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
</para>
<para>
I accept that criticism, if indeed it is a criticism. The work of a
-lawyer is always derivative, and I mean to do nothing more in this book
-than to remind a culture about a tradition that has always been its own.
-Like Stallman, I defend that tradition on the basis of values. Like
-Stallman, I believe those are the values of freedom. And like Stallman,
-I believe those are values of our past that will need to be defended in
-our future. A free culture has been our past, but it will only be our
- future
-if we change the path we are on right now.
-xv
+lawyer is always derivative, and I mean to do nothing more in this
+book than to remind a culture about a tradition that has always been
+its own. Like Stallman, I defend that tradition on the basis of
+values. Like Stallman, I believe those are the values of freedom. And
+like Stallman, I believe those are values of our past that will need
+to be defended in our future. A free culture has been our past, but it
+will only be our future if we change the path we are on right now.
+
<!-- PAGE BREAK 14 -->
Like Stallman's arguments for free software, an argument for free
culture stumbles on a confusion that is hard to avoid, and even harder
what I advance here.
</para>
<para>
-Instead, the free culture that I defend in this book is a balance
- between
-anarchy and control. A free culture, like a free market, is filled
-with property. It is filled with rules of property and contract that get
-enforced by the state. But just as a free market is perverted if its
- property
-becomes feudal, so too can a free culture be queered by extremism
-in the property rights that define it. That is what I fear about our
- culture
-today. It is against that extremism that this book is written.
+Instead, the free culture that I defend in this book is a balance
+between anarchy and control. A free culture, like a free market, is
+filled with property. It is filled with rules of property and contract
+that get enforced by the state. But just as a free market is perverted
+if its property becomes feudal, so too can a free culture be queered
+by extremism in the property rights that define it. That is what I
+fear about our culture today. It is against that extremism that this
+book is written.
</para>
</chapter>
to enter into an exclusive license with Delta Airlines? Could we
set up an auction to decide how much these rights are worth?
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
In 1945, these questions became a federal case. When North Carolina
farmers Thomas Lee and Tinie Causby started losing chickens
extent, upwards," then the government was trespassing on their
property, and the Causbys wanted it to stop.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the public
interest, and transfer into private ownership that to which only
-the public has a just claim.<footnote><para>
-United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that
-there could be a "taking" if the government's use of its land effectively
- destroyed
-the value of the Causbys' land. This example was suggested to me
-by Keith Aoki's wonderful piece, "(Intellectual) Property and Sovereignty:
-Notes Toward a Cultural Geography of Authorship," Stanford Law
- Review
-48 (1996): 1293, 1333. See also Paul Goldstein, Real Property
- (Mineola,
-N.Y.: Foundation Press, 1984), 1112–13.
+the public has a just claim.<footnote>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<para>
+United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
+that there could be a "taking" if the government's use of its land
+effectively destroyed the value of the Causbys' land. This example was
+suggested to me by Keith Aoki's wonderful piece, "(Intellectual)
+Property and Sovereignty: Notes Toward a Cultural Geography of
+Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul
+Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984),
+1112–13.
</para></footnote>
</para>
</blockquote>
technologies of the time. And as it adjusts, it changes. Ideas that were
as solid as rock in one age crumble in another.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
Or at least, this is how things happen when there's no one powerful
on the other side of the change. The Causbys were just farmers. And
understand
the source of this war. We must resolve it soon.
</para>
-<para>
-Like the Causbys' battle, this war is, in part, about "property."
-The property of this war is not as tangible as the Causbys', and no
-innocent chicken has yet to lose its life. Yet the ideas surrounding this
-"property" are as obvious to most as the Causbys' claim about the
- sacredness
-of their farm was to them. We are the Causbys. Most of us
-take for granted the extraordinarily powerful claims that the owners of
-"intellectual property" now assert. Most of us, like the Causbys, treat
-these claims as obvious. And hence we, like the Causbys, object when
-a new technology interferes with this property. It is as plain to us as it
-was to them that the new technologies of the Internet are "trespassing"
-upon legitimate claims of "property." It is as plain to us as it was to
-them that the law should intervene to stop this trespass.
-</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<para>
+Like the Causbys' battle, this war is, in part, about "property." The
+property of this war is not as tangible as the Causbys', and no
+innocent chicken has yet to lose its life. Yet the ideas surrounding
+this "property" are as obvious to most as the Causbys' claim about the
+sacredness of their farm was to them. We are the Causbys. Most of us
+take for granted the extraordinarily powerful claims that the owners
+of "intellectual property" now assert. Most of us, like the Causbys,
+treat these claims as obvious. And hence we, like the Causbys, object
+when a new technology interferes with this property. It is as plain to
+us as it was to them that the new technologies of the Internet are
+"trespassing" upon legitimate claims of "property." It is as plain to
+us as it was to them that the law should intervene to stop this
+trespass.
+</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
And thus, when geeks and technologists defend their Armstrong or
-Wright brothers technology, most of us are simply unsympathetic.
- Common
-sense does not revolt. Unlike in the case of the unlucky Causbys,
-common sense is on the side of the property owners in this war. Unlike
+Wright brothers technology, most of us are simply unsympathetic.
+Common sense does not revolt. Unlike in the case of the unlucky
+Causbys, common sense is on the side of the property owners in this
+war. Unlike
<!-- PAGE BREAK 27 -->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
versus RCA, the more powerful side has ensured that it has the
more powerful view?
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-I don't mean to be mysterious. My own views are resolved. I believe
-it was right for common sense to revolt against the extremism of the
-Causbys. I believe it would be right for common sense to revolt against
-the extreme claims made today on behalf of "intellectual property."
-What the law demands today is increasingly as silly as a sheriff
- arresting
-an airplane for trespass. But the consequences of this silliness will
-be much more profound.
+I don't mean to be mysterious. My own views are resolved. I believe it
+was right for common sense to revolt against the extremism of the
+Causbys. I believe it would be right for common sense to revolt
+against the extreme claims made today on behalf of "intellectual
+property." What the law demands today is increasingly as silly as a
+sheriff arresting an airplane for trespass. But the consequences of
+this silliness will be much more profound.
<!-- PAGE BREAK 28 -->
</para>
<para>
</sect1>
<sect1 id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
<para>
In 1839, Louis Daguerre invented the first practical technology for
producing what we would call "photographs." Appropriately enough, they
reflecting upon what one has written. One learns to write with images
by making them and then reflecting upon what one has created.
</para>
+<indexterm><primary>Crichton, Michael</primary></indexterm>
<para>
-This grammar has changed as media has changed. When it was just
-film, as Elizabeth Daley, executive director of the University of
- Southern
+This grammar has changed as media has changed. When it was just film,
+as Elizabeth Daley, executive director of the University of Southern
California's Annenberg Center for Communication and dean of the
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
- texture."<footnote>
+about "the placement of objects, color, . . . rhythm, pacing, and
+texture."<footnote>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<indexterm><primary>Daley, Elizabeth</primary></indexterm>
<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
</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
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).
+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
</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>
</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,
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
<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">
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
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 -->
+<!-- f14 -->
Ibid.
</para></footnote>
</para>
the most important early victory being Millar v. Taylor.
</para>
<para>
-Millar was a bookseller who in 1729 had purchased the rights to
-James Thomson's poem "The Seasons." Millar complied with the
- requirements
-of the Statute of Anne, and therefore received the full
- protection
-of the statute. After the term of copyright ended, Robert Taylor
-began printing a competing volume. Millar sued, claiming a perpetual
-common law right, the Statute of Anne notwithstanding.<footnote><para>
+Millar was a bookseller who in 1729 had purchased the rights to James
+Thomson's poem "The Seasons." Millar complied with the requirements of
+the Statute of Anne, and therefore received the full protection of the
+statute. After the term of copyright ended, Robert Taylor began
+printing a competing volume. Millar sued, claiming a perpetual common
+law right, the Statute of Anne notwithstanding.<footnote><para>
<!-- f11 -->
-Howard B. Abrams, "The Historic Foundation of American Copyright
-Law: Exploding the Myth of Common Law Copyright," Wayne Law
- Review
-29 (1983): 1152.
+Howard B. Abrams, "The Historic Foundation of American Copyright Law:
+Exploding the Myth of Common Law Copyright," Wayne Law Review 29
+(1983): 1152.
</para></footnote>
</para>
<para>
-Astonishingly to modern lawyers, one of the greatest judges in
- English
+Astonishingly to modern lawyers, one of the greatest judges in English
history, Lord Mansfield, agreed with the booksellers. Whatever
protection the Statute of Anne gave booksellers, it did not, he held,
-extinguish any common law right. The question was whether the
-common law would protect the author against subsequent "pirates."
+extinguish any common law right. The question was whether the common
+law would protect the author against subsequent "pirates."
Mansfield's answer was yes: The common law would bar Taylor from
-reprinting Thomson's poem without Millar's permission. That
- common
-law rule thus effectively gave the booksellers a perpetual right to
+reprinting Thomson's poem without Millar's permission. That common law
+rule thus effectively gave the booksellers a perpetual right to
control the publication of any book assigned to them.
</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
-conclusion might make some sense. But what it ignored was the larger
-issue that Parliament had struggled with in 1710: How best to limit
+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 monopoly power of publishers? Parliament's strategy was to offer a
term for existing works that was long enough to buy peace in 1710, but
short enough to assure that culture would pass into competition within
-a reasonable period of time. Within twenty-one years, Parliament
- believed,
-Britain would mature from the controlled culture that the
+a reasonable period of time. Within twenty-one years, Parliament
+believed, Britain would mature from the controlled culture that the
Crown coveted to the free culture that we inherited.
</para>
<para>
</para>
<para>
The House of Lords was an odd institution. Legal questions were
-presented to the House and voted upon first by the "law lords,"
- members
-of special legal distinction who functioned much like the Justices
-in our Supreme Court. Then, after the law lords voted, the House of
-Lords generally voted.
+presented to the House and voted upon first by the "law lords,"
+members of special legal distinction who functioned much like the
+Justices in our Supreme Court. Then, after the law lords voted, the
+House of Lords generally voted.
</para>
<para>
The reports about the law lords' votes are mixed. On some counts,
passed into the public domain.
</para>
<indexterm><primary>Bacon, Francis</primary></indexterm>
+<indexterm><primary>Bunyan, John</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
<para>
It is hard for us to imagine, but this decision by the House of Lords
fueled an extraordinarily popular and political reaction. In Scotland,
-where most of the "pirate publishers" did their work, people celebrated
-the decision in the streets. As the Edinburgh Advertiser reported, "No
-private cause has so much engrossed the attention of the public, and
-none has been tried before the House of Lords in the decision of
-which so many individuals were interested." "Great rejoicing in
- Edinburgh
-upon victory over literary property: bonfires and
- illuminations."<footnote><para>
+where most of the "pirate publishers" did their work, people
+celebrated the decision in the streets. As the Edinburgh Advertiser
+reported, "No private cause has so much engrossed the attention of the
+public, and none has been tried before the House of Lords in the
+decision of which so many individuals were interested." "Great
+rejoicing in Edinburgh upon victory over literary property: bonfires
+and illuminations."<footnote><para>
<!-- f13 -->
Rose, 97.
</para></footnote>
</para>
<para>
In London, however, at least among publishers, the reaction was
-equally strong in the opposite direction. The Morning Chronicle
- reported:
+equally strong in the opposite direction. The Morning Chronicle
+reported:
</para>
<blockquote>
<para>
-By the above decision . . . near 200,000 pounds worth of what
-was honestly purchased at public sale, and which was yesterday
-thought property is now reduced to nothing. The Booksellers of
-London and Westminster, many of whom sold estates and houses
-to purchase Copy-right, are in a manner ruined, and those who
-after many years industry thought they had acquired a
- competency
-to provide for their families now find themselves without a
-shilling to devise to their successors.<footnote><para>
+By the above decision . . . near 200,000 pounds worth of what was
+honestly purchased at public sale, and which was yesterday thought
+property is now reduced to nothing. The Booksellers of London and
+Westminster, many of whom sold estates and houses to purchase
+Copy-right, are in a manner ruined, and those who after many years
+industry thought they had acquired a competency to provide for their
+families now find themselves without a shilling to devise to their
+successors.<footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<!-- PAGE BREAK 105 -->
"Ruined" is a bit of an exaggeration. But it is not an exaggeration to
say that the change was profound. The decision of the House of Lords
-meant that the booksellers could no longer control how culture in
- England
-would grow and develop. Culture in England was thereafter free.
-Not in the sense that copyrights would not be respected, for of course,
-for a limited time after a work was published, the bookseller had an
- exclusive
-right to control the publication of that book. And not in the
-sense that books could be stolen, for even after a copyright expired, you
-still had to buy the book from someone. But free in the sense that the
-culture and its growth would no longer be controlled by a small group
-of publishers. As every free market does, this free market of free culture
-would grow as the consumers and producers chose. English culture
-would develop as the many English readers chose to let it develop—
-chose in the books they bought and wrote; chose in the memes they
-repeated and endorsed. Chose in a competitive context, not a context
-in which the choices about what culture is available to people and
-how they get access to it are made by the few despite the wishes of
-the many.
-</para>
-<para>
-At least, this was the rule in a world where the Parliament is
- antimonopoly,
-resistant to the protectionist pleas of publishers. In a world
-where the Parliament is more pliant, free culture would be less
- protected.
+meant that the booksellers could no longer control how culture in
+England would grow and develop. Culture in England was thereafter
+free. Not in the sense that copyrights would not be respected, for of
+course, for a limited time after a work was published, the bookseller
+had an exclusive right to control the publication of that book. And
+not in the sense that books could be stolen, for even after a
+copyright expired, you still had to buy the book from someone. But
+free in the sense that the culture and its growth would no longer be
+controlled by a small group of publishers. As every free market does,
+this free market of free culture would grow as the consumers and
+producers chose. English culture would develop as the many English
+readers chose to let it develop— chose in the books they bought
+and wrote; chose in the memes they repeated and endorsed. Chose in a
+competitive context, not a context in which the choices about what
+culture is available to people and how they get access to it are made
+by the few despite the wishes of the many.
+</para>
+<para>
+At least, this was the rule in a world where the Parliament is
+antimonopoly, resistant to the protectionist pleas of publishers. In a
+world where the Parliament is more pliant, free culture would be less
+protected.
</para>
<!-- PAGE BREAK 106 -->
</sect1>
</para>
<para>
In 1990, Else was working on a documentary about Wagner's Ring
-Cycle. The focus was stagehands at the San Francisco Opera.
- Stagehands
-are a particularly funny and colorful element of an opera.
- During
-a show, they hang out below the stage in the grips' lounge and in
-the lighting loft. They make a perfect contrast to the art on the stage.
+Cycle. The focus was stagehands at the San Francisco Opera.
+Stagehands are a particularly funny and colorful element of an opera.
+During a show, they hang out below the stage in the grips' lounge and
+in the lighting loft. They make a perfect contrast to the art on the
+stage.
</para>
<para>
-During one of the performances, Else was shooting some
- stagehands
+During one of the performances, Else was shooting some stagehands
playing checkers. In one corner of the room was a television set.
-Playing on the television set, while the stagehands played checkers and
-the opera company played Wagner, was The Simpsons. As Else judged
+Playing on the television set, while the stagehands played checkers
+and the opera company played Wagner, was The Simpsons. As Else judged
<!-- PAGE BREAK 107 -->
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
unless "fair use" or some other privilege applies.
</para>
<para>
-Else called Simpsons creator Matt Groening's office to get
- permission.
-Groening approved the shot. The shot was a
- four-and-a-halfsecond
-image on a tiny television set in the corner of the room. How
-could it hurt? Groening was happy to have it in the film, but he told
-Else to contact Gracie Films, the company that produces the program.
+Else called Simpsons creator Matt Groening's office to get permission.
+Groening approved the shot. The shot was a four-and-a-halfsecond image
+on a tiny television set in the corner of the room. How could it hurt?
+Groening was happy to have it in the film, but he told Else to contact
+Gracie Films, the company that produces the program.
</para>
<para>
Gracie Films was okay with it, too, but they, like Groening, wanted
Else said. He was just confirming the permission with Fox.
</para>
<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 someone [at Fox] believes he doesn't own his own creation." And
-second, Fox "wanted ten thousand dollars as a licensing fee for us to use
-this four-point-five seconds of . . . entirely unsolicited Simpsons which
-was in the corner of the shot."
+Then, as Else told me, "two things happened. First we discovered
+. . . that Matt Groening doesn't own his own creation—or at
+least that someone [at Fox] believes he doesn't own his own creation."
+And second, Fox "wanted ten thousand dollars as a licensing fee for us
+to use this four-point-five seconds of . . . entirely unsolicited
+Simpsons which was in the corner of the shot."
</para>
<para>
-Else was certain there was a mistake. He worked his way up to
-someone he thought was a vice president for licensing, Rebecca
- Herrera.
-He explained to her, "There must be some mistake here. . . .
-We're asking for your educational rate on this." That was the
- educational
+Else was certain there was a mistake. He worked his way up to someone
+he thought was a vice president for licensing, Rebecca Herrera. He
+explained to her, "There must be some mistake here. . . . We're
+asking for your educational rate on this." That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
</para>
<para>
-"I wanted to make sure I had my facts straight," he told me. "Yes,
-you have your facts straight," she said. It would cost $10,000 to use the
-clip of The Simpsons in the corner of a shot in a documentary film about
+"I wanted to make sure I had my facts straight," he told me. "Yes, you
+have your facts straight," she said. It would cost $10,000 to use the
+clip of The Simpsons in the corner of a shot in a documentary film
+about
<!-- PAGE BREAK 108 -->
Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And
-if you quote me, I'll turn you over to our attorneys." As an assistant to
-Herrera told Else later on, "They don't give a shit. They just want the
-money."
+if you quote me, I'll turn you over to our attorneys." As an assistant
+to Herrera told Else later on, "They don't give a shit. They just want
+the money."
</para>
<para>
-Else didn't have the money to buy the right to replay what was
- playing
+Else didn't have the money to buy the right to replay what was playing
on the television backstage at the San Francisco Opera. To reproduce
-this reality was beyond the documentary filmmaker's budget. At the very
-last minute before the film was to be released, Else digitally replaced the
-shot with a clip from another film that he had worked on, The Day After
-Trinity, from ten years before.
+this reality was beyond the documentary filmmaker's budget. At the
+very last minute before the film was to be released, Else digitally
+replaced the shot with a clip from another film that he had worked on,
+The Day After Trinity, from ten years before.
</para>
<para>
-There's no doubt that someone, whether Matt Groening or Fox,
-owns the copyright to The Simpsons. That copyright is their property.
-To use that copyrighted material thus sometimes requires the
- permission
-of the copyright owner. If the use that Else wanted to make of the
+There's no doubt that someone, whether Matt Groening or Fox, owns the
+copyright to The Simpsons. That copyright is their property. To use
+that copyrighted material thus sometimes requires the permission of
+the copyright owner. If the use that Else wanted to make of the
Simpsons copyright were one of the uses restricted by the law, then he
would need to get the permission of the copyright owner before he
-could use the work in that way. And in a free market, it is the owner of
-the copyright who gets to set the price for any use that the law says the
-owner gets to control.
+could use the work in that way. And in a free market, it is the owner
+of the copyright who gets to set the price for any use that the law
+says the owner gets to control.
</para>
<para>
-For example, "public performance" is a use of The Simpsons that
-the copyright owner gets to control. If you take a selection of favorite
+For example, "public performance" is a use of The Simpsons that the
+copyright owner gets to control. If you take a selection of favorite
episodes, rent a movie theater, and charge for tickets to come see "My
-Favorite Simpsons," then you need to get permission from the
- copyright
+Favorite Simpsons," then you need to get permission from the copyright
owner. And the copyright owner (rightly, in my view) can charge
-whatever she wants—$10 or $1,000,000. That's her right, as set by
-the law.
+whatever she wants—$10 or $1,000,000. That's her right, as set
+by the law.
</para>
<para>
But when lawyers hear this story about Jon Else and Fox, their first
thought is "fair use."<footnote><para>
<!-- f1 -->
-For an excellent argument that such use is "fair use," but that lawyers don't
-permit recognition that it is "fair use," see Richard A. Posner with William
-F. Patry, "Fair Use and Statutory Reform in the Wake of Eldred " (draft on
-file with author), University of Chicago Law School, 5 August 2003.
+For an excellent argument that such use is "fair use," but that
+lawyers don't permit recognition that it is "fair use," see Richard
+A. Posner with William F. Patry, "Fair Use and Statutory Reform in the
+Wake of Eldred " (draft on file with author), University of Chicago
+Law School, 5 August 2003.
</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
-does not require the permission of anyone.
+Else's use of just 4.5 seconds of an indirect shot of a Simpsons
+episode is clearly a fair use of The Simpsons—and fair use does
+not require the permission of anyone.
</para>
<para>
<!-- PAGE BREAK 109 -->
</para>
<blockquote>
<para>
-The Simpsons fiasco was for me a great lesson in the gulf
- between
-what lawyers find irrelevant in some abstract sense, and
-what is crushingly relevant in practice to those of us actually
-trying to make and broadcast documentaries. I never had any
-doubt that it was "clearly fair use" in an absolute legal sense. But
-I couldn't rely on the concept in any concrete way. Here's why:
+The Simpsons fiasco was for me a great lesson in the gulf between what
+lawyers find irrelevant in some abstract sense, and what is crushingly
+relevant in practice to those of us actually trying to make and
+broadcast documentaries. I never had any doubt that it was "clearly
+fair use" in an absolute legal sense. But I couldn't rely on the
+concept in any concrete way. Here's why:
</para>
<orderedlist numeration="arabic">
<listitem><para>
<!-- 1. -->
-Before our films can be broadcast, the network requires
-that we buy Errors and Omissions insurance. The carriers
- require
-a detailed "visual cue sheet" listing the source and
- licensing
-status of each shot in the film. They take a dim view of
-"fair use," and a claim of "fair use" can grind the application
-process to a halt.
+Before our films can be broadcast, the network requires that we buy
+Errors and Omissions insurance. The carriers require a detailed
+"visual cue sheet" listing the source and licensing status of each
+shot in the film. They take a dim view of "fair use," and a claim of
+"fair use" can grind the application process to a halt.
</para></listitem>
<listitem><para>
<!-- 2. -->
-I probably never should have asked Matt Groening in the
-first place. But I knew (at least from folklore) that Fox had a
-history of tracking down and stopping unlicensed Simpsons
-usage, just as George Lucas had a very high profile litigating
-Star Wars usage. So I decided to play by the book, thinking
-that we would be granted free or cheap license to four seconds
-of Simpsons. As a documentary producer working to
- exhaustion
-on a shoestring, the last thing I wanted was to risk legal
-trouble, even nuisance legal trouble, and even to defend a
+I probably never should have asked Matt Groening in the first
+place. But I knew (at least from folklore) that Fox had a history of
+tracking down and stopping unlicensed Simpsons usage, just as George
+Lucas had a very high profile litigating Star Wars usage. So I decided
+to play by the book, thinking that we would be granted free or cheap
+license to four seconds of Simpsons. As a documentary producer working
+to exhaustion on a shoestring, the last thing I wanted was to risk
+legal trouble, even nuisance legal trouble, and even to defend a
principle.
</para></listitem>
<listitem><para>
<!-- 3. -->
-I did, in fact, speak with one of your colleagues at Stanford
-Law School . . . who confirmed that it was fair use. He also
-confirmed that Fox would "depose and litigate you to within
-an inch of your life," regardless of the merits of my claim. He
-made clear that it would boil down to who had the bigger
- legal
-department and the deeper pockets, me or them.
+I did, in fact, speak with one of your colleagues at Stanford Law
+School . . . who confirmed that it was fair use. He also confirmed
+that Fox would "depose and litigate you to within an inch of your
+life," regardless of the merits of my claim. He made clear that it
+would boil down to who had the bigger legal department and the deeper
+pockets, me or them.
<!-- PAGE BREAK 110 -->
</para></listitem>
<listitem><para>
</orderedlist>
</blockquote>
<para>
-In theory, fair use means you need no permission. The theory
- therefore
-supports free culture and insulates against a permission culture.
-But in practice, fair use functions very differently. The fuzzy lines of
-the law, tied to the extraordinary liability if lines are crossed, means
-that the effective fair use for many types of creators is slight. The law
-has the right aim; practice has defeated the aim.
+In theory, fair use means you need no permission. The theory therefore
+supports free culture and insulates against a permission culture. But
+in practice, fair use functions very differently. The fuzzy lines of
+the law, tied to the extraordinary liability if lines are crossed,
+means that the effective fair use for many types of creators is
+slight. The law has the right aim; practice has defeated the aim.
</para>
<para>
This practice shows just how far the law has come from its
-eighteenth-century roots. The law was born as a shield to protect
- publishers'
-profits against the unfair competition of a pirate. It has matured
-into a sword that interferes with any use, transformative or not.
+eighteenth-century roots. The law was born as a shield to protect
+publishers' profits against the unfair competition of a pirate. It has
+matured into a sword that interferes with any use, transformative or
+not.
</para>
<!-- PAGE BREAK 111 -->
</sect1>
Thus, when the copyrights to films expire, there is no copy held by any
library. The copy exists—if it exists at all—in the library archive of the
film company.<footnote><para>
-<!-- f2 -->
+<!-- f2 -->
Doug Herrick, "Toward a National Film Collection: Motion Pictures at the
Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5;
Anthony
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>
+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>Copyright's regulation before the Internet.</title>
</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.
</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.
</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.
production is a good thing. No one doubts that the work of Müller was
important and valuable and probably saved lives, possibly millions.
</para>
+<indexterm><primary>Carson, Rachel</primary></indexterm>
<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
<para>
When the first Congress enacted laws to protect creative property, it
faced the same uncertainty about the status of creative property that
-the English had confronted in 1774. Many states had passed laws
- protecting
-creative property, and some believed that these laws simply
-supplemented common law rights that already protected creative
- authorship.<footnote><para>
+the English had confronted in 1774. Many states had passed laws
+protecting creative property, and some believed that these laws simply
+supplemented common law rights that already protected creative
+authorship.<footnote>
+<indexterm><primary>Crosskey, William W.</primary></indexterm>
+<para>
<!-- f8 -->
-William W. Crosskey, Politics and the Constitution in the History of the
-United States (London: Cambridge University Press, 1953), vol. 1, 485–86:
-"extinguish[ing], by plain implication of `the supreme Law of the Land,'
-the perpetual rights which authors had, or were supposed by some to have, under
-the Common Law" (emphasis added).
-</para></footnote>
-This meant that there was no guaranteed public domain in
-the United States in 1790. If copyrights were protected by the
- common
-law, then there was no simple way to know whether a work
- published
-in the United States was controlled or free. Just as in England,
-this lingering uncertainty would make it hard for publishers to rely
-upon a public domain to reprint and distribute works.
+William W. Crosskey, Politics and the Constitution in the History of
+the United States (London: Cambridge University Press, 1953), vol. 1,
+485–86: "extinguish[ing], by plain implication of `the supreme
+Law of the Land,' the perpetual rights which authors had, or were
+supposed by some to have, under the Common Law" (emphasis added).
+</para></footnote>
+This meant that there was no guaranteed public domain in the United
+States in 1790. If copyrights were protected by the common law, then
+there was no simple way to know whether a work published in the United
+States was controlled or free. Just as in England, this lingering
+uncertainty would make it hard for publishers to rely upon a public
+domain to reprint and distribute works.
</para>
<para>
That uncertainty ended after Congress passed legislation granting
-copyrights. Because federal law overrides any contrary state law, federal
-protections for copyrighted works displaced any state law protections.
-Just as in England the Statute of Anne eventually meant that the
- copyrights
-for all English works expired, a federal statute meant that any
-state copyrights expired as well.
+copyrights. Because federal law overrides any contrary state law,
+federal protections for copyrighted works displaced any state law
+protections. Just as in England the Statute of Anne eventually meant
+that the copyrights for all English works expired, a federal statute
+meant that any state copyrights expired as well.
</para>
<para>
In 1790, Congress enacted the first copyright law. It created a
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 -->
+<!-- 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
tradition embraced, who said whether and how the law would restrict
your freedom.
</para>
+<indexterm><primary>Casablanca</primary></indexterm>
<para>
There's a famous story about a battle between the Marx Brothers
and Warner Brothers. The Marxes intended to make a parody of
Them (New York: Currency/Doubleday, 2001).
</para></footnote>
- Lumbering
-giants not only don't, but should not, sprint. Yet if the field is
-only open to the giants, there will be far too little sprinting.
+Lumbering giants not only don't, but should not, sprint. Yet if the
+field is only open to the giants, there will be far too little
+sprinting.
</para>
<para>
I don't think we know enough about the economics of the media
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
-quite legal. I believe this war is a profound mistake because the
- collateral
-damage from it is so great as to make waging the war insane.
-When you add together the burdens on the criminal justice system, the
-desperation of generations of kids whose only real economic
- opportunities
-are as drug warriors, the queering of constitutional protections
- because
-of the constant surveillance this war requires, and, most profoundly,
-the total destruction of the legal systems of many South American
- nations
-because of the power of the local drug cartels, I find it impossible
-to believe that the marginal benefit in reduced drug consumption by
-Americans could possibly outweigh these costs.
-</para>
-<para>
-You may not be convinced. That's fine. We live in a democracy, and
-it is through votes that we are to choose policy. But to do that, we
- depend
-fundamentally upon the press to help inform Americans about
+wrecked by drugs—though the drugs that wrecked my family were
+all quite legal. I believe this war is a profound mistake because the
+collateral damage from it is so great as to make waging the war
+insane. When you add together the burdens on the criminal justice
+system, the desperation of generations of kids whose only real
+economic opportunities are as drug warriors, the queering of
+constitutional protections because of the constant surveillance this
+war requires, and, most profoundly, the total destruction of the legal
+systems of many South American nations because of the power of the
+local drug cartels, I find it impossible to believe that the marginal
+benefit in reduced drug consumption by Americans could possibly
+outweigh these costs.
+</para>
+<para>
+You may not be convinced. That's fine. We live in a democracy, and it
+is through votes that we are to choose policy. But to do that, we
+depend fundamentally upon the press to help inform Americans about
these issues.
</para>
<para>
-Beginning in 1998, the Office of National Drug Control Policy
-launched a media campaign as part of the "war on drugs." The
- campaign
-produced scores of short film clips about issues related to illegal
-drugs. In one series (the Nick and Norm series) two men are in a bar,
-discussing the idea of legalizing drugs as a way to avoid some of the
-collateral damage from the war. One advances an argument in favor of
-drug legalization. The other responds in a powerful and effective way
-against the argument of the first. In the end, the first guy changes his
-mind (hey, it's television). The plug at the end is a damning attack on
-the pro-legalization campaign.
+Beginning in 1998, the Office of National Drug Control Policy launched
+a media campaign as part of the "war on drugs." The campaign produced
+scores of short film clips about issues related to illegal drugs. In
+one series (the Nick and Norm series) two men are in a bar, discussing
+the idea of legalizing drugs as a way to avoid some of the collateral
+damage from the war. One advances an argument in favor of drug
+legalization. The other responds in a powerful and effective way
+against the argument of the first. In the end, the first guy changes
+his mind (hey, it's television). The plug at the end is a damning
+attack on the pro-legalization campaign.
</para>
<para>
Fair enough. It's a good ad. Not terribly misleading. It delivers its
<para>
But let's say you think it is a wrong message, and you'd like to run a
countercommercial. Say you want to run a series of ads that try to
-demonstrate the extraordinary collateral harm that comes from the
-drug war. Can you do it?
+demonstrate the extraordinary collateral harm that comes from the drug
+war. Can you do it?
</para>
<para>
Well, obviously, these ads cost lots of money. Assume you raise the
<!-- PAGE BREAK 179 -->
money. Assume a group of concerned citizens donates all the money in
-the world to help you get your message out. Can you be sure your
- message
-will be heard then?
+the world to help you get your message out. Can you be sure your
+message will be heard then?
</para>
<para>
-No. You cannot. Television stations have a general policy of
- avoiding
+No. You cannot. Television stations have a general policy of avoiding
"controversial" ads. Ads sponsored by the government are deemed
-uncontroversial; ads disagreeing with the government are controversial.
-This selectivity might be thought inconsistent with the First
- Amendment,
-but the Supreme Court has held that stations have the right to
-choose what they run. Thus, the major channels of commercial media
-will refuse one side of a crucial debate the opportunity to present its case.
-
And the courts will defend the rights of the stations to be this biased.<footnote><para>
+uncontroversial; ads disagreeing with the government are
+controversial. This selectivity might be thought inconsistent with
+the First Amendment, but the Supreme Court has held that stations have
+the right to choose what they run. Thus, the major channels of
+commercial media will refuse one side of a crucial debate the
+opportunity to present its case. And the courts will defend the
+rights of the stations to be this biased.<footnote><para>
<!-- f34 -->
-The Marijuana Policy Project, in February 2003, sought to place ads that
-directly responded to the Nick and Norm series on stations within the
-Washington, D.C., area. Comcast rejected the ads as "against [their]
- policy."
-The local NBC affiliate, WRC, rejected the ads without reviewing
-them. The local ABC affiliate, WJOA, originally agreed to run the ads and
-accepted payment to do so, but later decided not to run the ads and
- returned
-the collected fees. Interview with Neal Levine, 15 October 2003.
-These restrictions are, of course, not limited to drug policy. See, for
- example,
-Nat Ives, "On the Issue of an Iraq War, Advocacy Ads Meet with
-Rejection from TV Networks," New York Times, 13 March 2003, C4.
- Outside
-of election-related air time there is very little that the FCC or the
-courts are willing to do to even the playing field. For a general overview,
-see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial
- Advertising
-on Television and Radio," Yale Law and Policy Review 6 (1988):
-449–79, and for a more recent summary of the stance of the FCC and the
-courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d
-872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
-the networks. In a recent example from San Francisco, the San Francisco
-transit authority rejected an ad that criticized its Muni diesel buses. Phillip
-Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects
-Ad," SFGate.com, 16 June 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground was
-that the criticism was "too controversial."
-</para></footnote>
-</para>
-<para>
-I'd be happy to defend the networks' rights, as well—if we lived in
-a media market that was truly diverse. But concentration in the media
-throws that condition into doubt. If a handful of companies control
- access
-to the media, and that handful of companies gets to decide which
-political positions it will allow to be promoted on its channels, then in
-an obvious and important way, concentration matters. You might like
-the positions the handful of companies selects. But you should not like
-a world in which a mere few get to decide which issues the rest of us
-get to know about.
-
+The Marijuana Policy Project, in February 2003, sought to place ads
+that directly responded to the Nick and Norm series on stations within
+the Washington, D.C., area. Comcast rejected the ads as "against
+[their] policy." The local NBC affiliate, WRC, rejected the ads
+without reviewing them. The local ABC affiliate, WJOA, originally
+agreed to run the ads and accepted payment to do so, but later decided
+not to run the ads and returned the collected fees. Interview with
+Neal Levine, 15 October 2003. These restrictions are, of course, not
+limited to drug policy. See, for example, Nat Ives, "On the Issue of
+an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," New
+York Times, 13 March 2003, C4. Outside of election-related air time
+there is very little that the FCC or the courts are willing to do to
+even the playing field. For a general overview, see Rhonda Brown, "Ad
+Hoc Access: The Regulation of Editorial Advertising on Television and
+Radio," Yale Law and Policy Review 6 (1988): 449–79, and for a
+more recent summary of the stance of the FCC and the courts, see
+Radio-Television News Directors Association v. FCC, 184 F. 3d 872
+(D.C. Cir. 1999). Municipal authorities exercise the same authority as
+the networks. In a recent example from San Francisco, the San
+Francisco transit authority rejected an ad that criticized its Muni
+diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming
+After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
+was that the criticism was "too controversial."
+</para></footnote>
+</para>
+<para>
+I'd be happy to defend the networks' rights, as well—if we lived
+in a media market that was truly diverse. But concentration in the
+media throws that condition into doubt. If a handful of companies
+control access to the media, and that handful of companies gets to
+decide which political positions it will allow to be promoted on its
+channels, then in an obvious and important way, concentration
+matters. You might like the positions the handful of companies
+selects. But you should not like a world in which a mere few get to
+decide which issues the rest of us get to know about.
</para>
</sect2>
<sect2 id="together">
<title>Together</title>
<para>
-There is something innocent and obvious about the claim of the
- copyright
-warriors that the government should "protect my property." In
-the abstract, it is obviously true and, ordinarily, totally harmless. No
-sane sort who is not an anarchist could disagree.
+There is something innocent and obvious about the claim of the
+copyright warriors that the government should "protect my property."
+In the abstract, it is obviously true and, ordinarily, totally
+harmless. No sane sort who is not an anarchist could disagree.
</para>
<para>
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
+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
<!-- PAGE BREAK 180 -->
-less innocent and obvious. Given (1) the power of technology to
- supplement
-the law's control, and (2) the power of concentrated markets
-to weaken the opportunity for dissent, if strictly enforcing the
- massively
-expanded "property" rights granted by copyright fundamentally
-changes the freedom within this culture to cultivate and build upon our
-past, then we have to ask whether this property should be redefined.
+less innocent and obvious. Given (1) the power of technology to
+supplement the law's control, and (2) the power of concentrated
+markets to weaken the opportunity for dissent, if strictly enforcing
+the massively expanded "property" rights granted by copyright
+fundamentally changes the freedom within this culture to cultivate and
+build upon our past, then we have to ask whether this property should
+be redefined.
</para>
<para>
Not starkly. Or absolutely. My point is not that we should abolish
our culture today.
</para>
<para>
-But there is a space between zero and one, Internet culture
- notwithstanding.
-And these massive shifts in the effective power of copyright
-regulation, tied to increased concentration of the content industry and
-resting in the hands of technology that will increasingly enable control
-over the use of culture, should drive us to consider whether another
- adjustment
-is called for. Not an adjustment that increases copyright's
-power. Not an adjustment that increases its term. Rather, an
- adjustment
-to restore the balance that has traditionally defined copyright's
-regulation—a weakening of that regulation, to strengthen creativity.
+But there is a space between zero and one, Internet culture
+notwithstanding. And these massive shifts in the effective power of
+copyright regulation, tied to increased concentration of the content
+industry and resting in the hands of technology that will increasingly
+enable control over the use of culture, should drive us to consider
+whether another adjustment is called for. Not an adjustment that
+increases copyright's power. Not an adjustment that increases its
+term. Rather, an adjustment to restore the balance that has
+traditionally defined copyright's regulation—a weakening of that
+regulation, to strengthen creativity.
</para>
<para>
-Copyright law has not been a rock of Gibraltar. It's not a set of
- constant
-commitments that, for some mysterious reason, teenagers and
+Copyright law has not been a rock of Gibraltar. It's not a set of
+constant commitments that, for some mysterious reason, teenagers and
geeks now flout. Instead, copyright power has grown dramatically in a
short period of time, as the technologies of distribution and creation
-have changed and as lobbyists have pushed for more control by
- copyright
-holders. Changes in the past in response to changes in
- technology
-suggest that we may well need similar changes in the future. And
-these changes have to be reductions in the scope of copyright, in
- response
-to the extraordinary increase in control that technology and the
-market enable.
+have changed and as lobbyists have pushed for more control by
+copyright holders. Changes in the past in response to changes in
+technology suggest that we may well need similar changes in the
+future. And these changes have to be reductions in the scope of
+copyright, in response to the extraordinary increase in control that
+technology and the market enable.
</para>
<para>
For the single point that is lost in this war on pirates is a point that
we see only after surveying the range of these changes. When you add
<!-- PAGE BREAK 181 -->
together the effect of changing law, concentrated markets, and
- changing
-technology, together they produce an astonishing conclusion:
-Never in our history have fewer had a legal right to control more of the
- development
-of our culture than now.
-</para>
-<para>
-Not when copyrights were perpetual, for when copyrights were
-perpetual, they affected only that precise creative work. Not when only
-publishers had the tools to publish, for the market then was much more
-diverse. Not when there were only three television networks, for even
-then, newspapers, film studios, radio stations, and publishers were
- independent
-of the networks. Never has copyright protected such a wide
-range of rights, against as broad a range of actors, for a term that was
-remotely as long. This form of regulation—a tiny regulation of a tiny
-part of the creative energy of a nation at the founding—is now a
- massive
-regulation of the overall creative process. Law plus technology plus
-the market now interact to turn this historically benign regulation into
-the most significant regulation of culture that our free society has
-known.<footnote><para>
+changing technology, together they produce an astonishing conclusion:
+Never in our history have fewer had a legal right to control more of
+the development of our culture than now.
+</para>
+<para> Not when copyrights were perpetual, for when copyrights were
+perpetual, they affected only that precise creative work. Not when
+only publishers had the tools to publish, for the market then was much
+more diverse. Not when there were only three television networks, for
+even then, newspapers, film studios, radio stations, and publishers
+were independent of the networks. Never has copyright protected such a
+wide range of rights, against as broad a range of actors, for a term
+that was remotely as long. This form of regulation—a tiny
+regulation of a tiny part of the creative energy of a nation at the
+founding—is now a massive regulation of the overall creative
+process. Law plus technology plus the market now interact to turn this
+historically benign regulation into the most significant regulation of
+culture that our free society has known.<footnote><para>
<!-- f35 -->
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
copyright law in the digital age. See Vaidhyanathan, 159–60.
</para>
<para>
At the start of this book, I distinguished between commercial and
-noncommercial culture. In the course of this chapter, I have
- distinguished
-between copying a work and transforming it. We can now
+noncommercial culture. In the course of this chapter, I have
+distinguished between copying a work and transforming it. We can now
combine these two distinctions and draw a clear map of the changes
-that copyright law has undergone.
-In 1790, the law looked like this:
+that copyright law has undergone. In 1790, the law looked like this:
</para>
<table id="t2">
</table>
<para>
-Derivative works were now regulated by copyright law—if
- published,
-which again, given the economics of publishing at the time,
+Derivative works were now regulated by copyright law—if
+published, which again, given the economics of publishing at the time,
means if offered commercially. But noncommercial publishing and
transformation were still essentially free.
</para>
<para>
-In 1909 the law changed to regulate copies, not publishing, and
- after
+In 1909 the law changed to regulate copies, not publishing, and after
this change, the scope of the law was tied to technology. As the
-technology of copying became more prevalent, the reach of the law
- expanded.
-Thus by 1975, as photocopying machines became more
- common,
+technology of copying became more prevalent, the reach of the law
+expanded. Thus by 1975, as photocopying machines became more common,
we could say the law began to look like this:
</para>
</table>
<para>
-Every realm is governed by copyright law, whereas before most
- creativity
-was not. The law now regulates the full range of creativity—
+Every realm is governed by copyright law, whereas before most
+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
-to regulate commercial publishers.
+commercial or not, transformative or not—with the same rules
+designed to regulate commercial publishers.
</para>
<para>
Obviously, copyright law is not the enemy. The enemy is regulation
<para>
I have no doubt that it does good in regulating commercial copying.
But I also have no doubt that it does more harm than good when
-regulating (as it regulates just now) noncommercial copying and,
- especially,
-noncommercial transformation. And increasingly, for the
- reasons
-sketched especially in chapters 7 and 8, one might well wonder
+regulating (as it regulates just now) noncommercial copying and,
+especially, noncommercial transformation. And increasingly, for the
+reasons sketched especially in chapters 7 and 8, one might well wonder
whether it does more harm than good for commercial transformation.
More commercial transformative work would be created if derivative
rights were more sharply restricted.
<para>
The issue is therefore not simply whether copyright is property. Of
course copyright is a kind of "property," and of course, as with any
-property, the state ought to protect it. But first impressions
- notwithstanding,
-
historically, this property right (as with all property rights<footnote><para>
+property, the state ought to protect it. But first impressions
+notwithstanding, historically, this property right (as with all
+property rights<footnote><para>
<!-- f36 -->
-It was the single most important contribution of the legal realist
- movement
-to demonstrate that all property rights are always crafted to balance
-public and private interests. See Thomas C. Grey, "The Disintegration of
-Property," in Nomos XXII: Property, J. Roland Pennock and John W.
-Chapman, eds. (New York: New York University Press, 1980).
+It was the single most important contribution of the legal realist
+movement to demonstrate that all property rights are always crafted to
+balance public and private interests. See Thomas C. Grey, "The
+Disintegration of Property," in Nomos XXII: Property, J. Roland
+Pennock and John W. Chapman, eds. (New York: New York University
+Press, 1980).
</para></footnote>)
has been crafted to balance the important need to give authors and
artists incentives with the equally important need to assure access to
-creative work. This balance has always been struck in light of new
- technologies.
-And for almost half of our tradition, the "copyright" did not
-control at all the freedom of others to build upon or transform a creative
-work. American culture was born free, and for almost 180 years our
-country consistently protected a vibrant and rich free culture.
+creative work. This balance has always been struck in light of new
+technologies. And for almost half of our tradition, the "copyright"
+did not control at all the freedom of others to build upon or
+transform a creative work. American culture was born free, and for
+almost 180 years our country consistently protected a vibrant and rich
+free culture.
</para>
<para>
We achieved that free culture because our law respected important
limits on the scope of the interests protected by "property." The very
birth of "copyright" as a statutory right recognized those limits, by
-granting copyright owners protection for a limited time only (the story
-of chapter 6). The tradition of "fair use" is animated by a similar
- concern
-that is increasingly under strain as the costs of exercising any fair
-use right become unavoidably high (the story of chapter 7). Adding
+granting copyright owners protection for a limited time only (the
+story of chapter 6). The tradition of "fair use" is animated by a
+similar concern that is increasingly under strain as the costs of
+exercising any fair use right become unavoidably high (the story of
+chapter 7). Adding
<!-- PAGE BREAK 184 -->
statutory rights where markets might stifle innovation is another
- familiar
-limit on the property right that copyright is (chapter 8). And
- granting
-archives and libraries a broad freedom to collect, claims of property
-notwithstanding, is a crucial part of guaranteeing the soul of a culture
-(chapter 9). Free cultures, like free markets, are built with property. But
-the nature of the property that builds a free culture is very different
-from the extremist vision that dominates the debate today.
-</para>
-<para>
-Free culture is increasingly the casualty in this war on piracy. In
- response
-to a real, if not yet quantified, threat that the technologies of the
-Internet present to twentieth-century business models for producing
-and distributing culture, the law and technology are being transformed
-in a way that will undermine our tradition of free culture. The property
-right that is copyright is no longer the balanced right that it was, or
-was intended to be. The property right that is copyright has become
-unbalanced, tilted toward an extreme. The opportunity to create and
-transform becomes weakened in a world in which creation requires
-permission and creativity must check with a lawyer.
+familiar limit on the property right that copyright is (chapter
+8). And granting archives and libraries a broad freedom to collect,
+claims of property notwithstanding, is a crucial part of guaranteeing
+the soul of a culture (chapter 9). Free cultures, like free markets,
+are built with property. But the nature of the property that builds a
+free culture is very different from the extremist vision that
+dominates the debate today.
+</para>
+<para>
+Free culture is increasingly the casualty in this war on piracy. In
+response to a real, if not yet quantified, threat that the
+technologies of the Internet present to twentieth-century business
+models for producing and distributing culture, the law and technology
+are being transformed in a way that will undermine our tradition of
+free culture. The property right that is copyright is no longer the
+balanced right that it was, or was intended to be. The property right
+that is copyright has become unbalanced, tilted toward an extreme. The
+opportunity to create and transform becomes weakened in a world in
+which creation requires permission and creativity must check with a
+lawyer.
</para>
<!-- PAGE BREAK 185 -->
</sect2>
</chapter>
<chapter id="c-puzzles">
<title>PUZZLES</title>
-
-<para> </para>
-
+<para></para>
<!-- PAGE BREAK 186 -->
<sect1 id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
-<para>
+<indexterm id="idxchimera" class='startofrange'>
+ <primary>chimeras</primary>
+</indexterm>
+<indexterm id="idxwells" class='startofrange'>
+ <primary>Wells, H. G.</primary>
+</indexterm>
+<indexterm id="idxtcotb" class='startofrange'>
+ <primary>"Country of the Blind, The" (Wells)</primary>
+</indexterm>
+<para>
In a well-known short story by H. G. Wells, a mountain climber
named Nunez trips (literally, down an ice slope) into an unknown and
isolated valley in the Peruvian Andes.<footnote><para>
-<!-- f1. --> H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
+<!-- f1. -->
+H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
The Country of the Blind and Other Stories, Michael Sherborne, ed. (New
York: Oxford University Press, 1996).
</para></footnote>
-The valley is extraordinarily
-beautiful, with "sweet water, pasture, an even climate, slopes of rich
-brown soil with tangles of a shrub that bore an excellent fruit." But the
-villagers are all blind. Nunez takes this as an opportunity. "In the
-Country of the Blind," he tells himself, "the One-Eyed Man is King."
-So he resolves to live with the villagers to explore life as a king.
+The valley is extraordinarily beautiful, with "sweet water, pasture,
+an even climate, slopes of rich brown soil with tangles of a shrub
+that bore an excellent fruit." But the villagers are all blind. Nunez
+takes this as an opportunity. "In the Country of the Blind," he tells
+himself, "the One-Eyed Man is King." So he resolves to live with the
+villagers to explore life as a king.
</para>
<para>
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
-"blind." They don't have the word blind. They think he's just thick.
- Indeed,
-as they increasingly notice the things he can't do (hear the sound
-of grass being stepped on, for example), they increasingly try to control
-him. He, in turn, becomes increasingly frustrated. "`You don't
- understand,'
-he cried, in a voice that was meant to be great and resolute, and
-which broke. `You are blind and I can see. Leave me alone!'"
+"blind." They don't have the word blind. They think he's just thick.
+Indeed, as they increasingly notice the things he can't do (hear the
+sound of grass being stepped on, for example), they increasingly try
+to control him. He, in turn, becomes increasingly frustrated. "`You
+don't understand,' he cried, in a voice that was meant to be great and
+resolute, and which broke. `You are blind and I can see. Leave me
+alone!'"
</para>
<para>
<!-- PAGE BREAK 187 -->
-The villagers don't leave him alone. Nor do they see (so to speak)
-the virtue of his special power. Not even the ultimate target of his
- affection,
-a young woman who to him seems "the most beautiful thing in
-the whole of creation," understands the beauty of sight. Nunez's
- description
-of what he sees "seemed to her the most poetical of fancies,
-and she listened to his description of the stars and the mountains and
-her own sweet white-lit beauty as though it was a guilty indulgence."
-"She did not believe," Wells tells us, and "she could only half
- understand,
-but she was mysteriously delighted."
-</para>
-<para>
-When Nunez announces his desire to marry his "mysteriously
- delighted"
+The villagers don't leave him alone. Nor do they see (so to speak) the
+virtue of his special power. Not even the ultimate target of his
+affection, a young woman who to him seems "the most beautiful thing in
+the whole of creation," understands the beauty of sight. Nunez's
+description of what he sees "seemed to her the most poetical of
+fancies, and she listened to his description of the stars and the
+mountains and her own sweet white-lit beauty as though it was a guilty
+indulgence." "She did not believe," Wells tells us, and "she could
+only half understand, but she was mysteriously delighted."
+</para>
+<para>
+When Nunez announces his desire to marry his "mysteriously delighted"
love, the father and the village object. "You see, my dear," her
-father instructs, "he's an idiot. He has delusions. He can't do anything
-right." They take Nunez to the village doctor.
+father instructs, "he's an idiot. He has delusions. He can't do
+anything right." They take Nunez to the village doctor.
</para>
<para>
After a careful examination, the doctor gives his opinion. "His brain
is affected," he reports.
</para>
<para>
-"What affects it?" the father asks.
-"Those queer things that are called the eyes . . . are diseased . . . in
-such a way as to affect his brain."
+"What affects it?" the father asks. "Those queer things that are
+called the eyes . . . are diseased . . . in such a way as to affect
+his brain."
</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
-[the eyes]."
+that in order to cure him completely, all that we need to do is a
+simple and easy surgical operation—namely, to remove these
+irritant bodies [the eyes]."
</para>
<para>
-"Thank Heaven for science!" says the father to the doctor. They
- inform
+"Thank Heaven for science!" says the father to the doctor. They inform
Nunez of this condition necessary for him to be allowed his bride.
-(You'll have to read the original to learn what happens in the end. I
- believe
-in free culture, but never in giving away the end of a story.)
+(You'll have to read the original to learn what happens in the end. I
+believe in free culture, but never in giving away the end of a story.)
It sometimes happens that the eggs of twins fuse in the mother's
womb. That fusion produces a "chimera." A chimera is a single creature
with two sets of DNA. The DNA in the blood, for example, might be
different from the DNA of the skin. This possibility is an underused
<!-- PAGE BREAK 188 -->
-plot for murder mysteries. "But the DNA shows with 100 percent
- certainty
-that she was not the person whose blood was at the scene. . . ."
+plot for murder mysteries. "But the DNA shows with 100 percent
+certainty that she was not the person whose blood was at the
+scene. . . ."
</para>
+<indexterm startref="idxtcotb" class='endofrange'/>
+<indexterm startref="idxwells" class="endofrange"/>
<para>
-Before I had read about chimeras, I would have said they were
- impossible.
-A single person can't have two sets of DNA. The very idea of
-DNA is that it is the code of an individual. Yet in fact, not only can two
-individuals have the same set of DNA (identical twins), but one person
-can have two different sets of DNA (a chimera). Our understanding of
-a "person" should reflect this reality.
+Before I had read about chimeras, I would have said they were
+impossible. A single person can't have two sets of DNA. The very idea
+of DNA is that it is the code of an individual. Yet in fact, not only
+can two individuals have the same set of DNA (identical twins), but
+one person can have two different sets of DNA (a chimera). Our
+understanding of a "person" should reflect this reality.
</para>
<para>
-The more I work to understand the current struggle over copyright
-and culture, which I've sometimes called unfairly, and sometimes not
+The more I work to understand the current struggle over copyright and
+culture, which I've sometimes called unfairly, and sometimes not
unfairly enough, "the copyright wars," the more I think we're dealing
with a chimera. For example, in the battle over the question "What is
-p2p file sharing?" both sides have it right, and both sides have it wrong.
-One side says, "File sharing is just like two kids taping each others'
-records—the sort of thing we've been doing for the last thirty years
-without any question at all." That's true, at least in part. When I tell my
-best friend to try out a new CD that I've bought, but rather than just
-send the CD, I point him to my p2p server, that is, in all relevant
- respects,
-just like what every executive in every recording company no
-doubt did as a kid: sharing music.
+p2p file sharing?" both sides have it right, and both sides have it
+wrong. One side says, "File sharing is just like two kids taping each
+others' records—the sort of thing we've been doing for the last
+thirty years without any question at all." That's true, at least in
+part. When I tell my best friend to try out a new CD that I've bought,
+but rather than just send the CD, I point him to my p2p server, that
+is, in all relevant respects, just like what every executive in every
+recording company no doubt did as a kid: sharing music.
</para>
<para>
But the description is also false in part. For when my p2p server is
-on a p2p network through which anyone can get access to my music,
-then sure, my friends can get access, but it stretches the meaning of
+on a p2p network through which anyone can get access to my music, then
+sure, my friends can get access, but it stretches the meaning of
"friends" beyond recognition to say "my ten thousand best friends" can
get access. Whether or not sharing my music with my best friend is
-what "we have always been allowed to do," we have not always been
- allowed
-to share music with "our ten thousand best friends."
+what "we have always been allowed to do," we have not always been
+allowed to share music with "our ten thousand best friends."
</para>
<para>
Likewise, when the other side says, "File sharing is just like walking
into a Tower Records and taking a CD off the shelf and walking out
-with it," that's true, at least in part. If, after Lyle Lovett (finally)
- releases
-a new album, rather than buying it, I go to Kazaa and find a free
-copy to take, that is very much like stealing a copy from Tower.
+with it," that's true, at least in part. If, after Lyle Lovett
+(finally) releases a new album, rather than buying it, I go to Kazaa
+and find a free copy to take, that is very much like stealing a copy
+from Tower.
</para>
<para>
<!-- PAGE BREAK 189 -->
But it is not quite stealing from Tower. After all, when I take a CD
-from Tower Records, Tower has one less CD to sell. And when I take
-a CD from Tower Records, I get a bit of plastic and a cover, and
- something
-to show on my shelves. (And, while we're at it, we could also note
-that when I take a CD from Tower Records, the maximum fine that
-might be imposed on me, under California law, at least, is $1,000.
- According
-to the RIAA, by contrast, if I download a ten-song CD, I'm
- liable
-for $1,500,000 in damages.)
+from Tower Records, Tower has one less CD to sell. And when I take a
+CD from Tower Records, I get a bit of plastic and a cover, and
+something to show on my shelves. (And, while we're at it, we could
+also note that when I take a CD from Tower Records, the maximum fine
+that might be imposed on me, under California law, at least, is
+$1,000. According to the RIAA, by contrast, if I download a ten-song
+CD, I'm liable for $1,500,000 in damages.)
</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
-is a chimera. And rather than simply denying what the other side
- asserts,
-we need to begin to think about how we should respond to this
-chimera. What rules should govern it?
+The point is not that it is as neither side describes. The point is
+that it is both—both as the RIAA describes it and as Kazaa
+describes it. It is a chimera. And rather than simply denying what the
+other side asserts, we need to begin to think about how we should
+respond to this chimera. What rules should govern it?
</para>
<para>
We could respond by simply pretending that it is not a chimera. We
-could, with the RIAA, decide that every act of file sharing should be a
-felony. We could prosecute families for millions of dollars in damages
-just because file sharing occurred on a family computer. And we can get
-universities to monitor all computer traffic to make sure that no
- computer
-is used to commit this crime. These responses might be extreme,
-
but each of them has either been proposed or actually implemented.<footnote><para>
+could, with the RIAA, decide that every act of file sharing should be
+a felony. We could prosecute families for millions of dollars in
+damages just because file sharing occurred on a family computer. And
+we can get universities to monitor all computer traffic to make sure
+that no computer is used to commit this crime. These responses might
+be extreme, but each of them has either been proposed or actually
+implemented.<footnote><para>
<!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
Berkman Center for Internet and Society at Harvard Law School,
"Copyright
</para></footnote>
</para>
+<indexterm startref="idxchimera" class='endofrange'/>
<para>
-Alternatively, we could respond to file sharing the way many kids
-act as though we've responded. We could totally legalize it. Let there
-be no copyright liability, either civil or criminal, for making
- copyrighted
-content available on the Net. Make file sharing like gossip:
- regulated,
-if at all, by social norms but not by law.
+Alternatively, we could respond to file sharing the way many kids act
+as though we've responded. We could totally legalize it. Let there be
+no copyright liability, either civil or criminal, for making
+copyrighted content available on the Net. Make file sharing like
+gossip: regulated, if at all, by social norms but not by law.
</para>
<para>
Either response is possible. I think either would be a mistake.
power of the property called "intellectual property" is at its greatest in
our history.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-Yet "common sense" does not see it this way. Common sense is still
-on the side of the Causbys and the content industry. The extreme
-claims of control in the name of property still resonate; the uncritical
+Yet "common sense" does not see it this way. Common sense is still on
+the side of the Causbys and the content industry. The extreme claims
+of control in the name of property still resonate; the uncritical
rejection of "piracy" still has play.
</para>
<para>
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>
+suffering.<footnote>
+<indexterm><primary>Bush, George W.</primary></indexterm>
+<para>
<!-- f2. --> The bill, modeled after California's tort reform model, was passed in the
House of Representatives but defeated in a Senate vote in July 2003. For
an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
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>
-<!-- f14. --> This example was derived from fees set by the original Copyright
- Arbitration
-Royalty Panel (CARP) proceedings, and is drawn from an example
-offered by Professor William Fisher. Conference Proceedings, iLaw
-(Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain
-submitted testimony in the CARP proceeding that was ultimately rejected.
-See Jonathan Zittrain, Digital Performance Right in Sound Recordings
-and Ephemeral Recordings, Docket No. 2000-9, CARP DTRA 1 and 2,
-available at
+over $1 million a year.<footnote>
+<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
+<para>
+<!-- f14. -->
+This example was derived from fees set by the original Copyright
+Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
+example offered by Professor William Fisher. Conference Proceedings,
+iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
+and Zittrain submitted testimony in the CARP proceeding that was
+ultimately rejected. See Jonathan Zittrain, Digital Performance Right
+in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
+DTRA 1 and 2, available at
<ulink url="http://free-culture.cc/notes/">link #45</ulink>.
-For an excellent analysis making a similar point, see Randal C. Picker,
-"Copyright as Entry Policy: The Case of Digital Distribution," Antitrust
-Bulletin (Summer/Fall 2002): 461: "This was not confusion, these are just
-old-fashioned entry barriers. Analog radio stations are protected from
- digital
-entrants, reducing entry in radio and diversity. Yes, this is done in the
-name of getting royalties to copyright holders, but, absent the play of
- powerful
+For an excellent analysis making a similar point, see Randal
+C. Picker, "Copyright as Entry Policy: The Case of Digital
+Distribution," Antitrust Bulletin (Summer/Fall 2002): 461: "This was
+not confusion, these are just old-fashioned entry barriers. Analog
+radio stations are protected from digital entrants, reducing entry in
+radio and diversity. Yes, this is done in the name of getting
+royalties to copyright holders, but, absent the play of powerful
interests, that could have been done in a media-neutral way."
</para></footnote>
- A regular radio station broadcasting the same
-content would pay no equivalent fee.
+A regular radio station broadcasting the same content would pay no
+equivalent fee.
</para>
<para>
The burden is not financial only. Under the original rules that were
domain connected to a public that now has the means to create with it
and to share its own creation.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
What is hard to understand is why the public takes this view. It is
as if the law made airplanes trespassers. The MPAA stands with the
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>
+<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<para>
If this is crazy, then let there be more crazies. Soon. There are
moments of hope in this struggle. And moments that surprise. When the
thought to violate the law. Universities are threatening expulsion for
kids who use a computer to share content.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Creative Commons</primary></indexterm>
+<indexterm><primary>Gil, Gilberto</primary></indexterm>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
that it will build a "Creative Archive," from which British citizens can
24 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
</para></footnote>
-<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
+<!-- f15. -->
+"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
</para></footnote>
<!-- PAGE BREAK 278 -->
access to a paper journal.
</para>
<para>
-As journals become electronic, however, the publishers are
- demanding
-that libraries not give the general public access to the journals. This
-means that the freedoms provided by print journals in public libraries
-begin to disappear. Thus, as with privacy and with software, a changing
-technology and market shrink a freedom taken for granted before.
+As journals become electronic, however, the publishers are demanding
+that libraries not give the general public access to the
+journals. This means that the freedoms provided by print journals in
+public libraries begin to disappear. Thus, as with privacy and with
+software, a changing technology and market shrink a freedom taken for
+granted before.
</para>
<para>
This shrinking freedom has led many to take affirmative steps to
scientific research available to anyone with a Web connection. Authors
<!-- PAGE BREAK 287 -->
of scientific work submit that work to the Public Library of Science.
-That work is then subject to peer review. If accepted, the work is then
-deposited in a public, electronic archive and made permanently
- available
-for free. PLoS also sells a print version of its work, but the
- copyright
-for the print journal does not inhibit the right of anyone to
-redistribute the work for free.
+That work is then subject to peer review. If accepted, the work is
+then deposited in a public, electronic archive and made permanently
+available for free. PLoS also sells a print version of its work, but
+the copyright for the print journal does not inhibit the right of
+anyone to redistribute the work for free.
</para>
<para>
This is one of many such efforts to restore a freedom taken for
-granted before, but now threatened by changing technology and
- markets.
-There's no doubt that this alternative competes with the
- traditional
+granted before, but now threatened by changing technology and markets.
+There's no doubt that this alternative competes with the traditional
publishers and their efforts to make money from the exclusive
-distribution of content. But competition in our tradition is
- presumptively
-a good—especially when it helps spread knowledge and science.
+distribution of content. But competition in our tradition is
+presumptively a good—especially when it helps spread knowledge
+and science.
</para>
</sect2>
<sect2 id="oneidea">
<title>Rebuilding Free Culture: One Idea</title>
+<indexterm id="idxcc" class='startofrange'>
+ <primary>Creative Commons</primary>
+</indexterm>
<para>
-The same strategy could be applied to culture, as a response to the
- increasing
-control effected through law and technology.
+The same strategy could be applied to culture, as a response to the
+increasing 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
+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
-precise contours depend upon the choices the creator makes. The
- creator
-can choose a license that permits any use, so long as attribution is
-given. She can choose a license that permits only noncommercial use.
-She can choose a license that permits any use so long as the same
- freedoms
-are given to other uses ("share and share alike"). Or any use so
-long as no derivative use is made. Or any use at all within developing
-nations. Or any sampling use, so long as full copies are not made. Or
-lastly, any educational use.
-</para>
-<para>
-These choices thus establish a range of freedoms beyond the default
-of copyright law. They also enable freedoms that go beyond traditional
+precise contours depend upon the choices the creator makes. The
+creator can choose a license that permits any use, so long as
+attribution is given. She can choose a license that permits only
+noncommercial use. She can choose a license that permits any use so
+long as the same freedoms are given to other uses ("share and share
+alike"). Or any use so long as no derivative use is made. Or any use
+at all within developing nations. Or any sampling use, so long as full
+copies are not made. Or lastly, any educational use.
+</para>
+<para>
+These choices thus establish a range of freedoms beyond the default of
+copyright law. They also enable freedoms that go beyond traditional
fair use. And most importantly, they express these freedoms in a way
that subsequent users can use and rely upon without the need to hire a
-lawyer. Creative Commons thus aims to build a layer of content,
- governed
-by a layer of reasonable copyright law, that others can build
-upon. Voluntary choice of individuals and creators will make this
- content
-available. And that content will in turn enable us to rebuild a
- public
-domain.
-</para>
-<para>
-This is just one project among many within the Creative
- Commons.
-And of course, Creative Commons is not the only organization
-pursuing such freedoms. But the point that distinguishes the Creative
-Commons from many is that we are not interested only in talking
-about a public domain or in getting legislators to help build a public
-domain. Our aim is to build a movement of consumers and producers
+lawyer. Creative Commons thus aims to build a layer of content,
+governed by a layer of reasonable copyright law, that others can build
+upon. Voluntary choice of individuals and creators will make this
+content available. And that content will in turn enable us to rebuild
+a public domain.
+</para>
+<para>
+This is just one project among many within the Creative Commons. And
+of course, Creative Commons is not the only organization pursuing such
+freedoms. But the point that distinguishes the Creative Commons from
+many is that we are not interested only in talking about a public
+domain or in getting legislators to help build a public domain. Our
+aim is to build a movement of consumers and producers
<!-- PAGE BREAK 289 -->
of content ("content conducers," as attorney Mia Garlick calls them)
who help build the public domain and, by their work, demonstrate the
importance of the public domain to other creativity.
</para>
<para>
-The aim is not to fight the "All Rights Reserved" sorts. The aim is
-to complement them. The problems that the law creates for us as a
- culture
-are produced by insane and unintended consequences of laws
-written centuries ago, applied to a technology that only Jefferson could
-have imagined. The rules may well have made sense against a
- background
-of technologies from centuries ago, but they do not make sense
-against the background of digital technologies. New rules—with
- different
-freedoms, expressed in ways so that humans without lawyers can
-use them—are needed. Creative Commons gives people a way
- effectively
+The aim is not to fight the "All Rights Reserved" sorts. The aim is to
+complement them. The problems that the law creates for us as a culture
+are produced by insane and unintended consequences of laws written
+centuries ago, applied to a technology that only Jefferson could have
+imagined. The rules may well have made sense against a background of
+technologies from centuries ago, but they do not make sense against
+the background of digital technologies. New rules—with different
+freedoms, expressed in ways so that humans without lawyers can use
+them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
</para>
<para>
Why would creators participate in giving up total control? Some
-participate to better spread their content. Cory Doctorow, for example,
-is a science fiction author. His first novel, Down and Out in the Magic
-Kingdom, was released on-line and for free, under a Creative
- Commons
-license, on the same day that it went on sale in bookstores.
+participate to better spread their content. Cory Doctorow, for
+example, is a science fiction author. His first novel, Down and Out in
+the Magic Kingdom, was released on-line and for free, under a Creative
+Commons license, on the same day that it went on sale in bookstores.
</para>
<para>
Why would a publisher ever agree to this? I suspect his publisher
-reasoned like this: There are two groups of people out there: (1) those
-who will buy Cory's book whether or not it's on the Internet, and (2)
-those who may never hear of Cory's book, if it isn't made available for
-free on the Internet. Some part of (1) will download Cory's book
- instead
-of buying it. Call them bad-(1)s. Some part of (2) will download
-Cory's book, like it, and then decide to buy it. Call them (2)-goods.
-If there are more (2)-goods than bad-(1)s, the strategy of releasing
-Cory's book free on-line will probably increase sales of Cory's book.
+reasoned like this: There are two groups of people out there: (1)
+those who will buy Cory's book whether or not it's on the Internet,
+and (2) those who may never hear of Cory's book, if it isn't made
+available for free on the Internet. Some part of (1) will download
+Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
+will download Cory's book, like it, and then decide to buy it. Call
+them (2)-goods. If there are more (2)-goods than bad-(1)s, the
+strategy of releasing Cory's book free on-line will probably increase
+sales of Cory's book.
</para>
<para>
-Indeed, the experience of his publisher clearly supports that
- conclusion.
-The book's first printing was exhausted months before the
-publisher had expected. This first novel of a science fiction author was
-a total success.
+Indeed, the experience of his publisher clearly supports that
+conclusion. The book's first printing was exhausted months before the
+publisher had expected. This first novel of a science fiction author
+was a total success.
</para>
<para>
-The idea that free content might increase the value of nonfree
- content
+The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
<!-- PAGE BREAK 290 -->
who wrote a book about the free software movement titled Free for All,
well.
</para>
<para>
-These are examples of using the Commons to better spread
- proprietary
-content. I believe that is a wonderful and common use of the
-Commons. There are others who use Creative Commons licenses for
-other reasons. Many who use the "sampling license" do so because
- anything
-else would be hypocritical. The sampling license says that others
-are free, for commercial or noncommercial purposes, to sample content
-from the licensed work; they are just not free to make full copies of the
-licensed work available to others. This is consistent with their own
-art—they, too, sample from others. Because the legal costs of sampling
-are so high (Walter Leaphart, manager of the rap group Public Enemy,
-which was born sampling the music of others, has stated that he does
-not "allow" Public Enemy to sample anymore, because the legal costs
-are so high<footnote><para>
-<!-- f2. --> Willful Infringement: A Report from the Front Lines of the Real Culture Wars
-(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat
- Lucre
-production, available at
+These are examples of using the Commons to better spread
+proprietary content. I believe that is a wonderful and common use of
+the Commons. There are others who use Creative Commons licenses for
+other reasons. Many who use the "sampling license" do so because
+anything else would be hypocritical. The sampling license says that
+others are free, for commercial or noncommercial purposes, to sample
+content from the licensed work; they are just not free to make full
+copies of the licensed work available to others. This is consistent
+with their own art—they, too, sample from others. Because the
+legal costs of sampling are so high (Walter Leaphart, manager of the
+rap group Public Enemy, which was born sampling the music of others,
+has stated that he does not "allow" Public Enemy to sample anymore,
+because the legal costs are so high<footnote><para>
+<!-- f2. -->
+
+Willful Infringement: A Report from the Front Lines of the Real
+Culture Wars (2003), produced by Jed Horovitz, directed by Greg
+Hittelman, a Fiat Lucre production, available at
<ulink url="http://free-culture.cc/notes/">link #72</ulink>.
</para></footnote>),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
</para>
<para>
-Finally, there are many who mark their content with a Creative
-Commons license just because they want to express to others the
- importance
-of balance in this debate. If you just go along with the system
-as it is, you are effectively saying you believe in the "All Rights Reserved"
-model. Good for you, but many do not. Many believe that however
- appropriate
-that rule is for Hollywood and freaks, it is not an appropriate
-description of how most creators view the rights associated with their
-content. The Creative Commons license expresses this notion of "Some
-Rights Reserved," and gives many the chance to say it to others.
+Finally, there are many who mark their content with a Creative Commons
+license just because they want to express to others the importance of
+balance in this debate. If you just go along with the system as it is,
+you are effectively saying you believe in the "All Rights Reserved"
+model. Good for you, but many do not. Many believe that however
+appropriate that rule is for Hollywood and freaks, it is not an
+appropriate description of how most creators view the rights
+associated with their content. The Creative Commons license expresses
+this notion of "Some Rights Reserved," and gives many the chance to
+say it to others.
</para>
<para>
In the first six months of the Creative Commons experiment, over
steps are possible.
</para>
<para>
-Creative Commons is just one example of voluntary efforts by
- individuals
-and creators to change the mix of rights that now govern the
-creative field. The project does not compete with copyright; it
- complements
-it. Its aim is not to defeat the rights of authors, but to make it
-easier for authors and creators to exercise their rights more flexibly and
-cheaply. That difference, we believe, will enable creativity to spread
-more easily.
+Creative Commons is just one example of voluntary efforts by
+individuals and creators to change the mix of rights that now govern
+the creative field. The project does not compete with copyright; it
+complements it. Its aim is not to defeat the rights of authors, but to
+make it easier for authors and creators to exercise their rights more
+flexibly and cheaply. That difference, we believe, will enable
+creativity to spread more easily.
</para>
+<indexterm startref="idxcc" class='endofrange'/>
<!-- PAGE BREAK 292 -->
</sect2>
<sect3 id="registration">
<title>REGISTRATION AND RENEWAL</title>
<para>
-Under the old system, a copyright owner had to file a registration with
-the Copyright Office to register or renew a copyright. When filing that
-registration, the copyright owner paid a fee. As with most government
-agencies, the Copyright Office had little incentive to minimize the
-burden of registration; it also had little incentive to minimize the fee.
-And as the Copyright Office is not a main target of government
- policymaking,
-the office has historically been terribly underfunded. Thus,
-when people who know something about the process hear this idea
-about formalities, their first reaction is panic—nothing could be worse
-than forcing people to deal with the mess that is the Copyright Office.
+Under the old system, a copyright owner had to file a registration
+with the Copyright Office to register or renew a copyright. When
+filing that registration, the copyright owner paid a fee. As with most
+government agencies, the Copyright Office had little incentive to
+minimize the burden of registration; it also had little incentive to
+minimize the fee. And as the Copyright Office is not a main target of
+government policymaking, the office has historically been terribly
+underfunded. Thus, when people who know something about the process
+hear this idea about formalities, their first reaction is
+panic—nothing could be worse than forcing people to deal with
+the mess that is the Copyright Office.
</para>
<para>
-Yet it is always astonishing to me that we, who come from a
- tradition
+Yet it is always astonishing to me that we, who come from a tradition
of extraordinary innovation in governmental design, can no longer
think innovatively about how governmental functions can be designed.
-Just because there is a public purpose to a government role, it doesn't
-follow that the government must actually administer the role. Instead,
-we should be creating incentives for private parties to serve the public,
-subject to standards that the government sets.
+Just because there is a public purpose to a government role, it
+doesn't follow that the government must actually administer the
+role. Instead, we should be creating incentives for private parties to
+serve the public, subject to standards that the government sets.
</para>
<para>
In the context of registration, one obvious model is the Internet.
There are at least 32 million Web sites registered around the world.
Domain name owners for these Web sites have to pay a fee to keep their
registration alive. In the main top-level domains (.com, .org, .net),
-there is a central registry. The actual registrations are, however,
- performed
-by many competing registrars. That competition drives the cost
-of registering down, and more importantly, it drives the ease with which
-registration occurs up.
+there is a central registry. The actual registrations are, however,
+performed by many competing registrars. That competition drives the
+cost of registering down, and more importantly, it drives the ease
+with which registration occurs up.
</para>
<para>
We should adopt a similar model for the registration and renewal of
-copyrights. The Copyright Office may well serve as the central registry,
-but it should not be in the registrar business. Instead, it should
- establish
-a database, and a set of standards for registrars. It should approve
-registrars that meet its standards. Those registrars would then compete
-with one another to deliver the cheapest and simplest systems for
- registering
-and renewing copyrights. That competition would
- substantially
-lower the burden of this formality—while producing a database
+copyrights. The Copyright Office may well serve as the central
+registry, but it should not be in the registrar business. Instead, it
+should establish a database, and a set of standards for registrars. It
+should approve registrars that meet its standards. Those registrars
+would then compete with one another to deliver the cheapest and
+simplest systems for registering and renewing copyrights. That
+competition would substantially lower the burden of this
+formality—while producing a database
<!-- PAGE BREAK 295 -->
of registrations that would facilitate the licensing of content.
</para>
<sect3 id="marking">
<title>MARKING</title>
<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
-the death penalty for a parking ticket in the world of creative rights.
-Here again, there is no reason that a marking requirement needs to be
-enforced in this way. And more importantly, there is no reason a
- marking
-requirement needs to be enforced uniformly across all media.
+It used to be that the failure to include a copyright notice on a
+creative work meant that the copyright was forfeited. That was a harsh
+punishment for failing to comply with a regulatory rule—akin to
+imposing the death penalty for a parking ticket in the world of
+creative rights. Here again, there is no reason that a marking
+requirement needs to be enforced in this way. And more importantly,
+there is no reason a marking requirement needs to be enforced
+uniformly across all media.
</para>
<para>
-The aim of marking is to signal to the public that this work is
- copyrighted
-and that the author wants to enforce his rights. The mark also
-makes it easy to locate a copyright owner to secure permission to use
-the work.
+The aim of marking is to signal to the public that this work is
+copyrighted and that the author wants to enforce his rights. The mark
+also makes it easy to locate a copyright owner to secure permission to
+use the work.
</para>
<para>
One of the problems the copyright system confronted early on was
Let's start with the last point. If a copyright owner allows his work
to be published without a copyright notice, the consequence of that
failure need not be that the copyright is lost. The consequence could
-instead be that anyone has the right to use this work, until the
- copyright
-owner complains and demonstrates that it is his work and he
+instead be that anyone has the right to use this work, until the
+copyright owner complains and demonstrates that it is his work and he
doesn't give permission.<footnote><para>
-<!-- f2. --> There would be a complication with derivative works that I have not
+<!-- f2. -->
+There would be a complication with derivative works that I have not
solved here. In my view, the law of derivatives creates a more complicated
system than is justified by the marginal incentive it creates.
</para></footnote>
- The meaning of an unmarked work would
-therefore be "use unless someone complains." If someone does
- complain,
-then the obligation would be to stop using the work in any new
+The meaning of an unmarked work would therefore be "use unless someone
+complains." If someone does complain, then the obligation would be to
+stop using the work in any new
<!-- PAGE BREAK 296 -->
work from then on though no penalty would attach for existing uses.
This would create a strong incentive for copyright owners to mark
</para>
<para>
In The Future of Ideas, I proposed a seventy-five-year term, granted
-in five-year increments with a requirement of renewal every five years.
-That seemed radical enough at the time. But after we lost Eldred v.
-Ashcroft, the proposals became even more radical. The Economist
- endorsed
-a proposal for a fourteen-year copyright term.<footnote><para>
-<!-- f3. --> "A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, available
-at
+in five-year increments with a requirement of renewal every five
+years. That seemed radical enough at the time. But after we lost
+Eldred v. Ashcroft, the proposals became even more radical. The
+Economist endorsed a proposal for a fourteen-year copyright
+term.<footnote><para>
+<!-- f3. -->
+"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
+available at
<ulink url="http://free-culture.cc/notes/">link #74</ulink>.
</para></footnote>
- Others have
-proposed tying the term to the term for patents.
+Others have proposed tying the term to the term for patents.
</para>
<para>
-I agree with those who believe that we need a radical change in
- copyright's
-term. But whether fourteen years or seventy-five, there are four
-principles that are important to keep in mind about copyright terms.
+I agree with those who believe that we need a radical change in
+copyright's term. But whether fourteen years or seventy-five, there
+are four principles that are important to keep in mind about copyright
+terms.
</para>
<orderedlist numeration="arabic">
<listitem><para>
<!-- (1) -->
-Keep it short: The term should be as long as necessary to
-give incentives to create, but no longer. If it were tied to very
-strong protections for authors (so authors were able to reclaim
-rights from publishers), rights to the same work (not
- derivative
-works) might be extended further. The key is not to tie the
-work up with legal regulations when it no longer benefits an
-author.
-</para></listitem>
+Keep it short: The term should be as long as necessary to give
+incentives to create, but no longer. If it were tied to very strong
+protections for authors (so authors were able to reclaim rights from
+publishers), rights to the same work (not derivative works) might be
+extended further. The key is not to tie the work up with legal
+regulations when it no longer benefits an author. </para></listitem>
<listitem><para>
<!-- (2) -->
-Keep it simple: The line between the public domain and
-protected content must be kept clear. Lawyers like the
- fuzziness
-of "fair use," and the distinction between "ideas" and
- "expression."
-That kind of law gives them lots of work. But our
-framers had a simpler idea in mind: protected versus
- unprotected.
-The value of short terms is that there is little need to
-build exceptions into copyright when the term itself is kept
-short. A clear and active "lawyer-free zone" makes the
- complexities
-of "fair use" and "idea/expression" less necessary to
+Keep it simple: The line between the public domain and protected
+content must be kept clear. Lawyers like the fuzziness of "fair use,"
+and the distinction between "ideas" and "expression." That kind of
+law gives them lots of work. But our framers had a simpler idea in
+mind: protected versus unprotected. The value of short terms is that
+there is little need to build exceptions into copyright when the term
+itself is kept short. A clear and active "lawyer-free zone" makes the
+complexities of "fair use" and "idea/expression" less necessary to
navigate.
<!-- PAGE BREAK 298 -->
</para></listitem>
<listitem><para>
<!-- (3) -->
-Keep it alive: Copyright should have to be renewed.
- Especially
-if the maximum term is long, the copyright owner
-should be required to signal periodically that he wants the
-protection continued. This need not be an onerous burden,
-but there is no reason this monopoly protection has to be
-granted for free. On average, it takes ninety minutes for a
- veteran
-to apply for a pension.<footnote><para>
-<!-- f4. --> Department of Veterans Affairs, Veteran's Application for Compensation
+Keep it alive: Copyright should have to be renewed. Especially if the
+maximum term is long, the copyright owner should be required to signal
+periodically that he wants the protection continued. This need not be
+an onerous burden, but there is no reason this monopoly protection has
+to be granted for free. On average, it takes ninety minutes for a
+veteran to apply for a pension.<footnote><para>
+<!-- f4. -->
+Department of Veterans Affairs, Veteran's Application for Compensation
and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
available at
<ulink url="http://free-culture.cc/notes/">link #75</ulink>.
</para></footnote>
- If we make veterans suffer that
-burden, I don't see why we couldn't require authors to spend
-ten minutes every fifty years to file a single form.
+If we make veterans suffer that burden, I don't see why we couldn't
+require authors to spend ten minutes every fifty years to file a
+single form.
</para></listitem>
<listitem><para>
<!-- (4) -->
-Keep it prospective: Whatever the term of copyright should
-be, the clearest lesson that economists teach is that a term
-once given should not be extended. It might have been a
- mistake
-in 1923 for the law to offer authors only a fifty-six-year
-term. I don't think so, but it's possible. If it was a mistake, then
-the consequence was that we got fewer authors to create in
-1923 than we otherwise would have. But we can't correct that
-mistake today by increasing the term. No matter what we do
-today, we will not increase the number of authors who wrote
-in 1923. Of course, we can increase the reward that those who
-write now get (or alternatively, increase the copyright burden
-that smothers many works that are today invisible). But
- increasing
-their reward will not increase their creativity in 1923.
-What's not done is not done, and there's nothing we can do
-about that now.
-</para></listitem>
+Keep it prospective: Whatever the term of copyright should be, the
+clearest lesson that economists teach is that a term once given should
+not be extended. It might have been a mistake in 1923 for the law to
+offer authors only a fifty-six-year term. I don't think so, but it's
+possible. If it was a mistake, then the consequence was that we got
+fewer authors to create in 1923 than we otherwise would have. But we
+can't correct that mistake today by increasing the term. No matter
+what we do today, we will not increase the number of authors who wrote
+in 1923. Of course, we can increase the reward that those who write
+now get (or alternatively, increase the copyright burden that smothers
+many works that are today invisible). But increasing their reward will
+not increase their creativity in 1923. What's not done is not done,
+and there's nothing we can do about that now. </para></listitem>
</orderedlist>
<para>
These changes together should produce an average copyright term
the emergence of that new technology.
</para>
<para>
-Our Constitution gives Congress the power to give authors
- "exclusive
+Our Constitution gives Congress the power to give authors "exclusive
right" to "their writings." Congress has given authors an exclusive
-right to "their writings" plus any derivative writings (made by others) that
-are sufficiently close to the author's original work. Thus, if I write a book,
-and you base a movie on that book, I have the power to deny you the
-right to release that movie, even though that movie is not "my writing."
+right to "their writings" plus any derivative writings (made by
+others) that are sufficiently close to the author's original
+work. Thus, if I write a book, and you base a movie on that book, I
+have the power to deny you the right to release that movie, even
+though that movie is not "my writing."
</para>
<para>
-Congress granted the beginnings of this right in 1870, when it
- expanded
-the exclusive right of copyright to include a right to control
-translations and dramatizations of a work.<footnote><para>
-<!-- f5. --> Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
+Congress granted the beginnings of this right in 1870, when it
+expanded the exclusive right of copyright to include a right to
+control translations and dramatizations of a work.<footnote><para>
+<!-- f5. -->
+Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
University Press, 1967), 32.
</para></footnote>
- The courts have expanded
-it slowly through judicial interpretation ever since. This expansion has
-been commented upon by one of the law's greatest judges, Judge
- Benjamin
-Kaplan.
+The courts have expanded it slowly through judicial interpretation
+ever since. This expansion has been commented upon by one of the law's
+greatest judges, Judge Benjamin Kaplan.
</para>
<blockquote>
<para>
<sect2 id="liberatemusic">
<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>
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
+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>
projects / text-free-culture-lessig.git / blobdiff