<indexterm startref='idxproprigtair' class='endofrange'/>
<indexterm startref='idxlandownership' class='endofrange'/>
<indexterm startref='idxairtraffic' class='endofrange'/>
+<indexterm id='idxarmstrongedwin' class='startofrange'>
+ <primary>Armstrong, Edwin Howard</primary>
+</indexterm>
<para>
<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of America's forgotten inventor
geniuses. He came to the great American inventor scene just after the
now broke, in 1954 Armstrong wrote a short note to his wife and then
stepped out of a thirteenth-story window to his death.
</para>
+<indexterm startref='idxarmstrongedwin' class='endofrange'/>
<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
fired for keeping a personal Web log, published under a pseudonym,
that dealt with some of the issues and people he was covering.</quote>)
<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Olafson, Steve</primary></indexterm>
</para></footnote>
But it is clear that we are still in transition. <quote>A
$12,000 from summer jobs and other employment. They demanded
$12,000 to dismiss the case.
</para>
+<indexterm><primary>Oppenheimer, Matt</primary></indexterm>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
refused. They wanted him to agree to an injunction that would
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
+<indexterm>
+<primary>artists</primary>
+<secondary>recording industry payments to</secondary>
+</indexterm>
<para>
The recording industry insists this is a matter of law and morality.
Let's put the law aside for a moment and think about the morality.
Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
the Propertization of Copyright</quote> (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
-Working Paper No. 159. </para></footnote>
+Working Paper No. 159.
+<indexterm><primary>broadcast flag</primary></indexterm>
+</para></footnote>
<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</section>
<section id="radio">
<title>Radio</title>
+<indexterm id='idxartistspayments1' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
Radio was also born of piracy.
</para>
the choice for him or her, the law gives the radio station the right
to take something for nothing.
</para>
+<indexterm startref='idxartistspayments1' class='endofrange'/>
</section>
<section id="cabletv">
<title>Cable TV</title>
</para>
<section id="piracy-i">
<title>Piracy I</title>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
should be respected. And under the laws of these nations, this piracy
is wrong.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Alternatively, we could try to excuse this piracy by noting that in
any case, it does no harm to the industry. The Chinese who get access
technology of a time, then it is wrong to take property without the
permission of a property owner. That is exactly what <quote>property</quote> means.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Finally, we could try to excuse this piracy with the argument that the
piracy actually helps the copyright owner. When the Chinese <quote>steal</quote>
legitimate rights of creators while protecting innovation. Sometimes
this has meant more rights for creators. Sometimes less.
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
So, as we've seen, when <quote>mechanical reproduction</quote> threatened the
interests of composers, Congress balanced the rights of composers
eliminate the opportunity for free riding in the sense I've described. See
Lessig, <citetitle>Future</citetitle>, 71. See also Picker, <quote>From Edison to the Broadcast Flag,</quote>
<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 293–96.
+<indexterm><primary>broadcast flag</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
<indexterm><primary>Henry V</primary></indexterm>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
<para>
William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
was first published in 1597. It was the eleventh major play that
the author the exclusive right to copy, the exclusive right to
distribute, the exclusive right to perform, and so on.
</para>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
<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
popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
</para>
+<indexterm id='idxartistsretrospective' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>retrospective compilations on</secondary>
+</indexterm>
<para>
Alben had a special interest in new technology. He was intrigued by
the emerging market for CD-ROM technology—not to distribute
that the average Web designer would not have. So if it took him a
year, how long would it take someone else? And how much creativity is
never made just because the costs of clearing the rights are so high?
+</para>
+<indexterm startref='idxartistsretrospective' class='endofrange'/>
+<para>
These costs are the burdens of a kind of regulation. Put on a
Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
find just about any image you want; in another second, you can have it
planted in your presentation.
</para>
+<indexterm><primary>Camp Chaos</primary></indexterm>
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
biting political commentary. A site called Camp Chaos has produced
some of the most biting criticism of the record industry that there is
through the mixing of Flash! and music.
-<indexterm><primary>Camp Chaos</primary></indexterm>
</para>
<para>
All of these creations are technically illegal. Even if the creators
</chapter>
<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
+<indexterm id='idxarchivesdigital1' class='startofrange'>
+ <primary>archives, digital</primary>
+</indexterm>
<para>
In April 1996, millions of <quote>bots</quote>—computer codes designed to
<quote>spider,</quote> or automatically search the Internet and copy content—began
enter a Web page, and see all of its copies going back to 1996, as
well as when those pages changed.
</para>
+<indexterm id='idxorwellgeorge' class='startofrange'>
+ <primary>Orwell, George</primary>
+</indexterm>
<para>
This is the thing about the Internet that Orwell would have
appreciated. In the dystopia described in <citetitle>1984</citetitle>, old newspapers were
but the content could easily be different. The Internet is Orwell's
library—constantly updated, without any reliable memory.
</para>
+<indexterm startref='idxorwellgeorge' class='endofrange'/>
<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
Kahle describes,
</para>
<blockquote>
+<indexterm>
+ <primary>books</primary>
+ <secondary>total number of</secondary>
+</indexterm>
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
someone's <quote>property.</quote> And the law of property restricts the freedoms
that Kahle and others would exercise.
</para>
+<indexterm startref='idxarchivesdigital1' class='endofrange'/>
<!-- PAGE BREAK 127 -->
</chapter>
<chapter label="10" id="property-i">
an ex ante rule. It is imposed by the state.
<indexterm><primary>Madonna</primary></indexterm>
</para>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
Norms are a different kind of constraint. They, too, punish an
individual for violating a rule. But the punishment of a norm is
</indexterm>
<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
So, for example, consider the <quote>freedom</quote> to drive a car at a high
speed. That freedom is in part restricted by laws: speed limits that
<title>Copyright's regulation before the Internet.</title>
<graphic fileref="images/1331.png"></graphic>
</figure>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
<!-- PAGE BREAK 136 -->
There is balance between law, norms, market, and architecture. The law
of our society (before the Internet, at least) had no problem with
this form of infringement.
</para>
-<indexterm><primary>market constraints</primary></indexterm>
<para>
Enter the Internet, or, more precisely, technologies such as MP3s and
p2p sharing. Now the constraint of architecture changes dramatically,
reinforce commercial television? (Maybe by limiting them to function
only once a second, or to switch to only ten channels within an hour?)
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
+<indexterm><primary>Gates, Bill</primary></indexterm>
<para>
The obvious answer to these obviously rhetorical questions is no.
In a free society, with a free market, supported by free enterprise and
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
important and valuable and probably saved lives, possibly millions.
</para>
<indexterm><primary>Carson, Rachel</primary></indexterm>
+<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
<para>
But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, which argued that
DDT, whatever its primary benefits, was also having unintended
environmental consequences. Birds were losing the ability to
reproduce. Whole chains of the ecology were being destroyed.
-<indexterm><primary>Carson, Rachel</primary></indexterm>
-<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
</para>
<para>
No one set out to destroy the environment. Paul Müller certainly did
when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
</para>
+<indexterm><primary>Boyle, James</primary></indexterm>
<para>
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an <quote>environmentalism</quote> for
control. The technology expands the scope of effective control,
because the technology builds a copy into every transaction.
</para>
+<indexterm><primary>Barnes & Noble</primary></indexterm>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
free, and for almost 180 years our country consistently protected a
vibrant and rich free culture.
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
We achieved that free culture because our law respected important
limits on the scope of the interests protected by <quote>property.</quote> The very
of control in the name of property still resonate; the uncritical
rejection of <quote>piracy</quote> still has play.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 193 -->
There will be many consequences of continuing this war. I want to
than the fine for a doctor's negligently butchering a patient?
<indexterm><primary>Worldcom</primary></indexterm>
</para>
+<indexterm><primary>art, underground</primary></indexterm>
<para>
The consequence of this legal uncertainty, tied to these extremely
high penalties, is that an extraordinary amount of creativity will
the Internet less efficient. If the Internet enables <quote>piracy,</quote> then,
this response says, we should break the kneecaps of the Internet.
</para>
+<indexterm><primary>broadcast flag</primary></indexterm>
<para>
The examples of this form of legislation are many. At the urging of
the content industry, some in Congress have threatened legislation that
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
<indexterm><primary>Hollings, Fritz</primary></indexterm>
+<indexterm><primary>broadcast flag</primary></indexterm>
</para></footnote>
But there is one example that captures the flavor of them all. This is
the story of the demise of Internet radio.
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
<!-- PAGE BREAK 204 -->
of users worldwide. According to some estimates, more than eighty
million users worldwide have tuned in to this new form of radio.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 205 -->
question we should ask is, what copyright rules would govern Internet
radio?
</para>
+<indexterm id='idxartistspayments2' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
But here the power of the lobbyists is reversed. Internet radio is a
new industry. The recording artists, on the other hand, have a very
A regular radio station broadcasting the same content would pay no
equivalent fee.
</para>
+<indexterm startref='idxartistspayments2' class='endofrange'/>
<para>
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio
high, you're going to drive the small webcasters out of
business. …</quote>
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
And the RIAA experts said, <quote>Well, we don't really model this as an
industry with thousands of webcasters, <emphasis>we think it should be
if Congress extends the term again). By contrast, in the same period,
more than 1 million patents will pass into the public domain.
</para>
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
<para>
<!-- PAGE BREAK 222 -->
Sonny Bono, who, his widow, Mary Bono, says, believed that
<quote>copyrights should be forever.</quote><footnote><para>
<!-- f2. -->
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
The full text is: <quote>Sonny [Bono] wanted the term of copyright
protection to last forever. I am informed by staff that such a change
would violate the Constitution. I invite all of you to work with me to
remaining
9,873. What would you have to do?
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
Well, first, you'd have to determine which of the 9,873 books were
still under copyright. That requires going to a library (these data are
<para>
But this situation has now changed.
</para>
+<indexterm id='idxarchivesdigital2' class='startofrange'>
+ <primary>archives, digital</primary>
+</indexterm>
<para>
One crucially important consequence of the emergence of digital
technologies is to enable the archive that Brewster Kahle dreams of.
particular bit of that culture or not—then we can't count on the
commercial market to do our library work for us.
</para>
+<indexterm startref='idxarchivesdigital2' class='endofrange'/>
<para>
I would be the first to agree that it should do as much as it can: We
should rely upon the market as much as possible to spread and enable
for this case. Early on, as I said, I set the strategy.
</para>
<indexterm><primary>Rehnquist, William H.</primary></indexterm>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
The Supreme Court was divided into two important camps. One camp we
called <quote>the Conservatives.</quote> The other we called <quote>the Rest.</quote> The
power. This was a case about enumerated powers, I said, and whether
those enumerated powers had any limit.
</para>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
Justice O'Connor stopped me within one minute of my opening.
The history was bothering her.
into the Copyright Clause.
</para>
</blockquote>
+<indexterm><primary>Olson, Theodore B.</primary></indexterm>
<para>
Things went better for us when the government gave its argument;
for now the Court picked up on the core of our claim. As Justice Scalia
depression gives way to anger. My anger came quickly, but it didn't cure
the depression. This anger was of two sorts.
</para>
+<indexterm><primary>originalism</primary></indexterm>
<para>
It was first anger with the five <quote>Conservatives.</quote> It would have been
one thing for them to have explained why the principle of <citetitle>Lopez</citetitle> didn't
produce the <quote>perfect storm</quote> for free culture.
</para>
<indexterm><primary>Reagan, Ronald</primary></indexterm>
+<indexterm id='idxbiomedicalresearch' class='startofrange'>
+ <primary>biomedical research</primary>
+</indexterm>
<para>
In August 2003, a fight broke out in the United States about a
decision by the World Intellectual Property Organization to cancel a
<indexterm><primary>IBM</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
+<indexterm startref='idxbiomedicalresearch' class='endofrange'/>
<para>
The aim of the meeting was to consider this wide range of projects
from one common perspective: that none of these projects relied upon
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm><primary>Creative Commons</primary></indexterm>
<indexterm><primary>Gil, Gilberto</primary></indexterm>
+<indexterm><primary>BBC</primary></indexterm>
+<indexterm><primary>Brazil, free culture in</primary></indexterm>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
that it will build a <quote>Creative Archive,</quote> from which British citizens can
Internet. Imagine the Internet as ubiquitous as the best cell-phone
service, where with the flip of a device, you are connected.
</para>
+<indexterm><primary>cell phones, music streamed over</primary></indexterm>
<para>
In that world, it will be extremely easy to connect to services that
give you access to content on the fly—such as Internet radio,
floated by Harvard law professor William Fisher.<footnote>
<para>
<!-- f9. -->
+<indexterm id='idxartistspayments3' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
William Fisher, <citetitle>Digital Music: Problems and Possibilities</citetitle> (last
revised: 10 October 2000), available at
<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William
<indexterm><primary>Fisher, William</primary></indexterm>
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
+<indexterm startref='idxartistspayments3' class='endofrange'/>
</para></footnote>
Fisher suggests a very clever way around the current impasse of the
Internet. Under his plan, all content capable of digital transmission
controlling access.
<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
Fisher would balk at the idea of allowing the system to lapse. His aim
is not just to ensure that artists are paid, but also to ensure that
there will be a great deal of competition to offer and sell music
on-line.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
This competition has already occurred against the background of <quote>free</quote>
music from p2p systems. As the sellers of cable television have known
what the law will too often do if too much of our culture is left to
its review.
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
<para>
Think about the amazing things your kid could do or make with digital
technology—the film, the music, the Web page, the blog. Or think
projects / text-free-culture-lessig.git / blobdiff