<copyright>
<year>2004</year>
- <holder>
-Lawrence Lessig. This version of Free Culture is licensed under a
-Creative Commons license. This license permits non-commercial use of
-this work, so long as attribution is given. For more information
-about the license, click the icon above, or visit
-<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
- </holder>
+ <holder>Lawrence Lessig</holder>
</copyright>
+ <legalnotice>
+ <para>
+This version of Free Culture is licensed under a Creative Commons
+license. This license permits non-commercial use of this work, so long
+as attribution is given. For more information about the license,
+click the icon above, or visit
+<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
+ </para>
+ </legalnotice>
+
<abstract>
<title>ABOUT THE AUTHOR</title>
<para>
describes a set of "property" rights—copyright, patents,
trademark, and trade-secret—but the nature of those rights is
very different.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
A large, diverse society cannot survive without property; a large,
diverse, and modern society cannot flourish without intellectual
name Howard Dean may well have faded from the 2004 presidential race
but for blogs. Yet even if the number of readers is small, the reading
is having an effect.
+<indexterm><primary>Dean, Howard</primary></indexterm>
</para>
<para>
One direct effect is on stories that had a different life cycle in the
Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
York Times, 16 January 2003, G5.
</para></footnote>
+<indexterm><primary>Lott, Trent</primary></indexterm>
</para>
<para>
This different cycle is possible because the same commercial pressures
popular has been selected by a very democratic process of
peer-generated rankings.
</para>
+<indexterm id="idxwinerdave" class='startofrange'>
+ <primary>Winer, Dave</primary>
+</indexterm>
<para>
There's a second way, as well, in which blogs have a different cycle
<!-- PAGE BREAK 57 -->
happens. When there are ten million, there will be something
extraordinary to report.
</para>
+<indexterm startref="idxwinerdave" class='endofrange'/>
+<indexterm id="idxbrownjohnseely" class='startofrange'>
+ <primary>Brown, John Seely</primary>
+</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
His work, as his Web site describes it, is "human learning and . . . the
architecture that unleashes 60 percent of the brain [and] a legal
system that closes down that part of the brain."
</para>
+<indexterm startref="idxbrownjohnseely" class='endofrange'/>
<para>
We're building a technology that takes the magic of Kodak, mixes
moving images and sound, and adds a space for commentary and an
I am grateful to Peter DiMauro for pointing me to this extraordinary
history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
which details Edison's "adventures" with copyright and patent.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
Creators and directors migrated from the East Coast to California in
the early twentieth century in part to escape controls that patents
on the radio station. And if the law were perfectly consistent, the
radio station would have to pay the recording artist for his work,
just as it pays the composer of the music for his work.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
<!-- PAGE BREAK 72 -->
</para>
for free, even if it must pay the composer something for the privilege
of playing the song.
</para>
+<indexterm id="idxmadonna" class='startofrange'>
+ <primary>Madonna</primary>
+</indexterm>
<para>
This difference can be huge. Imagine you compose a piece of music.
Imagine it is your first. You own the exclusive right to authorize
"protected" right. The radio station thus gets to pirate the value of
Madonna's work without paying her anything.
</para>
+<indexterm startref="idxmadonna" class='endofrange'/>
<para>
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
make it available for free. Most probably wouldn't have, but clearly
there are some who would. The latter are the target of category A:
users who download instead of purchasing.
+<indexterm><primary>Madonna</primary></indexterm>
</para></listitem>
<listitem><para>
<!-- B. -->
Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson,
Bookseller," American Scholar 61:3 (1992): 424–31.
</para></footnote>
-Tonson was the
-
most prominent of a small group of publishers called the Conger<footnote><para>
+Tonson was the most prominent of a small group of publishers called
+the Conger<footnote><para>
<!-- f2 -->
-Lyman Ray Patterson, Copyright in Historical Perspective (Nashville:
- Vanderbilt
-University Press, 1968), 151–52.
-</para></footnote>
-who
-controlled bookselling in England during the eighteenth century. The
-Conger claimed a perpetual right to control the "copy" of books that
-they had acquired from authors. That perpetual right meant that no
+Lyman Ray Patterson, Copyright in Historical Perspective (Nashville:
+Vanderbilt University Press, 1968), 151–52.
+</para></footnote>
+who controlled bookselling in England during the eighteenth
+century. The Conger claimed a perpetual right to control the "copy" of
+books that they had acquired from authors. That perpetual right meant
+that no
<!-- PAGE BREAK 97 -->
one else could publish copies of a book to which they held the
- copyright.
-Prices of the classics were thus kept high; competition to
- produce
-better or cheaper editions was eliminated.
+copyright. Prices of the classics were thus kept high; competition to
+produce better or cheaper editions was eliminated.
</para>
<para>
Now, there's something puzzling about the year 1774 to anyone who
-knows a little about copyright law. The better-known year in the history
-of copyright is 1710, the year that the British Parliament adopted the
-first "copyright" act. Known as the Statute of Anne, the act stated that
-all published works would get a copyright term of fourteen years,
- renewable
-once if the author was alive, and that all works already
- published
-by 1710 would get a single term of twenty-one additional years.<footnote><para>
+knows a little about copyright law. The better-known year in the
+history of copyright is 1710, the year that the British Parliament
+adopted the first "copyright" act. Known as the Statute of Anne, the
+act stated that all published works would get a copyright term of
+fourteen years, renewable once if the author was alive, and that all
+works already published by 1710 would get a single term of twenty-one
+additional years.<footnote><para>
<!-- f3 -->
-As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
- "copyright
-law." See Vaidhyanathan, Copyrights and Copywrongs, 40.
-</para></footnote>
-Under this law, Romeo and Juliet should have been free in 1731. So why
-was there any issue about it still being under Tonson's control in 1774?
+As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
+"copyright law." See Vaidhyanathan, Copyrights and Copywrongs, 40.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+</para></footnote> Under this law, Romeo and Juliet should have been
+free in 1731. So why was there any issue about it still being under
+Tonson's control in 1774?
</para>
<para>
-The reason is that the English hadn't yet agreed on what a
- "copyright"
+The reason is that the English hadn't yet agreed on what a "copyright"
was—indeed, no one had. At the time the English passed the
Statute of Anne, there was no other legislation governing copyrights.
-The last law regulating publishers, the Licensing Act of 1662, had
- expired
-in 1695. That law gave publishers a monopoly over publishing, as
-a way to make it easier for the Crown to control what was published.
-But after it expired, there was no positive law that said that the
- publishers,
-or "Stationers," had an exclusive right to print books.
+The last law regulating publishers, the Licensing Act of 1662, had
+expired in 1695. That law gave publishers a monopoly over publishing,
+as a way to make it easier for the Crown to control what was
+published. But after it expired, there was no positive law that said
+that the publishers, or "Stationers," had an exclusive right to print
+books.
</para>
<para>
There was no positive law, but that didn't mean that there was no
Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
Law Review 40 (1987): 28. For a wonderfully compelling account, see
Vaidhyanathan, 37–48.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
The bookseller didn't care squat for the rights of the author. His
concern was the monopoly profit that the author's work gave.
replaced the shot with a clip from another film that he had worked on,
The Day After Trinity, from ten years before.
<indexterm><primary>San Francisco Opera</primary></indexterm>
+<indexterm><primary>Day After Trinity, The</primary></indexterm>
</para>
<para>
There's no doubt that someone, whether Matt Groening or Fox, owns the
to exhaustion on a shoestring, the last thing I wanted was to risk
legal trouble, even nuisance legal trouble, and even to defend a
principle.
+<indexterm><primary>Lucas, George</primary></indexterm>
</para></listitem>
<listitem><para>
<!-- 3. -->
that instructed children how to save themselves in the middle of
nuclear attack? Go to archive.org, and you can download the film in a
few minutes—for free.
+<indexterm><primary>Movie Archive</primary></indexterm>
</para>
<para>
Here again, Kahle is providing access to a part of our culture that we
<!-- PAGE BREAK 133 -->
with a $150,000 fine. The fine is an ex post punishment for violating
an ex ante rule. It is imposed by the state.
+<indexterm><primary>Madonna</primary></indexterm>
</para>
<para>
Norms are a different kind of constraint. They, too, punish an
<para>
Here's the metaphor that will capture the argument to follow.
</para>
+<indexterm id="idxddt" class='startofrange'>
+ <primary>DDT</primary>
+</indexterm>
<para>
In 1873, the chemical DDT was first synthesized. In 1948, Swiss
chemist Paul Hermann Müller won the Nobel Prize for his work
demonstrating the insecticidal properties of DDT. By the 1950s, the
insecticide was widely used around the world to kill disease-carrying
pests. It was also used to increase farm production.
+<indexterm><primary>Müller, Paul Hermann</primary></indexterm>
</para>
<para>
No one doubts that killing disease-carrying pests or increasing crop
for free culture that will be far more devastating than that this gnat will
be lost.
</para>
+<indexterm startref="idxddt" class='endofrange'/>
</sect2>
<sect2 id="beginnings">
<title>Beginnings</title>
Disney's permission.
</para>
<para>
-Now, you might think this is a close case, and I think the courts would
-consider it a close case. My point here is to map the change that gives
-Disney this power. Before the Internet, Disney couldn't really control
-how people got access to their content. Once a video was in the
- marketplace,
-the "first-sale doctrine" would free the seller to use the video as he
-wished, including showing portions of it in order to engender sales of the
-entire movie video. But with the Internet, it becomes possible for Disney
-to centralize control over access to this content. Because each use of the
-Internet produces a copy, use on the Internet becomes subject to the
-copyright owner's control. The technology expands the scope of effective
-control, because the technology builds a copy into every transaction.
+Now, you might think this is a close case, and I think the courts
+would consider it a close case. My point here is to map the change
+that gives Disney this power. Before the Internet, Disney couldn't
+really control how people got access to their content. Once a video
+was in the marketplace, the "first-sale doctrine" would free the
+seller to use the video as he wished, including showing portions of it
+in order to engender sales of the entire movie video. But with the
+Internet, it becomes possible for Disney to centralize control over
+access to this content. Because each use of the Internet produces a
+copy, use on the Internet becomes subject to the copyright owner's
+control. The technology expands the scope of effective control,
+because the technology builds a copy into every transaction.
</para>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
- control
-is not yet the abuse of control. Barnes & Noble has the right to say
-you can't touch a book in their store; property law gives them that right.
-But the market effectively protects against that abuse. If Barnes &
- Noble
-banned browsing, then consumers would choose other bookstores.
-Competition protects against the extremes. And it may well be (my
- argument
-so far does not even question this) that competition would prevent
-any similar danger when it comes to copyright. Sure, publishers
- exercising
-the rights that authors have assigned to them might try to regulate
-how many times you read a book, or try to stop you from sharing the book
-with anyone. But in a competitive market such as the book market, the
-dangers of this happening are quite slight.
+control is not yet the abuse of control. Barnes & Noble has the
+right to say you can't touch a book in their store; property law gives
+them that right. But the market effectively protects against that
+abuse. If Barnes & Noble banned browsing, then consumers would
+choose other bookstores. Competition protects against the
+extremes. And it may well be (my argument so far does not even
+question this) that competition would prevent any similar danger when
+it comes to copyright. Sure, publishers exercising the rights that
+authors have assigned to them might try to regulate how many times you
+read a book, or try to stop you from sharing the book with anyone. But
+in a competitive market such as the book market, the dangers of this
+happening are quite slight.
</para>
<para>
Again, my aim so far is simply to map the changes that this changed
architecture enables. Enabling technology to enforce the control of
copyright means that the control of copyright is no longer defined by
-balanced policy. The control of copyright is simply what private
- owners
-choose. In some contexts, at least, that fact is harmless. But in some
-contexts it is a recipe for disaster.
+balanced policy. The control of copyright is simply what private
+owners choose. In some contexts, at least, that fact is harmless. But
+in some contexts it is a recipe for disaster.
</para>
</sect2>
<sect2 id="lawforce">
Marxes, warning them that there would be serious legal consequences
if they went forward with their plan.<footnote><para>
<!-- f19 -->
-See David Lange, "Recognizing the Public Domain," Law and
- Contemporary
-Problems 44 (1981): 172–73.
+See David Lange, "Recognizing the Public Domain," Law and
+Contemporary Problems 44 (1981): 172–73.
</para></footnote>
</para>
<para>
you were."<footnote><para>
<!-- f20 -->
Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
The Marx Brothers therefore owned the word brothers,
and if Warner Brothers insisted on trying to control Casablanca, then
Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
31 May 2003.
</para></footnote>
+<indexterm><primary>McCain, John</primary></indexterm>
</para>
<para>
The story with radio is even more dramatic. Before deregulation,
While the number of channels has increased dramatically, the ownership
of those channels has narrowed to an ever smaller and smaller few. As
Barry Diller said to Bill Moyers,
+<indexterm><primary>Diller, Barry</primary></indexterm>
+<indexterm><primary>Moyers, Bill</primary></indexterm>
</para>
<blockquote>
<para>
After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
was that the criticism was "too controversial."
+<indexterm><primary>Comcast</primary></indexterm>
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
</para></footnote>
Never in our history have fewer had a legal right to control more of
the development of our culture than now.
</para>
-<para> Not when copyrights were perpetual, for when copyrights were
+<para>
+Not when copyrights were perpetual, for when copyrights were
perpetual, they affected only that precise creative work. Not when
only publishers had the tools to publish, for the market then was much
more diverse. Not when there were only three television networks, for
<!-- f35 -->
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
copyright law in the digital age. See Vaidhyanathan, 159–60.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
</para>
<para>
(finally) releases a new album, rather than buying it, I go to Kazaa
and find a free copy to take, that is very much like stealing a copy
from Tower.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
leverage the revealed preferences of music listeners to recommend new
artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
Raitt. And so on.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
This idea required a simple way to gather data about user preferences.
<para>
"If you can treat someone as a putative lawbreaker," von Lohmann
explains,
+<indexterm><primary>von Lohmann, Fred</primary></indexterm>
</para>
<blockquote>
<para>
have already learned, our presumptions about innocence disappear in
the middle of wars of prohibition. This war is no different.
Says von Lohmann,
+<indexterm><primary>von Lohmann, Fred</primary></indexterm>
</para>
<blockquote>
<para>
Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
</para></footnote>
+<indexterm><primary>Lucky Dog, The</primary></indexterm>
</para>
<para>
Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
<!-- PAGE BREAK 259 -->
a world without formalities. Complex, expensive, lawyer transactions
take their place.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
This was the understanding of the problem with the Sonny Bono
introduced. On May 16, I posted on the Eldred Act blog, "we are
close." There was a general reaction in the blog community that
something good might happen here.
+<indexterm><primary>Lofgren, Zoe</primary></indexterm>
</para>
<para>
But at this stage, the lobbyists began to intervene. Jack Valenti and
projects / text-free-culture-lessig.git / blobdiff