
+<indexterm><primary>Arrow, Kenneth</primary></indexterm>
+<indexterm><primary>Buchanan, James</primary></indexterm>
+<indexterm><primary>Coase, Ronald</primary></indexterm>
+<indexterm><primary>Friedman, Milton</primary></indexterm>
<para>
This economists' brief was signed by seventeen economists, including
five Nobel Prize winners, including Ronald Coase, James Buchanan,
-Milton Friedman, Kenneth Arrow, and George Akerlof. The
- economists,
-as the list of Nobel winners demonstrates, spanned the political
+Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
+the list of Nobel winners demonstrates, spanned the political
spectrum. Their conclusions were powerful: There was no plausible
-claim that extending the terms of existing copyrights would do anything
-to increase incentives to create. Such extensions were nothing more
-than "rent-seeking"--the fancy term economists use to describe
-special-interest legislation gone wild.
-</para>
-<para>
-The same effort at balance was reflected in the legal team we
- gathered
-to write our briefs in the case. The Jones Day lawyers had been
-with us from the start. But when the case got to the Supreme Court,
-we added three lawyers to help us frame this argument to this Court:
-Alan Morrison, a lawyer from Public Citizen, a Washington group
-that had made constitutional history with a series of seminal victories
-in the Supreme Court defending individual rights; my colleague and
-dean, Kathleen Sullivan, who had argued many cases in the Court, and
+claim that extending the terms of existing copyrights would do
+anything to increase incentives to create. Such extensions were
+nothing more than "rent-seeking"—the fancy term economists use
+to describe special-interest legislation gone wild.
+</para>
+<para>
+The same effort at balance was reflected in the legal team we gathered
+to write our briefs in the case. The Jones Day lawyers had been with
+us from the start. But when the case got to the Supreme Court, we
+added three lawyers to help us frame this argument to this Court: Alan
+Morrison, a lawyer from Public Citizen, a Washington group that had
+made constitutional history with a series of seminal victories in the
+Supreme Court defending individual rights; my colleague and dean,
+Kathleen Sullivan, who had argued many cases in the Court, and
<!-- PAGE BREAK 240 -->
-who had advised us early on about a First Amendment strategy; and
- finally,
-former solicitor general Charles Fried.
+who had advised us early on about a First Amendment strategy; and
+finally, former solicitor general Charles Fried.
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
general was hired by the other side to defend Congress's power to give
media companies the special favor of extended copyright terms. Fried
-was the only one who turned down that lucrative assignment to stand
-up for something he believed in. He had been Ronald Reagan's chief
-lawyer in the Supreme Court. He had helped craft the line of cases that
+was the only one who turned down that lucrative assignment to stand up
+for something he believed in. He had been Ronald Reagan's chief lawyer
+in the Supreme Court. He had helped craft the line of cases that
limited Congress's power in the context of the Commerce Clause. And
-while he had argued many positions in the Supreme Court that I
- personally
-disagreed with, his joining the cause was a vote of confidence in
-our argument.
+while he had argued many positions in the Supreme Court that I
+personally disagreed with, his joining the cause was a vote of
+confidence in our argument.
</para>
<para>
The government, in defending the statute, had its collection of
copyright holders.
</para>
<para>
-The media companies were not surprising. They had the most to
-gain from the law. The congressmen were not surprising either--they
-were defending their power and, indirectly, the gravy train of
- contributions
-such power induced. And of course it was not surprising that the
-copyright holders would defend the idea that they should continue to
-have the right to control who did what with content they wanted to
-control.
+The media companies were not surprising. They had the most to gain
+from the law. The congressmen were not surprising either—they
+were defending their power and, indirectly, the gravy train of
+contributions such power induced. And of course it was not surprising
+that the copyright holders would defend the idea that they should
+continue to have the right to control who did what with content they
+wanted to control.
</para>
<para>
-Dr. Seuss's representatives, for example, argued that it was better for
-the Dr. Seuss estate to control what happened to Dr. Seuss's work--
-better than allowing it to fall into the public domain--because if this
-creativity were in the public domain, then people could use it to
- "glorify
-drugs or to create pornography."<footnote><para>
-<!-- f14. --> Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S.
-(2003) (No. 01-618), 19.
+Dr. Seuss's representatives, for example, argued that it was
+better for the Dr. Seuss estate to control what happened to
+Dr. Seuss's work— better than allowing it to fall into the
+public domain—because if this creativity were in the public
+domain, then people could use it to "glorify drugs or to create
+pornography."<footnote><para>
+<!-- f14. -->
+Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
+U.S. (2003) (No. 01-618), 19.
</para></footnote>
- That was also the motive of
+That was also the motive of
the Gershwin estate, which defended its "protection" of the work of
George Gershwin. They refuse, for example, to license Porgy and Bess
to anyone who refuses to use African Americans in the cast.<footnote><para>
-<!-- f15. --> Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
+<!-- f15. -->
+Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
Mouse Joins the Fray," New York Times, 28 March 1998, B7.
</para></footnote>
- That's
+That's
<!-- PAGE BREAK 241 -->
their view of how this part of American culture should be controlled,
and they wanted this law to help them effect that control.
</para>
<para>
-This argument made clear a theme that is rarely noticed in this
- debate.
-When Congress decides to extend the term of existing
- copyrights,
-Congress is making a choice about which speakers it will favor.
-Famous and beloved copyright owners, such as the Gershwin estate
-and Dr. Seuss, come to Congress and say, "Give us twenty years to
- control
-the speech about these icons of American culture. We'll do better
-with them than anyone else." Congress of course likes to reward the
-popular and famous by giving them what they want. But when
- Congress
-gives people an exclusive right to speak in a certain way, that's just
-what the First Amendment is traditionally meant to block.
+This argument made clear a theme that is rarely noticed in this
+debate. When Congress decides to extend the term of existing
+copyrights, Congress is making a choice about which speakers it will
+favor. Famous and beloved copyright owners, such as the Gershwin
+estate and Dr. Seuss, come to Congress and say, "Give us twenty years
+to control the speech about these icons of American culture. We'll do
+better with them than anyone else." Congress of course likes to reward
+the popular and famous by giving them what they want. But when
+Congress gives people an exclusive right to speak in a certain way,
+that's just what the First Amendment is traditionally meant to block.
</para>
<para>
-We argued as much in a final brief. Not only would upholding the
-CTEA mean that there was no limit to the power of Congress to extend
-copyrights--extensions that would further concentrate the market; it
-would also mean that there was no limit to Congress's power to play
- favorites,
-through copyright, with who has the right to speak.
-Between February and October, there was little I did beyond
-preparing for this case. Early on, as I said, I set the strategy.
+We argued as much in a final brief. Not only would upholding the CTEA
+mean that there was no limit to the power of Congress to extend
+copyrights—extensions that would further concentrate the market;
+it would also mean that there was no limit to Congress's power to play
+favorites, through copyright, with who has the right to speak.
+Between February and October, there was little I did beyond preparing
+for this case. Early on, as I said, I set the strategy.
</para>
<para>
The Supreme Court was divided into two important camps. One
an enumerated power had to be interpreted to assure that Congress's
powers had limits.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
-Congress's power. These four--Justice Stevens, Justice Souter, Justice
-Ginsburg, and Justice Breyer--had repeatedly argued that the
- Constitution
+Congress's power. These four—Justice Stevens, Justice Souter,
+Justice Ginsburg, and Justice Breyer—had repeatedly argued that
+the Constitution
<!-- PAGE BREAK 242 -->
-gives Congress broad discretion to decide how best to
- implement
-its powers. In case after case, these justices had argued that the
-Court's role should be one of deference. Though the votes of these four
+gives Congress broad discretion to decide how best to implement its
+powers. In case after case, these justices had argued that the Court's
+role should be one of deference. Though the votes of these four
justices were the votes that I personally had most consistently agreed
with, they were also the votes that we were least likely to get.
</para>
<para>
In particular, the least likely was Justice Ginsburg's. In addition to
her general view about deference to Congress (except where issues of
-gender are involved), she had been particularly deferential in the
- context
-of intellectual property protections. She and her daughter (an
- excellent
-and well-known intellectual property scholar) were cut from
+gender are involved), she had been particularly deferential in the
+context of intellectual property protections. She and her daughter (an
+excellent and well-known intellectual property scholar) were cut from
the same intellectual property cloth. We expected she would agree with
-the writings of her daughter: that Congress had the power in this
- context
-to do as it wished, even if what Congress wished made little sense.
+the writings of her daughter: that Congress had the power in this
+context to do as it wished, even if what Congress wished made little
+sense.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-Close behind Justice Ginsburg were two justices whom we also
-viewed as unlikely allies, though possible surprises. Justice Souter
-strongly favored deference to Congress, as did Justice Breyer. But both
-were also very sensitive to free speech concerns. And as we strongly
- believed,
-there was a very important free speech argument against these
-retrospective extensions.
+Close behind Justice Ginsburg were two justices whom we also viewed as
+unlikely allies, though possible surprises. Justice Souter strongly
+favored deference to Congress, as did Justice Breyer. But both were
+also very sensitive to free speech concerns. And as we strongly
+believed, there was a very important free speech argument against
+these retrospective extensions.
</para>
<para>
The only vote we could be confident about was that of Justice
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
+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
+This then was the core of our strategy—a strategy for which I am
responsible. We would get the Court to see that just as with the Lopez
<!-- PAGE BREAK 243 -->
certainly agreed that Congress had extended existing terms in
and in 1909. And of course, in 1962, Congress began extending
existing
-terms regularly--eleven times in forty years.
+terms regularly—eleven times in forty years.
</para>
<para>
But this "consistency" should be kept in perspective. Congress
were an effective practice; I found ways to take every question back to
this central idea.
</para>
+<indexterm><primary>Ayer, Don</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
-General Charles Fried. He had argued many cases before the
-Supreme Court. And in his review of the moot, he let his concern
-speak:
+skeptic. He had served in the Reagan Justice Department with Solicitor
+General Charles Fried. He had argued many cases before the Supreme
+Court. And in his review of the moot, he let his concern speak:
</para>
<para>
"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."
+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."
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
He may have argued many cases before this Court, I thought, but
he didn't understand its soul. As a clerk, I had seen the Justices do the
-right thing--not because of politics but because it was right. As a law
+right thing—not because of politics but because it was right. As a law
professor, I had spent my life teaching my students that this Court
-does the right thing--not because of politics but because it is right. As
+does the right thing—not because of politics but because it is right. As
I listened to Ayer's plea for passion in pressing politics, I understood
his point, and I rejected it. Our argument was right. That was enough.
Let the politicians learn to see that it was also good.
perpetual term not be permitted under the copyright laws.
</para>
</blockquote>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
That was a correct answer, but it wasn't the right answer. The right
answer was instead that there was an obvious and profound harm. Any
this were the first case ever to consider limits on Congress's Copyright
and Patent Clause power. Ever the professor and not the advocate, I
closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause--
+Congress's power in the name of the Copyright and Patent Clause—
indeed, the very first case striking a law of Congress as exceeding a
specific
enumerated power was based upon the Copyright and Patent
Copyright
Clause, unlimited. In those rare moments when I let myself
believe
-that we may have prevailed, it was because I felt this Court--in
-particular, the Conservatives--would feel itself constrained by the rule
+that we may have prevailed, it was because I felt this Court—in
+particular, the Conservatives—would feel itself constrained by the rule
of law that it had established elsewhere.
</para>
<para>
she had found Congress's power not limited here.
</para>
<para>
-Her opinion was perfectly reasonable--for her, and for Justice
+Her opinion was perfectly reasonable—for her, and for Justice
Souter. Neither believes in Lopez. It would be too much to expect them
to write an opinion that recognized, much less explained, the doctrine
they had worked so hard to defeat.
would not.
</para>
<para>
-Yet by what right did they get to choose which of the framers'
- values
-they would respect? By what right did they--the silent five--get to
-select the part of the Constitution they would enforce based on the
- values
-they thought important? We were right back to the argument that
-I said I hated at the start: I had failed to convince them that the issue
-here was important, and I had failed to recognize that however much I
-might hate a system in which the Court gets to pick the constitutional
-values that it will respect, that is the system we have.
+Yet by what right did they get to choose which of the framers' values
+they would respect? By what right did they—the silent
+five—get to select the part of the Constitution they would
+enforce based on the values they thought important? We were right back
+to the argument that I said I hated at the start: I had failed to
+convince them that the issue here was important, and I had failed to
+recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is
+the system we have.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
Justices Breyer and Stevens wrote very strong dissents. Stevens's
-opinion was crafted internal to the law: He argued that the tradition of
-intellectual property law should not support this unjustified extension
-of terms. He based his argument on a parallel analysis that had
- governed
-in the context of patents (so had we). But the rest of the Court
-discounted the parallel--without explaining how the very same words
-in the Progress Clause could come to mean totally different things
- depending
-upon whether the words were about patents or copyrights.
-The Court let Justice Stevens's charge go unanswered.
+opinion was crafted internal to the law: He argued that the tradition
+of intellectual property law should not support this unjustified
+extension of terms. He based his argument on a parallel analysis that
+had governed in the context of patents (so had we). But the rest of
+the Court discounted the parallel—without explaining how the
+very same words in the Progress Clause could come to mean totally
+different things depending upon whether the words were about patents
+or copyrights. The Court let Justice Stevens's charge go unanswered.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-
<!-- PAGE BREAK 250 -->
-Justice Breyer's opinion, perhaps the best opinion he has ever
- written,
-was external to the Constitution. He argued that the term of
- copyrights
-has become so long as to be effectively unlimited. We had said
-that under the current term, a copyright gave an author 99.8 percent of
-the value of a perpetual term. Breyer said we were wrong, that the
- actual
-number was 99.9997 percent of a perpetual term. Either way, the
-point was clear: If the Constitution said a term had to be "limited," and
-the existing term was so long as to be effectively unlimited, then it was
-unconstitutional.
+Justice Breyer's opinion, perhaps the best opinion he has ever
+written, was external to the Constitution. He argued that the term of
+copyrights has become so long as to be effectively unlimited. We had
+said that under the current term, a copyright gave an author 99.8
+percent of the value of a perpetual term. Breyer said we were wrong,
+that the actual number was 99.9997 percent of a perpetual term. Either
+way, the point was clear: If the Constitution said a term had to be
+"limited," and the existing term was so long as to be effectively
+unlimited, then it was unconstitutional.
</para>
<para>
These two justices understood all the arguments we had made. But
<para>
It was first anger with the five "Conservatives." It would have been
one thing for them to have explained why the principle of Lopez didn't
-apply in this case. That wouldn't have been a very convincing
- argument,
-I don't believe, having read it made by others, and having tried
-to make it myself. But it at least would have been an act of integrity.
-These justices in particular have repeatedly said that the proper mode
-of interpreting the Constitution is "originalism"--to first understand
-the framers' text, interpreted in their context, in light of the structure
-of the Constitution. That method had produced Lopez and many other
-"originalist" rulings. Where was their "originalism" now?
+apply in this case. That wouldn't have been a very convincing
+argument, I don't believe, having read it made by others, and having
+tried to make it myself. But it at least would have been an act of
+integrity. These justices in particular have repeatedly said that the
+proper mode of interpreting the Constitution is "originalism"—to
+first understand the framers' text, interpreted in their context, in
+light of the structure of the Constitution. That method had produced
+Lopez and many other "originalist" rulings. Where was their
+"originalism" now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
<!-- PAGE BREAK 251 -->
power. And they joined an opinion that didn't even try to explain why
this grant of power could be unlimited, whereas the Commerce Clause
-would be limited. In short, they had joined an opinion that did not
- apply
-to, and was inconsistent with, their own method for interpreting
-the Constitution. This opinion may well have yielded a result that they
-liked. It did not produce a reason that was consistent with their own
-principles.
+would be limited. In short, they had joined an opinion that did not
+apply to, and was inconsistent with, their own method for interpreting
+the Constitution. This opinion may well have yielded a result that
+they liked. It did not produce a reason that was consistent with their
+own principles.
</para>
<para>
My anger with the Conservatives quickly yielded to anger with
For I had let a view of the law that I liked interfere with a view of
the law as it is.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
-Most lawyers, and most law professors, have little patience for
- idealism
-about courts in general and this Supreme Court in particular.
-Most have a much more pragmatic view. When Don Ayer said that
-this case would be won based on whether I could convince the Justices
-that the framers' values were important, I fought the idea, because I
-didn't want to believe that that is how this Court decides. I insisted on
-arguing this case as if it were a simple application of a set of principles.
-I had an argument that followed in logic. I didn't need to waste my
-time showing it should also follow in popularity.
+Most lawyers, and most law professors, have little patience for
+idealism about courts in general and this Supreme Court in particular.
+Most have a much more pragmatic view. When Don Ayer said that this
+case would be won based on whether I could convince the Justices that
+the framers' values were important, I fought the idea, because I
+didn't want to believe that that is how this Court decides. I insisted
+on arguing this case as if it were a simple application of a set of
+principles. I had an argument that followed in logic. I didn't need
+to waste my time showing it should also follow in popularity.
</para>
<para>
As I read back over the transcript from that argument in October, I
-can see a hundred places where the answers could have taken the
- conversation
-in different directions, where the truth about the harm that
-this unchecked power will cause could have been made clear to this
-Court. Justice Kennedy in good faith wanted to be shown. I, idiotically,
-corrected his question. Justice Souter in good faith wanted to be shown
-the First Amendment harms. I, like a math teacher, reframed the
- question
-to make the logical point. I had shown them how they could strike
-this law of Congress if they wanted to. There were a hundred places
-where I could have helped them want to, yet my stubbornness, my
- refusal
-to give in, stopped me. I have stood before hundreds of audiences
-trying to persuade; I have used passion in that effort to persuade; but I
+can see a hundred places where the answers could have taken the
+conversation in different directions, where the truth about the harm
+that this unchecked power will cause could have been made clear to
+this Court. Justice Kennedy in good faith wanted to be shown. I,
+idiotically, corrected his question. Justice Souter in good faith
+wanted to be shown the First Amendment harms. I, like a math teacher,
+reframed the question to make the logical point. I had shown them how
+they could strike this law of Congress if they wanted to. There were a
+hundred places where I could have helped them want to, yet my
+stubbornness, my refusal to give in, stopped me. I have stood before
+hundreds of audiences trying to persuade; I have used passion in that
+effort to persuade; but I
<!-- PAGE BREAK 252 -->
refused to stand before this audience and try to persuade with the
- passion
-I had used elsewhere. It was not the basis on which a court should
-decide the issue.
+passion I had used elsewhere. It was not the basis on which a court
+should decide the issue.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
Would it have been different if I had argued it differently? Would it
have been different if Don Ayer had argued it? Or Charles Fried? Or
</para>
<para>
And even if I couldn't, then that doesn't excuse what happened in
-January. For at the start of this case, one of America's leading
- intellectual
-property professors stated publicly that my bringing this case was
-a mistake. "The Court is not ready," Peter Jaszi said; this issue should
-not be raised until it is.
+January. For at the start of this case, one of America's leading
+intellectual property professors stated publicly that my bringing this
+case was a mistake. "The Court is not ready," Peter Jaszi said; this
+issue should not be raised until it is.
</para>
<para>
After the argument and after the decision, Peter said to me, and
here again Peter was right. Either I was not ready to argue this case in
a way that would do some good or they were not ready to hear this case
in a way that would do some good. Either way, the decision to bring
-this case--a decision I had made four years before--was wrong.
+this case—a decision I had made four years before—was wrong.
While the reaction to the Sonny Bono Act itself was almost
unanimously negative, the reaction to the Court's decision was mixed.
No one, at least in the press, tried to say that extending the term of
copyright was a good idea. We had won that battle over ideas. Where
<!-- PAGE BREAK 253 -->
-the decision was praised, it was praised by papers that had been
- skeptical
-of the Court's activism in other cases. Deference was a good thing,
-even if it left standing a silly law. But where the decision was attacked,
-it was attacked because it left standing a silly and harmful law. The New
-York Times wrote in its editorial,
+the decision was praised, it was praised by papers that had been
+skeptical of the Court's activism in other cases. Deference was a good
+thing, even if it left standing a silly law. But where the decision
+was attacked, it was attacked because it left standing a silly and
+harmful law. The New York Times wrote in its editorial,
</para>
<blockquote>
<para>
In effect, the Supreme Court's decision makes it likely that we are
seeing the beginning of the end of public domain and the birth of
-copyright perpetuity. The public domain has been a grand
- experiment,
-one that should not be allowed to die. The ability to draw
-freely on the entire creative output of humanity is one of the
- reasons
-we live in a time of such fruitful creative ferment.
+copyright perpetuity. The public domain has been a grand experiment,
+one that should not be allowed to die. The ability to draw freely on
+the entire creative output of humanity is one of the reasons we live
+in a time of such fruitful creative ferment.
</para>
</blockquote>
<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. The
-"powerful and wealthy" line is a bit unfair. But the punch in the face felt
-exactly like that.
+The best responses were in the cartoons. There was a gaggle of
+hilarious images—of Mickey in jail and the like. The best, from
+my view of the case, was Ruben Bolling's, reproduced on the next
+page. The "powerful and wealthy" line is a bit unfair. But the punch
+in the face felt exactly like that.
</para>
<para>
The image that will always stick in my head is that evoked by the
quote from The New York Times. That "grand experiment" we call the
"public domain" is over? When I can make light of it, I think, "Honey,
-I shrunk the Constitution." But I can rarely make light of it. We had in
-our Constitution a commitment to free culture. In the case that I
- fathered,
-the Supreme Court effectively renounced that commitment. A
+I shrunk the Constitution." But I can rarely make light of it. We had
+in our Constitution a commitment to free culture. In the case that I
+fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
The day Eldred was decided, fate would have it that I was to travel to
-Washington, D.C. (The day the rehearing petition in Eldred was
- denied--meaning
-the case was really finally over--fate would have it that
-I was giving a speech to technologists at Disney World.) This was a
-particularly long flight to my least favorite city. The drive into the city
-from Dulles was delayed because of traffic, so I opened up my
- computer
-and wrote an op-ed piece.
+Washington, D.C. (The day the rehearing petition in Eldred was
+denied—meaning the case was really finally over—fate would
+have it that I was giving a speech to technologists at Disney World.)
+This was a particularly long flight to my least favorite city. The
+drive into the city from Dulles was delayed because of traffic, so I
+opened up my computer and wrote an op-ed piece.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
It was an act of contrition. During the whole of the flight from San
Francisco to Washington, I had heard over and over again in my head
Congress allows for those works where its worth is at least $1. But for
everything else, let the content go.
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-The reaction to this idea was amazingly strong. Steve Forbes
- endorsed
+The reaction to this idea was amazingly strong. Steve Forbes endorsed
it in an editorial. I received an avalanche of e-mail and letters
-expressing support. When you focus the issue on lost creativity, people
-can see the copyright system makes no sense. As a good Republican
-might say, here government regulation is simply getting in the way of
-innovation and creativity. And as a good Democrat might say, here the
-government is blocking access and the spread of knowledge for no
-good reason. Indeed, there is no real difference between Democrats
-and Republicans on this issue. Anyone can recognize the stupid harm
-of the present system.
-</para>
-<para>
-Indeed, many recognized the obvious benefit of the registration
- requirement.
-For one of the hardest things about the current system for
-people who want to license content is that there is no obvious place to
-look for the current copyright owners. Since registration is not
- required,
-since marking content is not required, since no formality at all
-is required, it is often impossibly hard to locate copyright owners to ask
-permission to use or license their work. This system would lower these
-costs, by establishing at least one registry where copyright owners
-could be identified.
-</para>
+expressing support. When you focus the issue on lost creativity,
+people can see the copyright system makes no sense. As a good
+Republican might say, here government regulation is simply getting in
+the way of innovation and creativity. And as a good Democrat might
+say, here the government is blocking access and the spread of
+knowledge for no good reason. Indeed, there is no real difference
+between Democrats and Republicans on this issue. Anyone can recognize
+the stupid harm of the present system.
+</para>
+<para>
+Indeed, many recognized the obvious benefit of the registration
+requirement. For one of the hardest things about the current system
+for people who want to license content is that there is no obvious
+place to look for the current copyright owners. Since registration is
+not required, since marking content is not required, since no
+formality at all is required, it is often impossibly hard to locate
+copyright owners to ask permission to use or license their work. This
+system would lower these costs, by establishing at least one registry
+where copyright owners could be identified.
+</para>
+<indexterm><primary>Berlin Act (1908)</primary></indexterm>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
As I described in chapter 10, formalities in copyright law were
- removed
-in 1976, when Congress followed the Europeans by
- abandoning
+removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
-<!-- f1. --> Until the 1908 Berlin Act of the Berne Convention, national copyright
-legislation sometimes made protection depend upon compliance with
- formalities
-such as registration, deposit, and affixation of notice of the
- author's
-claim of copyright. However, starting with the 1908 act, every text
-of the Convention has provided that "the enjoyment and the exercise" of
-rights guaranteed by the Convention "shall not be subject to any
- formality."
-The prohibition against formalities is presently embodied in Article
-5(2) of the Paris Text of the Berne Convention. Many countries continue
-to impose some form of deposit or registration requirement, albeit not as
-a condition of copyright. French law, for example, requires the deposit of
-copies of works in national repositories, principally the National Museum.
+<!-- f1. -->
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject
+to any formality." The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the National Museum.
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
-of Authors where the author's true name can be filed in the case of
- anonymous
-or pseudonymous works. Paul Goldstein, International Intellectual
-Property Law, Cases and Materials (New York: Foundation Press, 2001),
-15354.
-</para></footnote>
- The
- Europeans
-are said to view copyright as a "natural right." Natural rights
-don't need forms to exist. Traditions, like the Anglo-American
- tradition
-that required copyright owners to follow form if their rights were
-to be protected, did not, the Europeans thought, properly respect the
-dignity of the author. My right as a creator turns on my creativity, not
-upon the special favor of the government.
-</para>
-<para>
-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
+of Authors where the author's true name can be filed in the case of
+anonymous or pseudonymous works. Paul Goldstein, International
+Intellectual Property Law, Cases and Materials (New York: Foundation
+Press, 2001), 153–54. </para></footnote>
+The Europeans are said to view copyright as a "natural right." Natural
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+</para>
+<para>
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
</para>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
-The fight against formalities achieved its first real victory in Berlin
-in 1908. International copyright lawyers amended the Berne
- Convention
-in 1908, to require copyright terms of life plus fifty years, as well as
-the abolition of copyright formalities. The formalities were hated
- because
-the stories of inadvertent loss were increasingly common. It was
-as if a Charles Dickens character ran all copyright offices, and the
- failure
-to dot an i or cross a t resulted in the loss of widows' only income.
+The fight against formalities achieved its first real victory in
+Berlin in 1908. International copyright lawyers amended the Berne
+Convention in 1908, to require copyright terms of life plus fifty
+years, as well as the abolition of copyright formalities. The
+formalities were hated because the stories of inadvertent loss were
+increasingly common. It was as if a Charles Dickens character ran all
+copyright offices, and the failure to dot an i or cross a t resulted
+in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
-formalities, especially in the United States, was absurd. The law should
-always have ways of forgiving innocent mistakes. There is no reason
-copyright law couldn't, as well. Rather than abandoning formalities
- totally,
-the response in Berlin should have been to embrace a more
- equitable
-system of registration.
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
</para>
<para>
Even that would have been resisted, however, because registration
a moral claim as well. There was no reason that creative property
<!-- 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," 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.
+should be a second-class form of property. If a carpenter builds a
+table, his rights over the table don't depend upon filing a form with
+the government. He has a property right over the table "naturally,"
+and he can assert that right against anyone who would steal the table,
+whether or not he has informed the government of his ownership of the
+table.
</para>
<para>
-This argument is correct, but its implications are misleading. For
-the argument in favor of formalities does not depend upon creative
-property being second-class property. The argument in favor of
- formalities
-turns upon the special problems that creative property
- presents.
-The law of formalities responds to the special physics of creative
-property, to assure that it can be efficiently and fairly spread.
+This argument is correct, but its implications are misleading. For the
+argument in favor of formalities does not depend upon creative
+property being second-class property. The argument in favor of
+formalities turns upon the special problems that creative property
+presents. The law of formalities responds to the special physics of
+creative property, to assure that it can be efficiently and fairly
+spread.
</para>
<para>
No one thinks, for example, that land is second-class property just
-because you have to register a deed with a court if your sale of land is
-to be effective. And few would think a car is second-class property just
-because you must register the car with the state and tag it with a
- license.
-In both of those cases, everyone sees that there is an important
-reason to secure registration--both because it makes the markets more
-efficient and because it better secures the rights of the owner. Without
-a registration system for land, landowners would perpetually have to
-guard their property. With registration, they can simply point the
- police
-to a deed. Without a registration system for cars, auto theft would
-be much easier. With a registration system, the thief has a high burden
-to sell a stolen car. A slight burden is placed on the property owner, but
-those burdens produce a much better system of protection for property
-generally.
+because you have to register a deed with a court if your sale of land
+is to be effective. And few would think a car is second-class property
+just because you must register the car with the state and tag it with
+a license. In both of those cases, everyone sees that there is an
+important reason to secure registration—both because it makes
+the markets more efficient and because it better secures the rights of
+the owner. Without a registration system for land, landowners would
+perpetually have to guard their property. With registration, they can
+simply point the police to a deed. Without a registration system for
+cars, auto theft would be much easier. With a registration system, the
+thief has a high burden to sell a stolen car. A slight burden is
+placed on the property owner, but those burdens produce a much better
+system of protection for property generally.
</para>
<para>
It is similarly special physics that makes formalities important in
be presumptively uncontrolled.
</para>
<para>
-But now that copyrights can be just about a century long, the
- inability
-to know what is protected and what is not protected becomes a
-huge and obvious burden on the creative process. If the only way a
- library
-can offer an Internet exhibit about the New Deal is to hire a
-lawyer to clear the rights to every image and sound, then the copyright
-system is burdening creativity in a way that has never been seen before
-because there are no formalities.
+But now that copyrights can be just about a century long, the
+inability to know what is protected and what is not protected becomes
+a huge and obvious burden on the creative process. If the only way a
+library can offer an Internet exhibit about the New Deal is to hire a
+lawyer to clear the rights to every image and sound, then the
+copyright system is burdening creativity in a way that has never been
+seen before because there are no formalities.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
movie based on it. It should become free if it is not worth $1 to you.
</para>
<para>
-Some worry about the burden on authors. Won't the burden of
- registering
-the work mean that the $1 is really misleading? Isn't the hassle
-worth more than $1? Isn't that the real problem with registration?
+Some worry about the burden on authors. Won't the burden of
+registering the work mean that the $1 is really misleading? Isn't the
+hassle worth more than $1? Isn't that the real problem with
+registration?
</para>
<para>
It is. The hassle is terrible. The system that exists now is awful. I
doubt because they are terribly funded) in enabling simple and cheap
<!-- PAGE BREAK 260 -->
-registrations. Any real solution to the problem of formalities must
- address
-the real problem of governments standing at the core of any
- system
-of formalities. In this book, I offer such a solution. That solution
-essentially remakes the Copyright Office. For now, assume it was
-Amazon that ran the registration system. Assume it was one-click
- registration.
-The Eldred Act would propose a simple, one-click
- registration
-fifty years after a work was published. Based upon historical data,
-that system would move up to 98 percent of commercial work,
- commercial
-work that no longer had a commercial life, into the public
- domain
-within fifty years. What do you think?
+registrations. Any real solution to the problem of formalities must
+address the real problem of governments standing at the core of any
+system of formalities. In this book, I offer such a solution. That
+solution essentially remakes the Copyright Office. For now, assume it
+was Amazon that ran the registration system. Assume it was one-click
+registration. The Eldred Act would propose a simple, one-click
+registration fifty years after a work was published. Based upon
+historical data, that system would move up to 98 percent of commercial
+work, commercial work that no longer had a commercial life, into the
+public domain within fifty years. What do you think?
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-When Steve Forbes endorsed the idea, some in Washington began
-to pay attention. Many people contacted me pointing to
- representatives
-who might be willing to introduce the Eldred Act. And I had a few
-who directly suggested that they might be willing to take the first step.
+When Steve Forbes endorsed the idea, some in Washington began to pay
+attention. Many people contacted me pointing to representatives who
+might be willing to introduce the Eldred Act. And I had a few who
+directly suggested that they might be willing to take the first step.
</para>
<para>
One representative, Zoe Lofgren of California, went so far as to get
-the bill drafted. The draft solved any problem with international law. It
-imposed the simplest requirement upon copyright owners possible. In
-May 2003, it looked as if the bill would be introduced. On May 16, I
-posted on the Eldred Act blog, "we are close." There was a general
- reaction
-in the blog community that something good might happen here.
+the bill drafted. The draft solved any problem with international
+law. It imposed the simplest requirement upon copyright owners
+possible. In May 2003, it looked as if the bill would be
+introduced. On May 16, I posted on the Eldred Act blog, "we are
+close." There was a general reaction in the blog community that
+something good might happen here.
</para>
<para>
But at this stage, the lobbyists began to intervene. Jack Valenti and
-the MPAA general counsel came to the congresswoman's office to
-give the view of the MPAA. Aided by his lawyer, as Valenti told me,
-Valenti informed the congresswoman that the MPAA would oppose
-the Eldred Act. The reasons are embarrassingly thin. More importantly,
-their thinness shows something clear about what this debate is
- really
-about.
+the MPAA general counsel came to the congresswoman's office to give
+the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
+informed the congresswoman that the MPAA would oppose the Eldred
+Act. The reasons are embarrassingly thin. More importantly, their
+thinness shows something clear about what this debate is really about.
</para>
<para>
-The MPAA argued first that Congress had "firmly rejected the
- central
-concept in the proposed bill"--that copyrights be renewed. That
+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
<!-- PAGE BREAK 261 -->
long before the Internet made subsequent uses much more likely.
- Second,
-they argued that the proposal would harm poor copyright
- owners--apparently
-those who could not afford the $1 fee. Third, they
- argued
-that Congress had determined that extending a copyright term
-would encourage restoration work. Maybe in the case of the small
- percentage
-of work covered by copyright law that is still commercially
-valuable, but again this was irrelevant, as the proposal would not cut off
-the extended term unless the $1 fee was not paid. Fourth, the MPAA
-argued that the bill would impose "enormous" costs, since a registration
-system is not free. True enough, but those costs are certainly less than
-the costs of clearing the rights for a copyright whose owner is not
-known. Fifth, they worried about the risks if the copyright to a story
-underlying a film were to pass into the public domain. But what risk is
-that? If it is in the public domain, then the film is a valid derivative use.
-</para>
-<para>
-Finally, the MPAA argued that existing law enabled copyright
-owners to do this if they wanted. But the whole point is that there are
-thousands of copyright owners who don't even know they have a
- copyright
-to give. Whether they are free to give away their copyright or
-not--a controversial claim in any case--unless they know about a
-copyright, they're not likely to.
-</para>
-<para>
-At the beginning of this book, I told two stories about the law
- reacting
-to changes in technology. In the one, common sense prevailed.
-In the other, common sense was delayed. The difference between the
-two stories was the power of the opposition--the power of the side that
-fought to defend the status quo. In both cases, a new technology
- threatened
-old interests. But in only one case did those interest's have the
-power to protect themselves against this new competitive threat.
+Second, they argued that the proposal would harm poor copyright
+owners—apparently those who could not afford the $1 fee. Third,
+they argued that Congress had determined that extending a copyright
+term would encourage restoration work. Maybe in the case of the small
+percentage of work covered by copyright law that is still commercially
+valuable, but again this was irrelevant, as the proposal would not cut
+off the extended term unless the $1 fee was not paid. Fourth, the MPAA
+argued that the bill would impose "enormous" costs, since a
+registration system is not free. True enough, but those costs are
+certainly less than the costs of clearing the rights for a copyright
+whose owner is not known. Fifth, they worried about the risks if the
+copyright to a story underlying a film were to pass into the public
+domain. But what risk is that? If it is in the public domain, then the
+film is a valid derivative use.
+</para>
+<para>
+Finally, the MPAA argued that existing law enabled copyright owners to
+do this if they wanted. But the whole point is that there are
+thousands of copyright owners who don't even know they have a
+copyright to give. Whether they are free to give away their copyright
+or not—a controversial claim in any case—unless they know
+about a copyright, they're not likely to.
+</para>
+<para>
+At the beginning of this book, I told two stories about the law
+reacting to changes in technology. In the one, common sense prevailed.
+In the other, common sense was delayed. The difference between the two
+stories was the power of the opposition—the power of the side
+that fought to defend the status quo. In both cases, a new technology
+threatened old interests. But in only one case did those interest's
+have the power to protect themselves against this new competitive
+threat.
</para>
<para>
I used these two cases as a way to frame the war that this book has
<para>
<!-- PAGE BREAK 262 -->
-When the issue is piracy, it is right for the law to back the copyright
-owners. The commercial piracy that I described is wrong and harmful,
-and the law should work to eliminate it. When the issue is p2p
- sharing,
-it is easy to understand why the law backs the owners still: Much
-of this sharing is wrong, even if much is harmless. When the issue is
-copyright terms for the Mickey Mouses of the world, it is possible still
-to understand why the law favors Hollywood: Most people don't
- recognize
-the reasons for limiting copyright terms; it is thus still possible
-to see good faith within the resistance.
-</para>
-<para>
-But when the copyright owners oppose a proposal such as the
- Eldred
-Act, then, finally, there is an example that lays bare the naked
- selfinterest
-driving this war. This act would free an extraordinary range of
-content that is otherwise unused. It wouldn't interfere with any
- copyright
-owner's desire to exercise continued control over his content. It
-would simply liberate what Kevin Kelly calls the "Dark Content" that
-fills archives around the world. So when the warriors oppose a change
-like this, we should ask one simple question:
+When the issue is piracy, it is right for the law to back the
+copyright owners. The commercial piracy that I described is wrong and
+harmful, and the law should work to eliminate it. When the issue is
+p2p sharing, it is easy to understand why the law backs the owners
+still: Much of this sharing is wrong, even if much is harmless. When
+the issue is copyright terms for the Mickey Mouses of the world, it is
+possible still to understand why the law favors Hollywood: Most people
+don't recognize the reasons for limiting copyright terms; it is thus
+still possible to see good faith within the resistance.
+</para>
+<para>
+But when the copyright owners oppose a proposal such as the Eldred
+Act, then, finally, there is an example that lays bare the naked
+selfinterest driving this war. This act would free an extraordinary
+range of content that is otherwise unused. It wouldn't interfere with
+any copyright owner's desire to exercise continued control over his
+content. It would simply liberate what Kevin Kelly calls the "Dark
+Content" that fills archives around the world. So when the warriors
+oppose a change like this, we should ask one simple question:
</para>
<para>
What does this industry really want?
permission first.
</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
- tradition.
-Their aim is not simply to protect what is theirs. Their aim is to
- assure
-that all there is is what is theirs.
+The opposition to the Eldred Act reveals how extreme the other side
+is. The most powerful and sexy and well loved of lobbies really has as
+its aim not the protection of "property" but the rejection of a
+tradition. Their aim is not simply to protect what is theirs. Their
+aim is to assure that all there is is what is theirs.
</para>
<para>
It is not hard to understand why the warriors take this view. It is not
block the progress of others.
</para>
<para>
-All this seems to follow easily from this untroubled acceptance of
-the "property" in intellectual property. Common sense supports it, and
-so long as it does, the assaults will rain down upon the technologies of
-the Internet. The consequence will be an increasing "permission
- society."
-The past can be cultivated only if you can identify the owner and
-gain permission to build upon his work. The future will be controlled
-by this dead (and often unfindable) hand of the past.
+All this seems to follow easily from this untroubled acceptance of the
+"property" in intellectual property. Common sense supports it, and so
+long as it does, the assaults will rain down upon the technologies of
+the Internet. The consequence will be an increasing "permission
+society." The past can be cultivated only if you can identify the
+owner and gain permission to build upon his work. The future will be
+controlled by this dead (and often unfindable) hand of the past.
</para>
<!-- PAGE BREAK 264 -->
</sect1>
importantly, it is seventeen million Africans.
</para>
<para>
-There is no cure for AIDS, but there are drugs to slow its
- progression.
-These antiretroviral therapies are still experimental, but they have
-already had a dramatic effect. In the United States, AIDS patients who
-regularly take a cocktail of these drugs increase their life expectancy
-by ten to twenty years. For some, the drugs make the disease almost
-invisible.
+There is no cure for AIDS, but there are drugs to slow its
+progression. These antiretroviral therapies are still experimental,
+but they have already had a dramatic effect. In the United States,
+AIDS patients who regularly take a cocktail of these drugs increase
+their life expectancy by ten to twenty years. For some, the drugs make
+the disease almost invisible.
</para>
<para>
These drugs are expensive. When they were first introduced in the
<ulink url="http://free-culture.cc/notes/">link #55</ulink>. According to a World Health Organization press
release
issued 9 July 2002, only 230,000 of the 6 million who need drugs in
-the developing world receive them--and half of them are in Brazil.
+the developing world receive them—and half of them are in Brazil.
</para></footnote>
</para>
<para>
<!-- PAGE BREAK 265 -->
These prices are not high because the ingredients of the drugs are
expensive. These prices are high because the drugs are protected by
-patents. The drug companies that produced these life-saving mixes
- enjoy
-at least a twenty-year monopoly for their inventions. They use that
-monopoly power to extract the most they can from the market. That
+patents. The drug companies that produced these life-saving mixes
+enjoy at least a twenty-year monopoly for their inventions. They use
+that monopoly power to extract the most they can from the market. That
power is in turn used to keep the prices high.
</para>
<para>
There are many who are skeptical of patents, especially drug
-patents. I am not. Indeed, of all the areas of research that might be
- supported
-by patents, drug research is, in my view, the clearest case where
-patents are needed. The patent gives the drug company some assurance
-that if it is successful in inventing a new drug to treat a disease, it will
-be able to earn back its investment and more. This is socially an
- extremely
-valuable incentive. I am the last person who would argue that
-the law should abolish it, at least without other changes.
-</para>
-<para>
-But it is one thing to support patents, even drug patents. It is
- another
-thing to determine how best to deal with a crisis. And as African
-leaders began to recognize the devastation that AIDS was bringing,
-they started looking for ways to import HIV treatments at costs
- significantly
-below the market price.
+patents. I am not. Indeed, of all the areas of research that might be
+supported by patents, drug research is, in my view, the clearest case
+where patents are needed. The patent gives the drug company some
+assurance that if it is successful in inventing a new drug to treat a
+disease, it will be able to earn back its investment and more. This is
+socially an extremely valuable incentive. I am the last person who
+would argue that the law should abolish it, at least without other
+changes.
+</para>
+<para>
+But it is one thing to support patents, even drug patents. It is
+another thing to determine how best to deal with a crisis. And as
+African leaders began to recognize the devastation that AIDS was
+bringing, they started looking for ways to import HIV treatments at
+costs significantly below the market price.
</para>
<para>
In 1997, South Africa tried one tack. It passed a law to allow the
importation of patented medicines that had been produced or sold in
-another nation's market with the consent of the patent owner. For
- example,
-if the drug was sold in India, it could be imported into Africa
-from India. This is called "parallel importation," and it is generally
- permitted
-under international trade law and is specifically permitted
-within the European Union.<footnote><para>
-<!-- f2. --> See Peter Drahos with John Braithwaite, Information Feudalism: Who
+another nation's market with the consent of the patent owner. For
+example, if the drug was sold in India, it could be imported into
+Africa from India. This is called "parallel importation," and it is
+generally permitted under international trade law and is specifically
+permitted within the European Union.<footnote>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
+<para>
+<!-- f2. -->
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
</para></footnote>
</para>
<ulink url="http://free-culture.cc/notes/">link #56</ulink>. For a firsthand account of the struggle over
South Africa, see Hearing Before the Subcommittee on Criminal Justice,
Drug Policy, and Human Resources, House Committee on Government
-Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 15057
+Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150–57
(statement of James Love).
</para></footnote>
Through the
Office of the United States Trade Representative, the government
-asked South Africa to change the law--and to add pressure to that
+asked South Africa to change the law—and to add pressure to that
request,
in 1998, the USTR listed South Africa for possible trade sanctions.
<!-- PAGE BREAK 266 -->
companies,
was that South Africa was violating its obligations under
international
-law by discriminating against a particular kind of patent--
+law by discriminating against a particular kind of patent—
pharmaceutical patents. The demand of these governments, with the
United States in the lead, was that South Africa respect these patents
as it respects any other patent, regardless of any effect on the treatment
</para>
<para>
Nor was the intervention by the United States going to protect the
-profits of United States drug companies--at least, not substantially. It
+profits of United States drug companies—at least, not substantially. It
was not as if these countries were in the position to buy the drugs for
the prices the drug companies were charging. Again, the Africans are
wildly too poor to afford these drugs at the offered prices. Stopping the
Their managers are ordered by law to make money for the corporation.
They push a certain patent policy not because of ideals, but because it is
the policy that makes them the most money. And it only makes them the
-most money because of a certain corruption within our political system--
+most money because of a certain corruption within our political system—
a corruption the drug companies are certainly not responsible for.
</para>
<para>
The corruption is our own politicians' failure of integrity. For the
-drug companies would love--they say, and I believe them--to sell their
+drug companies would love—they say, and I believe them—to sell their
drugs as cheaply as they can to countries in Africa and elsewhere.
There are issues they'd have to resolve to make sure the drugs didn't get
back into the United States, but those are mere problems of
<!-- 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
+strategy thus becomes framed in terms of this ideal—the sanctity of an
idea called "intellectual property."
</para>
<para>
critical eye that helps us see the difference between truth and
extremism.
A certain property fundamentalism, having no connection to our
-tradition, now reigns in this culture--bizarrely, and with consequences
+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
them. So uncritically do we accept the idea of property in culture that
we don't even question when the control of that property removes our
<!-- PAGE BREAK 269 -->
-ability, as a people, to develop our culture democratically. Blindness
- becomes
-our common sense. And the challenge for anyone who would
-reclaim the right to cultivate our culture is to find a way to make this
-common sense open its eyes.
+ability, as a people, to develop our culture democratically. Blindness
+becomes our common sense. And the challenge for anyone who would
+reclaim the right to cultivate our culture is to find a way to make
+this common sense open its eyes.
</para>
<para>
So far, common sense sleeps. There is no revolt. Common sense
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
+operating system, the most famous bit of "free software"—and IBM is
emphatically a commercial entity. Thus, to support "open source and
free software" is not to oppose commercial entities. It is, instead, to
support a mode of software development that is different from
</para>
<para>
More important for our purposes, to support "open source and free
-software" is not to oppose copyright. "Open source and free
- software"
+software" is not to oppose copyright. "Open source and free software"
is not software in the public domain. Instead, like Microsoft's
software, the copyright owners of free and open source software insist
-quite strongly that the terms of their software license be respected by
+quite strongly that the terms of their software license be respected
+by
<!-- PAGE BREAK 272 -->
-adopters of free and open source software. The terms of that license are
-no doubt different from the terms of a proprietary software license.
-Free software licensed under the General Public License (GPL), for
-example, requires that the source code for the software be made
- available
-by anyone who modifies and redistributes the software. But that
-requirement is effective only if copyright governs software. If copyright
-did not govern software, then free software could not impose the same
-kind of requirements on its adopters. It thus depends upon copyright
-law just as Microsoft does.
-</para>
-<para>
-It is therefore understandable that as a proprietary software
- developer,
-Microsoft would oppose this WIPO meeting, and
- understandable
-that it would use its lobbyists to get the United States government
-to oppose it, as well. And indeed, that is just what was reported to have
-happened. According to Jonathan Krim of the Washington Post,
- Microsoft's
-lobbyists succeeded in getting the United States government
-to veto the meeting.<footnote><para>
-<!-- f9. --> Krim, "The Quiet War over Open-Source," available at
-<ulink url="http://free-culture.cc/notes/">link #64</ulink>.
-</para></footnote>
- And without U.S. backing, the meeting was
- canceled.
-</para>
-<para>
-I don't blame Microsoft for doing what it can to advance its own
- interests,
-consistent with the law. And lobbying governments is plainly
-consistent with the law. There was nothing surprising about its
- lobbying
-here, and nothing terribly surprising about the most powerful
- software
-producer in the United States having succeeded in its lobbying
-efforts.
+adopters of free and open source software. The terms of that license
+are no doubt different from the terms of a proprietary software
+license. Free software licensed under the General Public License
+(GPL), for example, requires that the source code for the software be
+made available by anyone who modifies and redistributes the
+software. But that requirement is effective only if copyright governs
+software. If copyright did not govern software, then free software
+could not impose the same kind of requirements on its adopters. It
+thus depends upon copyright law just as Microsoft does.
+</para>
+<para>
+It is therefore understandable that as a proprietary software
+developer, Microsoft would oppose this WIPO meeting, and
+understandable that it would use its lobbyists to get the United
+States government to oppose it, as well. And indeed, that is just what
+was reported to have happened. According to Jonathan Krim of the
+Washington Post, Microsoft's lobbyists succeeded in getting the United
+States government to veto the meeting.<footnote><para>
+<!-- f9. -->
+Krim, "The Quiet War over Open-Source," available at <ulink
+url="http://free-culture.cc/notes/">link #64</ulink>.
+</para></footnote>
+And without U.S. backing, the meeting was canceled.
+</para>
+<para>
+I don't blame Microsoft for doing what it can to advance its own
+interests, consistent with the law. And lobbying governments is
+plainly consistent with the law. There was nothing surprising about
+its lobbying here, and nothing terribly surprising about the most
+powerful software producer in the United States having succeeded in
+its lobbying efforts.
</para>
<para>
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
director of international relations for the U.S. Patent and Trademark
-Office, explained that "open-source software runs counter to the
- mission
-of WIPO, which is to promote intellectual-property rights." She
-is quoted as saying, "To hold a meeting which has as its purpose to
- disclaim
-or waive such rights seems to us to be contrary to the goals of
-WIPO."
+Office, explained that "open-source software runs counter to the
+mission of WIPO, which is to promote intellectual-property rights."
+She is quoted as saying, "To hold a meeting which has as its purpose
+to disclaim or waive such rights seems to us to be contrary to the
+goals of WIPO."
</para>
<para>
These statements are astonishing on a number of levels.
<!-- PAGE BREAK 273 -->
<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 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.
+free software relies fundamentally upon the intellectual property
+right called "copyright". Without it, restrictions imposed by those
+licenses wouldn't work. Thus, to say it "runs counter" to the mission
+of promoting intellectual property rights reveals an extraordinary gap
+in understanding—the sort of mistake that is excusable in a
+first-year law student, but an embarrassment from a high government
+official dealing with intellectual property issues.
</para>
<para>
Second, who ever said that WIPO's exclusive aim was to "promote"
-intellectual property maximally? As I had been scolded at the
- preparatory
-conference of WSIS, WIPO is to consider not only how best to
-protect intellectual property, but also what the best balance of
- intellectual
-property is. As every economist and lawyer knows, the hard
- question
-in intellectual property law is to find that balance. But that there
-should be limits is, I had thought, uncontested. One wants to ask Ms.
-Boland, are generic drugs (drugs based on drugs whose patent has
-expired) contrary to the WIPO mission? Does the public domain
-weaken intellectual property? Would it have been better if the
- protocols
-of the Internet had been patented?
-</para>
-<para>
-Third, even if one believed that the purpose of WIPO was to
- maximize
+intellectual property maximally? As I had been scolded at the
+preparatory conference of WSIS, WIPO is to consider not only how best
+to protect intellectual property, but also what the best balance of
+intellectual property is. As every economist and lawyer knows, the
+hard question in intellectual property law is to find that
+balance. But that there should be limits is, I had thought,
+uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
+based on drugs whose patent has expired) contrary to the WIPO mission?
+Does the public domain weaken intellectual property? Would it have
+been better if the protocols of the Internet had been patented?
+</para>
+<para>
+Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
rights are held by individuals and corporations. They get to decide
-what to do with those rights because, again, they are their rights. If they
-want to "waive" or "disclaim" their rights, that is, within our tradition,
-totally appropriate. When Bill Gates gives away more than $20 billion
-to do good in the world, that is not inconsistent with the objectives of
-the property system. That is, on the contrary, just what a property
- system
-is supposed to be about: giving individuals the right to decide what
-to do with their property.
+what to do with those rights because, again, they are their rights. If
+they want to "waive" or "disclaim" their rights, that is, within our
+tradition, totally appropriate. When Bill Gates gives away more than
+$20 billion to do good in the world, that is not inconsistent with the
+objectives of the property system. That is, on the contrary, just what
+a property system is supposed to be about: giving individuals the
+right to decide what to do with their property.
</para>
<para>
-When Ms. Boland says that there is something wrong with a
- meeting
+When Ms. Boland says that there is something wrong with a meeting
"which has as its purpose to disclaim or waive such rights," she's
saying that WIPO has an interest in interfering with the choices of
<!-- 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 is
-not just that intellectual property rights be maximized, but that they also
-should be exercised in the most extreme and restrictive way possible.
+WIPO's objective should be to stop an individual from "waiving" or
+"disclaiming" an intellectual property right. That the interest of
+WIPO is not just that intellectual property rights be maximized, but
+that they also should be exercised in the most extreme and restrictive
+way possible.
</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
- feudalism,
-not only was property held by a relatively small number of
- individuals
-and entities. And not only were the rights that ran with that
-property powerful and extensive. But the feudal system had a strong
-interest in assuring that property holders within that system not
-weaken feudalism by liberating people or property within their control
-to the free market. Feudalism depended upon maximum control and
-concentration. It fought any freedom that might interfere with that
-control.
-</para>
+in the Anglo-American tradition. It is called "feudalism." Under
+feudalism, not only was property held by a relatively small number of
+individuals and entities. And not only were the rights that ran with
+that property powerful and extensive. But the feudal system had a
+strong interest in assuring that property holders within that system
+not weaken feudalism by liberating people or property within their
+control to the free market. Feudalism depended upon maximum control
+and concentration. It fought any freedom that might interfere with
+that control.
+</para>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
-<!-- f10. --> See Drahos with Braithwaite, Information Feudalism, 21020.
+<!-- f10. -->
+See Drahos with Braithwaite, Information Feudalism, 210–20.
</para></footnote>
- We will have
-an information society. That much is certain. Our only choice now is
-whether that information society will be free or feudal. The trend is
- toward
-the feudal.
+We will have an information society. That much is certain. Our only
+choice now is whether that information society will be free or
+feudal. The trend is toward the feudal.
</para>
<para>
When this battle broke, I blogged it. A spirited debate within the
comment section ensued. Ms. Boland had a number of supporters who
-tried to show why her comments made sense. But there was one
- comment
-that was particularly depressing for me. An anonymous poster
-wrote,
+tried to show why her comments made sense. But there was one comment
+that was particularly depressing for me. An anonymous poster wrote,
</para>
<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, should be to promote the right balance of
- intellectualproperty
-rights, not simply to promote intellectual property
-rights"), not as it is. If we were talking about the world as it is,
-then of course Boland didn't say anything wrong. But in the world
+George, you misunderstand Lessig: He's only talking about the world as
+it should be ("the goal of WIPO, and the goal of any government,
+should be to promote the right balance of intellectualproperty rights,
+not simply to promote intellectual property rights"), not as it is. If
+we were talking about the world as it is, then of course Boland didn't
+say anything wrong. But in the world
<!-- PAGE BREAK 275 -->
-as Lessig would have it, then of course she did. Always pay
- attention
+as Lessig would have it, then of course she did. Always pay attention
to the distinction between Lessig's world and ours.
</para>
</blockquote>
whether our government should speak the truth or not.)
</para>
<para>
-Obviously, however, the poster was not supporting that idea.
- Instead,
+Obviously, however, the poster was not supporting that idea. Instead,
the poster was ridiculing the very idea that in the real world, the
-"goal" of a government should be "to promote the right balance" of
- intellectual
-property. That was obviously silly to him. And it obviously
-betrayed, he believed, my own silly utopianism. "Typical for an
- academic,"
-the poster might well have continued.
+"goal" of a government should be "to promote the right balance" of
+intellectual property. That was obviously silly to him. And it
+obviously betrayed, he believed, my own silly utopianism. "Typical for
+an academic," the poster might well have continued.
</para>
<para>
-I understand criticism of academic utopianism. I think utopianism
-is silly, too, and I'd be the first to poke fun at the absurdly unrealistic
-ideals of academics throughout history (and not just in our own
- country's
-history).
+I understand criticism of academic utopianism. I think utopianism is
+silly, too, and I'd be the first to poke fun at the absurdly
+unrealistic ideals of academics throughout history (and not just in
+our own country's history).
</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, 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
+But when it has become silly to suppose that the role of our
+government should be to "seek balance," then count me with the silly,
+for that means that this has become quite serious indeed. If it should
+be obvious to everyone that the government does not seek balance, that
the government is simply the tool of the most powerful lobbyists, that
the idea of holding the government to a different standard is absurd,
that the idea of demanding of the government that it speak truth and
-not lies is just naïve, then who have we, the most powerful democracy
-in the world, become?
+not lies is just naïve, then who have we, the most powerful
+democracy in the world, become?
</para>
<para>
It might be crazy to expect a high government official to speak
something more than the handmaiden of the most powerful interests.
<!-- PAGE BREAK 276 -->
It might be crazy to argue that we should preserve a tradition that has
-been part of our tradition for most of our history--free culture.
-</para>
-<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 FCC was considering relaxing ownership rules,
-which would thereby further increase the concentration in media
- ownership,
-an extraordinary bipartisan coalition formed to fight this
-change. For perhaps the first time in history, interests as diverse as the
-NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and
-CodePink Women for Peace organized to oppose this change in FCC
-policy. An astonishing 700,000 letters were sent to the FCC,
- demanding
-more hearings and a different result.
+been part of our tradition for most of our history—free culture.
</para>
+<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<para>
-This activism did not stop the FCC, but soon after, a broad
- coalition
-in the Senate voted to reverse the FCC decision. The hostile
- hearings
-leading up to that vote revealed just how powerful this movement
-had become. There was no substantial support for the FCC's decision,
-and there was broad and sustained support for fighting further
- concentration
-in the media.
+If this is crazy, then let there be more crazies. Soon. There are
+moments of hope in this struggle. And moments that surprise. When the
+FCC was considering relaxing ownership rules, which would thereby
+further increase the concentration in media ownership, an
+extraordinary bipartisan coalition formed to fight this change. For
+perhaps the first time in history, interests as diverse as the NRA,
+the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
+for Peace organized to oppose this change in FCC policy. An
+astonishing 700,000 letters were sent to the FCC, demanding more
+hearings and a different result.
+</para>
+<para>
+This activism did not stop the FCC, but soon after, a broad coalition
+in the Senate voted to reverse the FCC decision. The hostile hearings
+leading up to that vote revealed just how powerful this movement had
+become. There was no substantial support for the FCC's decision, and
+there was broad and sustained support for fighting further
+concentration in the media.
</para>
<para>
But even this movement misses an important piece of the puzzle.
Largeness as such is not bad. Freedom is not threatened just because
-some become very rich, or because there are only a handful of big
- players.
-The poor quality of Big Macs or Quarter Pounders does not mean
-that you can't get a good hamburger from somewhere else.
+some become very rich, or because there are only a handful of big
+players. The poor quality of Big Macs or Quarter Pounders does not
+mean that you can't get a good hamburger from somewhere else.
</para>
<para>
-The danger in media concentration comes not from the
- concentration,
+The danger in media concentration comes not from the concentration,
but instead from the feudalism that this concentration, tied to the
-change in copyright, produces. It is not just that there are a few
- powerful
-companies that control an ever expanding slice of the media. It
-is that this concentration can call upon an equally bloated range of
-rights--property rights of a historically extreme form--that makes
-their bigness bad.
+change in copyright, produces. It is not just that there are a few
+powerful companies that control an ever expanding slice of the
+media. It is that this concentration can call upon an equally bloated
+range of rights—property rights of a historically extreme
+form—that makes their bigness bad.
</para>
<!-- PAGE BREAK 277 -->
<para>
-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.
+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.
</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 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.
+It would be something new, and something very important, if an equal
+number could be rallied to fight the increasing extremism built within
+the idea of "intellectual property." Not because balance is alien to
+our tradition; indeed, as I've argued, balance is our tradition. But
+because the muscle to think critically about the scope of anything
+called "property" is not well exercised within this tradition anymore.
</para>
<para>
If we were Achilles, this would be our heel. This would be the place
<para>
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 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul R. La Monica, "Music
- Industry
-Sues Swappers," CNN/Money, 8 September 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a
-Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily
-News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet
- Surprised
+<!-- f11. -->
+John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul
+R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni
+Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
+September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
- available
-at
+"Schoolgirl Settles with RIAA," Wired News, 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 music.<footnote><para>
-<!-- f12. --> Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com,
-17 September 2003, available at
+Eminem has just been sued for "sampling" someone else's
+music.<footnote><para>
+<!-- f12. -->
+Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+mtv.com, 17 September 2003, available at
<ulink url="http://free-culture.cc/notes/">link #68</ulink>.
</para></footnote>
- The
-story about Bob Dylan "stealing" 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
+The story about Bob Dylan "stealing" 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
<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 guys. They've got extraordinary [old] content that they'd
-love to use but can't because they can't begin to clear the rights. They've
-got scores of kids who could do amazing things with the content, but
-it would take scores of lawyers to clean it first." Congressmen are
- talking
-about deputizing computer viruses to bring down computers thought
-to violate the law. Universities are threatening expulsion for kids who
-use a computer to share content.
+An insider from Hollywood—who insists he must remain
+anonymous—reports "an amazing conversation with these studio
+guys. They've got extraordinary [old] content that they'd love to use
+but can't because they can't begin to clear the rights. They've got
+scores of kids who could do amazing things with the content, but it
+would take scores of lawyers to clean it first." Congressmen are
+talking about deputizing computer viruses to bring down computers
+thought to violate the law. Universities are threatening expulsion for
+kids who use a computer to share content.
</para>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
24 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
</para></footnote>
- And in Brazil, the
-culture minister, Gilberto Gil, himself a folk hero of Brazilian music,
-has joined with Creative Commons to release content and free licenses
-in that Latin American country.<footnote><para>
+<indexterm><primary>Gil, Gilberto</primary></indexterm>
+And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
+of Brazilian music, has joined with Creative Commons to release
+content and free licenses in that Latin American
+country.<footnote><para>
<!-- f15. --> "Creative Commons and Brazil," Creative Commons Weblog, 6 August
2003, available at
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that
- something
-must be done to change where we are heading. The balance of
-this book maps what might be done.
+At least some who have read this far will agree with me that something
+must be done to change where we are heading. The balance of this book
+maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
it requires remaking how many people think about the very same issue.
</para>
<para>
-That means this movement must begin in the streets. It must
- recruit
-a significant number of parents, teachers, librarians, creators,
- authors,
-musicians, filmmakers, scientists--all to tell this story in their
-own words, and to tell their neighbors why this battle is so important.
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators,
+authors, musicians, filmmakers, scientists—all to tell this
+story in their own words, and to tell their neighbors why this battle
+is so important.
</para>
<para>
Once this movement has its effect in the streets, it has some hope of
<sect1 id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so
-far has been framed at the extremes--as a grand either/or: either
- property
-or anarchy, either total control or artists won't be paid. If that
- really
-is the choice, then the warriors should win.
+Common sense is with the copyright warriors because the debate so far
+has been framed at the extremes—as a grand either/or: either
+property or anarchy, either total control or artists won't be paid. If
+that really is the choice, then the warriors should win.
</para>
<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 as you wish,
- regardless
-of whether you have permission or not.
+The mistake here is the error of the excluded middle. There are
+extremes in this debate, but the extremes are not all that there
+is. There are those who believe in maximal copyright—"All Rights
+Reserved"— and those who reject copyright—"No Rights
+Reserved." The "All Rights Reserved" sorts believe that you should ask
+permission before you "use" a copyrighted work in any way. The "No
+Rights Reserved" sorts believe you should be able to do with content
+as you wish, regardless of whether you have permission or not.
</para>
<para>
When the Internet was first born, its initial architecture effectively
tilted in the "no rights reserved" direction. Content could be copied
-perfectly and cheaply; rights could not easily be controlled. Thus,
- regardless
-of anyone's desire, the effective regime of copyright under the
+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
- unprotected.
+"taken" regardless of the rights. Any rights were effectively
+unprotected.
</para>
<para>
This initial character produced a reaction (opposite, but not quite
equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
-design, copyright holders have been able to change the essential
- character
-of the environment of the original Internet. If the original
- architecture
-made the effective default "no rights reserved," the future
-architecture will make the effective default "all rights reserved." The
- architecture
-and law that surround the Internet's design will increasingly
-produce an environment where all use of content requires permission.
-The "cut and paste" world that defines the Internet today will become
-a "get permission to cut and paste" world that is a creator's nightmare.
-</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"--
+design, copyright holders have been able to change the essential
+character of the environment of the original Internet. If the original
+architecture made the effective default "no rights reserved," the
+future architecture will make the effective default "all rights
+reserved." The architecture and law that surround the Internet's
+design will increasingly produce an environment where all use of
+content requires permission. The "cut and paste" world that defines
+the Internet today will become a "get permission to cut and paste"
+world that is a creator's nightmare.
+</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 creators to free content
as they see fit. In other words, we need a way to restore a set of
freedoms
<sect2 id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
-If you step back from the battle I've been describing here, you will
- recognize
-this problem from other contexts. Think about privacy. Before
-the Internet, most of us didn't have to worry much about data about
-our lives that we broadcast to the world. If you walked into a bookstore
-and browsed through some of the works of Karl Marx, you didn't need
-to worry about explaining your browsing habits to your neighbors or
-boss. The "privacy" of your browsing habits was assured.
+If you step back from the battle I've been describing here, you will
+recognize this problem from other contexts. Think about
+privacy. Before the Internet, most of us didn't have to worry much
+about data about our lives that we broadcast to the world. If you
+walked into a bookstore and browsed through some of the works of Karl
+Marx, you didn't need to worry about explaining your browsing habits
+to your neighbors or boss. The "privacy" of your browsing habits was
+assured.
</para>
<para>
What made it assured?
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture for
-gathering data and hence a market constraint (cost) on anyone who
-wanted to gather that data. If you were a suspected spy for North
- Korea,
-working for the CIA, no doubt your privacy would not be assured.
-But that's because the CIA would (we hope) find it valuable enough to
-spend the thousands required to track you. But for most of us (again,
-we can hope), spying doesn't pay. The highly inefficient architecture of
-real space means we all enjoy a fairly robust amount of privacy. That
-privacy is guaranteed to us by friction. Not by law (there is no law
- protecting
-"privacy" in public places), and in many places, not by norms
-(snooping and gossip are just fun), but instead, by the costs that
- friction
-imposes on anyone who would want to spy.
-</para>
-<para>
-Enter the Internet, where the cost of tracking browsing in
- particular
+10, your privacy was assured because of an inefficient architecture
+for gathering data and hence a market constraint (cost) on anyone who
+wanted to gather that data. If you were a suspected spy for North
+Korea, working for the CIA, no doubt your privacy would not be
+assured. But that's because the CIA would (we hope) find it valuable
+enough to spend the thousands required to track you. But for most of
+us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount
+of privacy. That privacy is guaranteed to us by friction. Not by law
+(there is no law protecting "privacy" in public places), and in many
+places, not by norms (snooping and gossip are just fun), but instead,
+by the costs that friction imposes on anyone who would want to spy.
+</para>
+<indexterm><primary>Amazon</primary></indexterm>
+<para>
+Enter the Internet, where the cost of tracking browsing in particular
has become quite tiny. If you're a customer at Amazon, then as you
browse the pages, Amazon collects the data about what you've looked
-at. You know this because at the side of the page, there's a list of
- "recently
-viewed" pages. Now, because of the architecture of the Net and
-the function of cookies on the Net, it is easier to collect the data than
-not. The friction has disappeared, and hence any "privacy" protected by
-the friction disappears, too.
+at. You know this because at the side of the page, there's a list of
+"recently viewed" pages. Now, because of the architecture of the Net
+and the function of cookies on the Net, it is easier to collect the
+data than not. The friction has disappeared, and hence any "privacy"
+protected by the friction disappears, too.
</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
- government
-knowing which books you look at (I'm one of those lefties,
+Amazon, of course, is not the problem. But we might begin to worry
+about libraries. If you're one of those crazy lefties who thinks that
+people should have the "right" to browse in a library without the
+government knowing which books you look at (I'm one of those lefties,
too), then this change in the technology of monitoring might concern
-you. If it becomes simple to gather and sort who does what in electronic
-spaces, then the friction-induced privacy of yesterday disappears.
+you. If it becomes simple to gather and sort who does what in
+electronic spaces, then the friction-induced privacy of yesterday
+disappears.
</para>
<para>
It is this reality that explains the push of many to define "privacy"
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
- friction
-did.<footnote><para>
-<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
- Architecture
-of Privacy (What Larry Doesn't Get)," Stanford Technology Law
-Review 1 (2001): par. 618, available at
-<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
-which technology defines privacy policy). See also Jeffrey Rosen, The Naked
-Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
- Random
-House, 2004) (mapping tradeoffs between technology and privacy).
-</para></footnote>
- And whether you're in favor of those laws or not, it is the
- pattern
+friction did.<footnote><para>
+<!-- f1. -->
+
+See, for example, Marc Rotenberg, "Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+Law Review 1 (2001): par. 6–18, available at
+
+<ulink url="http://free-culture.cc/notes/">link #72</ulink>
+(describing examples in which technology defines privacy policy). See
+also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
+between technology and privacy).</para></footnote>
+And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
<!-- PAGE BREAK 284 -->
-kind of freedom that was passively provided before. A change in
- technology
-now forces those who believe in privacy to affirmatively act
-where, before, privacy was given by default.
+kind of freedom that was passively provided before. A change in
+technology now forces those who believe in privacy to affirmatively
+act where, before, privacy was given by default.
</para>
<para>
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
-commercially, the software--both the source code and the binaries--
-was free. You couldn't run a program written for a Data General
- machine
-on an IBM machine, so Data General and IBM didn't care much
-about controlling their software.
+commercially, the software—both the source code and the
+binaries— was free. You couldn't run a program written for a
+Data General machine on an IBM machine, so Data General and IBM didn't
+care much about controlling their software.
</para>
+<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
-That was the world Richard Stallman was born into, and while he
-was a researcher at MIT, he grew to love the community that
- developed
-when one was free to explore and tinker with the software that
-ran on machines. Being a smart sort himself, and a talented
- programmer,
-Stallman grew to depend upon the freedom to add to or modify
-other people's work.
-</para>
-<para>
-In an academic setting, at least, that's not a terribly radical idea. In
-a math department, anyone would be free to tinker with a proof that
-someone offered. If you thought you had a better way to prove a
- theorem,
-you could take what someone else did and change it. In a classics
-department, if you believed a colleague's translation of a recently
- discovered
-text was flawed, you were free to improve it. Thus, to Stallman,
-it seemed obvious that you should be free to tinker with and improve
-the code that ran a machine. This, too, was knowledge. Why shouldn't
-it be open for criticism like anything else?
+That was the world Richard Stallman was born into, and while he was a
+researcher at MIT, he grew to love the community that developed when
+one was free to explore and tinker with the software that ran on
+machines. Being a smart sort himself, and a talented programmer,
+Stallman grew to depend upon the freedom to add to or modify other
+people's work.
+</para>
+<para>
+In an academic setting, at least, that's not a terribly radical
+idea. In a math department, anyone would be free to tinker with a
+proof that someone offered. If you thought you had a better way to
+prove a theorem, you could take what someone else did and change
+it. In a classics department, if you believed a colleague's
+translation of a recently discovered text was flawed, you were free to
+improve it. Thus, to Stallman, it seemed obvious that you should be
+free to tinker with and improve the code that ran a machine. This,
+too, was knowledge. Why shouldn't it be open for criticism like
+anything else?
</para>
<para>
No one answered that question. Instead, the architecture of revenue
-for computing changed. As it became possible to import programs
-from one system to another, it became economically attractive (at least
-in the view of some) to hide the code of your program. So, too, as
- companies
-started selling peripherals for mainframe systems. If I could just
-take your printer driver and copy it, then that would make it easier for
-me to sell a printer to the market than it was for you.
+for computing changed. As it became possible to import programs from
+one system to another, it became economically attractive (at least in
+the view of some) to hide the code of your program. So, too, as
+companies started selling peripherals for mainframe systems. If I
+could just take your printer driver and copy it, then that would make
+it easier for me to sell a printer to the market than it was for you.
</para>
<para>
Thus, the practice of proprietary code began to spread, and by the
early 1980s, Stallman found himself surrounded by proprietary code.
<!-- PAGE BREAK 285 -->
-The world of free software had been erased by a change in the
- economics
-of computing. And as he believed, if he did nothing about it,
-then the freedom to change and share software would be
- fundamentally
-weakened.
+The world of free software had been erased by a change in the
+economics of computing. And as he believed, if he did nothing about
+it, then the freedom to change and share software would be
+fundamentally weakened.
</para>
<para>
-Therefore, in 1984, Stallman began a project to build a free
- operating
+Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
</para>
<para>
Stallman's technique was to use copyright law to build a world of
-software that must be kept free. Software licensed under the Free
- Software
-Foundation's GPL cannot be modified and distributed unless the
-source code for that software is made available as well. Thus, anyone
-building upon GPL'd software would have to make their buildings free
-as well. This would assure, Stallman believed, that an ecology of code
-would develop that remained free for others to build upon. His
- fundamental
-goal was freedom; innovative creative code was a byproduct.
+software that must be kept free. Software licensed under the Free
+Software Foundation's GPL cannot be modified and distributed unless
+the source code for that software is made available as well. Thus,
+anyone building upon GPL'd software would have to make their buildings
+free as well. This would assure, Stallman believed, that an ecology of
+code would develop that remained free for others to build upon. His
+fundamental goal was freedom; innovative creative code was a
+byproduct.
</para>
<para>
Stallman was thus doing for software what privacy advocates now
the risks of a certain treatment could research those risks by reading all
available articles about that treatment. This freedom was therefore a
function of the institution of libraries (norms) and the technology of
-paper journals (architecture)--namely, that it was very hard to control
+paper journals (architecture)—namely, that it was very hard to control
access to a paper journal.
</para>
<para>
publishers and their efforts to make money from the exclusive
distribution of content. But competition in our tradition is
presumptively
-a good--especially when it helps spread knowledge and science.
+a good—especially when it helps spread knowledge and science.
</para>
</sect2>
control effected through law and technology.
</para>
<para>
-Enter the Creative Commons. The Creative Commons is a
- nonprofit
+Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
-Stanford University. Its aim is to build a layer of reasonable copyright
-on top of the extremes that now reign. It does this by making it easy for
-people to build upon other people's work, by making it simple for
- creators
-to express the freedom for others to take and build upon their
-work. Simple tags, tied to human-readable descriptions, tied to
- bulletproof
-licenses, make this possible.
-</para>
-<para>
-Simple--which means without a middleman, or without a lawyer.
-By developing a free set of licenses that people can attach to their
-content, Creative Commons aims to mark a range of content that
-can easily, and reliably, be built upon. These tags are then linked to
-machine-readable versions of the license that enable computers
- automatically
-to identify content that can easily be shared. These three
- expressions
-together--a legal license, a human-readable description, and
+Stanford University. Its aim is to build a layer of reasonable
+copyright on top of the extremes that now reign. It does this by
+making it easy for people to build upon other people's work, by making
+it simple for creators to express the freedom for others to take and
+build upon their work. Simple tags, tied to human-readable
+descriptions, tied to bulletproof licenses, make this possible.
+</para>
+<para>
+Simple—which means without a middleman, or without a lawyer. By
+developing a free set of licenses that people can attach to their
+content, Creative Commons aims to mark a range of content that can
+easily, and reliably, be built upon. These tags are then linked to
+machine-readable versions of the license that enable computers
+automatically to identify content that can easily be shared. These
+three expressions together—a legal license, a human-readable
+description, and
<!-- PAGE BREAK 288 -->
-machine-readable tags--constitute a Creative Commons license. A
-Creative Commons license constitutes a grant of freedom to anyone
-who accesses the license, and more importantly, an expression of the
-ideal that the person associated with the license believes in something
+machine-readable tags—constitute a Creative Commons license. A
+Creative Commons license constitutes a grant of freedom to anyone who
+accesses the license, and more importantly, an expression of the ideal
+that the person associated with the license believes in something
different than the "All" or "No" extremes. Content is marked with the
-CC mark, which does not mean that copyright is waived, but that
- certain
-freedoms are given.
+CC mark, which does not mean that copyright is waived, but that
+certain freedoms are given.
</para>
<para>
These freedoms are beyond the freedoms promised by fair use. Their
have imagined. The rules may well have made sense against a
background
of technologies from centuries ago, but they do not make sense
-against the background of digital technologies. New rules--with
+against the background of digital technologies. New rules—with
different
freedoms, expressed in ways so that humans without lawyers can
-use them--are needed. Creative Commons gives people a way
+use them—are needed. Creative Commons gives people a way
effectively
to begin to build those rules.
</para>
are free, for commercial or noncommercial purposes, to sample content
from the licensed work; they are just not free to make full copies of the
licensed work available to others. This is consistent with their own
-art--they, too, sample from others. Because the legal costs of sampling
+art—they, too, sample from others. Because the legal costs of sampling
are so high (Walter Leaphart, manager of the rap group Public Enemy,
which was born sampling the music of others, has stated that he does
not "allow" Public Enemy to sample anymore, because the legal costs
creativity. Today, there is no simple way to know who owns what,
or with whom one must deal in order to use or build upon the
creative
-work of others. There are no records, there is no system to trace--
+work of others. There are no records, there is no system to trace—
there is no simple way to know how to get permission. Yet given the
massive increase in the scope of copyright's rule, getting permission is
a necessary step for any work that builds upon our past. And thus, the
<!-- f1. --> The proposal I am advancing here would apply to American works only.
Obviously, I believe it would be beneficial for the same idea to be adopted
by other countries as well.
-</para></footnote>--but it should
+</para></footnote>—but it should
not change it by going back to the old, broken system. We should
require
formalities, but we should establish a system that will create the
policymaking,
the office has historically been terribly underfunded. Thus,
when people who know something about the process hear this idea
-about formalities, their first reaction is panic--nothing could be worse
+about formalities, their first reaction is panic—nothing could be worse
than forcing people to deal with the mess that is the Copyright Office.
</para>
<para>
registering
and renewing copyrights. That competition would
substantially
-lower the burden of this formality--while producing a database
+lower the burden of this formality—while producing a database
<!-- PAGE BREAK 295 -->
of registrations that would facilitate the licensing of content.
</para>
It used to be that the failure to include a copyright notice on a creative
work meant that the copyright was forfeited. That was a harsh
punishment
-for failing to comply with a regulatory rule--akin to imposing
+for failing to comply with a regulatory rule—akin to imposing
the death penalty for a parking ticket in the world of creative rights.
Here again, there is no reason that a marking requirement needs to be
enforced in this way. And more importantly, there is no reason a
new marking requirement could solve these problems by recognizing
the differences in media, and by allowing the system of marking to
evolve as technologies enable it to. The system could enable a special
-signal from the failure to mark--not the loss of the copyright, but the
+signal from the failure to mark—not the loss of the copyright, but the
loss of the right to punish someone for failing to get permission first.
</para>
<para>
content that have been crafted elsewhere.
</para>
<para>
-For example, if a recording industry association devises a method
-for marking CDs, it would propose that to the Copyright Office. The
+For example, if a recording industry association devises a method for
+marking CDs, it would propose that to the Copyright Office. The
Copyright Office would hold a hearing, at which other proposals could
be made. The Copyright Office would then select the proposal that it
-judged preferable, and it would base that choice solely upon the
- consideration
-of which method could best be integrated into the registration
-and renewal system. We would not count on the government to
- innovate;
-but we would count on the government to keep the product of
- innovation
-in line with its other important functions.
+judged preferable, and it would base that choice solely upon the
+consideration of which method could best be integrated into the
+registration and renewal system. We would not count on the government
+to innovate; but we would count on the government to keep the product
+of innovation in line with its other important functions.
</para>
<para>
-Finally, marking content clearly would simplify registration
- requirements.
-If photographs were marked by author and year, there
-would be little reason not to allow a photographer to reregister, for
- example,
-all photographs taken in a particular year in one quick step. The
-aim of the formality is not to burden the creator; the system itself
-should be kept as simple as possible.
+Finally, marking content clearly would simplify registration
+requirements. If photographs were marked by author and year, there
+would be little reason not to allow a photographer to reregister, for
+example, all photographs taken in a particular year in one quick
+step. The aim of the formality is not to burden the creator; the
+system itself should be kept as simple as possible.
</para>
<para>
The objective of formalities is to make things clear. The existing
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
ground to the heavens. The airplane came along. The scope of property
-rights quickly changed. There was no fuss, no constitutional challenge.
-It made no sense anymore to grant that much control, given the
- emergence
-of that new technology.
+rights quickly changed. There was no fuss, no constitutional
+challenge. It made no sense anymore to grant that much control, given
+the emergence of that new technology.
</para>
<para>
Our Constitution gives Congress the power to give authors
of permission does to the creative process. Smothers it.
</para>
<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 foreseeable derivative rights--turning a book into a movie, or a
-poem into a musical score--it doesn't make sense to require
- negotiation
-for the unforeseeable. Here, a statutory right would make much
-more sense.
+This was the point that Alben made when describing the making of the
+Clint Eastwood CD. While it makes sense to require negotiation for
+foreseeable derivative rights—turning a book into a movie, or a
+poem into a musical score—it doesn't make sense to require
+negotiation for the unforeseeable. Here, a statutory right would make
+much more sense.
</para>
<para>
-In each of these cases, the law should mark the uses that are
- protected,
-and the presumption should be that other uses are not
- protected.
-This is the reverse of the recommendation of my colleague Paul
-
Goldstein.<footnote><para>
-<!-- f7. --> Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
- Jukebox
-(Stanford: Stanford University Press, 2003), 187216.
+In each of these cases, the law should mark the uses that are
+protected, and the presumption should be that other uses are not
+protected. This is the reverse of the recommendation of my colleague
+Paul Goldstein.<footnote>
+<indexterm><primary>Goldstein, Paul</primary></indexterm>
+<para>
+<!-- f7. -->
+Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
+Jukebox (Stanford: Stanford University Press, 2003), 187–216.
</para></footnote>
- His view is that the law should be written so that expanded
-protections follow expanded uses.
+His view is that the law should be written so that
+expanded protections follow expanded uses.
</para>
<para>
-Goldstein's analysis would make perfect sense if the cost of the
- legal
+Goldstein's analysis would make perfect sense if the cost of the legal
system were small. But as we are currently seeing in the context of
-the Internet, the uncertainty about the scope of protection, and the
- incentives
-to protect existing architectures of revenue, combined with a
-strong copyright, weaken the process of innovation.
+the Internet, the uncertainty about the scope of protection, and the
+incentives to protect existing architectures of revenue, combined with
+a strong copyright, weaken the process of innovation.
</para>
<para>
The law could remedy this problem either by removing protection
<!-- PAGE BREAK 301 -->
beyond the part explicitly drawn or by granting reuse rights upon
- certain
-statutory conditions. Either way, the effect would be to free a great
-deal of culture to others to cultivate. And under a statutory rights
-regime, that reuse would earn artists more income.
+certain statutory conditions. Either way, the effect would be to free
+a great deal of culture to others to cultivate. And under a statutory
+rights regime, that reuse would earn artists more income.
</para>
</sect2>
<sect2 id="liberatemusic">
-<title>4. Liberate the Music--Again</title>
+<title>4. Liberate the Music—Again</title>
<para>
-The battle that got this whole war going was about music, so it wouldn't
-be fair to end this book without addressing the issue that is, to most
-people, most pressing--music. There is no other policy issue that
- better
-teaches the lessons of this book than the battles around the sharing
-of music.
+The battle that got this whole war going was about music, so it
+wouldn't be fair to end this book without addressing the issue that
+is, to most people, most pressing—music. There is no other
+policy issue that better teaches the lessons of this book than the
+battles around the sharing of music.
</para>
<para>
-The appeal of file-sharing music was the crack cocaine of the
- Internet's
-growth. It drove demand for access to the Internet more
- powerfully
-than any other single application. It was the Internet's killer
-app--possibly in two senses of that word. It no doubt was the
- application
-that drove demand for bandwidth. It may well be the application
-that drives demand for regulations that in the end kill innovation on
-the network.
-</para>
-<para>
-The aim of copyright, with respect to content in general and music
-in particular, is to create the incentives for music to be composed,
- performed,
-and, most importantly, spread. The law does this by giving
+The appeal of file-sharing music was the crack cocaine of the
+Internet's growth. It drove demand for access to the Internet more
+powerfully than any other single application. It was the Internet's
+killer app—possibly in two senses of that word. It no doubt was
+the application that drove demand for bandwidth. It may well be the
+application that drives demand for regulations that in the end kill
+innovation on the network.
+</para>
+<para>
+The aim of copyright, with respect to content in general and music in
+particular, is to create the incentives for music to be composed,
+performed, and, most importantly, spread. The law does this by giving
an exclusive right to a composer to control public performances of his
work, and to a performing artist to control copies of her performance.
</para>
<listitem><para>
<!-- PAGE BREAK 302 -->
<!-- C. -->
-There are many who are using file-sharing networks to get
- access
-to content that is no longer sold but is still under copyright
-or that would have been too cumbersome to buy off the Net.
+There are many who are using file-sharing networks to get access to
+content that is no longer sold but is still under copyright or that
+would have been too cumbersome to buy off the Net.
</para></listitem>
<listitem><para>
<!-- D. -->
-There are many who are using file-sharing networks to get
- access
-to content that is not copyrighted or to get access that the
-copyright owner plainly endorses.
+There are many who are using file-sharing networks to get access to
+content that is not copyrighted or to get access that the copyright
+owner plainly endorses.
</para></listitem>
</orderedlist>
<para>
significantly weakened.
</para>
<para>
-As I said in chapter 5, the actual harm caused by sharing is
- controversial.
-For the purposes of this chapter, however, I assume the harm is
-real. I assume, in other words, that type A sharing is significantly
-greater than type B, and is the dominant use of sharing networks.
+As I said in chapter 5, the actual harm caused by sharing is
+controversial. For the purposes of this chapter, however, I assume
+the harm is real. I assume, in other words, that type A sharing is
+significantly greater than type B, and is the dominant use of sharing
+networks.
</para>
<para>
Nonetheless, there is a crucial fact about the current technological
should respond.
</para>
<para>
-Today, file sharing is addictive. In ten years, it won't be. It is addictive
-today because it is the easiest way to gain access to a broad range of
- content.
-It won't be the easiest way to get access to a broad range of content
-in ten years. Today, access to the Internet is cumbersome and slow--we
-in the United States are lucky to have broadband service at 1.5 MBs, and
-very rarely do we get service at that speed both up and down. Although
-wireless access is growing, most of us still get access across wires. Most
-only gain access through a machine with a keyboard. The idea of the
- always
-on, always connected Internet is mainly just an idea.
+Today, file sharing is addictive. In ten years, it won't be. It is
+addictive today because it is the easiest way to gain access to a
+broad range of content. It won't be the easiest way to get access to
+a broad range of content in ten years. Today, access to the Internet
+is cumbersome and slow—we in the United States are lucky to have
+broadband service at 1.5 MBs, and very rarely do we get service at
+that speed both up and down. Although wireless access is growing, most
+of us still get access across wires. Most only gain access through a
+machine with a keyboard. The idea of the always on, always connected
+Internet is mainly just an idea.
</para>
<para>
But it will become a reality, and that means the way we get access to
not make policy on the basis of technology in transition. They should
<!-- PAGE BREAK 303 -->
make policy on the basis of where the technology is going. The
- question
-should not be, how should the law regulate sharing in this world?
-The question should be, what law will we require when the network
-becomes the network it is clearly becoming? That network is one in
-which every machine with electricity is essentially on the Net; where
-everywhere you are--except maybe the desert or the Rockies--you can
-instantaneously be connected to the Internet. Imagine the Internet as
-ubiquitous as the best cell-phone service, where with the flip of a
- device,
-you are connected.
-</para>
-<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, content
-that is streamed to the user when the user demands. Here, then, is the
-critical point: When it is extremely easy to connect to services that give
-access to content, it will be easier to connect to services that give you
-access to content than it will be to download and store content on the
-many devices you will have for playing content. It will be easier, in other
-words, to subscribe than it will be to be a database manager, as
- everyone
-in the download-sharing world of Napster-like technologies
- essentially
-is. Content services will compete with content sharing, even if
-the services charge money for the content they give access to. Already
-cell-phone services in Japan offer music (for a fee) streamed over cell
-phones (enhanced with plugs for headphones). The Japanese are
- paying
-for this content even though "free" content is available in the form
-of MP3s across the Web.<footnote><para>
-<!-- f8. --> See, for example, "Music Media Watch," The J@pan Inc. Newsletter,
-3 April 2002, available at
+question should not be, how should the law regulate sharing in this
+world? The question should be, what law will we require when the
+network becomes the network it is clearly becoming? That network is
+one in which every machine with electricity is essentially on the Net;
+where everywhere you are—except maybe the desert or the
+Rockies—you can instantaneously be connected to the
+Internet. Imagine the Internet as ubiquitous as the best cell-phone
+service, where with the flip of a device, you are connected.
+</para>
+<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, content that is streamed to the user when the user
+demands. Here, then, is the critical point: When it is extremely easy
+to connect to services that give access to content, it will be easier
+to connect to services that give you access to content than it will be
+to download and store content on the many devices you will have for
+playing content. It will be easier, in other words, to subscribe than
+it will be to be a database manager, as everyone in the
+download-sharing world of Napster-like technologies essentially
+is. Content services will compete with content sharing, even if the
+services charge money for the content they give access to. Already
+cell-phone services in Japan offer music (for a fee) streamed over
+cell phones (enhanced with plugs for headphones). The Japanese are
+paying for this content even though "free" content is available in the
+form of MP3s across the Web.<footnote><para>
+<!-- f8. -->
+See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
+April 2002, available at
<ulink url="http://free-culture.cc/notes/">link #76</ulink>.
</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
- sharing--to
-the extent there is a real problem--is a problem that will
- increasingly
-disappear as it becomes easier to connect to the Internet.
-And thus it is an extraordinary mistake for policy makers today to be
-"solving" this problem in light of a technology that will be gone
- tomorrow.
-The question should not be how to regulate the Internet to
-eliminate file sharing (the Net will evolve that problem away). The
-question instead should be how to assure that artists get paid, during
+present: It is emphatically temporary. The "problem" with file
+sharing—to the extent there is a real problem—is a problem
+that will increasingly disappear as it becomes easier to connect to
+the Internet. And thus it is an extraordinary mistake for policy
+makers today to be "solving" this problem in light of a technology
+that will be gone tomorrow. The question should not be how to
+regulate the Internet to eliminate file sharing (the Net will evolve
+that problem away). The question instead should be how to assure that
+artists get paid, during
<!-- PAGE BREAK 304 -->
this transition between twentieth-century models for doing business
and twenty-first-century technologies.
</para>
<para>
-The answer begins with recognizing that there are different
- "problems"
-here to solve. Let's start with type D content--uncopyrighted
-content or copyrighted content that the artist wants shared. The
- "problem"
-with this content is to make sure that the technology that would
-enable this kind of sharing is not rendered illegal. You can think of it
-this way: Pay phones are used to deliver ransom demands, no doubt.
-But there are many who need to use pay phones who have nothing to
-do with ransoms. It would be wrong to ban pay phones in order to
-eliminate kidnapping.
+The answer begins with recognizing that there are different "problems"
+here to solve. Let's start with type D content—uncopyrighted
+content or copyrighted content that the artist wants shared. The
+"problem" with this content is to make sure that the technology that
+would enable this kind of sharing is not rendered illegal. You can
+think of it this way: Pay phones are used to deliver ransom demands,
+no doubt. But there are many who need to use pay phones who have
+nothing to do with ransoms. It would be wrong to ban pay phones in
+order to eliminate kidnapping.
</para>
<para>
Type C content raises a different "problem." This is content that was,
-at one time, published and is no longer available. It may be unavailable
-because the artist is no longer valuable enough for the record label he
-signed with to carry his work. Or it may be unavailable because the work
-is forgotten. Either way, the aim of the law should be to facilitate the
- access
-to this content, ideally in a way that returns something to the artist.
-</para>
-<para>
-Again, the model here is the used book store. Once a book goes out
-of print, it may still be available in libraries and used book stores. But
-libraries and used book stores don't pay the copyright owner when
-someone reads or buys an out-of-print book. That makes total sense, of
-course, since any other system would be so burdensome as to eliminate
-the possibility of used book stores' existing. But from the author's
- perspective,
-this "sharing" of his content without his being compensated is
-less than ideal.
-</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
+at one time, published and is no longer available. It may be
+unavailable because the artist is no longer valuable enough for the
+record label he signed with to carry his work. Or it may be
+unavailable because the work is forgotten. Either way, the aim of the
+law should be to facilitate the access to this content, ideally in a
+way that returns something to the artist.
+</para>
+<para>
+Again, the model here is the used book store. Once a book goes out of
+print, it may still be available in libraries and used book
+stores. But libraries and used book stores don't pay the copyright
+owner when someone reads or buys an out-of-print book. That makes
+total sense, of course, since any other system would be so burdensome
+as to eliminate the possibility of used book stores' existing. But
+from the author's perspective, this "sharing" of his content without
+his being compensated is less than ideal.
+</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,
-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.
+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.
</para>
<para>
<!-- PAGE BREAK 305 -->
-Alternatively, the law could create a statutory license that would
- ensure
-that artists get something from the trade of their work. For
- example,
-if the law set a low statutory rate for the commercial sharing of
-content that was not offered for sale by a commercial publisher, and if
-that rate were automatically transferred to a trust for the benefit of the
-artist, then businesses could develop around the idea of trading this
-content, and artists would benefit from this trade.
+Alternatively, the law could create a statutory license that would
+ensure that artists get something from the trade of their work. For
+example, if the law set a low statutory rate for the commercial
+sharing of content that was not offered for sale by a commercial
+publisher, and if that rate were automatically transferred to a trust
+for the benefit of the artist, then businesses could develop around
+the idea of trading this content, and artists would benefit from this
+trade.
</para>
<para>
This system would also create an incentive for publishers to keep
works available commercially. Works that are available commercially
would not be subject to this license. Thus, publishers could protect
the right to charge whatever they want for content if they kept the
-work commercially available. But if they don't keep it available, and
- instead,
-the computer hard disks of fans around the world keep it alive,
-then any royalty owed for such copying should be much less than the
-amount owed a commercial publisher.
+work commercially available. But if they don't keep it available, and
+instead, the computer hard disks of fans around the world keep it
+alive, then any royalty owed for such copying should be much less than
+the amount owed a commercial publisher.
</para>
<para>
The hard case is content of types A and B, and again, this case is
hard only because the extent of the problem will change over time, as
-the technologies for gaining access to content change. The law's
- solution
-should be as flexible as the problem is, understanding that we are
-in the middle of a radical transformation in the technology for
- delivering
-and accessing content.
+the technologies for gaining access to content change. The law's
+solution should be as flexible as the problem is, understanding that
+we are in the middle of a radical transformation in the technology for
+delivering and accessing content.
</para>
<para>
So here's a solution that will at first seem very strange to both sides
<para>
<!-- PAGE BREAK 306 -->
I love the Internet, and so I don't like likening it to tobacco or
- asbestos.
-But the analogy is a fair one from the perspective of the law.
-And it suggests a fair response: Rather than seeking to destroy the
- Internet,
-or the p2p technologies that are currently harming content
-providers on the Internet, we should find a relatively simple way to
-compensate those who are harmed.
+asbestos. But the analogy is a fair one from the perspective of the
+law. And it suggests a fair response: Rather than seeking to destroy
+the Internet, or the p2p technologies that are currently harming
+content providers on the Internet, we should find a relatively simple
+way to compensate those who are harmed.
</para>
<para>
The idea would be a modification of a proposal that has been
-floated by Harvard law professor William Fisher.<footnote><para>
+floated by Harvard law professor William Fisher.<footnote>
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<indexterm><primary>Fisher, William</primary></indexterm>
+<para>
<!-- f9. --> William Fisher, Digital Music: Problems and Possibilities (last revised:
10 October 2000), available at
<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William Fisher, Promises to Keep:
Technology, Law, and the Future of Entertainment (forthcoming) (Stanford:
Stanford University Press, 2004), ch. 6, available at
<ulink url="http://free-culture.cc/notes/">link #78</ulink>. Professor
- Netanel
-has proposed a related idea that would exempt noncommercial
- sharing
-from the reach of copyright and would establish compensation to
-artists to balance any loss. See Neil Weinstock Netanel, "Impose a
- Noncommercial
-Use Levy to Allow Free P2P File Sharing," available at
+Netanel has proposed a related idea that would exempt noncommercial
+sharing from the reach of copyright and would establish compensation
+to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
+Noncommercial Use Levy to Allow Free P2P File Sharing," available at
<ulink url="http://free-culture.cc/notes/">link #79</ulink>. For other proposals, see Lawrence Lessig, "Who's Holding Back
Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
aim is not just to ensure that artists are paid, but also to ensure that the
system supports the widest range of "semiotic democracy" possible. But
the aims of semiotic democracy would be satisfied if the other changes
-I described were accomplished--in particular, the limits on derivative
+I described were accomplished—in particular, the limits on derivative
<!-- PAGE BREAK 307 -->
uses. A system that simply charges for access would not greatly burden
No doubt it would be difficult to calculate the proper measure of
"harm" to an industry. But the difficulty of making that calculation
would be outweighed by the benefit of facilitating innovation. This
-background system to compensate would also not need to interfere
-with innovative proposals such as Apple's MusicStore. As experts
- predicted
-when Apple launched the MusicStore, it could beat "free" by
- being
+background system to compensate would also not need to interfere with
+innovative proposals such as Apple's MusicStore. As experts predicted
+when Apple launched the MusicStore, it could beat "free" by being
easier than free is. This has proven correct: Apple has sold millions
-of songs at even the very high price of 99 cents a song. (At 99 cents, the
-cost is the equivalent of a per-song CD price, though the labels have
-none of the costs of a CD to pay.) Apple's move was countered by Real
-Networks, offering music at just 79 cents a song. And no doubt there
-will be a great deal of competition to offer and sell music on-line.
-</para>
-<para>
-This competition has already occurred against the background of
-"free" music from p2p systems. As the sellers of cable television have
-known for thirty years, and the sellers of bottled water for much more
-than that, there is nothing impossible at all about "competing with
-free." Indeed, if anything, the competition spurs the competitors to
- offer
-new and better products. This is precisely what the competitive
-market was to be about. Thus in Singapore, though piracy is rampant,
-movie theaters are often luxurious--with "first class" seats, and meals
-served while you watch a movie--as they struggle and succeed in
- finding
-ways to compete with "free."
+of songs at even the very high price of 99 cents a song. (At 99 cents,
+the cost is the equivalent of a per-song CD price, though the labels
+have none of the costs of a CD to pay.) Apple's move was countered by
+Real Networks, offering music at just 79 cents a song. And no doubt
+there will be a great deal of competition to offer and sell music
+on-line.
+</para>
+<para>
+This competition has already occurred against the background of "free"
+music from p2p systems. As the sellers of cable television have known
+for thirty years, and the sellers of bottled water for much more than
+that, there is nothing impossible at all about "competing with free."
+Indeed, if anything, the competition spurs the competitors to offer
+new and better products. This is precisely what the competitive market
+was to be about. Thus in Singapore, though piracy is rampant, movie
+theaters are often luxurious—with "first class" seats, and meals
+served while you watch a movie—as they struggle and succeed in
+finding ways to compete with "free."
</para>
<para>
This regime of competition, with a backstop to assure that artists
-don't lose, would facilitate a great deal of innovation in the delivery of
-content. That competition would continue to shrink type A sharing. It
-would inspire an extraordinary range of new innovators--ones who
-would have a right to the content, and would no longer fear the
- uncertain
-and barbarically severe punishments of the law.
+don't lose, would facilitate a great deal of innovation in the
+delivery of content. That competition would continue to shrink type A
+sharing. It would inspire an extraordinary range of new
+innovators—ones who would have a right to the content, and would
+no longer fear the uncertain and barbarically severe punishments of
+the law.
</para>
<para>
In summary, then, my proposal is this:
<para>
<!-- PAGE BREAK 308 -->
-The Internet is in transition. We should not be regulating a
- technology
-in transition. We should instead be regulating to minimize the
-harm to interests affected by this technological change, while enabling,
-and encouraging, the most efficient technology we can create.
+The Internet is in transition. We should not be regulating a
+technology in transition. We should instead be regulating to minimize
+the harm to interests affected by this technological change, while
+enabling, and encouraging, the most efficient technology we can
+create.
</para>
<para>
-We can minimize that harm while maximizing the benefit to
- innovation
+We can minimize that harm while maximizing the benefit to innovation
by
</para>
<orderedlist numeration="arabic">
<para>
But we're a long way away from whittling the problem down to this
subset of type A sharers. And our focus until we're there should not be
-on finding ways to break the Internet. Our focus until we're there
+on finding ways to break the Internet. Our focus until we're there
<!-- PAGE BREAK 309 -->
should be on how to make sure the artists are paid, while protecting the
and practitioner in the field of copyright, Melville Nimmer, thought it
obvious.<footnote><para>
<!-- f10. --> Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
-Memorial Lecture), UCLA Law Review 48 (2001): 1057, 106970.
+Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
</para></footnote>
</para>
costs of the legal system are slight.<footnote><para>
<!-- f11. --> A good example is the work of Professor Stan Liebowitz. Liebowitz is to
be commended for his careful review of data about infringement, leading
-him to question his own publicly stated position--twice. He initially
+him to question his own publicly stated position—twice. He initially
predicted
that downloading would substantially harm the industry. He then
revised his view in light of the data, and he has since revised his view again.
Liebowitz's careful analysis is extremely valuable in estimating the
effect
of file-sharing technology. In my view, however, he underestimates the
-costs of the legal system. See, for example, Rethinking, 17476.
+costs of the legal system. See, for example, Rethinking, 174–76.
</para></footnote>
They see a system that has been
around for hundreds of years, and they assume it works the way their
<para>
The costliness and clumsiness and randomness of this system mock
our tradition. And lawyers, as well as academics, should consider it
-their duty to change the way the law works--or better, to change the
+their duty to change the way the law works—or better, to change the
law so that it works. It is wrong that the system works well only for the
top 1 percent of the clients. It could be made radically more efficient,
and inexpensive, and hence radically more just.
</para>
<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
+digital technology—the film, the music, the Web page, the blog. Or
think about the amazing things your community could facilitate with
-digital technology--a wiki, a barn raising, activism to change
+digital technology—a wiki, a barn raising, activism to change
something.
Think about all those creative things, and then imagine cold
molasses poured onto the machines. This is what any regime that
Russia.
</para>
<para>
-The law should regulate in certain areas of culture--but it should
+The law should regulate in certain areas of culture—but it should
regulate culture only where that regulation does good. Yet lawyers
<!-- 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?"
+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?"
</para>
<para>
We should ask, "Why?" Show me why your regulation of culture is
<chapter id="c-notes">
<title>NOTES</title>
<para>
-Throughout this text, there are references to links on the World Wide Web. As
-anyone who has tried to use the Web knows, these links can be highly unstable. I
-have tried to remedy the instability by redirecting readers to the original source
-through the Web site associated with this book. For each link below, you can go to
-http://free-culture.cc/notes and locate the original source by clicking on the
-number after the # sign. If the original link remains alive, you will be redirected to
-that link. If the original link has disappeared, you will be redirected to an
- appropriate
-reference for the material.
+Throughout this text, there are references to links on the World Wide
+Web. As anyone who has tried to use the Web knows, these links can be
+highly unstable. I have tried to remedy the instability by redirecting
+readers to the original source through the Web site associated with
+this book. For each link below, you can go to
+http://free-culture.cc/notes and locate the original source by
+clicking on the number after the # sign. If the original link remains
+alive, you will be redirected to that link. If the original link has
+disappeared, you will be redirected to an appropriate reference for
+the material.
</para>
<!-- PAGE BREAK 336 -->
</para>
<para>
I received guidance in various places from friends and academics,
-including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard
-Posner, Mark Rose, and Kathleen Sullivan. And I received correction
-and guidance from many amazing students at Stanford Law School
-and Stanford University. They included Andrew B. Coan, John Eden,
-James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert
- Hallman,
-Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum,
-Alina Ng, and Erica Platt. I am particularly grateful to Catherine
-Crump and Harry Surden, who helped direct their research, and to
-Laura Lynch, who brilliantly managed the army that they assembled,
-and provided her own critical eye on much of this.
+including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
+Mark Rose, and Kathleen Sullivan. And I received correction and
+guidance from many amazing students at Stanford Law School and
+Stanford University. They included Andrew B. Coan, John Eden, James
+P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
+Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
+Erica Platt. I am particularly grateful to Catherine Crump and Harry
+Surden, who helped direct their research, and to Laura Lynch, who
+brilliantly managed the army that they assembled, and provided her own
+critical eye on much of this.
</para>
<para>
Yuko Noguchi helped me to understand the laws of Japan as well as
Yamagami for their generous help while I was there.
</para>
<para>
-These are the traditional sorts of help that academics regularly
-draw upon. But in addition to them, the Internet has made it possible
-to receive advice and correction from many whom I have never even
-met. Among those who have responded with extremely helpful advice
-to requests on my blog about the book are Dr. Mohammad Al-Ubaydli,
-David Gerstein, and Peter DiMauro, as well as a long list of those who
-had specific ideas about ways to develop my argument. They included
-Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob
-Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy
-Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James
- Lindenschmidt,
-K. L. Mann, Mark Manning, Nora McCauley, Jeffrey
-McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D.
-Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack,
-Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina,
-Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger
-Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have
-missed anyone; with computers come glitches, and a crash of my
-e-mail system meant I lost a bunch of great replies.)
-</para>
-<para>
-Richard Stallman and Michael Carroll each read the whole book
-in draft, and each provided extremely helpful correction and advice.
-Michael helped me to see more clearly the significance of the
- regulation
-of derivitive works. And Richard corrected an embarrassingly large
-number of errors. While my work is in part inspired by Stallman's, he
-does not agree with me in important places throughout this book.
-</para>
-<para>
-Finally, and forever, I am thankful to Bettina, who has always
- insisted
-that there would be unending happiness away from these battles,
-and who has always been right. This slow learner is, as ever, grateful for
-her perpetual patience and love.
+These are the traditional sorts of help that academics regularly draw
+upon. But in addition to them, the Internet has made it possible to
+receive advice and correction from many whom I have never even
+met. Among those who have responded with extremely helpful advice to
+requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
+Gerstein, and Peter DiMauro, as well as a long list of those who had
+specific ideas about ways to develop my argument. They included
+Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
+Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
+Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
+K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
+McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
+Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
+Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
+Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
+and Richard Yanco. (I apologize if I have missed anyone; with
+computers come glitches, and a crash of my e-mail system meant I lost
+a bunch of great replies.)
+</para>
+<para>
+Richard Stallman and Michael Carroll each read the whole book in
+draft, and each provided extremely helpful correction and advice.
+Michael helped me to see more clearly the significance of the
+regulation of derivitive works. And Richard corrected an
+embarrassingly large number of errors. While my work is in part
+inspired by Stallman's, he does not agree with me in important places
+throughout this book.
+</para>
+<para>
+Finally, and forever, I am thankful to Bettina, who has always
+insisted that there would be unending happiness away from these
+battles, and who has always been right. This slow learner is, as ever,
+grateful for her perpetual patience and love.
</para>
<!-- PAGE BREAK 338 -->
projects / text-free-culture-lessig.git / blobdiff