The fight to defend the limits of the Statute of Anne was not to end
there, however, and it is here that Donaldson enters the mix.
</para>
+<indexterm><primary>Beckett, Thomas</primary></indexterm>
<para>
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
simply enables the powerful industries of today to protect themselves
against the competitors of tomorrow.
</para>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
</para>
+<indexterm><primary>Hummer, John</primary></indexterm>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
<para>
<!-- PAGE BREAK 257 -->
As I described in chapter 10, formalities in copyright law were
- removed
-in 1976, when Congress followed the Europeans by
- abandoning
+removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
-<!-- f1. --> Until the 1908 Berlin Act of the Berne Convention, national copyright
-legislation sometimes made protection depend upon compliance with
- formalities
-such as registration, deposit, and affixation of notice of the
- author's
-claim of copyright. However, starting with the 1908 act, every text
-of the Convention has provided that "the enjoyment and the exercise" of
-rights guaranteed by the Convention "shall not be subject to any
- formality."
-The prohibition against formalities is presently embodied in Article
-5(2) of the Paris Text of the Berne Convention. Many countries continue
-to impose some form of deposit or registration requirement, albeit not as
-a condition of copyright. French law, for example, requires the deposit of
-copies of works in national repositories, principally the National Museum.
+<indexterm><primary>Berlin Act (1908)</primary></indexterm>
+<!-- f1. -->
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject
+to any formality." The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the National Museum.
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
-of Authors where the author's true name can be filed in the case of
- anonymous
-or pseudonymous works. Paul Goldstein, International Intellectual
-Property Law, Cases and Materials (New York: Foundation Press, 2001),
-153–54.
-</para></footnote>
- The
- Europeans
-are said to view copyright as a "natural right." Natural rights
-don't need forms to exist. Traditions, like the Anglo-American
- tradition
-that required copyright owners to follow form if their rights were
-to be protected, did not, the Europeans thought, properly respect the
-dignity of the author. My right as a creator turns on my creativity, not
-upon the special favor of the government.
-</para>
-<para>
-That's great rhetoric. It sounds wonderfully romantic. But it is
- absurd
-copyright policy. It is absurd especially for authors, because a
-world without formalities harms the creator. The ability to spread
+of Authors where the author's true name can be filed in the case of
+anonymous or pseudonymous works. Paul Goldstein, International
+Intellectual Property Law, Cases and Materials (New York: Foundation
+Press, 2001), 153–54. </para></footnote>
+The Europeans are said to view copyright as a "natural right." Natural
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+</para>
+<para>
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
</para>
<para>
-The fight against formalities achieved its first real victory in Berlin
-in 1908. International copyright lawyers amended the Berne
- Convention
-in 1908, to require copyright terms of life plus fifty years, as well as
-the abolition of copyright formalities. The formalities were hated
- because
-the stories of inadvertent loss were increasingly common. It was
-as if a Charles Dickens character ran all copyright offices, and the
- failure
-to dot an i or cross a t resulted in the loss of widows' only income.
+The fight against formalities achieved its first real victory in
+Berlin in 1908. International copyright lawyers amended the Berne
+Convention in 1908, to require copyright terms of life plus fifty
+years, as well as the abolition of copyright formalities. The
+formalities were hated because the stories of inadvertent loss were
+increasingly common. It was as if a Charles Dickens character ran all
+copyright offices, and the failure to dot an i or cross a t resulted
+in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
-formalities, especially in the United States, was absurd. The law should
-always have ways of forgiving innocent mistakes. There is no reason
-copyright law couldn't, as well. Rather than abandoning formalities
- totally,
-the response in Berlin should have been to embrace a more
- equitable
-system of registration.
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
</para>
<para>
Even that would have been resisted, however, because registration
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that
- something
-must be done to change where we are heading. The balance of
-this book maps what might be done.
+At least some who have read this far will agree with me that something
+must be done to change where we are heading. The balance of this book
+maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
it requires remaking how many people think about the very same issue.
</para>
<para>
-That means this movement must begin in the streets. It must
- recruit
-a significant number of parents, teachers, librarians, creators,
- authors,
-musicians, filmmakers, scientists—all to tell this story in their
-own words, and to tell their neighbors why this battle is so important.
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators,
+authors, musicians, filmmakers, scientists—all to tell this
+story in their own words, and to tell their neighbors why this battle
+is so important.
</para>
<para>
Once this movement has its effect in the streets, it has some hope of
<sect1 id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so
-far has been framed at the extremes—as a grand either/or: either
- property
-or anarchy, either total control or artists won't be paid. If that
- really
-is the choice, then the warriors should win.
+Common sense is with the copyright warriors because the debate so far
+has been framed at the extremes—as a grand either/or: either
+property or anarchy, either total control or artists won't be paid. If
+that really is the choice, then the warriors should win.
</para>
<para>
-The mistake here is the error of the excluded middle. There are
- extremes
-in this debate, but the extremes are not all that there is. There
-are those who believe in maximal copyright—"All Rights Reserved"—
-and those who reject copyright—"No Rights Reserved." The "All
-Rights Reserved" sorts believe that you should ask permission before
-you "use" a copyrighted work in any way. The "No Rights Reserved"
-sorts believe you should be able to do with content as you wish,
- regardless
-of whether you have permission or not.
+The mistake here is the error of the excluded middle. There are
+extremes in this debate, but the extremes are not all that there
+is. There are those who believe in maximal copyright—"All Rights
+Reserved"— and those who reject copyright—"No Rights
+Reserved." The "All Rights Reserved" sorts believe that you should ask
+permission before you "use" a copyrighted work in any way. The "No
+Rights Reserved" sorts believe you should be able to do with content
+as you wish, regardless of whether you have permission or not.
</para>
<para>
When the Internet was first born, its initial architecture effectively
tilted in the "no rights reserved" direction. Content could be copied
-perfectly and cheaply; rights could not easily be controlled. Thus,
- regardless
-of anyone's desire, the effective regime of copyright under the
+perfectly and cheaply; rights could not easily be controlled. Thus,
+regardless of anyone's desire, the effective regime of copyright under
+the
<!-- PAGE BREAK 282 -->
original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
- unprotected.
+"taken" regardless of the rights. Any rights were effectively
+unprotected.
</para>
<para>
This initial character produced a reaction (opposite, but not quite
equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
-design, copyright holders have been able to change the essential
- character
-of the environment of the original Internet. If the original
- architecture
-made the effective default "no rights reserved," the future
-architecture will make the effective default "all rights reserved." The
- architecture
-and law that surround the Internet's design will increasingly
-produce an environment where all use of content requires permission.
-The "cut and paste" world that defines the Internet today will become
-a "get permission to cut and paste" world that is a creator's nightmare.
+design, copyright holders have been able to change the essential
+character of the environment of the original Internet. If the original
+architecture made the effective default "no rights reserved," the
+future architecture will make the effective default "all rights
+reserved." The architecture and law that surround the Internet's
+design will increasingly produce an environment where all use of
+content requires permission. The "cut and paste" world that defines
+the Internet today will become a "get permission to cut and paste"
+world that is a creator's nightmare.
</para>
<para>
What's needed is a way to say something in the middle—neither "all
<sect2 id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
-If you step back from the battle I've been describing here, you will
- recognize
-this problem from other contexts. Think about privacy. Before
-the Internet, most of us didn't have to worry much about data about
-our lives that we broadcast to the world. If you walked into a bookstore
-and browsed through some of the works of Karl Marx, you didn't need
-to worry about explaining your browsing habits to your neighbors or
-boss. The "privacy" of your browsing habits was assured.
+If you step back from the battle I've been describing here, you will
+recognize this problem from other contexts. Think about
+privacy. Before the Internet, most of us didn't have to worry much
+about data about our lives that we broadcast to the world. If you
+walked into a bookstore and browsed through some of the works of Karl
+Marx, you didn't need to worry about explaining your browsing habits
+to your neighbors or boss. The "privacy" of your browsing habits was
+assured.
</para>
<para>
What made it assured?
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture for
-gathering data and hence a market constraint (cost) on anyone who
-wanted to gather that data. If you were a suspected spy for North
- Korea,
-working for the CIA, no doubt your privacy would not be assured.
-But that's because the CIA would (we hope) find it valuable enough to
-spend the thousands required to track you. But for most of us (again,
-we can hope), spying doesn't pay. The highly inefficient architecture of
-real space means we all enjoy a fairly robust amount of privacy. That
-privacy is guaranteed to us by friction. Not by law (there is no law
- protecting
-"privacy" in public places), and in many places, not by norms
-(snooping and gossip are just fun), but instead, by the costs that
- friction
-imposes on anyone who would want to spy.
+10, your privacy was assured because of an inefficient architecture
+for gathering data and hence a market constraint (cost) on anyone who
+wanted to gather that data. If you were a suspected spy for North
+Korea, working for the CIA, no doubt your privacy would not be
+assured. But that's because the CIA would (we hope) find it valuable
+enough to spend the thousands required to track you. But for most of
+us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount
+of privacy. That privacy is guaranteed to us by friction. Not by law
+(there is no law protecting "privacy" in public places), and in many
+places, not by norms (snooping and gossip are just fun), but instead,
+by the costs that friction imposes on anyone who would want to spy.
</para>
<indexterm><primary>Amazon</primary></indexterm>
<para>
It is this reality that explains the push of many to define "privacy"
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
- friction
-did.<footnote><para>
-<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
- Architecture
-of Privacy (What Larry Doesn't Get)," Stanford Technology Law
-Review 1 (2001): par. 6–18, available at
-<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
-which technology defines privacy policy). See also Jeffrey Rosen, The Naked
-Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
- Random
-House, 2004) (mapping tradeoffs between technology and privacy).
-</para></footnote>
- And whether you're in favor of those laws or not, it is the
- pattern
+friction did.<footnote><para>
+<!-- f1. -->
+
+See, for example, Marc Rotenberg, "Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+Law Review 1 (2001): par. 6–18, available at
+
+<ulink url="http://free-culture.cc/notes/">link #72</ulink>
+(describing examples in which technology defines privacy policy). See
+also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
+between technology and privacy).</para></footnote>
+And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
<!-- PAGE BREAK 284 -->
-kind of freedom that was passively provided before. A change in
- technology
-now forces those who believe in privacy to affirmatively act
-where, before, privacy was given by default.
+kind of freedom that was passively provided before. A change in
+technology now forces those who believe in privacy to affirmatively
+act where, before, privacy was given by default.
</para>
<para>
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
-commercially, the software—both the source code and the binaries—
-was free. You couldn't run a program written for a Data General
- machine
-on an IBM machine, so Data General and IBM didn't care much
-about controlling their software.
+commercially, the software—both the source code and the
+binaries— was free. You couldn't run a program written for a
+Data General machine on an IBM machine, so Data General and IBM didn't
+care much about controlling their software.
</para>
+<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
-That was the world Richard Stallman was born into, and while he
-was a researcher at MIT, he grew to love the community that
- developed
-when one was free to explore and tinker with the software that
-ran on machines. Being a smart sort himself, and a talented
- programmer,
-Stallman grew to depend upon the freedom to add to or modify
-other people's work.
-</para>
-<para>
-In an academic setting, at least, that's not a terribly radical idea. In
-a math department, anyone would be free to tinker with a proof that
-someone offered. If you thought you had a better way to prove a
- theorem,
-you could take what someone else did and change it. In a classics
-department, if you believed a colleague's translation of a recently
- discovered
-text was flawed, you were free to improve it. Thus, to Stallman,
-it seemed obvious that you should be free to tinker with and improve
-the code that ran a machine. This, too, was knowledge. Why shouldn't
-it be open for criticism like anything else?
+That was the world Richard Stallman was born into, and while he was a
+researcher at MIT, he grew to love the community that developed when
+one was free to explore and tinker with the software that ran on
+machines. Being a smart sort himself, and a talented programmer,
+Stallman grew to depend upon the freedom to add to or modify other
+people's work.
+</para>
+<para>
+In an academic setting, at least, that's not a terribly radical
+idea. In a math department, anyone would be free to tinker with a
+proof that someone offered. If you thought you had a better way to
+prove a theorem, you could take what someone else did and change
+it. In a classics department, if you believed a colleague's
+translation of a recently discovered text was flawed, you were free to
+improve it. Thus, to Stallman, it seemed obvious that you should be
+free to tinker with and improve the code that ran a machine. This,
+too, was knowledge. Why shouldn't it be open for criticism like
+anything else?
</para>
<para>
No one answered that question. Instead, the architecture of revenue
-for computing changed. As it became possible to import programs
-from one system to another, it became economically attractive (at least
-in the view of some) to hide the code of your program. So, too, as
- companies
-started selling peripherals for mainframe systems. If I could just
-take your printer driver and copy it, then that would make it easier for
-me to sell a printer to the market than it was for you.
+for computing changed. As it became possible to import programs from
+one system to another, it became economically attractive (at least in
+the view of some) to hide the code of your program. So, too, as
+companies started selling peripherals for mainframe systems. If I
+could just take your printer driver and copy it, then that would make
+it easier for me to sell a printer to the market than it was for you.
</para>
<para>
Thus, the practice of proprietary code began to spread, and by the
early 1980s, Stallman found himself surrounded by proprietary code.
<!-- PAGE BREAK 285 -->
-The world of free software had been erased by a change in the
- economics
-of computing. And as he believed, if he did nothing about it,
-then the freedom to change and share software would be
- fundamentally
-weakened.
+The world of free software had been erased by a change in the
+economics of computing. And as he believed, if he did nothing about
+it, then the freedom to change and share software would be
+fundamentally weakened.
</para>
<para>
-Therefore, in 1984, Stallman began a project to build a free
- operating
+Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
</para>
<para>
Stallman's technique was to use copyright law to build a world of
-software that must be kept free. Software licensed under the Free
- Software
-Foundation's GPL cannot be modified and distributed unless the
-source code for that software is made available as well. Thus, anyone
-building upon GPL'd software would have to make their buildings free
-as well. This would assure, Stallman believed, that an ecology of code
-would develop that remained free for others to build upon. His
- fundamental
-goal was freedom; innovative creative code was a byproduct.
+software that must be kept free. Software licensed under the Free
+Software Foundation's GPL cannot be modified and distributed unless
+the source code for that software is made available as well. Thus,
+anyone building upon GPL'd software would have to make their buildings
+free as well. This would assure, Stallman believed, that an ecology of
+code would develop that remained free for others to build upon. His
+fundamental goal was freedom; innovative creative code was a
+byproduct.
</para>
<para>
Stallman was thus doing for software what privacy advocates now
projects / text-free-culture-lessig.git / blobdiff