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- <year>2004</year>
- <holder>Lawrence Lessig</holder>
-</copyright>
-
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+ <subjectset scheme="libraryofcongress">
+ <subject>
+ <subjectterm>Intellectual property—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Mass media—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Technological innovations—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Art—United States.</subjectterm>
+ </subject>
+ </subjectset>
+
+
+ <publisher>
+ <publishername>The Penguin Press</publishername>
+ <address><city>New York</city></address>
+ </publisher>
+
+ <copyright>
+ <year>2004</year>
+ <holder>Lawrence Lessig</holder>
+ </copyright>
<legalnotice>
<para>
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<textobject>
<phrase>Creative Commons, Some rights reserved</phrase>
Appeals.
</para>
</abstract>
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+ <biblioid class="isbn">1-59420-006-8</biblioid>
+
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+
+</bookinfo>
+<!--PAGE BREAK 1-->
+<dedication id="salespoints">
+<title></title>
<para>
You can buy a copy of this book by clicking on one of the links below:
</para>
<listitem><para><ulink url="http://www.penguin.com/">Penguin</ulink></para></listitem>
<!-- <ulink url="">Local Bookstore</ulink> -->
</itemizedlist>
+</dedication>
<!-- PAGE BREAK 2 -->
-
<!-- PAGE BREAK 3 -->
+<dedication id="alsobylessig">
+<title></title>
<para>
ALSO BY LAWRENCE LESSIG
</para>
<para>
Code: And Other Laws of Cyberspace
</para>
-
+</dedication>
<!-- PAGE BREAK 4 -->
+<dedication id="frontpublisher">
+<title></title>
<para>
THE PENGUIN PRESS, NEW YORK
</para>
-
+</dedication>
<!-- PAGE BREAK 5 -->
+<dedication id="frontbookinfo">
+<title></title>
<para>
FREE CULTURE
</para>
<para>
LAWRENCE LESSIG
</para>
-
+</dedication>
<!-- PAGE BREAK 6 -->
+<colophon>
<para>
THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New
York, New York
<para>
ISBN 1-59420-006-8 (hardcover)
</para>
+
<para>
1. Intellectual property—United States. 2. Mass media—United States.
</para>
retrieval system, or transmitted, in any form or by any means
(electronic, mechanical, photocopying, recording or otherwise),
without the prior written permission of both the copyright owner and
-the above publisher of this book. The scanning, uploading, and
-distribution of this book via the Internet or via any other means
-without the permission of the publisher is illegal and punishable by
-law. Please purchase only authorized electronic editions and do not
-participate in or encourage electronic piracy of copyrighted
-materials. Your support of the author's rights is appreciated.
+the above publisher of this book.
+</para>
+<para>
+The scanning, uploading, and distribution of this book via the
+Internet or via any other means without the permission of the
+publisher is illegal and punishable by law. Please purchase only
+authorized electronic editions and do not participate in or encourage
+electronic piracy of copyrighted materials. Your support of the
+author's rights is appreciated.
</para>
</colophon>
<!-- PAGE BREAK 7 -->
-<dedication>
+<dedication><title></title>
<para>
To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
But even if he was right then, the point is not right now:
<citetitle>Free Culture</citetitle> is about the troubles the Internet
causes even after the modem is turned
-<!-- PAGE BREAK 12 -->
+<!--PAGE BREAK 12-->
off. It is an argument about how the battles that now rage regarding life
on-line have fundamentally affected "people who aren't online." There
is no switch that will insulate us from the Internet's effect.
to be defended in our future. A free culture has been our past, but it
will only be our future if we change the path we are on right now.
-<!-- PAGE BREAK 14 -->
+<!--PAGE BREAK 14-->
Like Stallman's arguments for free software, an argument for free
culture stumbles on a confusion that is hard to avoid, and even harder
to understand. A free culture is not a culture without property; it is not
<!-- PAGE BREAK 15 -->
<!-- PAGE BREAK 16 -->
-<chapter id="c-introduction">
+<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
<para>
On December 17, 1903, on a windy North Carolina beach for just
This is how the law usually works. Not often this abruptly or
impatiently, but eventually, this is how it works. It was Douglas's style not to
dither. Other justices would have blathered on for pages to reach the
-<!-- PAGE BREAK 18 -->
+<!--PAGE BREAK 18-->
conclusion that Douglas holds in a single line: "Common sense revolts
at the idea." But whether it takes pages or a few words, it is the special
genius of a common law system, as ours is, that the law adjusts to the
AM radio market. By 1935, there were a thousand radio stations across
the United States, but the stations in large cities were all owned by
a handful of networks.
-<!-- PAGE BREAK 20 -->
+<!--PAGE BREAK 20-->
</para>
<para>
RCA's president, David Sarnoff, a friend of Armstrong's, was eager
course always public spirited; the reality is something
different. Ideas that were as solid as rock in one age, but that, left
to themselves, would crumble in
-<!-- PAGE BREAK 22 -->
+<!--PAGE BREAK 22-->
another, are sustained through this subtle corruption of our political
process. RCA had what the Causbys did not: the power to stifle the
effect of technological change.
street corners telling stories that kids and others consumed, that was
noncommercial culture. When Noah Webster published his "Reader," or
Joel Barlow his poetry, that was commercial culture.
+<indexterm><primary>Barlow, Joel</primary></indexterm>
+<indexterm><primary>Webster, Noah</primary></indexterm>
</para>
<para>
At the beginning of our history, and for just about the whole of our
Common sense does not revolt. Unlike in the case of the unlucky
Causbys, common sense is on the side of the property owners in this
war. Unlike
-<!-- PAGE BREAK 27 -->
+<!--PAGE BREAK 27-->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
</para>
more expense of doing business.
</para>
<indexterm><primary>Florida, Richard</primary></indexterm>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
<para>
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
creativity with insanely complex and vague rules and with the threat
of obscenely severe penalties. We may
<!-- PAGE BREAK 33 -->
-be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote>
+be seeing, as Richard Florida writes, the "Rise of the Creative
+Class."<footnote>
<para>
<!-- f4 -->
-In <citetitle>The Rise of the Creative Class</citetitle> (New York: Basic Books, 2002),
-Richard Florida documents a shift in the nature of labor toward a
-labor of creativity. His work, however, doesn't directly address the
-legal conditions under which that creativity is enabled or stifled. I
-certainly agree with him about the importance and significance of this
-change, but I also believe the conditions under which it will be
-enabled are much more tenuous.
+In <citetitle>The Rise of the Creative Class</citetitle> (New York:
+Basic Books, 2002), Richard Florida documents a shift in the nature of
+labor toward a labor of creativity. His work, however, doesn't
+directly address the legal conditions under which that creativity is
+enabled or stifled. I certainly agree with him about the importance
+and significance of this change, but I also believe the conditions
+under which it will be enabled are much more tenuous.
+
<indexterm><primary>Florida, Richard</primary></indexterm>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
</partintro>
<!-- PAGE BREAK 34 -->
-<chapter id="creators">
+<chapter label="1" id="creators">
<title>CHAPTER ONE: Creators</title>
<para>
In 1928, a cartoon character was born. An early Mickey Mouse
<!-- PAGE BREAK 44 -->
</chapter>
-<chapter id="mere-copyists">
+<chapter label="2" id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
<indexterm id="idxphotography" class='startofrange'>
<primary>photography</primary>
<!-- f1 -->
Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in <citetitle>The Kodak Primer</citetitle>:
+<indexterm><primary>Kodak Primer, The (Eastman)</primary></indexterm>
</para>
<blockquote>
<para>
camera and … saying, "Let's go have fun with the video camera and
make a little movie." But instead, really help you take these elements
that you understand, that are your language, and construct meaning
-about the topic. …
+about the topic.…
</para>
<para>
That empowers enormously. And then what happens, of
</para>
<!-- PAGE BREAK 61 -->
</chapter>
-<chapter id="catalogs">
+<chapter label="3" id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
+<indexterm><primary>RPI</primary><see>Rensselaer Polytechnic Institute (RPI)</see></indexterm>
+<indexterm id="idxrensselaer" class='startofrange'>
+ <primary>Rensselaer Polytechnic Institute (RPI)</primary>
+</indexterm>
<para>
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
(2003): 5, available at 2003 WL 55179443.
</para></footnote>
</para>
+<indexterm startref="idxrensselaer" class='endofrange'/>
<para>
Jesse called his parents. They were supportive but a bit frightened.
An uncle was a lawyer. He began negotiations with the RIAA. They
</para>
<!-- PAGE BREAK 66 -->
</chapter>
-<chapter id="pirates">
+<chapter label="4" id="pirates">
<title>CHAPTER FOUR: "Pirates"</title>
<para>
If "piracy" means using the creative property of others without
the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159. </para></footnote>
+<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para>
The record industry was born of another kind of piracy, though to see
how requires a bit of detail about the way the law regulates music.
</para>
+<indexterm id="idxfourneauxhenri" class='startofrange'>
+ <primary>Fourneaux, Henri</primary>
+</indexterm>
+<indexterm><primary>Russel, Phil</primary></indexterm>
<para>
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
then, I could effectively pirate someone else's song without paying
its composer anything.
</para>
+<indexterm startref="idxfourneauxhenri" class='endofrange'/>
<para>
The composers (and publishers) were none too happy about
<!-- PAGE BREAK 69 -->
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para>
<blockquote>
<para>
of South Dakota, chairman), reprinted in <citetitle>Legislative History of the
Copyright Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
+<indexterm><primary>American Graphophone Company</primary></indexterm>
</para>
<para>
The law soon resolved this battle in favor of the composer
</para>
<indexterm><primary>Anello, Douglas</primary></indexterm>
<indexterm><primary>Burdick, Quentin</primary></indexterm>
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
(statement of Rosel H. Hyde, chairman of the Federal Communications
Commission).
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
</para></footnote>
There may have been a "public interest" in spreading the reach of cable
TV, but as Douglas Anello, general counsel to the National Association
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
<para>
These were "free-ride[rs]," Screen Actor's Guild president Charlton
Heston said, who were "depriving actors of
<!-- f17 -->
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
-</para></footnote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
+</para>
+</footnote>
</para>
<para>
But again, there was another side to the debate. As Assistant Attorney
<!-- PAGE BREAK 75 -->
</section>
</chapter>
-<chapter id="piracy">
+<chapter label="5" id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
There is piracy of copyrighted material. Lots of it. This piracy comes
rights of the copyright owner with the rights of access, then
violating the law is still wrong.
<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Internet Explorer</primary></indexterm>
+<indexterm><primary>Netscape</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir.
1981).
</para></footnote>
+<indexterm><primary>Kozinski, Alex</primary></indexterm>
</para>
<para>
But the Supreme Court reversed the decision of the Ninth Circuit.
together, a pattern is clear:
</para>
-<table id="t1">
-<title>Pattern of Court and Congress response</title>
+<informaltable id="t1">
<tgroup cols="4" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
In each case throughout our history, a new technology changed the
</partintro>
<!-- PAGE BREAK 96 -->
-<chapter id="founders">
+<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
+<indexterm><primary>Henry V</primary></indexterm>
<para>
William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
was first published in 1597. It was the eleventh major play that
<para>
So, for example, even if the copyright to Shakespeare's works were
perpetual, all that would have meant under the original meaning of the
-term was that no one could reprint Shakespeare's work without the
- permission
-of the Shakespeare estate. It would not have controlled
- anything,
-for example, about how the work could be performed, whether
+term was that no one could reprint Shakespeare's work without the
+permission of the Shakespeare estate. It would not have controlled
+anything, for example, about how the work could be performed, whether
the work could be translated, or whether Kenneth Branagh would be
-allowed to make his films. The "copy-right" was only an exclusive right
-to print—no less, of course, but also no more.
+allowed to make his films. The "copy-right" was only an exclusive
+right to print—no less, of course, but also no more.
</para>
+<indexterm><primary>Henry VIII, King of England</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
-They had had a long and ugly experience with "exclusive rights,"
- especially
-"exclusive rights" granted by the Crown. The English had fought
-a civil war in part about the Crown's practice of handing out
- monopolies—especially
-monopolies for works that already existed. King Henry
-VIII granted a patent to print the Bible and a monopoly to Darcy to
-print playing cards. The English Parliament began to fight back
-against this power of the Crown. In 1656, it passed the Statute of
- Monopolies,
-limiting monopolies to patents for new inventions. And by
-1710, Parliament was eager to deal with the growing monopoly in
-publishing.
-</para>
-<para>
-Thus the "copy-right," when viewed as a monopoly right, was
- naturally
-viewed as a right that should be limited. (However convincing
-the claim that "it's my property, and I should have it forever," try
+They had had a long and ugly experience with "exclusive rights,"
+especially "exclusive rights" granted by the Crown. The English had
+fought a civil war in part about the Crown's practice of handing out
+monopolies—especially monopolies for works that already
+existed. King Henry VIII granted a patent to print the Bible and a
+monopoly to Darcy to print playing cards. The English Parliament began
+to fight back against this power of the Crown. In 1656, it passed the
+Statute of Monopolies, limiting monopolies to patents for new
+inventions. And by 1710, Parliament was eager to deal with the growing
+monopoly in publishing.
+</para>
+<para>
+Thus the "copy-right," when viewed as a monopoly right, was naturally
+viewed as a right that should be limited. (However convincing the
+claim that "it's my property, and I should have it forever," try
sounding convincing when uttering, "It's my monopoly, and I should
-have it forever.") The state would protect the exclusive right, but only
-so long as it benefited society. The British saw the harms from
- specialinterest
-favors; they passed a law to stop them.
+have it forever.") The state would protect the exclusive right, but
+only so long as it benefited society. The British saw the harms from
+specialinterest favors; they passed a law to stop them.
</para>
<para>
Second, about booksellers. It wasn't just that the copyright was a
<!-- f8 -->
Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard University Press,
1993), 92.
+<indexterm><primary>Rose, Mark</primary></indexterm>
</para></footnote>
Donaldson's publishing house prospered
<!-- PAGE BREAK 102 -->
<!-- f9 -->
Ibid., 93.
</para></footnote>
+<indexterm><primary>Boswell, James</primary></indexterm>
<indexterm><primary>Erskine, Andrew</primary></indexterm>
</para>
<para>
</para>
<!-- PAGE BREAK 106 -->
</chapter>
-<chapter id="recorders">
+<chapter label="7" id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
<para>
Jon Else is a filmmaker. He is best known for his documentaries and
</para>
<!-- PAGE BREAK 111 -->
</chapter>
-<chapter id="transformers">
+<chapter label="8" id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
<indexterm><primary>Alben, Alex</primary></indexterm>
</para>
<!-- PAGE BREAK 119 -->
</chapter>
-<chapter id="collectors">
+<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
<para>
In April 1996, millions of "bots"—computer codes designed to
just a graduate student?" As Kahle put it,
</para>
<blockquote>
+<indexterm><primary>Quayle, Dan</primary></indexterm>
<para>
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
</para>
<!-- PAGE BREAK 127 -->
</chapter>
-<chapter id="property-i">
+<chapter label="10" id="property-i">
<title>CHAPTER TEN: "Property"</title>
<para>
Jack Valenti has been the president of the Motion Picture Association
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
<indexterm><primary>Johnson, Lyndon</primary></indexterm>
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The MPAA is the American branch of the international Motion Picture
on the content industry's way of doing business, or as John Seely
Brown describes it, its "architecture of revenue."
</para>
+<indexterm><primary>railroad industry</primary></indexterm>
<para>
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
all—they believe that our law, as the framers penned it, should
not protect derivative rights at all.<footnote><para>
<!-- f14 -->
-Jonathan Zittrain, "The Copyright Cage," <citetitle>Legal Affairs</citetitle>, July/August
-2003, available at
+Jonathan Zittrain, "The Copyright Cage," <citetitle>Legal
+Affairs</citetitle>, July/August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
about the difference that copyright law should draw (from the
perspective of the First Amendment) between mere "copies" and
derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
-Copyright's Constitutionality," <citetitle>Yale Law Journal</citetitle> 112 (2002):
-1–60 (see especially pp. 53–59).
+Copyright's Constitutionality," <citetitle>Yale Law
+Journal</citetitle> 112 (2002): 1–60 (see especially
+pp. 53–59).
+<indexterm><primary>Rubenfeld, Jeb</primary></indexterm>
</para></footnote>
-These two different uses of my creative work are
-treated the same.
+These two different uses of my creative work are treated the same.
</para>
<para>
-This again may seem right to you. If I wrote a book, then why
-should you be able to write a movie that takes my story and makes
-money from it without paying me or crediting me? Or if Disney
- creates
-a creature called "Mickey Mouse," why should you be able to make
-Mickey Mouse toys and be the one to trade on the value that Disney
-originally created?
+This again may seem right to you. If I wrote a book, then why should
+you be able to write a movie that takes my story and makes money from
+it without paying me or crediting me? Or if Disney creates a creature
+called "Mickey Mouse," why should you be able to make Mickey Mouse
+toys and be the one to trade on the value that Disney originally
+created?
</para>
<para>
These are good arguments, and, in general, my point is not that the
-derivative right is unjustified. My aim just now is much narrower:
- simply
-to make clear that this expansion is a significant change from the
-rights originally granted.
+derivative right is unjustified. My aim just now is much narrower:
+simply to make clear that this expansion is a significant change from
+the rights originally granted.
</para>
</section>
<section id="lawreach">
Internet should at least force us to rethink the conditions under which
the law of copyright automatically applies,<footnote><para>
<!-- f17 -->
-Thus, my argument is not that in each place that copyright law extends,
-we should repeal it. It is instead that we should have a good argument for
-its extending where it does, and should not determine its reach on the
- basis
-of arbitrary and automatic changes caused by technology.
+Thus, my argument is not that in each place that copyright law
+extends, we should repeal it. It is instead that we should have a good
+argument for its extending where it does, and should not determine its
+reach on the basis of arbitrary and automatic changes caused by
+technology.
</para></footnote>
because it is clear that the
current reach of copyright was never contemplated, much less chosen,
<graphic fileref="images/1541.png"></graphic>
</figure>
<para>
-These are uses that themselves involve copying, but which the law treats
-as unregulated because public policy demands that they remain
- unregulated.
-You are free to quote from this book, even in a review that
-is quite negative, without my permission, even though that quoting
-makes a copy. That copy would ordinarily give the copyright owner the
-exclusive right to say whether the copy is allowed or not, but the law
-denies the owner any exclusive right over such "fair uses" for public
-policy (and possibly First Amendment) reasons.
+These are uses that themselves involve copying, but which the law
+treats as unregulated because public policy demands that they remain
+unregulated. You are free to quote from this book, even in a review
+that is quite negative, without my permission, even though that
+quoting makes a copy. That copy would ordinarily give the copyright
+owner the exclusive right to say whether the copy is allowed or not,
+but the law denies the owner any exclusive right over such "fair uses"
+for public policy (and possibly First Amendment) reasons.
</para>
<figure id="fig-1542">
<title>Unregulated copying considered "fair uses."</title>
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.<footnote><para>
<!-- f18 -->
-I don't mean "nature" in the sense that it couldn't be different, but rather that
-its present instantiation entails a copy. Optical networks need not make
-copies of content they transmit, and a digital network could be designed to
-delete anything it copies so that the same number of copies remain.
-</para></footnote>
-And because of this single,
-arbitrary feature of the design of a digital network, the scope of
- category
-1 changes dramatically. Uses that before were presumptively
- unregulated
-are now presumptively regulated. No longer is there a set of
-presumptively unregulated uses that define a freedom associated with a
-copyrighted work. Instead, each use is now subject to the copyright,
-because each use also makes a copy—category 1 gets sucked into
- category
-2. And those who would defend the unregulated uses of
- copyrighted
-work must look exclusively to category 3, fair uses, to bear the
-burden of this shift.
+I don't mean "nature" in the sense that it couldn't be different, but
+rather that its present instantiation entails a copy. Optical networks
+need not make copies of content they transmit, and a digital network
+could be designed to delete anything it copies so that the same number
+of copies remain.
+</para></footnote>
+And because of this single, arbitrary feature of the design of a
+digital network, the scope of category 1 changes dramatically. Uses
+that before were presumptively unregulated are now presumptively
+regulated. No longer is there a set of presumptively unregulated uses
+that define a freedom associated with a copyrighted work. Instead,
+each use is now subject to the copyright, because each use also makes
+a copy—category 1 gets sucked into category 2. And those who
+would defend the unregulated uses of copyrighted work must look
+exclusively to category 3, fair uses, to bear the burden of this
+shift.
</para>
<para>
So let's be very specific to make this general point clear. Before the
book. Copyright law would have nothing to say about whether you read
the book once, ten times, or every
<!-- PAGE BREAK 155 -->
-night before you went to bed. None of those instances of use—reading—
-could be regulated by copyright law because none of those uses
- produced
-a copy.
+night before you went to bed. None of those instances of
+use—reading— could be regulated by copyright law because
+none of those uses produced a copy.
</para>
<para>
But the same book as an e-book is effectively governed by a different
Third, this shift from category 1 to category 2 puts an extraordinary
<!-- PAGE BREAK 156 -->
-burden on category 3 ("fair use") that fair use never before had to bear.
-If a copyright owner now tried to control how many times I could read
-a book on-line, the natural response would be to argue that this is a
-violation of my fair use rights. But there has never been any litigation
-about whether I have a fair use right to read, because before the
- Internet,
-reading did not trigger the application of copyright law and hence
-the need for a fair use defense. The right to read was effectively
- protected
-before because reading was not regulated.
+burden on category 3 ("fair use") that fair use never before had to
+bear. If a copyright owner now tried to control how many times I
+could read a book on-line, the natural response would be to argue that
+this is a violation of my fair use rights. But there has never been
+any litigation about whether I have a fair use right to read, because
+before the Internet, reading did not trigger the application of
+copyright law and hence the need for a fair use defense. The right to
+read was effectively protected before because reading was not
+regulated.
</para>
<para>
This point about fair use is totally ignored, even by advocates for
the trailers on tape, and sold the tapes to the retail stores.
</para>
<para>
-The company did this for about fifteen years. Then, in 1997, it
- began
-to think about the Internet as another way to distribute these
- previews.
-The idea was to expand their "selling by sampling" technique by
-giving on-line stores the same ability to enable "browsing." Just as in a
-bookstore you can read a few pages of a book before you buy the book,
-so, too, you would be able to sample a bit from the movie on-line
- before
-you bought it.
+The company did this for about fifteen years. Then, in 1997, it began
+to think about the Internet as another way to distribute these
+previews. The idea was to expand their "selling by sampling"
+technique by giving on-line stores the same ability to enable
+"browsing." Just as in a bookstore you can read a few pages of a book
+before you buy the book, so, too, you would be able to sample a bit
+from the movie on-line before you bought it.
</para>
<para>
-In 1998, Video Pipeline informed Disney and other film
- distributors
+In 1998, Video Pipeline informed Disney and other film distributors
that it intended to distribute the trailers through the Internet
(rather than sending the tapes) to distributors of their videos. Two
years later, Disney told Video Pipeline to stop. The owner of Video
<!-- PAGE BREAK 157 -->
Pipeline asked Disney to talk about the matter—he had built a
- business
-on distributing this content as a way to help sell Disney films; he
-had customers who depended upon his delivering this content. Disney
-would agree to talk only if Video Pipeline stopped the distribution
- immediately.
-Video Pipeline thought it was within their "fair use" rights
-to distribute the clips as they had. So they filed a lawsuit to ask the
-court to declare that these rights were in fact their rights.
+business on distributing this content as a way to help sell Disney
+films; he had customers who depended upon his delivering this
+content. Disney would agree to talk only if Video Pipeline stopped the
+distribution immediately. Video Pipeline thought it was within their
+"fair use" rights to distribute the clips as they had. So they filed a
+lawsuit to ask the court to declare that these rights were in fact
+their rights.
</para>
<para>
Disney countersued—for $100 million in damages. Those damages
-were predicated upon a claim that Video Pipeline had "willfully
- infringed"
-on Disney's copyright. When a court makes a finding of
- willful
-infringement, it can award damages not on the basis of the actual
-harm to the copyright owner, but on the basis of an amount set in the
-statute. Because Video Pipeline had distributed seven hundred clips of
-Disney movies to enable video stores to sell copies of those movies,
-Disney was now suing Video Pipeline for $100 million.
+were predicated upon a claim that Video Pipeline had "willfully
+infringed" on Disney's copyright. When a court makes a finding of
+willful infringement, it can award damages not on the basis of the
+actual harm to the copyright owner, but on the basis of an amount set
+in the statute. Because Video Pipeline had distributed seven hundred
+clips of Disney movies to enable video stores to sell copies of those
+movies, Disney was now suing Video Pipeline for $100 million.
</para>
<para>
Disney has the right to control its property, of course. But the video
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
</para>
+<indexterm><primary>Rogers, Fred</primary></indexterm>
<para>
The bizarreness of these arguments is captured in a cartoon drawn in
1981 by Paul Conrad. At that time, a court in California had held that
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
the VCR</citetitle> (New York: W. W. Norton, 1987), 270–71.
+<indexterm><primary>Rogers, Fred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
These changes are of two sorts: the scope of concentration, and its
nature.
</para>
-<indexterm><primary>BMG</primary></indexterm>
<para>
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
Molly Ivins, "Media Consolidation Must Be Stopped," <citetitle>Charleston Gazette</citetitle>,
31 May 2003.
</para></footnote>
+<indexterm><primary>BMG</primary></indexterm>
+<indexterm><primary>EMI</primary></indexterm>
<indexterm><primary>McCain, John</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
+<indexterm><primary>Warner Music Group</primary></indexterm>
</para>
<para>
The story with radio is even more dramatic. Before deregulation,
control.<footnote><para>
<!-- f29 -->
Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
-Forum, "Entertainment Economics: The Movie Industry," St. Louis,
- Missouri,
-3 April 2003 (transcript of prepared remarks available at
+Forum, "Entertainment Economics: The Movie Industry," St. Louis,
+Missouri, 3 April 2003 (transcript of prepared remarks available at
<ulink url="http://free-culture.cc/notes/">link #28</ulink>;
for the Lear story, not included in the prepared remarks, see
<ulink url="http://free-culture.cc/notes/">link #29</ulink>).
that copyright law has undergone. In 1790, the law looked like this:
</para>
-<table id="t2">
-<title>Law status in 1790</title>
+<informaltable id="t2">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
The act of publishing a map, chart, and book was regulated by
By the end of the nineteenth century, the law had changed to this:
</para>
-<table id="t3">
-<title>Law status at the end of ninetheenth centory</title>
+<informaltable id="t3">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
Derivative works were now regulated by copyright law—if
we could say the law began to look like this:
</para>
-<table id="t4">
-<title>Law status in 1975</title>
+<informaltable id="t4">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
The law was interpreted to reach noncommercial copying through, say,
that the law now looks like this:
</para>
-<table id="t5">
-<title>Law status now</title>
+<informaltable id="t5">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
Every realm is governed by copyright law, whereas before most
Disintegration of Property," in <citetitle>Nomos XXII: Property</citetitle>, J. Roland
Pennock and John W. Chapman, eds. (New York: New York University
Press, 1980).
+<indexterm><primary>legal realist movement</primary></indexterm>
</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
<title>PUZZLES</title>
<!-- PAGE BREAK 186 -->
-<chapter id="chimera">
+<chapter label="11" id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
<indexterm id="idxchimera" class='startofrange'>
<primary>chimeras</primary>
material, and we want to protect those rights.
</para>
<para>
-But building a technology fortress that locks in the clout of
-the major labels is by no means the only way to protect copyright
-interests, nor is it necessarily the best. It is simply too early to
- answer
-that question. Market forces operating naturally may very
-well produce a totally different industry model.
+But building a technology fortress that locks in the clout of the
+major labels is by no means the only way to protect copyright
+interests, nor is it necessarily the best. It is simply too early to
+answer that question. Market forces operating naturally may very well
+produce a totally different industry model.
</para>
<para>
This is a critical point. The choices that industry sectors make
<!-- PAGE BREAK 192 -->
</chapter>
-<chapter id="harms">
+<chapter label="12" id="harms">
<title>CHAPTER TWELVE: Harms</title>
<para>
-
To fight "piracy," to protect "property," the content industry has
-launched a war. Lobbying and lots of campaign contributions have
-now brought the government into this war. As with any war, this one
-will have both direct and collateral damage. As with any war of
- prohibition,
-these damages will be suffered most by our own people.
+launched a war. Lobbying and lots of campaign contributions have now
+brought the government into this war. As with any war, this one will
+have both direct and collateral damage. As with any war of
+prohibition, these damages will be suffered most by our own people.
</para>
<para>
My aim so far has been to describe the consequences of this war, in
-particular, the consequences for "free culture." But my aim now is to
- extend
-this description of consequences into an argument. Is this war
- justified?
+particular, the consequences for "free culture." But my aim now is to
+extend this description of consequences into an argument. Is this war
+justified?
</para>
<para>
In my view, it is not. There is no good reason why this time, for the
I told in <citetitle>The Future of Ideas</citetitle> and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
</para>
+<indexterm><primary>Roberts, Michael</primary></indexterm>
<para>
In 1997, Michael Roberts launched a company called MP3.com. MP3.com
was keen to remake the music business. Their goal was not just to
<indexterm startref="idxvivendiuniversal" class='endofrange'/>
<indexterm><primary>Hummer, John</primary></indexterm>
<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>Hummer Winblad</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
risk not just in the marketplace, but in the courtroom as well. Your
investment buys you not only a company, it also buys you a lawsuit.
So extreme has the environment become that even car manufacturers are
-afraid of technologies that touch content. In an article in <citetitle>Business
-2.0</citetitle>, Rafe Needleman describes a discussion with BMW:
+afraid of technologies that touch content. In an article in
+<citetitle>Business 2.0</citetitle>, Rafe Needleman describes a
+discussion with BMW:
+<indexterm><primary>EMI</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
</para>
<blockquote>
<indexterm><primary>BMW</primary></indexterm>
<!-- PAGE BREAK 201 -->
The point is not that businesses should have a right to start illegal
-enterprises. The point is the definition of "illegal." The law is a mess of
-uncertainty. We have no good way to know how it should apply to new
-technologies. Yet by reversing our tradition of judicial deference, and
-by embracing the astonishingly high penalties that copyright law
- imposes,
-that uncertainty now yields a reality which is far more
- conservative
-than is right. If the law imposed the death penalty for parking
-tickets, we'd not only have fewer parking tickets, we'd also have much
-less driving. The same principle applies to innovation. If innovation is
-constantly checked by this uncertain and unlimited liability, we will
-have much less vibrant innovation and much less creativity.
+enterprises. The point is the definition of "illegal." The law is a
+mess of uncertainty. We have no good way to know how it should apply
+to new technologies. Yet by reversing our tradition of judicial
+deference, and by embracing the astonishingly high penalties that
+copyright law imposes, that uncertainty now yields a reality which is
+far more conservative than is right. If the law imposed the death
+penalty for parking tickets, we'd not only have fewer parking tickets,
+we'd also have much less driving. The same principle applies to
+innovation. If innovation is constantly checked by this uncertain and
+unlimited liability, we will have much less vibrant innovation and
+much less creativity.
</para>
<para>
The point is directly parallel to the crunchy-lefty point about fair
(2003), 33–35, available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
</para></footnote>
-
- Congress
-has already launched proceedings to explore a mandatory
- "broadcast
-flag" that would be required on any device capable of transmitting
-digital video (i.e., a computer), and that would disable the copying of
-any content that is marked with a broadcast flag. Other members of
-Congress have proposed immunizing content providers from liability
-for technology they might deploy that would hunt down copyright
- violators
-and disable their machines.<footnote><para>
-<!-- f7. --> GartnerG2, 26–27.
+Congress has already launched proceedings to explore a mandatory
+"broadcast flag" that would be required on any device capable of
+transmitting digital video (i.e., a computer), and that would disable
+the copying of any content that is marked with a broadcast flag. Other
+members of Congress have proposed immunizing content providers from
+liability for technology they might deploy that would hunt down
+copyright violators and disable their machines.<footnote><para>
+<!-- f7. -->
+GartnerG2, 26–27.
</para></footnote>
-
</para>
<para>
In one sense, these solutions seem sensible. If the problem is the
-code, why not regulate the code to remove the problem. But any
- regulation
-of technical infrastructure will always be tuned to the particular
-technology of the day. It will impose significant burdens and costs on
-
+code, why not regulate the code to remove the problem. But any
+regulation of technical infrastructure will always be tuned to the
+particular technology of the day. It will impose significant burdens
+and costs on
<!-- PAGE BREAK 203 -->
the technology, but will likely be eclipsed by advances around exactly
those requirements.
</para>
<para>
In March 2002, a broad coalition of technology companies, led by
-Intel, tried to get Congress to see the harm that such legislation would
-impose.<footnote><para>
-<!-- f8. --> See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
+Intel, tried to get Congress to see the harm that such legislation
+would impose.<footnote><para>
+<!-- f8. -->
+See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
February 2002 (Entertainment).
</para></footnote>
- Their argument was obviously not that copyright should not
-be protected. Instead, they argued, any protection should not do more
+Their argument was obviously not that copyright should not be
+protected. Instead, they argued, any protection should not do more
harm than good.
+<indexterm><primary>Intel</primary></indexterm>
</para>
<para>
-There is one more obvious way in which this war has harmed
- innovation—again,
-a story that will be quite familiar to the free market
-crowd.
+There is one more obvious way in which this war has harmed
+innovation—again, a story that will be quite familiar to the
+free market crowd.
</para>
<para>
Copyright may be property, but like all property, it is also a form
N.Y.: Prometheus Books, 2001).
<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
- overall this history of copyright
-is not bad. As chapter 10 details, when new technologies have come
-along, Congress has struck a balance to assure that the new is protected
-from the old. Compulsory, or statutory, licenses have been one part of
-that strategy. Free use (as in the case of the VCR) has been another.
+overall this history of copyright is not bad. As chapter 10 details,
+when new technologies have come along, Congress has struck a balance
+to assure that the new is protected from the old. Compulsory, or
+statutory, licenses have been one part of that strategy. Free use (as
+in the case of the VCR) has been another.
</para>
<para>
But that pattern of deference to new technologies has now changed
available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
+<indexterm><primary>Hollings, Fritz</primary></indexterm>
</para></footnote>
But there is one example that captures the flavor of them all. This is
the story of the demise of Internet radio.
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.
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The reasoning behind this balance struck by Congress makes some
time zone where the signal was received (user);
</para></listitem>
<listitem><para>
-Unique User identifier;
+unique user identifier;
</para></listitem>
<listitem><para>
the country in which the user received the transmissions.
differences? Was the motive to protect artists against piracy?
</para>
<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
webcasters asked the RIAA, … "How do you come up with a
<!-- PAGE BREAK 208 -->
-rate that's so much higher? Why is it worth more than radio?
- Because
-here we have hundreds of thousands of webcasters who
-want to pay, and that should establish the market rate, and if you
-set the rate so high, you're going to drive the small webcasters out
-of business. …"
+rate that's so much higher? Why is it worth more than radio? Because
+here we have hundreds of thousands of webcasters who want to pay, and
+that should establish the market rate, and if you set the rate so
+high, you're going to drive the small webcasters out of
+business. …"
</para>
<para>
And the RIAA experts said, "Well, we don't really model this as an
others, but still, everywhere in America today—can't live their
lives both normally and legally, since "normally" entails a certain
degree of illegality.
+<indexterm><primary>law schools</primary></indexterm>
</para>
<para>
The response to this general illegality is either to enforce the law
</partintro>
<!-- PAGE BREAK 220 -->
-<chapter id="eldred">
+<chapter label="13" id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
+<indexterm id="idxhawthornenathaniel" class='startofrange'>
+ <primary>Hawthorne, Nathaniel</primary>
+</indexterm>
<para>
In 1995, a father was frustrated that his daughters didn't seem to
like Hawthorne. No doubt there was more than one such father, but at
(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure Planet</citetitle>). These are all
commercial publications of public domain works.
</para>
+<indexterm startref="idxhawthornenathaniel" class='endofrange'/>
<para>
The Internet created the possibility of noncommercial publications of
public domain works. Eldred's is just one example. There are literally
commerce. A Constitution designed to limit Congress's power was
instead interpreted to impose no limit.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
<para>
The Supreme Court, under Chief Justice Rehnquist's command, changed
that in <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The government had
for other creative works is much more dire.
</para>
<indexterm><primary>Agee, Michael</primary></indexterm>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
+<indexterm><primary>Laurel and Hardy Films</primary></indexterm>
<para>
Consider the story of Michael Agee, chairman of Hal Roach Studios,
which owns the copyrights for the Laurel and Hardy films. Agee is a
history of the Progress Clause. And of course, there was a new brief
by Eagle Forum, repeating and strengthening its arguments.
<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Intel</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
<indexterm><primary>Eagle Forum</primary></indexterm>
</para>
<indexterm><primary>American Association of Law Libraries</primary></indexterm>
<indexterm><primary>National Writers Union</primary></indexterm>
</para>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
<para>
But two briefs captured the policy argument best. One made the
argument I've already described: A brief by Hal Roach Studios argued
who had advised us early on about a First Amendment strategy; and
finally, former solicitor general Charles Fried.
<indexterm><primary>Fried, Charles</primary></indexterm>
+<indexterm><primary>Morrison, Alan</primary></indexterm>
+<indexterm><primary>Public Citizen</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
Between February and October, there was little I did beyond preparing
for this case. Early on, as I said, I set the strategy.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
<para>
-The Supreme Court was divided into two important camps. One
-camp we called "the Conservatives." The other we called "the Rest."
-The Conservatives included Chief Justice Rehnquist, Justice O'Connor,
+The Supreme Court was divided into two important camps. One camp we
+called "the Conservatives." The other we called "the Rest." The
+Conservatives included Chief Justice Rehnquist, Justice O'Connor,
Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
been the most consistent in limiting Congress's power. They were the
-five who had supported the <citetitle>Lopez/Morrison</citetitle> line of cases that said that
-an enumerated power had to be interpreted to assure that Congress's
-powers had limits.
+five who had supported the <citetitle>Lopez/Morrison</citetitle> line
+of cases that said that an enumerated power had to be interpreted to
+assure that Congress's powers had limits.
</para>
<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
generally. We were fairly confident he would recognize limits here.
</para>
<para>
-This analysis of "the Rest" showed most clearly where our focus
-had to be: on the Conservatives. To win this case, we had to crack open
-these five and get at least a majority to go our way. Thus, the single
- overriding
-argument that animated our claim rested on the Conservatives'
-most important jurisprudential innovation—the argument that Judge
-Sentelle had relied upon in the Court of Appeals, that Congress's power
-must be interpreted so that its enumerated powers have limits.
+This analysis of "the Rest" showed most clearly where our focus had to
+be: on the Conservatives. To win this case, we had to crack open these
+five and get at least a majority to go our way. Thus, the single
+overriding argument that animated our claim rested on the
+Conservatives' most important jurisprudential innovation—the
+argument that Judge Sentelle had relied upon in the Court of Appeals,
+that Congress's power must be interpreted so that its enumerated
+powers have limits.
</para>
<para>
This then was the core of our strategy—a strategy for which I am
responsible. We would get the Court to see that just as with the
<citetitle>Lopez</citetitle>
-
<!-- PAGE BREAK 243 -->
case, under the government's argument here, Congress would always have
unlimited power to extend existing terms. If anything was plain about
Congress's power under the Progress Clause, it was that this power was
supposed to be "limited." Our aim would be to get the Court to
-reconcile <citetitle>Eldred</citetitle> with <citetitle>Lopez</citetitle>: If Congress's power to
-regulate commerce was limited, then so, too, must Congress's power to
-regulate copyright be limited.
+reconcile <citetitle>Eldred</citetitle> with
+<citetitle>Lopez</citetitle>: If Congress's power to regulate commerce
+was limited, then so, too, must Congress's power to regulate copyright
+be limited.
</para>
<para>
The argument on the government's side came down to this: Congress has
</para>
<para>
There was some truth to the government's claim, but not much. We
-certainly agreed that Congress had extended existing terms in
+certainly agreed that Congress had extended existing terms in 1831
and in 1909. And of course, in 1962, Congress began extending
existing
terms regularly—eleven times in forty years.
this central idea.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
<para>
One moot was before the lawyers at Jones Day. Don Ayer was the
skeptic. He had served in the Reagan Justice Department with Solicitor
<para>
The best responses were in the cartoons. There was a gaggle of
hilarious images—of Mickey in jail and the like. The best, from
-my view of the case, was Ruben Bolling's, reproduced on the next
-page. The "powerful and wealthy" line is a bit unfair. But the punch
-in the face felt exactly like that.
+my view of the case, was Ruben Bolling's, reproduced on the next page
+(<xref linkend="fig-18"/>). The "powerful and wealthy" line is a bit
+unfair. But the punch in the face felt exactly like that.
<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
+<figure id="fig-18">
+<title>Tom the Dancing Bug cartoon</title>
+<graphic fileref="images/18.png"></graphic>
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
+</figure>
<para>
The image that will always stick in my head is that evoked by the
quote from <citetitle>The New York Times</citetitle>. That "grand experiment" we call the
</para>
<!-- PAGE BREAK 254 -->
</chapter>
-<chapter id="eldred-ii">
+<chapter label="14" id="eldred-ii">
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
The day <citetitle>Eldred</citetitle> was decided, fate would have it that I was to travel to
content. It would simply liberate what Kevin Kelly calls the "Dark
Content" that fills archives around the world. So when the warriors
oppose a change like this, we should ask one simple question:
+<indexterm><primary>Kelly, Kevin</primary></indexterm>
</para>
<para>
What does this industry really want?
<!-- PAGE BREAK 264 -->
</chapter>
</part>
-<chapter id="c-conclusion">
+<chapter label="15" id="c-conclusion">
<title>CONCLUSION</title>
<para>
There are more than 35 million people with the AIDS virus
noticed. Powerful lobbies, complex issues, and MTV attention spans
produce the "perfect storm" for free culture.
</para>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
<para>
In August 2003, a fight broke out in the United States about a
decision by the World Intellectual Property Organization to cancel a
included the Global Positioning System, which Ronald Reagan set free
in the early 1980s. And it included "open source and free software."
<indexterm><primary>academic journals</primary></indexterm>
+<indexterm><primary>IBM</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
+<indexterm><primary>IBM</primary></indexterm>
<indexterm><primary>"copyleft" licenses</primary></indexterm>
<indexterm><primary>GNU/Linux operating system</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
url="http://free-culture.cc/notes/">link #64</ulink>.
</para></footnote>
And without U.S. backing, the meeting was canceled.
+<indexterm><primary>Krim, Jonathan</primary></indexterm>
</para>
<para>
I don't blame Microsoft for doing what it can to advance its own
</para>
</chapter>
-<chapter id="c-afterword">
+<chapter label="16" id="c-afterword">
<title>AFTERWORD</title>
<para>
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.
+<indexterm><primary>IBM</primary></indexterm>
</para>
<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
used book store prices for the book. As predicted, as the number of
downloads increased, the used book price for his book increased, as
well.
+<indexterm><primary>Free for All (Wayner)</primary></indexterm>
+<indexterm><primary>Wayner, Peter</primary></indexterm>
</para>
+<indexterm><primary>Public Enemy</primary></indexterm>
+<indexterm><primary>rap music</primary></indexterm>
<para>
These are examples of using the Commons to better spread proprietary
content. I believe that is a wonderful and common use of the
Public Enemy to sample anymore, because the legal costs are so
high<footnote><para>
<!-- f2. -->
-
<citetitle>Willful Infringement: A Report from the Front Lines of the Real
Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg
Hittelman, a Fiat Lucre production, available at
</para></footnote>),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
+<indexterm><primary>Leaphart, Walter</primary></indexterm>
</para>
<para>
Finally, there are many who mark their content with a Creative Commons
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.
+<indexterm><primary>Kaplan, Benjamin</primary></indexterm>
</para>
<blockquote>
<para>
popular. As is typical with Stallman, his proposal predates the current
debate by about a decade. See
<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
-<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Fisher, William</primary></indexterm>
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para></footnote>
Fisher suggests a very clever way around the current impasse of the
Internet. Under his plan, all content capable of digital transmission
system, then it can be continued. If this form of protection is no
longer necessary, then the system could lapse into the old system of
controlling access.
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para>
<para>
Fisher would balk at the idea of allowing the system to lapse. His aim
semiotic democracy if there were few limitations on what one was
allowed to do with the content itself.
</para>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
No doubt it would be difficult to calculate the proper measure of
"harm" to an industry. But the difficulty of making that calculation
</section>
</section>
</chapter>
-<chapter id="c-notes">
+<chapter label="17" id="c-notes">
<title>NOTES</title>
<para>
Throughout this text, there are references to links on the World Wide
disappeared, you will be redirected to an appropriate reference for
the material.
</para>
-<!-- PAGE BREAK 336 -->
+<!--PAGE BREAK 336-->
</chapter>
-<chapter id="c-acknowledgments">
+<chapter label="18" id="c-acknowledgments">
<title>ACKNOWLEDGMENTS</title>
<para>
This book is the product of a long and as yet unsuccessful struggle that
work helped launch a movement, the free culture movement, and it is
to him that this book is dedicated.
</para>
+<indexterm><primary>Rose, Mark</primary></indexterm>
<para>
I received guidance in various places from friends and academics,
including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
its culture. I am thankful to her, and to the many in Japan who helped
me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
-<!-- PAGE BREAK 337 -->
+<!--PAGE BREAK 337-->
Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
and the Tokyo University Business Law Center, for giving me the
chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
battles, and who has always been right. This slow learner is, as ever,
grateful for her perpetual patience and love.
</para>
-<!-- PAGE BREAK 338 -->
+<!--PAGE BREAK 338-->
</chapter>
<index></index>
projects / text-free-culture-lessig.git / blobdiff