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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
</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>
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), 1112–13.
+the public has a just claim.<footnote>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<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),
+1112–13.
</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
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>
+<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.
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>
</sect1>
<sect1 id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
<para>
In 1839, Louis Daguerre invented the first practical technology for
producing what we would call "photographs." Appropriately enough, they
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>
+about "the placement of objects, color, . . . rhythm, pacing, and
+texture."<footnote>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<indexterm><primary>Daley, Elizabeth</primary></indexterm>
<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
</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>
</blockquote>
<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>
</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).
</para></footnote>
</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
of Free Expression: Copyright on the Internet—The Myth of Free
<sect1 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">
Like every great advance in innovation on the Internet (and,
arguably,
off the Internet as well<footnote><para>
-<!-- f5 -->
+<!-- f5 -->
See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
National Bestseller That Changed the Way We Do Business (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
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 -->
+<!-- f14 -->
Ibid.
</para></footnote>
</para>
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
+4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
eliminate the opportunity for free riding in the sense I've described. See
Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag,"
University of Chicago Law Review 70 (2003): 293–96.
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."
+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
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, Eldred v. Ashcroft, 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, 37–48.
</para></footnote>
-The bookseller didn't care squat for the rights of the
- author.
-His concern was the monopoly profit that the author's work gave.
+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.
</para></footnote>
</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
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
the most important early victory being Millar v. Taylor.
</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," Wayne Law Review 29
+(1983): 1152.
</para></footnote>
</para>
<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>
<para>
</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,
passed into the public domain.
</para>
<indexterm><primary>Bacon, Francis</primary></indexterm>
+<indexterm><primary>Bunyan, John</primary></indexterm>
<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
<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 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>
<!-- 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 Morning Chronicle
+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
-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.
+meant that the booksellers could no longer control how culture in
+England would grow and develop. Culture in England was thereafter
+free. Not in the sense that copyrights would not be respected, for of
+course, for a limited time after a work was published, the bookseller
+had an exclusive right to control the publication of that book. And
+not in the sense that books could be stolen, for even after a
+copyright expired, you still had to buy the book from someone. But
+free in the sense that the culture and its growth would no longer be
+controlled by a small group of publishers. As every free market does,
+this free market of free culture would grow as the consumers and
+producers chose. English culture would develop as the many English
+readers chose to let it develop— chose in the books they bought
+and wrote; chose in the memes they repeated and endorsed. Chose in a
+competitive context, not a context in which the choices about what
+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>
</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.
</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 The Simpsons. As Else judged
<!-- PAGE BREAK 107 -->
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
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 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.
</para>
<para>
Gracie Films was okay with it, too, but they, like Groening, wanted
Else said. He was just confirming the permission with Fox.
</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
+Simpsons 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 The Simpsons 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.
+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
+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
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 The Simpsons 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 Simpsons," 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 Eldred " (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 Simpsons
+episode is clearly a fair use of The Simpsons—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 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:
</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 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
principle.
</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>
</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>
</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?
+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>
<indexterm><primary>Alben, Alex</primary></indexterm>
</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 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.
</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 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.
</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>
<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
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. 2–3 (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," Film Library Quarterly 13 nos. 2–3
+(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film
+Preservation in the United States ( Jefferson, N.C.: McFarland &
+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.
+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.
+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.
+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,
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," 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.
</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>
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;
+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 for 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">
<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.
+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.
</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.
-That is the question. And that is the rostrum on which this entire
-hearing and the debates to follow must rest.<footnote><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. 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 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>
<!-- 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),
-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
+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), 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 ever 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 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
<!-- 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?
+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 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.
</para>
<para>
<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.
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.
-</para>
+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): 90–95; 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, Code: And
+Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95;
+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
<!-- 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>
another.<footnote>
<indexterm><primary>Commons, John R.</primary></indexterm>
<para>
-<!-- f4 -->
+<!-- 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
</para>
<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.
</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
reproduce. Whole chains of the ecology were being destroyed.
</para>
<para>
-No one set out to destroy the environment. Paul Müller certainly did
+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
<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>
+<indexterm><primary>Crosskey, William W.</primary></indexterm>
+<para>
<!-- f8 -->
-William W. Crosskey, Politics and the Constitution in the History of the
-United States (London: Cambridge University Press, 1953), vol. 1, 485–86:
-"extinguish[ing], by plain implication of `the supreme Law of the Land,'
-the perpetual rights which authors had, or were supposed by some to have, under
-the Common Law" (emphasis added).
-</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, Politics and the Constitution in the History of
+the United States (London: Cambridge University Press, 1953), vol. 1,
+485–86: "extinguish[ing], by plain implication of `the supreme
+Law of the Land,' the perpetual rights which authors had, or were
+supposed by some to have, under the Common Law" (emphasis added).
+</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.
+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
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 -->
+<!-- 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
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>
+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
tradition embraced, who said whether and how the law would restrict
your freedom.
</para>
+<indexterm><primary>Casablanca</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
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.
+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.
</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):
-449–79, and for a more recent summary of the stance of the FCC and the
-courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d
-872 (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.
-
+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): 449–79, and for a
+more recent summary of the stance of the FCC and the courts, see
+Radio-Television News Directors Association v. FCC, 184 F. 3d 872
+(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">
<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 reductions 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.
-</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
-known.<footnote><para>
+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.
+</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 known.<footnote><para>
<!-- f35 -->
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
copyright law in the digital age. See Vaidhyanathan, 159–60.
</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">
</table>
<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>
<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
+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.
<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 Nomos XXII: Property, J. Roland
+Pennock and John W. Chapman, eds. (New York: New York University
+Press, 1980).
</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 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.
</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>
</chapter>
<chapter id="c-puzzles">
<title>PUZZLES</title>
-
-<para> </para>
-
+<para></para>
<!-- PAGE BREAK 186 -->
<sect1 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,
+<!-- 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
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 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!'"
</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.
</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.)
+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?
+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>
+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
</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.
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>
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>
+suffering.<footnote>
+<indexterm><primary>Bush, George W.</primary></indexterm>
+<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,'
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>
+<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
+<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," 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
interests, that could have been done in a media-neutral way."
</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
</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,
+world against reasoning. And here was the last naïve law professor,
scouring the pages, looking for reasoning.
</para>
<para>
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
<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,
+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
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>
-<indexterm><primary>Gil, Gilberto</primary></indexterm>
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
+<!-- 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 -->
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.
+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.
</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>
</sect2>
<sect2 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
</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
+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, 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.
</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.
+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.
+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
+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,
well.
</para>
<para>
-These are examples of using the Commons to better spread
- proprietary
-content. I believe that is a wonderful and common use of the
-Commons. There are others who use Creative Commons licenses for
-other reasons. Many who use the "sampling license" do so because
- anything
-else would be hypocritical. The sampling license says that others
-are free, for commercial or noncommercial purposes, to sample content
-from the licensed work; they are just not free to make full copies of the
-licensed work available to others. This is consistent with their own
-art—they, too, sample from others. Because the legal costs of sampling
-are so high (Walter Leaphart, manager of the rap group Public Enemy,
-which was born sampling the music of others, has stated that he does
-not "allow" Public Enemy to sample anymore, because the legal costs
-are so high<footnote><para>
-<!-- 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
+These are examples of using the Commons to better spread
+proprietary content. I believe that is a wonderful and common use of
+the Commons. There are others who use Creative Commons licenses for
+other reasons. Many who use the "sampling license" do so because
+anything else would be hypocritical. The sampling license says that
+others are free, for commercial or noncommercial purposes, to sample
+content from the licensed work; they are just not free to make full
+copies of the licensed work available to others. This is consistent
+with their own art—they, too, sample from others. Because the
+legal costs of sampling are so high (Walter Leaphart, manager of the
+rap group Public Enemy, which was born sampling the music of others,
+has stated that he does not "allow" Public Enemy to sample anymore,
+because the legal costs are so high<footnote><para>
+<!-- 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
<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.
</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>
<sect3 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 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
</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 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
<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.
-</para></listitem>
+Keep it short: The term should be as long as necessary to give
+incentives to create, but no longer. If it were tied to very strong
+protections for authors (so authors were able to reclaim rights from
+publishers), rights to the same work (not derivative works) might be
+extended further. The key is not to tie the work up with legal
+regulations when it no longer benefits an author. </para></listitem>
<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
+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.
<!-- 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
+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
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.
</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>
+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>
</orderedlist>
<para>
These changes together should produce an average copyright term
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."
+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
+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
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.
</para>
<blockquote>
<para>
projects / text-free-culture-lessig.git / blobdiff