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<book id="index" lang="en">
<bookinfo>
<title>Free Culture</title>
</author>
</authorgroup>
-<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
+<!-- <subjectset> and cover <mediaobject> Based on example from
+ http://jfearn.fedorapeople.org/en-US/Publican/2.7/html/Users_Guide/chap-Users_Guide-Creating_a_document.html
+-->
+ <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>
+ <inlinemediaobject>
+ <imageobject>
+ <imagedata fileref="images/cc.png" contentdepth="3em" width="100%" align="center"/>
+ </imageobject>
+ <imageobject>
+ <imagedata fileref="images/cc.svg" contentdepth="3em" width="100%" align="center"/>
+ </imageobject>
+ <textobject>
+ <phrase>Creative Commons, Some rights reserved</phrase>
+ </textobject>
+ </inlinemediaobject>
+ </para>
+
+ <para>
+This version of <citetitle>Free Culture</citetitle> 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>
-</copyright>
+ </para>
+ </legalnotice>
<abstract>
<title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
-(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
+(<ulink url="http://www.lessig.org">http://www.lessig.org</ulink>),
professor of law and a John A. Wilson Distinguished Faculty Scholar
at Stanford Law School, is founder of the Stanford Center for Internet
and Society and is chairman of the Creative Commons
-(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
+(<ulink url="http://creativecommons.org">http://creativecommons.org</ulink>).
The author of The Future of Ideas (Random House, 2001) and Code: And
Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
the boards of the Public Library of Science, the Electronic Frontier
Foundation, and Public Knowledge. He was the winner of the Free
Software Foundation's Award for the Advancement of Free Software,
-twice listed in BusinessWeek's "e.biz 25," and named one of Scientific
-American's "50 visionaries." A graduate of the University of
+twice listed in BusinessWeek's <quote>e.biz 25,</quote> and named one of Scientific
+American's <quote>50 visionaries.</quote> A graduate of the University of
Pennsylvania, Cambridge University, and Yale Law School, Lessig
clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
Appeals.
</para>
</abstract>
-</bookinfo>
-<colophon>
-<!-- PAGE BREAK 1 -->
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+ </mediaobject>
+
+ <biblioid class="isbn">1-59420-006-8</biblioid>
+<!-- LCCN from
+ http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page
+ -->
+ <biblioid class="libraryofcongress">2003063276</biblioid>
+
+</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 -->
-<para>
-THE PENGUIN PRESS
-</para>
-<para>
-NEW YORK
-</para>
-
<!-- PAGE BREAK 5 -->
-<para>
-FREE CULTURE
-</para>
-
-<para>
-HOW BIG MEDIA USES TECHNOLOGY AND
-THE LAW TO LOCK DOWN CULTURE
-AND CONTROL CREATIVITY
-</para>
-
-<para>
-LAWRENCE LESSIG
-</para>
-
<!-- PAGE BREAK 6 -->
+<colophon>
<para>
-THE PENGUIN PRESS
-</para>
-<para>
-a member of Penguin Group (USA) Inc. 375 Hudson Street New
+THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New
York, New York
</para>
<para>
-Copyright © Lawrence Lessig,
+Copyright © Lawrence Lessig. All rights reserved.
</para>
<para>
-All rights reserved
+Excerpt from an editorial titled <quote>The Coming of Copyright Perpetuity,</quote>
+<citetitle>The New York Times</citetitle>, January 16, 2003. Copyright
+© 2003 by The New York Times Co. Reprinted with permission.
</para>
<para>
-Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
-The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co.
-Reprinted with permission.
+Cartoon in <xref linkend="fig-1711-vcr-handgun-cartoonfig"/> by Paul Conrad, copyright Tribune
+Media Services, Inc. All rights reserved. Reprinted with permission.
</para>
<para>
-Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
-</para>
-<para>
-All rights reserved. Reprinted with permission.
-</para>
-<para>
-Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
+Diagram in <xref linkend="fig-1761-pattern-modern-media-ownership"/> courtesy of the office of FCC
+Commissioner, Michael J. Copps.
</para>
<para>
Library of Congress Cataloging-in-Publication Data
<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.
</para>
-
-<para>
-<figure id="CreativeCommons">
-<title>Creative Commons, Some rights reserved</title>
-<graphic fileref="images/cc.png"></graphic>
-</figure>
-</para>
</dedication>
<toc id="toc"></toc>
<preface id="preface">
<title>PREFACE</title>
-<indexterm id="idxpoguedavid" class='startofrange'>
- <primary>Pogue, David</primary>
-</indexterm>
+<indexterm id='idxpoguedavid' class='startofrange'><primary>Pogue, David</primary></indexterm>
<para>
-At the end of his review of my first book, Code: And Other Laws of
-Cyberspace, David Pogue, a brilliant writer and author of countless
-technical and computer-related texts, wrote this:
+<emphasis role="bold">At the end</emphasis> of his review of my first
+book, <citetitle>Code: And Other Laws of Cyberspace</citetitle>, David
+Pogue, a brilliant writer and author of countless technical and
+computer-related texts, wrote this:
</para>
<blockquote>
<para>
doesn't affect people who aren't online (and only a tiny minority
of the world population is). And if you don't like the Internet's
system, you can always flip off the modem.<footnote id="preface01"><para>
-David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
+David Pogue, <quote>Don't Just Chat, Do Something,</quote> <citetitle>New York Times</citetitle>, 30 January 2000.
</para></footnote>
</para>
</blockquote>
<para>
Pogue was skeptical of the core argument of the book—that
-software, or "code," functioned as a kind of law—and his review
+software, or <quote>code,</quote> functioned as a kind of law—and his review
suggested the happy thought that if life in cyberspace got bad, we
-could always "drizzle, drazzle, druzzle, drome"-like simply flip a
+could always <quote>drizzle, drazzle, druzzle, drome</quote>-like simply flip a
switch and be back home. Turn off the modem, unplug the computer, and
-any troubles that exist in that space wouldn't "affect" us anymore.
+any troubles that exist in <emphasis>that</emphasis> space wouldn't
+<quote>affect</quote> us anymore.
</para>
<para>
Pogue might have been right in 1999—I'm skeptical, but maybe.
-But even if he was right then, the point is not right now: Free Culture
-is about the troubles the Internet causes even after the modem is turned
-<!-- PAGE BREAK 12 -->
+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-->
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
+on-line have fundamentally affected <quote>people who aren't online.</quote> There
is no switch that will insulate us from the Internet's effect.
</para>
-<indexterm startref="idxpoguedavid" class='endofrange'/>
+<indexterm startref='idxpoguedavid' class='endofrange'/>
<para>
-But unlike Code, the argument here is not much about the Internet
-itself. It is instead about the consequence of the Internet to a part of
-our tradition that is much more fundamental, and, as hard as this is for
-a geek-wanna-be to admit, much more important.
+But unlike <citetitle>Code</citetitle>, the argument here is not much
+about the Internet itself. It is instead about the consequence of the
+Internet to a part of our tradition that is much more fundamental,
+and, as hard as this is for a geek-wanna-be to admit, much more
+important.
</para>
<para>
That tradition is the way our culture gets made. As I explain in the
-pages that follow, we come from a tradition of "free culture"—not
-"free" as in "free beer" (to borrow a phrase from the founder of the
+pages that follow, we come from a tradition of <quote>free culture</quote>—not
+<quote>free</quote> as in <quote>free beer</quote> (to borrow a phrase from the founder of the
free software movement<footnote>
<para>
-Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002).
-</para></footnote>), but "free" as in "free speech," "free markets," "free
-trade," "free enterprise," "free will," and "free elections." A free
-culture supports and protects creators and innovators. It does this
-directly by granting intellectual property rights. But it does so
+Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 (Joshua Gay, ed. 2002).
+</para></footnote>), but <quote>free</quote> as in <quote>free speech,</quote> <quote>free markets,</quote>
+<quote>free trade,</quote> <quote>free enterprise,</quote> <quote>free will,</quote> and <quote>free elections.</quote> A
+free culture supports and protects creators and innovators. It does
+this directly by granting intellectual property rights. But it does so
indirectly by limiting the reach of those rights, to guarantee that
-follow-on creators and innovators remain as free as possible from the
-control of the past. A free culture is not a culture without property,
-just as a free market is not a market in which everything is free. The
-opposite of a free culture is a "permission culture"—a culture in
-which creators get to create only with the permission of the powerful,
-or of creators from the past.
+follow-on creators and innovators remain <emphasis>as free as
+possible</emphasis> from the control of the past. A free culture is
+not a culture without property, just as a free market is not a market
+in which everything is free. The opposite of a free culture is a
+<quote>permission culture</quote>—a culture in which creators get to create
+only with the permission of the powerful, or of creators from the
+past.
</para>
<para>
-If we understood this change, I believe we would resist it. Not "we"
-on the Left or "you" on the Right, but we who have no stake in the
+If we understood this change, I believe we would resist it. Not <quote>we</quote>
+on the Left or <quote>you</quote> on the Right, but we who have no stake in the
particular industries of culture that defined the twentieth century.
Whether you are on the Left or the Right, if you are in this sense
disinterested, then the story I tell here will trouble you. For the
changes I describe affect values that both sides of our political
culture deem fundamental.
</para>
+<indexterm id='idxpowerconcentrationof' class='startofrange'><primary>power, concentration of</primary></indexterm>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
+<indexterm><primary>Safire, William</primary></indexterm>
+<indexterm><primary>Stevens, Ted</primary></indexterm>
<para>
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
would relax limits on media concentration, an extraordinary coalition
generated more than 700,000 letters to the FCC opposing the change.
-As William Safire described marching "uncomfortably alongside CodePink
+As William Safire described marching <quote>uncomfortably alongside CodePink
Women for Peace and the National Rifle Association, between liberal
-Olympia Snowe and conservative Ted Stevens," he formulated perhaps
+Olympia Snowe and conservative Ted Stevens,</quote> he formulated perhaps
most simply just what was at stake: the concentration of power. And as
he asked,
-<indexterm><primary>Safire, William</primary></indexterm>
</para>
<blockquote>
<para>
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy.<footnote><para> William Safire,
-"The Great Media Gulp," New York Times, 22 May 2003.
+<quote>The Great Media Gulp,</quote> <citetitle>New York Times</citetitle>, 22 May 2003.
<indexterm><primary>Safire, William</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
-This idea is an element of the argument of Free Culture, though my
+This idea is an element of the argument of <citetitle>Free Culture</citetitle>, though my
focus is not just on the concentration of power produced by
concentrations in ownership, but more importantly, if because less
visibly, on the concentration of power produced by a radical change in
the effective scope of the law. The law is changing; that change is
altering the way our culture gets made; that change should worry
you—whether or not you care about the Internet, and whether you're on
-Safire's left or on his right. The inspiration for the title and for
+Safire's left or on his right.
+</para>
+<indexterm startref='idxpowerconcentrationof' class='endofrange'/>
+<para>
+<emphasis role="strong">The inspiration</emphasis> for the title and for
much of the argument of this book comes from the work of Richard
Stallman and the Free Software Foundation. Indeed, as I reread
-Stallman's own work, especially the essays in Free Software, Free
-Society, I realize that all of the theoretical insights I develop here
+Stallman's own work, especially the essays in <citetitle>Free Software, Free
+Society</citetitle>, I realize that all of the theoretical insights I develop here
are insights Stallman described decades ago. One could thus well argue
-that this work is "merely" derivative.
+that this work is <quote>merely</quote> derivative.
</para>
<para>
I accept that criticism, if indeed it is a criticism. The work of a
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>
+<indexterm id='idxwrightbrothers' class='startofrange'><primary>Wright brothers</primary></indexterm>
<para>
-On December 17, 1903, on a windy North Carolina beach for just
+<emphasis role="strong">On December 17</emphasis>, 1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
heavier-than-air, self-propelled vehicle could fly. The moment was electric
and its importance widely understood. Almost immediately, there
was an explosion of interest in this newfound technology of manned
flight, and a gaggle of innovators began to build upon it.
</para>
+<indexterm id='idxairtrafficlandownershipvs' class='startofrange'><primary>air traffic, land ownership vs.</primary></indexterm>
+<indexterm id='idxlandownershipairtrafficand' class='startofrange'><primary>land ownership, air traffic and</primary></indexterm>
+<indexterm id='idxpropertyrightsairtrafficvs' class='startofrange'><primary>property rights</primary><secondary>air traffic vs.</secondary></indexterm>
<para>
At the time the Wright brothers invented the airplane, American
law held that a property owner presumptively owned not just the surface
of his land, but all the land below, down to the center of the earth,
-and all the space above, to
"an indefinite extent, upwards."<footnote><para>
-St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
+and all the space above, to
<quote>an indefinite extent, upwards.</quote><footnote><para>
+St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
</para></footnote>
For many
rights in land ran to the heavens. Did that mean that you owned the
stars? Could you prosecute geese for their willful and regular trespass?
</para>
+<indexterm startref='idxwrightbrothers' class='endofrange'/>
<para>
Then came airplanes, and for the first time, this principle of American
law—deep within the foundations of our tradition, and acknowledged
flew into the barn walls and died), the Causbys filed a lawsuit saying
that the government was trespassing on their land. The airplanes,
of course, never touched the surface of the Causbys' land. But if, as
-Blackstone, Kent, and Coke had said, their land reached to "an indefinite
-extent, upwards," then the government was trespassing on their
+Blackstone, Kent, and Coke had said, their land reached to <quote>an indefinite
+extent, upwards,</quote> then the government was trespassing on their
property, and the Causbys wanted it to stop.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm id='idxdouglaswilliamo' class='startofrange'><primary>Douglas, William O.</primary></indexterm>
+<indexterm id='idxsupremecourtusonairspacevslandrights' class='startofrange'><primary>Supreme Court, U.S.</primary><secondary>on airspace vs. land rights</secondary></indexterm>
<para>
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
heavens, then Congress's declaration could well have been an unconstitutional
-"taking" of property without compensation. The Court acknowledged
-that "it is ancient doctrine that common law ownership of
-the land extended to the periphery of the universe." But Justice Douglas
+<quote>taking</quote> of property without compensation. The Court acknowledged
+that <quote>it is ancient doctrine that common law ownership of
+the land extended to the periphery of the universe.</quote> But Justice Douglas
had no patience for ancient doctrine. In a single paragraph, hundreds of
years of property law were erased. As he wrote for the Court,
</para>
the public has a just claim.<footnote>
<para>
United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
-that there could be a "taking" if the government's use of its land
+that there could be a <quote>taking</quote> if the government's use of its land
effectively destroyed the value of the Causbys' land. This example was
-suggested to me by Keith Aoki's wonderful piece, "(Intellectual)
+suggested to me by Keith Aoki's wonderful piece, <quote>(Intellectual)
Property and Sovereignty: Notes Toward a Cultural Geography of
-Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul
-Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984),
+Authorship,</quote> <citetitle>Stanford Law Review</citetitle> 48 (1996): 1293, 1333. See also Paul
+Goldstein, <citetitle>Real Property</citetitle> (Mineola, N.Y.: Foundation Press, 1984),
1112–13.
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
</para>
</blockquote>
<para>
-"Common sense revolts at the idea."
+<quote>Common sense revolts at the idea.</quote>
</para>
+<indexterm startref='idxdouglaswilliamo' class='endofrange'/>
<para>
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 -->
-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
+<!--PAGE BREAK 18-->
+conclusion that Douglas holds in a single line: <quote>Common sense revolts
+at the idea.</quote> 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
technologies of the time. And as it adjusts, it changes. Ideas that were
as solid as rock in one age crumble in another.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
Or at least, this is how things happen when there's no one powerful
on the other side of the change. The Causbys were just farmers. And
hard to unite and stop the idea, and the technology, that the Wright
brothers had birthed. The Wright brothers spat airplanes into the
technological meme pool; the idea then spread like a virus in a chicken
-coop; farmers like the Causbys found themselves surrounded by "what
-seemed reasonable" given the technology that the Wrights had produced.
+coop; farmers like the Causbys found themselves surrounded by <quote>what
+seemed reasonable</quote> given the technology that the Wrights had produced.
They could stand on their farms, dead chickens in hand, and
shake their fists at these newfangled technologies all they wanted.
They could call their representatives or even file a lawsuit. But in the
-end, the force of what seems "obvious" to everyone else—the power of
-"common sense"—would prevail. Their "private interest" would not be
+end, the force of what seems <quote>obvious</quote> to everyone else—the power of
+<quote>common sense</quote>—would prevail. Their <quote>private interest</quote> would not be
allowed to defeat an obvious public gain.
</para>
-<para>
-Edwin Howard Armstrong is one of America's forgotten inventor
-geniuses. He came to the great American inventor scene just after the
-titans Thomas Edison and Alexander Graham Bell. But his work in
-the area of radio technology was perhaps the most important of any
-single inventor in the first fifty years of radio. He was better educated
-than Michael Faraday, who as a bookbinder's apprentice had discovered
-electric induction in 1831. But he had the same intuition about
-how the world of radio worked, and on at least three occasions,
-Armstrong invented profoundly important technologies that advanced our
-understanding of radio.
-<!-- PAGE BREAK 19 -->
+<indexterm startref='idxairtrafficlandownershipvs' class='endofrange'/>
+<indexterm startref='idxlandownershipairtrafficand' class='endofrange'/>
+<indexterm startref='idxpropertyrightsairtrafficvs' class='endofrange'/>
+<indexterm startref='idxsupremecourtusonairspacevslandrights' class='endofrange'/>
+<indexterm id='idxarmstrongedwinhoward' class='startofrange'><primary>Armstrong, Edwin Howard</primary></indexterm>
<indexterm><primary>Bell, Alexander Graham</primary></indexterm>
<indexterm><primary>Edison, Thomas</primary></indexterm>
<indexterm><primary>Faraday, Michael</primary></indexterm>
+<indexterm id='idxradiofmspectrumof' class='startofrange'><primary>radio</primary><secondary>FM spectrum of</secondary></indexterm>
+<para>
+<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of
+America's forgotten inventor geniuses. He came to the great American
+inventor scene just after the titans Thomas Edison and Alexander
+Graham Bell. But his work in the area of radio technology was perhaps
+the most important of any single inventor in the first fifty years of
+radio. He was better educated than Michael Faraday, who as a
+bookbinder's apprentice had discovered electric induction in 1831. But
+he had the same intuition about how the world of radio worked, and on
+at least three occasions, Armstrong invented profoundly important
+technologies that advanced our understanding of radio.
+<!-- PAGE BREAK 19 -->
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
seventeen miles away. The radio fell totally silent, as if dead, and
then with a clarity no one else in that room had ever heard from an
electrical device, it produced the sound of an announcer's voice:
-"This is amateur station W2AG at Yonkers, New York, operating on
-frequency modulation at two and a half meters."
+<quote>This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters.</quote>
</para>
<para>
The audience was hearing something no one had thought possible:
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was crumpled
+sounded like a glass of water being poured. … A paper was crumpled
and torn; it sounded like paper and not like a crackling forest
-fire. . . . Sousa marches were played from records and a piano solo
-and guitar number were performed. . . . The music was projected with a
-live-ness rarely if ever heard before from a radio "music
-Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+fire. … Sousa marches were played from records and a piano solo
+and guitar number were performed. … The music was projected with a
+live-ness rarely if ever heard before from a radio <quote>music
+box.
</quote><footnote><para>
+Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
</para>
</blockquote>
+<indexterm id='idxrca' class='startofrange'><primary>RCA</primary></indexterm>
+<indexterm id='idxmediaownershipconcentrationin' class='startofrange'><primary>media</primary><secondary>ownership concentration in</secondary></indexterm>
<para>
As our own common sense tells us, Armstrong had discovered a vastly
superior radio technology. But at the time of his invention, Armstrong
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>
+<indexterm><primary>Sarnoff, David</primary></indexterm>
<para>
RCA's president, David Sarnoff, a friend of Armstrong's, was eager
that Armstrong discover a way to remove static from AM radio. So
Sarnoff was quite excited when Armstrong told him he had a device
-that removed static from "radio." But when Armstrong demonstrated
+that removed static from <quote>radio.</quote> But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
-<indexterm><primary>Sarnoff, David</primary></indexterm>
</para>
<blockquote>
<para>
I thought Armstrong would invent some kind of a filter to remove
static from our AM radio. I didn't think he'd start a
revolution— start up a whole damn new industry to compete with
-RCA.<footnote><para> See "Saints: The Heroes and Geniuses of the
-Electronic Era," First Electronic Church of America, at
+RCA.<footnote><para> See <quote>Saints: The Heroes and Geniuses of the
+Electronic Era,</quote> First Electronic Church of America, at
www.webstationone.com/fecha, available at
<ulink url="http://free-culture.cc/notes/">link #1</ulink>.
</para></footnote>
</para>
</blockquote>
+<indexterm id='idxfmradio' class='startofrange'><primary>FM radio</primary></indexterm>
+<indexterm><primary>Sarnoff, David</primary></indexterm>
<para>
Armstrong's invention threatened RCA's AM empire, so the company
launched a campaign to smother FM radio. While FM may have been a
superior technology, Sarnoff was a superior tactician. As one author
described,
-<indexterm><primary>Sarnoff, David</primary></indexterm>
</para>
+<indexterm id='idxlessinglawrence' class='startofrange'><primary>Lessing, Lawrence</primary></indexterm>
<blockquote>
<para>
The forces for FM, largely engineering, could not overcome the weight
of strategy devised by the sales, patent, and legal offices to subdue
this threat to corporate position. For FM, if allowed to develop
-unrestrained, posed . . . a complete reordering of radio power
-. . . and the eventual overthrow of the carefully restricted AM system
+unrestrained, posed … a complete reordering of radio power
+… and the eventual overthrow of the carefully restricted AM system
on which RCA had grown to power.<footnote><para>Lessing, 226.
</para></footnote>
</para>
</blockquote>
+<indexterm id='idxfcconfmradio' class='startofrange'><primary>FCC</primary><secondary>on FM radio</secondary></indexterm>
<para>
RCA at first kept the technology in house, insisting that further
tests were needed. When, after two years of testing, Armstrong grew
</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxlessinglawrence' class='endofrange'/>
<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
wired links from AT&T.) The spread of FM radio was thus choked, at
least temporarily.
</para>
+<indexterm startref='idxradiofmspectrumof' class='endofrange'/>
+<indexterm startref='idxfcconfmradio' class='endofrange'/>
<para>
Armstrong resisted RCA's efforts. In response, RCA resisted
Armstrong's patents. After incorporating FM technology into the
now broke, in 1954 Armstrong wrote a short note to his wife and then
stepped out of a thirteenth-story window to his death.
</para>
+<indexterm startref='idxfmradio' class='endofrange'/>
+<indexterm startref='idxarmstrongedwinhoward' class='endofrange'/>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From
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.
</para>
+<indexterm startref='idxrca' class='endofrange'/>
+<indexterm startref='idxmediaownershipconcentrationin' class='endofrange'/>
+<indexterm id='idxinternetdevelopmentof' class='startofrange'><primary>Internet</primary><secondary>development of</secondary></indexterm>
<para>
-There's no single inventor of the Internet. Nor is there any good date
+<emphasis role="strong">There's no</emphasis> single inventor of the Internet. Nor is there any good date
upon which to mark its birth. Yet in a very short time, the Internet
has become part of ordinary American life. According to the Pew
Internet and American Life Project, 58 percent of Americans had access
to the Internet in 2002, up from 49 percent two years
before.<footnote><para>
-Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at
-Internet Access and the Digital Divide," Pew Internet and American
+Amanda Lenhart, <quote>The Ever-Shifting Internet Population: A New Look at
+Internet Access and the Digital Divide,</quote> Pew Internet and American
Life Project, 15 April 2003: 6, available at
<ulink url="http://free-culture.cc/notes/">link #2</ulink>.
</para></footnote>
would reject it. Yet most don't even see the change that the Internet
has introduced.
</para>
+<indexterm startref='idxinternetdevelopmentof' class='endofrange'/>
+<indexterm><primary>Barlow, Joel</primary></indexterm>
+<indexterm id='idxculturecommercialvsnoncommercial' class='startofrange'><primary>culture</primary><secondary>commercial vs. noncommercial</secondary></indexterm>
+<indexterm><primary>Webster, Noah</primary></indexterm>
<para>
We can glimpse a sense of this change by distinguishing between
commercial and noncommercial culture, and by mapping the law's
-regulation of each. By "commercial culture" I mean that part of our
+regulation of each. By <quote>commercial culture</quote> I mean that part of our
culture that is produced and sold or produced to be sold. By
-"noncommercial culture" I mean all the rest. When old men sat around
+<quote>noncommercial culture</quote> I mean all the rest. When old men sat around
parks or on
<!-- PAGE BREAK 23 -->
street corners telling stories that kids and others consumed, that was
-noncommercial culture. When Noah Webster published his "Reader," or
+noncommercial culture. When Noah Webster published his <quote>Reader,</quote> or
Joel Barlow his poetry, that was commercial culture.
</para>
<para>
course, if your stories were lewd, or if your song disturbed the
peace, then the law might intervene. But the law was never directly
concerned with the creation or spread of this form of culture, and it
-left this culture "free." The ordinary ways in which ordinary
+left this culture <quote>free.</quote> The ordinary ways in which ordinary
individuals shared and transformed their culture—telling
stories, reenacting scenes from plays or TV, participating in fan
clubs, sharing music, making tapes—were left alone by the law.
</para>
+<indexterm id='idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>commercial creativity as primary purpose of</secondary></indexterm>
<para>
The focus of the law was on commercial creativity. At first slightly,
then quite extensively, the law protected the incentives of creators by
publication, but also a privacy interest. By granting authors the exclusive
right to first publication, state copyright law gave authors the power to
control the spread of facts about them. See Samuel D. Warren and Louis
-D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193,
+D. Brandeis, <quote>The Right to Privacy,</quote> Harvard Law Review 4 (1890): 193,
198–200.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</para></footnote>
sense was it dominant within our tradition. It was instead just one
part, a controlled part, balanced with the free.
</para>
+<indexterm><primary>free culture</primary><secondary> permission culture vs.</secondary></indexterm>
+<indexterm><primary>permission culture</primary><secondary> free culture vs.</secondary></indexterm>
<para>
This rough divide between the free and the controlled has now
been erased.<footnote><para>
-See Jessica Litman, Digital Copyright (New York: Prometheus Books,
+See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: Prometheus Books,
2001), ch. 13.
+<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
The Internet has set the stage for this erasure and, pushed by big
media, the law has now affected it. For the first time in our
culture, more and more a permission culture.
</para>
<!-- PAGE BREAK 24 -->
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>protection of artists vs. business interests</primary></indexterm>
<para>
This change gets justified as necessary to protect commercial
creativity. And indeed, protectionism is precisely its
them. It is the story of RCA and Armstrong; it is the dream of the
Causbys.
</para>
+<indexterm startref='idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof' class='endofrange'/>
<para>
For the Internet has unleashed an extraordinary possibility for many
to participate in the process of building and cultivating a culture
succeeding in their plan to remake the Internet before the Internet
remakes them.
</para>
+<indexterm startref='idxculturecommercialvsnoncommercial' class='endofrange'/>
+<indexterm><primary>Valenti, Jack</primary><secondary> on creative property rights</secondary></indexterm>
<para>
It doesn't seem this way to many. The battles over copyright and the
<!-- PAGE BREAK 25 -->
Internet seem remote to most. To the few who follow them, they seem
-mainly about a much simpler brace of questions—whether "piracy" will
-be permitted, and whether "property" will be protected. The "war" that
+mainly about a much simpler brace of questions—whether <quote>piracy</quote> will
+be permitted, and whether <quote>property</quote> will be protected. The <quote>war</quote> that
has been waged against the technologies of the Internet—what
Motion Picture Association of America (MPAA) president Jack Valenti
-calls his
"own terrorist war"<footnote><para>
-Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates
-Use New Tools to Turn the Net into an Illicit Video Club," New York
-Times, 17 January 2002.
+calls his
<quote>own terrorist war</quote><footnote><para>
+Amy Harmon, <quote>Black Hawk Download: Moving Beyond Music, Pirates
+Use New Tools to Turn the Net into an Illicit Video Club,</quote> <citetitle>New York
+Times</citetitle>, 17 January 2002.
</para></footnote>—has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
war, most think that we need only decide whether we're for property or
If those really were the choices, then I would be with Jack Valenti
and the content industry. I, too, am a believer in property, and
especially in the importance of what Mr. Valenti nicely calls
-"creative property." I believe that "piracy" is wrong, and that the
-law, properly tuned, should punish "piracy," whether on or off the
+<quote>creative property.</quote> I believe that <quote>piracy</quote> is wrong, and that the
+law, properly tuned, should punish <quote>piracy,</quote> whether on or off the
Internet.
</para>
<para>
But those simple beliefs mask a much more fundamental question
and a much more dramatic change. My fear is that unless we come to see
-this change, the war to rid the world of Internet "pirates" will also rid our
+this change, the war to rid the world of Internet <quote>pirates</quote> will also rid our
culture of values that have been integral to our tradition from the start.
</para>
+<indexterm><primary>Constitution, U.S.</primary><secondary>First Amendment to</secondary></indexterm>
+<indexterm><primary>copyright law</primary><secondary>as protection of creators</secondary></indexterm>
+<indexterm><primary>First Amendment</primary></indexterm>
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<para>
These values built a tradition that, for at least the first 180 years of
our Republic, guaranteed creators the right to build freely upon their
control. The First Amendment protected creators against state control.
And as Professor Neil Netanel powerfully argues,<footnote>
<para>
-Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
-Journal 106 (1996): 283.
+Neil W. Netanel, <quote>Copyright and a Democratic Civil Society,</quote> <citetitle>Yale Law
+Journal</citetitle> 106 (1996): 283.
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
</para></footnote>
copyright law, properly balanced, protected creators against private
<!-- PAGE BREAK 26. FIXME: Should "Is it" be "It is" ? -->
<para>
The story that follows is about this war. Is it not about the
-"centrality of technology" to ordinary life. I don't believe in gods,
+<quote>centrality of technology</quote> to ordinary life. I don't believe in gods,
digital or otherwise. Nor is it an effort to demonize any individual
or group, for neither do I believe in a devil, corporate or
otherwise. It is not a morality tale. Nor is it a call to jihad
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm id='idxintellectualpropertyrights' class='startofrange'><primary>intellectual property rights</primary></indexterm>
<para>
-Like the Causbys' battle, this war is, in part, about "property." The
+<emphasis role="strong">Like the Causbys'</emphasis> battle, this war is, in part, about <quote>property.</quote> The
property of this war is not as tangible as the Causbys', and no
innocent chicken has yet to lose its life. Yet the ideas surrounding
-this "property" are as obvious to most as the Causbys' claim about the
+this <quote>property</quote> are as obvious to most as the Causbys' claim about the
sacredness of their farm was to them. We are the Causbys. Most of us
take for granted the extraordinarily powerful claims that the owners
-of "intellectual property" now assert. Most of us, like the Causbys,
+of <quote>intellectual property</quote> now assert. Most of us, like the Causbys,
treat these claims as obvious. And hence we, like the Causbys, object
when a new technology interferes with this property. It is as plain to
us as it was to them that the new technologies of the Internet are
-"trespassing" upon legitimate claims of "property." It is as plain to
+<quote>trespassing</quote> upon legitimate claims of <quote>property.</quote> It is as plain to
us as it was to them that the law should intervene to stop this
trespass.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
And thus, when geeks and technologists defend their Armstrong or
Wright brothers technology, most of us are simply unsympathetic.
Common sense does not revolt. Unlike in the case of the unlucky
Causbys, common sense is on the side of the property owners in this
war. Unlike
-<!-- PAGE BREAK 27 -->
+<!--PAGE BREAK 27-->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
</para>
+<indexterm><primary>power, concentration of</primary></indexterm>
<para>
My hope is to push this common sense along. I have become increasingly
amazed by the power of this idea of intellectual property and, more
importantly, its power to disable critical thought by policy makers
and citizens. There has never been a time in our history when more of
-our "culture" was as "owned" as it is now. And yet there has never
-been a time when the concentration of power to control the uses of
-culture has been as unquestioningly accepted as it is now.
+our <quote>culture</quote> was as <quote>owned</quote> as it is now. And yet there has never
+been a time when the concentration of power to control the
+<emphasis>uses</emphasis> of culture has been as unquestioningly
+accepted as it is now.
</para>
<para>
The puzzle is, Why? Is it because we have come to understand a truth
I don't mean to be mysterious. My own views are resolved. I believe it
was right for common sense to revolt against the extremism of the
Causbys. I believe it would be right for common sense to revolt
-against the extreme claims made today on behalf of "intellectual
-property." What the law demands today is increasingly as silly as a
+against the extreme claims made today on behalf of <quote>intellectual
+property.</quote> What the law demands today is increasingly as silly as a
sheriff arresting an airplane for trespass. But the consequences of
this silliness will be much more profound.
<!-- PAGE BREAK 28 -->
</para>
+<indexterm startref='idxintellectualpropertyrights' class='endofrange'/>
<para>
-The struggle that rages just now centers on two ideas: "piracy" and
-"property." My aim in this book's next two parts is to explore these two
+<emphasis role="strong">The struggle</emphasis> that rages just now centers on two ideas: <quote>piracy</quote> and
+<quote>property.</quote> My aim in this book's next two parts is to explore these two
ideas.
</para>
<para>
<para>
The two sections set up the core claim of this book: that while the
Internet has indeed produced something fantastic and new, our
-government, pushed by big media to respond to this "something new," is
+government, pushed by big media to respond to this <quote>something new,</quote> is
destroying something very old. Rather than understanding the changes
-the Internet might permit, and rather than taking time to let "common
-sense" resolve how best to respond, we are allowing those most
+the Internet might permit, and rather than taking time to let <quote>common
+sense</quote> resolve how best to respond, we are allowing those most
threatened by the changes to use their power to change the
law—and more importantly, to use their power to change something
fundamental about who we have always been.
</para>
</chapter>
<!-- PAGE BREAK 29 -->
-<chapter id="c-piracy">
-<title>"PIRACY"</title>
-
+<part id="c-piracy">
+<title><quote>PIRACY</quote></title>
+<partintro>
<!-- PAGE BREAK 30 -->
-<indexterm id="idxmansfield1" class='startofrange'>
- <primary>Mansfield, William Murray, Lord</primary>
-</indexterm>
-<para>
-Since the inception of the law regulating creative property, there has
-been a war against "piracy." The precise contours of this concept,
-"piracy," are hard to sketch, but the animating injustice is easy to
+<indexterm><primary>copyright law</primary><secondary>English</secondary></indexterm>
+<indexterm id='idxmansfieldwilliammurraylord' class='startofrange'><primary>Mansfield, William Murray, Lord</primary></indexterm>
+<indexterm><primary>music publishing</primary></indexterm>
+<indexterm><primary>sheet music</primary></indexterm>
+<para>
+<emphasis role="strong">Since the inception</emphasis> of the law regulating creative property, there has
+been a war against <quote>piracy.</quote> The precise contours of this concept,
+<quote>piracy,</quote> are hard to sketch, but the animating injustice is easy to
capture. As Lord Mansfield wrote in a case that extended the reach of
English copyright law to include sheet music,
</para>
rob the author of the profit, by multiplying copies and disposing
of them for his own use.<footnote><para>
<!-- f1 -->
-Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777) (Mansfield).
</para></footnote>
</para>
-<indexterm startref="idxmansfield1" class='endofrange'/>
+<indexterm startref='idxmansfieldwilliammurraylord' class='endofrange'/>
</blockquote>
+<indexterm><primary>Internet</primary><secondary> efficient content distribution on</secondary></indexterm>
+<indexterm id='idxpeertopeerppfilesharingefficiencyof' class='startofrange'><primary>peer-to-peer (p2p) file sharing</primary><secondary>efficiency of</secondary></indexterm>
<para>
-Today we are in the middle of another "war" against "piracy." The
+Today we are in the middle of another <quote>war</quote> against <quote>piracy.</quote> The
Internet has provoked this war. The Internet makes possible the
efficient spread of content. Peer-to-peer (p2p) file sharing is among
the most efficient of the efficient technologies the Internet
The network doesn't discriminate between the sharing of copyrighted
and uncopyrighted content. Thus has there been a vast amount of
sharing of copyrighted content. That sharing in turn has excited the
-war, as copyright owners fear the sharing will "rob the author of the
-profit."
+war, as copyright owners fear the sharing will <quote>rob the author of the
+profit.</quote>
</para>
+<indexterm startref='idxpeertopeerppfilesharingefficiencyof' class='endofrange'/>
<para>
The warriors have turned to the courts, to the legislatures, and
-increasingly to technology to defend their "property" against this
-"piracy." A generation of Americans, the warriors warn, is being
-raised to believe that "property" should be "free." Forget tattoos,
-never mind body piercing—our kids are becoming thieves!
+increasingly to technology to defend their <quote>property</quote> against this
+<quote>piracy.</quote> A generation of Americans, the warriors warn, is being
+raised to believe that <quote>property</quote> should be <quote>free.</quote> Forget tattoos,
+never mind body piercing—our kids are becoming
+<emphasis>thieves</emphasis>!
</para>
<para>
-There's no doubt that "piracy" is wrong, and that pirates should be
+There's no doubt that <quote>piracy</quote> is wrong, and that pirates should be
punished. But before we summon the executioners, we should put this
-notion of "piracy" in some context. For as the concept is increasingly
+notion of <quote>piracy</quote> in some context. For as the concept is increasingly
used, at its core is an extraordinary idea that is almost certainly wrong.
</para>
<para>
piracy.
</para>
</blockquote>
+<indexterm><primary>ASCAP</primary></indexterm>
<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
+<indexterm><primary>Girl Scouts</primary></indexterm>
+<indexterm id='idxcreativepropertyifvaluethenrighttheoryof' class='startofrange'><primary>creative property</primary><secondary><quote>if value, then right</quote> theory of</secondary></indexterm>
+<indexterm id='idxifvaluethenrighttheory' class='startofrange'><primary><quote>if value, then right</quote> theory</primary></indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
-professor Rochelle Dreyfuss criticizes as the "if value, then right"
+professor Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote>
theory of creative property<footnote><para>
<!-- f2 -->
-See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
-in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
+See Rochelle Dreyfuss, <quote>Expressive Genericity: Trademarks as Language
+in the Pepsi Generation,</quote> <citetitle>Notre Dame Law Review</citetitle> 65 (1990): 397.
</para></footnote>
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
organization, ASCAP, to sue the Girl Scouts for failing to pay for the
songs that girls sang around Girl Scout campfires.<footnote><para>
<!-- f3 -->
-Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
-Up," Wall Street Journal, 21 August 1996, available at
+Lisa Bannon, <quote>The Birds May Sing, but Campers Can't Unless They Pay
+Up,</quote> <citetitle>Wall Street Journal</citetitle>, 21 August 1996, available at
<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.
+Zittrain, <quote>Calling Off the Copyright War: In Battle of Property vs. Free
+Speech, No One Wins,</quote> <citetitle>Boston Globe</citetitle>, 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.
+There was <quote>value</quote> (the songs) so there must have been a
+<quote>right</quote>—even against the Girl Scouts.
</para>
-<indexterm><primary>ASCAP</primary></indexterm>
+<indexterm startref='idxcreativepropertyifvaluethenrighttheoryof' class='endofrange'/>
<para>
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
<!-- PAGE BREAK 32 -->
-of law protecting creative property. But the "if value, then right"
+of law protecting creative property. But the <quote>if value, then right</quote>
theory of creative property has never been America's theory of
creative property. It has never taken hold within our law.
</para>
+<indexterm startref='idxifvaluethenrighttheory' class='endofrange'/>
+<indexterm id='idxcopyrightlawonrepublishingvstransformationoforiginalwork' class='startofrange'><primary>copyright law</primary><secondary>on republishing vs. transformation of original work</secondary></indexterm>
+<indexterm id='idxcreativitylegalrestrictionson' class='startofrange'><primary>creativity</primary><secondary>legal restrictions on</secondary></indexterm>
<para>
Instead, in our tradition, intellectual property is an instrument. It
sets the groundwork for a richly creative society but remains
the other. Copyright law at its birth had only publishing as its concern;
copyright law today regulates both.
</para>
+<indexterm startref='idxcopyrightlawonrepublishingvstransformationoforiginalwork' class='endofrange'/>
<para>
Before the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive; that
Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
</para>
+<indexterm><primary>copyright law</primary><secondary>creativity impeded by</secondary></indexterm>
<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
commercial creators but effectively that of anyone. Although that
expansion would not matter much if copyright law regulated only
-"copying," when the law regulates as broadly and obscurely as it does,
+<quote>copying,</quote> when the law regulates as broadly and obscurely as it does,
the extension matters a lot. The burden of this law now vastly
outweighs any original benefit—certainly as it affects
noncommercial creativity, and increasingly as it affects commercial
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 <quote>Rise of the Creative
+Class.</quote><footnote>
<para>
<!-- f4 -->
-In The Rise of the Creative Class (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.
</para>
+<indexterm startref='idxcreativitylegalrestrictionson' class='endofrange'/>
<para>
These burdens make no sense in our tradition. We should begin by
understanding that tradition a bit more and by placing in their proper
-context the current battles about behavior labeled "piracy."
+context the current battles about behavior labeled <quote>piracy.</quote>
</para>
+</partintro>
<!-- PAGE BREAK 34 -->
-<sect1 id="creators">
+<chapter label="1" id="creators">
<title>CHAPTER ONE: Creators</title>
-<para>
-In 1928, a cartoon character was born. An early Mickey Mouse
-made his debut in May of that year, in a silent flop called Plane Crazy.
+<indexterm id='idxanimatedcartoons' class='startofrange'><primary>animated cartoons</primary></indexterm>
+<indexterm id='idxcartoonfilms' class='startofrange'><primary>cartoon films</primary></indexterm>
+<indexterm id='idxfilmsanimated' class='startofrange'><primary>films</primary><secondary>animated</secondary></indexterm>
+<indexterm id='idxsteamboatwillie' class='startofrange'><primary>Steamboat Willie</primary></indexterm>
+<indexterm id='idxmickeymouse' class='startofrange'><primary>Mickey Mouse</primary></indexterm>
+<para>
+<emphasis role="strong">In 1928</emphasis>, a cartoon character was born. An early Mickey Mouse
+made his debut in May of that year, in a silent flop called <citetitle>Plane Crazy</citetitle>.
In November, in New York City's Colony Theater, in the first widely
-distributed cartoon synchronized with sound, Steamboat Willie brought
+distributed cartoon synchronized with sound, <citetitle>Steamboat Willie</citetitle> brought
to life the character that would become Mickey Mouse.
</para>
+<indexterm id='idxdisneywalt' class='startofrange'><primary>Disney, Walt</primary></indexterm>
<para>
Synchronized sound had been introduced to film a year earlier in the
-movie The Jazz Singer. That success led Walt Disney to copy the
+movie <citetitle>The Jazz Singer</citetitle>. That success led Walt Disney to copy the
technique and mix sound with cartoons. No one knew whether it would
work or, if it did work, whether it would win an audience. But when
Disney ran a test in the summer of 1928, the results were unambiguous.
and ran the action again. It was terrible, but it was wonderful! And
it was something new!<footnote><para>
<!-- f1 -->
-Leonard Maltin, Of Mice and Magic: A History of American Animated
-Cartoons (New York: Penguin Books, 1987), 34–35.
+Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated
+Cartoons</citetitle> (New York: Penguin Books, 1987), 34–35.
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Iwerks, Ub</primary></indexterm>
<para>
Disney's then partner, and one of animation's most extraordinary
-talents, Ub Iwerks, put it more strongly: "I have never been so thrilled
-in my life. Nothing since has ever equaled it."
-<indexterm><primary>Iwerks, Ub</primary></indexterm>
+talents, Ub Iwerks, put it more strongly: <quote>I have never been so thrilled
+in my life. Nothing since has ever equaled it.</quote>
</para>
<para>
Disney had created something very new, based upon something relatively
match. And quite often, Disney's great genius, his spark of
creativity, was built upon the work of others.
</para>
+<indexterm startref='idxdisneywalt' class='endofrange'/>
+<indexterm id='idxkeatonbuster' class='startofrange'><primary>Keaton, Buster</primary></indexterm>
+<indexterm id='idxsteamboatbilljr' class='startofrange'><primary>Steamboat Bill, Jr.</primary></indexterm>
<para>
-This much is familiar. What you might not know is that 1928 also
-marks another important transition. In that year, a comic (as opposed
-to cartoon) genius created his last independently produced silent film.
-That genius was Buster Keaton. The film was Steamboat Bill, Jr.
+This much is familiar. What you might not know is that 1928 also marks
+another important transition. In that year, a comic (as opposed to
+cartoon) genius created his last independently produced silent film.
+That genius was Buster Keaton. The film was <citetitle>Steamboat Bill, Jr</citetitle>.
</para>
<para>
-Keaton was born into a vaudeville family in 1895. In the era of
-silent film, he had mastered using broad physical comedy as a way to
-spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was
-a classic of this form, famous among film buffs for its incredible stunts.
-The film was classic Keaton—wildly popular and among the best of its
-genre.
+Keaton was born into a vaudeville family in 1895. In the era of silent
+film, he had mastered using broad physical comedy as a way to spark
+uncontrollable laughter from his audience. <citetitle>Steamboat Bill,
+Jr</citetitle>. was a classic of this form, famous among film buffs for its
+incredible stunts. The film was classic Keaton—wildly popular
+and among the best of its genre.
</para>
+<indexterm id='idxderivativeworkspiracyvs' class='startofrange'><primary>derivative works</primary><secondary>piracy vs.</secondary></indexterm>
+<indexterm id='idxpiracyderivativeworkvs' class='startofrange'><primary>piracy</primary><secondary>derivative work vs.</secondary></indexterm>
<para>
-Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
+<citetitle>Steamboat Bill, Jr</citetitle>. appeared before Disney's cartoon Steamboat
+Willie.
<!-- PAGE BREAK 36 -->
The coincidence of titles is not coincidental. Steamboat Willie is a
direct cartoon parody of Steamboat Bill,<footnote><para>
I am grateful to David Gerstein and his careful history, described at
<ulink url="http://free-culture.cc/notes/">link #4</ulink>.
According to Dave Smith of the Disney Archives, Disney paid royalties to
-use the music for five songs in Steamboat Willie: "Steamboat Bill," "The
-Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1"
-(Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the
-Straw," was already in the public domain. Letter from David Smith to
+use the music for five songs in <citetitle>Steamboat Willie</citetitle>: <quote>Steamboat Bill,</quote> <quote>The
+Simpleton</quote> (Delille), <quote>Mischief Makers</quote> (Carbonara), <quote>Joyful Hurry No. 1</quote>
+(Baron), and <quote>Gawky Rube</quote> (Lakay). A sixth song, <quote>The Turkey in the
+Straw,</quote> was already in the public domain. Letter from David Smith to
Harry Surden, 10 July 2003, on file with author.
</para></footnote>
and both are built upon a common song as a source. It is not just from
-the invention of synchronized sound in The Jazz Singer that we get
-Steamboat Willie. It is also from Buster Keaton's invention of
-Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill,"
+the invention of synchronized sound in <citetitle>The Jazz Singer</citetitle> that we
+get <citetitle>Steamboat Willie</citetitle>. It is also from Buster Keaton's invention of
+Steamboat Bill, Jr., itself inspired by the song <quote>Steamboat Bill,</quote>
that we get Steamboat Willie, and then from Steamboat Willie, Mickey
Mouse.
</para>
+<indexterm startref='idxsteamboatwillie' class='endofrange'/>
+<indexterm startref='idxmickeymouse' class='endofrange'/>
+<indexterm startref='idxkeatonbuster' class='endofrange'/>
+<indexterm startref='idxsteamboatbilljr' class='endofrange'/>
+<indexterm id='idxcreativitybytransformingpreviousworks' class='startofrange'><primary>creativity</primary><secondary>by transforming previous works</secondary></indexterm>
+<indexterm id='idxdisneyinc' class='startofrange'><primary>Disney, Inc.</primary></indexterm>
<para>
-This "borrowing" was nothing unique, either for Disney or for the
+This <quote>borrowing</quote> was nothing unique, either for Disney or for the
industry. Disney was always parroting the feature-length mainstream
films of his day.<footnote><para>
<!-- f3 -->
-He was also a fan of the public domain. See Chris Sprigman, "The Mouse
-that Ate the Public Domain," Findlaw, 5 March 2002, at
+He was also a fan of the public domain. See Chris Sprigman, <quote>The Mouse
+that Ate the Public Domain,</quote> Findlaw, 5 March 2002, at
<ulink url="http://free-culture.cc/notes/">link #5</ulink>.
</para></footnote>
So did many others. Early cartoons are filled with
others before him, creating something new out of something just barely
old.
</para>
+<indexterm id='idxgrimmfairytales' class='startofrange'><primary>Grimm fairy tales</primary></indexterm>
<para>
Sometimes this borrowing was slight. Sometimes it was significant.
Think about the fairy tales of the Brothers Grimm. If you're as
made funny what was dark and injected a genuine emotion of compassion
where before there was fear. And not just with the work of the
Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
-work of others is astonishing when set together: Snow White (1937),
-Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of
-the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin
-Hood (1952), Peter Pan (1953), Lady and the Tramp
+work of others is astonishing when set together: <citetitle>Snow White</citetitle>
+(1937), <citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> (1940), <citetitle>Dumbo</citetitle>
+(1941), <citetitle>Bambi</citetitle> (1942), <citetitle>Song of the South</citetitle> (1946),
+<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in Wonderland</citetitle> (1951), <citetitle>Robin
+Hood</citetitle> (1952), <citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the Tramp</citetitle>
<!-- PAGE BREAK 37 -->
-(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
-The Sword in the Stone (1963), and The Jungle Book (1967)—not to
-mention a recent example that we should perhaps quickly forget,
-Treasure Planet (2003). In all of these cases, Disney (or Disney,
-Inc.) ripped creativity from the culture around him, mixed that
-creativity with his own extraordinary talent, and then burned that mix
-into the soul of his culture. Rip, mix, and burn.
+(1955), <citetitle>Mulan</citetitle> (1998), <citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101
+Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> (1963), and
+<citetitle>The Jungle Book</citetitle> (1967)—not to mention a recent example
+that we should perhaps quickly forget, <citetitle>Treasure Planet</citetitle>
+(2003). In all of these cases, Disney (or Disney, Inc.) ripped
+creativity from the culture around him, mixed that creativity with his
+own extraordinary talent, and then burned that mix into the soul of
+his culture. Rip, mix, and burn.
</para>
+<indexterm startref='idxgrimmfairytales' class='endofrange'/>
<para>
This is a kind of creativity. It is a creativity that we should
remember and celebrate. There are some who would say that there is no
creativity except this kind. We don't need to go that far to recognize
-its importance. We could call this "Disney creativity," though that
-would be a bit misleading. It is, more precisely, "Walt Disney
-creativity"—a form of expression and genius that builds upon the
+its importance. We could call this <quote>Disney creativity,</quote> though that
+would be a bit misleading. It is, more precisely, <quote>Walt Disney
+creativity</quote>—a form of expression and genius that builds upon the
culture around us and makes it something different.
</para>
+<indexterm startref='idxderivativeworkspiracyvs' class='endofrange'/>
+<indexterm startref='idxpiracyderivativeworkvs' class='endofrange'/>
+<indexterm startref='idxcreativitybytransformingpreviousworks' class='endofrange'/>
+<indexterm id='idxcopyrightdurationof' class='startofrange'><primary>copyright</primary><secondary>duration of</secondary></indexterm>
+<indexterm id='idxpublicdomaindefined' class='startofrange'><primary>public domain</primary><secondary>defined</secondary></indexterm>
+<indexterm id='idxpublicdomaintraditionaltermforconversionto' class='startofrange'><primary>public domain</primary><secondary>traditional term for conversion to</secondary></indexterm>
<para> In 1928, the culture that Disney was free to draw upon was
relatively fresh. The public domain in 1928 was not very old and was
therefore quite vibrant. The average term of copyright was just around
copyrighted.<footnote><para>
<!-- f4 -->
Until 1976, copyright law granted an author the possibility of two terms: an
-initial term and a renewal term. I have calculated the "average" term by
+initial term and a renewal term. I have calculated the <quote>average</quote> term by
determining
the weighted average of total registrations for any particular year,
and the proportion renewing. Thus, if 100 copyrights are registered in year
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
</para></footnote>
That means that for thirty years, on average, the authors or
-copyright holders of a creative work had an "exclusive right" to control
+copyright holders of a creative work had an <quote>exclusive right</quote> to control
certain uses of the work. To use this copyrighted work in limited ways
required the permission of the copyright owner.
</para>
<para>
At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
-permission and, hence, no lawyers. The public domain is a "lawyer-free
-zone." Thus, most of the content from the nineteenth century was free
+permission and, hence, no lawyers. The public domain is a <quote>lawyer-free
+zone.</quote> Thus, most of the content from the nineteenth century was free
for Disney to use and build upon in 1928. It was free for
anyone— whether connected or not, whether rich or not, whether
approved or not—to use and build upon.
</para>
+<indexterm startref='idxanimatedcartoons' class='endofrange'/>
+<indexterm startref='idxfilmsanimated' class='endofrange'/>
<para>
This is the ways things always were—until quite recently. For most
of our history, the public domain was just over the horizon. From
permission. Yet today, the public domain is presumptive only for
content from before the Great Depression.
</para>
+<indexterm startref='idxcartoonfilms' class='endofrange'/>
+<indexterm startref='idxdisneyinc' class='endofrange'/>
+<indexterm startref='idxcopyrightdurationof' class='endofrange'/>
+<indexterm startref='idxpublicdomaindefined' class='endofrange'/>
+<indexterm startref='idxpublicdomaintraditionaltermforconversionto' class='endofrange'/>
+<indexterm><primary>Disney, Walt</primary></indexterm>
<para>
-Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+<emphasis role="strong">Of course</emphasis>, Walt Disney had no monopoly on <quote>Walt Disney creativity.</quote>
Nor does America. The norm of free culture has, until recently, and
except within totalitarian nations, been broadly exploited and quite
universal.
</para>
+<indexterm id='idxcomicsjapanese' class='startofrange'><primary>comics, Japanese</primary></indexterm>
+<indexterm id='idxderivativeworkspiracyvs2' class='startofrange'><primary>derivative works</primary><secondary>piracy vs.</secondary></indexterm>
+<indexterm id='idxjapanesecomics' class='startofrange'><primary>Japanese comics</primary></indexterm>
+<indexterm id='idxmanga' class='startofrange'><primary>manga</primary></indexterm>
+<indexterm id='idxpiracyderivativeworkvs2' class='startofrange'><primary>piracy</primary><secondary>derivative work vs.</secondary></indexterm>
<para>
Consider, for example, a form of creativity that seems strange to many
-Americans but that is inescapable within Japanese culture: manga, or
+Americans but that is inescapable within Japanese culture: <citetitle>manga</citetitle>, or
comics. The Japanese are fanatics about comics. Some 40 percent of
publications are comics, and 30 percent of publication revenue derives
from comics. They are everywhere in Japanese society, at every
Americans tend to look down upon this form of culture. That's an
unattractive characteristic of ours. We're likely to misunderstand
much about manga, because few of us have ever read anything close to
-the stories that these "graphic novels" tell. For the Japanese, manga
-cover every aspect of social life. For us, comics are "men in tights."
+the stories that these <quote>graphic novels</quote> tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are <quote>men in tights.</quote>
And anyway, it's not as if the New York subways are filled with
readers of Joyce or even Hemingway. People of different cultures
distract themselves in different ways, the Japanese in this
variant on manga that from a lawyer's perspective is quite odd, but
from a Disney perspective is quite familiar.
</para>
+<indexterm id='idxcreativitybytransformingpreviousworks2' class='startofrange'><primary>creativity</primary><secondary>by transforming previous works</secondary></indexterm>
+<indexterm id='idxdoujinshicomics' class='startofrange'><primary>doujinshi comics</primary></indexterm>
<para>
-This is the phenomenon of doujinshi. Doujinshi are also comics, but
+This is the phenomenon of <citetitle>doujinshi</citetitle>. Doujinshi are also comics, but
they are a kind of copycat comic. A rich ethic governs the creation of
-doujinshi. It is not doujinshi if it is just a copy; the artist must make a
-contribution to the art he copies, by transforming it either subtly or
+doujinshi. It is not doujinshi if it is <emphasis>just</emphasis> a
+copy; the artist must make a contribution to the art he copies, by
+transforming it either subtly or
<!-- PAGE BREAK 39 -->
significantly. A doujinshi comic can thus take a mainstream comic and
develop it differently—with a different story line. Or the comic can
keep the character in character but change its look slightly. There is no
-formula for what makes the doujinshi sufficiently "different." But they
+formula for what makes the doujinshi sufficiently <quote>different.</quote> But they
must be different if they are to be considered true doujinshi. Indeed,
there are committees that review doujinshi for inclusion within shows
and reject any copycat comic that is merely a copy.
</para>
+<indexterm id='idxdisneywalt2' class='startofrange'><primary>Disney, Walt</primary></indexterm>
<para>
These copycat comics are not a tiny part of the manga market. They are
-huge. More than 33,000 "circles" of creators from across Japan produce
+huge. More than 33,000 <quote>circles</quote> of creators from across Japan produce
these bits of Walt Disney creativity. More than 450,000 Japanese come
together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
who control the commercial manga market to shut the doujinshi market
down. It flourishes, despite the competition and despite the law.
</para>
+<indexterm id='idxcopyrightlawjapanese' class='startofrange'><primary>copyright law</primary><secondary>Japanese</secondary></indexterm>
+<indexterm><primary>Steamboat Bill, Jr.</primary></indexterm>
<para>
The most puzzling feature of the doujinshi market, for those trained
in the law, at least, is that it is allowed to exist at all. Under
Japanese copyright law, which in this respect (on paper) mirrors
American copyright law, the doujinshi market is an illegal
-one. Doujinshi are plainly "derivative works." There is no general
+one. Doujinshi are plainly <quote>derivative works.</quote> There is no general
practice by doujinshi artists of securing the permission of the manga
creators. Instead, the practice is simply to take and modify the
-creations of others, as Walt Disney did with Steamboat Bill, Jr. Under
-both Japanese and American law, that "taking" without the permission
-of the original copyright owner is illegal. It is an infringement of
-the original copyright to make a copy or a derivative work without the
-original copyright owner's permission.
+creations of others, as Walt Disney did with <citetitle>Steamboat Bill,
+Jr</citetitle>. Under both Japanese and American law, that <quote>taking</quote> without
+the permission of the original copyright owner is illegal. It is an
+infringement of the original copyright to make a copy or a derivative
+work without the original copyright owner's permission.
</para>
-<indexterm id="idxwinickjudd" class='startofrange'>
- <primary>Winick, Judd</primary>
-</indexterm>
+<indexterm startref='idxdisneywalt2' class='endofrange'/>
+<indexterm id='idxwinickjudd' class='startofrange'><primary>Winick, Judd</primary></indexterm>
<para>
Yet this illegal market exists and indeed flourishes in Japan, and in
the view of many, it is precisely because it exists that Japanese manga
-flourish. As American graphic novelist Judd Winick said to me, "The
+flourish. As American graphic novelist Judd Winick said to me, <quote>The
early days of comics in America are very much like what's going on
-in Japan now. . . . American comics were born out of copying each
+in Japan now. … American comics were born out of copying each
<!-- PAGE BREAK 40 -->
-other. . . . That's how [the artists] learn to draw—by going into comic
-books and not tracing them, but looking at them and copying them"
+other. … That's how [the artists] learn to draw—by going into comic
+books and not tracing them, but looking at them and copying them</quote>
and building from them.<footnote><para>
<!-- f5 -->
-For an excellent history, see Scott McCloud, Reinventing Comics (New
+For an excellent history, see Scott McCloud, <citetitle>Reinventing Comics</citetitle> (New
York: Perennial, 2000).
</para></footnote>
</para>
+<indexterm startref='idxcopyrightlawjapanese' class='endofrange'/>
+<indexterm><primary>Superman comics</primary></indexterm>
<para>
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi are
-allowed. Speaking of Superman, Winick told me, "there are these rules
-and you have to stick to them." There are things Superman "cannot"
-do. "As a creator, it's frustrating having to stick to some parameters
-which are fifty years old."
+allowed. Speaking of Superman, Winick told me, <quote>there are these rules
+and you have to stick to them.</quote> There are things Superman <quote>cannot</quote>
+do. <quote>As a creator, it's frustrating having to stick to some parameters
+which are fifty years old.</quote>
</para>
-<indexterm startref="idxwinickjudd" class='endofrange'/>
+<indexterm startref='idxwinickjudd' class='endofrange'/>
+<indexterm id='idxcopyrightlawjapanese2' class='startofrange'><primary>copyright law</primary><secondary>Japanese</secondary></indexterm>
+<indexterm><primary>comics, Japanese</primary></indexterm>
+<indexterm id='idxmehrasalil' class='startofrange'><primary>Mehra, Salil</primary></indexterm>
<para>
The norm in Japan mitigates this legal difficulty. Some say it is
precisely the benefit accruing to the Japanese manga market that
wealthy and productive. Everyone would be worse off if doujinshi were
banned, so the law does not ban doujinshi.<footnote><para>
<!-- f6 -->
-See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
-Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
-Review 55 (2002): 155, 182. "[T]here might be a collective economic
+See Salil K. Mehra, <quote>Copyright and Comics in Japan: Does Law Explain
+Why All the Comics My Kid Watches Are Japanese Imports?</quote> <citetitle>Rutgers Law
+Review</citetitle> 55 (2002): 155, 182. <quote>[T]here might be a collective economic
rationality that would lead manga and anime artists to forgo bringing
legal actions for infringement. One hypothesis is that all manga
artists may be better off collectively if they set aside their
individual self-interest and decide not to press their legal
-rights. This is essentially a prisoner's dilemma solved."
+rights. This is essentially a prisoner's dilemma solved.</quote>
</para></footnote>
</para>
+<indexterm startref='idxcomicsjapanese' class='endofrange'/>
+<indexterm startref='idxjapanesecomics' class='endofrange'/>
+<indexterm startref='idxmanga' class='endofrange'/>
<para>
The problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response is not
why individual copyright owners don't sue nonetheless. If the law has
no general exception for doujinshi, and indeed in some cases
individual manga artists have sued doujinshi artists, why is there not
-a more general pattern of blocking this "free taking" by the doujinshi
+a more general pattern of blocking this <quote>free taking</quote> by the doujinshi
culture?
</para>
+<indexterm startref='idxcopyrightlawjapanese2' class='endofrange'/>
+<indexterm startref='idxmehrasalil' class='endofrange'/>
<para>
I spent four wonderful months in Japan, and I asked this question
as often as I could. Perhaps the best account in the end was offered by
-a friend from a major Japanese law firm. "We don't have enough
-lawyers," he told me one afternoon. There "just aren't enough resources
-to prosecute cases like this."
+a friend from a major Japanese law firm. <quote>We don't have enough
+lawyers,</quote> he told me one afternoon. There <quote>just aren't enough resources
+to prosecute cases like this.</quote>
</para>
<para>
This is a theme to which we will return: that regulation by law is a
uncompensated sharing? Does piracy here hurt the victims of the
piracy, or does it help them? Would lawyers fighting this piracy help
their clients or hurt them?
-Let's pause for a moment.
+</para>
+<indexterm startref='idxdoujinshicomics' class='endofrange'/>
+<para>
+<emphasis role='strong'>Let's pause</emphasis> for a moment.
</para>
<para>
If you're like I was a decade ago, or like most people are when they
be puzzled about something you hadn't thought through before.
</para>
<para>
-We live in a world that celebrates "property." I am one of those
+We live in a world that celebrates <quote>property.</quote> I am one of those
celebrants. I believe in the value of property in general, and I also
believe in the value of that weird form of property that lawyers call
-
"intellectual property."<footnote><para>
+
<quote>intellectual property.</quote><footnote><para>
<!-- f7 -->
-The term intellectual property is of relatively recent origin. See
-Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York
-University Press, 2001). See also Lawrence Lessig, The Future of Ideas
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+The term <citetitle>intellectual property</citetitle> is of relatively recent origin. See
+Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 11 (New York: New York
+University Press, 2001). See also Lawrence Lessig, <citetitle>The Future of Ideas</citetitle>
(New York: Random House, 2001), 293 n. 26. The term accurately
-describes a set of "property" rights—copyright, patents,
+describes a set of <quote>property</quote> rights—copyright, patents,
trademark, and trade-secret—but the nature of those rights is
very different.
</para></footnote>
diverse, and modern society cannot flourish without intellectual
property.
</para>
+<indexterm id='idxdisneywalt3' class='startofrange'><primary>Disney, Walt</primary></indexterm>
+<indexterm id='idxgrimmfairytales2' class='startofrange'><primary>Grimm fairy tales</primary></indexterm>
+<indexterm><primary>Keaton, Buster</primary></indexterm>
<para>
But it takes just a second's reflection to realize that there is
-plenty of value out there that "property" doesn't capture. I don't
-mean "money can't buy you love," but rather, value that is plainly
+plenty of value out there that <quote>property</quote> doesn't capture. I don't
+mean <quote>money can't buy you love,</quote> but rather, value that is plainly
part of a process of production, including commercial as well as
noncommercial production. If Disney animators had stolen a set of
pencils to draw Steamboat Willie, we'd have no hesitation in
unnoticed. Yet there was nothing wrong, at least under the law of the
day, with Disney's taking from Buster Keaton or from the Brothers
Grimm. There was nothing wrong with the taking from Keaton because
-Disney's use would have been considered "fair." There was nothing
+Disney's use would have been considered <quote>fair.</quote> There was nothing
wrong with the taking from the Grimms because the Grimms' work was in
the public domain.
</para>
+<indexterm id='idxfreeculturederivativeworksbasedon' class='startofrange'><primary>free culture</primary><secondary>derivative works based on</secondary></indexterm>
<para>
Thus, even though the things that Disney took—or more generally,
the things taken by anyone exercising Walt Disney creativity—are
things remain free for the taking within a free culture, and that
freedom is good.
</para>
+<indexterm startref='idxgrimmfairytales2' class='endofrange'/>
+<indexterm id='idxcopyrightlawjapanese3' class='startofrange'><primary>copyright law</primary><secondary>Japanese</secondary></indexterm>
+<indexterm><primary>comics, Japanese</primary></indexterm>
+<indexterm id='idxdoujinshicomics2' class='startofrange'><primary>doujinshi comics</primary></indexterm>
+<indexterm id='idxjapanesecomics2' class='startofrange'><primary>Japanese comics</primary></indexterm>
+<indexterm id='idxmanga2' class='startofrange'><primary>manga</primary></indexterm>
<para>
The same with the doujinshi culture. If a doujinshi artist broke into
a publisher's office and ran off with a thousand copies of his latest
have stolen something of value. The law bans that stealing in whatever
form, whether large or small.
</para>
+<indexterm startref='idxcreativitybytransformingpreviousworks2' class='endofrange'/>
<para>
Yet there is an obvious reluctance, even among Japanese lawyers, to
-say that the copycat comic artists are "stealing." This form of Walt
+say that the copycat comic artists are <quote>stealing.</quote> This form of Walt
Disney creativity is seen as fair and right, even if lawyers in
particular find it hard to say why.
</para>
+<indexterm startref='idxderivativeworkspiracyvs2' class='endofrange'/>
+<indexterm startref='idxpiracyderivativeworkvs2' class='endofrange'/>
+<indexterm startref='idxcopyrightlawjapanese3' class='endofrange'/>
+<indexterm startref='idxdoujinshicomics2' class='endofrange'/>
+<indexterm startref='idxjapanesecomics2' class='endofrange'/>
+<indexterm startref='idxmanga2' class='endofrange'/>
+<indexterm><primary>Shakespeare, William</primary></indexterm>
<para>
It's the same with a thousand examples that appear everywhere once you
begin to look. Scientists build upon the work of other scientists
-without asking or paying for the privilege. ("Excuse me, Professor
+without asking or paying for the privilege. (<quote>Excuse me, Professor
Einstein, but may I have permission to use your theory of relativity
-to show that you were wrong about quantum physics?") Acting companies
+to show that you were wrong about quantum physics?</quote>) Acting companies
perform adaptations of the works of Shakespeare without securing
-permission from anyone. (Does anyone believe Shakespeare would be
-better spread within our culture if there were a central Shakespeare
-rights clearinghouse that all productions of Shakespeare must appeal
-to first?) And Hollywood goes through cycles with a certain kind of
-movie: five asteroid films in the late 1990s; two volcano disaster
-films in 1997.
+permission from anyone. (Does <emphasis>anyone</emphasis> believe
+Shakespeare would be better spread within our culture if there were a
+central Shakespeare rights clearinghouse that all productions of
+Shakespeare must appeal to first?) And Hollywood goes through cycles
+with a certain kind of movie: five asteroid films in the late 1990s;
+two volcano disaster films in 1997.
</para>
<para>
Creators here and everywhere are always and at all times building
societies more fully than unfree, perhaps, but all societies to some degree.
<!-- PAGE BREAK 43 -->
</para>
+<indexterm startref='idxdisneywalt3' class='endofrange'/>
<para>
-The hard question is therefore not whether a culture is free. All
-cultures are free to some degree. The hard question instead is "How
-free is this culture?" How much, and how broadly, is the culture free
-for others to take and build upon? Is that freedom limited to party
-members? To members of the royal family? To the top ten corporations
-on the New York Stock Exchange? Or is that freedom spread broadly? To
-artists generally, whether affiliated with the Met or not? To
-musicians generally, whether white or not? To filmmakers generally,
-whether affiliated with a studio or not?
+The hard question is therefore not <emphasis>whether</emphasis> a
+culture is free. All cultures are free to some degree. The hard
+question instead is <quote><emphasis>How</emphasis> free is this culture?</quote>
+How much, and how broadly, is the culture free for others to take and
+build upon? Is that freedom limited to party members? To members of
+the royal family? To the top ten corporations on the New York Stock
+Exchange? Or is that freedom spread broadly? To artists generally,
+whether affiliated with the Met or not? To musicians generally,
+whether white or not? To filmmakers generally, whether affiliated with
+a studio or not?
</para>
<para>
Free cultures are cultures that leave a great deal open for others to
build upon; unfree, or permission, cultures leave much less. Ours was a
free culture. It is becoming much less so.
</para>
+<indexterm startref='idxfreeculturederivativeworksbasedon' class='endofrange'/>
<!-- PAGE BREAK 44 -->
-</sect1>
-<sect1 id="mere-copyists">
-<title>CHAPTER TWO: "Mere Copyists"</title>
+</chapter>
+<chapter label="2" id="mere-copyists">
+<title>CHAPTER TWO: <quote>Mere Copyists</quote></title>
<indexterm><primary>Daguerre, Louis</primary></indexterm>
+<indexterm id='idxcameratechnology' class='startofrange'><primary>camera technology</primary></indexterm>
+<indexterm id='idxphotography' class='startofrange'><primary>photography</primary></indexterm>
<para>
-In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call "photographs." Appropriately enough, they
-were called "daguerreotypes." The process was complicated and
+<emphasis role='strong'>In 1839</emphasis>, Louis Daguerre invented
+the first practical technology for producing what we would call
+<quote>photographs.</quote> Appropriately enough, they were called
+<quote>daguerreotypes.</quote> The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
Association that helped regulate the industry, as do all such
associations, by keeping competition down so as to keep prices up.)
</para>
+<indexterm><primary>Talbot, William</primary></indexterm>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
This pushed inventors to find simpler and cheaper ways to make
-"automatic pictures." William Talbot soon discovered a process for
-making "negatives." But because the negatives were glass, and had to
+<quote>automatic pictures.</quote> William Talbot soon discovered a process for
+making <quote>negatives.</quote> But because the negatives were glass, and had to
be kept wet, the process still remained expensive and cumbersome. In
the 1870s, dry plates were developed, making it easier to separate the
taking of a picture from its developing. These were still plates of
glass, and thus it was still not a process within reach of most
amateurs.
</para>
-<indexterm id="idxeastmangeorge" class='startofrange'>
- <primary>Eastman, George</primary>
-</indexterm>
+<indexterm id='idxeastmangeorge' class='startofrange'><primary>Eastman, George</primary></indexterm>
<para>
The technological change that made mass photography possible
didn't happen until 1888, and was the creation of a single man. George
lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
</para>
+<indexterm id='idxkodakcameras' class='startofrange'><primary>Kodak cameras</primary></indexterm>
+<indexterm id='idxkodakprimertheeastman' class='startofrange'><primary>Kodak Primer, The (Eastman)</primary></indexterm>
<para>
Eastman developed flexible, emulsion-coated paper film and placed
rolls of it in small, simple cameras: the Kodak. The device was
-marketed on the basis of its simplicity. "You press the button and we
-do the rest.
"<footnote><para>
+marketed on the basis of its simplicity. <quote>You press the button and we
+do the rest.
</quote><footnote><para>
<!-- f1 -->
-Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
-</para></footnote> As he described in The Kodak Primer:
+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>:
</para>
<blockquote>
<para>
The principle of the Kodak system is the separation of the work that
any person whomsoever can do in making a photograph, from the work
-that only an expert can do. . . . We furnish anybody, man, woman or
+that only an expert can do. … We furnish anybody, man, woman or
child, who has sufficient intelligence to point a box straight and
press a button, with an instrument which altogether removes from the
practice of photography the necessity for exceptional facilities or,
chemicals.<footnote>
<para>
<!-- f2 -->
-Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
-1977), 53.
<indexterm><primary>Coe, Brian</primary></indexterm>
+Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: Taplinger Publishing,
+1977), 53.
</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxkodakprimertheeastman' class='endofrange'/>
<para>
For $25, anyone could make pictures. The camera came preloaded
with film, and when it had been used, the camera was returned to an
popular photography. Eastman's camera first went on sale in 1888; one
year later, Kodak was printing more than six thousand negatives a day.
From 1888 through 1909, while industrial production was rising by 4.7
-percent, photographic equipment and material sales increased by
+percent, photographic equipment and material sales increased by 11
percent.<footnote><para>
<!-- f3 -->
Jenkins, 177.
economic. It was social. Professional photography gave individuals a
glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had
-never been able to do before. As author Brian Coe notes, "For the
+never been able to do before. As author Brian Coe notes, <quote>For the
first time the snapshot album provided the man on the street with a
-permanent record of his family and its activities. . . . For the first
+permanent record of his family and its activities. … For the first
time in history there exists an authentic visual record of the
appearance and activities of the common man made without [literary]
-interpretation or bias.
"<footnote><para>
+interpretation or bias.
</quote><footnote><para>
<!-- f5 -->
Coe, 58.
</para></footnote>
</para>
+<indexterm><primary>democracy</primary><secondary>in technologies of expression</secondary></indexterm>
+<indexterm><primary>expression, technologies of</primary><secondary>democratic</secondary></indexterm>
<para>
In this way, the Kodak camera and film were technologies of
expression. The pencil or paintbrush was also a technology of
expression, of course. But it took years of training before they could
be deployed by amateurs in any useful or effective way. With the
Kodak, expression was possible much sooner and more simply. The
-barrier to expression was lowered. Snobs would sneer at its "quality";
+barrier to expression was lowered. Snobs would sneer at its <quote>quality</quote>;
professionals would discount it as irrelevant. But watch a child study
how best to frame a picture and you get a sense of the experience of
creativity that the Kodak enabled. Democratic tools gave ordinary
people a way to express themselves more easily than any tools could
have before.
</para>
+<indexterm startref='idxkodakcameras' class='endofrange'/>
+<indexterm id='idxpermissionsphotographyexemptedfrom' class='startofrange'><primary>permissions</primary><secondary>photography exempted from</secondary></indexterm>
<para>
What was required for this technology to flourish? Obviously,
Eastman's genius was an important part. But also important was the
required permission before he could capture and print whatever image
he wanted. Their answer was no.<footnote><para>
<!-- f6 -->
-For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E.
+For illustrative cases, see, for example, <citetitle>Pavesich</citetitle>
+v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905);
+<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, 123090 S.W. 364, 366
+(Ky. 1909); <citetitle>Corliss</citetitle> v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass.
+Dist. Ct. 1894).
</para></footnote>
</para>
+<indexterm startref='idxcameratechnology' class='endofrange'/>
+<indexterm id='idxdisneywalt4' class='startofrange'><primary>Disney, Walt</primary></indexterm>
+<indexterm id='idximagesownershipof' class='startofrange'><primary>images, ownership of</primary></indexterm>
<para>
The arguments in favor of requiring permission will sound surprisingly
-familiar. The photographer was "taking" something from the person or
+familiar. The photographer was <quote>taking</quote> something from the person or
building whose photograph he shot—pirating something of
value. Some even thought he was taking the target's soul. Just as
Disney was not free to take the pencils that his animators used to
that they thought valuable.
</para>
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<indexterm><primary>Steamboat Bill, Jr.</primary></indexterm>
+<indexterm id='idxcameratechnology2' class='startofrange'><primary>camera technology</primary></indexterm>
<para>
On the other side was an argument that should be familiar, as well.
Sure, there may be something of value being used. But citizens should
the rule should be different for images from private spaces.<footnote>
<para>
<!-- f7 -->
-Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
-Harvard Law Review 4 (1890): 193.
+Samuel D. Warren and Louis D. Brandeis, <quote>The Right to Privacy,</quote>
+<citetitle>Harvard Law Review</citetitle> 4 (1890): 193.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<indexterm><primary>Warren, Samuel D.</primary></indexterm>
</para></footnote>) It may be that this means that the photographer
gets something for nothing. Just as Disney could take inspiration from
-Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
+<citetitle>Steamboat Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
</para>
+<indexterm startref='idxdisneywalt4' class='endofrange'/>
<para>
Fortunately for Mr. Eastman, and for photography in general, these
early decisions went in favor of the pirates. In general, no
us. But in the ordinary case, the image can be captured without
clearing the rights to do the capturing.<footnote><para>
<!-- f8 -->
-See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
-Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
-Review 48 (1960) 398–407; White v. Samsung Electronics America,
-Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
+See Melville B. Nimmer, <quote>The Right of Publicity,</quote> <citetitle>Law and Contemporary
+Problems</citetitle> 19 (1954): 203; William L. Prosser, <quote>Privacy,</quote> <citetitle>California Law
+Review</citetitle> 48 (1960) 398–407; <citetitle>White</citetitle> v. <citetitle>Samsung Electronics America,
+Inc</citetitle>., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
(1993).
</para></footnote>)
</para>
+<indexterm><primary>Kodak cameras</primary></indexterm>
+<indexterm><primary>Napster</primary></indexterm>
<para>
We can only speculate about how photography would have developed had
the law gone the other way. If the presumption had been against the
permission. Perhaps Eastman Kodak would have had to demonstrate
permission, too, before it developed the film upon which images were
captured. After all, if permission were not granted, then Eastman
-Kodak would be benefiting from the "theft" committed by the
+Kodak would be benefiting from the <quote>theft</quote> committed by the
photographer. Just as Napster benefited from the copyright
infringements committed by Napster users, Kodak would be benefiting
-from the "image-right" infringement of its photographers. We could
+from the <quote>image-right</quote> infringement of its photographers. We could
imagine the law then requiring that some form of permission be
demonstrated before a company developed pictures. We could imagine a
system developing to demonstrate that permission.
</para>
+<indexterm startref='idxcameratechnology2' class='endofrange'/>
+<indexterm id='idxcameratechnology3' class='startofrange'><primary>camera technology</primary></indexterm>
+<indexterm><primary>democracy</primary><secondary>in technologies of expression</secondary></indexterm>
+<indexterm><primary>expression, technologies of</primary><secondary>democratic</secondary></indexterm>
<para>
<!-- PAGE BREAK 48 -->
photography to ordinary people would not have occurred. Nothing like
that growth would have been realized. And certainly, nothing like that
growth in a democratic technology of expression would have been
-realized. If you drive through San Francisco's Presidio, you might
-see two gaudy yellow school buses painted over with colorful and
-striking images, and the logo "Just Think!" in place of the name of a
-school. But there's little that's "just" cerebral in the projects that
-these busses enable. These buses are filled with technologies that
-teach kids to tinker with film. Not the film of Eastman. Not even the
-film of your VCR. Rather the "film" of digital cameras. Just Think!
-is a project that enables kids to make films, as a way to understand
-and critique the filmed culture that they find all around them. Each
-year, these busses travel to more than thirty schools and enable three
-hundred to five hundred children to learn something about media by
-doing something with media. By doing, they think. By tinkering, they
-learn.
-</para>
-<indexterm startref="idxeastmangeorge" class='endofrange'/>
+realized.
+</para>
+<indexterm startref='idxphotography' class='endofrange'/>
+<indexterm startref='idxeastmangeorge' class='endofrange'/>
+<indexterm startref='idxpermissionsphotographyexemptedfrom' class='endofrange'/>
+<indexterm startref='idximagesownershipof' class='endofrange'/>
+<indexterm><primary>digital cameras</primary></indexterm>
+<indexterm id='idxjustthink' class='startofrange'><primary>Just Think!</primary></indexterm>
+<para>
+<emphasis role='strong'>If you drive</emphasis> through San
+Francisco's Presidio, you might see two gaudy yellow school buses
+painted over with colorful and striking images, and the logo
+<quote>Just Think!</quote> in place of the name of a school. But
+there's little that's <quote>just</quote> cerebral in the projects
+that these busses enable. These buses are filled with technologies
+that teach kids to tinker with film. Not the film of Eastman. Not even
+the film of your VCR. Rather the <quote>film</quote> of digital
+cameras. Just Think! is a project that enables kids to make films, as
+a way to understand and critique the filmed culture that they find all
+around them. Each year, these busses travel to more than thirty
+schools and enable three hundred to five hundred children to learn
+something about media by doing something with media. By doing, they
+think. By tinkering, they learn.
+</para>
+<indexterm id='idxeducationinmedialiteracy' class='startofrange'><primary>education</primary><secondary>in media literacy</secondary></indexterm>
+<indexterm id='idxmedialiteracy' class='startofrange'><primary>media literacy</primary></indexterm>
+<indexterm id='idxexpressiontechnologiesofmedialiteracyand' class='startofrange'><primary>expression, technologies of</primary><secondary>media literacy and</secondary></indexterm>
<para>
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
-fallen dramatically. As one analyst puts it, "Five years ago, a good
+fallen dramatically. As one analyst puts it, <quote>Five years ago, a good
real-time digital video editing system cost $25,000. Today you can get
-professional quality for $595.
"<footnote><para>
+professional quality for $595.
</quote><footnote><para>
<!-- f9 -->
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
-Software You Need to Create Digital Multimedia Presentations,"
+H. Edward Goldberg, <quote>Essential Presentation Tools: Hardware and
+Software You Need to Create Digital Multimedia Presentations,</quote>
cadalyst, February 2002, available at
<ulink url="http://free-culture.cc/notes/">link #7</ulink>.
</para></footnote>
These buses are filled with technology that would have cost hundreds
of thousands just ten years ago. And it is now feasible to imagine not
just buses like this, but classrooms across the country where kids are
-learning more and more of something teachers call "media literacy."
+learning more and more of something teachers call <quote>media literacy.</quote>
</para>
+<indexterm><primary>Yanofsky, Dave</primary></indexterm>
<para>
<!-- PAGE BREAK 49 -->
-"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
+<quote>Media literacy,</quote> as Dave Yanofsky, the executive director of Just
+Think!, puts it, <quote>is the ability … to understand, analyze, and
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>
+the way people access it.</quote>
</para>
+<indexterm startref='idxjustthink' class='endofrange'/>
<para>
-This may seem like an odd way to think about "literacy." For most
+This may seem like an odd way to think about <quote>literacy.</quote> For most
people, literacy is about reading and writing. Faulkner and Hemingway
-and noticing split infinitives are the things that "literate" people know
+and noticing split infinitives are the things that <quote>literate</quote> people know
about.
</para>
+<indexterm><primary>advertising</primary></indexterm>
+<indexterm><primary>commercials</primary></indexterm>
+<indexterm><primary>television</primary><secondary>advertising on</secondary></indexterm>
<para>
Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
commercials generally,<footnote><para>
<!-- f10 -->
-Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
-Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
-Study," Denver Post, 25 May 1997, B6.
+Judith Van Evra, <citetitle>Television and Child Development</citetitle> (Hillsdale, N.J.:
+Lawrence Erlbaum Associates, 1990); <quote>Findings on Family and TV
+Study,</quote> <citetitle>Denver Post</citetitle>, 25 May 1997, B6.
</para></footnote>
-it is increasingly important to understand the "grammar" of media. For
+it is increasingly important to understand the <quote>grammar</quote> of media. For
just as there is a grammar for the written word, so, too, is there one
for media. And just as kids learn how to write by writing lots of
terrible prose, kids learn how to write media by constructing lots of
of how media works, how it holds an audience or leads it through a
story, how it triggers emotion or builds suspense.
</para>
+<indexterm startref='idxcameratechnology3' class='endofrange'/>
<para>
It took filmmaking a generation before it could do these things well.
But even then, the knowledge was in the filming, not in writing about
reflecting upon what one has written. One learns to write with images
by making them and then reflecting upon what one has created.
</para>
+<indexterm id='idxdaleyelizabeth' class='startofrange'><primary>Daley, Elizabeth</primary></indexterm>
<indexterm><primary>Crichton, Michael</primary></indexterm>
<para>
This grammar has changed as media has changed. When it was just film,
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
-texture."<footnote>
+about <quote>the placement of objects, color, … rhythm, pacing, and
+texture.</quote><footnote>
<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
<indexterm><primary>Daley, Elizabeth</primary></indexterm>
</para></footnote>
But as computers open up an interactive space where a story is
-"played" as well as experienced, that grammar changes. The simple
+<quote>played</quote> as well as experienced, that grammar changes. The simple
control of narrative is lost, and so other techniques are necessary. Author
Michael Crichton had mastered the narrative of science fiction.
But when he tried to design a computer game based on one of his
a game without their feeling they have been led was not obvious, even
to a wildly successful author.<footnote><para>
<!-- f12 -->
-See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
+See Scott Steinberg, <quote>Crichton Gets Medieval on PCs,</quote> E!online, 4
November 2000, available at
-<ulink url="http://free-culture.cc/notes/">link #8</ulink>; "Timeline," 22 November 2000,
+<ulink url="http://free-culture.cc/notes/">link #8</ulink>; <quote>Timeline,</quote> 22 November 2000,
available at
<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
</para></footnote>
<indexterm><primary>computer games</primary></indexterm>
<para>
This skill is precisely the craft a filmmaker learns. As Daley
-describes, "people are very surprised about how they are led through a
+describes, <quote>people are very surprised about how they are led through a
film. [I]t is perfectly constructed to keep you from seeing it, so you
have no idea. If a filmmaker succeeds you do not know how you were
-led." If you know you were led through a film, the film has failed.
+led.</quote> If you know you were led through a film, the film has failed.
</para>
<para>
Yet the push for an expanded literacy—one that goes beyond text
</para>
</blockquote>
<para>
-"Read-only." Passive recipients of culture produced elsewhere.
+<quote>Read-only.</quote> Passive recipients of culture produced elsewhere.
Couch potatoes. Consumers. This is the world of media from the
twentieth century.
</para>
the tools that enable the writing to lead or mislead. The aim of any
literacy,
<!-- PAGE BREAK 51 -->
-and this literacy in particular, is to "empower people to choose the
+and this literacy in particular, is to <quote>empower people to choose the
appropriate language for what they need to create or
-express."<footnote>
+express.</quote><footnote>
<para>
<!-- f13 -->
Interview with Daley and Barish.
<indexterm><primary>Barish, Stephanie</primary></indexterm>
-</para></footnote> It is to enable students "to communicate in the
-language of the twenty-first century.
"<footnote><para>
+</para></footnote> It is to enable students <quote>to communicate in the
+language of the twenty-first century.
</quote><footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
</para>
-<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<indexterm
id='idxbarishstephanie' class='startofrange'><primary>Barish, Stephanie</primary></indexterm>
<para>
As with any language, this language comes more easily to some than to
others. It doesn't necessarily come more easily to those who excel in
opportunity to use film to express meaning about something the
students know something about—gun violence.
</para>
+<indexterm startref='idxdaleyelizabeth' class='endofrange'/>
<para>
The class was held on Friday afternoons, and it created a relatively
new problem for the school. While the challenge in most classes was
getting the kids to come, the challenge in this class was keeping them
-away. The "kids were showing up at 6 A.M. and leaving at 5 at night,"
+away. The <quote>kids were showing up at 6 A.M. and leaving at 5 at night,</quote>
said Barish. They were working harder than in any other class to do
what education should be about—learning how to express themselves.
</para>
<para>
-Using whatever "free web stuff they could find," and relatively simple
-tools to enable the kids to mix "image, sound, and text," Barish said
+Using whatever <quote>free web stuff they could find,</quote> and relatively simple
+tools to enable the kids to mix <quote>image, sound, and text,</quote> Barish said
this class produced a series of projects that showed something about
gun violence that few would otherwise understand. This was an issue
-close to the lives of these students. The project "gave them a tool
+close to the lives of these students. The project <quote>gave them a tool
and empowered them to be able to both understand it and talk about
-it," Barish explained. That tool succeeded in creating
+it,</quote> Barish explained. That tool succeeded in creating
expression—far more successfully and powerfully than could have
-been created using only text. "If you had said to these students, `you
+been created using only text. <quote>If you had said to these students, `you
have to do it in text,' they would've just thrown their hands up and
-gone and done something else," Barish described, in part, no doubt,
+gone and done something else,</quote> Barish described, in part, no doubt,
because expressing themselves in text is not something these students
-can do well. Yet neither is text a form in which these ideas can be
-expressed well. The power of this message depended upon its connection
-to this form of expression.
+can do well. Yet neither is text a form in which
+<emphasis>these</emphasis> ideas can be expressed well. The power of
+this message depended upon its connection to this form of expression.
</para>
+<indexterm startref='idxbarishstephanie' class='endofrange'/>
+<indexterm id='idxdaleyelizabeth2' class='startofrange'><primary>Daley, Elizabeth</primary></indexterm>
<para>
<!-- PAGE BREAK 52 -->
-"But isn't education about teaching kids to write?" I asked. In part,
+<quote>But isn't education about teaching kids to write?</quote> I asked. In part,
of course, it is. But why are we teaching kids to write? Education,
-Daley explained, is about giving students a way of "constructing
-meaning." To say that that means just writing is like saying teaching
+Daley explained, is about giving students a way of <quote>constructing
+meaning.</quote> To say that that means just writing is like saying teaching
writing is only about teaching kids how to spell. Text is one
part—and increasingly, not the most powerful part—of
constructing meaning. As Daley explained in the most moving part of
video, he can play a video game, he can do graffiti all over your
walls, he can take your car apart, and he can do all sorts of other
things. He just can't read your text. So Johnny comes to school and
-you say, "Johnny, you're illiterate. Nothing you can do matters."
+you say, <quote>Johnny, you're illiterate. Nothing you can do matters.</quote>
Well, Johnny then has two choices: He can dismiss you or he [can]
dismiss himself. If his ego is healthy at all, he's going to dismiss
-you. [But i]nstead, if you say, "Well, with all these things that you
+you. [But i]nstead, if you say, <quote>Well, with all these things that you
can do, let's talk about this issue. Play for me music that you think
reflects that, or show me images that you think reflect that, or draw
-for me something that reflects that." Not by giving a kid a video
-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
+for me something that reflects that.</quote> Not by giving a kid a video
+camera and … saying, <quote>Let's go have fun with the video camera and
+make a little movie.</quote> 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>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
That empowers enormously. And then what happens, of
course, is eventually, as it has happened in all these classes, they
-bump up against the fact, "I need to explain this and I really need
-to write something." And as one of the teachers told Stephanie,
+bump up against the fact, <quote>I need to explain this and I really need
+to write something.</quote> And as one of the teachers told Stephanie,
they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
</para>
<para>
your hoops. They actually needed to use a language that they
<!-- PAGE BREAK 53 -->
didn't speak very well. But they had come to understand that they
-had a lot of power with this language."
+had a lot of power with this language.
</para>
+<!-- FIXME removed a " from the end of the previous paragraph that did
+ not match with any start quote. -->
</blockquote>
-<para>
-When two planes crashed into the World Trade Center, another into the
-Pentagon, and a fourth into a Pennsylvania field, all media around the
-world shifted to this news. Every moment of just about every day for
-that week, and for weeks after, television in particular, and media
-generally, retold the story of the events we had just witnessed. The
-telling was a retelling, because we had seen the events that were
-described. The genius of this awful act of terrorism was that the
-delayed second attack was perfectly timed to assure that the whole
-world would be watching.
+<indexterm startref='idxeducationinmedialiteracy' class='endofrange'/>
+<indexterm startref='idxmedialiteracy' class='endofrange'/>
+<indexterm startref='idxexpressiontechnologiesofmedialiteracyand' class='endofrange'/>
+<indexterm startref='idxdaleyelizabeth2' class='endofrange'/>
+<indexterm id='idxseptemberterroristattacksof' class='startofrange'><primary>September 11, 2001, terrorist attacks of</primary></indexterm>
+<indexterm><primary>World Trade Center</primary></indexterm>
+<indexterm id='idxnewscoverage' class='startofrange'><primary>news coverage</primary></indexterm>
+<para>
+<emphasis role='strong'>When two planes</emphasis> crashed into the
+World Trade Center, another into the Pentagon, and a fourth into a
+Pennsylvania field, all media around the world shifted to this
+news. Every moment of just about every day for that week, and for
+weeks after, television in particular, and media generally, retold the
+story of the events we had just witnessed. The telling was a
+retelling, because we had seen the events that were described. The
+genius of this awful act of terrorism was that the delayed second
+attack was perfectly timed to assure that the whole world would be
+watching.
</para>
<para>
These retellings had an increasingly familiar feel. There was music
scored for the intermissions, and fancy graphics that flashed across
-the screen. There was a formula to interviews. There was "balance,"
+the screen. There was a formula to interviews. There was <quote>balance,</quote>
and seriousness. This was news choreographed in the way we have
-increasingly come to expect it, "news as entertainment," even if the
+increasingly come to expect it, <quote>news as entertainment,</quote> even if the
entertainment is tragedy.
</para>
<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>CBS</primary></indexterm>
<para>
-But in addition to this produced news about the "tragedy of September
-11," those of us tied to the Internet came to see a very different
+But in addition to this produced news about the <quote>tragedy of September
+11,</quote> those of us tied to the Internet came to see a very different
production as well. The Internet was filled with accounts of the same
events. Yet these Internet accounts had a very different flavor. Some
people constructed photo pages that captured images from around the
letters. There were sound recordings. There was anger and frustration.
There were attempts to provide context. There was, in short, an
extraordinary worldwide barn raising, in the sense Mike Godwin uses
-the term in his book Cyber Rights, around a news event that had
+the term in his book <citetitle>Cyber Rights</citetitle>, around a news event that had
captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
</para>
+<indexterm startref='idxseptemberterroristattacksof' class='endofrange'/>
<para>
I don't mean simply to praise the Internet—though I do think the
people who supported this form of speech should be praised. I mean
Kodak, the Internet enables people to capture images. And like in a
movie
<!-- PAGE BREAK 54 -->
-by a student on the "Just Think!" bus, the visual images could be mixed
+by a student on the <quote>Just Think!</quote> bus, the visual images could be mixed
with sound or text.
</para>
<para>
that this mix of captured images, sound, and commentary can be widely
spread practically instantaneously.
</para>
+<indexterm><primary>September 11, 2001, terrorist attacks of</primary></indexterm>
+<indexterm id='idxblogsweblogs' class='startofrange'><primary>blogs (Web-logs)</primary></indexterm>
+<indexterm id='idxinternetblogson' class='startofrange'><primary>Internet</primary><secondary>blogs on</secondary></indexterm>
+<indexterm id='idxweblogsblogs' class='startofrange'><primary>Web-logs (blogs)</primary></indexterm>
<para>
-September 11 was not an aberration. It was a beginning. Around
-the same time, a form of communication that has grown dramatically
-was just beginning to come into public consciousness: the Web-log, or
-blog. The blog is a kind of public diary, and within some cultures, such
-as in Japan, it functions very much like a diary. In those cultures, it
-records private facts in a public way—it's a kind of electronic Jerry
-Springer, available anywhere in the world.
+September 11 was not an aberration. It was a beginning. Around the
+same time, a form of communication that has grown dramatically was
+just beginning to come into public consciousness: the Web-log, or
+blog. The blog is a kind of public diary, and within some cultures,
+such as in Japan, it functions very much like a diary. In those
+cultures, it records private facts in a public way—it's a kind
+of electronic <citetitle>Jerry Springer</citetitle>, available anywhere in the world.
</para>
+<indexterm><primary>political discourse</primary></indexterm>
+<indexterm id='idxinternetpublicdiscourseconductedon' class='startofrange'><primary>Internet</primary><secondary>public discourse conducted on</secondary></indexterm>
<para>
But in the United States, blogs have taken on a very different
character. There are some who use the space simply to talk about
criticizing with or adding to them. They are arguably the most
important form of unchoreographed public discourse that we have.
</para>
+<indexterm id='idxdemocracyintechnologiesofexpression' class='startofrange'><primary>democracy</primary><secondary>in technologies of expression</secondary></indexterm>
+<indexterm id='idxelections' class='startofrange'><primary>elections</primary></indexterm>
+<indexterm id='idxexpressiontechnologiesofdemocratic' class='startofrange'><primary>expression, technologies of</primary><secondary>democratic</secondary></indexterm>
<para>
That's a strong statement. Yet it says as much about our democracy as
it does about blogs. This is the part of America that is most
in those elections. The cycle of these elections has become totally
professionalized and routinized. Most of us think this is democracy.
</para>
+<indexterm startref='idxblogsweblogs' class='endofrange'/>
+<indexterm startref='idxinternetblogson' class='endofrange'/>
+<indexterm startref='idxweblogsblogs' class='endofrange'/>
+<indexterm><primary>Tocqueville, Alexis de</primary></indexterm>
+<indexterm id='idxdemocracypublicdiscoursein' class='startofrange'><primary>democracy</primary><secondary>public discourse in</secondary></indexterm>
+<indexterm><primary>jury system</primary></indexterm>
<para>
But democracy has never just been about elections. Democracy
means rule by the people, but rule means something more than mere
elections. In our tradition, it also means control through reasoned
discourse. This was the idea that captured the imagination of Alexis
de Tocqueville, the nineteenth-century French lawyer who wrote the
-most important account of early "Democracy in America." It wasn't
+most important account of early <quote>Democracy in America.</quote> It wasn't
popular elections that fascinated him—it was the jury, an
institution that gave ordinary people the right to choose life or
death for other citizens. And most fascinating for him was that the
jury didn't just vote about the outcome they would impose. They
-deliberated. Members argued about the "right" result; they tried to
-persuade each other of the "right" result, and in criminal cases at
+deliberated. Members argued about the <quote>right</quote> result; they tried to
+persuade each other of the <quote>right</quote> result, and in criminal cases at
least, they had to agree upon a unanimous result for the process to
come to an end.<footnote><para>
<!-- f15 -->
-See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans.
-Henry Reeve (New York: Bantam Books, 2000), ch. 16.
+See, for example, Alexis de Tocqueville, <citetitle>Democracy in America</citetitle>,
+bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
</para></footnote>
</para>
+<indexterm startref='idxelections' class='endofrange'/>
<para>
Yet even this institution flags in American life today. And in its
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.<footnote><para>
<!-- f16 -->
-Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
-Political Philosophy 10 (2) (2002): 129.
+Bruce Ackerman and James Fishkin, <quote>Deliberation Day,</quote> <citetitle>Journal of
+Political Philosophy</citetitle> 10 (2) (2002): 129.
</para></footnote>
And in some towns in New England, something close to deliberation
remains. But for most of us for most of the time, there is no time or
-place for "democratic deliberation" to occur.
+place for <quote>democratic deliberation</quote> to occur.
</para>
+<indexterm id='idxpoliticaldiscourse' class='startofrange'><primary>political discourse</primary></indexterm>
<para>
More bizarrely, there is generally not even permission for it to
occur. We, the most powerful democracy in the world, have developed a
politics with people you disagree with. Political discourse becomes
isolated, and isolated discourse becomes more extreme.<footnote><para>
<!-- f17 -->
-Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
+Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton University Press, 2001),
65–80, 175, 182, 183, 192.
</para></footnote> We say what our friends want to hear, and hear very
little beyond what our friends say.
</para>
+<indexterm id='idxblogsweblogs2' class='startofrange'><primary>blogs (Web-logs)</primary></indexterm>
+<indexterm><primary>e-mail</primary></indexterm>
+<indexterm id='idxinternetblogson2' class='startofrange'><primary>Internet</primary><secondary>blogs on</secondary></indexterm>
+<indexterm id='idxweblogsblogs2' class='startofrange'><primary>Web-logs (blogs)</primary></indexterm>
+<indexterm startref='idxdemocracyintechnologiesofexpression' class='endofrange'/>
+<indexterm startref='idxexpressiontechnologiesofdemocratic' class='endofrange'/>
+<indexterm startref='idxdemocracypublicdiscoursein' class='endofrange'/>
<para>
Enter the blog. The blog's very architecture solves one part of this
problem. People post when they want to post, and people read when they
but there are many of all political stripes. And even blogs that are not
political cover political issues when the occasion merits.
</para>
+<indexterm><primary>Dean, Howard</primary></indexterm>
<para>
The significance of these blogs is tiny now, though not so tiny. The
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.
</para>
+<indexterm><primary>Lott, Trent</primary></indexterm>
+<indexterm><primary>Thurmond, Strom</primary></indexterm>
+<indexterm id='idxmediablogpressureon' class='startofrange'><primary>media</primary><secondary>blog pressure on</secondary></indexterm>
+<indexterm id='idxinternetnewseventson2' class='startofrange'><primary>Internet</primary><secondary>news events on</secondary></indexterm>
<para>
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
-"misspoke" at a party for Senator Strom Thurmond, essentially praising
+<quote>misspoke</quote> at a party for Senator Strom Thurmond, essentially praising
Thurmond's segregationist policies, he calculated correctly that this
story would disappear from the mainstream press within forty-eight
hours. It did. But he didn't calculate its life cycle in blog
space. The bloggers kept researching the story. Over time, more and
-more instances of the same "misspeaking" emerged. Finally, the story
+more instances of the same <quote>misspeaking</quote> emerged. Finally, the story
broke back into the mainstream press. In the end, Lott was forced to
resign as senate majority leader.<footnote><para>
<!-- f18 -->
-Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
+Noah Shachtman, <quote>With Incessant Postings, a Pundit Stirs the Pot,</quote> New
York Times, 16 January 2003, G5.
</para></footnote>
</para>
+<indexterm id='idxmediacommercialimperativesof' class='startofrange'><primary>media</primary><secondary>commercial imperatives of</secondary></indexterm>
<para>
This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
If they lose readers, they lose revenue. Like sharks, they must move
on.
</para>
+<indexterm startref='idxmediablogpressureon' class='endofrange'/>
+<indexterm><primary>Internet</primary><secondary>peer-generated rankings on</secondary></indexterm>
<para>
But bloggers don't have a similar constraint. They can obsess, they
can focus, they can get serious. If a particular blogger writes a
popular has been selected by a very democratic process of
peer-generated rankings.
</para>
+<indexterm startref='idxmediacommercialimperativesof' class='endofrange'/>
+<indexterm id='idxjournalism' class='startofrange'><primary>journalism</primary></indexterm>
+<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 -->
from the mainstream press. As Dave Winer, one of the fathers of this
movement and a software author for many decades, told me, another
-difference is the absence of a financial "conflict of interest." "I think you
-have to take the conflict of interest" out of journalism, Winer told me.
-"An amateur journalist simply doesn't have a conflict of interest, or the
+difference is the absence of a financial <quote>conflict of interest.</quote> <quote>I think you
+have to take the conflict of interest</quote> out of journalism, Winer told me.
+<quote>An amateur journalist simply doesn't have a conflict of interest, or the
conflict of interest is so easily disclosed that you know you can sort of
-get it out of the way."
+get it out of the way.</quote>
</para>
<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>media</primary><secondary>commercial imperatives of</secondary></indexterm>
+<indexterm><primary>Iraq war</primary></indexterm>
+<indexterm><primary>media</primary><secondary>ownership concentration in</secondary></indexterm>
<para>
These conflicts become more important as media becomes more
concentrated (more on this below). A concentrated media can hide more
<!-- f19 -->
Telephone interview with David Winer, 16 April 2003.
</para></footnote>
-It also needs to sustain a more coherent
-account. (In the middle of the Iraq war, I read a post on the Internet
-from someone who was at that time listening to a satellite uplink with
-a reporter in Iraq. The New York headquarters was telling the reporter
-over and over that her account of the war was too bleak: She needed to
-offer a more optimistic story. When she told New York that wasn't
-warranted, they told her that they were writing "the story.")
-</para>
-<para> Blog space gives amateurs a way to enter the
-debate—"amateur" not in the sense of inexperienced, but in the
-sense of an Olympic athlete, meaning not paid by anyone to give their
-reports. It allows for a much broader range of input into a story, as
-reporting on the Columbia disaster revealed, when hundreds from across
-the southwest United States turned to the Internet to retell what they
-had seen.<footnote><para>
+It also needs to sustain a more coherent account. (In the middle of
+the Iraq war, I read a post on the Internet from someone who was at
+that time listening to a satellite uplink with a reporter in Iraq. The
+New York headquarters was telling the reporter over and over that her
+account of the war was too bleak: She needed to offer a more
+optimistic story. When she told New York that wasn't warranted, they
+told her that <emphasis>they</emphasis> were writing <quote>the story.</quote>)
+</para>
+<indexterm startref='idxinternetnewseventson2' class='endofrange'/>
+<para>
+Blog space gives amateurs a way to enter the
+debate—<quote>amateur</quote> not in the sense of inexperienced,
+but in the sense of an Olympic athlete, meaning not paid by anyone to
+give their reports. It allows for a much broader range of input into a
+story, as reporting on the Columbia disaster revealed, when hundreds
+from across the southwest United States turned to the Internet to
+retell what they had seen.<footnote><para>
<!-- f20 -->
-John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
-Information Online," New York Times, 2 February 2003, A28; Staci
-D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
+John Schwartz, <quote>Loss of the Shuttle: The Internet; A Wealth of
+Information Online,</quote> <citetitle>New York Times</citetitle>, 2 February 2003, A28; Staci
+D. Kramer, <quote>Shuttle Disaster Coverage Mixed, but Strong Overall,</quote>
Online Journalism Review, 2 February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #10</ulink>.
</para></footnote>
And it drives readers to read across the range of accounts and
-"triangulate," as Winer puts it, the truth. Blogs, Winer says, are
-"communicating directly with our constituency, and the middle man is
-out of it"—with all the benefits, and costs, that might entail.
+<quote>triangulate,</quote> as Winer puts it, the truth. Blogs, Winer says, are
+<quote>communicating directly with our constituency, and the middle man is
+out of it</quote>—with all the benefits, and costs, that might entail.
</para>
<para>
Winer is optimistic about the future of journalism infected
-with blogs. "It's going to become an essential skill," Winer predicts,
+with blogs. <quote>It's going to become an essential skill,</quote> Winer predicts,
for public figures and increasingly for private figures as well. It's
-not clear that "journalism" is happy about this—some journalists
+not clear that <quote>journalism</quote> is happy about this—some journalists
have been told to curtail their blogging.<footnote>
<para>
<!-- f21 -->
-See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
-York Times, 29 September 2003, C4. ("Not all news organizations have
+<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Iraq war</primary></indexterm>
+<indexterm><primary>Olafson, Steve</primary></indexterm>
+<indexterm><primary>blogs (Web-logs)</primary></indexterm>
+See Michael Falcone, <quote>Does an Editor's Pencil Ruin a Web Log?</quote> <citetitle>New
+York Times</citetitle>, 29 September 2003, C4. (<quote>Not all news organizations have
been as accepting of employees who blog. Kevin Sites, a CNN
correspondent in Iraq who started a blog about his reporting of the
war on March 9, stopped posting 12 days later at his bosses'
-request. Last year Steve Olafson, a Houston Chronicle reporter, was
+request. Last year Steve Olafson, a <citetitle>Houston Chronicle</citetitle> reporter, was
fired for keeping a personal Web log, published under a pseudonym,
-that dealt with some of the issues and people he was covering.")
-<indexterm><primary>CNN</primary></indexterm>
+that dealt with some of the issues and people he was covering.</quote>)
</para></footnote>
-But it is clear that we are still in transition. "A
+But it is clear that we are still in transition. <quote>A
<!-- PAGE BREAK 58 -->
-lot of what we are doing now is warm-up exercises," Winer told me.
+lot of what we are doing now is warm-up exercises,</quote> Winer told me.
There is a lot that must mature before this space has its mature effect.
And as the inclusion of content in this space is the least infringing use
-of the Internet (meaning infringing on copyright), Winer said, "we will
-be the last thing that gets shut down."
+of the Internet (meaning infringing on copyright), Winer said, <quote>we will
+be the last thing that gets shut down.</quote>
</para>
+<indexterm startref='idxjournalism' class='endofrange'/>
<para>
-This speech affects democracy. Winer thinks that happens because "you
-don't have to work for somebody who controls, [for] a gatekeeper."
+This speech affects democracy. Winer thinks that happens because <quote>you
+don't have to work for somebody who controls, [for] a gatekeeper.</quote>
That is true. But it affects democracy in another way as well. As
more and more citizens express what they think, and defend it in
writing, that will change the way people understand public issues. It
happens. When there are ten million, there will be something
extraordinary to report.
</para>
+<indexterm startref='idxnewscoverage' class='endofrange'/>
+<indexterm startref='idxinternetpublicdiscourseconductedon' class='endofrange'/>
+<indexterm startref='idxpoliticaldiscourse' class='endofrange'/>
+<indexterm startref='idxblogsweblogs2' class='endofrange'/>
+<indexterm startref='idxinternetblogson2' class='endofrange'/>
+<indexterm startref='idxweblogsblogs2' class='endofrange'/>
+<indexterm startref='idxwinerdave' class='endofrange'/>
+<indexterm id='idxbrownjohnseely' class='startofrange'><primary>Brown, John Seely</primary></indexterm>
+<indexterm id='idxadvertising1' class='startofrange'><primary>advertising</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
-creation of knowledge ecologies for creating . . . innovation."
+<emphasis role='strong'>John Seely Brown</emphasis> is the chief
+scientist of the Xerox Corporation. His work, as his Web site
+describes it, is <quote>human learning and … the creation of
+knowledge ecologies for creating … innovation.</quote>
</para>
<para>
Brown thus looks at these technologies of digital creativity a bit
affect learning.
</para>
<para>
-As Brown believes, we learn by tinkering. When "a lot of us grew up,"
-he explains, that tinkering was done "on motorcycle engines, lawnmower
-engines, automobiles, radios, and so on." But digital technologies
+As Brown believes, we learn by tinkering. When <quote>a lot of us grew up,</quote>
+he explains, that tinkering was done <quote>on motorcycle engines, lawnmower
+engines, automobiles, radios, and so on.</quote> But digital technologies
enable a different kind of tinkering—with abstract ideas though
in concrete form. The kids at Just Think! not only think about how a
commercial portrays a politician; using digital technology, they can
<!-- PAGE BREAK 59 -->
take the commercial apart and manipulate it, tinker with it to see how
it does what it does. Digital technologies launch a kind of bricolage,
-or "free collage," as Brown calls it. Many get to add to or transform
+or <quote>free collage,</quote> as Brown calls it. Many get to add to or transform
the tinkering of many others.
</para>
<para>
FS/OSS technology works can tinker with the code.
</para>
<para>
-This opportunity creates a "completely new kind of learning platform,"
-as Brown describes. "As soon as you start doing that, you . . .
+This opportunity creates a <quote>completely new kind of learning platform,</quote>
+as Brown describes. <quote>As soon as you start doing that, you …
unleash a free collage on the community, so that other people can
start looking at your code, tinkering with it, trying it out, seeing
-if they can improve it." Each effort is a kind of
-apprenticeship. "Open source becomes a major apprenticeship platform."
+if they can improve it.</quote> Each effort is a kind of
+apprenticeship. <quote>Open source becomes a major apprenticeship platform.</quote>
</para>
<para>
-In this process, "the concrete things you tinker with are abstract.
-They are code." Kids are "shifting to the ability to tinker in the
+In this process, <quote>the concrete things you tinker with are abstract.
+They are code.</quote> Kids are <quote>shifting to the ability to tinker in the
abstract, and this tinkering is no longer an isolated activity that
you're doing in your garage. You are tinkering with a community
-platform. . . . You are tinkering with other people's stuff. The more
-you tinker the more you improve." The more you improve, the more you
+platform. … You are tinkering with other people's stuff. The more
+you tinker the more you improve.</quote> The more you improve, the more you
learn.
</para>
<para>
This same thing happens with content, too. And it happens in the same
collaborative way when that content is part of the Web. As Brown puts
-it, "the Web [is] the first medium that truly honors multiple forms of
-intelligence." Earlier technologies, such as the typewriter or word
+it, <quote>the Web [is] the first medium that truly honors multiple forms of
+intelligence.</quote> Earlier technologies, such as the typewriter or word
processors, helped amplify text. But the Web amplifies much more than
-text. "The Web . . . says if you are musical, if you are artistic, if
-you are visual, if you are interested in film . . . [then] there is a
+text. <quote>The Web … says if you are musical, if you are artistic, if
+you are visual, if you are interested in film … [then] there is a
lot you can start to do on this medium. [It] can now amplify and honor
-these multiple forms of intelligence."
+these multiple forms of intelligence.</quote>
</para>
+<indexterm startref='idxadvertising1' class='endofrange'/>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
Brown is talking about what Elizabeth Daley, Stephanie Barish, and
<para>
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter
-10) has developed a powerful argument in favor of the "right to
-tinker" as it applies to computer science and to knowledge in
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>)
+has developed a powerful argument in favor of the <quote>right to
+tinker</quote> as it applies to computer science and to knowledge in
general.<footnote><para>
<!-- f22 -->
-See, for example, Edward Felten and Andrew Appel, "Technological Access
-Control Interferes with Noninfringing Scholarship," Communications
-of the Association for Computer Machinery 43 (2000): 9.
+See, for example, Edward Felten and Andrew Appel, <quote>Technological Access
+Control Interferes with Noninfringing Scholarship,</quote> <citetitle>Communications
+of the Association for Computer Machinery</citetitle> 43 (2000): 9.
</para></footnote>
But Brown's concern is earlier, or younger, or more fundamental. It is
about the learning that kids can do, or can't do, because of the law.
</para>
<para>
-"This is where education in the twenty-first century is going," Brown
-explains. We need to "understand how kids who grow up digital think
-and want to learn."
+<quote>This is where education in the twenty-first century is going,</quote> Brown
+explains. We need to <quote>understand how kids who grow up digital think
+and want to learn.</quote>
</para>
<para>
-"Yet," as Brown continued, and as the balance of this book will
-evince, "we are building a legal system that completely suppresses the
-natural tendencies of today's digital kids. . . . We're building an
+<quote>Yet,</quote> as Brown continued, and as the balance of this book will
+evince, <quote>we are building a legal system that completely suppresses the
+natural tendencies of today's digital kids. … We're building an
architecture that unleashes 60 percent of the brain [and] a legal
-system that closes down that part of the brain."
+system that closes down that part of the brain.</quote>
</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
the law to close down that technology.
</para>
<para>
-"No way to run a culture," as Brewster Kahle, whom we'll meet in
-chapter 9, quipped to me in a rare moment of despondence.
+<quote>No way to run a culture,</quote> as Brewster Kahle, whom we'll meet in
+chapter <xref xrefstyle="select: labelnumber" linkend="collectors"/>,
+quipped to me in a rare moment of despondence.
</para>
<!-- PAGE BREAK 61 -->
-</sect1>
-<sect1 id="catalogs">
+</chapter>
+<chapter label="3" id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
-<para>
-In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
-a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
-His major at RPI was information technology. Though he is not a
-programmer, in October Jesse decided to begin to tinker with search
-engine technology that was available on the RPI network.
+<indexterm><primary>Jordan, Jesse</primary></indexterm>
+<indexterm><primary>RPI</primary><see>Rensselaer Polytechnic Institute (RPI)</see></indexterm>
+<indexterm id='idxrensselaer' class='startofrange'><primary>Rensselaer Polytechnic Institute (RPI)</primary></indexterm>
+<indexterm id='idxrensselaerpolytechnicinstituterpicomputernetworksearchengineof' class='startofrange'><primary>Rensselaer Polytechnic Institute (RPI)</primary><secondary>computer network search engine of</secondary></indexterm>
+<indexterm id='idxsearchengines' class='startofrange'><primary>search engines</primary></indexterm>
+<indexterm id='idxuniversitycomputernetworksppsharingon' class='startofrange'><primary>university computer networks, p2p sharing on</primary></indexterm>
+<indexterm id='idxinternetsearchenginesusedon' class='startofrange'><primary>Internet</primary><secondary>search engines used on</secondary></indexterm>
+<para>
+<emphasis role='strong'>In the fall</emphasis> of 2002, Jesse Jordan
+of Oceanside, New York, enrolled as a freshman at Rensselaer
+Polytechnic Institute, in Troy, New York. His major at RPI was
+information technology. Though he is not a programmer, in October
+Jesse decided to begin to tinker with search engine technology that
+was available on the RPI network.
</para>
<para>
RPI is one of America's foremost technological research institutions.
network is designed to enable students to get access to the Internet,
as well as more intimate access to other members of the RPI community.
</para>
+<indexterm id='idxgoogle' class='startofrange'><primary>Google</primary></indexterm>
<para>
Search engines are a measure of a network's intimacy. Google
<!-- PAGE BREAK 62 -->
brought the Internet much closer to all of us by fantastically
improving the quality of search on the network. Specialty search
-engines can do this even better. The idea of "intranet" search
+engines can do this even better. The idea of <quote>intranet</quote> search
engines, search engines that search within the network of a particular
institution, is to provide users of that institution with better
access to material from that institution. Businesses do this all the
time, enabling employees to have access to material that people
outside the business can't get. Universities do it as well.
</para>
+<indexterm startref='idxuniversitycomputernetworksppsharingon' class='endofrange'/>
+<indexterm id='idxjordanjesse' class='startofrange'><primary>Jordan, Jesse</primary></indexterm>
+<indexterm id='idxmicrosoftnetworkfilesystemof' class='startofrange'><primary>Microsoft</primary><secondary>network file system of</secondary></indexterm>
<para>
These engines are enabled by the network technology itself.
Microsoft, for example, has a network file system that makes it very
technology. It used Microsoft's network file system to build an index
of all the files available within the RPI network.
</para>
+<indexterm startref='idxgoogle' class='endofrange'/>
<para>
Jesse's wasn't the first search engine built for the RPI network.
Indeed, his engine was a simple modification of engines that others
a user could click to see if the machine holding the file was still
on-line.
</para>
+<indexterm startref='idxmicrosoftnetworkfilesystemof' class='endofrange'/>
<para>
Jesse's engine went on-line in late October. Over the following six
months, he continued to tweak it to improve its functionality. By
million files in his directory, including every type of content that might
be on users' computers.
</para>
+<indexterm startref='idxinternetsearchenginesusedon' class='endofrange'/>
<para>
Thus the index his search engine produced included pictures, which
students could use to put on their own Web sites; copies of notes or
users of the RPI network made available in a public folder of their
computer.
</para>
+<indexterm><primary>Google</primary></indexterm>
+<indexterm><primary>education</primary><secondary>tinkering as means of</secondary></indexterm>
<para>
But the index also included music files. In fact, one quarter of the
files that Jesse's search engine listed were music files. But that
environment where tinkering with technology was precisely what he was
supposed to do.
</para>
+<indexterm id='idxcopyrightinfringementlawsuitsinrecordingindustry' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>in recording industry</secondary></indexterm>
+<indexterm id='idxcopyrightinfringementlawsuitsagainststudentfilesharing' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>against student file sharing</secondary></indexterm>
+<indexterm id='idxrecordingindustrycopyrightinfringementlawsuitsof' class='startofrange'><primary>recording industry</primary><secondary>copyright infringement lawsuits of</secondary></indexterm>
+<indexterm id='idxrecordingindustryassociationofamericariaacopyrightinfringementlawsuitsfiledby' class='startofrange'><primary>Recording Industry Association of America (RIAA)</primary><secondary>copyright infringement lawsuits filed by</secondary></indexterm>
+<indexterm startref='idxrensselaerpolytechnicinstituterpicomputernetworksearchengineof' class='endofrange'/>
<para>
On April 3, 2003, Jesse was contacted by the dean of students at
RPI. The dean informed Jesse that the Recording Industry Association
them, he was increasingly astonished.
</para>
<para>
-"It was absurd," he told me. "I don't think I did anything
-wrong. . . . I don't think there's anything wrong with the search
-engine that I ran or . . . what I had done to it. I mean, I hadn't
+<quote>It was absurd,</quote> he told me. <quote>I don't think I did anything
+wrong. … I don't think there's anything wrong with the search
+engine that I ran or … what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of
pirates. I just modified the search engine in a way that would make it
-easier to use"—again, a search engine, which Jesse had not
-himself built, using the Windows filesharing system, which Jesse had
-not himself built, to enable members of the RPI community to get
-access to content, which Jesse had not himself created or posted, and
-the vast majority of which had nothing to do with music.
-</para>
+easier to use</quote>—again, a <emphasis>search engine</emphasis>,
+which Jesse had not himself built, using the Windows filesharing
+system, which Jesse had not himself built, to enable members of the
+RPI community to get access to content, which Jesse had not himself
+created or posted, and the vast majority of which had nothing to do
+with music.
+</para>
+<indexterm startref='idxsearchengines' class='endofrange'/>
+<indexterm><primary>copyright infringement lawsuits</primary><secondary>exaggerated claims of</secondary></indexterm>
+<indexterm><primary>copyright infringement lawsuits</primary><secondary>statutory damages of</secondary></indexterm>
+<indexterm id='idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>individual defendants intimidated by</secondary></indexterm>
+<indexterm><primary>statutory damages</primary></indexterm>
+<indexterm id='idxrecordingindustryassociationofamericariaaintimidationtacticsof' class='startofrange'><primary>Recording Industry Association of America (RIAA)</primary><secondary>intimidation tactics of</secondary></indexterm>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
-network and had therefore "willfully" violated copyright laws. They
+network and had therefore <quote>willfully</quote> violated copyright laws. They
<!-- PAGE BREAK 64 -->
demanded that he pay them the damages for his wrong. For cases of
-"willful infringement," the Copyright Act specifies something lawyers
-call "statutory damages." These damages permit a copyright owner to
+<quote>willful infringement,</quote> the Copyright Act specifies something lawyers
+call <quote>statutory damages.</quote> These damages permit a copyright owner to
claim $150,000 per infringement. As the RIAA alleged more than one
hundred specific copyright infringements, they therefore demanded that
Jesse pay them at least $15,000,000.
</para>
+<indexterm><primary>Michigan Technical University</primary></indexterm>
+<indexterm><primary>Princeton University</primary></indexterm>
<para>
-Similar lawsuits were brought against three other students: one
-other student at RPI, one at Michigan Technical University, and one at
+Similar lawsuits were brought against three other students: one other
+student at RPI, one at Michigan Technical University, and one at
Princeton. Their situations were similar to Jesse's. Though each case
was different in detail, the bottom line in each was exactly the same:
-huge demands for "damages" that the RIAA claimed it was entitled to.
+huge demands for <quote>damages</quote> that the RIAA claimed it was entitled to.
If you added up the claims, these four lawsuits were asking courts in
-the United States to award the plaintiffs close to $100 billion—six
-times the total profit of the film industry in 2001.<footnote><para>
+the United States to award the plaintiffs close to $100
+<emphasis>billion</emphasis>—six times the
+<emphasis>total</emphasis> profit of the film industry in
+2001.<footnote><para>
+
<!-- f1 -->
-Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
-Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
+Tim Goral, <quote>Recording Industry Goes After Campus P-2-P Networks:
+Suit Alleges $97.8 Billion in Damages,</quote> <citetitle>Professional Media Group LCC</citetitle> 6
(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
$12,000 from summer jobs and other employment. They demanded
$12,000 to dismiss the case.
</para>
+<indexterm><primary>Oppenheimer, Matt</primary></indexterm>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
refused. They wanted him to agree to an injunction that would
technology for the rest of his life. He refused. They made him
understand that this process of being sued was not going to be
pleasant. (As Jesse's father recounted to me, the chief lawyer on the
-case, Matt Oppenheimer, told Jesse, "You don't want to pay another
-visit to a dentist like me.") And throughout, the RIAA insisted it
+case, Matt Oppenheimer, told Jesse, <quote>You don't want to pay another
+visit to a dentist like me.</quote>) And throughout, the RIAA insisted it
would not settle the case until it took every penny Jesse had saved.
</para>
+<indexterm><primary>legal system, attorney costs in</primary></indexterm>
<para>
Jesse's family was outraged at these claims. They wanted to fight.
But Jesse's uncle worked to educate the family about the nature of the
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
+<indexterm><primary>recording industry</primary><secondary>artist remuneration in</secondary></indexterm>
+<indexterm><primary>Recording Industry Association of America (RIAA)</primary><secondary>lobbying power of</secondary></indexterm>
<para>
The recording industry insists this is a matter of law and morality.
Let's put the law aside for a moment and think about the morality.
<!-- f2 -->
Occupational Employment Survey, U.S. Dept. of Labor (2001)
(27–2042—Musicians and Singers). See also National Endowment for
-the Arts, More Than One in a Blue Moon (2000).
+the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000).
</para></footnote>
There are plenty of ways for the RIAA to affect
and direct policy. So where is the morality in taking money from a
student for running a search engine?<footnote><para>
<!-- f3 -->
-Douglas Lichtman makes a related point in "KaZaA and Punishment,"
-Wall Street Journal, 10 September 2003, A24.
+Douglas Lichtman makes a related point in <quote>KaZaA and Punishment,</quote>
+<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24.
</para></footnote>
</para>
+<indexterm startref='idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby' class='endofrange'/>
+<indexterm startref='idxrecordingindustryassociationofamericariaaintimidationtacticsof' class='endofrange'/>
<para>
On June 23, Jesse wired his savings to the lawyer working for the
RIAA. The case against him was then dismissed. And with this, this
<blockquote>
<para>
I was definitely not an activist [before]. I never really meant to be
-an activist. . . . [But] I've been pushed into this. In no way did I
+an activist. … [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
absurd what the RIAA has done.
</para>
</blockquote>
<para>
Jesse's parents betray a certain pride in their reluctant activist. As
-his father told me, Jesse "considers himself very conservative, and so do
-I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
+his father told me, Jesse <quote>considers himself very conservative, and so do
+I. … He's not a tree hugger. … I think it's bizarre that they would
pick on him. But he wants to let people know that they're sending the
-wrong message. And he wants to correct the record."
-</para>
+wrong message. And he wants to correct the record.</quote>
+</para>
+<indexterm startref='idxuniversitycomputernetworksppsharingon' class='endofrange'/>
+<indexterm startref='idxjordanjesse' class='endofrange'/>
+<indexterm startref='idxcopyrightinfringementlawsuitsinrecordingindustry' class='endofrange'/>
+<indexterm startref='idxcopyrightinfringementlawsuitsagainststudentfilesharing' class='endofrange'/>
+<indexterm startref='idxrecordingindustrycopyrightinfringementlawsuitsof' class='endofrange'/>
+<indexterm startref='idxrecordingindustryassociationofamericariaacopyrightinfringementlawsuitsfiledby' class='endofrange'/>
<!-- PAGE BREAK 66 -->
-</sect1>
-<sect1 id="pirates">
-<title>CHAPTER FOUR: "Pirates"</title>
-<para>
-If "piracy" means using the creative property of others without
-their permission—if "if value, then right" is true—then the history of
-the content industry is a history of piracy. Every important sector of
-"big media" today—film, records, radio, and cable TV—was born of a
-kind of piracy so defined. The consistent story is how last generation's
-pirates join this generation's country club—until now.
-</para>
-<sect2 id="film">
+</chapter>
+<chapter label="4" id="pirates">
+<title>CHAPTER FOUR: <quote>Pirates</quote></title>
+<indexterm id='idxpiracyindevelopmentofcontentindustry' class='startofrange'><primary>piracy</primary><secondary>in development of content industry</secondary></indexterm>
+<indexterm><primary><quote>if value, then right</quote> theory</primary></indexterm>
+<para>
+<emphasis role='strong'>If <quote>piracy</quote> means</emphasis>
+using the creative property of others without their
+permission—if <quote>if value, then right</quote> is
+true—then the history of the content industry is a history of
+piracy. Every important sector of <quote>big media</quote>
+today—film, records, radio, and cable TV—was born of a
+kind of piracy so defined. The consistent story is how last
+generation's pirates join this generation's country club—until
+now.
+</para>
+<section id="film">
<title>Film</title>
<para>
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- f1 -->
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
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.
+history. See also Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 87–93,
+which details Edison's <quote>adventures</quote> with copyright and patent.
</para></footnote>
Creators and directors migrated from the East Coast to California in
the early twentieth century in part to escape controls that patents
granted the inventor of filmmaking, Thomas Edison. These controls were
-exercised through a monopoly "trust," the Motion Pictures Patents
+exercised through a monopoly <quote>trust,</quote> the Motion Pictures Patents
Company, and were based on Thomas Edison's creative
property—patents. Edison formed the MPPC to exercise the rights
this creative property
with producers and theater owners using illegal equipment and
imported film stock to create their own underground market.
</para>
+<indexterm><primary>Fox, William</primary></indexterm>
+<indexterm><primary>General Film Company</primary></indexterm>
+<indexterm><primary>Picker, Randal C.</primary></indexterm>
<para>
With the country experiencing a tremendous expansion in the number of
nickelodeons, the Patents Company reacted to the independent movement
the independent William Fox who defied the Trust even after his
license was revoked.<footnote><para>
<!-- f2 -->
-J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
-Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
-posted at "The Edison Movie Monopoly: The Motion Picture Patents
-Company vs. the Independent Outlaws," available at
+J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent Motion
+Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and expanded texts
+posted at <quote>The Edison Movie Monopoly: The Motion Picture Patents
+Company vs. the Independent Outlaws,</quote> available at
<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
discussion of the economic motive behind both these limits and the
-limits imposed by Victor on phonographs, see Randal C. Picker, "From
+limits imposed by Victor on phonographs, see Randal C. Picker, <quote>From
Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
-the Propertization of Copyright" (September 2002), University of
+the Propertization of Copyright</quote> (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
-Working Paper No. 159. </para></footnote>
-<indexterm><primary>General Film Company</primary></indexterm>
-<indexterm><primary>Picker, Randal C.</primary></indexterm>
+Working Paper No. 159.
+<indexterm><primary>broadcast flag</primary></indexterm>
+</para></footnote>
</para>
</blockquote>
<para>
-The Napsters of those days, the "independents," were companies like
+The Napsters of those days, the <quote>independents,</quote> were companies like
Fox. And no less than today, these independents were vigorously
-resisted. "Shooting was disrupted by machinery stolen, and
+resisted. <quote>Shooting was disrupted by machinery stolen, and
`accidents' resulting in loss of negatives, equipment, buildings and
-sometimes life and limb frequently occurred.
"<footnote><para>
+sometimes life and limb frequently occurred.
</quote><footnote><para>
<!-- f3 -->
-Marc Wanamaker, "The First Studios," The Silents Majority, archived at
+Marc Wanamaker, <quote>The First Studios,</quote> <citetitle>The Silents Majority</citetitle>, archived at
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
That led the independents to flee the East
<para>
Of course, California grew quickly, and the effective enforcement
of federal law eventually spread west. But because patents grant the
-patent holder a truly "limited" monopoly (just seventeen years at that
+patent holder a truly <quote>limited</quote> monopoly (just seventeen years at that
<!-- PAGE BREAK 68 -->
time), by the time enough federal marshals appeared, the patents had
expired. A new industry had been born, in part from the piracy of
Edison's creative property.
</para>
-</sect2>
-<sect2 id="recordedmusic">
+</section>
+<section id="recordedmusic">
<title>Recorded Music</title>
+<indexterm id='idxcopyrightlawonmusicrecordings' class='startofrange'><primary>copyright law</primary><secondary>on music recordings</secondary></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
piano), the law gave composers the exclusive right to control copies of
their music and the exclusive right to control public performances of
their music. In other words, in 1900, if I wanted a copy of Phil Russel's
-1899 hit "Happy Mose," the law said I would have to pay for the right
+1899 hit <quote>Happy Mose,</quote> the law said I would have to pay for the right
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
</para>
<indexterm><primary>Beatles</primary></indexterm>
<para>
-But what if I wanted to record "Happy Mose," using Edison's phonograph
+But what if I wanted to record <quote>Happy Mose,</quote> using Edison's phonograph
or Fourneaux's player piano? Here the law stumbled. It was clear
enough that I would have to buy any copy of the musical score that I
performed in making this recording. And it was clear enough that I
would have to pay for any public performance of the work I was
recording. But it wasn't totally clear that I would have to pay for a
-"public performance" if I recorded the song in my own house (even
+<quote>public performance</quote> if I recorded the song in my own house (even
today, you don't owe the Beatles anything if you sing their songs in
the shower), or if I recorded the song from memory (copies in your
brain are not—yet— regulated by copyright law). So if I
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>
To Amend and Consolidate the Acts Respecting Copyright: Hearings on
S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th
Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
-of South Dakota, chairman), reprinted in Legislative History of the
-Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
+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>
+<indexterm><primary>Sousa, John Philip</primary></indexterm>
<para>
The innovators who developed the technology to record other
-people's works were "sponging upon the toil, the work, the talent, and
-genius of American composers,
"<footnote><para>
+people's works were <quote>sponging upon the toil, the work, the talent, and
+genius of American composers,
</quote><footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223
(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
-and the "music publishing industry"
-was thereby
"at the complete mercy of this one pirate."<footnote><para>
+and the <quote>music publishing industry</quote>
+was thereby
<quote>at the complete mercy of this one pirate.</quote><footnote><para>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226
(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
As John Philip
-Sousa put it, in as direct a way as possible, "When they make money
-out of my pieces, I want a share of it.
"<footnote><para>
+Sousa put it, in as direct a way as possible, <quote>When they make money
+out of my pieces, I want a share of it.
</quote><footnote><para>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23
(statement of John Philip Sousa, composer).
</para></footnote>
</para>
+<indexterm><primary>American Graphophone Company</primary></indexterm>
+<indexterm><primary>player pianos</primary></indexterm>
+<indexterm><primary>sheet music</primary></indexterm>
+<indexterm id='idxcongressusoncopyrightlaws' class='startofrange'><primary>Congress, U.S.</primary><secondary>on copyright laws</secondary></indexterm>
+<indexterm id='idxcongressusonrecordingindustry' class='startofrange'><primary>Congress, U.S.</primary><secondary>on recording industry</secondary></indexterm>
+<indexterm id='idxcopyrightlawstatutorylicensesin' class='startofrange'><primary>copyright law</primary><secondary>statutory licenses in</secondary></indexterm>
+<indexterm id='idxrecordingindustrystatutorylicensesystemin' class='startofrange'><primary>recording industry</primary><secondary>statutory license system in</secondary></indexterm>
<para>
These arguments have familiar echoes in the wars of our day. So, too,
do the arguments on the other side. The innovators who developed the
-player piano argued that "it is perfectly demonstrable that the
+player piano argued that <quote>it is perfectly demonstrable that the
introduction of automatic music players has not deprived any composer
-of anything he had before their introduction." Rather, the machines
+of anything he had before their introduction.</quote> Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
(statement of Albert Walker, representative of the Auto-Music
Perforating Company of New York).
</para></footnote> In any case, the innovators argued, the job of
-Congress was "to consider first the interest of [the public], whom
-they represent, and whose servants they are." "All talk about
-`theft,'" the general counsel of the American Graphophone Company
-wrote, "is the merest claptrap, for there exists no property in ideas
+Congress was <quote>to consider first the interest of [the public], whom
+they represent, and whose servants they are.</quote> <quote>All talk about
+`theft,'</quote> the general counsel of the American Graphophone Company
+wrote, <quote>is the merest claptrap, for there exists no property in ideas
musical, literary or artistic, except as defined by
-statute.
"<footnote><para>
+statute.
</quote><footnote><para>
<!-- f9 -->
To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
</para>
+<indexterm><primary>cover songs</primary></indexterm>
<para>
-The law soon resolved this battle in favor of the composer and the
-recording artist. Congress amended the law to make sure that composers
-would be paid for the "mechanical reproductions" of their music. But
-rather than simply granting the composer complete control over the
-right to make mechanical reproductions, Congress gave recording
-artists a right to record the music, at a price set by Congress, once
-the composer allowed it to be recorded once. This is the part of
+The law soon resolved this battle in favor of the composer
+<emphasis>and</emphasis> the recording artist. Congress amended the
+law to make sure that composers would be paid for the <quote>mechanical
+reproductions</quote> of their music. But rather than simply granting the
+composer complete control over the right to make mechanical
+reproductions, Congress gave recording artists a right to record the
+music, at a price set by Congress, once the composer allowed it to be
+recorded once. This is the part of
<!-- PAGE BREAK 70 -->
copyright law that makes cover songs possible. Once a composer
authorizes a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
</para>
+<indexterm id='idxcompulsorylicense' class='startofrange'><primary>compulsory license</primary></indexterm>
+<indexterm id='idxstatutorylicenses' class='startofrange'><primary>statutory licenses</primary></indexterm>
<para>
-American law ordinarily calls this a "compulsory license," but I will
-refer to it as a "statutory license." A statutory license is a license
+American law ordinarily calls this a <quote>compulsory license,</quote> but I will
+refer to it as a <quote>statutory license.</quote> A statutory license is a license
whose key terms are set by law. After Congress's amendment of the
Copyright Act in 1909, record companies were free to distribute copies
of recordings so long as they paid the composer (or copyright holder)
the fee set by the statute.
</para>
+<indexterm id='idxgrishamjohn' class='startofrange'><primary>Grisham, John</primary></indexterm>
<para>
This is an exception within the law of copyright. When John Grisham
writes a novel, a publisher is free to publish that novel only if
Grisham is thus set by Grisham, and copyright law ordinarily says you
have no permission to use Grisham's work except with permission of
Grisham.
-<indexterm><primary>Grisham, John</primary></indexterm>
</para>
+<indexterm startref='idxcopyrightlawonmusicrecordings' class='endofrange'/>
+<indexterm><primary>Beatles</primary></indexterm>
<para>
But the law governing recordings gives recording artists less. And
-thus, in effect, the law subsidizes the recording industry through a
-kind of piracy—by giving recording artists a weaker right than
-it otherwise gives creative authors. The Beatles have less control
-over their creative work than Grisham does. And the beneficiaries of
-this less control are the recording industry and the public. The
-recording industry gets something of value for less than it otherwise
-would pay; the public gets access to a much wider range of musical
-creativity. Indeed, Congress was quite explicit about its reasons for
-granting this right. Its fear was the monopoly power of rights
-holders, and that that power would stifle follow-on
+thus, in effect, the law <emphasis>subsidizes</emphasis> the recording
+industry through a kind of piracy—by giving recording artists a
+weaker right than it otherwise gives creative authors. The Beatles
+have less control over their creative work than Grisham does. And the
+beneficiaries of this less control are the recording industry and the
+public. The recording industry gets something of value for less than
+it otherwise would pay; the public gets access to a much wider range
+of musical creativity. Indeed, Congress was quite explicit about its
+reasons for granting this right. Its fear was the monopoly power of
+rights holders, and that that power would stifle follow-on
creativity.<footnote><para>
+
<!-- f10 -->
Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st
sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
-in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and
+in <citetitle>Legislative History of the 1909 Copyright Act</citetitle>, E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
-<indexterm><primary>Beatles</primary></indexterm>
</para>
+<indexterm startref='idxcongressusoncopyrightlaws' class='endofrange'/>
+<indexterm startref='idxcongressusonrecordingindustry' class='endofrange'/>
+<indexterm startref='idxgrishamjohn' class='endofrange'/>
<para>
While the recording industry has been quite coy about this recently,
historically it has been quite a supporter of the statutory license for
this report.</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxcopyrightlawstatutorylicensesin' class='endofrange'/>
+<indexterm startref='idxrecordingindustrystatutorylicensesystemin' class='endofrange'/>
+<indexterm startref='idxcompulsorylicense' class='endofrange'/>
+<indexterm startref='idxstatutorylicenses' class='endofrange'/>
<para>
By limiting the rights musicians have, by partially pirating their
creative work, the record producers, and the public, benefit.
</para>
-</sect2>
-<sect2 id="radio">
+</section>
+<section id="radio">
<title>Radio</title>
+<indexterm id='idxrecordingindustryradiobroadcastand' class='startofrange'><primary>recording industry</primary><secondary>radio broadcast and</secondary></indexterm>
+<indexterm id='idxartistsrecordingindustrypaymentsto' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
Radio was also born of piracy.
</para>
<para>
When a radio station plays a record on the air, that constitutes a
-
"public performance" of the composer's work.<footnote><para>
+
<quote>public performance</quote> of the composer's work.<footnote><para>
<!-- f12 -->
-See 17 United States Code, sections 106 and 110. At the beginning,
-record companies printed "Not Licensed for Radio Broadcast" and other
+See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At the beginning,
+record companies printed <quote>Not Licensed for Radio Broadcast</quote> and other
messages purporting to restrict the ability to play a record on a
radio station. Judge Learned Hand rejected the argument that a
warning attached to a record might restrict the rights of the radio
-station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86 (2nd
-Cir. 1940). See also Randal C. Picker, "From Edison to the Broadcast
+station. See <citetitle>RCA Manufacturing Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd
+Cir. 1940). See also Randal C. Picker, <quote>From Edison to the Broadcast
Flag: Mechanisms of Consent and Refusal and the Propertization of
-Copyright," University of Chicago Law Review 70 (2003): 281.
+Copyright,</quote> <citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.
<indexterm><primary>Hand, Learned</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
</para>
<para>
But when the radio station plays a record, it is not only performing a
-copy of the composer's work. The radio station is also performing a
-copy of the recording artist's work. It's one thing to have "Happy
-Birthday" sung on the radio by the local children's choir; it's quite
-another to have it sung by the Rolling Stones or Lyle Lovett. The
-recording artist is adding to the value of the composition performed
-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.
+copy of the <emphasis>composer's</emphasis> work. The radio station is
+also performing a copy of the <emphasis>recording artist's</emphasis>
+work. It's one thing to have <quote>Happy Birthday</quote> sung on the radio by the
+local children's choir; it's quite another to have it sung by the
+Rolling Stones or Lyle Lovett. The recording artist is adding to the
+value of the composition performed 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
<para>
Imagine she does sing your song, and imagine she likes it a lot. She
then decides to make a recording of your song, and it becomes a top
-hit. Under our law, every time a radio station plays your song, you get
-some money. But Madonna gets nothing, save the indirect effect on
+hit. Under our law, every time a radio station plays your song, you
+get some money. But Madonna gets nothing, save the indirect effect on
the sale of her CDs. The public performance of her recording is not a
-"protected" right. The radio station thus gets to pirate the value of
-Madonna's work without paying her anything.
+<quote>protected</quote> right. The radio station thus gets to
+<emphasis>pirate</emphasis> the value of Madonna's work without paying
+her anything.
</para>
+<indexterm startref='idxartistsrecordingindustrypaymentsto' class='endofrange'/>
+<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
the choice for him or her, the law gives the radio station the right
to take something for nothing.
</para>
-</sect2>
-<sect2 id="cabletv">
+<indexterm startref='idxrecordingindustryradiobroadcastand' class='endofrange'/>
+</section>
+<section id="cabletv">
<title>Cable TV</title>
+<indexterm id='idxcabletelevision' class='startofrange'><primary>cable television</primary></indexterm>
<para>
-
Cable TV was also born of a kind of piracy.
</para>
<para>
</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
-
"unfair and potentially destructive competition."<footnote><para>
+
<quote>unfair and potentially destructive competition.</quote><footnote><para>
<!-- f13 -->
Copyright Law Revision—CATV: Hearing on S. 1006 Before the
Subcommittee on Patents, Trademarks, and Copyrights of the Senate
Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
(statement of Rosel H. Hyde, chairman of the Federal Communications
Commission).
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
</para></footnote>
-There may have been a "public interest" in spreading the reach of cable
+There may have been a <quote>public interest</quote> in spreading the reach of cable
TV, but as Douglas Anello, general counsel to the National Association
-of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
-interest dictate that you use somebody else's property?
"<footnote><para>
+of Broadcasters, asked Senator Quentin Burdick during testimony, <quote>Does public
+interest dictate that you use somebody else's property?
</quote><footnote><para>
<!-- f14 -->
Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
general counsel of the National Association of Broadcasters).
</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
-compensation.
"<footnote><para>
+These were <quote>free-ride[rs],</quote> Screen Actor's Guild president Charlton
+Heston said, who were <quote>depriving actors of
+compensation.
</quote><footnote><para>
<!-- 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
Our point here is that unlike the problem of whether you have any
copyright protection at all, the problem here is whether copyright
holders who are already compensated, who already have a monopoly,
-should be permitted to extend that monopoly. . . . The
+should be permitted to extend that monopoly. … The
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
</para>
<para>
It took Congress almost thirty years before it resolved the question
-of whether cable companies had to pay for the content they "pirated."
+of whether cable companies had to pay for the content they <quote>pirated.</quote>
In the end, Congress resolved this question in the same way that it
resolved the question about record players and player pianos. Yes,
cable companies would have to pay for the content that they broadcast;
but the price they would have to pay was not set by the copyright
owner. The price was set by law, so that the broadcasters couldn't
exercise veto power over the emerging technologies of cable. Cable
-companies thus built their empire in part upon a "piracy" of the value
+companies thus built their empire in part upon a <quote>piracy</quote> of the value
created by broadcasters' content.
</para>
+<indexterm startref='idxpiracyindevelopmentofcontentindustry' class='endofrange'/>
+<indexterm startref='idxcabletelevision' class='endofrange'/>
<para>
-These separate stories sing a common theme. If "piracy" means
-using value from someone else's creative property without permission
-from that creator—as it is increasingly described
-today<footnote><para>
+<emphasis role='strong'>These separate stories</emphasis> sing a
+common theme. If <quote>piracy</quote> means using value from someone
+else's creative property without permission from that creator—as
+
it is increasingly described today<footnote><para>
<!-- f19 -->
-See, for example, National Music Publisher's Association, The Engine
+See, for example, National Music Publisher's Association, <citetitle>The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
-Information, available at
-<ulink url="http://free-culture.cc/notes/">link #13</ulink>. "The
+Information</citetitle>, available at
+<ulink url="http://free-culture.cc/notes/">link #13</ulink>. <quote>The
threat of piracy—the use of someone else's creative work without
-permission or compensation—has grown with the Internet."
+permission or compensation—has grown with the Internet.</quote>
</para></footnote>
-— then every industry affected by copyright today is the product
-and beneficiary of a certain kind of piracy. Film, records, radio,
-cable TV. . . . The list is long and could well be expanded. Every
-generation welcomes the pirates from the last. Every
-generation—until now.
+— then <emphasis>every</emphasis> industry affected by copyright
+today is the product and beneficiary of a certain kind of
+piracy. Film, records, radio, cable TV. … The list is long and
+could well be expanded. Every generation welcomes the pirates from the
+last. Every generation—until now.
</para>
<!-- PAGE BREAK 75 -->
-</sect2>
-</sect1>
-<sect1 id="piracy">
-<title>CHAPTER FIVE: "Piracy"</title>
+</section>
+</chapter>
+<chapter label="5" id="piracy">
+<title>CHAPTER FIVE: <quote>Piracy</quote></title>
<para>
-There is piracy of copyrighted material. Lots of it. This piracy comes
-in many forms. The most significant is commercial piracy, the
-unauthorized taking of other people's content within a commercial
-context. Despite the many justifications that are offered in its
-defense, this taking is wrong. No one should condone it, and the law
-should stop it.
+<emphasis role='strong'>There is piracy</emphasis> of copyrighted
+material. Lots of it. This piracy comes in many forms. The most
+significant is commercial piracy, the unauthorized taking of other
+people's content within a commercial context. Despite the many
+justifications that are offered in its defense, this taking is
+wrong. No one should condone it, and the law should stop it.
</para>
<para>
-But as well as copy-shop piracy, there is another kind of "taking"
+But as well as copy-shop piracy, there is another kind of <quote>taking</quote>
that is more directly related to the Internet. That taking, too, seems
wrong to many, and it is wrong much of the time. Before we paint this
-taking "piracy," however, we should understand its nature a bit more.
+taking <quote>piracy,</quote> however, we should understand its nature a bit more.
For the harm of this taking is significantly more ambiguous than
outright copying, and the law should account for that ambiguity, as it
has so often done in the past.
<!-- PAGE BREAK 76 -->
</para>
-<sect2 id="piracy-i">
+<section id="piracy-i">
<title>Piracy I</title>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
+<indexterm id='idxcdsforeign' class='startofrange'><primary>CDs</primary><secondary>foreign piracy of</secondary></indexterm>
<para>
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy<footnote><para>
<!-- f1 -->
-See IFPI (International Federation of the Phonographic Industry), The
-Recording Industry Commercial Piracy Report 2003, July 2003, available
+See IFPI (International Federation of the Phonographic Industry), <citetitle>The
+Recording Industry Commercial Piracy Report 2003</citetitle>, July 2003, available
at <ulink url="http://free-culture.cc/notes/">link #14</ulink>. See
-also Ben Hunt, "Companies Warned on Music Piracy Risk," Financial
-Times, 14 February 2003, 11.
+also Ben Hunt, <quote>Companies Warned on Music Piracy Risk,</quote> <citetitle>Financial
+Times</citetitle>, 14 February 2003, 11.
</para></footnote>
(that works out to one in three CDs sold worldwide). The MPAA
estimates that it loses $3 billion annually worldwide to piracy.
<para>
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
-<!-- PAGE BREAK 77 -->
+<!-- PAGE BREAK 77-->
not to protect copyright internationally. We may have been born a
pirate nation, but we will not allow any other nation to have a
similar childhood.
these nations live gives them some opportunities to escape the burden
of intellectual property law.<footnote><para>
<!-- f2 -->
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
-209. The Trade-Related Aspects of Intellectual Property Rights
-(TRIPS) agreement obligates member nations to create administrative
-and enforcement mechanisms for intellectual property rights, a costly
-proposition for developing countries. Additionally, patent rights may
-lead to higher prices for staple industries such as
-agriculture. Critics of TRIPS question the disparity between burdens
-imposed upon developing countries and benefits conferred to
-industrialized nations. TRIPS does permit governments to use patents
-for public, noncommercial uses without first obtaining the patent
-holder's permission. Developing nations may be able to use this to
-gain the benefits of foreign patents at lower prices. This is a
-promising strategy for developing nations within the TRIPS framework.
+See Peter Drahos with John Braithwaite, Information Feudalism:
+<citetitle>Who Owns the Knowledge Economy?</citetitle> (New York: The
+New Press, 2003), 10–13, 209. The Trade-Related Aspects of
+Intellectual Property Rights (TRIPS) agreement obligates member
+nations to create administrative and enforcement mechanisms for
+intellectual property rights, a costly proposition for developing
+countries. Additionally, patent rights may lead to higher prices for
+staple industries such as agriculture. Critics of TRIPS question the
+disparity between burdens imposed upon developing countries and
+benefits conferred to industrialized nations. TRIPS does permit
+governments to use patents for public, noncommercial uses without
+first obtaining the patent holder's permission. Developing nations may
+be able to use this to gain the benefits of foreign patents at lower
+prices. This is a promising strategy for developing nations within the
+TRIPS framework.
+<indexterm><primary>agricultural patents</primary></indexterm>
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote> In my view, more developing nations should take
advantage of that opportunity, but when they don't, then their laws
should be respected. And under the laws of these nations, this piracy
is wrong.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Alternatively, we could try to excuse this piracy by noting that in
any case, it does no harm to the industry. The Chinese who get access
less money than they otherwise would have had.<footnote><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
+Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: Amacom, 2002),
+144–90. <quote>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.
+pirating were not an option.</quote> Ibid., 149.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
</para>
thousands of pirated DVDs who certainly have enough money to pay
for the content they have taken), and it does mitigate to some degree
the harm caused by such taking. Extremists in this debate love to say,
-"You wouldn't go into Barnes & Noble and take a book off of the shelf
-without paying; why should it be any different with on-line music?"
+<quote>You wouldn't go into Barnes & Noble and take a book off of the shelf
+without paying; why should it be any different with on-line music?</quote>
The difference is, of course, that when you take a book from Barnes &
Noble, it has one less book to sell. By contrast, when you take an MP3
from a computer network, there is not one less CD that can be sold.
The physics of piracy of the intangible are different from the physics of
piracy of the tangible.
</para>
+<indexterm startref='idxcdsforeign' class='endofrange'/>
<para>
This argument is still very weak. However, although copyright is a
-property right of a very special sort, it is a property right. Like
-all property rights, the copyright gives the owner the right to decide
-the terms under which content is shared. If the copyright owner
-doesn't want to sell, she doesn't have to. There are exceptions:
-important statutory licenses that apply to copyrighted content
-regardless of the wish of the copyright owner. Those licenses give
-people the right to "take" copyrighted content whether or not the
+property right of a very special sort, it <emphasis>is</emphasis> a
+property right. Like all property rights, the copyright gives the
+owner the right to decide the terms under which content is shared. If
+the copyright owner doesn't want to sell, she doesn't have to. There
+are exceptions: important statutory licenses that apply to copyrighted
+content regardless of the wish of the copyright owner. Those licenses
+give people the right to <quote>take</quote> copyrighted content whether or not the
copyright owner wants to sell. But
<!-- PAGE BREAK 78 -->
wrong to take that content even if the wrong does no harm. If we have
a property system, and that system is properly balanced to the
technology of a time, then it is wrong to take property without the
-permission of a property owner. That is exactly what "property" means.
-</para>
+permission of a property owner. That is exactly what <quote>property</quote> means.
+</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
+<indexterm><primary>piracy</primary><secondary>in Asia</secondary></indexterm>
+<indexterm><primary>free software/open-source software (FS/OSS)</primary></indexterm>
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
+<indexterm><primary>Microsoft</primary><secondary>competitive strategies of</secondary></indexterm>
+<indexterm><primary>Windows</primary></indexterm>
+<indexterm><primary>Microsoft</primary><secondary>international software piracy of</secondary></indexterm>
+<indexterm><primary>Microsoft</primary><secondary>Windows operating system of</secondary></indexterm>
<para>
Finally, we could try to excuse this piracy with the argument that the
-piracy actually helps the copyright owner. When the Chinese "steal"
+piracy actually helps the copyright owner. When the Chinese <quote>steal</quote>
Windows, that makes the Chinese dependent on Microsoft. Microsoft
loses the value of the software that was taken. But it gains users who
are used to life in the Microsoft world. Over time, as the nation
Microsoft Windows, the Chinese used the free GNU/Linux operating
system, then these Chinese users would not eventually be buying
Microsoft. Without piracy, then, Microsoft would lose.
-<indexterm><primary>Windows</primary></indexterm>
</para>
+<indexterm><primary>law</primary><secondary>databases of case reports in</secondary></indexterm>
<para>
This argument, too, is somewhat true. The addiction strategy is a good
one. Many businesses practice it. Some thrive because of it. Law
so used to their service that they will want to use it and not the
other when they become lawyers (and must pay high subscription fees).
</para>
+<indexterm><primary>Netscape</primary></indexterm>
+<indexterm><primary>Internet Explorer</primary></indexterm>
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
<para>
Still, the argument is not terribly persuasive. We don't give the
alcoholic a defense when he steals his first beer, merely because that
</para>
<para>
But as the examples from the four chapters that introduced this part
-suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
-at least, not all "piracy" is wrong if that term is understood in the
-way it is increasingly used today. Many kinds of "piracy" are useful
+suggest, even if some piracy is plainly wrong, not all <quote>piracy</quote> is. Or
+at least, not all <quote>piracy</quote> is wrong if that term is understood in the
+way it is increasingly used today. Many kinds of <quote>piracy</quote> are useful
and productive, to produce either new content or new ways of doing
business. Neither our tradition nor any tradition has ever banned all
-"piracy" in that sense of the term.
+<quote>piracy</quote> in that sense of the term.
</para>
<para>
This doesn't mean that there are no questions raised by the latest
should push us to find a way to protect artists while enabling this
sharing to survive.
</para>
-</sect2>
-<sect2 id="piracy-ii">
+</section>
+<section id="piracy-ii">
<title>Piracy II</title>
<para>
-The key to the "piracy" that the law aims to quash is a use that "rob[s]
-the author of [his] profit.
"<footnote><para>
+The key to the <quote>piracy</quote> that the law aims to quash is a use that <quote>rob[s]
+the author of [his] profit.
</quote><footnote><para>
<!-- f4 -->
-Bach v. Longman, 98 Eng. Rep. 1274 (1777).
+<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777).
</para></footnote>
This means we must determine whether
and how much p2p sharing harms before we know how strongly the
law should seek to either prevent it or find an alternative to assure the
author of his profit.
</para>
+<indexterm><primary>innovation</primary></indexterm>
+<indexterm><primary>Fanning, Shawn</primary></indexterm>
<para>
Peer-to-peer sharing was made famous by Napster. But the inventors of
the Napster technology had not made any major technological
innovations. Like every great advance in innovation on the Internet
(and, arguably, off the Internet as well<footnote><para>
<!-- f5 -->
-See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
-National Bestseller That Changed the Way We Do Business (New York:
+<indexterm><primary>innovation</primary></indexterm>
+See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The Revolutionary
+National Bestseller That Changed the Way We Do Business</citetitle> (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
that give rise to and dominate a product area are frequently unable to
come up with the most creative, paradigm-shifting uses for their own
products. This job usually falls to outside innovators, who
reassemble existing technology in inventive ways. For a discussion of
-Christensen's ideas, see Lawrence Lessig, Future, 89–92, 139.
+Christensen's ideas, see Lawrence Lessig, <citetitle>Future</citetitle>, 89–92, 139.
+
<indexterm><primary>Christensen, Clayton M.</primary></indexterm>
</para></footnote>), Shawn Fanning and crew had simply
put together components that had been developed independently.
-<indexterm><primary>Fanning, Shawn</primary></indexterm>
</para>
<para>
The result was spontaneous combustion. Launched in July 1999,
eighteen months, there were close to 80 million registered users of the
system.<footnote><para>
<!-- f6 -->
-See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," San
-Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
-New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
-Secures New Financing," San Francisco Chronicle, 23 May 2003, C1;
-"Napster's Wake-Up Call," Economist, 24 June 2000, 23; John Naughton,
-"Hollywood at War with the Internet" (London) Times, 26 July 2002, 18.
+See Carolyn Lochhead, <quote>Silicon Valley Dream, Hollywood Nightmare,</quote> <citetitle>San
+Francisco Chronicle</citetitle>, 24 September 2002, A1; <quote>Rock 'n' Roll Suicide,</quote>
+<citetitle>New Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, <quote>Napster Names CEO,
+Secures New Financing,</quote> <citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1;
+<quote>Napster's Wake-Up Call,</quote> <citetitle>Economist</citetitle>, 24 June 2000, 23; John Naughton,
+<quote>Hollywood at War with the Internet</quote> (London) <citetitle>Times</citetitle>, 26 July 2002, 18.
</para></footnote>
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
music—28 percent of Americans older than 12.<footnote><para>
<!-- f7 -->
-See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
+See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music Distribution</citetitle>
(September 2002), reporting that 28 percent of Americans aged twelve
and older have downloaded music off of the Internet and 30 percent have
listened to digital music files stored on their computers.
</para></footnote>
-A survey by the NPD group quoted in The New York Times estimated that
-43 million citizens used file-sharing networks to exchange content in
-May 2003.<footnote><para>
+A survey by the NPD group quoted in <citetitle>The New York Times</citetitle>
+estimated that 43 million citizens used file-sharing networks to
+
exchange content in May 2003.<footnote><para>
<!-- f8 -->
-Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
-York Times, 6 June 2003, A1.
+Amy Harmon, <quote>Industry Offers a Carrot in Online Music Fight,</quote> <citetitle>New
+York Times</citetitle>, 6 June 2003, A1.
</para></footnote>
The vast majority of these are not kids. Whatever the actual figure, a
-massive quantity of content is being "taken" on these networks. The
+massive quantity of content is being <quote>taken</quote> on these networks. The
ease and inexpensiveness of file-sharing networks have inspired
millions to enjoy music in a way that they hadn't before.
</para>
different kinds into four types.
</para>
<orderedlist numeration="upperalpha">
-<listitem><para>
+<listitem>
+<indexterm><primary>Madonna</primary></indexterm>
+<para>
<!-- A. -->
There are some who use sharing networks as substitutes for purchasing
content. Thus, when a new Madonna CD is released, rather than buying
sharing networks is among the most rewarding for many. Songs that were
part of your childhood but have long vanished from the marketplace
magically appear again on the network. (One friend told me that when
-she discovered Napster, she spent a solid weekend "recalling" old
+she discovered Napster, she spent a solid weekend <quote>recalling</quote> old
songs. She was astonished at the range and mix of content that was
available.) For content not sold, this is still technically a
violation of copyright, though because the copyright owner is not
perspective of economics, only type A sharing is clearly
harmful.<footnote><para>
<!-- f9 -->
-See Liebowitz, Rethinking the Network Economy,148–49.
+See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, 148–49.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
Type B sharing is illegal but plainly beneficial. Type C sharing is
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.
+industry complains that type A sharing is a kind of <quote>theft</quote> that is
+<quote>devastating</quote> the industry.
</para>
+<indexterm id='idxcassette' class='startofrange'><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
<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>
+& Young put it, <quote>Rather than exploiting this new, popular
+technology, the labels fought it.
</quote><footnote><para>
<!-- f10 -->
-See Cap Gemini Ernst & Young, Technology Evolution and the
-Music Industry's Business Model Crisis (2003), 3. This report
+<indexterm><primary>cassette recording</primary></indexterm>
+See Cap Gemini Ernst & Young, <citetitle>Technology Evolution and the
+Music Industry's Business Model Crisis</citetitle> (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,
+campaign featuring a cassette-shape skull and the caption <quote>Home taping
+is killing music.</quote> 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,
+Assessment, <citetitle>Copyright and Home Copying: Technology Challenges the Law</citetitle>,
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
that its point was proved. Technology was the problem, and banning or
regulating technology was the answer.
</para>
+<indexterm><primary>MTV</primary></indexterm>
<para>
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+turnaround. <quote>In the end,</quote> Cap Gemini concludes, <quote>the `crisis' … was
not the fault of the tapers—who did not [stop after MTV came into
<!-- PAGE BREAK 83 -->
being]—but had to a large extent resulted from stagnation in musical
-innovation at the major labels.
"<footnote><para>
+innovation at the major labels.
</quote><footnote><para>
<!-- f11 -->
-U.S. Congress, Copyright and Home Copying, 4.
+U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4.
</para></footnote>
</para>
+<indexterm startref='idxcassette' class='endofrange'/>
<para>
But just because the industry was wrong before does not mean it is
wrong today. To evaluate the real threat that p2p sharing presents to
the society that inherits the tradition that gave us the film
industry, the record industry, the radio industry, cable TV, and the
VCR—the question is not simply whether type A sharing is
-harmful. The question is also how harmful type A sharing is, and how
-beneficial the other types of sharing are.
+harmful. The question is also <emphasis>how</emphasis> harmful type A
+sharing is, and how beneficial the other types of sharing are.
</para>
<para>
-We start to answer this question by focusing on the net harm, from
-the standpoint of the industry as a whole, that sharing networks cause.
-The "net harm" to the industry as a whole is the amount by which type
+We start to answer this question by focusing on the net harm, from the
+standpoint of the industry as a whole, that sharing networks cause.
+The <quote>net harm</quote> to the industry as a whole is the amount by which type
A sharing exceeds type B. If the record companies sold more records
through sampling than they lost through substitution, then sharing
-networks would actually benefit music companies on balance. They
-would therefore have little static reason to resist them.
+networks would actually benefit music companies on balance. They would
+therefore have little <emphasis>static</emphasis> reason to resist
+them.
+
</para>
+<indexterm id='idxcdssales' class='startofrange'><primary>CDs</primary><secondary>sales levels of</secondary></indexterm>
<para>
-Could that be true? Could the industry as a whole be gaining
- because
-of file sharing? Odd as that might sound, the data about CD
-sales actually suggest it might be close.
+Could that be true? Could the industry as a whole be gaining because
+of file sharing? Odd as that might sound, the data about CD sales
+actually suggest it might be close.
</para>
<para>
-In 2002, the RIAA reported that CD sales had fallen by 8.9
- percent,
-
from 882 million to 803 million units; revenues fell 6.7 percent.<footnote><para>
+In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
+from 882 million to 803 million units; revenues fell 6.7
+percent.<footnote><para>
<!-- f12 -->
-See Recording Industry Association of America, 2002 Yearend Statistics,
+See Recording Industry Association of America, <citetitle>2002 Yearend Statistics</citetitle>,
available at
-<ulink url="http://free-culture.cc/notes/">link #15</ulink>. A later report indicates even greater losses. See
-Recording Industry Association of America, Some Facts About Music Piracy,
-25 June 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #16</ulink>: "In the past four years, unit shipments
-of recorded music have fallen by 26 percent from 1.16 billion units in
-to 860 million units in 2002 in the United States (based on units shipped).
-In terms of sales, revenues are down 14 percent, from $14.6 billion in
-to $12.6 billion last year (based on U.S. dollar value of shipments). The
- music
+<ulink url="http://free-culture.cc/notes/">link #15</ulink>. A later
+report indicates even greater losses. See Recording Industry
+Association of America, <citetitle>Some Facts About Music Piracy</citetitle>, 25 June 2003,
+available at <ulink url="http://free-culture.cc/notes/">link
+#16</ulink>: <quote>In the past four years, unit shipments of recorded music
+have fallen by 26 percent from 1.16 billion units in to 860 million
+units in 2002 in the United States (based on units shipped). In terms
+of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
+billion last year (based on U.S. dollar value of shipments). The music
industry worldwide has gone from a $39 billion industry in 2000 down
-to a $32 billion industry in 2002 (based on U.S. dollar value of shipments)."
+to a $32 billion industry in 2002 (based on U.S. dollar value of
+shipments).</quote>
</para></footnote>
-This confirms a trend over the past few years. The RIAA blames
- Internet
-piracy for the trend, though there are many other causes that
+This confirms a trend over the past few years. The RIAA blames
+Internet piracy for the trend, though there are many other causes that
could account for this drop. SoundScan, for example, reports a more
-than 20 percent drop in the number of CDs released since 1999. That
-no doubt accounts for some of the decrease in sales. Rising prices could
-account for at least some of the loss. "From 1999 to 2001, the average
-price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote>
+than 20 percent drop in the number of CDs released since 1999. That no
+doubt accounts for some of the decrease in sales. Rising prices could
+account for at least some of the loss. <quote>From 1999 to 2001, the average
+price of a CD rose 7.2 percent, from $13.04 to $14.19.</quote><footnote>
<!-- f13 -->
<para>
-Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
+Jane Black, <quote>Big Music's Broken Record,</quote> BusinessWeek online, 13
February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #17</ulink>.
<indexterm><primary>Black, Jane</primary></indexterm>
</para>
</footnote>
-Competition from other forms of media could also account for some of the
-decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film
-High Fidelity has a list price of $18.98. You could get the whole movie
-[on DVD] for $19.99."<footnote><para>
+Competition from other forms of media could also account for some of
+the decline. As Jane Black of <citetitle>BusinessWeek</citetitle> notes, <quote>The
+soundtrack to the film <citetitle>High Fidelity</citetitle> has a list price of
+$18.98. You could get the whole movie [on DVD] for
+$19.99.</quote><footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<para>
<!-- PAGE BREAK 84 -->
-But let's assume the RIAA is right, and all of the decline in CD
-sales is because of Internet sharing. Here's the rub: In the same period
+But let's assume the RIAA is right, and all of the decline in CD sales
+is because of Internet sharing. Here's the rub: In the same period
that the RIAA estimates that 803 million CDs were sold, the RIAA
-estimates that 2.1 billion CDs were downloaded for free. Thus,
- although
-2.6 times the total number of CDs sold were downloaded for
+estimates that 2.1 billion CDs were downloaded for free. Thus,
+although 2.6 times the total number of CDs sold were downloaded for
free, sales revenue fell by just 6.7 percent.
</para>
<para>
There are too many different things happening at the same time to
explain these numbers definitively, but one conclusion is unavoidable:
-The recording industry constantly asks, "What's the difference
- between
-downloading a song and stealing a CD?"—but their own
- numbers
+The recording industry constantly asks, <quote>What's the difference between
+downloading a song and stealing a CD?</quote>—but their own numbers
reveal the difference. If I steal a CD, then there is one less CD to
sell. Every taking is a lost sale. But on the basis of the numbers the
RIAA provides, it is absolutely clear that the same is not true of
-downloads. If every download were a lost sale—if every use of Kazaa
-"rob[bed] the author of [his] profit"—then the industry would have
-suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6
-times the number of CDs sold were downloaded for free, and yet sales
-revenue dropped by just 6.7 percent, then there is a huge difference
- between
-"downloading a song and stealing a CD."
-</para>
-<para>
-These are the harms—alleged and perhaps exaggerated but, let's
- assume,
-real. What of the benefits? File sharing may impose costs on the
-recording industry. What value does it produce in addition to these
-costs?
-</para>
-<para>
-One benefit is type C sharing—making available content that is
-technically still under copyright but is no longer commercially
- available.
-This is not a small category of content. There are millions of
-tracks that are no longer commercially available.<footnote><para>
+downloads. If every download were a lost sale—if every use of
+Kazaa <quote>rob[bed] the author of [his] profit</quote>—then the industry
+would have suffered a 100 percent drop in sales last year, not a 7
+percent drop. If 2.6 times the number of CDs sold were downloaded for
+free, and yet sales revenue dropped by just 6.7 percent, then there is
+a huge difference between <quote>downloading a song and stealing a CD.</quote>
+</para>
+<indexterm startref='idxcdssales' class='endofrange'/>
+<para>
+These are the harms—alleged and perhaps exaggerated but, let's
+assume, real. What of the benefits? File sharing may impose costs on
+the recording industry. What value does it produce in addition to
+these costs?
+</para>
+<para>
+One benefit is type C sharing—making available content that
+is technically still under copyright but is no longer commercially
+available. This is not a small category of content. There are
+millions of tracks that are no longer commercially
+available.<footnote><para>
<!-- f15 -->
-By one estimate, 75 percent of the music released by the major labels is no
-longer in print. See Online Entertainment and Copyright Law—Coming
-Soon to a Digital Device Near You: Hearing Before the Senate
- Committee
-on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared
- statement
-of the Future of Music Coalition), available at
-<ulink url="http://free-culture.cc/notes/">link #18</ulink>.
-</para></footnote>
-And while it's
- conceivable
-that some of this content is not available because the artist
-producing the content doesn't want it to be made available, the vast
-majority of it is unavailable solely because the publisher or the
- distributor
-has decided it no longer makes economic sense to the company to
-make it available.
+By one estimate, 75 percent of the music released by the major labels
+is no longer in print. See Online Entertainment and Copyright
+Law—Coming Soon to a Digital Device Near You: Hearing Before the
+Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
+2001) (prepared statement of the Future of Music Coalition), available
+at <ulink url="http://free-culture.cc/notes/">link #18</ulink>.
+</para></footnote>
+And while it's conceivable that some of this content is not available
+because the artist producing the content doesn't want it to be made
+available, the vast majority of it is unavailable solely because the
+publisher or the distributor has decided it no longer makes economic
+sense <emphasis>to the company</emphasis> to make it available.
</para>
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
<para>
In real space—long before the Internet—the market had a simple
<!-- PAGE BREAK 85 -->
-response to this problem: used book and record stores. There are
- thousands
-
of used book and used record stores in America today.<footnote><para>
+response to this problem: used book and record stores. There are
+thousands of used book and used record stores in America
+today.<footnote><para>
<!-- f16 -->
-While there are not good estimates of the number of used record stores in
-existence, in 2002, there were 7,198 used book dealers in the United States,
-an increase of 20 percent since 1993. See Book Hunter Press, The Quiet
-Revolution: The Expansion of the Used Book Market (2002), available at
-<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used records accounted for $260 million in sales in 2002. See
- National
-Association of Recording Merchandisers, "2002 Annual Survey
- Results,"
-available at
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
+While there are not good estimates of the number of used record stores
+in existence, in 2002, there were 7,198 used book dealers in the
+United States, an increase of 20 percent since 1993. See Book Hunter
+Press, <citetitle>The Quiet Revolution: The Expansion of the Used Book
+Market</citetitle> (2002), available at
+<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used
+records accounted for $260 million in sales in 2002. See National
+Association of Recording Merchandisers, <quote>2002 Annual Survey
+Results,</quote> available at
<ulink url="http://free-culture.cc/notes/">link #20</ulink>.
</para></footnote>
-These
-stores buy content from owners, then sell the content they buy. And
-under American copyright law, when they buy and sell this content,
-even if the content is still under copyright, the copyright owner doesn't get
-a dime. Used book and record stores are commercial entities; their
-owners make money from the content they sell; but as with cable
- companies
-before statutory licensing, they don't have to pay the copyright
-owner for the content they sell.
+These stores buy content from owners, then sell the content they
+buy. And under American copyright law, when they buy and sell this
+content, <emphasis>even if the content is still under
+copyright</emphasis>, the copyright owner doesn't get a dime. Used
+book and record stores are commercial entities; their owners make
+money from the content they sell; but as with cable companies before
+statutory licensing, they don't have to pay the copyright owner for
+the content they sell.
</para>
<indexterm><primary>Bernstein, Leonard</primary></indexterm>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
<para>
Type C sharing, then, is very much like used book stores or used
record stores. It is different, of course, because the person making
the content available isn't making money from making the content
available. It is also different, of course, because in real space,
when I sell a record, I don't have it anymore, while in cyberspace,
-when someone shares my 1949 recording of Bernstein's "Two Love Songs,"
+when someone shares my 1949 recording of Bernstein's <quote>Two Love Songs,</quote>
I still have it. That difference would matter economically if the
owner of the copyright were selling the record in competition to my
sharing. But we're talking about the class of content that is not
stopped, do you think that libraries and used book stores should be
shut as well?
</para>
+<indexterm id='idxbooksfreeonline1' class='startofrange'><primary>books</primary><secondary>free on-line releases of</secondary></indexterm>
<para>
Finally, and perhaps most importantly, file-sharing networks enable
type D sharing to occur—the sharing of content that copyright owners
want to have shared or for which there is no continuing copyright. This
sharing clearly benefits authors and society. Science fiction author
-Cory Doctorow, for example, released his first novel, Down and Out in
-the Magic Kingdom, both free on-line and in bookstores on the same
+Cory Doctorow, for example, released his first novel, <citetitle>Down and Out in
+the Magic Kingdom</citetitle>, both free on-line and in bookstores on the same
<!-- PAGE BREAK 86 -->
day. His (and his publisher's) thinking was that the on-line distribution
-would be a great advertisement for the "real" book. People would read
+would be a great advertisement for the <quote>real</quote> book. People would read
part on-line, and then decide whether they liked the book or not. If
they liked it, they would be more likely to buy it. Doctorow's content is
type D content. If sharing networks enable his work to be spread, then
both he and society are better off. (Actually, much better off: It is a
great book!)
</para>
+<indexterm startref='idxbooksfreeonline1' class='endofrange'/>
<para>
Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
</para>
<para>
The point throughout is this: While the recording industry
-understandably says, "This is how much we've lost," we must also ask,
-"How much has society gained from p2p sharing? What are the
+understandably says, <quote>This is how much we've lost,</quote> we must also ask,
+<quote>How much has society gained from p2p sharing? What are the
efficiencies? What is the content that otherwise would be
-unavailable?"
+unavailable?</quote>
</para>
<para>
For unlike the piracy I described in the first section of this
-chapter, much of the "piracy" that file sharing enables is plainly
-legal and good. And like the piracy I described in chapter 4, much of
+chapter, much of the <quote>piracy</quote> that file sharing enables is plainly
+legal and good. And like the piracy I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="pirates"/>, much of
this piracy is motivated by a new way of spreading content caused by
changes in the technology of distribution. Thus, consistent with the
tradition that gave us Hollywood, radio, the recording industry, and
found only with time.
</para>
<para>
-"But isn't the war just a war against illegal sharing? Isn't the target
-just what you call type A sharing?"
+<quote>But isn't the war just a war against illegal sharing? Isn't the target
+just what you call type A sharing?</quote>
</para>
<para>
You would think. And we should hope. But so far, it is not. The
<!-- PAGE BREAK 87 -->
infringing material, the district court told counsel for Napster 99.4
percent was not good enough. Napster had to push the infringements
-
"down to zero."<footnote><para>
+
<quote>down to zero.</quote><footnote><para>
<!-- f17 -->
See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
MHP, available at
-<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an account of the litigation and its toll on
-Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn
- Fanning's
-Napster (New York: Crown Business, 2003), 269–82.
+
+<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an
+account of the litigation and its toll on Napster, see Joseph Menn,
+<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's Napster</citetitle> (New
+York: Crown Business, 2003), 269–82.
</para></footnote>
</para>
<para>
<para>
Zero tolerance has not been our history. It has not produced the
content industry that we know today. The history of American law has
-been a process of balance. As new technologies changed the way
- content
-was distributed, the law adjusted, after some time, to the new
- technology.
-In this adjustment, the law sought to ensure the legitimate rights
-of creators while protecting innovation. Sometimes this has meant
-more rights for creators. Sometimes less.
-</para>
-<para>
-So, as we've seen, when "mechanical reproduction" threatened the
+been a process of balance. As new technologies changed the way content
+was distributed, the law adjusted, after some time, to the new
+technology. In this adjustment, the law sought to ensure the
+legitimate rights of creators while protecting innovation. Sometimes
+this has meant more rights for creators. Sometimes less.
+</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
+<indexterm><primary>composers, copyright protections of</primary></indexterm>
+<indexterm id='idxcongressusoncopyrightlaws2' class='startofrange'><primary>Congress, U.S.</primary><secondary>on copyright laws</secondary></indexterm>
+<indexterm id='idxcongressusonrecordingindustry2' class='startofrange'><primary>Congress, U.S.</primary><secondary>on recording industry</secondary></indexterm>
+<indexterm id='idxcopyrightlawonmusicrecordings2' class='startofrange'><primary>copyright law</primary><secondary>on music recordings</secondary></indexterm>
+<indexterm id='idxcopyrightlawstatutorylicensesin2' class='startofrange'><primary>copyright law</primary><secondary>statutory licenses in</secondary></indexterm>
+<indexterm><primary>radio</primary><secondary>music recordings played on</secondary></indexterm>
+<indexterm><primary>recording industry</primary><secondary>artist remuneration in</secondary></indexterm>
+<indexterm><primary>recording industry</primary><secondary>copyright protections in</secondary></indexterm>
+<indexterm><primary>recording industry</primary><secondary>radio broadcast and</secondary></indexterm>
+<indexterm><primary>statutory licenses</primary></indexterm>
+<indexterm><primary>composer's rights vs. producers' rights in</primary></indexterm>
+<para>
+So, as we've seen, when <quote>mechanical reproduction</quote> threatened the
interests of composers, Congress balanced the rights of composers
-against the interests of the recording industry. It granted rights to
- composers,
-but also to the recording artists: Composers were to be paid, but
-at a price set by Congress. But when radio started broadcasting the
-recordings made by these recording artists, and they complained to
-Congress that their "creative property" was not being respected (since
-the radio station did not have to pay them for the creativity it
- broadcast),
-Congress rejected their claim. An indirect benefit was enough.
+against the interests of the recording industry. It granted rights to
+composers, but also to the recording artists: Composers were to be
+paid, but at a price set by Congress. But when radio started
+broadcasting the recordings made by these recording artists, and they
+complained to Congress that their <quote>creative property</quote> was not being
+respected (since the radio station did not have to pay them for the
+creativity it broadcast), Congress rejected their claim. An indirect
+benefit was enough.
</para>
+<indexterm id='idxcabletv2' class='startofrange'><primary>cable television</primary></indexterm>
<para>
Cable TV followed the pattern of record albums. When the courts
rejected the claim that cable broadcasters had to pay for the content
they rebroadcast, Congress responded by giving broadcasters a right to
-compensation, but at a level set by the law. It likewise gave cable
- companies
-the right to the content, so long as they paid the statutory price.
+compensation, but at a level set by the law. It likewise gave cable
+companies the right to the content, so long as they paid the statutory
+price.
</para>
+<indexterm startref='idxcongressusonrecordingindustry2' class='endofrange'/>
<para>
<!-- PAGE BREAK 88 -->
This compromise, like the compromise affecting records and player
-pianos, served two important goals—indeed, the two central goals of
-any copyright legislation. First, the law assured that new innovators
-would have the freedom to develop new ways to deliver content.
- Second,
-the law assured that copyright holders would be paid for the
- content
-that was distributed. One fear was that if Congress simply
-required cable TV to pay copyright holders whatever they demanded
-for their content, then copyright holders associated with broadcasters
-would use their power to stifle this new technology, cable. But if
- Congress
-had permitted cable to use broadcasters' content for free, then it
-would have unfairly subsidized cable. Thus Congress chose a path that
-would assure compensation without giving the past (broadcasters)
- control
-over the future (cable).
-</para>
+pianos, served two important goals—indeed, the two central goals
+of any copyright legislation. First, the law assured that new
+innovators would have the freedom to develop new ways to deliver
+content. Second, the law assured that copyright holders would be paid
+for the content that was distributed. One fear was that if Congress
+simply required cable TV to pay copyright holders whatever they
+demanded for their content, then copyright holders associated with
+broadcasters would use their power to stifle this new technology,
+cable. But if Congress had permitted cable to use broadcasters'
+content for free, then it would have unfairly subsidized cable. Thus
+Congress chose a path that would assure
+<emphasis>compensation</emphasis> without giving the past
+(broadcasters) control over the future (cable).
+</para>
+<indexterm startref='idxcopyrightlawonmusicrecordings2' class='endofrange'/>
+<indexterm startref='idxcopyrightlawstatutorylicensesin2' class='endofrange'/>
+<indexterm startref='idxcabletv2' class='endofrange'/>
<indexterm><primary>Betamax</primary></indexterm>
+<indexterm id='idxcassettevcrs1' class='startofrange'><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
<para>
In the same year that Congress struck this balance, two major
producers and distributors of film content filed a lawsuit against
Universal's claim against Sony was relatively simple: Sony produced a
device, Disney and Universal claimed, that enabled consumers to engage
in copyright infringement. Because the device that Sony built had a
-"record" button, the device could be used to record copyrighted movies
+<quote>record</quote> button, the device could be used to record copyrighted movies
and shows. Sony was therefore benefiting from the copyright
infringement of its customers. It should therefore, Disney and
Universal claimed, be partially liable for that infringement.
</para>
+<indexterm startref='idxcongressusoncopyrightlaws2' class='endofrange'/>
<para>
There was something to Disney's and Universal's claim. Sony did
decide to design its machine to make it very simple to record television
shows. It could have built the machine to block or inhibit any direct
copying from a television broadcast. Or possibly, it could have built the
-machine to copy only if there were a special "copy me" signal on the
+machine to copy only if there were a special <quote>copy me</quote> signal on the
line. It was clear that there were many television shows that did not
grant anyone permission to copy. Indeed, if anyone had asked, no
doubt the majority of shows would not have authorized copying. And
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
</para>
+<indexterm id='idxcongressusoncopyrightlaws3' class='startofrange'><primary>Congress, U.S.</primary><secondary>on copyright laws</secondary></indexterm>
+<indexterm><primary>Congress, U.S.</primary><secondary>on VCR technology</secondary></indexterm>
<para>
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "When there are
+champion. Valenti called VCRs <quote>tapeworms.</quote> He warned, <quote>When there are
20, 30, 40 million of these VCRs in the land, we will be invaded by
millions of `tapeworms,' eating away at the very heart and essence of
the most precious asset the copyright owner has, his
-copyright.
"<footnote><para>
+copyright.
</quote><footnote><para>
<!-- f18 -->
Copyright Infringements (Audio and Video Recorders): Hearing on
S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
Picture Association of America, Inc.).
</para></footnote>
-"One does not have to be trained in sophisticated marketing and
-creative judgment," he told Congress, "to understand the devastation
+<quote>One does not have to be trained in sophisticated marketing and
+creative judgment,</quote> he told Congress, <quote>to understand the devastation
on the after-theater marketplace caused by the hundreds of millions of
tapings that will adversely impact on the future of the creative
community in this country. It is simply a question of basic economics
-and plain common sense.
"<footnote><para>
+and plain common sense.
</quote><footnote><para>
<!-- f19 -->
Copyright Infringements (Audio and Video Recorders), 475.
</para></footnote>
-Indeed, as surveys would later show,
+Indeed, as surveys would later show, 45
percent of VCR owners had movie libraries of ten videos or more<footnote><para>
<!-- f20 -->
-Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429,
+<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 480 F. Supp. 429,
(C.D. Cal., 1979).
</para></footnote>
-— a use the Court would later hold was not "fair." By
-"allowing VCR owners to copy freely by the means of an exemption from
-copyright infringementwithout creating a mechanism to compensate
-copyrightowners," Valenti testified, Congress would "take from the
+— a use the Court would later hold was not <quote>fair.</quote> By
+<quote>allowing VCR owners to copy freely by the means of an exemption from
+copyright infringement without creating a mechanism to compensate
+copyright owners,</quote> Valenti testified, Congress would <quote>take from the
owners the very essence of their property: the exclusive right to
control who may use their work, that is, who may copy it and thereby
-profit from its reproduction.
"<footnote><para>
+profit from its reproduction.
</quote><footnote><para>
<!-- f21 -->
Copyright Infringements (Audio and Video Recorders), 485 (testimony
of Jack Valenti).
<para>
It took eight years for this case to be resolved by the Supreme
Court. In the interim, the Ninth Circuit Court of Appeals, which
-includes Hollywood in its jurisdiction—leading Judge Alex Kozinski,
-who sits on that court, refers to it as the "Hollywood Circuit"—held
-that Sony would be liable for the copyright infringement made possible
-by its machines. Under the Ninth Circuit's rule, this totally familiar
-technology—which Jack Valenti had called "the Boston Strangler of the
-American film industry" (worse yet, it was a Japanese Boston Strangler
-of the American film industry)—was an illegal
+includes Hollywood in its jurisdiction—leading Judge Alex
+Kozinski, who sits on that court, refers to it as the <quote>Hollywood
+Circuit</quote>—held that Sony would be liable for the copyright
+infringement made possible by its machines. Under the Ninth Circuit's
+rule, this totally familiar technology—which Jack Valenti had
+called <quote>the Boston Strangler of the American film industry</quote> (worse
+yet, it was a <emphasis>Japanese</emphasis> Boston Strangler of the
+American film industry)—was an illegal
technology.<footnote><para>
<!-- f22 -->
-Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
+<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.
implicated
by such new technology.<footnote><para>
<!-- f23 -->
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
+<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984).
</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxcongressusoncopyrightlaws3' class='endofrange'/>
<para>
-Congress was asked to respond to the Supreme Court's decision.
-But as with the plea of recording artists about radio broadcasts,
- Congress
-ignored the request. Congress was convinced that American film
-got enough, this "taking" notwithstanding.
-If we put these cases together, a pattern is clear:
+Congress was asked to respond to the Supreme Court's decision. But as
+with the plea of recording artists about radio broadcasts, Congress
+ignored the request. Congress was convinced that American film got
+enough, this <quote>taking</quote> notwithstanding. If we put these cases
+together, a pattern is clear:
</para>
-<table id="t1">
-<title>Table</title>
-<tgroup cols="4" align="char">
+<informaltable id="t1">
+<tgroup cols="4" align="left">
<thead>
<row>
<entry>CASE</entry>
- <entry>WHOSE VALUE WAS "PIRATED"</entry>
+ <entry>WHOSE VALUE WAS <quote>PIRATED</quote></entry>
<entry>RESPONSE OF THE COURTS</entry>
<entry>RESPONSE OF CONGRESS</entry>
</row>
</row>
</tbody>
</tgroup>
-</table>
-
+</informaltable>
+<indexterm startref='idxcassettevcrs1' class='endofrange'/>
<para>
In each case throughout our history, a new technology changed the
way content was distributed.<footnote><para>
was regulated by Congress to minimize the risk of piracy. The remedy
Congress imposed did burden DAT producers, by taxing tape sales and
controlling the technology of DAT. See Audio Home Recording Act of
-1992 (Title 17 of the United States Code), Pub. L. No. 102-563, 106 Stat.
+1992 (Title 17 of the <citetitle>United States Code</citetitle>), Pub. L. No. 102-563, 106 Stat.
4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
eliminate the opportunity for free riding in the sense I've described. See
-Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag,"
-University of Chicago Law Review 70 (2003): 293–96.
+Lessig, <citetitle>Future</citetitle>, 71. See also Picker, <quote>From Edison to the Broadcast Flag,</quote>
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 293–96.
+<indexterm><primary>broadcast flag</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
-that change meant that someone got a "free ride" on someone else's
+that change meant that someone got a <quote>free ride</quote> on someone else's
work.
</para>
<para>
-In none of these cases did either the courts or Congress eliminate all
-free riding. In none of these cases did the courts or Congress insist that
-the law should assure that the copyright holder get all the value that his
-copyright created. In every case, the copyright owners complained of
-"piracy." In every case, Congress acted to recognize some of the
- legitimacy
-in the behavior of the "pirates." In each case, Congress allowed
-some new technology to benefit from content made before. It balanced
-the interests at stake.
+In <emphasis>none</emphasis> of these cases did either the courts or
+Congress eliminate all free riding. In <emphasis>none</emphasis> of
+these cases did the courts or Congress insist that the law should
+assure that the copyright holder get all the value that his copyright
+created. In every case, the copyright owners complained of <quote>piracy.</quote>
+In every case, Congress acted to recognize some of the legitimacy in
+the behavior of the <quote>pirates.</quote> In each case, Congress allowed some new
+technology to benefit from content made before. It balanced the
+interests at stake.
<!-- PAGE BREAK 91 -->
</para>
+<indexterm><primary>Disney, Walt</primary></indexterm>
<para>
When you think across these examples, and the other examples that
make up the first four chapters of this section, this balance makes
controlled film? Should every cover band have to hire a lawyer to get
permission to record a song?
</para>
+<indexterm><primary>Supreme Court, U.S.</primary><secondary>on balance of interests in copyright law</secondary></indexterm>
<para>
We could answer yes to each of these questions, but our tradition
has answered no. In our tradition, as the Supreme Court has stated,
-copyright "has never accorded the copyright owner complete control
-over all possible uses of his work.
"<footnote><para>
+copyright <quote>has never accorded the copyright owner complete control
+over all possible uses of his work.
</quote><footnote><para>
<!-- f25 -->
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,
+<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417,
(1984).
</para></footnote>
-Instead, the particular uses that the
-law regulates have been defined by balancing the good that comes from
-granting an exclusive right against the burdens such an exclusive right
-creates. And this balancing has historically been done after a
- technology
-has matured, or settled into the mix of technologies that facilitate
-the distribution of content.
+Instead, the particular uses that the law regulates have been defined
+by balancing the good that comes from granting an exclusive right
+against the burdens such an exclusive right creates. And this
+balancing has historically been done <emphasis>after</emphasis> a
+technology has matured, or settled into the mix of technologies that
+facilitate the distribution of content.
</para>
<para>
We should be doing the same thing today. The technology of the
Internet is changing quickly. The way people connect to the Internet
(wires vs. wireless) is changing very quickly. No doubt the network
-should not become a tool for "stealing" from artists. But neither should
-the law become a tool to entrench one particular way in which artists
-(or more accurately, distributors) get paid. As I describe in some detail
-in the last chapter of this book, we should be securing income to artists
-while we allow the market to secure the most efficient way to promote
-and distribute content. This will require changes in the law, at least
-in the interim. These changes should be designed to balance the
- protection
-of the law against the strong public interest that innovation
-continue.
+should not become a tool for <quote>stealing</quote> from artists. But neither
+should the law become a tool to entrench one particular way in which
+artists (or more accurately, distributors) get paid. As I describe in
+some detail in the last chapter of this book, we should be securing
+income to artists while we allow the market to secure the most
+efficient way to promote and distribute content. This will require
+changes in the law, at least in the interim. These changes should be
+designed to balance the protection of the law against the strong
+public interest that innovation continue.
</para>
<para>
<!-- PAGE BREAK 92 -->
-This is especially true when a new technology enables a vastly
- superior
-mode of distribution. And this p2p has done. P2p technologies
-can be ideally efficient in moving content across a widely diverse
- network.
-Left to develop, they could make the network vastly more
- efficient.
-Yet these "potential public benefits," as John Schwartz writes in
-The New York Times, "could be delayed in the P2P fight."<footnote><para>
+This is especially true when a new technology enables a vastly
+superior mode of distribution. And this p2p has done. P2p technologies
+can be ideally efficient in moving content across a widely diverse
+network. Left to develop, they could make the network vastly more
+efficient. Yet these <quote>potential public benefits,</quote> as John Schwartz
+writes in <citetitle>The New York Times</citetitle>, <quote>could be delayed in the P2P
+fight.</quote><footnote><para>
<!-- f26 -->
-John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
-Echoes Past Efforts," New York Times, 22 September 2003, C3.
-</para></footnote>
-Yet when anyone begins to talk about "balance," the copyright
- warriors
-raise a different argument. "All this hand waving about balance
-and incentives," they say, "misses a fundamental point. Our content,"
-the warriors insist, "is our property. Why should we wait for Congress
-to `rebalance' our property rights? Do you have to wait before calling
+John Schwartz, <quote>New Economy: The Attack on Peer-to-Peer Software
+Echoes Past Efforts,</quote> <citetitle>New York Times</citetitle>, 22 September 2003, C3.
+</para></footnote>
+</para>
+<para>
+<emphasis role='strong'>Yet when anyone</emphasis> begins to talk
+about <quote>balance,</quote> the copyright warriors raise a different
+argument. <quote>All this hand waving about balance and
+incentives,</quote> they say, <quote>misses a fundamental point. Our
+content,</quote> the warriors insist, <quote>is our
+<emphasis>property</emphasis>. Why should we wait for Congress to
+`rebalance' our property rights? Do you have to wait before calling
the police when your car has been stolen? And why should Congress
-deliberate at all about the merits of this theft? Do we ask whether the
-car thief had a good use for the car before we arrest him?"
+deliberate at all about the merits of this theft? Do we ask whether
+the car thief had a good use for the car before we arrest him?</quote>
</para>
<para>
-"It is our property," the warriors insist. "And it should be protected
-just as any other property is protected."
+<quote>It is <emphasis>our property</emphasis>,</quote> the warriors
+insist. <quote>And it should be protected just as any other property
+is protected.</quote>
</para>
<!-- PAGE BREAK 93 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-property">
-<title>"PROPERTY"</title>
+</part>
+<part id="c-property">
+<title><quote>PROPERTY</quote></title>
+<partintro>
<para>
<!-- PAGE BREAK 94 -->
-The copyright warriors are right: A copyright is a kind of
-property. It can be owned and sold, and the law protects against its
-theft. Ordinarily, the copyright owner gets to hold out for any price he
-wants. Markets reckon the supply and demand that partially determine
-the price she can get.
-</para>
-<para>
-But in ordinary language, to call a copyright a "property" right is a
-bit misleading, for the property of copyright is an odd kind of property.
-Indeed, the very idea of property in any idea or any expression is very
-odd. I understand what I am taking when I take the picnic table you
-put in your backyard. I am taking a thing, the picnic table, and after I
-take it, you don't have it. But what am I taking when I take the good
-idea you had to put a picnic table in the backyard—by, for example,
- going
-to Sears, buying a table, and putting it in my backyard? What is the
-thing I am taking then?
-</para>
+<emphasis role='strong'>The copyright warriors</emphasis> are right: A
+copyright is a kind of property. It can be owned and sold, and the law
+protects against its theft. Ordinarily, the copyright owner gets to
+hold out for any price he wants. Markets reckon the supply and demand
+that partially determine the price she can get.
+</para>
+<para>
+But in ordinary language, to call a copyright a <quote>property</quote> right is a
+bit misleading, for the property of copyright is an odd kind of
+property. Indeed, the very idea of property in any idea or any
+expression is very odd. I understand what I am taking when I take the
+picnic table you put in your backyard. I am taking a thing, the picnic
+table, and after I take it, you don't have it. But what am I taking
+when I take the good <emphasis>idea</emphasis> you had to put a picnic
+table in the backyard—by, for example, going to Sears, buying a
+table, and putting it in my backyard? What is the thing I am taking
+then?
+</para>
+<indexterm><primary>Jefferson, Thomas</primary></indexterm>
<para>
The point is not just about the thingness of picnic tables versus
ideas, though that's an important difference. The point instead is that
take anything from you when I copy the way you dress—though I
might seem weird if I did it every day, and especially weird if you are a
woman. Instead, as Thomas Jefferson said (and as is especially true
-when I copy the way someone else dresses), "He who receives an idea
+when I copy the way someone else dresses), <quote>He who receives an idea
from me, receives instruction himself without lessening mine; as he who
-lights his taper at mine, receives light without darkening me.
"<footnote><para>
+lights his taper at mine, receives light without darkening me.
</quote><footnote><para>
<!-- f1 -->
Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
-The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert
+<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew A. Lipscomb and Albert
Ellery Bergh, eds., 1903), 330, 333–34.
</para></footnote>
</para>
+<indexterm><primary>property rights</primary><secondary>intangibility of</secondary></indexterm>
<para>
The exceptions to free use are ideas and expressions within the
reach of the law of patent and copyright, and a few other domains that
property.
</para>
<para>
-But how, and to what extent, and in what form—the details, in
-other words—matter. To get a good sense of how this practice of
- turning
-the intangible into property emerged, we need to place this
- "property"
-in its proper context.<footnote><para>
+But how, and to what extent, and in what form—the details,
+in other words—matter. To get a good sense of how this practice
+of turning the intangible into property emerged, we need to place this
+<quote>property</quote> in its proper context.<footnote><para>
<!-- f2 -->
-As the legal realists taught American law, all property rights are
- intangible.
-A property right is simply a right that an individual has against the
-world to do or not do certain things that may or may not attach to a
- physical
-object. The right itself is intangible, even if the object to which it is
-(metaphorically) attached is tangible. See Adam Mossoff, "What Is
- Property?
-Putting the Pieces Back Together," Arizona Law Review 45 (2003):
-373, 429 n. 241.
-</para></footnote>
-</para>
-<para>
-My strategy in doing this will be the same as my strategy in the
- preceding
-part. I offer four stories to help put the idea of "copyright
- material
-is property" in context. Where did the idea come from? What are
-its limits? How does it function in practice? After these stories, the
-significance of this true statement—"copyright material is property"—
-will be a bit more clear, and its implications will be revealed as quite
-different from the implications that the copyright warriors would have
-us draw.
+As the legal realists taught American law, all property rights are
+intangible. A property right is simply a right that an individual has
+against the world to do or not do certain things that may or may not
+attach to a physical object. The right itself is intangible, even if
+the object to which it is (metaphorically) attached is tangible. See
+Adam Mossoff, <quote>What Is Property? Putting the Pieces Back Together,</quote>
+<citetitle>Arizona Law Review</citetitle> 45 (2003): 373, 429 n. 241.
+</para></footnote>
+</para>
+<para>
+My strategy in doing this will be the same as my strategy in the
+preceding part. I offer four stories to help put the idea of
+<quote>copyright material is property</quote> in context. Where did the idea come
+from? What are its limits? How does it function in practice? After
+these stories, the significance of this true
+statement—<quote>copyright material is property</quote>— will be a bit
+more clear, and its implications will be revealed as quite different
+from the implications that the copyright warriors would have us draw.
</para>
+</partintro>
<!-- PAGE BREAK 96 -->
-<sect1 id="founders">
+<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
-<para>
-William Shakespeare wrote Romeo and Juliet in 1595. The play
-was first published in 1597. It was the eleventh major play that
- Shakespeare
-had written. He would continue to write plays through 1613,
-and the plays that he wrote have continued to define Anglo-American
-culture ever since. So deeply have the works of a sixteenth-century writer
-seeped into our culture that we often don't even recognize their source.
-I once overheard someone commenting on Kenneth Branagh's
- adaptation
-of Henry V: "I liked it, but Shakespeare is so full of clichés."
-</para>
-<para>
-In 1774, almost 180 years after Romeo and Juliet was written, the
-"copy-right" for the work was still thought by many to be the exclusive
+<indexterm id='idxbooksenglishcopyrightlawdevelopedfor' class='startofrange'><primary>books</primary><secondary>English copyright law developed for</secondary></indexterm>
+<indexterm id='idxcopyrightlawdevelopmentof' class='startofrange'><primary>copyright law</primary><secondary>development of</secondary></indexterm>
+<indexterm id='idxcopyrightlawenglish' class='startofrange'><primary>copyright law</primary><secondary>English</secondary></indexterm>
+<indexterm id='idxenglandcopyrightlawsdevelopedin' class='startofrange'><primary>England, copyright laws developed in</primary></indexterm>
+<indexterm id='idxunitedkingdomhistoryofcopyrightlawin' class='startofrange'><primary>United Kingdom</primary><secondary>history of copyright law in</secondary></indexterm>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
+<indexterm><primary>Henry V</primary></indexterm>
+<indexterm><primary>Shakespeare, William</primary></indexterm>
+<indexterm id='idxromeoandjulietshakespeare' class='startofrange'><primary>Romeo and Juliet (Shakespeare)</primary></indexterm>
+<para>
+<emphasis role='strong'>William Shakespeare</emphasis> wrote
+<citetitle>Romeo and Juliet</citetitle> in 1595. The play was first
+published in 1597. It was the eleventh major play that Shakespeare had
+written. He would continue to write plays through 1613, and the plays
+that he wrote have continued to define Anglo-American culture ever
+since. So deeply have the works of a sixteenth-century writer seeped
+into our culture that we often don't even recognize their source. I
+once overheard someone commenting on Kenneth Branagh's adaptation of
+Henry V: <quote>I liked it, but Shakespeare is so full of
+clichés.</quote>
+</para>
+<indexterm><primary>Conger</primary></indexterm>
+<indexterm id='idxtonsonjacob' class='startofrange'><primary>Tonson, Jacob</primary></indexterm>
+<para>
+In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was written, the
+<quote>copy-right</quote> for the work was still thought by many to be the exclusive
right of a single London publisher, Jacob Tonson.<footnote><para>
<!-- f1 -->
+<indexterm><primary>Jonson, Ben</primary></indexterm>
+<indexterm><primary>Dryden, John</primary></indexterm>
Jacob Tonson is typically remembered for his associations with prominent
eighteenth-century literary figures, especially John Dryden, and for his
-handsome "definitive editions" of classic works. In addition to Romeo and
-Juliet, he published an astonishing array of works that still remain at the
+handsome <quote>definitive editions</quote> of classic works. In addition to <citetitle>Romeo and
+Juliet</citetitle>, he published an astonishing array of works that still remain at the
heart of the English canon, including collected works of Shakespeare, Ben
-Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson,
-Bookseller," American Scholar 61:3 (1992): 424–31.
+Jonson, John Milton, and John Dryden. See Keith Walker, <quote>Jacob Tonson,
+Bookseller,</quote> <citetitle>American Scholar</citetitle> 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, <citetitle>Copyright in Historical Perspective</citetitle> (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 <quote>copy</quote> 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>
+<indexterm><primary>British Parliament</primary></indexterm>
+<indexterm id='idxcopyrightdurationof2' class='startofrange'><primary>copyright</primary><secondary>duration of</secondary></indexterm>
+<indexterm><primary>copyright</primary><secondary>renewability of</secondary></indexterm>
+<indexterm><primary>Statute of Anne (1710)</primary></indexterm>
<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 <quote>copyright</quote> 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?
-</para>
-<para>
-The reason is that the English hadn't yet agreed on what a
- "copyright"
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
+<quote>copyright law.</quote> See Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40.
+</para></footnote> Under this law, <citetitle>Romeo and Juliet</citetitle> should have been
+free in 1731. So why was there any issue about it still being under
+Tonson's control in 1774?
+</para>
+<indexterm startref='idxromeoandjulietshakespeare' class='endofrange'/>
+<indexterm startref='idxtonsonjacob' class='endofrange'/>
+<indexterm id='idxlawcommonvspositive' class='startofrange'><primary>law</primary><secondary>common vs. positive</secondary></indexterm>
+<indexterm><primary>positive law</primary></indexterm>
+<indexterm><primary>Licensing Act (1662)</primary></indexterm>
+<para>
+The reason is that the English hadn't yet agreed on what a <quote>copyright</quote>
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.
-</para>
-<para>
-There was no positive law, but that didn't mean that there was no
-law. The Anglo-American legal tradition looks to both the words of
-legislatures and the words of judges to know the rules that are to
- govern
-how people are to behave. We call the words from legislatures
- "positive
-law." We call the words from judges "common law." The common
-law sets the background against which legislatures legislate; the
- legislature,
-ordinarily, can trump that background only if it passes a law to
-displace it. And so the real question after the licensing statutes had
- expired
-was whether the common law protected a copyright,
- independent
-of any positive law.
-</para>
-<para>
-This question was important to the publishers, or "booksellers," as
+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 <quote>Stationers,</quote> had an exclusive right to print
+books.
+</para>
+<indexterm startref='idxcopyrightdurationof2' class='endofrange'/>
+<indexterm><primary>common law</primary></indexterm>
+<para>
+There was no <emphasis>positive</emphasis> law, but that didn't mean
+that there was no law. The Anglo-American legal tradition looks to
+both the words of legislatures and the words of judges to know the
+rules that are to govern how people are to behave. We call the words
+from legislatures <quote>positive law.</quote> We call the words from judges
+<quote>common law.</quote> The common law sets the background against which
+legislatures legislate; the legislature, ordinarily, can trump that
+background only if it passes a law to displace it. And so the real
+question after the licensing statutes had expired was whether the
+common law protected a copyright, independent of any positive law.
+</para>
+<indexterm startref='idxlawcommonvspositive' class='endofrange'/>
+<indexterm><primary>Conger</primary></indexterm>
+<indexterm id='idxbritishparliament' class='startofrange'><primary>British Parliament</primary></indexterm>
+<indexterm><primary>Scottish publishers</primary></indexterm>
+<indexterm id='idxstatuteofanne' class='startofrange'><primary>Statute of Anne (1710)</primary></indexterm>
+<para>
+This question was important to the publishers, or <quote>booksellers,</quote> as
they were called, because there was growing competition from foreign
publishers. The Scottish, in particular, were increasingly publishing
and exporting books to England. That competition reduced the profits
ultimately
resulted in the Statute of Anne.
</para>
+<indexterm id='idxcopyrightasnarrowmonopolyright' class='startofrange'><primary>copyright</primary><secondary>as narrow monopoly right</secondary></indexterm>
<para>
-The Statute of Anne granted the author or "proprietor" of a book
-an exclusive right to print that book. In an important limitation,
- however,
-and to the horror of the booksellers, the law gave the bookseller
-that right for a limited term. At the end of that term, the copyright
- "expired,"
-and the work would then be free and could be published by
-anyone. Or so the legislature is thought to have believed.
+The Statute of Anne granted the author or <quote>proprietor</quote> of a book an
+exclusive right to print that book. In an important limitation,
+however, and to the horror of the booksellers, the law gave the
+bookseller that right for a limited term. At the end of that term, the
+copyright <quote>expired,</quote> and the work would then be free and could be
+published by anyone. Or so the legislature is thought to have
+believed.
</para>
+<indexterm startref='idxstatuteofanne' class='endofrange'/>
<para>
Now, the thing to puzzle about for a moment is this: Why would
-Parliament limit the exclusive right? Not why would they limit it to the
-particular limit they set, but why would they limit the right at all?
+Parliament limit the exclusive right? Not why would they limit it to
+the particular limit they set, but why would they limit the right
+<emphasis>at all?</emphasis>
</para>
+<indexterm startref='idxbritishparliament' class='endofrange'/>
+<indexterm><primary>Shakespeare, William</primary></indexterm>
+<indexterm><primary>Romeo and Juliet (Shakespeare)</primary></indexterm>
<para>
-For the booksellers, and the authors whom they represented, had a
-very strong claim. Take Romeo and Juliet as an example: That play was
-written by Shakespeare. It was his genius that brought it into the
+For the booksellers, and the authors whom they represented, had a very
+strong claim. Take <citetitle>Romeo and Juliet</citetitle> as an example: That play
+was written by Shakespeare. It was his genius that brought it into the
world. He didn't take anybody's property when he created this play
-(that's a controversial claim, but never mind), and by his creating this
-play, he didn't make it any harder for others to craft a play. So why is it
-that the law would ever allow someone else to come along and take
-Shakespeare's play without his, or his estate's, permission? What
- reason
-is there to allow someone else to "steal" Shakespeare's work?
+(that's a controversial claim, but never mind), and by his creating
+this play, he didn't make it any harder for others to craft a play. So
+why is it that the law would ever allow someone else to come along and
+take Shakespeare's play without his, or his estate's, permission? What
+reason is there to allow someone else to <quote>steal</quote> Shakespeare's work?
</para>
+<indexterm><primary>Statute of Anne (1710)</primary></indexterm>
<para>
-The answer comes in two parts. We first need to see something
- special
-about the notion of "copyright" that existed at the time of the
+The answer comes in two parts. We first need to see something special
+about the notion of <quote>copyright</quote> that existed at the time of the
Statute of Anne. Second, we have to see something important about
-"booksellers."
-</para>
-<para>
-First, about copyright. In the last three hundred years, we have
-come to apply the concept of "copyright" ever more broadly. But in
-1710, it wasn't so much a concept as it was a very particular right. The
-copyright was born as a very specific set of restrictions: It forbade
- others
-from reprinting a book. In 1710, the "copy-right" was a right to use
-a particular machine to replicate a particular work. It did not go
- beyond
-that very narrow right. It did not control any more generally how
+<quote>booksellers.</quote>
+</para>
+<indexterm><primary>copyright</primary><secondary>usage restrictions attached to</secondary></indexterm>
+<para>
+First, about copyright. In the last three hundred years, we have come
+to apply the concept of <quote>copyright</quote> ever more broadly. But in 1710, it
+wasn't so much a concept as it was a very particular right. The
+copyright was born as a very specific set of restrictions: It forbade
+others from reprinting a book. In 1710, the <quote>copy-right</quote> was a right
+to use a particular machine to replicate a particular work. It did not
+go beyond that very narrow right. It did not control any more
+generally how
<!-- PAGE BREAK 99 -->
-a work could be used. Today the right includes a large collection of
- restrictions
-on the freedom of others: It grants the author the exclusive
-right to copy, the exclusive right to distribute, the exclusive right to
-perform, and so on.
+a work could be <emphasis>used</emphasis>. Today the right includes a
+large collection of restrictions on the freedom of others: It grants
+the author the exclusive right to copy, the exclusive right to
+distribute, the exclusive right to perform, and so on.
</para>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
+<indexterm><primary>Shakespeare, William</primary></indexterm>
<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 <quote>copy-right</quote> 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>
+<indexterm id='idxmonopolycopyrightas' class='startofrange'><primary>monopoly, copyright as</primary></indexterm>
+<indexterm><primary>Statute of Monopolies (1656)</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
-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.
+They had had a long and ugly experience with <quote>exclusive rights,</quote>
+especially <quote>exclusive rights</quote> 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 <quote>copy-right,</quote> when viewed as a monopoly right, was naturally
+viewed as a right that should be limited. (However convincing the
+claim that <quote>it's my property, and I should have it forever,</quote> try
+sounding convincing when uttering, <quote>It's my monopoly, and I should
+have it forever.</quote>) 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>
+<indexterm><primary>Milton, John</primary></indexterm>
+<indexterm id='idxbooksellersenglish' class='startofrange'><primary>booksellers, English</primary></indexterm>
+<indexterm><primary>Conger</primary></indexterm>
+<indexterm id='idxcopyrightdurationof3' class='startofrange'><primary>copyright</primary><secondary>duration of</secondary></indexterm>
<para>
Second, about booksellers. It wasn't just that the copyright was a
monopoly. It was also that it was a monopoly held by the booksellers.
Booksellers sound quaint and harmless to us. They were not viewed
as harmless in seventeenth-century England. Members of the Conger
<!-- PAGE BREAK 100 -->
-were increasingly seen as monopolists of the worst kind—tools of the
-Crown's repression, selling the liberty of England to guarantee
- themselves
-a monopoly profit. The attacks against these monopolists were
-harsh: Milton described them as "old patentees and monopolizers in
-the trade of book-selling"; they were "men who do not therefore labour
-in an honest profession to which learning is indetted."<footnote><para>
+
+were increasingly seen as monopolists of the worst
+kind—tools of the Crown's repression, selling the liberty of
+England to guarantee themselves a monopoly profit. The attacks against
+these monopolists were harsh: Milton described them as <quote>old patentees
+and monopolizers in the trade of book-selling</quote>; they were <quote>men who do
+not therefore labour in an honest profession to which learning is
+indetted.</quote><footnote><para>
+
<!-- f4 -->
-Philip Wittenberg, The Protection and Marketing of Literary Property (New
-York: J. Messner, Inc., 1937), 31.
+Philip Wittenberg, <citetitle>The Protection and Marketing of Literary
+Property</citetitle> (New York: J. Messner, Inc., 1937), 31.
</para></footnote>
</para>
+<indexterm><primary>Enlightenment</primary></indexterm>
+<indexterm><primary>knowledge, freedom of</primary></indexterm>
<para>
-Many believed the power the booksellers exercised over the spread
-of knowledge was harming that spread, just at the time the
- Enlightenment
+Many believed the power the booksellers exercised over the spread of
+knowledge was harming that spread, just at the time the Enlightenment
was teaching the importance of education and knowledge spread
-generally. The idea that knowledge should be free was a hallmark of the
-time, and these powerful commercial interests were interfering with
-that idea.
+generally. The idea that knowledge should be free was a hallmark of
+the time, and these powerful commercial interests were interfering
+with that idea.
</para>
+<indexterm id='idxbritishparliament2' class='startofrange'><primary>British Parliament</primary></indexterm>
<para>
To balance this power, Parliament decided to increase competition
among booksellers, and the simplest way to do that was to spread the
an indirect way to assure competition among publishers, and thus the
construction and spread of culture.
</para>
+<indexterm id='idxstatuteofanne2' class='startofrange'><primary>Statute of Anne (1710)
+</primary></indexterm>
+<indexterm id='idxcopyrightinperpetuity' class='startofrange'><primary>copyright</primary><secondary>in perpetuity</secondary></indexterm>
<para>
When 1731 (1710 + 21) came along, however, the booksellers were
getting anxious. They saw the consequences of more competition, and
Encouragement of Learning, by Vesting the Copies of Printed Books in
the Authors or Purchasers of such Copies, during the Times therein
mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
-al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618).
+al., 8, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618).
</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxstatuteofanne2' class='endofrange'/>
+<indexterm startref='idxcopyrightinperpetuity' class='endofrange'/>
+<indexterm><primary>common law</primary></indexterm>
+<indexterm><primary>law</primary><secondary>common vs. positive</secondary></indexterm>
+<indexterm><primary>positive law</primary></indexterm>
<para>
Having failed in Parliament, the publishers turned to the courts in a
series of cases. Their argument was simple and direct: The Statute of
protections were not intended as replacements for the common law.
Instead, they were intended simply to supplement the common law.
Under common law, it was already wrong to take another person's
-creative "property" and use it without his permission. The Statute of
+creative <quote>property</quote> and use it without his permission. The Statute of
Anne, the booksellers argued, didn't change that. Therefore, just
because the protections of the Statute of Anne expired, that didn't
mean the protections of the common law expired: Under the common law
Statute of Anne copyright had expired. This, they argued, was the only
way to protect authors.
</para>
+<indexterm startref='idxbritishparliament2' class='endofrange'/>
<para>
This was a clever argument, and one that had the support of some of
the leading jurists of the day. It also displayed extraordinary
chutzpah. Until then, as law professor Raymond Patterson has put it,
-"The publishers . . . had as much concern for authors as a cattle
-rancher has for cattle.
"<footnote><para>
+<quote>The publishers … had as much concern for authors as a cattle
+rancher has for cattle.
</quote><footnote><para>
<!-- f6 -->
-Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
-Law Review 40 (1987): 28. For a wonderfully compelling account, see
+<indexterm><primary>Patterson, Raymond</primary></indexterm>
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+Lyman Ray Patterson, <quote>Free Speech, Copyright, and Fair Use,</quote> <citetitle>Vanderbilt
+Law Review</citetitle> 40 (1987): 28. For a wonderfully compelling account, see
Vaidhyanathan, 37–48.
</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.
</para>
+<indexterm id='idxdonaldsonalexander' class='startofrange'><primary>Donaldson, Alexander</primary></indexterm>
+<indexterm><primary>Patterson, Raymond</primary></indexterm>
+<indexterm id='idxscottishpublishers' class='startofrange'><primary>Scottish publishers</primary></indexterm>
<para>
The booksellers' argument was not accepted without a fight.
The hero of this fight was a Scottish bookseller named Alexander
Donaldson.<footnote><para>
<!-- f7 -->
-For a compelling account, see David Saunders, Authorship and Copyright
+For a compelling account, see David Saunders, <citetitle>Authorship and Copyright</citetitle>
(London: Routledge, 1992), 62–69.
</para></footnote>
</para>
+<indexterm id='idxstatuteofanne3' class='startofrange'><primary>Statute of Anne (1710)</primary></indexterm>
+<indexterm id='idxconger' class='startofrange'><primary>Conger</primary></indexterm>
+<indexterm><primary>Boswell, James</primary></indexterm>
+<indexterm><primary>Erskine, Andrew</primary></indexterm>
<para>
Donaldson was an outsider to the London Conger. He began his
career in Edinburgh in 1750. The focus of his business was inexpensive
-reprints "of standard works whose copyright term had expired," at least
+reprints <quote>of standard works whose copyright term had expired,</quote> at least
under the Statute of Anne.<footnote><para>
<!-- f8 -->
-Mark Rose, Authors and Owners (Cambridge: Harvard University Press,
+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 -->
-and became "something of a center for literary Scotsmen." "[A]mong
-them," Professor Mark Rose writes, was "the young James Boswell
+and became <quote>something of a center for literary Scotsmen.</quote> <quote>[A]mong
+them,</quote> Professor Mark Rose writes, was <quote>the young James Boswell
who, together with his friend Andrew Erskine, published an anthology
-of contemporary Scottish poems with Donaldson.
"<footnote><para>
+of contemporary Scottish poems with Donaldson.
</quote><footnote><para>
<!-- f9 -->
Ibid., 93.
</para></footnote>
-<indexterm><primary>Erskine, Andrew</primary></indexterm>
</para>
+<indexterm id='idxcommonlaw' class='startofrange'><primary>common law</primary></indexterm>
<para>
When the London booksellers tried to shut down Donaldson's shop in
Scotland, he responded by moving his shop to London, where he sold
-inexpensive editions "of the most popular English books, in defiance
+inexpensive editions <quote>of the most popular English books, in defiance
of the supposed common law right of Literary
-Property.
"<footnote><para>
+Property.
</quote><footnote><para>
<!-- f10 -->
-Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting
+<indexterm><primary>Patterson, Raymond</primary></indexterm>
+Lyman Ray Patterson, <citetitle>Copyright in Historical Perspective</citetitle>, 167 (quoting
Borwell).
</para></footnote>
His books undercut the Conger prices by 30 to 50 percent, and he
rested his right to compete upon the ground that, under the Statute of
Anne, the works he was selling had passed out of protection.
</para>
+<indexterm startref='idxconger' class='endofrange'/>
+<indexterm id='idxmillarvtaylor' class='startofrange'><primary>Millar v. Taylor</primary></indexterm>
<para>
-The London booksellers quickly brought suit to block "piracy" like
-Donaldson's. A number of actions were successful against the "pirates,"
-the most important early victory being Millar v. Taylor.
+The London booksellers quickly brought suit to block <quote>piracy</quote> like
+Donaldson's. A number of actions were successful against the <quote>pirates,</quote>
+the most important early victory being <citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>.
</para>
+<indexterm startref='idxdonaldsonalexander' class='endofrange'/>
+<indexterm startref='idxscottishpublishers' class='endofrange'/>
+<indexterm id='idxthomsonjames' class='startofrange'><primary>Thomson, James</primary></indexterm>
+<indexterm id='idxcopyrightinperpetuity2' class='startofrange'><primary>copyright</primary><secondary>in perpetuity</secondary></indexterm>
+<indexterm><primary>Seasons, The (Thomson)</primary></indexterm>
+<indexterm><primary>Taylor, Robert</primary></indexterm>
<para>
Millar was a bookseller who in 1729 had purchased the rights to James
-Thomson's poem "The Seasons." Millar complied with the requirements of
+Thomson's poem <quote>The Seasons.</quote> Millar complied with the requirements of
the Statute of Anne, and therefore received the full protection of the
statute. After the term of copyright ended, Robert Taylor began
printing a competing volume. Millar sued, claiming a perpetual common
law right, the Statute of Anne notwithstanding.<footnote><para>
<!-- f11 -->
-Howard B. Abrams, "The Historic Foundation of American Copyright Law:
-Exploding the Myth of Common Law Copyright," Wayne Law Review 29
+Howard B. Abrams, <quote>The Historic Foundation of American Copyright Law:
+Exploding the Myth of Common Law Copyright,</quote> <citetitle>Wayne Law Review</citetitle> 29
(1983): 1152.
</para></footnote>
</para>
-<indexterm id="idxmansfield2" class='startofrange'>
- <primary>Mansfield, William Murray, Lord</primary>
-</indexterm>
+<indexterm id='idxmansfieldwilliammurraylord2' class='startofrange'><primary>Mansfield, William Murray, Lord</primary></indexterm>
<para>
Astonishingly to modern lawyers, one of the greatest judges in English
history, Lord Mansfield, agreed with the booksellers. Whatever
protection the Statute of Anne gave booksellers, it did not, he held,
extinguish any common law right. The question was whether the common
-law would protect the author against subsequent "pirates."
+law would protect the author against subsequent <quote>pirates.</quote>
Mansfield's answer was yes: The common law would bar Taylor from
reprinting Thomson's poem without Millar's permission. That common law
rule thus effectively gave the booksellers a perpetual right to
control the publication of any book assigned to them.
</para>
+<indexterm startref='idxcommonlaw' class='endofrange'/>
+<indexterm startref='idxthomsonjames' class='endofrange'/>
+<indexterm startref='idxcopyrightinperpetuity2' class='endofrange'/>
+<indexterm id='idxbritishparliament3' class='startofrange'><primary>British Parliament</primary></indexterm>
<para>
Considered as a matter of abstract justice—reasoning as if
justice were just a matter of logical deduction from first
believed, Britain would mature from the controlled culture that the
Crown coveted to the free culture that we inherited.
</para>
-<indexterm startref="idxmansfield2" class='endofrange'/>
+<indexterm startref='idxmansfieldwilliammurraylord2' class='endofrange'/>
+<indexterm id='idxdonaldsonalexander2' class='startofrange'><primary>Donaldson, Alexander</primary></indexterm>
+<indexterm id='idxscottishpublishers2' class='startofrange'><primary>Scottish publishers</primary></indexterm>
<para>
The fight to defend the limits of the Statute of Anne was not to end
there, however, and it is here that Donaldson enters the mix.
</para>
+<indexterm><primary>Thomson, James</primary></indexterm>
<indexterm><primary>Beckett, Thomas</primary></indexterm>
+<indexterm id='idxhouseoflords' class='startofrange'><primary>House of Lords</primary></indexterm>
+<indexterm id='idxsupremecourtushouseoflordsvs' class='startofrange'><primary>Supreme Court, U.S.</primary><secondary>House of Lords vs.</secondary></indexterm>
<para>
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
Ibid., 1156.
</para></footnote>
Donaldson then released an unauthorized edition
-of Thomson's works. Beckett, on the strength of the decision in Millar,
+of Thomson's works. Beckett, on the strength of the decision in <citetitle>Millar</citetitle>,
got an injunction against Donaldson. Donaldson appealed the case to
the House of Lords, which functioned much like our own Supreme
Court. In February of 1774, that body had the chance to interpret the
meaning of Parliament's limits from sixty years before.
</para>
+<indexterm startref='idxmillarvtaylor' class='endofrange'/>
+<indexterm startref='idxbritishparliament3' class='endofrange'/>
+<indexterm id='idxdonaldsonvbeckett' class='startofrange'><primary>Donaldson v. Beckett</primary></indexterm>
+<indexterm id='idxcommonlaw2' class='startofrange'><primary>common law</primary></indexterm>
<para>
-As few legal cases ever do, Donaldson v. Beckett drew an enormous
-amount of attention throughout Britain. Donaldson's lawyers argued
-that whatever rights may have existed under the common law, the Statute
-of Anne terminated those rights. After passage of the Statute of Anne,
-the only legal protection for an exclusive right to control publication
-came from that statute. Thus, they argued, after the term specified in
-the Statute of Anne expired, works that had been protected by the
-statute were no longer protected.
+As few legal cases ever do, <citetitle>Donaldson</citetitle> v. <citetitle>Beckett</citetitle> drew an
+enormous amount of attention throughout Britain. Donaldson's lawyers
+argued that whatever rights may have existed under the common law, the
+Statute of Anne terminated those rights. After passage of the Statute
+of Anne, the only legal protection for an exclusive right to control
+publication came from that statute. Thus, they argued, after the term
+specified in the Statute of Anne expired, works that had been
+protected by the statute were no longer protected.
</para>
+<indexterm startref='idxstatuteofanne3' class='endofrange'/>
<para>
The House of Lords was an odd institution. Legal questions were
-presented to the House and voted upon first by the "law lords,"
+presented to the House and voted upon first by the <quote>law lords,</quote>
members of special legal distinction who functioned much like the
Justices in our Supreme Court. Then, after the law lords voted, the
House of Lords generally voted.
</para>
+<indexterm startref='idxsupremecourtushouseoflordsvs' class='endofrange'/>
+<indexterm id='idxcopyrightinperpetuity3' class='startofrange'><primary>copyright</primary><secondary>in perpetuity</secondary></indexterm>
+<indexterm id='idxpublicdomainenglishlegalestablishmentof' class='startofrange'><primary>public domain</primary><secondary>English legal establishment of</secondary></indexterm>
<para>
The reports about the law lords' votes are mixed. On some counts,
it looks as if perpetual copyright prevailed. But there is no ambiguity
fixed for a limited time, after which the work protected by copyright
passed into the public domain.
</para>
-<para>
-"The public domain." Before the case of Donaldson v. Beckett, there
-was no clear idea of a public domain in England. Before 1774, there
-was a strong argument that common law copyrights were perpetual.
-After 1774, the public domain was born. For the first time in
-Anglo-American history, the legal control over creative works expired,
-and the greatest works in English history—including those of
-Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of
-legal restraint.
<indexterm><primary>Bacon, Francis</primary></indexterm>
<indexterm><primary>Bunyan, John</primary></indexterm>
<indexterm><primary>Johnson, Samuel</primary></indexterm>
<indexterm><primary>Milton, John</primary></indexterm>
<indexterm><primary>Shakespeare, William</primary></indexterm>
-</para>
+<para>
+<quote>The public domain.</quote> Before the case of <citetitle>Donaldson</citetitle>
+v. <citetitle>Beckett</citetitle>, there was no clear idea of a public domain in
+England. Before 1774, there was a strong argument that common law
+copyrights were perpetual. After 1774, the public domain was
+born. For the first time in Anglo-American history, the legal control
+over creative works expired, and the greatest works in English
+history—including those of Shakespeare, Bacon, Milton, Johnson,
+and Bunyan—were free of legal restraint.
+</para>
+<indexterm startref='idxdonaldsonalexander2' class='endofrange'/>
+<indexterm startref='idxscottishpublishers2' class='endofrange'/>
+<indexterm startref='idxcommonlaw2' class='endofrange'/>
+<indexterm startref='idxcopyrightinperpetuity3' class='endofrange'/>
+<indexterm startref='idxpublicdomainenglishlegalestablishmentof' class='endofrange'/>
+<indexterm><primary>Scottish publishers</primary></indexterm>
<para>
It is hard for us to imagine, but this decision by the House of Lords
fueled an extraordinarily popular and political reaction. In Scotland,
-where most of the "pirate publishers" did their work, people
-celebrated the decision in the streets. As the Edinburgh Advertiser
-reported, "No private cause has so much engrossed the attention of the
+where most of the <quote>pirate publishers</quote> did their work, people
+celebrated the decision in the streets. As the <citetitle>Edinburgh Advertiser</citetitle>
+reported, <quote>No private cause has so much engrossed the attention of the
public, and none has been tried before the House of Lords in the
-decision of which so many individuals were interested." "Great
+decision of which so many individuals were interested.</quote> <quote>Great
rejoicing in Edinburgh upon victory over literary property: bonfires
-and illuminations.
"<footnote><para>
+and illuminations.
</quote><footnote><para>
<!-- f13 -->
Rose, 97.
</para></footnote>
</para>
+<indexterm startref='idxhouseoflords' class='endofrange'/>
<para>
In London, however, at least among publishers, the reaction was
-equally strong in the opposite direction. The Morning Chronicle
+equally strong in the opposite direction. The <citetitle>Morning Chronicle</citetitle>
reported:
</para>
<blockquote>
<para>
-By the above decision . . . near 200,000 pounds worth of what was
+By the above decision … near 200,000 pounds worth of what was
honestly purchased at public sale, and which was yesterday thought
property is now reduced to nothing. The Booksellers of London and
Westminster, many of whom sold estates and houses to purchase
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>House of Lords</primary></indexterm>
+<indexterm><primary>free culture</primary><secondary>English legal establishment of</secondary></indexterm>
<para>
<!-- PAGE BREAK 105 -->
-"Ruined" is a bit of an exaggeration. But it is not an exaggeration to
+<quote>Ruined</quote> is a bit of an exaggeration. But it is not an exaggeration to
say that the change was profound. The decision of the House of Lords
meant that the booksellers could no longer control how culture in
England would grow and develop. Culture in England was thereafter
-free. Not in the sense that copyrights would not be respected, for of
-course, for a limited time after a work was published, the bookseller
-had an exclusive right to control the publication of that book. And
-not in the sense that books could be stolen, for even after a
-copyright expired, you still had to buy the book from someone. But
-free in the sense that the culture and its growth would no longer be
-controlled by a small group of publishers. As every free market does,
-this free market of free culture would grow as the consumers and
-producers chose. English culture would develop as the many English
-readers chose to let it develop— chose in the books they bought
-and wrote; chose in the memes they repeated and endorsed. Chose in a
-competitive context, not a context in which the choices about what
+<emphasis>free</emphasis>. Not in the sense that copyrights would not
+be respected, for of course, for a limited time after a work was
+published, the bookseller had an exclusive right to control the
+publication of that book. And not in the sense that books could be
+stolen, for even after a copyright expired, you still had to buy the
+book from someone. But <emphasis>free</emphasis> in the sense that the
+culture and its growth would no longer be controlled by a small group
+of publishers. As every free market does, this free market of free
+culture would grow as the consumers and producers chose. English
+culture would develop as the many English readers chose to let it
+develop— chose in the books they bought and wrote; chose in the
+memes they repeated and endorsed. Chose in a <emphasis>competitive
+context</emphasis>, not a context in which the choices about what
culture is available to people and how they get access to it are made
by the few despite the wishes of the many.
</para>
+<indexterm startref='idxbooksellersenglish' class='endofrange'/>
+<indexterm><primary>British Parliament</primary></indexterm>
<para>
At least, this was the rule in a world where the Parliament is
antimonopoly, resistant to the protectionist pleas of publishers. In a
world where the Parliament is more pliant, free culture would be less
protected.
</para>
+<indexterm startref='idxbooksenglishcopyrightlawdevelopedfor' class='endofrange'/>
+<indexterm startref='idxcopyrightlawdevelopmentof' class='endofrange'/>
+<indexterm startref='idxcopyrightlawenglish' class='endofrange'/>
+<indexterm startref='idxenglandcopyrightlawsdevelopedin' class='endofrange'/>
+<indexterm startref='idxunitedkingdomhistoryofcopyrightlawin' class='endofrange'/>
+<indexterm startref='idxcopyrightasnarrowmonopolyright' class='endofrange'/>
+<indexterm startref='idxmonopolycopyrightas' class='endofrange'/>
+<indexterm startref='idxcopyrightdurationof3' class='endofrange'/>
+<indexterm startref='idxdonaldsonvbeckett' class='endofrange'/>
<!-- PAGE BREAK 106 -->
-</sect1>
-<sect1 id="recorders">
+</chapter>
+<chapter label="7" id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
+<indexterm id='idxcopyrightlawfairuseand' class='startofrange'><primary>copyright law</primary><secondary>fair use and</secondary></indexterm>
+<indexterm id='idxdocumentaryfilm' class='startofrange'><primary>documentary film</primary></indexterm>
+<indexterm id='idxelsejon' class='startofrange'><primary>Else, Jon</primary></indexterm>
+<indexterm id='idxfairuseindocumentaryfilm' class='startofrange'><primary>fair use</primary><secondary>in documentary film</secondary></indexterm>
+<indexterm id='idxfilmsfairuseofcopyrightedmaterialin' class='startofrange'><primary>films</primary><secondary>fair use of copyrighted material in</secondary></indexterm>
<para>
-Jon Else is a filmmaker. He is best known for his documentaries and
-has been very successful in spreading his art. He is also a teacher, and
-as a teacher myself, I envy the loyalty and admiration that his students
-feel for him. (I met, by accident, two of his students at a dinner party.
-He was their god.)
+<emphasis role='strong'>Jon Else</emphasis> is a filmmaker. He is best
+known for his documentaries and has been very successful in spreading
+his art. He is also a teacher, and as a teacher myself, I envy the
+loyalty and admiration that his students feel for him. (I met, by
+accident, two of his students at a dinner party. He was their god.)
</para>
<para>
Else worked on a documentary that I was involved in. At a break,
he told me a story about the freedom to create with film in America
today.
</para>
+<indexterm id='idxwagnerrichard' class='startofrange'><primary>Wagner, Richard</primary></indexterm>
+<indexterm><primary>San Francisco Opera</primary></indexterm>
<para>
In 1990, Else was working on a documentary about Wagner's Ring
Cycle. The focus was stagehands at the San Francisco Opera.
During a show, they hang out below the stage in the grips' lounge and
in the lighting loft. They make a perfect contrast to the art on the
stage.
-<indexterm><primary>San Francisco Opera</primary></indexterm>
</para>
+<indexterm id='idxsimpsonsthe' class='startofrange'><primary>Simpsons, The</primary></indexterm>
<para>
During one of the performances, Else was shooting some stagehands
playing checkers. In one corner of the room was a television set.
Playing on the television set, while the stagehands played checkers
-and the opera company played Wagner, was The Simpsons. As Else judged
+and the opera company played Wagner, was <citetitle>The Simpsons</citetitle>. As Else judged
<!-- PAGE BREAK 107 -->
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
</para>
+<indexterm startref='idxwagnerrichard' class='endofrange'/>
+<indexterm><primary>films</primary><secondary>multiple copyrights associated with</secondary></indexterm>
<para>
Years later, when he finally got funding to complete the film, Else
-attempted to clear the rights for those few seconds of The Simpsons.
+attempted to clear the rights for those few seconds of <citetitle>The Simpsons</citetitle>.
For of course, those few seconds are copyrighted; and of course, to use
copyrighted material you need the permission of the copyright owner,
-unless "fair use" or some other privilege applies.
+unless <quote>fair use</quote> or some other privilege applies.
</para>
+<indexterm id='idxgraciefilms' class='startofrange'><primary>Gracie Films</primary></indexterm>
+<indexterm id='idxgroeningmatt' class='startofrange'><primary>Groening, Matt</primary></indexterm>
<para>
-Else called Simpsons creator Matt Groening's office to get permission.
+Else called <citetitle>Simpsons</citetitle> creator Matt Groening's office to get permission.
Groening approved the shot. The shot was a four-and-a-halfsecond image
on a tiny television set in the corner of the room. How could it hurt?
Groening was happy to have it in the film, but he told Else to contact
Gracie Films, the company that produces the program.
-<indexterm><primary>Gracie Films</primary></indexterm>
</para>
+<indexterm id='idxfoxfilmcompany' class='startofrange'><primary>Fox (film company)</primary></indexterm>
<para>
Gracie Films was okay with it, too, but they, like Groening, wanted
to be careful. So they told Else to contact Fox, Gracie's parent company.
Else called Fox and told them about the clip in the corner of the one
room shot of the film. Matt Groening had already given permission,
Else said. He was just confirming the permission with Fox.
-<indexterm><primary>Gracie Films</primary></indexterm>
</para>
+<indexterm startref='idxgraciefilms' class='endofrange'/>
<para>
-Then, as Else told me, "two things happened. First we discovered
-. . . that Matt Groening doesn't own his own creation—or at
-least that someone [at Fox] believes he doesn't own his own creation."
-And second, Fox "wanted ten thousand dollars as a licensing fee for us
-to use this four-point-five seconds of . . . entirely unsolicited
-Simpsons which was in the corner of the shot."
+Then, as Else told me, <quote>two things happened. First we discovered
+… that Matt Groening doesn't own his own creation—or at
+least that someone [at Fox] believes he doesn't own his own creation.</quote>
+And second, Fox <quote>wanted ten thousand dollars as a licensing fee for us
+to use this four-point-five seconds of … entirely unsolicited
+<citetitle>Simpsons</citetitle> which was in the corner of the shot.</quote>
</para>
+<indexterm startref='idxgroeningmatt' class='endofrange'/>
+<indexterm startref='idxfoxfilmcompany' class='endofrange'/>
+<indexterm id='idxherrerarebecca' class='startofrange'><primary>Herrera, Rebecca</primary></indexterm>
<para>
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
-explained to her, "There must be some mistake here. . . . We're
-asking for your educational rate on this." That was the educational
+explained to her, <quote>There must be some mistake here. … We're
+asking for your educational rate on this.</quote> That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
</para>
+<indexterm><primary>Wagner, Richard</primary></indexterm>
<para>
-"I wanted to make sure I had my facts straight," he told me. "Yes, you
-have your facts straight," she said. It would cost $10,000 to use the
-clip of The Simpsons in the corner of a shot in a documentary film
+<quote>I wanted to make sure I had my facts straight,</quote> he told me. <quote>Yes, you
+have your facts straight,</quote> she said. It would cost $10,000 to use the
+clip of <citetitle>The Simpsons</citetitle> in the corner of a shot in a documentary film
about
<!-- PAGE BREAK 108 -->
-Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And
-if you quote me, I'll turn you over to our attorneys." As an assistant
-to Herrera told Else later on, "They don't give a shit. They just want
-the money."
+Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, <quote>And
+if you quote me, I'll turn you over to our attorneys.</quote> As an assistant
+to Herrera told Else later on, <quote>They don't give a shit. They just want
+the money.</quote>
</para>
+<indexterm startref='idxherrerarebecca' class='endofrange'/>
+<indexterm><primary>San Francisco Opera</primary></indexterm>
+<indexterm><primary>Day After Trinity, The</primary></indexterm>
<para>
Else didn't have the money to buy the right to replay what was playing
on the television backstage at the San Francisco Opera. To reproduce
this reality was beyond the documentary filmmaker's budget. At the
very last minute before the film was to be released, Else digitally
replaced the shot with a clip from another film that he had worked on,
-The Day After Trinity, from ten years before.
-<indexterm><primary>San Francisco Opera</primary></indexterm>
+<citetitle>The Day After Trinity</citetitle>, from ten years before.
</para>
+<indexterm id='idxfoxfilmcompany2' class='startofrange'><primary>Fox (film company)</primary></indexterm>
+<indexterm id='idxgroeningmatt2' class='startofrange'><primary>Groening, Matt</primary></indexterm>
<para>
There's no doubt that someone, whether Matt Groening or Fox, owns the
-copyright to The Simpsons. That copyright is their property. To use
+copyright to <citetitle>The Simpsons</citetitle>. That copyright is their property. To use
that copyrighted material thus sometimes requires the permission of
the copyright owner. If the use that Else wanted to make of the
-Simpsons copyright were one of the uses restricted by the law, then he
+<citetitle>Simpsons</citetitle> copyright were one of the uses restricted by the law, then he
would need to get the permission of the copyright owner before he
could use the work in that way. And in a free market, it is the owner
of the copyright who gets to set the price for any use that the law
says the owner gets to control.
</para>
<para>
-For example, "public performance" is a use of The Simpsons that the
+For example, <quote>public performance</quote> is a use of <citetitle>The Simpsons</citetitle> that the
copyright owner gets to control. If you take a selection of favorite
-episodes, rent a movie theater, and charge for tickets to come see "My
-Favorite Simpsons," then you need to get permission from the copyright
+episodes, rent a movie theater, and charge for tickets to come see <quote>My
+Favorite <citetitle>Simpsons</citetitle>,</quote> then you need to get permission from the copyright
owner. And the copyright owner (rightly, in my view) can charge
whatever she wants—$10 or $1,000,000. That's her right, as set
by the law.
</para>
<para>
But when lawyers hear this story about Jon Else and Fox, their first
-thought is
"fair use."<footnote><para>
+thought is
<quote>fair use.</quote><footnote><para>
<!-- f1 -->
-For an excellent argument that such use is "fair use," but that
-lawyers don't permit recognition that it is "fair use," see Richard
-A. Posner with William F. Patry, "Fair Use and Statutory Reform in the
-Wake of Eldred " (draft on file with author), University of Chicago
+For an excellent argument that such use is <quote>fair use,</quote> but that
+lawyers don't permit recognition that it is <quote>fair use,</quote> see Richard
+A. Posner with William F. Patry, <quote>Fair Use and Statutory Reform in the
+Wake of <citetitle>Eldred</citetitle></quote> (draft on file with author), University of Chicago
Law School, 5 August 2003.
</para></footnote>
-Else's use of just 4.5 seconds of an indirect shot of a Simpsons
-episode is clearly a fair use of The Simpsons—and fair use does
+Else's use of just 4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle>
+episode is clearly a fair use of <citetitle>The Simpsons</citetitle>—and fair use does
not require the permission of anyone.
</para>
+<indexterm startref='idxfoxfilmcompany2' class='endofrange'/>
+<indexterm startref='idxgroeningmatt2' class='endofrange'/>
<para>
<!-- PAGE BREAK 109 -->
-So I asked Else why he didn't just rely upon "fair use." Here's his reply:
+So I asked Else why he didn't just rely upon <quote>fair use.</quote> Here's his reply:
</para>
<blockquote>
+<indexterm id='idxfairuselegalintimidationtacticsagainst' class='startofrange'><primary>fair use</primary><secondary>legal intimidation tactics against</secondary></indexterm>
<para>
-The Simpsons fiasco was for me a great lesson in the gulf between what
+The <citetitle>Simpsons</citetitle> fiasco was for me a great lesson in the gulf between what
lawyers find irrelevant in some abstract sense, and what is crushingly
relevant in practice to those of us actually trying to make and
-broadcast documentaries. I never had any doubt that it was "clearly
-fair use" in an absolute legal sense. But I couldn't rely on the
+broadcast documentaries. I never had any doubt that it was <quote>clearly
+fair use</quote> in an absolute legal sense. But I couldn't rely on the
concept in any concrete way. Here's why:
</para>
<orderedlist numeration="arabic">
-<listitem><para>
+<listitem>
+<indexterm><primary>Errors and Omissions insurance</primary></indexterm>
+<para>
<!-- 1. -->
Before our films can be broadcast, the network requires that we buy
Errors and Omissions insurance. The carriers require a detailed
-"visual cue sheet" listing the source and licensing status of each
-shot in the film. They take a dim view of "fair use," and a claim of
-"fair use" can grind the application process to a halt.
+<quote>visual cue sheet</quote> listing the source and licensing status of each
+shot in the film. They take a dim view of <quote>fair use,</quote> and a claim of
+<quote>fair use</quote> can grind the application process to a halt.
</para></listitem>
-<listitem><para>
+<listitem>
+<indexterm id='idxfoxfilmcompany3' class='startofrange'><primary>Fox (film company)</primary></indexterm>
+<indexterm><primary>Groening, Matt</primary></indexterm>
+<indexterm><primary>Lucas, George</primary></indexterm>
+<indexterm><primary><citetitle>Star Wars</citetitle></primary></indexterm>
+<para>
<!-- 2. -->
I probably never should have asked Matt Groening in the first
place. But I knew (at least from folklore) that Fox had a history of
-tracking down and stopping unlicensed Simpsons usage, just as George
-Lucas had a very high profile litigating Star Wars usage. So I decided
+tracking down and stopping unlicensed <citetitle>Simpsons</citetitle> usage, just as George
+Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> usage. So I decided
to play by the book, thinking that we would be granted free or cheap
-license to four seconds of Simpsons. As a documentary producer working
+license to four seconds of <citetitle>Simpsons</citetitle>. As a documentary producer working
to exhaustion on a shoestring, the last thing I wanted was to risk
legal trouble, even nuisance legal trouble, and even to defend a
principle.
<listitem><para>
<!-- 3. -->
I did, in fact, speak with one of your colleagues at Stanford Law
-School . . . who confirmed that it was fair use. He also confirmed
-that Fox would "depose and litigate you to within an inch of your
-life," regardless of the merits of my claim. He made clear that it
+School … who confirmed that it was fair use. He also confirmed
+that Fox would <quote>depose and litigate you to within an inch of your
+life,</quote> regardless of the merits of my claim. He made clear that it
would boil down to who had the bigger legal department and the deeper
pockets, me or them.
<!-- PAGE BREAK 110 -->
-</para></listitem>
+</para>
+<indexterm startref='idxfoxfilmcompany3' class='endofrange'/>
+</listitem>
<listitem><para>
<!-- 4. -->
The question of fair use usually comes up at the end of the
</para></listitem>
</orderedlist>
</blockquote>
+<indexterm startref='idxsimpsonsthe' class='endofrange'/>
<para>
In theory, fair use means you need no permission. The theory therefore
supports free culture and insulates against a permission culture. But
matured into a sword that interferes with any use, transformative or
not.
</para>
+<indexterm startref='idxcopyrightlawfairuseand' class='endofrange'/>
+<indexterm startref='idxdocumentaryfilm' class='endofrange'/>
+<indexterm startref='idxelsejon' class='endofrange'/>
+<indexterm startref='idxfairuseindocumentaryfilm' class='endofrange'/>
+<indexterm startref='idxfilmsfairuseofcopyrightedmaterialin' class='endofrange'/>
+<indexterm startref='idxfairuselegalintimidationtacticsagainst' class='endofrange'/>
<!-- PAGE BREAK 111 -->
-</sect1>
-<sect1 id="transformers">
+</chapter>
+<chapter label="8" id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm id='idxalbenalex1' class='startofrange'><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Microsoft</primary></indexterm>
<para>
-In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
-was an innovative company founded by Microsoft cofounder Paul Allen to
-develop digital entertainment. Long before the Internet became
-popular, Starwave began investing in new technology for delivering
-entertainment in anticipation of the power of networks.
+<emphasis role='strong'>In 1993</emphasis>, Alex Alben was a lawyer
+working at Starwave, Inc. Starwave was an innovative company founded
+by Microsoft cofounder Paul Allen to develop digital
+entertainment. Long before the Internet became popular, Starwave began
+investing in new technology for delivering entertainment in
+anticipation of the power of networks.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm id='idxartistsretrospective' class='startofrange'><primary>artists</primary><secondary>retrospective compilations on</secondary></indexterm>
+<indexterm id='idxcdroms' class='startofrange'><primary>CD-ROMs, film clips used in</primary></indexterm>
<para>
Alben had a special interest in new technology. He was intrigued by
the emerging market for CD-ROM technology—not to distribute
Eastwood, with clips from his films and interviews with figures
important to his career.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
At that time, Eastwood had made more than fifty films, as an actor and
as a director. Alben began with a series of interviews with Eastwood,
made. Most of his career was spent at Warner Brothers, and so it was
relatively easy to get permission for that content.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
-Then Alben and his team decided to include actual film clips. "Our
+Then Alben and his team decided to include actual film clips. <quote>Our
goal was that we were going to have a clip from every one of
-Eastwood's films," Alben told me. It was here that the problem
-arose. "No one had ever really done this before," Alben explained. "No
+Eastwood's films,</quote> Alben told me. It was here that the problem
+arose. <quote>No one had ever really done this before,</quote> Alben explained. <quote>No
one had ever tried to do this in the context of an artistic look at an
-actor's career."
+actor's career.</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben brought the idea to Michael Slade, the CEO of Starwave.
-Slade asked, "Well, what will it take?"
+Slade asked, <quote>Well, what will it take?</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
-Alben replied, "Well, we're going to have to clear rights from
+Alben replied, <quote>Well, we're going to have to clear rights from
everyone who appears in these films, and the music and everything
-else that we want to use in these film clips." Slade said, "Great! Go
-for it."<footnote>
+else that we want to use in these film clips.</quote> Slade said, <quote>Great! Go
+for it.</quote><footnote>
<para>
<!-- f1 -->
Technically, the rights that Alben had to clear were mainly those of
publicity—rights an artist has to control the commercial
-exploitation of his image. But these rights, too, burden "Rip, Mix,
-Burn" creativity, as this chapter evinces.
-<indexterm>
-<primary>artists</primary>
-<secondary>publicity rights on images of</secondary>
-</indexterm>
+exploitation of his image. But these rights, too, burden <quote>Rip, Mix,
+Burn</quote> creativity, as this chapter evinces.
+<indexterm><primary>artists</primary><secondary>publicity rights on images of</secondary></indexterm>
+<indexterm><primary>Alben, Alex</primary></indexterm>
</para></footnote>
</para>
<para>
<para>
So we very mechanically went about looking up the film clips. We made
some artistic decisions about what film clips to include—of
-course we were going to use the "Make my day" clip from Dirty
-Harry. But you then need to get the guy on the ground who's wiggling
+course we were going to use the <quote>Make my day</quote> clip from <citetitle>Dirty
+Harry</citetitle>. But you then need to get the guy on the ground who's wiggling
under the gun and you need to get his permission. And then you have
to decide what you are going to pay him.
</para>
started calling people.
</para>
</blockquote>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Sutherland, Donald</primary></indexterm>
<para>
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
Others were dumbfounded at their good fortune. Alben would ask,
-"Hey, can I pay you $600 or maybe if you were in two films, you
-know, $1,200?" And they would say, "Are you for real? Hey, I'd love
-to get $1,200." And some of course were a bit difficult (estranged
+<quote>Hey, can I pay you $600 or maybe if you were in two films, you
+know, $1,200?</quote> And they would say, <quote>Are you for real? Hey, I'd love
+to get $1,200.</quote> And some of course were a bit difficult (estranged
ex-wives, in particular). But eventually, Alben and his team had
cleared the rights to this retrospective CD-ROM on Clint Eastwood's
career.
</para>
<para>
-It was one year later—"and even then we weren't sure whether we
-were totally in the clear."
+It was one <emphasis>year</emphasis> later—<quote>and even then we
+weren't sure whether we were totally in the clear.</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben is proud of his work. The project was the first of its kind and
the only time he knew of that a team had undertaken such a massive
<blockquote>
<para>
Everyone thought it would be too hard. Everyone just threw up their
-hands and said, "Oh, my gosh, a film, it's so many copyrights, there's
+hands and said, <quote>Oh, my gosh, a film, it's so many copyrights, there's
the music, there's the screenplay, there's the director, there's the
-actors." But we just broke it down. We just put it into its
-constituent parts and said, "Okay, there's this many actors, this many
-directors, . . . this many musicians," and we just went at it very
+actors.</quote> But we just broke it down. We just put it into its
+constituent parts and said, <quote>Okay, there's this many actors, this many
+directors, … this many musicians,</quote> and we just went at it very
systematically and cleared the rights.
</para>
</blockquote>
And no doubt, the product itself was exceptionally good. Eastwood
loved it, and it sold very well.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<indexterm><primary>Drucker, Peter</primary></indexterm>
<para>
But I pressed Alben about how weird it seems that it would have to
take a year's work simply to clear rights. No doubt Alben had done
-this efficiently, but as Peter Drucker has famously quipped, "There is
+this efficiently, but as Peter Drucker has famously quipped, <quote>There is
nothing so useless as doing efficiently that which should not be done
-at all.
"<footnote><para>
+at all.
</quote><footnote><para>
<!-- f2 -->
-U.S. Department of Commerce Office of Acquisition Management, Seven
-Steps to Performance-Based Services Acquisition, available at
+U.S. Department of Commerce Office of Acquisition Management, <citetitle>Seven
+Steps to Performance-Based Services Acquisition</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #22</ulink>.
</para></footnote>
Did it make sense, I asked Alben, that this is the way a new work
has to be made?
</para>
<para>
-For, as he acknowledged, "very few . . . have the time and resources,
-and the will to do this," and thus, very few such works would ever be
+For, as he acknowledged, <quote>very few … have the time and resources,
+and the will to do this,</quote> and thus, very few such works would ever be
made. Does it make sense, I asked him, from the standpoint of what
anybody really thought they were ever giving rights for originally, that
you would have to go clear rights for these kinds of clips?
<blockquote>
<para>
I don't think so. When an actor renders a performance in a movie,
-he or she gets paid very well. . . . And then when 30 seconds of
+he or she gets paid very well. … And then when 30 seconds of
that performance is used in a new product that is a retrospective
-of somebody's career, I don't think that that person . . . should be
+of somebody's career, I don't think that that person … should be
compensated for that.
</para>
</blockquote>
<para>
-Or at least, is this how the artist should be compensated? Would it
-make sense, I asked, for there to be some kind of statutory license
-that someone could pay and be free to make derivative use of clips
-like this? Did it really make sense that a follow-on creator would
-have to track down every artist, actor, director, musician, and get
-explicit permission from each? Wouldn't a lot more be created if the
-legal part of the creative process could be made to be more clean?
+Or at least, is this <emphasis>how</emphasis> the artist should be
+compensated? Would it make sense, I asked, for there to be some kind
+of statutory license that someone could pay and be free to make
+derivative use of clips like this? Did it really make sense that a
+follow-on creator would have to track down every artist, actor,
+director, musician, and get explicit permission from each? Wouldn't a
+lot more be created if the legal part of the creative process could be
+made to be more clean?
</para>
<blockquote>
<para>
product hard to get off the ground. If you knew I have a hundred
minutes of film in this product and it's going to cost me X, then you
build your budget around it, and you can get investments and
-everything else that you need to produce it. But if you say, "Oh, I
+everything else that you need to produce it. But if you say, <quote>Oh, I
want a hundred minutes of something and I have no idea what it's going
to cost me, and a certain number of people are going to hold me up for
-money," then it becomes difficult to put one of these things together.
+money,</quote> then it becomes difficult to put one of these things together.
</para>
</blockquote>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben worked for a big company. His company was backed by some of the
richest investors in the world. He therefore had authority and access
that the average Web designer would not have. So if it took him a
year, how long would it take someone else? And how much creativity is
never made just because the costs of clearing the rights are so high?
+</para>
+<indexterm startref='idxcdroms' class='endofrange'/>
+<indexterm startref='idxartistsretrospective' class='endofrange'/>
+<para>
These costs are the burdens of a kind of regulation. Put on a
Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
These rights might well have once made sense; but as circumstances
change, they make no sense at all. Or at least, a well-trained,
regulationminimizing Republican should look at the rights and ask,
-"Does this still make sense?"
+<quote>Does this still make sense?</quote>
</para>
+<indexterm startref='idxalbenalex1' class='endofrange'/>
<para>
I've seen the flash of recognition when people get this point, but only
a few times. The first was at a conference of federal judges in California.
</para>
<para>
The video was a brilliant collage of film from every period in the
-twentieth century, all framed around the idea of a 60 Minutes episode.
+twentieth century, all framed around the idea of a <citetitle>60 Minutes</citetitle> episode.
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
</para>
Nimmer, perhaps the leading copyright scholar and practitioner in the
nation. He had an astonished look on his face, as he peered across the
room of over 250 well-entertained judges. Taking an ominous tone, he
-began his talk with a question: "Do you know how many federal laws
-were just violated in this room?"
+began his talk with a question: <quote>Do you know how many federal laws
+were just violated in this room?</quote>
</para>
<indexterm><primary>Boies, David</primary></indexterm>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
For of course, the two brilliantly talented creators who made this
film hadn't done what Alben did. They hadn't spent a year clearing the
couldn't easily do them legally.
</para>
<para>
-We live in a "cut and paste" culture enabled by technology. Anyone
+We live in a <quote>cut and paste</quote> culture enabled by technology. Anyone
building a presentation knows the extraordinary freedom that the cut
and paste architecture of the Internet created—in a second you can
find just about any image you want; in another second, you can have it
planted in your presentation.
</para>
+<indexterm><primary>Camp Chaos</primary></indexterm>
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
biting political commentary. A site called Camp Chaos has produced
some of the most biting criticism of the record industry that there is
through the mixing of Flash! and music.
-<indexterm><primary>Camp Chaos</primary></indexterm>
</para>
<para>
All of these creations are technically illegal. Even if the creators
-wanted to be "legal," the cost of complying with the law is impossibly
+wanted to be <quote>legal,</quote> the cost of complying with the law is impossibly
high. Therefore, for the law-abiding sorts, a wealth of creativity is
never made. And for that part that is made, if it doesn't follow the
clearance rules, it doesn't get released.
To some, these stories suggest a solution: Let's alter the mix of
rights so that people are free to build upon our culture. Free to add
or mix as they see fit. We could even make this change without
-necessarily requiring that the "free" use be free as in "free beer."
+necessarily requiring that the <quote>free</quote> use be free as in <quote>free beer.</quote>
Instead, the system could simply make it easy for follow-on creators
to compensate artists without requiring an army of lawyers to come
-along: a rule, for example, that says "the royalty owed the copyright
+along: a rule, for example, that says <quote>the royalty owed the copyright
owner of an unregistered work for the derivative reuse of his work
will be a flat 1 percent of net revenues, to be held in escrow for the
-copyright owner." Under this rule, the copyright owner could benefit
+copyright owner.</quote> Under this rule, the copyright owner could benefit
from some royalty, but he would not have the benefit of a full
property right (meaning the right to name his own price) unless he
registers the work.
What reason would anyone have to oppose it?
</para>
<para>
-In February 2003, DreamWorks studios announced an agreement with Mike
-Myers, the comic genius of Saturday Night Live and
+<emphasis role='strong'>In February 2003</emphasis>, DreamWorks
+studios announced an agreement with Mike Myers, the comic genius of
+<citetitle>Saturday Night Live</citetitle> and
<!-- PAGE BREAK 118 -->
Austin Powers. According to the announcement, Myers and Dream-Works
-would work together to form a "unique filmmaking pact." Under the
-agreement, DreamWorks "will acquire the rights to existing motion
+would work together to form a <quote>unique filmmaking pact.</quote> Under the
+agreement, DreamWorks <quote>will acquire the rights to existing motion
picture hits and classics, write new storylines and—with the use
of stateof-the-art digital technology—insert Myers and other
actors into the film, thereby creating an entirely new piece of
-entertainment."
+entertainment.</quote>
</para>
<para>
-The announcement called this "film sampling." As Myers explained,
-"Film Sampling is an exciting way to put an original spin on existing
+The announcement called this <quote>film sampling.</quote> As Myers explained,
+<quote>Film Sampling is an exciting way to put an original spin on existing
films and allow audiences to see old movies in a new light. Rap
artists have been doing this for years with music and now we are able
-to take that same concept and apply it to film." Steven Spielberg is
-quoted as saying, "If anyone can create a way to bring old films to
-new audiences, it is Mike."
+to take that same concept and apply it to film.</quote> Steven Spielberg is
+quoted as saying, <quote>If anyone can create a way to bring old films to
+new audiences, it is Mike.</quote>
</para>
<para>
Spielberg is right. Film sampling by Myers will be brilliant. But if
</para>
<para>
This privilege becomes reserved for two sorts of reasons. The first
-continues the story of the last chapter: the vagueness of "fair use."
-Much of "sampling" should be considered "fair use." But few would
+continues the story of the last chapter: the vagueness of <quote>fair use.</quote>
+Much of <quote>sampling</quote> should be considered <quote>fair use.</quote> But few would
rely upon so weak a doctrine to create. That leads to the second reason
that the privilege is reserved for the few: The costs of negotiating the
legal rights for the creative reuse of content are astronomically high.
curse, reserved for the few.
</para>
<!-- PAGE BREAK 119 -->
-</sect1>
-<sect1 id="collectors">
+</chapter>
+<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
+<indexterm id='idxarchivesdigital1' class='startofrange'><primary>archives, digital</primary></indexterm>
+<indexterm><primary>bots</primary></indexterm>
<para>
-In April 1996, millions of "bots"—computer codes designed to
-"spider," or automatically search the Internet and copy content—began
-running across the Net. Page by page, these bots copied Internet-based
-information onto a small set of computers located in a basement in San
-Francisco's Presidio. Once the bots finished the whole of the Internet,
-they started again. Over and over again, once every two months, these
-bits of code took copies of the Internet and stored them.
+<emphasis role='strong'>In April 1996</emphasis>, millions of
+<quote>bots</quote>—computer codes designed to
+<quote>spider,</quote> or automatically search the Internet and copy
+content—began running across the Net. Page by page, these bots
+copied Internet-based information onto a small set of computers
+located in a basement in San Francisco's Presidio. Once the bots
+finished the whole of the Internet, they started again. Over and over
+again, once every two months, these bits of code took copies of the
+Internet and stored them.
</para>
+<indexterm><primary>Way Back Machine</primary></indexterm>
<para>
By October 2001, the bots had collected more than five years of
copies. And at a small announcement in Berkeley, California, the
archive that these copies created, the Internet Archive, was opened to
-the world. Using a technology called "the Way Back Machine," you could
+the world. Using a technology called <quote>the Way Back Machine,</quote> you could
enter a Web page, and see all of its copies going back to 1996, as
well as when those pages changed.
</para>
+<indexterm id='idxorwellgeorge' class='startofrange'><primary>Orwell, George</primary></indexterm>
<para>
This is the thing about the Internet that Orwell would have
-appreciated. In the dystopia described in 1984, old newspapers were
+appreciated. In the dystopia described in <citetitle>1984</citetitle>, old newspapers were
constantly updated to assure that the current view of the world,
approved of by the government, was not contradicted by previous news
reports.
but the content could easily be different. The Internet is Orwell's
library—constantly updated, without any reliable memory.
</para>
+<indexterm startref='idxorwellgeorge' class='endofrange'/>
+<indexterm><primary>Way Back Machine</primary></indexterm>
<para>
Until the Way Back Machine, at least. With the Way Back Machine, and
the Internet Archive underlying it, you can see what the Internet
perhaps, you also have the power to find what you don't remember and
what others might prefer you forget.<footnote><para>
<!-- f1 -->
+<indexterm><primary>Iraq war</primary></indexterm>
+<indexterm><primary>White House press releases</primary></indexterm>
The temptations remain, however. Brewster Kahle reports that the White
House changes its own press releases without notice. A May 13, 2003,
-press release stated, "Combat Operations in Iraq Have Ended." That was
-later changed, without notice, to "Major Combat Operations in Iraq
-Have Ended." E-mail from Brewster Kahle, 1 December 2003.
+press release stated, <quote>Combat Operations in Iraq Have Ended.</quote> That was
+later changed, without notice, to <quote>Major Combat Operations in Iraq
+Have Ended.</quote> E-mail from Brewster Kahle, 1 December 2003.
</para></footnote>
</para>
+<indexterm><primary>history, records of</primary></indexterm>
<para>
-We take it for granted that we can go back to see what we remember
-reading. Think about newspapers. If you wanted to study the reaction
-of your hometown newspaper to the race riots in Watts in 1965, or to
-Bull Connor's water cannon in 1963, you could go to your public
-library and look at the newspapers. Those papers probably exist on
-microfiche. If you're lucky, they exist in paper, too. Either way, you
-are free, using a library, to go back and remember—not just what
-it is convenient to remember, but remember something close to the
-truth.
+<emphasis role='strong'>We take it</emphasis> for granted that we can
+go back to see what we remember reading. Think about newspapers. If
+you wanted to study the reaction of your hometown newspaper to the
+race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
+you could go to your public library and look at the newspapers. Those
+papers probably exist on microfiche. If you're lucky, they exist in
+paper, too. Either way, you are free, using a library, to go back and
+remember—not just what it is convenient to remember, but
+remember something close to the truth.
</para>
<para>
It is said that those who fail to remember history are doomed to
-repeat it. That's not quite correct. We all forget history. The key is
-whether we have a way to go back to rediscover what we forget. More
-directly, the key is whether an objective past can keep us
-honest. Libraries help do that, by collecting content and keeping it,
-for schoolchildren, for researchers, for grandma. A free society
-presumes this knowedge.
+repeat it. That's not quite correct. We <emphasis>all</emphasis>
+forget history. The key is whether we have a way to go back to
+rediscover what we forget. More directly, the key is whether an
+objective past can keep us honest. Libraries help do that, by
+collecting content and keeping it, for schoolchildren, for
+researchers, for grandma. A free society presumes this knowedge.
</para>
<para>
The Internet was an exception to this presumption. Until the Internet
Carnegie of the Internet. By December of 2002, the archive had over 10
billion pages, and it was growing at about a billion pages a month.
</para>
+<indexterm><primary>Library of Congress</primary></indexterm>
+<indexterm><primary>Television Archive</primary></indexterm>
+<indexterm><primary>Vanderbilt University</primary></indexterm>
+<indexterm><primary>Way Back Machine</primary></indexterm>
+<indexterm><primary>libraries</primary><secondary>archival function of</secondary></indexterm>
+<indexterm id='idxnewscoverage2' class='startofrange'><primary>news coverage</primary></indexterm>
<para>
The Way Back Machine is the largest archive of human knowledge in
-human history. At the end of 2002, it held "two hundred and thirty
-terabytes of material"—and was "ten times larger than the
-Library of Congress." And this was just the first of the archives that
+human history. At the end of 2002, it held <quote>two hundred and thirty
+terabytes of material</quote>—and was <quote>ten times larger than the
+Library of Congress.</quote> And this was just the first of the archives that
Kahle set out to build. In addition to the Internet Archive, Kahle has
been constructing the Television Archive. Television, it turns out, is
even more ephemeral than the Internet. While much of twentieth-century
that culture is available for anyone to see today. Three hours of news
are recorded each evening by Vanderbilt University—thanks to a
specific exemption in the copyright law. That content is indexed, and
-is available to scholars for a very low fee. "But other than that,
-[television] is almost unavailable," Kahle told me. "If you were
+is available to scholars for a very low fee. <quote>But other than that,
+[television] is almost unavailable,</quote> Kahle told me. <quote>If you were
Barbara Walters you could get access to [the archives], but if you are
-just a graduate student?" As Kahle put it,
+just a graduate student?</quote> As Kahle put it,
</para>
<blockquote>
+<indexterm><primary>Quayle, Dan</primary></indexterm>
+<indexterm><primary>60 Minutes</primary></indexterm>
<para>
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
original back and forth exchanges between the two, the
<!-- PAGE BREAK 122 -->
-60 Minutes episode that came out after it . . . it would be almost
-impossible. . . . Those materials are almost unfindable. . . .
+<citetitle>60 Minutes</citetitle> episode that came out after it … it would be almost
+impossible. … Those materials are almost unfindable. …
</para>
</blockquote>
+<indexterm><primary>newspapers</primary><secondary>archives of</secondary></indexterm>
<para>
Why is that? Why is it that the part of our culture that is recorded
in newspapers remains perpetually accessible, while the part that is
once the copyright expired, so that others might access and copy the
work.
</para>
+<indexterm><primary>Library of Congress</primary></indexterm>
+<indexterm><primary>films</primary><secondary>archive of</secondary></indexterm>
<para>
These rules applied to film as well. But in 1915, the Library
of Congress made an exception for film. Film could be copyrighted so
long as such deposits were made. But the filmmaker was then allowed to
borrow back the deposits—for an unlimited time at no cost. In
-1915 alone, there were more than 5,475 films deposited and "borrowed
-back." Thus, when the copyrights to films expire, there is no copy
+1915 alone, there were more than 5,475 films deposited and <quote>borrowed
+back.</quote> Thus, when the copyrights to films expire, there is no copy
held by any library. The copy exists—if it exists at
all—in the library archive of the film company.<footnote><para>
<!-- f2 -->
-Doug Herrick, "Toward a National Film Collection: Motion Pictures at
-the Library of Congress," Film Library Quarterly 13 nos. 2–3
-(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film
-Preservation in the United States ( Jefferson, N.C.: McFarland &
+Doug Herrick, <quote>Toward a National Film Collection: Motion Pictures at
+the Library of Congress,</quote> <citetitle>Film Library Quarterly</citetitle> 13 nos. 2–3
+(1980): 5; Anthony Slide, <citetitle>Nitrate Won't Wait: A History of Film
+Preservation in the United States</citetitle> ( Jefferson, N.C.: McFarland &
Co., 1992), 36.
</para></footnote>
</para>
<para>
The same is generally true about television. Television broadcasts
were originally not copyrighted—there was no way to capture the
-broadcasts, so there was no fear of "theft." But as technology enabled
+broadcasts, so there was no fear of <quote>theft.</quote> But as technology enabled
capturing, broadcasters relied increasingly upon the law. The law
required they make a copy of each broadcast for the work to be
-"copyrighted." But those copies were simply kept by the
+<quote>copyrighted.</quote> But those copies were simply kept by the
broadcasters. No library had any right to them; the government didn't
demand them. The content of this part of American culture is
practically invisible to anyone who would look.
</para>
+<indexterm><primary>September 11, 2001, terrorist attacks of</primary></indexterm>
<para>
Kahle was eager to correct this. Before September 11, 2001, he and
<!-- PAGE BREAK 123 -->
Anyone could see how news reports from around the world covered the
events of that day.
</para>
+<indexterm><primary>Movie Archive</primary></indexterm>
+<indexterm><primary>archive.org</primary><seealso>Internet Archive</seealso></indexterm>
+<indexterm startref='idxnewscoverage2' class='endofrange'/>
+<indexterm><primary>films</primary><secondary>archive of</secondary></indexterm>
+<indexterm><primary>Internet Archive</primary></indexterm>
+<indexterm><primary>Duck and Cover film</primary></indexterm>
+<indexterm><primary>ephemeral films</primary></indexterm>
+<indexterm><primary>Prelinger, Rick</primary></indexterm>
<para>
Kahle had the same idea with film. Working with Rick Prelinger, whose
-archive of film includes close to 45,000 "ephemeral films" (meaning
+archive of film includes close to 45,000 <quote>ephemeral films</quote> (meaning
films other than Hollywood movies, films that were never copyrighted),
Kahle established the Movie Archive. Prelinger let Kahle digitize
1,300 films in this archive and post those films on the Internet to be
material they wanted to use. Some downloaded that material and made
films on their own. Others purchased copies to enable other films to
be made. Either way, the archive enabled access to this important
-part of our culture. Want to see a copy of the "Duck and Cover" film
+part of our culture. Want to see a copy of the <quote>Duck and Cover</quote> film
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.
</para>
<para>
For here is an idea that we should more clearly recognize. Every bit
-of creative property goes through different "lives." In its first
+of creative property goes through different <quote>lives.</quote> In its first
life, if the
<!-- PAGE BREAK 124 -->
the content can continue to inform even if that information is no
longer sold.
</para>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
<para>
The same has always been true about books. A book goes out of print
very quickly (the average today is after about a year<footnote><para>
<!-- f3 -->
-Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
-Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune,
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
+Dave Barns, <quote>Fledgling Career in Antique Books: Woodstock Landlord,
+Bar Owner Starts a New Chapter by Adopting Business,</quote> <citetitle>Chicago Tribune</citetitle>,
5 September 1997, at Metro Lake 1L. Of books published between 1927
and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
-"The First Sale Doctrine in the Era of Digital Networks," Boston
-College Law Review 44 (2003): 593 n. 51.
+<quote>The First Sale Doctrine in the Era of Digital Networks,</quote> <citetitle>Boston
+College Law Review</citetitle> 44 (2003): 593 n. 51.
</para></footnote>). After
it is out of print, it can be sold in used book stores without the
copyright owner getting anything and stored in libraries, where many
disappears.
</para>
<para>
-For most of the twentieth century, it was economics that made this
-so. It would have been insanely expensive to collect and make
-accessible all television and film and music: The cost of analog
-copies is extraordinarily high. So even though the law in principle
-would have restricted the ability of a Brewster Kahle to copy culture
-generally, the
+<emphasis role='strong'>For most of</emphasis> the twentieth century,
+it was economics that made this so. It would have been insanely
+expensive to collect and make accessible all television and film and
+music: The cost of analog copies is extraordinarily high. So even
+though the law in principle would have restricted the ability of a
+Brewster Kahle to copy culture generally, the
<!-- PAGE BREAK 125 -->
real restriction was economics. The market made it impossibly
difficult to do anything about this ephemeral culture; the law had
Kahle describes,
</para>
<blockquote>
+<indexterm><primary>books</primary><secondary>total number of</secondary></indexterm>
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
-movies, . . . and about one to two million movies [distributed] during
+movies, … and about one to two million movies [distributed] during
the twentieth century. There are about twenty-six million different
titles of books. All of these would fit on computers that would fit in
this room and be able to be afforded by a small company. So we're at
a turning point in our history. Universal access is the goal. And the
opportunity of leading a different life, based on this, is
-. . . thrilling. It could be one of the things humankind would be most
+… thrilling. It could be one of the things humankind would be most
proud of. Up there with the Library of Alexandria, putting a man on
the moon, and the invention of the printing press.
</para>
</blockquote>
+<indexterm><primary>Disney, Walt</primary></indexterm>
<para>
Kahle is not the only librarian. The Internet Archive is not the only
archive. But Kahle and the Internet Archive suggest what the future of
-libraries or archives could be. When the commercial life of creative
-property ends, I don't know. But it does. And whenever it does, Kahle
-and his archive hint at a world where this knowledge, and culture,
-remains perpetually available. Some will draw upon it to understand
-it;
+libraries or archives could be. <emphasis>When</emphasis> the
+commercial life of creative property ends, I don't know. But it
+does. And whenever it does, Kahle and his archive hint at a world
+where this knowledge, and culture, remains perpetually available. Some
+will draw upon it to understand it;
<!-- PAGE BREAK 126 -->
some to criticize it. Some will use it, as Walt Disney did, to
re-create the past for the future. These technologies promise
something that had become unimaginable for much of our past—a
-future for our past. The technology of digital arts could make the
-dream of the Library of Alexandria real again.
+future <emphasis>for</emphasis> our past. The technology of digital
+arts could make the dream of the Library of Alexandria real again.
</para>
<para>
Technologists have thus removed the economic costs of building such an
archive. But lawyers' costs remain. For as much as we might like to
-call these "archives," as warm as the idea of a "library" might seem,
-the "content" that is collected in these digital spaces is also
-someone's "property." And the law of property restricts the freedoms
+call these <quote>archives,</quote> as warm as the idea of a <quote>library</quote> might seem,
+the <quote>content</quote> that is collected in these digital spaces is also
+someone's <quote>property.</quote> And the law of property restricts the freedoms
that Kahle and others would exercise.
</para>
+<indexterm startref='idxarchivesdigital1' class='endofrange'/>
<!-- PAGE BREAK 127 -->
-</sect1>
-<sect1 id="property-i">
-<title>CHAPTER TEN: "Property"</title>
-<para>
-Jack Valenti has been the president of the Motion Picture Association
-of America since 1966. He first came to Washington, D.C., with Lyndon
-Johnson's administration—literally. The famous picture of
-Johnson's swearing-in on Air Force One after the assassination of
-President Kennedy has Valenti in the background. In his almost forty
-years of running the MPAA, Valenti has established himself as perhaps
-the most prominent and effective lobbyist in Washington.
+</chapter>
+<chapter label="10" id="property-i">
+<title>CHAPTER TEN: <quote>Property</quote></title>
<indexterm><primary>Johnson, Lyndon</primary></indexterm>
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
+<para>
+<emphasis role='strong'>Jack Valenti</emphasis> has been the president
+of the Motion Picture Association of America since 1966. He first came
+to Washington, D.C., with Lyndon Johnson's
+administration—literally. The famous picture of Johnson's
+swearing-in on Air Force One after the assassination of President
+Kennedy has Valenti in the background. In his almost forty years of
+running the MPAA, Valenti has established himself as perhaps the most
+prominent and effective lobbyist in Washington.
</para>
+<indexterm><primary>Disney, Inc.</primary></indexterm>
+<indexterm><primary>Sony Pictures Entertainment</primary></indexterm>
+<indexterm><primary>MGM</primary></indexterm>
+<indexterm><primary>Paramount Pictures</primary></indexterm>
+<indexterm><primary>Twentieth Century Fox</primary></indexterm>
+<indexterm><primary>Universal Pictures</primary></indexterm>
+<indexterm><primary>Warner Brothers</primary></indexterm>
<para>
The MPAA is the American branch of the international Motion Picture
Association. It was formed in 1922 as a trade association whose goal
in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
Paramount Pictures, Twentieth Century Fox, Universal Studios, and
Warner Brothers.
-<indexterm><primary>Disney, Inc.</primary></indexterm>
-<indexterm><primary>Sony Pictures Entertainment</primary></indexterm>
-<indexterm><primary>MGM</primary></indexterm>
-<indexterm><primary>Paramount Pictures</primary></indexterm>
-<indexterm><primary>Twentieth Century Fox</primary></indexterm>
-<indexterm><primary>Universal Pictures</primary></indexterm>
-<indexterm><primary>Warner Brothers</primary></indexterm>
</para>
<para>
<!-- PAGE BREAK 128 -->
speech-regulating harm. But there is an aspect to the organization's
mission that is both the most radical and the most important. This is
the organization's effort, epitomized in Valenti's every act, to
-redefine the meaning of "creative property."
+redefine the meaning of <quote>creative property.</quote>
</para>
<para>
In 1982, Valenti's testimony to Congress captured the strategy
No matter the lengthy arguments made, no matter the charges and the
counter-charges, no matter the tumult and the shouting, reasonable men
and women will keep returning to the fundamental issue, the central
-theme which animates this entire debate: Creative property owners must
-be accorded the same rights and protection resident in all other
-property owners in the nation. That is the issue. That is the
-question. And that is the rostrum on which this entire hearing and the
-debates to follow must rest.<footnote><para>
+theme which animates this entire debate: <emphasis>Creative property
+owners must be accorded the same rights and protection resident in all
+other property owners in the nation</emphasis>. That is the issue.
+That is the question. And that is the rostrum on which this entire
+
hearing and the debates to follow must rest.<footnote><para>
<!-- f1 -->
Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
<para>
The strategy of this rhetoric, like the strategy of most of Valenti's
rhetoric, is brilliant and simple and brilliant because simple. The
-"central theme" to which "reasonable men and women" will return is
+<quote>central theme</quote> to which <quote>reasonable men and women</quote> will return is
this:
<!-- PAGE BREAK 129 -->
-"Creative property owners must be accorded the same rights and
-protections resident in all other property owners in the nation."
+<quote>Creative property owners must be accorded the same rights and
+protections resident in all other property owners in the nation.</quote>
There are no second-class citizens, Valenti might have
continued. There should be no second-class property owners.
</para>
This claim has an obvious and powerful intuitive pull. It is stated
with such clarity as to make the idea as obvious as the notion that we
use elections to pick presidents. But in fact, there is no more
-extreme a claim made by anyone who is serious in this debate than this
-claim of Valenti's. Jack Valenti, however sweet and however brilliant,
-is perhaps the nation's foremost extremist when it comes to the nature
-and scope of "creative property." His views have no reasonable
-connection to our actual legal tradition, even if the subtle pull of
-his Texan charm has slowly redefined that tradition, at least in
-Washington.
+extreme a claim made by <emphasis>anyone</emphasis> who is serious in
+this debate than this claim of Valenti's. Jack Valenti, however sweet
+and however brilliant, is perhaps the nation's foremost extremist when
+it comes to the nature and scope of <quote>creative property.</quote> His views
+have <emphasis>no</emphasis> reasonable connection to our actual legal
+tradition, even if the subtle pull of his Texan charm has slowly
+redefined that tradition, at least in Washington.
</para>
<para>
-While "creative property" is certainly "property" in a nerdy and
+While <quote>creative property</quote> is certainly <quote>property</quote> in a nerdy and
precise sense that lawyers are trained to understand,<footnote><para>
<!-- f2 -->
-Lawyers speak of "property" not as an absolute thing, but as a bundle
+Lawyers speak of <quote>property</quote> not as an absolute thing, but as a bundle
of rights that are sometimes associated with a particular
-object. Thus, my "property right" to my car gives me the right to
+object. Thus, my <quote>property right</quote> to my car gives me the right to
exclusive use, but not the right to drive at 150 miles an hour. For
-the best effort to connect the ordinary meaning of "property" to
-"lawyer talk," see Bruce Ackerman, Private Property and the
-Constitution (New Haven: Yale University Press, 1977), 26–27.
+the best effort to connect the ordinary meaning of <quote>property</quote> to
+<quote>lawyer talk,</quote> see Bruce Ackerman, <citetitle>Private Property and the
+Constitution</citetitle> (New Haven: Yale University Press, 1977), 26–27.
</para></footnote> it has never been the case, nor should it be, that
-"creative property owners" have been "accorded the same rights and
-protection resident in all other property owners." Indeed, if creative
+<quote>creative property owners</quote> have been <quote>accorded the same rights and
+protection resident in all other property owners.</quote> Indeed, if creative
property owners were given the same rights as all other property
owners, that would effect a radical, and radically undesirable, change
in our tradition.
organization does. No person does. (Ask me about tenure, for example.)
But what's good for the MPAA is not necessarily good for America. A
society that defends the ideals of free culture must preserve
-precisely the opportunity for new creativity to threaten the old. To
-get just a hint that there is something fundamentally wrong in
-Valenti's argument, we need look no further than the United States
-Constitution itself.
+precisely the opportunity for new creativity to threaten the old.
</para>
<para>
-The framers of our Constitution loved "property." Indeed, so strongly
+<emphasis role='strong'>To get</emphasis> just a hint that there is
+something fundamentally wrong in Valenti's argument, we need look no
+further than the United States Constitution itself.
+</para>
+<para>
+The framers of our Constitution loved <quote>property.</quote> Indeed, so strongly
did they love property that they built into the Constitution an
important requirement. If the government takes your property—if
it condemns your house, or acquires a slice of land from your
-farm—it is required, under the Fifth Amendment's "Takings
-Clause," to pay you "just compensation" for that taking. The
+farm—it is required, under the Fifth Amendment's <quote>Takings
+Clause,</quote> to pay you <quote>just compensation</quote> for that taking. The
Constitution thus guarantees that property is, in a certain sense,
-sacred. It cannot ever be taken from the property owner unless the
-government pays for the privilege.
+sacred. It cannot <emphasis>ever</emphasis> be taken from the property
+owner unless the government pays for the privilege.
</para>
<para>
Yet the very same Constitution speaks very differently about what
-Valenti calls "creative property." In the clause granting Congress the
-power to create "creative property," the Constitution requires that
-after a "limited time," Congress take back the rights that it has
-granted and set the "creative property" free to the public domain. Yet
-when Congress does this, when the expiration of a copyright term
-"takes" your copyright and turns it over to the public domain,
-Congress does not have any obligation to pay "just compensation" for
-this "taking." Instead, the same Constitution that requires
-compensation for your land
+Valenti calls <quote>creative property.</quote> In the clause granting Congress the
+power to create <quote>creative property,</quote> the Constitution
+<emphasis>requires</emphasis> that after a <quote>limited time,</quote> Congress
+take back the rights that it has granted and set the <quote>creative
+property</quote> free to the public domain. Yet when Congress does this, when
+the expiration of a copyright term <quote>takes</quote> your copyright and turns it
+over to the public domain, Congress does not have any obligation to
+pay <quote>just compensation</quote> for this <quote>taking.</quote> Instead, the same
+Constitution that requires compensation for your land
<!-- PAGE BREAK 131 -->
-requires that you lose your "creative property" right without any
+requires that you lose your <quote>creative property</quote> right without any
compensation at all.
</para>
<para>
owner. He is effectively arguing for a change in our Constitution
itself.
</para>
+<indexterm id='idxjeffersonthomas' class='startofrange'><primary>Jefferson, Thomas</primary></indexterm>
<para>
Arguing for a change in our Constitution is not necessarily wrong.
There was much in our original Constitution that was plainly wrong.
</para>
<para>
Instead, my argument is that because Jefferson did it, we should at
-least try to understand why. Why did the framers, fanatical property
-types that they were, reject the claim that creative property be given
-the same rights as all other property? Why did they require that for
-creative property there must be a public domain?
+least try to understand <emphasis>why</emphasis>. Why did the framers,
+fanatical property types that they were, reject the claim that
+creative property be given the same rights as all other property? Why
+did they require that for creative property there must be a public
+domain?
</para>
+<indexterm startref='idxjeffersonthomas' class='endofrange'/>
+
<para>
To answer this question, we need to get some perspective on the
-history of these "creative property" rights, and the control that they
+history of these <quote>creative property</quote> rights, and the control that they
enabled. Once we see clearly how differently these rights have been
defined, we will be in a better position to ask the question that
-should be at the core of this war: Not whether creative property
-should be protected, but how. Not whether we will enforce the rights
-the law gives to creative-property owners, but what the particular mix
-of rights ought to be. Not whether artists should be paid, but whether
-institutions designed to assure that artists get paid need also
-control how culture develops.
+should be at the core of this war: Not <emphasis>whether</emphasis>
+creative property should be protected, but how. Not
+<emphasis>whether</emphasis> we will enforce the rights the law gives
+to creative-property owners, but what the particular mix of rights
+ought to be. Not <emphasis>whether</emphasis> artists should be paid,
+but whether institutions designed to assure that artists get paid need
+also control how culture develops.
</para>
+<indexterm id='idxfreeculturefourmodalitiesofconstrainton' class='startofrange'><primary>free culture</primary><secondary>four modalities of constraint on</secondary></indexterm>
+<indexterm id='idxregulationfourmodalitiesof' class='startofrange'><primary>regulation</primary><secondary>four modalities of</secondary></indexterm>
+<indexterm id='idxcopyrightlawasexpostregulationmodality' class='startofrange'><primary>copyright law</primary><secondary>as ex post regulation modality</secondary></indexterm>
+<indexterm id='idxlawasconstraintmodality' class='startofrange'><primary>law</primary><secondary>as constraint modality</secondary></indexterm>
<para>
<!-- PAGE BREAK 132 -->
To answer these questions, we need a more general way to talk about
how property is protected. More precisely, we need a more general way
-than the narrow language of the law allows. In Code and Other Laws of
-Cyberspace, I used a simple model to capture this more general
+than the narrow language of the law allows. In <citetitle>Code and Other Laws of
+Cyberspace</citetitle>, I used a simple model to capture this more general
perspective. For any particular right or regulation, this model asks
how four different modalities of regulation interact to support or
weaken the right or regulation. I represented it with this diagram:
<title>How four different modalities of regulation interact to support or weaken the right or regulation.</title>
<graphic fileref="images/1331.png"></graphic>
</figure>
+<indexterm><primary>Madonna</primary></indexterm>
<para>
At the center of this picture is a regulated dot: the individual or
group that is the target of regulation, or the holder of a right. (In
<!-- 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>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
Norms are a different kind of constraint. They, too, punish an
individual for violating a rule. But the punishment of a norm is
state. The mark of the difference is not the severity of the rule, but
the source of the enforcement.
</para>
+<indexterm id='idxmarketconstraints' class='startofrange'><primary>market constraints</primary></indexterm>
<para>
The market is a third type of constraint. Its constraint is effected
through conditions: You can do X if you pay Y; you'll be paid M if you
contract law, the market imposes a simultaneous constraint upon how an
individual or group might behave.
</para>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
Finally, and for the moment, perhaps, most mysteriously,
-"architecture"—the physical world as one finds it—is a
+<quote>architecture</quote>—the physical world as one finds it—is a
constraint on behavior. A fallen bridge might constrain your ability
to get across a river. Railroad tracks might constrain the ability of
a community to integrate its social life. As with the market,
punishments. Instead, also as with the market, architecture effects
its constraint through simultaneous conditions. These conditions are
imposed not by courts enforcing contracts, or by police punishing
-theft, but by nature, by "architecture." If a 500-pound boulder
+theft, but by nature, by <quote>architecture.</quote> If a 500-pound boulder
blocks your way, it is the law of gravity that enforces this
constraint. If a $500 airplane ticket stands between you and a flight
to New York, it is the market that enforces this constraint.
</para>
+<indexterm startref='idxcopyrightlawasexpostregulationmodality' class='endofrange'/>
+<indexterm startref='idxlawasconstraintmodality' class='endofrange'/>
+<indexterm startref='idxmarketconstraints' class='endofrange'/>
+<indexterm id='idxlawasconstraintmodality2' class='startofrange'><primary>law</primary><secondary>as constraint modality</secondary></indexterm>
<para>
<!-- PAGE BREAK 134 -->
most significant, and any regulator (whether controlling or freeing)
must consider how these four in particular interact.
</para>
-<indexterm id="idxdrivespeed" class='startofrange'>
- <primary>driving speed, constraints on</primary>
-</indexterm>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
+<indexterm id='idxdrivingspeedconstraintson' class='startofrange'><primary>driving speed, constraints on</primary></indexterm>
+<indexterm id='idxspeedingconstraintson' class='startofrange'><primary>speeding, constraints on</primary></indexterm>
<para>
-So, for example, consider the "freedom" to drive a car at a high
+So, for example, consider the <quote>freedom</quote> to drive a car at a high
speed. That freedom is in part restricted by laws: speed limits that
say how fast you can drive in particular places at particular
times. It is in part restricted by architecture: speed bumps, for
mean to suggest that the other three don't affect law. Obviously, they
do. Law's only distinction is that it alone speaks as if it has a
right self-consciously to change the other three. The right of the
-other three is more timidly expressed. See Lawrence Lessig, Code: And
-Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95;
-Lawrence Lessig, "The New Chicago School," Journal of Legal Studies,
+other three is more timidly expressed. See Lawrence Lessig, <citetitle>Code: And
+Other Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95;
+Lawrence Lessig, <quote>The New Chicago School,</quote> <citetitle>Journal of Legal Studies</citetitle>,
June 1998.
</para></footnote>
The law, in other words, sometimes operates to increase or decrease
limit, for example—so as to decrease the attractiveness of fast
driving.
</para>
-<indexterm startref="idxdrivespeed" class='endofrange'/>
-
+<indexterm startref='idxdrivingspeedconstraintson' class='endofrange'/>
+<indexterm startref='idxspeedingconstraintson' class='endofrange'/>
<figure id="fig-1361">
<title>Law has a special role in affecting the three.</title>
<graphic fileref="images/1361.png"></graphic>
</figure>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
These constraints can thus change, and they can be changed. To
understand the effective protection of liberty or protection of
another.<footnote>
<para>
<!-- f4 -->
-Some people object to this way of talking about "liberty." They object
+Some people object to this way of talking about <quote>liberty.</quote> They object
because their focus when considering the constraints that exist at any
particular moment are constraints imposed exclusively by the
government. For instance, if a storm destroys a bridge, these people
life. I don't mean to deny the value in this narrower view, which
depends upon the context of the inquiry. I do, however, mean to argue
against any insistence that this narrower view is the only proper view
-of liberty. As I argued in Code, we come from a long tradition of
-political thought with a broader focus than the narrow question of
-what the government did when. John Stuart Mill defended freedom of
-speech, for example, from the tyranny of narrow minds, not from the
-fear of government prosecution; John Stuart Mill, On Liberty (Indiana:
-Hackett Publishing Co., 1978), 19. John R. Commons famously defended
-the economic freedom of labor from constraints imposed by the market;
-John R. Commons, "The Right to Work," in Malcom Rutherford and Warren
-J. Samuels, eds., John R. Commons: Selected Essays (London:
+of liberty. As I argued in <citetitle>Code</citetitle>, we come from a
+long tradition of political thought with a broader focus than the
+narrow question of what the government did when. John Stuart Mill
+defended freedom of speech, for example, from the tyranny of narrow
+minds, not from the fear of government prosecution; John Stuart Mill,
+<citetitle>On Liberty</citetitle> (Indiana: Hackett Publishing Co.,
+1978), 19. John R. Commons famously defended the economic freedom of
+labor from constraints imposed by the market; John R. Commons, <quote>The
+Right to Work,</quote> in Malcom Rutherford and Warren J. Samuels, eds.,
+<citetitle>John R. Commons: Selected Essays</citetitle> (London:
Routledge: 1997), 62. The Americans with Disabilities Act increases
the liberty of people with physical disabilities by changing the
architecture of certain public places, thereby making access to those
-places easier; 42 United States Code, section 12101 (2000). Each of
-these interventions to change existing conditions changes the liberty
-of a particular group. The effect of those interventions should be
-accounted for in order to understand the effective liberty that each
-of these groups might face.
+places easier; 42 <citetitle>United States Code</citetitle>, section
+12101 (2000). Each of these interventions to change existing
+conditions changes the liberty of a particular group. The effect of
+those interventions should be accounted for in order to understand the
+effective liberty that each of these groups might face.
+<indexterm><primary>Americans with Disabilities Act (1990)</primary></indexterm>
<indexterm><primary>Commons, John R.</primary></indexterm>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
</para></footnote>
</para>
-<sect2 id="hollywood">
+<indexterm startref='idxlawasconstraintmodality2' class='endofrange'/>
+<section id="hollywood">
<title>Why Hollywood Is Right</title>
+<indexterm id='idxcopyrightfourregulatorymodalitieson' class='startofrange'><primary>copyright</primary><secondary>four regulatory modalities on</secondary></indexterm>
<para>
The most obvious point that this model reveals is just why, or just
how, Hollywood is right. The copyright warriors have rallied Congress
<title>Copyright's regulation before the Internet.</title>
<graphic fileref="images/1331.png"></graphic>
</figure>
+<indexterm id='idxarchitectureconstrainteffectedthrough' class='startofrange'><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>law</primary><secondary>as constraint modality</secondary></indexterm>
+<indexterm id='idxnormsregulatoryinfluenceof2' class='startofrange'><primary>norms, regulatory influence of</primary></indexterm>
<para>
<!-- PAGE BREAK 136 -->
There is balance between law, norms, market, and architecture. The law
of our society (before the Internet, at least) had no problem with
this form of infringement.
</para>
+<indexterm id='idxinternetcopyrightregulatorybalancelostwith' class='startofrange'><primary>Internet</primary><secondary>copyright regulatory balance lost with</secondary></indexterm>
+<indexterm><primary>peer-to-peer (p2p) file sharing</primary><secondary>regulatory balance lost in</secondary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>MP3s</primary></indexterm>
<para>
Enter the Internet, or, more precisely, technologies such as MP3s and
p2p sharing. Now the constraint of architecture changes dramatically,
happy balance (for the warriors, at least) of life before the Internet
becomes an effective state of anarchy after the Internet.
</para>
+<indexterm startref='idxarchitectureconstrainteffectedthrough' class='endofrange'/>
+<indexterm startref='idxnormsregulatoryinfluenceof2' class='endofrange'/>
+<indexterm><primary>technology</primary><secondary>established industries threatened by changes in</secondary></indexterm>
<para>
Thus the sense of, and justification for, the warriors' response.
Technology has changed, the warriors say, and the effect of this
<title>effective state of anarchy after the Internet.</title>
<graphic fileref="images/1381.png"></graphic>
</figure>
+<indexterm><primary>Commerce, U.S. Department of</primary></indexterm>
+<indexterm id='idxregulationasestablishmentprotectionism' class='startofrange'><primary>regulation</primary><secondary>as establishment protectionism</secondary></indexterm>
<para>
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce
+warriors. Indeed, in a <quote>White Paper</quote> prepared by the Commerce
Department (one heavily influenced by the copyright warriors) in 1995,
this mix of regulatory modalities had already been identified and the
strategy to respond already mapped. In response to the changes the
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
</para>
+<indexterm startref='idxfreeculturefourmodalitiesofconstrainton' class='endofrange'/>
+<indexterm startref='idxregulationfourmodalitiesof' class='endofrange'/>
+<indexterm><primary>farming</primary></indexterm>
+<indexterm><primary>steel industry</primary></indexterm>
<para>
This mixed strategy is just what copyright needed—if it was to
preserve the particular balance that existed before the change induced
crop. Unions have no hesitation appealing to the government to bail
them out when imports (market) wipe out the U.S. steel industry.
</para>
+<indexterm startref='idxcopyrightfourregulatorymodalitieson' class='endofrange'/>
+<indexterm startref='idxinternetcopyrightregulatorybalancelostwith' class='endofrange'/>
+<indexterm><primary>Brown, John Seely</primary></indexterm>
<para>
Thus, there's nothing wrong or surprising in the content industry's
campaign to protect itself from the harmful consequences of a
technological innovation. And I would be the last person to argue that
the changing technology of the Internet has not had a profound effect
on the content industry's way of doing business, or as John Seely
-Brown describes it, its "architecture of revenue."
+Brown describes it, its <quote>architecture of revenue.</quote>
</para>
+<indexterm><primary>advertising</primary></indexterm>
+<indexterm><primary>television</primary><secondary>advertising on</secondary></indexterm>
+<indexterm><primary>commercials</primary></indexterm>
+<indexterm><primary>camera technology</primary></indexterm>
+<indexterm><primary>digital cameras</primary></indexterm>
+<indexterm><primary>Kodak cameras</primary></indexterm>
+<indexterm><primary>railroad industry</primary></indexterm>
+<indexterm><primary>remote channel changers</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
percent of their traditional film market to the emerging technologies
of digital cameras.<footnote><para>
<!-- f5 -->
-See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+See Geoffrey Smith, <quote>Film vs. Digital: Can Kodak Build a Bridge?</quote>
BusinessWeek online, 2 August 1999, available at
<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more
recent analysis of Kodak's place in the market, see Chana
-R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6
+R. Schoenberger, <quote>Can Kodak Make Up for Lost Moments?</quote> Forbes.com, 6
October 2003, available at
<ulink url="http://free-culture.cc/notes/">link #24</ulink>.
</para></footnote>
Does anyone believe the government should ban digital cameras just to
support Kodak? Highways have weakened the freight business for
-railroads. Does anyone think we should ban trucks from roads for the
-purpose of protecting the railroads? Closer to the subject of this
-book, remote channel changers have weakened the "stickiness" of
-television advertising (if a boring commercial comes on the TV, the
-remote makes it easy to surf ), and it may well be that this change
-has weakened the television advertising market. But does anyone
-believe we should regulate remotes to reinforce commercial television?
-(Maybe by limiting them to function only once a second, or to switch
-to only ten channels within an hour?)
-</para>
+railroads. Does anyone think we should ban trucks from roads
+<emphasis>for the purpose of</emphasis> protecting the railroads?
+Closer to the subject of this book, remote channel changers have
+weakened the <quote>stickiness</quote> of television advertising (if a boring
+commercial comes on the TV, the remote makes it easy to surf ), and it
+may well be that this change has weakened the television advertising
+market. But does anyone believe we should regulate remotes to
+reinforce commercial television? (Maybe by limiting them to function
+only once a second, or to switch to only ten channels within an hour?)
+</para>
+<indexterm id='idxfreemarkettechnologicalchangesin' class='startofrange'><primary>free market, technological changes in</primary></indexterm>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
+<indexterm><primary>FM radio</primary></indexterm>
+<indexterm><primary>radio</primary><secondary>FM spectrum of</secondary></indexterm>
+<indexterm><primary>Gates, Bill</primary></indexterm>
+<indexterm><primary>market competition</primary></indexterm>
+<indexterm><primary>RCA</primary></indexterm>
<para>
The obvious answer to these obviously rhetorical questions is no.
In a free society, with a free market, supported by free enterprise and
business against others. Its role is not to pick winners and protect
them against loss. If the government did this generally, then we would
never have any progress. As Microsoft chairman Bill Gates wrote in
-1991, in a memo criticizing software patents, "established companies
-have an interest in excluding future competitors.
"<footnote><para>
+1991, in a memo criticizing software patents, <quote>established companies
+have an interest in excluding future competitors.
</quote><footnote><para>
<!-- f6 -->
-Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71.
+Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, 1994), 170–71.
</para></footnote>
And relative to a
startup, established companies also have the means. (Think RCA and
competitors with new ideas will not succeed. It is a world of stasis and
increasingly concentrated stagnation. It is the Soviet Union under
Brezhnev.
-<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<para>
Thus, while it is understandable for industries threatened with new
changing technology, are changes that preserve the incentives and
opportunities for innovation and change.
</para>
+<indexterm><primary>Constitution, U.S.</primary><secondary>First Amendment to</secondary></indexterm>
+<indexterm><primary>First Amendment</primary></indexterm>
+<indexterm><primary>speech, freedom of</primary><secondary>constitutional guarantee of</secondary></indexterm>
<para>
In the context of laws regulating speech—which include,
obviously, copyright law—that duty is even stronger. When the
should be especially wary of the request. It is always a bad deal for
the government to get into the business of regulating speech
markets. The risks and dangers of that game are precisely why our
-framers created the First Amendment to our Constitution: "Congress
-shall make no law . . . abridging the freedom of speech." So when
-Congress is being asked to pass laws that would "abridge" the freedom
+framers created the First Amendment to our Constitution: <quote>Congress
+shall make no law … abridging the freedom of speech.</quote> So when
+Congress is being asked to pass laws that would <quote>abridge</quote> the freedom
of speech, it should ask— carefully—whether such
regulation is justified.
</para>
+<indexterm startref='idxregulationasestablishmentprotectionism' class='endofrange'/>
+<indexterm startref='idxfreemarkettechnologicalchangesin' class='endofrange'/>
<para>
My argument just now, however, has nothing to do with whether
<!-- PAGE BREAK 140 -->
the changes that are being pushed by the copyright warriors are
-"justified." My argument is about their effect. For before we get to
+<quote>justified.</quote> My argument is about their effect. For before we get to
the question of justification, a hard question that depends a great
deal upon your values, we should first ask whether we understand the
effect of the changes the content industry wants.
<para>
Here's the metaphor that will capture the argument to follow.
</para>
+<indexterm id='idxmllerpaulhermann' class='startofrange'><primary>Müller, Paul Hermann</primary></indexterm>
+<indexterm id='idxddt' class='startofrange'><primary>DDT</primary></indexterm>
+<indexterm id='idxinsecticideenvironmentalconsequencesof' class='startofrange'><primary>insecticide, environmental consequences of</primary></indexterm>
+<indexterm id='idxfarming' class='startofrange'><primary>farming</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
important and valuable and probably saved lives, possibly millions.
</para>
<indexterm><primary>Carson, Rachel</primary></indexterm>
+<indexterm><primary>Silent Spring (Carson)</primary></indexterm>
+<indexterm id='idxenvironmentalism' class='startofrange'><primary>environmentalism</primary></indexterm>
<para>
-But in 1962, Rachel Carson published Silent Spring, which argued that
+But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, which argued that
DDT, whatever its primary benefits, was also having unintended
environmental consequences. Birds were losing the ability to
reproduce. Whole chains of the ecology were being destroyed.
-<indexterm><primary>Carson, Rachel</primary></indexterm>
-<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
</para>
<para>
No one set out to destroy the environment. Paul Müller certainly did
when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
</para>
+<indexterm startref='idxmllerpaulhermann' class='endofrange'/>
+<indexterm><primary>Boyle, James</primary></indexterm>
+<indexterm id='idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2' class='startofrange'><primary>copyright law</primary><secondary>innovative freedom balanced with fair compensation in</secondary></indexterm>
<para>
It is to this image precisely that Duke University law professor James
-Boyle appeals when he argues that we need an "environmentalism" for
+Boyle appeals when he argues that we need an <quote>environmentalism</quote> for
culture.<footnote><para>
<!-- f7 -->
-See, for example, James Boyle, "A Politics of Intellectual Property:
-Environmentalism for the Net?" Duke Law Journal 47 (1997): 87.
+See, for example, James Boyle, <quote>A Politics of Intellectual Property:
+Environmentalism for the Net?</quote> <citetitle>Duke Law Journal</citetitle> 47 (1997): 87.
</para></footnote>
His point, and the point I want to develop in the balance of this
chapter, is not that the aims of copyright are flawed. Or that authors
should not be paid for their work. Or that music should be given away
-"for free." The point is that some of the ways in which we might
+<quote>for free.</quote> The point is that some of the ways in which we might
protect authors will have unintended consequences for the cultural
environment, much like DDT had for the natural environment. And just
<!-- PAGE BREAK 141 -->
authors. It is an environment of creativity that we seek, and we
should be aware of our actions' effects on the environment.
</para>
+<indexterm startref='idxfarming' class='endofrange'/>
<para>
My argument, in the balance of this chapter, tries to map exactly
this effect. No doubt the technology of the Internet has had a dramatic
generally missed, the net effect of this massive increase in protection
will be devastating to the environment for creativity.
</para>
+<indexterm startref='idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2' class='endofrange'/>
<para>
In a line: To kill a gnat, we are spraying DDT with consequences
for free culture that will be far more devastating than that this gnat will
be lost.
</para>
-</sect2>
-<sect2 id="beginnings">
+<indexterm startref='idxddt' class='endofrange'/>
+<indexterm startref='idxinsecticideenvironmentalconsequencesof' class='endofrange'/>
+<indexterm startref='idxenvironmentalism' class='endofrange'/>
+</section>
+<section id="beginnings">
<title>Beginnings</title>
+<indexterm><primary>Constitution, U.S.</primary><secondary>on creative property</secondary></indexterm>
+<indexterm id='idxconstitutionuscopyrightpurposeestablishedin' class='startofrange'><primary>Constitution, U.S.</primary><secondary>copyright purpose established in</secondary></indexterm>
+<indexterm id='idxconstitutionusprogressclauseof' class='startofrange'><primary>Constitution, U.S.</primary><secondary>Progress Clause of</secondary></indexterm>
+<indexterm><primary>copyright</primary><secondary>constitutional purpose of</secondary></indexterm>
+<indexterm><primary>copyright</primary><secondary>duration of</secondary></indexterm>
+<indexterm id='idxcreativepropertyconstitutionaltraditionon2' class='startofrange'><primary>creative property</primary><secondary>constitutional tradition on</secondary></indexterm>
+<indexterm id='idxprogressclause' class='startofrange'><primary>Progress Clause</primary></indexterm>
+<indexterm><primary>copyright</primary><secondary>duration of</secondary></indexterm>
<para>
America copied English copyright law. Actually, we copied and improved
-English copyright law. Our Constitution makes the purpose of "creative
-property" rights clear; its express limitations reinforce the English
+English copyright law. Our Constitution makes the purpose of <quote>creative
+property</quote> rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
</para>
+<indexterm id='idxcongressusinconstitutionalprogressclause' class='startofrange'><primary>Congress, U.S.</primary><secondary>in constitutional Progress Clause</secondary></indexterm>
<para>
-The power to establish "creative property" rights is granted to
+The power to establish <quote>creative property</quote> rights is granted to
Congress in a way that, for our Constitution, at least, is very
odd. Article I, section 8, clause 8 of our Constitution states that:
</para>
the exclusive Right to their respective Writings and Discoveries.
<!-- PAGE BREAK 142 -->
-We can call this the "Progress Clause," for notice what this clause
+We can call this the <quote>Progress Clause,</quote> for notice what this clause
does not say. It does not say Congress has the power to grant
-"creative property rights." It says that Congress has the power to
-promote progress. The grant of power is its purpose, and its purpose
-is a public one, not the purpose of enriching publishers, nor even
-primarily the purpose of rewarding authors.
+<quote>creative property rights.</quote> It says that Congress has the power
+<emphasis>to promote progress</emphasis>. The grant of power is its
+purpose, and its purpose is a public one, not the purpose of enriching
+publishers, nor even primarily the purpose of rewarding authors.
</para>
+<indexterm startref='idxcongressusinconstitutionalprogressclause' class='endofrange'/>
+<indexterm id='idxcopyrightlawasprotectionofcreators' class='startofrange'><primary>copyright law</primary><secondary>as protection of creators</secondary></indexterm>
+<indexterm id='idxcopyrightlawhistoryofamerican' class='startofrange'><primary>copyright law</primary><secondary>history of American</secondary></indexterm>
<para>
The Progress Clause expressly limits the term of copyrights. As we saw
-in chapter 6, the English limited the term of copyright so as to
-assure that a few would not exercise disproportionate control over
-culture by exercising disproportionate control over publishing. We can
-assume the framers followed the English for a similar purpose. Indeed,
-unlike the English, the framers reinforced that objective, by
-requiring that copyrights extend "to Authors" only.
-</para>
+in chapter <xref xrefstyle="select: labelnumber" linkend="founders"/>,
+the English limited the term of copyright so as to assure that a few
+would not exercise disproportionate control over culture by exercising
+disproportionate control over publishing. We can assume the framers
+followed the English for a similar purpose. Indeed, unlike the
+English, the framers reinforced that objective, by requiring that
+copyrights extend <quote>to Authors</quote> only.
+</para>
+<indexterm><primary>Senate, U.S.</primary></indexterm>
+<indexterm><primary>Constitution, U.S.</primary><secondary>structural checks and balances of</secondary></indexterm>
+<indexterm><primary>electoral college</primary></indexterm>
<para>
The design of the Progress Clause reflects something about the
Constitution's design in general. To avoid a problem, the framers
to reinforce the power of the states—including the Senate, whose
members were at the time selected by the states, and an electoral
college, also selected by the states, to select the president. In each
-case, a structure built checks and balances into the constitutional
-frame, structured to prevent otherwise inevitable concentrations of
-power.
+case, a <emphasis>structure</emphasis> built checks and balances into
+the constitutional frame, structured to prevent otherwise inevitable
+concentrations of power.
</para>
+<indexterm startref='idxconstitutionusprogressclauseof' class='endofrange'/>
+<indexterm startref='idxprogressclause' class='endofrange'/>
<para>
-I doubt the framers would recognize the regulation we call "copyright"
+I doubt the framers would recognize the regulation we call <quote>copyright</quote>
today. The scope of that regulation is far beyond anything they ever
considered. To begin to understand what they did, we need to put our
-"copyright" in context: We need to see how it has changed in the 210
+<quote>copyright</quote> in context: We need to see how it has changed in the 210
years since they first struck its design.
</para>
+<indexterm startref='idxconstitutionuscopyrightpurposeestablishedin' class='endofrange'/>
+<indexterm startref='idxcreativepropertyconstitutionaltraditionon2' class='endofrange'/>
+<indexterm startref='idxcopyrightlawasprotectionofcreators' class='endofrange'/>
+<indexterm><primary>copyright</primary><secondary>four regulatory modalities on</secondary></indexterm>
<para>
Some of these changes come from the law: some in light of changes
in technology, and some in light of changes in technology given a
We will end here:
</para>
<figure id="fig-1442">
-<title>"Copyright" today.</title>
+<title><quote>Copyright</quote> today.</title>
<graphic fileref="images/1442.png"></graphic>
</figure>
<para>
Let me explain how.
<!-- PAGE BREAK 144 -->
</para>
-</sect2>
-<sect2 id="lawduration">
+</section>
+<section id="lawduration">
<title>Law: Duration</title>
+<indexterm id='idxcopyrightdurationof4' class='startofrange'><primary>copyright</primary><secondary>duration of</secondary></indexterm>
+<indexterm id='idxcongressusoncopyrightlaws5' class='startofrange'><primary>Congress, U.S.</primary><secondary>on copyright laws</secondary></indexterm>
+<indexterm id='idxcopyrightact' class='startofrange'><primary>Copyright Act (1790)</primary></indexterm>
+<indexterm><primary>creative property</primary><secondary>common law protections of</secondary></indexterm>
+<indexterm id='idxpublicdomainbalanceofuscontentin' class='startofrange'><primary>public domain</primary><secondary>balance of U.S. content in</secondary></indexterm>
<para>
When the first Congress enacted laws to protect creative property, it
faced the same uncertainty about the status of creative property that
authorship.<footnote>
<para>
<!-- f8 -->
-William W. Crosskey, Politics and the Constitution in the History of
-the United States (London: Cambridge University Press, 1953), vol. 1,
-485–86: "extinguish[ing], by plain implication of `the supreme
-Law of the Land,' the perpetual rights which authors had, or were
-supposed by some to have, under the Common Law" (emphasis added).
+William W. Crosskey, <citetitle>Politics and the Constitution in the History of
+the United States</citetitle> (London: Cambridge University Press, 1953), vol. 1,
+485–86: <quote>extinguish[ing], by plain implication of `the supreme
+Law of the Land,' <emphasis>the perpetual rights which authors had, or
+were supposed by some to have, under the Common Law</emphasis></quote>
+(emphasis added).
<indexterm><primary>Crosskey, William W.</primary></indexterm>
</para></footnote>
This meant that there was no guaranteed public domain in the United
uncertainty would make it hard for publishers to rely upon a public
domain to reprint and distribute works.
</para>
+<indexterm><primary>Statute of Anne (1710)</primary></indexterm>
+<indexterm id='idxlawfederalvsstate' class='startofrange'><primary>law</primary><secondary>federal vs. state</secondary></indexterm>
<para>
That uncertainty ended after Congress passed legislation granting
copyrights. Because federal law overrides any contrary state law,
that the copyrights for all English works expired, a federal statute
meant that any state copyrights expired as well.
</para>
+<indexterm id='idxcopyrightrenewabilityof' class='startofrange'><primary>copyright</primary><secondary>renewability of</secondary></indexterm>
<para>
In 1790, Congress enacted the first copyright law. It created a
federal copyright and secured that copyright for fourteen years. If
opt to renew the copyright for another fourteen years. If he did not
renew the copyright, his work passed into the public domain.
</para>
+<indexterm startref='idxcongressusoncopyrightlaws5' class='endofrange'/>
<para>
While there were many works created in the United States in the first
ten years of the Republic, only 5 percent of the works were actually
likely within fourteen years.<footnote><para>
<!-- f9 -->
Although 13,000 titles were published in the United States from 1790
-to 1799, only 556 copyright registrations were filed; John Tebbel, A
-History of Book Publishing in the United States, vol. 1, The Creation
-of an Industry, 1630–1865 (New York: Bowker, 1972), 141. Of the 21,000
+to 1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A
+History of Book Publishing in the United States</citetitle>, vol. 1, <citetitle>The Creation
+of an Industry, 1630–1865</citetitle> (New York: Bowker, 1972), 141. Of the 21,000
imprints recorded before 1790, only twelve were copyrighted under the
-1790 act; William J. Maher, Copyright Term, Retrospective Extension
-and the Copyright Law of 1790 in Historical Context, 7–10 (2002),
+1790 act; William J. Maher, <citetitle>Copyright Term, Retrospective Extension
+and the Copyright Law of 1790 in Historical Context</citetitle>, 7–10 (2002),
available at <ulink url="http://free-culture.cc/notes/">link
#25</ulink>. Thus, the overwhelming majority of works fell
immediately into the public domain. Even those works that were
with the option of renewal for an additional fourteen years. Copyright
Act of May 31, 1790, §1, 1 stat. 124. </para></footnote>
</para>
+<indexterm startref='idxcopyrightact' class='endofrange'/>
+<indexterm startref='idxlawfederalvsstate' class='endofrange'/>
<para>
This system of renewal was a crucial part of the American system
of copyright. It assured that the maximum terms of copyright would be
Few copyright holders ever chose to renew their copyrights. For
instance, of the 25,006 copyrights registered in 1883, only 894 were
renewed in 1910. For a year-by-year analysis of copyright renewal
-rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright,"
-Studies on Copyright, vol. 1 (New York: Practicing Law Institute,
+rates, see Barbara A. Ringer, <quote>Study No. 31: Renewal of Copyright,</quote>
+<citetitle>Studies on Copyright</citetitle>, vol. 1 (New York: Practicing Law Institute,
1963), 618. For a more recent and comprehensive analysis, see William
-M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright,"
-University of Chicago Law Review 70 (2003): 471, 498–501, and
+M. Landes and Richard A. Posner, <quote>Indefinitely Renewable Copyright,</quote>
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, 498–501, and
accompanying figures. </para></footnote>
</para>
+<indexterm startref='idxpublicdomainbalanceofuscontentin' class='endofrange'/>
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
<para>
Even today, this structure would make sense. Most creative work
has an actual commercial life of just a couple of years. Most books fall
<!-- f11 -->
See Ringer, ch. 9, n. 2. </para></footnote> When that happens, the
used books are traded free of copyright regulation. Thus the books are
-no longer effectively controlled by copyright. The only practical
-commercial use of the books at that time is to sell the books as used
-books; that use—because it does not involve publication—is
-effectively free.
+no longer <emphasis>effectively</emphasis> controlled by
+copyright. The only practical commercial use of the books at that time
+is to sell the books as used books; that use—because it does not
+involve publication—is effectively free.
</para>
+<indexterm id='idxcongressusoncopyrightlaws6' class='startofrange'><primary>Congress, U.S.</primary><secondary>on copyright laws</secondary></indexterm>
+<indexterm id='idxcongressuscopyrighttermsextendedby' class='startofrange'><primary>Congress, U.S.</primary><secondary>copyright terms extended by</secondary></indexterm>
+<indexterm id='idxcopyrightlawtermextensionsin' class='startofrange'><primary>copyright law</primary><secondary>term extensions in</secondary></indexterm>
<para>
In the first hundred years of the Republic, the term of copyright was
changed once. In 1831, the term was increased from a maximum of 28
the term increased once again. In 1909, Congress extended the renewal
term of 14 years to 28 years, setting a maximum term of 56 years.
</para>
+<indexterm id='idxsonnybonocopyrighttermextensionactctea' class='startofrange'><primary>Sonny Bono Copyright Term Extension Act (CTEA) (1998)</primary></indexterm>
+<indexterm id='idxpublicdomainfuturepatentsvsfuturecopyrightsin' class='startofrange'><primary>public domain</primary><secondary>future patents vs. future copyrights in</secondary></indexterm>
<para>
Then, beginning in 1962, Congress started a practice that has defined
copyright law since. Eleven times in the last forty years, Congress
And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
extended the term of existing and future copyrights by twenty years.
</para>
+<indexterm><primary>patents</primary><secondary>in public domain</secondary></indexterm>
<para>
The effect of these extensions is simply to toll, or delay, the passing
of works into the public domain. This latest extension means that the
public domain, zero copyrights will pass into the public domain by virtue
of the expiration of a copyright term.
</para>
+<indexterm startref='idxsonnybonocopyrighttermextensionactctea' class='endofrange'/>
<para>
The effect of these extensions has been exacerbated by another,
little-noticed change in the copyright law. Remember I said that the
under protection would be those that had some continuing commercial
value.
</para>
+<indexterm><primary>Sonny Bono Copyright Term Extension Act (CTEA) (1998)</primary></indexterm>
+<indexterm><primary>copyright</primary><secondary>of natural authors vs. corporations</secondary></indexterm>
+<indexterm><primary>corporations</primary><secondary>copyright terms for</secondary></indexterm>
<para>
The United States abandoned this sensible system in 1976. For
all works created after 1978, there was only one copyright term—the
-maximum term. For "natural" authors, that term was life plus fifty
+maximum term. For <quote>natural</quote> authors, that term was life plus fifty
years. For corporations, the term was seventy-five years. Then, in 1992,
Congress abandoned the renewal requirement for all works created
before 1978. All works still under copyright would be accorded the
domain. And indeed, after these changes, it is unclear whether it is
even possible to put works into the public domain. The public domain
is orphaned by these changes in copyright law. Despite the requirement
-that terms be "limited," we have no evidence that anything will limit
+that terms be <quote>limited,</quote> we have no evidence that anything will limit
them.
</para>
+<indexterm startref='idxcopyrightlawhistoryofamerican' class='endofrange'/>
+<indexterm startref='idxpublicdomainfuturepatentsvsfuturecopyrightsin' class='endofrange'/>
<para>
The effect of these changes on the average duration of copyright is
dramatic. In 1973, more than 85 percent of copyright owners failed to
These statistics are understated. Between the years 1910 and 1962 (the
first year the renewal term was extended), the average term was never
more than thirty-two years, and averaged thirty years. See Landes and
-Posner, "Indefinitely Renewable Copyright," loc. cit.
+Posner, <quote>Indefinitely Renewable Copyright,</quote> loc. cit.
</para></footnote>
</para>
+<indexterm startref='idxcopyrightdurationof4' class='endofrange'/>
+<indexterm startref='idxcopyrightrenewabilityof' class='endofrange'/>
+<indexterm startref='idxcongressusoncopyrightlaws6' class='endofrange'/>
+<indexterm startref='idxcongressuscopyrighttermsextendedby' class='endofrange'/>
+<indexterm startref='idxcopyrightlawtermextensionsin' class='endofrange'/>
<!-- PAGE BREAK 147 -->
-</sect2>
-<sect2 id="lawscope">
+</section>
+<section id="lawscope">
<title>Law: Scope</title>
+<indexterm id='idxcopyrightscopeof' class='startofrange'><primary>copyright</primary><secondary>scope of</secondary></indexterm>
<para>
-The "scope" of a copyright is the range of rights granted by the law.
+The <quote>scope</quote> of a copyright is the range of rights granted by the law.
The scope of American copyright has changed dramatically. Those
changes are not necessarily bad. But we should understand the extent
of the changes if we're to keep this debate in context.
</para>
+<indexterm><primary>copyright law</primary><secondary>on republishing vs. transformation of original work</secondary></indexterm>
+<indexterm id='idxderivativeworkshistoricalshiftincopyrightcoverageof' class='startofrange'><primary>derivative works</primary><secondary>historical shift in copyright coverage of</secondary></indexterm>
<para>
-In 1790, that scope was very narrow. Copyright covered only "maps,
-charts, and books." That means it didn't cover, for example, music or
+In 1790, that scope was very narrow. Copyright covered only <quote>maps,
+charts, and books.</quote> That means it didn't cover, for example, music or
architecture. More significantly, the right granted by a copyright gave
-the author the exclusive right to "publish" copyrighted works. That
+the author the exclusive right to <quote>publish</quote> copyrighted works. That
means someone else violated the copyright only if he republished the
work without the copyright owner's permission. Finally, the right granted
by a copyright was an exclusive right to that particular book. The right
-did not extend to what lawyers call "derivative works." It would not,
+did not extend to what lawyers call <quote>derivative works.</quote> It would not,
therefore, interfere with the right of someone other than the author to
translate a copyrighted book, or to adapt the story to a different form
(such as a drama based on a published book).
right covers practically any creative work that is reduced to a
tangible form. It covers music as well as architecture, drama as well
as computer programs. It gives the copyright owner of that creative
-work not only the exclusive right to "publish" the work, but also the
-exclusive right of control over any "copies" of that work. And most
+work not only the exclusive right to <quote>publish</quote> the work, but also the
+exclusive right of control over any <quote>copies</quote> of that work. And most
significant for our purposes here, the right gives the copyright owner
control over not only his or her particular work, but also any
-"derivative work" that might grow out of the original work. In this
+<quote>derivative work</quote> that might grow out of the original work. In this
way, the right covers more creative work, protects the creative work
more broadly, and protects works that are based in a significant way
on the initial creative work.
</para>
+<indexterm id='idxcopyrightmarkingof' class='startofrange'><primary>copyright</primary><secondary>marking of</secondary></indexterm>
+<indexterm id='idxformalities' class='startofrange'><primary>formalities</primary></indexterm>
+<indexterm id='idxcopyrightlawregistrationrequirementof' class='startofrange'><primary>copyright law</primary><secondary>registration requirement of</secondary></indexterm>
<para>
At the same time that the scope of copyright has expanded, procedural
limitations on the right have been relaxed. I've already described the
copyright law, there was a requirement that a work be registered
before it could receive the protection of a copyright. There was also
a requirement that any copyrighted work be marked either with that
-famous © or the word copyright. And for most of the history of
-American copyright law, there was a requirement that works be
-deposited with the government before a copyright could be secured.
+famous © or the word <emphasis>copyright</emphasis>. And for most
+of the history of American copyright law, there was a requirement that
+works be deposited with the government before a copyright could be
+secured.
</para>
+<indexterm startref='idxderivativeworkshistoricalshiftincopyrightcoverageof' class='endofrange'/>
<para>
The reason for the registration requirement was the sensible
understanding that for most works, no copyright was required. Again,
somewhere so that it could be copied by others without locating the
original author.
</para>
+<indexterm><primary>copyright law</primary><secondary>European</secondary></indexterm>
<para>
-All of these "formalities" were abolished in the American system when
+All of these <quote>formalities</quote> were abolished in the American system when
we decided to follow European copyright law. There is no requirement
that you register a work to get a copyright; the copyright now is
automatic; the copyright exists whether or not you mark your work with
a ©; and the copyright exists whether or not you actually make a
copy available for others to copy.
</para>
+<indexterm startref='idxcopyrightmarkingof' class='endofrange'/>
+<indexterm startref='idxformalities' class='endofrange'/>
+<indexterm startref='idxcopyrightlawregistrationrequirementof' class='endofrange'/>
<para>
Consider a practical example to understand the scope of these
differences.
</para>
+<indexterm id='idxcopyrightact2' class='startofrange'><primary>Copyright Act (1790)</primary></indexterm>
<para>
If, in 1790, you wrote a book and you were one of the 5 percent who
actually copyrighted that book, then the copyright law protected you
so as to prevent that kind of unfair competition. In 1790, there were
174 publishers in the United States.<footnote><para>
<!-- f13 -->
-See Thomas Bender and David Sampliner, "Poets, Pirates, and the
- Creation
-of American Literature," 29 New York University Journal of
- International
-Law and Politics 255 (1997), and James Gilraeth, ed., Federal
-Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
+See Thomas Bender and David Sampliner, <quote>Poets, Pirates, and the
+Creation of American Literature,</quote> 29 <citetitle>New York University Journal of
+International Law and Politics</citetitle> 255 (1997), and James Gilraeth, ed.,
+Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
+
</para></footnote>
The Copyright Act was thus a tiny
regulation of a tiny proportion of a tiny part of the creative market in
the United States—publishers.
</para>
+<indexterm id='idxcopyrightlawonrepublishingvstransformationoforiginalwork2' class='startofrange'><primary>copyright law</primary><secondary>on republishing vs. transformation of original work</secondary></indexterm>
+<indexterm id='idxderivativeworkspiracyvs3' class='startofrange'><primary>derivative works</primary><secondary>piracy vs.</secondary></indexterm>
+<indexterm id='idxpiracyderivativeworkvs3' class='startofrange'><primary>piracy</primary><secondary>derivative work vs.</secondary></indexterm>
<para>
<!-- PAGE BREAK 149 -->
-The act left other creators totally unregulated. If I copied your
-poem by hand, over and over again, as a way to learn it by heart, my
-act was totally unregulated by the 1790 act. If I took your novel and
-made a play based upon it, or if I translated it or abridged it, none of
-those activities were regulated by the original copyright act. These
- creative
-activities remained free, while the activities of publishers were
- restrained.
+The act left other creators totally unregulated. If I copied your poem
+by hand, over and over again, as a way to learn it by heart, my act
+was totally unregulated by the 1790 act. If I took your novel and made
+a play based upon it, or if I translated it or abridged it, none of
+those activities were regulated by the original copyright act. These
+creative activities remained free, while the activities of publishers
+were restrained.
</para>
+<indexterm startref='idxcopyrightact2' class='endofrange'/>
<para>
Today the story is very different: If you write a book, your book is
automatically protected. Indeed, not just your book. Every e-mail,
-every note to your spouse, every doodle, every creative act that's
- reduced
-to a tangible form—all of this is automatically copyrighted.
-There is no need to register or mark your work. The protection follows
-the creation, not the steps you take to protect it.
+every note to your spouse, every doodle, <emphasis>every</emphasis>
+creative act that's reduced to a tangible form—all of this is
+automatically copyrighted. There is no need to register or mark your
+work. The protection follows the creation, not the steps you take to
+protect it.
</para>
<para>
That protection gives you the right (subject to a narrow range of
That much is the obvious part. Any system of copyright would
control
competing publishing. But there's a second part to the copyright of
-today that is not at all obvious. This is the protection of "derivative
-rights." If you write a book, no one can make a movie out of your
+today that is not at all obvious. This is the protection of <quote>derivative
+rights.</quote> If you write a book, no one can make a movie out of your
book without permission. No one can translate it without permission.
CliffsNotes can't make an abridgment unless permission is granted. All
of these derivative uses of your original work are controlled by the
right to your writings, but an exclusive right to your writings
and a large proportion of the writings inspired by them.
</para>
+<indexterm startref='idxderivativeworkspiracyvs3' class='endofrange'/>
<para>
It is this derivative right that would seem most bizarre to our
framers, though it has become second nature to us. Initially, this
those slight modifications as well as the verbatim original work.
</para>
<para>
-
<!-- PAGE BREAK 150 -->
-In preventing that joke, the law created an astonishing power within
-a free culture—at least, it's astonishing when you understand that the
-law applies not just to the commercial publisher but to anyone with a
-computer. I understand the wrong in duplicating and selling someone
-else's work. But whatever that wrong is, transforming someone else's
-work is a different wrong. Some view transformation as no wrong at
-all—they believe that our law, as the framers penned it, should not
- protect
-derivative rights at all.<footnote><para>
+In preventing that joke, the law created an astonishing power
+within a free culture—at least, it's astonishing when you
+understand that the law applies not just to the commercial publisher
+but to anyone with a computer. I understand the wrong in duplicating
+and selling someone else's work. But whatever
+<emphasis>that</emphasis> wrong is, transforming someone else's work
+is a different wrong. Some view transformation as no wrong at
+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," Legal Affairs, July/August
-2003, available at
+Jonathan Zittrain, <quote>The Copyright Cage,</quote> <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>
the wrong of direct piracy.
</para>
<para>
-Yet copyright law treats these two different wrongs in the same
-way. I can go to court and get an injunction against your pirating my
-book. I can go to court and get an injunction against your
- transformative
-use of my book.<footnote><para>
+Yet copyright law treats these two different wrongs in the same way. I
+can go to court and get an injunction against your pirating my book. I
+can go to court and get an injunction against your transformative use
+of my book.<footnote><para>
<!-- f15 -->
Professor Rubenfeld has presented a powerful constitutional argument
-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,"
-Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59).
+about the difference that copyright law should draw (from the
+perspective of the First Amendment) between mere <quote>copies</quote> and
+derivative works. See Jed Rubenfeld, <quote>The Freedom of Imagination:
+Copyright's Constitutionality,</quote> <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>
+<indexterm startref='idxpiracyderivativeworkvs3' class='endofrange'/>
+<indexterm><primary>Disney, Walt</primary></indexterm>
+<indexterm><primary>Mickey Mouse</primary></indexterm>
<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 <quote>Mickey Mouse,</quote> 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.
-</para>
-</sect2>
-<sect2 id="lawreach">
+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>
+<indexterm startref='idxcopyrightscopeof' class='endofrange'/>
+<indexterm startref='idxcopyrightlawonrepublishingvstransformationoforiginalwork2' class='endofrange'/>
+</section>
+<section id="lawreach">
<title>Law and Architecture: Reach</title>
+<indexterm id='idxcopyrightlawcopiesascoreissueof' class='startofrange'><primary>copyright law</primary><secondary>copies as core issue of</secondary></indexterm>
+<indexterm id='idxcopyrightlawscopeof' class='startofrange'><primary>copyright law</primary><secondary>scope of</secondary></indexterm>
<para>
Whereas originally the law regulated only publishers, the change in
copyright's scope means that the law today regulates publishers, users,
and authors. It regulates them because all three are capable of making
copies, and the core of the regulation of copyright law is copies.<footnote><para>
<!-- f16 -->
-This is a simplification of the law, but not much of one. The law certainly
-regulates more than "copies"—a public performance of a copyrighted
-song, for example, is regulated even though performance per se doesn't
-make a copy; 17 United States Code, section 106(4). And it certainly
- sometimes
-doesn't regulate a "copy"; 17 United States Code, section 112(a). But
-the presumption under the existing law (which regulates "copies;" 17
-United States Code, section 102) is that if there is a copy, there is a right.
+This is a simplification of the law, but not much of one. The law
+certainly regulates more than <quote>copies</quote>—a public performance of a
+copyrighted song, for example, is regulated even though performance
+per se doesn't make a copy; 17 <citetitle>United States Code</citetitle>, section
+106(4). And it certainly sometimes doesn't regulate a <quote>copy</quote>; 17
+<citetitle>United States Code</citetitle>, section 112(a). But the presumption under the
+existing law (which regulates <quote>copies;</quote> 17 <citetitle>United States Code</citetitle>, section
+102) is that if there is a copy, there is a right.
</para></footnote>
</para>
+<indexterm><primary>Valenti, Jack</primary><secondary>on creative property rights</secondary></indexterm>
+<indexterm id='idxcreativepropertyotherpropertyrightsvs2' class='startofrange'><primary>creative property</primary><secondary>other property rights vs.</secondary></indexterm>
<para>
<!-- PAGE BREAK 151 -->
-"Copies." That certainly sounds like the obvious thing for copyright
-law to regulate. But as with Jack Valenti's argument at the start of this
-chapter, that "creative property" deserves the "same rights" as all other
-property, it is the obvious that we need to be most careful about. For
-while it may be obvious that in the world before the Internet, copies
-were the obvious trigger for copyright law, upon reflection, it should be
-obvious that in the world with the Internet, copies should not be the
-trigger for copyright law. More precisely, they should not always be the
-trigger for copyright law.
-</para>
+<quote>Copies.</quote> That certainly sounds like the obvious thing for
+<emphasis>copy</emphasis>right law to regulate. But as with Jack
+Valenti's argument at the start of this chapter, that <quote>creative
+property</quote> deserves the <quote>same rights</quote> as all other property, it is the
+<emphasis>obvious</emphasis> that we need to be most careful
+about. For while it may be obvious that in the world before the
+Internet, copies were the obvious trigger for copyright law, upon
+reflection, it should be obvious that in the world with the Internet,
+copies should <emphasis>not</emphasis> be the trigger for copyright
+law. More precisely, they should not <emphasis>always</emphasis> be
+the trigger for copyright law.
+</para>
+<indexterm startref='idxcopyrightlawcopiesascoreissueof' class='endofrange'/>
<para>
This is perhaps the central claim of this book, so let me take this
very slowly so that the point is not easily missed. My claim is that the
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,
by the legislators who enacted copyright law.
</para>
+<indexterm startref='idxcopyrightlawscopeof' class='endofrange'/>
+<indexterm startref='idxcreativepropertyotherpropertyrightsvs2' class='endofrange'/>
<para>
-We can see this point abstractly by beginning with this largely
+We can see this point abstractly by beginning with this largely
empty circle.
</para>
<figure id="fig-1521">
<title>All potential uses of a book.</title>
<graphic fileref="images/1521.png"></graphic>
</figure>
+<indexterm id='idxbooksthreetypesofusesof' class='startofrange'><primary>books</primary><secondary>three types of uses of</secondary></indexterm>
+<indexterm id='idxcopyrightlawcopiesascoreissueof2' class='startofrange'><primary>copyright law</primary><secondary>copies as core issue of</secondary></indexterm>
+<indexterm id='idxinternetcopyrightapplicabilityalteredbytechnologyof' class='startofrange'><primary>Internet</primary><secondary>copyright applicability altered by technology of</secondary></indexterm>
+<indexterm id='idxtechnologycopyrightintentalteredby' class='startofrange'><primary>technology</primary><secondary>copyright intent altered by</secondary></indexterm>
+<indexterm id='idxderivativeworkspiracyvs4' class='startofrange'><primary>derivative works</primary><secondary>piracy vs.</secondary></indexterm>
+<indexterm id='idxpiracyderivativeworkvs4' class='startofrange'><primary>piracy</primary><secondary>derivative work vs.</secondary></indexterm>
<para>
<!-- PAGE BREAK 152 -->
Think about a book in real space, and imagine this circle to represent
-all its potential uses. Most of these uses are unregulated by
-copyright law, because the uses don't create a copy. If you read a
-book, that act is not regulated by copyright law. If you give someone
-the book, that act is not regulated by copyright law. If you resell a
-book, that act is not regulated (copyright law expressly states that
-after the first sale of a book, the copyright owner can impose no
-further conditions on the disposition of the book). If you sleep on
-the book or use it to hold up a lamp or let your puppy chew it up,
-those acts are not regulated by copyright law, because those acts do
-not make a copy.
+all its potential <emphasis>uses</emphasis>. Most of these uses are
+unregulated by copyright law, because the uses don't create a copy. If
+you read a book, that act is not regulated by copyright law. If you
+give someone the book, that act is not regulated by copyright law. If
+you resell a book, that act is not regulated (copyright law expressly
+states that after the first sale of a book, the copyright owner can
+impose no further conditions on the disposition of the book). If you
+sleep on the book or use it to hold up a lamp or let your puppy chew
+it up, those acts are not regulated by copyright law, because those
+acts do not make a copy.
</para>
<figure id="fig-1531">
<title>Examples of unregulated uses of a book.</title>
paradigmatic use properly regulated by copyright regulation (see first
diagram on next page).
</para>
+<indexterm startref='idxderivativeworkspiracyvs4' class='endofrange'/>
+<indexterm startref='idxpiracyderivativeworkvs4' class='endofrange'/>
+<indexterm id='idxfairuse' class='startofrange'><primary>fair use</primary></indexterm>
+<indexterm id='idxcopyrightlawfairuseand2' class='startofrange'><primary>copyright law</primary><secondary>fair use and</secondary></indexterm>
<para>
Finally, there is a tiny sliver of otherwise regulated copying uses
-that remain unregulated because the law considers these "fair uses."
+that remain unregulated because the law considers these <quote>fair uses.</quote>
</para>
<!-- PAGE BREAK 153 -->
<figure id="fig-1541">
<title>Republishing stands at the core of this circle of possible uses of a copyrighted work.</title>
<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.
+<indexterm><primary>Constitution, U.S.</primary><secondary>First Amendment to</secondary></indexterm>
+<indexterm><primary>First Amendment</primary></indexterm>
+<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 <quote>fair uses</quote>
+for public policy (and possibly First Amendment) reasons.
</para>
<figure id="fig-1542">
-<title>Unregulated copying considered "fair uses."</title>
+<title>Unregulated copying considered <quote>fair uses.</quote></title>
<graphic fileref="images/1542.png"></graphic>
</figure>
<para> </para>
<title>Uses that before were presumptively unregulated are now presumptively regulated.</title>
<graphic fileref="images/1551.png"></graphic>
</figure>
+<indexterm id='idxcopyrightusagerestrictionsattachedto' class='startofrange'><primary>copyright</primary><secondary>usage restrictions attached to</secondary></indexterm>
<para>
<!-- PAGE BREAK 154 -->
In real space, then, the possible uses of a book are divided into three
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
-are nonetheless deemed "fair" regardless of the copyright owner's views.
+are nonetheless deemed <quote>fair</quote> regardless of the copyright owner's views.
</para>
+<indexterm startref='idxbooksthreetypesofusesof' class='endofrange'/>
+<indexterm id='idxbooksoninternet' class='startofrange'><primary>books</primary><secondary>on Internet</secondary></indexterm>
+<indexterm id='idxinternetbookson2' class='startofrange'><primary>Internet</primary><secondary>books on</secondary></indexterm>
+<indexterm><primary>fair use</primary><secondary>Internet burdens on</secondary></indexterm>
<para>
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.
-</para>
+I don't mean <quote>nature</quote> 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>
+<indexterm startref='idxfairuse' class='endofrange'/>
+<indexterm startref='idxcopyrightlawfairuseand2' class='endofrange'/>
<para>
So let's be very specific to make this general point clear. Before the
-Internet, if you purchased a book and read it ten times, there would be
-no plausible copyright-related argument that the copyright owner could
-make to control that use of her book. Copyright law would have
- nothing
-to say about whether you read the book once, ten times, or every
+Internet, if you purchased a book and read it ten times, there would
+be no plausible <emphasis>copyright</emphasis>-related argument that
+the copyright owner could make to control that use of her
+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>
+<indexterm id='idxebooks' class='startofrange'><primary>e-books</primary></indexterm>
+<indexterm id='idxderivativeworkstechnologicaldevelopmentsand' class='startofrange'><primary>derivative works</primary><secondary>technological developments and</secondary></indexterm>
<para>
-But the same book as an e-book is effectively governed by a
- different
+But the same book as an e-book is effectively governed by a different
set of rules. Now if the copyright owner says you may read the book
-only once or only once a month, then copyright law would aid the
- copyright
-owner in exercising this degree of control, because of the
- accidental
-feature of copyright law that triggers its application upon there
-being a copy. Now if you read the book ten times and the license says
-you may read it only five times, then whenever you read the book (or
-any portion of it) beyond the fifth time, you are making a copy of the
-book contrary to the copyright owner's wish.
+only once or only once a month, then <emphasis>copyright
+law</emphasis> would aid the copyright owner in exercising this degree
+of control, because of the accidental feature of copyright law that
+triggers its application upon there being a copy. Now if you read the
+book ten times and the license says you may read it only five times,
+then whenever you read the book (or any portion of it) beyond the
+fifth time, you are making a copy of the book contrary to the
+copyright owner's wish.
</para>
<para>
There are some people who think this makes perfect sense. My aim
</para>
<para>
First, making category 1 disappear is not anything any policy maker
-ever intended. Congress did not think through the collapse of the
- presumptively
-unregulated uses of copyrighted works. There is no
- evidence
-at all that policy makers had this idea in mind when they allowed
-our policy here to shift. Unregulated uses were an important part of
-free culture before the Internet.
-</para>
-<para>
-Second, this shift is especially troubling in the context of
- transformative
-uses of creative content. Again, we can all understand the wrong
-in commercial piracy. But the law now purports to regulate any
- transformation
-you make of creative work using a machine. "Copy and paste"
-and "cut and paste" become crimes. Tinkering with a story and
- releasing
-it to others exposes the tinkerer to at least a requirement of
- justification.
-However troubling the expansion with respect to copying a
-particular work, it is extraordinarily troubling with respect to
- transformative
-uses of creative work.
-</para>
+ever intended. Congress did not think through the collapse of the
+presumptively unregulated uses of copyrighted works. There is no
+evidence at all that policy makers had this idea in mind when they
+allowed our policy here to shift. Unregulated uses were an important
+part of free culture before the Internet.
+</para>
+<indexterm id='idxcopyrightlawonrepublishingvstransformationoforiginalwork3' class='startofrange'><primary>copyright law</primary><secondary>on republishing vs. transformation of original work</secondary></indexterm>
+<para>
+Second, this shift is especially troubling in the context of
+transformative uses of creative content. Again, we can all understand
+the wrong in commercial piracy. But the law now purports to regulate
+<emphasis>any</emphasis> transformation you make of creative work
+using a machine. <quote>Copy and paste</quote> and <quote>cut and paste</quote> become
+crimes. Tinkering with a story and releasing it to others exposes the
+tinkerer to at least a requirement of justification. However
+troubling the expansion with respect to copying a particular work, it
+is extraordinarily troubling with respect to transformative uses of
+creative work.
+</para>
+<indexterm id='idxfairuseinternetburdenson' class='startofrange'><primary>fair use</primary><secondary>Internet burdens on</secondary></indexterm>
+<indexterm id='idxcopyrightlawfairuseand3' class='startofrange'><primary>copyright law</primary><secondary>fair use and</secondary></indexterm>
+<indexterm id='idxderivativeworksfairusevs' class='startofrange'><primary>derivative works</primary><secondary>fair use vs.</secondary></indexterm>
<para>
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.
-</para>
+burden on category 3 (<quote>fair use</quote>) 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>
+<indexterm startref='idxcopyrightlawcopiesascoreissueof2' class='endofrange'/>
+<indexterm startref='idxinternetcopyrightapplicabilityalteredbytechnologyof' class='endofrange'/>
+<indexterm startref='idxtechnologycopyrightintentalteredby' class='endofrange'/>
+<indexterm startref='idxderivativeworkstechnologicaldevelopmentsand' class='endofrange'/>
+<indexterm startref='idxcopyrightlawonrepublishingvstransformationoforiginalwork3' class='endofrange'/>
<para>
This point about fair use is totally ignored, even by advocates for
-free culture. We have been cornered into arguing that our rights
- depend
-upon fair use—never even addressing the earlier question about
-the expansion in effective regulation. A thin protection grounded in
-fair use makes sense when the vast majority of uses are unregulated. But
-when everything becomes presumptively regulated, then the
- protections
-of fair use are not enough.
-</para>
+free culture. We have been cornered into arguing that our rights
+depend upon fair use—never even addressing the earlier question
+about the expansion in effective regulation. A thin protection
+grounded in fair use makes sense when the vast majority of uses are
+<emphasis>unregulated</emphasis>. But when everything becomes
+presumptively regulated, then the protections of fair use are not
+enough.
+</para>
+<indexterm startref='idxcopyrightusagerestrictionsattachedto' class='endofrange'/>
+<indexterm startref='idxbooksoninternet' class='endofrange'/>
+<indexterm startref='idxinternetbookson2' class='endofrange'/>
+<indexterm startref='idxebooks' class='endofrange'/>
+<indexterm startref='idxfairuseinternetburdenson' class='endofrange'/>
+<indexterm startref='idxcopyrightlawfairuseand3' class='endofrange'/>
+<indexterm startref='idxderivativeworksfairusevs' class='endofrange'/>
+<indexterm id='idxvideopipeline' class='startofrange'><primary>Video Pipeline</primary></indexterm>
+<indexterm id='idxadvertising' class='startofrange'><primary>advertising</primary></indexterm>
+<indexterm id='idxfilmindustrytraileradvertisementsof' class='startofrange'><primary>film industry</primary><secondary>trailer advertisements of</secondary></indexterm>
<para>
The case of Video Pipeline is a good example. Video Pipeline was
-in the business of making "trailer" advertisements for movies available
+in the business of making <quote>trailer</quote> advertisements for movies available
to video stores. The video stores displayed the trailers as a way to sell
videos. Video Pipeline got the trailers from the film distributors, put
the trailers on tape, and sold the tapes to the retail stores.
</para>
+<indexterm><primary>browsing</primary></indexterm>
<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 <quote>selling by sampling</quote>
+technique by giving on-line stores the same ability to enable
+<quote>browsing.</quote> 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>
+<indexterm id='idxdisneyinc2' class='startofrange'><primary>Disney, Inc.</primary></indexterm>
+<indexterm><primary>copyright law</primary><secondary>fair use and</secondary></indexterm>
+<indexterm id='idxcopyrightlawcopiesascoreissueof3' class='startofrange'><primary>copyright law</primary><secondary>copies as core issue of</secondary></indexterm>
+<indexterm id='idxfairuselegalintimidationtacticsagainst2' class='startofrange'><primary>fair use</primary><secondary>legal intimidation tactics against</secondary></indexterm>
<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.
-</para>
+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
+<quote>fair use</quote> 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>
+<indexterm startref='idxadvertising' class='endofrange'/>
+<indexterm startref='idxfilmindustrytraileradvertisementsof' class='endofrange'/>
+<indexterm id='idxcopyrightusagerestrictionsattachedto2' class='startofrange'><primary>copyright</primary><secondary>usage restrictions attached to</secondary></indexterm>
+<indexterm id='idxcopyrightinfringementlawsuitswillfulinfringementfindingsin' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>willful infringement findings in</secondary></indexterm>
+<indexterm><primary>willful infringement</primary></indexterm>
<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 <quote>willfully
+infringed</quote> 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
not allowed to show clips of the films as a way of selling them without
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.
-</para>
+<indexterm><primary>first-sale doctrine</primary></indexterm>
+<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 <quote>first-sale doctrine</quote> 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>
+<indexterm startref='idxvideopipeline' class='endofrange'/>
+<indexterm startref='idxdisneyinc2' class='endofrange'/>
+<indexterm startref='idxcopyrightlawcopiesascoreissueof3' class='endofrange'/>
+<indexterm startref='idxfairuselegalintimidationtacticsagainst2' class='endofrange'/>
+<indexterm startref='idxcopyrightusagerestrictionsattachedto2' class='endofrange'/>
+<indexterm startref='idxcopyrightinfringementlawsuitswillfulinfringementfindingsin' class='endofrange'/>
+<indexterm><primary>Barnes & Noble</primary></indexterm>
+<indexterm><primary>browsing</primary></indexterm>
+<indexterm><primary>market competition</primary></indexterm>
<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">
+</section>
+<section id="lawforce">
<title>Architecture and Law: Force</title>
<para>
The disappearance of unregulated uses would be change enough, but a
significance. This second change does not affect the reach of copyright
regulation; it affects how such regulation is enforced.
</para>
+<indexterm><primary>copyright law</primary><secondary>technology as automatic enforcer of</secondary></indexterm>
+<indexterm><primary>technology</primary><secondary>copyright enforcement controlled by</secondary></indexterm>
<para>
In the world before digital technology, it was generally the law that
controlled whether and how someone was regulated by copyright law.
your freedom.
</para>
<indexterm><primary>Casablanca</primary></indexterm>
+<indexterm id='idxmarxbrothers' class='startofrange'><primary>Marx Brothers</primary></indexterm>
+<indexterm id='idxwarnerbrothers' class='startofrange'><primary>Warner Brothers</primary></indexterm>
<para>
There's a famous story about a battle between the Marx Brothers
and Warner Brothers. The Marxes intended to make a parody of
<!-- PAGE BREAK 159 -->
-Casablanca. Warner Brothers objected. They wrote a nasty letter to the
-Marxes, warning them that there would be serious legal consequences
-if they went forward with their plan.<footnote><para>
+<citetitle>Casablanca</citetitle>. Warner Brothers objected. They
+wrote a nasty letter to the 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, <quote>Recognizing the Public Domain,</quote> <citetitle>Law and
+Contemporary Problems</citetitle> 44 (1981): 172–73.
</para></footnote>
</para>
<para>
This led the Marx Brothers to respond in kind. They warned
-Warner Brothers that the Marx Brothers "were brothers long before
-you were.
"<footnote><para>
+Warner Brothers that the Marx Brothers <quote>were brothers long before
+you were.
</quote><footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+Ibid. See also Vaidhyanathan, <citetitle>Copyrights and
+Copywrongs</citetitle>, 1–3.
</para></footnote>
-The Marx Brothers therefore owned the word brothers,
-and if Warner Brothers insisted on trying to control Casablanca, then
-the Marx Brothers would insist on control over brothers.
+The Marx Brothers therefore owned the word
+<citetitle>brothers</citetitle>, and if Warner Brothers insisted on
+trying to control <citetitle>Casablanca</citetitle>, then the Marx
+Brothers would insist on control over <citetitle>brothers</citetitle>.
</para>
<para>
An absurd and hollow threat, of course, because Warner Brothers,
silly claim. This extremism was irrelevant to the real freedoms anyone
(including Warner Brothers) enjoyed.
</para>
+<indexterm id='idxbooksoninternet2' class='startofrange'><primary>books</primary><secondary>on Internet</secondary></indexterm>
<para>
-On the Internet, however, there is no check on silly rules, because
-on the Internet, increasingly, rules are enforced not by a human but by
-a machine: Increasingly, the rules of copyright law, as interpreted by
-the copyright owner, get built into the technology that delivers
- copyrighted
-content. It is code, rather than law, that rules. And the problem
-with code regulations is that, unlike law, code has no shame. Code
-would not get the humor of the Marx Brothers. The consequence of
-that is not at all funny.
+On the Internet, however, there is no check on silly rules, because on
+the Internet, increasingly, rules are enforced not by a human but by a
+machine: Increasingly, the rules of copyright law, as interpreted by
+the copyright owner, get built into the technology that delivers
+copyrighted content. It is code, rather than law, that rules. And the
+problem with code regulations is that, unlike law, code has no
+shame. Code would not get the humor of the Marx Brothers. The
+consequence of that is not at all funny.
</para>
+<indexterm startref='idxwarnerbrothers' class='endofrange'/>
+<indexterm startref='idxmarxbrothers' class='endofrange'/>
+
+<indexterm id='idxadobeebookreader' class='startofrange'><primary>Adobe eBook Reader</primary></indexterm>
<para>
Consider the life of my Adobe eBook Reader.
</para>
<para>
-An e-book is a book delivered in electronic form. An Adobe eBook
-is not a book that Adobe has published; Adobe simply produces the
-software that publishers use to deliver e-books. It provides the
- technology,
-and the publisher delivers the content by using the technology.
+An e-book is a book delivered in electronic form. An Adobe eBook is
+not a book that Adobe has published; Adobe simply produces the
+software that publishers use to deliver e-books. It provides the
+technology, and the publisher delivers the content by using the
+technology.
</para>
<para>
On the next page is a picture of an old version of my Adobe eBook
Reader.
</para>
<para>
-As you can see, I have a small collection of e-books within this
+As you can see, I have a small collection of e-books within this
e-book library. Some of these books reproduce content that is in the
-public domain: Middlemarch, for example, is in the public domain.
-Some of them reproduce content that is not in the public domain: My
-own book The Future of Ideas is not yet within the public domain.
-Consider Middlemarch first. If you click on my e-book copy of
+public domain: <citetitle>Middlemarch</citetitle>, for example, is in
+the public domain. Some of them reproduce content that is not in the
+public domain: My own book <citetitle>The Future of Ideas</citetitle>
+is not yet within the public domain. Consider
+<citetitle>Middlemarch</citetitle> first. If you click on my e-book
+copy of
<!-- PAGE BREAK 160 -->
-Middlemarch, you'll see a fancy cover, and then a button at the bottom
-called Permissions.
+<citetitle>Middlemarch</citetitle>, you'll see a fancy cover, and then
+a button at the bottom called Permissions.
</para>
<figure id="fig-1611">
<title>Picture of an old version of Adobe eBook Reader</title>
</figure>
<para>
<!-- PAGE BREAK 161 -->
-According to my eBook
-Reader, I have the permission
-to copy to the clipboard of the
-computer ten text selections
-every ten days. (So far, I've
-copied no text to the clipboard.)
-I also have the permission to
-print ten pages from the book
-every ten days. Lastly, I have
-the permission to use the Read
-Aloud button to hear
- Middlemarch
-read aloud through the
-computer.
+According to my eBook Reader, I have the permission to copy to the
+clipboard of the computer ten text selections every ten days. (So far,
+I've copied no text to the clipboard.) I also have the permission to
+print ten pages from the book every ten days. Lastly, I have the
+permission to use the Read Aloud button to hear <citetitle>Middlemarch</citetitle>
+read aloud through the computer.
</para>
+<indexterm><primary>Aristotle</primary></indexterm>
+<indexterm><primary><citetitle>Politics</citetitle>, (Aristotle)</primary></indexterm>
<para>
Here's the e-book for another work in the public domain (including the
-translation): Aristotle's Politics.
+translation): Aristotle's <citetitle>Politics</citetitle>.
</para>
<figure id="fig-1621">
-<title>E-book of Aristotle;s "Politics"</title>
+<title>E-book of Aristotle;s <quote>Politics</quote></title>
<graphic fileref="images/1621.png"></graphic>
</figure>
<para>
the book.
</para>
<figure id="fig-1622">
-<title>List of the permissions for Aristotle;s "Politics".</title>
+<title>List of the permissions for Aristotle;s <quote>Politics</quote>.</title>
<graphic fileref="images/1622.png"></graphic>
</figure>
+<indexterm><primary>Future of Ideas, The (Lessig)</primary></indexterm>
+<indexterm><primary>Lessig, Lawrence</primary></indexterm>
<para>
Finally (and most embarrassingly), here are the permissions for the
-original e-book version of my last book, The Future of Ideas:
+original e-book version of my last book, <citetitle>The Future of
+Ideas</citetitle>:
</para>
<!-- PAGE BREAK 162 -->
<figure id="fig-1631">
-<title>List of the permissions for "The Future of Ideas".</title>
+<title>List of the permissions for <quote>The Future of Ideas</quote>.</title>
<graphic fileref="images/1631.png"></graphic>
</figure>
<para>
No copying, no printing, and don't you dare try to listen to this book!
</para>
<para>
-Now, the Adobe eBook Reader calls these controls "permissions"—
-as if the publisher has the power to control how you use these works.
-For works under copyright, the copyright owner certainly does have
-the power—up to the limits of the copyright law. But for work not
- under
-
copyright, there is no such copyright power.<footnote><para>
+Now, the Adobe eBook Reader calls these controls
+<quote>permissions</quote>— as if the publisher has the power to control how
+you use these works. For works under copyright, the copyright owner
+certainly does have the power—up to the limits of the copyright
+law. But for work not under copyright, there is no such copyright
+power.<footnote><para>
<!-- f21 -->
-In principle, a contract might impose a requirement on me. I might, for
-example, buy a book from you that includes a contract that says I will read
-it only three times, or that I promise to read it three times. But that
- obligation
-(and the limits for creating that obligation) would come from the
-contract, not from copyright law, and the obligations of contract would
-not necessarily pass to anyone who subsequently acquired the book.
+In principle, a contract might impose a requirement on me. I might,
+for example, buy a book from you that includes a contract that says I
+will read it only three times, or that I promise to read it three
+times. But that obligation (and the limits for creating that
+obligation) would come from the contract, not from copyright law, and
+the obligations of contract would not necessarily pass to anyone who
+subsequently acquired the book.
</para></footnote>
-When my e-book of
-Middlemarch says I have the permission to copy only ten text selections
-into the memory every ten days, what that really means is that the
-eBook Reader has enabled the publisher to control how I use the book
-on my computer, far beyond the control that the law would enable.
+When my e-book of <citetitle>Middlemarch</citetitle> says I have the
+permission to copy only ten text selections into the memory every ten
+days, what that really means is that the eBook Reader has enabled the
+publisher to control how I use the book on my computer, far beyond the
+control that the law would enable.
</para>
<para>
The control comes instead from the code—from the technology
-within which the e-book "lives." Though the e-book says that these are
-permissions, they are not the sort of "permissions" that most of us deal
-with. When a teenager gets "permission" to stay out till midnight, she
-knows (unless she's Cinderella) that she can stay out till 2 A.M., but
-will suffer a punishment if she's caught. But when the Adobe eBook
-Reader says I have the permission to make ten copies of the text into
-the computer's memory, that means that after I've made ten copies, the
-computer will not make any more. The same with the printing
- restrictions:
-After ten pages, the eBook Reader will not print any more pages.
-It's the same with the silly restriction that says that you can't use the
-Read Aloud button to read my book aloud—it's not that the company
-will sue you if you do; instead, if you push the Read Aloud button with
-my book, the machine simply won't read aloud.
-</para>
+within which the e-book <quote>lives.</quote> Though the e-book says that these are
+permissions, they are not the sort of <quote>permissions</quote> that most of us
+deal with. When a teenager gets <quote>permission</quote> to stay out till
+midnight, she knows (unless she's Cinderella) that she can stay out
+till 2 A.M., but will suffer a punishment if she's caught. But when
+the Adobe eBook Reader says I have the permission to make ten copies
+of the text into the computer's memory, that means that after I've
+made ten copies, the computer will not make any more. The same with
+the printing restrictions: After ten pages, the eBook Reader will not
+print any more pages. It's the same with the silly restriction that
+says that you can't use the Read Aloud button to read my book
+aloud—it's not that the company will sue you if you do; instead,
+if you push the Read Aloud button with my book, the machine simply
+won't read aloud.
+</para>
+<indexterm><primary>Marx Brothers</primary></indexterm>
+<indexterm><primary>Warner Brothers</primary></indexterm>
<para>
<!-- PAGE BREAK 163 -->
-These are controls, not permissions. Imagine a world where the
-Marx Brothers sold word processing software that, when you tried to
-type "Warner Brothers," erased "Brothers" from the sentence.
+These are <emphasis>controls</emphasis>, not permissions. Imagine a
+world where the Marx Brothers sold word processing software that, when
+you tried to type <quote>Warner Brothers,</quote> erased <quote>Brothers</quote> from the
+sentence.
</para>
<para>
-This is the future of copyright law: not so much copyright law as
-copyright code. The controls over access to content will not be controls
-that are ratified by courts; the controls over access to content will be
-controls that are coded by programmers. And whereas the controls that
-are built into the law are always to be checked by a judge, the controls
-that are built into the technology have no similar built-in check.
+This is the future of copyright law: not so much copyright
+<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. The
+controls over access to content will not be controls that are ratified
+by courts; the controls over access to content will be controls that
+are coded by programmers. And whereas the controls that are built into
+the law are always to be checked by a judge, the controls that are
+built into the technology have no similar built-in check.
</para>
<para>
How significant is this? Isn't it always possible to get around the
-controls built into the technology? Software used to be sold with
- technologies
-that limited the ability of users to copy the software, but those
-were trivial protections to defeat. Why won't it be trivial to defeat these
-protections as well?
+controls built into the technology? Software used to be sold with
+technologies that limited the ability of users to copy the software,
+but those were trivial protections to defeat. Why won't it be trivial
+to defeat these protections as well?
</para>
<para>
We've only scratched the surface of this story. Return to the Adobe
eBook Reader.
</para>
+<indexterm id='idxalicesadventuresinwonderlandcarroll' class='startofrange'><primary>Alice's Adventures in Wonderland (Carroll)</primary></indexterm>
+<indexterm id='idxpublicdomainebookrestrictionson2' class='startofrange'><primary>public domain</primary><secondary>e-book restrictions on</secondary></indexterm>
<para>
-Early in the life of the Adobe eBook Reader, Adobe suffered a
- public
-relations nightmare. Among the books that you could download for
-free on the Adobe site was a copy of Alice's Adventures in Wonderland.
-This wonderful book is in the public domain. Yet when you clicked on
-Permissions for that book, you got the following report:
+Early in the life of the Adobe eBook Reader, Adobe suffered a public
+relations nightmare. Among the books that you could download for free
+on the Adobe site was a copy of <citetitle>Alice's Adventures in
+Wonderland</citetitle>. This wonderful book is in the public
+domain. Yet when you clicked on Permissions for that book, you got the
+following report:
</para>
<figure id="fig-1641">
-<title>List of the permissions for "Alice's Adventures in
-Wonderland".</title>
+<title>List of the permissions for <quote>Alice's Adventures in
+Wonderland</quote>.</title>
<graphic fileref="images/1641.png"></graphic>
</figure>
+<!-- PAGE BREAK 164-->
<para>
-<!-- PAGE BREAK 164 -->
-Here was a public domain children's book that you were not
- allowed
-to copy, not allowed to lend, not allowed to give, and, as the
- "permissions"
-indicated, not allowed to "read aloud"!
+Here was a public domain children's book that you were not allowed to
+copy, not allowed to lend, not allowed to give, and, as the
+<quote>permissions</quote> indicated, not allowed to <quote>read aloud</quote>!
</para>
<para>
The public relations nightmare attached to that final permission.
such a use of an eBook Reader was fair? Adobe didn't answer because
the answer, however absurd it might seem, is no.
</para>
+<indexterm startref='idxalicesadventuresinwonderlandcarroll' class='endofrange'/>
+<indexterm startref='idxpublicdomainebookrestrictionson2' class='endofrange'/>
<para>
The point is not to blame Adobe. Indeed, Adobe is among the most
innovative companies developing strategies to balance open access to
control. That incentive is understandable, yet what it creates is
often crazy.
</para>
+<indexterm startref='idxadobeebookreader' class='endofrange'/>
+<indexterm startref='idxbooksoninternet2' class='endofrange'/>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
-<indexterm id="idxaibo" class='startofrange'>
- <primary>Aibo robotic dog</primary>
-</indexterm>
+<indexterm id='idxaibo1' class='startofrange'><primary>Aibo robotic dog</primary></indexterm>
+<indexterm id='idxroboticdog1' class='startofrange'><primary>robotic dog</primary></indexterm>
+<indexterm id='idxsonyaibo1' class='startofrange'><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
-Consider the robotic dog made by Sony named "Aibo." The Aibo
+Consider the robotic dog made by Sony named <quote>Aibo.</quote> The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
and that doesn't leave that much of a mess (at least in your house).
</para>
The Aibo is expensive and popular. Fans from around the world
have set up clubs to trade stories. One fan in particular set up a Web
site to enable information about the Aibo dog to be shared. This fan set
-<!-- PAGE BREAK 165 -->
+<!-- PAGE BREAK 165-->
up aibopet.com (and aibohack.com, but that resolves to the same site),
and on that site he provided information about how to teach an Aibo
to do tricks in addition to the ones Sony had taught it.
</para>
<para>
-"Teach" here has a special meaning. Aibos are just cute computers.
+<quote>Teach</quote> here has a special meaning. Aibos are just cute computers.
You teach a computer how to do something by programming it
differently. So to say that aibopet.com was giving information about
how to teach the dog to do new tricks is just to say that aibopet.com
was giving information to users of the Aibo pet about how to hack
-their computer "dog" to make it do new tricks (thus, aibohack.com).
+their computer <quote>dog</quote> to make it do new tricks (thus, aibohack.com).
</para>
+<indexterm><primary>hacks</primary></indexterm>
<para>
-If you're not a programmer or don't know many programmers, the
-word hack has a particularly unfriendly connotation. Nonprogrammers
-hack bushes or weeds. Nonprogrammers in horror movies do even
-worse. But to programmers, or coders, as I call them, hack is a much
-more positive term. Hack just means code that enables the program to
-do something it wasn't originally intended or enabled to do. If you buy
-a new printer for an old computer, you might find the old computer
-doesn't run, or "drive," the printer. If you discovered that, you'd later be
-happy to discover a hack on the Net by someone who has written a
-driver to enable the computer to drive the printer you just bought.
+If you're not a programmer or don't know many programmers, the word
+<citetitle>hack</citetitle> has a particularly unfriendly
+connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
+horror movies do even worse. But to programmers, or coders, as I call
+them, <citetitle>hack</citetitle> is a much more positive
+term. <citetitle>Hack</citetitle> just means code that enables the
+program to do something it wasn't originally intended or enabled to
+do. If you buy a new printer for an old computer, you might find the
+old computer doesn't run, or <quote>drive,</quote> the printer. If you discovered
+that, you'd later be happy to discover a hack on the Net by someone
+who has written a driver to enable the computer to drive the printer
+you just bought.
</para>
<para>
Some hacks are easy. Some are unbelievably hard. Hackers as a
bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
-<indexterm startref="idxaibo" class='endofrange'/>
+<indexterm startref='idxsonyaibo1' class='endofrange'/>
+<indexterm startref='idxroboticdog1' class='endofrange'/>
+<indexterm startref='idxaibo1' 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,
to dance jazz. Nor should it be a crime (though we don't have a lot to
go on here) to teach your robot dog to dance jazz. Dancing jazz is a
completely legal activity. One imagines that the owner of aibopet.com
-thought, What possible problem could there be with teaching a robot
-dog to dance?
+thought, <emphasis>What possible problem could there be with teaching
+a robot dog to dance?</emphasis>
</para>
+<indexterm><primary>Microsoft</primary><secondary>government case against</secondary></indexterm>
<para>
Let's put the dog to sleep for a minute, and turn to a pony show—
not literally a pony show, but rather a paper that a Princeton academic
<para>
But Felten's bravery was really tested in April 2001.<footnote><para>
<!-- f22 -->
-See Pamela Samuelson, "Anticircumvention Rules: Threat to Science,"
-Science 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
-the Techies Who Teach a Robot Dog New Tricks," American Prospect,
-January 2002; "Court Dismisses Computer Scientists' Challenge to
-DMCA," Intellectual Property Litigation Reporter, 11 December 2001; Bill
-Holland, "Copyright Act Raising Free-Speech Concerns," Billboard,
-May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com,
-April 2001; Electronic Frontier Foundation, "Frequently Asked
-Questions about Felten and USENIX v. RIAA Legal Case," available at
+See Pamela Samuelson, <quote>Anticircumvention Rules: Threat to Science,</quote>
+<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, <quote>Play Dead: Sony Muzzles
+the Techies Who Teach a Robot Dog New Tricks,</quote> <citetitle>American Prospect</citetitle>,
+January 2002; <quote>Court Dismisses Computer Scientists' Challenge to
+DMCA,</quote> <citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 December 2001; Bill
+Holland, <quote>Copyright Act Raising Free-Speech Concerns,</quote> <citetitle>Billboard</citetitle>,
+May 2001; Janelle Brown, <quote>Is the RIAA Running Scared?</quote> Salon.com,
+April 2001; Electronic Frontier Foundation, <quote>Frequently Asked
+Questions about <citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> Legal Case,</quote> available at
<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para></footnote>
owners to exercise much better control over their content than the
Internet, as it originally stood, granted them. Using encryption, SDMI
hoped to develop a standard that would allow the content owner to say
-"this music cannot be copied," and have a computer respect that
-command. The technology was to be part of a "trusted system" of
+<quote>this music cannot be copied,</quote> and have a computer respect that
+command. The technology was to be part of a <quote>trusted system</quote> of
control that would get content owners to trust the system of the
Internet much more.
</para>
weakness in the SDMI system, and why SDMI would not, as presently
constituted, succeed.
</para>
+<indexterm id='idxaibo2' class='startofrange'><primary>Aibo robotic dog</primary></indexterm>
+<indexterm id='idxroboticdog2' class='startofrange'><primary>robotic dog</primary></indexterm>
+<indexterm id='idxsonyaibo2' class='startofrange'><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
What links these two, aibopet.com and Felten, is the letters they
then received. Aibopet.com received a letter from Sony about the
anti-circumvention provisions of the Digital Millennium Copyright Act.
</para>
</blockquote>
+<indexterm startref='idxsonyaibo2' class='endofrange'/>
+<indexterm startref='idxroboticdog2' class='endofrange'/>
+<indexterm startref='idxaibo2' class='endofrange'/>
<para>
And though an academic paper describing the weakness in a system
of encryption should also be perfectly legal, Felten received a letter
<!-- PAGE BREAK 168 -->
Public Challenge would be outside the scope of activities permitted by
the Agreement and could subject you and your research team to actions
-under the Digital Millennium Copyright Act ("DMCA").
+under the Digital Millennium Copyright Act (<quote>DMCA</quote>).
</para>
</blockquote>
<para>
The DMCA was enacted as a response to copyright owners' first fear
about cyberspace. The fear was that copyright control was effectively
dead; the response was to find technologies that might compensate.
-These new technologies would be copyright protection technologies—
-technologies to control the replication and distribution of copyrighted
-material. They were designed as code to modify the original code of the
-Internet, to reestablish some protection for copyright owners.
+These new technologies would be copyright protection
+technologies— technologies to control the replication and
+distribution of copyrighted material. They were designed as
+<emphasis>code</emphasis> to modify the original
+<emphasis>code</emphasis> of the Internet, to reestablish some
+protection for copyright owners.
</para>
<para>
The DMCA was a bit of law intended to back up the protection of this
code designed to protect copyrighted material. It was, we could say,
-legal code intended to buttress software code which itself was
-intended to support the legal code of copyright.
+<emphasis>legal code</emphasis> intended to buttress
+<emphasis>software code</emphasis> which itself was intended to
+support the <emphasis>legal code of copyright</emphasis>.
</para>
<para>
But the DMCA was not designed merely to protect copyrighted works to
of the copyrighted material made possible by that circumvention would
have been a copyright violation.
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm><primary>robotic dog</primary></indexterm>
+<indexterm><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
Aibopet.com and Felten make the point. The Aibo hack circumvented a
copyright protection system for the purpose of enabling the dog to
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>
+<indexterm id='idxcassettevcrs2' class='startofrange'><primary>cassette recording</primary><secondary>VCRs</secondary></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
the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology
-that were legal: Fred Rogers, aka "Mr. Rogers," for example, had
-testified in that case that he wanted people to feel free to tape
-Mr. Rogers' Neighborhood.
+that were legal: Fred Rogers, aka <quote><citetitle>Mr. Rogers</citetitle>,</quote>
+for example, had testified in that case that he wanted people to feel
+free to tape Mr. Rogers' Neighborhood.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<blockquote>
<para>
Some public stations, as well as commercial stations, program the
-"Neighborhood" at hours when some children cannot use it. I think that
+<quote>Neighborhood</quote> at hours when some children cannot use it. I think that
it's a real service to families to be able to record such programs and
show them at appropriate times. I have always felt that with the
advent of all of this new technology that allows people to tape the
-"Neighborhood" off-the-air, and I'm speaking for the "Neighborhood"
+<quote>Neighborhood</quote> off-the-air, and I'm speaking for the <quote>Neighborhood</quote>
because that's what I produce, that they then become much more active
in the programming of their family's television life. Very frankly, I
am opposed to people being programmed by others. My whole approach in
-broadcasting has always been "You are an important person just the way
-you are. You can make healthy decisions." Maybe I'm going on too long,
+broadcasting has always been <quote>You are an important person just the way
+you are. You can make healthy decisions.</quote> Maybe I'm going on too long,
but I just feel that anything that allows a person to be more active
in the control of his or her life, in a healthy way, is
important.<footnote><para>
<!-- f23 -->
-Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
+<indexterm><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
+<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417,
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
-James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of
-the VCR (New York: W. W. Norton, 1987), 270–71.
+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>
<para>
This led Conrad to draw the cartoon below, which we can adopt to
the DMCA.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<para>
No argument I have can top this picture, but let me try to get close.
to enable the use of particular copyrighted materials in ways that
would be considered fair use—a good end.
</para>
+<indexterm id='idxhandguns' class='startofrange'><primary>handguns</primary></indexterm>
<para>
A handgun can be used to shoot a police officer or a child. Most
<!-- PAGE BREAK 171 -->
such a use would be good. It, too, is a technology that has both good
and bad uses.
</para>
-<figure id="fig-1711">
+<figure id="fig-1711-vcr-handgun-cartoonfig">
<title>VCR/handgun cartoon.</title>
<graphic fileref="images/1711.png"></graphic>
</figure>
+<indexterm><primary>Conrad, Paul</primary></indexterm>
<para>
The obvious point of Conrad's cartoon is the weirdness of a world
where guns are legal, despite the harm they can do, while VCRs (and
-circumvention technologies) are illegal. Flash: No one ever died from
-copyright circumvention. Yet the law bans circumvention technologies
-absolutely, despite the potential that they might do some good, but
-permits guns, despite the obvious and tragic harm they do.
+circumvention technologies) are illegal. Flash: <emphasis>No one ever
+died from copyright circumvention</emphasis>. Yet the law bans circumvention
+technologies absolutely, despite the potential that they might do some
+good, but permits guns, despite the obvious and tragic harm they do.
</para>
+<indexterm startref='idxhandguns' class='endofrange'/>
+<indexterm startref='idxcassettevcrs2' class='endofrange'/>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm><primary>robotic dog</primary></indexterm>
+<indexterm><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
The Aibo and RIAA examples demonstrate how copyright owners are
changing the balance that copyright law grants. Using code, copyright
law of the DMCA backs up that erasing.
</para>
<para>
-This is how code becomes law. The controls built into the technology
-of copy and access protection become rules the violation of which is also
-a violation of the law. In this way, the code extends the law—increasing its
-regulation, even if the subject it regulates (activities that would otherwise
-plainly constitute fair use) is beyond the reach of the law. Code becomes
-law; code extends the law; code thus extends the control that copyright
-owners effect—at least for those copyright holders with the lawyers
-who can write the nasty letters that Felten and aibopet.com received.
+This is how <emphasis>code</emphasis> becomes
+<emphasis>law</emphasis>. The controls built into the technology of
+copy and access protection become rules the violation of which is also
+a violation of the law. In this way, the code extends the
+law—increasing its regulation, even if the subject it regulates
+(activities that would otherwise plainly constitute fair use) is
+beyond the reach of the law. Code becomes law; code extends the law;
+code thus extends the control that copyright owners effect—at
+least for those copyright holders with the lawyers who can write the
+nasty letters that Felten and aibopet.com received.
</para>
<para>
There is one final aspect of the interaction between architecture and
<para>
<!-- PAGE BREAK 172 -->
-For example, imagine you were part of a Star Trek fan club. You
+For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan club. You
gathered every month to share trivia, and maybe to enact a kind of fan
fiction about the show. One person would play Spock, another, Captain
Kirk. The characters would begin with a plot from a real story, then
simply continue it.<footnote><para>
<!-- f24 -->
-For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions,
-Copyright, Fan Fiction, and a New Common Law," Loyola of Los Angeles
-Entertainment Law Journal 17 (1997): 651.
+For an early and prescient analysis, see Rebecca Tushnet, <quote>Legal Fictions,
+Copyright, Fan Fiction, and a New Common Law,</quote> <citetitle>Loyola of Los Angeles
+Entertainment Law Journal</citetitle> 17 (1997): 651.
</para></footnote>
</para>
<para>
that space to do as you wished with this part of our culture. You were
allowed to build on it as you wished without fear of legal control.
</para>
+<indexterm><primary>bots</primary></indexterm>
<para>
But if you moved your club onto the Internet, and made it generally
available for others to join, the story would be very different. Bots
one step before the state started issuing tickets based upon the data you
transmitted. That is, in effect, what is happening here.
</para>
-</sect2>
-<sect2 id="marketconcentration">
+</section>
+<section id="marketconcentration">
<title>Market: Concentration</title>
<para>
So copyright's duration has increased dramatically—tripled in
These changes are of two sorts: the scope of concentration, and its
nature.
</para>
+<indexterm><primary>cable television</primary></indexterm>
<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>
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
-ownership,
"five companies control 85 percent of our media sources."<footnote><para>
+ownership,
<quote>five companies control 85 percent of our media sources.</quote><footnote><para>
<!-- f25 -->
FCC Oversight: Hearing Before the Senate Commerce, Science and
Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
Entertainment, Warner Music Group, and EMI control 84.8 percent of the
U.S. music market.<footnote><para>
<!-- f26 -->
-Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
-Slide," New York Times, 23 December 2002.
+Lynette Holloway, <quote>Despite a Marketing Blitz, CD Sales Continue to
+Slide,</quote> <citetitle>New York Times</citetitle>, 23 December 2002.
</para></footnote>
-The "five largest cable companies pipe
-programming to 74 percent of the cable subscribers nationwide.
"<footnote><para>
+The <quote>five largest cable companies pipe
+programming to 74 percent of the cable subscribers nationwide.
</quote><footnote><para>
<!-- f27 -->
-Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
+Molly Ivins, <quote>Media Consolidation Must Be Stopped,</quote> <citetitle>Charleston Gazette</citetitle>,
31 May 2003.
</para></footnote>
</para>
The story with radio is even more dramatic. Before deregulation,
the nation's largest radio broadcasting conglomerate owned fewer than
<!-- PAGE BREAK 174 -->
-seventy-five stations. Today one company owns more than 1,200
-stations. During that period of consolidation, the total number of
-radio owners dropped by 34 percent. Today, in most markets, the two
-largest broadcasters control 74 percent of that market's
-revenues. Overall, just four companies control 90 percent of the
-nation's radio advertising revenues.
+seventy-five stations. Today <emphasis>one</emphasis> company owns
+more than 1,200 stations. During that period of consolidation, the
+total number of radio owners dropped by 34 percent. Today, in most
+markets, the two largest broadcasters control 74 percent of that
+market's revenues. Overall, just four companies control 90 percent of
+the nation's radio advertising revenues.
</para>
+<indexterm><primary>cable television</primary></indexterm>
<para>
Newspaper ownership is becoming more concentrated as well. Today,
there are six hundred fewer daily newspapers in the United States than
<para>
Murdoch's companies now constitute a production system
unmatched in its integration. They supply content—Fox movies
-. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus
+… Fox TV shows … Fox-controlled sports broadcasts, plus
newspapers and books. They sell the content to the public and to
advertisers—in newspapers, on the broadcast network, on the
cable channels. And they operate the physical distribution system
Murdoch becomes DirecTV's largest single owner, that system will serve
the same function in the United States.<footnote><para>
<!-- f28 -->
-James Fallows, "The Age of Murdoch," Atlantic Monthly (September
+James Fallows, <quote>The Age of Murdoch,</quote> <citetitle>Atlantic Monthly</citetitle> (September
2003): 89.
<indexterm><primary>Fallows, James</primary></indexterm>
</para></footnote>
owning as many outlets of media as possible. A picture describes this
pattern better than a thousand words could do:
</para>
-<figure id="fig-1761">
+<figure id="fig-1761-pattern-modern-media-ownership">
<title>Pattern of modern media ownership.</title>
<graphic fileref="images/1761.png"></graphic>
</figure>
<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>All in the Family</primary></indexterm>
<para>
-In 1969, Norman Lear created a pilot for All in the Family. He took
+In 1969, Norman Lear created a pilot for <citetitle>All in the Family</citetitle>. He took
the pilot to ABC. The network didn't like it. It was too edgy, they told
Lear. Make it again. Lear made a second pilot, more edgy than the
first. ABC was exasperated. You're missing the point, they told Lear.
The copyrights that Lear held assured an independence from network
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
+Leonard Hill, <quote>The Axis of Access,</quote> remarks before Weidenbaum Center
+Forum, <quote>Entertainment Economics: The Movie Industry,</quote> 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>).
required a separation between the networks and the content producers;
that separation would guarantee Lear freedom. And as late as 1992,
because of these rules, the vast majority of prime time
-television—75 percent of it—was "independent" of the
+television—75 percent of it—was <quote>independent</quote> of the
networks.
</para>
<para>
In 1994, the FCC abandoned the rules that required this independence.
After that change, the networks quickly changed the balance. In 1985,
there were twenty-five independent television production studios; in
-2002, only five independent television studios remained. "In 1992,
+2002, only five independent television studios remained. <quote>In 1992,
only 15 percent of new series were produced for a network by a company
it controlled. Last year, the percentage of shows produced by
-controlled companies more than quintupled to 77 percent." "In 1992, 16
+controlled companies more than quintupled to 77 percent.</quote> <quote>In 1992, 16
new series were produced independently of conglomerate control, last
-year there was one.
"<footnote><para>
+year there was one.
</quote><footnote><para>
<!-- f30 -->
NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
Ownership Before the Senate Commerce Committee, 108th Cong., 1st
2003.
</para></footnote>
In 2002, 75 percent of prime time television was owned by the networks
-that ran it. "In the ten-year period between 1992 and 2002, the number
+that ran it. <quote>In the ten-year period between 1992 and 2002, the number
of prime time television hours per week produced by network studios
increased over 200%, whereas the number of prime time television hours
per week produced by independent studios decreased
+63%.
</quote><footnote><para>
<!-- f31 -->
Ibid.
</para></footnote>
</para>
<indexterm><primary>All in the Family</primary></indexterm>
<para>
-Today, another Norman Lear with another All in the Family would
+Today, another Norman Lear with another <citetitle>All in the Family</citetitle> would
find that he had the choice either to make the show less edgy or to be
fired: The content of any show developed for a network is increasingly
owned by the network.
</para>
+<indexterm><primary>Diller, Barry</primary></indexterm>
+<indexterm><primary>Moyers, Bill</primary></indexterm>
<para>
While the number of channels has increased dramatically, the ownership
of those channels has narrowed to an ever smaller and smaller few. As
companies producing television programs. Now you have less than a
handful.<footnote><para>
<!-- f32 -->
-"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
+<quote>Barry Diller Takes on Media Deregulation,</quote> <citetitle>Now with Bill Moyers</citetitle>, Bill
Moyers, 25 April 2003, edited transcript available at
<ulink url="http://free-culture.cc/notes/">link #31</ulink>.
</para></footnote>
<indexterm><primary>Clark, Kim B.</primary></indexterm>
<para>
Economics itself offers a parallel that explains why this integration
-affects creativity. Clay Christensen has written about the "Innovator's
-Dilemma": the fact that large traditional firms find it rational to ignore
+affects creativity. Clay Christensen has written about the <quote>Innovator's
+Dilemma</quote>: the fact that large traditional firms find it rational to ignore
new, breakthrough technologies that compete with their core business.
The same analysis could help explain why large, traditional media
companies would find it rational to ignore new cultural trends.<footnote><para>
<!-- f33 -->
-Clayton M. Christensen, The Innovator's Dilemma: The
-Revolutionary National Bestseller that Changed the Way We Do Business
+Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The
+Revolutionary National Bestseller that Changed the Way We Do Business</citetitle>
(Cambridge: Harvard Business School Press, 1997). Christensen
acknowledges that the idea was first suggested by Dean Kim Clark. See
-Kim B. Clark, "The Interaction of Design Hierarchies and Market
-Concepts in Technological Evolution," Research Policy 14 (1985):
+Kim B. Clark, <quote>The Interaction of Design Hierarchies and Market
+Concepts in Technological Evolution,</quote> <citetitle>Research Policy</citetitle> 14 (1985):
235–51. For a more recent study, see Richard Foster and Sarah
-Kaplan, Creative Destruction: Why Companies That Are Built to Last
-Underperform the Market—and How to Successfully Transform Them
+Kaplan, <citetitle>Creative Destruction: Why Companies That Are Built to Last
+Underperform the Market—and How to Successfully Transform Them</citetitle>
(New York: Currency/Doubleday, 2001). </para></footnote>
Lumbering giants not only don't, but should not, sprint. Yet if the
depend fundamentally upon the press to help inform Americans about
these issues.
</para>
+<indexterm id='idxadvertising3' class='startofrange'><primary>advertising</primary></indexterm>
<para>
Beginning in 1998, the Office of National Drug Control Policy launched
-a media campaign as part of the "war on drugs." The campaign produced
+a media campaign as part of the <quote>war on drugs.</quote> The campaign produced
scores of short film clips about issues related to illegal drugs. In
one series (the Nick and Norm series) two men are in a bar, discussing
the idea of legalizing drugs as a way to avoid some of the collateral
</para>
<para>
No. You cannot. Television stations have a general policy of avoiding
-"controversial" ads. Ads sponsored by the government are deemed
+<quote>controversial</quote> ads. Ads sponsored by the government are deemed
uncontroversial; ads disagreeing with the government are
controversial. This selectivity might be thought inconsistent with
the First Amendment, but the Supreme Court has held that stations have
<!-- f34 -->
The Marijuana Policy Project, in February 2003, sought to place ads
that directly responded to the Nick and Norm series on stations within
-the Washington, D.C., area. Comcast rejected the ads as "against
-[their] policy." The local NBC affiliate, WRC, rejected the ads
+the Washington, D.C., area. Comcast rejected the ads as <quote>against
+[their] policy.</quote> The local NBC affiliate, WRC, rejected the ads
without reviewing them. The local ABC affiliate, WJOA, originally
agreed to run the ads and accepted payment to do so, but later decided
not to run the ads and returned the collected fees. Interview with
Neal Levine, 15 October 2003. These restrictions are, of course, not
-limited to drug policy. See, for example, Nat Ives, "On the Issue of
-an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," New
-York Times, 13 March 2003, C4. Outside of election-related air time
+limited to drug policy. See, for example, Nat Ives, <quote>On the Issue of
+an Iraq War, Advocacy Ads Meet with Rejection from TV Networks,</quote> <citetitle>New
+York Times</citetitle>, 13 March 2003, C4. Outside of election-related air time
there is very little that the FCC or the courts are willing to do to
-even the playing field. For a general overview, see Rhonda Brown, "Ad
+even the playing field. For a general overview, see Rhonda Brown, <quote>Ad
Hoc Access: The Regulation of Editorial Advertising on Television and
-Radio," Yale Law and Policy Review 6 (1988): 449–79, and for a
+Radio,</quote> <citetitle>Yale Law and Policy Review</citetitle> 6 (1988): 449–79, and for a
more recent summary of the stance of the FCC and the courts, see
-Radio-Television News Directors Association v. FCC, 184 F. 3d 872
+<citetitle>Radio-Television News Directors Association</citetitle> v. <citetitle>FCC</citetitle>, 184 F. 3d 872
(D.C. Cir. 1999). Municipal authorities exercise the same authority as
the networks. In a recent example from San Francisco, the San
Francisco transit authority rejected an ad that criticized its Muni
-diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming
-After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
+diesel buses. Phillip Matier and Andrew Ross, <quote>Antidiesel Group Fuming
+After Muni Rejects Ad,</quote> 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."
+was that the criticism was <quote>too controversial.</quote>
+<indexterm><primary>ABC</primary></indexterm>
+<indexterm><primary>Comcast</primary></indexterm>
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
+<indexterm><primary>NBC</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
+<indexterm><primary>WRC</primary></indexterm>
+<indexterm><primary>advertising</primary></indexterm>
</para></footnote>
</para>
<para>
selects. But you should not like a world in which a mere few get to
decide which issues the rest of us get to know about.
</para>
-</sect2>
-<sect2 id="together">
+<indexterm startref='idxadvertising3' class='endofrange'/>
+</section>
+<section id="together">
<title>Together</title>
<para>
There is something innocent and obvious about the claim of the
-copyright warriors that the government should "protect my property."
+copyright warriors that the government should <quote>protect my property.</quote>
In the abstract, it is obviously true and, ordinarily, totally
harmless. No sane sort who is not an anarchist could disagree.
</para>
<para>
-But when we see how dramatically this "property" has changed—
+But when we see how dramatically this <quote>property</quote> has changed—
when we recognize how it might now interact with both technology and
markets to mean that the effective constraint on the liberty to
cultivate our culture is dramatically different—the claim begins
less innocent and obvious. Given (1) the power of technology to
supplement the law's control, and (2) the power of concentrated
markets to weaken the opportunity for dissent, if strictly enforcing
-the massively expanded "property" rights granted by copyright
+the massively expanded <quote>property</quote> rights granted by copyright
fundamentally changes the freedom within this culture to cultivate and
build upon our past, then we have to ask whether this property should
be redefined.
have changed and as lobbyists have pushed for more control by
copyright holders. Changes in the past in response to changes in
technology suggest that we may well need similar changes in the
-future. And these changes have to be reductions in the scope of
-copyright, in response to the extraordinary increase in control that
-technology and the market enable.
+future. And these changes have to be <emphasis>reductions</emphasis>
+in the scope of copyright, in response to the extraordinary increase
+in control that technology and the market enable.
</para>
<para>
For the single point that is lost in this war on pirates is a point that
<!-- PAGE BREAK 181 -->
together the effect of changing law, concentrated markets, and
changing technology, together they produce an astonishing conclusion:
-Never in our history have fewer had a legal right to control more of
-the development of our culture than now.
+<emphasis>Never in our history have fewer had a legal right to control
+more of the development of our culture than now</emphasis>.
</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
even then, newspapers, film studios, radio stations, and publishers
-were independent of the networks. Never has copyright protected such a
-wide range of rights, against as broad a range of actors, for a term
-that was remotely as long. This form of regulation—a tiny
-regulation of a tiny part of the creative energy of a nation at the
-founding—is now a massive regulation of the overall creative
-process. Law plus technology plus the market now interact to turn this
-historically benign regulation into the most significant regulation of
-culture that our free society has known.<footnote><para>
+were independent of the networks. <emphasis>Never</emphasis> has
+copyright protected such a wide range of rights, against as broad a
+range of actors, for a term that was remotely as long. This form of
+regulation—a tiny regulation of a tiny part of the creative
+energy of a nation at the founding—is now a massive regulation
+of the overall creative process. Law plus technology plus the market
+now interact to turn this historically benign regulation into the most
+significant regulation of culture that our free society has
+known.<footnote><para>
<!-- f35 -->
-Siva Vaidhyanathan captures a similar point in his "four surrenders" of
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+Siva Vaidhyanathan captures a similar point in his <quote>four surrenders</quote> of
copyright law in the digital age. See Vaidhyanathan, 159–60.
</para></footnote>
</para>
<para>
-This has been a long chapter. Its point can now be briefly stated.
+<emphasis role='strong'>This has been</emphasis> a long chapter. Its
+point can now be briefly stated.
</para>
<para>
At the start of this book, I distinguished between commercial and
that copyright law has undergone. In 1790, the law looked like this:
</para>
-<table id="t2">
-<title></title>
-<tgroup cols="3" align="char">
+<informaltable id="t2">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
</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></title>
-<tgroup cols="3" align="char">
+<informaltable id="t3">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
</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></title>
-<tgroup cols="3" align="char">
+<informaltable id="t4">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
</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></title>
-<tgroup cols="3" align="char">
+<informaltable id="t5">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
Every realm is governed by copyright law, whereas before most
But I also have no doubt that it does more harm than good when
regulating (as it regulates just now) noncommercial copying and,
especially, noncommercial transformation. And increasingly, for the
-reasons sketched especially in chapters 7 and 8, one might well wonder
-whether it does more harm than good for commercial transformation.
-More commercial transformative work would be created if derivative
-rights were more sharply restricted.
+reasons sketched especially in chapters
+<xref xrefstyle="select: labelnumber" linkend="recorders"/> and
+<xref xrefstyle="select: labelnumber" linkend="transformers"/>, one
+might well wonder whether it does more harm than good for commercial
+transformation. More commercial transformative work would be created
+if derivative rights were more sharply restricted.
</para>
<para>
The issue is therefore not simply whether copyright is property. Of
-course copyright is a kind of "property," and of course, as with any
+course copyright is a kind of <quote>property,</quote> and of course, as with any
property, the state ought to protect it. But first impressions
notwithstanding, historically, this property right (as with all
property rights<footnote><para>
<!-- f36 -->
It was the single most important contribution of the legal realist
movement to demonstrate that all property rights are always crafted to
-balance public and private interests. See Thomas C. Grey, "The
-Disintegration of Property," in Nomos XXII: Property, J. Roland
+balance public and private interests. See Thomas C. Grey, <quote>The
+Disintegration of Property,</quote> 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
creative work. This balance has always been struck in light of new
-technologies. And for almost half of our tradition, the "copyright"
-did not control at all the freedom of others to build upon or
-transform a creative work. American culture was born free, and for
-almost 180 years our country consistently protected a vibrant and rich
-free culture.
+technologies. And for almost half of our tradition, the <quote>copyright</quote>
+did not control <emphasis>at all</emphasis> the freedom of others to
+build upon or transform a creative work. American culture was born
+free, and for almost 180 years our country consistently protected a
+vibrant and rich free culture.
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
We achieved that free culture because our law respected important
-limits on the scope of the interests protected by "property." The very
-birth of "copyright" as a statutory right recognized those limits, by
+limits on the scope of the interests protected by <quote>property.</quote> The very
+birth of <quote>copyright</quote> as a statutory right recognized those limits, by
granting copyright owners protection for a limited time only (the
-story of chapter 6). The tradition of "fair use" is animated by a
+story of chapter 6). The tradition of <quote>fair use</quote> is animated by a
similar concern that is increasingly under strain as the costs of
exercising any fair use right become unavoidably high (the story of
chapter 7). Adding
lawyer.
</para>
<!-- PAGE BREAK 185 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-puzzles">
+</part>
+<part id="c-puzzles">
<title>PUZZLES</title>
-<para></para>
+
<!-- PAGE BREAK 186 -->
-<sect1 id="chimera">
+<chapter label="11" id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
-<indexterm id="idxchimera" class='startofrange'>
- <primary>chimeras</primary>
-</indexterm>
-<indexterm id="idxwells" class='startofrange'>
- <primary>Wells, H. G.</primary>
-</indexterm>
-<indexterm id="idxtcotb" class='startofrange'>
- <primary>"Country of the Blind, The" (Wells)</primary>
-</indexterm>
-
-<para>
-In a well-known short story by H. G. Wells, a mountain climber
-named Nunez trips (literally, down an ice slope) into an unknown and
-isolated valley in the Peruvian Andes.<footnote><para>
+<indexterm id='idxchimera' class='startofrange'><primary>chimeras</primary></indexterm>
+<indexterm id='idxwells' class='startofrange'><primary>Wells, H. G.</primary></indexterm>
+<indexterm id='idxtcotb' class='startofrange'><primary><quote>Country of the Blind, The</quote> (Wells)</primary></indexterm>
+
+<para>
+<emphasis role='strong'>In a well-known</emphasis> short story by
+H. G. Wells, a mountain climber named Nunez trips (literally, down an
+ice slope) into an unknown and isolated valley in the Peruvian
+Andes.<footnote><para>
<!-- f1. -->
-H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
-The Country of the Blind and Other Stories, Michael Sherborne, ed. (New
+H. G. Wells, <quote>The Country of the Blind</quote> (1904, 1911). See H. G. Wells,
+<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael Sherborne, ed. (New
York: Oxford University Press, 1996).
</para></footnote>
-The valley is extraordinarily beautiful, with "sweet water, pasture,
+The valley is extraordinarily beautiful, with <quote>sweet water, pasture,
an even climate, slopes of rich brown soil with tangles of a shrub
-that bore an excellent fruit." But the villagers are all blind. Nunez
-takes this as an opportunity. "In the Country of the Blind," he tells
-himself, "the One-Eyed Man is King." So he resolves to live with the
+that bore an excellent fruit.</quote> But the villagers are all blind. Nunez
+takes this as an opportunity. <quote>In the Country of the Blind,</quote> he tells
+himself, <quote>the One-Eyed Man is King.</quote> So he resolves to live with the
villagers to explore life as a king.
</para>
<para>
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
-"blind." They don't have the word blind. They think he's just thick.
+<quote>blind.</quote> They don't have the word <citetitle>blind</citetitle>. They think he's just thick.
Indeed, as they increasingly notice the things he can't do (hear the
sound of grass being stepped on, for example), they increasingly try
-to control him. He, in turn, becomes increasingly frustrated. "`You
+to control him. He, in turn, becomes increasingly frustrated. <quote>`You
don't understand,' he cried, in a voice that was meant to be great and
resolute, and which broke. `You are blind and I can see. Leave me
-alone!'"
+alone!'</quote>
</para>
<para>
<!-- PAGE BREAK 187 -->
The villagers don't leave him alone. Nor do they see (so to speak) the
virtue of his special power. Not even the ultimate target of his
-affection, a young woman who to him seems "the most beautiful thing in
-the whole of creation," understands the beauty of sight. Nunez's
-description of what he sees "seemed to her the most poetical of
+affection, a young woman who to him seems <quote>the most beautiful thing in
+the whole of creation,</quote> understands the beauty of sight. Nunez's
+description of what he sees <quote>seemed to her the most poetical of
fancies, and she listened to his description of the stars and the
mountains and her own sweet white-lit beauty as though it was a guilty
-indulgence." "She did not believe," Wells tells us, and "she could
-only half understand, but she was mysteriously delighted."
+indulgence.</quote> <quote>She did not believe,</quote> Wells tells us, and <quote>she could
+only half understand, but she was mysteriously delighted.</quote>
</para>
<para>
-When Nunez announces his desire to marry his "mysteriously delighted"
-love, the father and the village object. "You see, my dear," her
-father instructs, "he's an idiot. He has delusions. He can't do
-anything right." They take Nunez to the village doctor.
+When Nunez announces his desire to marry his <quote>mysteriously delighted</quote>
+love, the father and the village object. <quote>You see, my dear,</quote> her
+father instructs, <quote>he's an idiot. He has delusions. He can't do
+anything right.</quote> They take Nunez to the village doctor.
</para>
<para>
-After a careful examination, the doctor gives his opinion. "His brain
-is affected," he reports.
+After a careful examination, the doctor gives his opinion. <quote>His brain
+is affected,</quote> he reports.
</para>
<para>
-"What affects it?" the father asks. "Those queer things that are
-called the eyes . . . are diseased . . . in such a way as to affect
-his brain."
+<quote>What affects it?</quote> the father asks. <quote>Those queer things that are
+called the eyes … are diseased … in such a way as to affect
+his brain.</quote>
</para>
<para>
-The doctor continues: "I think I may say with reasonable certainty
+The doctor continues: <quote>I think I may say with reasonable certainty
that in order to cure him completely, all that we need to do is a
simple and easy surgical operation—namely, to remove these
-irritant bodies [the eyes]."
+irritant bodies [the eyes].</quote>
</para>
<para>
-"Thank Heaven for science!" says the father to the doctor. They inform
+<quote>Thank Heaven for science!</quote> says the father to the doctor. They inform
Nunez of this condition necessary for him to be allowed his bride.
(You'll have to read the original to learn what happens in the end. I
believe in free culture, but never in giving away the end of a story.)
-It sometimes happens that the eggs of twins fuse in the mother's
-womb. That fusion produces a "chimera." A chimera is a single creature
-with two sets of DNA. The DNA in the blood, for example, might be
-different from the DNA of the skin. This possibility is an underused
+</para>
+<para>
+<emphasis role='strong'>It sometimes</emphasis> happens that the eggs
+of twins fuse in the mother's womb. That fusion produces a
+<quote>chimera.</quote> A chimera is a single creature with two sets
+of DNA. The DNA in the blood, for example, might be different from the
+DNA of the skin. This possibility is an underused
<!-- PAGE BREAK 188 -->
-plot for murder mysteries. "But the DNA shows with 100 percent
+plot for murder mysteries. <quote>But the DNA shows with 100 percent
certainty that she was not the person whose blood was at the
-scene. . . ."
+scene. …</quote>
</para>
-<indexterm startref="idxtcotb" class='endofrange'/>
-<indexterm startref="idxwells" class="endofrange"/>
+<indexterm startref='idxtcotb' class='endofrange'/>
+<indexterm startref='idxwells' class="endofrange"/>
<para>
Before I had read about chimeras, I would have said they were
impossible. A single person can't have two sets of DNA. The very idea
of DNA is that it is the code of an individual. Yet in fact, not only
can two individuals have the same set of DNA (identical twins), but
one person can have two different sets of DNA (a chimera). Our
-understanding of a "person" should reflect this reality.
+understanding of a <quote>person</quote> should reflect this reality.
</para>
<para>
The more I work to understand the current struggle over copyright and
culture, which I've sometimes called unfairly, and sometimes not
-unfairly enough, "the copyright wars," the more I think we're dealing
-with a chimera. For example, in the battle over the question "What is
-p2p file sharing?" both sides have it right, and both sides have it
-wrong. One side says, "File sharing is just like two kids taping each
+unfairly enough, <quote>the copyright wars,</quote> the more I think we're dealing
+with a chimera. For example, in the battle over the question <quote>What is
+p2p file sharing?</quote> both sides have it right, and both sides have it
+wrong. One side says, <quote>File sharing is just like two kids taping each
others' records—the sort of thing we've been doing for the last
-thirty years without any question at all." That's true, at least in
+thirty years without any question at all.</quote> That's true, at least in
part. When I tell my best friend to try out a new CD that I've bought,
but rather than just send the CD, I point him to my p2p server, that
is, in all relevant respects, just like what every executive in every
But the description is also false in part. For when my p2p server is
on a p2p network through which anyone can get access to my music, then
sure, my friends can get access, but it stretches the meaning of
-"friends" beyond recognition to say "my ten thousand best friends" can
+<quote>friends</quote> beyond recognition to say <quote>my ten thousand best friends</quote> can
get access. Whether or not sharing my music with my best friend is
-what "we have always been allowed to do," we have not always been
-allowed to share music with "our ten thousand best friends."
+what <quote>we have always been allowed to do,</quote> we have not always been
+allowed to share music with <quote>our ten thousand best friends.</quote>
</para>
<para>
-Likewise, when the other side says, "File sharing is just like walking
+Likewise, when the other side says, <quote>File sharing is just like walking
into a Tower Records and taking a CD off the shelf and walking out
-with it," that's true, at least in part. If, after Lyle Lovett
+with it,</quote> that's true, at least in part. If, after Lyle Lovett
(finally) releases a new album, rather than buying it, I go to Kazaa
and find a free copy to take, that is very much like stealing a copy
from Tower.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
be extreme, but each of them has either been proposed or actually
implemented.<footnote><para>
<!-- f2. -->
+<indexterm><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
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,
+<quote>Copyright and Digital Media in a Post-Napster World,</quote> 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
+as five years imprisonment; see Jon Healey, <quote>House Bill Aims to Up
+Stakes on Piracy,</quote> <citetitle>Los Angeles Times</citetitle>, 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
+through a family computer, see <citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In
+re. Verizon Internet Services)</citetitle>, 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,
+Elizabeth Young, <quote>Downloading Could Lead to Fines,</quote> 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
+identities, see James Collins, <quote>RIAA Steps Up Bid to Force BC, MIT to
+Name Students,</quote> <citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Conyers, John, Jr.</primary></indexterm>
<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
</para>
-<indexterm startref="idxchimera" class='endofrange'/>
+<indexterm startref='idxchimera' class='endofrange'/>
<para>
Alternatively, we could respond to file sharing the way many kids act
as though we've responded. We could totally legalize it. Let there be
something that recognizes the truth in both. And while I end this book
with a sketch of a system that does just that, my aim in the next
chapter is to show just how awful it would be for us to adopt the
-zero-tolerance extreme. I believe either extreme would be worse than a
-reasonable alternative. But I believe the zero-tolerance solution
-would be the worse of the two extremes.
+zero-tolerance extreme. I believe <emphasis>either</emphasis> extreme
+would be worse than a reasonable alternative. But I believe the
+zero-tolerance solution would be the worse of the two extremes.
</para>
<para>
innovation and new creativity will be lost.
</para>
<para>
-I'm not talking about the opportunities for kids to "steal" music. My
+I'm not talking about the opportunities for kids to <quote>steal</quote> music. My
focus instead is the commercial and cultural innovation that this war
will also kill. We have never seen the power to innovate spread so
broadly among our citizens, and we have just begun to see the
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
that they will require to do so. Poor choices made this early in the
game will retard the growth of this market, hurting everyone's
interests.<footnote><para>
-<!-- f3. --> WIPO and the DMCA One Year Later: Assessing Consumer Access to
-Digital Entertainment on the Internet and Other Media: Hearing Before
-the Subcommittee on Telecommunications, Trade, and Consumer
- Protection,
-House Committee on Commerce, 106th Cong. 29 (1999) (statement
-of Peter Harter, vice president, Global Public Policy and Standards,
- EMusic.com),
-available in LEXIS, Federal Document Clearing House
- Congressional
-Testimony File.
-</para></footnote>
+<!-- f3. -->
+WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
+Entertainment on the Internet and Other Media: Hearing Before the
+Subcommittee on Telecommunications, Trade, and Consumer Protection,
+House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
+Harter, vice president, Global Public Policy and Standards,
+EMusic.com), available in LEXIS, Federal Document Clearing House
+Congressional Testimony File. </para></footnote>
</para>
</blockquote>
<!-- PAGE BREAK 191 -->
<para>
In April 2001, eMusic.com was purchased by Vivendi Universal,
-one of "the major labels." Its position on these matters has now
+one of <quote>the major labels.</quote> Its position on these matters has now
changed.
+<indexterm><primary>Vivendi Universal</primary></indexterm>
</para>
<para>
Reversing our tradition of tolerance now will not merely quash
-piracy. It will sacrifice values that are important to this culture, and will
-kill opportunities that could be extraordinarily valuable.
+piracy. It will sacrifice values that are important to this culture,
+and will kill opportunities that could be extraordinarily valuable.
</para>
<!-- PAGE BREAK 192 -->
-</sect1>
-<sect1 id="harms">
+</chapter>
+<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.
+<emphasis role='strong'>To fight</emphasis> <quote>piracy,</quote> to
+protect <quote>property,</quote> 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.
</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 <quote>free culture.</quote> 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
first time, the law should defend the old against the new, just when the
-power of the property called "intellectual property" is at its greatest in
+power of the property called <quote>intellectual property</quote> is at its greatest in
our history.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-Yet "common sense" does not see it this way. Common sense is still on
+Yet <quote>common sense</quote> does not see it this way. Common sense is still on
the side of the Causbys and the content industry. The extreme claims
of control in the name of property still resonate; the uncritical
-rejection of "piracy" still has play.
+rejection of <quote>piracy</quote> still has play.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 193 -->
There will be many consequences of continuing this war. I want to
first two protect modern RCAs, but there is no Howard Armstrong in
the wings to fight today's monopolists of culture.
</para>
-<sect2 id="constrain">
+<section id="constrain">
<title>Constraining Creators</title>
<para>
In the next ten years we will see an explosion of digital
favorite artists in a collage and make it available on the Net.
</para>
<para>
-This digital "capturing and sharing" is in part an extension of the
+This digital <quote>capturing and sharing</quote> is in part an extension of the
capturing and sharing that has always been integral to our culture,
and in part it is something new. It is continuous with the Kodak, but
it explodes the boundaries of Kodak-like technologies. The technology
-of digital "capturing and sharing" promises a world of extraordinarily
+of digital <quote>capturing and sharing</quote> promises a world of extraordinarily
diverse creativity that can be easily and broadly shared. And as that
creativity is applied to democracy, it will enable a broad range of
citizens to use technology to express and criticize and contribute to
work spread across the Internet. But as the law is currently crafted, this
work is presumptively illegal.
</para>
+<indexterm><primary>Worldcom</primary></indexterm>
+<indexterm><primary>copyright infringement lawsuits</primary><secondary>exaggerated claims of</secondary></indexterm>
+<indexterm><primary>copyright infringement lawsuits</primary><secondary>in recording industry</secondary></indexterm>
+<indexterm><primary>doctors malpractice claims against</primary></indexterm>
+<indexterm><primary>Jordan, Jesse</primary></indexterm>
<para>
That presumption will increasingly chill creativity, as the
examples of extreme penalties for vague infringements continue to
of over $200 billion—received a fine of a mere $750
million.<footnote><para>
<!-- f1. -->
-See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
+See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at WorldCom</citetitle>
(Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of
-the settlement, see MCI press release, "MCI Wins U.S. District Court
-Approval for SEC Settlement" (7 July 2003), available at
+the settlement, see MCI press release, <quote>MCI Wins U.S. District Court
+Approval for SEC Settlement</quote> (7 July 2003), available at
<ulink url="http://free-culture.cc/notes/">link #37</ulink>.
<indexterm><primary>Worldcom</primary></indexterm>
</para></footnote>
<para>
<!-- f2. --> The bill, modeled after California's tort reform model, was passed in the
House of Representatives but defeated in a Senate vote in July 2003. For
-an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
-Say Tort Reformers," amednews.com, 28 July 2003, available at
+an overview, see Tanya Albert, <quote>Measure Stalls in Senate: `We'll Be Back,'
+Say Tort Reformers,</quote> amednews.com, 28 July 2003, available at
<ulink url="http://free-culture.cc/notes/">link #38</ulink>,
-and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003,
+and <quote>Senate Turns Back Malpractice Caps,</quote> CBSNews.com, 9 July 2003,
available at
<ulink url="http://free-culture.cc/notes/">link #39</ulink>. President Bush has continued to urge tort reform in
recent months.
Can common sense recognize the absurdity in a world where
the maximum fine for downloading two songs off the Internet is more
than the fine for a doctor's negligently butchering a patient?
-<indexterm><primary>Worldcom</primary></indexterm>
</para>
+<indexterm><primary>art, underground</primary></indexterm>
<para>
The consequence of this legal uncertainty, tied to these extremely
-high penalties, is that an extraordinary amount of creativity will either
-never be exercised, or never be exercised in the open. We drive this
- creative
-process underground by branding the modern-day Walt Disneys
-"pirates." We make it impossible for businesses to rely upon a public
-domain, because the boundaries of the public domain are designed to
+high penalties, is that an extraordinary amount of creativity will
+either never be exercised, or never be exercised in the open. We drive
+this creative process underground by branding the modern-day Walt
+Disneys <quote>pirates.</quote> We make it impossible for businesses to rely upon a
+public domain, because the boundaries of the public domain are
+designed to
<!-- PAGE BREAK 195 -->
-be unclear. It never pays to do anything except pay for the right to
- create,
-and hence only those who can pay are allowed to create. As was the
-case in the Soviet Union, though for very different reasons, we will
- begin
-to see a world of underground art—not because the message is
- necessarily
-political, or because the subject is controversial, but because the
-very act of creating the art is legally fraught. Already, exhibits of
- "illegal
-art" tour the United States.<footnote><para>
-<!-- f3. --> See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003,
- available
-at
+be unclear. It never pays to do anything except pay for the right
+to create, and hence only those who can pay are allowed to create. As
+was the case in the Soviet Union, though for very different reasons,
+we will begin to see a world of underground art—not because the
+message is necessarily political, or because the subject is
+controversial, but because the very act of creating the art is legally
+fraught. Already, exhibits of <quote>illegal art</quote> tour the United
+States.<footnote><para>
+<!-- f3. -->
+
+See Danit Lidor, <quote>Artists Just Wanna Be Free,</quote> <citetitle>Wired</citetitle>, 7 July
+2003, available at
<ulink url="http://free-culture.cc/notes/">link #40</ulink>. For an overview of the exhibition, see
<ulink url="http://free-culture.cc/notes/">link #41</ulink>.
</para></footnote>
- In what does their "illegality" consist?
+ In what does their <quote>illegality</quote> consist?
In the act of mixing the culture around us with an expression that is
critical or reflective.
</para>
+<indexterm><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
<para>
Part of the reason for this fear of illegality has to do with the
-changing law. I described that change in detail in chapter 10. But an
+changing law. I described that change in detail in chapter
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>. But an
even bigger part has to do with the increasing ease with which
infractions can be tracked. As users of file-sharing systems
discovered in 2002, it is a trivial matter for copyright owners to get
the songs that you played in the privacy of your own home that anyone
could tune into for whatever reason they chose.
</para>
+<indexterm><primary>images, ownership of</primary></indexterm>
<para>
Never in our history has a painter had to worry about whether
his painting infringed on someone else's work; but the modern-day
</para>
<para>
Lawyers rarely see this because lawyers are rarely empirical. As I
-described in chapter 7, in response to the story about documentary
-filmmaker Jon Else, I have been lectured again and again by lawyers
-who insist Else's use was fair use, and hence I am wrong to say that the
-law regulates such a use.
+described in chapter
+<xref xrefstyle="select: labelnumber" linkend="recorders"/>, in
+response to the story about documentary filmmaker Jon Else, I have
+been lectured again and again by lawyers who insist Else's use was
+fair use, and hence I am wrong to say that the law regulates such a
+use.
</para>
<para>
</para>
<para>
Judges and lawyers can tell themselves that fair use provides adequate
-"breathing room" between regulation by the law and the access the law
+<quote>breathing room</quote> between regulation by the law and the access the law
should allow. But it is a measure of how out of touch our legal system
has become that anyone actually believes this. The rules that
publishers impose upon writers, the rules that film distributors
impose upon filmmakers, the rules that newspapers impose upon
journalists— these are the real laws governing creativity. And
-these rules have little relationship to the "law" with which judges
+these rules have little relationship to the <quote>law</quote> with which judges
comfort themselves.
</para>
<para>
which would never return to the wrongfully accused defendant anything
of the costs she suffered to defend her right to speak—in that
world, the astonishingly broad regulations that pass under the name
-"copyright" silence speech and creativity. And in that world, it takes
+<quote>copyright</quote> silence speech and creativity. And in that world, it takes
a studied blindness for people to continue to believe they live in a
culture that is free.
</para>
We're losing [creative] opportunities right and left. Creative people
are being forced not to express themselves. Thoughts are not being
expressed. And while a lot of stuff may [still] be created, it still
-won't get distributed. Even if the stuff gets made . . . you're not
+won't get distributed. Even if the stuff gets made … you're not
going to get it distributed in the mainstream media unless
<!-- PAGE BREAK 197 -->
-you've got a little note from a lawyer saying, "This has been
-cleared." You're not even going to get it on PBS without that kind of
+you've got a little note from a lawyer saying, <quote>This has been
+cleared.</quote> You're not even going to get it on PBS without that kind of
permission. That's the point at which they control it.
</para>
</blockquote>
-</sect2>
-<sect2 id="innovators">
+</section>
+<section id="innovators">
<title>Constraining Innovators</title>
+<indexterm id='idxcopyrightlawinnovationhamperedby' class='startofrange'><primary>copyright law</primary><secondary>innovation hampered by</secondary></indexterm>
+<indexterm id='idxinnovationindustryestablishmentopposedto2' class='startofrange'><primary>innovation</primary><secondary>industry establishment opposed to</secondary></indexterm>
+<indexterm id='idxregulationasestablishmentprotectionism2' class='startofrange'><primary>regulation</primary><secondary>as establishment protectionism</secondary></indexterm>
<para>
The story of the last section was a crunchy-lefty
story—creativity quashed, artists who can't speak, yada yada
seems to be just about everything. And if you think that, you might
think there's little in this story to worry you.
</para>
+<indexterm id='idxmarketconstraints2' class='startofrange'><primary>market constraints</primary></indexterm>
<para>
But there's an aspect of this story that is not lefty in any sense.
Indeed, it is an aspect that could be written by the most extreme
promarket ideologue. And if you're one of these sorts (and a special
one at that, 188 pages into a book like this), then you can see this
-other aspect by substituting "free market" every place I've spoken of
-"free culture." The point is the same, even if the interests
+other aspect by substituting <quote>free market</quote> every place I've spoken of
+<quote>free culture.</quote> The point is the same, even if the interests
affecting culture are more fundamental.
</para>
<para>
simply enables the powerful industries of today to protect themselves
against the competitors of tomorrow.
</para>
+<indexterm startref='idxmarketconstraints2' class='endofrange'/>
<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>venture capitalists</primary></indexterm>
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
-strategy that I described in chapter 10. The consequence of this
-massive threat of liability tied to the murky boundaries of copyright
-law is that innovators who want to innovate in this space can safely
-innovate only if they have the sign-off from last generation's
-dominant industries. That lesson has been taught through a series of
-cases that were designed and executed to teach venture capitalists a
+strategy that I described in chapter <xref xrefstyle="select:
+labelnumber" linkend="property-i"/>. The consequence of this massive
+threat of liability tied to the murky boundaries of copyright law is
+that innovators who want to innovate in this space can safely innovate
+only if they have the sign-off from last generation's dominant
+industries. That lesson has been taught through a series of cases
+that were designed and executed to teach venture capitalists a
lesson. That lesson—what former Napster CEO Hank Barry calls a
-"nuclear pall" that has fallen over the Valley—has been learned.
+<quote>nuclear pall</quote> that has fallen over the Valley—has been learned.
</para>
+<indexterm><primary>Future of Ideas, The (Lessig)</primary></indexterm>
+<indexterm><primary>Lessig, Lawrence</primary></indexterm>
<para>
Consider one example to make the point, a story whose beginning
-I told in The Future of Ideas and which has progressed in a way that
+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 id='idxmpcom' class='startofrange'><primary>MP3.com</primary></indexterm>
+<indexterm id='idxmympcom' class='startofrange'><primary>my.mp3.com</primary></indexterm>
+<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
MP3.com offered creators a venue to distribute their creativity,
without demanding an exclusive engagement from the creators.
</para>
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
+<indexterm id='idxcdsprefdata' class='startofrange'><primary>CDs</primary><secondary>preference data on</secondary></indexterm>
<para>
To make this system work, however, MP3.com needed a reliable way to
recommend music to its users. The idea behind this alternative was to
as a by-product, by seeing the content they already owned, to discover
the kind of content the users liked.
</para>
+<indexterm startref='idxcdsprefdata' class='endofrange'/>
<para>
To make this system function, however, MP3.com needed to copy 50,000
CDs to a server. (In principle, it could have been the user who
copies, it was 50,000 copies directed at giving customers something
they had already bought.
</para>
+<indexterm id='idxvivendiuniversal' class='startofrange'><primary>Vivendi Universal</primary></indexterm>
+<indexterm><primary>copyright infringement lawsuits</primary><secondary>distribution technology targeted in</secondary></indexterm>
+<indexterm><primary>copyright infringement lawsuits</primary><secondary>exaggerated claims of</secondary></indexterm>
+<indexterm id='idxcopyrightinfringementlawsuitsinrecordingindustry3' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>in recording industry</secondary></indexterm>
+<indexterm><primary>recording industry</primary><secondary>copyright infringement lawsuits of</secondary></indexterm>
+<indexterm><primary>Recording Industry Association of America (RIAA)</primary><secondary>copyright infringement lawsuits filed by</secondary></indexterm>
+<indexterm><primary>regulation</primary><secondary>outsize penalties of</secondary></indexterm>
<para>
Nine days after MP3.com launched its service, the five major labels,
headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
dared to suggest that the law was less restrictive than the labels
demanded.
</para>
+<indexterm startref='idxvivendiuniversal' class='endofrange'/>
<para>
The clear purpose of this lawsuit (which was settled for an
unspecified amount shortly after the story was no longer covered in
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
</para>
+<indexterm startref='idxmpcom' class='endofrange'/>
+<indexterm startref='idxmympcom' class='endofrange'/>
+<indexterm startref='idxcopyrightinfringementlawsuitsinrecordingindustry3' class='endofrange'/>
+<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>copyright infringement lawsuits</primary><secondary>distribution technology targeted in</secondary></indexterm>
+<indexterm id='idxbmw' class='startofrange'><primary>BMW</primary></indexterm>
+<indexterm id='idxcarsmpsoundsystemsin' class='startofrange'><primary>cars, MP3 sound systems in</primary></indexterm>
+<indexterm><primary>EMI</primary></indexterm>
<indexterm><primary>Hummer, John</primary></indexterm>
<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>Hummer Winblad</primary></indexterm>
+<indexterm><primary>MP3 players</primary></indexterm>
+<indexterm><primary>Napster</primary><secondary>venture capital for</secondary></indexterm>
+<indexterm id='idxneedlemanrafe' class='startofrange'><primary>Needleman, Rafe</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
+<indexterm><primary>venture capitalists</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
venture capital firm (VC) that had funded Napster at a certain stage of
its development, its cofounder ( John Hummer), and general partner
(Hank Barry).<footnote><para>
-<!-- f4. --> See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles
-Times, 23 April 2003. For a parallel argument about the effects on
- innovation
-in the distribution of music, see Janelle Brown, "The Music
- Revolution
-Will Not Be Digitized," Salon.com, 1 June 2001, available at
-<ulink url="http://free-culture.cc/notes/">link #42</ulink>.
-See also Jon Healey, "Online Music Services Besieged," Los Angeles
-Times, 28 May 2001.
-</para></footnote>
- The claim here, as well, was that the VC should have
-recognized the right of the content industry to control how the
- industry
-should develop. They should be held personally liable for funding a
-company whose business turned out to be beyond the law. Here again,
-the aim of the lawsuit is transparent: Any VC now recognizes that if
-you fund a company whose business is not approved of by the dinosaurs,
-you are at 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 Business
-2.0, Rafe Needleman describes a discussion with BMW:
+<!-- f4. -->
+See Joseph Menn, <quote>Universal, EMI Sue Napster Investor,</quote> <citetitle>Los Angeles
+Times</citetitle>, 23 April 2003. For a parallel argument about the effects on
+innovation in the distribution of music, see Janelle Brown, <quote>The Music
+Revolution Will Not Be Digitized,</quote> Salon.com, 1 June 2001, available
+at <ulink url="http://free-culture.cc/notes/">link #42</ulink>.
+See also Jon Healey, <quote>Online Music Services Besieged,</quote> <citetitle>Los Angeles
+Times</citetitle>, 28 May 2001.
+</para></footnote>
+The claim here, as well, was that the VC should have recognized the
+right of the content industry to control how the industry should
+develop. They should be held personally liable for funding a company
+whose business turned out to be beyond the law. Here again, the aim of
+the lawsuit is transparent: Any VC now recognizes that if you fund a
+company whose business is not approved of by the dinosaurs, you are at
+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:
</para>
<blockquote>
-<indexterm><primary>BMW</primary></indexterm>
<para>
I asked why, with all the storage capacity and computer power in
the car, there was no way to play MP3 files. I was told that BMW
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
forward for release stateside. Even today, no new cars are sold in the
-United States with bona fide MP3 players. . . . <footnote>
+United States with bona fide MP3 players. … <footnote>
<para>
<!-- f5. -->
-Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+Rafe Needleman, <quote>Driving in Cars with MP3s,</quote> <citetitle>Business 2.0</citetitle>, 16 June
2003, available at
<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful
to Dr. Mohammad Al-Ubaydli for this example.
</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxbmw' class='endofrange'/>
+<indexterm startref='idxcarsmpsoundsystemsin' class='endofrange'/>
+<indexterm startref='idxneedlemanrafe' class='endofrange'/>
<para>
-This is the world of the mafia—filled with "your money or your
-life" offers, governed in the end not by courts but by the threats
+This is the world of the mafia—filled with <quote>your money or your
+life</quote> offers, governed in the end not by courts but by the threats
that the law empowers copyright holders to exercise. It is a system
that will obviously and necessarily stifle new innovation. It is hard
enough to start a company. It is impossibly hard if that company is
<!-- 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.
-</para>
+enterprises. The point is the definition of <quote>illegal.</quote> 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>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The point is directly parallel to the crunchy-lefty point about fair
-use. Whatever the "real" law is, realism about the effect of law in
+use. Whatever the <quote>real</quote> law is, realism about the effect of law in
both contexts is the same. This wildly punitive system of regulation
will systematically stifle creativity and innovation. It will protect
some industries and some creators, but it will harm industry and
law where the law is not doing any good. The transaction costs buried
within a permission culture are enough to bury a wide range of
creativity. Someone needs to do a lot of justifying to justify that
-result. The uncertainty of the law is one burden on innovation. There
-is a second burden that operates more directly. This is the effort by
-many in the content industry to use the law to directly regulate the
-technology of the Internet so that it better protects their content.
+result.
+</para>
+<para>
+<emphasis role='strong'>The uncertainty</emphasis> of the law is one
+burden on innovation. There is a second burden that operates more
+directly. This is the effort by many in the content industry to use
+the law to directly regulate the technology of the Internet so that it
+better protects their content.
</para>
<para>
The motivation for this response is obvious. The Internet enables the
efficient spread of content. That efficiency is a feature of the
Internet's design. But from the perspective of the content industry,
-this feature is a "bug." The efficient spread of content means that
+this feature is a <quote>bug.</quote> The efficient spread of content means that
content distributors have a harder time controlling the distribution
of content. One obvious response to this efficiency is thus to make
-the Internet less efficient. If the Internet enables "piracy," then,
+the Internet less efficient. If the Internet enables <quote>piracy,</quote> then,
this response says, we should break the kneecaps of the Internet.
</para>
+<indexterm><primary>broadcast flag</primary></indexterm>
<para>
The examples of this form of legislation are many. At the urging of
the content industry, some in Congress have threatened legislation that
would require computers to determine whether the content they access
is protected or not, and to disable the spread of protected content.<footnote><para>
-<!-- f6. --> "Copyright and Digital Media in a Post-Napster World," GartnerG2 and
+<!-- f6. --> <quote>Copyright and Digital Media in a Post-Napster World,</quote> GartnerG2 and
the Berkman Center for Internet and Society at Harvard Law School
(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
+<quote>broadcast flag</quote> 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>
+<indexterm><primary>Intel</primary></indexterm>
<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, <quote>Tech Execs Square Off Over Piracy,</quote> 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.
</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.
+<emphasis role='strong'>There is one</emphasis> 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
When done right, it benefits creators and harms leeches. When done
wrong, it is regulation the powerful use to defeat competitors.
</para>
+<indexterm><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
+<indexterm><primary>VCRs</primary></indexterm>
+<indexterm><primary>statutory licenses</primary></indexterm>
+<indexterm><primary>copyright law</primary><secondary>statutory licenses in</secondary></indexterm>
<para>
-As I described in chapter 10, despite this feature of copyright as
-regulation, and subject to important qualifications outlined by Jessica
-Litman in her book Digital Copyright,<footnote><para>
-<!-- f9. --> Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books,
-2001).
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, despite this feature of copyright as
+regulation, and subject to important qualifications outlined by
+Jessica Litman in her book <citetitle>Digital
+Copyright</citetitle>,<footnote><para>
+<!-- f9. -->
+Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst,
+N.Y.: Prometheus Books, 2001).
+<indexterm><primary>Digital Copyright (Litman)</primary></indexterm>
+<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
creators, both the courts and Congress have imposed legal restrictions
that will have the effect of smothering the new to benefit the old.
</para>
+<indexterm id='idxinternetradioon' class='startofrange'><primary>Internet</primary><secondary>radio on</secondary></indexterm>
+<indexterm id='idxradiooninternet' class='startofrange'><primary>radio</primary><secondary>on Internet</secondary></indexterm>
<para>
The response by the courts has been fairly universal.<footnote><para>
-<!-- f10. --> The only circuit court exception is found in Recording Industry Association
-of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th
-Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that
-makers of a portable MP3 player were not liable for contributory
- copyright
-infringement for a device that is unable to record or redistribute
- music
-(a device whose only copying function is to render portable a music file
-already stored on a user's hard drive).
-At the district court level, the only exception is found in
- Metro-Goldwyn-Mayer
-Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D.
-Cal., 2003), where the court found the link between the distributor and
-any given user's conduct too attenuated to make the distributor liable for
-contributory or vicarious infringement liability.
-</para></footnote>
- It has been
-mirrored in the responses threatened and actually implemented by
-
Congress. I won't catalog all of those responses here.<footnote><para>
+<!-- f10. -->
+<indexterm><primary>Grokster, Ltd.</primary></indexterm>
+The only circuit court exception is found in <citetitle>Recording Industry
+Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 180 F. 3d
+1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
+reasoned that makers of a portable MP3 player were not liable for
+contributory copyright infringement for a device that is unable to
+record or redistribute music (a device whose only copying function is
+to render portable a music file already stored on a user's hard
+drive). At the district court level, the only exception is found in
+<citetitle>Metro-Goldwyn-Mayer Studios, Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 259 F. Supp. 2d
+1029 (C.D. Cal., 2003), where the court found the link between the
+distributor and any given user's conduct too attenuated to make the
+distributor liable for contributory or vicarious infringement
+liability.
+</para></footnote>
+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. -->
+<indexterm><primary>Tauzin, Billy</primary></indexterm>
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
+broadcast on TV (i.e., computers) respect a <quote>broadcast flag</quote> 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,
+technology in all digital media devices. See GartnerG2, <quote>Copyright and
+Digital Media in a Post-Napster World,</quote> 27 June 2003, 33–34,
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>
+<indexterm><primary>broadcast flag</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.
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
<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
-recorded a version of "Happy Birthday"—to memorialize her famous
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="pirates"/>, when a radio station plays a song, the recording
+artist doesn't get paid for that <quote>radio performance</quote> unless he or she
+is also the composer. So, for example if Marilyn Monroe had recorded a
+version of <quote>Happy Birthday</quote>—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
+copyright owners of <quote>Happy Birthday</quote> would get some money, whereas
Marilyn Monroe would not.
</para>
<para>
Enter Internet radio. Like regular radio, Internet radio is a
technology to stream content from a broadcaster to a listener. The
broadcast travels across the Internet, not across the ether of radio
-spectrum. Thus, I can "tune in" to an Internet radio station in
+spectrum. Thus, I can <quote>tune in</quote> to an Internet radio station in
Berlin while sitting in San Francisco, even though there's no way for
me to tune in to a regular radio station much beyond the San Francisco
metropolitan area.
of users worldwide. According to some estimates, more than eighty
million users worldwide have tuned in to this new form of radio.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 205 -->
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
+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
<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>
+underestimated the power of <quote>vested interests, habits, customs and
+legislation
</quote><footnote><para>
<!-- f13. -->
Ibid., 229.
</para></footnote>
question we should ask is, what copyright rules would govern Internet
radio?
</para>
+<indexterm id='idxartistsrecordingindustrypaymentsto3' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
+<indexterm><primary>Congress, U.S.</primary><secondary>on copyright laws</secondary></indexterm>
+<indexterm><primary>Congress, U.S.</primary><secondary>on radio</secondary></indexterm>
+<indexterm><primary>Congress, U.S.</primary><secondary>on recording industry</secondary></indexterm>
+<indexterm id='idxrecordingindustryartistremunerationin3' class='startofrange'><primary>recording industry</primary><secondary>artist remuneration in</secondary></indexterm>
+<indexterm id='idxrecordingindustryradiobroadcastand2' class='startofrange'><primary>recording industry</primary><secondary>radio broadcast and</secondary></indexterm>
+<indexterm id='idxrecordingindustryinternetradiohamperedby' class='startofrange'><primary>recording industry</primary><secondary>Internet radio hampered by</secondary></indexterm>
+<indexterm id='idxrecordingindustryassociationofamericariaaoninternetradiofees' class='startofrange'><primary>Recording Industry Association of America (RIAA)</primary><secondary>on Internet radio fees</secondary></indexterm>
+<indexterm id='idxrecordingindustryassociationofamericariaalobbyingpowerof' class='startofrange'><primary>Recording Industry Association of America (RIAA)</primary><secondary>lobbying power of</secondary></indexterm>
<para>
But here the power of the lobbyists is reversed. Internet radio is a
new industry. The recording artists, on the other hand, have a very
<!-- PAGE BREAK 206 -->
-powerful lobby, the RIAA. Thus when Congress considered the
- phenomenon
-of Internet radio in 1995, the lobbyists had primed Congress
-to adopt a different rule for Internet radio than the rule that applies to
-terrestrial radio. While terrestrial radio does not have to pay our
- hypothetical
-Marilyn Monroe when it plays her hypothetical recording of
-"Happy Birthday" on the air, Internet radio does. Not only is the law not
-neutral toward Internet radio—the law actually burdens Internet radio
-more than it burdens terrestrial radio.
+powerful lobby, the RIAA. Thus when Congress considered the phenomenon
+of Internet radio in 1995, the lobbyists had primed Congress to adopt
+a different rule for Internet radio than the rule that applies to
+terrestrial radio. While terrestrial radio does not have to pay our
+hypothetical Marilyn Monroe when it plays her hypothetical recording
+of <quote>Happy Birthday</quote> on the air, <emphasis>Internet radio
+does</emphasis>. Not only is the law not neutral toward Internet
+radio—the law actually burdens Internet radio more than it
+burdens terrestrial radio.
</para>
<para>
This financial burden is not slight. As Harvard law professor
DTRA 1 and 2, available at
<ulink url="http://free-culture.cc/notes/">link #45</ulink>.
For an excellent analysis making a similar point, see Randal
-C. Picker, "Copyright as Entry Policy: The Case of Digital
-Distribution," Antitrust Bulletin (Summer/Fall 2002): 461: "This was
+C. Picker, <quote>Copyright as Entry Policy: The Case of Digital
+Distribution,</quote> <citetitle>Antitrust Bulletin</citetitle> (Summer/Fall 2002): 461: <quote>This was
not confusion, these are just old-fashioned entry barriers. Analog
radio stations are protected from digital entrants, reducing entry in
radio and diversity. Yes, this is done in the name of getting
royalties to copyright holders, but, absent the play of powerful
-interests, that could have been done in a media-neutral way."
+interests, that could have been done in a media-neutral way.</quote>
<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
A regular radio station broadcasting the same content would pay no
equivalent fee.
</para>
+<indexterm startref='idxartistsrecordingindustrypaymentsto3' class='endofrange'/>
+<indexterm startref='idxrecordingindustryartistremunerationin3' class='endofrange'/>
+<indexterm startref='idxrecordingindustryradiobroadcastand2' class='endofrange'/>
+<indexterm startref='idxrecordingindustryassociationofamericariaaoninternetradiofees' class='endofrange'/>
+<indexterm startref='idxrecordingindustryassociationofamericariaalobbyingpowerof' class='endofrange'/>
<para>
The burden is not financial only. Under the original rules that were
-proposed, an Internet radio station (but not a terrestrial radio station)
-would have to collect the following data from every listening transaction:
+proposed, an Internet radio station (but not a terrestrial radio
+station) would have to collect the following data from <emphasis>every
+listening transaction</emphasis>:
</para>
<!-- PAGE BREAK 207 -->
<orderedlist numeration="arabic">
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.
</para></listitem>
</orderedlist>
-
+<indexterm><primary>Library of Congress</primary></indexterm>
<para>
The Librarian of Congress eventually suspended these reporting
requirements, pending further study. And he also changed the original
rates set by the arbitration panel charged with setting rates. But the
basic difference between Internet radio and terrestrial radio remains:
-Internet radio has to pay a type of copyright fee that terrestrial radio
-does not.
+Internet radio has to pay a <emphasis>type of copyright fee</emphasis>
+that terrestrial radio does not.
</para>
<para>
Why? What justifies this difference? Was there any study of the
economic consequences from Internet radio that would justify these
differences? Was the motive to protect artists against piracy?
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Real Networks</primary></indexterm>
+<indexterm id='idxalbenalex2' class='startofrange'><primary>Alben, Alex</primary></indexterm>
+<indexterm id='idxrecordingindustryassociationofamericariaaoninternetradiofees2' class='startofrange'><primary>Recording Industry Association of America (RIAA)</primary><secondary>on Internet radio fees</secondary></indexterm>
+<indexterm id='idxartistsrecordingindustrypaymentsto4' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
+<indexterm id='idxrecordingindustryartistremunerationin4' class='startofrange'><primary>recording industry</primary><secondary>artist remuneration in</secondary></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
pay to a willing seller, and it was much higher. It was ten times
higher than what radio stations pay to perform the same songs for
the same period of time. And so the attorneys representing the
-webcasters asked the RIAA, . . . "How do you come up with a
+webcasters asked the RIAA, … <quote>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. …</quote>
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
-And the RIAA experts said, "Well, we don't really model this
-as an industry with thousands of webcasters, we think it should be
+And the RIAA experts said, <quote>Well, we don't really model this as an
+industry with thousands of webcasters, <emphasis>we think it should be
an industry with, you know, five or seven big players who can pay a
-high rate and it's a stable, predictable market." (Emphasis added.)
+high rate and it's a stable, predictable market</emphasis>.</quote> (Emphasis
+added.)
</para>
</blockquote>
+<indexterm startref='idxalbenalex2' class='endofrange'/>
+<indexterm startref='idxrecordingindustryassociationofamericariaaoninternetradiofees2' class='endofrange'/>
+<indexterm startref='idxartistsrecordingindustrypaymentsto4' class='endofrange'/>
+<indexterm startref='idxrecordingindustryartistremunerationin4' class='endofrange'/>
<para>
Translation: The aim is to use the law to eliminate competition, so
that this platform of potentially immense competition, which would
practically no one, on either the right or the left, who is doing anything
effective to prevent it.
</para>
-</sect2>
-<sect2 id="corruptingcitizens">
+<indexterm startref='idxcopyrightlawinnovationhamperedby' class='endofrange'/>
+<indexterm startref='idxinnovationindustryestablishmentopposedto2' class='endofrange'/>
+<indexterm startref='idxregulationasestablishmentprotectionism2' class='endofrange'/>
+<indexterm startref='idxinternetradioon' class='endofrange'/>
+<indexterm startref='idxradiooninternet' class='endofrange'/>
+<indexterm startref='idxrecordingindustryinternetradiohamperedby' class='endofrange'/>
+</section>
+<section id="corruptingcitizens">
<title>Corrupting Citizens</title>
<para>
Overregulation stifles creativity. It smothers innovation. It gives
<para>
The war that is being waged today is a war of prohibition. As with
every war of prohibition, it is targeted against the behavior of a very
-large number of citizens. According to The New York Times, 43 million
+large number of citizens. According to <citetitle>The New York Times</citetitle>, 43 million
Americans downloaded music in May 2002.<footnote><para>
-<!-- f15. --> Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
+<!-- f15. --> Mike Graziano and Lee Rainie, <quote>The Music Downloading Deluge,</quote> Pew
Internet and American Life Project (24 April 2001), available at
<ulink url="http://free-culture.cc/notes/">link #46</ulink>.
The Pew Internet and American Life Project reported that 37 million
housing and a seventy-year-old man who had no idea what file sharing
was.<footnote><para>
<!-- f16. -->
-Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
-Angeles Times, 10 September 2003, Business.
+Alex Pham, <quote>The Labels Strike Back: N.Y. Girl Settles RIAA Case,</quote> <citetitle>Los
+Angeles Times</citetitle>, 10 September 2003, Business.
</para></footnote>
As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
as it is, is that those with the power can use the law to quash any rights
they oppose.
</para>
+<indexterm><primary>alcohol prohibition</primary></indexterm>
<para>
Wars of prohibition are nothing new in America. This one is just
something more extreme than anything we've seen before. We
level. Americans were drinking just about as much, but now, a vast
number were criminals.<footnote><para>
<!-- f17. -->
-Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
-Prohibition," American Economic Review 81, no. 2 (1991): 242.
+Jeffrey A. Miron and Jeffrey Zwiebel, <quote>Alcohol Consumption During
+Prohibition,</quote> <citetitle>American Economic Review</citetitle> 81, no. 2 (1991): 242.
</para></footnote>
We have
<!-- PAGE BREAK 210 -->
tax system that a majority of cash businesses regularly
cheat.<footnote><para>
<!-- f19. -->
-See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
-Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+See James Andreoni, Brian Erard, and Jonathon Feinstein, <quote>Tax
+Compliance,</quote> <citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey of
compliance literature).
</para></footnote>
-We pride ourselves on our "free society," but an endless array of
+We pride ourselves on our <quote>free society,</quote> but an endless array of
ordinary behavior is regulated within our society. And as a result, a
huge proportion of Americans regularly violate at least some law.
</para>
+<indexterm><primary>law schools</primary></indexterm>
<para>
This state of affairs is not without consequence. It is a particularly
salient issue for teachers like me, whose job it is to teach law
-students about the importance of "ethics." As my colleague Charlie
+students about the importance of <quote>ethics.</quote> As my colleague Charlie
Nesson told a class at Stanford, each year law schools admit thousands
of students who have illegally downloaded music, illegally consumed
alcohol and sometimes drugs, illegally worked without paying taxes,
that will mean that your case is over. Generations of
Americans—more significantly in some parts of America than in
others, but still, everywhere in America today—can't live their
-lives both normally and legally, since "normally" entails a certain
+lives both normally and legally, since <quote>normally</quote> entails a certain
degree of illegality.
</para>
<para>
whether my students respect the law. And I do care if the rules of law
sow increasing disrespect because of the extreme of regulation they
impose. Twenty million Americans have come of age since the Internet
-introduced this different idea of "sharing." We need to be able to
-call these twenty million Americans "citizens," not "felons."
+introduced this different idea of <quote>sharing.</quote> We need to be able to
+call these twenty million Americans <quote>citizens,</quote> not <quote>felons.</quote>
</para>
<para>
When at least forty-three million citizens download content from the
used
<!-- PAGE BREAK 212 -->
-record store and buy jazz records to replace them. That "use" of the
+record store and buy jazz records to replace them. That <quote>use</quote> of the
recordings is free.
</para>
<para>
But as the MP3 craze has demonstrated, there is another use of
phonograph records that is effectively free. Because these recordings
-were made without copy-protection technologies, I am "free" to copy,
-or "rip," music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that "freedom" was a
-right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+were made without copy-protection technologies, I am <quote>free</quote> to copy,
+or <quote>rip,</quote> music from my records onto a computer hard disk. Indeed,
+Apple Corporation went so far as to suggest that <quote>freedom</quote> was a
+right: In a series of commercials, Apple endorsed the <quote>Rip, Mix, Burn</quote>
capacities of digital technologies.
</para>
-<indexterm><primary>Adromeda</primary></indexterm>
+<indexterm><primary>Andromeda</primary></indexterm>
+<indexterm id='idxcdsmix' class='startofrange'><primary>CDs</primary><secondary>mix technology and</secondary></indexterm>
<para>
-This "use" of my records is certainly valuable. I have begun a large
+This <quote>use</quote> of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
them in one archive. Then, using Apple's iTunes, or a wonderful
program called Andromeda, we can build different play lists of our
<!-- PAGE BREAK 213 -->
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
-plastic or were part of a massively complex "digital rights
-management" system.
+plastic or were part of a massively complex <quote>digital rights
+management</quote> system.
</para>
+<indexterm startref='idxcdsmix' class='endofrange'/>
<para>
If the only way to assure that artists get paid were the elimination
of the ability to freely move content, then these technologies to
Valenti is charming; but not so charming as to justify giving up a
tradition as deep and important as our tradition of free culture.
-There's one more aspect to this corruption that is particularly
-important to civil liberties, and follows directly from any war of
-prohibition. As Electronic Frontier Foundation attorney Fred von
-Lohmann describes, this is the "collateral damage" that "arises
-whenever you turn a very large percentage of the population into
-criminals." This is the collateral damage to civil liberties
-generally.
+</para>
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
+<indexterm id='idxisps' class='startofrange'><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
+<para>
+<emphasis role='strong'>There's one more</emphasis> aspect to this
+corruption that is particularly important to civil liberties, and
+follows directly from any war of prohibition. As Electronic Frontier
+Foundation attorney Fred von Lohmann describes, this is the
+<quote>collateral damage</quote> that <quote>arises whenever you turn
+a very large percentage of the population into criminals.</quote> This
+is the collateral damage to civil liberties generally.
</para>
+<indexterm><primary>von Lohmann, Fred</primary></indexterm>
<para>
-"If you can treat someone as a putative lawbreaker," von Lohmann
+<quote>If you can treat someone as a putative lawbreaker,</quote> von Lohmann
explains,
</para>
<blockquote>
<para>
then all of a sudden a lot of basic civil liberty protections
-evaporate to one degree or another. . . . If you're a copyright
+evaporate to one degree or another. … If you're a copyright
infringer, how can you hope to have any privacy rights? If you're a
copyright infringer, how can you hope to be secure against seizures of
your computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh, well,
-but that person's a criminal, a lawbreaker." Well, what this campaign
+access? … Our sensibilities change as soon as we think, <quote>Oh, well,
+but that person's a criminal, a lawbreaker.</quote> Well, what this campaign
against file sharing has done is turn a remarkable percentage of the
-American Internet-using population into "lawbreakers."
+American Internet-using population into <quote>lawbreakers.</quote>
</para>
</blockquote>
<para>
the RIAA from suing a number of these families, just as they had sued
Jesse Jordan.<footnote><para>
<!-- f20. -->
-See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
-Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
-Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+See Frank Ahrens, <quote>RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</quote>
+<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Chris Cobbs, <quote>Worried Parents
Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
File Swapping, Parents are Yanking Software from Home PCs to Avoid
-Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
-Graham, "Recording Industry Sues Parents," USA Today, 15 September
-2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
-Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
-Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
+Being Sued,</quote> <citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; Jefferson
+Graham, <quote>Recording Industry Sues Parents,</quote> <citetitle>USA Today</citetitle>, 15 September
+2003, 4D; John Schwartz, <quote>She Says She's No Music Pirate. No Snoop
+Fan, Either,</quote> <citetitle>New York Times</citetitle>, 25 September 2003, C1; Margo Varadi, <quote>Is
+Brianna a Criminal?</quote> <citetitle>Toronto Star</citetitle>, 18 September 2003, P7.
</para></footnote>
</para>
RIAA. A report from CNN late last summer described a strategy the
RIAA had adopted to track Napster users.<footnote><para>
<!-- f21. -->
-See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
-Some Methods Used," CNN.com, available at
+See <quote>Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used,</quote> CNN.com, available at
<ulink url="http://free-culture.cc/notes/">link #47</ulink>.
</para></footnote>
Using a sophisticated hashing algorithm, the RIAA took what is in
effect a fingerprint of every song in the Napster catalog. Any copy of
-one of those MP3s will have the same "fingerprint."
+one of those MP3s will have the same <quote>fingerprint.</quote>
</para>
<para>
So imagine the following not-implausible scenario: Imagine a
neither does your daughter, where these songs came from. But she
copies these songs onto her computer. She then takes her computer to
college and connects it to a college network, and if the college
-network is "cooperating" with the RIAA's espionage, and she hasn't
+network is <quote>cooperating</quote> with the RIAA's espionage, and she hasn't
properly protected her content from the network (do you know how to do
that yourself ?), then the RIAA will be able to identify your daughter
-as a "criminal." And under the rules that universities are beginning
+as a <quote>criminal.</quote> And under the rules that universities are beginning
to deploy,<footnote><para>
<!-- f22. -->
-See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
-Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+See Jeff Adler, <quote>Cambridge: On Campus, Pirates Are Not Penitent,</quote>
+<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank Ahrens, <quote>Four
Students Sued over Music Sites; Industry Group Targets File Sharing at
-Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
-"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
-Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Colleges,</quote> <citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth Armstrong,
+<quote>Students `Rip, Mix, Burn' at Their Own Risk,</quote> <citetitle>Christian Science
+Monitor</citetitle>, 2 September 2003, 20; Robert Becker and Angela Rozas, <quote>Music
Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
-Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
-Trains Antipiracy Guns on Universities," Internet News, 30 January
+Lawsuit Possible,</quote> <citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, <quote>RIAA
+Trains Antipiracy Guns on Universities,</quote> <citetitle>Internet News</citetitle>, 30 January
2003, available at <ulink url="http://free-culture.cc/notes/">link
-#48</ulink>; Benny Evangelista, "Download Warning 101: Freshman
+#48</ulink>; Benny Evangelista, <quote>Download Warning 101: Freshman
Orientation This Fall to Include Record Industry Warnings Against File
-Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
-Are Weapons at Universities," USA Today, 26 September 2000, 3D.
+Sharing,</quote> <citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; <quote>Raid, Letters
+Are Weapons at Universities,</quote> <citetitle>USA Today</citetitle>, 26 September 2000, 3D.
</para></footnote>
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
</para>
+<indexterm startref='idxisps' class='endofrange'/>
+<indexterm><primary>von Lohmann, Fred</primary></indexterm>
<para>
Now, of course, she'll have the right to defend herself. You can hire
a lawyer for her (at $300 per hour, if you're lucky), and she can
plead that she didn't know anything about the source of the songs or
that they came from Napster. And it may well be that the university
believes her. But the university might not believe her. It might treat
-this "contraband" as presumptive of guilt. And as any number of
+this <quote>contraband</quote> as presumptive of guilt. And as any number of
college students
<!-- PAGE BREAK 216 -->
have noted that the war against drugs has eroded all of our civil
liberties because it's treated so many Americans as criminals. Well, I
think it's fair to say that file sharing is an order of magnitude
-larger number of Americans than drug use. . . . If forty to sixty
+larger number of Americans than drug use. … If forty to sixty
million Americans have become lawbreakers, then we're really on a
slippery slope to lose a lot of civil liberties for all forty to sixty
million of them.
</para>
</blockquote>
<para>
-When forty to sixty million Americans are considered "criminals" under
+When forty to sixty million Americans are considered <quote>criminals</quote> under
the law, and when the law could achieve the same objective—
securing rights to authors—without these millions being
-considered "criminals," who is the villain? Americans or the law?
+considered <quote>criminals,</quote> who is the villain? Americans or the law?
Which is American, a constant war on our own people or a concerted
effort through our democracy to change our law?
</para>
<!-- PAGE BREAK 217 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-balances">
+</part>
+<part id="c-balances">
<title>BALANCES</title>
+<partintro>
<!-- PAGE BREAK 218 -->
<para>
-So here's the picture: You're standing at the side of the road. Your
-car is on fire. You are angry and upset because in part you helped start
-the fire. Now you don't know how to put it out. Next to you is a bucket,
-filled with gasoline. Obviously, gasoline won't put the fire out.
+<emphasis role='strong'>So here's</emphasis> the picture: You're
+standing at the side of the road. Your car is on fire. You are angry
+and upset because in part you helped start the fire. Now you don't
+know how to put it out. Next to you is a bucket, filled with
+gasoline. Obviously, gasoline won't put the fire out.
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
everything around.
</para>
<para>
-A war about copyright rages all around—and we're all focusing on
-the wrong thing. No doubt, current technologies threaten existing
-businesses. No doubt they may threaten artists. But technologies
-change. The industry and technologists have plenty of ways to use
-technology to protect themselves against the current threats of the
-Internet. This is a fire that if let alone would burn itself out.
+<emphasis role='strong'>A war</emphasis> about copyright rages all
+around—and we're all focusing on the wrong thing. No doubt,
+current technologies threaten existing businesses. No doubt they may
+threaten artists. But technologies change. The industry and
+technologists have plenty of ways to use technology to protect
+themselves against the current threats of the Internet. This is a fire
+that if let alone would burn itself out.
</para>
<para>
<!-- PAGE BREAK 219 -->
debate. We must understand these failures if we're to understand what
success will require.
</para>
+</partintro>
<!-- PAGE BREAK 220 -->
-<sect1 id="eldred">
+<chapter label="13" id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
+<indexterm id='idxeldrederic' class='startofrange'><primary>Eldred, Eric</primary></indexterm>
+<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
-least one did something about it. Eric Eldred, a retired computer
-programmer living in New Hampshire, decided to put Hawthorne on the
-Web. An electronic version, Eldred thought, with links to pictures and
-explanatory text, would make this nineteenth-century author's work
-come alive.
+<emphasis role='strong'>In 1995</emphasis>, a father was frustrated
+that his daughters didn't seem to like Hawthorne. No doubt there was
+more than one such father, but at least one did something about
+it. Eric Eldred, a retired computer programmer living in New
+Hampshire, decided to put Hawthorne on the Web. An electronic version,
+Eldred thought, with links to pictures and explanatory text, would
+make this nineteenth-century author's work come alive.
</para>
+<indexterm id='idxlibrariesofpublicdomainliterature' class='startofrange'><primary>libraries</primary><secondary>of public-domain literature</secondary></indexterm>
+<indexterm id='idxpublicdomainlibraryofworksderivedfrom' class='startofrange'><primary>public domain</primary><secondary>library of works derived from</secondary></indexterm>
<para>
It didn't work—at least for his daughters. They didn't find
Hawthorne any more interesting than before. But Eldred's experiment
a library of public domain works by scanning these works and making
them available for free.
</para>
+<indexterm id='idxdisneywalt5' class='startofrange'><primary>Disney, Walt</primary></indexterm>
+<indexterm><primary>Grimm fairy tales</primary></indexterm>
<para>
Eldred's library was not simply a copy of certain public domain
works, though even a copy would have been of great value to people
many others, into a form more accessible—technically
accessible—today.
</para>
+<indexterm><primary>Scarlet Letter, The (Hawthorne)</primary></indexterm>
<para>
Eldred's freedom to do this with Hawthorne's work grew from the same
-source as Disney's. Hawthorne's Scarlet Letter had passed into the
+source as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> had passed into the
public domain in 1907. It was free for anyone to take without the
permission of the Hawthorne estate or anyone else. Some, such as Dover
Press and Penguin Classics, take works from the public domain and
produce printed editions, which they sell in bookstores across the
country. Others, such as Disney, take these stories and turn them into
-animated cartoons, sometimes successfully (Cinderella), sometimes not
-(The Hunchback of Notre Dame, Treasure Planet). These are all
+animated cartoons, sometimes successfully (<citetitle>Cinderella</citetitle>), sometimes not
+(<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'/>
+<indexterm startref='idxdisneywalt5' class='endofrange'/>
<para>
The Internet created the possibility of noncommercial publications of
public domain works. Eldred's is just one example. There are literally
thousands of others. Hundreds of thousands from across the world have
discovered this platform of expression and now use it to share works
that are, by law, free for the taking. This has produced what we might
-call the "noncommercial publishing industry," which before the
+call the <quote>noncommercial publishing industry,</quote> which before the
Internet was limited to people with large egos or with political or
social causes. But with the Internet, it includes a wide range of
individuals and groups dedicated to spreading culture
generally.<footnote><para>
<!-- f1. -->
+<indexterm><primary>pornography</primary></indexterm>
There's a parallel here with pornography that is a bit hard to
describe, but it's a strong one. One phenomenon that the Internet
created was a world of noncommercial pornographers—people who
at least as important to protect the Eldreds of the world as to
protect noncommercial pornographers.</para></footnote>
</para>
+<indexterm id='idxcongressuscopyrighttermsextendedby2' class='startofrange'><primary>Congress, U.S.</primary><secondary>copyright terms extended by</secondary></indexterm>
+<indexterm id='idxcopyrightdurationof6' class='startofrange'><primary>copyright</primary><secondary>duration of</secondary></indexterm>
+<indexterm id='idxcopyrightlawtermextensionsin2' class='startofrange'><primary>copyright law</primary><secondary>term extensions in</secondary></indexterm>
+<indexterm><primary>Frost, Robert</primary></indexterm>
+<indexterm><primary>New Hampshire (Frost)</primary></indexterm>
+<indexterm><primary>patents</primary><secondary>in public domain</secondary></indexterm>
+<indexterm id='idxpatentsfuturepatentsvsfuturecopyrightsin' class='startofrange'><primary>patents</primary><secondary>future patents vs. future copyrights in</secondary></indexterm>
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
-collection of poems New Hampshire was slated to pass into the public
-domain. Eldred wanted to post that collection in his free public
-library. But Congress got in the way. As I described in chapter 10,
-in 1998, for the eleventh time in forty years, Congress extended the
-terms of existing copyrights—this time by twenty years. Eldred
-would not be free to add any works more recent than 1923 to his
-collection until 2019. Indeed, no copyrighted work would pass into
-the public domain until that year (and not even then, if Congress
-extends the term again). By contrast, in the same period, more than 1
-million patents will pass into the public domain.
-</para>
+collection of poems <citetitle>New Hampshire</citetitle> was slated to
+pass into the public domain. Eldred wanted to post that collection in
+his free public library. But Congress got in the way. As I described
+in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, in 1998, for the eleventh time in forty years,
+Congress extended the terms of existing copyrights—this time by
+twenty years. Eldred would not be free to add any works more recent
+than 1923 to his collection until 2019. Indeed, no copyrighted work
+would pass into the public domain until that year (and not even then,
+if Congress extends the term again). By contrast, in the same period,
+more than 1 million patents will pass into the public domain.
+</para>
+<indexterm startref='idxlibrariesofpublicdomainliterature' class='endofrange'/>
+<indexterm startref='idxpublicdomainlibraryofworksderivedfrom' class='endofrange'/>
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
+<indexterm id='idxcopyrightinperpetuity4' class='startofrange'><primary>copyright</primary><secondary>in perpetuity</secondary></indexterm>
+<indexterm id='idxsonnybonocopyrighttermextensionactctea2' class='startofrange'><primary>Sonny Bono Copyright Term Extension Act (CTEA) (1998)</primary></indexterm>
<para>
<!-- PAGE BREAK 222 -->
This was the Sonny Bono Copyright Term Extension Act
(CTEA), enacted in memory of the congressman and former musician
Sonny Bono, who, his widow, Mary Bono, says, believed that
-
"copyrights should be forever."<footnote><para>
+
<quote>copyrights should be forever.</quote><footnote><para>
<!-- f2. -->
-The full text is: "Sonny [Bono] wanted the term of copyright
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
+The full text is: <quote>Sonny [Bono] wanted the term of copyright
protection to last forever. I am informed by staff that such a change
would violate the Constitution. I invite all of you to work with me to
strengthen our copyright laws in all of the ways available to us. As
you know, there is also Jack Valenti's proposal for a term to last
forever less one day. Perhaps the Committee may look at that next
-Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
+Congress,</quote> 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
</para></footnote>
-
</para>
+<indexterm startref='idxpatentsfuturepatentsvsfuturecopyrightsin' class='endofrange'/>
+<indexterm><primary>copyright law</primary><secondary>felony punishment for infringement of</secondary></indexterm>
+<indexterm><primary>NET (No Electronic Theft) Act (1998)</primary></indexterm>
+<indexterm><primary>No Electronic Theft (NET) Act (1998)</primary></indexterm>
+<indexterm><primary>peer-to-peer (p2p) file sharing</primary><secondary>felony punishments for</secondary></indexterm>
<para>
Eldred decided to fight this law. He first resolved to fight it through
civil disobedience. In a series of interviews, Eldred announced that he
complained. This was a dangerous strategy for a disabled programmer
to undertake.
</para>
+<indexterm startref='idxsonnybonocopyrighttermextensionactctea2' class='endofrange'/>
+<indexterm id='idxcongressusconstitutionalpowersof' class='startofrange'><primary>Congress, U.S.</primary><secondary>constitutional powers of</secondary></indexterm>
+<indexterm id='idxconstitutionusprogressclauseof2' class='startofrange'><primary>Constitution, U.S.</primary><secondary>Progress Clause of</secondary></indexterm>
+<indexterm id='idxprogressclause2' class='startofrange'><primary>Progress Clause</primary></indexterm>
+<indexterm id='idxlessiglawrenceeldredcaseinvolvementof' class='startofrange'><primary>Lessig, Lawrence</primary><secondary>Eldred case involvement of</secondary></indexterm>
<para>
It was here that I became involved in Eldred's battle. I was a
constitutional
</para>
<blockquote>
<para>
-Congress has the power to promote the Progress of Science . . .
-by securing for limited Times to Authors . . . exclusive Right to
-their . . . Writings. . . .
+Congress has the power to promote the Progress of Science …
+by securing for limited Times to Authors … exclusive Right to
+their … Writings. …
</para>
</blockquote>
+<indexterm startref='idxeldrederic' class='endofrange'/>
<para>
As I've described, this clause is unique within the power-granting
clause of Article I, section 8 of our Constitution. Every other clause
granting power to Congress simply says Congress has the power to do
-something—for example, to regulate "commerce among the several
-states" or "declare War." But here, the "something" is something quite
-specific—to "promote . . . Progress"—through means that
-are also specific— by "securing" "exclusive Rights" (i.e.,
-copyrights) "for limited Times."
-</para>
+something—for example, to regulate <quote>commerce among the several
+states</quote> or <quote>declare War.</quote> But here, the <quote>something</quote> is something quite
+specific—to <quote>promote … Progress</quote>—through means that
+are also specific— by <quote>securing</quote> <quote>exclusive Rights</quote> (i.e.,
+copyrights) <quote>for limited Times.</quote>
+</para>
+<indexterm startref='idxconstitutionusprogressclauseof2' class='endofrange'/>
+<indexterm startref='idxprogressclause2' class='endofrange'/>
+<indexterm startref='idxlessiglawrenceeldredcaseinvolvementof' class='endofrange'/>
+<indexterm><primary>Jaszi, Peter</primary></indexterm>
<para>
In the past forty years, Congress has gotten into the practice of
extending existing terms of copyright protection. What puzzled me
about this was, if Congress has the power to extend existing terms,
-then the Constitution's requirement that terms be "limited" will have
+then the Constitution's requirement that terms be <quote>limited</quote> will have
<!-- PAGE BREAK 223 -->
no practical effect. If every time a copyright is about to expire,
Congress has the power to extend its term, then Congress can achieve
-what the Constitution plainly forbids—perpetual terms "on the
-installment plan," as Professor Peter Jaszi so nicely put it.
-<indexterm><primary>Jaszi, Peter</primary></indexterm>
+what the Constitution plainly forbids—perpetual terms <quote>on the
+installment plan,</quote> as Professor Peter Jaszi so nicely put it.
</para>
+<indexterm startref='idxcopyrightinperpetuity4' class='endofrange'/>
+<indexterm startref='idxcongressusconstitutionalpowersof' class='endofrange'/>
+<indexterm><primary>Lessig, Lawrence</primary><secondary>Eldred case involvement of</secondary></indexterm>
<para>
As an academic, my first response was to hit the books. I remember
sitting late at the office, scouring on-line databases for any serious
</para>
<para>
For this is the core of the corruption in our present system of
-government. "Corruption" not in the sense that representatives are
-bribed. Rather, "corruption" in the sense that the system induces the
+government. <quote>Corruption</quote> not in the sense that representatives are
+bribed. Rather, <quote>corruption</quote> in the sense that the system induces the
beneficiaries of Congress's acts to raise and give money to Congress
to induce it to act. There's only so much time; there's only so much
Congress can do. Why not limit its actions to those things it must
report:
</para>
<para>
-"Next year," the adviser announces, "our copyrights in works A, B,
+<quote>Next year,</quote> the adviser announces, <quote>our copyrights in works A, B,
<!-- PAGE BREAK 224 -->
and C will expire. That means that after next year, we will no longer be
receiving the annual royalty check of $100,000 from the publishers of
-those works.
+those works.</quote>
</para>
<para>
-"There's a proposal in Congress, however," she continues, "that
+<quote>There's a proposal in Congress, however,</quote> she continues, <quote>that
could change this. A few congressmen are floating a bill to extend the
terms of copyright by twenty years. That bill would be extraordinarily
-valuable to us. So we should hope this bill passes."
+valuable to us. So we should hope this bill passes.</quote>
</para>
<para>
-"Hope?" a fellow board member says. "Can't we be doing something
-about it?"
+<quote>Hope?</quote> a fellow board member says. <quote>Can't we be doing something
+about it?</quote>
</para>
<para>
-"Well, obviously, yes," the adviser responds. "We could contribute
+<quote>Well, obviously, yes,</quote> the adviser responds. <quote>We could contribute
to the campaigns of a number of representatives to try to assure that
-they support the bill."
+they support the bill.</quote>
</para>
<para>
You hate politics. You hate contributing to campaigns. So you want
-to know whether this disgusting practice is worth it. "How much
-would we get if this extension were passed?" you ask the adviser. "How
-much is it worth?"
+to know whether this disgusting practice is worth it. <quote>How much
+would we get if this extension were passed?</quote> you ask the adviser. <quote>How
+much is it worth?</quote>
</para>
<para>
-"Well," the adviser says, "if you're confident that you will continue
+<quote>Well,</quote> the adviser says, <quote>if you're confident that you will continue
to get at least $100,000 a year from these copyrights, and you use the
`discount rate' that we use to evaluate estate investments (6 percent),
-then this law would be worth $1,146,000 to the estate."
+then this law would be worth $1,146,000 to the estate.</quote>
</para>
<para>
You're a bit shocked by the number, but you quickly come to the
correct conclusion:
</para>
<para>
-"So you're saying it would be worth it for us to pay more than
+<quote>So you're saying it would be worth it for us to pay more than
$1,000,000 in campaign contributions if we were confident those
contributions
-would assure that the bill was passed?"
+would assure that the bill was passed?</quote>
</para>
<para>
-"Absolutely," the adviser responds. "It is worth it to you to
+<quote>Absolutely,</quote> the adviser responds. <quote>It is worth it to you to
contribute
up to the `present value' of the income you expect from these
-copyrights. Which for us means over $1,000,000."
+copyrights. Which for us means over $1,000,000.</quote>
</para>
<para>
You quickly get the point—you as the member of the board and, I
the copyright term extended.
</para>
<para>
-Thus a congressional perpetual motion machine: So long as
- legislation
+Thus a congressional perpetual motion machine: So long as legislation
can be bought (albeit indirectly), there will be all the incentive in
the world to buy further extensions of copyright.
</para>
<para>
In the lobbying that led to the passage of the Sonny Bono
Copyright
-Term Extension Act, this "theory" about incentives was proved
+Term Extension Act, this <quote>theory</quote> about incentives was proved
real. Ten of the thirteen original sponsors of the act in the House
received the maximum contribution from Disney's political action
committee; in the Senate, eight of the twelve sponsors received
contributions.<footnote><para>
-<!-- f3. --> Associated Press, "Disney Lobbying for Copyright Extension No Mickey
-Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,"
-Chicago Tribune, 17 October 1998, 22.
+<!-- f3. --> Associated Press, <quote>Disney Lobbying for Copyright Extension No Mickey
+Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</quote>
+<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22.
</para></footnote>
The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
than $200,000 in campaign contributions.<footnote><para>
-<!-- f4. --> See Nick Brown, "Fair Use No More?: Copyright in the Information
-Age," available at
+<!-- f4. --> See Nick Brown, <quote>Fair Use No More?: Copyright in the Information
+Age,</quote> available at
<ulink url="http://free-culture.cc/notes/">link #49</ulink>.
</para></footnote>
Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the
cycle.<footnote><para>
-<!-- f5. --> Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
- Congressional
-Quarterly This Week, 8 August 1990, available at
+<!-- f5. -->
+Alan K. Ota, <quote>Disney in Washington: The Mouse That Roars,</quote>
+<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, available at
<ulink url="http://free-culture.cc/notes/">link #50</ulink>.
</para></footnote>
</para>
<para>
-Constitutional law is not oblivious to the obvious. Or at least,
-it need not be. So when I was considering Eldred's complaint, this
- reality
-about the never-ending incentives to increase the copyright term
-was central to my thinking. In my view, a pragmatic court committed
-to interpreting and applying the Constitution of our framers would see
-that if Congress has the power to extend existing terms, then there
-would be no effective constitutional requirement that terms be
- "limited."
-If they could extend it once, they would extend it again and again
-and again.
+<emphasis role='strong'>Constitutional law</emphasis> is not oblivious
+to the obvious. Or at least, it need not be. So when I was considering
+Eldred's complaint, this reality about the never-ending incentives to
+increase the copyright term was central to my thinking. In my view, a
+pragmatic court committed to interpreting and applying the
+Constitution of our framers would see that if Congress has the power
+to extend existing terms, then there would be no effective
+constitutional requirement that terms be <quote>limited.</quote> If
+they could extend it once, they would extend it again and again and
+again.
</para>
+<indexterm startref='idxcongressuscopyrighttermsextendedby2' class='endofrange'/>
+<indexterm startref='idxcopyrightdurationof6' class='endofrange'/>
+<indexterm startref='idxcopyrightlawtermextensionsin2' class='endofrange'/>
<para>
-It was also my judgment that this Supreme Court would not allow
-Congress to extend existing terms. As anyone close to the Supreme
-Court's work knows, this Court has increasingly restricted the power
-of Congress when it has viewed Congress's actions as exceeding the
-power granted to it by the Constitution. Among constitutional
- scholars,
-the most famous example of this trend was the Supreme Court's
+It was also my judgment that <emphasis>this</emphasis> Supreme Court
+would not allow Congress to extend existing terms. As anyone close to
+the Supreme Court's work knows, this Court has increasingly restricted
+the power of Congress when it has viewed Congress's actions as
+exceeding the power granted to it by the Constitution. Among
+constitutional scholars, the most famous example of this trend was the
+Supreme Court's
<!-- PAGE BREAK 226 -->
decision in 1995 to strike down a law that banned the possession of
<para>
Since 1937, the Supreme Court had interpreted Congress's granted
powers very broadly; so, while the Constitution grants Congress the
-power to regulate only "commerce among the several states" (aka
- "interstate
-commerce"), the Supreme Court had interpreted that power to
+power to regulate only <quote>commerce among the several states</quote> (aka
+ <quote>interstate
+commerce</quote>), the Supreme Court had interpreted that power to
include the power to regulate any activity that merely affected
interstate
commerce.
</para>
<para>
-As the economy grew, this standard increasingly meant that there
-was no limit to Congress's power to regulate, since just about every
- activity,
-when considered on a national scale, affects interstate commerce.
-A Constitution designed to limit Congress's power was instead
- interpreted
-to impose no limit.
+As the economy grew, this standard increasingly meant that there was
+no limit to Congress's power to regulate, since just about every
+activity, when considered on a national scale, affects interstate
+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 United States v. Lopez. The government had argued
-that possessing guns near schools affected interstate commerce. Guns
-near schools increase crime, crime lowers property values, and so on. In
-the oral argument, the Chief Justice asked the government whether
-there was any activity that would not affect interstate commerce under
-the reasoning the government advanced. The government said there
-was not; if Congress says an activity affects interstate commerce, then
-that activity affects interstate commerce. The Supreme Court, the
- government
-said, was not in the position to second-guess Congress.
+The Supreme Court, under Chief Justice Rehnquist's command, changed
+that in <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The government had
+argued that possessing guns near schools affected interstate
+commerce. Guns near schools increase crime, crime lowers property
+values, and so on. In the oral argument, the Chief Justice asked the
+government whether there was any activity that would not affect
+interstate commerce under the reasoning the government advanced. The
+government said there was not; if Congress says an activity affects
+interstate commerce, then that activity affects interstate
+commerce. The Supreme Court, the government said, was not in the
+position to second-guess Congress.
</para>
<para>
-"We pause to consider the implications of the government's
- arguments,"
+<quote>We pause to consider the implications of the government's arguments,</quote>
the Chief Justice wrote.<footnote><para>
-<!-- f6. --> United States v. Lopez, 514 U.S. 549, 564 (1995).
+<!-- f6. --> <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 U.S. 549, 564 (1995).
</para></footnote>
- If anything Congress says is interstate
-commerce must therefore be considered interstate commerce, then
-there would be no limit to Congress's power. The decision in Lopez was
-reaffirmed five years later in United States v. Morrison.<footnote><para>
-<!-- f7. --> United States v. Morrison, 529 U.S. 598 (2000).
+If anything Congress says is interstate commerce must therefore be
+considered interstate commerce, then there would be no limit to
+Congress's power. The decision in <citetitle>Lopez</citetitle> was reaffirmed five years
+later in <citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>.<footnote><para>
+<!-- f7. -->
+<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 U.S. 598 (2000).
</para></footnote>
-
</para>
<para>
If a principle were at work here, then it should apply to the Progress
Clause as much as the Commerce Clause.<footnote><para>
-<!-- f8. --> If it is a principle about enumerated powers, then the principle carries
-from one enumerated power to another. The animating point in the
- context
-of the Commerce Clause was that the interpretation offered by the
-government would allow the government unending power to regulate
-commerce—the limitation to interstate commerce notwithstanding. The
-same point is true in the context of the Copyright Clause. Here, too, the
-government's interpretation would allow the government unending power
-to regulate copyrights—the limitation to "limited times" notwithstanding.
-</para></footnote>
- And if it is applied to the
-Progress Clause, the principle should yield the conclusion that
- Congress
+<!-- f8. -->
+If it is a principle about enumerated powers, then the principle
+carries from one enumerated power to another. The animating point in
+the context of the Commerce Clause was that the interpretation offered
+by the government would allow the government unending power to
+regulate commerce—the limitation to interstate commerce
+notwithstanding. The same point is true in the context of the
+Copyright Clause. Here, too, the government's interpretation would
+allow the government unending power to regulate copyrights—the
+limitation to <quote>limited times</quote> notwithstanding.
+</para></footnote>
+And if it is applied to the Progress Clause, the principle should
+yield the conclusion that Congress
<!-- PAGE BREAK 227 -->
-can't extend an existing term. If Congress could extend an
- existing
-term, then there would be no "stopping point" to Congress's power
-over terms, though the Constitution expressly states that there is such
-a limit. Thus, the same principle applied to the power to grant
- copyrights
-should entail that Congress is not allowed to extend the term of
-existing copyrights.
-</para>
-<para>
-If, that is, the principle announced in Lopez stood for a principle.
-Many believed the decision in Lopez stood for politics—a conservative
-Supreme Court, which believed in states' rights, using its power over
-Congress to advance its own personal political preferences. But I
- rejected
-that view of the Supreme Court's decision. Indeed, shortly after
-the decision, I wrote an article demonstrating the "fidelity" in such an
-interpretation of the Constitution. The idea that the Supreme Court
-decides cases based upon its politics struck me as extraordinarily
- boring.
-I was not going to devote my life to teaching constitutional law if
-these nine Justices were going to be petty politicians.
-</para>
-<para>
-Now let's pause for a moment to make sure we understand what
-the argument in Eldred was not about. By insisting on the
- Constitution's
-limits to copyright, obviously Eldred was not endorsing piracy.
-Indeed, in an obvious sense, he was fighting a kind of piracy—piracy of
-the public domain. When Robert Frost wrote his work and when Walt
-Disney created Mickey Mouse, the maximum copyright term was just
-fifty-six years. Because of interim changes, Frost and Disney had
- already
-enjoyed a seventy-five-year monopoly for their work. They had
-gotten the benefit of the bargain that the Constitution envisions: In
-exchange for a monopoly protected for fifty-six years, they created new
-work. But now these entities were using their power—expressed
-through the power of lobbyists' money—to get another twenty-year
-dollop of monopoly. That twenty-year dollop would be taken from the
-public domain. Eric Eldred was fighting a piracy that affects us all.
-</para>
+can't extend an existing term. If Congress could extend an existing
+term, then there would be no <quote>stopping point</quote> to Congress's power over
+terms, though the Constitution expressly states that there is such a
+limit. Thus, the same principle applied to the power to grant
+copyrights should entail that Congress is not allowed to extend the
+term of existing copyrights.
+</para>
+<para>
+<emphasis>If</emphasis>, that is, the principle announced in <citetitle>Lopez</citetitle>
+stood for a principle. Many believed the decision in <citetitle>Lopez</citetitle> stood for
+politics—a conservative Supreme Court, which believed in states'
+rights, using its power over Congress to advance its own personal
+political preferences. But I rejected that view of the Supreme Court's
+decision. Indeed, shortly after the decision, I wrote an article
+demonstrating the <quote>fidelity</quote> in such an interpretation of the
+Constitution. The idea that the Supreme Court decides cases based upon
+its politics struck me as extraordinarily boring. I was not going to
+devote my life to teaching constitutional law if these nine Justices
+were going to be petty politicians.
+</para>
+<indexterm><primary>Constitution, U.S.</primary><secondary>copyright purpose established in</secondary></indexterm>
+<indexterm><primary>copyright</primary><secondary>constitutional purpose of</secondary></indexterm>
+<indexterm><primary>copyright</primary><secondary>duration of</secondary></indexterm>
+<indexterm><primary>Disney, Walt</primary></indexterm>
+<para>
+<emphasis role='strong'>Now let's pause</emphasis> for a moment to
+make sure we understand what the argument in
+<citetitle>Eldred</citetitle> was not about. By insisting on the
+Constitution's limits to copyright, obviously Eldred was not endorsing
+piracy. Indeed, in an obvious sense, he was fighting a kind of
+piracy—piracy of the public domain. When Robert Frost wrote his
+work and when Walt Disney created Mickey Mouse, the maximum copyright
+term was just fifty-six years. Because of interim changes, Frost and
+Disney had already enjoyed a seventy-five-year monopoly for their
+work. They had gotten the benefit of the bargain that the Constitution
+envisions: In exchange for a monopoly protected for fifty-six years,
+they created new work. But now these entities were using their
+power—expressed through the power of lobbyists' money—to
+get another twenty-year dollop of monopoly. That twenty-year dollop
+would be taken from the public domain. Eric Eldred was fighting a
+piracy that affects us all.
+</para>
+<indexterm><primary>Nashville Songwriters Association</primary></indexterm>
<para>
Some people view the public domain with contempt. In their brief
<!-- PAGE BREAK 228 -->
before the Supreme Court, the Nashville Songwriters Association
-wrote that the public domain is nothing more than "legal piracy."<footnote><para>
-<!-- f9. --> Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S.
-186 (2003) (No. 01-618), n.10, available at
-<ulink url="http://free-culture.cc/notes/">link #51</ulink>.
+wrote that the public domain is nothing more than <quote>legal piracy.</quote><footnote><para>
+<!-- f9. -->
+Brief of the Nashville Songwriters Association, <citetitle>Eldred</citetitle>
+v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618), n.10, available
+at <ulink url="http://free-culture.cc/notes/">link #51</ulink>.
</para></footnote>
- But
-it is not piracy when the law allows it; and in our constitutional system,
-our law requires it. Some may not like the Constitution's requirements,
-but that doesn't make the Constitution a pirate's charter.
+But it is not piracy when the law allows it; and in our constitutional
+system, our law requires it. Some may not like the Constitution's
+requirements, but that doesn't make the Constitution a pirate's
+charter.
</para>
<para>
As we've seen, our constitutional system requires limits on
bought to extend them again.
</para>
<para>
-It is valuable copyrights that are responsible for terms being
- extended.
-Mickey Mouse and "Rhapsody in Blue." These works are too
-valuable for copyright owners to ignore. But the real harm to our
- society
-from copyright extensions is not that Mickey Mouse remains
- Disney's.
-Forget Mickey Mouse. Forget Robert Frost. Forget all the works
-from the 1920s and 1930s that have continuing commercial value. The
-real harm of term extension comes not from these famous works. The
-real harm is to the works that are not famous, not commercially
- exploited,
+<emphasis role='strong'>It is valuable</emphasis> copyrights that are
+responsible for terms being extended. Mickey Mouse and
+<quote>Rhapsody in Blue.</quote> These works are too valuable for
+copyright owners to ignore. But the real harm to our society from
+copyright extensions is not that Mickey Mouse remains Disney's.
+Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
+the 1920s and 1930s that have continuing commercial value. The real
+harm of term extension comes not from these famous works. The real
+harm is to the works that are not famous, not commercially exploited,
and no longer available as a result.
</para>
<para>
<!-- f10. --> The figure of 2 percent is an extrapolation from the study by the
Congressional
Research Service, in light of the estimated renewal ranges. See Brief
-of Petitioners, Eldred v. Ashcroft, 7, available at
+of Petitioners, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 7, available at
<ulink url="http://free-culture.cc/notes/">link #52</ulink>.
</para></footnote>
remaining
9,873. What would you have to do?
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
Well, first, you'd have to determine which of the 9,873 books were
still under copyright. That requires going to a library (these data are
not necessarily the current owner. And we're just talking about 1930!
</para>
<para>
-"But there isn't a list of who owns property generally," the
- apologists
-for the system respond. "Why should there be a list of copyright
-owners?"
+<quote>But there isn't a list of who owns property generally,</quote> the
+apologists for the system respond. <quote>Why should there be a list of
+copyright owners?</quote>
</para>
<para>
-Well, actually, if you think about it, there are plenty of lists of who
-owns what property. Think about deeds on houses, or titles to cars.
-And where there isn't a list, the code of real space is pretty good at
- suggesting
-who the owner of a bit of property is. (A swing set in your
-backyard is probably yours.) So formally or informally, we have a pretty
-good way to know who owns what tangible property.
+Well, actually, if you think about it, there <emphasis>are</emphasis>
+plenty of lists of who owns what property. Think about deeds on
+houses, or titles to cars. And where there isn't a list, the code of
+real space is pretty good at suggesting who the owner of a bit of
+property is. (A swing set in your backyard is probably yours.) So
+formally or informally, we have a pretty good way to know who owns
+what tangible property.
</para>
<para>
So: You walk down a street and see a house. You can know who
consequence
for other creative works is much more dire.
</para>
-<indexterm><primary>Agee, Michael</primary></indexterm>
+<indexterm id='idxageemichael' class='startofrange'><primary>Agee, Michael</primary></indexterm>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
+<indexterm><primary>Laurel and Hardy Films</primary></indexterm>
+<indexterm><primary>Lucky Dog, The</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
direct beneficiary of the Bono Act. The Laurel and Hardy films were
-made between 1921 and 1951. Only one of these films, The Lucky Dog, is
+made between 1921 and 1951. Only one of these films, <citetitle>The Lucky Dog</citetitle>, is
currently out of copyright. But for the CTEA, films made after 1923
would have begun entering the public domain. Because Agee controls the
exclusive rights for these popular films, he makes a great deal of
-money. According to one estimate, "Roach has sold about 60,000
+money. According to one estimate, <quote>Roach has sold about 60,000
videocassettes and 50,000 DVDs of the duo's silent
+films.
</quote><footnote><para>
<!-- f11. -->
-See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
-Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+See David G. Savage, <quote>High Court Scene of Showdown on Copyright Law,</quote>
+<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, <quote>Classic Movies,
Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
-Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
+Down Copyright Extension,</quote> <citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002.
</para></footnote>
-
</para>
<para>
Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
high; digital technology has lowered these costs substantially. While
it cost more than $10,000 to restore a ninety-minute black-and-white
film in 1993, it can now cost as little as $100 to digitize one hour of
-mm film.<footnote><para>
-<!-- f12. --> Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
- Supporting
-the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-
-618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by
-the Internet Archive, Eldred v. Ashcroft, available at
+8 mm film.<footnote><para>
+<!-- f12. -->
+Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
+Supporting the Petitoners, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537
+U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
+filed on behalf of Petitioners by the Internet Archive, <citetitle>Eldred</citetitle>
+v. <citetitle>Ashcroft</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #53</ulink>.
</para></footnote>
locate the copyright owner.
</para>
<para>
-Or more accurately, owners. As we've seen, there isn't only a single
-copyright associated with a film; there are many. There isn't a single
-person whom you can contact about those copyrights; there are as
-many as can hold the rights, which turns out to be an extremely large
-number. Thus the costs of clearing the rights to these films is
- exceptionally
-high.
+Or more accurately, <emphasis>owners</emphasis>. As we've seen, there
+isn't only a single copyright associated with a film; there are
+many. There isn't a single person whom you can contact about those
+copyrights; there are as many as can hold the rights, which turns out
+to be an extremely large number. Thus the costs of clearing the rights
+to these films is exceptionally high.
</para>
<para>
-"But can't you just restore the film, distribute it, and then pay the
-copyright owner when she shows up?" Sure, if you want to commit a
+<quote>But can't you just restore the film, distribute it, and then pay the
+copyright owner when she shows up?</quote> Sure, if you want to commit a
felony. And even if you're not worried about committing a felony, when
she does show up, she'll have the right to sue you for all the profits you
have made. So, if you're successful, you can be fairly confident you'll be
films, Agee argued, the film will not be restored and distributed until
the copyright expires.
</para>
+<indexterm startref='idxageemichael' class='endofrange'/>
<para>
But by the time the copyright for these films expires, the film will
have expired. These films were produced on nitrate-based stock, and
than dust.
</para>
<para>
-Of all the creative work produced by humans anywhere, a tiny
-fraction has continuing commercial value. For that tiny fraction, the
-copyright is a crucially important legal device. For that tiny fraction,
-the copyright creates incentives to produce and distribute the
- creative
-work. For that tiny fraction, the copyright acts as an "engine of
-free expression."
+<emphasis role='strong'>Of all the</emphasis> creative work produced
+by humans anywhere, a tiny fraction has continuing commercial
+value. For that tiny fraction, the copyright is a crucially important
+legal device. For that tiny fraction, the copyright creates incentives
+to produce and distribute the creative work. For that tiny fraction,
+the copyright acts as an <quote>engine of free expression.</quote>
</para>
<para>
But even for that tiny fraction, the actual time during which the
<para>
Yet, for most of our history, they also did little harm. For most of
our history, when a work ended its commercial life, there was no
-copyright-related use that would be inhibited by an exclusive right.
-When a book went out of print, you could not buy it from a publisher.
-But you could still buy it from a used book store, and when a used
-book store sells it, in America, at least, there is no need to pay the
-copyright owner anything. Thus, the ordinary use of a book after its
-commercial life ended was a use that was independent of copyright law.
+<emphasis>copyright-related use</emphasis> that would be inhibited by
+an exclusive right. When a book went out of print, you could not buy
+it from a publisher. But you could still buy it from a used book
+store, and when a used book store sells it, in America, at least,
+there is no need to pay the copyright owner anything. Thus, the
+ordinary use of a book after its commercial life ended was a use that
+was independent of copyright law.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
<para>
But this situation has now changed.
</para>
+<indexterm id='idxarchivesdigital2' class='startofrange'><primary>archives, digital</primary></indexterm>
<para>
One crucially important consequence of the emergence of digital
technologies is to enable the archive that Brewster Kahle dreams of.
Here is the core of the harm that comes from extending terms: Now that
technology enables us to rebuild the library of Alexandria, the law
gets in the way. And it doesn't get in the way for any useful
-copyright purpose, for the purpose of copyright is to enable the
-commercial market that spreads culture. No, we are talking about
-culture after it has lived its commercial life. In this context,
-copyright is serving no purpose at all related to the spread of
-knowledge. In this context, copyright is not an engine of free
-expression. Copyright is a brake.
+<emphasis>copyright</emphasis> purpose, for the purpose of copyright
+is to enable the commercial market that spreads culture. No, we are
+talking about culture after it has lived its commercial life. In this
+context, copyright is serving no purpose <emphasis>at all</emphasis>
+related to the spread of knowledge. In this context, copyright is not
+an engine of free expression. Copyright is a brake.
</para>
<para>
-You may well ask, "But if digital technologies lower the costs for
+You may well ask, <quote>But if digital technologies lower the costs for
Brewster Kahle, then they will lower the costs for Random House, too.
So won't Random House do as well as Brewster Kahle in spreading
-culture widely?"
+culture widely?</quote>
</para>
<para>
Maybe. Someday. But there is absolutely no evidence to suggest that
publishers would be as complete as libraries. If Barnes & Noble
offered to lend books from its stores for a low price, would that
eliminate the need for libraries? Only if you think that the only role
-of a library is to serve what "the market" would demand. But if you
+of a library is to serve what <quote>the market</quote> would demand. But if you
think the role of a library is bigger than this—if you think its
role is to archive culture, whether there's a demand for any
particular bit of that culture or not—then we can't count on the
commercial market to do our library work for us.
</para>
+<indexterm startref='idxarchivesdigital2' class='endofrange'/>
<para>
I would be the first to agree that it should do as much as it can: We
should rely upon the market as much as possible to spread and enable
<!-- PAGE BREAK 235 -->
freedom to fill the gaps. As one researcher calculated for American
culture, 94 percent of the films, books, and music produced between
-and 1946 is not commercially available. However much you love the
+1923 and 1946 is not commercially available. However much you love the
commercial market, if access is a value, then 6 percent is a failure
to provide that value.<footnote><para>
<!-- f13. -->
-Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+Jason Schultz, <quote>The Myth of the 1976 Copyright `Chaos' Theory,</quote> 20
December 2002, available at
<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
</para></footnote>
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
-district court in Washington, D.C., asking the court to declare the
-Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
-violated the Constitution's "limited Times" requirement, and (2) that
-extending terms by another twenty years violated the First Amendment.
+<emphasis role='strong'>In January 1999</emphasis>, we filed a lawsuit
+on Eric Eldred's behalf in federal district court in Washington, D.C.,
+asking the court to declare the Sonny Bono Copyright Term Extension
+Act unconstitutional. The two central claims that we made were (1)
+that extending existing terms violated the Constitution's
+<quote>limited Times</quote> requirement, and (2) that extending terms
+by another twenty years violated the First Amendment.
</para>
<para>
The district court dismissed our claims without even hearing an
</para>
<para>
Judge David Sentelle said the CTEA violated the requirement that
-copyrights be for "limited Times" only. His argument was as elegant as
+copyrights be for <quote>limited Times</quote> only. His argument was as elegant as
it was simple: If Congress can extend existing terms, then there is no
-"stopping point" to Congress's power under the Copyright Clause. The
+<quote>stopping point</quote> to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are "limited." Thus, Judge Sentelle argued, the court had
-to interpret the term "limited Times" to give it meaning. And the best
+terms that are <quote>limited.</quote> Thus, Judge Sentelle argued, the court had
+to interpret the term <quote>limited Times</quote> to give it meaning. And the best
interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
</para>
We asked the Court of Appeals for the D.C. Circuit as a whole to
hear the case. Cases are ordinarily heard in panels of three, except for
important cases or cases that raise issues specific to the circuit as a
-whole, where the court will sit "en banc" to hear the case.
+whole, where the court will sit <quote>en banc</quote> to hear the case.
</para>
+<indexterm><primary>Tatel, David</primary></indexterm>
<para>
The Court of Appeals rejected our request to hear the case en banc.
This time, Judge Sentelle was joined by the most liberal member of the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still
-astonishingly hard. If you know anything at all about this story, you
-know that we lost the appeal. And if you know something more than just
-the minimum, you probably think there was no way this case could have
-been won. After our defeat, I received literally thousands of missives
-by well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
-significant to me than the e-mail from my client, Eric Eldred.
+<emphasis role='strong'>It is over</emphasis> a year later as I write
+these words. It is still astonishingly hard. If you know anything at
+all about this story, you know that we lost the appeal. And if you
+know something more than just the minimum, you probably think there
+was no way this case could have been won. After our defeat, I received
+literally thousands of missives by well-wishers and supporters,
+thanking me for my work on behalf of this noble but doomed cause. And
+none from this pile was more significant to me than the e-mail from my
+client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
</para>
<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the very
-end. Our case had been supported from the very beginning by an
-extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
-moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
-heat
+<emphasis role='strong'>The mistake</emphasis> was made early, though
+it became obvious only at the very end. Our case had been supported
+from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
+and by the law firm he had moved to, Jones, Day, Reavis and
+Pogue. Jones Day took a great deal of heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
ignored this pressure (something that few law firms today would ever
Stewart was the first, but then Dan Bromberg and Don Ayer became
quite involved. Bromberg and Ayer in particular had a common view
about how this case would be won: We would only win, they repeatedly
-told me, if we could make the issue seem "important" to the Supreme
+told me, if we could make the issue seem <quote>important</quote> to the Supreme
Court. It had to seem as if dramatic harm were being done to free
-speech and free culture; otherwise, they would never vote against "the
-most powerful media companies in the world."
+speech and free culture; otherwise, they would never vote against <quote>the
+most powerful media companies in the world.</quote>
</para>
<para>
I hate this view of the law. Of course I thought the Sonny Bono Act
was a dramatic harm to free speech and free culture. Of course I still
think it is. But the idea that the Supreme Court decides the law based
on how important they believe the issues are is just wrong. It might be
-"right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be
-that way." As I believed that any faithful interpretation of what the
+<quote>right</quote> as in <quote>true,</quote> I thought, but it is <quote>wrong</quote> as in <quote>it just shouldn't be
+that way.</quote> As I believed that any faithful interpretation of what the
framers of our Constitution did would yield the conclusion that the
CTEA was unconstitutional, and as I believed that any faithful
interpretation
and in which I thought a response was appropriate. I was convinced
that the Court would not hear our arguments if it thought these were
just the arguments of a group of lefty loons. This Supreme Court was
-not about to launch into a new field of judicial review if it seemed that
-this field of review was simply the preference of a small political
- minority.
-Although my focus in the case was not to demonstrate how bad the
-Sonny Bono Act was but to demonstrate that it was unconstitutional,
-my hope was to make this argument against a background of briefs that
-covered the full range of political views. To show that this claim against
-the CTEA was grounded in law and not politics, then, we tried to
-gather the widest range of credible critics—credible not because they
+not about to launch into a new field of judicial review if it seemed
+that this field of review was simply the preference of a small
+political minority. Although my focus in the case was not to
+demonstrate how bad the Sonny Bono Act was but to demonstrate that it
+was unconstitutional, my hope was to make this argument against a
+background of briefs that covered the full range of political
+views. To show that this claim against the CTEA was grounded in
+<emphasis>law</emphasis> and not politics, then, we tried to gather
+the widest range of credible critics—credible not because they
were rich and famous, but because they, in the aggregate, demonstrated
that this law was unconstitutional regardless of one's politics.
</para>
+<indexterm><primary>Eagle Forum</primary></indexterm>
+<indexterm><primary>Schlafly, Phyllis</primary></indexterm>
<para>
The first step happened all by itself. Phyllis Schlafly's
organization, Eagle Forum, had been an opponent of the CTEA from the
very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
Congress. In November 1998, she wrote a stinging editorial attacking
the Republican Congress for allowing the law to pass. As she wrote,
-"Do you sometimes wonder why bills that create a financial windfall to
+<quote>Do you sometimes wonder why bills that create a financial windfall to
narrow special interests slide easily through the intricate
legislative process, while bills that benefit the general public seem
-to get bogged down?" The answer, as the editorial documented, was the
+to get bogged down?</quote> The answer, as the editorial documented, was the
power of money. Schlafly enumerated Disney's contributions to the key
players on the committees. It was money, not justice, that gave Mickey
Mouse twenty more years in Disney's control, Schlafly argued.
-<indexterm><primary>Eagle Forum</primary></indexterm>
-<indexterm><primary>Schlafly, Phyllis</primary></indexterm>
</para>
<para>
In the Court of Appeals, Eagle Forum was eager to file a brief
terms. That strong conservative argument persuaded a strong
conservative judge, Judge Sentelle.
</para>
+<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>
In the Supreme Court, the briefs on our side were about as diverse as
it gets. They included an extraordinary historical brief by the Free
exhaustive and uncontroverted brief by the world's experts in the
history of the Progress Clause. And of course, there was a new brief
by Eagle Forum, repeating and strengthening its arguments.
-<indexterm><primary>Eagle Forum</primary></indexterm>
</para>
+<indexterm><primary>American Association of Law Libraries</primary></indexterm>
+<indexterm><primary>National Writers Union</primary></indexterm>
<para>
Those briefs framed a legal argument. Then to support the legal
argument, there were a number of powerful briefs by libraries and
archives, including the Internet Archive, the American Association of
Law Libraries, and the National Writers Union.
</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
spectrum. Their conclusions were powerful: There was no plausible
claim that extending the terms of existing copyrights would do
anything to increase incentives to create. Such extensions were
-nothing more than "rent-seeking"—the fancy term economists use
+nothing more than <quote>rent-seeking</quote>—the fancy term economists use
to describe special-interest legislation gone wild.
</para>
+<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>
The same effort at balance was reflected in the legal team we gathered
to write our briefs in the case. The Jones Day lawyers had been with
<!-- PAGE BREAK 240 -->
who had advised us early on about a First Amendment strategy; and
finally, former solicitor general Charles Fried.
-<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
+<indexterm><primary>Fried, Charles</primary></indexterm>
+<indexterm><primary>Congress, U.S.</primary><secondary>constitutional powers of</secondary></indexterm>
+<indexterm><primary>Constitution, U.S.</primary><secondary>Commerce Clause of</secondary></indexterm>
<para>
Fried was a special victory for our side. Every other former solicitor
general was hired by the other side to defend Congress's power to give
while he had argued many positions in the Supreme Court that I
personally disagreed with, his joining the cause was a vote of
confidence in our argument.
-<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
The government, in defending the statute, had its collection of
-friends, as well. Significantly, however, none of these "friends" included
+friends, as well. Significantly, however, none of these <quote>friends</quote> included
historians or economists. The briefs on the other side of the case were
written exclusively by major media companies, congressmen, and
copyright holders.
continue to have the right to control who did what with content they
wanted to control.
</para>
+<indexterm><primary>Gershwin, George</primary></indexterm>
+<indexterm><primary>Porgy and Bess</primary></indexterm>
+<indexterm><primary>pornography</primary></indexterm>
<para>
Dr. Seuss's representatives, for example, argued that it was
better for the Dr. Seuss estate to control what happened to
Dr. Seuss's work— better than allowing it to fall into the
public domain—because if this creativity were in the public
-domain, then people could use it to "glorify drugs or to create
-pornography.
"<footnote><para>
+domain, then people could use it to <quote>glorify drugs or to create
+pornography.
</quote><footnote><para>
<!-- f14. -->
-Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
+Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537
U.S. (2003) (No. 01-618), 19.
</para></footnote>
That was also the motive of the Gershwin estate, which defended its
-"protection" of the work of George Gershwin. They refuse, for example,
-to license Porgy and Bess to anyone who refuses to use African
+<quote>protection</quote> of the work of George Gershwin. They refuse, for example,
+to license <citetitle>Porgy and Bess</citetitle> to anyone who refuses to use African
Americans in the cast.<footnote><para>
<!-- f15. -->
-Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
-Mouse Joins the Fray," New York Times, 28 March 1998, B7.
+Dinitia Smith, <quote>Immortal Words, Immortal Royalties? Even Mickey
+Mouse Joins the Fray,</quote> <citetitle>New York Times</citetitle>, 28 March 1998, B7.
</para></footnote>
That's
<!-- PAGE BREAK 241 -->
their view of how this part of American culture should be controlled,
and they wanted this law to help them effect that control.
-<indexterm><primary>Gershwin, George</primary></indexterm>
</para>
<para>
This argument made clear a theme that is rarely noticed in this
debate. When Congress decides to extend the term of existing
copyrights, Congress is making a choice about which speakers it will
favor. Famous and beloved copyright owners, such as the Gershwin
-estate and Dr. Seuss, come to Congress and say, "Give us twenty years
+estate and Dr. Seuss, come to Congress and say, <quote>Give us twenty years
to control the speech about these icons of American culture. We'll do
-better with them than anyone else." Congress of course likes to reward
+better with them than anyone else.</quote> Congress of course likes to reward
the popular and famous by giving them what they want. But when
Congress gives people an exclusive right to speak in a certain way,
that's just what the First Amendment is traditionally meant to block.
copyrights—extensions that would further concentrate the market;
it would also mean that there was no limit to Congress's power to play
favorites, through copyright, with who has the right to speak.
-Between February and October, there was little I did beyond preparing
-for this case. Early on, as I said, I set the strategy.
</para>
<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,
+<emphasis role='strong'>Between February</emphasis> 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>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
+<para>
+The Supreme Court was divided into two important camps. One camp we
+called <quote>the Conservatives.</quote> The other we called <quote>the Rest.</quote> 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 Lopez/Morrison 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>
+<indexterm id='idxginsburg' class='startofrange'><primary>Ginsburg, Ruth Bader</primary></indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
Congress's power. These four—Justice Stevens, Justice Souter,
believed, there was a very important free speech argument against
these retrospective extensions.
</para>
+<indexterm startref='idxginsburg' class='endofrange'/>
<para>
The only vote we could be confident about was that of Justice
Stevens. History will record Justice Stevens as one of the greatest
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 <quote>the Rest</quote> 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 Lopez
-
+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 Eldred with Lopez: If Congress's power to regulate
-commerce was limited, then so, too, must Congress's power to regulate
-copyright be limited.
+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 <quote>limited.</quote> 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.
</para>
<para>
-The argument on the government's side came down to this:
- Congress
-has done it before. It should be allowed to do it again. The
- government
-claimed that from the very beginning, Congress has been
-extending the term of existing copyrights. So, the government argued,
-the Court should not now say that practice is unconstitutional.
+<emphasis role='strong'>The argument</emphasis> on the government's
+side came down to this: Congress has done it before. It should be
+allowed to do it again. The government claimed that from the very
+beginning, Congress has been extending the term of existing
+copyrights. So, the government argued, the Court should not now say
+that practice is unconstitutional.
</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.
</para>
<para>
-But this "consistency" should be kept in perspective. Congress
+But this <quote>consistency</quote> should be kept in perspective. Congress
extended
existing terms once in the first hundred years of the Republic.
It then extended existing terms once again in the next fifty. Those rare
hesitated
to intervene where Congress was in a similar cycle of extension.
There was no reason it couldn't intervene here.
-Oral argument was scheduled for the first week in October. I
- arrived
-in D.C. two weeks before the argument. During those two
-weeks, I was repeatedly "mooted" by lawyers who had volunteered to
+</para>
+<para>
+<emphasis role='strong'>Oral argument</emphasis> was scheduled for the
+first week in October. I arrived in D.C. two weeks before the
+argument. During those two weeks, I was repeatedly
+<quote>mooted</quote> by lawyers who had volunteered to
<!-- PAGE BREAK 244 -->
-help in the case. Such "moots" are basically practice rounds, where
+help in the case. Such <quote>moots</quote> are basically practice rounds, where
wannabe justices fire questions at wannabe winners.
</para>
<para>
this central idea.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
+<indexterm><primary>Fried, Charles</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
General Charles Fried. He had argued many cases before the Supreme
Court. And in his review of the moot, he let his concern speak:
-<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
-"I'm just afraid that unless they really see the harm, they won't be
+<quote>I'm just afraid that unless they really see the harm, they won't be
willing to upset this practice that the government says has been a
consistent practice for two hundred years. You have to make them see
the harm—passionately get them to see the harm. For if they
-don't see that, then we haven't any chance of winning."
+don't see that, then we haven't any chance of winning.</quote>
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
I listened to Ayer's plea for passion in pressing politics, I understood
his point, and I rejected it. Our argument was right. That was enough.
Let the politicians learn to see that it was also good.
-The night before the argument, a line of people began to form
-in front of the Supreme Court. The case had become a focus of the
-press and of the movement to free culture. Hundreds stood in line
+</para>
+<para>
+<emphasis role='strong'>The night before</emphasis> the argument, a
+line of people began to form in front of the Supreme Court. The case
+had become a focus of the press and of the movement to free
+culture. Hundreds stood in line
<!-- PAGE BREAK 245 -->
for the chance to see the proceedings. Scores spent the night on the
power. This was a case about enumerated powers, I said, and whether
those enumerated powers had any limit.
</para>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
Justice O'Connor stopped me within one minute of my opening.
The history was bothering her.
</para>
</blockquote>
<para>
-She was quite willing to concede "that this flies directly in the face
-of what the framers had in mind." But my response again and again
+She was quite willing to concede <quote>that this flies directly in the face
+of what the framers had in mind.</quote> But my response again and again
was to emphasize limits on Congress's power.
</para>
<blockquote>
mr. lessig: Justice, we are not making an empirical claim at all.
Nothing in our Copyright Clause claim hangs upon the empirical
assertion about impeding progress. Our only argument is this is a
-structural limit necessary to assure that what would be an
- effectively
+structural limit necessary to assure that what would be an effectively
perpetual term not be permitted under the copyright laws.
</para>
</blockquote>
softball; my answer was a swing and a miss.
</para>
<para>
-The second came from the Chief, for whom the whole case had
-been crafted. For the Chief Justice had crafted the Lopez ruling, and we
-hoped that he would see this case as its second cousin.
+The second came from the Chief, for whom the whole case had been
+crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> ruling,
+and we hoped that he would see this case as its second cousin.
</para>
<para>
-It was clear a second into his question that he wasn't at all
- sympathetic.
-To him, we were a bunch of anarchists. As he asked:
+It was clear a second into his question that he wasn't at all
+sympathetic. To him, we were a bunch of anarchists. As he asked:
<!-- PAGE BREAK 247 -->
</para>
into the Copyright Clause.
</para>
</blockquote>
+<indexterm><primary>Olson, Theodore B.</primary></indexterm>
<para>
Things went better for us when the government gave its argument;
for now the Court picked up on the core of our claim. As Justice Scalia
Court to my side.
</para>
<para>
-As I left the court that day, I knew there were a hundred points I
-wished I could remake. There were a hundred questions I wished I had
+<emphasis role='strong'>As I left</emphasis> the court that day, I
+knew there were a hundred points I wished I could remake. There were a
+hundred questions I wished I had
<!-- PAGE BREAK 248 -->
answered differently. But one way of thinking about this case left me
law that it had established elsewhere.
</para>
<para>
-The morning of January 15, 2003, I was five minutes late to the office
-and missed the 7:00 A.M. call from the Supreme Court clerk. Listening to
-the message, I could tell in an instant that she had bad news to report.The
-Supreme Court had affirmed the decision of the Court of Appeals. Seven
-justices had voted in the majority. There were two dissents.
+<emphasis role='strong'>The morning</emphasis> of January 15, 2003, I
+was five minutes late to the office and missed the 7:00 A.M. call from
+the Supreme Court clerk. Listening to the message, I could tell in an
+instant that she had bad news to report.The Supreme Court had affirmed
+the decision of the Court of Appeals. Seven justices had voted in the
+majority. There were two dissents.
</para>
<para>
A few seconds later, the opinions arrived by e-mail. I took the
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 <emphasis>reasoning</emphasis>. Here was a case that pitted all the
+money in the world against <emphasis>reasoning</emphasis>. 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
+<citetitle>Lopez</citetitle>. 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>
+<indexterm><primary>Ginsburg, Ruth Bader</primary></indexterm>
<para>
<!-- PAGE BREAK 249 -->
</para>
<para>
Her opinion was perfectly reasonable—for her, and for Justice
-Souter. Neither believes in Lopez. It would be too much to expect them
+Souter. Neither believes in <citetitle>Lopez</citetitle>. It would be too much to expect them
to write an opinion that recognized, much less explained, the doctrine
they had worked so hard to defeat.
</para>
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
-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.
+reconcile the two simply <emphasis>by not addressing the
+argument</emphasis>. There was no inconsistency because they would not
+talk about the two together. There was therefore no principle that
+followed from the <citetitle>Lopez</citetitle> case: In 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
percent of the value of a perpetual term. Breyer said we were wrong,
that the actual number was 99.9997 percent of a perpetual term. Either
way, the point was clear: If the Constitution said a term had to be
-"limited," and the existing term was so long as to be effectively
+<quote>limited,</quote> and the existing term was so long as to be effectively
unlimited, then it was unconstitutional.
</para>
<para>
These two justices understood all the arguments we had made. But
-because neither believed in the Lopez case, neither was willing to push
+because neither believed in the <citetitle>Lopez</citetitle> case, neither was willing to push
it as a reason to reject this extension. The case was decided without
anyone having addressed the argument that we had carried from Judge
-Sentelle. It was Hamlet without the Prince.
+Sentelle. It was <citetitle>Hamlet</citetitle> without the Prince.
</para>
<para>
-Defeat brings depression. They say it is a sign of health when
-depression gives way to anger. My anger came quickly, but it didn't cure
-the depression. This anger was of two sorts.
+<emphasis role='strong'>Defeat brings depression</emphasis>. They say
+it is a sign of health when depression gives way to anger. My anger
+came quickly, but it didn't cure the depression. This anger was of two
+sorts.
</para>
+<indexterm><primary>originalism</primary></indexterm>
<para>
-It was first anger with the five "Conservatives." It would have been
-one thing for them to have explained why the principle of Lopez didn't
+It was first anger with the five <quote>Conservatives.</quote> It would have been
+one thing for them to have explained why the principle of <citetitle>Lopez</citetitle> didn't
apply in this case. That wouldn't have been a very convincing
argument, I don't believe, having read it made by others, and having
tried to make it myself. But it at least would have been an act of
integrity. These justices in particular have repeatedly said that the
-proper mode of interpreting the Constitution is "originalism"—to
+proper mode of interpreting the Constitution is <quote>originalism</quote>—to
first understand the framers' text, interpreted in their context, in
light of the structure of the Constitution. That method had produced
-Lopez and many other "originalist" rulings. Where was their
-"originalism" now?
+<citetitle>Lopez</citetitle> and many other <quote>originalist</quote> rulings. Where was their
+<quote>originalism</quote> now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
should decide the issue.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Fried, Charles</primary></indexterm>
<para>
Would it have been different if I had argued it differently? Would it
have been different if Don Ayer had argued it? Or Charles Fried? Or
Kathleen Sullivan?
-<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
My friends huddled around me to insist it would not. The Court
stepped down from this pretty picture of dispassionate justice, I could
have persuaded.
</para>
+<indexterm><primary>Jaszi, Peter</primary></indexterm>
<para>
And even if I couldn't, then that doesn't excuse what happened in
January. For at the start of this case, one of America's leading
intellectual property professors stated publicly that my bringing this
-case was a mistake. "The Court is not ready," Peter Jaszi said; this
+case was a mistake. <quote>The Court is not ready,</quote> Peter Jaszi said; this
issue should not be raised until it is.
-<indexterm><primary>Jaszi, Peter</primary></indexterm>
</para>
<para>
After the argument and after the decision, Peter said to me, and
a way that would do some good or they were not ready to hear this case
in a way that would do some good. Either way, the decision to bring
this case—a decision I had made four years before—was wrong.
-While the reaction to the Sonny Bono Act itself was almost
-unanimously negative, the reaction to the Court's decision was mixed.
-No one, at least in the press, tried to say that extending the term of
-copyright was a good idea. We had won that battle over ideas. Where
+</para>
+<para>
+<emphasis role='strong'>While the reaction</emphasis> to the Sonny
+Bono Act itself was almost unanimously negative, the reaction to the
+Court's decision was mixed. No one, at least in the press, tried to
+say that extending the term of copyright was a good idea. We had won
+that battle over ideas. Where
<!-- PAGE BREAK 253 -->
the decision was praised, it was praised by papers that had been
skeptical of the Court's activism in other cases. Deference was a good
thing, even if it left standing a silly law. But where the decision
was attacked, it was attacked because it left standing a silly and
-harmful law. The New York Times wrote in its editorial,
+harmful law. <citetitle>The New York Times</citetitle> wrote in its editorial,
</para>
<blockquote>
<para>
<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 <quote>powerful and wealthy</quote> 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 The New York Times. That "grand experiment" we call the
-"public domain" is over? When I can make light of it, I think, "Honey,
-I shrunk the Constitution." But I can rarely make light of it. We had
+quote from <citetitle>The New York Times</citetitle>. That <quote>grand experiment</quote> we call the
+<quote>public domain</quote> is over? When I can make light of it, I think, <quote>Honey,
+I shrunk the Constitution.</quote> But I can rarely make light of it. We had
in our Constitution a commitment to free culture. In the case that I
fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
-</sect1>
-<sect1 id="eldred-ii">
+</chapter>
+<chapter label="14" id="eldred-ii">
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
-The day Eldred was decided, fate would have it that I was to travel to
-Washington, D.C. (The day the rehearing petition in Eldred was
-denied—meaning the case was really finally over—fate would
-have it that I was giving a speech to technologists at Disney World.)
-This was a particularly long flight to my least favorite city. The
-drive into the city from Dulles was delayed because of traffic, so I
-opened up my computer and wrote an op-ed piece.
+<emphasis role='strong'>The day</emphasis>
+<citetitle>Eldred</citetitle> was decided, fate would have it that I
+was to travel to Washington, D.C. (The day the rehearing petition in
+<citetitle>Eldred</citetitle> was denied—meaning the case was
+really finally over—fate would have it that I was giving a
+speech to technologists at Disney World.) This was a particularly
+long flight to my least favorite city. The drive into the city from
+Dulles was delayed because of traffic, so I opened up my computer and
+wrote an op-ed piece.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
Francisco to Washington, I had heard over and over again in my head
the same advice from Don Ayer: You need to make them see why it is
important. And alternating with that command was the question of
-Justice Kennedy: "For all these years the act has impeded progress in
+Justice Kennedy: <quote>For all these years the act has impeded progress in
science and the useful arts. I just don't see any empirical evidence for
-that." And so, having failed in the argument of constitutional principle,
+that.</quote> And so, having failed in the argument of constitutional principle,
finally, I turned to an argument of politics.
</para>
<para>
-The New York Times published the piece. In it, I proposed a simple
+<citetitle>The New York Times</citetitle> published the piece. In it, I proposed a simple
fix: Fifty years after a work has been published, the copyright owner
<!-- PAGE BREAK 256 -->
would be required to register the work and pay a small fee. If he paid
</para>
<para>
Or another two names. For depending upon your perspective, this
-is either the "Public Domain Enhancement Act" or the "Copyright
-Term Deregulation Act." Either way, the essence of the idea is clear
+is either the <quote>Public Domain Enhancement Act</quote> or the <quote>Copyright
+Term Deregulation Act.</quote> Either way, the essence of the idea is clear
and obvious: Remove copyright where it is doing nothing except
blocking access and the spread of knowledge. Leave it for as long as
Congress allows for those works where its worth is at least $1. But for
<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
-As I described in chapter 10, formalities in copyright law were
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, formalities in copyright law were
removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
<!-- f1. -->
+<indexterm><primary>German copyright law</primary></indexterm>
Until the 1908 Berlin Act of the Berne Convention, national copyright
legislation sometimes made protection depend upon compliance with
formalities such as registration, deposit, and affixation of notice of
the author's claim of copyright. However, starting with the 1908 act,
-every text of the Convention has provided that "the enjoyment and the
-exercise" of rights guaranteed by the Convention "shall not be subject
-to any formality." The prohibition against formalities is presently
+every text of the Convention has provided that <quote>the enjoyment and the
+exercise</quote> of rights guaranteed by the Convention <quote>shall not be subject
+to any formality.</quote> The prohibition against formalities is presently
embodied in Article 5(2) of the Paris Text of the Berne
Convention. Many countries continue to impose some form of deposit or
registration requirement, albeit not as a condition of
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
of Authors where the author's true name can be filed in the case of
-anonymous or pseudonymous works. Paul Goldstein, International
-Intellectual Property Law, Cases and Materials (New York: Foundation
+anonymous or pseudonymous works. Paul Goldstein, <citetitle>International
+Intellectual Property Law, Cases and Materials</citetitle> (New York: Foundation
Press, 2001), 153–54. </para></footnote>
-The Europeans are said to view copyright as a "natural right." Natural
+The Europeans are said to view copyright as a <quote>natural right.</quote> Natural
rights don't need forms to exist. Traditions, like the Anglo-American
tradition that required copyright owners to follow form if their
rights were to be protected, did not, the Europeans thought, properly
That's great rhetoric. It sounds wonderfully romantic. But it is
absurd copyright policy. It is absurd especially for authors, because
a world without formalities harms the creator. The ability to spread
-"Walt Disney creativity" is destroyed when there is no simple way to
+<quote>Walt Disney creativity</quote> is destroyed when there is no simple way to
know what's protected and what's not.
</para>
<indexterm><primary>Berne Convention (1908)</primary></indexterm>
years, as well as the abolition of copyright formalities. The
formalities were hated because the stories of inadvertent loss were
increasingly common. It was as if a Charles Dickens character ran all
-copyright offices, and the failure to dot an i or cross a t resulted
-in the loss of widows' only income.
+copyright offices, and the failure to dot an <citetitle>i</citetitle> or cross a
+<citetitle>t</citetitle> resulted in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
<!-- PAGE BREAK 258 -->
should be a second-class form of property. If a carpenter builds a
table, his rights over the table don't depend upon filing a form with
-the government. He has a property right over the table "naturally,"
+the government. He has a property right over the table <quote>naturally,</quote>
and he can assert that right against anyone who would steal the table,
whether or not he has informed the government of his ownership of the
table.
the author and what rights he has. Simple transactions are destroyed in
<!-- PAGE BREAK 259 -->
-a world without formalities. Complex, expensive, lawyer transactions
-take their place.
+a world without formalities. Complex, expensive,
+<emphasis>lawyer</emphasis> transactions take their place.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
This was the understanding of the problem with the Sonny Bono
Act that we tried to demonstrate to the Court. This was the part it
-didn't "get." Because we live in a system without formalities, there is no
+didn't <quote>get.</quote> Because we live in a system without formalities, there is no
way easily to build upon or use culture from our past. If copyright
-terms were, as Justice Story said they would be, "short," then this
+terms were, as Justice Story said they would be, <quote>short,</quote> then this
wouldn't matter much. For fourteen years, under the framers' system, a
work would be presumptively controlled. After fourteen years, it would
be presumptively uncontrolled.
library can offer an Internet exhibit about the New Deal is to hire a
lawyer to clear the rights to every image and sound, then the
copyright system is burdening creativity in a way that has never been
-seen before because there are no formalities.
+seen before <emphasis>because there are no formalities</emphasis>.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
<!-- PAGE BREAK 260 -->
registrations. Any real solution to the problem of formalities must
-address the real problem of governments standing at the core of any
-system of formalities. In this book, I offer such a solution. That
-solution essentially remakes the Copyright Office. For now, assume it
-was Amazon that ran the registration system. Assume it was one-click
-registration. The Eldred Act would propose a simple, one-click
-registration fifty years after a work was published. Based upon
-historical data, that system would move up to 98 percent of commercial
-work, commercial work that no longer had a commercial life, into the
-public domain within fifty years. What do you think?
+address the real problem of <emphasis>governments</emphasis> standing
+at the core of any system of formalities. In this book, I offer such a
+solution. That solution essentially remakes the Copyright Office. For
+now, assume it was Amazon that ran the registration system. Assume it
+was one-click registration. The Eldred Act would propose a simple,
+one-click registration fifty years after a work was published. Based
+upon historical data, that system would move up to 98 percent of
+commercial work, commercial work that no longer had a commercial life,
+into the public domain within fifty years. What do you think?
</para>
<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-When Steve Forbes endorsed the idea, some in Washington began to pay
-attention. Many people contacted me pointing to representatives who
-might be willing to introduce the Eldred Act. And I had a few who
-directly suggested that they might be willing to take the first step.
+<emphasis role='strong'>When Steve Forbes</emphasis> endorsed the
+idea, some in Washington began to pay attention. Many people contacted
+me pointing to representatives who might be willing to introduce the
+Eldred Act. And I had a few who directly suggested that they might be
+willing to take the first step.
</para>
+<indexterm><primary>Lofgren, Zoe</primary></indexterm>
<para>
One representative, Zoe Lofgren of California, went so far as to get
the bill drafted. The draft solved any problem with international
law. It imposed the simplest requirement upon copyright owners
possible. In May 2003, it looked as if the bill would be
-introduced. On May 16, I posted on the Eldred Act blog, "we are
-close." There was a general reaction in the blog community that
+introduced. On May 16, I posted on the Eldred Act blog, <quote>we are
+close.</quote> There was a general reaction in the blog community that
something good might happen here.
</para>
<para>
thinness shows something clear about what this debate is really about.
</para>
<para>
-The MPAA argued first that Congress had "firmly rejected the central
-concept in the proposed bill"—that copyrights be renewed. That
-was true, but irrelevant, as Congress's "firm rejection" had occurred
+The MPAA argued first that Congress had <quote>firmly rejected the central
+concept in the proposed bill</quote>—that copyrights be renewed. That
+was true, but irrelevant, as Congress's <quote>firm rejection</quote> had occurred
<!-- PAGE BREAK 261 -->
long before the Internet made subsequent uses much more likely.
Second, they argued that the proposal would harm poor copyright
percentage of work covered by copyright law that is still commercially
valuable, but again this was irrelevant, as the proposal would not cut
off the extended term unless the $1 fee was not paid. Fourth, the MPAA
-argued that the bill would impose "enormous" costs, since a
+argued that the bill would impose <quote>enormous</quote> costs, since a
registration system is not free. True enough, but those costs are
certainly less than the costs of clearing the rights for a copyright
whose owner is not known. Fifth, they worried about the risks if the
about a copyright, they're not likely to.
</para>
<para>
-At the beginning of this book, I told two stories about the law
-reacting to changes in technology. In the one, common sense prevailed.
-In the other, common sense was delayed. The difference between the two
-stories was the power of the opposition—the power of the side
-that fought to defend the status quo. In both cases, a new technology
-threatened old interests. But in only one case did those interest's
-have the power to protect themselves against this new competitive
-threat.
+<emphasis role='strong'>At the beginning</emphasis> of this book, I
+told two stories about the law reacting to changes in technology. In
+the one, common sense prevailed. In the other, common sense was
+delayed. The difference between the two stories was the power of the
+opposition—the power of the side that fought to defend the
+status quo. In both cases, a new technology threatened old
+interests. But in only one case did those interest's have the power to
+protect themselves against this new competitive threat.
</para>
<para>
I used these two cases as a way to frame the war that this book has
don't recognize the reasons for limiting copyright terms; it is thus
still possible to see good faith within the resistance.
</para>
+<indexterm><primary>Kelly, Kevin</primary></indexterm>
<para>
But when the copyright owners oppose a proposal such as the Eldred
Act, then, finally, there is an example that lays bare the naked
selfinterest driving this war. This act would free an extraordinary
range of content that is otherwise unused. It wouldn't interfere with
any copyright owner's desire to exercise continued control over his
-content. It would simply liberate what Kevin Kelly calls the "Dark
-Content" that fills archives around the world. So when the warriors
+content. It would simply liberate what Kevin Kelly calls the <quote>Dark
+Content</quote> that fills archives around the world. So when the warriors
oppose a change like this, we should ask one simple question:
</para>
<para>
<para>
With very little effort, the warriors could protect their content. So
the effort to block something like the Eldred Act is not really about
-protecting their content. The effort to block the Eldred Act is an effort
-to assure that nothing more passes into the public domain. It is another
-step to assure that the public domain will never compete, that there
-will be no use of content that is not commercially controlled, and that
-there will be no commercial use of content that doesn't require their
-permission first.
+protecting <emphasis>their</emphasis> content. The effort to block the
+Eldred Act is an effort to assure that nothing more passes into the
+public domain. It is another step to assure that the public domain
+will never compete, that there will be no use of content that is not
+commercially controlled, and that there will be no commercial use of
+content that doesn't require <emphasis>their</emphasis> permission
+first.
</para>
<para>
The opposition to the Eldred Act reveals how extreme the other side
is. The most powerful and sexy and well loved of lobbies really has as
-its aim not the protection of "property" but the rejection of a
-tradition. Their aim is not simply to protect what is theirs. Their
-aim is to assure that all there is is what is theirs.
+its aim not the protection of <quote>property</quote> but the rejection of a
+tradition. Their aim is not simply to protect what is
+theirs. <emphasis>Their aim is to assure that all there is is what is
+theirs</emphasis>.
</para>
<para>
It is not hard to understand why the warriors take this view. It is not
</para>
<para>
All this seems to follow easily from this untroubled acceptance of the
-"property" in intellectual property. Common sense supports it, and so
+<quote>property</quote> in intellectual property. Common sense supports it, and so
long as it does, the assaults will rain down upon the technologies of
-the Internet. The consequence will be an increasing "permission
-society." The past can be cultivated only if you can identify the
+the Internet. The consequence will be an increasing <quote>permission
+society.</quote> The past can be cultivated only if you can identify the
owner and gain permission to build upon his work. The future will be
controlled by this dead (and often unfindable) hand of the past.
</para>
<!-- PAGE BREAK 264 -->
-</sect1>
</chapter>
-<chapter id="c-conclusion">
+</part>
+<chapter label="15" id="c-conclusion">
<title>CONCLUSION</title>
+<indexterm id='idxafricamedicationsforhivpatientsin' class='startofrange'><primary>Africa, medications for HIV patients in</primary></indexterm>
+<indexterm id='idxaidsmedications' class='startofrange'><primary>AIDS medications</primary></indexterm>
+<indexterm id='idxantiretroviraldrugs' class='startofrange'><primary>antiretroviral drugs</primary></indexterm>
+<indexterm id='idxdevelopingcountriesforeignpatentcostsin2' class='startofrange'><primary>developing countries, foreign patent costs in</primary></indexterm>
+<indexterm id='idxdrugspharmaceutical' class='startofrange'><primary>drugs</primary><secondary>pharmaceutical</secondary></indexterm>
+<indexterm id='idxhivaidstherapies' class='startofrange'><primary>HIV/AIDS therapies</primary></indexterm>
<para>
-There are more than 35 million people with the AIDS virus
-worldwide. Twenty-five million of them live in sub-Saharan Africa.
-Seventeen million have already died. Seventeen million Africans
-is proportional percentage-wise to seven million Americans. More
-importantly, it is seventeen million Africans.
+<emphasis role='strong'>There are more</emphasis> than 35 million
+people with the AIDS virus worldwide. Twenty-five million of them live
+in sub-Saharan Africa. Seventeen million have already died. Seventeen
+million Africans is proportional percentage-wise to seven million
+Americans. More importantly, it is seventeen million Africans.
</para>
<para>
There is no cure for AIDS, but there are drugs to slow its
population:
$15,000 is thirty times the per capita gross national product of
Zimbabwe. At these prices, the drugs are totally unavailable.<footnote><para>
-<!-- f1. --> Commission on Intellectual Property Rights, "Final Report: Integrating
-Intellectual Property Rights and Development Policy" (London, 2002),
+<!-- f1. --> Commission on Intellectual Property Rights, <quote>Final Report: Integrating
+Intellectual Property Rights and Development Policy</quote> (London, 2002),
available at
<ulink url="http://free-culture.cc/notes/">link #55</ulink>. According to a World Health Organization press
release
the developing world receive them—and half of them are in Brazil.
</para></footnote>
</para>
+<indexterm id='idxpatentsonpharmaceuticals' class='startofrange'><primary>patents</primary><secondary>on pharmaceuticals</secondary></indexterm>
+<indexterm id='idxpharmaceuticalpatents' class='startofrange'><primary>pharmaceutical patents</primary></indexterm>
<para>
<!-- PAGE BREAK 265 -->
These prices are not high because the ingredients of the drugs are
bringing, they started looking for ways to import HIV treatments at
costs significantly below the market price.
</para>
+<indexterm id='idxinternationallaw2' class='startofrange'><primary>international law</primary></indexterm>
+<indexterm id='idxparallelimportation' class='startofrange'><primary>parallel importation</primary></indexterm>
+<indexterm id='idxsouthafricarepublicofpharmaceuticalimportsby' class='startofrange'><primary>South Africa, Republic of, pharmaceutical imports by</primary></indexterm>
<para>
In 1997, South Africa tried one tack. It passed a law to allow the
importation of patented medicines that had been produced or sold in
another nation's market with the consent of the patent owner. For
example, if the drug was sold in India, it could be imported into
-Africa from India. This is called "parallel importation," and it is
+Africa from India. This is called <quote>parallel importation,</quote> and it is
generally permitted under international trade law and is specifically
permitted within the European Union.<footnote>
<para>
<!-- f2. -->
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
+See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: Who
+Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), 37.
<indexterm><primary>Braithwaite, John</primary></indexterm>
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
</para>
+<indexterm><primary>United States Trade Representative (USTR)</primary></indexterm>
<para>
-However, the United States government opposed the bill. Indeed,
-more than opposed. As the International Intellectual Property
- Association
-characterized it, "The U.S. government pressured South Africa . . .
-
not to permit compulsory licensing or parallel imports."<footnote><para>
-<!-- f3. --> International Intellectual Property Institute (IIPI), Patent Protection and
-Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report
- Prepared
-for the World Intellectual Property Organization (Washington, D.C.,
-2000), 14, available at
-<ulink url="http://free-culture.cc/notes/">link #56</ulink>. For a firsthand account of the struggle over
-South Africa, see Hearing Before the Subcommittee on Criminal Justice,
-Drug Policy, and Human Resources, House Committee on Government
-Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150–57
-(statement of James Love).
-</para></footnote>
- Through the
-Office of the United States Trade Representative, the government
-asked South Africa to change the law—and to add pressure to that
- request,
-in 1998, the USTR listed South Africa for possible trade sanctions.
+However, the United States government opposed the bill. Indeed, more
+than opposed. As the International Intellectual Property Association
+characterized it, <quote>The U.S. government pressured South Africa …
+not to permit compulsory licensing or parallel
+
imports.</quote><footnote><para>
+<!-- f3. -->
+International Intellectual Property Institute (IIPI), <citetitle>Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization</citetitle> (Washington, D.C., 2000), 14, available at
+<ulink url="http://free-culture.cc/notes/">link #56</ulink>. For a
+firsthand account of the struggle over South Africa, see Hearing
+Before the Subcommittee on Criminal Justice, Drug Policy, and Human
+Resources, House Committee on Government Reform, H. Rep., 1st sess.,
+Ser. No. 106-126 (22 July 1999), 150–57 (statement of James
+Love).
+</para></footnote>
+Through the Office of the United States Trade Representative, the
+government asked South Africa to change the law—and to add
+pressure to that request, in 1998, the USTR listed South Africa for
+possible trade sanctions.
<!-- PAGE BREAK 266 -->
-That same year, more than forty pharmaceutical companies
- began
-proceedings in the South African courts to challenge the
- government's
-actions. The United States was then joined by other governments
-from the EU. Their claim, and the claim of the pharmaceutical
- companies,
-was that South Africa was violating its obligations under
- international
-law by discriminating against a particular kind of patent—
-pharmaceutical patents. The demand of these governments, with the
-United States in the lead, was that South Africa respect these patents
-as it respects any other patent, regardless of any effect on the treatment
-of AIDS within South Africa.<footnote><para>
+That same year, more than forty pharmaceutical companies began
+proceedings in the South African courts to challenge the government's
+actions. The United States was then joined by other governments from
+the EU. Their claim, and the claim of the pharmaceutical companies,
+was that South Africa was violating its obligations under
+international law by discriminating against a particular kind of
+patent— pharmaceutical patents. The demand of these governments,
+with the United States in the lead, was that South Africa respect
+these patents as it respects any other patent, regardless of any
+effect on the treatment of AIDS within South Africa.<footnote><para>
<!-- f4. -->
-International Intellectual Property Institute (IIPI), Patent
+International Intellectual Property Institute (IIPI), <citetitle>Patent
Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
Africa, a Report Prepared for the World Intellectual Property
-Organization (Washington, D.C., 2000), 15. </para></footnote>
+Organization</citetitle> (Washington, D.C., 2000), 15. </para></footnote>
</para>
+<indexterm startref='idxparallelimportation' class='endofrange'/>
<para>
We should place the intervention by the United States in context. No
doubt patents are not the most important reason that Africans don't
<!-- PAGE BREAK 267 -->
about the sanctity of property.<footnote><para>
<!-- f5. -->
-See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
-Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24
+See Sabin Russell, <quote>New Crusade to Lower AIDS Drug Costs: Africa's
+Needs at Odds with Firms' Profit Motive,</quote> <citetitle>San Francisco Chronicle</citetitle>, 24
May 1999, A1, available at
<ulink url="http://free-culture.cc/notes/">link #57</ulink>
-("compulsory licenses and gray markets pose a threat to the entire
-system of intellectual property protection"); Robert Weissman, "AIDS
+(<quote>compulsory licenses and gray markets pose a threat to the entire
+system of intellectual property protection</quote>); Robert Weissman, <quote>AIDS
and Developing Countries: Democratizing Access to Essential
-Medicines," Foreign Policy in Focus 4:23 (August 1999), available at
+Medicines,</quote> <citetitle>Foreign Policy in Focus</citetitle> 4:23 (August 1999), available at
<ulink url="http://free-culture.cc/notes/">link #58</ulink>
-(describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical
+(describing U.S. policy); John A. Harrelson, <quote>TRIPS, Pharmaceutical
Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
-Intellectual Property Rights and Compassion, a Synopsis," Widener Law
-Symposium Journal (Spring 2001): 175.
+Intellectual Property Rights and Compassion, a Synopsis,</quote> <citetitle>Widener Law
+Symposium Journal</citetitle> (Spring 2001): 175.
<!-- PAGE BREAK 333 -->
</para></footnote>
-It was because "intellectual property" would be violated that these
+It was because <quote>intellectual property</quote> would be violated that these
drugs should not flow into Africa. It was a principle about the
-importance of "intellectual property" that led these government actors
+importance of <quote>intellectual property</quote> that led these government actors
to intervene against the South African response to AIDS.
</para>
+<indexterm startref='idxsouthafricarepublicofpharmaceuticalimportsby' class='endofrange'/>
<para>
Now just step back for a moment. There will be a time thirty years
from now when our children look back at us and ask, how could we have
let this happen? How could we allow a policy to be pursued whose
direct cost would be to speed the death of 15 to 30 million Africans,
-and whose only real benefit would be to uphold the "sanctity" of an
+and whose only real benefit would be to uphold the <quote>sanctity</quote> of an
idea? What possible justification could there ever be for a policy
that results in so many deaths? What exactly is the insanity that
would allow so many to die for such an abstraction?
</para>
+<indexterm id='idxcorporationsinpharmaceuticalindustry' class='startofrange'><primary>corporations</primary><secondary>in pharmaceutical industry</secondary></indexterm>
<para>
Some blame the drug companies. I don't. They are corporations.
Their managers are ordered by law to make money for the corporation.
drugs didn't get back into the United States, but those are mere
problems of technology. They could be overcome.
</para>
+<indexterm id='idxintellectualpropertyrightsofdrugpatents' class='startofrange'><primary>intellectual property rights</primary><secondary>of drug patents</secondary></indexterm>
<para>
A different problem, however, could not be overcome. This is the
fear of the grandstanding politician who would call the presidents of
-the drug companies before a Senate or House hearing, and ask, "How
+the drug companies before a Senate or House hearing, and ask, <quote>How
is it you can sell this HIV drug in Africa for only $1 a pill, but the same
-drug would cost an American $1,500?" Because there is no "sound
-bite" answer to that question, its effect would be to induce regulation
+drug would cost an American $1,500?</quote> Because there is no <quote>sound
+bite</quote> answer to that question, its effect would be to induce regulation
of prices in America. The drug companies thus avoid this spiral by
avoiding the first step. They reinforce the idea that property should be
<!-- PAGE BREAK 268 -->
sacred. They adopt a rational strategy in an irrational context, with the
unintended consequence that perhaps millions die. And that rational
strategy thus becomes framed in terms of this ideal—the sanctity of an
-idea called "intellectual property."
+idea called <quote>intellectual property.</quote>
</para>
+<indexterm startref='idxafricamedicationsforhivpatientsin' class='endofrange'/>
+<indexterm startref='idxaidsmedications' class='endofrange'/>
+<indexterm startref='idxantiretroviraldrugs' class='endofrange'/>
+<indexterm startref='idxdevelopingcountriesforeignpatentcostsin2' class='endofrange'/>
+<indexterm startref='idxdrugspharmaceutical' class='endofrange'/>
+<indexterm startref='idxhivaidstherapies' class='endofrange'/>
+<indexterm startref='idxcorporationsinpharmaceuticalindustry' class='endofrange'/>
<para>
So when the common sense of your child confronts you, what will
you say? When the common sense of a generation finally revolts
policy. For most of our history, both copyright and patent policies
were balanced in just this sense.
</para>
+<indexterm startref='idxpatentsonpharmaceuticals' class='endofrange'/>
+<indexterm startref='idxpharmaceuticalpatents' class='endofrange'/>
+<indexterm startref='idxinternationallaw2' class='endofrange'/>
<para>
But we as a culture have lost this sense of balance. We have lost the
critical eye that helps us see the difference between truth and
extremism. A certain property fundamentalism, having no connection to
our tradition, now reigns in this culture—bizarrely, and with
consequences more grave to the spread of ideas and culture than almost
-any other single policy decision that we as a democracy will make. A
-simple idea blinds us, and under the cover of darkness, much happens
-that most of us would reject if any of us looked. So uncritically do
-we accept the idea of property in ideas that we don't even notice how
-monstrous it is to deny ideas to a people who are dying without
-them. So uncritically do we accept the idea of property in culture
-that we don't even question when the control of that property removes
-our
+any other single policy decision that we as a democracy will make.
+</para>
+<indexterm startref='idxintellectualpropertyrightsofdrugpatents' class='endofrange'/>
+<para>
+<emphasis role='strong'>A simple idea</emphasis> blinds us, and under
+the cover of darkness, much happens that most of us would reject if
+any of us looked. So uncritically do we accept the idea of property in
+ideas that we don't even notice how monstrous it is to deny ideas to a
+people who are dying without them. So uncritically do we accept the
+idea of property in culture that we don't even question when the
+control of that property removes our
<!-- PAGE BREAK 269 -->
ability, as a people, to develop our culture democratically. Blindness
becomes our common sense. And the challenge for anyone who would
does not yet see what there could be to revolt about. The extremism
that now dominates this debate fits with ideas that seem natural, and
that fit is reinforced by the RCAs of our day. They wage a frantic war
-to fight "piracy," and devastate a culture for creativity. They defend
-the idea of "creative property," while transforming real creators into
+to fight <quote>piracy,</quote> and devastate a culture for creativity. They defend
+the idea of <quote>creative property,</quote> while transforming real creators into
modern-day sharecroppers. They are insulted by the idea that rights
should be balanced, even though each of the major players in this
content war was itself a beneficiary of a more balanced ideal. The
hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
noticed. Powerful lobbies, complex issues, and MTV attention spans
-produce the "perfect storm" for free culture.
+produce the <quote>perfect storm</quote> for free culture.
</para>
-<para>
-In August 2003, a fight broke out in the United States about a
-decision by the World Intellectual Property Organization to cancel a
-meeting.<footnote><para>
-<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," Washington Post,
+<indexterm><primary>academic journals</primary></indexterm>
+<indexterm><primary>biomedical research</primary></indexterm>
+<indexterm id='idxintellectualpropertyrightsinternationalorganizationonissuesof' class='startofrange'><primary>intellectual property rights</primary><secondary>international organization on issues of</secondary></indexterm>
+<indexterm><primary>Internet</primary><secondary>development of</secondary></indexterm>
+<indexterm><primary>IBM</primary></indexterm>
+<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
+<indexterm><primary>Public Library of Science (PLoS)</primary></indexterm>
+<indexterm><primary>public domain</primary><secondary>public projects in</secondary></indexterm>
+<indexterm><primary>single nucleotied polymorphisms (SNPs)</primary></indexterm>
+<indexterm><primary>Wellcome Trust</primary></indexterm>
+<indexterm id='idxworldintellectualpropertyorganizationwipo' class='startofrange'><primary>World Intellectual Property Organization (WIPO)</primary></indexterm>
+<indexterm><primary>World Wide Web</primary></indexterm>
+<indexterm><primary>Global Positioning System</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
+<indexterm id='idxbiomedicalresearch' class='startofrange'><primary>biomedical research</primary></indexterm>
+<para>
+<emphasis role='strong'>In August 2003</emphasis>, a fight broke out
+in the United States about a decision by the World Intellectual
+Property Organization to cancel a meeting.<footnote><para>
+<!-- f6. --> Jonathan Krim, <quote>The Quiet War over Open-Source,</quote> <citetitle>Washington Post</citetitle>,
August 2003, E1, available at
-<ulink url="http://free-culture.cc/notes/">link #59</ulink>; William New, "Global Group's
-Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology
-Daily, 19 August 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #60</ulink>; William New, "U.S. Official
-Opposes `Open Source' Talks at WIPO," National Journal's Technology
-Daily, 19 August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #59</ulink>; William New, <quote>Global Group's
+Shift on `Open Source' Meeting Spurs Stir,</quote> <citetitle>National Journal's Technology
+Daily</citetitle>, 19 August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #60</ulink>; William New, <quote>U.S. Official
+Opposes `Open Source' Talks at WIPO,</quote> <citetitle>National Journal's Technology
+Daily</citetitle>, 19 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #61</ulink>.
</para></footnote>
At the request of a wide range of interests, WIPO had decided to hold
-a meeting to discuss "open and collaborative projects to create public
-goods." These are projects that have been successful in producing
+a meeting to discuss <quote>open and collaborative projects to create public
+goods.</quote> These are projects that have been successful in producing
public goods without relying exclusively upon a proprietary use of
intellectual property. Examples include the Internet and the World
Wide Web, both of which were developed on the basis of protocols in
the public domain. It included an emerging trend to support open
academic journals, including the Public Library of Science project
-that I describe in the Afterword. It included a project to develop
-single nucleotide polymorphisms (SNPs), which are thought to have
-great significance in biomedical research. (That nonprofit project
-comprised a consortium of the Wellcome Trust and pharmaceutical and
-technological companies, including Amersham Biosciences, AstraZeneca,
+that I describe in chapter
+<xref xrefstyle="select: labelnumber" linkend="c-afterword"/>. It
+included a project to develop single nucleotide polymorphisms (SNPs),
+which are thought to have great significance in biomedical
+research. (That nonprofit project comprised a consortium of the
+Wellcome Trust and pharmaceutical and technological companies,
+including Amersham Biosciences, AstraZeneca,
<!-- PAGE BREAK 270 -->
Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
included the Global Positioning System, which Ronald Reagan set free
-in the early 1980s. And it included "open source and free software."
-<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
+in the early 1980s. And it included <quote>open source and free software.</quote>
</para>
+<indexterm startref='idxbiomedicalresearch' class='endofrange'/>
<para>
The aim of the meeting was to consider this wide range of projects
from one common perspective: that none of these projects relied upon
property was balanced by agreements to keep access open or to impose
limitations on the way in which proprietary claims might be used.
</para>
+<indexterm id='idxlessiglawrenceininternationaldebateonintellectualproperty' class='startofrange'><primary>Lessig, Lawrence</primary><secondary>in international debate on intellectual property</secondary></indexterm>
<para>
From the perspective of this book, then, the conference was ideal.<footnote><para>
<!-- f7. --> I should disclose that I was one of the people who asked WIPO for the
WIPO is the preeminent international body dealing with intellectual
property issues.
</para>
+<indexterm id='idxworldsummitontheinformationsocietywsis' class='startofrange'><primary>World Summit on the Information Society (WSIS)</primary></indexterm>
<para>
Indeed, I was once publicly scolded for not recognizing this fact
about WIPO. In February 2003, I delivered a keynote address to a
prepared, I had actually made the issue of intellectual property
relatively minor. But after this astonishing statement, I made
intellectual property the sole focus of my talk. There was no way to
-talk about an "Information Society" unless one also talked about the
+talk about an <quote>Information Society</quote> unless one also talked about the
range of information and culture that would be free. My talk did not
make my immoderate moderator very happy. And she was no doubt correct
that the scope of intellectual property protections was ordinarily the
<para>
So whether or not WSIS can discuss balance in intellectual property, I
had thought it was taken for granted that WIPO could and should. And
-thus the meeting about "open and collaborative projects to create
-public goods" seemed perfectly appropriate within the WIPO agenda.
+thus the meeting about <quote>open and collaborative projects to create
+public goods</quote> seemed perfectly appropriate within the WIPO agenda.
</para>
+<indexterm startref='idxintellectualpropertyrightsinternationalorganizationonissuesof' class='endofrange'/>
+<indexterm startref='idxworldintellectualpropertyorganizationwipo' class='endofrange'/>
+<indexterm startref='idxworldsummitontheinformationsocietywsis' class='endofrange'/>
+<indexterm id='idxfreesoftwareopensourcesoftwarefsoss' class='startofrange'><primary>free software/open-source software (FS/OSS)</primary></indexterm>
+<indexterm><primary>Apple Corporation</primary></indexterm>
+<indexterm id='idxmicrosoftonfreesoftware' class='startofrange'><primary>Microsoft</primary><secondary>on free software</secondary></indexterm>
<para>
But there is one project within that list that is highly
-controversial, at least among lobbyists. That project is "open source
-and free software." Microsoft in particular is wary of discussion of
+controversial, at least among lobbyists. That project is <quote>open source
+and free software.</quote> Microsoft in particular is wary of discussion of
the subject. From its perspective, a conference to discuss open source
and free software would be like a conference to discuss Apple's
operating system. Both open source and free software compete with
Microsoft's software. And internationally, many governments have begun
to explore requirements that they use open source or free software,
-rather than "proprietary software," for their own internal uses.
+rather than <quote>proprietary software,</quote> for their own internal uses.
</para>
+<indexterm><primary><quote>copyleft</quote> licenses</primary></indexterm>
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
+<indexterm><primary>IBM</primary></indexterm>
<para>
I don't mean to enter that debate here. It is important only to
make clear that the distinction is not between commercial and
noncommercial software. There are many important companies that depend
fundamentally upon open source and free software, IBM being the most
prominent. IBM is increasingly shifting its focus to the GNU/Linux
-operating system, the most famous bit of "free software"—and IBM
-is emphatically a commercial entity. Thus, to support "open source and
-free software" is not to oppose commercial entities. It is, instead,
+operating system, the most famous bit of <quote>free software</quote>—and IBM
+is emphatically a commercial entity. Thus, to support <quote>open source and
+free software</quote> is not to oppose commercial entities. It is, instead,
to support a mode of software development that is different from
Microsoft's.<footnote><para>
<!-- f8. -->
Microsoft's position about free and open source software is more
sophisticated. As it has repeatedly asserted, it has no problem with
-"open source" software or software in the public domain. Microsoft's
-principal opposition is to "free software" licensed under a "copyleft"
+<quote>open source</quote> software or software in the public domain. Microsoft's
+principal opposition is to <quote>free software</quote> licensed under a <quote>copyleft</quote>
license, meaning a license that requires the licensee to adopt the
-same terms on any derivative work. See Bradford L. Smith, "The Future
-of Software: Enabling the Marketplace to Decide," Government Policy
-Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint
+same terms on any derivative work. See Bradford L. Smith, <quote>The Future
+of Software: Enabling the Marketplace to Decide,</quote> <citetitle>Government Policy
+Toward Open Source Software</citetitle> (Washington, D.C.: AEI-Brookings Joint
Center for Regulatory Studies, American Enterprise Institute for
Public Policy Research, 2002), 69, available at
<ulink url="http://free-culture.cc/notes/">link #62</ulink>. See also
-Craig Mundie, Microsoft senior vice president, The Commercial Software
-Model, discussion at New York University Stern School of Business (3
+Craig Mundie, Microsoft senior vice president, <citetitle>The Commercial Software
+Model</citetitle>, discussion at New York University Stern School of Business (3
May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
</para>
+<indexterm startref='idxlessiglawrenceininternationaldebateonintellectualproperty' class='endofrange'/>
+<indexterm><primary>General Public License (GPL)</primary></indexterm>
+<indexterm><primary>GPL (General Public License)</primary></indexterm>
<para>
-More important for our purposes, to support "open source and free
-software" is not to oppose copyright. "Open source and free software"
+More important for our purposes, to support <quote>open source and free
+software</quote> is not to oppose copyright. <quote>Open source and free software</quote>
is not software in the public domain. Instead, like Microsoft's
software, the copyright owners of free and open source software insist
quite strongly that the terms of their software license be respected
could not impose the same kind of requirements on its adopters. It
thus depends upon copyright law just as Microsoft does.
</para>
+<indexterm id='idxintellectualpropertyrightsinternationalorganizationonissuesof2' class='startofrange'><primary>intellectual property rights</primary><secondary>international organization on issues of</secondary></indexterm>
+<indexterm id='idxworldintellectualpropertyorganizationwipo2' class='startofrange'><primary>World Intellectual Property Organization (WIPO)</primary></indexterm>
+<indexterm id='idxkrimjonathan' class='startofrange'><primary>Krim, Jonathan</primary></indexterm>
+<indexterm><primary>Microsoft</primary><secondary>WIPO meeting opposed by</secondary></indexterm>
<para>
It is therefore understandable that as a proprietary software
developer, Microsoft would oppose this WIPO meeting, and
understandable that it would use its lobbyists to get the United
States government to oppose it, as well. And indeed, that is just what
was reported to have happened. According to Jonathan Krim of the
-Washington Post, Microsoft's lobbyists succeeded in getting the United
+<citetitle>Washington Post</citetitle>, Microsoft's lobbyists succeeded in getting the United
States government to veto the meeting.<footnote><para>
<!-- f9. -->
-Krim,
"The Quiet War over Open-Source," available at <ulink
+Krim,
<quote>The Quiet War over Open-Source,</quote> available at <ulink
url="http://free-culture.cc/notes/">link #64</ulink>.
</para></footnote>
And without U.S. backing, the meeting was canceled.
powerful software producer in the United States having succeeded in
its lobbying efforts.
</para>
+<indexterm startref='idxmicrosoftonfreesoftware' class='endofrange'/>
+<indexterm><primary>Boland, Lois</primary></indexterm>
<para>
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
director of international relations for the U.S. Patent and Trademark
-Office, explained that "open-source software runs counter to the
-mission of WIPO, which is to promote intellectual-property rights."
-She is quoted as saying, "To hold a meeting which has as its purpose
+Office, explained that <quote>open-source software runs counter to the
+mission of WIPO, which is to promote intellectual-property rights.</quote>
+She is quoted as saying, <quote>To hold a meeting which has as its purpose
to disclaim or waive such rights seems to us to be contrary to the
-goals of WIPO."
+goals of WIPO.</quote>
</para>
+<indexterm startref='idxkrimjonathan' class='endofrange'/>
<para>
These statements are astonishing on a number of levels.
</para>
+<indexterm startref='idxfreesoftwareopensourcesoftwarefsoss' class='endofrange'/>
<!-- PAGE BREAK 273 -->
<para>
First, they are just flat wrong. As I described, most open source and
free software relies fundamentally upon the intellectual property
-right called "copyright". Without it, restrictions imposed by those
-licenses wouldn't work. Thus, to say it "runs counter" to the mission
+right called <quote>copyright</quote>. Without it, restrictions imposed by those
+licenses wouldn't work. Thus, to say it <quote>runs counter</quote> to the mission
of promoting intellectual property rights reveals an extraordinary gap
in understanding—the sort of mistake that is excusable in a
first-year law student, but an embarrassment from a high government
official dealing with intellectual property issues.
</para>
+<indexterm><primary>World Summit on the Information Society (WSIS)</primary></indexterm>
+<indexterm><primary>drugs</primary><secondary>pharmaceutical</secondary></indexterm>
+<indexterm><primary>generic drugs</primary></indexterm>
+<indexterm><primary>patents</primary><secondary>on pharmaceuticals</secondary></indexterm>
<para>
-Second, who ever said that WIPO's exclusive aim was to "promote"
+Second, who ever said that WIPO's exclusive aim was to <quote>promote</quote>
intellectual property maximally? As I had been scolded at the
preparatory conference of WSIS, WIPO is to consider not only how best
to protect intellectual property, but also what the best balance of
Does the public domain weaken intellectual property? Would it have
been better if the protocols of the Internet had been patented?
</para>
+<indexterm><primary>Gates, Bill</primary></indexterm>
<para>
Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
rights are held by individuals and corporations. They get to decide
-what to do with those rights because, again, they are their rights. If
-they want to "waive" or "disclaim" their rights, that is, within our
-tradition, totally appropriate. When Bill Gates gives away more than
-$20 billion to do good in the world, that is not inconsistent with the
-objectives of the property system. That is, on the contrary, just what
-a property system is supposed to be about: giving individuals the
-right to decide what to do with their property.
-<indexterm><primary>Gates, Bill</primary></indexterm>
+what to do with those rights because, again, they are
+<emphasis>their</emphasis> rights. If they want to <quote>waive</quote> or
+<quote>disclaim</quote> their rights, that is, within our tradition, totally
+appropriate. When Bill Gates gives away more than $20 billion to do
+good in the world, that is not inconsistent with the objectives of the
+property system. That is, on the contrary, just what a property system
+is supposed to be about: giving individuals the right to decide what
+to do with <emphasis>their</emphasis> property.
</para>
+<indexterm id='idxboland' class='startofrange'><primary>Boland, Lois</primary></indexterm>
<para>
When Ms. Boland says that there is something wrong with a meeting
-"which has as its purpose to disclaim or waive such rights," she's
+<quote>which has as its purpose to disclaim or waive such rights,</quote> she's
saying that WIPO has an interest in interfering with the choices of
<!-- PAGE BREAK 274 -->
the individuals who own intellectual property rights. That somehow,
-WIPO's objective should be to stop an individual from "waiving" or
-"disclaiming" an intellectual property right. That the interest of
+WIPO's objective should be to stop an individual from <quote>waiving</quote> or
+<quote>disclaiming</quote> an intellectual property right. That the interest of
WIPO is not just that intellectual property rights be maximized, but
that they also should be exercised in the most extreme and restrictive
way possible.
</para>
+<indexterm id='idxfeudalsystem' class='startofrange'><primary>feudal system</primary></indexterm>
+<indexterm id='idxpropertyrightsfeudalsystemof' class='startofrange'><primary>property rights</primary><secondary>feudal system of</secondary></indexterm>
<para>
There is a history of just such a property system that is well known
-in the Anglo-American tradition. It is called "feudalism." Under
+in the Anglo-American tradition. It is called <quote>feudalism.</quote> Under
feudalism, not only was property held by a relatively small number of
individuals and entities. And not only were the rights that ran with
that property powerful and extensive. But the feudal system had a
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
<!-- f10. -->
-See Drahos with Braithwaite, Information Feudalism, 210–20.
+See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, 210–20.
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
We will have an information society. That much is certain. Our only
-choice now is whether that information society will be free or
-feudal. The trend is toward the feudal.
+choice now is whether that information society will be
+<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is
+toward the feudal.
</para>
+<indexterm startref='idxfeudalsystem' class='endofrange'/>
+<indexterm startref='idxpropertyrightsfeudalsystemof' class='endofrange'/>
<para>
When this battle broke, I blogged it. A spirited debate within the
comment section ensued. Ms. Boland had a number of supporters who
that was particularly depressing for me. An anonymous poster wrote,
</para>
<blockquote>
+<indexterm startref='idxintellectualpropertyrightsinternationalorganizationonissuesof2' class='endofrange'/>
+<indexterm startref='idxworldintellectualpropertyorganizationwipo2' class='endofrange'/>
<para>
George, you misunderstand Lessig: He's only talking about the world as
-it should be ("the goal of WIPO, and the goal of any government,
+it should be (<quote>the goal of WIPO, and the goal of any government,
should be to promote the right balance of intellectual property rights,
-not simply to promote intellectual property rights"), not as it is. If
+not simply to promote intellectual property rights</quote>), not as it is. If
we were talking about the world as it is, then of course Boland didn't
say anything wrong. But in the world
<!-- PAGE BREAK 275 -->
whether Republican or Democrat. My only illusion apparently is about
whether our government should speak the truth or not.)
</para>
+<indexterm startref='idxboland' class='endofrange'/>
<para>
Obviously, however, the poster was not supporting that idea. Instead,
the poster was ridiculing the very idea that in the real world, the
-"goal" of a government should be "to promote the right balance" of
+<quote>goal</quote> of a government should be <quote>to promote the right balance</quote> of
intellectual property. That was obviously silly to him. And it
-obviously betrayed, he believed, my own silly utopianism. "Typical for
-an academic," the poster might well have continued.
+obviously betrayed, he believed, my own silly utopianism. <quote>Typical for
+an academic,</quote> the poster might well have continued.
</para>
<para>
I understand criticism of academic utopianism. I think utopianism is
</para>
<para>
But when it has become silly to suppose that the role of our
-government should be to "seek balance," then count me with the silly,
+government should be to <quote>seek balance,</quote> then count me with the silly,
for that means that this has become quite serious indeed. If it should
be obvious to everyone that the government does not seek balance, that
the government is simply the tool of the most powerful lobbyists, that
It might be crazy to argue that we should preserve a tradition that has
been part of our tradition for most of our history—free culture.
</para>
-<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<para>
-If this is crazy, then let there be more crazies. Soon. There are
-moments of hope in this struggle. And moments that surprise. When the
-FCC was considering relaxing ownership rules, which would thereby
-further increase the concentration in media ownership, an
-extraordinary bipartisan coalition formed to fight this change. For
-perhaps the first time in history, interests as diverse as the NRA,
-the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
-for Peace organized to oppose this change in FCC policy. An
-astonishing 700,000 letters were sent to the FCC, demanding more
-hearings and a different result.
-<indexterm><primary>Turner, Ted</primary></indexterm>
+If this is crazy, then let there be more crazies. Soon.
+</para>
+<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<indexterm><primary>Safire, William</primary></indexterm>
+<indexterm><primary>Turner, Ted</primary></indexterm>
+<para>
+<emphasis role='strong'>There are moments</emphasis> of hope in this
+struggle. And moments that surprise. When the FCC was considering
+relaxing ownership rules, which would thereby further increase the
+concentration in media ownership, an extraordinary bipartisan
+coalition formed to fight this change. For perhaps the first time in
+history, interests as diverse as the NRA, the ACLU, Moveon.org,
+William Safire, Ted Turner, and CodePink Women for Peace organized to
+oppose this change in FCC policy. An astonishing 700,000 letters were
+sent to the FCC, demanding more hearings and a different result.
</para>
<para>
This activism did not stop the FCC, but soon after, a broad coalition
It is therefore significant that so many would rally to demand
competition and increased diversity. Still, if the rally is understood
as being about bigness alone, it is not terribly surprising. We
-Americans have a long history of fighting "big," wisely or not. That
-we could be motivated to fight "big" again is not something new.
+Americans have a long history of fighting <quote>big,</quote> wisely or not. That
+we could be motivated to fight <quote>big</quote> again is not something new.
</para>
<para>
It would be something new, and something very important, if an equal
number could be rallied to fight the increasing extremism built within
-the idea of "intellectual property." Not because balance is alien to
+the idea of <quote>intellectual property.</quote> Not because balance is alien to
our tradition; indeed, as I've argued, balance is our tradition. But
because the muscle to think critically about the scope of anything
-called "property" is not well exercised within this tradition anymore.
+called <quote>property</quote> is not well exercised within this tradition anymore.
</para>
<para>
If we were Achilles, this would be our heel. This would be the place
</para>
<indexterm><primary>Dylan, Bob</primary></indexterm>
<para>
-As I write these final words, the news is filled with stories about
-the RIAA lawsuits against almost three hundred individuals.<footnote><para>
+<emphasis role='strong'>As I write</emphasis> these final words, the
+news is filled with stories about the RIAA lawsuits against almost
+three hundred individuals.<footnote><para>
<!-- f11. -->
-John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September
+John Borland, <quote>RIAA Sues 261 File Swappers,</quote> CNET News.com, September
2003, available at
<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul
-R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
+R. La Monica, <quote>Music Industry Sues Swappers,</quote> CNN/Money, 8 September
2003, available at
<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni
-Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
-N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
-September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
+Sangha and Phyllis Furman with Robert Gearty, <quote>Sued for a Song,
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</quote> <citetitle>New York Daily News</citetitle>, 9
+September 2003, 3; Frank Ahrens, <quote>RIAA's Lawsuits Meet Surprised
Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
-Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
+Defendants,</quote> <citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean,
+<quote>Schoolgirl Settles with RIAA,</quote> <citetitle>Wired News</citetitle>, 10 September 2003,
available at
<ulink url="http://free-culture.cc/notes/">link #67</ulink>.
</para></footnote>
-Eminem has just been sued for "sampling" someone else's
+Eminem has just been sued for <quote>sampling</quote> someone else's
music.<footnote><para>
<!-- f12. -->
-Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+Jon Wiederhorn, <quote>Eminem Gets Sued … by a Little Old Lady,</quote>
mtv.com, 17 September 2003, available at
<ulink url="http://free-culture.cc/notes/">link #68</ulink>.
</para></footnote>
-The story about Bob Dylan "stealing" from a Japanese author has just
+The story about Bob Dylan <quote>stealing</quote> from a Japanese author has just
finished making the rounds.<footnote><para>
<!-- f13. -->
-Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
-Dylan Songs," Kansascity.com, 9 July 2003, available at
+Kenji Hall, Associated Press, <quote>Japanese Book May Be Inspiration for
+Dylan Songs,</quote> Kansascity.com, 9 July 2003, available at
<ulink url="http://free-culture.cc/notes/">link #69</ulink>.
<!-- PAGE BREAK 334 -->
</para></footnote>
An insider from Hollywood—who insists he must remain
-anonymous—reports "an amazing conversation with these studio
+anonymous—reports <quote>an amazing conversation with these studio
guys. They've got extraordinary [old] content that they'd love to use
but can't because they can't begin to clear the rights. They've got
scores of kids who could do amazing things with the content, but it
-would take scores of lawyers to clean it first." Congressmen are
+would take scores of lawyers to clean it first.</quote> Congressmen are
talking about deputizing computer viruses to bring down computers
thought to violate the law. Universities are threatening expulsion for
kids who use a computer to share content.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>BBC</primary></indexterm>
+<indexterm><primary>Brazil, free culture in</primary></indexterm>
<indexterm><primary>Creative Commons</primary></indexterm>
<indexterm><primary>Gil, Gilberto</primary></indexterm>
+<indexterm><primary>United Kingdom</primary><secondary>public creative archive in</secondary></indexterm>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
-that it will build a "Creative Archive," from which British citizens can
+that it will build a <quote>Creative Archive,</quote> from which British citizens can
download BBC content, and rip, mix, and burn it.<footnote><para>
-<!-- f14. --> "BBC Plans to Open Up Its Archive to the Public," BBC press release,
+<!-- f14. --> <quote>BBC Plans to Open Up Its Archive to the Public,</quote> BBC press release,
24 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
</para></footnote>
content and free licenses in that Latin American
country.<footnote><para>
<!-- f15. -->
-"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003,
+<quote>Creative Commons and Brazil,</quote> Creative Commons Weblog, 6 August 2003,
available at
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
</para></footnote>
</para>
</chapter>
-<chapter id="c-afterword">
+<chapter label="16" id="c-afterword">
<title>AFTERWORD</title>
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that something
-must be done to change where we are heading. The balance of this book
-maps what might be done.
+<emphasis role='strong'>At least some</emphasis> who have read this
+far will agree with me that something must be done to change where we
+are heading. The balance of this book maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
</para>
<!-- PAGE BREAK 281 -->
-<sect1 id="usnow">
+<section id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so far
-has been framed at the extremes—as a grand either/or: either
-property or anarchy, either total control or artists won't be paid. If
-that really is the choice, then the warriors should win.
+<emphasis role='strong'>Common sense</emphasis> is with the copyright
+warriors because the debate so far has been framed at the
+extremes—as a grand either/or: either property or anarchy,
+either total control or artists won't be paid. If that really is the
+choice, then the warriors should win.
</para>
<para>
The mistake here is the error of the excluded middle. There are
extremes in this debate, but the extremes are not all that there
-is. There are those who believe in maximal copyright—"All Rights
-Reserved"— and those who reject copyright—"No Rights
-Reserved." The "All Rights Reserved" sorts believe that you should ask
-permission before you "use" a copyrighted work in any way. The "No
-Rights Reserved" sorts believe you should be able to do with content
+is. There are those who believe in maximal copyright—<quote>All Rights
+Reserved</quote>— and those who reject copyright—<quote>No Rights
+Reserved.</quote> The <quote>All Rights Reserved</quote> sorts believe that you should ask
+permission before you <quote>use</quote> a copyrighted work in any way. The <quote>No
+Rights Reserved</quote> sorts believe you should be able to do with content
as you wish, regardless of whether you have permission or not.
</para>
+<indexterm id='idxinternetdevelopmentof2' class='startofrange'><primary>Internet</primary><secondary>development of</secondary></indexterm>
+<indexterm id='idxinternetinitialfreecharacterof' class='startofrange'><primary>Internet</primary><secondary>initial free character of</secondary></indexterm>
<para>
When the Internet was first born, its initial architecture effectively
-tilted in the "no rights reserved" direction. Content could be copied
+tilted in the <quote>no rights reserved</quote> direction. Content could be copied
perfectly and cheaply; rights could not easily be controlled. Thus,
regardless of anyone's desire, the effective regime of copyright under
the
<!-- PAGE BREAK 282 -->
-original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
+original design of the Internet was <quote>no rights reserved.</quote> Content was
+<quote>taken</quote> regardless of the rights. Any rights were effectively
unprotected.
</para>
<para>
book. Through legislation, litigation, and changes to the network's
design, copyright holders have been able to change the essential
character of the environment of the original Internet. If the original
-architecture made the effective default "no rights reserved," the
-future architecture will make the effective default "all rights
-reserved." The architecture and law that surround the Internet's
+architecture made the effective default <quote>no rights reserved,</quote> the
+future architecture will make the effective default <quote>all rights
+reserved.</quote> The architecture and law that surround the Internet's
design will increasingly produce an environment where all use of
-content requires permission. The "cut and paste" world that defines
-the Internet today will become a "get permission to cut and paste"
+content requires permission. The <quote>cut and paste</quote> world that defines
+the Internet today will become a <quote>get permission to cut and paste</quote>
world that is a creator's nightmare.
</para>
+<indexterm startref='idxinternetdevelopmentof2' class='endofrange'/>
+<indexterm startref='idxinternetinitialfreecharacterof' class='endofrange'/>
<para>
What's needed is a way to say something in the middle—neither
-"all rights reserved" nor "no rights reserved" but "some rights
-reserved"— and thus a way to respect copyrights but enable
+<quote>all rights reserved</quote> nor <quote>no rights reserved</quote> but <quote>some rights
+reserved</quote>— and thus a way to respect copyrights but enable
creators to free content as they see fit. In other words, we need a
way to restore a set of freedoms that we could just take for granted
before.
</para>
-
-<sect2 id="examples">
+<section id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
+<indexterm id='idxfreeculturerestorationeffortsonpreviousaspectsof' class='startofrange'><primary>free culture</primary><secondary>restoration efforts on previous aspects of</secondary></indexterm>
+<indexterm id='idxbrowsing' class='startofrange'><primary>browsing</primary></indexterm>
+<indexterm id='idxprivacyrights2' class='startofrange'><primary>privacy rights</primary></indexterm>
<para>
If you step back from the battle I've been describing here, you will
recognize this problem from other contexts. Think about
about data about our lives that we broadcast to the world. If you
walked into a bookstore and browsed through some of the works of Karl
Marx, you didn't need to worry about explaining your browsing habits
-to your neighbors or boss. The "privacy" of your browsing habits was
+to your neighbors or boss. The <quote>privacy</quote> of your browsing habits was
assured.
</para>
<para>
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture
-for gathering data and hence a market constraint (cost) on anyone who
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>, your
+privacy was assured because of an inefficient architecture for
+gathering data and hence a market constraint (cost) on anyone who
wanted to gather that data. If you were a suspected spy for North
Korea, working for the CIA, no doubt your privacy would not be
assured. But that's because the CIA would (we hope) find it valuable
us (again, we can hope), spying doesn't pay. The highly inefficient
architecture of real space means we all enjoy a fairly robust amount
of privacy. That privacy is guaranteed to us by friction. Not by law
-(there is no law protecting "privacy" in public places), and in many
+(there is no law protecting <quote>privacy</quote> in public places), and in many
places, not by norms (snooping and gossip are just fun), but instead,
by the costs that friction imposes on anyone who would want to spy.
</para>
-<indexterm><primary>Amazon</primary></indexterm>
+<indexterm id='idxamazon' class='startofrange'><primary>Amazon</primary></indexterm>
+<indexterm><primary>cookies, Internet</primary></indexterm>
+<indexterm id='idxinternetprivacyprotectionon' class='startofrange'><primary>Internet</primary><secondary>privacy protection on</secondary></indexterm>
<para>
Enter the Internet, where the cost of tracking browsing in particular
has become quite tiny. If you're a customer at Amazon, then as you
browse the pages, Amazon collects the data about what you've looked
at. You know this because at the side of the page, there's a list of
-"recently viewed" pages. Now, because of the architecture of the Net
+<quote>recently viewed</quote> pages. Now, because of the architecture of the Net
and the function of cookies on the Net, it is easier to collect the
-data than not. The friction has disappeared, and hence any "privacy"
+data than not. The friction has disappeared, and hence any <quote>privacy</quote>
protected by the friction disappears, too.
</para>
+<indexterm><primary>libraries</primary><secondary>privacy rights in use of</secondary></indexterm>
<para>
Amazon, of course, is not the problem. But we might begin to worry
about libraries. If you're one of those crazy lefties who thinks that
-people should have the "right" to browse in a library without the
+people should have the <quote>right</quote> to browse in a library without the
government knowing which books you look at (I'm one of those lefties,
too), then this change in the technology of monitoring might concern
you. If it becomes simple to gather and sort who does what in
electronic spaces, then the friction-induced privacy of yesterday
disappears.
</para>
+<indexterm startref='idxbrowsing' class='endofrange'/>
+<indexterm startref='idxamazon' class='endofrange'/>
<para>
-It is this reality that explains the push of many to define "privacy"
+It is this reality that explains the push of many to define <quote>privacy</quote>
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
friction did.<footnote><para>
<!-- f1. -->
-See, for example, Marc Rotenberg, "Fair Information Practices and the
-Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
-Law Review 1 (2001): par. 6–18, available at
+See, for example, Marc Rotenberg, <quote>Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get),</quote> <citetitle>Stanford Technology
+Law Review</citetitle> 1 (2001): par. 6–18, available at
<ulink url="http://free-culture.cc/notes/">link #72</ulink>
(describing examples in which technology defines privacy policy). See
-also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
-in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
+also Jeffrey Rosen, <citetitle>The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age</citetitle> (New York: Random House, 2004) (mapping tradeoffs
between technology and privacy).</para></footnote>
And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
technology now forces those who believe in privacy to affirmatively
act where, before, privacy was given by default.
</para>
+<indexterm startref='idxprivacyrights2' class='endofrange'/>
+<indexterm startref='idxinternetprivacyprotectionon' class='endofrange'/>
+<indexterm><primary>Data General</primary></indexterm>
+<indexterm><primary>IBM</primary></indexterm>
+<indexterm id='idxfreesoftwareopensourcesoftwarefsoss2' class='startofrange'><primary>free software/open-source software (FS/OSS)</primary></indexterm>
<para>
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
Data General machine on an IBM machine, so Data General and IBM didn't
care much about controlling their software.
</para>
-<indexterm><primary>Stallman, Richard</primary></indexterm>
+<indexterm
id='idxstallmanrichard' class='startofrange'><primary>Stallman, Richard</primary></indexterm>
<para>
That was the world Richard Stallman was born into, and while he was a
researcher at MIT, he grew to love the community that developed when
too, was knowledge. Why shouldn't it be open for criticism like
anything else?
</para>
+<indexterm id='idxproprietarycode' class='startofrange'><primary>proprietary code</primary></indexterm>
<para>
No one answered that question. Instead, the architecture of revenue
for computing changed. As it became possible to import programs from
it, then the freedom to change and share software would be
fundamentally weakened.
</para>
+<indexterm startref='idxproprietarycode' class='endofrange'/>
+<indexterm><primary>Torvalds, Linus</primary></indexterm>
<para>
Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
-was the birth of the GNU project, into which Linus Torvalds's "Linux"
+was the birth of the GNU project, into which Linus Torvalds's <quote>Linux</quote>
kernel was added to produce the GNU/Linux operating system.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
Stallman's technique was to use copyright law to build a world of
space where free software would survive. He was actively protecting
what before had been passively guaranteed.
</para>
+<indexterm startref='idxfreesoftwareopensourcesoftwarefsoss2' class='endofrange'/>
+<indexterm startref='idxstallmanrichard' class='endofrange'/>
+<indexterm id='idxacademicjournals' class='startofrange'><primary>academic journals</primary></indexterm>
+<indexterm id='idxscientificjournals' class='startofrange'><primary>scientific journals</primary></indexterm>
<para>
Finally, consider a very recent example that more directly resonates
with the story of this book. This is the shift in the way academic and
scientific journals are produced.
</para>
+<indexterm id='idxlexisandwestlaw' class='startofrange'><primary>Lexis and Westlaw</primary></indexterm>
+<indexterm id='idxlawdatabasesofcasereportsin' class='startofrange'><primary>law</primary><secondary>databases of case reports in</secondary></indexterm>
+<indexterm><primary>libraries</primary><secondary>journals in</secondary></indexterm>
+<indexterm><primary>Supreme Court, U.S.</primary><secondary>access to opinions of</secondary></indexterm>
<para>
As digital technologies develop, it is becoming obvious to many that
printing thousands of copies of journals every month and sending them
to charge users for the privilege of gaining access to that Supreme
Court opinion through their respective services.
</para>
+<indexterm><primary>public domain</primary><secondary>access fees for material in</secondary></indexterm>
+<indexterm id='idxpublicdomainlicensesystemforrebuildingof' class='startofrange'><primary>public domain</primary><secondary>license system for rebuilding of</secondary></indexterm>
<para>
There's nothing wrong in general with this, and indeed, the ability to
charge for access to even public domain materials is a good incentive
domain, then there could be nothing wrong, in principle, with selling
access to material that is not in the public domain.
</para>
+<indexterm startref='idxlexisandwestlaw' class='endofrange'/>
+<indexterm startref='idxlawdatabasesofcasereportsin' class='endofrange'/>
<para>
But what if the only way to get access to social and scientific data
was through proprietary services? What if no one had the ability to
browse this data except by paying for a subscription?
</para>
+<indexterm id='idxlibrariesjournalsin' class='startofrange'><primary>libraries</primary><secondary>journals in</secondary></indexterm>
<para>
As many are beginning to notice, this is increasingly the reality with
scientific journals. When these journals were distributed in paper
software, a changing technology and market shrink a freedom taken for
granted before.
</para>
+<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
+<indexterm><primary>Public Library of Science (PLoS)</primary></indexterm>
<para>
This shrinking freedom has led many to take affirmative steps to
restore the freedom that has been lost. The Public Library of Science
available for free. PLoS also sells a print version of its work, but
the copyright for the print journal does not inhibit the right of
anyone to redistribute the work for free.
-<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
+<indexterm startref='idxlibrariesjournalsin' class='endofrange'/>
<para>
This is one of many such efforts to restore a freedom taken for
granted before, but now threatened by changing technology and markets.
presumptively a good—especially when it helps spread knowledge
and science.
</para>
-
-</sect2>
-<sect2 id="oneidea">
+<indexterm startref='idxfreeculturerestorationeffortsonpreviousaspectsof' class='endofrange'/>
+<indexterm startref='idxacademicjournals' class='endofrange'/>
+<indexterm startref='idxscientificjournals' class='endofrange'/>
+</section>
+<section id="oneidea">
<title>Rebuilding Free Culture: One Idea</title>
-<indexterm id="idxcc" class='startofrange'>
- <primary>Creative Commons</primary>
-</indexterm>
+<indexterm id='idxcreativecommons' class='startofrange'><primary>Creative Commons</primary></indexterm>
<para>
The same strategy could be applied to culture, as a response to the
increasing control effected through law and technology.
</para>
+<indexterm><primary>Stanford University</primary></indexterm>
<para>
Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
-Stanford University. Its aim is to build a layer of reasonable
-copyright on top of the extremes that now reign. It does this by
-making it easy for people to build upon other people's work, by making
-it simple for creators to express the freedom for others to take and
-build upon their work. Simple tags, tied to human-readable
-descriptions, tied to bulletproof licenses, make this possible.
-</para>
-<para>
-Simple—which means without a middleman, or without a lawyer. By
-developing a free set of licenses that people can attach to their
-content, Creative Commons aims to mark a range of content that can
-easily, and reliably, be built upon. These tags are then linked to
-machine-readable versions of the license that enable computers
-automatically to identify content that can easily be shared. These
-three expressions together—a legal license, a human-readable
-description, and
+Stanford University. Its aim is to build a layer of
+<emphasis>reasonable</emphasis> copyright on top of the extremes that
+now reign. It does this by making it easy for people to build upon
+other people's work, by making it simple for creators to express the
+freedom for others to take and build upon their work. Simple tags,
+tied to human-readable descriptions, tied to bulletproof licenses,
+make this possible.
+</para>
+<para>
+<emphasis>Simple</emphasis>—which means without a middleman, or
+without a lawyer. By developing a free set of licenses that people
+can attach to their content, Creative Commons aims to mark a range of
+content that can easily, and reliably, be built upon. These tags are
+then linked to machine-readable versions of the license that enable
+computers automatically to identify content that can easily be
+shared. These three expressions together—a legal license, a
+human-readable description, and
<!-- PAGE BREAK 288 -->
machine-readable tags—constitute a Creative Commons license. A
Creative Commons license constitutes a grant of freedom to anyone who
accesses the license, and more importantly, an expression of the ideal
that the person associated with the license believes in something
-different than the "All" or "No" extremes. Content is marked with the
+different than the <quote>All</quote> or <quote>No</quote> extremes. Content is marked with the
CC mark, which does not mean that copyright is waived, but that
certain freedoms are given.
</para>
creator can choose a license that permits any use, so long as
attribution is given. She can choose a license that permits only
noncommercial use. She can choose a license that permits any use so
-long as the same freedoms are given to other uses ("share and share
-alike"). Or any use so long as no derivative use is made. Or any use
+long as the same freedoms are given to other uses (<quote>share and share
+alike</quote>). Or any use so long as no derivative use is made. Or any use
at all within developing nations. Or any sampling use, so long as full
copies are not made. Or lastly, any educational use.
</para>
content available. And that content will in turn enable us to rebuild
a public domain.
</para>
+<indexterm><primary>Garlick, Mia</primary></indexterm>
<para>
This is just one project among many within the Creative Commons. And
of course, Creative Commons is not the only organization pursuing such
domain or in getting legislators to help build a public domain. Our
aim is to build a movement of consumers and producers
<!-- PAGE BREAK 289 -->
-of content ("content conducers," as attorney Mia Garlick calls them)
+of content (<quote>content conducers,</quote> as attorney Mia Garlick calls them)
who help build the public domain and, by their work, demonstrate the
importance of the public domain to other creativity.
-<indexterm><primary>Garlick, Mia</primary></indexterm>
</para>
+<indexterm><primary>Jefferson, Thomas</primary></indexterm>
<para>
-The aim is not to fight the "All Rights Reserved" sorts. The aim is to
+The aim is not to fight the <quote>All Rights Reserved</quote> sorts. The aim is to
complement them. The problems that the law creates for us as a culture
are produced by insane and unintended consequences of laws written
centuries ago, applied to a technology that only Jefferson could have
them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
</para>
+<indexterm id='idxbooksfreeonline2' class='startofrange'><primary>books</primary><secondary>free on-line releases of</secondary></indexterm>
<para>
Why would creators participate in giving up total control? Some
participate to better spread their content. Cory Doctorow, for
-example, is a science fiction author. His first novel, Down and Out in
-the Magic Kingdom, was released on-line and for free, under a Creative
+example, is a science fiction author. His first novel, <citetitle>Down and Out in
+the Magic Kingdom</citetitle>, was released on-line and for free, under a Creative
Commons license, on the same day that it went on sale in bookstores.
</para>
<para>
Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
will download Cory's book, like it, and then decide to buy it. Call
them (2)-goods. If there are more (2)-goods than bad-(1)s, the
-strategy of releasing Cory's book free on-line will probably increase
-sales of Cory's book.
+strategy of releasing Cory's book free on-line will probably
+<emphasis>increase</emphasis> sales of Cory's book.
</para>
<para>
Indeed, the experience of his publisher clearly supports that
publisher had expected. This first novel of a science fiction author
was a total success.
</para>
+<indexterm><primary>Free for All (Wayner)</primary></indexterm>
+<indexterm><primary>Wayner, Peter</primary></indexterm>
<para>
The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
<!-- PAGE BREAK 290 -->
-who wrote a book about the free software movement titled Free for All,
+who wrote a book about the free software movement titled <citetitle>Free for All</citetitle>,
made an electronic version of his book free on-line under a Creative
Commons license after the book went out of print. He then monitored
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.
</para>
-<para>
-These are examples of using the Commons to better spread
-proprietary content. I believe that is a wonderful and common use of
-the Commons. There are others who use Creative Commons licenses for
-other reasons. Many who use the "sampling license" do so because
-anything else would be hypocritical. The sampling license says that
-others are free, for commercial or noncommercial purposes, to sample
-content from the licensed work; they are just not free to make full
-copies of the licensed work available to others. This is consistent
-with their own art—they, too, sample from others. Because the
-legal costs of sampling are so high (Walter Leaphart, manager of the
-rap group Public Enemy, which was born sampling the music of others,
-has stated that he does not "allow" Public Enemy to sample anymore,
-because the legal costs are so high<footnote><para>
+<indexterm startref='idxbooksfreeonline2' class='endofrange'/>
+<indexterm><primary>Public Enemy</primary></indexterm>
+<indexterm><primary>rap music</primary></indexterm>
+<indexterm><primary>Leaphart, Walter</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
+Commons. There are others who use Creative Commons licenses for other
+reasons. Many who use the <quote>sampling license</quote> do so because anything
+else would be hypocritical. The sampling license says that others are
+free, for commercial or noncommercial purposes, to sample content from
+the licensed work; they are just not free to make full copies of the
+licensed work available to others. This is consistent with their own
+art—they, too, sample from others. Because the
+<emphasis>legal</emphasis> costs of sampling are so high (Walter
+Leaphart, manager of the rap group Public Enemy, which was born
+sampling the music of others, has stated that he does not <quote>allow</quote>
+Public Enemy to sample anymore, because the legal costs are so
+high<footnote><para>
<!-- f2. -->
-
-Willful Infringement: A Report from the Front Lines of the Real
-Culture Wars (2003), produced by Jed Horovitz, directed by Greg
+<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
<ulink url="http://free-culture.cc/notes/">link #72</ulink>.
</para></footnote>),
Finally, there are many who mark their content with a Creative Commons
license just because they want to express to others the importance of
balance in this debate. If you just go along with the system as it is,
-you are effectively saying you believe in the "All Rights Reserved"
+you are effectively saying you believe in the <quote>All Rights Reserved</quote>
model. Good for you, but many do not. Many believe that however
appropriate that rule is for Hollywood and freaks, it is not an
appropriate description of how most creators view the rights
associated with their content. The Creative Commons license expresses
-this notion of "Some Rights Reserved," and gives many the chance to
+this notion of <quote>Some Rights Reserved,</quote> and gives many the chance to
say it to others.
</para>
<para>
flexibly and cheaply. That difference, we believe, will enable
creativity to spread more easily.
</para>
-<indexterm startref="idxcc" class='endofrange'/>
-
+<indexterm startref='idxpublicdomainlicensesystemforrebuildingof' class='endofrange'/>
+<indexterm startref='idxcreativecommons' class='endofrange'/>
<!-- PAGE BREAK 292 -->
-</sect2>
-</sect1>
-<sect1 id="themsoon">
+</section>
+</section>
+<section id="themsoon">
<title>THEM, SOON</title>
<para>
-We will not reclaim a free culture by individual action alone. It will
-also take important reforms of laws. We have a long way to go before
-the politicians will listen to these ideas and implement these reforms.
-But that also means that we have time to build awareness around the
-changes that we need.
+<emphasis role='strong'>We will</emphasis> not reclaim a free culture
+by individual action alone. It will also take important reforms of
+laws. We have a long way to go before the politicians will listen to
+these ideas and implement these reforms. But that also means that we
+have time to build awareness around the changes that we need.
</para>
<para>
In this chapter, I outline five kinds of changes: four that are general,
to our end.
</para>
-<sect2 id="formalities">
+<section id="formalities">
<title>1. More Formalities</title>
<para>
If you buy a house, you have to record the sale in a deed. If you buy land
In contrast, under current copyright law, you automatically get a
copyright, regardless of whether you comply with any formality. You
don't have to register. You don't even have to mark your content. The
-default is control, and "formalities" are banished.
+default is control, and <quote>formalities</quote> are banished.
</para>
<para>
Why?
</para>
<para>
-As I suggested in chapter 10, the motivation to abolish formalities
-was a good one. In the world before digital technologies, formalities
+As I suggested in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, the motivation to abolish formalities was a
+good one. In the world before digital technologies, formalities
imposed a burden on copyright holders without much benefit. Thus, it
was progress when the law relaxed the formal requirements that a
copyright owner must bear to protect and secure his work. Those
trace— there is no simple way to know how to get permission. Yet
given the massive increase in the scope of copyright's rule, getting
permission is a necessary step for any work that builds upon our
-past. And thus, the lack of formalities forces many into silence where
-they otherwise could speak.
+past. And thus, the <emphasis>lack</emphasis> of formalities forces
+many into silence where they otherwise could speak.
</para>
<para>
The law should therefore change this requirement<footnote><para>
<!-- PAGE BREAK 294 -->
-<sect3 id="registration">
+<section id="registration">
<title>REGISTRATION AND RENEWAL</title>
<para>
Under the old system, a copyright owner had to file a registration
of registrations that would facilitate the licensing of content.
</para>
-</sect3>
-<sect3 id="marking">
+</section>
+<section id="marking">
<title>MARKING</title>
<para>
It used to be that the failure to include a copyright notice on a
solved here. In my view, the law of derivatives creates a more complicated
system than is justified by the marginal incentive it creates.
</para></footnote>
-The meaning of an unmarked work would therefore be "use unless someone
-complains." If someone does complain, then the obligation would be to
+The meaning of an unmarked work would therefore be <quote>use unless someone
+complains.</quote> If someone does complain, then the obligation would be to
stop using the work in any new
<!-- PAGE BREAK 296 -->
work from then on though no penalty would attach for existing uses.
Copyright Office's role to that of approving standards for marking
content that have been crafted elsewhere.
</para>
+<indexterm><primary>CDs</primary><secondary>copyright marking of</secondary></indexterm>
<para>
For example, if a recording industry association devises a method for
marking CDs, it would propose that to the Copyright Office. The
Copyright Office would hold a hearing, at which other proposals could
be made. The Copyright Office would then select the proposal that it
-judged preferable, and it would base that choice solely upon the
-consideration of which method could best be integrated into the
-registration and renewal system. We would not count on the government
-to innovate; but we would count on the government to keep the product
-of innovation in line with its other important functions.
+judged preferable, and it would base that choice
+<emphasis>solely</emphasis> upon the consideration of which method
+could best be integrated into the registration and renewal system. We
+would not count on the government to innovate; but we would count on
+the government to keep the product of innovation in line with its
+other important functions.
</para>
<para>
Finally, marking content clearly would simplify registration
</para>
<!-- PAGE BREAK 297 -->
-</sect3>
-</sect2>
-<sect2 id="shortterms">
+</section>
+</section>
+<section id="shortterms">
<title>2. Shorter Terms</title>
<para>
The term of copyright has gone from fourteen years to ninety-five
natural authors.
</para>
<para>
-In The Future of Ideas, I proposed a seventy-five-year term, granted
-in five-year increments with a requirement of renewal every five
-years. That seemed radical enough at the time. But after we lost
-Eldred v. Ashcroft, the proposals became even more radical. The
-Economist endorsed a proposal for a fourteen-year copyright
-term.<footnote><para>
+In <citetitle>The Future of Ideas</citetitle>, I proposed a seventy-five-year term,
+granted in five-year increments with a requirement of renewal every
+five years. That seemed radical enough at the time. But after we lost
+<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, the proposals became even more
+radical. <citetitle>The Economist</citetitle> endorsed a proposal for a fourteen-year
+copyright term.<footnote><para>
+
<!-- f3. -->
-"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
+<quote>A Radical Rethink,</quote> <citetitle>Economist</citetitle>, 366:8308 (25 January 2003): 15,
available at
<ulink url="http://free-culture.cc/notes/">link #74</ulink>.
</para></footnote>
<orderedlist numeration="arabic">
<listitem><para>
<!-- (1) -->
-Keep it short: The term should be as long as necessary to give
-incentives to create, but no longer. If it were tied to very strong
-protections for authors (so authors were able to reclaim rights from
-publishers), rights to the same work (not derivative works) might be
-extended further. The key is not to tie the work up with legal
-regulations when it no longer benefits an author. </para></listitem>
+<emphasis>Keep it short:</emphasis> The term should be as long as
+necessary to give incentives to create, but no longer. If it were tied
+to very strong protections for authors (so authors were able to
+reclaim rights from publishers), rights to the same work (not
+derivative works) might be extended further. The key is not to tie the
+work up with legal regulations when it no longer benefits an author.
+</para></listitem>
<listitem><para>
<!-- (2) -->
-Keep it simple: The line between the public domain and protected
-content must be kept clear. Lawyers like the fuzziness of "fair use,"
-and the distinction between "ideas" and "expression." That kind of
-law gives them lots of work. But our framers had a simpler idea in
-mind: protected versus unprotected. The value of short terms is that
-there is little need to build exceptions into copyright when the term
-itself is kept short. A clear and active "lawyer-free zone" makes the
-complexities of "fair use" and "idea/expression" less necessary to
-navigate.
+<emphasis>Keep it simple:</emphasis> The line between the public
+domain and protected content must be kept clear. Lawyers like the
+fuzziness of <quote>fair use,</quote> and the distinction between <quote>ideas</quote> and
+<quote>expression.</quote> That kind of law gives them lots of work. But our
+framers had a simpler idea in mind: protected versus unprotected. The
+value of short terms is that there is little need to build exceptions
+into copyright when the term itself is kept short. A clear and active
+<quote>lawyer-free zone</quote> makes the complexities of <quote>fair use</quote> and
+<quote>idea/expression</quote> less necessary to navigate.
<!-- PAGE BREAK 298 -->
</para></listitem>
-<listitem><para>
+<listitem>
+<indexterm><primary>veterans' pensions</primary></indexterm>
+<para>
<!-- (3) -->
-Keep it alive: Copyright should have to be renewed. Especially if the
-maximum term is long, the copyright owner should be required to signal
-periodically that he wants the protection continued. This need not be
-an onerous burden, but there is no reason this monopoly protection has
-to be granted for free. On average, it takes ninety minutes for a
-veteran to apply for a pension.<footnote><para>
+<emphasis>Keep it alive:</emphasis> Copyright should have to be
+renewed. Especially if the maximum term is long, the copyright owner
+should be required to signal periodically that he wants the protection
+continued. This need not be an onerous burden, but there is no reason
+this monopoly protection has to be granted for free. On average, it
+takes ninety minutes for a veteran to apply for a
+pension.<footnote><para>
<!-- f4. -->
Department of Veterans Affairs, Veteran's Application for Compensation
and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
</para></listitem>
<listitem><para>
<!-- (4) -->
-Keep it prospective: Whatever the term of copyright should be, the
-clearest lesson that economists teach is that a term once given should
-not be extended. It might have been a mistake in 1923 for the law to
-offer authors only a fifty-six-year term. I don't think so, but it's
-possible. If it was a mistake, then the consequence was that we got
-fewer authors to create in 1923 than we otherwise would have. But we
-can't correct that mistake today by increasing the term. No matter
-what we do today, we will not increase the number of authors who wrote
-in 1923. Of course, we can increase the reward that those who write
-now get (or alternatively, increase the copyright burden that smothers
-many works that are today invisible). But increasing their reward will
-not increase their creativity in 1923. What's not done is not done,
-and there's nothing we can do about that now. </para></listitem>
+<emphasis>Keep it prospective:</emphasis> Whatever the term of
+copyright should be, the clearest lesson that economists teach is that
+a term once given should not be extended. It might have been a mistake
+in 1923 for the law to offer authors only a fifty-six-year term. I
+don't think so, but it's possible. If it was a mistake, then the
+consequence was that we got fewer authors to create in 1923 than we
+otherwise would have. But we can't correct that mistake today by
+increasing the term. No matter what we do today, we will not increase
+the number of authors who wrote in 1923. Of course, we can increase
+the reward that those who write now get (or alternatively, increase
+the copyright burden that smothers many works that are today
+invisible). But increasing their reward will not increase their
+creativity in 1923. What's not done is not done, and there's nothing
+we can do about that now. </para></listitem>
</orderedlist>
<para>
-These changes together should produce an average copyright term
-that is much shorter than the current term. Until 1976, the average
-term was just 32.2 years. We should be aiming for the same.
+These changes together should produce an <emphasis>average</emphasis>
+copyright term that is much shorter than the current term. Until 1976,
+the average term was just 32.2 years. We should be aiming for the
+same.
</para>
<para>
-No doubt the extremists will call these ideas "radical." (After all, I
-call them "extremists.") But again, the term I recommended was longer
-than the term under Richard Nixon. How "radical" can it be to ask for
+No doubt the extremists will call these ideas <quote>radical.</quote> (After all, I
+call them <quote>extremists.</quote>) But again, the term I recommended was longer
+than the term under Richard Nixon. How <quote>radical</quote> can it be to ask for
a more generous copyright law than Richard Nixon presided over?
</para>
<!-- PAGE BREAK 299 -->
-</sect2>
-<sect2 id="freefairuse">
+</section>
+<section id="freefairuse">
<title>3. Free Use Vs. Fair Use</title>
+<indexterm><primary>land ownership, air traffic and</primary></indexterm>
+<indexterm><primary>property rights</primary><secondary>air traffic vs.</secondary></indexterm>
<para>
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
the emergence of that new technology.
</para>
<para>
-Our Constitution gives Congress the power to give authors "exclusive
-right" to "their writings." Congress has given authors an exclusive
-right to "their writings" plus any derivative writings (made by
+Our Constitution gives Congress the power to give authors <quote>exclusive
+right</quote> to <quote>their writings.</quote> Congress has given authors an exclusive
+right to <quote>their writings</quote> plus any derivative writings (made by
others) that are sufficiently close to the author's original
work. Thus, if I write a book, and you base a movie on that book, I
have the power to deny you the right to release that movie, even
-though that movie is not "my writing."
+though that movie is not <quote>my writing.</quote>
</para>
+<indexterm><primary>Kaplan, Benjamin</primary></indexterm>
<para>
Congress granted the beginnings of this right in 1870, when it
expanded the exclusive right of copyright to include a right to
control translations and dramatizations of a work.<footnote><para>
<!-- f5. -->
-Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
+Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New York: Columbia
University Press, 1967), 32.
</para></footnote>
The courts have expanded it slowly through judicial interpretation
Consider each limitation in turn.
</para>
<para>
-Term: If Congress wants to grant a derivative right, then that right
-should be for a much shorter term. It makes sense to protect John
+<emphasis>Term:</emphasis> If Congress wants to grant a derivative
+right, then that right should be for a much shorter term. It makes
+sense to protect John
<!-- PAGE BREAK 300 -->
Grisham's right to sell the movie rights to his latest novel (or at least
<indexterm><primary>Grisham, John</primary></indexterm>
</para>
<para>
-Scope: Likewise should the scope of derivative rights be narrowed.
-Again, there are some cases in which derivative rights are important.
-Those should be specified. But the law should draw clear lines around
-regulated and unregulated uses of copyrighted material. When all
-"reuse" of creative material was within the control of businesses,
-perhaps it made sense to require lawyers to negotiate the lines. It no
-longer makes sense for lawyers to negotiate the lines. Think about all
-the creative possibilities that digital technologies enable; now
-imagine pouring molasses into the machines. That's what this general
-requirement of permission does to the creative process. Smothers it.
+<emphasis>Scope:</emphasis> Likewise should the scope of derivative
+rights be narrowed. Again, there are some cases in which derivative
+rights are important. Those should be specified. But the law should
+draw clear lines around regulated and unregulated uses of copyrighted
+material. When all <quote>reuse</quote> of creative material was within the control
+of businesses, perhaps it made sense to require lawyers to negotiate
+the lines. It no longer makes sense for lawyers to negotiate the
+lines. Think about all the creative possibilities that digital
+technologies enable; now imagine pouring molasses into the
+machines. That's what this general requirement of permission does to
+the creative process. Smothers it.
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
This was the point that Alben made when describing the making of the
Clint Eastwood CD. While it makes sense to require negotiation for
Paul Goldstein.<footnote>
<para>
<!-- f7. -->
-Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
-Jukebox (Stanford: Stanford University Press, 2003), 187–216.
+Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the Celestial
+Jukebox</citetitle> (Stanford: Stanford University Press, 2003), 187–216.
<indexterm><primary>Goldstein, Paul</primary></indexterm>
</para></footnote>
His view is that the law should be written so that
a great deal of culture to others to cultivate. And under a statutory
rights regime, that reuse would earn artists more income.
</para>
-</sect2>
+</section>
-<sect2 id="liberatemusic">
+<section id="liberatemusic">
<title>4. Liberate the Music—Again</title>
<para>
The battle that got this whole war going was about music, so it
work, and to a performing artist to control copies of her performance.
</para>
<para>
-File-sharing networks complicate this model by enabling the
-spread of content for which the performer has not been paid. But of
-course, that's not all the file-sharing networks do. As I described in
-chapter 5, they enable four different kinds of sharing:
+File-sharing networks complicate this model by enabling the spread of
+content for which the performer has not been paid. But of course,
+that's not all the file-sharing networks do. As I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="piracy"/>, they enable
+four different kinds of sharing:
</para>
<orderedlist numeration="upperalpha">
<listitem><para>
owner plainly endorses.
</para></listitem>
</orderedlist>
+<indexterm><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
+<indexterm><primary>VCRs</primary></indexterm>
<para>
Any reform of the law needs to keep these different uses in focus. It
must avoid burdening type D even if it aims to eliminate type A. The
significantly weakened.
</para>
<para>
-As I said in chapter 5, the actual harm caused by sharing is
+As I said in chapter <xref xrefstyle="select: labelnumber"
+linkend="piracy"/>, the actual harm caused by sharing is
controversial. For the purposes of this chapter, however, I assume
the harm is real. I assume, in other words, that type A sharing is
significantly greater than type B, and is the dominant use of sharing
Internet. Imagine the Internet as ubiquitous as the best cell-phone
service, where with the flip of a device, you are connected.
</para>
-<para>
-In that world, it will be extremely easy to connect to services
-that give you access to content on the fly—such as Internet
-radio, content that is streamed to the user when the user
-demands. Here, then, is the critical point: When it is extremely easy
-to connect to services that give access to content, it will be easier
-to connect to services that give you access to content than it will be
-to download and store content on the many devices you will have for
-playing content. It will be easier, in other words, to subscribe than
-it will be to be a database manager, as everyone in the
+<indexterm><primary>cell phones, music streamed over</primary></indexterm>
+<para>
+In that world, it will be extremely easy to connect to services that
+give you access to content on the fly—such as Internet radio,
+content that is streamed to the user when the user demands. Here,
+then, is the critical point: When it is <emphasis>extremely</emphasis>
+easy to connect to services that give access to content, it will be
+<emphasis>easier</emphasis> to connect to services that give you
+access to content than it will be to download and store content
+<emphasis>on the many devices you will have for playing
+content</emphasis>. It will be easier, in other words, to subscribe
+than it will be to be a database manager, as everyone in the
download-sharing world of Napster-like technologies essentially
is. Content services will compete with content sharing, even if the
services charge money for the content they give access to. Already
cell-phone services in Japan offer music (for a fee) streamed over
cell phones (enhanced with plugs for headphones). The Japanese are
-paying for this content even though "free" content is available in the
+paying for this content even though <quote>free</quote> content is available in the
form of MP3s across the Web.<footnote><para>
<!-- f8. -->
-See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
+See, for example, <quote>Music Media Watch,</quote> The J@pan Inc. Newsletter, 3
April 2002, available at
<ulink url="http://free-culture.cc/notes/">link #76</ulink>.
</para></footnote>
</para>
<para>
This point about the future is meant to suggest a perspective on the
-present: It is emphatically temporary. The "problem" with file
+present: It is emphatically temporary. The <quote>problem</quote> with file
sharing—to the extent there is a real problem—is a problem
that will increasingly disappear as it becomes easier to connect to
the Internet. And thus it is an extraordinary mistake for policy
-makers today to be "solving" this problem in light of a technology
+makers today to be <quote>solving</quote> this problem in light of a technology
that will be gone tomorrow. The question should not be how to
regulate the Internet to eliminate file sharing (the Net will evolve
that problem away). The question instead should be how to assure that
and twenty-first-century technologies.
</para>
<para>
-The answer begins with recognizing that there are different "problems"
+The answer begins with recognizing that there are different <quote>problems</quote>
here to solve. Let's start with type D content—uncopyrighted
content or copyrighted content that the artist wants shared. The
-"problem" with this content is to make sure that the technology that
+<quote>problem</quote> with this content is to make sure that the technology that
would enable this kind of sharing is not rendered illegal. You can
think of it this way: Pay phones are used to deliver ransom demands,
no doubt. But there are many who need to use pay phones who have
order to eliminate kidnapping.
</para>
<para>
-Type C content raises a different "problem." This is content that was,
+Type C content raises a different <quote>problem.</quote> This is content that was,
at one time, published and is no longer available. It may be
unavailable because the artist is no longer valuable enough for the
record label he signed with to carry his work. Or it may be
law should be to facilitate the access to this content, ideally in a
way that returns something to the artist.
</para>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
<para>
Again, the model here is the used book store. Once a book goes out of
print, it may still be available in libraries and used book
owner when someone reads or buys an out-of-print book. That makes
total sense, of course, since any other system would be so burdensome
as to eliminate the possibility of used book stores' existing. But
-from the author's perspective, this "sharing" of his content without
+from the author's perspective, this <quote>sharing</quote> of his content without
his being compensated is less than ideal.
</para>
<para>
The model of used book stores suggests that the law could simply deem
out-of-print music fair game. If the publisher does not make copies of
the music available for sale, then commercial and noncommercial
-providers would be free, under this rule, to "share" that content,
+providers would be free, under this rule, to <quote>share</quote> that content,
even though the sharing involved making a copy. The copy here would be
incidental to the trade; in a context where commercial publishing has
ended, trading music should be as free as trading books.
content providers on the Internet, we should find a relatively simple
way to compensate those who are harmed.
</para>
+<indexterm id='idxpromisestokeepfisher' class='startofrange'><primary>Promises to Keep (Fisher)</primary></indexterm>
<para>
The idea would be a modification of a proposal that has been
floated by Harvard law professor William Fisher.<footnote>
<para>
-<!-- f9. --> William Fisher, Digital Music: Problems and Possibilities (last revised:
-10 October 2000), available at
-<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William Fisher, Promises to Keep:
-Technology, Law, and the Future of Entertainment (forthcoming) (Stanford:
-Stanford University Press, 2004), ch. 6, available at
+<!-- f9. -->
+<indexterm id='idxartistspayments3' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
+William Fisher, <citetitle>Digital Music: Problems and Possibilities</citetitle> (last
+revised: 10 October 2000), available at
+<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William
+Fisher, <citetitle>Promises to Keep: Technology, Law, and the Future of
+Entertainment</citetitle> (forthcoming) (Stanford: Stanford University Press,
+2004), ch. 6, available at
<ulink url="http://free-culture.cc/notes/">link #78</ulink>. Professor
Netanel has proposed a related idea that would exempt noncommercial
sharing from the reach of copyright and would establish compensation
-to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
-Noncommercial Use Levy to Allow Free P2P File Sharing," available at
-<ulink url="http://free-culture.cc/notes/">link #79</ulink>. For other proposals, see Lawrence Lessig, "Who's Holding Back
-Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
+to artists to balance any loss. See Neil Weinstock Netanel, <quote>Impose a
+Noncommercial Use Levy to Allow Free P2P File Sharing,</quote> available at
+<ulink url="http://free-culture.cc/notes/">link #79</ulink>. For other proposals, see Lawrence Lessig, <quote>Who's Holding Back
+Broadband?</quote> <citetitle>Washington Post</citetitle>, 8 January 2002, A17; Philip S. Corwin on
behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
Chairman of the Senate Foreign Relations Committee, 26 February 2002,
available at
-<ulink url="http://free-culture.cc/notes/">link #80</ulink>; Serguei Osokine, A Quick Case for Intellectual Property
-Use Fee (IPUF), 3 March 2002, available at
+<ulink url="http://free-culture.cc/notes/">link #80</ulink>; Serguei Osokine, <citetitle>A Quick Case for Intellectual Property
+Use Fee (IPUF)</citetitle>, 3 March 2002, available at
<ulink url="http://free-culture.cc/notes/">link #81</ulink>; Jefferson Graham,
-"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
+<quote>Kazaa, Verizon Propose to Pay Artists Directly,</quote> <citetitle>USA Today</citetitle>, 13 May
2002, available at
-<ulink url="http://free-culture.cc/notes/">link #82</ulink>; Steven M. Cherry, "Getting Copyright Right,"
+<ulink url="http://free-culture.cc/notes/">link #82</ulink>; Steven M. Cherry, <quote>Getting Copyright Right,</quote>
IEEE Spectrum Online, 1 July 2002, available at
<ulink url="http://free-culture.cc/notes/">link #83</ulink>; Declan
-McCullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August
+McCullagh, <quote>Verizon's Copyright Campaign,</quote> CNET News.com, 27 August
2002, available at
<ulink url="http://free-culture.cc/notes/">link #84</ulink>.
Fisher's proposal is very similar to Richard Stallman's proposal for
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>
+<indexterm startref='idxartistspayments3' class='endofrange'/>
</para></footnote>
Fisher suggests a very clever way around the current impasse of the
Internet. Under his plan, all content capable of digital transmission
<para>
Fisher's proposal is careful and comprehensive. It raises a million
questions, most of which he answers well in his upcoming book,
-Promises to Keep. The modification that I would make is relatively
+<citetitle>Promises to Keep</citetitle>. The modification that I would make is relatively
simple: Fisher imagines his proposal replacing the existing copyright
system. I imagine it complementing the existing system. The aim of
the proposal would be to facilitate compensation to the extent that
longer necessary, then the system could lapse into the old system of
controlling access.
</para>
+<indexterm startref='idxpromisestokeepfisher' class='endofrange'/>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
Fisher would balk at the idea of allowing the system to lapse. His aim
is not just to ensure that artists are paid, but also to ensure that
-the system supports the widest range of "semiotic democracy"
+the system supports the widest range of <quote>semiotic democracy</quote>
possible. But the aims of semiotic democracy would be satisfied if the
other changes I described were accomplished—in particular, the
limits on derivative
semiotic democracy if there were few limitations on what one was
allowed to do with the content itself.
</para>
+<indexterm><primary>Apple Corporation</primary></indexterm>
+<indexterm><primary>MusicStore</primary></indexterm>
+<indexterm><primary>Real Networks</primary></indexterm>
+<indexterm><primary>CDs</primary><secondary>prices of</secondary></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
+<quote>harm</quote> to an industry. But the difficulty of making that calculation
would be outweighed by the benefit of facilitating innovation. This
background system to compensate would also not need to interfere with
innovative proposals such as Apple's MusicStore. As experts predicted
-when Apple launched the MusicStore, it could beat "free" by being
+when Apple launched the MusicStore, it could beat <quote>free</quote> by being
easier than free is. This has proven correct: Apple has sold millions
of songs at even the very high price of 99 cents a song. (At 99 cents,
the cost is the equivalent of a per-song CD price, though the labels
there will be a great deal of competition to offer and sell music
on-line.
</para>
+<indexterm><primary>cable television</primary></indexterm>
+<indexterm><primary>television</primary><secondary>cable vs. broadcast</secondary></indexterm>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
+<indexterm><primary>piracy</primary><secondary>in Asia</secondary></indexterm>
+<indexterm><primary>film industry</primary><secondary>luxury theatres vs. video piracy in</secondary></indexterm>
<para>
-This competition has already occurred against the background of "free"
+This competition has already occurred against the background of <quote>free</quote>
music from p2p systems. As the sellers of cable television have known
for thirty years, and the sellers of bottled water for much more than
-that, there is nothing impossible at all about "competing with free."
+that, there is nothing impossible at all about <quote>competing with free.</quote>
Indeed, if anything, the competition spurs the competitors to offer
new and better products. This is precisely what the competitive market
was to be about. Thus in Singapore, though piracy is rampant, movie
-theaters are often luxurious—with "first class" seats, and meals
+theaters are often luxurious—with <quote>first class</quote> seats, and meals
served while you watch a movie—as they struggle and succeed in
-finding ways to compete with "free."
+finding ways to compete with <quote>free.</quote>
</para>
<para>
This regime of competition, with a backstop to assure that artists
</para></listitem>
</orderedlist>
<para>
-But what if "piracy" doesn't disappear? What if there is a competitive
+But what if <quote>piracy</quote> doesn't disappear? What if there is a competitive
market providing content at a low cost, but a significant number of
-consumers continue to "take" content for nothing? Should the law do
+consumers continue to <quote>take</quote> content for nothing? Should the law do
something then?
</para>
<para>
facts develop. These changes may not eliminate type A sharing. But the
real issue is not whether it eliminates sharing in the abstract. The
real issue is its effect on the market. Is it better (a) to have a
-technology that is 95 percent secure and produces a market of size x,
+technology that is 95 percent secure and produces a market of size <citetitle>x</citetitle>,
or (b) to have a technology that is 50 percent secure but produces a
-market of five times x? Less secure might produce more unauthorized
+market of five times <citetitle>x</citetitle>? Less secure might produce more unauthorized
sharing, but it is likely to also produce a much bigger market in
authorized sharing. The most important thing is to assure artists'
compensation without breaking the Internet. Once that's assured, then
should be on how to make sure the artists are paid, while protecting
the space for innovation and creativity that the Internet is.
</para>
-</sect2>
+</section>
-<sect2 id="firelawyers">
+<section id="firelawyers">
<title>5. Fire Lots of Lawyers</title>
<para>
I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
the unwillingness of the profession to question or counter that one
strong view queers the law.
</para>
+<indexterm><primary>Nimmer, Melville</primary></indexterm>
+<indexterm><primary>Sonny Bono Copyright Term Extension Act (CTEA) (1998)</primary><secondary>Supreme Court challenge of</secondary></indexterm>
<para>
The evidence of this bending is compelling. I'm attacked as a
-"radical" by many within the profession, yet the positions that I am
+<quote>radical</quote> by many within the profession, yet the positions that I am
advocating are precisely the positions of some of the most moderate
and significant figures in the history of this branch of the
law. Many, for example, thought crazy the challenge that we brought to
dominant scholar and practitioner in the field of copyright, Melville
Nimmer, thought it obvious.<footnote><para>
<!-- f10. -->
-Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
-Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
+Lawrence Lessig, <quote>Copyright's First Amendment</quote> (Melville B. Nimmer
+Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, 1069–70.
</para></footnote>
</para>
position—twice. He initially predicted that downloading would
substantially harm the industry. He then revised his view in light of
the data, and he has since revised his view again. Compare Stan
-J. Liebowitz, Rethinking the Network Economy: The True Forces That
-Drive the Digital Marketplace (New York: Amacom, 2002), (reviewing his
+J. Liebowitz, <citetitle>Rethinking the Network Economy: The True Forces That
+Drive the Digital Marketplace</citetitle> (New York: Amacom, 2002), (reviewing his
original view but expressing skepticism) with Stan J. Liebowitz,
-"Will MP3s Annihilate the Record Industry?" working paper, June 2003,
+<quote>Will MP3s Annihilate the Record Industry?</quote> working paper, June 2003,
available at
<ulink url="http://free-culture.cc/notes/">link #86</ulink>.
Liebowitz's careful analysis is extremely valuable in estimating the
effect of file-sharing technology. In my view, however, he
underestimates the costs of the legal system. See, for example,
-Rethinking, 174–76.
+<citetitle>Rethinking</citetitle>, 174–76.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
They see a system that has been around for hundreds of years, and they
what the law will too often do if too much of our culture is left to
its review.
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
<para>
Think about the amazing things your kid could do or make with digital
technology—the film, the music, the Web page, the blog. Or think
The law should regulate in certain areas of culture—but it should
regulate culture only where that regulation does good. Yet lawyers
-<!-- PAGE BREAK 311 -->
+<!-- PAGE BREAK 311-->
rarely test their power, or the power they promote, against this
-simple pragmatic question: "Will it do good?" When challenged about
-the expanding reach of the law, the lawyer answers, "Why not?"
+simple pragmatic question: <quote>Will it do good?</quote> When challenged about
+the expanding reach of the law, the lawyer answers, <quote>Why not?</quote>
</para>
<para>
-We should ask, "Why?" Show me why your regulation of culture is
+We should ask, <quote>Why?</quote> Show me why your regulation of culture is
needed. Show me how it does good. And until you can show me both,
keep your lawyers away.
</para>
<!-- PAGE BREAK 312 -->
-</sect2>
-</sect1>
+</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 -->
+
+<!-- insert endnotes here -->
+<?latex \theendnotes ?>
+
+<!--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
McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
-Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
+Wasserman, Miljenko Williams, <quote>Wink,</quote> Roger Wood, <quote>Ximmbo da Jazz,</quote>
and Richard Yanco. (I apologize if I have missed anyone; with
computers come glitches, and a crash of my e-mail system meant I lost
a bunch of great replies.)
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>
</book>
projects / text-free-culture-lessig.git / blobdiff