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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>
piracy.
</para>
</blockquote>
+<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the "if value, then right"
</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
If a country is to be treated as a sovereign, however, then its laws are
its laws regardless of their source. The international law under which
these nations live gives them some opportunities to escape the burden
-of intellectual property law.<footnote><para>
+of intellectual property law.<footnote>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
+<para>
<!-- f2 -->
See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
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,
<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>
loved it, and it sold very well.
</para>
<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Drucker, Peter</primary></indexterm>
<para>
But I pressed Alben about how weird it seems that it would have to
take a year's work simply to clear rights. No doubt Alben had done
</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>
+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.
+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>
</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>
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
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
</para></footnote>
</para>
-<indexterm startref="idxchimera" class='endofirange'/>
+<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
</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>
generally permitted under international trade law and is specifically
permitted within the European Union.<footnote>
<indexterm><primary>Braithwaite, John</primary></indexterm>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
<para>
<!-- f2. -->
See Peter Drahos with John Braithwaite, Information Feudalism: Who
<indexterm><primary>Braithwaite, John</primary></indexterm>
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
-choice we are now making about intellectual property.<footnote><para>
+choice we are now making about intellectual property.<footnote>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
+<para>
<!-- f10. -->
See Drahos with Braithwaite, Information Feudalism, 210–20.
</para></footnote>
<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
If we were Achilles, this would be our heel. This would be the place
of our tragedy.
</para>
+<indexterm><primary>Dylan, Bob</primary></indexterm>
<para>
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.<footnote><para>
</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