<abbrev>"freeculture"</abbrev>
- <subtitle>Version 2004-02-10</subtitle>
+ <subtitle>HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
+ CULTURE AND CONTROL CREATIVITY</subtitle>
+
+ <pubdate>2004-03-25</pubdate>
+
+ <releaseinfo>Version 2004-02-10</releaseinfo>
<authorgroup>
<author>
<ulink url="http://free-culture.cc/notes/">link #3</ulink>; Jonathan
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins," Boston Globe, 24 November 2002.
+<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
There was "value" (the songs) so there must have been a
"right"—even against the Girl Scouts.
deconstruct media images. Its aim is to make [kids] literate about the
way media works, the way it's constructed, the way it's delivered, and
the way people access it."
+<indexterm><primary>Yanofsky, Dave</primary></indexterm>
</para>
<para>
This may seem like an odd way to think about "literacy." For most
<!-- f18 -->
Copyright Law Revision—CATV, 216 (statement of Edwin M.
Zimmerman, acting assistant attorney general).
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para></footnote>
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para>
</blockquote>
<para>
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
-144–90. "In some instances . . . the impact of piracy on the copyright holder's
-ability to appropriate the value of the work will be negligible. One obvious
- instance
-is the case where the individual engaging in pirating would not have
-purchased an original even if pirating were not an option." Ibid., 149.
+144–90. "In some instances . . . the impact of piracy on the
+copyright holder's ability to appropriate the value of the work will
+be negligible. One obvious instance is the case where the individual
+engaging in pirating would not have purchased an original even if
+pirating were not an option." Ibid., 149.
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
</para>
<para>
How do these different types of sharing balance out?
</para>
<para>
-Let's start with some simple but important points. From the
- perspective
-of the law, only type D sharing is clearly legal. From the
-
perspective of economics, only type A sharing is clearly harmful.<footnote><para>
+Let's start with some simple but important points. From the
+perspective of the law, only type D sharing is clearly legal. From the
+perspective of economics, only type A sharing is clearly
+harmful.<footnote><para>
<!-- f9 -->
See Liebowitz, Rethinking the Network Economy,148–49.
-</para></footnote>
-Type B sharing is illegal but plainly beneficial. Type C sharing is
- illegal,
-yet good for society (since more exposure to music is good) and
-harmless to the artist (since the work is not otherwise available). So
-how sharing matters on balance is a hard question to answer—and
- certainly
-much more difficult than the current rhetoric around the issue
-suggests.
-</para>
-<para>
-Whether on balance sharing is harmful depends importantly on
-how harmful type A sharing is. Just as Edison complained about
- Hollywood,
-composers complained about piano rolls, recording artists
-complained about radio, and broadcasters complained about cable TV,
-the music industry complains that type A sharing is a kind of "theft"
-that is "devastating" the industry.
-</para>
-<para>
-While the numbers do suggest that sharing is harmful, how
- harmful
-is harder to reckon. It has long been the recording industry's
- practice
-to blame technology for any drop in sales. The history of cassette
-recording is a good example. As a study by Cap Gemini Ernst &
-Young put it, "Rather than exploiting this new, popular technology, the
-labels fought it."<footnote><para>
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
+</para></footnote>
+Type B sharing is illegal but plainly beneficial. Type C sharing is
+illegal, yet good for society (since more exposure to music is good)
+and harmless to the artist (since the work is not otherwise
+available). So how sharing matters on balance is a hard question to
+answer—and certainly much more difficult than the current
+rhetoric around the issue suggests.
+</para>
+<para>
+Whether on balance sharing is harmful depends importantly on how
+harmful type A sharing is. Just as Edison complained about Hollywood,
+composers complained about piano rolls, recording artists complained
+about radio, and broadcasters complained about cable TV, the music
+industry complains that type A sharing is a kind of "theft" that is
+"devastating" the industry.
+</para>
+<para>
+While the numbers do suggest that sharing is harmful, how
+harmful is harder to reckon. It has long been the recording industry's
+practice to blame technology for any drop in sales. The history of
+cassette recording is a good example. As a study by Cap Gemini Ernst
+& Young put it, "Rather than exploiting this new, popular
+technology, the labels fought it."<footnote><para>
<!-- f10 -->
-See Cap Gemini Ernst & Young, Technology Evolution and the Music
- Industry's
-Business Model Crisis (2003), 3. This report describes the music
- industry's
-effort to stigmatize the budding practice of cassette taping in the
-1970s, including an advertising campaign featuring a cassette-shape skull
-and the caption "Home taping is killing music."
-At the time digital audio tape became a threat, the Office of Technical
-Assessment conducted a survey of consumer behavior. In 1988, 40 percent
-of consumers older than ten had taped music to a cassette format. U.S.
-Congress, Office of Technology Assessment, Copyright and Home Copying:
-Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
-Government Printing Office, October 1989), 145–56.
-</para></footnote>
-The labels claimed that every album taped was an
-album unsold, and when record sales fell by 11.4 percent in 1981, the
-industry claimed that its point was proved. Technology was the
- problem,
-and banning or regulating technology was the answer.
+See Cap Gemini Ernst & Young, Technology Evolution and the
+Music Industry's Business Model Crisis (2003), 3. This report
+describes the music industry's effort to stigmatize the budding
+practice of cassette taping in the 1970s, including an advertising
+campaign featuring a cassette-shape skull and the caption "Home taping
+is killing music." At the time digital audio tape became a threat,
+the Office of Technical Assessment conducted a survey of consumer
+behavior. In 1988, 40 percent of consumers older than ten had taped
+music to a cassette format. U.S. Congress, Office of Technology
+Assessment, Copyright and Home Copying: Technology Challenges the Law,
+OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office,
+October 1989), 145–56. </para></footnote>
+The labels claimed that every album taped was an album unsold, and
+when record sales fell by 11.4 percent in 1981, the industry claimed
+that its point was proved. Technology was the problem, and banning or
+regulating technology was the answer.
</para>
<para>
Yet soon thereafter, and before Congress was given an opportunity
Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August
2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
+<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
Whether or not you go that far, it seems
plain that whatever wrong is involved is fundamentally different from
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
-<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm id="idxaibo" class='startofrange'>
+ <primary>Aibo robotic dog</primary>
+</indexterm>
<para>
Consider the robotic dog made by Sony named "Aibo." The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
well. There's a well-deserved respect that goes with the talent to hack
ethically.
</para>
-<indexterm><primary>Aibo robotic dog</primary></indexterm>
<para>
The Aibo fan was displaying a bit of both when he hacked the program
and offered to the world a bit of code that would enable the Aibo to
bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
+<indexterm startref="idxaibo" class='endofrange'/>
<para>
I've told this story in many contexts, both inside and outside the
United States. Once I was asked by a puzzled member of the audience,
<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
was that the criticism was "too controversial."
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
+<indexterm><primary>WJOA</primary></indexterm>
</para></footnote>
</para>
<para>
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
-and Digital Media in a Post-Napster World," 27 June 2003, available
-at
-<ulink url="http://free-culture.cc/notes/">link #33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
-(D-Calif.) have introduced a bill that would treat unauthorized on-line
-copying as a felony offense with punishments ranging as high as five years
-imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy,"
-Los Angeles Times, 17 July 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil penalties are
-currently set at $150,000 per copied song. For a recent (and unsuccessful)
-legal challenge to the RIAA's demand that an ISP reveal the identity of a
-user accused of sharing more than 600 songs through a family computer,
-see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F.
-Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as
-high as $90 million. Such astronomical figures furnish the RIAA with a
-powerful arsenal in its prosecution of file sharers. Settlements ranging
-from $12,000 to $17,500 for four students accused of heavy file sharing on
-university networks must have seemed a mere pittance next to the $98
- billion
-the RIAA could seek should the matter proceed to court. See
- Elizabeth
-Young, "Downloading Could Lead to Fines," redandblack.com,
-August 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an example of the RIAA's
- targeting
-of student file sharing, and of the subpoenas issued to universities to
-reveal student file-sharer identities, see James Collins, "RIAA Steps Up
-Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003,
-D3, available at
+<!-- f2. -->
+For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+"Copyright and Digital Media in a Post-Napster World," 27 June 2003,
+available at
+<ulink url="http://free-culture.cc/notes/">link
+#33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized
+on-line copying as a felony offense with punishments ranging as high
+as five years imprisonment; see Jon Healey, "House Bill Aims to Up
+Stakes on Piracy," Los Angeles Times, 17 July 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil
+penalties are currently set at $150,000 per copied song. For a recent
+(and unsuccessful) legal challenge to the RIAA's demand that an ISP
+reveal the identity of a user accused of sharing more than 600 songs
+through a family computer, see RIAA v. Verizon Internet Services (In
+re. Verizon Internet Services), 240 F. Supp. 2d 24
+(D.D.C. 2003). Such a user could face liability ranging as high as $90
+million. Such astronomical figures furnish the RIAA with a powerful
+arsenal in its prosecution of file sharers. Settlements ranging from
+$12,000 to $17,500 for four students accused of heavy file sharing on
+university networks must have seemed a mere pittance next to the $98
+billion the RIAA could seek should the matter proceed to court. See
+Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com,
+August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an
+example of the RIAA's targeting of student file sharing, and of the
+subpoenas issued to universities to reveal student file-sharer
+identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
+Name Students," Boston Globe, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
</para>
It has been
mirrored in the responses threatened and actually implemented by
Congress. I won't catalog all of those responses here.<footnote><para>
-<!-- f11. --> For example, in July 2002, Representative Howard Berman introduced the
+<!-- f11. -->
+For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
-copyright holders use technology to stop copyright infringement. In
- August
-2002, Representative Billy Tauzin introduced a bill to mandate that
-technologies capable of rebroadcasting digital copies of films broadcast on
-TV (i.e., computers) respect a "broadcast flag" that would disable copying
-of that content. And in March of the same year, Senator Fritz Hollings
-introduced the Consumer Broadband and Digital Television Promotion
-Act, which mandated copyright protection technology in all digital media
-devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster
-World," 27 June 2003, 33–34, available at
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a "broadcast flag" that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, which mandated copyright protection
+technology in all digital media devices. See GartnerG2, "Copyright and
+Digital Media in a Post-Napster World," 27 June 2003, 33–34,
+available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
- But there is one
-example that captures the flavor of them all. This is the story of the
- demise
-of Internet radio.
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
</para>
<para>
<!-- PAGE BREAK 204 -->
As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless he
-or she is also the composer. So, for example if Marilyn Monroe had
+recording artist doesn't get paid for that "radio performance" unless
+he or she is also the composer. So, for example if Marilyn Monroe had
recorded a version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
-then whenever that recording was played on the radio, the current
- copyright
-owners of "Happy Birthday" would get some money, whereas
+then whenever that recording was played on the radio, the current
+copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
</para>
<para>
<para>
<!-- PAGE BREAK 205 -->
-Internet radio is thus to radio what FM was to AM. It is an
- improvement
-potentially vastly more significant than the FM
- improvement
-over AM, since not only is the technology better, so, too, is the
-competition. Indeed, there is a direct parallel between the fight to
- establish
-FM radio and the fight to protect Internet radio. As one author
-describes Howard Armstrong's struggle to enable FM radio,
+Internet radio is thus to radio what FM was to AM. It is an
+improvement potentially vastly more significant than the FM
+improvement over AM, since not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
</para>
<blockquote>
<para>
An almost unlimited number of FM stations was possible in the
-shortwaves, thus ending the unnatural restrictions imposed on
- radio
-in the crowded longwaves. If FM were freely developed, the
-number of stations would be limited only by economics and
- competition
-rather than by technical restrictions. . . . Armstrong
-likened the situation that had grown up in radio to that following
-the invention of the printing press, when governments and ruling
-interests attempted to control this new instrument of mass
- communications
-by imposing restrictive licenses on it. This tyranny
-was broken only when it became possible for men freely to
- acquire
-printing presses and freely to run them. FM in this sense
-was as great an invention as the printing presses, for it gave radio
-the opportunity to strike off its shackles.<footnote><para>
-<!-- f12. --> Lessing, 239.
+shortwaves, thus ending the unnatural restrictions imposed on radio in
+the crowded longwaves. If FM were freely developed, the number of
+stations would be limited only by economics and competition rather
+than by technical restrictions. . . . Armstrong likened the situation
+that had grown up in radio to that following the invention of the
+printing press, when governments and ruling interests attempted to
+control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it
+became possible for men freely to acquire printing presses and freely
+to run them. FM in this sense was as great an invention as the
+printing presses, for it gave radio the opportunity to strike off its
+shackles.<footnote><para>
+<!-- f12. -->
+Lessing, 239.
</para></footnote>
</para>
</blockquote>
<para>
-This potential for FM radio was never realized—not because
- Armstrong
-was wrong about the technology, but because he underestimated
-the power of "vested interests, habits, customs and legislation"<footnote><para>
-<!-- f13. --> Ibid., 229.
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of "vested interests, habits, customs and
+legislation"<footnote><para>
+<!-- f13. -->
+Ibid., 229.
</para></footnote>
-to
- retard
-the growth of this competing technology.
+to retard the growth of this competing technology.
</para>
<para>
Now the very same claim could be made about Internet radio. For
</para>
<blockquote>
<para>
-justice scalia: You say that the functional equivalent of an
- unlimited
-time would be a violation [of the Constitution], but that's
-precisely the argument that's being made by petitioners here, that
-a limited time which is extendable is the functional equivalent of
-an unlimited time.
+justice scalia: You say that the functional equivalent of an unlimited
+time would be a violation [of the Constitution], but that's precisely
+the argument that's being made by petitioners here, that a limited
+time which is extendable is the functional equivalent of an unlimited
+time.
</para>
</blockquote>
<para>
When Olson was finished, it was my turn to give a closing rebuttal.
Olson's flailing had revived my anger. But my anger still was directed
to the academic, not the practical. The government was arguing as if
-this were the first case ever to consider limits on Congress's Copyright
-and Patent Clause power. Ever the professor and not the advocate, I
-closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause—
-indeed, the very first case striking a law of Congress as exceeding a
- specific
-enumerated power was based upon the Copyright and Patent
-Clause. All true. But it wasn't going to move the Court to my side.
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+Copyright and Patent Clause. All true. But it wasn't going to move the
+Court to my side.
</para>
<para>
As I left the court that day, I knew there were a hundred points I
optimistic.
</para>
<para>
-The government had been asked over and over again, what is the
-limit? Over and over again, it had answered there is no limit. This
-was precisely the answer I wanted the Court to hear. For I could not
-imagine how the Court could understand that the government
- believed
-Congress's power was unlimited under the terms of the
- Copyright
-Clause, and sustain the government's argument. The solicitor
-general had made my argument for me. No matter how often I tried,
-I could not understand how the Court could find that Congress's
-power under the Commerce Clause was limited, but under the
- Copyright
-Clause, unlimited. In those rare moments when I let myself
- believe
-that we may have prevailed, it was because I felt this Court—in
-particular, the Conservatives—would feel itself constrained by the rule
-of law that it had established elsewhere.
+The government had been asked over and over again, what is the limit?
+Over and over again, it had answered there is no limit. This was
+precisely the answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+the Conservatives—would feel itself constrained by the rule of
+law that it had established elsewhere.
</para>
<para>
The morning of January 15, 2003, I was five minutes late to the office
down to see where I had been wrong in my reasoning.
</para>
<para>
-My reasoning. Here was a case that pitted all the money in the
-world against reasoning. And here was the last naïve law professor,
-scouring the pages, looking for reasoning.
+My reasoning. Here was a case that pitted all the money in the world
+against reasoning. And here was the last naïve law professor, scouring
+the pages, looking for reasoning.
</para>
<para>
-I first scoured the opinion, looking for how the Court would
- distinguish
-the principle in this case from the principle in Lopez. The
- argument
-was nowhere to be found. The case was not even cited. The
-argument that was the core argument of our case did not even appear
-in the Court's opinion.
+I first scoured the opinion, looking for how the Court would
+distinguish the principle in this case from the principle in
+Lopez. The argument was nowhere to be found. The case was not even
+cited. The argument that was the core argument of our case did not
+even appear in the Court's opinion.
</para>
<para>
<!-- PAGE BREAK 249 -->
Justice Ginsburg simply ignored the enumerated powers argument.
-Consistent with her view that Congress's power was not limited
- generally,
-she had found Congress's power not limited here.
+Consistent with her view that Congress's power was not limited
+generally, she had found Congress's power not limited here.
</para>
<para>
Her opinion was perfectly reasonable—for her, and for Justice
<para>
But as I realized what had happened, I couldn't quite believe what I
was reading. I had said there was no way this Court could reconcile
-limited powers with the Commerce Clause and unlimited powers with
-the Progress Clause. It had never even occurred to me that they could
+limited powers with the Commerce Clause and unlimited powers with the
+Progress Clause. It had never even occurred to me that they could
reconcile the two simply by not addressing the argument. There was no
inconsistency because they would not talk about the two together.
There was therefore no principle that followed from the Lopez case: In
-that context, Congress's power would be limited, but in this context it
-would not.
+that context, Congress's power would be limited, but in this context
+it would not.
</para>
<para>
Yet by what right did they get to choose which of the framers' values
my view of the case, was Ruben Bolling's, reproduced on the next
page. The "powerful and wealthy" line is a bit unfair. But the punch
in the face felt exactly like that.
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
<para>
The image that will always stick in my head is that evoked by the
effect of file-sharing technology. In my view, however, he
underestimates the costs of the legal system. See, for example,
Rethinking, 174–76.
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
They see a system that has been around for hundreds of years, and they
assume it works the way their elementary school civics class taught
projects / text-free-culture-lessig.git / blobdiff