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<abbrev>"freeculture"</abbrev>
- <subtitle>Version 2004-02-10</subtitle>
+ <subtitle>HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
+ CULTURE AND CONTROL CREATIVITY</subtitle>
+
+ <pubdate>2004-03-25</pubdate>
+
+ <releaseinfo>Version 2004-02-10</releaseinfo>
<authorgroup>
<author>
</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 this work,
-so long as attribution is given.
-For more information about the license,
-click the icon above, or visit
+<!-- <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>
+ <title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
-(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
-professor of law and a John A. Wilson Distinguished Faculty Scholar
+(<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
Appeals.
</para>
</abstract>
-</bookinfo>
-<chapter id="c-info">
-<title>Info</title>
-<!-- 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
-<sbr/>The Future of Ideas: The Fate of the Commons
-in a Connected World
-<sbr/>Code: And Other Laws of Cyberspace
</para>
-
+<para>
+The Future of Ideas: The Fate of the Commons in a Connected World
+</para>
+<para>
+Code: And Other Laws of Cyberspace
+</para>
+</dedication>
<!-- PAGE BREAK 4 -->
+<dedication id="frontpublisher">
+<title></title>
<para>
-THE PENGUIN PRESS
-<sbr/>NEW YORK
+THE PENGUIN PRESS, NEW YORK
</para>
-
+</dedication>
<!-- PAGE BREAK 5 -->
+<dedication id="frontbookinfo">
+<title></title>
<para>
FREE CULTURE
-<sbr/>HOW BIG MEDIA USES TECHNOLOGY AND THE
+</para>
+
+<para>
HOW BIG MEDIA USES TECHNOLOGY AND
-LAW TO LOCK DOWN CULTURE AND CONTROL
THE LAW TO LOCK DOWN CULTURE
-CREATIVITY
AND CONTROL CREATIVITY
-<sbr/>LAWRENCE LESSIG
</para>
+<para>
+LAWRENCE LESSIG
+</para>
+</dedication>
<!-- PAGE BREAK 6 -->
+<colophon>
<para>
-THE PENGUIN PRESS
-<sbr/>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
-<sbr/>Copyright © Lawrence Lessig,
-<sbr/>All rights reserved
-<sbr/>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.
-<sbr/>Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
-<sbr/>All rights reserved. Reprinted with permission.
-<sbr/>Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
-<sbr/>Library of Congress Cataloging-in-Publication Data
-<sbr/>Lessig, Lawrence.
+</para>
+<para>
+Copyright © Lawrence Lessig. All rights reserved.
+</para>
+<para>
+Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
+<citetitle>The New York Times</citetitle>, January 16, 2003. Copyright
+© 2003 by The New York Times Co. Reprinted with permission.
+</para>
+<para>
+Cartoon in <xref linkend="fig-1711"/> by Paul Conrad, copyright Tribune
+Media Services, Inc. All rights reserved. Reprinted with permission.
+</para>
+<para>
+Diagram in <xref linkend="fig-1761"/> courtesy of the office of FCC
+Commissioner, Michael J. Copps.
+</para>
+<para>
+Library of Congress Cataloging-in-Publication Data
+</para>
+<para>
+Lessig, Lawrence.
Free culture : how big media uses technology and the law to lock down
culture and control creativity / Lawrence Lessig.
-<sbr/>p. cm.
-<sbr/>Includes index.
-<sbr/>ISBN 1-59420-006-8 (hardcover)
-<sbr/>1. Intellectual property—United States. 2. Mass media—United States.
-<sbr/>3. Technological innovations—United States. 4. Art—United States. I. Title.
-<sbr/>KF2979.L47
-<sbr/>343.7309'9—dc22
-<sbr/>This book is printed on acid-free paper.
-<sbr/>Printed in the United States of America
-<sbr/>1 3 5 7 9 10 8 6 4
-<sbr/>Designed by Marysarah Quinn
+</para>
+<para>
+p. cm.
+</para>
+<para>
+Includes index.
+</para>
+<para>
+ISBN 1-59420-006-8 (hardcover)
+</para>
+
+<para>
+1. Intellectual property—United States. 2. Mass media—United States.
+</para>
+<para>
+3. Technological innovations—United States. 4. Art—United States. I. Title.
+</para>
+<para>
+KF2979.L47
+</para>
+<para>
+343.7309'9—dc22
+</para>
+<para>
+This book is printed on acid-free paper.
+</para>
+<para>
+Printed in the United States of America
+</para>
+<para>
+1 3 5 7 9 10 8 6 4
+</para>
+<para>
+Designed by Marysarah Quinn
+</para>
+
+<para>
+&translationblock;
</para>
<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>
-<!-- PAGE BREAK 7 -->
+<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>
<para>
To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
</para>
-
-<figure id="CreativeCommons">
-<title>Creative Commons, Some rights reserved</title>
-<graphic fileref="images/cc.png"></graphic>
-</figure>
+</dedication>
<toc id="toc"></toc>
<!-- PAGE BREAK 11 -->
-</chapter>
-<chapter id="c-preface">
+<preface id="preface">
<title>PREFACE</title>
+<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:
+At the end 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, "Don't Just Chat, Do Something," <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 suggested
-the happy thought that if life in cyberspace got bad, we could always
-"drizzle, drazzle, druzzle, drome"-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.
+Pogue was skeptical of the core argument of the book—that
+software, or "code," 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
+switch and be back home. Turn off the modem, unplug the computer, and
+any troubles that exist in <emphasis>that</emphasis> space wouldn't
+"affect" 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
+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
is no switch that will insulate us from the Internet's effect.
</para>
+<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
-freesoftware movement<footnote>
+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 "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
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
+"permission culture"—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"
changes I describe affect values that both sides of our political
culture deem fundamental.
</para>
+<indexterm><primary>CodePink Women in Peace</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
Olympia Snowe and conservative Ted Stevens," 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.
+"The Great Media Gulp," <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
Safire's left or on his right. The inspiration 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.
</para>
<para>
I accept that criticism, if indeed it is a criticism. The work of a
-lawyer is always derivative, and I mean to do nothing more in this book
-than to remind a culture about a tradition that has always been its own.
-Like Stallman, I defend that tradition on the basis of values. Like
-Stallman, I believe those are the values of freedom. And like Stallman,
-I believe those are values of our past that will need 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.
-xv
+lawyer is always derivative, and I mean to do nothing more in this
+book than to remind a culture about a tradition that has always been
+its own. Like Stallman, I defend that tradition on the basis of
+values. Like Stallman, I believe those are the values of freedom. And
+like Stallman, I believe those are values of our past that will need
+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 -->
Like Stallman's arguments for free software, an argument for free
culture stumbles on a confusion that is hard to avoid, and even harder
what I advance here.
</para>
<para>
-Instead, the free culture that I defend in this book is a balance
- between
-anarchy and control. A free culture, like a free market, is filled
-with property. It is filled with rules of property and contract that get
-enforced by the state. But just as a free market is perverted if its
- property
-becomes feudal, so too can a free culture be queered by extremism
-in the property rights that define it. That is what I fear about our
- culture
-today. It is against that extremism that this book is written.
+Instead, the free culture that I defend in this book is a balance
+between anarchy and control. A free culture, like a free market, is
+filled with property. It is filled with rules of property and contract
+that get enforced by the state. But just as a free market is perverted
+if its property becomes feudal, so too can a free culture be queered
+by extremism in the property rights that define it. That is what I
+fear about our culture today. It is against that extremism that this
+book is written.
</para>
-</chapter>
+</preface>
<!-- PAGE BREAK 15 -->
<!-- PAGE BREAK 16 -->
-<chapter id="c-introduction">
+<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
<para>
On December 17, 1903, on a windy North Carolina beach for just
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.:
+St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
</para></footnote>
For many
to enter into an exclusive license with Delta Airlines? Could we
set up an auction to decide how much these rights are worth?
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
In 1945, these questions became a federal case. When North Carolina
farmers Thomas Lee and Tinie Causby started losing chickens
extent, upwards," 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>
<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
such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the public
interest, and transfer into private ownership that to which only
-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 effectively
- destroyed
-the value of the Causbys' land. This example was suggested to me
-by Keith Aoki's wonderful piece, "(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), 111213.
+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
+effectively destroyed the value of the Causbys' land. This example was
+suggested to me by Keith Aoki's wonderful piece, "(Intellectual)
+Property and Sovereignty: Notes Toward a Cultural Geography of
+Authorship," <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></footnote>
</para>
</blockquote>
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>
<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
Armstrong invented profoundly important technologies that advanced our
understanding of radio.
<!-- PAGE BREAK 19 -->
+<indexterm><primary>Bell, Alexander Graham</primary></indexterm>
+<indexterm><primary>Edison, Thomas</primary></indexterm>
+<indexterm><primary>Faraday, Michael</primary></indexterm>
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
much less transmitter power and static.
</para>
<para>
-On November 5, 1935, he demonstrated the technology at a meeting
-of the Institute of Radio Engineers at the Empire State Building in
-New York City. He tuned his radio dial across a range of AM stations,
-until the radio locked on a broadcast that he had arranged from
- 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."
+On November 5, 1935, he demonstrated the technology at a meeting of
+the Institute of Radio Engineers at the Empire State Building in New
+York City. He tuned his radio dial across a range of AM stations,
+until the radio locked on a broadcast that he had arranged from
+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."
</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 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 box."<footnote><para>
-Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+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
+box."<footnote><para>
+Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
</para>
</blockquote>
<para>
-As our own common sense tells us, Armstrong had discovered a
-vastly superior radio technology. But at the time of his invention,
- Armstrong
-was working for RCA. RCA was the dominant player in the
-then dominant 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.
+As our own common sense tells us, Armstrong had discovered a vastly
+superior radio technology. But at the time of his invention, Armstrong
+was working for RCA. RCA was the dominant player in the then dominant
+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 -->
</para>
<para>
Sarnoff was quite excited when Armstrong told him he had a device
that removed static from "radio." 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 www.webstationone.com/fecha, available at
+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
+www.webstationone.com/fecha, available at
<ulink url="http://free-culture.cc/notes/">link #1</ulink>.
</para></footnote>
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>
<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>
The series of body blows that FM radio received right after the
war, in a series of rulings manipulated through the FCC by the
big radio interests, were almost incredible in their force and
-
deviousness.<footnote><para>
+deviousness.<footnote><para>
Lessing, 256.
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
FM radio users were to be moved to a totally new spectrum band. The
least temporarily.
</para>
<para>
-Armstrong resisted RCA's efforts. In response, RCA resisted
- Armstrong's
-patents. After incorporating FM technology into the emerging
-standard for television, RCA declared the patents invalid—baselessly,
-and almost fifteen years after they were issued. It thus refused to pay
-him royalties. For six years, Armstrong fought an expensive war of
- litigation
-to defend the patents. Finally, just as the patents expired, RCA
-offered a settlement so low that it would not even cover Armstrong's
-lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong
-wrote a short note to his wife and then stepped out of a
- thirteenth-story
-window to his death.
+Armstrong resisted RCA's efforts. In response, RCA resisted
+Armstrong's patents. After incorporating FM technology into the
+emerging standard for television, RCA declared the patents
+invalid—baselessly, and almost fifteen years after they were
+issued. It thus refused to pay him royalties. For six years, Armstrong
+fought an expensive war of litigation to defend the patents. Finally,
+just as the patents expired, RCA offered a settlement so low that it
+would not even cover Armstrong's lawyers' fees. Defeated, broken, and
+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>
<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 the
-beginning, government and government agencies have been subject
-to capture. They are more likely captured when a powerful interest is
-threatened by either a legal or technical change. That powerful interest
-too often exerts its influence within the government to get the
- government
-to protect it. The rhetoric of this protection is of 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
+rarely with heroic drama, but sometimes, this is how it works. From
+the beginning, government and government agencies have been subject to
+capture. They are more likely captured when a powerful interest is
+threatened by either a legal or technical change. That powerful
+interest too often exerts its influence within the government to get
+the government to protect it. The rhetoric of this protection is of
+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 -->
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.
+process. RCA had what the Causbys did not: the power to stifle the
+effect of technological change.
</para>
<para>
-There's no 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
+There's no 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
-Life Project, 15 April 2003: 6, available at
+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
+Life Project, 15 April 2003: 6, available at
<ulink url="http://free-culture.cc/notes/">link #2</ulink>.
</para></footnote>
That number could well exceed two thirds of the nation by the end
the Internet. But this is not a book about the Internet.
</para>
<para>
-Instead, this book is about an effect of the Internet beyond the
- Internet
-itself: an effect upon how culture is made. My claim is that the
-Internet has induced an important and unrecognized change in that
-process. That change will radically transform a tradition that is as old as
-the Republic itself. Most, if they recognized this change, would reject
-it. Yet most don't even see the change that the Internet has introduced.
+Instead, this book is about an effect of the Internet beyond the
+Internet itself: an effect upon how culture is made. My claim is that
+the Internet has induced an important and unrecognized change in that
+process. That change will radically transform a tradition that is as
+old as the Republic itself. Most, if they recognized this change,
+would reject it. Yet most don't even see the change that the Internet
+has introduced.
</para>
<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 culture
-that is produced and sold or produced to be sold. By "noncommercial
-culture" I mean all the rest. When old men sat around parks or on
+commercial and noncommercial culture, and by mapping the law's
+regulation of each. By "commercial culture" 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
+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 Joel Barlow his poetry, that was commercial culture.
+noncommercial culture. When Noah Webster published his "Reader," or
+Joel Barlow his poetry, that was commercial culture.
+<indexterm><primary>Barlow, Joel</primary></indexterm>
+<indexterm><primary>Webster, Noah</primary></indexterm>
</para>
<para>
At the beginning of our history, and for just about the whole of our
tradition, noncommercial culture was essentially unregulated. Of
-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 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.
+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
+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>
<para>
The focus of the law was on commercial creativity. At first slightly,
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial
-marketplace.<footnote><para>
+marketplace.<footnote>
+<para>
This is not the only purpose of copyright, though it is the overwhelmingly
-primary purpose of the copyright established in the federal constitution.
+primary purpose of the copyright established in the federal constitution.
State copyright law historically protected not just the commercial interest in
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,
-198200.
+198–200.
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</para></footnote>
-This is also, of
-course, an important part of creativity and culture, and it has become
-an increasingly important part in America. But in no sense was it
- dominant
-within our tradition. It was instead just one part, a controlled
-part, balanced with the free.
+This is also, of course, an important part of creativity and culture,
+and it has become an increasingly important part in America. But in no
+sense was it dominant within our tradition. It was instead just one
+part, a controlled part, balanced with the free.
</para>
<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.
-</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 tradition, the ordinary ways in which individuals create and share
-culture fall within the reach of the regulation of the law, which has
- expanded
-to draw within its control a vast amount of culture and
- creativity
-that it never reached before. The technology that preserved the
-balance of our history—between uses of our culture that were free and
-uses of our culture that were only upon permission—has been undone.
-The consequence is that we are less and less a free culture, more and
-more a permission culture.
+<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
+tradition, the ordinary ways in which individuals create and share
+culture fall within the reach of the regulation of the law, which has
+expanded to draw within its control a vast amount of culture and
+creativity that it never reached before. The technology that preserved
+the balance of our history—between uses of our culture that were
+free and uses of our culture that were only upon permission—has
+been undone. The consequence is that we are less and less a free
+culture, more and more a permission culture.
</para>
<!-- PAGE BREAK 24 -->
<para>
-This change gets justified as necessary to protect commercial
- creativity.
-And indeed, protectionism is precisely its motivation. But the
-protectionism that justifies the changes that I will describe below is not
-the limited and balanced sort that has defined the law in the past. This
-is not a protectionism to protect artists. It is instead a protectionism
-to protect certain forms of business. Corporations threatened by the
-potential of the Internet to change the way both commercial and
-noncommercial culture are made and shared have united to induce
-lawmakers to use the law to protect them. It is the story of RCA and
-Armstrong; it is the dream of the Causbys.
+This change gets justified as necessary to protect commercial
+creativity. And indeed, protectionism is precisely its
+motivation. But the protectionism that justifies the changes that I
+will describe below is not the limited and balanced sort that has
+defined the law in the past. This is not a protectionism to protect
+artists. It is instead a protectionism to protect certain forms of
+business. Corporations threatened by the potential of the Internet to
+change the way both commercial and noncommercial culture are made and
+shared have united to induce lawmakers to use the law to protect
+them. It is the story of RCA and Armstrong; it is the dream of the
+Causbys.
</para>
<para>
For the Internet has unleashed an extraordinary possibility for many
-to participate in the process of building and cultivating a culture that
-reaches far beyond local boundaries. That power has changed the
- marketplace
-for making and cultivating culture generally, and that change
-in turn threatens established content industries. The Internet is thus to
-the industries that built and distributed content in the twentieth
- century
-what FM radio was to AM radio, or what the truck was to the
-railroad industry of the nineteenth century: the beginning of the end,
-or at least a substantial transformation. Digital technologies, tied to the
-Internet, could produce a vastly more competitive and vibrant market
-for building and cultivating culture; that market could include a much
-wider and more diverse range of creators; those creators could produce
-and distribute a much more vibrant range of creativity; and depending
-upon a few important factors, those creators could earn more on average
-from this system than creators do today—all so long as the RCAs of our
-day don't use the law to protect themselves against this competition.
-</para>
-<para>
-Yet, as I argue in the pages that follow, that is precisely what is
- happening
-in our culture today. These modern-day equivalents of the early
-twentieth-century radio or nineteenth-century railroads are using their
-power to get the law to protect them against this new, more efficient,
-more vibrant technology for building culture. They are succeeding in
-their plan to remake the Internet before the Internet remakes them.
+to participate in the process of building and cultivating a culture
+that reaches far beyond local boundaries. That power has changed the
+marketplace for making and cultivating culture generally, and that
+change in turn threatens established content industries. The Internet
+is thus to the industries that built and distributed content in the
+twentieth century what FM radio was to AM radio, or what the truck was
+to the railroad industry of the nineteenth century: the beginning of
+the end, or at least a substantial transformation. Digital
+technologies, tied to the Internet, could produce a vastly more
+competitive and vibrant market for building and cultivating culture;
+that market could include a much wider and more diverse range of
+creators; those creators could produce and distribute a much more
+vibrant range of creativity; and depending upon a few important
+factors, those creators could earn more on average from this system
+than creators do today—all so long as the RCAs of our day don't
+use the law to protect themselves against this competition.
+</para>
+<para>
+Yet, as I argue in the pages that follow, that is precisely what is
+happening in our culture today. These modern-day equivalents of the
+early twentieth-century radio or nineteenth-century railroads are
+using their power to get the law to protect them against this new,
+more efficient, more vibrant technology for building culture. They are
+succeeding in their plan to remake the Internet before the Internet
+remakes them.
</para>
<para>
It doesn't seem this way to many. The battles over copyright and the
mainly about a much simpler brace of questions—whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
has been waged against the technologies of the Internet—what
- Motion
-Picture Association of America (MPAA) president Jack Valenti
+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.
+Use New Tools to Turn the Net into an Illicit Video Club," <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
</para>
<para>
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 Internet.
+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
+Internet.
</para>
<para>
But those simple beliefs mask a much more fundamental question
our Republic, guaranteed creators the right to build freely upon their
past, and protected creators and innovators from either state or private
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.
+And as Professor Neil Netanel powerfully argues,<footnote>
+<para>
+Neil W. Netanel, "Copyright and a Democratic Civil Society," <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 control. Our tradition
-was thus neither Soviet nor the tradition of patrons. It instead carved out
-a wide berth within which creators could cultivate and extend our culture.
+copyright law, properly balanced, protected creators against private
+control. Our tradition was thus neither Soviet nor the tradition of
+patrons. It instead carved out a wide berth within which creators
+could cultivate and extend our culture.
</para>
<para>
Yet the law's response to the Internet, when tied to changes in the
-technology of the Internet itself, has massively increased the effective
-regulation of creativity in America. To build upon or critique the
- culture
-around us one must ask, Oliver Twistlike, for permission first.
-Permission is, of course, often granted—but it is not often granted to
-the critical or the independent. We have built a kind of cultural
- nobility;
-those within the noble class live easily; those outside it don't. But it
-is nobility of any form that is alien to our tradition.
-</para>
-<!-- PAGE BREAK 26 -->
-<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, 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 against an industry.
-</para>
-<para>
-It is instead an effort to understand a hopelessly destructive war
- inspired
-by the technologies of the Internet but reaching far beyond its
-code. And by understanding this battle, it is an effort to map peace.
-There is no good reason for the current struggle around Internet
- technologies
-to continue. There will be great harm to our tradition and
-culture if it is allowed to continue unchecked. We must come to
- understand
-the source of this war. We must resolve it soon.
-</para>
-<para>
-Like the Causbys' battle, this war is, in part, about "property."
-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
- 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, 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 us as it was to
-them that the law should intervene to stop this trespass.
-</para>
+technology of the Internet itself, has massively increased the
+effective regulation of creativity in America. To build upon or
+critique the culture around us one must ask, Oliver Twist–like,
+for permission first. Permission is, of course, often
+granted—but it is not often granted to the critical or the
+independent. We have built a kind of cultural nobility; those within
+the noble class live easily; those outside it don't. But it is
+nobility of any form that is alien to our tradition.
+</para>
+<!-- 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,
+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
+against an industry.
+</para>
+<para>
+It is instead an effort to understand a hopelessly destructive war
+inspired by the technologies of the Internet but reaching far beyond
+its code. And by understanding this battle, it is an effort to map
+peace. There is no good reason for the current struggle around
+Internet technologies to continue. There will be great harm to our
+tradition and culture if it is allowed to continue unchecked. We must
+come to understand the source of this war. We must resolve it soon.
+</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<para>
+Like the Causbys' battle, this war is, in part, about "property." 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
+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,
+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
+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>
<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
+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 -->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
</para>
<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.
+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
+<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 about the value
-and importance of absolute property over ideas and culture? Is it
- because
-we have discovered that our tradition of rejecting such an
- absolute
-claim was wrong?
+The puzzle is, Why? Is it because we have come to understand a truth
+about the value and importance of absolute property over ideas and
+culture? Is it because we have discovered that our tradition of
+rejecting such an absolute claim was wrong?
</para>
<para>
Or is it because the idea of absolute property over ideas and culture
of a political system captured by a few powerful special interests?
</para>
<para>
-Does common sense lead to the extremes on this question because
-common sense actually believes in these extremes? Or does common
-sense stand silent in the face of these extremes because, as with
- Armstrong
-versus RCA, the more powerful side has ensured that it has the
-more powerful view?
+Does common sense lead to the extremes on this question because common
+sense actually believes in these extremes? Or does common sense stand
+silent in the face of these extremes because, as with Armstrong versus
+RCA, the more powerful side has ensured that it has the more powerful
+view?
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-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 sheriff
- arresting
-an airplane for trespass. But the consequences of this silliness will
-be much more profound.
+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
+sheriff arresting an airplane for trespass. But the consequences of
+this silliness will be much more profound.
<!-- PAGE BREAK 28 -->
</para>
<para>
</para>
<para>
My method is not the usual method of an academic. I don't want to
-plunge you into a complex argument, buttressed with references to
- obscure
-French theorists—however natural that is for the weird sort we
-academics have become. Instead I begin in each part with a collection
-of stories that set a context within which these apparently simple ideas
-can be more fully understood.
+plunge you into a complex argument, buttressed with references to
+obscure French theorists—however natural that is for the weird
+sort we academics have become. Instead I begin in each part with a
+collection of stories that set a context within which these apparently
+simple ideas can be more fully understood.
</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
+Internet has indeed produced something fantastic and new, our
+government, pushed by big media to respond to this "something new," 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
- 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>
-<para>
-We allow this, I believe, not because it is right, and not because
-most of us really believe in these changes. We allow it because the
- interests
-most threatened are among the most powerful players in our
-depressingly compromised process of making law. This book is the
-story of one more consequence of this form of corruption—a
- consequence
+sense" 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>
+<para>
+We allow this, I believe, not because it is right, and not because
+most of us really believe in these changes. We allow it because the
+interests most threatened are among the most powerful players in our
+depressingly compromised process of making law. This book is the story
+of one more consequence of this form of corruption—a consequence
to which most of us remain oblivious.
</para>
</chapter>
<!-- PAGE BREAK 29 -->
-<chapter id="c-piracy">
+<part id="c-piracy">
<title>"PIRACY"</title>
-
+<partintro>
<!-- PAGE BREAK 30 -->
-<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
- capture.
-As Lord Mansfield wrote in a case that extended the reach of
+<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
+capture. As Lord Mansfield wrote in a case that extended the reach of
English copyright law to include sheet music,
</para>
<blockquote>
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'/>
</blockquote>
<para>
Today we are in the middle of another "war" against "piracy." 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 enables. Using
-distributed intelligence, p2p systems facilitate the easy spread of
- content
-in a way unimagined a generation ago.
+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
+enables. Using distributed intelligence, p2p systems facilitate the
+easy spread of content in a way unimagined a generation ago.
<!-- PAGE BREAK 31 -->
</para>
<para>
This efficiency does not respect the traditional lines of copyright.
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."
+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."
</para>
<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!
+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
+<emphasis>thieves</emphasis>!
</para>
<para>
There's no doubt that "piracy" is wrong, and that pirates should be
piracy.
</para>
</blockquote>
+<indexterm><primary>Dreyfuss, Rochelle</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"
- theory
-of creative property<footnote><para>
+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.
+in the Pepsi Generation," <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
+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
+Up," <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.
+Speech, No One Wins," <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 "value" (the songs) so there must have been a
+"right"—even against the Girl Scouts.
</para>
+<indexterm><primary>ASCAP</primary></indexterm>
<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" theory
-of creative property has never been America's theory of creative
- property.
-It has never taken hold within our law.
+of law protecting creative property. But the "if value, then right"
+theory of creative property has never been America's theory of
+creative property. It has never taken hold within our law.
</para>
<para>
Instead, in our tradition, intellectual property is an instrument. It
-sets the groundwork for a richly creative society but remains
- subservient
-to the value of creativity. The current debate has this turned
-around. We have become so concerned with protecting the instrument
-that we are losing sight of the value.
+sets the groundwork for a richly creative society but remains
+subservient to the value of creativity. The current debate has this
+turned around. We have become so concerned with protecting the
+instrument that we are losing sight of the value.
</para>
<para>
The source of this confusion is a distinction that the law no longer
copyright law today regulates both.
</para>
<para>
-Before the technologies of the Internet, this conflation didn't
- matter
+Before the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive; that
meant the vast majority of publishing was commercial. Commercial
entities could bear the burden of the law—even the burden of the
Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
</para>
+<indexterm><primary>Florida, Richard</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, 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 as well. Thus, as
-we'll see more clearly in the chapters below, the law's role is less and
-less to support creativity, and more and more to protect certain
- industries
-against competition. Just at the time digital technology could
-unleash an extraordinary range of commercial and noncommercial
-creativity, the law burdens this creativity with insanely complex and
-vague rules and with the threat of obscenely severe penalties. We may
+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,
+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 as well. Thus, as we'll see more clearly in the chapters
+below, the law's role is less and less to support creativity, and more
+and more to protect certain industries against competition. Just at
+the time digital technology could unleash an extraordinary range of
+commercial and noncommercial creativity, the law burdens this
+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><para>
+be seeing, as Richard Florida writes, the "Rise of the Creative Class."<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>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
understanding that tradition a bit more and by placing in their proper
context the current battles about behavior labeled "piracy."
</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.
+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>
<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
-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.
+Synchronized sound had been introduced to film a year earlier in 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.
As Disney describes that first experiment,
</para>
<blockquote>
<!-- PAGE BREAK 35 -->
</para>
<para>
-The boys worked from a music and sound-effects score. After
-several false starts, sound and action got off with the gun. The
-mouth organist played the tune, the rest of us in the sound
- department
-bammed tin pans and blew slide whistles on the beat.
-The synchronization was pretty close.
+The boys worked from a music and sound-effects score. After several
+false starts, sound and action got off with the gun. The mouth
+organist played the tune, the rest of us in the sound department
+bammed tin pans and blew slide whistles on the beat. The
+synchronization was pretty close.
</para>
<para>
-The effect on our little audience was nothing less than
- electric.
-They responded almost instinctively to this union of sound
-and motion. I thought they were kidding me. So they put me in
-the audience and ran the action again. It was terrible, but it was
-wonderful! And it was something new!<footnote><para>
+The effect on our little audience was nothing less than electric.
+They responded almost instinctively to this union of sound and
+motion. I thought they were kidding me. So they put me in the audience
+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), 3435.
+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>
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>
</para>
<para>
-Disney had created something very new, based upon something
- relatively
-new. Synchronized sound brought life to a form of creativity
-that had rarely—except in Disney's hands—been anything more than
-filler for other films. Throughout animation's early history, it was
- Disney's
-invention that set the standard that others struggled to match.
-And quite often, Disney's great genius, his spark of creativity, was built
-upon the work of others.
+Disney had created something very new, based upon something relatively
+new. Synchronized sound brought life to a form of creativity that had
+rarely—except in Disney's hands—been anything more than
+filler for other films. Throughout animation's early history, it was
+Disney's invention that set the standard that others struggled to
+match. And quite often, Disney's great genius, his spark of
+creativity, was built upon the work of others.
</para>
<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>
<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>
+direct cartoon parody of Steamboat Bill,<footnote><para>
<!-- f2 -->
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
+use the music for five songs in <citetitle>Steamboat Willie</citetitle>: "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
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," that we get Steamboat Willie, and then from
-Steamboat Willie, Mickey Mouse.
+and both are built upon a common song as a source. It is not just from
+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 "Steamboat Bill,"
+that we get Steamboat Willie, and then from Steamboat Willie, Mickey
+Mouse.
</para>
<para>
This "borrowing" was nothing unique, either for Disney or for the
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
+that Ate the Public Domain," 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
-knockoffs—slight variations on winning themes; retellings of ancient
-stories. The key to success was the brilliance of the differences. With
-Disney, it was sound that gave his animation its spark. Later, it was the
-quality of his work relative to the production-line cartoons with which
-he competed. Yet these additions were built upon a base that was
- borrowed.
-Disney added to the work of others before him, creating
- something
-new out of something just barely old.
+So did many others. Early cartoons are filled with
+knockoffs—slight variations on winning themes; retellings of
+ancient stories. The key to success was the brilliance of the
+differences. With Disney, it was sound that gave his animation its
+spark. Later, it was the quality of his work relative to the
+production-line cartoons with which he competed. Yet these additions
+were built upon a base that was borrowed. Disney added to the work of
+others before him, creating something new out of something just barely
+old.
</para>
<para>
Sometimes this borrowing was slight. Sometimes it was significant.
-Think about the fairy tales of the Brothers Grimm. If you're as
- oblivious
-as I was, you're likely to think that these tales are happy, sweet
- stories,
-appropriate for any child at bedtime. In fact, the Grimm fairy tales
-are, well, for us, grim. It is a rare and perhaps overly ambitious parent
-who would dare to read these bloody, moralistic stories to his or her
-child, at bedtime or anytime.
-</para>
-<para>
-Disney took these stories and retold them in a way that carried
-them into a new age. He animated the stories, with both characters and
+Think about the fairy tales of the Brothers Grimm. If you're as
+oblivious as I was, you're likely to think that these tales are happy,
+sweet stories, appropriate for any child at bedtime. In fact, the
+Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
+overly ambitious parent who would dare to read these bloody,
+moralistic stories to his or her child, at bedtime or anytime.
+</para>
+<para>
+Disney took these stories and retold them in a way that carried them
+into a new age. He animated the stories, with both characters and
light. Without removing the elements of fear and danger altogether, he
-made funny what was dark and injected a genuine emotion of
- compassion
+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
+Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
+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
+(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.
+own extraordinary talent, and then burned that mix into the soul of
+his culture. Rip, mix, and burn.
</para>
<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 culture around us
-and makes it something different.
+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
+culture around us and makes it something different.
</para>
-<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
+<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
-thirty years—for that minority of creative work that was in fact copyrighted.<footnote><para>
+thirty years—for that minority of creative work that was in fact
+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
- determining
+determining
the weighted average of total registrations for any particular year,
and the proportion renewing. Thus, if 100 copyrights are registered in year
1, and only 15 are renewed, and the renewal term is 28 years, then the
- average
+average
term is 32.2 years. For the renewal data and other relevant data, see the
Web site associated with this book, available at
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
required the permission of the copyright owner.
</para>
<para>
-At the end of a copyright term, a work passes into the public
- domain.
+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
-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.
+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>
<para>
This is the ways things always were—until quite recently. For most
<!-- PAGE BREAK 38 -->
free for anyone to build upon without the permission of anyone else.
-Today's equivalent would be for creative work from the 1960s and
-1970s to now be free for the next Walt Disney to build upon without
-permission. Yet today, the public domain is presumptive only for
- content
-from before the Great Depression.
+Today's equivalent would be for creative work from the 1960s and 1970s
+to now be free for the next Walt Disney to build upon without
+permission. Yet today, the public domain is presumptive only for
+content from before the Great Depression.
</para>
<para>
-Of course, Walt Disney had no monopoly on "Walt Disney
- creativity."
-Nor does America. The norm of free culture has, until recently,
-and except within totalitarian nations, been broadly exploited and quite
+Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+Nor does America. The norm of free culture has, until recently, and
+except within totalitarian nations, been broadly exploited and quite
universal.
</para>
<para>
-Consider, for example, a form of creativity that seems strange to
-many Americans but that is inescapable within Japanese culture:
-manga, 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 magazine stand, carried by a large proportion of commuters on
-Japan's extraordinary system of public transportation.
+Consider, for example, a form of creativity that seems strange to many
+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
+magazine stand, carried by a large proportion of commuters on Japan's
+extraordinary system of public transportation.
</para>
<para>
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." 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 interestingly different way.
+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."
+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
+interestingly different way.
</para>
<para>
But my purpose here is not to understand manga. It is to describe a
from a Disney perspective is quite familiar.
</para>
<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
and reject any copycat comic that is merely a copy.
</para>
<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
-these bits of Walt Disney creativity. More than 450,000 Japanese
-come together twice a year, in the largest public gathering in the
- country,
+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
+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
mainstream commercial manga market. In some ways, it obviously
competes with that market, but there is no sustained effort by those
-who control the commercial manga market to shut the doujinshi
- market
+who control the commercial manga market to shut the doujinshi market
down. It flourishes, despite the competition and despite the law.
</para>
<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 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.
+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
+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 <citetitle>Steamboat Bill,
+Jr</citetitle>. 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.
</para>
+<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
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
+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"
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>
do. "As a creator, it's frustrating having to stick to some parameters
which are fifty years old."
</para>
+<indexterm startref="idxwinickjudd" class='endofrange'/>
<para>
-The norm in Japan mitigates this legal difficulty. Some say it is
- precisely
-the benefit accruing to the Japanese manga market that explains
-the mitigation. Temple University law professor Salil Mehra, for
- example,
-hypothesizes that the manga market accepts these technical
-violations because they spur the manga market to be more wealthy and
-productive. Everyone would be worse off if doujinshi were banned, so
-the law does not ban doujinshi.<footnote><para>
+The norm in Japan mitigates this legal difficulty. Some say it is
+precisely the benefit accruing to the Japanese manga market that
+explains the mitigation. Temple University law professor Salil Mehra,
+for example, hypothesizes that the manga market accepts these
+technical violations because they spur the manga market to be more
+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
- 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."
+Why All the Comics My Kid Watches Are Japanese Imports?" <citetitle>Rutgers Law
+Review</citetitle> 55 (2002): 155, 182. "[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."
</para></footnote>
</para>
<para>
-The problem with this story, however, as Mehra plainly
- acknowledges,
+The problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response is not
-clear. It may well be that the market as a whole is better off if
- doujinshi
-are permitted rather than banned, but that doesn't explain 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 culture?
+clear. It may well be that the market as a whole is better off if
+doujinshi are permitted rather than banned, but that doesn't explain
+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
+culture?
</para>
<para>
I spent four wonderful months in Japan, and I asked this question
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
- 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>
+We live in a world that celebrates "property." 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>
<!-- 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 (New York:
-Random House, 2001), 293 n. 26. The term accurately describes a set of
-"property" rights—copyright, patents, trademark, and trade-secret—but the
-nature of those rights is very different.
-</para></footnote>
-A large, diverse society cannot survive without
- property;
-a large, diverse, and modern society cannot flourish without
-intellectual property.
-</para>
-<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 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 condemning that taking as wrong—
-even though trivial, even if 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 wrong with the taking from the Grimms
- because
-the Grimms' work was in the public domain.
+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,
+trademark, and trade-secret—but the nature of those rights is
+very different.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+</para></footnote>
+A large, diverse society cannot survive without property; a large,
+diverse, and modern society cannot flourish without intellectual
+property.
+</para>
+<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
+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
+condemning that taking as wrong— even though trivial, even if
+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
+wrong with the taking from the Grimms because the Grimms' work was in
+the public domain.
</para>
<para>
Thus, even though the things that Disney took—or more generally,
valuable, our tradition does not treat those takings as wrong. Some
<!-- PAGE BREAK 42 -->
-things remain free for the taking within a free culture, and that
- freedom
-is good.
+things remain free for the taking within a free culture, and that
+freedom is good.
</para>
<para>
The same with the doujinshi culture. If a doujinshi artist broke into
</para>
<para>
Yet there is an obvious reluctance, even among Japanese lawyers, to
-say that the copycat comic artists are "stealing." This form of Walt
- Disney
-creativity is seen as fair and right, even if lawyers in particular find
-it hard to say why.
-</para>
-<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
- Einstein,
-but may I have permission to use your theory of relativity to show
-that you were wrong about quantum physics?") 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.
+say that the copycat comic artists are "stealing." This form of Walt
+Disney creativity is seen as fair and right, even if lawyers in
+particular find it hard to say why.
+</para>
+<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
+Einstein, but may I have permission to use your theory of relativity
+to show that you were wrong about quantum physics?") Acting companies
+perform adaptations of the works of Shakespeare without securing
+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
<!-- PAGE BREAK 43 -->
</para>
<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 "<emphasis>How</emphasis> 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?
</para>
<para>
Free cultures are cultures that leave a great deal open for others to
</para>
<!-- PAGE BREAK 44 -->
-</sect1>
-<sect1 id="mere-copyists">
+</chapter>
+<chapter label="2" id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
+<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
+producing what we would call "photographs." Appropriately enough, they
+were called "daguerreotypes." 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.)
+Association that helped regulate the industry, as do all such
+associations, by keeping competition down so as to keep prices up.)
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
</para>
<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 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>
+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
+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.
+<indexterm><primary>Talbot, William</primary></indexterm>
+</para>
+<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
<!-- PAGE BREAK 45 -->
Eastman, himself an amateur photographer, was frustrated by the
technology of photographs made with plates. In a flash of insight (so
-to speak), Eastman saw that if the film could be made to be flexible, it
-could be held on a single spindle. That roll could then be sent to a
- developer,
-driving the costs of photography down substantially. By
- lowering
-the costs, Eastman expected he could dramatically broaden the
+to speak), Eastman saw that if the film could be made to be flexible,
+it could be held on a single spindle. That roll could then be sent to
+a developer, driving the costs of photography down substantially. By
+lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
</para>
<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>
+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>
<!-- 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>:
+<indexterm><primary>Kodak Primer, The (Eastman)</primary></indexterm>
</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 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, in fact, any special knowledge of
-the art. It can be employed without preliminary study, without a
-darkroom and without chemicals.<footnote><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
+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,
+in fact, any special knowledge of the art. It can be employed without
+preliminary study, without a darkroom and without
+chemicals.<footnote>
+<para>
<!-- f2 -->
-Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
+Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: Taplinger Publishing,
1977), 53.
+<indexterm><primary>Coe, Brian</primary></indexterm>
</para></footnote>
</para>
</blockquote>
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.
Based on a chart in Jenkins, p. 178.
</para></footnote>
</para>
+<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<!-- PAGE BREAK 46 -->
The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
-glimpse of places they would never otherwise see. Amateur
- photography
+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 first
-time the snapshot album provided the man on the street with a
- 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>
+never been able to do before. As author Brian Coe notes, "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
+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>
<!-- f5 -->
Coe, 58.
</para></footnote>
</para>
<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"; 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.
+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";
+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>
<para>
What was required for this technology to flourish? Obviously,
-Eastman's genius was an important part. But also important was the
- legal
-environment within which Eastman's invention grew. For early in
-the history of photography, there was a series of judicial decisions that
-could well have changed the course of photography substantially.
+Eastman's genius was an important part. But also important was the
+legal environment within which Eastman's invention grew. For early in
+the history of photography, there was a series of judicial decisions
+that could well have changed the course of photography substantially.
Courts were asked whether the photographer, amateur or professional,
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>
<para>
-The arguments in favor of requiring permission will sound
- surprisingly
-familiar. The photographer was "taking" 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 draw
+The arguments in favor of requiring permission will sound surprisingly
+familiar. The photographer was "taking" 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
+draw
<!-- PAGE BREAK 47 -->
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
</para>
+<indexterm><primary>Brandeis, Louis D.</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
have the right to capture at least those images that stand in public view.
(Louis Brandeis, who would become a Supreme Court Justice, thought
-the rule should be different for images from private spaces.<footnote><para>
+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.
-</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 free to capture an image
- without
-compensating the source.
+Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
+<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
+<citetitle>Steamboat Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be
+free to capture an image without compensating the source.
</para>
<para>
Fortunately for Mr. Eastman, and for photography in general, these
-early decisions went in favor of the pirates. In general, no permission
-would be required before an image could be captured and shared with
-others. Instead, permission was presumed. Freedom was the default.
-(The law would eventually craft an exception for famous people:
- commercial
-photographers who snap pictures of famous people for
- commercial
-purposes have more restrictions than the rest of us. But in the
-ordinary case, the image can be captured without clearing the rights to
-do the capturing.<footnote><para>
+early decisions went in favor of the pirates. In general, no
+permission would be required before an image could be captured and
+shared with others. Instead, permission was presumed. Freedom was the
+default. (The law would eventually craft an exception for famous
+people: commercial photographers who snap pictures of famous people
+for commercial purposes have more restrictions than the rest of
+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) 398407; White v. Samsung Electronics America, Inc., 971 F.
-2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
+See Melville B. Nimmer, "The Right of Publicity," <citetitle>Law and Contemporary
+Problems</citetitle> 19 (1954): 203; William L. Prosser, "Privacy," <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>
<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 photographer, then the photographer would have had to
-demonstrate 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 photographer. Just as Napster benefited from the copyright
- infringements
-committed by Napster users, Kodak would be benefiting
+We can only speculate about how photography would have developed had
+the law gone the other way. If the presumption had been against the
+photographer, then the photographer would have had to demonstrate
+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
+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
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.
+demonstrated before a company developed pictures. We could imagine a
+system developing to demonstrate that permission.
</para>
<para>
<!-- PAGE BREAK 48 -->
-But though we could imagine this system of permission, it would
-be very hard to see how photography could have flourished as it did if
-the requirement for permission had been built into the rules that
- govern
-it. Photography would have existed. It would have grown in
- importance
-over time. Professionals would have continued to use the
-technology as they did—since professionals could have more easily borne
-the burdens of the permission system. But the spread of 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>
-<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 real-time
-digital video editing system cost $25,000. Today you can get
- professional
-quality for $595."<footnote><para>
+But though we could imagine this system of permission, it would be
+very hard to see how photography could have flourished as it did if
+the requirement for permission had been built into the rules that
+govern it. Photography would have existed. It would have grown in
+importance over time. Professionals would have continued to use the
+technology as they did—since professionals could have more
+easily borne the burdens of the permission system. But the spread of
+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'/>
+<indexterm startref="idxphotography" class='endofrange'/>
+<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
+real-time digital video editing system cost $25,000. Today you can get
+professional quality for $595."<footnote><para>
<!-- f9 -->
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
- Software
-You Need to Create Digital Multimedia Presentations," cadalyst,
-February 2002, available at
+H. Edward Goldberg, "Essential Presentation Tools: Hardware and
+Software You Need to Create Digital Multimedia Presentations,"
+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."
+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."
</para>
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "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."
+Think!, puts it, "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>
</para>
<para>
This may seem like an odd way to think about "literacy." For most
<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>
+commercials generally,<footnote><para>
<!-- f10 -->
-Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
+Judith Van Evra, <citetitle>Television and Child Development</citetitle> (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
-Study," Denver Post, 25 May 1997, B6.
+Study," <citetitle>Denver Post</citetitle>, 25 May 1997, B6.
</para></footnote>
-it is increasingly important to understand the
-"grammar" 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 (at least at first) terrible media.
+it is increasingly important to understand the "grammar" 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
+(at least at first) terrible media.
</para>
<para>
A growing field of academics and activists sees this form of literacy
-as crucial to the next generation of culture. For though anyone who has
-written understands how difficult writing is—how difficult it is to
- sequence
-the story, to keep a reader's attention, to craft language to be
-understandable—few of us have any real sense of how difficult media
-is. Or more fundamentally, few of us have a sense of how media works,
-how it holds an audience or leads it through a story, how it triggers
-emotion or builds suspense.
+as crucial to the next generation of culture. For though anyone who
+has written understands how difficult writing is—how difficult
+it is to sequence the story, to keep a reader's attention, to craft
+language to be understandable—few of us have any real sense of
+how difficult media is. Or more fundamentally, few of us have a sense
+of how media works, how it holds an audience or leads it through a
+story, how it triggers emotion or builds suspense.
</para>
<para>
It took filmmaking a generation before it could do these things well.
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><primary>Crichton, Michael</primary></indexterm>
<para>
-This grammar has changed as media has changed. When it was just
-film, as Elizabeth Daley, executive director of the University of
- Southern
+This grammar has changed as media has changed. When it was just film,
+as Elizabeth Daley, executive director of the University of Southern
California's Annenberg Center for Communication and dean of the
<!-- 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><para>
+about "the placement of objects, color, … rhythm, pacing, and
+texture."<footnote>
+<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
2002.
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<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
-control of narrative is lost, and so other techniques are necessary.
- Author
+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
works, it was a new craft he had to learn. How to lead people through
to a wildly successful author.<footnote><para>
<!-- f12 -->
See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
- November
-2000, available at
+November 2000, available at
<ulink url="http://free-culture.cc/notes/">link #8</ulink>; "Timeline," 22 November 2000,
- available
-at
+available at
<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
</para></footnote>
</para>
+<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
+This skill is precisely the craft a filmmaker learns. As Daley
+describes, "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.
</para>
<para>
-Yet the push for an expanded literacy—one that goes beyond text to
-include audio and visual elements—is not about making better film
- directors.
-The aim is not to improve the profession of filmmaking at all.
-Instead, as Daley explained,
+Yet the push for an expanded literacy—one that goes beyond text
+to include audio and visual elements—is not about making better
+film directors. The aim is not to improve the profession of
+filmmaking at all. Instead, as Daley explained,
</para>
<blockquote>
<para>
twentieth century.
</para>
<para>
-The twenty-first century could be different. This is the crucial point:
-It could be both read and write. Or at least reading and better
- understanding
-the craft of writing. Or best, reading and understanding the
-tools that enable the writing to lead or mislead. The aim of any literacy,
+The twenty-first century could be different. This is the crucial
+point: It could be both read and write. Or at least reading and better
+understanding the craft of writing. Or best, reading and understanding
+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
- appropriate
-language for what they need to create or express."<footnote><para>
+and this literacy in particular, is to "empower people to choose the
+appropriate language for what they need to create or
+express."<footnote>
+<para>
<!-- f13 -->
Interview with Daley and Barish.
-</para></footnote> It is to enable
-students "to communicate in the language of the twenty-first century."<footnote><para>
+<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>
<!-- f14 -->
Ibid.
</para></footnote>
</para>
+<indexterm><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 written language. Daley and Stephanie Barish, director of the
- Institute
-for Multimedia Literacy at the Annenberg Center, describe one
-particularly poignant example of a project they ran in a high school.
-The high school was a very poor inner-city Los Angeles school. In all
-the traditional measures of success, this school was a failure. But Daley
-and Barish ran a program that gave kids an opportunity to use film
-to express meaning about something the students know something
-about—gun violence.
+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
+written language. Daley and Stephanie Barish, director of the
+Institute for Multimedia Literacy at the Annenberg Center, describe
+one particularly poignant example of a project they ran in a high
+school. The high school was a very poor inner-city Los Angeles
+school. In all the traditional measures of success, this school was a
+failure. But Daley and Barish ran a program that gave kids an
+opportunity to use film to express meaning about something the
+students know something about—gun violence.
</para>
<para>
The class was held on Friday afternoons, and it created a relatively
what education should be about—learning how to express themselves.
</para>
<para>
-Using whatever "free web stuff they could find," and relatively
- simple
+Using whatever "free web stuff they could find," and relatively simple
tools to enable the kids to mix "image, sound, and text," 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 and
-empowered them to be able to both understand it and talk about it,"
-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 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, 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
+close to the lives of these students. The project "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
+expression—far more successfully and powerfully than could have
+been created using only text. "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,
+because expressing themselves in text is not something these students
+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>
<para>
<!-- PAGE BREAK 52 -->
"But isn't education about teaching kids to write?" 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 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 our interview,
+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
+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
+our interview,
</para>
<blockquote>
<para>
What you want is to give these students ways of constructing
meaning. If all you give them is text, they're not going to do it.
-Because they can't. You know, you've got Johnny who can look at
-a video, he can play a video game, he can do graffiti all over your
+Because they can't. You know, you've got Johnny who can look at a
+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."
-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 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 that you understand, that are your
- language,
-and construct meaning about the topic. . . .
+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."
+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
+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
+that you understand, that are your language, and construct meaning
+about the topic.…
</para>
<para>
That empowers enormously. And then what happens, of
</para>
</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.
+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.
</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," and
-seriousness. This was news choreographed in the way we have
- increasingly
-come to expect it, "news as entertainment," even if the
- entertainment
-is tragedy.
+scored for the intermissions, and fancy graphics that flashed across
+the screen. There was a formula to interviews. There was "balance,"
+and seriousness. This was news choreographed in the way we have
+increasingly come to expect it, "news as entertainment," 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
+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
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
world and presented them as slide shows with text. Some offered open
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
- captured
-the attention of the world. There was ABC and CBS, but there
+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 <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>
<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
-instead to point to a significance in this form of speech. For like a
- Kodak,
-the Internet enables people to capture images. And like in a movie
-
+instead to point to a significance in this form of speech. For like a
+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
with sound or text.
</para>
<para>
-But unlike any technology for simply capturing images, the
- Internet
+But unlike any technology for simply capturing images, the Internet
allows these creations to be shared with an extraordinary number of
-people, practically instantaneously. This is something new in our
- tradition—not
-just that culture can be captured mechanically, and obviously
-not just that events are commented upon critically, but that this mix of
-captured images, sound, and commentary can be widely spread
- practically
-instantaneously.
-</para>
-<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.
-</para>
-<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 their
- private
-life. But there are many who use the space to engage in public
-discourse. Discussing matters of public import, criticizing others who
-are mistaken in their views, criticizing politicians about the decisions
-they make, offering solutions to problems we all see: blogs create the
-sense of a virtual public meeting, but one in which we don't all hope to
-be there at the same time and in which conversations are not
- necessarily
-linked. The best of the blog entries are relatively short; they point
-directly to words used by others, criticizing with or adding to them.
-They are arguably the most important form of unchoreographed
- public
-discourse that we have.
-</para>
-<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 difficult
-for those of us who love America to accept: Our democracy has
- atrophied.
-Of course we have elections, and most of the time the courts
- allow
-those elections to count. A relatively small number of people vote
+people, practically instantaneously. This is something new in our
+tradition—not just that culture can be captured mechanically,
+and obviously not just that events are commented upon critically, but
+that this mix of captured images, sound, and commentary can be widely
+spread practically instantaneously.
+</para>
+<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 <citetitle>Jerry Springer</citetitle>, available anywhere in the world.
+</para>
+<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
+their private life. But there are many who use the space to engage in
+public discourse. Discussing matters of public import, criticizing
+others who are mistaken in their views, criticizing politicians about
+the decisions they make, offering solutions to problems we all see:
+blogs create the sense of a virtual public meeting, but one in which
+we don't all hope to be there at the same time and in which
+conversations are not necessarily linked. The best of the blog entries
+are relatively short; they point directly to words used by others,
+criticizing with or adding to them. They are arguably the most
+important form of unchoreographed public discourse that we have.
+</para>
+<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
+difficult for those of us who love America to accept: Our democracy
+has atrophied. Of course we have elections, and most of the time the
+courts allow those elections to count. A relatively small number of
+people vote
<!-- PAGE BREAK 55 -->
-in those elections. The cycle of these elections has become totally
- professionalized
-and routinized. Most of us think this is democracy.
+in those elections. The cycle of these elections has become totally
+professionalized and routinized. Most of us think this is democracy.
</para>
<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
+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
-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 least, they had to agree upon a
-unanimous result for the process to come to an end.<footnote><para>
+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
+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>
<para>
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.
-</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.
-</para>
-<para>
-More bizarrely, there is generally not even permission for it to
- occur.
-We, the most powerful democracy in the world, have developed a
-strong norm against talking about politics. It's fine to talk about
- politics
-with people you agree with. But it is rude to argue about politics
-with people you disagree with. Political discourse becomes isolated,
-and isolated discourse becomes more extreme.<footnote><para>
+Bruce Ackerman and James Fishkin, "Deliberation Day," <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.
+</para>
+<para>
+More bizarrely, there is generally not even permission for it to
+occur. We, the most powerful democracy in the world, have developed a
+strong norm against talking about politics. It's fine to talk about
+politics with people you agree with. But it is rude to argue about
+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),
-6580, 175, 182, 183, 192.
-</para></footnote> We say what our
-friends want to hear, and hear very little beyond what our friends say.
+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>
<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 want to read. The most difficult time is synchronous time.
- Technologies
-that enable asynchronous communication, such as e-mail,
+problem. People post when they want to post, and people read when they
+want to read. The most difficult time is synchronous time.
+Technologies that enable asynchronous communication, such as e-mail,
increase the opportunity for communication. Blogs allow for public
<!-- PAGE BREAK 56 -->
</para>
<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
+name Howard Dean may well have faded from the 2004 presidential race
+but for blogs. Yet even if the number of readers is small, the reading
is having an effect.
+<indexterm><primary>Dean, Howard</primary></indexterm>
</para>
<para>
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
-"misspoke" at a party for Senator Strom Thurmond, essentially
- praising
+"misspoke" 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 broke
-back into the mainstream press. In the end, Lott was forced to resign
-as senate majority leader.<footnote><para>
+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
+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
York Times, 16 January 2003, G5.
</para></footnote>
+<indexterm><primary>Lott, Trent</primary></indexterm>
</para>
<para>
-This different cycle is possible because the same commercial
- pressures
+This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
newspapers are commercial entities. They must work to keep attention.
-If they lose readers, they lose revenue. Like sharks, they must move on.
+If they lose readers, they lose revenue. Like sharks, they must move
+on.
</para>
<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
- particularly
-interesting story, more and more people link to that story. And as
-the number of links to a particular story increases, it rises in the ranks
-of stories. People read what is popular; what is popular has been
- selected
-by a very democratic process of peer-generated rankings.
+can focus, they can get serious. If a particular blogger writes a
+particularly interesting story, more and more people link to that
+story. And as the number of links to a particular story increases, it
+rises in the ranks of stories. People read what is popular; what is
+popular has been selected by a very democratic process of
+peer-generated rankings.
</para>
+<indexterm id="idxwinerdave" class='startofrange'>
+ <primary>Winer, Dave</primary>
+</indexterm>
<para>
There's a second way, as well, in which blogs have a different cycle
<!-- PAGE BREAK 57 -->
conflict of interest is so easily disclosed that you know you can sort of
get it out of the way."
</para>
+<indexterm><primary>CNN</primary></indexterm>
<para>
These conflicts become more important as media becomes more
-concentrated (more on this below). A concentrated media can hide
-more from the public than an unconcentrated media can—as CNN
-admitted it did after the Iraq war because it was afraid of the
- consequences
-to its own employees.<footnote><para>
+concentrated (more on this below). A concentrated media can hide more
+from the public than an unconcentrated media can—as CNN admitted
+it did after the Iraq war because it was afraid of the consequences to
+its own employees.<footnote><para>
<!-- 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 <emphasis>that</emphasis> 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>
<!-- 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," Online
- Journalism
-Review, 2 February 2003, available at
+John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
+Information Online," <citetitle>New York Times</citetitle>, 2 February 2003, A28; Staci
+D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
+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.
+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.
</para>
<para>
-Winer is optimistic about the future of journalism infected with
-blogs. "It's going to become an essential skill," Winer predicts, for
- public
-figures and increasingly for private figures as well. It's not clear that
-"journalism" is happy about this—some journalists have been told to
-
curtail their blogging.<footnote><para>
+Winer is optimistic about the future of journalism infected
+with blogs. "It's going to become an essential skill," Winer predicts,
+for public figures and increasingly for private figures as well. It's
+not clear that "journalism" 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
-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 fired for keeping a personal Web log,
-published under a pseudonym, that dealt with some of the issues and
-people he was covering.")
+See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" <citetitle>New
+York Times</citetitle>, 29 September 2003, C4. ("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 <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>
</para></footnote>
But it is clear that we are still in transition. "A
be the last thing that gets shut down."
</para>
<para>
-This speech affects democracy. Winer thinks that happens because
-"you don't have to work for somebody who controls, [for] a
- gatekeeper."
-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 is
-easy to be wrong and misguided in your head. It is harder when the
-product of your mind can be criticized by others. Of course, it is a rare
-human who admits that he has been persuaded that he is wrong. But it
-is even rarer for a human to ignore when he has been proven wrong.
+This speech affects democracy. Winer thinks that happens because "you
+don't have to work for somebody who controls, [for] a gatekeeper."
+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
+is easy to be wrong and misguided in your head. It is harder when the
+product of your mind can be criticized by others. Of course, it is a
+rare human who admits that he has been persuaded that he is wrong. But
+it is even rarer for a human to ignore when he has been proven wrong.
The writing of ideas, arguments, and criticism improves democracy.
Today there are probably a couple of million blogs where such writing
-happens. When there are ten million, there will be something
- extraordinary
-to report.
+happens. When there are ten million, there will be something
+extraordinary to report.
</para>
+<indexterm startref="idxwinerdave" class='endofrange'/>
+<indexterm id="idxbrownjohnseely" class='startofrange'>
+ <primary>Brown, John Seely</primary>
+</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is "human learning and . . . the
-creation of knowledge ecologies for creating . . . innovation."
+His work, as his Web site describes it, is "human learning and … the
+creation of knowledge ecologies for creating … innovation."
</para>
<para>
-Brown thus looks at these technologies of digital creativity a bit
- differently
-from the perspectives I've sketched so far. I'm sure he would be
-excited about any technology that might improve democracy. But his
-real excitement comes from how these technologies affect learning.
+Brown thus looks at these technologies of digital creativity a bit
+differently from the perspectives I've sketched so far. I'm sure he
+would be excited about any technology that might improve
+democracy. But his real excitement comes from how these technologies
+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 "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
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
+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 the
-tinkering of many others.
+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
+the tinkering of many others.
</para>
<para>
The best large-scale example of this kind of tinkering so far is free
software or open-source software (FS/OSS). FS/OSS is software whose
-source code is shared. Anyone can download the technology that makes
-a FS/OSS program run. And anyone eager to learn how a particular bit
-of FS/OSS technology works can tinker with the code.
+source code is shared. Anyone can download the technology that makes a
+FS/OSS program run. And anyone eager to learn how a particular bit of
+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 . . .
-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."
+This opportunity creates a "completely new kind of learning platform,"
+as Brown describes. "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."
</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
- 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 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 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 lot
-you can start to do on this medium. [It] can now amplify and honor
+They are code." Kids are "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
+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
+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
+lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
</para>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
-Brown is talking about what Elizabeth Daley, Stephanie Barish,
-and Just Think! teach: that this tinkering with culture teaches as well
+Brown is talking about what Elizabeth Daley, Stephanie Barish, and
+Just Think! teach: that this tinkering with culture teaches as well
<!-- PAGE BREAK 60 -->
-as creates. It develops talents differently, and it builds a different kind
-of recognition.
+as creates. It develops talents differently, and it builds a different
+kind of recognition.
</para>
<para>
-Yet the freedom to tinker with these objects is not guaranteed.
- Indeed,
-as we'll see through the course of this book, that freedom is
- increasingly
-highly contested. While there's no doubt that your father
-had the right to tinker with the car engine, there's great doubt that your
-child will have the right to tinker with the images she finds all around.
-The law and, increasingly, technology interfere with a freedom that
-technology, and curiosity, would otherwise ensure.
-</para>
-<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 general.<footnote><para>
+Yet the freedom to tinker with these objects is not guaranteed.
+Indeed, as we'll see through the course of this book, that freedom is
+increasingly highly contested. While there's no doubt that your father
+had the right to tinker with the car engine, there's great doubt that
+your child will have the right to tinker with the images she finds all
+around. The law and, increasingly, technology interfere with a
+freedom that technology, and curiosity, would otherwise ensure.
+</para>
+<para>
+These restrictions have become the focus of researchers and scholars.
+Professor Ed Felten of Princeton (whom we'll see more of in chapter
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>)
+has developed a powerful argument in favor of the "right to
+tinker" 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, "Technological Access
+Control Interferes with Noninfringing Scholarship," <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."
+"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."
</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
- architecture
-that unleashes 60 percent of the brain [and] a legal system that
-closes down that part of the brain."
+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."
</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
</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.
+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.
+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.
</para>
<para>
-RPI is one of America's foremost technological research
- institutions.
-It offers degrees in fields ranging from architecture and
- engineering
-to information sciences. More than 65 percent of its five
-thousand undergraduates finished in the top 10 percent of their high
-school class. The school is thus a perfect mix of talent and experience
-to imagine and then build, a generation for the network age.
+RPI is one of America's foremost technological research institutions.
+It offers degrees in fields ranging from architecture and engineering
+to information sciences. More than 65 percent of its five thousand
+undergraduates finished in the top 10 percent of their high school
+class. The school is thus a perfect mix of talent and experience to
+imagine and then build, a generation for the network age.
</para>
<para>
-RPI's computer network links students, faculty, and administration
-to one another. It also links RPI to the Internet. Not everything
- available
-on the RPI network is available on the Internet. But the 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.
+RPI's computer network links students, faculty, and administration to
+one another. It also links RPI to the Internet. Not everything
+available on the RPI network is available on the Internet. But the
+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>
<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, 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>
-<para>
-These engines are enabled by the network technology itself.
- Microsoft,
-for example, has a network file system that makes it very easy
-for search engines tuned to that network to query the system for
- information
-about the publicly (within that network) available content.
-Jesse's search engine was built to take advantage of this technology. It
-used Microsoft's network file system to build an index of all the files
-available within the RPI network.
-</para>
-<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 had
-built. His single most important improvement over those engines was
-to fix a bug within the Microsoft file-sharing system that could cause a
-user's computer to crash. With the engines that existed before, if you
-tried to access a file through a Windows browser that was on a
- computer
-that was off-line, your computer could crash. Jesse modified the
-system a bit to fix that problem, by adding a button that a user could
-click to see if the machine holding the file was still on-line.
+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, 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>
+<para>
+These engines are enabled by the network technology itself.
+Microsoft, for example, has a network file system that makes it very
+easy for search engines tuned to that network to query the system for
+information about the publicly (within that network) available
+content. Jesse's search engine was built to take advantage of this
+technology. It used Microsoft's network file system to build an index
+of all the files available within the RPI network.
+</para>
+<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
+had built. His single most important improvement over those engines
+was to fix a bug within the Microsoft file-sharing system that could
+cause a user's computer to crash. With the engines that existed
+before, if you tried to access a file through a Windows browser that
+was on a computer that was off-line, your computer could crash. Jesse
+modified the system a bit to fix that problem, by adding a button that
+a user could click to see if the machine holding the file was still
+on-line.
</para>
<para>
Jesse's engine went on-line in late October. Over the following six
be on users' computers.
</para>
<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 research; copies of information pamphlets; movie clips that
- students
+Thus the index his search engine produced included pictures, which
+students could use to put on their own Web sites; copies of notes or
+research; copies of information pamphlets; movie clips that students
might have created; university brochures—basically anything that
<!-- PAGE BREAK 63 -->
users of the RPI network made available in a public folder of their
</para>
<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 means,
-of course, that three quarters were not, and—so that this point is
- absolutely
-clear—Jesse did nothing to induce people to put music files in
-their public folders. He did nothing to target the search engine to these
-files. He was a kid tinkering with a Google-like technology at a
- university
-where he was studying information science, and hence,
- tinkering
-was the aim. Unlike Google, or Microsoft, for that matter, he made
-no money from this tinkering; he was not connected to any business
-that would make any money from this experiment. He was a kid
- tinkering
-with technology in an environment where tinkering with
- technology
-was precisely what he was supposed to do.
+files that Jesse's search engine listed were music files. But that
+means, of course, that three quarters were not, and—so that this
+point is absolutely clear—Jesse did nothing to induce people to
+put music files in their public folders. He did nothing to target the
+search engine to these files. He was a kid tinkering with a
+Google-like technology at a university where he was studying
+information science, and hence, tinkering was the aim. Unlike Google,
+or Microsoft, for that matter, he made no money from this tinkering;
+he was not connected to any business that would make any money from
+this experiment. He was a kid tinkering with technology in an
+environment where tinkering with technology was precisely what he was
+supposed to do.
</para>
<para>
On April 3, 2003, Jesse was contacted by the dean of students at
RPI. The dean informed Jesse that the Recording Industry Association
of America, the RIAA, would be filing a lawsuit against him and three
-other students whom he didn't even know, two of them at other
- universities.
-A few hours later, Jesse was served with papers from the suit.
-As he read these papers and watched the news reports about 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 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.
+other students whom he didn't even know, two of them at other
+universities. A few hours later, Jesse was served with papers from
+the suit. As he read these papers and watched the news reports about
+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
+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 <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>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore "willfully" violated copyright laws. They
<!-- PAGE BREAK 64 -->
- demanded
-that he pay them the damages for his wrong. For cases of
+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
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.
+hundred specific copyright infringements, they therefore demanded that
+Jesse pay them at least $15,000,000.
</para>
<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.
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
+Suit Alleges $97.8 Billion in Damages," <citetitle>Professional Media Group LCC</citetitle> 6
(2003): 5, available at 2003 WL 55179443.
</para></footnote>
</para>
</para>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
-refused. They wanted him to agree to an injunction that would
- essentially
-make it impossible for him to work in many fields of 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 would not settle the case until it took
-every penny Jesse had saved.
+refused. They wanted him to agree to an injunction that would
+essentially make it impossible for him to work in many fields of
+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
+would not settle the case until it took every penny Jesse had saved.
</para>
<para>
Jesse's family was outraged at these claims. They wanted to fight.
paper saying he and his family were bankrupt.
</para>
<para>
-So Jesse faced a mafia-like choice: $250,000 and a chance at
- winning,
+So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
<para>
artist makes $45,900.<footnote><para>
<!-- f2 -->
Occupational Employment Survey, U.S. Dept. of Labor (2001)
-(272042—Musicians and Singers). See also National Endowment for
-the Arts, More Than One in a Blue Moon (2000).
+(27–2042—Musicians and Singers). See also National Endowment for
+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>
+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.
+<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24.
</para></footnote>
</para>
<para>
<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.
+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
+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>
<!-- PAGE BREAK 66 -->
-</sect1>
-<sect1 id="pirates">
+</chapter>
+<chapter label="4" 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
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">
+<section id="film">
<title>Film</title>
<para>
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- f1 -->
I am grateful to Peter DiMauro for pointing me to this extraordinary
- history.
-See also Siva Vaidhyanathan, Copyrights and Copywrongs, 8793,
+history. See also Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 87–93,
which details Edison's "adventures" 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
- Company,
-and were based on Thomas Edison's creative property—patents.
-Edison formed the MPPC to exercise the rights this creative property
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+</para></footnote>
+Creators and directors migrated from the East Coast to California in
+the early twentieth century in part to escape controls that patents
+granted the inventor of filmmaking, Thomas Edison. These controls were
+exercised through a monopoly "trust," 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
<!-- PAGE BREAK 67 -->
gave him, and the MPPC was serious about the control it demanded.
</para>
imported film stock to create their own underground market.
</para>
<para>
-With the country experiencing a tremendous expansion in the
-number of nickelodeons, the Patents Company reacted to the
- independent
-movement by forming a strong-arm subsidiary known
-as the General Film Company to block the entry of non-licensed
-independents. With coercive tactics that have become legendary,
-General Film confiscated unlicensed equipment, discontinued
-product supply to theaters which showed unlicensed films, and
-effectively monopolized distribution with the acquisition of all
-U.S. film exchanges, except for the one owned by the independent
-William Fox who defied the Trust even after his license was
- revoked.<footnote><para>
+With the country experiencing a tremendous expansion in the number of
+nickelodeons, the Patents Company reacted to the independent movement
+by forming a strong-arm subsidiary known as the General Film Company
+to block the entry of non-licensed independents. With coercive tactics
+that have become legendary, General Film confiscated unlicensed
+equipment, discontinued product supply to theaters which showed
+unlicensed films, and effectively monopolized distribution with the
+acquisition of all U.S. film exchanges, except for the one owned by
+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
+J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent Motion
+Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and expanded texts
posted at "The Edison Movie Monopoly: The Motion Picture Patents
Company vs. the Independent Outlaws," 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 Edison
-to the Broadcast Flag: Mechanisms of Consent and Refusal and the
- Propertization
-of Copyright" (September 2002), University of Chicago Law
-School, James M. Olin Program in Law and Economics, Working Paper
-No. 159.
-</para></footnote>
+<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
+Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
+the Propertization of Copyright" (September 2002), University of
+Chicago Law School, James M. Olin Program in Law and Economics,
+Working Paper No. 159. </para></footnote>
+<indexterm><primary>Fox, William</primary></indexterm>
+<indexterm><primary>General Film Company</primary></indexterm>
+<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para>
</blockquote>
<para>
The Napsters of those days, the "independents," were companies like
-Fox. And no less than today, these independents were vigorously
- resisted.
-"Shooting was disrupted by machinery stolen, and `accidents'
-resulting in loss of negatives, equipment, buildings and sometimes life
-and limb frequently occurred."<footnote><para>
+Fox. And no less than today, these independents were vigorously
+resisted. "Shooting was disrupted by machinery stolen, and
+`accidents' resulting in loss of negatives, equipment, buildings and
+sometimes life and limb frequently occurred."<footnote><para>
<!-- f3 -->
-Marc Wanamaker, "The First Studios," The Silents Majority, archived at
-
+Marc Wanamaker, "The First Studios," <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 Coast. California was remote enough from Edison's reach that
- filmmakers
-there could pirate his inventions without fear of the law. And the
-leaders of Hollywood filmmaking, Fox most prominently, did just that.
+That led the independents to flee the East
+Coast. California was remote enough from Edison's reach that
+filmmakers there could pirate his inventions without fear of the
+law. And the leaders of Hollywood filmmaking, Fox most prominently,
+did just that.
</para>
<para>
Of course, California grew quickly, and the effective enforcement
<!-- 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.
+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>
<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>
<para>
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
</para>
-<para>
-But what if I wanted to record "Happy Mose," 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 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 simply sang the song into a
- recording
-device in the privacy of my own home, it wasn't clear that I owed the
-composer anything. And more importantly, it wasn't clear whether I
-owed the composer anything if I then made copies of those recordings.
-Because of this gap in the law, then, I could effectively pirate someone
-else's song without paying its composer anything.
-</para>
+<indexterm><primary>Beatles</primary></indexterm>
+<para>
+But what if I wanted to record "Happy Mose," 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
+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
+simply sang the song into a recording device in the privacy of my own
+home, it wasn't clear that I owed the composer anything. And more
+importantly, it wasn't clear whether I owed the composer anything if I
+then made copies of those recordings. Because of this gap in the law,
+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>
Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same and
-copyrights it. Along come the phonographic companies and
- companies
-who cut music rolls and deliberately steal the work of the brain
-
of the composer and publisher without any regard for [their] rights.<footnote><para>
+copyrights it. Along come the phonographic companies and companies who
+cut music rolls and deliberately steal the work of the brain of the
+composer and publisher without any regard for [their]
+rights.<footnote><para>
<!-- f4 -->
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
- Hackensack,
-N.J.: Rothman Reprints, 1976).
+Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
+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>
genius of American composers,"<footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(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>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(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>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23
- (statement
-of John Philip Sousa, composer).
+(statement of John Philip Sousa, composer).
</para></footnote>
</para>
<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
-introduction of automatic music players has not deprived any
- composer
-of anything he had before their introduction." Rather, the
- machines
+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
+introduction of automatic music players has not deprived any composer
+of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
-To Amend and Consolidate the Acts Respecting Copyright, 28384
-(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 musical, literary or artistic, except as defined by statute."<footnote><para>
+
+To Amend and Consolidate the Acts Respecting Copyright, 283–84
+(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
+musical, literary or artistic, except as defined by
+statute."<footnote><para>
<!-- f9 -->
-To Amend and Consolidate the Acts Respecting Copyright, 376
- (prepared
-memorandum of Philip Mauro, general patent counsel of the
- American
+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>
+<indexterm><primary>American Graphophone Company</primary></indexterm>
</para>
<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 "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
<!-- 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
+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>
<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 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.
+refer to it as a "statutory license." 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>
<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
-gives the publisher permission. Grisham, in turn, is free to charge
- whatever
-he wants for that permission. The price to publish 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.
+writes a novel, a publisher is free to publish that novel only if
+Grisham gives the publisher permission. Grisham, in turn, is free to
+charge whatever he wants for that permission. The price to publish
+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>
<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 creativity.<footnote><para>
+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>
<para>
While the recording industry has been quite coy about this recently,
the record producers argued vigorously that the compulsory
<!-- PAGE BREAK 71 -->
license system must be retained. They asserted that the record
- industry
-is a half-billion-dollar business of great economic
- importance
-in the United States and throughout the world; records
-today are the principal means of disseminating music, and this
-creates special problems, since performers need unhampered
- access
-to musical material on nondiscriminatory terms. Historically,
-the record producers pointed out, there were no recording rights
-before 1909 and the 1909 statute adopted the compulsory license
-as a deliberate anti-monopoly condition on the grant of these
-rights. They argue that the result has been an outpouring of
-recorded music, with the public being given lower prices,
- improved
-quality, and a greater choice.<footnote><para>
+industry is a half-billion-dollar business of great economic
+importance in the United States and throughout the world; records
+today are the principal means of disseminating music, and this creates
+special problems, since performers need unhampered access to musical
+material on nondiscriminatory terms. Historically, the record
+producers pointed out, there were no recording rights before 1909 and
+the 1909 statute adopted the compulsory license as a deliberate
+anti-monopoly condition on the grant of these rights. They argue that
+the result has been an outpouring of recorded music, with the public
+being given lower prices, improved quality, and a greater
+choice.<footnote><para>
<!-- f11 -->
-Copyright Law Revision: Report to Accompany H.R. 2512, House
- Committee
-on the Judiciary, 90th Cong., 1st sess., House Document no. 83,
-(8 March 1967). I am grateful to Glenn Brown for drawing my attention
-to this report.
-</para></footnote>
+Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
+on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
+March 1967). I am grateful to Glenn Brown for drawing my attention to
+this report.</para></footnote>
</para>
</blockquote>
<para>
-By limiting the rights musicians have, by partially pirating their
- creative
-work, the record producers, and the public, benefit.
+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>
<para>
Radio was also born of piracy.
When a radio station plays a record on the air, that constitutes a
"public performance" 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
- 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 Flag: Mechanisms of Consent and
-Refusal and the Propertization of Copyright," University of Chicago Law
-Review 70 (2003): 281.
-</para></footnote>
-As I described above,
-the law gives the composer (or copyright holder) an exclusive right to
-public performances of his work. The radio station thus owes the
- composer
-money for that performance.
-</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.
+See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At the beginning,
+record companies printed "Not Licensed for Radio Broadcast" 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 <citetitle>RCA Manufacturing Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd
+Cir. 1940). See also Randal C. Picker, "From Edison to the Broadcast
+Flag: Mechanisms of Consent and Refusal and the Propertization of
+Copyright," <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>
+As I described above, the law gives the composer (or copyright holder)
+an exclusive right to public performances of his work. The radio
+station thus owes the composer money for that performance.
+</para>
+<para>
+But when the radio station plays a record, it is not only performing a
+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 "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.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
<!-- PAGE BREAK 72 -->
</para>
<para>
-But it doesn't. Under the law governing radio performances, the
- radio
+But it doesn't. Under the law governing radio performances, the radio
station does not have to pay the recording artist. The radio station
-need only pay the composer. The radio station thus gets a bit of
- something
-for nothing. It gets to perform the recording artist's work for
-free, even if it must pay the composer something for the privilege of
-playing the song.
+need only pay the composer. The radio station thus gets a bit of
+something for nothing. It gets to perform the recording artist's work
+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.
+This difference can be huge. Imagine you compose a piece of music.
Imagine it is your first. You own the exclusive right to authorize
public performances of that music. So if Madonna wants to sing your
song in public, she has to get your permission.
<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.
+"protected" right. The radio station thus gets to
+<emphasis>pirate</emphasis> the value of Madonna's work without paying
+her anything.
</para>
+<indexterm startref="idxmadonna" class='endofrange'/>
<para>
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
-performance rights they give up. Maybe. But even if so, the law
- ordinarily
-gives the creator the right to make this choice. By making the
-choice for him or her, the law gives the radio station the right to take
-something for nothing.
-</para>
-</sect2>
-<sect2 id="cabletv">
+performance rights they give up. Maybe. But even if so, the law
+ordinarily gives the creator the right to make this choice. By making
+the choice for him or her, the law gives the radio station the right
+to take something for nothing.
+</para>
+</section>
+<section id="cabletv">
<title>Cable TV</title>
<para>
Cable TV was also born of a kind of piracy.
</para>
<para>
-When cable entrepreneurs first started wiring communities with
-cable television in 1948, most refused to pay broadcasters for the
- content
-that they echoed to their customers. Even when the cable
- companies
+When cable entrepreneurs first started wiring communities with cable
+television in 1948, most refused to pay broadcasters for the content
+that they echoed to their customers. Even when the cable companies
started selling access to television broadcasts, they refused to pay
<!-- PAGE BREAK 73 -->
for what they sold. Cable companies were thus Napsterizing
- broadcasters'
-content, but more egregiously than anything Napster ever did—
-Napster never charged for the content it enabled others to give away.
+broadcasters' content, but more egregiously than anything Napster ever
+did— Napster never charged for the content it enabled others to
+give away.
</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>
<!-- 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).
-</para></footnote>
-There may have
-been a "public interest" in spreading the reach of cable TV, but as
- Douglas
-Anello, general counsel to the National Association of
- Broadcasters,
-asked Senator Quentin Burdick during testimony, "Does public
+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
+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>
<!-- f14 -->
Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
</para>
</blockquote>
<para>
-Again, the demand of the copyright holders seemed reasonable
-enough:
+Again, the demand of the copyright holders seemed reasonable enough:
</para>
<blockquote>
<para>
</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 "free-ride[rs]," Screen Actor's Guild president Charlton
+Heston said, who were "depriving actors of
+compensation."<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
+But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
</para>
<blockquote>
<para>
-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
+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
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
how far back they should carry their right to compensation.<footnote><para>
<!-- f18 -->
-Copyright Law Revision—CATV, 216 (statement of Edwin M.
- Zimmerman,
-acting assistant attorney general).
+Copyright Law Revision—CATV, 216 (statement of Edwin M.
+Zimmerman, acting assistant attorney general).
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para></footnote>
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para>
</blockquote>
<para>
-Copyright owners took the cable companies to court. Twice the
-Supreme Court held that the cable companies owed the copyright
-owners nothing.
+Copyright owners took the cable companies to court. Twice the Supreme
+Court held that the cable companies owed the copyright owners nothing.
</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."
-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 created by
- broadcasters'
-content.
-</para>
-<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>
+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
+created by broadcasters' content.
+</para>
+<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>
<!-- 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
+Information</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #13</ulink>. "The
threat of piracy—the use of someone else's creative work without
permission or compensation—has grown with the Internet."
</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">
+</section>
+</chapter>
+<chapter label="5" id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
-
-There is piracy of copyrighted material. Lots of it. This piracy
-comes in many forms. The most significant is commercial piracy, the
+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.
+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"
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.
-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.
+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>
<para>
All across the world, but especially in Asia and Eastern Europe, there
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 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.
+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," <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.
+(that works out to one in three CDs sold worldwide). The MPAA
+estimates that it loses $3 billion annually worldwide to piracy.
</para>
<para>
This is piracy plain and simple. Nothing in the argument of this
<para>
Which is not to say that excuses and justifications couldn't be made
for it. We could, for example, remind ourselves that for the first one
-hundred years of the American Republic, America did not honor
- foreign
+hundred years of the American Republic, America did not honor foreign
copyrights. We were born, in this sense, a pirate nation. It might
-therefore seem hypocritical for us to insist so strongly that other
- developing
-nations treat as wrong what we, for the first hundred years of our
-existence, treated as right.
+therefore seem hypocritical for us to insist so strongly that other
+developing nations treat as wrong what we, for the first hundred years
+of our existence, treated as right.
</para>
<para>
That excuse isn't terribly strong. Technically, our law did not ban
the taking of foreign works. It explicitly limited itself to American
works. Thus the American publishers who published foreign works
without the permission of foreign authors were not violating any rule.
-The copy shops in Asia, by contrast, are violating Asian law. Asian law
-does protect foreign copyrights, and the actions of the copy shops
- violate
-that law. So the wrong of piracy that they engage in is not just a
-moral wrong, but a legal wrong, and not just an internationally legal
-wrong, but a locally legal wrong as well.
+The copy shops in Asia, by contrast, are violating Asian law. Asian
+law does protect foreign copyrights, and the actions of the copy shops
+violate that law. So the wrong of piracy that they engage in is not
+just a moral wrong, but a legal wrong, and not just an internationally
+legal wrong, but a locally legal wrong as well.
</para>
<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 -->
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.
+pirate nation, but we will not allow any other nation to have a
+similar childhood.
</para>
<para>
If a country is to be treated as a sovereign, however, then its laws are
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), 1013, 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.
-</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.
+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>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>
<para>
Alternatively, we could try to excuse this piracy by noting that in
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),
-14490. "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.
+Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: Amacom, 2002),
+144–90. "In some instances … the impact of piracy on the
+copyright holder's ability to appropriate the value of the work will
+be negligible. One obvious instance is the case where the individual
+engaging in pirating would not have purchased an original even if
+pirating were not an option." Ibid., 149.
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
</para>
<para>
</para>
<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 copyright owner wants to sell. But
+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 "take" copyrighted content whether or not the
+copyright owner wants to sell. But
<!-- PAGE BREAK 78 -->
where the law does not give people the right to take content, it is
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>
-<para>
-Finally, we could try to excuse this piracy with the argument that
-the piracy actually helps the copyright owner. When the Chinese
-"steal" 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
-grows more wealthy, more and more people will buy software
-rather than steal it. And hence over time, because that buying will
- benefit
+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>
+<para>
+Finally, we could try to excuse this piracy with the argument that the
+piracy actually helps the copyright owner. When the Chinese "steal"
+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
+grows more wealthy, more and more people will buy software rather than
+steal it. And hence over time, because that buying will benefit
Microsoft, Microsoft benefits from the piracy. If instead of pirating
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.
-</para>
-<para>
-This argument, too, is somewhat true. The addiction strategy is a
-good one. Many businesses practice it. Some thrive because of it. Law
+system, then these Chinese users would not eventually be buying
+Microsoft. Without piracy, then, Microsoft would lose.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
+<indexterm>
+<primary>Microsoft</primary>
+<secondary>Windows operating system of</secondary>
+</indexterm>
+<indexterm><primary>Windows</primary></indexterm>
+</para>
+<para>
+This argument, too, is somewhat true. The addiction strategy is a good
+one. Many businesses practice it. Some thrive because of it. Law
students, for example, are given free access to the two largest legal
-databases. The companies marketing both hope the students will
- become
+databases. The companies marketing both hope the students will become
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>
<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 will
-make it more likely that he will buy the next three. Instead, we
- ordinarily
-allow businesses to decide for themselves when it is best to give
-their product away. If Microsoft fears the competition of GNU/Linux,
-then Microsoft can give its product away, as it did, for example, with
-Internet Explorer to fight Netscape. A property right means
- giving
-the property owner the right to say who gets access to what—at
-least ordinarily. And if the law properly balances the rights of the
- copyright
-owner with the rights of access, then violating the law is still
-wrong.
+Still, the argument is not terribly persuasive. We don't give the
+alcoholic a defense when he steals his first beer, merely because that
+will make it more likely that he will buy the next three. Instead, we
+ordinarily allow businesses to decide for themselves when it is best
+to give their product away. If Microsoft fears the competition of
+GNU/Linux, then Microsoft can give its product away, as it did, for
+example, with Internet Explorer to fight Netscape. A property right
+means giving the property owner the right to say who gets access to
+what—at least ordinarily. And if the law properly balances the
+rights of the copyright owner with the rights of access, then
+violating the law is still wrong.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Internet Explorer</primary></indexterm>
+<indexterm><primary>Netscape</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
<!-- PAGE BREAK 79 -->
is flat out wrong.
</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 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.
+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
+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.
</para>
<para>
This doesn't mean that there are no questions raised by the latest
</para>
<para>
These differences distinguish p2p sharing from true piracy. They
-should push us to find a way to protect artists while enabling this
- sharing
-to survive.
+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>
<!-- 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
author of his profit.
</para>
<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:
+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, <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, 8992, 139.
+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, <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, "Silicon Valley Dream, Hollywood Nightmare," <citetitle>San
+Francisco Chronicle</citetitle>, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
+<citetitle>New Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
+Secures New Financing," <citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1;
+"Napster's Wake-Up Call," <citetitle>Economist</citetitle>, 24 June 2000, 23; John Naughton,
+"Hollywood at War with the Internet" (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
or your 20,000 best friends.
</para>
<para>
-According to a number of estimates, a huge proportion of
- Americans
+According to a number of estimates, a huge proportion of Americans
have tasted file-sharing technology. A study by Ipsos-Insight in
September 2002 estimated that 60 million Americans had downloaded
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, "Industry Offers a Carrot in Online Music Fight," <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 ease and
-inexpensiveness of file-sharing networks have inspired millions to
- enjoy
-music in a way that they hadn't before.
+The vast majority of these are not kids. Whatever the actual figure, a
+massive quantity of content is being "taken" 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>
<para>
-Some of this enjoying involves copyright infringement. Some of it
-does not. And even among the part that is technically copyright
- infringement,
-calculating the actual harm to copyright owners is more
-complicated than one might think. So consider—a bit more carefully
-than the polarized voices around this debate usually do—the kinds of
-sharing that file sharing enables, and the kinds of harm it entails.
+Some of this enjoying involves copyright infringement. Some of it does
+not. And even among the part that is technically copyright
+infringement, calculating the actual harm to copyright owners is more
+complicated than one might think. So consider—a bit more
+carefully than the polarized voices around this debate usually
+do—the kinds of sharing that file sharing enables, and the kinds
+of harm it entails.
</para>
<para>
<!-- PAGE BREAK 81 -->
<orderedlist numeration="upperalpha">
<listitem><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 the CD, these users simply take it. We might
-quibble about whether everyone who takes it would actually
-have bought it if sharing didn't make it available for free. Most
-probably wouldn't have, but clearly there are some who would.
-The latter are the target of category A: users who download
- instead
-of purchasing.
+There are some who use sharing networks as substitutes for purchasing
+content. Thus, when a new Madonna CD is released, rather than buying
+the CD, these users simply take it. We might quibble about whether
+everyone who takes it would actually have bought it if sharing didn't
+make it available for free. Most probably wouldn't have, but clearly
+there are some who would. The latter are the target of category A:
+users who download instead of purchasing.
+<indexterm><primary>Madonna</primary></indexterm>
</para></listitem>
<listitem><para>
<!-- B. -->
There are some who use sharing networks to sample music before
-purchasing it. Thus, a friend sends another friend an MP3 of an
-artist he's not heard of. The other friend then buys CDs by that
-artist. This is a kind of targeted advertising, quite likely to
- succeed.
-If the friend recommending the album gains nothing from
-a bad recommendation, then one could expect that the
- recommendations
-will actually be quite good. The net effect of this
-sharing could increase the quantity of music purchased.
+purchasing it. Thus, a friend sends another friend an MP3 of an artist
+he's not heard of. The other friend then buys CDs by that artist. This
+is a kind of targeted advertising, quite likely to succeed. If the
+friend recommending the album gains nothing from a bad recommendation,
+then one could expect that the recommendations will actually be quite
+good. The net effect of this sharing could increase the quantity of
+music purchased.
</para></listitem>
<listitem><para>
<!-- C. -->
-There are many who use sharing networks to get access to
- copyrighted
-content that is no longer sold or that they would not
-have purchased because the transaction costs off the Net are too
-high. This use of 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 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 selling the
-content anymore, the economic harm is zero—the same harm
-that occurs when I sell my collection of 1960s 45-rpm records to
+There are many who use sharing networks to get access to copyrighted
+content that is no longer sold or that they would not have purchased
+because the transaction costs off the Net are too high. This use of
+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
+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
+selling the content anymore, the economic harm is zero—the same
+harm that occurs when I sell my collection of 1960s 45-rpm records to
a local collector.
</para></listitem>
<listitem><para>
How do these different types of sharing balance out?
</para>
<para>
-Let's start with some simple but important points. From the
- perspective
-of the law, only type D sharing is clearly legal. From the
-
perspective of economics, only type A sharing is clearly harmful.<footnote><para>
+Let's start with some simple but important points. From the
+perspective of the law, only type D sharing is clearly legal. From the
+perspective of economics, only type A sharing is clearly
+harmful.<footnote><para>
<!-- f9 -->
-See Liebowitz, Rethinking the Network Economy,14849.
-</para></footnote>
-Type B sharing is illegal but plainly beneficial. Type C sharing is
- illegal,
-yet good for society (since more exposure to music is good) and
-harmless to the artist (since the work is not otherwise available). So
-how sharing matters on balance is a hard question to answer—and
- certainly
-much more difficult than the current rhetoric around the issue
-suggests.
-</para>
-<para>
-Whether on balance sharing is harmful depends importantly on
-how harmful type A sharing is. Just as Edison complained about
- Hollywood,
-composers complained about piano rolls, recording artists
-complained about radio, and broadcasters complained about cable TV,
-the music industry complains that type A sharing is a kind of "theft"
-that is "devastating" the industry.
-</para>
-<para>
-While the numbers do suggest that sharing is harmful, how
- harmful
-is harder to reckon. It has long been the recording industry's
- practice
-to blame technology for any drop in sales. The history of cassette
-recording is a good example. As a study by Cap Gemini Ernst &
-Young put it, "Rather than exploiting this new, popular technology, the
-labels fought it."<footnote><para>
+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
+illegal, yet good for society (since more exposure to music is good)
+and harmless to the artist (since the work is not otherwise
+available). So how sharing matters on balance is a hard question to
+answer—and certainly much more difficult than the current
+rhetoric around the issue suggests.
+</para>
+<para>
+Whether on balance sharing is harmful depends importantly on how
+harmful type A sharing is. Just as Edison complained about Hollywood,
+composers complained about piano rolls, recording artists complained
+about radio, and broadcasters complained about cable TV, the music
+industry complains that type A sharing is a kind of "theft" that is
+"devastating" the industry.
+</para>
+<para>
+While the numbers do suggest that sharing is harmful, how
+harmful is harder to reckon. It has long been the recording industry's
+practice to blame technology for any drop in sales. The history of
+cassette recording is a good example. As a study by Cap Gemini Ernst
+& Young put it, "Rather than exploiting this new, popular
+technology, the labels fought it."<footnote><para>
<!-- f10 -->
-See Cap Gemini Ernst & Young, Technology Evolution and the Music
- Industry's
-Business Model Crisis (2003), 3. This report describes the music
- industry's
-effort to stigmatize the budding practice of cassette taping in the
-1970s, including an advertising campaign featuring a cassette-shape skull
-and the caption "Home taping is killing music."
-At the time digital audio tape became a threat, the Office of Technical
-Assessment conducted a survey of consumer behavior. In 1988, 40 percent
-of consumers older than ten had taped music to a cassette format. U.S.
-Congress, Office of Technology Assessment, Copyright and Home Copying:
-Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
-Government Printing Office, October 1989), 14556.
-</para></footnote>
-The labels claimed that every album taped was an
-album unsold, and when record sales fell by 11.4 percent in 1981, the
-industry claimed that its point was proved. Technology was the
- problem,
-and banning or regulating technology was the answer.
+See Cap Gemini Ernst & Young, <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,
+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, <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
+when record sales fell by 11.4 percent in 1981, the industry claimed
+that its point was proved. Technology was the problem, and banning or
+regulating technology was the answer.
</para>
<para>
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+turnaround. "In the end," Cap Gemini concludes, "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>
<!-- f11 -->
-U.S. Congress, Copyright and Home Copying, 4.
+U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4.
</para></footnote>
</para>
<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 industry in particular, and society in general—or at least 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.
+the industry in particular, and society in general—or at least
+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 <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.
+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
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>
<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>: "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)."
</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
+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><para>
+price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote>
<!-- f13 -->
+<para>
Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
- February
-2003, available at
+February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #17</ulink>.
-</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>
-<!-- f14 -->
+<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 <citetitle>BusinessWeek</citetitle> notes, "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."<footnote><para>
+<!-- f14 -->
Ibid.
</para></footnote>
</para>
<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, "What's the difference between
+downloading a song and stealing a CD?"—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."
+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?
+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>
+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>
<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
+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, "2002 Annual Survey
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>
<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," 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 currently
- commercially
-available. The Internet is making it available, through
- cooperative
-sharing, without competing with the market.
+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,"
+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
+currently commercially available. The Internet is making it available,
+through cooperative sharing, without competing with the market.
</para>
<para>
It may well be, all things considered, that it would be better if the
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
great book!)
</para>
<para>
-Likewise for work in the public domain: This sharing benefits
- society
+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
of type A sharing destroy the opportunity for type D sharing, then we
lose something important in order to protect type A content.
</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 efficiencies?
-What is the content that otherwise would be unavailable?"
+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
+efficiencies? What is the content that otherwise would be
+unavailable?"
</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 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 cable TV, the
-question we should be asking about file sharing is how best to preserve
-its benefits while minimizing (to the extent possible) the wrongful harm
-it causes artists. The question is one of balance. The law should seek
-that balance, and that balance will be found only with time.
+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
+<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
+cable TV, the question we should be asking about file sharing is how
+best to preserve its benefits while minimizing (to the extent
+possible) the wrongful harm it causes artists. The question is one of
+balance. The law should seek that balance, and that balance will be
+found only with time.
</para>
<para>
"But isn't the war just a war against illegal sharing? Isn't the target
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), 26982.
+
+<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.
+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
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 "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.
</para>
<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>
<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>
-<para>
-In the same year that Congress struck this balance, two major
- producers
-and distributors of film content filed a lawsuit against another
-technology, the video tape recorder (VTR, or as we refer to them today,
-VCRs) that Sony had produced, the Betamax. Disney's and 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 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.
+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><primary>Betamax</primary></indexterm>
+<para>
+In the same year that Congress struck this balance, two major
+producers and distributors of film content filed a lawsuit against
+another technology, the video tape recorder (VTR, or as we refer to
+them today, VCRs) that Sony had produced, the Betamax. Disney's and
+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
+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>
<para>
There was something to Disney's and Universal's claim. Sony did
doubt the majority of shows would not have authorized copying. And
<!-- PAGE BREAK 89 -->
in the face of this obvious preference, Sony could have designed its
- system
-to minimize the opportunity for copyright infringement. It did
+system to minimize the opportunity for copyright infringement. It did
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
</para>
<para>
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "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>
+champion. Valenti called VCRs "tapeworms." He warned, "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>
<!-- 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
-on the after-theater marketplace caused by the hundreds of
- millions
-of tapings that will adversely impact on the future of the creative
+"One does not have to be trained in sophisticated marketing and
+creative judgment," he told Congress, "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>
<!-- f19 -->
Indeed, as surveys would later show,
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
<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 "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 <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>
<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 "taking" notwithstanding. If we put these cases
+together, a pattern is clear:
</para>
-<table id="t1">
-<title>Table</title>
+<informaltable id="t1">
<tgroup cols="4" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
In each case throughout our history, a new technology changed the
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.
-4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
+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): 29396.
+Lessig, <citetitle>Future</citetitle>, 71. See also Picker, "From Edison to the Broadcast Flag,"
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 293–96.
+<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
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 "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.
<!-- PAGE BREAK 91 -->
</para>
<para>
copyright "has never accorded the copyright owner complete control
over all possible uses of his work."<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 "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.
</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 "potential public benefits," as John Schwartz
+writes in <citetitle>The New York Times</citetitle>, "could be delayed in the P2P
+fight."<footnote><para>
<!-- f26 -->
John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
-Echoes Past Efforts," New York Times, 22 September 2003, C3.
+Echoes Past Efforts," <citetitle>New York Times</citetitle>, 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
-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?"
+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 <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?"
</para>
<para>
-"It is our property," the warriors insist. "And it should be protected
-just as any other property is protected."
+"It is <emphasis>our property</emphasis>," the warriors insist. "And
+it should be protected just as any other property is protected."
</para>
<!-- PAGE BREAK 93 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-property">
+</part>
+<part id="c-property">
<title>"PROPERTY"</title>
+<partintro>
<para>
<!-- PAGE BREAK 94 -->
</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?
+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>
<para>
The point is not just about the thingness of picnic tables versus
lights his taper at mine, receives light without darkening me."<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
-Ellery Bergh, eds., 1903), 330, 33334.
+<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew A. Lipscomb and Albert
+Ellery Bergh, eds., 1903), 330, 333–34.
</para></footnote>
</para>
<para>
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
+"property" 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, "What Is Property? Putting the Pieces Back Together,"
+<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
+"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.
</para>
+</partintro>
<!-- PAGE BREAK 96 -->
-<sect1 id="founders">
+<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
+<indexterm><primary>Henry V</primary></indexterm>
<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."
+William Shakespeare 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: "I liked it, but Shakespeare
+is so full of clichés."
</para>
<para>
-In 1774, almost 180 years after Romeo and Juliet was written, the
+In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was written, the
"copy-right" for the work was still thought by many to be the exclusive
right of a single London publisher, Jacob Tonson.<footnote><para>
<!-- f1 -->
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 "definitive editions" 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): 42431.
+Bookseller," <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), 15152.
-</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 "copy" of
+books that they had acquired from authors. That perpetual right meant
+that no
<!-- PAGE BREAK 97 -->
one else could publish copies of a book to which they held the
- copyright.
-Prices of the classics were thus kept high; competition to
- produce
-better or cheaper editions was eliminated.
+copyright. Prices of the classics were thus kept high; competition to
+produce better or cheaper editions was eliminated.
</para>
<para>
Now, there's something puzzling about the year 1774 to anyone who
-knows a little about copyright law. The better-known year in the history
-of copyright is 1710, the year that the British Parliament adopted the
-first "copyright" act. Known as the Statute of Anne, the act stated that
-all published works would get a copyright term of fourteen years,
- renewable
-once if the author was alive, and that all works already
- published
-by 1710 would get a single term of twenty-one additional years.<footnote><para>
+knows a little about copyright law. The better-known year in the
+history of copyright is 1710, the year that the British Parliament
+adopted the first "copyright" act. Known as the Statute of Anne, the
+act stated that all published works would get a copyright term of
+fourteen years, renewable once if the author was alive, and that all
+works already published by 1710 would get a single term of twenty-one
+additional years.<footnote><para>
<!-- f3 -->
-As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
- "copyright
-law." See Vaidhyanathan, Copyrights and Copywrongs, 40.
-</para></footnote>
-Under this law, Romeo and Juliet should have been free in 1731. So why
-was there any issue about it still being under Tonson's control in 1774?
+As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
+"copyright law." See Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
+</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>
<para>
-The reason is that the English hadn't yet agreed on what a
- "copyright"
+The reason is that the English hadn't yet agreed on what a "copyright"
was—indeed, no one had. At the time the English passed the
Statute of Anne, there was no other legislation governing copyrights.
-The last law regulating publishers, the Licensing Act of 1662, had
- expired
-in 1695. That law gave publishers a monopoly over publishing, as
-a way to make it easier for the Crown to control what was published.
-But after it expired, there was no positive law that said that the
- publishers,
-or "Stationers," had an exclusive right to print books.
-</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.
+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.
+<indexterm><primary>Licensing Act (1662)</primary></indexterm>
+</para>
+<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 "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
resulted in the Statute of Anne.
</para>
<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 "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.
</para>
<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>
<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 "steal" Shakespeare's work?
</para>
<para>
-The answer comes in two parts. We first need to see something
- special
+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
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
+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
<!-- 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>
<para>
So, for example, even if the copyright to Shakespeare's works were
perpetual, all that would have meant under the original meaning of the
-term was that no one could reprint Shakespeare's work without the
- permission
-of the Shakespeare estate. It would not have controlled
- anything,
-for example, about how the work could be performed, whether
+term was that no one could reprint Shakespeare's work without the
+permission of the Shakespeare estate. It would not have controlled
+anything, for example, about how the work could be performed, whether
the work could be translated, or whether Kenneth Branagh would be
-allowed to make his films. The "copy-right" was only an exclusive right
-to print—no less, of course, but also no more.
+allowed to make his films. The "copy-right" was only an exclusive
+right to print—no less, of course, but also no more.
</para>
+<indexterm><primary>Henry VIII, King of England</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
-They had had a long and ugly experience with "exclusive rights,"
- especially
-"exclusive rights" granted by the Crown. The English had fought
-a civil war in part about the Crown's practice of handing out
- monopolies—especially
-monopolies for works that already existed. King Henry
-VIII granted a patent to print the Bible and a monopoly to Darcy to
-print playing cards. The English Parliament began to fight back
-against this power of the Crown. In 1656, it passed the Statute of
- Monopolies,
-limiting monopolies to patents for new inventions. And by
-1710, Parliament was eager to deal with the growing monopoly in
-publishing.
-</para>
-<para>
-Thus the "copy-right," when viewed as a monopoly right, was
- naturally
-viewed as a right that should be limited. (However convincing
-the claim that "it's my property, and I should have it forever," try
+They had had a long and ugly experience with "exclusive rights,"
+especially "exclusive rights" granted by the Crown. The English had
+fought a civil war in part about the Crown's practice of handing out
+monopolies—especially monopolies for works that already
+existed. King Henry VIII granted a patent to print the Bible and a
+monopoly to Darcy to print playing cards. The English Parliament began
+to fight back against this power of the Crown. In 1656, it passed the
+Statute of Monopolies, limiting monopolies to patents for new
+inventions. And by 1710, Parliament was eager to deal with the growing
+monopoly in publishing.
+</para>
+<para>
+Thus the "copy-right," when viewed as a monopoly right, was naturally
+viewed as a right that should be limited. (However convincing the
+claim that "it's my property, and I should have it forever," try
sounding convincing when uttering, "It's my monopoly, and I should
-have it forever.") The state would protect the exclusive right, but only
-so long as it benefited society. The British saw the harms from
- specialinterest
-favors; they passed a law to stop them.
+have it forever.") The state would protect the exclusive right, but
+only so long as it benefited society. The British saw the harms from
+specialinterest favors; they passed a law to stop them.
</para>
<para>
Second, about booksellers. It wasn't just that the copyright was a
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 "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>
+
<!-- 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>
<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>
<para>
To balance this power, Parliament decided to increase competition
I see no Reason for granting a further Term now, which will not
hold as well for granting it again and again, as often as the Old
<!-- PAGE BREAK 101 -->
-ones Expire; so that should this Bill pass, it will in Effect be
- establishing
-a perpetual Monopoly, a Thing deservedly odious in
-the Eye of the Law; it will be a great Cramp to Trade, a
- Discouragement
-to Learning, no Benefit to the Authors, but a general
-Tax on the Publick; and all this only to increase the private Gain
-of the Booksellers.<footnote><para>
+ones Expire; so that should this Bill pass, it will in Effect be
+establishing a perpetual Monopoly, a Thing deservedly odious in the
+Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
+Learning, no Benefit to the Authors, but a general Tax on the Publick;
+and all this only to increase the private Gain of the
+Booksellers.<footnote><para>
<!-- f5 -->
A Letter to a Member of Parliament concerning the Bill now depending
in the House of Commons, for making more effectual an Act in the
-Eighth Year of the Reign of Queen Anne, entitled, An Act for the
- 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).
+Eighth Year of the Reign of Queen Anne, entitled, An Act for the
+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, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618).
</para></footnote>
</para>
</blockquote>
<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
+Having failed in Parliament, the publishers turned to the courts in a
+series of cases. Their argument was simple and direct: The Statute of
Anne gave authors certain protections through positive law, but those
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 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 they had
-the right to ban the publication of a book, even if its Statute of Anne
-copyright had expired. This, they argued, was the only way to protect
-authors.
-</para>
-<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>
+Under common law, it was already wrong to take another person's
+creative "property" 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
+they had the right to ban the publication of a book, even if its
+Statute of Anne copyright had expired. This, they argued, was the only
+way to protect authors.
+</para>
+<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>
<!-- f6 -->
-Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
-Law Review 40 (1987): 28. For a wonderfully compelling account, see
-Vaidhyanathan, 3748.
+Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," <citetitle>Vanderbilt
+Law Review</citetitle> 40 (1987): 28. For a wonderfully compelling account, see
+Vaidhyanathan, 37–48.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
-The bookseller didn't care squat for the rights of the
- author.
-His concern was the monopoly profit that the author's work gave.
+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>
<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
-(London: Routledge, 1992), 6269.
+For a compelling account, see David Saunders, <citetitle>Authorship and Copyright</citetitle>
+(London: Routledge, 1992), 62–69.
</para></footnote>
</para>
<para>
reprints "of standard works whose copyright term had expired," 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.
</para></footnote>
Donaldson's publishing house prospered
<!-- f9 -->
Ibid., 93.
</para></footnote>
+<indexterm><primary>Boswell, James</primary></indexterm>
+<indexterm><primary>Erskine, Andrew</primary></indexterm>
</para>
<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
-
of the supposed common law right of Literary Property."<footnote><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
+of the supposed common law right of Literary
+Property."<footnote><para>
<!-- f10 -->
-Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting
+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.
+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>
<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 most important early victory being <citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>.
</para>
<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 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>
+Millar was a bookseller who in 1729 had purchased the rights to James
+Thomson's poem "The Seasons." 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 (1983): 1152.
+Howard B. Abrams, "The Historic Foundation of American Copyright Law:
+Exploding the Myth of Common Law Copyright," <citetitle>Wayne Law Review</citetitle> 29
+(1983): 1152.
</para></footnote>
</para>
+<indexterm id="idxmansfield2" class='startofrange'>
+ <primary>Mansfield, William Murray, Lord</primary>
+</indexterm>
<para>
-Astonishingly to modern lawyers, one of the greatest judges in
- English
+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."
+extinguish any common law right. The question was whether the common
+law would protect the author against subsequent "pirates."
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
+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>
<para>
-Considered as a matter of abstract justice—reasoning as if justice
-were just a matter of logical deduction from first principles—Mansfield's
-conclusion might make some sense. But what it ignored was the larger
-issue that Parliament had struggled with in 1710: How best to limit
+Considered as a matter of abstract justice—reasoning as if
+justice were just a matter of logical deduction from first
+principles—Mansfield's conclusion might make some sense. But
+what it ignored was the larger issue that Parliament had struggled
+with in 1710: How best to limit
<!-- PAGE BREAK 103 -->
the monopoly power of publishers? Parliament's strategy was to offer a
term for existing works that was long enough to buy peace in 1710, but
short enough to assure that culture would pass into competition within
-a reasonable period of time. Within twenty-one years, Parliament
- believed,
-Britain would mature from the controlled culture that the
+a reasonable period of time. Within twenty-one years, Parliament
+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'/>
<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>Beckett, Thomas</primary></indexterm>
<para>
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
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>
<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>
<para>
The House of Lords was an odd institution. Legal questions were
-presented to the House and voted upon first by the "law lords,"
- 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.
+presented to the House and voted upon first by the "law lords,"
+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>
<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
<!-- PAGE BREAK 104 -->
-about how the House of Lords voted as whole. By a two-to-one
- majority
+about how the House of Lords voted as whole. By a two-to-one majority
(22 to 11) they voted to reject the idea of perpetual copyrights.
-Whatever one's understanding of the common law, now a copyright
-was fixed for a limited time, after which the work protected by
- copyright
+Whatever one's understanding of the common law, now a copyright was
+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.
+"The public domain." 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.
+<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>
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 public, and
-none has been tried before the House of Lords in the decision of
-which so many individuals were interested." "Great rejoicing in
- Edinburgh
-upon victory over literary property: bonfires and
- illuminations."<footnote><para>
+where most of the "pirate publishers" did their work, people
+celebrated the decision in the streets. As the <citetitle>Edinburgh Advertiser</citetitle>
+reported, "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
+rejoicing in Edinburgh upon victory over literary property: bonfires
+and illuminations."<footnote><para>
<!-- f13 -->
Rose, 97.
</para></footnote>
</para>
<para>
In London, however, at least among publishers, the reaction was
-equally strong in the opposite direction. The Morning Chronicle
- reported:
+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 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 Copy-right, are in a manner ruined, and those who
-after many years industry thought they had acquired a
- competency
-to provide for their families now find themselves without a
-shilling to devise to their successors.<footnote><para>
+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
+Copy-right, are in a manner ruined, and those who after many years
+industry thought they had acquired a competency to provide for their
+families now find themselves without a shilling to devise to their
+successors.<footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<!-- PAGE BREAK 105 -->
"Ruined" 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
+meant that the booksellers could no longer control how culture in
+England would grow and develop. Culture in England was thereafter
+<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 competitive context, 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>
-<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.
+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>
+<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>
<!-- PAGE BREAK 106 -->
-</sect1>
-<sect1 id="recorders">
+</chapter>
+<chapter label="7" id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
<para>
Jon Else is a filmmaker. He is best known for his documentaries and
</para>
<para>
In 1990, Else was working on a documentary about Wagner's Ring
-Cycle. The focus was stagehands at the San Francisco Opera.
- Stagehands
-are a particularly funny and colorful element of an 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.
+Cycle. The focus was stagehands at the San Francisco Opera.
+Stagehands are a particularly funny and colorful element of an 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>
<para>
-During one of the performances, Else was shooting some
- stagehands
+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
+Playing on the television set, while the stagehands played checkers
+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>
<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.
</para>
<para>
-Else called Simpsons 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.
+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>
<para>
Gracie Films was okay with it, too, but they, like Groening, wanted
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>
<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, "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
+<citetitle>Simpsons</citetitle> which was in the corner of the shot."
</para>
<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
+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
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
</para>
<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 about
+"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 <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."
+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."
</para>
<para>
-Else didn't have the money to buy the right to replay what was
- playing
+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.
-</para>
-<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 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
+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,
+<citetitle>The Day After Trinity</citetitle>, from ten years before.
+<indexterm><primary>San Francisco Opera</primary></indexterm>
+<indexterm><primary>Day After Trinity, The</primary></indexterm>
+</para>
+<para>
+There's no doubt that someone, whether Matt Groening or Fox, owns the
+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
+<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.
+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 copyright owner gets to control. If you take a selection of favorite
+For example, "public performance" 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
+Favorite <citetitle>Simpsons</citetitle>," 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.
+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>
<!-- 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 Law School, 5 August 2003.
+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 <citetitle>Eldred</citetitle>" (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 not require the permission of anyone.
+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>
<para>
<!-- PAGE BREAK 109 -->
</para>
<blockquote>
<para>
-The Simpsons 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 concept in any concrete way. Here's why:
+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
+concept in any concrete way. Here's why:
</para>
<orderedlist numeration="arabic">
<listitem><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.
+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.
</para></listitem>
<listitem><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 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 to
- exhaustion
-on a shoestring, the last thing I wanted was to risk legal
-trouble, even nuisance legal trouble, and even to defend a
+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 <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 <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.
+<indexterm><primary>Lucas, George</primary></indexterm>
</para></listitem>
<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 would boil down to who had the bigger
- legal
-department and the deeper pockets, me or them.
+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
+would boil down to who had the bigger legal department and the deeper
+pockets, me or them.
<!-- PAGE BREAK 110 -->
</para></listitem>
<listitem><para>
</orderedlist>
</blockquote>
<para>
-In theory, fair use means you need no permission. The theory
- therefore
-supports free culture and insulates against a permission culture.
-But in practice, fair use functions very differently. The fuzzy lines of
-the law, tied to the extraordinary liability if lines are crossed, means
-that the effective fair use for many types of creators is slight. The law
-has the right aim; practice has defeated the aim.
+In theory, fair use means you need no permission. The theory therefore
+supports free culture and insulates against a permission culture. But
+in practice, fair use functions very differently. The fuzzy lines of
+the law, tied to the extraordinary liability if lines are crossed,
+means that the effective fair use for many types of creators is
+slight. The law has the right aim; practice has defeated the aim.
</para>
<para>
This practice shows just how far the law has come from its
-eighteenth-century roots. The law was born as a shield to protect
- publishers'
-profits against the unfair competition of a pirate. It has matured
-into a sword that interferes with any use, transformative or not.
+eighteenth-century roots. The law was born as a shield to protect
+publishers' profits against the unfair competition of a pirate. It has
+matured into a sword that interferes with any use, transformative or
+not.
</para>
<!-- 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>
<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
+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.
</para>
+<indexterm><primary>Alben, Alex</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
-film, but to do things with film that otherwise would be very difficult.
-In 1993, he launched an initiative to develop a product to build
- retrospectives
-on the work of particular actors. The first actor chosen was
-Clint Eastwood. The idea was to showcase all of the work of
- Eastwood,
-with clips from his films and interviews with figures important
-to his career.
-</para>
-<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,
+film, but to do things with film that otherwise would be very
+difficult. In 1993, he launched an initiative to develop a product to
+build retrospectives on the work of particular actors. The first actor
+chosen was Clint Eastwood. The idea was to showcase all of the work of
+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,
asking him about his career. Because Starwave produced those
interviews, it was free to include them on the CD.
</para>
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
-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 one had
-ever tried to do this in the context of an artistic look at an actor's
-career."
+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
+one had ever tried to do this in the context of an artistic look at an
+actor's career."
</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?"
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben replied, "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><para>
+for it."<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.
+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>
</para></footnote>
</para>
<para>
</para>
<blockquote>
<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 under the gun and you need to get his
- permission.
-And then you have to decide what you are going to pay
-him.
+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 <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>
<para>
<!-- PAGE BREAK 113 -->
-We decided that it would be fair if we offered them the
- dayplayer
-rate for the right to reuse that performance. We're talking
-about a clip of less than a minute, but to reuse that performance
-in the CD-ROM the rate at the time was about $600.
-So we had to identify the people—some of them were hard to
-identify because in Eastwood movies you can't tell who's the guy
-crashing through the glass—is it the actor or is it the stuntman?
-And then we just, we put together a team, my assistant and some
-others, and we just started calling people.
+We decided that it would be fair if we offered them the dayplayer rate
+for the right to reuse that performance. We're talking about a clip of
+less than a minute, but to reuse that performance in the CD-ROM the
+rate at the time was about $600. So we had to identify the
+people—some of them were hard to identify because in Eastwood
+movies you can't tell who's the guy crashing through the
+glass—is it the actor or is it the stuntman? And then we just,
+we put together a team, my assistant and some others, and we just
+started calling people.
</para>
</blockquote>
+<indexterm><primary>Alben, Alex</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.
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—"and even then we
+weren't sure whether we were totally in the clear."
</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
</para>
<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 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 systematically and cleared the rights.
+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
+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
+systematically and cleared the rights.
</para>
</blockquote>
<para>
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
- nothing
-so useless as doing efficiently that which should not be done at
-all."<footnote><para>
+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
+nothing so useless as doing efficiently that which should not be done
+at all."<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,
+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
made. Does it make sense, I asked him, from the standpoint of what
anybody really thought they were ever giving rights for originally, that
<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>
-Absolutely. I think that if there were some fair-licensing
- mechanism—where
-you weren't subject to hold-ups and you weren't
+Absolutely. I think that if there were some fair-licensing
+mechanism—where you weren't subject to hold-ups and you weren't
subject to estranged former spouses—you'd see a lot more of this
work, because it wouldn't be so daunting to try to put together a
<!-- PAGE BREAK 115 -->
-retrospective of someone's career and meaningfully illustrate it
-with lots of media from that person's career. You'd build in a cost
-as the producer of one of these things. You'd build in a cost of
- paying
-X dollars to the talent that performed. But it would be a
-known cost. That's the thing that trips everybody up and makes
-this kind of 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 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.
+retrospective of someone's career and meaningfully illustrate it with
+lots of media from that person's career. You'd build in a cost as the
+producer of one of these things. You'd build in a cost of paying X
+dollars to the talent that performed. But it would be a known
+cost. That's the thing that trips everybody up and makes this kind of
+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
+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.
</para>
</blockquote>
-<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?
-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
+<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?
+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
-how much it's going to cost to negotiate them. (Remember the idea
-that land runs to the heavens, and imagine the pilot purchasing
- flythrough
+how much it's going to cost to negotiate them. (Remember the idea that
+land runs to the heavens, and imagine the pilot purchasing flythrough
rights as he negotiates to fly from Los Angeles to San Francisco.)
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?"
+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?"
</para>
<para>
I've seen the flash of recognition when people get this point, but only
</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>
+<indexterm><primary>Nimmer, David</primary></indexterm>
<para>
When the lights came up, I looked over to my copanelist, David
Nimmer, perhaps the leading copyright scholar and practitioner in the
began his talk with a question: "Do you know how many federal laws
were just violated in this room?"
</para>
+<indexterm><primary>Boies, David</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
-rights to these clips; technically, what they had done violated the law.
-Of course, it wasn't as if they or anyone were going to be prosecuted for
-this violation (the presence of 250 judges and a gaggle of federal
- marshals
-notwithstanding). But Nimmer was making an important point:
-A year before anyone would have heard of the word Napster, and two
-years before another member of our panel, David Boies, would defend
-Napster before the Ninth Circuit Court of Appeals, Nimmer was
- trying
-to get the judges to see that the law would not be friendly to the
-capacities that this technology would enable. Technology means you
-can now do amazing things easily; but you couldn't easily do them
-legally.
+rights to these clips; technically, what they had done violated the
+law. Of course, it wasn't as if they or anyone were going to be
+prosecuted for this violation (the presence of 250 judges and a gaggle
+of federal marshals notwithstanding). But Nimmer was making an
+important point: A year before anyone would have heard of the word
+Napster, and two years before another member of our panel, David
+Boies, would defend Napster before the Ninth Circuit Court of Appeals,
+Nimmer was trying to get the judges to see that the law would not be
+friendly to the capacities that this technology would
+enable. Technology means you can now do amazing things easily; but you
+couldn't easily do them legally.
</para>
<para>
We live in a "cut and paste" culture enabled by technology. Anyone
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
-its archives, musicians are able to string together mixes of sound never
-before imagined; filmmakers are able to build movies out of clips on
-computers around the world. An extraordinary site in Sweden takes
-images of politicians and blends them with music to create 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.
+its archives, musicians are able to string together mixes of sound
+never before imagined; filmmakers are able to build movies out of
+clips on computers around the world. An extraordinary site in Sweden
+takes images of politicians and blends them with music to create
+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
clearance rules, it doesn't get released.
</para>
<para>
-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." 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 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 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.
+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."
+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
+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
+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.
</para>
<para>
Who could possibly object to this? And what reason would there be
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
+In February 2003, 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
-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."
-</para>
-<para>
-The announcement called this "film sampling." As Myers
- explained,
-"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
+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
+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."
+</para>
+<para>
+The announcement called this "film sampling." As Myers explained,
+"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."
+quoted as saying, "If anyone can create a way to bring old films to
+new audiences, it is Mike."
</para>
<para>
Spielberg is right. Film sampling by Myers will be brilliant. But if
you don't think about it, you might miss the truly astonishing point
-about this announcement. As the vast majority of our film heritage
- remains
-under copyright, the real meaning of the DreamWorks
- announcement
-is just this: It is Mike Myers and only Mike Myers who is
+about this announcement. As the vast majority of our film heritage
+remains under copyright, the real meaning of the DreamWorks
+announcement is just this: It is Mike Myers and only Mike Myers who is
free to sample. Any general freedom to build upon the film archive of
our culture, a freedom in other contexts presumed for us all, is now a
privilege reserved for the funny and famous—and presumably rich.
curse, reserved for the few.
</para>
<!-- PAGE BREAK 119 -->
-</sect1>
-<sect1 id="collectors">
+</chapter>
+<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
<para>
In April 1996, millions of "bots"—computer codes designed to
</para>
<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
-enter a Web page, and see all of its copies going back to 1996, as well
-as when those pages changed.
+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
+enter a Web page, and see all of its copies going back to 1996, as
+well as when those pages changed.
</para>
<para>
-This is the thing about the Internet that Orwell would have
- appreciated.
-In the dystopia described in 1984, 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.
+This is the thing about the Internet that Orwell would have
+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.
</para>
<para>
<!-- PAGE BREAK 120 -->
It's the same with the Internet. If you go to a Web page today,
there's no way for you to know whether the content you are reading is
the same as the content you read before. The page may seem the same,
-but the content could easily be different. The Internet is Orwell's
- library—constantly
-updated, without any reliable memory.
+but the content could easily be different. The Internet is Orwell's
+library—constantly updated, without any reliable memory.
</para>
<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 was. You have the power to see what you remember. More
-importantly, perhaps, you also have the power to find what you don't
-remember and what others might prefer you forget.<footnote><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
+was. You have the power to see what you remember. More importantly,
+perhaps, you also have the power to find what you don't remember and
+what others might prefer you forget.<footnote><para>
<!-- f1 -->
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.
+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.
</para></footnote>
</para>
<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
+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.
+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.
+It is said that those who fail to remember history are doomed to
+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
+The Internet was an exception to this presumption. Until the Internet
Archive, there was no way to go back. The Internet was the
-quintessentially transitory medium. And yet, as it becomes more
- important
-in forming and reforming society, it becomes more and more
+quintessentially transitory medium. And yet, as it becomes more
+important in forming and reforming society, it becomes more and more
<!-- PAGE BREAK 121 -->
- important
-to maintain in some historical form. It's just bizarre to think that
-we have scads of archives of newspapers from tiny towns around the
-world, yet there is but one copy of the Internet—the one kept by the
- Internet
-Archive.
+important to maintain in some historical form. It's just bizarre to
+think that we have scads of archives of newspapers from tiny towns
+around the world, yet there is but one copy of the Internet—the
+one kept by the Internet Archive.
</para>
<para>
Brewster Kahle is the founder of the Internet Archive. He was a very
-successful Internet entrepreneur after he was a successful computer
- researcher.
-In the 1990s, Kahle decided he had had enough business
- success.
-It was time to become a different kind of success. So he launched
-a series of projects designed to archive human knowledge. The
- Internet
-Archive was just the first of the projects of this Andrew 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>
-<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 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 culture
-was constructed through television, only a tiny proportion of 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 Barbara Walters you could get
-access to [the archives], but if you are just a graduate student?" As Kahle
-put it,
+successful Internet entrepreneur after he was a successful computer
+researcher. In the 1990s, Kahle decided he had had enough business
+success. It was time to become a different kind of success. So he
+launched a series of projects designed to archive human knowledge. The
+Internet Archive was just the first of the projects of this Andrew
+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>
+<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
+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
+culture was constructed through television, only a tiny proportion of
+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
+Barbara Walters you could get access to [the archives], but if you are
+just a graduate student?" As Kahle put it,
</para>
<blockquote>
+<indexterm><primary>Quayle, Dan</primary></indexterm>
<para>
-Do you remember when Dan Quayle was interacting with
- Murphy
-Brown? Remember that back and forth surreal experience of
-a politician interacting with a fictional television character? If you
-were a graduate student wanting to study that, and you wanted to
-get those original back and forth exchanges between the two, the
+Do you remember when Dan Quayle was interacting with Murphy Brown?
+Remember that back and forth surreal experience of a politician
+interacting with a fictional television character? If you were a
+graduate student wanting to study that, and you wanted to get those
+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>
<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
recorded on videotape is not? How is it that we've created a world
-where researchers trying to understand the effect of media on
- nineteenthcentury
-America will have an easier time than researchers trying to
- understand
-the effect of media on twentieth-century America?
+where researchers trying to understand the effect of media on
+nineteenthcentury America will have an easier time than researchers
+trying to understand the effect of media on twentieth-century America?
</para>
<para>
In part, this is because of the law. Early in American copyright law,
-copyright owners were required to deposit copies of their work in
- libraries.
-These copies were intended both to facilitate the spread of
-knowledge and to assure that a copy of the work would be around once
-the copyright expired, so that others might access and copy the work.
+copyright owners were required to deposit copies of their work in
+libraries. These copies were intended both to facilitate the spread
+of knowledge and to assure that a copy of the work would be around
+once the copyright expired, so that others might access and copy the
+work.
</para>
<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 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. 23 (1980): 5;
- Anthony
-Slide, Nitrate Won't Wait: A History of Film Preservation in the United
-States ( Jefferson, N.C.: McFarland & Co., 1992), 36.
+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
+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," <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
-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 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.
+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
+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>
<para>
Kahle was eager to correct this. Before September 11, 2001, he and
<!-- PAGE BREAK 123 -->
-his allies had started capturing television. They selected twenty
- stations
-from around the world and hit the Record button. After
- September
-11, Kahle, working with dozens of others, selected twenty stations
-from around the world and, beginning October 11, 2001, made their
-coverage during the week of September 11 available free on-line.
- Anyone
-could see how news reports from around the world covered the
+his allies had started capturing television. They selected twenty
+stations from around the world and hit the Record button. After
+September 11, Kahle, working with dozens of others, selected twenty
+stations from around the world and, beginning October 11, 2001, made
+their coverage during the week of September 11 available free on-line.
+Anyone could see how news reports from around the world covered the
events of that day.
</para>
<para>
-Kahle had the same idea with film. Working with Rick Prelinger,
-whose archive of film includes close to 45,000 "ephemeral films"
-(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 downloaded for free. Prelinger's is a for-profit company. It sells
+Kahle had the same idea with film. Working with Rick Prelinger, whose
+archive of film includes close to 45,000 "ephemeral films" (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
+downloaded for free. Prelinger's is a for-profit company. It sells
copies of these films as stock footage. What he has discovered is that
-after he made a significant chunk available for free, his stock footage
-sales went up dramatically. People could easily find the 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 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>
-Here again, Kahle is providing access to a part of our culture that
-we otherwise could not get easily, if at all. It is yet another part of what
-defines the twentieth century that we have lost to history. The law
-doesn't require these copies to be kept by anyone, or to be deposited in
-an archive by anyone. Therefore, there is no simple way to find them.
-</para>
-<para>
-The key here is access, not price. Kahle wants to enable free access to
-this content, but he also wants to enable others to sell access to it. His
-aim is to ensure competition in access to this important part of our
- culture.
-Not during the commercial life of a bit of creative property, but
- during
-a second life that all creative property has—a noncommercial life.
+after he made a significant chunk available for free, his stock
+footage sales went up dramatically. People could easily find the
+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
+that instructed children how to save themselves in the middle of
+nuclear attack? Go to archive.org, and you can download the film in a
+few minutes—for free.
+<indexterm><primary>Movie Archive</primary></indexterm>
+</para>
+<para>
+Here again, Kahle is providing access to a part of our culture that we
+otherwise could not get easily, if at all. It is yet another part of
+what defines the twentieth century that we have lost to history. The
+law doesn't require these copies to be kept by anyone, or to be
+deposited in an archive by anyone. Therefore, there is no simple way
+to find them.
+</para>
+<para>
+The key here is access, not price. Kahle wants to enable free access
+to this content, but he also wants to enable others to sell access to
+it. His aim is to ensure competition in access to this important part
+of our culture. Not during the commercial life of a bit of creative
+property, but during a second life that all creative property
+has—a noncommercial life.
</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 life, if the
+of creative property goes through different "lives." In its first
+life, if the
<!-- PAGE BREAK 124 -->
-creator is lucky, the content is sold. In such cases the commercial
- market
-is successful for the creator. The vast majority of creative property
-doesn't enjoy such success, but some clearly does. For that content,
-commercial life is extremely important. Without this commercial
- market,
-there would be, many argue, much less creativity.
+creator is lucky, the content is sold. In such cases the commercial
+market is successful for the creator. The vast majority of creative
+property doesn't enjoy such success, but some clearly does. For that
+content, commercial life is extremely important. Without this
+commercial market, there would be, many argue, much less creativity.
</para>
<para>
-After the commercial life of creative property has ended, our
- tradition
-has always supported a second life as well. A newspaper delivers
-the news every day to the doorsteps of America. The very next day, it is
-used to wrap fish or to fill boxes with fragile gifts or to build an archive
-of knowledge about our history. In this second life, the content can
-continue to inform even if that information is no longer sold.
+After the commercial life of creative property has ended, our
+tradition has always supported a second life as well. A newspaper
+delivers the news every day to the doorsteps of America. The very next
+day, it is used to wrap fish or to fill boxes with fragile gifts or to
+build an archive of knowledge about our history. In this second life,
+the content can continue to inform even if that information is no
+longer sold.
</para>
<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>
+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,
+Bar Owner Starts a New Chapter by Adopting Business," <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.
-</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 get to read
-the book, also for free. Used book stores and libraries are thus the
- second
-life of a book. That second life is extremely important to the
-spread and stability of culture.
-</para>
-<para>
-Yet increasingly, any assumption about a stable second life for
- creative
-property does not hold true with the most important components
-of popular culture in the twentieth and twenty-first centuries. For
-these—television, movies, music, radio, the Internet—there is no
- guarantee
-of a second life. For these sorts of culture, it is as if we've replaced
-libraries with Barnes & Noble superstores. With this culture, what's
-accessible is nothing but what a certain limited market demands.
- Beyond
-that, culture disappears.
+and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
+"The First Sale Doctrine in the Era of Digital Networks," <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
+get to read the book, also for free. Used book stores and libraries
+are thus the second life of a book. That second life is extremely
+important to the spread and stability of culture.
+</para>
+<para>
+Yet increasingly, any assumption about a stable second life for
+creative property does not hold true with the most important
+components of popular culture in the twentieth and twenty-first
+centuries. For these—television, movies, music, radio, the
+Internet—there is no guarantee of a second life. For these sorts
+of culture, it is as if we've replaced libraries with Barnes &
+Noble superstores. With this culture, what's accessible is nothing but
+what a certain limited market demands. Beyond that, culture
+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
+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 little
- practical
-effect.
+real restriction was economics. The market made it impossibly
+difficult to do anything about this ephemeral culture; the law had
+little practical effect.
</para>
<para>
-Perhaps the single most important feature of the digital revolution
-is that for the first time since the Library of Alexandria, it is feasible to
-imagine constructing archives that hold all culture produced or
- distributed
-publicly. Technology makes it possible to imagine an archive of all
-books published, and increasingly makes it possible to imagine an
-archive of all moving images and sound.
+Perhaps the single most important feature of the digital revolution is
+that for the first time since the Library of Alexandria, it is
+feasible to imagine constructing archives that hold all culture
+produced or distributed publicly. Technology makes it possible to
+imagine an archive of all books published, and increasingly makes it
+possible to imagine an archive of all moving images and sound.
</para>
<para>
-The scale of this potential archive is something we've never
- imagined
-before. The Brewster Kahles of our history have dreamed about it;
-but we are for the first time at a point where that dream is possible. As
+The scale of this potential archive is something we've never imagined
+before. The Brewster Kahles of our history have dreamed about it; but
+we are for the first time at a point where that dream is possible. As
Kahle describes,
</para>
<blockquote>
<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 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 proud of. Up there with the Library of Alexandria,
-putting a man on the moon, and the invention of the printing
-press.
+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
+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
+proud of. Up there with the Library of Alexandria, putting a man on
+the moon, and the invention of the printing press.
</para>
</blockquote>
<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.
+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 <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 that
-Kahle and others would exercise.
+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
+that Kahle and others would exercise.
</para>
<!-- PAGE BREAK 127 -->
-</sect1>
-<sect1 id="property-i">
+</chapter>
+<chapter label="10" 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
+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.
-</para>
-<para>
-The MPAA is the American branch of the international Motion
-Picture Association. It was formed in 1922 as a trade association whose
-goal was to defend American movies against increasing domestic
- criticism.
-The organization now represents not only filmmakers but
- producers
-and distributors of entertainment for television, video, and
-cable. Its board is made up of the chairmen and presidents of the seven
-major producers and distributors of motion picture and television
- programs
-in the United States: Walt Disney, Sony Pictures
- Entertainment,
-MGM, Paramount Pictures, Twentieth Century Fox, Universal
-Studios, and Warner Brothers.
+<indexterm><primary>Johnson, Lyndon</primary></indexterm>
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
+</para>
+<para>
+The MPAA is the American branch of the international Motion Picture
+Association. It was formed in 1922 as a trade association whose goal
+was to defend American movies against increasing domestic criticism.
+The organization now represents not only filmmakers but producers and
+distributors of entertainment for television, video, and cable. Its
+board is made up of the chairmen and presidents of the seven major
+producers and distributors of motion picture and television programs
+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 -->
-Valenti is only the third president of the MPAA. No president
-before him has had as much influence over that organization, or over
-Washington. As a Texan, Valenti has mastered the single most
- important
+Valenti is only the third president of the MPAA. No president before
+him has had as much influence over that organization, or over
+Washington. As a Texan, Valenti has mastered the single most important
political skill of a Southerner—the ability to appear simple and
-slow while hiding a lightning-fast intellect. To this day, Valenti plays
-the simple, humble man. But this Harvard MBA, and author of four
+slow while hiding a lightning-fast intellect. To this day, Valenti
+plays the simple, humble man. But this Harvard MBA, and author of four
books, who finished high school at the age of fifteen and flew more
than fifty combat missions in World War II, is no Mr. Smith. When
Valenti went to Washington, he mastered the city in a quintessentially
Washingtonian way.
</para>
<para>
-In defending artistic liberty and the freedom of speech that our
- culture
-depends upon, the MPAA has done important good. In crafting
+In defending artistic liberty and the freedom of speech that our
+culture depends upon, the MPAA has done important good. In crafting
the MPAA rating system, it has probably avoided a great deal of
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."
+the organization's effort, epitomized in Valenti's every act, to
+redefine the meaning of "creative property."
</para>
<para>
-In 1982, Valenti's testimony to Congress captured the strategy
- perfectly:
+In 1982, Valenti's testimony to Congress captured the strategy
+perfectly:
</para>
<blockquote>
<para>
-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.
+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: <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
- Subcommittee
-on Courts, Civil Liberties, and the Administration of Justice of
-the Committee on the Judiciary of the House of Representatives, 97th
-Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti).
+4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
+Subcommittee on Courts, Civil Liberties, and the Administration of
+Justice of the Committee on the Judiciary of the House of
+Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
+Valenti).
</para></footnote>
</para>
</blockquote>
<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 this:
+rhetoric, is brilliant and simple and brilliant because simple. The
+"central theme" to which "reasonable men and women" 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." There are
-no second-class citizens, Valenti might have continued. There should
-be no second-class property owners.
+protections resident in all other property owners in the nation."
+There are no second-class citizens, Valenti might have
+continued. There should be no second-class property owners.
</para>
<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.
-</para>
-<para>
-While "creative property" is certainly "property" in a nerdy and
- precise
-sense that lawyers are trained to understand,<footnote><para>
+use elections to pick presidents. But in fact, there is no more
+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 "creative property." 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
+
precise sense that lawyers are trained to understand,<footnote><para>
<!-- f2 -->
-Lawyers speak of "property" 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 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),
-2627.
-</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 property owners were given the same rights
-as all other property owners, that would effect a radical, and radically
-undesirable, change in our tradition.
-</para>
-<para>
-Valenti knows this. But he speaks for an industry that cares squat
-for our tradition and the values it represents. He speaks for an industry
-that is instead fighting to restore the tradition that the British
- overturned
-in 1710. In the world that Valenti's changes would create, a
-powerful few would exercise powerful control over how our creative
+Lawyers speak of "property" 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
+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, <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
+property owners were given the same rights as all other property
+owners, that would effect a radical, and radically undesirable, change
+in our tradition.
+</para>
+<para>
+Valenti knows this. But he speaks for an industry that cares squat for
+our tradition and the values it represents. He speaks for an industry
+that is instead fighting to restore the tradition that the British
+overturned in 1710. In the world that Valenti's changes would create,
+a powerful few would exercise powerful control over how our creative
culture would develop.
</para>
<para>
I have two purposes in this chapter. The first is to convince you
-that, historically, Valenti's claim is absolutely wrong. The second is to
-convince you that it would be terribly wrong for us to reject our
- history.
-We have always treated rights in creative property differently
-from the rights resident in all other property owners. They have never
-been the same. And they should never be the same, because, however
-counterintuitive this may seem, to make them the same would be to
+that, historically, Valenti's claim is absolutely wrong. The second is
+to convince you that it would be terribly wrong for us to reject our
+history. We have always treated rights in creative property
+differently from the rights resident in all other property
+owners. They have never been the same. And they should never be the
+same, because, however counterintuitive this may seem, to make them
+the same would be to
<!-- PAGE BREAK 130 -->
-fundamentally weaken the opportunity for new creators to create.
- Creativity
-depends upon the owners of creativity having less than perfect
-control.
-</para>
-<para>
-Organizations such as the MPAA, whose board includes the most
-powerful of the old guard, have little interest, their rhetoric
- notwithstanding,
-in assuring that the new can displace them. No 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
+fundamentally weaken the opportunity for new creators to create.
+Creativity depends upon the owners of creativity having less than
+perfect control.
+</para>
+<para>
+Organizations such as the MPAA, whose board includes the most powerful
+of the old guard, have little interest, their rhetoric
+notwithstanding, in assuring that the new can displace them. No
+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.
</para>
<para>
-The framers of our Constitution loved "property." 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 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.
+The framers of our Constitution loved "property." 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
+Constitution thus guarantees that property is, in a certain sense,
+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
+power to create "creative property," the Constitution
+<emphasis>requires</emphasis> 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
<!-- PAGE BREAK 131 -->
-requires that you lose your "creative property" right without any
- compensation
-at all.
+requires that you lose your "creative property" right without any
+compensation at all.
</para>
<para>
The Constitution thus on its face states that these two forms of
-property are not to be accorded the same rights. They are plainly to be
-treated differently. Valenti is therefore not just asking for a change in
-our tradition when he argues that creative-property owners should be
-accorded the same rights as every other property-right owner. He is
- effectively
-arguing for a change in our Constitution itself.
+property are not to be accorded the same rights. They are plainly to
+be treated differently. Valenti is therefore not just asking for a
+change in our tradition when he argues that creative-property owners
+should be accorded the same rights as every other property-right
+owner. He is effectively arguing for a change in our Constitution
+itself.
</para>
<para>
Arguing for a change in our Constitution is not necessarily wrong.
There was much in our original Constitution that was plainly wrong.
-The Constitution of 1789 entrenched slavery; it left senators to be
- appointed
-rather than elected; it made it possible for the electoral college
-to produce a tie between the president and his own vice president (as it
-did in 1800). The framers were no doubt extraordinary, but I would be
-the first to admit that they made big mistakes. We have since rejected
-some of those mistakes; no doubt there could be others that we should
-reject as well. So my argument is not simply that because Jefferson did
-it, we should, too.
+The Constitution of 1789 entrenched slavery; it left senators to be
+appointed rather than elected; it made it possible for the electoral
+college to produce a tie between the president and his own vice
+president (as it did in 1800). The framers were no doubt
+extraordinary, but I would be the first to admit that they made big
+mistakes. We have since rejected some of those mistakes; no doubt
+there could be others that we should reject as well. So my argument is
+not simply that because Jefferson did it, we should, too.
</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>
<para>
-To answer this question, we need to get some perspective on the
- history
-of these "creative property" 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.
+To answer this question, we need to get some perspective on the
+history of these "creative property" 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 <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>
<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:
<graphic fileref="images/1331.png"></graphic>
</figure>
<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 each
-case throughout, we can describe this either as regulation or as a right.
-For simplicity's sake, I will speak only of regulations.) The ovals
- represent
-four ways in which the individual or group might be regulated—
-either constrained or, alternatively, enabled. Law is the most obvious
-constraint (to lawyers, at least). It constrains by threatening
- punishments
-after the fact if the rules set in advance are violated. So if, for
- example,
-you willfully infringe Madonna's copyright by copying a song
-from her latest CD and posting it on the Web, you can be punished
+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
+each case throughout, we can describe this either as regulation or as
+a right. For simplicity's sake, I will speak only of regulations.)
+The ovals represent four ways in which the individual or group might
+be regulated— either constrained or, alternatively, enabled. Law
+is the most obvious constraint (to lawyers, at least). It constrains
+by threatening punishments after the fact if the rules set in advance
+are violated. So if, for example, you willfully infringe Madonna's
+copyright by copying a song from her latest CD and posting it on the
+Web, you can be punished
<!-- PAGE BREAK 133 -->
with a $150,000 fine. The fine is an ex post punishment for violating
an ex ante rule. It is imposed by the state.
+<indexterm><primary>Madonna</primary></indexterm>
</para>
<para>
Norms are a different kind of constraint. They, too, punish an
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
do N. These constraints are obviously not independent of law or
-norms—it is property law that defines what must be bought if it is to
-be taken legally; it is norms that say what is appropriately sold. But
-given a set of norms, and a background of property and contract law,
-the market imposes a simultaneous constraint upon how an individual or
-group might behave.
+norms—it is property law that defines what must be bought if it
+is to be taken legally; it is norms that say what is appropriately
+sold. But given a set of norms, and a background of property and
+contract law, the market imposes a simultaneous constraint upon how an
+individual or group might behave.
</para>
<para>
Finally, and for the moment, perhaps, most mysteriously,
-"architecture"—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, architecture does not
-effect its constraint through ex post 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 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.
+"architecture"—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,
+architecture does not effect its constraint through ex post
+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
+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>
<para>
<!-- PAGE BREAK 134 -->
-So the first point about these four modalities of regulation is
- obvious:
-They interact. Restrictions imposed by one might be reinforced
-by another. Or restrictions imposed by one might be undermined by
-another.
+So the first point about these four modalities of regulation is
+obvious: They interact. Restrictions imposed by one might be
+reinforced by another. Or restrictions imposed by one might be
+undermined by another.
</para>
<para>
The second point follows directly: If we want to understand the
-effective freedom that anyone has at a given moment to do any
- particular
-thing, we have to consider how these four modalities interact.
-Whether or not there are other constraints (there may well be; my
-claim is not about comprehensiveness), these four are among the most
-significant, and any regulator (whether controlling or freeing) must
-consider how these four in particular interact.
+effective freedom that anyone has at a given moment to do any
+particular thing, we have to consider how these four modalities
+interact. Whether or not there are other constraints (there may well
+be; my claim is not about comprehensiveness), these four are among the
+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>
<para>
So, for example, consider the "freedom" 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 example, slow most
- rational
-drivers; governors in buses, as another example, set the
- maximum
-rate at which the driver can drive. The freedom is in part restricted
-by the market: Fuel efficiency drops as speed increases, thus the price of
-gasoline indirectly constrains speed. And finally, the norms of a
- community
-may or may not constrain the freedom to speed. Drive at 50
-mph by a school in your own neighborhood and you're likely to be
-punished by the neighbors. The same norm wouldn't be as effective in
-a different town, or at night.
+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
+example, slow most rational drivers; governors in buses, as another
+example, set the maximum rate at which the driver can drive. The
+freedom is in part restricted by the market: Fuel efficiency drops as
+speed increases, thus the price of gasoline indirectly constrains
+speed. And finally, the norms of a community may or may not constrain
+the freedom to speed. Drive at 50 mph by a school in your own
+neighborhood and you're likely to be punished by the neighbors. The
+same norm wouldn't be as effective in a different town, or at night.
</para>
<para>
The final point about this simple model should also be fairly clear:
While these four modalities are analytically independent, law has a
special role in affecting the three.<footnote><para>
<!-- f3 -->
-By describing the way law affects the other three modalities, I don't 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): 9095; Lawrence Lessig, "The New Chicago
-School," Journal of Legal Studies, June 1998.
-</para></footnote>
-The law, in other words, sometimes
-operates to increase or decrease the constraint of a particular modality.
-Thus, the law might be used to increase taxes on gasoline, so as to
- increase
-the incentives to drive more slowly. The law might be used to
-mandate more speed bumps, so as to increase the difficulty of driving
-rapidly. The law might be used to fund ads that stigmatize reckless
-driving. Or the law might be used to require that other laws be more
+By describing the way law affects the other three modalities, I don't
+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, <citetitle>Code: And
+Other Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95;
+Lawrence Lessig, "The New Chicago School," <citetitle>Journal of Legal Studies</citetitle>,
+June 1998.
+</para></footnote>
+The law, in other words, sometimes operates to increase or decrease
+the constraint of a particular modality. Thus, the law might be used
+to increase taxes on gasoline, so as to increase the incentives to
+drive more slowly. The law might be used to mandate more speed bumps,
+so as to increase the difficulty of driving rapidly. The law might be
+used to fund ads that stigmatize reckless driving. Or the law might be
+used to require that other laws be more
<!-- PAGE BREAK 135 -->
-strict—a federal requirement that states decrease the speed limit, for
-example—so as to decrease the attractiveness of fast driving.
+strict—a federal requirement that states decrease the speed
+limit, for example—so as to decrease the attractiveness of fast
+driving.
</para>
+<indexterm startref="idxdrivespeed" class='endofrange'/>
+
<figure id="fig-1361">
<title>Law has a special role in affecting the three.</title>
<graphic fileref="images/1361.png"></graphic>
property at any particular moment, we must track these changes over
time. A restriction imposed by one modality might be erased by
another. A freedom enabled by one modality might be displaced by
-another.<footnote><para>
-<!-- f4 -->
-Some people object to this way of talking about "liberty." 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 think it is meaningless
-to say that one's liberty has been restrained. A bridge has washed out, and
-it's harder to get from one place to another. To talk about this as a loss of
-freedom, they say, is to confuse the stuff of politics with the vagaries of
- ordinary
-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: 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.
-</para></footnote>
-</para>
-<sect2 id="hollywood">
+another.<footnote>
+<para>
+<!-- f4 -->
+Some people object to this way of talking about "liberty." 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
+think it is meaningless to say that one's liberty has been
+restrained. A bridge has washed out, and it's harder to get from one
+place to another. To talk about this as a loss of freedom, they say,
+is to confuse the stuff of politics with the vagaries of ordinary
+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 <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, "The Right to Work," 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 <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>Commons, John R.</primary></indexterm>
+</para></footnote>
+</para>
+<section id="hollywood">
<title>Why Hollywood Is Right</title>
<para>
-
The most obvious point that this model reveals is just why, or just
how, Hollywood is right. The copyright warriors have rallied Congress
and the courts to defend copyright. This model helps us see why that
rallying makes sense.
</para>
<para>
-Let's say this is the picture of copyright's regulation before the
- Internet:
+Let's say this is the picture of copyright's regulation before the
+Internet:
</para>
<figure id="fig-1371">
<title>Copyright's regulation before the Internet.</title>
</figure>
<para>
<!-- PAGE BREAK 136 -->
-There is balance between law, norms, market, and architecture. The
-law limits the ability to copy and share content, by imposing penalties
-on those who copy and share content. Those penalties are reinforced by
-technologies that make it hard to copy and share content (architecture)
-and expensive to copy and share content (market). Finally, those
- penalties
-are mitigated by norms we all recognize—kids, for example, taping
-other kids' records. These uses of copyrighted material may well be
- infringement,
-but the norms of our society (before the Internet, at least)
-had no problem with this form of infringement.
-</para>
-<para>
-Enter the Internet, or, more precisely, technologies such as MP3s
-and p2p sharing. Now the constraint of architecture changes
- dramatically,
+There is balance between law, norms, market, and architecture. The law
+limits the ability to copy and share content, by imposing penalties on
+those who copy and share content. Those penalties are reinforced by
+technologies that make it hard to copy and share content
+(architecture) and expensive to copy and share content
+(market). Finally, those penalties are mitigated by norms we all
+recognize—kids, for example, taping other kids' records. These
+uses of copyrighted material may well be infringement, but the norms
+of our society (before the Internet, at least) had no problem with
+this form of infringement.
+</para>
+<para>
+Enter the Internet, or, more precisely, technologies such as MP3s and
+p2p sharing. Now the constraint of architecture changes dramatically,
as does the constraint of the market. And as both the market and
architecture relax the regulation of copyright, norms pile on. The
-happy balance (for the warriors, at least) of life before the Internet
- becomes
-an effective state of anarchy after the Internet.
+happy balance (for the warriors, at least) of life before the Internet
+becomes an effective state of anarchy after the Internet.
</para>
<para>
-Thus the sense of, and justification for, the warriors' response.
- Technology
-has changed, the warriors say, and the effect of this change,
-when ramified through the market and norms, is that a balance of
- protection
-for the copyright owners' rights has been lost. This is Iraq
+Thus the sense of, and justification for, the warriors' response.
+Technology has changed, the warriors say, and the effect of this
+change, when ramified through the market and norms, is that a balance
+of protection for the copyright owners' rights has been lost. This is
+Iraq
<!-- PAGE BREAK 137 -->
after the fall of Saddam, but this time no government is justifying the
looting that results.
</figure>
<para>
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce
- Department
-(one heavily influenced by the copyright warriors) in 1995,
+warriors. Indeed, in a "White Paper" 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
- Internet
-had effected, the White Paper argued (1) Congress should
-strengthen intellectual property law, (2) businesses should adopt
- innovative
-marketing techniques, (3) technologists should push to develop
-code to protect copyrighted material, and (4) educators should educate
-kids to better protect copyright.
-</para>
-<para>
-This mixed strategy is just what copyright needed—if it was to
- preserve
-the particular balance that existed before the change induced by
-the Internet. And it's just what we should expect the content industry
-to push for. It is as American as apple pie to consider the happy life
-you have as an entitlement, and to look to the law to protect it if
- something
-comes along to change that happy life. Homeowners living in a
+strategy to respond already mapped. In response to the changes the
+Internet had effected, the White Paper argued (1) Congress should
+strengthen intellectual property law, (2) businesses should adopt
+innovative marketing techniques, (3) technologists should push to
+develop code to protect copyrighted material, and (4) educators should
+educate kids to better protect copyright.
+</para>
+<para>
+This mixed strategy is just what copyright needed—if it was to
+preserve the particular balance that existed before the change induced
+by the Internet. And it's just what we should expect the content
+industry to push for. It is as American as apple pie to consider the
+happy life you have as an entitlement, and to look to the law to
+protect it if something comes along to change that happy
+life. Homeowners living in a
<!-- PAGE BREAK 138 -->
flood plain have no hesitation appealing to the government to rebuild
-(and rebuild again) when a flood (architecture) wipes away their
- property
-(law). Farmers have no hesitation appealing to the government to
-bail them out when a virus (architecture) devastates their crop. Unions
-have no hesitation appealing to the government to bail them out when
-imports (market) wipe out the U.S. steel industry.
+(and rebuild again) when a flood (architecture) wipes away their
+property (law). Farmers have no hesitation appealing to the government
+to bail them out when a virus (architecture) devastates their
+crop. Unions have no hesitation appealing to the government to bail
+them out when imports (market) wipe out the U.S. steel industry.
</para>
<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."
-</para>
-<para>
-But just because a particular interest asks for government support,
-it doesn't follow that support should be granted. And just because
- technology
-has weakened a particular way of doing business, it doesn't
- follow
-that the government should intervene to support that old way of
+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."
+</para>
+<para>
+But just because a particular interest asks for government support, it
+doesn't follow that support should be granted. And just because
+technology has weakened a particular way of doing business, it doesn't
+follow that the government should intervene to support that old way of
doing business. Kodak, for example, has lost perhaps as much as 20
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?"
- 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 October 2003,
- available
-at
+See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+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
+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?)
+
+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
+<emphasis>for the purpose of</emphasis> 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>
<para>
The obvious answer to these obviously rhetorical questions is no.
1991, in a memo criticizing software patents, "established companies
have an interest in excluding future competitors."<footnote><para>
<!-- f6 -->
-Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 17071.
+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
-technologies that change the way they do business to look to the
- government
-for protection, it is the special duty of policy makers to
- guarantee
-that that protection not become a deterrent to progress. It is the
-duty of policy makers, in other words, to assure that the changes they
-create, in response to the request of those hurt by changing technology,
-are changes that preserve the incentives and opportunities for
- innovation
-and change.
-</para>
-<para>
-In the context of laws regulating speech—which include, obviously,
-copyright law—that duty is even stronger. When the industry
- complaining
-about changing technologies is asking Congress to respond in
-a way that burdens speech and creativity, policy makers 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 of speech, it should ask—
-carefully—whether such regulation is justified.
+technologies that change the way they do business to look to the
+government for protection, it is the special duty of policy makers to
+guarantee that that protection not become a deterrent to progress. It
+is the duty of policy makers, in other words, to assure that the
+changes they create, in response to the request of those hurt by
+changing technology, are changes that preserve the incentives and
+opportunities for innovation and change.
+</para>
+<para>
+In the context of laws regulating speech—which include,
+obviously, copyright law—that duty is even stronger. When the
+industry complaining about changing technologies is asking Congress to
+respond in a way that burdens speech and creativity, policy makers
+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
+of speech, it should ask— carefully—whether such
+regulation is justified.
</para>
<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 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.
+"justified." 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>
<para>
Here's the metaphor that will capture the argument to follow.
</para>
+<indexterm id="idxddt" class='startofrange'>
+ <primary>DDT</primary>
+</indexterm>
<para>
In 1873, the chemical DDT was first synthesized. In 1948, Swiss
-chemist Paul Hermann Müller won the Nobel Prize for his work
+chemist Paul Hermann Müller won the Nobel Prize for his work
demonstrating the insecticidal properties of DDT. By the 1950s, the
insecticide was widely used around the world to kill disease-carrying
pests. It was also used to increase farm production.
+<indexterm><primary>Müller, Paul Hermann</primary></indexterm>
</para>
<para>
No one doubts that killing disease-carrying pests or increasing crop
-production is a good thing. No one doubts that the work of Müller was
+production is a good thing. No one doubts that the work of Müller was
important and valuable and probably saved lives, possibly millions.
</para>
+<indexterm><primary>Carson, Rachel</primary></indexterm>
<para>
-But in 1962, Rachel Carson published Silent Spring, 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.
+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 not aim to harm any birds. But the effort to solve one set of
- problems
-produced another set which, in the view of some, was far worse
-than the problems that were originally attacked. Or more accurately,
-the problems DDT caused were worse than the problems it solved, at
-least when considering the other, more environmentally friendly ways
-to solve the problems that DDT was meant to solve.
+No one set out to destroy the environment. Paul Müller certainly did
+not aim to harm any birds. But the effort to solve one set of problems
+produced another set which, in the view of some, was far worse than
+the problems that were originally attacked. Or more accurately, the
+problems DDT caused were worse than the problems it solved, at least
+when considering the other, more environmentally friendly ways to
+solve the problems that DDT was meant to solve.
</para>
<para>
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an "environmentalism" 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.
-</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
-protect authors will have unintended consequences for the cultural
- environment,
-much like DDT had for the natural environment. And just
+See, for example, James Boyle, "A Politics of Intellectual Property:
+Environmentalism for the Net?" <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
+protect authors will have unintended consequences for the cultural
+environment, much like DDT had for the natural environment. And just
<!-- PAGE BREAK 141 -->
as criticism of DDT is not an endorsement of malaria or an attack on
-farmers, so, too, is criticism of one particular set of regulations
- protecting
-copyright not an endorsement of anarchy or an attack on authors.
-It is an environment of creativity that we seek, and we should be aware
-of our actions' effects on the environment.
+farmers, so, too, is criticism of one particular set of regulations
+protecting copyright not an endorsement of anarchy or an attack on
+authors. It is an environment of creativity that we seek, and we
+should be aware of our actions' effects on the environment.
</para>
<para>
My argument, in the balance of this chapter, tries to map exactly
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'/>
+</section>
+<section id="beginnings">
<title>Beginnings</title>
<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
+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
aim to avoid overly powerful publishers.
</para>
<para>
-The power to establish "creative property" 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:
+The power to establish "creative property" 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>
<para>
Congress has the power to promote the Progress of Science and
the exclusive Right to their respective Writings and Discoveries.
<!-- PAGE BREAK 142 -->
-We can call this the "Progress Clause," 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.
-</para>
-<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
+We can call this the "Progress Clause," 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
+<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>
+<para>
+The Progress Clause expressly limits the term of copyrights. As we saw
+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 "to Authors" only.
</para>
<para>
The design of the Progress Clause reflects something about the
-Constitution's design in general. To avoid a problem, the framers built
-structure. To prevent the concentrated power of publishers, they built
-a structure that kept copyrights away from publishers and kept them
-short. To prevent the concentrated power of a church, they banned the
-federal government from establishing a church. To prevent
- concentrating
-power in the federal government, they built structures 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.
-</para>
-<para>
-I doubt the framers would recognize the regulation we call
- "copyright"
-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 years since they first struck its design.
+Constitution's design in general. To avoid a problem, the framers
+built structure. To prevent the concentrated power of publishers, they
+built a structure that kept copyrights away from publishers and kept
+them short. To prevent the concentrated power of a church, they banned
+the federal government from establishing a church. To prevent
+concentrating power in the federal government, they built structures
+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 <emphasis>structure</emphasis> built checks and balances into
+the constitutional frame, structured to prevent otherwise inevitable
+concentrations of power.
+</para>
+<para>
+I doubt the framers would recognize the regulation we call "copyright"
+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
+years since they first struck its design.
</para>
<para>
Some of these changes come from the law: some in light of changes
Let me explain how.
<!-- PAGE BREAK 144 -->
</para>
-</sect2>
-<sect2 id="lawduration">
+</section>
+<section id="lawduration">
<title>Law: Duration</title>
<para>
When the first Congress enacted laws to protect creative property, it
faced the same uncertainty about the status of creative property that
-the English had confronted in 1774. Many states had passed laws
- protecting
-creative property, and some believed that these laws simply
-supplemented common law rights that already protected creative
-
authorship.<footnote><para>
+the English had confronted in 1774. Many states had passed laws
+protecting creative property, and some believed that these laws simply
+supplemented common law rights that already protected creative
+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, 48586:
-"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).
-</para></footnote>
-This meant that there was no guaranteed public domain in
-the United States in 1790. If copyrights were protected by the
- common
-law, then there was no simple way to know whether a work
- published
-in the United States was controlled or free. Just as in England,
-this lingering uncertainty would make it hard for publishers to rely
-upon a public domain to reprint and distribute works.
+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: "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>"
+(emphasis added).
+<indexterm><primary>Crosskey, William W.</primary></indexterm>
+</para></footnote>
+This meant that there was no guaranteed public domain in the United
+States in 1790. If copyrights were protected by the common law, then
+there was no simple way to know whether a work published in the United
+States was controlled or free. Just as in England, this lingering
+uncertainty would make it hard for publishers to rely upon a public
+domain to reprint and distribute works.
</para>
<para>
That uncertainty ended after Congress passed legislation granting
-copyrights. Because federal law overrides any contrary state law, federal
-protections for copyrighted works displaced any state law protections.
-Just as in England the Statute of Anne eventually meant that the
- copyrights
-for all English works expired, a federal statute meant that any
-state copyrights expired as well.
-</para>
-<para>
-In 1790, Congress enacted the first copyright law. It created a
- federal
-copyright and secured that copyright for fourteen years. If the
- author
-was alive at the end of that fourteen years, then he could opt to
-renew the copyright for another fourteen years. If he did not renew the
-copyright, his work passed into the public domain.
-</para>
-<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
-registered under the federal copyright regime. Of all the work
- created
-in the United States both before 1790 and from 1790 through
-1800, 95 percent immediately passed into the public domain; the
- balance
-would pass into the pubic domain within twenty-eight years at
-most, and more 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,
-16301865 (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, 710 (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 copyrighted fell into the public
-domain quickly, because the term of copyright was short. The initial term
-of copyright was fourteen years, with the option of renewal for an
- additional
-fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124.
-</para></footnote>
+copyrights. Because federal law overrides any contrary state law,
+federal protections for copyrighted works displaced any state law
+protections. Just as in England the Statute of Anne eventually meant
+that the copyrights for all English works expired, a federal statute
+meant that any state copyrights expired as well.
+</para>
+<para>
+In 1790, Congress enacted the first copyright law. It created a
+federal copyright and secured that copyright for fourteen years. If
+the author was alive at the end of that fourteen years, then he could
+opt to renew the copyright for another fourteen years. If he did not
+renew the copyright, his work passed into the public domain.
+</para>
+<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
+registered under the federal copyright regime. Of all the work created
+in the United States both before 1790 and from 1790 through 1800, 95
+percent immediately passed into the public domain; the balance would
+pass into the pubic domain within twenty-eight years at most, and more
+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, <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, <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
+copyrighted fell into the public domain quickly, because the term of
+copyright was short. The initial term of copyright was fourteen years,
+with the option of renewal for an additional fourteen years. Copyright
+Act of May 31, 1790, §1, 1 stat. 124. </para></footnote>
</para>
<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
<!-- PAGE BREAK 145 -->
granted only for works where they were wanted. After the initial term
-of fourteen years, if it wasn't worth it to an author to renew his
- copyright,
-then it wasn't worth it to society to insist on the copyright, either.
+of fourteen years, if it wasn't worth it to an author to renew his
+copyright, then it wasn't worth it to society to insist on the
+copyright, either.
</para>
<para>
Fourteen years may not seem long to us, but for the vast majority of
-copyright owners at that time, it was long enough: Only a small
- minority
-of them renewed their copyright after fourteen years; the
- balance
-allowed their work to pass into the public domain.<footnote><para>
+copyright owners at that time, it was long enough: Only a small
+minority of them renewed their copyright after fourteen years; the
+balance allowed their work to pass into the public
+domain.<footnote><para>
<!-- f10 -->
-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, 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, 498501, and accompanying figures.
-</para></footnote>
+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,"
+<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,"
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, 498–501, and
+accompanying figures. </para></footnote>
</para>
<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
out of print after one year.<footnote><para>
<!-- 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.
+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 <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>
<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 years to a maximum of 42 by increasing the initial term of
- copyright
+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
+years to a maximum of 42 by increasing the initial term of copyright
from 14 years to 28 years. In the next fifty years of the Republic,
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>
<para>
-Then, beginning in 1962, Congress started a practice that has
- defined
+Then, beginning in 1962, Congress started a practice that has defined
copyright law since. Eleven times in the last forty years, Congress
has extended the terms of existing copyrights; twice in those forty
years, Congress extended the term of future copyrights. Initially, the
extensions of existing copyrights were short, a mere one to two years.
In 1976, Congress extended all existing copyrights by nineteen years.
-And in 1998, in the Sonny Bono Copyright Term Extension Act,
-Congress extended the term of existing and future copyrights by
-twenty years.
+And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
+extended the term of existing and future copyrights by twenty years.
</para>
<para>
The effect of these extensions is simply to toll, or delay, the passing
was ninety-five years.
</para>
<para>
-This change meant that American law no longer had an automatic
-way to assure that works that were no longer exploited passed into the
-public 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 them.
+This change meant that American law no longer had an automatic way to
+assure that works that were no longer exploited passed into the public
+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
+them.
</para>
<para>
The effect of these changes on the average duration of copyright is
</para></footnote>
</para>
<!-- PAGE BREAK 147 -->
-</sect2>
-<sect2 id="lawscope">
+</section>
+<section id="lawscope">
<title>Law: Scope</title>
<para>
The "scope" of a copyright is the range of rights granted by the law.
(such as a drama based on a published book).
</para>
<para>
-This, too, has changed dramatically. While the contours of
- copyright
+This, too, has changed dramatically. While the contours of copyright
today are extremely hard to describe simply, in general terms, the
-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 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 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>
-<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 complete removal of the renewal requirement in 1992. In addition
+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
+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
+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>
+<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
+complete removal of the renewal requirement in 1992. In addition
<!-- PAGE BREAK 148 -->
to the renewal requirement, for most of the history of American
- 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.
+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 <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>
<para>
-The reason for the registration requirement was the sensible
- understanding
-that for most works, no copyright was required. Again, in the
-first ten years of the Republic, 95 percent of works eligible for
- copyright
-were never copyrighted. Thus, the rule reflected the norm: Most
-works apparently didn't need copyright, so registration narrowed the
-regulation of the law to the few that did. The same reasoning justified
-the requirement that a work be marked as copyrighted—that way it
-was easy to know whether a copyright was being claimed. The
- requirement
-that works be deposited was to assure that after the copyright
- expired,
-there would be a copy of the work somewhere so that it could be
-copied by others without locating the original author.
+The reason for the registration requirement was the sensible
+understanding that for most works, no copyright was required. Again,
+in the first ten years of the Republic, 95 percent of works eligible
+for copyright were never copyrighted. Thus, the rule reflected the
+norm: Most works apparently didn't need copyright, so registration
+narrowed the regulation of the law to the few that did. The same
+reasoning justified the requirement that a work be marked as
+copyrighted—that way it was easy to know whether a copyright was
+being claimed. The requirement that works be deposited was to assure
+that after the copyright expired, there would be a copy of the work
+somewhere so that it could be copied by others without locating the
+original author.
</para>
<para>
-All of these "formalities" 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.
+All of these "formalities" 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>
<para>
-Consider a practical example to understand the scope of these
- differences.
+Consider a practical example to understand the scope of these
+differences.
</para>
<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
-against another publisher's taking your book and republishing it
- without
-your permission. The aim of the act was to regulate publishers so
-as to prevent that kind of unfair competition. In 1790, there were 174
-publishers in the United States.<footnote><para>
+against another publisher's taking your book and republishing it
+without your permission. The aim of the act was to regulate publishers
+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, 17901800 (U.S. G.P.O., 1987).
+See Thomas Bender and David Sampliner, "Poets, Pirates, and the
+Creation of American Literature," 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
</para>
<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>
<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
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, "The Copyright Cage," <citetitle>Legal
+Affairs</citetitle>, July/August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
+<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
Whether or not you go that far, it seems
plain that whatever wrong is involved is fundamentally different from
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): 160 (see especially pp. 5359).
+about the difference that copyright law should draw (from the
+perspective of the First Amendment) between mere "copies" and
+derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
+Copyright's Constitutionality," <citetitle>Yale Law
+Journal</citetitle> 112 (2002): 1–60 (see especially
+pp. 53–59).
</para></footnote>
-These two different uses of my creative work are
-treated the same.
+These two different uses of my creative work are treated the same.
</para>
<para>
-This again may seem right to you. If I wrote a book, then why
-should you be able to write a movie that takes my story and makes
-money from it without paying me or crediting me? Or if Disney
- creates
-a creature called "Mickey Mouse," why should you be able to make
-Mickey Mouse toys and be the one to trade on the value that Disney
-originally created?
+This again may seem right to you. If I wrote a book, then why should
+you be able to write a movie that takes my story and makes money from
+it without paying me or crediting me? Or if Disney creates a creature
+called "Mickey Mouse," why should you be able to make Mickey Mouse
+toys and be the one to trade on the value that Disney originally
+created?
</para>
<para>
These are good arguments, and, in general, my point is not that the
-derivative right is unjustified. My aim just now is much narrower:
- simply
-to make clear that this expansion is a significant change from the
-rights originally granted.
+derivative right is unjustified. My aim just now is much narrower:
+simply to make clear that this expansion is a significant change from
+the rights originally granted.
</para>
-</sect2>
-<sect2 id="lawreach">
+</section>
+<section id="lawreach">
<title>Law and Architecture: Reach</title>
<para>
Whereas originally the law regulated only publishers, the change in
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 "copies"—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 "copy"; 17
+<citetitle>United States Code</citetitle>, section 112(a). But the presumption under the
+existing law (which regulates "copies;" 17 <citetitle>United States Code</citetitle>, section
+102) is that if there is a copy, there is a right.
</para></footnote>
</para>
<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.
+"Copies." 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 "creative
+property" deserves the "same rights" 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>
<para>
This is perhaps the central claim of this book, so let me take this
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,
<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>
<graphic fileref="images/1541.png"></graphic>
</figure>
<para>
-These are uses that themselves involve copying, but which the law treats
-as unregulated because public policy demands that they remain
- unregulated.
-You are free to quote from this book, even in a review that
-is quite negative, without my permission, even though that quoting
-makes a copy. That copy would ordinarily give the copyright owner the
-exclusive right to say whether the copy is allowed or not, but the law
-denies the owner any exclusive right over such "fair uses" for public
-policy (and possibly First Amendment) reasons.
+These are uses that themselves involve copying, but which the law
+treats as unregulated because public policy demands that they remain
+unregulated. You are free to quote from this book, even in a review
+that is quite negative, without my permission, even though that
+quoting makes a copy. That copy would ordinarily give the copyright
+owner the exclusive right to say whether the copy is allowed or not,
+but the law denies the owner any exclusive right over such "fair uses"
+for public policy (and possibly First Amendment) reasons.
</para>
<figure id="fig-1542">
<title>Unregulated copying considered "fair uses."</title>
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.<footnote><para>
<!-- f18 -->
-I don't mean "nature" in the sense that it couldn't be different, but rather that
-its present instantiation entails a copy. Optical networks need not make
-copies of content they transmit, and a digital network could be designed to
-delete anything it copies so that the same number of copies remain.
-</para></footnote>
-And because of this single,
-arbitrary feature of the design of a digital network, the scope of
- category
-1 changes dramatically. Uses that before were presumptively
- unregulated
-are now presumptively regulated. No longer is there a set of
-presumptively unregulated uses that define a freedom associated with a
-copyrighted work. Instead, each use is now subject to the copyright,
-because each use also makes a copy—category 1 gets sucked into
- category
-2. And those who would defend the unregulated uses of
- copyrighted
-work must look exclusively to category 3, fair uses, to bear the
-burden of this shift.
+I don't mean "nature" in the sense that it couldn't be different, but
+rather that its present instantiation entails a copy. Optical networks
+need not make copies of content they transmit, and a digital network
+could be designed to delete anything it copies so that the same number
+of copies remain.
+</para></footnote>
+And because of this single, arbitrary feature of the design of a
+digital network, the scope of category 1 changes dramatically. Uses
+that before were presumptively unregulated are now presumptively
+regulated. No longer is there a set of presumptively unregulated uses
+that define a freedom associated with a copyrighted work. Instead,
+each use is now subject to the copyright, because each use also makes
+a copy—category 1 gets sucked into category 2. And those who
+would defend the unregulated uses of copyrighted work must look
+exclusively to category 3, fair uses, to bear the burden of this
+shift.
</para>
<para>
So let's be very specific to make this general point clear. Before the
-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>
<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.
+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
+<emphasis>any</emphasis> 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>
<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.
+burden on category 3 ("fair use") that fair use never before had to
+bear. If a copyright owner now tried to control how many times I
+could read a book on-line, the natural response would be to argue that
+this is a violation of my fair use rights. But there has never been
+any litigation about whether I have a fair use right to read, because
+before the Internet, reading did not trigger the application of
+copyright law and hence the need for a fair use defense. The right to
+read was effectively protected before because reading was not
+regulated.
</para>
<para>
This point about fair use is totally ignored, even by advocates for
-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.
+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>
<para>
The case of Video Pipeline is a good example. Video Pipeline was
the trailers on tape, and sold the tapes to the retail stores.
</para>
<para>
-The company did this for about fifteen years. Then, in 1997, it
- began
-to think about the Internet as another way to distribute these
- previews.
-The idea was to expand their "selling by sampling" technique by
-giving on-line stores the same ability to enable "browsing." Just as in a
-bookstore you can read a few pages of a book before you buy the book,
-so, too, you would be able to sample a bit from the movie on-line
- before
-you bought it.
+The company did this for about fifteen years. Then, in 1997, it began
+to think about the Internet as another way to distribute these
+previews. The idea was to expand their "selling by sampling"
+technique by giving on-line stores the same ability to enable
+"browsing." Just as in a bookstore you can read a few pages of a book
+before you buy the book, so, too, you would be able to sample a bit
+from the movie on-line before you bought it.
</para>
<para>
-In 1998, Video Pipeline informed Disney and other film
- distributors
+In 1998, Video Pipeline informed Disney and other film distributors
that it intended to distribute the trailers through the Internet
(rather than sending the tapes) to distributors of their videos. Two
years later, Disney told Video Pipeline to stop. The owner of Video
<!-- PAGE BREAK 157 -->
Pipeline asked Disney to talk about the matter—he had built a
- business
-on distributing this content as a way to help sell Disney films; he
-had customers who depended upon his delivering this content. Disney
-would agree to talk only if Video Pipeline stopped the distribution
- immediately.
-Video Pipeline thought it was within their "fair use" rights
-to distribute the clips as they had. So they filed a lawsuit to ask the
-court to declare that these rights were in fact their rights.
+business on distributing this content as a way to help sell Disney
+films; he had customers who depended upon his delivering this
+content. Disney would agree to talk only if Video Pipeline stopped the
+distribution immediately. Video Pipeline thought it was within their
+"fair use" rights to distribute the clips as they had. So they filed a
+lawsuit to ask the court to declare that these rights were in fact
+their rights.
</para>
<para>
Disney countersued—for $100 million in damages. Those damages
-were predicated upon a claim that Video Pipeline had "willfully
- infringed"
-on Disney's copyright. When a court makes a finding of
- willful
-infringement, it can award damages not on the basis of the actual
-harm to the copyright owner, but on the basis of an amount set in the
-statute. Because Video Pipeline had distributed seven hundred clips of
-Disney movies to enable video stores to sell copies of those movies,
-Disney was now suing Video Pipeline for $100 million.
+were predicated upon a claim that Video Pipeline had "willfully
+infringed" on Disney's copyright. When a court makes a finding of
+willful infringement, it can award damages not on the basis of the
+actual harm to the copyright owner, but on the basis of an amount set
+in the statute. Because Video Pipeline had distributed seven hundred
+clips of Disney movies to enable video stores to sell copies of those
+movies, Disney was now suing Video Pipeline for $100 million.
</para>
<para>
Disney has the right to control its property, of course. But the video
Disney's permission.
</para>
<para>
-Now, you might think this is a close case, and I think the courts would
-consider it a close case. My point here is to map the change that gives
-Disney this power. Before the Internet, Disney couldn't really control
-how people got access to their content. Once a video was in the
- marketplace,
-the "first-sale doctrine" would free the seller to use the video as he
-wished, including showing portions of it in order to engender sales of the
-entire movie video. But with the Internet, it becomes possible for Disney
-to centralize control over access to this content. Because each use of the
-Internet produces a copy, use on the Internet becomes subject to the
-copyright owner's control. The technology expands the scope of effective
-control, because the technology builds a copy into every transaction.
+Now, you might think this is a close case, and I think the courts
+would consider it a close case. My point here is to map the change
+that gives Disney this power. Before the Internet, Disney couldn't
+really control how people got access to their content. Once a video
+was in the marketplace, the "first-sale doctrine" would free the
+seller to use the video as he wished, including showing portions of it
+in order to engender sales of the entire movie video. But with the
+Internet, it becomes possible for Disney to centralize control over
+access to this content. Because each use of the Internet produces a
+copy, use on the Internet becomes subject to the copyright owner's
+control. The technology expands the scope of effective control,
+because the technology builds a copy into every transaction.
</para>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
- control
-is not yet the abuse of control. Barnes & Noble has the right to say
-you can't touch a book in their store; property law gives them that right.
-But the market effectively protects against that abuse. If Barnes &
- Noble
-banned browsing, then consumers would choose other bookstores.
-Competition protects against the extremes. And it may well be (my
- argument
-so far does not even question this) that competition would prevent
-any similar danger when it comes to copyright. Sure, publishers
- exercising
-the rights that authors have assigned to them might try to regulate
-how many times you read a book, or try to stop you from sharing the book
-with anyone. But in a competitive market such as the book market, the
-dangers of this happening are quite slight.
+control is not yet the abuse of control. Barnes & Noble has the
+right to say you can't touch a book in their store; property law gives
+them that right. But the market effectively protects against that
+abuse. If Barnes & Noble banned browsing, then consumers would
+choose other bookstores. Competition protects against the
+extremes. And it may well be (my argument so far does not even
+question this) that competition would prevent any similar danger when
+it comes to copyright. Sure, publishers exercising the rights that
+authors have assigned to them might try to regulate how many times you
+read a book, or try to stop you from sharing the book with anyone. But
+in a competitive market such as the book market, the dangers of this
+happening are quite slight.
</para>
<para>
Again, my aim so far is simply to map the changes that this changed
architecture enables. Enabling technology to enforce the control of
copyright means that the control of copyright is no longer defined by
-balanced policy. The control of copyright is simply what private
- owners
-choose. In some contexts, at least, that fact is harmless. But in some
-contexts it is a recipe for disaster.
+balanced policy. The control of copyright is simply what private
+owners choose. In some contexts, at least, that fact is harmless. But
+in some contexts it is a recipe for disaster.
</para>
-</sect2>
-<sect2 id="lawforce">
+</section>
+<section id="lawforce">
<title>Architecture and Law: Force</title>
<para>
The disappearance of unregulated uses would be change enough, but a
tradition embraced, who said whether and how the law would restrict
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): 17273.
+See David Lange, "Recognizing the Public Domain," <citetitle>Law and
+Contemporary Problems</citetitle> 44 (1981): 172–73.
</para></footnote>
</para>
<para>
Warner Brothers that the Marx Brothers "were brothers long before
you were."<footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 13.
+Ibid. See also Vaidhyanathan, <citetitle>Copyrights and
+Copywrongs</citetitle>, 1–3.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
-The Marx Brothers therefore owned the word brothers,
-and if Warner Brothers insisted on trying to control Casablanca, then
-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,
(including Warner Brothers) enjoyed.
</para>
<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>
permissions that the publisher purports to grant with this book.
</para>
<figure id="fig-1612">
-<title></title>
+<title>List of the permissions that the publisher purports to grant.</title>
<graphic fileref="images/1612.png"></graphic>
</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>
<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>.
+<indexterm><primary>Aristotle</primary></indexterm>
+<indexterm><primary><citetitle>Politics</citetitle>, (Aristotle)</primary></indexterm>
</para>
<figure id="fig-1621">
<title>E-book of Aristotle;s "Politics"</title>
</figure>
<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">
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
+"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>
<!-- 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.
+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>
<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 "Warner Brothers," erased "Brothers" from the
+sentence.
+<indexterm><primary>Marx Brothers</primary></indexterm>
</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>
<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:
+<indexterm><primary>Alice's Adventures in Wonderland (Carroll)</primary></indexterm>
</para>
<figure id="fig-1641">
<title>List of the permissions for "Alice's Adventures in
</figure>
<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
+"permissions" indicated, not allowed to "read aloud"!
</para>
<para>
The public relations nightmare attached to that final permission.
seemed, to say the least, absurd.
</para>
<para>
-Adobe responded quickly that it was absurd to think that it was
- trying
-to restrict the right to read a book aloud. Obviously it was only
- restricting
-the ability to use the Read Aloud button to have the book read
-aloud. But the question Adobe never did answer is this: Would Adobe
-thus agree that a consumer was free to use software to hack around the
-restrictions built into the eBook Reader? If some company (call it
-Elcomsoft) developed a program to disable the technological
- protection
-built into an Adobe eBook so that a blind person, say, could use a
-computer to read the book aloud, would Adobe agree that such a use of
-an eBook Reader was fair? Adobe didn't answer because the answer,
-however absurd it might seem, is no.
+Adobe responded quickly that it was absurd to think that it was trying
+to restrict the right to read a book aloud. Obviously it was only
+restricting the ability to use the Read Aloud button to have the book
+read aloud. But the question Adobe never did answer is this: Would
+Adobe thus agree that a consumer was free to use software to hack
+around the restrictions built into the eBook Reader? If some company
+(call it Elcomsoft) developed a program to disable the technological
+protection built into an Adobe eBook so that a blind person, say,
+could use a computer to read the book aloud, would Adobe agree that
+such a use of an eBook Reader was fair? Adobe didn't answer because
+the answer, however absurd it might seem, is no.
</para>
<para>
The point is not to blame Adobe. Indeed, Adobe is among the most
innovative companies developing strategies to balance open access to
-content with incentives for companies to innovate. But Adobe's
- technology
-enables control, and Adobe has an incentive to defend this
- control.
-That incentive is understandable, yet what it creates is often crazy.
+content with incentives for companies to innovate. But Adobe's
+technology enables control, and Adobe has an incentive to defend this
+control. That incentive is understandable, yet what it creates is
+often crazy.
</para>
+<indexterm startref="idxadobeebookreader" 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>
<para>
Consider the robotic dog made by Sony named "Aibo." The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
</para>
<para>
"Teach" 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).
+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).
</para>
<para>
If you're not a programmer or don't know many programmers, the
-word hack has a particularly unfriendly connotation. Nonprogrammers
+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, hack is a much
-more positive term. Hack just means code that enables the program to
+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 "drive," the printer. If you discovered that, you'd later be
ethically.
</para>
<para>
-The Aibo fan was displaying a bit of both when he hacked the
- program
-and offered to the world a bit of code that would enable the Aibo
-to dance jazz. The dog wasn't programmed to dance jazz. It was a
-clever bit of tinkering that turned the dog into a more talented creature
+The Aibo fan was displaying a bit of both when he hacked the program
+and offered to the world a bit of code that would enable the Aibo to
+dance jazz. The dog wasn't programmed to dance jazz. It was a clever
+bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
+<indexterm startref="idxaibo" class='endofrange'/>
<para>
I've told this story in many contexts, both inside and outside the
United States. Once I was asked by a puzzled member of the audience,
-is it permissible for a dog to dance jazz in the United States? We
- forget
-that stories about the backcountry still flow across much of the
+is it permissible for a dog to dance jazz in the United States? We
+forget that stories about the backcountry still flow across much of
+the
<!-- PAGE BREAK 166 -->
-world. So let's just be clear before we continue: It's not a crime
- anywhere
-(anymore) to dance jazz. Nor is it a crime to teach your dog 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?
+world. So let's just be clear before we continue: It's not a crime
+anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
+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, <emphasis>What possible problem could there be with teaching
+a robot dog to dance?</emphasis>
</para>
<para>
Let's put the dog to sleep for a minute, and turn to a pony show—
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,
+<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
+the Techies Who Teach a Robot Dog New Tricks," <citetitle>American Prospect</citetitle>,
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,
+DMCA," <citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 December 2001; Bill
+Holland, "Copyright Act Raising Free-Speech Concerns," <citetitle>Billboard</citetitle>,
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
+Questions about <citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> Legal Case," available at
<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
+<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para></footnote>
-He and a
-group of colleagues were working on a paper to be submitted at
- conference.
-The paper was intended to describe the weakness in an
- encryption
-system being developed by the Secure Digital Music Initiative as
-a technique to control the distribution of music.
+He and a group of colleagues were working on a paper to be submitted
+at conference. The paper was intended to describe the weakness in an
+encryption system being developed by the Secure Digital Music
+Initiative as a technique to control the distribution of music.
</para>
<para>
The SDMI coalition had as its goal a technology to enable content
-owners to exercise much better control over their content than the
- Internet,
-as it originally stood, granted them. Using encryption, SDMI
+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 control
-that would get content owners to trust the system of the Internet much
-more.
+"this music cannot be copied," and have a computer respect that
+command. The technology was to be part of a "trusted system" of
+control that would get content owners to trust the system of the
+Internet much more.
</para>
<para>
-When SDMI thought it was close to a standard, it set up a
- competition.
+When SDMI thought it was close to a standard, it set up a competition.
In exchange for providing contestants with the code to an
SDMI-encrypted bit of content, contestants were to try to crack it
and, if they did, report the problems to the consortium.
</para>
<para>
<!-- PAGE BREAK 167 -->
-Felten and his team figured out the encryption system quickly. He
-and the team saw the weakness of this system as a type: Many
- encryption
+Felten and his team figured out the encryption system quickly. He and
+the team saw the weakness of this system as a type: Many encryption
systems would suffer the same weakness, and Felten and his team
thought it worthwhile to point this out to those who study encryption.
</para>
<para>
Let's review just what Felten was doing. Again, this is the United
States. We have a principle of free speech. We have this principle not
-just because it is the law, but also because it is a really great idea. A
-strongly protected tradition of free speech is likely to encourage a wide
-range of criticism. That criticism is likely, in turn, to improve the
- systems
-or people or ideas criticized.
+just because it is the law, but also because it is a really great
+idea. A strongly protected tradition of free speech is likely to
+encourage a wide range of criticism. That criticism is likely, in
+turn, to improve the systems or people or ideas criticized.
</para>
<para>
What Felten and his colleagues were doing was publishing a paper
<blockquote>
<para>
Your site contains information providing the means to circumvent
-AIBO-ware's copy protection protocol constituting a violation of
-the anti-circumvention provisions of the Digital Millennium
- Copyright
-Act.
+AIBO-ware's copy protection protocol constituting a violation of the
+anti-circumvention provisions of the Digital Millennium Copyright Act.
</para>
</blockquote>
<para>
<para>
Any disclosure of information gained from participating in the
<!-- 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").
+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").
</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.
+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,
+<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 the extent copyright law protected them. Its protection, that
-is, did not end at the line that copyright law drew. The DMCA
- regulated
+But the DMCA was not designed merely to protect copyrighted works to
+the extent copyright law protected them. Its protection, that is, did
+not end at the line that copyright law drew. The DMCA regulated
devices that were designed to circumvent copyright protection
measures. It was designed to ban those devices, whether or not the use
-of the copyrighted material made possible by that circumvention
-would have been a copyright violation.
-</para>
-<para>
-Aibopet.com and Felten make the point. The Aibo hack
- circumvented
-a copyright protection system for the purpose of enabling the
-dog to dance jazz. That enablement no doubt involved the use of
- copyrighted
-material. But as aibopet.com's site was noncommercial, and the
-use did not enable subsequent copyright infringements, there's no doubt
-that aibopet.com's hack was fair use of Sony's copyrighted material. Yet
+of the copyrighted material made possible by that circumvention would
+have been a copyright violation.
+</para>
+<para>
+Aibopet.com and Felten make the point. The Aibo hack circumvented a
+copyright protection system for the purpose of enabling the dog to
+dance jazz. That enablement no doubt involved the use of copyrighted
+material. But as aibopet.com's site was noncommercial, and the use did
+not enable subsequent copyright infringements, there's no doubt that
+aibopet.com's hack was fair use of Sony's copyrighted material. Yet
fair use is not a defense to the DMCA. The question is not whether the
<!-- PAGE BREAK 169 -->
use of the copyrighted material was a copyright violation. The question
</para>
<para>
The threat against Felten was more attenuated, but it followed the
-same line of reasoning. By publishing a paper describing how a
- copyright
-protection system could be circumvented, the RIAA lawyer
- suggested,
-Felten himself was distributing a circumvention technology.
+same line of reasoning. By publishing a paper describing how a
+copyright protection system could be circumvented, the RIAA lawyer
+suggested, Felten himself was distributing a circumvention technology.
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
</para>
<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
+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 "<citetitle>Mr. Rogers</citetitle>,"
+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 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" 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, 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
+"Neighborhood" 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"
+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,
+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,
+<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), 27071.
+James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
+the VCR</citetitle> (New York: W. W. Norton, 1987), 270–71.
</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.
</para>
<para>
The anticircumvention provisions of the DMCA target copyright
-circumvention technologies. Circumvention technologies can be used
-for different ends. They can be used, for example, to enable massive
- pirating
-of copyrighted material—a bad end. Or they can be used to
- enable
-the use of particular copyrighted materials in ways that would be
-considered fair use—a good end.
+circumvention technologies. Circumvention technologies can be used for
+different ends. They can be used, for example, to enable massive
+pirating of copyrighted material—a bad end. Or they can be used
+to enable the use of particular copyrighted materials in ways that
+would be considered fair use—a good end.
</para>
<para>
A handgun can be used to shoot a police officer or a child. Most
<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.
-</para>
-<para>
-The Aibo and RIAA examples demonstrate how copyright owners
-are changing the balance that copyright law grants. Using code,
- copyright
-owners restrict fair use; using the DMCA, they punish those who
-would attempt to evade the restrictions on fair use that they impose
-through code. Technology becomes a means by which fair use can be
-erased; the 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.
-</para>
-<para>
-There is one final aspect of the interaction between architecture
-and law that contributes to the force of copyright's regulation. This is
+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.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
+</para>
+<para>
+The Aibo and RIAA examples demonstrate how copyright owners are
+changing the balance that copyright law grants. Using code, copyright
+owners restrict fair use; using the DMCA, they punish those who would
+attempt to evade the restrictions on fair use that they impose through
+code. Technology becomes a means by which fair use can be erased; the
+law of the DMCA backs up that erasing.
+</para>
+<para>
+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
+law that contributes to the force of copyright's regulation. This is
the ease with which infringements of the law can be detected. For
contrary to the rhetoric common at the birth of cyberspace that on the
-Internet, no one knows you're a dog, increasingly, given changing
- technologies
-deployed on the Internet, it is easy to find the dog who
- committed
-a legal wrong. The technologies of the Internet are open to
-snoops as well as sharers, and the snoops are increasingly good at
- tracking
-down the identity of those who violate the rules.
+Internet, no one knows you're a dog, increasingly, given changing
+technologies deployed on the Internet, it is easy to find the dog who
+committed a legal wrong. The technologies of the Internet are open to
+snoops as well as sharers, and the snoops are increasingly good at
+tracking down the identity of those who violate the rules.
</para>
<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>
+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.
+Copyright, Fan Fiction, and a New Common Law," <citetitle>Loyola of Los Angeles
+Entertainment Law Journal</citetitle> 17 (1997): 651.
</para></footnote>
</para>
<para>
-Before the Internet, this was, in effect, a totally unregulated
- activity.
-No matter what happened inside your club room, you would never
-be interfered with by the copyright police. You were free in 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.
+Before the Internet, this was, in effect, a totally unregulated
+activity. No matter what happened inside your club room, you would
+never be interfered with by the copyright police. You were free in
+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>
<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
- scouring
-the Net for trademark and copyright infringement would quickly
-find your site. Your posting of fan fiction, depending upon the
- ownership
-of the series that you're depicting, could well inspire a lawyer's
-threat. And ignoring the lawyer's threat would be extremely costly
- indeed.
-The law of copyright is extremely efficient. The penalties are
- severe,
-and the process is quick.
+available for others to join, the story would be very different. Bots
+scouring the Net for trademark and copyright infringement would
+quickly find your site. Your posting of fan fiction, depending upon
+the ownership of the series that you're depicting, could well inspire
+a lawyer's threat. And ignoring the lawyer's threat would be extremely
+costly indeed. The law of copyright is extremely efficient. The
+penalties are severe, and the process is quick.
</para>
<para>
This change in the effective force of the law is caused by a change
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 the past
-thirty years. And copyright's scope has increased as well—from
- regulating
-only publishers to now regulating just about everyone. And
-copyright's reach has changed, as every action becomes a copy and
-hence presumptively regulated. And as technologists find better ways
+So copyright's duration has increased dramatically—tripled in
+the past thirty years. And copyright's scope has increased as
+well—from regulating only publishers to now regulating just
+about everyone. And copyright's reach has changed, as every action
+becomes a copy and hence presumptively regulated. And as technologists
+find better ways
<!-- PAGE BREAK 173 -->
-to control the use of content, and as copyright is increasingly enforced
-through technology, copyright's force changes, too. Misuse is easier to
-find and easier to control. This regulation of the creative process, which
-began as a tiny regulation governing a tiny part of the market for
- creative
-work, has become the single most important regulator of
- creativity
-there is. It is a massive expansion in the scope of the government's
-control over innovation and creativity; it would be totally
- unrecognizable
-to those who gave birth to copyright's control.
+to control the use of content, and as copyright is increasingly
+enforced through technology, copyright's force changes, too. Misuse is
+easier to find and easier to control. This regulation of the creative
+process, which began as a tiny regulation governing a tiny part of the
+market for creative work, has become the single most important
+regulator of creativity there is. It is a massive expansion in the
+scope of the government's control over innovation and creativity; it
+would be totally unrecognizable to those who gave birth to copyright's
+control.
</para>
<para>
Still, in my view, all of these changes would not matter much if it
<para>
This is the change in the concentration and integration of the media.
In the past twenty years, the nature of media ownership has undergone
-a radical alteration, caused by changes in legal rules governing the
- media.
-Before this change happened, the different forms of media were
+a radical alteration, caused by changes in legal rules governing the
+media. Before this change happened, the different forms of media were
owned by separate media companies. Now, the media is increasingly
-owned by only a few companies. Indeed, after the changes that the
-FCC announced in June 2003, most expect that within a few years, we
-will live in a world where just three companies control more than
-percent of the media.
+owned by only a few companies. Indeed, after the changes that the FCC
+announced in June 2003, most expect that within a few years, we will
+live in a world where just three companies control more than percent
+of the media.
</para>
<para>
These changes are of two sorts: the scope of concentration, and its
ownership, "five companies control 85 percent of our media sources."<footnote><para>
<!-- f25 -->
FCC Oversight: Hearing Before the Senate Commerce, Science and
-Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
- (statement
-of Senator John McCain).
-</para></footnote>
-The five recording labels of Universal Music Group, BMG, Sony
- Music
-Entertainment, Warner Music Group, and EMI control 84.8
- percent
-of the U.S. music market.<footnote><para>
+Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
+(statement of Senator John McCain). </para></footnote>
+The five recording labels of Universal Music Group, BMG, Sony Music
+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.
+Slide," <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>
<!-- f27 -->
-Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
+Molly Ivins, "Media Consolidation Must Be Stopped," <citetitle>Charleston Gazette</citetitle>,
31 May 2003.
</para></footnote>
+<indexterm><primary>BMG</primary></indexterm>
+<indexterm><primary>EMI</primary></indexterm>
+<indexterm><primary>McCain, John</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
+<indexterm><primary>Warner Music Group</primary></indexterm>
</para>
<para>
The story with radio is even more dramatic. Before deregulation,
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.
-</para>
-<para>
-Newspaper ownership is becoming more concentrated as well.
- Today,
-there are six hundred fewer daily newspapers in the United States
-than there were eighty years ago, and ten companies control half of the
+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>
+<para>
+Newspaper ownership is becoming more concentrated as well. Today,
+there are six hundred fewer daily newspapers in the United States than
+there were eighty years ago, and ten companies control half of the
nation's circulation. There are twenty major newspaper publishers in
the United States. The top ten film studios receive 99 percent of all
-film revenue. The ten largest cable companies account for 85 percent of
-all cable revenue. This is a market far from the free press the framers
-sought to protect. Indeed, it is a market that is quite well protected—
-by the market.
+film revenue. The ten largest cable companies account for 85 percent
+of all cable revenue. This is a market far from the free press the
+framers sought to protect. Indeed, it is a market that is quite well
+protected— by the market.
</para>
<para>
Concentration in size alone is one thing. The more invidious
change is in the nature of that concentration. As author James Fallows
put it in a recent article about Rupert Murdoch,
+<indexterm><primary>Fallows, James</primary></indexterm>
</para>
<blockquote>
<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
- 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
-through which the content reaches the customers. Murdoch's
-satellite systems now distribute News Corp. content in Europe
-and Asia; if Murdoch becomes DirecTV's largest single owner,
-that system will serve the same function in the United States.<footnote><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
+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
+through which the content reaches the customers. Murdoch's satellite
+systems now distribute News Corp. content in Europe and Asia; if
+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, "The Age of Murdoch," <citetitle>Atlantic Monthly</citetitle> (September
2003): 89.
+<indexterm><primary>Fallows, James</primary></indexterm>
</para></footnote>
</para>
</blockquote>
contrary, I am beginning to change my mind.
</para>
<para>
-Here's a representative story that begins to suggest how this
- integration
-may matter.
+Here's a representative story that begins to suggest how this
+integration may matter.
</para>
+<indexterm><primary>Lear, Norman</primary></indexterm>
<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.
control.<footnote><para>
<!-- f29 -->
Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
-Forum, "Entertainment Economics: The Movie Industry," St. Louis,
- Missouri,
-3 April 2003 (transcript of prepared remarks available at
+Forum, "Entertainment Economics: The Movie Industry," St. Louis,
+Missouri, 3 April 2003 (transcript of prepared remarks available at
<ulink url="http://free-culture.cc/notes/">link #28</ulink>;
for the Lear story, not included in the prepared remarks, see
<ulink url="http://free-culture.cc/notes/">link #29</ulink>).
<para>
<!-- PAGE BREAK 176 -->
-The network did not control those copyrights because the law
- forbade
-the networks from controlling the content they syndicated. The
-law 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 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, 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 new series were produced independently of conglomerate control,
-last year there was one."<footnote><para>
+The network did not control those copyrights because the law forbade
+the networks from controlling the content they syndicated. The law
+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
+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,
+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
+new series were produced independently of conglomerate control, last
+year there was one."<footnote><para>
<!-- f30 -->
-NewsCorp./DirecTV Merger and Media Consolidation: Hearings on
-Media Ownership Before the Senate Commerce Committee, 108th
-Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of
- Consumers
-Union and the Consumer Federation of America), available at
-<ulink url="http://free-culture.cc/notes/">link #30</ulink>. Kimmelman quotes Victoria Riskin, president of Writers Guild of
-America, West, in her Remarks at FCC En Banc Hearing, Richmond,
-Virginia, 27 February 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 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%."<footnote><para>
+NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
+Ownership Before the Senate Commerce Committee, 108th Cong., 1st
+sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
+and the Consumer Federation of America), available at
+<ulink url="http://free-culture.cc/notes/">link #30</ulink>. Kimmelman
+quotes Victoria Riskin, president of Writers Guild of America, West,
+in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
+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
+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%."<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>
<para>
-While the number of channels has increased dramatically, the
- ownership
-of those channels has narrowed to an ever smaller and smaller
-few. As Barry Diller said to Bill Moyers,
+While the number of channels has increased dramatically, the ownership
+of those channels has narrowed to an ever smaller and smaller few. As
+Barry Diller said to Bill Moyers,
+<indexterm><primary>Diller, Barry</primary></indexterm>
+<indexterm><primary>Moyers, Bill</primary></indexterm>
</para>
<blockquote>
<para>
through their controlled distribution system, then what you get is
fewer and fewer actual voices participating in the process. [We
<!-- PAGE BREAK 177 -->
-u]sed to have dozens and dozens of thriving independent
- production
-companies producing television programs. Now you have less
-than a handful.<footnote><para>
+u]sed to have dozens and dozens of thriving independent production
+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
+"Barry Diller Takes on Media Deregulation," <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>
</para>
</blockquote>
<para>
-This narrowing has an effect on what is produced. The product of
-such large and concentrated networks is increasingly homogenous.
- Increasingly
-safe. Increasingly sterile. The product of news shows from
-networks like this is increasingly tailored to the message the network
-wants to convey. This is not the communist party, though from the
- inside,
-it must feel a bit like the communist party. No one can question
-without risk of consequence—not necessarily banishment to Siberia,
-but punishment nonetheless. Independent, critical, different views are
-quashed. This is not the environment for a democracy.
+This narrowing has an effect on what is produced. The product of such
+large and concentrated networks is increasingly homogenous.
+Increasingly safe. Increasingly sterile. The product of news shows
+from networks like this is increasingly tailored to the message the
+network wants to convey. This is not the communist party, though from
+the inside, it must feel a bit like the communist party. No one can
+question without risk of consequence—not necessarily banishment
+to Siberia, but punishment nonetheless. Independent, critical,
+different views are quashed. This is not the environment for a
+democracy.
</para>
+<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
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 (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): 23551. 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 (New York: Currency/Doubleday, 2001).
-</para></footnote>
-
- Lumbering
-giants not only don't, but should not, sprint. Yet if the field is
-only open to the giants, there will be far too little sprinting.
+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," <citetitle>Research Policy</citetitle> 14 (1985):
+235–51. For a more recent study, see Richard Foster and Sarah
+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
+field is only open to the giants, there will be far too little
+sprinting.
+<indexterm><primary>Christensen, Clayton M.</primary></indexterm>
</para>
<para>
I don't think we know enough about the economics of the media
mistake. I am not pro drugs. Indeed, I come from a family once
<!-- PAGE BREAK 178 -->
-wrecked by drugs—though the drugs that wrecked my family were all
-quite legal. I believe this war is a profound mistake because the
- collateral
-damage from it is so great as to make waging the war insane.
-When you add together the burdens on the criminal justice system, the
-desperation of generations of kids whose only real economic
- opportunities
-are as drug warriors, the queering of constitutional protections
- because
-of the constant surveillance this war requires, and, most profoundly,
-the total destruction of the legal systems of many South American
- nations
-because of the power of the local drug cartels, I find it impossible
-to believe that the marginal benefit in reduced drug consumption by
-Americans could possibly outweigh these costs.
-</para>
-<para>
-You may not be convinced. That's fine. We live in a democracy, and
-it is through votes that we are to choose policy. But to do that, we
- depend
-fundamentally upon the press to help inform Americans about
+wrecked by drugs—though the drugs that wrecked my family were
+all quite legal. I believe this war is a profound mistake because the
+collateral damage from it is so great as to make waging the war
+insane. When you add together the burdens on the criminal justice
+system, the desperation of generations of kids whose only real
+economic opportunities are as drug warriors, the queering of
+constitutional protections because of the constant surveillance this
+war requires, and, most profoundly, the total destruction of the legal
+systems of many South American nations because of the power of the
+local drug cartels, I find it impossible to believe that the marginal
+benefit in reduced drug consumption by Americans could possibly
+outweigh these costs.
+</para>
+<para>
+You may not be convinced. That's fine. We live in a democracy, and it
+is through votes that we are to choose policy. But to do that, we
+depend fundamentally upon the press to help inform Americans about
these issues.
</para>
<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 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 damage from the war. One advances an argument in favor of
-drug legalization. The other responds in a powerful and effective way
-against the argument of the first. In the end, the first guy changes his
-mind (hey, it's television). The plug at the end is a damning attack on
-the pro-legalization campaign.
+Beginning in 1998, the Office of National Drug Control Policy launched
+a media campaign as part of the "war on drugs." 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
+damage from the war. One advances an argument in favor of drug
+legalization. The other responds in a powerful and effective way
+against the argument of the first. In the end, the first guy changes
+his mind (hey, it's television). The plug at the end is a damning
+attack on the pro-legalization campaign.
</para>
<para>
Fair enough. It's a good ad. Not terribly misleading. It delivers its
<para>
But let's say you think it is a wrong message, and you'd like to run a
countercommercial. Say you want to run a series of ads that try to
-demonstrate the extraordinary collateral harm that comes from the
-drug war. Can you do it?
+demonstrate the extraordinary collateral harm that comes from the drug
+war. Can you do it?
</para>
<para>
Well, obviously, these ads cost lots of money. Assume you raise the
<!-- PAGE BREAK 179 -->
money. Assume a group of concerned citizens donates all the money in
-the world to help you get your message out. Can you be sure your
- message
-will be heard then?
+the world to help you get your message out. Can you be sure your
+message will be heard then?
</para>
<para>
-No. You cannot. Television stations have a general policy of
- avoiding
+No. You cannot. Television stations have a general policy of avoiding
"controversial" 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 the right to
-choose what they run. Thus, the major channels of commercial media
-will refuse one side of a crucial debate the opportunity to present its case.
-
And the courts will defend the rights of the stations to be this biased.<footnote><para>
+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
+the right to choose what they run. Thus, the major channels of
+commercial media will refuse one side of a crucial debate the
+opportunity to present its case. And the courts will defend the
+rights of the stations to be this biased.<footnote><para>
<!-- 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 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 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 Hoc Access: The Regulation of Editorial
- Advertising
-on Television and Radio," Yale Law and Policy Review 6 (1988):
-44979, 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 (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
-<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground was
-that the criticism was "too controversial."
-</para></footnote>
-</para>
-<para>
-I'd be happy to defend the networks' rights, as well—if we lived in
-a media market that was truly diverse. But concentration in the media
-throws that condition into doubt. If a handful of companies control
- access
-to the media, and that handful of companies gets to decide which
-political positions it will allow to be promoted on its channels, then in
-an obvious and important way, concentration matters. You might like
-the positions the handful of companies 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">
+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
+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," <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
+Hoc Access: The Regulation of Editorial Advertising on Television and
+Radio," <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
+<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
+<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
+was that the criticism was "too controversial."
+<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>
+</para></footnote>
+</para>
+<para>
+I'd be happy to defend the networks' rights, as well—if we lived
+in a media market that was truly diverse. But concentration in the
+media throws that condition into doubt. If a handful of companies
+control access to the media, and that handful of companies gets to
+decide which political positions it will allow to be promoted on its
+channels, then in an obvious and important way, concentration
+matters. You might like the positions the handful of companies
+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>
+</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." In
-the abstract, it is obviously true and, ordinarily, totally harmless. No
-sane sort who is not an anarchist could disagree.
+There is something innocent and obvious about the claim of the
+copyright warriors that the government should "protect my property."
+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—
-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 to seem
+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
+to seem
<!-- PAGE BREAK 180 -->
-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 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.
+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
+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.
</para>
<para>
Not starkly. Or absolutely. My point is not that we should abolish
our culture today.
</para>
<para>
-But there is a space between zero and one, Internet culture
- notwithstanding.
-And these massive shifts in the effective power of copyright
-regulation, tied to increased concentration of the content industry and
-resting in the hands of technology that will increasingly enable control
-over the use of culture, should drive us to consider whether another
- adjustment
-is called for. Not an adjustment that increases copyright's
-power. Not an adjustment that increases its term. Rather, an
- adjustment
-to restore the balance that has traditionally defined copyright's
-regulation—a weakening of that regulation, to strengthen creativity.
+But there is a space between zero and one, Internet culture
+notwithstanding. And these massive shifts in the effective power of
+copyright regulation, tied to increased concentration of the content
+industry and resting in the hands of technology that will increasingly
+enable control over the use of culture, should drive us to consider
+whether another adjustment is called for. Not an adjustment that
+increases copyright's power. Not an adjustment that increases its
+term. Rather, an adjustment to restore the balance that has
+traditionally defined copyright's regulation—a weakening of that
+regulation, to strengthen creativity.
</para>
<para>
-Copyright law has not been a rock of Gibraltar. It's not a set of
- constant
-commitments that, for some mysterious reason, teenagers and
+Copyright law has not been a rock of Gibraltar. It's not a set of
+constant commitments that, for some mysterious reason, teenagers and
geeks now flout. Instead, copyright power has grown dramatically in a
short period of time, as the technologies of distribution and creation
-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.
+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 <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
we see only after surveying the range of these changes. When you add
<!-- 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.
+changing technology, together they produce an astonishing conclusion:
+<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
-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
+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. <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
-copyright law in the digital age. See Vaidhyanathan, 15960.
+copyright law in the digital age. See Vaidhyanathan, 159–60.
+<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
</para>
<para>
</para>
<para>
At the start of this book, I distinguished between commercial and
-noncommercial culture. In the course of this chapter, I have
- distinguished
-between copying a work and transforming it. We can now
+noncommercial culture. In the course of this chapter, I have
+distinguished between copying a work and transforming it. We can now
combine these two distinctions and draw a clear map of the changes
-that copyright law has undergone.
-In 1790, the law looked like this:
+that copyright law has undergone. In 1790, the law looked like this:
</para>
-<table id="t2">
-<title></title>
+<informaltable id="t2">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
The act of publishing a map, chart, and book was regulated by
By the end of the nineteenth century, the law had changed to this:
</para>
-<table id="t3">
-<title></title>
+<informaltable id="t3">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
-Derivative works were now regulated by copyright law—if
- published,
-which again, given the economics of publishing at the time,
+Derivative works were now regulated by copyright law—if
+published, which again, given the economics of publishing at the time,
means if offered commercially. But noncommercial publishing and
transformation were still essentially free.
</para>
<para>
-In 1909 the law changed to regulate copies, not publishing, and
- after
+In 1909 the law changed to regulate copies, not publishing, and after
this change, the scope of the law was tied to technology. As the
-technology of copying became more prevalent, the reach of the law
- expanded.
-Thus by 1975, as photocopying machines became more
- common,
+technology of copying became more prevalent, the reach of the law
+expanded. Thus by 1975, as photocopying machines became more common,
we could say the law began to look like this:
</para>
-<table id="t4">
-<title></title>
+<informaltable id="t4">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
-The law was interpreted to reach noncommercial copying through,
-say, copy machines, but still much of copying outside of the
- commercial
-market remained free. But the consequence of the emergence of
-digital technologies, especially in the context of a digital network,
-means that the law now looks like this:
+The law was interpreted to reach noncommercial copying through, say,
+copy machines, but still much of copying outside of the commercial
+market remained free. But the consequence of the emergence of digital
+technologies, especially in the context of a digital network, means
+that the law now looks like this:
</para>
-<table id="t5">
-<title></title>
+<informaltable id="t5">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
-Every realm is governed by copyright law, whereas before most
- creativity
-was not. The law now regulates the full range of creativity—
+Every realm is governed by copyright law, whereas before most
+creativity was not. The law now regulates the full range of
+creativity—
<!-- PAGE BREAK 183 -->
-commercial or not, transformative or not—with the same rules designed
-to regulate commercial publishers.
+commercial or not, transformative or not—with the same rules
+designed to regulate commercial publishers.
</para>
<para>
Obviously, copyright law is not the enemy. The enemy is regulation
<para>
I have no doubt that it does good in regulating commercial copying.
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.
+regulating (as it regulates just now) noncommercial copying and,
+especially, noncommercial transformation. And increasingly, for the
+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
-property, the state ought to protect it. But first impressions
- notwithstanding,
-
historically, this property right (as with all property rights<footnote><para>
+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 Pennock and John W.
-Chapman, eds. (New York: New York University Press, 1980).
+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 <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.
+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 <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>
<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
-granting copyright owners protection for a limited time only (the story
-of chapter 6). The tradition of "fair use" 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
+granting copyright owners protection for a limited time only (the
+story of chapter 6). The tradition of "fair use" 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
<!-- PAGE BREAK 184 -->
statutory rights where markets might stifle innovation is another
- familiar
-limit on the property right that copyright is (chapter 8). And
- granting
-archives and libraries a broad freedom to collect, claims of property
-notwithstanding, is a crucial part of guaranteeing the soul of a culture
-(chapter 9). Free cultures, like free markets, are built with property. But
-the nature of the property that builds a free culture is very different
-from the extremist vision that dominates the debate today.
-</para>
-<para>
-Free culture is increasingly the casualty in this war on piracy. In
- response
-to a real, if not yet quantified, threat that the technologies of the
-Internet present to twentieth-century business models for producing
-and distributing culture, the law and technology are being transformed
-in a way that will undermine our tradition of free culture. The property
-right that is copyright is no longer the balanced right that it was, or
-was intended to be. The property right that is copyright has become
-unbalanced, tilted toward an extreme. The opportunity to create and
-transform becomes weakened in a world in which creation requires
-permission and creativity must check with a lawyer.
+familiar limit on the property right that copyright is (chapter
+8). And granting archives and libraries a broad freedom to collect,
+claims of property notwithstanding, is a crucial part of guaranteeing
+the soul of a culture (chapter 9). Free cultures, like free markets,
+are built with property. But the nature of the property that builds a
+free culture is very different from the extremist vision that
+dominates the debate today.
+</para>
+<para>
+Free culture is increasingly the casualty in this war on piracy. In
+response to a real, if not yet quantified, threat that the
+technologies of the Internet present to twentieth-century business
+models for producing and distributing culture, the law and technology
+are being transformed in a way that will undermine our tradition of
+free culture. The property right that is copyright is no longer the
+balanced right that it was, or was intended to be. The property right
+that is copyright has become unbalanced, tilted toward an extreme. The
+opportunity to create and transform becomes weakened in a world in
+which creation requires permission and creativity must check with a
+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>
-<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>"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>
-<!-- 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
+<!-- f1. -->
+H. G. Wells, "The Country of the Blind" (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, 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 villagers to explore life as a king.
+The valley is extraordinarily beautiful, with "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
+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.
- 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 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!'"
+"blind." 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
+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!'"
</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 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."
-</para>
-<para>
-When Nunez announces his desire to marry his "mysteriously
- delighted"
+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
+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."
+</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.
+father instructs, "he's an idiot. He has delusions. He can't do
+anything right." They take Nunez to the village doctor.
</para>
<para>
After a careful examination, the doctor gives his opinion. "His brain
is affected," 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."
+"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."
</para>
<para>
The doctor continues: "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]."
+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]."
</para>
<para>
-"Thank Heaven for science!" says the father to the doctor. They
- inform
+"Thank Heaven for science!" 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.)
+(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
<!-- PAGE BREAK 188 -->
-plot for murder mysteries. "But the DNA shows with 100 percent
- certainty
-that she was not the person whose blood was at the scene. . . ."
+plot for murder mysteries. "But the DNA shows with 100 percent
+certainty that she was not the person whose blood was at the
+scene. …"
</para>
+<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.
+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.
</para>
<para>
-The more I work to understand the current struggle over copyright
-and culture, which I've sometimes called unfairly, and sometimes not
+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 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 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 recording company no
-doubt did as a kid: sharing music.
+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
+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
+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
+recording company no doubt did as a kid: sharing music.
</para>
<para>
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
+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
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 "we have always been allowed to do," we have not always been
+allowed to share music with "our ten thousand best friends."
</para>
<para>
Likewise, when the other side says, "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 (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.
+with it," 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>
<!-- PAGE BREAK 189 -->
But it is not quite stealing from Tower. After all, when I take a CD
-from Tower Records, Tower has one less CD to sell. And when I take
-a CD from Tower Records, I get a bit of plastic and a cover, and
- something
-to show on my shelves. (And, while we're at it, we could also note
-that when I take a CD from Tower Records, the maximum fine that
-might be imposed on me, under California law, at least, is $1,000.
- According
-to the RIAA, by contrast, if I download a ten-song CD, I'm
- liable
-for $1,500,000 in damages.)
-</para>
-<para>
-The point is not that it is as neither side describes. The point is that
-it is both—both as the RIAA describes it and as Kazaa describes it. It
-is a chimera. And rather than simply denying what the other side
- asserts,
-we need to begin to think about how we should respond to this
-chimera. What rules should govern it?
+from Tower Records, Tower has one less CD to sell. And when I take a
+CD from Tower Records, I get a bit of plastic and a cover, and
+something to show on my shelves. (And, while we're at it, we could
+also note that when I take a CD from Tower Records, the maximum fine
+that might be imposed on me, under California law, at least, is
+$1,000. According to the RIAA, by contrast, if I download a ten-song
+CD, I'm liable for $1,500,000 in damages.)
+</para>
+<para>
+The point is not that it is as neither side describes. The point is
+that it is both—both as the RIAA describes it and as Kazaa
+describes it. It is a chimera. And rather than simply denying what the
+other side asserts, we need to begin to think about how we should
+respond to this chimera. What rules should govern it?
</para>
<para>
We could respond by simply pretending that it is not a chimera. We
-could, with the RIAA, decide that every act of file sharing should be a
-felony. We could prosecute families for millions of dollars in damages
-just because file sharing occurred on a family computer. And we can get
-universities to monitor all computer traffic to make sure that no
- computer
-is used to commit this crime. These responses might be extreme,
-but each of them has either been proposed or actually implemented.<footnote><para>
-<!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
-Berkman Center for Internet and Society at Harvard Law School,
- "Copyright
-and Digital Media in a Post-Napster World," 27 June 2003, available
-at
-<ulink url="http://free-culture.cc/notes/">link #33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
-(D-Calif.) have introduced a bill that would treat unauthorized on-line
-copying as a felony offense with punishments ranging as high as five years
-imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy,"
-Los Angeles Times, 17 July 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil penalties are
-currently set at $150,000 per copied song. For a recent (and unsuccessful)
-legal challenge to the RIAA's demand that an ISP reveal the identity of a
-user accused of sharing more than 600 songs through a family computer,
-see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F.
-Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as
-high as $90 million. Such astronomical figures furnish the RIAA with a
-powerful arsenal in its prosecution of file sharers. Settlements ranging
-from $12,000 to $17,500 for four students accused of heavy file sharing on
-university networks must have seemed a mere pittance next to the $98
- billion
-the RIAA could seek should the matter proceed to court. See
- Elizabeth
-Young, "Downloading Could Lead to Fines," redandblack.com,
-August 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an example of the RIAA's
- targeting
-of student file sharing, and of the subpoenas issued to universities to
-reveal student file-sharer identities, see James Collins, "RIAA Steps Up
-Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003,
-D3, available at
+could, with the RIAA, decide that every act of file sharing should be
+a felony. We could prosecute families for millions of dollars in
+damages just because file sharing occurred on a family computer. And
+we can get universities to monitor all computer traffic to make sure
+that no computer is used to commit this crime. These responses might
+be extreme, but each of them has either been proposed or actually
+implemented.<footnote><para>
+<!-- f2. -->
+For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+"Copyright and Digital Media in a Post-Napster World," 27 June 2003,
+available at
+<ulink url="http://free-culture.cc/notes/">link
+#33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized
+on-line copying as a felony offense with punishments ranging as high
+as five years imprisonment; see Jon Healey, "House Bill Aims to Up
+Stakes on Piracy," <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 <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,
+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," <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'/>
<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 no copyright liability, either civil or criminal, for making
- copyrighted
-content available on the Net. Make file sharing like gossip:
- regulated,
-if at all, by social norms but not by law.
+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
+no copyright liability, either civil or criminal, for making
+copyrighted content available on the Net. Make file sharing like
+gossip: regulated, if at all, by social norms but not by law.
</para>
<para>
Either response is possible. I think either would be a mistake.
Rather than embrace one of these two extremes, we should embrace
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.
+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 <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>
<!-- PAGE BREAK 190 -->
Yet zero tolerance is increasingly our government's policy. In the
-middle of the chaos that the Internet has created, an extraordinary land
-grab is occurring. The law and technology are being shifted to give
- content
-holders a kind of control over our culture that they have never had
-before. And in this extremism, many an opportunity for new
- innovation
-and new creativity will be lost.
+middle of the chaos that the Internet has created, an extraordinary
+land grab is occurring. The law and technology are being shifted to
+give content holders a kind of control over our culture that they have
+never had before. And in this extremism, many an opportunity for new
+innovation and new creativity will be lost.
</para>
<para>
I'm not talking about the opportunities for kids to "steal" 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
- innovation
-that this power will unleash. Yet the Internet has already seen the
-passing of one cycle of innovation around technologies to distribute
-content. The law is responsible for this passing. As the vice president
-for global public policy at one of these new innovators, eMusic.com,
-put it when criticizing the DMCA's added protection for copyrighted
-material,
+broadly among our citizens, and we have just begun to see the
+innovation that this power will unleash. Yet the Internet has already
+seen the passing of one cycle of innovation around technologies to
+distribute content. The law is responsible for this passing. As the
+vice president for global public policy at one of these new
+innovators, eMusic.com, put it when criticizing the DMCA's added
+protection for copyrighted material,
</para>
<blockquote>
<para>
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 -->
In April 2001, eMusic.com was purchased by Vivendi Universal,
one of "the major labels." 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.
+launched a war. Lobbying and lots of campaign contributions have now
+brought the government into this war. As with any war, this one will
+have both direct and collateral damage. As with any war of
+prohibition, these damages will be suffered most by our own people.
</para>
<para>
My aim so far has been to describe the consequences of this war, in
-particular, the consequences for "free culture." But my aim now is to
- extend
-this description of consequences into an argument. Is this war
- justified?
+particular, the consequences for "free culture." But my aim now is to
+extend this description of consequences into an argument. Is this war
+justified?
</para>
<para>
In my view, it is not. There is no good reason why this time, for the
power of the property called "intellectual property" 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 the side of the Causbys and the content industry. The extreme
-claims of control in the name of property still resonate; the uncritical
+Yet "common sense" 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.
</para>
<para>
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 technologies.
-These technologies will enable almost anyone to capture and share
-content. Capturing and sharing content, of course, is what humans have
-done since the dawn of man. It is how we learn and communicate. But
-capturing and sharing through digital technology is different. The
- fidelity
-and power are different. You could send an e-mail telling
- someone
-about a joke you saw on Comedy Central, or you could send the
-clip. You could write an essay about the inconsistencies in the
- arguments
-of the politician you most love to hate, or you could make a short
-film that puts statement against statement. You could write a poem to
-express your love, or you could weave together a string—a mash-up—
-of songs from your favorite artists in a collage and make it available on
-the Net.
+In the next ten years we will see an explosion of digital
+technologies. These technologies will enable almost anyone to capture
+and share content. Capturing and sharing content, of course, is what
+humans have done since the dawn of man. It is how we learn and
+communicate. But capturing and sharing through digital technology is
+different. The fidelity and power are different. You could send an
+e-mail telling someone about a joke you saw on Comedy Central, or you
+could send the clip. You could write an essay about the
+inconsistencies in the arguments of the politician you most love to
+hate, or you could make a short film that puts statement against
+statement. You could write a poem to express your love, or you could
+weave together a string—a mash-up— of songs from your
+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
-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
- 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 the culture
-all around.
+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
+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
+the culture all around.
</para>
<para>
Technology has thus given us an opportunity to do something with
culture that has only ever been possible for individuals in small groups,
<!-- PAGE BREAK 194 -->
-isolated from others. Think about an old man telling a story to a
- collection
-of neighbors in a small town. Now imagine that same
- storytelling
-extended across the globe.
+
+isolated from others. Think about an old man telling a story to a
+collection of neighbors in a small town. Now imagine that same
+storytelling extended across the globe.
</para>
<para>
Yet all this is possible only if the activity is presumptively legal. In
work is presumptively illegal.
</para>
<para>
-That presumption will increasingly chill creativity, as the examples
-of extreme penalties for vague infringements continue to proliferate. It
-is impossible to get a clear sense of what's allowed and what's not, and at
-the same time, the penalties for crossing the line are astonishingly harsh.
-The four students who were threatened by the RIAA ( Jesse Jordan of
-chapter 3 was just one) were threatened with a $98 billion lawsuit for
-building search engines that permitted songs to be copied. Yet
- World-Com—which
-defrauded investors of $11 billion, resulting in a loss to
- investors
-in market capitalization 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
- (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
+That presumption will increasingly chill creativity, as the
+examples of extreme penalties for vague infringements continue to
+proliferate. It is impossible to get a clear sense of what's allowed
+and what's not, and at the same time, the penalties for crossing the
+line are astonishingly harsh. The four students who were threatened
+by the RIAA ( Jesse Jordan of chapter 3 was just one) were threatened
+with a $98 billion lawsuit for building search engines that permitted
+songs to be copied. Yet World-Com—which defrauded investors of
+$11 billion, resulting in a loss to investors in market capitalization
+of over $200 billion—received a fine of a mere $750
+million.<footnote><para>
+<!-- f1. -->
+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
<ulink url="http://free-culture.cc/notes/">link #37</ulink>.
+<indexterm><primary>Worldcom</primary></indexterm>
</para></footnote>
- And under legislation being pushed in Congress
-right now, a doctor who negligently removes the wrong leg in an
- operation
-would be liable for no more than $250,000 in damages for pain and
-
suffering.<footnote><para>
+And under legislation being pushed in Congress right now, a doctor who
+negligently removes the wrong leg in an operation would be liable for
+no more than $250,000 in damages for pain and
+suffering.<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,'
available at
<ulink url="http://free-culture.cc/notes/">link #39</ulink>. President Bush has continued to urge tort reform in
recent months.
+<indexterm><primary>Bush, George W.</primary></indexterm>
</para></footnote>
- Can common sense recognize the absurdity in a world where
+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>
<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 "pirates." 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 "illegal art" tour the United
+States.<footnote><para>
+<!-- f3. -->
+
+See Danit Lidor, "Artists Just Wanna Be Free," <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>
critical or reflective.
</para>
<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 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 courts to order Internet
-service providers to reveal who has what content. It is as if your cassette
-tape player transmitted a list of the songs that you played in the privacy
-of your own home that anyone could tune into for whatever reason
-they chose.
+Part of the reason for this fear of illegality has to do with the
+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
+courts to order Internet service providers to reveal who has what
+content. It is as if your cassette tape player transmitted a list of
+the songs that you played in the privacy of your own home that anyone
+could tune into for whatever reason they chose.
</para>
<para>
Never in our history has a painter had to worry about whether
</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>
<!-- PAGE BREAK 196 -->
But fair use in America simply means the right to hire a lawyer to
defend your right to create. And as lawyers love to forget, our system
-for defending rights such as fair use is astonishingly bad—in practically
-every context, but especially here. It costs too much, it delivers too
-slowly, and what it delivers often has little connection to the justice
- underlying
-the claim. The legal system may be tolerable for the very rich.
-For everyone else, it is an embarrassment to a tradition that prides
- itself
-on the rule of law.
-</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 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 comfort themselves.
-</para>
-<para>
-For in a world that threatens $150,000 for a single willful
- infringement
-of a copyright, and which demands tens of thousands of dollars to
-even defend against a copyright infringement claim, and 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 a studied blindness for
-people to continue to believe they live in a culture that is free.
-</para>
-<para>
-As Jed Horovitz, the businessman behind Video Pipeline, said
-to me,
+for defending rights such as fair use is astonishingly bad—in
+practically every context, but especially here. It costs too much, it
+delivers too slowly, and what it delivers often has little connection
+to the justice underlying the claim. The legal system may be tolerable
+for the very rich. For everyone else, it is an embarrassment to a
+tradition that prides itself on the rule of law.
+</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
+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
+comfort themselves.
+</para>
+<para>
+For in a world that threatens $150,000 for a single willful
+infringement of a copyright, and which demands tens of thousands of
+dollars to even defend against a copyright infringement claim, and
+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
+a studied blindness for people to continue to believe they live in a
+culture that is free.
+</para>
+<para>
+As Jed Horovitz, the businessman behind Video Pipeline, said to me,
</para>
<blockquote>
<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 going to get it distributed in the mainstream media unless
+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
+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 permission. That's the point at which they control it.
+cleared." 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>
<para>
-The story of the last section was a crunchy-lefty story—creativity
-quashed, artists who can't speak, yada yada yada. Maybe that doesn't
-get you going. Maybe you think there's enough weird art out there, and
-enough expression that is critical of what seems to be just about
- everything.
-And if you think that, you might think there's little in this story
-to worry you.
+The story of the last section was a crunchy-lefty
+story—creativity quashed, artists who can't speak, yada yada
+yada. Maybe that doesn't get you going. Maybe you think there's enough
+weird art out there, and enough expression that is critical of what
+seems to be just about everything. And if you think that, you might
+think there's little in this story to worry you.
</para>
<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 affecting culture are more
-fundamental.
+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
+affecting culture are more fundamental.
</para>
<para>
The charge I've been making about the regulation of culture is the
-same charge free marketers make about regulating markets. Everyone,
-of course, concedes that some regulation of markets is necessary—at a
-minimum, we need rules of property and contract, and courts to
- enforce
-both. Likewise, in this culture debate, everyone concedes that at
-least some framework of copyright is also required. But both
- perspectives
-vehemently insist that just because some regulation is good, it
-doesn't follow that more regulation is better. And both perspectives are
-constantly attuned to the ways in which regulation simply enables the
-powerful industries of today to protect themselves against the
- competitors
-of tomorrow.
-</para>
+same charge free marketers make about regulating markets. Everyone, of
+course, concedes that some regulation of markets is necessary—at
+a minimum, we need rules of property and contract, and courts to
+enforce both. Likewise, in this culture debate, everyone concedes that
+at least some framework of copyright is also required. But both
+perspectives vehemently insist that just because some regulation is
+good, it doesn't follow that more regulation is better. And both
+perspectives are constantly attuned to the ways in which regulation
+simply enables the powerful industries of today to protect themselves
+against the competitors of tomorrow.
+</para>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
-strategy that I described in chapter 10. The consequence of this
- massive
+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.
+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.
</para>
<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>
<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 facilitate new ways to get access to content. Their goal was also
-to facilitate new ways to create content. Unlike the major labels,
-MP3.com offered creators a venue to distribute their creativity,
- without
-demanding an exclusive engagement from the creators.
+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
+facilitate new ways to get access to content. Their goal was also to
+facilitate new ways to create content. Unlike the major labels,
+MP3.com offered creators a venue to distribute their creativity,
+without demanding an exclusive engagement from the creators.
</para>
<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 leverage the revealed preferences of music listeners to
- recommend
-new artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
+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
+leverage the revealed preferences of music listeners to recommend new
+artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
Raitt. And so on.
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
-This idea required a simple way to gather data about user
- preferences.
-MP3.com came up with an extraordinarily clever way to gather
-this preference data. In January 2000, the company launched a service
+This idea required a simple way to gather data about user preferences.
+MP3.com came up with an extraordinarily clever way to gather this
+preference data. In January 2000, the company launched a service
called my.mp3.com. Using software provided by MP3.com, a user would
-sign into an account and then insert into her computer a CD. The
- software
-would identify the CD, and then give the user access to that
- content.
-So, for example, if you inserted a CD by Jill Sobule, then
-wherever you were—at work or at home—you could get access to that
-music once you signed into your account. The system was therefore a
-kind of music-lockbox.
+sign into an account and then insert into her computer a CD. The
+software would identify the CD, and then give the user access to that
+content. So, for example, if you inserted a CD by Jill Sobule, then
+wherever you were—at work or at home—you could get access
+to that music once you signed into your account. The system was
+therefore a kind of music-lockbox.
</para>
<para>
No doubt some could use this system to illegally copy content. But
the kind of content the users liked.
</para>
<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
-uploaded the music, but that would have taken a great deal of time, and
-would have produced a product of questionable quality.) It therefore
-purchased 50,000 CDs from a store, and started the process of making
-copies of those CDs. Again, it would not serve the content from those
-copies to anyone except those who authenticated that they had a copy
-of the CD they wanted to access. So while this was 50,000 copies, it
-was 50,000 copies directed at giving customers something they had
- already
-bought.
+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
+uploaded the music, but that would have taken a great deal of time,
+and would have produced a product of questionable quality.) It
+therefore purchased 50,000 CDs from a store, and started the process
+of making copies of those CDs. Again, it would not serve the content
+from those copies to anyone except those who authenticated that they
+had a copy of the CD they wanted to access. So while this was 50,000
+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>
<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 with four of the five. Nine months later, a federal judge found
+headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
+with four of the five. Nine months later, a federal judge found
MP3.com to have been guilty of willful infringement with respect to
the fifth. Applying the law as it is, the judge imposed a fine against
MP3.com of $118 million. MP3.com then settled with the remaining
-plaintiff, Vivendi Universal, paying over $54 million. Vivendi
- purchased
-MP3.com just about a year later.
+plaintiff, Vivendi Universal, paying over $54 million. Vivendi
+purchased MP3.com just about a year later.
</para>
<para>
That part of the story I have told before. Now consider its conclusion.
</para>
<para>
-After Vivendi purchased MP3.com, Vivendi turned around and
-filed a malpractice lawsuit against the lawyers who had advised it that
-they had a good faith claim that the service they wanted to offer would
-be considered legal under copyright law. This lawsuit alleged that it
-should have been obvious that the courts would find this behavior
- illegal;
-therefore, this lawsuit sought to punish any lawyer who had dared
-to suggest that the law was less restrictive than the labels demanded.
+After Vivendi purchased MP3.com, Vivendi turned around and filed a
+malpractice lawsuit against the lawyers who had advised it that they
+had a good faith claim that the service they wanted to offer would be
+considered legal under copyright law. This lawsuit alleged that it
+should have been obvious that the courts would find this behavior
+illegal; therefore, this lawsuit sought to punish any lawyer who had
+dared to suggest that the law was less restrictive than the labels
+demanded.
</para>
<para>
-The clear purpose of this lawsuit (which was settled for an
- unspecified
-amount shortly after the story was no longer covered in the press)
-was to send an unequivocal message to lawyers advising clients in this
+The clear purpose of this lawsuit (which was settled for an
+unspecified amount shortly after the story was no longer covered in
+the press) was to send an unequivocal message to lawyers advising
+clients in this
<!-- PAGE BREAK 200 -->
space: It is not just your clients who might suffer if the content
- industry
-directs its guns against them. It is also you. So those of 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.
+industry directs its guns against them. It is also you. So those of
+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="idxvivendiuniversal" class='endofrange'/>
+<indexterm><primary>Hummer, John</primary></indexterm>
+<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>Hummer Winblad</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
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, "Universal, EMI Sue Napster Investor," <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, "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," <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:
+<indexterm><primary>EMI</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
</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
engineers in Germany had rigged a new vehicle to play MP3s via
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><para>
-<!-- f5. --> Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+forward for release stateside. Even today, no new cars are sold in the
+United States with bona fide MP3 players. … <footnote>
+<para>
+<!-- f5. -->
+Rafe Needleman, "Driving in Cars with MP3s," <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.
+<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful
+to Dr. Mohammad Al-Ubaydli for this example.
+<indexterm><primary>Needleman, Rafe</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<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 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 constantly
- threatened
-by litigation.
+life" 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
+constantly threatened by litigation.
</para>
<para>
<!-- PAGE BREAK 201 -->
The point is not that businesses should have a right to start illegal
-enterprises. The point is the definition of "illegal." The law is a mess of
-uncertainty. We have no good way to know how it should apply to new
-technologies. Yet by reversing our tradition of judicial deference, and
-by embracing the astonishingly high penalties that copyright law
- imposes,
-that uncertainty now yields a reality which is far more
- conservative
-than is right. If the law imposed the death penalty for parking
-tickets, we'd not only have fewer parking tickets, we'd also have much
-less driving. The same principle applies to innovation. If innovation is
-constantly checked by this uncertain and unlimited liability, we will
-have much less vibrant innovation and much less creativity.
+enterprises. The point is the definition of "illegal." The law is a
+mess of uncertainty. We have no good way to know how it should apply
+to new technologies. Yet by reversing our tradition of judicial
+deference, and by embracing the astonishingly high penalties that
+copyright law imposes, that uncertainty now yields a reality which is
+far more conservative than is right. If the law imposed the death
+penalty for parking tickets, we'd not only have fewer parking tickets,
+we'd also have much less driving. The same principle applies to
+innovation. If innovation is constantly checked by this uncertain and
+unlimited liability, we will have much less vibrant innovation and
+much less creativity.
</para>
<para>
The point is directly parallel to the crunchy-lefty point about fair
-use. Whatever the "real" 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 creativity
-generally. Free market and free culture depend upon vibrant
- competition.
-Yet the effect of the law today is to stifle just this kind of
- competition.
-The effect is to produce an overregulated culture, just as the effect
-of too much control in the market is to produce an
- overregulatedregulated
-market.
+use. Whatever the "real" 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
+creativity generally. Free market and free culture depend upon vibrant
+competition. Yet the effect of the law today is to stifle just this
+kind of competition. The effect is to produce an overregulated
+culture, just as the effect of too much control in the market is to
+produce an overregulatedregulated market.
</para>
<para>
The building of a permission culture, rather than a free culture, is
-the first important way in which the changes I have described will
- burden
-innovation. A permission culture means a lawyer's culture—a
- culture
-in which the ability to create requires a call to your lawyer. Again,
-I am not antilawyer, at least when they're kept in their proper place. I
-am certainly not antilaw. But our profession has lost the sense of its
-limits. And leaders in our profession have lost an appreciation of the
-high costs that our profession imposes upon others. The inefficiency of
-the law is an embarrassment to our tradition. And while I believe our
-profession should therefore do everything it can to make the law more
-efficient, it should at least do everything it can to limit the reach of the
+the first important way in which the changes I have described will
+burden innovation. A permission culture means a lawyer's
+culture—a culture in which the ability to create requires a call
+to your lawyer. Again, I am not antilawyer, at least when they're kept
+in their proper place. I am certainly not antilaw. But our profession
+has lost the sense of its limits. And leaders in our profession have
+lost an appreciation of the high costs that our profession imposes
+upon others. The inefficiency of the law is an embarrassment to our
+tradition. And while I believe our profession should therefore do
+everything it can to make the law more efficient, it should at least
+do everything it can to limit the reach of the
<!-- PAGE BREAK 202 -->
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.
-</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 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, this response says,
-we should break the kneecaps of the Internet.
+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.
+</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
+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,
+this response says, we should break the kneecaps of the Internet.
</para>
<para>
The examples of this form of legislation are many. At the urging of
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
the Berkman Center for Internet and Society at Harvard Law School
-(2003), 3335, available at
+(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, 2627.
+Congress has already launched proceedings to explore a mandatory
+"broadcast flag" that would be required on any device capable of
+transmitting digital video (i.e., a computer), and that would disable
+the copying of any content that is marked with a broadcast flag. Other
+members of Congress have proposed immunizing content providers from
+liability for technology they might deploy that would hunt down
+copyright violators and disable their machines.<footnote><para>
+<!-- f7. -->
+GartnerG2, 26–27.
</para></footnote>
-
</para>
<para>
In one sense, these solutions seem sensible. If the problem is the
-code, why not regulate the code to remove the problem. But any
- regulation
-of technical infrastructure will always be tuned to the particular
-technology of the day. It will impose significant burdens and costs on
-
+code, why not regulate the code to remove the problem. But any
+regulation of technical infrastructure will always be tuned to the
+particular technology of the day. It will impose significant burdens
+and costs on
<!-- PAGE BREAK 203 -->
the technology, but will likely be eclipsed by advances around exactly
those requirements.
</para>
<para>
In March 2002, a broad coalition of technology companies, led by
-Intel, tried to get Congress to see the harm that such legislation would
-impose.<footnote><para>
-<!-- f8. --> See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
+Intel, tried to get Congress to see the harm that such legislation
+would impose.<footnote><para>
+<!-- f8. -->
+See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
February 2002 (Entertainment).
</para></footnote>
- Their argument was obviously not that copyright should not
-be protected. Instead, they argued, any protection should not do more
+Their argument was obviously not that copyright should not be
+protected. Instead, they argued, any protection should not do more
harm than good.
+<indexterm><primary>Intel</primary></indexterm>
</para>
<para>
-There is one more obvious way in which this war has harmed
- innovation—again,
-a story that will be quite familiar to the free market
-crowd.
+There is one more obvious way in which this war has harmed
+innovation—again, a story that will be quite familiar to the
+free market crowd.
</para>
<para>
Copyright may be property, but like all property, it is also a form
wrong, it is regulation the powerful use to defeat competitors.
</para>
<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>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
</para>
<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>
-<!-- f11. --> For example, in July 2002, Representative Howard Berman introduced the
+<!-- f10. -->
+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. -->
+For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
-copyright holders use technology to stop copyright infringement. In
- August
-2002, Representative Billy Tauzin introduced a bill to mandate that
-technologies capable of rebroadcasting digital copies of films broadcast on
-TV (i.e., computers) respect a "broadcast flag" that would disable copying
-of that content. And in March of the same year, Senator Fritz Hollings
-introduced the Consumer Broadband and Digital Television Promotion
-Act, which mandated copyright protection technology in all digital media
-devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster
-World," 27 June 2003, 3334, available at
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a "broadcast flag" that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, which mandated copyright protection
+technology in all digital media devices. See GartnerG2, "Copyright and
+Digital Media in a Post-Napster World," 27 June 2003, 33–34,
+available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
+<indexterm><primary>Hollings, Fritz</primary></indexterm>
</para></footnote>
- But there is one
-example that captures the flavor of them all. This is the story of the
- demise
-of Internet radio.
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
</para>
<para>
<!-- PAGE BREAK 204 -->
-As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless he
-or she is also the composer. So, for example if Marilyn Monroe had
-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 "radio performance" unless he or she
+is also the composer. So, for example if Marilyn Monroe had recorded a
+version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
-then whenever that recording was played on the radio, the current
- copyright
-owners of "Happy Birthday" would get some money, whereas
+then whenever that recording was played on the radio, the current
+copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The reasoning behind this balance struck by Congress makes some
sense. The justification was that radio was a kind of advertising. The
-recording artist thus benefited because by playing her music, the radio
-station was making it more likely that her records would be purchased.
-Thus, the recording artist got something, even if only indirectly.
- Probably
-this reasoning had less to do with the result than with the power
-of radio stations: Their lobbyists were quite good at stopping any
- efforts
-to get Congress to require compensation to the recording artists.
-</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 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.
+recording artist thus benefited because by playing her music, the
+radio station was making it more likely that her records would be
+purchased. Thus, the recording artist got something, even if only
+indirectly. Probably this reasoning had less to do with the result
+than with the power of radio stations: Their lobbyists were quite good
+at stopping any efforts to get Congress to require compensation to the
+recording artists.
+</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
+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.
</para>
<para>
This feature of the architecture of Internet radio means that there
-are potentially an unlimited number of radio stations that a user could
-tune in to using her computer, whereas under the existing architecture
-for broadcast radio, there is an obvious limit to the number of
- broadcasters
-and clear broadcast frequencies. Internet radio could therefore
-be more competitive than regular radio; it could provide a wider range
-of selections. And because the potential audience for Internet radio is
-the whole world, niche stations could easily develop and market their
-content to a relatively large number of users worldwide. According to
-some estimates, more than eighty million users worldwide have tuned
-in to this new form of radio.
+are potentially an unlimited number of radio stations that a user
+could tune in to using her computer, whereas under the existing
+architecture for broadcast radio, there is an obvious limit to the
+number of broadcasters and clear broadcast frequencies. Internet radio
+could therefore be more competitive than regular radio; it could
+provide a wider range of selections. And because the potential
+audience for Internet radio is the whole world, niche stations could
+easily develop and market their content to a relatively large number
+of users worldwide. According to some estimates, more than eighty
+million users worldwide have tuned in to this new form of radio.
</para>
<para>
<!-- PAGE BREAK 205 -->
-Internet radio is thus to radio what FM was to AM. It is an
- improvement
-potentially vastly more significant than the FM
- improvement
-over AM, since not only is the technology better, so, too, is the
-competition. Indeed, there is a direct parallel between the fight to
- establish
-FM radio and the fight to protect Internet radio. As one author
-describes Howard Armstrong's struggle to enable FM radio,
+Internet radio is thus to radio what FM was to AM. It is an
+improvement potentially vastly more significant than the FM
+improvement over AM, since not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
</para>
<blockquote>
<para>
An almost unlimited number of FM stations was possible in the
-shortwaves, thus ending the unnatural restrictions imposed on
- radio
-in the crowded longwaves. If FM were freely developed, the
-number of stations would be limited only by economics and
- competition
-rather than by technical restrictions. . . . Armstrong
-likened the situation that had grown up in radio to that following
-the invention of the printing press, when governments and ruling
-interests attempted to control this new instrument of mass
- communications
-by imposing restrictive licenses on it. This tyranny
-was broken only when it became possible for men freely to
- acquire
-printing presses and freely to run them. FM in this sense
-was as great an invention as the printing presses, for it gave radio
-the opportunity to strike off its shackles.<footnote><para>
-<!-- f12. --> Lessing, 239.
+shortwaves, thus ending the unnatural restrictions imposed on radio in
+the crowded longwaves. If FM were freely developed, the number of
+stations would be limited only by economics and competition rather
+than by technical restrictions. … Armstrong likened the situation
+that had grown up in radio to that following the invention of the
+printing press, when governments and ruling interests attempted to
+control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it
+became possible for men freely to acquire printing presses and freely
+to run them. FM in this sense was as great an invention as the
+printing presses, for it gave radio the opportunity to strike off its
+shackles.<footnote><para>
+<!-- f12. -->
+Lessing, 239.
</para></footnote>
</para>
</blockquote>
<para>
-This potential for FM radio was never realized—not because
- Armstrong
-was wrong about the technology, but because he underestimated
-the power of "vested interests, habits, customs and legislation"<footnote><para>
-<!-- f13. --> Ibid., 229.
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of "vested interests, habits, customs and
+legislation"<footnote><para>
+<!-- f13. -->
+Ibid., 229.
</para></footnote>
-to
- retard
-the growth of this competing technology.
+to retard the growth of this competing technology.
</para>
<para>
Now the very same claim could be made about Internet radio. For
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 "Happy Birthday" 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
-William Fisher estimates, if an Internet radio station distributed
- adfree
+William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
-over $1 million a year.<footnote><para>
-<!-- f14. --> This example was derived from fees set by the original Copyright
- Arbitration
-Royalty Panel (CARP) proceedings, and is drawn from an example
-offered by Professor William Fisher. Conference Proceedings, iLaw
-(Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain
-submitted testimony in the CARP proceeding that was ultimately rejected.
-See Jonathan Zittrain, Digital Performance Right in Sound Recordings
-and Ephemeral Recordings, Docket No. 2000-9, CARP DTRA 1 and 2,
-available at
+over $1 million a year.<footnote>
+<para>
+<!-- f14. -->
+This example was derived from fees set by the original Copyright
+Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
+example offered by Professor William Fisher. Conference Proceedings,
+iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
+and Zittrain submitted testimony in the CARP proceeding that was
+ultimately rejected. See Jonathan Zittrain, Digital Performance Right
+in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
+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 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
+For an excellent analysis making a similar point, see Randal
+C. Picker, "Copyright as Entry Policy: The Case of Digital
+Distribution," <citetitle>Antitrust Bulletin</citetitle> (Summer/Fall 2002): 461: "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."
+<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.
+A regular radio station broadcasting the same content would pay no
+equivalent fee.
</para>
<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.
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>
<para>
-In a rare bit of candor, one RIAA expert admitted what seemed
- obvious
+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
Policy at Real Networks, told me,
</para>
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, … "How do you come up with a
<!-- PAGE BREAK 208 -->
-rate that's so much higher? Why is it worth more than radio?
- Because
-here we have hundreds of thousands of webcasters who
-want to pay, and that should establish the market rate, and if you
-set the rate so high, you're going to drive the small webcasters out
-of business. . . ."
+rate that's so much higher? Why is it worth more than radio? Because
+here we have hundreds of thousands of webcasters who want to pay, and
+that should establish the market rate, and if you set the rate so
+high, you're going to drive the small webcasters out of
+business. …"
</para>
<para>
-And the RIAA experts said, "Well, we don't really model this
-as an industry with thousands of webcasters, we think it should be
+And the RIAA experts said, "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>." (Emphasis
+added.)
</para>
</blockquote>
<para>
practically no one, on either the right or the left, who is doing anything
effective to prevent it.
</para>
-</sect2>
-<sect2 id="corruptingcitizens">
+</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
Internet and American Life Project (24 April 2001), available at
sued 261 individuals—including a twelve-year-old girl living in public
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.
+<!-- f16. -->
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," <citetitle>Los
+Angeles Times</citetitle>, 10 September 2003, Business.
</para></footnote>
- As these scapegoats discovered, it will always cost more to
- defend
+As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
year old, for example, like Jesse Jordan, paid her life savings of $2,000
to settle the case.) Our law is an awful system for defending rights. It
</para>
<para>
Wars of prohibition are nothing new in America. This one is just
-something more extreme than anything we've seen before. We
- experimented
-with alcohol prohibition, at a time when the per capita
- consumption
-of alcohol was 1.5 gallons per capita per year. The war against
-drinking initially reduced that consumption to just 30 percent of its
-preprohibition levels, but by the end of prohibition, consumption was
-up to 70 percent of the preprohibition 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.
-</para></footnote>
- We have
-
+something more extreme than anything we've seen before. We
+experimented with alcohol prohibition, at a time when the per capita
+consumption of alcohol was 1.5 gallons per capita per year. The war
+against drinking initially reduced that consumption to just 30 percent
+of its preprohibition levels, but by the end of prohibition,
+consumption was up to 70 percent of the preprohibition
+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," <citetitle>American Economic Review</citetitle> 81, no. 2 (1991): 242.
+</para></footnote>
+We have
<!-- PAGE BREAK 210 -->
-launched a war on drugs aimed at reducing the consumption of
- regulated
+launched a war on drugs aimed at reducing the consumption of regulated
narcotics that 7 percent (or 16 million) Americans now use.<footnote><para>
-<!-- f18. --> National Drug Control Policy: Hearing Before the House Government
+<!-- f18. -->
+National Drug Control Policy: Hearing Before the House Government
Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
John P. Walters, director of National Drug Control Policy).
</para></footnote>
-
-That is a drop from the high (so to speak) in 1979 of 14 percent of the
-population. We regulate automobiles to the point where the vast
- majority
-of Americans violate the law every day. We run such a complex
-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 compliance
-literature).
+That is a drop from the high (so to speak) in 1979 of 14 percent of
+the population. We regulate automobiles to the point where the vast
+majority of Americans violate the law every day. We run such a complex
+tax system that a majority of cash businesses regularly
+cheat.<footnote><para>
+<!-- f19. -->
+See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
+Compliance," <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 ordinary
-behavior is regulated within our society. And as a result, a huge
- proportion
-of Americans regularly violate at least some law.
+We pride ourselves on our "free society," 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.
+<indexterm><primary>alcohol prohibition</primary></indexterm>
</para>
<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 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, illegally driven
-cars. These are kids for whom behaving illegally is increasingly the
-norm. And then we, as law professors, are supposed to teach them how
-to behave ethically—how to say no to bribes, or keep client funds
- separate,
-or honor a demand to disclose a document 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 degree of illegality.
+salient issue for teachers like me, whose job it is to teach law
+students about the importance of "ethics." 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,
+illegally driven cars. These are kids for whom behaving illegally is
+increasingly the norm. And then we, as law professors, are supposed to
+teach them how to behave ethically—how to say no to bribes, or
+keep client funds separate, or honor a demand to disclose a document
+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
+degree of illegality.
+<indexterm><primary>law schools</primary></indexterm>
</para>
<para>
The response to this general illegality is either to enforce the law
-more severely or to change the law. We, as a society, have to learn how
-to make that choice more rationally. Whether a law makes sense
- depends,
-in part, at least, upon whether the costs of the law, both
- intended
-and collateral, outweigh the benefits. If the costs, intended and
-collateral, do outweigh the benefits, then the law ought to be changed.
-Alternatively, if the costs of the existing system are much greater than
-the costs of an alternative, then we have a good reason to consider the
-alternative.
+more severely or to change the law. We, as a society, have to learn
+how to make that choice more rationally. Whether a law makes sense
+depends, in part, at least, upon whether the costs of the law, both
+intended and collateral, outweigh the benefits. If the costs, intended
+and collateral, do outweigh the benefits, then the law ought to be
+changed. Alternatively, if the costs of the existing system are much
+greater than the costs of an alternative, then we have a good reason
+to consider the alternative.
</para>
<para>
week. A society is right to ban murder always and everywhere.
</para>
<para>
-My point is instead one that democracies understood for
- generations,
-but that we recently have learned to forget. The rule of law
-depends upon people obeying the law. The more often, and more
- repeatedly,
-we as citizens experience violating the law, the less we respect
-the law. Obviously, in most cases, the important issue is the law, not
-respect for the law. I don't care whether the rapist respects the law or
-not; I want to catch and incarcerate the rapist. But I do care 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."
-</para>
-<para>
-When at least forty-three million citizens download content from
-the Internet, and when they use tools to combine that content in ways
-unauthorized by copyright holders, the first question we should be
- asking
-is not how best to involve the FBI. The first question should be
-whether this particular prohibition is really necessary in order to achieve
-the proper ends that copyright law serves. Is there another way to
-assure that artists get paid without transforming forty-three million
-Americans into felons? Does it make sense if there are other ways to
-assure that artists get paid without transforming America into a nation
-of felons?
+My point is instead one that democracies understood for generations,
+but that we recently have learned to forget. The rule of law depends
+upon people obeying the law. The more often, and more repeatedly, we
+as citizens experience violating the law, the less we respect the
+law. Obviously, in most cases, the important issue is the law, not
+respect for the law. I don't care whether the rapist respects the law
+or not; I want to catch and incarcerate the rapist. But I do care
+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."
+</para>
+<para>
+When at least forty-three million citizens download content from the
+Internet, and when they use tools to combine that content in ways
+unauthorized by copyright holders, the first question we should be
+asking is not how best to involve the FBI. The first question should
+be whether this particular prohibition is really necessary in order to
+achieve the proper ends that copyright law serves. Is there another
+way to assure that artists get paid without transforming forty-three
+million Americans into felons? Does it make sense if there are other
+ways to assure that artists get paid without transforming America into
+a nation of felons?
</para>
<para>
This abstract point can be made more clear with a particular example.
</para>
<para>
-We all own CDs. Many of us still own phonograph records. These
-pieces of plastic encode music that in a certain sense we have bought.
-The law protects our right to buy and sell that plastic: It is not a
- copyright
-infringement for me to sell all my classical records at a used
+We all own CDs. Many of us still own phonograph records. These pieces
+of plastic encode music that in a certain sense we have bought. The
+law protects our right to buy and sell that plastic: It is not a
+copyright infringement for me to sell all my classical records at a
+used
<!-- PAGE BREAK 212 -->
record store and buy jazz records to replace them. That "use" of the
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"
- capacities
-of digital technologies.
+Apple Corporation went so far as to suggest that "freedom" was a
+right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+capacities of digital technologies.
</para>
+<indexterm><primary>Adromeda</primary></indexterm>
<para>
This "use" 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 music:
-Bach, Baroque, Love Songs, Love Songs of Significant Others—the
-potential is endless. And by reducing the costs of mixing play lists,
-these technologies help build a creativity with play lists that is itself
- independently
-valuable. Compilations of songs are creative and
- meaningful
-in their own right.
+them in one archive. Then, using Apple's iTunes, or a wonderful
+program called Andromeda, we can build different play lists of our
+music: Bach, Baroque, Love Songs, Love Songs of Significant
+Others—the potential is endless. And by reducing the costs of
+mixing play lists, these technologies help build a creativity with
+play lists that is itself independently valuable. Compilations of
+songs are creative and meaningful in their own right.
</para>
<para>
This use is enabled by unprotected media—either CDs or records.
But unprotected media also enable file sharing. File sharing threatens
-(or so the content industry believes) the ability of creators to earn a fair
-return from their creativity. And thus, many are beginning to
- experiment
-with technologies to eliminate unprotected media. These
- technologies,
-for example, would enable CDs that could not be ripped. Or
-they might enable spy programs to identify ripped content on people's
-machines.
+(or so the content industry believes) the ability of creators to earn
+a fair return from their creativity. And thus, many are beginning to
+experiment with technologies to eliminate unprotected media. These
+technologies, for example, would enable CDs that could not be
+ripped. Or they might enable spy programs to identify ripped content
+on people's machines.
</para>
<para>
If these technologies took off, then the building of large archives of
-your own music would become quite difficult. You might hang in
-hacker circles, and get technology to disable the technologies that
- protect
+your own music would become quite difficult. You might hang in hacker
+circles, and get technology to disable the technologies that protect
the content. Trading in those technologies is illegal, but maybe that
doesn't bother you much. In any case, for the vast majority of people,
these protection technologies would effectively destroy the archiving
<!-- 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 "digital rights
+management" system.
</para>
<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
- interfere
-with the freedom to move content would be justifiable. But what
-if there were another way to assure that artists are paid, without
- locking
-down any content? What if, in other words, a different system
-could assure compensation to artists while also preserving the freedom
-to move content easily?
-</para>
-<para>
-My point just now is not to prove that there is such a system. I
- offer
+of the ability to freely move content, then these technologies to
+interfere with the freedom to move content would be justifiable. But
+what if there were another way to assure that artists are paid,
+without locking down any content? What if, in other words, a different
+system could assure compensation to artists while also preserving the
+freedom to move content easily?
+</para>
+<para>
+My point just now is not to prove that there is such a system. I offer
a version of such a system in the last chapter of this book. For now,
-the only point is the relatively uncontroversial one: If a different system
-achieved the same legitimate objectives that the existing copyright
- system
-achieved, but left consumers and creators much more free, then
-we'd have a very good reason to pursue this alternative—namely,
- freedom.
-The choice, in other words, would not be between property and
-piracy; the choice would be between different property systems and the
-freedoms each allowed.
-</para>
-<para>
-I believe there is a way to assure that artists are paid without
- turning
-forty-three million Americans into felons. But the salient feature
-of this alternative is that it would lead to a very different market for
-producing and distributing creativity. The dominant few, who today
-control the vast majority of the distribution of content in the world,
-would no longer exercise this extreme of control. Rather, they would go
-the way of the horse-drawn buggy.
-</para>
-<para>
-Except that this generation's buggy manufacturers have already
-saddled Congress, and are riding the law to protect themselves against
-this new form of competition. For them the choice is between
- fortythree
+the only point is the relatively uncontroversial one: If a different
+system achieved the same legitimate objectives that the existing
+copyright system achieved, but left consumers and creators much more
+free, then we'd have a very good reason to pursue this
+alternative—namely, freedom. The choice, in other words, would
+not be between property and piracy; the choice would be between
+different property systems and the freedoms each allowed.
+</para>
+<para>
+I believe there is a way to assure that artists are paid without
+turning forty-three million Americans into felons. But the salient
+feature of this alternative is that it would lead to a very different
+market for producing and distributing creativity. The dominant few,
+who today control the vast majority of the distribution of content in
+the world, would no longer exercise this extreme of control. Rather,
+they would go the way of the horse-drawn buggy.
+</para>
+<para>
+Except that this generation's buggy manufacturers have already saddled
+Congress, and are riding the law to protect themselves against this
+new form of competition. For them the choice is between fortythree
million Americans as criminals and their own survival.
</para>
<para>
-It is understandable why they choose as they do. It is not
- understandable
-why we as a democracy continue to choose as we do. Jack
+It is understandable why they choose as they do. It is not
+understandable why we as a democracy continue to choose as we do. Jack
<!-- PAGE BREAK 214 -->
-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.
+
+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.
+<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para>
<para>
"If you can treat someone as a putative lawbreaker," von Lohmann
explains,
+<indexterm><primary>von Lohmann, Fred</primary></indexterm>
</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 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 against file sharing has done is turn a remarkable
- percentage
-of the American Internet-using population into
- "lawbreakers."
+then all of a sudden a lot of basic civil liberty protections
+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
+against file sharing has done is turn a remarkable percentage of the
+American Internet-using population into "lawbreakers."
</para>
</blockquote>
<para>
effectively erase much of the privacy most would presume.
</para>
<para>
-Users of the Internet began to see this generally in 2003 as the
-RIAA launched its campaign to force Internet service providers to turn
-over the names of customers who the RIAA believed were violating
-copyright law. Verizon fought that demand and lost. With a simple
- request
-to a judge, and without any notice to the customer at all, the
-identity of an Internet user is revealed.
+Users of the Internet began to see this generally in 2003 as the RIAA
+launched its campaign to force Internet service providers to turn over
+the names of customers who the RIAA believed were violating copyright
+law. Verizon fought that demand and lost. With a simple request to a
+judge, and without any notice to the customer at all, the identity of
+an Internet user is revealed.
</para>
<para>
-
<!-- PAGE BREAK 215 -->
-The RIAA then expanded this campaign, by announcing a general
-strategy to sue individual users of the Internet who are alleged to have
+The RIAA then expanded this campaign, by announcing a general strategy
+to sue individual users of the Internet who are alleged to have
downloaded copyrighted music from file-sharing systems. But as we've
-seen, the potential damages from these suits are astronomical: If a
- family's
-computer is used to download a single CD's worth of music, the
-family could be liable for $2 million in damages. That didn't stop the
-RIAA from suing a number of these families, just as they had sued
+seen, the potential damages from these suits are astronomical: If a
+family's computer is used to download a single CD's worth of music,
+the family could be liable for $2 million in damages. That didn't stop
+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 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.
+<!-- f20. -->
+See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
+<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Chris Cobbs, "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," <citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," <citetitle>USA Today</citetitle>, 15 September
+2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
+Fan, Either," <citetitle>New York Times</citetitle>, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" <citetitle>Toronto Star</citetitle>, 18 September 2003, P7.
</para></footnote>
</para>
Even this understates the espionage that is being waged by the
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
+<!-- f21. -->
+See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used," 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."
-</para>
-<para>
-So imagine the following not-implausible scenario: Imagine a
-friend gives a CD to your daughter—a collection of songs just like the
-cassettes you used to make as a kid. You don't know, and 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 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 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 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 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 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #48</ulink>; Benny
-Evangelista, "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.
-</para></footnote>
- your
-daughter can lose the right to use the university's computer network.
-She can, in some cases, be expelled.
+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."
+</para>
+<para>
+So imagine the following not-implausible scenario: Imagine a
+friend gives a CD to your daughter—a collection of songs just
+like the cassettes you used to make as a kid. You don't know, and
+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
+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
+to deploy,<footnote><para>
+<!-- f22. -->
+See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
+<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+Students Sued over Music Sites; Industry Group Targets File Sharing at
+Colleges," <citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," <citetitle>Christian Science
+Monitor</citetitle>, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
+Lawsuit Possible," <citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," <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
+Orientation This Fall to Include Record Industry Warnings Against File
+Sharing," <citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," <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>
<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 college students
+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
+college students
<!-- PAGE BREAK 216 -->
have already learned, our presumptions about innocence disappear in
the middle of wars of prohibition. This war is no different.
Says von Lohmann,
+<indexterm><primary>von Lohmann, Fred</primary></indexterm>
</para>
<blockquote>
<para>
So when we're talking about numbers like forty to sixty million
Americans that are essentially copyright infringers, you create a
situation where the civil liberties of those people are very much in
-peril in a general matter. [I don't] think [there is any] analog
-where you could randomly choose any person off the street and be
-confident that they were committing an unlawful act that could
-put them on the hook for potential felony liability or hundreds of
-millions of dollars of civil liability. Certainly we all speed, but
-speeding isn't the kind of an act for which we routinely forfeit
-civil liberties. Some people use drugs, and I think that's the
- closest
-analog, [but] many 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 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.
+peril in a general matter. [I don't] think [there is any] analog where
+you could randomly choose any person off the street and be confident
+that they were committing an unlawful act that could put them on the
+hook for potential felony liability or hundreds of millions of dollars
+of civil liability. Certainly we all speed, but speeding isn't the
+kind of an act for which we routinely forfeit civil liberties. Some
+people use drugs, and I think that's the closest analog, [but] many
+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
+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 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? Which is
- American,
-a constant war on our own people or a concerted effort through
-our democracy to change our law?
+When forty to sixty million Americans are considered "criminals" 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?
+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>
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
-grabs the bucket. Before you have a chance to tell her to stop—or
- before
-she understands just why she should stop—the bucket is in the air.
-The gasoline is about to hit the blazing car. And the fire that gasoline
-will ignite is about to ignite everything around.
+grabs the bucket. Before you have a chance to tell her to
+stop—or before she understands just why she should
+stop—the bucket is in the air. The gasoline is about to hit the
+blazing car. And the fire that gasoline will ignite is about to ignite
+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.
+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.
</para>
<para>
<!-- PAGE BREAK 219 -->
Yet policy makers are not willing to leave this fire to itself. Primed
-with plenty of lobbyists' money, they are keen to intervene to eliminate
-the problem they perceive. But the problem they perceive is not the real
-threat this culture faces. For while we watch this small fire in the
- corner,
-there is a massive change in the way culture is made that is
- happening
-all around.
+with plenty of lobbyists' money, they are keen to intervene to
+eliminate the problem they perceive. But the problem they perceive is
+not the real threat this culture faces. For while we watch this small
+fire in the corner, there is a massive change in the way culture is
+made that is happening all around.
</para>
<para>
-Somehow we have to find a way to turn attention to this more
- important
-and fundamental issue. Somehow we have to find a way to
-avoid pouring gasoline onto this fire.
+Somehow we have to find a way to turn attention to this more important
+and fundamental issue. Somehow we have to find a way to avoid pouring
+gasoline onto this fire.
</para>
<para>
-We have not found that way yet. Instead, we seem trapped in a
- simpler,
-binary view. However much many people push to frame this
- debate
-more broadly, it is the simple, binary view that remains. We
-rubberneck to look at the fire when we should be keeping our eyes on
-the road.
+We have not found that way yet. Instead, we seem trapped in a simpler,
+binary view. However much many people push to frame this debate more
+broadly, it is the simple, binary view that remains. We rubberneck to
+look at the fire when we should be keeping our eyes on the road.
</para>
<para>
This challenge has been my life these last few years. It has also been
-my failure. In the two chapters that follow, I describe one small brace
-of efforts, so far failed, to find a way to refocus this debate. We must
-understand these failures if we're to understand what success will
- require.
+my failure. In the two chapters that follow, I describe one small
+brace of efforts, so far failed, to find a way to refocus this
+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>
-<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
+<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.
</para>
<para>
-It didn't work—at least for his daughters. They didn't find
- Hawthorne
-any more interesting than before. But Eldred's experiment gave
-birth to a hobby, and his hobby begat a cause: Eldred would build a
-library of public domain works by scanning these works and making
+It didn't work—at least for his daughters. They didn't find
+Hawthorne any more interesting than before. But Eldred's experiment
+gave birth to a hobby, and his hobby begat a cause: Eldred would build
+a library of public domain works by scanning these works and making
them available for free.
</para>
<para>
works. Instead, Eldred was producing derivative works from these
public domain works. Just as Disney turned Grimm into stories more
<!-- PAGE BREAK 221 -->
-accessible to the twentieth century, Eldred transformed Hawthorne,
-and many others, into a form more accessible—technically
- accessible—today.
+accessible to the twentieth century, Eldred transformed Hawthorne, and
+many others, into a form more accessible—technically
+accessible—today.
</para>
<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
-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
+Eldred's freedom to do this with Hawthorne's work grew from the same
+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
- commercial
-publications of public domain works.
-</para>
-<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
-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. --> 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 were distributing porn
-but were not making money directly or indirectly from that distribution.
-Such a class didn't exist before the Internet came into being because the
-costs of distributing porn were so high. Yet this new class of distributors
-got special attention in the Supreme Court, when the Court struck down
-the Communications Decency Act of 1996. It was partly because of the
-burden on noncommercial speakers that the statute was found to exceed
-Congress's power. The same point could have been made about
- noncommercial
+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'/>
+<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
+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. -->
+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
+were distributing porn but were not making money directly or
+indirectly from that distribution. Such a class didn't exist before
+the Internet came into being because the costs of distributing porn
+were so high. Yet this new class of distributors got special attention
+in the Supreme Court, when the Court struck down the Communications
+Decency Act of 1996. It was partly because of the burden on
+noncommercial speakers that the statute was found to exceed Congress's
+power. The same point could have been made about noncommercial
publishers after the advent of the Internet. The Eric Eldreds of the
-world before the Internet were extremely few. Yet one would think it at
-least as important to protect the Eldreds of the world as to protect
- noncommercial
-pornographers.
-</para></footnote>
-
+world before the Internet were extremely few. Yet one would think it
+at least as important to protect the Eldreds of the world as to
+protect noncommercial pornographers.</para></footnote>
</para>
<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.
+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>
<para>
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>
-<!-- f2. --> The full text is: "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).
+"copyrights should be forever."<footnote><para>
+<!-- f2. -->
+The full text is: "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).
</para></footnote>
</para>
</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>
<para>
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."
+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>
<para>
-In the past forty years, Congress has gotten into the practice of
- extending
-existing terms of copyright protection. What puzzled me
+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
<!-- 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.
+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>
</para>
<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
- consideration
-of the question. No one had ever challenged Congress's
+sitting late at the office, scouring on-line databases for any serious
+consideration of the question. No one had ever challenged Congress's
practice of extending existing terms. That failure may in part be why
-Congress seemed so untroubled in its habit. That, and the fact that the
-practice had become so lucrative for Congress. Congress knows that
+Congress seemed so untroubled in its habit. That, and the fact that
+the practice had become so lucrative for Congress. Congress knows that
copyright owners will be willing to pay a great deal of money to see
-their copyright terms extended. And so Congress is quite happy to
-keep this gravy train going.
+their copyright terms extended. And so Congress is quite happy to keep
+this gravy train going.
</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
- 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 do—and those
-things that pay? Extending copyright terms pays.
+government. "Corruption" not in the sense that representatives are
+bribed. Rather, "corruption" 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
+do—and those things that pay? Extending copyright terms pays.
</para>
<para>
If that's not obvious to you, consider the following: Say you're one
of the very few lucky copyright owners whose copyright continues to
make money one hundred years after it was created. The Estate of
-Robert Frost is a good example. Frost died in 1963. His poetry
- continues
-to be extraordinarily valuable. Thus the Robert Frost estate
- benefits
-greatly from any extension of copyright, since no publisher would
-pay the estate any money if the poems Frost wrote could be published
-by anyone for free.
+Robert Frost is a good example. Frost died in 1963. His poetry
+continues to be extraordinarily valuable. Thus the Robert Frost estate
+benefits greatly from any extension of copyright, since no publisher
+would pay the estate any money if the poems Frost wrote could be
+published by anyone for free.
</para>
<para>
So imagine the Robert Frost estate is earning $100,000 a year from
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>
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.
+<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
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, "Disney in Washington: The Mouse That Roars,"
+<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, available at
<ulink url="http://free-culture.cc/notes/">link #50</ulink>.
</para></footnote>
and again.
</para>
<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
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,"
+"We pause to consider the implications of the government's arguments,"
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 "limited times" 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.
+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>
+<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 "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 <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>
<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>.
+<!-- 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.
+<indexterm><primary>Nashville Songwriters Association</primary></indexterm>
</para>
<para>
As we've seen, our constitutional system requires limits on
<!-- 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>
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?"
+"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?"
</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><primary>Hal Roach Studios</primary></indexterm>
+<indexterm><primary>Laurel and Hardy Films</primary></indexterm>
<para>
-Consider the story of Michael Agee, chairman of Hal Roach
- Studios,
-which owns the copyrights for the Laurel and Hardy films. Agee
-is a 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 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 videocassettes and 50,000 DVDs of the duo's silent films."<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, Songs, Books at Stake; Supreme Court Hears Arguments Today
-on Striking Down Copyright Extension," Orlando Sentinel Tribune, 9
- October
-2002.
+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, <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
+videocassettes and 50,000 DVDs of the duo's silent
+films."<footnote><para>
+<!-- f11. -->
+See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
+<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, "Classic Movies,
+Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
+Down Copyright Extension," <citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002.
</para></footnote>
+<indexterm><primary>Lucky Dog, The</primary></indexterm>
</para>
<para>
-Yet Agee opposed the CTEA. His reasons demonstrate a rare
-virtue in this culture: selflessness. He argued in a brief before the
-Supreme Court that the Sonny Bono Copyright Term Extension Act
-will, if left standing, destroy a whole generation of American film.
+Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
+this culture: selflessness. He argued in a brief before the Supreme
+Court that the Sonny Bono Copyright Term Extension Act will, if left
+standing, destroy a whole generation of American film.
</para>
<para>
His argument is straightforward. A tiny fraction of this work has
<!-- PAGE BREAK 231 -->
-any continuing commercial value. The rest—to the extent it survives at
-all—sits in vaults gathering dust. It may be that some of this work not
-now commercially valuable will be deemed to be valuable by the
- owners
-of the vaults. For this to occur, however, the commercial benefit
-from the work must exceed the costs of making the work available for
-distribution.
+any continuing commercial value. The rest—to the extent it
+survives at all—sits in vaults gathering dust. It may be that
+some of this work not now commercially valuable will be deemed to be
+valuable by the owners of the vaults. For this to occur, however, the
+commercial benefit from the work must exceed the costs of making the
+work available for distribution.
</para>
<para>
We can't know the benefits, but we do know a lot about the costs.
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
+<!-- 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
<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
-a film—the real economic costs, not the lawyer costs—were so high, it
-was never at all feasible to preserve or restore film. Like the remains of
-a great dinner, when it's over, it's over. Once a film passed out of its
-commercial life, it may have been archived for a bit, but that was the
-end of its life so long as the market didn't have more to offer.
+a film—the real economic costs, not the lawyer costs—were
+so high, it was never at all feasible to preserve or restore
+film. Like the remains of a great dinner, when it's over, it's
+over. Once a film passed out of its commercial life, it may have been
+archived for a bit, but that was the end of its life so long as the
+market didn't have more to offer.
</para>
<para>
In other words, though copyright has been relatively short for most
technologies is to enable the archive that Brewster Kahle dreams of.
Digital technologies now make it possible to preserve and give access
to all sorts of knowledge. Once a book goes out of print, we can now
-imagine digitizing it and making it available to everyone, forever. Once
-a film goes out of distribution, we could digitize it and make it
- available
-to everyone, forever. Digital technologies give new life to
- copyrighted
-material after it passes out of its commercial life. It is now
-possible to preserve and assure universal access to this knowledge and
-culture, whereas before it was not.
+imagine digitizing it and making it available to everyone,
+forever. Once a film goes out of distribution, we could digitize it
+and make it available to everyone, forever. Digital technologies give
+new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to
+this knowledge and culture, whereas before it was not.
</para>
<para>
<!-- PAGE BREAK 234 -->
-And now copyright law does get in the way. Every step of
- producing
-this digital archive of our culture infringes on the exclusive right of
-copyright. To digitize a book is to copy it. To do that requires
- permission
-of the copyright owner. The same with music, film, or any other
-aspect of our culture protected by copyright. The effort to make these
-things available to history, or to researchers, or to those who just want
-to explore, is now inhibited by a set of rules that were written for a
- radically
-different context.
-</para>
-<para>
-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.
+And now copyright law does get in the way. Every step of producing
+this digital archive of our culture infringes on the exclusive right
+of copyright. To digitize a book is to copy it. To do that requires
+permission of the copyright owner. The same with music, film, or any
+other aspect of our culture protected by copyright. The effort to make
+these things available to history, or to researchers, or to those who
+just want to explore, is now inhibited by a set of rules that were
+written for a radically different context.
+</para>
+<para>
+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
+<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
culture widely?"
</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 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.
+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
+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>
<para>
I would be the first to agree that it should do as much as it can: We
market is not doing the job, then we should allow nonmarket forces the
<!-- 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
+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
-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
- December
-2002, available at
+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
+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
+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.
-</para>
-<para>
-The district court dismissed our claims without even hearing an
- argument.
-A panel of the Court of Appeals for the D.C. Circuit also
- dismissed
-our claims, though after hearing an extensive argument. But
+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.
+</para>
+<para>
+The district court dismissed our claims without even hearing an
+argument. A panel of the Court of Appeals for the D.C. Circuit also
+dismissed our claims, though after hearing an extensive argument. But
that decision at least had a dissent, by one of the most conservative
judges on that court. That dissent gave our claims life.
</para>
it was simple: If Congress can extend existing terms, then there is no
"stopping point" 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
- interpretation,
-Judge Sentelle argued, would be to deny Congress the
+terms that are "limited." Thus, Judge Sentelle argued, the court had
+to interpret the term "limited Times" to give it meaning. And the best
+interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
</para>
<para>
<!-- PAGE BREAK 236 -->
D.C. Circuit, Judge David Tatel. Both the most conservative and the
-most liberal judges in the D.C. Circuit believed Congress had
- overstepped
-its bounds.
+most liberal judges in the D.C. Circuit believed Congress had
+overstepped its bounds.
</para>
<para>
It was here that most expected Eldred v. Ashcroft would die, for 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.
+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.
</para>
<para>
But my client and these friends were wrong. This case could have
retell this story to myself, I can never escape believing that my own
mistake lost it.
</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
+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
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
- ignored
-this pressure (something that few law firms today would ever
+ignored this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Bromberg, Dan</primary></indexterm>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
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>
<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 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 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.
-</para>
-<para>
-In the Court of Appeals, Eagle Forum was eager to file a brief
- supporting
-our position. Their brief made the argument that became the
+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
+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
+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
+supporting our position. Their brief made the argument that became the
core claim in the Supreme Court: If Congress can extend the term of
-existing copyrights, there is no limit to Congress's power to set terms.
-That strong conservative argument persuaded a strong conservative
-judge, Judge Sentelle.
+existing copyrights, there is no limit to Congress's power to set
+terms. That strong conservative argument persuaded a strong
+conservative judge, Judge Sentelle.
</para>
<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
+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
<!-- PAGE BREAK 239 -->
-Software Foundation (home of the GNU project that made GNU/
-Linux possible). They included a powerful brief about the costs of
- uncertainty
-by Intel. There were two law professors' briefs, one by
- copyright
-scholars and one by First Amendment scholars. There was an
-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.
+Software Foundation (home of the GNU project that made GNU/ Linux
+possible). They included a powerful brief about the costs of
+uncertainty by Intel. There were two law professors' briefs, one by
+copyright scholars and one by First Amendment scholars. There was an
+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>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>
<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.
+<indexterm><primary>American Association of Law Libraries</primary></indexterm>
+<indexterm><primary>National Writers Union</primary></indexterm>
</para>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
<para>
-But two briefs captured the policy argument best. One made the
- argument
-I've already described: A brief by Hal Roach Studios argued that
-unless the law was struck, a whole generation of American film would
-disappear. The other made the economic argument absolutely clear.
+But two briefs captured the policy argument best. One made the
+argument I've already described: A brief by Hal Roach Studios argued
+that unless the law was struck, a whole generation of American film
+would disappear. The other made the economic argument absolutely
+clear.
</para>
+<indexterm><primary>Akerlof, George</primary></indexterm>
+<indexterm><primary>Arrow, Kenneth</primary></indexterm>
+<indexterm><primary>Buchanan, James</primary></indexterm>
+<indexterm><primary>Coase, Ronald</primary></indexterm>
+<indexterm><primary>Friedman, Milton</primary></indexterm>
<para>
This economists' brief was signed by seventeen economists, including
five Nobel Prize winners, including Ronald Coase, James Buchanan,
-Milton Friedman, Kenneth Arrow, and George Akerlof. The
- economists,
-as the list of Nobel winners demonstrates, spanned the political
+Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
+the list of Nobel winners demonstrates, spanned the political
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 to describe
-special-interest legislation gone wild.
-</para>
-<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 us from the start. But when the case got to the Supreme Court,
-we added three lawyers to help us frame this argument to this Court:
-Alan Morrison, a lawyer from Public Citizen, a Washington group
-that had made constitutional history with a series of seminal victories
-in the Supreme Court defending individual rights; my colleague and
-dean, Kathleen Sullivan, who had argued many cases in the Court, and
+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
+to describe special-interest legislation gone wild.
+</para>
+<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
+us from the start. But when the case got to the Supreme Court, we
+added three lawyers to help us frame this argument to this Court: Alan
+Morrison, a lawyer from Public Citizen, a Washington group that had
+made constitutional history with a series of seminal victories in the
+Supreme Court defending individual rights; my colleague and dean,
+Kathleen Sullivan, who had argued many cases in the Court, and
<!-- PAGE BREAK 240 -->
-who had advised us early on about a First Amendment strategy; and
- finally,
-former solicitor general Charles Fried.
+who had advised us early on about a First Amendment strategy; and
+finally, former solicitor general Charles Fried.
+<indexterm><primary>Fried, Charles</primary></indexterm>
+<indexterm><primary>Morrison, Alan</primary></indexterm>
+<indexterm><primary>Public Citizen</primary></indexterm>
</para>
<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
media companies the special favor of extended copyright terms. Fried
-was the only one who turned down that lucrative assignment to stand
-up for something he believed in. He had been Ronald Reagan's chief
-lawyer in the Supreme Court. He had helped craft the line of cases that
+was the only one who turned down that lucrative assignment to stand up
+for something he believed in. He had been Ronald Reagan's chief lawyer
+in the Supreme Court. He had helped craft the line of cases that
limited Congress's power in the context of the Commerce Clause. And
-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.
+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
copyright holders.
</para>
<para>
-The media companies were not surprising. They had the most to
-gain from the law. The congressmen were not surprising either—they
-were defending their power and, indirectly, the gravy train of
- contributions
-such power induced. And of course it was not surprising that the
-copyright holders would defend the idea that they should continue to
-have the right to control who did what with content they wanted to
-control.
+The media companies were not surprising. They had the most to gain
+from the law. The congressmen were not surprising either—they
+were defending their power and, indirectly, the gravy train of
+contributions such power induced. And of course it was not surprising
+that the copyright holders would defend the idea that they should
+continue to have the right to control who did what with content they
+wanted to control.
</para>
<para>
Dr. Seuss's representatives, for example, argued that it was
domain, then people could use it to "glorify drugs or to create
pornography."<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 Americans in the cast.<footnote><para>
+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 <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.
+Mouse Joins the Fray," <citetitle>New York Times</citetitle>, 28 March 1998, B7.
</para></footnote>
- That's
-
+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.
-</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 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 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.
-</para>
-<para>
-We argued as much in a final brief. Not only would upholding the
-CTEA mean that there was no limit to the power of Congress to extend
-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,
+<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
+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
+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.
+</para>
+<para>
+We argued as much in a final brief. Not only would upholding the CTEA
+mean that there was no limit to the power of Congress to extend
+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>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
+<para>
+The Supreme Court was divided into two important camps. One camp we
+called "the Conservatives." The other we called "the Rest." The
+Conservatives included Chief Justice Rehnquist, Justice O'Connor,
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>
<para>
The Rest were the four Justices who had strongly opposed limits on
-Congress's power. These four—Justice Stevens, Justice Souter, Justice
-Ginsburg, and Justice Breyer—had repeatedly argued that the
- Constitution
+Congress's power. These four—Justice Stevens, Justice Souter,
+Justice Ginsburg, and Justice Breyer—had repeatedly argued that
+the Constitution
<!-- PAGE BREAK 242 -->
-gives Congress broad discretion to decide how best to
- implement
-its powers. In case after case, these justices had argued that the
-Court's role should be one of deference. Though the votes of these four
+gives Congress broad discretion to decide how best to implement its
+powers. In case after case, these justices had argued that the Court's
+role should be one of deference. Though the votes of these four
justices were the votes that I personally had most consistently agreed
with, they were also the votes that we were least likely to get.
</para>
<para>
In particular, the least likely was Justice Ginsburg's. In addition to
her general view about deference to Congress (except where issues of
-gender are involved), she had been particularly deferential in the
- context
-of intellectual property protections. She and her daughter (an
- excellent
-and well-known intellectual property scholar) were cut from
+gender are involved), she had been particularly deferential in the
+context of intellectual property protections. She and her daughter (an
+excellent and well-known intellectual property scholar) were cut from
the same intellectual property cloth. We expected she would agree with
-the writings of her daughter: that Congress had the power in this
- context
-to do as it wished, even if what Congress wished made little sense.
+the writings of her daughter: that Congress had the power in this
+context to do as it wished, even if what Congress wished made little
+sense.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-Close behind Justice Ginsburg were two justices whom we also
-viewed as unlikely allies, though possible surprises. Justice Souter
-strongly favored deference to Congress, as did Justice Breyer. But both
-were also very sensitive to free speech concerns. And as we strongly
- believed,
-there was a very important free speech argument against these
-retrospective extensions.
+Close behind Justice Ginsburg were two justices whom we also viewed as
+unlikely allies, though possible surprises. Justice Souter strongly
+favored deference to Congress, as did Justice Breyer. But both were
+also very sensitive to free speech concerns. And as we strongly
+believed, there was a very important free speech argument against
+these retrospective extensions.
</para>
<para>
The only vote we could be confident about was that of Justice
generally. We were fairly confident he would recognize limits here.
</para>
<para>
-This analysis of "the Rest" showed most clearly where our focus
-had to be: on the Conservatives. To win this case, we had to crack open
-these five and get at least a majority to go our way. Thus, the single
- overriding
-argument that animated our claim rested on the Conservatives'
-most important jurisprudential innovation—the argument that Judge
-Sentelle had relied upon in the Court of Appeals, that Congress's power
-must be interpreted so that its enumerated powers have limits.
+This analysis of "the Rest" showed most clearly where our focus had to
+be: on the Conservatives. To win this case, we had to crack open these
+five and get at least a majority to go our way. Thus, the single
+overriding argument that animated our claim rested on the
+Conservatives' most important jurisprudential innovation—the
+argument that Judge Sentelle had relied upon in the Court of Appeals,
+that Congress's power must be interpreted so that its enumerated
+powers have limits.
</para>
<para>
This then was the core of our strategy—a strategy for which I am
-responsible. We would get the Court to see that just as with the 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 "limited." Our aim would be to get the Court to
+reconcile <citetitle>Eldred</citetitle> with
+<citetitle>Lopez</citetitle>: If Congress's power to regulate commerce
+was limited, then so, too, must Congress's power to regulate copyright
+be limited.
</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.
+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.
</para>
<para>
There was some truth to the government's claim, but not much. We
were an effective practice; I found ways to take every question back to
this central idea.
</para>
+<indexterm><primary>Ayer, Don</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:
+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
-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."
+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."
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
He may have argued many cases before this Court, I thought, but
he didn't understand its soul. As a clerk, I had seen the Justices do the
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>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
That was a correct answer, but it wasn't the right answer. The right
answer was instead that there was an obvious and profound harm. Any
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>
</para>
<blockquote>
<para>
-justice scalia: You say that the functional equivalent of an
- unlimited
-time would be a violation [of the Constitution], but that's
-precisely the argument that's being made by petitioners here, that
-a limited time which is extendable is the functional equivalent of
-an unlimited time.
+justice scalia: You say that the functional equivalent of an unlimited
+time would be a violation [of the Constitution], but that's precisely
+the argument that's being made by petitioners here, that a limited
+time which is extendable is the functional equivalent of an unlimited
+time.
</para>
</blockquote>
<para>
When Olson was finished, it was my turn to give a closing rebuttal.
Olson's flailing had revived my anger. But my anger still was directed
to the academic, not the practical. The government was arguing as if
-this were the first case ever to consider limits on Congress's Copyright
-and Patent Clause power. Ever the professor and not the advocate, I
-closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause—
-indeed, the very first case striking a law of Congress as exceeding a
- specific
-enumerated power was based upon the Copyright and Patent
-Clause. All true. But it wasn't going to move the Court to my side.
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+Copyright and Patent Clause. All true. But it wasn't going to move the
+Court to my side.
</para>
<para>
As I left the court that day, I knew there were a hundred points I
optimistic.
</para>
<para>
-The government had been asked over and over again, what is the
-limit? Over and over again, it had answered there is no limit. This
-was precisely the answer I wanted the Court to hear. For I could not
-imagine how the Court could understand that the government
- believed
-Congress's power was unlimited under the terms of the
- Copyright
-Clause, and sustain the government's argument. The solicitor
-general had made my argument for me. No matter how often I tried,
-I could not understand how the Court could find that Congress's
-power under the Commerce Clause was limited, but under the
- Copyright
-Clause, unlimited. In those rare moments when I let myself
- believe
-that we may have prevailed, it was because I felt this Court—in
-particular, the Conservatives—would feel itself constrained by the rule
-of law that it had established elsewhere.
+The government had been asked over and over again, what is the limit?
+Over and over again, it had answered there is no limit. This was
+precisely the answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+the Conservatives—would feel itself constrained by the rule of
+law that it had established elsewhere.
</para>
<para>
The morning of January 15, 2003, I was five minutes late to the office
down to see where I had been wrong in my reasoning.
</para>
<para>
-My reasoning. Here was a case that pitted all the money in the
-world against reasoning. And here was the last naïve law professor,
-scouring the pages, looking for reasoning.
+My <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 cited. The
-argument that was the core argument of our case did not even appear
-in the Court's opinion.
+I first scoured the opinion, looking for how the Court would
+distinguish the principle in this case from the principle in
+<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>
<para>
<!-- PAGE BREAK 249 -->
Justice Ginsburg simply ignored the enumerated powers argument.
-Consistent with her view that Congress's power was not limited
- generally,
-she had found Congress's power not limited here.
+Consistent with her view that Congress's power was not limited
+generally, she had found Congress's power not limited here.
</para>
<para>
Her opinion was perfectly reasonable—for her, and for Justice
-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>
<para>
But as I realized what had happened, I couldn't quite believe what I
was reading. I had said there was no way this Court could reconcile
-limited powers with the Commerce Clause and unlimited powers with
-the Progress Clause. It had never even occurred to me that they could
-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.
-</para>
-<para>
-Yet by what right did they get to choose which of the framers'
- values
-they would respect? By what right did they—the silent five—get to
-select the part of the Constitution they would enforce based on the
- values
-they thought important? We were right back to the argument that
-I said I hated at the start: I had failed to convince them that the issue
-here was important, and I had failed to recognize that however much I
-might hate a system in which the Court gets to pick the constitutional
-values that it will respect, that is the system we have.
-</para>
+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 <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
+they would respect? By what right did they—the silent
+five—get to select the part of the Constitution they would
+enforce based on the values they thought important? We were right back
+to the argument that I said I hated at the start: I had failed to
+convince them that the issue here was important, and I had failed to
+recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is
+the system we have.
+</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
Justices Breyer and Stevens wrote very strong dissents. Stevens's
-opinion was crafted internal to the law: He argued that the tradition of
-intellectual property law should not support this unjustified extension
-of terms. He based his argument on a parallel analysis that had
- governed
-in the context of patents (so had we). But the rest of the Court
-discounted the parallel—without explaining how the very same words
-in the Progress Clause could come to mean totally different things
- depending
-upon whether the words were about patents or copyrights.
-The Court let Justice Stevens's charge go unanswered.
+opinion was crafted internal to the law: He argued that the tradition
+of intellectual property law should not support this unjustified
+extension of terms. He based his argument on a parallel analysis that
+had governed in the context of patents (so had we). But the rest of
+the Court discounted the parallel—without explaining how the
+very same words in the Progress Clause could come to mean totally
+different things depending upon whether the words were about patents
+or copyrights. The Court let Justice Stevens's charge go unanswered.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-
<!-- PAGE BREAK 250 -->
-Justice Breyer's opinion, perhaps the best opinion he has ever
- written,
-was external to the Constitution. He argued that the term of
- copyrights
-has become so long as to be effectively unlimited. We had said
-that under the current term, a copyright gave an author 99.8 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 unlimited, then it was
-unconstitutional.
+Justice Breyer's opinion, perhaps the best opinion he has ever
+written, was external to the Constitution. He argued that the term of
+copyrights has become so long as to be effectively unlimited. We had
+said that under the current term, a copyright gave an author 99.8
+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
+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
</para>
<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
-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 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?
+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
+first understand the framers' text, interpreted in their context, in
+light of the structure of the Constitution. That method had produced
+<citetitle>Lopez</citetitle> and many other "originalist" rulings. Where was their
+"originalism" now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
<!-- PAGE BREAK 251 -->
power. And they joined an opinion that didn't even try to explain why
this grant of power could be unlimited, whereas the Commerce Clause
-would be limited. In short, they had joined an opinion that did not
- apply
-to, and was inconsistent with, their own method for interpreting
-the Constitution. This opinion may well have yielded a result that they
-liked. It did not produce a reason that was consistent with their own
-principles.
+would be limited. In short, they had joined an opinion that did not
+apply to, and was inconsistent with, their own method for interpreting
+the Constitution. This opinion may well have yielded a result that
+they liked. It did not produce a reason that was consistent with their
+own principles.
</para>
<para>
My anger with the Conservatives quickly yielded to anger with
For I had let a view of the law that I liked interfere with a view of
the law as it is.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
-Most lawyers, and most law professors, have little patience for
- idealism
-about courts in general and this Supreme Court in particular.
-Most have a much more pragmatic view. When Don Ayer said that
-this case would be won based on whether I could convince the Justices
-that the framers' values were important, I fought the idea, because I
-didn't want to believe that that is how this Court decides. I insisted on
-arguing this case as if it were a simple application of a set of principles.
-I had an argument that followed in logic. I didn't need to waste my
-time showing it should also follow in popularity.
+Most lawyers, and most law professors, have little patience for
+idealism about courts in general and this Supreme Court in particular.
+Most have a much more pragmatic view. When Don Ayer said that this
+case would be won based on whether I could convince the Justices that
+the framers' values were important, I fought the idea, because I
+didn't want to believe that that is how this Court decides. I insisted
+on arguing this case as if it were a simple application of a set of
+principles. I had an argument that followed in logic. I didn't need
+to waste my time showing it should also follow in popularity.
</para>
<para>
As I read back over the transcript from that argument in October, I
-can see a hundred places where the answers could have taken the
- conversation
-in different directions, where the truth about the harm that
-this unchecked power will cause could have been made clear to this
-Court. Justice Kennedy in good faith wanted to be shown. I, idiotically,
-corrected his question. Justice Souter in good faith wanted to be shown
-the First Amendment harms. I, like a math teacher, reframed the
- question
-to make the logical point. I had shown them how they could strike
-this law of Congress if they wanted to. There were a hundred places
-where I could have helped them want to, yet my stubbornness, my
- refusal
-to give in, stopped me. I have stood before hundreds of audiences
-trying to persuade; I have used passion in that effort to persuade; but I
+can see a hundred places where the answers could have taken the
+conversation in different directions, where the truth about the harm
+that this unchecked power will cause could have been made clear to
+this Court. Justice Kennedy in good faith wanted to be shown. I,
+idiotically, corrected his question. Justice Souter in good faith
+wanted to be shown the First Amendment harms. I, like a math teacher,
+reframed the question to make the logical point. I had shown them how
+they could strike this law of Congress if they wanted to. There were a
+hundred places where I could have helped them want to, yet my
+stubbornness, my refusal to give in, stopped me. I have stood before
+hundreds of audiences trying to persuade; I have used passion in that
+effort to persuade; but I
<!-- PAGE BREAK 252 -->
refused to stand before this audience and try to persuade with the
- passion
-I had used elsewhere. It was not the basis on which a court should
-decide the issue.
+passion I had used elsewhere. It was not the basis on which a court
+should decide the issue.
</para>
+<indexterm><primary>Ayer, Don</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
</para>
<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 issue should
-not be raised until it is.
+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
+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
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,
+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. <citetitle>The New York Times</citetitle> wrote in its editorial,
</para>
<blockquote>
<para>
In effect, the Supreme Court's decision makes it likely that we are
seeing the beginning of the end of public domain and the birth of
-copyright perpetuity. The public domain has been a grand
- experiment,
-one that should not be allowed to die. The ability to draw
-freely on the entire creative output of humanity is one of the
- reasons
-we live in a time of such fruitful creative ferment.
+copyright perpetuity. The public domain has been a grand experiment,
+one that should not be allowed to die. The ability to draw freely on
+the entire creative output of humanity is one of the reasons we live
+in a time of such fruitful creative ferment.
</para>
</blockquote>
<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.
-</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
+(<xref linkend="fig-18"/>). The "powerful and wealthy" line is a bit
+unfair. But the punch in the face felt exactly like that.
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
+</para>
+<figure id="fig-18">
+<title>Tom the Dancing Bug cartoon</title>
+<graphic fileref="images/18.png"></graphic>
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
+</figure>
<para>
The image that will always stick in my head is that evoked by the
-quote from The New York Times. That "grand experiment" we call the
+quote from <citetitle>The New York Times</citetitle>. 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 in
-our Constitution a commitment to free culture. In the case that I
- fathered,
-the Supreme Court effectively renounced that commitment. A
+I shrunk the Constitution." 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.
+The day <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>
It was an act of contrition. During the whole of the flight from San
Francisco to Washington, I had heard over and over again in my head
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
Congress allows for those works where its worth is at least $1. But for
everything else, let the content go.
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-The reaction to this idea was amazingly strong. Steve Forbes
- endorsed
+The reaction to this idea was amazingly strong. Steve Forbes endorsed
it in an editorial. I received an avalanche of e-mail and letters
-expressing support. When you focus the issue on lost creativity, people
-can see the copyright system makes no sense. As a good Republican
-might say, here government regulation is simply getting in the way of
-innovation and creativity. And as a good Democrat might say, here the
-government is blocking access and the spread of knowledge for no
-good reason. Indeed, there is no real difference between Democrats
-and Republicans on this issue. Anyone can recognize the stupid harm
-of the present system.
-</para>
-<para>
-Indeed, many recognized the obvious benefit of the registration
- requirement.
-For one of the hardest things about the current system for
-people who want to license content is that there is no obvious place to
-look for the current copyright owners. Since registration is not
- required,
-since marking content is not required, since no formality at all
-is required, it is often impossibly hard to locate copyright owners to ask
-permission to use or license their work. This system would lower these
-costs, by establishing at least one registry where copyright owners
-could be identified.
-</para>
+expressing support. When you focus the issue on lost creativity,
+people can see the copyright system makes no sense. As a good
+Republican might say, here government regulation is simply getting in
+the way of innovation and creativity. And as a good Democrat might
+say, here the government is blocking access and the spread of
+knowledge for no good reason. Indeed, there is no real difference
+between Democrats and Republicans on this issue. Anyone can recognize
+the stupid harm of the present system.
+</para>
+<para>
+Indeed, many recognized the obvious benefit of the registration
+requirement. For one of the hardest things about the current system
+for people who want to license content is that there is no obvious
+place to look for the current copyright owners. Since registration is
+not required, since marking content is not required, since no
+formality at all is required, it is often impossibly hard to locate
+copyright owners to ask permission to use or license their work. This
+system would lower these costs, by establishing at least one registry
+where copyright owners could be identified.
+</para>
+<indexterm><primary>Berlin Act (1908)</primary></indexterm>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
-As I described in chapter 10, formalities in copyright law were
- removed
-in 1976, when Congress followed the Europeans by
- abandoning
+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. --> Until the 1908 Berlin Act of the Berne Convention, national copyright
-legislation sometimes made protection depend upon compliance with
- formalities
-such as registration, deposit, and affixation of notice of the
- author's
-claim of copyright. However, starting with the 1908 act, every text
-of the Convention has provided that "the enjoyment and the exercise" of
-rights guaranteed by the Convention "shall not be subject to any
- formality."
-The prohibition against formalities is presently embodied in Article
-5(2) of the Paris Text of the Berne Convention. Many countries continue
-to impose some form of deposit or registration requirement, albeit not as
-a condition of copyright. French law, for example, requires the deposit of
-copies of works in national repositories, principally the National Museum.
+<!-- f1. -->
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject
+to any formality." The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the National Museum.
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
-of Authors where the author's true name can be filed in the case of
- anonymous
-or pseudonymous works. Paul Goldstein, International Intellectual
-Property Law, Cases and Materials (New York: Foundation Press, 2001),
-15354.
-</para></footnote>
- The
- Europeans
-are said to view copyright as a "natural right." Natural rights
-don't need forms to exist. Traditions, like the Anglo-American
- tradition
-that required copyright owners to follow form if their rights were
-to be protected, did not, the Europeans thought, properly respect the
-dignity of the author. My right as a creator turns on my creativity, not
-upon the special favor of the government.
-</para>
-<para>
-That's great rhetoric. It sounds wonderfully romantic. But it is
- absurd
-copyright policy. It is absurd especially for authors, because a
-world without formalities harms the creator. The ability to spread
+of Authors where the author's true name can be filed in the case of
+anonymous or pseudonymous works. Paul Goldstein, <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
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+</para>
+<para>
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
</para>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
-The fight against formalities achieved its first real victory in Berlin
-in 1908. International copyright lawyers amended the Berne
- Convention
-in 1908, to require copyright terms of life plus fifty years, as well as
-the abolition of copyright formalities. The formalities were hated
- because
-the stories of inadvertent loss were increasingly common. It was
-as if a Charles Dickens character ran all copyright offices, and the
- failure
-to dot an i or cross a t resulted in the loss of widows' only income.
+The fight against formalities achieved its first real victory in
+Berlin in 1908. International copyright lawyers amended the Berne
+Convention in 1908, to require copyright terms of life plus fifty
+years, as well as the abolition of copyright formalities. The
+formalities were hated because the stories of inadvertent loss were
+increasingly common. It was as if a Charles Dickens character ran all
+copyright offices, and the failure to dot an <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
-formalities, especially in the United States, was absurd. The law should
-always have ways of forgiving innocent mistakes. There is no reason
-copyright law couldn't, as well. Rather than abandoning formalities
- totally,
-the response in Berlin should have been to embrace a more
- equitable
-system of registration.
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
</para>
<para>
Even that would have been resisted, however, because registration
a moral claim as well. There was no reason that creative property
<!-- 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," 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.
+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,"
+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.
</para>
<para>
-This argument is correct, but its implications are misleading. For
-the argument in favor of formalities does not depend upon creative
-property being second-class property. The argument in favor of
- formalities
-turns upon the special problems that creative property
- presents.
-The law of formalities responds to the special physics of creative
-property, to assure that it can be efficiently and fairly spread.
+This argument is correct, but its implications are misleading. For the
+argument in favor of formalities does not depend upon creative
+property being second-class property. The argument in favor of
+formalities turns upon the special problems that creative property
+presents. The law of formalities responds to the special physics of
+creative property, to assure that it can be efficiently and fairly
+spread.
</para>
<para>
No one thinks, for example, that land is second-class property just
-because you have to register a deed with a court if your sale of land is
-to be effective. And few would think a car is second-class property just
-because you must register the car with the state and tag it with a
- license.
-In both of those cases, everyone sees that there is an important
-reason to secure registration—both because it makes the markets more
-efficient and because it better secures the rights of the owner. Without
-a registration system for land, landowners would perpetually have to
-guard their property. With registration, they can simply point the
- police
-to a deed. Without a registration system for cars, auto theft would
-be much easier. With a registration system, the thief has a high burden
-to sell a stolen car. A slight burden is placed on the property owner, but
-those burdens produce a much better system of protection for property
-generally.
+because you have to register a deed with a court if your sale of land
+is to be effective. And few would think a car is second-class property
+just because you must register the car with the state and tag it with
+a license. In both of those cases, everyone sees that there is an
+important reason to secure registration—both because it makes
+the markets more efficient and because it better secures the rights of
+the owner. Without a registration system for land, landowners would
+perpetually have to guard their property. With registration, they can
+simply point the police to a deed. Without a registration system for
+cars, auto theft would be much easier. With a registration system, the
+thief has a high burden to sell a stolen car. A slight burden is
+placed on the property owner, but those burdens produce a much better
+system of protection for property generally.
</para>
<para>
It is similarly special physics that makes formalities important in
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
be presumptively uncontrolled.
</para>
<para>
-But now that copyrights can be just about a century long, the
- inability
-to know what is protected and what is not protected becomes a
-huge and obvious burden on the creative process. If the only way a
- 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.
+But now that copyrights can be just about a century long, the
+inability to know what is protected and what is not protected becomes
+a huge and obvious burden on the creative process. If the only way a
+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 <emphasis>because there are no formalities</emphasis>.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
movie based on it. It should become free if it is not worth $1 to you.
</para>
<para>
-Some worry about the burden on authors. Won't the burden of
- registering
-the work mean that the $1 is really misleading? Isn't the hassle
-worth more than $1? Isn't that the real problem with registration?
+Some worry about the burden on authors. Won't the burden of
+registering the work mean that the $1 is really misleading? Isn't the
+hassle worth more than $1? Isn't that the real problem with
+registration?
</para>
<para>
It is. The hassle is terrible. The system that exists now is awful. I
doubt because they are terribly funded) in enabling simple and cheap
<!-- 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?
+registrations. Any real solution to the problem of formalities must
+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.
+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.
</para>
<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 something good might happen here.
+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
+something good might happen here.
+<indexterm><primary>Lofgren, Zoe</primary></indexterm>
</para>
<para>
But at this stage, the lobbyists began to intervene. Jack Valenti and
-the MPAA general counsel came to the congresswoman's office to
-give the view of the MPAA. Aided by his lawyer, as Valenti told me,
-Valenti informed the congresswoman that the MPAA would oppose
-the Eldred Act. The reasons are embarrassingly thin. More importantly,
-their thinness shows something clear about what this debate is
- really
-about.
+the MPAA general counsel came to the congresswoman's office to give
+the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
+informed the congresswoman that the MPAA would oppose the Eldred
+Act. The reasons are embarrassingly thin. More importantly, their
+thinness shows something clear about what this debate is really about.
</para>
<para>
-The MPAA argued first that Congress had "firmly rejected the
- central
+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
<!-- PAGE BREAK 261 -->
long before the Internet made subsequent uses much more likely.
- Second,
-they argued that the proposal would harm poor copyright
- owners—apparently
-those who could not afford the $1 fee. Third, they
- argued
-that Congress had determined that extending a copyright term
-would encourage restoration work. Maybe in the case of the small
- 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 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 copyright to a story
-underlying a film were to pass into the public domain. But what risk is
-that? If it is in the public domain, then the film is a valid derivative use.
-</para>
-<para>
-Finally, the MPAA argued that existing law enabled copyright
-owners to do this if they wanted. But the whole point is that there are
-thousands of copyright owners who don't even know they have a
- copyright
-to give. Whether they are free to give away their copyright or
-not—a controversial claim in any case—unless they know 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.
+Second, they argued that the proposal would harm poor copyright
+owners—apparently those who could not afford the $1 fee. Third,
+they argued that Congress had determined that extending a copyright
+term would encourage restoration work. Maybe in the case of the small
+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
+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
+copyright to a story underlying a film were to pass into the public
+domain. But what risk is that? If it is in the public domain, then the
+film is a valid derivative use.
+</para>
+<para>
+Finally, the MPAA argued that existing law enabled copyright owners to
+do this if they wanted. But the whole point is that there are
+thousands of copyright owners who don't even know they have a
+copyright to give. Whether they are free to give away their copyright
+or not—a controversial claim in any case—unless they know
+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.
</para>
<para>
I used these two cases as a way to frame the war that this book has
<para>
<!-- PAGE BREAK 262 -->
-When the issue is piracy, it is right for the law to back the copyright
-owners. The commercial piracy that I described is wrong and harmful,
-and the law should work to eliminate it. When the issue is p2p
- sharing,
-it is easy to understand why the law backs the owners still: Much
-of this sharing is wrong, even if much is harmless. When the issue is
-copyright terms for the Mickey Mouses of the world, it is possible still
-to understand why the law favors Hollywood: Most people don't
- recognize
-the reasons for limiting copyright terms; it is thus still possible
-to see good faith within the resistance.
-</para>
-<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 oppose a change
-like this, we should ask one simple question:
+When the issue is piracy, it is right for the law to back the
+copyright owners. The commercial piracy that I described is wrong and
+harmful, and the law should work to eliminate it. When the issue is
+p2p sharing, it is easy to understand why the law backs the owners
+still: Much of this sharing is wrong, even if much is harmless. When
+the issue is copyright terms for the Mickey Mouses of the world, it is
+possible still to understand why the law favors Hollywood: Most people
+don't recognize the reasons for limiting copyright terms; it is thus
+still possible to see good faith within the resistance.
+</para>
+<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
+oppose a change like this, we should ask one simple question:
+<indexterm><primary>Kelly, Kevin</primary></indexterm>
</para>
<para>
What does this industry really want?
<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.
+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. <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
domain connected to a public that now has the means to create with it
and to share its own creation.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
What is hard to understand is why the public takes this view. It is
as if the law made airplanes trespassers. The MPAA stands with the
block the progress of others.
</para>
<para>
-All this seems to follow easily from this untroubled acceptance of
-the "property" 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 owner and
-gain permission to build upon his work. The future will be controlled
-by this dead (and often unfindable) hand of the past.
+All this seems to follow easily from this untroubled acceptance of the
+"property" 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
+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>
<para>
There are more than 35 million people with the AIDS virus
importantly, it is seventeen million Africans.
</para>
<para>
-There is no cure for AIDS, but there are drugs to slow its
- progression.
-These antiretroviral therapies are still experimental, but they have
-already had a dramatic effect. In the United States, AIDS patients who
-regularly take a cocktail of these drugs increase their life expectancy
-by ten to twenty years. For some, the drugs make the disease almost
-invisible.
+There is no cure for AIDS, but there are drugs to slow its
+progression. These antiretroviral therapies are still experimental,
+but they have already had a dramatic effect. In the United States,
+AIDS patients who regularly take a cocktail of these drugs increase
+their life expectancy by ten to twenty years. For some, the drugs make
+the disease almost invisible.
</para>
<para>
These drugs are expensive. When they were first introduced in the
<!-- PAGE BREAK 265 -->
These prices are not high because the ingredients of the drugs are
expensive. These prices are high because the drugs are protected by
-patents. The drug companies that produced these life-saving mixes
- enjoy
-at least a twenty-year monopoly for their inventions. They use that
-monopoly power to extract the most they can from the market. That
+patents. The drug companies that produced these life-saving mixes
+enjoy at least a twenty-year monopoly for their inventions. They use
+that monopoly power to extract the most they can from the market. That
power is in turn used to keep the prices high.
</para>
<para>
There are many who are skeptical of patents, especially drug
-patents. I am not. Indeed, of all the areas of research that might be
- supported
-by patents, drug research is, in my view, the clearest case where
-patents are needed. The patent gives the drug company some assurance
-that if it is successful in inventing a new drug to treat a disease, it will
-be able to earn back its investment and more. This is socially an
- extremely
-valuable incentive. I am the last person who would argue that
-the law should abolish it, at least without other changes.
-</para>
-<para>
-But it is one thing to support patents, even drug patents. It is
- another
-thing to determine how best to deal with a crisis. And as African
-leaders began to recognize the devastation that AIDS was bringing,
-they started looking for ways to import HIV treatments at costs
- significantly
-below the market price.
+patents. I am not. Indeed, of all the areas of research that might be
+supported by patents, drug research is, in my view, the clearest case
+where patents are needed. The patent gives the drug company some
+assurance that if it is successful in inventing a new drug to treat a
+disease, it will be able to earn back its investment and more. This is
+socially an extremely valuable incentive. I am the last person who
+would argue that the law should abolish it, at least without other
+changes.
+</para>
+<para>
+But it is one thing to support patents, even drug patents. It is
+another thing to determine how best to deal with a crisis. And as
+African leaders began to recognize the devastation that AIDS was
+bringing, they started looking for ways to import HIV treatments at
+costs significantly below the market price.
</para>
<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 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.
-</para></footnote>
-</para>
-<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), 15057
-(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.
+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
+generally permitted under international trade law and is specifically
+permitted within the European Union.<footnote>
+<para>
+<!-- f2. -->
+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>
+<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), <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>
-<!-- f4. --> 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), 15.
-</para></footnote>
-</para>
-<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 have access to drugs. Poverty and the total absence of an effective
+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), <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), 15. </para></footnote>
+</para>
+<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
+have access to drugs. Poverty and the total absence of an effective
health care infrastructure matter more. But whether patents are the
-most important reason or not, the price of drugs has an effect on their
-demand, and patents affect price. And so, whether massive or
- marginal,
-there was an effect from our government's intervention to stop
-the flow of medications into Africa.
+most important reason or not, the price of drugs has an effect on
+their demand, and patents affect price. And so, whether massive or
+marginal, there was an effect from our government's intervention to
+stop the flow of medications into Africa.
</para>
<para>
By stopping the flow of HIV treatment into Africa, the United
by U.S. companies.
</para>
<para>
-Instead, the argument in favor of restricting this flow of
- information,
-which was needed to save the lives of millions, was an argument
+Instead, the argument in favor of restricting this flow of
+information, which was needed to save the lives of millions, was an
+argument
<!-- 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
-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 and Developing Countries: Democratizing
- Access
-to Essential Medicines," Foreign Policy in Focus 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 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.
+<!-- f5. -->
+See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
+Needs at Odds with Firms' Profit Motive," <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
+and Developing Countries: Democratizing Access to Essential
+Medicines," <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
+Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
+Intellectual Property Rights and Compassion, a Synopsis," <citetitle>Widener Law
+Symposium Journal</citetitle> (Spring 2001): 175.
<!-- PAGE BREAK 333 -->
</para></footnote>
- It was because "intellectual property"
-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 to intervene against the South African
- response
-to AIDS.
+It was because "intellectual property" 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
+to intervene against the South African response to AIDS.
</para>
<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 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?
+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
+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>
<para>
Some blame the drug companies. I don't. They are corporations.
</para>
<para>
The corruption is our own politicians' failure of integrity. For the
-drug companies would love—they say, and I believe them—to sell their
-drugs as cheaply as they can to countries in Africa and elsewhere.
-There are issues they'd have to resolve to make sure the drugs didn't get
-back into the United States, but those are mere problems of
- technology.
-They could be overcome.
+drug companies would love—they say, and I believe them—to
+sell their drugs as cheaply as they can to countries in Africa and
+elsewhere. There are issues they'd have to resolve to make sure the
+drugs didn't get back into the United States, but those are mere
+problems of technology. They could be overcome.
</para>
<para>
A different problem, however, could not be overcome. This is the
What is the argument?
</para>
<para>
-A sensible patent policy could endorse and strongly support the
-patent system without having to reach everyone everywhere in exactly
-the same way. Just as a sensible copyright policy could endorse and
-strongly support a copyright system without having to regulate the
-spread of culture perfectly and forever, a sensible patent policy could
-endorse and strongly support a patent system without having to block
-the spread of drugs to a country not rich enough to afford market
-prices in any case. A sensible policy, in other words, could be a balanced
-policy. For most of our history, both copyright and patent policies were
-balanced in just this sense.
+A sensible patent policy could endorse and strongly support the patent
+system without having to reach everyone everywhere in exactly the same
+way. Just as a sensible copyright policy could endorse and strongly
+support a copyright system without having to regulate the spread of
+culture perfectly and forever, a sensible patent policy could endorse
+and strongly support a patent system without having to block the
+spread of drugs to a country not rich enough to afford market prices
+in any case. A sensible policy, in other words, could be a balanced
+policy. For most of our history, both copyright and patent policies
+were balanced in just this sense.
</para>
<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
+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
<!-- PAGE BREAK 269 -->
-ability, as a people, to develop our culture democratically. Blindness
- becomes
-our common sense. And the challenge for anyone who would
-reclaim the right to cultivate our culture is to find a way to make this
-common sense open its eyes.
+ability, as a people, to develop our culture democratically. Blindness
+becomes our common sense. And the challenge for anyone who would
+reclaim the right to cultivate our culture is to find a way to make
+this common sense open its eyes.
</para>
<para>
So far, common sense sleeps. There is no revolt. Common sense
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,
+<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," <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
+Shift on `Open Source' Meeting Spurs Stir," <citetitle>National Journal's Technology
+Daily</citetitle>, 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
+Opposes `Open Source' Talks at WIPO," <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 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
+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
+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
+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."
+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>academic journals</primary></indexterm>
+<indexterm><primary>IBM</primary></indexterm>
+<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
The aim of the meeting was to consider this wide range of projects
<!-- f7. --> I should disclose that I was one of the people who asked WIPO for the
meeting.
</para></footnote>
-The projects within its scope included both commercial and
- noncommercial
-work. They primarily involved science, but from many
- perspectives.
-And WIPO was an ideal venue for this discussion, since
+The projects within its scope included both commercial and
+noncommercial work. They primarily involved science, but from many
+perspectives. And WIPO was an ideal venue for this discussion, since
WIPO is the preeminent international body dealing with intellectual
property issues.
</para>
<para>
Indeed, I was once publicly scolded for not recognizing this fact
about WIPO. In February 2003, I delivered a keynote address to a
-preparatory conference for the World Summit on the Information
- Society
-(WSIS). At a press conference before the address, I was asked
-what I would say. I responded that I would be talking a little about the
+preparatory conference for the World Summit on the Information Society
+(WSIS). At a press conference before the address, I was asked what I
+would say. I responded that I would be talking a little about the
importance of balance in intellectual property for the development of
-an information society. The moderator for the event then promptly
- interrupted
-to inform me and the assembled reporters that no question
+an information society. The moderator for the event then promptly
+interrupted to inform me and the assembled reporters that no question
about intellectual property would be discussed by WSIS, since those
questions were the exclusive domain of WIPO. In the talk that I had
-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 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 stuff of
+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
+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
+stuff of
<!-- PAGE BREAK 271 -->
WIPO. But in my view, there couldn't be too much of a conversation
about how much intellectual property is needed, since in my view, the
very idea of balance in intellectual property had been lost.
</para>
<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.
-</para>
-<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 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.
-</para>
-<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
+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.
+</para>
+<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
+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.
+</para>
+<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, 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" 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 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 May 2001), available at
+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,
+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"
+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," <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, <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>
+<indexterm><primary>IBM</primary></indexterm>
+<indexterm><primary>"copyleft" licenses</primary></indexterm>
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
More important for our purposes, to support "open source and free
-software" is not to oppose copyright. "Open source and free
- software"
+software" is not to oppose copyright. "Open source and free software"
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 by
+quite strongly that the terms of their software license be respected
+by
<!-- PAGE BREAK 272 -->
-adopters of free and open source software. The terms of that license are
-no doubt different from the terms of a proprietary software license.
-Free software licensed under the General Public License (GPL), for
-example, requires that the source code for the software be made
- available
-by anyone who modifies and redistributes the software. But that
-requirement is effective only if copyright governs software. If copyright
-did not govern software, then free software could not impose the same
-kind of requirements on its adopters. It thus depends upon copyright
-law just as Microsoft does.
-</para>
-<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 States government
-to veto the meeting.<footnote><para>
-<!-- f9. --> Krim, "The Quiet War over Open-Source," available at
-<ulink url="http://free-culture.cc/notes/">link #64</ulink>.
-</para></footnote>
- And without U.S. backing, the meeting was
- canceled.
-</para>
-<para>
-I don't blame Microsoft for doing what it can to advance its own
- interests,
-consistent with the law. And lobbying governments is plainly
-consistent with the law. There was nothing surprising about its
- lobbying
-here, and nothing terribly surprising about the most powerful
- software
-producer in the United States having succeeded in its lobbying
-efforts.
+adopters of free and open source software. The terms of that license
+are no doubt different from the terms of a proprietary software
+license. Free software licensed under the General Public License
+(GPL), for example, requires that the source code for the software be
+made available by anyone who modifies and redistributes the
+software. But that requirement is effective only if copyright governs
+software. If copyright did not govern software, then free software
+could not impose the same kind of requirements on its adopters. It
+thus depends upon copyright law just as Microsoft does.
+</para>
+<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
+<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
+url="http://free-culture.cc/notes/">link #64</ulink>.
+</para></footnote>
+And without U.S. backing, the meeting was canceled.
+<indexterm><primary>Krim, Jonathan</primary></indexterm>
+</para>
+<para>
+I don't blame Microsoft for doing what it can to advance its own
+interests, consistent with the law. And lobbying governments is
+plainly consistent with the law. There was nothing surprising about
+its lobbying here, and nothing terribly surprising about the most
+powerful software producer in the United States having succeeded in
+its lobbying efforts.
</para>
<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 to
- disclaim
-or waive such rights seems to us to be contrary to the goals of
-WIPO."
+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
+to disclaim or waive such rights seems to us to be contrary to the
+goals of WIPO."
</para>
<para>
These statements are astonishing on a number of levels.
<!-- 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 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.
+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
+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>
<para>
Second, who ever said that WIPO's exclusive aim was to "promote"
-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
- intellectual
-property is. As every economist and lawyer knows, the hard
- question
-in intellectual property law is to find that balance. But that there
-should be limits is, I had thought, uncontested. One wants to ask Ms.
-Boland, are generic drugs (drugs based on drugs whose patent has
-expired) contrary to the WIPO mission? Does the public domain
-weaken intellectual property? Would it have been better if the
- protocols
-of the Internet had been patented?
-</para>
-<para>
-Third, even if one believed that the purpose of WIPO was to
- maximize
+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
+intellectual property is. As every economist and lawyer knows, the
+hard question in intellectual property law is to find that
+balance. But that there should be limits is, I had thought,
+uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
+based on drugs whose patent has expired) contrary to the WIPO mission?
+Does the public domain weaken intellectual property? Would it have
+been better if the protocols of the Internet had been patented?
+</para>
+<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
+what to do with those rights because, again, they are
+<emphasis>their</emphasis> 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.
+to do with <emphasis>their</emphasis> property.
+<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<para>
-When Ms. Boland says that there is something wrong with a
- meeting
+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
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 is
-not just that intellectual property rights be maximized, but that they also
-should be exercised in the most extreme and restrictive way possible.
+WIPO's objective should be to stop an individual from "waiving" or
+"disclaiming" 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>
<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
- 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 strong
-interest in assuring that property holders within that system not
-weaken feudalism by liberating people or property within their control
-to the free market. Feudalism depended upon maximum control and
-concentration. It fought any freedom that might interfere with that
-control.
-</para>
+in the Anglo-American tradition. It is called "feudalism." 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
+strong interest in assuring that property holders within that system
+not weaken feudalism by liberating people or property within their
+control to the free market. Feudalism depended upon maximum control
+and concentration. It fought any freedom that might interfere with
+that control.
+</para>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
<para>
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, 21020.
+<!-- f10. -->
+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.
+We will have an information society. That much is certain. Our only
+choice now is whether that information society will be
+<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is
+toward the feudal.
</para>
<para>
When this battle broke, I blogged it. A spirited debate within the
comment section ensued. Ms. Boland had a number of supporters who
-tried to show why her comments made sense. But there was one
- comment
-that was particularly depressing for me. An anonymous poster
-wrote,
+tried to show why her comments made sense. But there was one comment
+that was particularly depressing for me. An anonymous poster wrote,
</para>
<blockquote>
<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, should be to promote the right balance of
- intellectualproperty
-rights, not simply to promote intellectual property
-rights"), 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
+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,
+should be to promote the right balance of intellectual property rights,
+not simply to promote intellectual property rights"), 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 -->
-as Lessig would have it, then of course she did. Always pay
- attention
+as Lessig would have it, then of course she did. Always pay attention
to the distinction between Lessig's world and ours.
</para>
</blockquote>
whether our government should speak the truth or not.)
</para>
<para>
-Obviously, however, the poster was not supporting that idea.
- Instead,
+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
- 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.
-</para>
-<para>
-I understand criticism of academic utopianism. I think utopianism
-is silly, too, and I'd be the first to poke fun at the absurdly unrealistic
-ideals of academics throughout history (and not just in our own
- country's
-history).
-</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, 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
+"goal" of a government should be "to promote the right balance" 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.
+</para>
+<para>
+I understand criticism of academic utopianism. I think utopianism is
+silly, too, and I'd be the first to poke fun at the absurdly
+unrealistic ideals of academics throughout history (and not just in
+our own country's history).
+</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,
+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
the idea of holding the government to a different standard is absurd,
that the idea of demanding of the government that it speak truth and
-not lies is just naïve, then who have we, the most powerful democracy
-in the world, become?
+not lies is just naïve, then who have we, the most powerful
+democracy in the world, become?
</para>
<para>
It might be crazy to expect a high government official to speak
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.
+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>
+<indexterm><primary>Safire, William</primary></indexterm>
</para>
<para>
-This activism did not stop the FCC, but soon after, a broad
- coalition
-in the Senate voted to reverse the FCC decision. The hostile
- hearings
-leading up to that vote revealed just how powerful this movement
-had become. There was no substantial support for the FCC's decision,
-and there was broad and sustained support for fighting further
- concentration
-in the media.
+This activism did not stop the FCC, but soon after, a broad coalition
+in the Senate voted to reverse the FCC decision. The hostile hearings
+leading up to that vote revealed just how powerful this movement had
+become. There was no substantial support for the FCC's decision, and
+there was broad and sustained support for fighting further
+concentration in the media.
</para>
<para>
But even this movement misses an important piece of the puzzle.
Largeness as such is not bad. Freedom is not threatened just because
-some become very rich, or because there are only a handful of big
- players.
-The poor quality of Big Macs or Quarter Pounders does not mean
-that you can't get a good hamburger from somewhere else.
+some become very rich, or because there are only a handful of big
+players. The poor quality of Big Macs or Quarter Pounders does not
+mean that you can't get a good hamburger from somewhere else.
</para>
<para>
-The danger in media concentration comes not from the
- concentration,
+The danger in media concentration comes not from the concentration,
but instead from the feudalism that this concentration, tied to the
-change in copyright, produces. It is not just that there are a few
- powerful
-companies that control an ever expanding slice of the media. It
-is that this concentration can call upon an equally bloated range of
-rights—property rights of a historically extreme form—that makes
-their bigness bad.
+change in copyright, produces. It is not just that there are a few
+powerful companies that control an ever expanding slice of the
+media. It is that this concentration can call upon an equally bloated
+range of rights—property rights of a historically extreme
+form—that makes their bigness bad.
</para>
<!-- PAGE BREAK 277 -->
<para>
-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.
+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.
</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 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.
+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
+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.
</para>
<para>
If we were Achilles, this would be our heel. This would be the place
of our tragedy.
</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>
-<!-- f11. --> John Borland, "RIAA Sues 261 File Swappers," 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 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
+<!-- f11. -->
+John Borland, "RIAA Sues 261 File Swappers," 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
+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," <citetitle>New York Daily News</citetitle>, 9
+September 2003, 3; 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; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
- available
-at
+Defendants," <citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean,
+"Schoolgirl Settles with RIAA," <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 music.<footnote><para>
-<!-- f12. --> Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com,
-17 September 2003, available at
+Eminem has just been sued for "sampling" someone else's
+music.<footnote><para>
+<!-- f12. -->
+Jon Wiederhorn, "Eminem Gets Sued … by a Little Old Lady,"
+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
- 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
+The story about Bob Dylan "stealing" 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
<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 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
- 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>
+An insider from Hollywood—who insists he must remain
+anonymous—reports "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
+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>Creative Commons</primary></indexterm>
+<indexterm><primary>Gil, Gilberto</primary></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
24 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
</para></footnote>
- And in Brazil, the
-culture minister, Gilberto Gil, himself a folk hero of Brazilian music,
-has joined with Creative Commons to release content and free licenses
-in that Latin American country.<footnote><para>
-<!-- f15. --> "Creative Commons and Brazil," Creative Commons Weblog, 6 August
-2003, available at
+And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
+of Brazilian music, has joined with Creative Commons to release
+content and free licenses in that Latin American
+country.<footnote><para>
+<!-- f15. -->
+"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
</para></footnote>
<!-- PAGE BREAK 278 -->
</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.
+At least some who have read this far will agree with me that something
+must be done to change where we are heading. The balance of this book
+maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
it requires remaking how many people think about the very same issue.
</para>
<para>
-That means this movement must begin in the streets. It must
- recruit
-a significant number of parents, teachers, librarians, creators,
- authors,
-musicians, filmmakers, scientists—all to tell this story in their
-own words, and to tell their neighbors why this battle is so important.
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators,
+authors, musicians, filmmakers, scientists—all to tell this
+story in their own words, and to tell their neighbors why this battle
+is so important.
</para>
<para>
Once this movement has its effect in the streets, it has some hope of
</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.
+Common sense is with the copyright warriors because the debate so far
+has been framed at the extremes—as a grand either/or: either
+property or anarchy, either total control or artists won't be paid. If
+that really is the choice, then the warriors should win.
</para>
<para>
-The mistake here is the error of the excluded middle. There are
- extremes
-in this debate, but the extremes are not all that there is. There
-are those who believe in maximal copyright—"All Rights Reserved"—
-and those who reject copyright—"No Rights Reserved." The "All
-Rights Reserved" sorts believe that you should ask permission before
-you "use" a copyrighted work in any way. The "No Rights Reserved"
-sorts believe you should be able to do with content as you wish,
- regardless
-of whether you have permission or not.
+The mistake here is the error of the excluded middle. There are
+extremes in this debate, but the extremes are not all that there
+is. There are those who believe in maximal copyright—"All Rights
+Reserved"— and those who reject copyright—"No Rights
+Reserved." The "All Rights Reserved" sorts believe that you should ask
+permission before you "use" a copyrighted work in any way. The "No
+Rights Reserved" sorts believe you should be able to do with content
+as you wish, regardless of whether you have permission or not.
</para>
<para>
When the Internet was first born, its initial architecture effectively
tilted in the "no rights reserved" direction. Content could be copied
-perfectly and cheaply; rights could not easily be controlled. Thus,
- regardless
-of anyone's desire, the effective regime of copyright under the
+perfectly and cheaply; rights could not easily be controlled. Thus,
+regardless of anyone's desire, the effective regime of copyright under
+the
<!-- PAGE BREAK 282 -->
original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
- unprotected.
+"taken" regardless of the rights. Any rights were effectively
+unprotected.
</para>
<para>
This initial character produced a reaction (opposite, but not quite
equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
-design, copyright holders have been able to change the essential
- character
-of the environment of the original Internet. If the original
- architecture
-made the effective default "no rights reserved," the future
-architecture will make the effective default "all rights reserved." The
- architecture
-and law that surround the Internet's design will increasingly
-produce an environment where all use of content requires permission.
-The "cut and paste" world that defines the Internet today will become
-a "get permission to cut and paste" world that is a creator's nightmare.
-</para>
-<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 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">
+design, copyright holders have been able to change the essential
+character of the environment of the original Internet. If the original
+architecture made the effective default "no rights reserved," the
+future architecture will make the effective default "all rights
+reserved." The architecture and law that surround the Internet's
+design will increasingly produce an environment where all use of
+content requires permission. The "cut and paste" world that defines
+the Internet today will become a "get permission to cut and paste"
+world that is a creator's nightmare.
+</para>
+<para>
+What's needed is a way to say something in the middle—neither
+"all rights reserved" nor "no rights reserved" but "some rights
+reserved"— 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>
+
+<section id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
-If you step back from the battle I've been describing here, you will
- recognize
-this problem from other contexts. Think about privacy. Before
-the Internet, most of us didn't have to worry much about data about
-our lives that we broadcast to the world. If you walked into a bookstore
-and browsed through some of the works of Karl Marx, you didn't need
-to worry about explaining your browsing habits to your neighbors or
-boss. The "privacy" of your browsing habits was assured.
+If you step back from the battle I've been describing here, you will
+recognize this problem from other contexts. Think about
+privacy. Before the Internet, most of us didn't have to worry much
+about data about our lives that we broadcast to the world. If you
+walked into a bookstore and browsed through some of the works of Karl
+Marx, you didn't need to worry about explaining your browsing habits
+to your neighbors or boss. The "privacy" of your browsing habits was
+assured.
</para>
<para>
What made it assured?
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture for
+<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 enough to
-spend the thousands required to track you. But for most of us (again,
-we can hope), spying doesn't pay. The highly inefficient architecture of
-real space means we all enjoy a fairly robust amount of privacy. That
-privacy is guaranteed to us by friction. Not by law (there is no law
- protecting
-"privacy" in public places), and in many places, not by norms
-(snooping and gossip are just fun), but instead, by the costs that
- friction
-imposes on anyone who would want to spy.
-</para>
-<para>
-Enter the Internet, where the cost of tracking browsing in
- particular
+wanted to gather that data. If you were a suspected spy for North
+Korea, working for the CIA, no doubt your privacy would not be
+assured. But that's because the CIA would (we hope) find it valuable
+enough to spend the thousands required to track you. But for most of
+us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount
+of privacy. That privacy is guaranteed to us by friction. Not by law
+(there is no law protecting "privacy" in public places), and in many
+places, not by norms (snooping and gossip are just fun), but instead,
+by the costs that friction imposes on anyone who would want to spy.
+</para>
+<indexterm><primary>Amazon</primary></indexterm>
+<para>
+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 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" protected by
-the friction disappears, too.
-</para>
-<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
- government
-knowing which books you look at (I'm one of those lefties,
+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
+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"
+protected by the friction disappears, too.
+<indexterm><primary>cookies, Internet</primary></indexterm>
+</para>
+<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
+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.
+you. If it becomes simple to gather and sort who does what in
+electronic spaces, then the friction-induced privacy of yesterday
+disappears.
</para>
<para>
It is this reality that explains the push of many to define "privacy"
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
- friction
-did.<footnote><para>
-<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
- Architecture
-of Privacy (What Larry Doesn't Get)," Stanford Technology Law
-Review 1 (2001): par. 618, available at
-<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
-which technology defines privacy policy). See also Jeffrey Rosen, The Naked
-Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
- Random
-House, 2004) (mapping tradeoffs between technology and privacy).
-</para></footnote>
- And whether you're in favor of those laws or not, it is the
- pattern
+friction did.<footnote><para>
+<!-- f1. -->
+
+See, for example, Marc Rotenberg, "Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get)," <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, <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
<!-- PAGE BREAK 284 -->
-kind of freedom that was passively provided before. A change in
- technology
-now forces those who believe in privacy to affirmatively act
-where, before, privacy was given by default.
+kind of freedom that was passively provided before. A change in
+technology now forces those who believe in privacy to affirmatively
+act where, before, privacy was given by default.
</para>
<para>
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
-commercially, the software—both the source code and the binaries—
-was free. You couldn't run a program written for a Data General
- machine
-on an IBM machine, so Data General and IBM didn't care much
-about controlling their software.
-</para>
-<para>
-That was the world Richard Stallman was born into, and while he
-was a researcher at MIT, he grew to love the community that
- developed
-when one was free to explore and tinker with the software that
-ran on machines. Being a smart sort himself, and a talented
- programmer,
-Stallman grew to depend upon the freedom to add to or modify
-other people's work.
-</para>
-<para>
-In an academic setting, at least, that's not a terribly radical idea. In
-a math department, anyone would be free to tinker with a proof that
-someone offered. If you thought you had a better way to prove a
- theorem,
-you could take what someone else did and change it. In a classics
-department, if you believed a colleague's translation of a recently
- discovered
-text was flawed, you were free to improve it. Thus, to Stallman,
-it seemed obvious that you should be free to tinker with and improve
-the code that ran a machine. This, too, was knowledge. Why shouldn't
-it be open for criticism like anything else?
+commercially, the software—both the source code and the
+binaries— was free. You couldn't run a program written for a
+Data General machine on an IBM machine, so Data General and IBM didn't
+care much about controlling their software.
+<indexterm><primary>IBM</primary></indexterm>
+</para>
+<indexterm><primary>Stallman, Richard</primary></indexterm>
+<para>
+That was the world Richard Stallman was born into, and while he was a
+researcher at MIT, he grew to love the community that developed when
+one was free to explore and tinker with the software that ran on
+machines. Being a smart sort himself, and a talented programmer,
+Stallman grew to depend upon the freedom to add to or modify other
+people's work.
+</para>
+<para>
+In an academic setting, at least, that's not a terribly radical
+idea. In a math department, anyone would be free to tinker with a
+proof that someone offered. If you thought you had a better way to
+prove a theorem, you could take what someone else did and change
+it. In a classics department, if you believed a colleague's
+translation of a recently discovered text was flawed, you were free to
+improve it. Thus, to Stallman, it seemed obvious that you should be
+free to tinker with and improve the code that ran a machine. This,
+too, was knowledge. Why shouldn't it be open for criticism like
+anything else?
</para>
<para>
No one answered that question. Instead, the architecture of revenue
-for computing changed. As it became possible to import programs
-from one system to another, it became economically attractive (at least
-in the view of some) to hide the code of your program. So, too, as
- companies
-started selling peripherals for mainframe systems. If I could just
-take your printer driver and copy it, then that would make it easier for
-me to sell a printer to the market than it was for you.
+for computing changed. As it became possible to import programs from
+one system to another, it became economically attractive (at least in
+the view of some) to hide the code of your program. So, too, as
+companies started selling peripherals for mainframe systems. If I
+could just take your printer driver and copy it, then that would make
+it easier for me to sell a printer to the market than it was for you.
</para>
<para>
Thus, the practice of proprietary code began to spread, and by the
early 1980s, Stallman found himself surrounded by proprietary code.
<!-- PAGE BREAK 285 -->
-The world of free software had been erased by a change in the
- economics
-of computing. And as he believed, if he did nothing about it,
-then the freedom to change and share software would be
- fundamentally
-weakened.
+The world of free software had been erased by a change in the
+economics of computing. And as he believed, if he did nothing about
+it, then the freedom to change and share software would be
+fundamentally weakened.
</para>
<para>
-Therefore, in 1984, Stallman began a project to build a free
- operating
+Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
+<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
-software that must be kept free. Software licensed under the Free
- Software
-Foundation's GPL cannot be modified and distributed unless the
-source code for that software is made available as well. Thus, anyone
-building upon GPL'd software would have to make their buildings free
-as well. This would assure, Stallman believed, that an ecology of code
-would develop that remained free for others to build upon. His
- fundamental
-goal was freedom; innovative creative code was a byproduct.
+software that must be kept free. Software licensed under the Free
+Software Foundation's GPL cannot be modified and distributed unless
+the source code for that software is made available as well. Thus,
+anyone building upon GPL'd software would have to make their buildings
+free as well. This would assure, Stallman believed, that an ecology of
+code would develop that remained free for others to build upon. His
+fundamental goal was freedom; innovative creative code was a
+byproduct.
</para>
<para>
Stallman was thus doing for software what privacy advocates now
with the story of this book. This is the shift in the way academic and
scientific journals are produced.
</para>
+<indexterm id="idxacademocjournals" class='startofrange'>
+ <primary>academic journals</primary>
+</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 libraries is perhaps not the most efficient way to distribute
+As digital technologies develop, it is becoming obvious to many that
+printing thousands of copies of journals every month and sending them
+to libraries is perhaps not the most efficient way to distribute
knowledge. Instead, journals are increasingly becoming electronic, and
-libraries and their users are given access to these electronic journals
-through password-protected sites. Something similar to this has been
-happening in law for almost thirty years: Lexis and Westlaw have had
-electronic versions of case reports available to subscribers to their
- service.
-Although a Supreme Court opinion is not copyrighted, and
- anyone
-is free to go to a library and read it, Lexis and Westlaw are also free
+libraries and their users are given access to these electronic
+journals through password-protected sites. Something similar to this
+has been happening in law for almost thirty years: Lexis and Westlaw
+have had electronic versions of case reports available to subscribers
+to their service. Although a Supreme Court opinion is not
+copyrighted, and anyone is free to go to a library and read it, Lexis
+and Westlaw are also free
<!-- PAGE BREAK 286 -->
to charge users for the privilege of gaining access to that Supreme
Court opinion through their respective services.
</para>
<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
+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
for people to develop new and innovative ways to spread knowledge.
-The law has agreed, which is why Lexis and Westlaw have been
- allowed
+The law has agreed, which is why Lexis and Westlaw have been allowed
to flourish. And if there's nothing wrong with selling the public
domain, then there could be nothing wrong, in principle, with selling
access to material that is not in the public domain.
</para>
<para>
As many are beginning to notice, this is increasingly the reality with
-scientific journals. When these journals were distributed in paper form,
-libraries could make the journals available to anyone who had access to
-the library. Thus, patients with cancer could become cancer experts
- because
-the library gave them access. Or patients trying to understand
-the risks of a certain treatment could research those risks by reading all
-available articles about that treatment. This freedom was therefore a
-function of the institution of libraries (norms) and the technology of
-paper journals (architecture)—namely, that it was very hard to control
-access to a paper journal.
-</para>
-<para>
-As journals become electronic, however, the publishers are
- demanding
-that libraries not give the general public access to the journals. This
-means that the freedoms provided by print journals in public libraries
-begin to disappear. Thus, as with privacy and with software, a changing
-technology and market shrink a freedom taken for granted before.
+scientific journals. When these journals were distributed in paper
+form, libraries could make the journals available to anyone who had
+access to the library. Thus, patients with cancer could become cancer
+experts because the library gave them access. Or patients trying to
+understand the risks of a certain treatment could research those risks
+by reading all available articles about that treatment. This freedom
+was therefore a function of the institution of libraries (norms) and
+the technology of paper journals (architecture)—namely, that it
+was very hard to control access to a paper journal.
+</para>
+<para>
+As journals become electronic, however, the publishers are demanding
+that libraries not give the general public access to the
+journals. This means that the freedoms provided by print journals in
+public libraries begin to disappear. Thus, as with privacy and with
+software, a changing technology and market shrink a freedom taken for
+granted before.
</para>
<para>
This shrinking freedom has led many to take affirmative steps to
scientific research available to anyone with a Web connection. Authors
<!-- PAGE BREAK 287 -->
of scientific work submit that work to the Public Library of Science.
-That work is then subject to peer review. If accepted, the work is then
-deposited in a public, electronic archive and made permanently
- 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.
+That work is then subject to peer review. If accepted, the work is
+then deposited in a public, electronic archive and made permanently
+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>
<para>
This is one of many such efforts to restore a freedom taken for
-granted before, but now threatened by changing technology and
- markets.
-There's no doubt that this alternative competes with the
- traditional
+granted before, but now threatened by changing technology and markets.
+There's no doubt that this alternative competes with the traditional
publishers and their efforts to make money from the exclusive
-distribution of content. But competition in our tradition is
- presumptively
-a good—especially when it helps spread knowledge and science.
+distribution of content. But competition in our tradition is
+presumptively a good—especially when it helps spread knowledge
+and science.
</para>
+<indexterm startref="idxacademocjournals" class='endofrange'/>
-</sect2>
-<sect2 id="oneidea">
+</section>
+<section id="oneidea">
<title>Rebuilding Free Culture: One Idea</title>
+<indexterm id="idxcc" 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.
+The same strategy could be applied to culture, as a response to the
+increasing control effected through law and technology.
</para>
<para>
-Enter the Creative Commons. The Creative Commons is a
- nonprofit
+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
+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
-CC mark, which does not mean that copyright is waived, but that
- certain
-freedoms are given.
+CC mark, which does not mean that copyright is waived, but that
+certain freedoms are given.
</para>
<para>
These freedoms are beyond the freedoms promised by fair use. Their
-precise contours depend upon the choices the creator makes. The
- 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 at all within developing
-nations. Or any sampling use, so long as full copies are not made. Or
-lastly, any educational use.
-</para>
-<para>
-These choices thus establish a range of freedoms beyond the default
-of copyright law. They also enable freedoms that go beyond traditional
+precise contours depend upon the choices the creator makes. The
+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
+at all within developing nations. Or any sampling use, so long as full
+copies are not made. Or lastly, any educational use.
+</para>
+<para>
+These choices thus establish a range of freedoms beyond the default of
+copyright law. They also enable freedoms that go beyond traditional
fair use. And most importantly, they express these freedoms in a way
that subsequent users can use and rely upon without the need to hire a
-lawyer. Creative Commons thus aims to build a layer of content,
- governed
-by a layer of reasonable copyright law, that others can build
-upon. Voluntary choice of individuals and creators will make this
- content
-available. And that content will in turn enable us to rebuild a
- public
-domain.
-</para>
-<para>
-This is just one project among many within the Creative
- Commons.
-And of course, Creative Commons is not the only organization
-pursuing such freedoms. But the point that distinguishes the Creative
-Commons from many is that we are not interested only in talking
-about a public domain or in getting legislators to help build a public
-domain. Our aim is to build a movement of consumers and producers
+lawyer. Creative Commons thus aims to build a layer of content,
+governed by a layer of reasonable copyright law, that others can build
+upon. Voluntary choice of individuals and creators will make this
+content available. And that content will in turn enable us to rebuild
+a public domain.
+</para>
+<para>
+This is just one project among many within the Creative Commons. And
+of course, Creative Commons is not the only organization pursuing such
+freedoms. But the point that distinguishes the Creative Commons from
+many is that we are not interested only in talking about a public
+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)
who help build the public domain and, by their work, demonstrate the
importance of the public domain to other creativity.
-</para>
-<para>
-The aim is not to fight the "All Rights Reserved" 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 imagined. The rules may well have made sense against a
- background
-of technologies from centuries ago, but they do not make sense
-against the background of digital technologies. New rules—with
- different
-freedoms, expressed in ways so that humans without lawyers can
-use them—are needed. Creative Commons gives people a way
- effectively
+<indexterm><primary>Garlick, Mia</primary></indexterm>
+</para>
+<para>
+The aim is not to fight the "All Rights Reserved" 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
+imagined. The rules may well have made sense against a background of
+technologies from centuries ago, but they do not make sense against
+the background of digital technologies. New rules—with different
+freedoms, expressed in ways so that humans without lawyers can use
+them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
</para>
<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
- Commons
-license, on the same day that it went on sale in bookstores.
+participate to better spread their content. Cory Doctorow, for
+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>
Why would a publisher ever agree to this? I suspect his publisher
-reasoned like this: There are two groups of people out there: (1) those
-who will buy Cory's book whether or not it's on the Internet, and (2)
-those who may never hear of Cory's book, if it isn't made available for
-free on the Internet. Some part of (1) will download 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.
-</para>
-<para>
-Indeed, the experience of his publisher clearly supports that
- conclusion.
-The book's first printing was exhausted months before the
-publisher had expected. This first novel of a science fiction author was
-a total success.
-</para>
-<para>
-The idea that free content might increase the value of nonfree
- content
+reasoned like this: There are two groups of people out there: (1)
+those who will buy Cory's book whether or not it's on the Internet,
+and (2) those who may never hear of Cory's book, if it isn't made
+available for free on the Internet. Some part of (1) will download
+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
+<emphasis>increase</emphasis> sales of Cory's book.
+</para>
+<para>
+Indeed, the experience of his publisher clearly supports that
+conclusion. The book's first printing was exhausted months before the
+publisher had expected. This first novel of a science fiction author
+was a total success.
+</para>
+<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.
+<indexterm><primary>Free for All (Wayner)</primary></indexterm>
+<indexterm><primary>Wayner, Peter</primary></indexterm>
</para>
+<indexterm><primary>Public Enemy</primary></indexterm>
<para>
-These are examples of using the Commons to better spread
- proprietary
+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
+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>
-<!-- f2. --> Willful Infringement: A Report from the Front Lines of the Real Culture Wars
-(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat
- Lucre
-production, available at
+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 "allow"
+Public Enemy to sample anymore, because the legal costs are so
+high<footnote><para>
+<!-- f2. -->
+<citetitle>Willful Infringement: A Report from the Front Lines of the Real
+Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg
+Hittelman, a Fiat Lucre production, available at
<ulink url="http://free-culture.cc/notes/">link #72</ulink>.
</para></footnote>),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
+<indexterm><primary>Leaphart, Walter</primary></indexterm>
</para>
<para>
-Finally, there are many who mark their content with a Creative
-Commons 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"
-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 say it to others.
+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"
+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
+say it to others.
</para>
<para>
In the first six months of the Creative Commons experiment, over
steps are possible.
</para>
<para>
-Creative Commons is just one example of voluntary efforts by
- individuals
-and creators to change the mix of rights that now govern the
-creative field. The project does not compete with copyright; it
- complements
-it. Its aim is not to defeat the rights of authors, but to make it
-easier for authors and creators to exercise their rights more flexibly and
-cheaply. That difference, we believe, will enable creativity to spread
-more easily.
+Creative Commons is just one example of voluntary efforts by
+individuals and creators to change the mix of rights that now govern
+the creative field. The project does not compete with copyright; it
+complements it. Its aim is not to defeat the rights of authors, but to
+make it easier for authors and creators to exercise their rights more
+flexibly and cheaply. That difference, we believe, will enable
+creativity to spread more easily.
</para>
+<indexterm startref="idxcc" 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
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
</para>
<para>
<!-- PAGE BREAK 293 -->
-These are all formalities associated with property. They are
- requirements
-that we all must bear if we want our property to be protected.
+These are all formalities associated with property. They are
+requirements that we all must bear if we want our property to be
+protected.
</para>
<para>
In contrast, under current copyright law, you automatically get a
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
- formalities
-were getting in the way.
+copyright owner must bear to protect and secure his work. Those
+formalities were getting in the way.
</para>
<para>
But the Internet changes all this. Formalities today need not be a
-burden. Rather, the world without formalities is the world that
- burdens
-creativity. Today, there is no simple way to know who owns what,
-or with whom one must deal in order to use or build upon the
- creative
-work of others. There are no records, there is no system to 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.
+burden. Rather, the world without formalities is the world that
+burdens creativity. Today, there is no simple way to know who owns
+what, or with whom one must deal in order to use or build upon the
+creative work of others. There are no records, there is no system to
+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 <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>
-<!-- f1. --> The proposal I am advancing here would apply to American works only.
-Obviously, I believe it would be beneficial for the same idea to be adopted
-by other countries as well.
-</para></footnote>—but it should
-not change it by going back to the old, broken system. We should
- require
-formalities, but we should establish a system that will create the
-incentives to minimize the burden of these formalities.
-</para>
-<para>
-The important formalities are three: marking copyrighted work,
- registering
-copyrights, and renewing the claim to copyright. Traditionally,
-the first of these three was something the copyright owner did; the
- second
-two were something the government did. But a revised system of
-formalities would banish the government from the process, except for
-the sole purpose of approving standards developed by others.
+<!-- f1. -->
+The proposal I am advancing here would apply to American works only.
+Obviously, I believe it would be beneficial for the same idea to be
+adopted by other countries as well.</para></footnote>—but it
+should not change it by going back to the old, broken system. We
+should require formalities, but we should establish a system that will
+create the incentives to minimize the burden of these formalities.
+</para>
+<para>
+The important formalities are three: marking copyrighted work,
+registering copyrights, and renewing the claim to
+copyright. Traditionally, the first of these three was something the
+copyright owner did; the second two were something the government
+did. But a revised system of formalities would banish the government
+from the process, except for the sole purpose of approving standards
+developed by others.
</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 with
-the Copyright Office to register or renew a copyright. When filing that
-registration, the copyright owner paid a fee. As with most government
-agencies, the Copyright Office had little incentive to minimize the
-burden of registration; it also had little incentive to minimize the fee.
-And as the Copyright Office is not a main target of government
- policymaking,
-the office has historically been terribly underfunded. Thus,
-when people who know something about the process hear this idea
-about formalities, their first reaction is panic—nothing could be worse
-than forcing people to deal with the mess that is the Copyright Office.
-</para>
-<para>
-Yet it is always astonishing to me that we, who come from a
- tradition
+Under the old system, a copyright owner had to file a registration
+with the Copyright Office to register or renew a copyright. When
+filing that registration, the copyright owner paid a fee. As with most
+government agencies, the Copyright Office had little incentive to
+minimize the burden of registration; it also had little incentive to
+minimize the fee. And as the Copyright Office is not a main target of
+government policymaking, the office has historically been terribly
+underfunded. Thus, when people who know something about the process
+hear this idea about formalities, their first reaction is
+panic—nothing could be worse than forcing people to deal with
+the mess that is the Copyright Office.
+</para>
+<para>
+Yet it is always astonishing to me that we, who come from a tradition
of extraordinary innovation in governmental design, can no longer
think innovatively about how governmental functions can be designed.
-Just because there is a public purpose to a government role, it doesn't
-follow that the government must actually administer the role. Instead,
-we should be creating incentives for private parties to serve the public,
-subject to standards that the government sets.
+Just because there is a public purpose to a government role, it
+doesn't follow that the government must actually administer the
+role. Instead, we should be creating incentives for private parties to
+serve the public, subject to standards that the government sets.
</para>
<para>
In the context of registration, one obvious model is the Internet.
There are at least 32 million Web sites registered around the world.
Domain name owners for these Web sites have to pay a fee to keep their
registration alive. In the main top-level domains (.com, .org, .net),
-there is a central registry. The actual registrations are, however,
- performed
-by many competing registrars. That competition drives the cost
-of registering down, and more importantly, it drives the ease with which
-registration occurs up.
+there is a central registry. The actual registrations are, however,
+performed by many competing registrars. That competition drives the
+cost of registering down, and more importantly, it drives the ease
+with which registration occurs up.
</para>
<para>
We should adopt a similar model for the registration and renewal of
-copyrights. The Copyright Office may well serve as the central registry,
-but it should not be in the registrar business. Instead, it should
- establish
-a database, and a set of standards for registrars. It should approve
-registrars that meet its standards. Those registrars would then compete
-with one another to deliver the cheapest and simplest systems for
- registering
-and renewing copyrights. That competition would
- substantially
-lower the burden of this formality—while producing a database
+copyrights. The Copyright Office may well serve as the central
+registry, but it should not be in the registrar business. Instead, it
+should establish a database, and a set of standards for registrars. It
+should approve registrars that meet its standards. Those registrars
+would then compete with one another to deliver the cheapest and
+simplest systems for registering and renewing copyrights. That
+competition would substantially lower the burden of this
+formality—while producing a database
<!-- PAGE BREAK 295 -->
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 creative
-work meant that the copyright was forfeited. That was a harsh
- punishment
-for failing to comply with a regulatory rule—akin to imposing
-the death penalty for a parking ticket in the world of creative rights.
-Here again, there is no reason that a marking requirement needs to be
-enforced in this way. And more importantly, there is no reason a
- marking
-requirement needs to be enforced uniformly across all media.
+It used to be that the failure to include a copyright notice on a
+creative work meant that the copyright was forfeited. That was a harsh
+punishment for failing to comply with a regulatory rule—akin to
+imposing the death penalty for a parking ticket in the world of
+creative rights. Here again, there is no reason that a marking
+requirement needs to be enforced in this way. And more importantly,
+there is no reason a marking requirement needs to be enforced
+uniformly across all media.
</para>
<para>
-The aim of marking is to signal to the public that this work is
- copyrighted
-and that the author wants to enforce his rights. The mark also
-makes it easy to locate a copyright owner to secure permission to use
-the work.
+The aim of marking is to signal to the public that this work is
+copyrighted and that the author wants to enforce his rights. The mark
+also makes it easy to locate a copyright owner to secure permission to
+use the work.
</para>
<para>
One of the problems the copyright system confronted early on was
Let's start with the last point. If a copyright owner allows his work
to be published without a copyright notice, the consequence of that
failure need not be that the copyright is lost. The consequence could
-instead be that anyone has the right to use this work, until the
- copyright
-owner complains and demonstrates that it is his work and he
+instead be that anyone has the right to use this work, until the
+copyright owner complains and demonstrates that it is his work and he
doesn't give permission.<footnote><para>
-<!-- f2. --> There would be a complication with derivative works that I have not
+<!-- f2. -->
+There would be a complication with derivative works that I have not
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 stop using the work in any new
+The meaning of an unmarked work would therefore be "use unless someone
+complains." 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.
This would create a strong incentive for copyright owners to mark
content that have been crafted elsewhere.
</para>
<para>
-For example, if a recording industry association devises a method
-for marking CDs, it would propose that to the Copyright Office. The
+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.
-</para>
-<para>
-Finally, marking content clearly would simplify registration
- requirements.
-If photographs were marked by author and year, there
-would be little reason not to allow a photographer to reregister, for
- example,
-all photographs taken in a particular year in one quick step. The
-aim of the formality is not to burden the creator; the system itself
-should be kept as simple as possible.
+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
+requirements. If photographs were marked by author and year, there
+would be little reason not to allow a photographer to reregister, for
+example, all photographs taken in a particular year in one quick
+step. The aim of the formality is not to burden the creator; the
+system itself should be kept as simple as possible.
</para>
<para>
The objective of formalities is to make things clear. The existing
</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>
-<!-- f3. --> "A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, available
-at
+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," <citetitle>Economist</citetitle>, 366:8308 (25 January 2003): 15,
+available at
<ulink url="http://free-culture.cc/notes/">link #74</ulink>.
</para></footnote>
- Others have
-proposed tying the term to the term for patents.
+Others have proposed tying the term to the term for patents.
</para>
<para>
-I agree with those who believe that we need a radical change in
- copyright's
-term. But whether fourteen years or seventy-five, there are four
-principles that are important to keep in mind about copyright terms.
+I agree with those who believe that we need a radical change in
+copyright's term. But whether fourteen years or seventy-five, there
+are four principles that are important to keep in mind about copyright
+terms.
</para>
<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.
+<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 "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.
<!-- PAGE BREAK 298 -->
</para></listitem>
<listitem><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>
-<!-- f4. --> Department of Veterans Affairs, Veteran's Application for Compensation
+<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),
available at
<ulink url="http://free-culture.cc/notes/">link #75</ulink>.
</para></footnote>
- If we make veterans suffer that
-burden, I don't see why we couldn't require authors to spend
-ten minutes every fifty years to file a single form.
+If we make veterans suffer that burden, I don't see why we couldn't
+require authors to spend ten minutes every fifty years to file a
+single form.
+<indexterm><primary>veterans' pensions</primary></indexterm>
</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
<!-- PAGE BREAK 299 -->
-</sect2>
-<sect2 id="freefairuse">
+</section>
+<section id="freefairuse">
<title>3. Free Use Vs. Fair Use</title>
<para>
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
ground to the heavens. The airplane came along. The scope of property
-rights quickly changed. There was no fuss, no constitutional challenge.
-It made no sense anymore to grant that much control, given the
- emergence
-of that new technology.
+rights quickly changed. There was no fuss, no constitutional
+challenge. It made no sense anymore to grant that much control, given
+the emergence of that new technology.
</para>
<para>
-Our Constitution gives Congress the power to give authors
- "exclusive
+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 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."
-</para>
-<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
+right to "their writings" 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."
+</para>
+<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, <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 ever since. This expansion has
-been commented upon by one of the law's greatest judges, Judge
- Benjamin
-Kaplan.
+The courts have expanded it slowly through judicial interpretation
+ever since. This expansion has been commented upon by one of the law's
+greatest judges, Judge Benjamin Kaplan.
+<indexterm><primary>Kaplan, Benjamin</primary></indexterm>
</para>
<blockquote>
<para>
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
to run for the same term as the underlying copyright. The derivative
right could be important in inducing creativity; it is not important long
after the creative work is done.
+<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 "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.
</para>
<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 foreseeable derivative rights—turning a book into a movie, or a
-poem into a musical score—it doesn't make sense to require
- negotiation
-for the unforeseeable. Here, a statutory right would make much
-more sense.
+This was the point that Alben made when describing the making of the
+Clint Eastwood CD. While it makes sense to require negotiation for
+foreseeable derivative rights—turning a book into a movie, or a
+poem into a musical score—it doesn't make sense to require
+negotiation for the unforeseeable. Here, a statutory right would make
+much more sense.
</para>
<para>
-In each of these cases, the law should mark the uses that are
- protected,
-and the presumption should be that other uses are not
- protected.
-This is the reverse of the recommendation of my colleague Paul
-Goldstein.<footnote><para>
-<!-- f7. --> Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
- Jukebox
-(Stanford: Stanford University Press, 2003), 187216.
+In each of these cases, the law should mark the uses that are
+protected, and the presumption should be that other uses are not
+protected. This is the reverse of the recommendation of my colleague
+Paul Goldstein.<footnote>
+<para>
+<!-- f7. -->
+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 expanded
-protections follow expanded uses.
+His view is that the law should be written so that
+expanded protections follow expanded uses.
</para>
<para>
-Goldstein's analysis would make perfect sense if the cost of the
- legal
+Goldstein's analysis would make perfect sense if the cost of the legal
system were small. But as we are currently seeing in the context of
-the Internet, the uncertainty about the scope of protection, and the
- incentives
-to protect existing architectures of revenue, combined with a
-strong copyright, weaken the process of innovation.
+the Internet, the uncertainty about the scope of protection, and the
+incentives to protect existing architectures of revenue, combined with
+a strong copyright, weaken the process of innovation.
</para>
<para>
The law could remedy this problem either by removing protection
<!-- PAGE BREAK 301 -->
beyond the part explicitly drawn or by granting reuse rights upon
- certain
-statutory conditions. Either way, the effect would be to free a great
-deal of culture to others to cultivate. And under a statutory rights
-regime, that reuse would earn artists more income.
+certain statutory conditions. Either way, the effect would be to free
+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 wouldn't
-be fair to end this book without addressing the issue that is, to most
-people, most pressing—music. There is no other policy issue that
- better
-teaches the lessons of this book than the battles around the sharing
-of music.
-</para>
-<para>
-The appeal of file-sharing music was the crack cocaine of the
- Internet's
-growth. It drove demand for access to the Internet more
- powerfully
-than any other single application. It was the Internet's killer
-app—possibly in two senses of that word. It no doubt was the
- application
-that drove demand for bandwidth. It may well be the application
-that drives demand for regulations that in the end kill innovation on
-the network.
-</para>
-<para>
-The aim of copyright, with respect to content in general and music
-in particular, is to create the incentives for music to be composed,
- performed,
-and, most importantly, spread. The law does this by giving
+The battle that got this whole war going was about music, so it
+wouldn't be fair to end this book without addressing the issue that
+is, to most people, most pressing—music. There is no other
+policy issue that better teaches the lessons of this book than the
+battles around the sharing of music.
+</para>
+<para>
+The appeal of file-sharing music was the crack cocaine of the
+Internet's growth. It drove demand for access to the Internet more
+powerfully than any other single application. It was the Internet's
+killer app—possibly in two senses of that word. It no doubt was
+the application that drove demand for bandwidth. It may well be the
+application that drives demand for regulations that in the end kill
+innovation on the network.
+</para>
+<para>
+The aim of copyright, with respect to content in general and music in
+particular, is to create the incentives for music to be composed,
+performed, and, most importantly, spread. The law does this by giving
an exclusive right to a composer to control public performances of his
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>
<listitem><para>
<!-- PAGE BREAK 302 -->
<!-- C. -->
-There are many who are using file-sharing networks to get
- access
-to content that is no longer sold but is still under copyright
-or that would have been too cumbersome to buy off the Net.
+There are many who are using file-sharing networks to get access to
+content that is no longer sold but is still under copyright or that
+would have been too cumbersome to buy off the Net.
</para></listitem>
<listitem><para>
<!-- D. -->
-There are many who are using file-sharing networks to get
- access
-to content that is not copyrighted or to get access that the
-copyright owner plainly endorses.
+There are many who are using file-sharing networks to get access to
+content that is not copyrighted or to get access that the copyright
+owner plainly endorses.
</para></listitem>
</orderedlist>
<para>
significantly weakened.
</para>
<para>
-As I said in chapter 5, 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 networks.
+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
+networks.
</para>
<para>
Nonetheless, there is a crucial fact about the current technological
should respond.
</para>
<para>
-Today, file sharing is addictive. In ten years, it won't be. It is addictive
-today because it is the easiest way to gain access to a broad range of
- content.
-It won't be the easiest way to get access to a broad range of content
-in ten years. Today, access to the Internet is cumbersome and slow—we
-in the United States are lucky to have broadband service at 1.5 MBs, and
-very rarely do we get service at that speed both up and down. Although
-wireless access is growing, most of us still get access across wires. Most
-only gain access through a machine with a keyboard. The idea of the
- always
-on, always connected Internet is mainly just an idea.
+Today, file sharing is addictive. In ten years, it won't be. It is
+addictive today because it is the easiest way to gain access to a
+broad range of content. It won't be the easiest way to get access to
+a broad range of content in ten years. Today, access to the Internet
+is cumbersome and slow—we in the United States are lucky to have
+broadband service at 1.5 MBs, and very rarely do we get service at
+that speed both up and down. Although wireless access is growing, most
+of us still get access across wires. Most only gain access through a
+machine with a keyboard. The idea of the always on, always connected
+Internet is mainly just an idea.
</para>
<para>
But it will become a reality, and that means the way we get access to
not make policy on the basis of technology in transition. They should
<!-- PAGE BREAK 303 -->
make policy on the basis of where the technology is going. The
- question
-should not be, how should the law regulate sharing in this world?
-The question should be, what law will we require when the network
-becomes the network it is clearly becoming? That network is one in
-which every machine with electricity is essentially on the Net; where
-everywhere you are—except maybe the desert or the Rockies—you can
-instantaneously be connected to the Internet. Imagine the Internet as
-ubiquitous as the best cell-phone service, where with the flip of a
- device,
-you are connected.
+question should not be, how should the law regulate sharing in this
+world? The question should be, what law will we require when the
+network becomes the network it is clearly becoming? That network is
+one in which every machine with electricity is essentially on the Net;
+where everywhere you are—except maybe the desert or the
+Rockies—you can instantaneously be connected to the
+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 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 form
-of MP3s across the Web.<footnote><para>
-<!-- f8. --> See, for example, "Music Media Watch," The J@pan Inc. Newsletter,
-3 April 2002, available at
+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
+form of MP3s across the Web.<footnote><para>
+<!-- f8. -->
+See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
+April 2002, available at
<ulink url="http://free-culture.cc/notes/">link #76</ulink>.
</para></footnote>
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
+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,
-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.
+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.
</para>
<para>
</para>
<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
+floated by Harvard law professor William Fisher.<footnote>
+<para>
+<!-- f9. -->
+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
+Broadband?" <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
+"Kazaa, Verizon Propose to Pay Artists Directly," <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,"
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, "Verizon's Copyright Campaign," 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
DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
proportionally, though more popular artists would get more than the less
popular. As is typical with Stallman, his proposal predates the current
- debate
-by about a decade. See
+debate by about a decade. See
<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
+<indexterm><primary>Fisher, William</primary></indexterm>
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para></footnote>
- Fisher suggests a
-very clever way around the current impasse of the Internet. Under his
-plan, all content capable of digital transmission would (1) be marked
-with a digital watermark (don't worry about how easy it is to evade
-these marks; as you'll see, there's no incentive to evade them). Once the
-content is marked, then entrepreneurs would develop (2) systems to
-monitor how many items of each content were distributed. On the
- basis
-of those numbers, then (3) artists would be compensated. The
- compensation
-would be paid for by (4) an appropriate tax.
+Fisher suggests a very clever way around the current impasse of the
+Internet. Under his plan, all content capable of digital transmission
+would (1) be marked with a digital watermark (don't worry about how
+easy it is to evade these marks; as you'll see, there's no incentive
+to evade them). Once the content is marked, then entrepreneurs would
+develop (2) systems to monitor how many items of each content were
+distributed. On the basis of those numbers, then (3) artists would be
+compensated. The compensation would be paid for by (4) an appropriate
+tax.
</para>
<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
- 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 harm
-could be shown. This compensation would be temporary, aimed at
- facilitating
-a transition between regimes. And it would require renewal
-after a period of years. If it continues to make sense to facilitate free
- exchange
-of content, supported through a taxation system, then it can be
-continued. If this form of protection is no longer necessary, then the
-system could lapse into the old system of controlling access.
-</para>
-<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" possible. But
-the aims of semiotic democracy would be satisfied if the other changes
-I described were accomplished—in particular, the limits on derivative
+<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
+harm could be shown. This compensation would be temporary, aimed at
+facilitating a transition between regimes. And it would require
+renewal after a period of years. If it continues to make sense to
+facilitate free exchange of content, supported through a taxation
+system, then it can be continued. If this form of protection is no
+longer necessary, then the system could lapse into the old system of
+controlling access.
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
+</para>
+<para>
+Fisher would balk at the idea of allowing the system to lapse. His aim
+is not just to ensure that artists are paid, but also to ensure that
+the system supports the widest range of "semiotic democracy"
+possible. But the aims of semiotic democracy would be satisfied if the
+other changes I described were accomplished—in particular, the
+limits on derivative
<!-- PAGE BREAK 307 -->
uses. A system that simply charges for access would not greatly burden
-semiotic democracy if there were few limitations on what one was
- allowed
-to do with the content itself.
+semiotic democracy if there were few limitations on what one was
+allowed to do with the content itself.
</para>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
No doubt it would be difficult to calculate the proper measure of
"harm" to an industry. But the difficulty of making that calculation
</para></listitem>
</orderedlist>
<para>
-But what if "piracy" doesn't disappear? What if there is a
- competitive
+But what if "piracy" 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
something then?
</para>
<para>
Yes, it should. But, again, what it should do depends upon how the
-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, 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
-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 it
-may well be appropriate to find ways to track down the petty pirates.
+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 <citetitle>x</citetitle>,
+or (b) to have a technology that is 50 percent secure but produces a
+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
+it may well be appropriate to find ways to track down the petty
+pirates.
</para>
<para>
But we're a long way away from whittling the problem down to this
-subset of type A sharers. And our focus until we're there should not be
-on finding ways to break the Internet. Our focus until we're there
+subset of type A sharers. And our focus until we're there should not
+be on finding ways to break the Internet. Our focus until we're there
<!-- PAGE BREAK 309 -->
-should be on how to make sure the artists are paid, while protecting the
-space for innovation and creativity that the Internet is.
+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
</para>
<para>
Yet much of this book has been a criticism of lawyers, or the role
-lawyers have played in this debate. The law speaks to ideals, but it is
-my view that our profession has become too attuned to the client. And
-in a world where the rich clients have one strong view, the
- unwillingness
-of the profession to question or counter that one strong view queers
-the law.
+lawyers have played in this debate. The law speaks to ideals, but it
+is my view that our profession has become too attuned to the
+client. And in a world where the rich clients have one strong view,
+the unwillingness of the profession to question or counter that one
+strong view queers the law.
</para>
<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
- 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 the Copyright
-Term Extension Act. Yet just thirty years ago, the 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, 106970.
+The evidence of this bending is compelling. I'm attacked as a
+"radical" 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
+the Copyright Term Extension Act. Yet just thirty years ago, the
+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), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, 1069–70.
</para></footnote>
</para>
about our failure to actually reckon the costs of the law.
</para>
<para>
-Economists are supposed to be good at reckoning costs and
- benefits.
-But more often than not, economists, with no clue about how the
-legal system actually functions, simply assume that the transaction
-costs of the legal system are slight.<footnote><para>
-<!-- f11. --> A good example is the work of Professor Stan Liebowitz. Liebowitz is to
-be commended for his careful review of data about infringement, leading
-him to question his own publicly stated 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 original view but expressing skepticism) with Stan J.
-Liebowitz, "Will MP3s Annihilate the Record Industry?" working paper,
-June 2003, available at
+Economists are supposed to be good at reckoning costs and benefits.
+But more often than not, economists, with no clue about how the legal
+system actually functions, simply assume that the transaction costs of
+the legal system are slight.<footnote><para>
+<!-- f11. -->
+A good example is the work of Professor Stan Liebowitz. Liebowitz is
+to be commended for his careful review of data about infringement,
+leading him to question his own publicly stated
+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, <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,
+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, 17476.
+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,
+<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 assume it works the way their
-elementary school civics class taught them it works.
+They see a system that has been around for hundreds of years, and they
+assume it works the way their elementary school civics class taught
+them it works.
</para>
<para>
<!-- PAGE BREAK 310 -->
-But the legal system doesn't work. Or more accurately, it doesn't
-work for anyone except those with the most resources. Not because the
-system is corrupt. I don't think our legal system (at the federal level, at
-least) is at all corrupt. I mean simply because the costs of our legal
- system
-are so astonishingly high that justice can practically never be done.
+But the legal system doesn't work. Or more accurately, it doesn't work
+for anyone except those with the most resources. Not because the
+system is corrupt. I don't think our legal system (at the federal
+level, at least) is at all corrupt. I mean simply because the costs of
+our legal system are so astonishingly high that justice can
+practically never be done.
</para>
<para>
These costs distort free culture in many ways. A lawyer's time is
billed at the largest firms at more than $400 per hour. How much time
-should such a lawyer spend reading cases carefully, or researching
- obscure
-strands of authority? The answer is the increasing reality: very
- little.
-The law depended upon the careful articulation and development
-of doctrine, but the careful articulation and development of legal
- doctrine
-depends upon careful work. Yet that careful work costs too much,
-except in the most high-profile and costly cases.
+should such a lawyer spend reading cases carefully, or researching
+obscure strands of authority? The answer is the increasing reality:
+very little. The law depended upon the careful articulation and
+development of doctrine, but the careful articulation and development
+of legal doctrine depends upon careful work. Yet that careful work
+costs too much, except in the most high-profile and costly cases.
</para>
<para>
The costliness and clumsiness and randomness of this system mock
and inexpensive, and hence radically more just.
</para>
<para>
-But until that reform is complete, we as a society should keep the
-law away from areas that we know it will only harm. And that is
- precisely
-what the law will too often do if too much of our culture is left
-to its review.
+But until that reform is complete, we as a society should keep the law
+away from areas that we know it will only harm. And that is precisely
+what the law will too often do if too much of our culture is left to
+its review.
</para>
<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 about the amazing things your community could facilitate with
-digital technology—a wiki, a barn raising, activism to change
- something.
-Think about all those creative things, and then imagine cold
-molasses poured onto the machines. This is what any regime that
- requires
-permission produces. Again, this is the reality of Brezhnev's
-Russia.
+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
+about the amazing things your community could facilitate with digital
+technology—a wiki, a barn raising, activism to change something.
+Think about all those creative things, and then imagine cold molasses
+poured onto the machines. This is what any regime that requires
+permission produces. Again, this is the reality of Brezhnev's Russia.
</para>
<para>
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 -->
-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?"
+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?"
</para>
<para>
We should ask, "Why?" Show me why your regulation of culture is
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 Web. As
-anyone who has tried to use the Web knows, these links can be highly unstable. I
-have tried to remedy the instability by redirecting readers to the original source
-through the Web site associated with this book. For each link below, you can go to
-http://free-culture.cc/notes and locate the original source by clicking on the
-number after the # sign. If the original link remains alive, you will be redirected to
-that link. If the original link has disappeared, you will be redirected to an
- appropriate
-reference for the material.
+Throughout this text, there are references to links on the World Wide
+Web. As anyone who has tried to use the Web knows, these links can be
+highly unstable. I have tried to remedy the instability by redirecting
+readers to the original source through the Web site associated with
+this book. For each link below, you can go to
+http://free-culture.cc/notes and locate the original source by
+clicking on the number after the # sign. If the original link remains
+alive, you will be redirected to that link. If the original link has
+disappeared, you will be redirected to an appropriate reference for
+the material.
</para>
<!-- 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
</para>
<para>
I received guidance in various places from friends and academics,
-including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard
-Posner, Mark Rose, and Kathleen Sullivan. And I received correction
-and guidance from many amazing students at Stanford Law School
-and Stanford University. They included Andrew B. Coan, John Eden,
-James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert
- Hallman,
-Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum,
-Alina Ng, and Erica Platt. I am particularly grateful to Catherine
-Crump and Harry Surden, who helped direct their research, and to
-Laura Lynch, who brilliantly managed the army that they assembled,
-and provided her own critical eye on much of this.
+including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
+Mark Rose, and Kathleen Sullivan. And I received correction and
+guidance from many amazing students at Stanford Law School and
+Stanford University. They included Andrew B. Coan, John Eden, James
+P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
+Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
+Erica Platt. I am particularly grateful to Catherine Crump and Harry
+Surden, who helped direct their research, and to Laura Lynch, who
+brilliantly managed the army that they assembled, and provided her own
+critical eye on much of this.
</para>
<para>
Yuko Noguchi helped me to understand the laws of Japan as well as
Yamagami for their generous help while I was there.
</para>
<para>
-These are the traditional sorts of help that academics regularly
-draw upon. But in addition to them, the Internet has made it possible
-to receive advice and correction from many whom I have never even
-met. Among those who have responded with extremely helpful advice
-to requests on my blog about the book are Dr. Mohammad Al-Ubaydli,
-David Gerstein, and Peter DiMauro, as well as a long list of those who
-had specific ideas about ways to develop my argument. They included
-Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob
-Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy
-Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James
- Lindenschmidt,
-K. L. Mann, Mark Manning, Nora McCauley, Jeffrey
-McHugh, Evan 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," 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.)
-</para>
-<para>
-Richard Stallman and Michael Carroll each read the whole book
-in draft, and each provided extremely helpful correction and advice.
-Michael helped me to see more clearly the significance of the
- regulation
-of derivitive works. And Richard corrected an embarrassingly large
-number of errors. While my work is in part inspired by Stallman's, he
-does not agree with me in important places throughout this book.
-</para>
-<para>
-Finally, and forever, I am thankful to Bettina, who has always
- insisted
-that there would be unending happiness away from these battles,
-and who has always been right. This slow learner is, as ever, grateful for
-her perpetual patience and love.
+These are the traditional sorts of help that academics regularly draw
+upon. But in addition to them, the Internet has made it possible to
+receive advice and correction from many whom I have never even
+met. Among those who have responded with extremely helpful advice to
+requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
+Gerstein, and Peter DiMauro, as well as a long list of those who had
+specific ideas about ways to develop my argument. They included
+Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
+Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
+Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
+K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
+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,"
+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.)
+</para>
+<para>
+Richard Stallman and Michael Carroll each read the whole book in
+draft, and each provided extremely helpful correction and advice.
+Michael helped me to see more clearly the significance of the
+regulation of derivitive works. And Richard corrected an
+embarrassingly large number of errors. While my work is in part
+inspired by Stallman's, he does not agree with me in important places
+throughout this book.
+</para>
+<para>
+Finally, and forever, I am thankful to Bettina, who has always
+insisted that there would be unending happiness away from these
+battles, and who has always been right. This slow learner is, as ever,
+grateful for her perpetual patience and love.
</para>
<!-- PAGE BREAK 338 -->
</chapter>
+<index></index>
</book>
projects / text-free-culture-lessig.git / blobdiff