<para>
LAWRENCE LESSIG
(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
-professor of law and a John A. Wilson Distinguished Faculty Scholar
+professor of law and a John A. Wilson Distinguished Faculty Scholar
at Stanford Law School, is founder of the Stanford Center for Internet
and Society and is chairman of the Creative Commons
(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
<!-- PAGE BREAK 5 -->
<para>
FREE CULTURE
-<sbr/>HOW BIG MEDIA USES TECHNOLOGY AND THE
+</para>
+
+<para>
HOW BIG MEDIA USES TECHNOLOGY AND
-LAW TO LOCK DOWN CULTURE AND CONTROL
THE LAW TO LOCK DOWN CULTURE
-CREATIVITY
AND CONTROL CREATIVITY
-<sbr/>LAWRENCE LESSIG
+</para>
+
+<para>
+LAWRENCE LESSIG
</para>
<!-- PAGE BREAK 6 -->
<sbr/>Designed by Marysarah Quinn
</para>
+<para>
+&translationblock;
+</para>
+
<para>
Without limiting the rights under copyright reserved above, no part of
this publication may be reproduced, stored in or introduced into a
it continues still.
</para>
-<para>&translationblock;</para>
-
<figure id="CreativeCommons">
<title>Creative Commons, Some rights reserved</title>
<graphic fileref="images/cc.png"></graphic>
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was
+sounded like a glass of water being poured. . . . A paper was
crumpled and torn; it sounded like paper and not like a crackling
forest fire. . . . Sousa marches were played from records and a
piano
The series of body blows that FM radio received right after the
war, in a series of rulings manipulated through the FCC by the
big radio interests, were almost incredible in their force and
-
deviousness.<footnote><para>
+deviousness.<footnote><para>
Lessing, 256.
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
FM radio users were to be moved to a totally new spectrum band. The
least temporarily.
</para>
<para>
-Armstrong resisted RCA's efforts. In response, RCA resisted
- Armstrong's
-patents. After incorporating FM technology into the emerging
-standard for television, RCA declared the patents invalid—baselessly,
-and almost fifteen years after they were issued. It thus refused to pay
-him royalties. For six years, Armstrong fought an expensive war of
- litigation
-to defend the patents. Finally, just as the patents expired, RCA
-offered a settlement so low that it would not even cover Armstrong's
-lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong
-wrote a short note to his wife and then stepped out of a
- thirteenth-story
-window to his death.
+Armstrong resisted RCA's efforts. In response, RCA resisted
+Armstrong's patents. After incorporating FM technology into the
+emerging standard for television, RCA declared the patents
+invalid—baselessly, and almost fifteen years after they were
+issued. It thus refused to pay him royalties. For six years, Armstrong
+fought an expensive war of litigation to defend the patents. Finally,
+just as the patents expired, RCA offered a settlement so low that it
+would not even cover Armstrong's lawyers' fees. Defeated, broken, and
+now broke, in 1954 Armstrong wrote a short note to his wife and then
+stepped out of a thirteenth-story window to his death.
</para>
<para>
This is how the law sometimes works. Not often this tragically, and
-rarely with heroic drama, but sometimes, this is how it works. From the
-beginning, government and government agencies have been subject
-to capture. They are more likely captured when a powerful interest is
-threatened by either a legal or technical change. That powerful interest
-too often exerts its influence within the government to get the
- government
-to protect it. The rhetoric of this protection is of course always
-public spirited; the reality is something different. Ideas that were as
-solid as rock in one age, but that, left to themselves, would crumble in
+rarely with heroic drama, but sometimes, this is how it works. From
+the beginning, government and government agencies have been subject to
+capture. They are more likely captured when a powerful interest is
+threatened by either a legal or technical change. That powerful
+interest too often exerts its influence within the government to get
+the government to protect it. The rhetoric of this protection is of
+course always public spirited; the reality is something
+different. Ideas that were as solid as rock in one age, but that, left
+to themselves, would crumble in
<!-- PAGE BREAK 22 -->
another, are sustained through this subtle corruption of our political
process. RCA had what the Causbys did not: the power to stifle the
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial
-marketplace.<footnote><para>
+marketplace.<footnote>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<para>
This is not the only purpose of copyright, though it is the overwhelmingly
-primary purpose of the copyright established in the federal constitution.
+primary purpose of the copyright established in the federal constitution.
State copyright law historically protected not just the commercial interest in
publication, but also a privacy interest. By granting authors the exclusive
right to first publication, state copyright law gave authors the power to
who we have always been.
</para>
<para>
-We allow this, I believe, not because it is right, and not because
-most of us really believe in these changes. We allow it because the
- interests
-most threatened are among the most powerful players in our
-depressingly compromised process of making law. This book is the
-story of one more consequence of this form of corruption—a
- consequence
+We allow this, I believe, not because it is right, and not because
+most of us really believe in these changes. We allow it because the
+interests most threatened are among the most powerful players in our
+depressingly compromised process of making law. This book is the story
+of one more consequence of this form of corruption—a consequence
to which most of us remain oblivious.
</para>
</chapter>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the "if value, then right"
- theory
-of creative property<footnote><para>
+theory of creative property<footnote><para>
<!-- f2 -->
See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
</para></footnote>
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
- organization,
-ASCAP, to sue the Girl Scouts for failing to pay for the
+organization, ASCAP, to sue the Girl Scouts for failing to pay for the
songs that girls sang around Girl Scout campfires.<footnote><para>
<!-- f3 -->
Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins," Boston Globe, 24 November 2002.
</para></footnote>
-There was "value"
-(the songs) so there must have been a "right"—even against the Girl
-Scouts.
+There was "value" (the songs) so there must have been a
+"right"—even against the Girl Scouts.
</para>
+<indexterm><primary>ASCAP</primary></indexterm>
<para>
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
</para>
<para>
Instead, in our tradition, intellectual property is an instrument. It
-sets the groundwork for a richly creative society but remains
- subservient
-to the value of creativity. The current debate has this turned
-around. We have become so concerned with protecting the instrument
-that we are losing sight of the value.
+sets the groundwork for a richly creative society but remains
+subservient to the value of creativity. The current debate has this
+turned around. We have become so concerned with protecting the
+instrument that we are losing sight of the value.
</para>
<para>
The source of this confusion is a distinction that the law no longer
copyright law today regulates both.
</para>
<para>
-Before the technologies of the Internet, this conflation didn't
- matter
+Before the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive; that
meant the vast majority of publishing was commercial. Commercial
entities could bear the burden of the law—even the burden of the
<para>
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
-commercial creators but effectively that of anyone. Although that
- expansion
-would not matter much if copyright law regulated only
- "copying,"
-when the law regulates as broadly and obscurely as it does, the
-extension matters a lot. The burden of this law now vastly outweighs
-any original benefit—certainly as it affects noncommercial creativity,
-and increasingly as it affects commercial creativity as well. Thus, as
-we'll see more clearly in the chapters below, the law's role is less and
-less to support creativity, and more and more to protect certain
- industries
-against competition. Just at the time digital technology could
-unleash an extraordinary range of commercial and noncommercial
-creativity, the law burdens this creativity with insanely complex and
-vague rules and with the threat of obscenely severe penalties. We may
+commercial creators but effectively that of anyone. Although that
+expansion would not matter much if copyright law regulated only
+"copying," when the law regulates as broadly and obscurely as it does,
+the extension matters a lot. The burden of this law now vastly
+outweighs any original benefit—certainly as it affects
+noncommercial creativity, and increasingly as it affects commercial
+creativity as well. Thus, as we'll see more clearly in the chapters
+below, the law's role is less and less to support creativity, and more
+and more to protect certain industries against competition. Just at
+the time digital technology could unleash an extraordinary range of
+commercial and noncommercial creativity, the law burdens this
+creativity with insanely complex and vague rules and with the threat
+of obscenely severe penalties. We may
<!-- PAGE BREAK 33 -->
be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote><para>
<!-- f4 -->
-In The Rise of the Creative Class (New York: Basic Books, 2002), Richard
-Florida documents a shift in the nature of labor toward a labor of
- creativity.
-His work, however, doesn't directly address the legal conditions under
-which that creativity is enabled or stifled. I certainly agree with him about
-the importance and significance of this change, but I also believe the
- conditions
-under which it will be enabled are much more tenuous.
+In The Rise of the Creative Class (New York: Basic Books, 2002),
+Richard Florida documents a shift in the nature of labor toward a
+labor of creativity. His work, however, doesn't directly address the
+legal conditions under which that creativity is enabled or stifled. I
+certainly agree with him about the importance and significance of this
+change, but I also believe the conditions under which it will be
+enabled are much more tenuous.
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
to life the character that would become Mickey Mouse.
</para>
<para>
-Synchronized sound had been introduced to film a year earlier in
-the movie The Jazz Singer. That success led Walt Disney to copy the
-technique and mix sound with cartoons. No one knew whether it
-would work or, if it did work, whether it would win an audience. But
-when Disney ran a test in the summer of 1928, the results were
- unambiguous.
+Synchronized sound had been introduced to film a year earlier in the
+movie The Jazz Singer. That success led Walt Disney to copy the
+technique and mix sound with cartoons. No one knew whether it would
+work or, if it did work, whether it would win an audience. But when
+Disney ran a test in the summer of 1928, the results were unambiguous.
As Disney describes that first experiment,
</para>
<blockquote>
<!-- PAGE BREAK 35 -->
</para>
<para>
-The boys worked from a music and sound-effects score. After
-several false starts, sound and action got off with the gun. The
-mouth organist played the tune, the rest of us in the sound
- department
-bammed tin pans and blew slide whistles on the beat.
-The synchronization was pretty close.
+The boys worked from a music and sound-effects score. After several
+false starts, sound and action got off with the gun. The mouth
+organist played the tune, the rest of us in the sound department
+bammed tin pans and blew slide whistles on the beat. The
+synchronization was pretty close.
</para>
<para>
The effect on our little audience was nothing less than
in my life. Nothing since has ever equaled it."
</para>
<para>
-Disney had created something very new, based upon something
- relatively
-new. Synchronized sound brought life to a form of creativity
-that had rarely—except in Disney's hands—been anything more than
-filler for other films. Throughout animation's early history, it was
- Disney's
-invention that set the standard that others struggled to match.
-And quite often, Disney's great genius, his spark of creativity, was built
-upon the work of others.
+Disney had created something very new, based upon something relatively
+new. Synchronized sound brought life to a form of creativity that had
+rarely—except in Disney's hands—been anything more than
+filler for other films. Throughout animation's early history, it was
+Disney's invention that set the standard that others struggled to
+match. And quite often, Disney's great genius, his spark of
+creativity, was built upon the work of others.
</para>
<para>
This much is familiar. What you might not know is that 1928 also
films of his day.<footnote><para>
<!-- f3 -->
He was also a fan of the public domain. See Chris Sprigman, "The Mouse
-that Ate the Public Domain," Findlaw, 5 March 2002, at
+that Ate the Public Domain," Findlaw, 5 March 2002, at
<ulink url="http://free-culture.cc/notes/">link #5</ulink>.
</para></footnote>
-So did many others. Early cartoons are filled with
-knockoffs—slight variations on winning themes; retellings of ancient
-stories. The key to success was the brilliance of the differences. With
-Disney, it was sound that gave his animation its spark. Later, it was the
-quality of his work relative to the production-line cartoons with which
-he competed. Yet these additions were built upon a base that was
- borrowed.
-Disney added to the work of others before him, creating
- something
-new out of something just barely old.
+So did many others. Early cartoons are filled with
+knockoffs—slight variations on winning themes; retellings of
+ancient stories. The key to success was the brilliance of the
+differences. With Disney, it was sound that gave his animation its
+spark. Later, it was the quality of his work relative to the
+production-line cartoons with which he competed. Yet these additions
+were built upon a base that was borrowed. Disney added to the work of
+others before him, creating something new out of something just barely
+old.
</para>
<para>
Sometimes this borrowing was slight. Sometimes it was significant.
-Think about the fairy tales of the Brothers Grimm. If you're as
- oblivious
-as I was, you're likely to think that these tales are happy, sweet
- stories,
-appropriate for any child at bedtime. In fact, the Grimm fairy tales
-are, well, for us, grim. It is a rare and perhaps overly ambitious parent
-who would dare to read these bloody, moralistic stories to his or her
-child, at bedtime or anytime.
-</para>
-<para>
-Disney took these stories and retold them in a way that carried
-them into a new age. He animated the stories, with both characters and
+Think about the fairy tales of the Brothers Grimm. If you're as
+oblivious as I was, you're likely to think that these tales are happy,
+sweet stories, appropriate for any child at bedtime. In fact, the
+Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
+overly ambitious parent who would dare to read these bloody,
+moralistic stories to his or her child, at bedtime or anytime.
+</para>
+<para>
+Disney took these stories and retold them in a way that carried them
+into a new age. He animated the stories, with both characters and
light. Without removing the elements of fear and danger altogether, he
-made funny what was dark and injected a genuine emotion of
- compassion
+made funny what was dark and injected a genuine emotion of compassion
where before there was fear. And not just with the work of the
-Brothers Grimm. Indeed, the catalog of Disney work drawing upon
-the work of others is astonishing when set together: Snow White
-(1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi
-(1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland
-(1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp
+Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
+work of others is astonishing when set together: Snow White (1937),
+Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of
+the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin
+Hood (1952), Peter Pan (1953), Lady and the Tramp
<!-- PAGE BREAK 37 -->
(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
-The Sword in the Stone (1963), and The Jungle Book (1967)—not to
-mention a recent example that we should perhaps quickly forget,
- Treasure
-Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped
-creativity from the culture around him, mixed that creativity with his
-own extraordinary talent, and then burned that mix into the soul of his
-culture. Rip, mix, and burn.
-</para>
-<para>
-This is a kind of creativity. It is a creativity that we should
- remember
-and celebrate. There are some who would say that there is no
- creativity
-except this kind. We don't need to go that far to recognize its
-importance. We could call this "Disney creativity," though that would
-be a bit misleading. It is, more precisely, "Walt Disney creativity"—a
-form of expression and genius that builds upon the culture around us
-and makes it something different.
-</para>
-<para>
-In 1928, the culture that Disney was free to draw upon was
- relatively
-fresh. The public domain in 1928 was not very old and was
+The Sword in the Stone (1963), and The Jungle Book (1967)—not to
+mention a recent example that we should perhaps quickly forget,
+Treasure Planet (2003). In all of these cases, Disney (or Disney,
+Inc.) ripped creativity from the culture around him, mixed that
+creativity with his own extraordinary talent, and then burned that mix
+into the soul of his culture. Rip, mix, and burn.
+</para>
+<para>
+This is a kind of creativity. It is a creativity that we should
+remember and celebrate. There are some who would say that there is no
+creativity except this kind. We don't need to go that far to recognize
+its importance. We could call this "Disney creativity," though that
+would be a bit misleading. It is, more precisely, "Walt Disney
+creativity"—a form of expression and genius that builds upon the
+culture around us and makes it something different.
+</para>
+<para> In 1928, the culture that Disney was free to draw upon was
+relatively fresh. The public domain in 1928 was not very old and was
therefore quite vibrant. The average term of copyright was just around
-thirty years—for that minority of creative work that was in fact copyrighted.<footnote><para>
+thirty years—for that minority of creative work that was in fact
+copyrighted.<footnote><para>
<!-- f4 -->
Until 1976, copyright law granted an author the possibility of two terms: an
initial term and a renewal term. I have calculated the "average" term by
- determining
+determining
the weighted average of total registrations for any particular year,
and the proportion renewing. Thus, if 100 copyrights are registered in year
1, and only 15 are renewed, and the renewal term is 28 years, then the
- average
+average
term is 32.2 years. For the renewal data and other relevant data, see the
Web site associated with this book, available at
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
required the permission of the copyright owner.
</para>
<para>
-At the end of a copyright term, a work passes into the public
- domain.
+At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
permission and, hence, no lawyers. The public domain is a "lawyer-free
zone." Thus, most of the content from the nineteenth century was free
-for Disney to use and build upon in 1928. It was free for anyone—
-whether connected or not, whether rich or not, whether approved or
-not—to use and build upon.
+for Disney to use and build upon in 1928. It was free for
+anyone— whether connected or not, whether rich or not, whether
+approved or not—to use and build upon.
</para>
<para>
This is the ways things always were—until quite recently. For most
<!-- PAGE BREAK 38 -->
free for anyone to build upon without the permission of anyone else.
-Today's equivalent would be for creative work from the 1960s and
-1970s to now be free for the next Walt Disney to build upon without
-permission. Yet today, the public domain is presumptive only for
- content
-from before the Great Depression.
+Today's equivalent would be for creative work from the 1960s and 1970s
+to now be free for the next Walt Disney to build upon without
+permission. Yet today, the public domain is presumptive only for
+content from before the Great Depression.
</para>
<para>
-Of course, Walt Disney had no monopoly on "Walt Disney
- creativity."
-Nor does America. The norm of free culture has, until recently,
-and except within totalitarian nations, been broadly exploited and quite
+Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+Nor does America. The norm of free culture has, until recently, and
+except within totalitarian nations, been broadly exploited and quite
universal.
</para>
<para>
-Consider, for example, a form of creativity that seems strange to
-many Americans but that is inescapable within Japanese culture:
-manga, or comics. The Japanese are fanatics about comics. Some 40
-percent of publications are comics, and 30 percent of publication
- revenue
-derives from comics. They are everywhere in Japanese society, at
-every magazine stand, carried by a large proportion of commuters on
-Japan's extraordinary system of public transportation.
+Consider, for example, a form of creativity that seems strange to many
+Americans but that is inescapable within Japanese culture: manga, or
+comics. The Japanese are fanatics about comics. Some 40 percent of
+publications are comics, and 30 percent of publication revenue derives
+from comics. They are everywhere in Japanese society, at every
+magazine stand, carried by a large proportion of commuters on Japan's
+extraordinary system of public transportation.
</para>
<para>
Americans tend to look down upon this form of culture. That's an
-unattractive characteristic of ours. We're likely to misunderstand much
-about manga, because few of us have ever read anything close to the
-stories that these "graphic novels" tell. For the Japanese, manga cover
-every aspect of social life. For us, comics are "men in tights." And
- anyway,
-it's not as if the New York subways are filled with readers of Joyce
-or even Hemingway. People of different cultures distract themselves in
-different ways, the Japanese in this interestingly different way.
+unattractive characteristic of ours. We're likely to misunderstand
+much about manga, because few of us have ever read anything close to
+the stories that these "graphic novels" tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are "men in tights."
+And anyway, it's not as if the New York subways are filled with
+readers of Joyce or even Hemingway. People of different cultures
+distract themselves in different ways, the Japanese in this
+interestingly different way.
</para>
<para>
But my purpose here is not to understand manga. It is to describe a
and reject any copycat comic that is merely a copy.
</para>
<para>
-These copycat comics are not a tiny part of the manga market. They
-are huge. More than 33,000 "circles" of creators from across Japan
- produce
-these bits of Walt Disney creativity. More than 450,000 Japanese
-come together twice a year, in the largest public gathering in the
- country,
+These copycat comics are not a tiny part of the manga market. They are
+huge. More than 33,000 "circles" of creators from across Japan produce
+these bits of Walt Disney creativity. More than 450,000 Japanese come
+together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
mainstream commercial manga market. In some ways, it obviously
competes with that market, but there is no sustained effort by those
-who control the commercial manga market to shut the doujinshi
- market
+who control the commercial manga market to shut the doujinshi market
down. It flourishes, despite the competition and despite the law.
</para>
<para>
-The most puzzling feature of the doujinshi market, for those
-trained in the law, at least, is that it is allowed to exist at all. Under
-Japanese copyright law, which in this respect (on paper) mirrors
- American
-copyright law, the doujinshi market is an illegal one. Doujinshi are
-plainly "derivative works." There is no general practice by doujinshi
-artists of securing the permission of the manga creators. Instead, the
-practice is simply to take and modify the creations of others, as Walt
-Disney did with Steamboat Bill, Jr. Under both Japanese and American
-law, that "taking" without the permission of the original copyright
-owner is illegal. It is an infringement of the original copyright to make
-a copy or a derivative work without the original copyright owner's
-permission.
+The most puzzling feature of the doujinshi market, for those trained
+in the law, at least, is that it is allowed to exist at all. Under
+Japanese copyright law, which in this respect (on paper) mirrors
+American copyright law, the doujinshi market is an illegal
+one. Doujinshi are plainly "derivative works." There is no general
+practice by doujinshi artists of securing the permission of the manga
+creators. Instead, the practice is simply to take and modify the
+creations of others, as Walt Disney did with Steamboat Bill, Jr. Under
+both Japanese and American law, that "taking" without the permission
+of the original copyright owner is illegal. It is an infringement of
+the original copyright to make a copy or a derivative work without the
+original copyright owner's permission.
</para>
<para>
Yet this illegal market exists and indeed flourishes in Japan, and in
which are fifty years old."
</para>
<para>
-The norm in Japan mitigates this legal difficulty. Some say it is
- precisely
-the benefit accruing to the Japanese manga market that explains
-the mitigation. Temple University law professor Salil Mehra, for
- example,
-hypothesizes that the manga market accepts these technical
-violations because they spur the manga market to be more wealthy and
-productive. Everyone would be worse off if doujinshi were banned, so
-the law does not ban doujinshi.<footnote><para>
+The norm in Japan mitigates this legal difficulty. Some say it is
+precisely the benefit accruing to the Japanese manga market that
+explains the mitigation. Temple University law professor Salil Mehra,
+for example, hypothesizes that the manga market accepts these
+technical violations because they spur the manga market to be more
+wealthy and productive. Everyone would be worse off if doujinshi were
+banned, so the law does not ban doujinshi.<footnote><para>
<!-- f6 -->
See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
-Review 55 (2002): 155, 182. "[T]here might be a collective economic
- rationality
-that would lead manga and anime artists to forgo bringing legal
-actions for infringement. One hypothesis is that all manga artists may be
-better off collectively if they set aside their individual self-interest and
- decide
-not to press their legal rights. This is essentially a prisoner's dilemma
-solved."
+Review 55 (2002): 155, 182. "[T]here might be a collective economic
+rationality that would lead manga and anime artists to forgo bringing
+legal actions for infringement. One hypothesis is that all manga
+artists may be better off collectively if they set aside their
+individual self-interest and decide not to press their legal
+rights. This is essentially a prisoner's dilemma solved."
</para></footnote>
</para>
<para>
-The problem with this story, however, as Mehra plainly
- acknowledges,
+The problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response is not
-clear. It may well be that the market as a whole is better off if
- doujinshi
-are permitted rather than banned, but that doesn't explain why
- individual
-copyright owners don't sue nonetheless. If the law has no
-general exception for doujinshi, and indeed in some cases individual
-manga artists have sued doujinshi artists, why is there not a more
- general
-pattern of blocking this "free taking" by the doujinshi culture?
+clear. It may well be that the market as a whole is better off if
+doujinshi are permitted rather than banned, but that doesn't explain
+why individual copyright owners don't sue nonetheless. If the law has
+no general exception for doujinshi, and indeed in some cases
+individual manga artists have sued doujinshi artists, why is there not
+a more general pattern of blocking this "free taking" by the doujinshi
+culture?
</para>
<para>
I spent four wonderful months in Japan, and I asked this question
be puzzled about something you hadn't thought through before.
</para>
<para>
-We live in a world that celebrates "property." I am one of those
- celebrants.
-I believe in the value of property in general, and I also believe
-in the value of that weird form of property that lawyers call
- "intellectual
-property."<footnote><para>
+We live in a world that celebrates "property." I am one of those
+celebrants. I believe in the value of property in general, and I also
+believe in the value of that weird form of property that lawyers call
+"intellectual property."<footnote><para>
<!-- f7 -->
The term intellectual property is of relatively recent origin. See Siva
Vaidhyanathan,
intellectual property.
</para>
<para>
-But it takes just a second's reflection to realize that there is plenty of
-value out there that "property" doesn't capture. I don't mean "money
-can't buy you love," but rather, value that is plainly part of a process of
-production, including commercial as well as noncommercial
- production.
-If Disney animators had stolen a set of pencils to draw Steamboat
-Willie, we'd have no hesitation in condemning that taking as wrong—
-even though trivial, even if unnoticed. Yet there was nothing wrong, at
-least under the law of the day, with Disney's taking from Buster Keaton
-or from the Brothers Grimm. There was nothing wrong with the
- taking
-from Keaton because Disney's use would have been considered
-"fair." There was nothing wrong with the taking from the Grimms
- because
-the Grimms' work was in the public domain.
+But it takes just a second's reflection to realize that there is
+plenty of value out there that "property" doesn't capture. I don't
+mean "money can't buy you love," but rather, value that is plainly
+part of a process of production, including commercial as well as
+noncommercial production. If Disney animators had stolen a set of
+pencils to draw Steamboat Willie, we'd have no hesitation in
+condemning that taking as wrong— even though trivial, even if
+unnoticed. Yet there was nothing wrong, at least under the law of the
+day, with Disney's taking from Buster Keaton or from the Brothers
+Grimm. There was nothing wrong with the taking from Keaton because
+Disney's use would have been considered "fair." There was nothing
+wrong with the taking from the Grimms because the Grimms' work was in
+the public domain.
</para>
<para>
Thus, even though the things that Disney took—or more generally,
valuable, our tradition does not treat those takings as wrong. Some
<!-- PAGE BREAK 42 -->
-things remain free for the taking within a free culture, and that
- freedom
-is good.
+things remain free for the taking within a free culture, and that
+freedom is good.
</para>
<para>
The same with the doujinshi culture. If a doujinshi artist broke into
</para>
<para>
Yet there is an obvious reluctance, even among Japanese lawyers, to
-say that the copycat comic artists are "stealing." This form of Walt
- Disney
-creativity is seen as fair and right, even if lawyers in particular find
-it hard to say why.
-</para>
-<para>
-It's the same with a thousand examples that appear everywhere once
-you begin to look. Scientists build upon the work of other scientists
-without asking or paying for the privilege. ("Excuse me, Professor
- Einstein,
-but may I have permission to use your theory of relativity to show
-that you were wrong about quantum physics?") Acting companies
- perform
-adaptations of the works of Shakespeare without securing
- permission
-from anyone. (Does anyone believe Shakespeare would be
+say that the copycat comic artists are "stealing." This form of Walt
+Disney creativity is seen as fair and right, even if lawyers in
+particular find it hard to say why.
+</para>
+<para>
+It's the same with a thousand examples that appear everywhere once you
+begin to look. Scientists build upon the work of other scientists
+without asking or paying for the privilege. ("Excuse me, Professor
+Einstein, but may I have permission to use your theory of relativity
+to show that you were wrong about quantum physics?") Acting companies
+perform adaptations of the works of Shakespeare without securing
+permission from anyone. (Does anyone believe Shakespeare would be
better spread within our culture if there were a central Shakespeare
rights clearinghouse that all productions of Shakespeare must appeal
to first?) And Hollywood goes through cycles with a certain kind of
-movie: five asteroid films in the late 1990s; two volcano disaster films
-in 1997.
+movie: five asteroid films in the late 1990s; two volcano disaster
+films in 1997.
</para>
<para>
Creators here and everywhere are always and at all times building
<!-- PAGE BREAK 43 -->
</para>
<para>
-The hard question is therefore not whether a culture is free. All
- cultures
-are free to some degree. The hard question instead is "How free is
-this culture?" How much, and how broadly, is the culture free for
- others
-to take and build upon? Is that freedom limited to party members?
-To members of the royal family? To the top ten corporations on the
-New York Stock Exchange? Or is that freedom spread broadly? To
-artists generally, whether affiliated with the Met or not? To musicians
-generally, whether white or not? To filmmakers generally, whether
- affiliated
-with a studio or not?
+The hard question is therefore not whether a culture is free. All
+cultures are free to some degree. The hard question instead is "How
+free is this culture?" How much, and how broadly, is the culture free
+for others to take and build upon? Is that freedom limited to party
+members? To members of the royal family? To the top ten corporations
+on the New York Stock Exchange? Or is that freedom spread broadly? To
+artists generally, whether affiliated with the Met or not? To
+musicians generally, whether white or not? To filmmakers generally,
+whether affiliated with a studio or not?
</para>
<para>
Free cultures are cultures that leave a great deal open for others to
<sect1 id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
<para>
-
In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call "photographs." Appropriately enough,
-they were called "daguerreotypes." The process was complicated and
+producing what we would call "photographs." Appropriately enough, they
+were called "daguerreotypes." The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
-Association that helped regulate the industry, as do all such
- associations,
-by keeping competition down so as to keep prices up.)
+Association that helped regulate the industry, as do all such
+associations, by keeping competition down so as to keep prices up.)
</para>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
-This pushed inventors to find simpler and cheaper ways to make
- "automatic
-pictures." William Talbot soon discovered a process for
- making
-"negatives." But because the negatives were glass, and had to be
-kept wet, the process still remained expensive and cumbersome. In the
-1870s, dry plates were developed, making it easier to separate the
- taking
-of a picture from its developing. These were still plates of glass, and
-thus it was still not a process within reach of most amateurs.
+This pushed inventors to find simpler and cheaper ways to make
+"automatic pictures." William Talbot soon discovered a process for
+making "negatives." But because the negatives were glass, and had to
+be kept wet, the process still remained expensive and cumbersome. In
+the 1870s, dry plates were developed, making it easier to separate the
+taking of a picture from its developing. These were still plates of
+glass, and thus it was still not a process within reach of most
+amateurs.
</para>
<para>
The technological change that made mass photography possible
<!-- PAGE BREAK 45 -->
Eastman, himself an amateur photographer, was frustrated by the
technology of photographs made with plates. In a flash of insight (so
-to speak), Eastman saw that if the film could be made to be flexible, it
-could be held on a single spindle. That roll could then be sent to a
- developer,
-driving the costs of photography down substantially. By
- lowering
-the costs, Eastman expected he could dramatically broaden the
+to speak), Eastman saw that if the film could be made to be flexible,
+it could be held on a single spindle. That roll could then be sent to
+a developer, driving the costs of photography down substantially. By
+lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
</para>
<para>
Eastman developed flexible, emulsion-coated paper film and placed
-rolls of it in small, simple cameras: the Kodak. The device was
- marketed
-on the basis of its simplicity. "You press the button and we do the
-rest."<footnote><para>
+rolls of it in small, simple cameras: the Kodak. The device was
+marketed on the basis of its simplicity. "You press the button and we
+do the rest."<footnote><para>
<!-- f1 -->
Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in The Kodak Primer:
</para>
<blockquote>
<para>
-The principle of the Kodak system is the separation of the work
-that any person whomsoever can do in making a photograph,
-from the work that only an expert can do. . . . We furnish
- anybody,
-man, woman or child, who has sufficient intelligence to
-point a box straight and press a button, with an instrument which
-altogether removes from the practice of photography the
- necessity
-for exceptional facilities or, in fact, any special knowledge of
-the art. It can be employed without preliminary study, without a
-
darkroom and without chemicals.<footnote><para>
+The principle of the Kodak system is the separation of the work that
+any person whomsoever can do in making a photograph, from the work
+that only an expert can do. . . . We furnish anybody, man, woman or
+child, who has sufficient intelligence to point a box straight and
+press a button, with an instrument which altogether removes from the
+practice of photography the necessity for exceptional facilities or,
+in fact, any special knowledge of the art. It can be employed without
+preliminary study, without a darkroom and without
+chemicals.<footnote>
+<indexterm><primary>Coe, Brian</primary></indexterm>
+<para>
<!-- f2 -->
Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
Based on a chart in Jenkins, p. 178.
</para></footnote>
</para>
+<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<!-- PAGE BREAK 46 -->
The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
-glimpse of places they would never otherwise see. Amateur
- photography
+glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had
-never been able to do before. As author Brian Coe notes, "For the first
-time the snapshot album provided the man on the street with a
- permanent
-record of his family and its activities. . . . For the first time in
-history there exists an authentic visual record of the appearance and
- activities
-of the common man made without [literary] interpretation
-or bias."<footnote><para>
+never been able to do before. As author Brian Coe notes, "For the
+first time the snapshot album provided the man on the street with a
+permanent record of his family and its activities. . . . For the first
+time in history there exists an authentic visual record of the
+appearance and activities of the common man made without [literary]
+interpretation or bias."<footnote><para>
<!-- f5 -->
Coe, 58.
</para></footnote>
</para>
<para>
What was required for this technology to flourish? Obviously,
-Eastman's genius was an important part. But also important was the
- legal
-environment within which Eastman's invention grew. For early in
-the history of photography, there was a series of judicial decisions that
-could well have changed the course of photography substantially.
+Eastman's genius was an important part. But also important was the
+legal environment within which Eastman's invention grew. For early in
+the history of photography, there was a series of judicial decisions
+that could well have changed the course of photography substantially.
Courts were asked whether the photographer, amateur or professional,
required permission before he could capture and print whatever image
he wanted. Their answer was no.<footnote><para>
</para></footnote>
</para>
<para>
-The arguments in favor of requiring permission will sound
- surprisingly
-familiar. The photographer was "taking" something from the
- person
-or building whose photograph he shot—pirating something of
-value. Some even thought he was taking the target's soul. Just as
- Disney
-was not free to take the pencils that his animators used to draw
+The arguments in favor of requiring permission will sound surprisingly
+familiar. The photographer was "taking" something from the person or
+building whose photograph he shot—pirating something of
+value. Some even thought he was taking the target's soul. Just as
+Disney was not free to take the pencils that his animators used to
+draw
<!-- PAGE BREAK 47 -->
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
</para>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<para>
On the other side was an argument that should be familiar, as well.
Sure, there may be something of value being used. But citizens should
have the right to capture at least those images that stand in public view.
(Louis Brandeis, who would become a Supreme Court Justice, thought
-the rule should be different for images from private spaces.<footnote><para>
+the rule should be different for images from private spaces.<footnote>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<indexterm><primary>Warren, Samuel D.</primary></indexterm>
+<para>
<!-- f7 -->
-Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
- Harvard
-Law Review 4 (1890): 193.
-</para></footnote>) It may be
-that this means that the photographer gets something for nothing. Just
-as Disney could take inspiration from Steamboat Bill, Jr. or the
- Brothers
-Grimm, the photographer should be free to capture an image
- without
-compensating the source.
+Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
+Harvard Law Review 4 (1890): 193.
+</para></footnote>) It may be that this means that the photographer
+gets something for nothing. Just as Disney could take inspiration from
+Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
+free to capture an image without compensating the source.
</para>
<para>
Fortunately for Mr. Eastman, and for photography in general, these
-early decisions went in favor of the pirates. In general, no permission
-would be required before an image could be captured and shared with
-others. Instead, permission was presumed. Freedom was the default.
-(The law would eventually craft an exception for famous people:
- commercial
-photographers who snap pictures of famous people for
- commercial
-purposes have more restrictions than the rest of us. But in the
-ordinary case, the image can be captured without clearing the rights to
-do the capturing.<footnote><para>
+early decisions went in favor of the pirates. In general, no
+permission would be required before an image could be captured and
+shared with others. Instead, permission was presumed. Freedom was the
+default. (The law would eventually craft an exception for famous
+people: commercial photographers who snap pictures of famous people
+for commercial purposes have more restrictions than the rest of
+us. But in the ordinary case, the image can be captured without
+clearing the rights to do the capturing.<footnote><para>
<!-- f8 -->
See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
-Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
- Review
-48 (1960) 398–407; White v. Samsung Electronics America, Inc., 971 F.
-2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
+Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
+Review 48 (1960) 398–407; White v. Samsung Electronics America,
+Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
+(1993).
</para></footnote>)
</para>
<para>
-We can only speculate about how photography would have
- developed
-had the law gone the other way. If the presumption had been
-against the photographer, then the photographer would have had to
-demonstrate permission. Perhaps Eastman Kodak would have had to
-demonstrate permission, too, before it developed the film upon which
-images were captured. After all, if permission were not granted, then
-Eastman Kodak would be benefiting from the "theft" committed by
-the photographer. Just as Napster benefited from the copyright
- infringements
-committed by Napster users, Kodak would be benefiting
+We can only speculate about how photography would have developed had
+the law gone the other way. If the presumption had been against the
+photographer, then the photographer would have had to demonstrate
+permission. Perhaps Eastman Kodak would have had to demonstrate
+permission, too, before it developed the film upon which images were
+captured. After all, if permission were not granted, then Eastman
+Kodak would be benefiting from the "theft" committed by the
+photographer. Just as Napster benefited from the copyright
+infringements committed by Napster users, Kodak would be benefiting
from the "image-right" infringement of its photographers. We could
imagine the law then requiring that some form of permission be
-demonstrated before a company developed pictures. We could imagine
-a system developing to demonstrate that permission.
+demonstrated before a company developed pictures. We could imagine a
+system developing to demonstrate that permission.
</para>
<para>
<!-- PAGE BREAK 48 -->
-But though we could imagine this system of permission, it would
-be very hard to see how photography could have flourished as it did if
-the requirement for permission had been built into the rules that
- govern
-it. Photography would have existed. It would have grown in
- importance
-over time. Professionals would have continued to use the
-technology as they did—since professionals could have more easily borne
-the burdens of the permission system. But the spread of photography
-to ordinary people would not have occurred. Nothing like that growth
-would have been realized. And certainly, nothing like that growth in a
-democratic technology of expression would have been realized.
-If you drive through San Francisco's Presidio, you might see two
-gaudy yellow school buses painted over with colorful and striking
- images,
-and the logo "Just Think!" in place of the name of a school. But
-there's little that's "just" cerebral in the projects that these busses
- enable.
-These buses are filled with technologies that teach kids to tinker
-with film. Not the film of Eastman. Not even the film of your VCR.
-Rather the "film" of digital cameras. Just Think! is a project that
- enables
-kids to make films, as a way to understand and critique the filmed
-culture that they find all around them. Each year, these busses travel to
-more than thirty schools and enable three hundred to five hundred
-children to learn something about media by doing something with
- media.
-By doing, they think. By tinkering, they learn.
+But though we could imagine this system of permission, it would be
+very hard to see how photography could have flourished as it did if
+the requirement for permission had been built into the rules that
+govern it. Photography would have existed. It would have grown in
+importance over time. Professionals would have continued to use the
+technology as they did—since professionals could have more
+easily borne the burdens of the permission system. But the spread of
+photography to ordinary people would not have occurred. Nothing like
+that growth would have been realized. And certainly, nothing like that
+growth in a democratic technology of expression would have been
+realized. If you drive through San Francisco's Presidio, you might
+see two gaudy yellow school buses painted over with colorful and
+striking images, and the logo "Just Think!" in place of the name of a
+school. But there's little that's "just" cerebral in the projects that
+these busses enable. These buses are filled with technologies that
+teach kids to tinker with film. Not the film of Eastman. Not even the
+film of your VCR. Rather the "film" of digital cameras. Just Think!
+is a project that enables kids to make films, as a way to understand
+and critique the filmed culture that they find all around them. Each
+year, these busses travel to more than thirty schools and enable three
+hundred to five hundred children to learn something about media by
+doing something with media. By doing, they think. By tinkering, they
+learn.
</para>
<para>
These buses are not cheap, but the technology they carry is
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
- deconstruct
-media images. Its aim is to make [kids] literate about the way
-media works, the way it's constructed, the way it's delivered, and the
-way people access it."
+Think!, puts it, "is the ability . . . to understand, analyze, and
+deconstruct media images. Its aim is to make [kids] literate about the
+way media works, the way it's constructed, the way it's delivered, and
+the way people access it."
</para>
<para>
This may seem like an odd way to think about "literacy." For most
<para>
Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
- commercials
-generally,<footnote><para>
+commercials generally,<footnote><para>
<!-- f10 -->
Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
about "the placement of objects, color, . . . rhythm, pacing, and
- texture."<footnote><para>
+ texture."<footnote>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
2002.
</para></footnote>
But as computers open up an interactive space where a story is
"played" as well as experienced, that grammar changes. The simple
-control of narrative is lost, and so other techniques are necessary.
- Author
+control of narrative is lost, and so other techniques are necessary. Author
Michael Crichton had mastered the narrative of science fiction.
But when he tried to design a computer game based on one of his
works, it was a new craft he had to learn. How to lead people through
to a wildly successful author.<footnote><para>
<!-- f12 -->
See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
- November
-2000, available at
+November 2000, available at
<ulink url="http://free-culture.cc/notes/">link #8</ulink>; "Timeline," 22 November 2000,
- available
-at
+available at
<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
</para></footnote>
</para>
+<indexterm><primary>computer games</primary></indexterm>
<para>
-This skill is precisely the craft a filmmaker learns. As Daley
- describes,
-"people are very surprised about how they are led through a
+This skill is precisely the craft a filmmaker learns. As Daley
+describes, "people are very surprised about how they are led through a
film. [I]t is perfectly constructed to keep you from seeing it, so you
have no idea. If a filmmaker succeeds you do not know how you were
led." If you know you were led through a film, the film has failed.
</para>
<para>
-Yet the push for an expanded literacy—one that goes beyond text to
-include audio and visual elements—is not about making better film
- directors.
-The aim is not to improve the profession of filmmaking at all.
-Instead, as Daley explained,
+Yet the push for an expanded literacy—one that goes beyond text
+to include audio and visual elements—is not about making better
+film directors. The aim is not to improve the profession of
+filmmaking at all. Instead, as Daley explained,
</para>
<blockquote>
<para>
<!-- PAGE BREAK 51 -->
and this literacy in particular, is to "empower people to choose the
appropriate
-language for what they need to create or express."<footnote><para>
+language for what they need to create or express."<footnote>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<para>
<!-- f13 -->
Interview with Daley and Barish.
</para></footnote> It is to enable
Ibid.
</para></footnote>
</para>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
-As with any language, this language comes more easily to some
-than to others. It doesn't necessarily come more easily to those who
- excel
-in written language. Daley and Stephanie Barish, director of the
- Institute
-for Multimedia Literacy at the Annenberg Center, describe one
-particularly poignant example of a project they ran in a high school.
-The high school was a very poor inner-city Los Angeles school. In all
-the traditional measures of success, this school was a failure. But Daley
-and Barish ran a program that gave kids an opportunity to use film
-to express meaning about something the students know something
-about—gun violence.
+As with any language, this language comes more easily to some than to
+others. It doesn't necessarily come more easily to those who excel in
+written language. Daley and Stephanie Barish, director of the
+Institute for Multimedia Literacy at the Annenberg Center, describe
+one particularly poignant example of a project they ran in a high
+school. The high school was a very poor inner-city Los Angeles
+school. In all the traditional measures of success, this school was a
+failure. But Daley and Barish ran a program that gave kids an
+opportunity to use film to express meaning about something the
+students know something about—gun violence.
</para>
<para>
The class was held on Friday afternoons, and it created a relatively
what education should be about—learning how to express themselves.
</para>
<para>
-Using whatever "free web stuff they could find," and relatively
- simple
+Using whatever "free web stuff they could find," and relatively simple
tools to enable the kids to mix "image, sound, and text," Barish said
this class produced a series of projects that showed something about
gun violence that few would otherwise understand. This was an issue
-close to the lives of these students. The project "gave them a tool and
-empowered them to be able to both understand it and talk about it,"
-Barish explained. That tool succeeded in creating expression—far more
-successfully and powerfully than could have been created using only
-text. "If you had said to these students, `you have to do it in text,' they
-would've just thrown their hands up and gone and done something
-else," Barish described, in part, no doubt, because expressing
- themselves
-in text is not something these students can do well. Yet neither
-is text a form in which these ideas can be expressed well. The power of
-this message depended upon its connection to this form of expression.
+close to the lives of these students. The project "gave them a tool
+and empowered them to be able to both understand it and talk about
+it," Barish explained. That tool succeeded in creating
+expression—far more successfully and powerfully than could have
+been created using only text. "If you had said to these students, `you
+have to do it in text,' they would've just thrown their hands up and
+gone and done something else," Barish described, in part, no doubt,
+because expressing themselves in text is not something these students
+can do well. Yet neither is text a form in which these ideas can be
+expressed well. The power of this message depended upon its connection
+to this form of expression.
</para>
<para>
you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
</para>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
Brown is talking about what Elizabeth Daley, Stephanie Barish,
and Just Think! teach: that this tinkering with culture teaches as well
of recognition.
</para>
<para>
-Yet the freedom to tinker with these objects is not guaranteed.
- Indeed,
-as we'll see through the course of this book, that freedom is
- increasingly
-highly contested. While there's no doubt that your father
-had the right to tinker with the car engine, there's great doubt that your
-child will have the right to tinker with the images she finds all around.
-The law and, increasingly, technology interfere with a freedom that
-technology, and curiosity, would otherwise ensure.
+Yet the freedom to tinker with these objects is not guaranteed.
+Indeed, as we'll see through the course of this book, that freedom is
+increasingly highly contested. While there's no doubt that your father
+had the right to tinker with the car engine, there's great doubt that
+your child will have the right to tinker with the images she finds all
+around. The law and, increasingly, technology interfere with a
+freedom that technology, and curiosity, would otherwise ensure.
</para>
<para>
-These restrictions have become the focus of researchers and
- scholars.
-Professor Ed Felten of Princeton (whom we'll see more of in
- chapter
+These restrictions have become the focus of researchers and scholars.
+Professor Ed Felten of Princeton (whom we'll see more of in chapter
10) has developed a powerful argument in favor of the "right to
-tinker" as it applies to computer science and to knowledge in general.<footnote><para>
+tinker" as it applies to computer science and to knowledge in
+general.<footnote><para>
<!-- f22 -->
-See, for example, Edward Felten and Andrew Appel, "Technological
- Access
+See, for example, Edward Felten and Andrew Appel, "Technological Access
Control Interferes with Noninfringing Scholarship," Communications
of the Association for Computer Machinery 43 (2000): 9.
</para></footnote>
about the learning that kids can do, or can't do, because of the law.
</para>
<para>
-"This is where education in the twenty-first century is going,"
-Brown explains. We need to "understand how kids who grow up
- digital
-think and want to learn."
+"This is where education in the twenty-first century is going," Brown
+explains. We need to "understand how kids who grow up digital think
+and want to learn."
</para>
<para>
"Yet," as Brown continued, and as the balance of this book will
evince, "we are building a legal system that completely suppresses the
-natural tendencies of today's digital kids. . . . We're building an
- architecture
-that unleashes 60 percent of the brain [and] a legal system that
-closes down that part of the brain."
+natural tendencies of today's digital kids. . . . We're building an
+architecture that unleashes 60 percent of the brain [and] a legal
+system that closes down that part of the brain."
</para>
<para>
We're building a technology that takes the magic of Kodak, mixes
<sect1 id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
<para>
-In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled
-as a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
-His major at RPI was information technology. Though he is not a
- programmer,
-in October Jesse decided to begin to tinker with search
- engine
-technology that was available on the RPI network.
+In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
+a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
+His major at RPI was information technology. Though he is not a
+programmer, in October Jesse decided to begin to tinker with search
+engine technology that was available on the RPI network.
</para>
<para>
-RPI is one of America's foremost technological research
- institutions.
-It offers degrees in fields ranging from architecture and
- engineering
-to information sciences. More than 65 percent of its five
-thousand undergraduates finished in the top 10 percent of their high
-school class. The school is thus a perfect mix of talent and experience
-to imagine and then build, a generation for the network age.
+RPI is one of America's foremost technological research institutions.
+It offers degrees in fields ranging from architecture and engineering
+to information sciences. More than 65 percent of its five thousand
+undergraduates finished in the top 10 percent of their high school
+class. The school is thus a perfect mix of talent and experience to
+imagine and then build, a generation for the network age.
</para>
<para>
-RPI's computer network links students, faculty, and administration
-to one another. It also links RPI to the Internet. Not everything
- available
-on the RPI network is available on the Internet. But the network
-is designed to enable students to get access to the Internet, as well as
-more intimate access to other members of the RPI community.
+RPI's computer network links students, faculty, and administration to
+one another. It also links RPI to the Internet. Not everything
+available on the RPI network is available on the Internet. But the
+network is designed to enable students to get access to the Internet,
+as well as more intimate access to other members of the RPI community.
</para>
<para>
Search engines are a measure of a network's intimacy. Google
<!-- PAGE BREAK 62 -->
-brought the Internet much closer to all of us by fantastically improving
-the quality of search on the network. Specialty search engines can do
-this even better. The idea of "intranet" search engines, search engines
-that search within the network of a particular institution, is to provide
-users of that institution with better access to material from that
- institution.
-Businesses do this all the time, enabling employees to have
- access
-to material that people outside the business can't get. Universities
-do it as well.
-</para>
-<para>
-These engines are enabled by the network technology itself.
- Microsoft,
-for example, has a network file system that makes it very easy
-for search engines tuned to that network to query the system for
- information
-about the publicly (within that network) available content.
-Jesse's search engine was built to take advantage of this technology. It
-used Microsoft's network file system to build an index of all the files
-available within the RPI network.
-</para>
-<para>
-Jesse's wasn't the first search engine built for the RPI network.
- Indeed,
-his engine was a simple modification of engines that others had
-built. His single most important improvement over those engines was
-to fix a bug within the Microsoft file-sharing system that could cause a
-user's computer to crash. With the engines that existed before, if you
-tried to access a file through a Windows browser that was on a
- computer
-that was off-line, your computer could crash. Jesse modified the
-system a bit to fix that problem, by adding a button that a user could
-click to see if the machine holding the file was still on-line.
+brought the Internet much closer to all of us by fantastically
+improving the quality of search on the network. Specialty search
+engines can do this even better. The idea of "intranet" search
+engines, search engines that search within the network of a particular
+institution, is to provide users of that institution with better
+access to material from that institution. Businesses do this all the
+time, enabling employees to have access to material that people
+outside the business can't get. Universities do it as well.
+</para>
+<para>
+These engines are enabled by the network technology itself.
+Microsoft, for example, has a network file system that makes it very
+easy for search engines tuned to that network to query the system for
+information about the publicly (within that network) available
+content. Jesse's search engine was built to take advantage of this
+technology. It used Microsoft's network file system to build an index
+of all the files available within the RPI network.
+</para>
+<para>
+Jesse's wasn't the first search engine built for the RPI network.
+Indeed, his engine was a simple modification of engines that others
+had built. His single most important improvement over those engines
+was to fix a bug within the Microsoft file-sharing system that could
+cause a user's computer to crash. With the engines that existed
+before, if you tried to access a file through a Windows browser that
+was on a computer that was off-line, your computer could crash. Jesse
+modified the system a bit to fix that problem, by adding a button that
+a user could click to see if the machine holding the file was still
+on-line.
</para>
<para>
Jesse's engine went on-line in late October. Over the following six
</para>
<para>
But the index also included music files. In fact, one quarter of the
-files that Jesse's search engine listed were music files. But that means,
-of course, that three quarters were not, and—so that this point is
- absolutely
-clear—Jesse did nothing to induce people to put music files in
-their public folders. He did nothing to target the search engine to these
-files. He was a kid tinkering with a Google-like technology at a
- university
-where he was studying information science, and hence,
- tinkering
-was the aim. Unlike Google, or Microsoft, for that matter, he made
-no money from this tinkering; he was not connected to any business
-that would make any money from this experiment. He was a kid
- tinkering
-with technology in an environment where tinkering with
- technology
-was precisely what he was supposed to do.
+files that Jesse's search engine listed were music files. But that
+means, of course, that three quarters were not, and—so that this
+point is absolutely clear—Jesse did nothing to induce people to
+put music files in their public folders. He did nothing to target the
+search engine to these files. He was a kid tinkering with a
+Google-like technology at a university where he was studying
+information science, and hence, tinkering was the aim. Unlike Google,
+or Microsoft, for that matter, he made no money from this tinkering;
+he was not connected to any business that would make any money from
+this experiment. He was a kid tinkering with technology in an
+environment where tinkering with technology was precisely what he was
+supposed to do.
</para>
<para>
On April 3, 2003, Jesse was contacted by the dean of students at
RPI. The dean informed Jesse that the Recording Industry Association
of America, the RIAA, would be filing a lawsuit against him and three
-other students whom he didn't even know, two of them at other
- universities.
-A few hours later, Jesse was served with papers from the suit.
-As he read these papers and watched the news reports about them, he
-was increasingly astonished.
-</para>
-<para>
-"It was absurd," he told me. "I don't think I did anything wrong. . . .
-I don't think there's anything wrong with the search engine that I ran
-or . . . what I had done to it. I mean, I hadn't modified it in any way
-that promoted or enhanced the work of pirates. I just modified the
-search engine in a way that would make it easier to use"—again, a
-search engine, which Jesse had not himself built, using the Windows
- filesharing
-system, which Jesse had not himself built, to enable members
-of the RPI community to get access to content, which Jesse had not
-himself created or posted, and the vast majority of which had nothing
-to do with music.
+other students whom he didn't even know, two of them at other
+universities. A few hours later, Jesse was served with papers from
+the suit. As he read these papers and watched the news reports about
+them, he was increasingly astonished.
+</para>
+<para>
+"It was absurd," he told me. "I don't think I did anything
+wrong. . . . I don't think there's anything wrong with the search
+engine that I ran or . . . what I had done to it. I mean, I hadn't
+modified it in any way that promoted or enhanced the work of
+pirates. I just modified the search engine in a way that would make it
+easier to use"—again, a search engine, which Jesse had not
+himself built, using the Windows filesharing system, which Jesse had
+not himself built, to enable members of the RPI community to get
+access to content, which Jesse had not himself created or posted, and
+the vast majority of which had nothing to do with music.
</para>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
</para>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
-refused. They wanted him to agree to an injunction that would
- essentially
-make it impossible for him to work in many fields of technology
-for the rest of his life. He refused. They made him understand that this
-process of being sued was not going to be pleasant. (As Jesse's father
-recounted to me, the chief lawyer on the case, Matt Oppenheimer, told
-Jesse, "You don't want to pay another visit to a dentist like me.") And
-throughout, the RIAA insisted it would not settle the case until it took
-every penny Jesse had saved.
+refused. They wanted him to agree to an injunction that would
+essentially make it impossible for him to work in many fields of
+technology for the rest of his life. He refused. They made him
+understand that this process of being sued was not going to be
+pleasant. (As Jesse's father recounted to me, the chief lawyer on the
+case, Matt Oppenheimer, told Jesse, "You don't want to pay another
+visit to a dentist like me.") And throughout, the RIAA insisted it
+would not settle the case until it took every penny Jesse had saved.
</para>
<para>
Jesse's family was outraged at these claims. They wanted to fight.
paper saying he and his family were bankrupt.
</para>
<para>
-So Jesse faced a mafia-like choice: $250,000 and a chance at
- winning,
+So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
<para>
</para></footnote>
There are plenty of ways for the RIAA to affect
and direct policy. So where is the morality in taking money from a
- student
-for running a search engine?<footnote><para>
+student for running a search engine?<footnote><para>
<!-- f3 -->
Douglas Lichtman makes a related point in "KaZaA and Punishment,"
Wall Street Journal, 10 September 2003, A24.
I was definitely not an activist [before]. I never really meant to be
an activist. . . . [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
- absurd
-what the RIAA has done.
+absurd what the RIAA has done.
</para>
</blockquote>
<para>
<sect1 id="pirates">
<title>CHAPTER FOUR: "Pirates"</title>
<para>
-
If "piracy" means using the creative property of others without
their permission—if "if value, then right" is true—then the history of
the content industry is a history of piracy. Every important sector of
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- f1 -->
I am grateful to Peter DiMauro for pointing me to this extraordinary
- history.
-See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
+history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
which details Edison's "adventures" with copyright and patent.
</para></footnote>
-Creators
-and directors migrated from the East Coast to California in the early
-twentieth century in part to escape controls that patents granted the
-inventor of filmmaking, Thomas Edison. These controls were
- exercised
-through a monopoly "trust," the Motion Pictures Patents
- Company,
-and were based on Thomas Edison's creative property—patents.
-Edison formed the MPPC to exercise the rights this creative property
+Creators and directors migrated from the East Coast to California in
+the early twentieth century in part to escape controls that patents
+granted the inventor of filmmaking, Thomas Edison. These controls were
+exercised through a monopoly "trust," the Motion Pictures Patents
+Company, and were based on Thomas Edison's creative
+property—patents. Edison formed the MPPC to exercise the rights
+this creative property
<!-- PAGE BREAK 67 -->
gave him, and the MPPC was serious about the control it demanded.
</para>
imported film stock to create their own underground market.
</para>
<para>
-With the country experiencing a tremendous expansion in the
-number of nickelodeons, the Patents Company reacted to the
- independent
-movement by forming a strong-arm subsidiary known
-as the General Film Company to block the entry of non-licensed
-independents. With coercive tactics that have become legendary,
-General Film confiscated unlicensed equipment, discontinued
-product supply to theaters which showed unlicensed films, and
-effectively monopolized distribution with the acquisition of all
-U.S. film exchanges, except for the one owned by the independent
-William Fox who defied the Trust even after his license was
- revoked.<footnote><para>
+With the country experiencing a tremendous expansion in the number of
+nickelodeons, the Patents Company reacted to the independent movement
+by forming a strong-arm subsidiary known as the General Film Company
+to block the entry of non-licensed independents. With coercive tactics
+that have become legendary, General Film confiscated unlicensed
+equipment, discontinued product supply to theaters which showed
+unlicensed films, and effectively monopolized distribution with the
+acquisition of all U.S. film exchanges, except for the one owned by
+the independent William Fox who defied the Trust even after his
+license was revoked.<footnote><para>
<!-- f2 -->
J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
posted at "The Edison Movie Monopoly: The Motion Picture Patents
Company vs. the Independent Outlaws," available at
-<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
- discussion
-of the economic motive behind both these limits and the limits
-imposed by Victor on phonographs, see Randal C. Picker, "From Edison
-to the Broadcast Flag: Mechanisms of Consent and Refusal and the
- Propertization
-of Copyright" (September 2002), University of Chicago Law
-School, James M. Olin Program in Law and Economics, Working Paper
-No. 159.
-</para></footnote>
+<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
+discussion of the economic motive behind both these limits and the
+limits imposed by Victor on phonographs, see Randal C. Picker, "From
+Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
+the Propertization of Copyright" (September 2002), University of
+Chicago Law School, James M. Olin Program in Law and Economics,
+Working Paper No. 159. </para></footnote>
</para>
</blockquote>
<para>
The Napsters of those days, the "independents," were companies like
-Fox. And no less than today, these independents were vigorously
- resisted.
-"Shooting was disrupted by machinery stolen, and `accidents'
-resulting in loss of negatives, equipment, buildings and sometimes life
-and limb frequently occurred."<footnote><para>
+Fox. And no less than today, these independents were vigorously
+resisted. "Shooting was disrupted by machinery stolen, and
+`accidents' resulting in loss of negatives, equipment, buildings and
+sometimes life and limb frequently occurred."<footnote><para>
<!-- f3 -->
Marc Wanamaker, "The First Studios," The Silents Majority, archived at
-
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
-That led the independents to flee the
-East Coast. California was remote enough from Edison's reach that
- filmmakers
-there could pirate his inventions without fear of the law. And the
-leaders of Hollywood filmmaking, Fox most prominently, did just that.
+That led the independents to flee the East
+Coast. California was remote enough from Edison's reach that
+filmmakers there could pirate his inventions without fear of the
+law. And the leaders of Hollywood filmmaking, Fox most prominently,
+did just that.
</para>
<para>
Of course, California grew quickly, and the effective enforcement
<!-- PAGE BREAK 68 -->
time), by the time enough federal marshals appeared, the patents had
-expired. A new industry had been born, in part from the piracy of
- Edison's
-creative property.
+expired. A new industry had been born, in part from the piracy of
+Edison's creative property.
</para>
</sect2>
<sect2 id="recordedmusic">
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
</para>
-<para>
-But what if I wanted to record "Happy Mose," using Edison's
-phonograph or Fourneaux's player piano? Here the law stumbled. It was
-clear enough that I would have to buy any copy of the musical score that
-I performed in making this recording. And it was clear enough that I
-would have to pay for any public performance of the work I was
- recording.
-But it wasn't totally clear that I would have to pay for a "public
- performance"
-if I recorded the song in my own house (even today, you don't
-owe the Beatles anything if you sing their songs in the shower), or if I
-recorded the song from memory (copies in your brain are not—yet—
-regulated by copyright law). So if I simply sang the song into a
- recording
-device in the privacy of my own home, it wasn't clear that I owed the
-composer anything. And more importantly, it wasn't clear whether I
-owed the composer anything if I then made copies of those recordings.
-Because of this gap in the law, then, I could effectively pirate someone
-else's song without paying its composer anything.
+<indexterm><primary>Beatles</primary></indexterm>
+<para>
+But what if I wanted to record "Happy Mose," using Edison's phonograph
+or Fourneaux's player piano? Here the law stumbled. It was clear
+enough that I would have to buy any copy of the musical score that I
+performed in making this recording. And it was clear enough that I
+would have to pay for any public performance of the work I was
+recording. But it wasn't totally clear that I would have to pay for a
+"public performance" if I recorded the song in my own house (even
+today, you don't owe the Beatles anything if you sing their songs in
+the shower), or if I recorded the song from memory (copies in your
+brain are not—yet— regulated by copyright law). So if I
+simply sang the song into a recording device in the privacy of my own
+home, it wasn't clear that I owed the composer anything. And more
+importantly, it wasn't clear whether I owed the composer anything if I
+then made copies of those recordings. Because of this gap in the law,
+then, I could effectively pirate someone else's song without paying
+its composer anything.
</para>
<para>
The composers (and publishers) were none too happy about
<para>
Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same and
-copyrights it. Along come the phonographic companies and
- companies
-who cut music rolls and deliberately steal the work of the brain
-
of the composer and publisher without any regard for [their] rights.<footnote><para>
+copyrights it. Along come the phonographic companies and companies who
+cut music rolls and deliberately steal the work of the brain of the
+composer and publisher without any regard for [their]
+rights.<footnote><para>
<!-- f4 -->
To Amend and Consolidate the Acts Respecting Copyright: Hearings on
S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th
-Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of
-South Dakota, chairman), reprinted in Legislative History of the
-Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
- Hackensack,
-N.J.: Rothman Reprints, 1976).
+Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
+of South Dakota, chairman), reprinted in Legislative History of the
+Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
+Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
</para>
</blockquote>
genius of American composers,"<footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
and the "music publishing industry"
was thereby "at the complete mercy of this one pirate."<footnote><para>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
As John Philip
Sousa put it, in as direct a way as possible, "When they make money
out of my pieces, I want a share of it."<footnote><para>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23
- (statement
-of John Philip Sousa, composer).
+(statement of John Philip Sousa, composer).
</para></footnote>
</para>
<para>
-These arguments have familiar echoes in the wars of our day. So,
-too, do the arguments on the other side. The innovators who
- developed
-the player piano argued that "it is perfectly demonstrable that the
-introduction of automatic music players has not deprived any
- composer
-of anything he had before their introduction." Rather, the
- machines
+These arguments have familiar echoes in the wars of our day. So, too,
+do the arguments on the other side. The innovators who developed the
+player piano argued that "it is perfectly demonstrable that the
+introduction of automatic music players has not deprived any composer
+of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
To Amend and Consolidate the Acts Respecting Copyright, 283–84
thus set by Grisham, and copyright law ordinarily says you have no
permission to use Grisham's work except with permission of Grisham.
</para>
+<indexterm><primary>Beatles</primary></indexterm>
<para>
But the law governing recordings gives recording artists less. And
thus, in effect, the law subsidizes the recording industry through a kind
content, but more egregiously than anything Napster ever did—
Napster never charged for the content it enabled others to give away.
</para>
+<indexterm><primary>Anello, Douglas</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
"unfair and potentially destructive competition."<footnote><para>
<!-- f13 -->
-Copyright Law Revision—CATV: Hearing on S. 1006 Before the
- Subcommittee
-on Patents, Trademarks, and Copyrights of the Senate
- Committee
+Copyright Law Revision—CATV: Hearing on S. 1006 Before the Subcommittee
+on Patents, Trademarks, and Copyrights of the Senate Committee
on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of
Rosel H. Hyde, chairman of the Federal Communications Commission).
</para></footnote>
-There may have
-been a "public interest" in spreading the reach of cable TV, but as
- Douglas
-Anello, general counsel to the National Association of
- Broadcasters,
-asked Senator Quentin Burdick during testimony, "Does public
+There may have been a "public interest" in spreading the reach of cable
+TV, but as Douglas Anello, general counsel to the National Association
+of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
interest dictate that you use somebody else's property?"<footnote><para>
<!-- f14 -->
Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
before statutory licensing, they don't have to pay the copyright
owner for the content they sell.
</para>
+<indexterm><primary>Bernstein, Leonard</primary></indexterm>
<para>
Type C sharing, then, is very much like used book stores or used
-record stores. It is different, of course, because the person making the
-content available isn't making money from making the content
- available.
-It is also different, of course, because in real space, when I sell a
-record, I don't have it anymore, while in cyberspace, when someone
-shares my 1949 recording of Bernstein's "Two Love Songs," I still have
-it. That difference would matter economically if the owner of the
-copyright were selling the record in competition to my sharing. But
-we're talking about the class of content that is not currently
- commercially
-available. The Internet is making it available, through
- cooperative
-sharing, without competing with the market.
+record stores. It is different, of course, because the person making
+the content available isn't making money from making the content
+available. It is also different, of course, because in real space,
+when I sell a record, I don't have it anymore, while in cyberspace,
+when someone shares my 1949 recording of Bernstein's "Two Love Songs,"
+I still have it. That difference would matter economically if the
+owner of the copyright were selling the record in competition to my
+sharing. But we're talking about the class of content that is not
+currently commercially available. The Internet is making it available,
+through cooperative sharing, without competing with the market.
</para>
<para>
It may well be, all things considered, that it would be better if the
great book!)
</para>
<para>
-Likewise for work in the public domain: This sharing benefits
- society
+Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
of type A sharing destroy the opportunity for type D sharing, then we
lose something important in order to protect type A content.
</para>
<para>
-The point throughout is this: While the recording industry
- understandably
-says, "This is how much we've lost," we must also ask, "How
-much has society gained from p2p sharing? What are the efficiencies?
-What is the content that otherwise would be unavailable?"
+The point throughout is this: While the recording industry
+understandably says, "This is how much we've lost," we must also ask,
+"How much has society gained from p2p sharing? What are the
+efficiencies? What is the content that otherwise would be
+unavailable?"
</para>
<para>
-For unlike the piracy I described in the first section of this chapter,
-much of the "piracy" that file sharing enables is plainly legal and good.
-And like the piracy I described in chapter 4, much of this piracy is
- motivated
-by a new way of spreading content caused by changes in the
-technology of distribution. Thus, consistent with the tradition that
-gave us Hollywood, radio, the recording industry, and cable TV, the
-question we should be asking about file sharing is how best to preserve
-its benefits while minimizing (to the extent possible) the wrongful harm
-it causes artists. The question is one of balance. The law should seek
-that balance, and that balance will be found only with time.
+For unlike the piracy I described in the first section of this
+chapter, much of the "piracy" that file sharing enables is plainly
+legal and good. And like the piracy I described in chapter 4, much of
+this piracy is motivated by a new way of spreading content caused by
+changes in the technology of distribution. Thus, consistent with the
+tradition that gave us Hollywood, radio, the recording industry, and
+cable TV, the question we should be asking about file sharing is how
+best to preserve its benefits while minimizing (to the extent
+possible) the wrongful harm it causes artists. The question is one of
+balance. The law should seek that balance, and that balance will be
+found only with time.
</para>
<para>
"But isn't the war just a war against illegal sharing? Isn't the target
The fight to defend the limits of the Statute of Anne was not to end
there, however, and it is here that Donaldson enters the mix.
</para>
+<indexterm><primary>Beckett, Thomas</primary></indexterm>
<para>
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
The reports about the law lords' votes are mixed. On some counts,
it looks as if perpetual copyright prevailed. But there is no ambiguity
<!-- PAGE BREAK 104 -->
-about how the House of Lords voted as whole. By a two-to-one
- majority
+about how the House of Lords voted as whole. By a two-to-one majority
(22 to 11) they voted to reject the idea of perpetual copyrights.
-Whatever one's understanding of the common law, now a copyright
-was fixed for a limited time, after which the work protected by
- copyright
+Whatever one's understanding of the common law, now a copyright was
+fixed for a limited time, after which the work protected by copyright
passed into the public domain.
</para>
+<indexterm><primary>Bacon, Francis</primary></indexterm>
<para>
"The public domain." Before the case of Donaldson v. Beckett, there
was no clear idea of a public domain in England. Before 1774, there
was a strong argument that common law copyrights were perpetual.
After 1774, the public domain was born. For the first time in
- Anglo-American
-history, the legal control over creative works expired, and the
-greatest works in English history—including those of Shakespeare,
-Bacon, Milton, Johnson, and Bunyan—were free of legal restraint.
+Anglo-American history, the legal control over creative works expired,
+and the greatest works in English history—including those of
+Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of
+legal restraint.
</para>
<para>
It is hard for us to imagine, but this decision by the House of Lords
Alben replied, "Well, we're going to have to clear rights from
everyone who appears in these films, and the music and everything
else that we want to use in these film clips." Slade said, "Great! Go
-for it."<footnote><para>
+for it."<footnote>
+<indexterm>
+<primary>artists</primary>
+<secondary>publicity rights on images of</secondary>
+</indexterm>
+<para>
<!-- f1 -->
-Technically, the rights that Alben had to clear were mainly those of
- publicity—rights
-an artist has to control the commercial exploitation of his
- image.
-But these rights, too, burden "Rip, Mix, Burn" creativity, as this chapter
-evinces.
+Technically, the rights that Alben had to clear were mainly those of
+publicity—rights an artist has to control the commercial
+exploitation of his image. But these rights, too, burden "Rip, Mix,
+Burn" creativity, as this chapter evinces.
</para></footnote>
</para>
<para>
but punishment nonetheless. Independent, critical, different views are
quashed. This is not the environment for a democracy.
</para>
+<indexterm><primary>Clark, Kim B.</primary></indexterm>
<para>
Economics itself offers a parallel that explains why this integration
affects creativity. Clay Christensen has written about the "Innovator's
simply enables the powerful industries of today to protect themselves
against the competitors of tomorrow.
</para>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
</para>
+<indexterm><primary>Hummer, John</primary></indexterm>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
</para>
<para>
This financial burden is not slight. As Harvard law professor
-William Fisher estimates, if an Internet radio station distributed
- adfree
+William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
over $1 million a year.<footnote><para>
sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
was.<footnote><para>
-<!-- f16. --> Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
+<!-- f16. -->
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
Angeles Times, 10 September 2003, Business.
</para></footnote>
- As these scapegoats discovered, it will always cost more to
- defend
+As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
year old, for example, like Jesse Jordan, paid her life savings of $2,000
to settle the case.) Our law is an awful system for defending rights. It
</para>
<para>
Wars of prohibition are nothing new in America. This one is just
-something more extreme than anything we've seen before. We
- experimented
-with alcohol prohibition, at a time when the per capita
- consumption
-of alcohol was 1.5 gallons per capita per year. The war against
-drinking initially reduced that consumption to just 30 percent of its
-preprohibition levels, but by the end of prohibition, consumption was
-up to 70 percent of the preprohibition level. Americans were drinking
-just about as much, but now, a vast number were criminals.<footnote><para>
-<!-- f17. --> Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
- Prohibition,"
-American Economic Review 81, no. 2 (1991): 242.
-</para></footnote>
- We have
-
+something more extreme than anything we've seen before. We
+experimented with alcohol prohibition, at a time when the per capita
+consumption of alcohol was 1.5 gallons per capita per year. The war
+against drinking initially reduced that consumption to just 30 percent
+of its preprohibition levels, but by the end of prohibition,
+consumption was up to 70 percent of the preprohibition
+level. Americans were drinking just about as much, but now, a vast
+number were criminals.<footnote><para>
+<!-- f17. -->
+Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
+Prohibition," American Economic Review 81, no. 2 (1991): 242.
+</para></footnote>
+We have
<!-- PAGE BREAK 210 -->
-launched a war on drugs aimed at reducing the consumption of
- regulated
+launched a war on drugs aimed at reducing the consumption of regulated
narcotics that 7 percent (or 16 million) Americans now use.<footnote><para>
-<!-- f18. --> National Drug Control Policy: Hearing Before the House Government
+<!-- f18. -->
+National Drug Control Policy: Hearing Before the House Government
Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
John P. Walters, director of National Drug Control Policy).
</para></footnote>
-
-That is a drop from the high (so to speak) in 1979 of 14 percent of the
-population. We regulate automobiles to the point where the vast
- majority
-of Americans violate the law every day. We run such a complex
-tax system that a majority of cash businesses regularly cheat.<footnote><para>
-<!-- f19. --> See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
- Compliance,"
-Journal of Economic Literature 36 (1998): 818 (survey of compliance
-literature).
+That is a drop from the high (so to speak) in 1979 of 14 percent of
+the population. We regulate automobiles to the point where the vast
+majority of Americans violate the law every day. We run such a complex
+tax system that a majority of cash businesses regularly
+cheat.<footnote><para>
+<!-- f19. -->
+See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
+Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+compliance literature).
</para></footnote>
- We
-pride ourselves on our "free society," but an endless array of ordinary
-behavior is regulated within our society. And as a result, a huge
- proportion
-of Americans regularly violate at least some law.
+We pride ourselves on our "free society," but an endless array of
+ordinary behavior is regulated within our society. And as a result, a
+huge proportion of Americans regularly violate at least some law.
</para>
<para>
This state of affairs is not without consequence. It is a particularly
-salient issue for teachers like me, whose job it is to teach law students
-about the importance of "ethics." As my colleague Charlie Nesson told
-a class at Stanford, each year law schools admit thousands of students
-who have illegally downloaded music, illegally consumed alcohol and
-sometimes drugs, illegally worked without paying taxes, illegally driven
-cars. These are kids for whom behaving illegally is increasingly the
-norm. And then we, as law professors, are supposed to teach them how
-to behave ethically—how to say no to bribes, or keep client funds
- separate,
-or honor a demand to disclose a document that will mean that
-your case is over. Generations of Americans—more significantly in
-some parts of America than in others, but still, everywhere in America
-today—can't live their lives both normally and legally, since "normally"
-entails a certain degree of illegality.
+salient issue for teachers like me, whose job it is to teach law
+students about the importance of "ethics." As my colleague Charlie
+Nesson told a class at Stanford, each year law schools admit thousands
+of students who have illegally downloaded music, illegally consumed
+alcohol and sometimes drugs, illegally worked without paying taxes,
+illegally driven cars. These are kids for whom behaving illegally is
+increasingly the norm. And then we, as law professors, are supposed to
+teach them how to behave ethically—how to say no to bribes, or
+keep client funds separate, or honor a demand to disclose a document
+that will mean that your case is over. Generations of
+Americans—more significantly in some parts of America than in
+others, but still, everywhere in America today—can't live their
+lives both normally and legally, since "normally" entails a certain
+degree of illegality.
</para>
<para>
The response to this general illegality is either to enforce the law
-more severely or to change the law. We, as a society, have to learn how
-to make that choice more rationally. Whether a law makes sense
- depends,
-in part, at least, upon whether the costs of the law, both
- intended
-and collateral, outweigh the benefits. If the costs, intended and
-collateral, do outweigh the benefits, then the law ought to be changed.
-Alternatively, if the costs of the existing system are much greater than
-the costs of an alternative, then we have a good reason to consider the
-alternative.
+more severely or to change the law. We, as a society, have to learn
+how to make that choice more rationally. Whether a law makes sense
+depends, in part, at least, upon whether the costs of the law, both
+intended and collateral, outweigh the benefits. If the costs, intended
+and collateral, do outweigh the benefits, then the law ought to be
+changed. Alternatively, if the costs of the existing system are much
+greater than the costs of an alternative, then we have a good reason
+to consider the alternative.
</para>
<para>
week. A society is right to ban murder always and everywhere.
</para>
<para>
-My point is instead one that democracies understood for
- generations,
-but that we recently have learned to forget. The rule of law
-depends upon people obeying the law. The more often, and more
- repeatedly,
-we as citizens experience violating the law, the less we respect
-the law. Obviously, in most cases, the important issue is the law, not
-respect for the law. I don't care whether the rapist respects the law or
-not; I want to catch and incarcerate the rapist. But I do care whether
-my students respect the law. And I do care if the rules of law sow
- increasing
-disrespect because of the extreme of regulation they impose.
-Twenty million Americans have come of age since the Internet
- introduced
-this different idea of "sharing." We need to be able to call these
-twenty million Americans "citizens," not "felons."
-</para>
-<para>
-When at least forty-three million citizens download content from
-the Internet, and when they use tools to combine that content in ways
-unauthorized by copyright holders, the first question we should be
- asking
-is not how best to involve the FBI. The first question should be
-whether this particular prohibition is really necessary in order to achieve
-the proper ends that copyright law serves. Is there another way to
-assure that artists get paid without transforming forty-three million
-Americans into felons? Does it make sense if there are other ways to
-assure that artists get paid without transforming America into a nation
-of felons?
+My point is instead one that democracies understood for generations,
+but that we recently have learned to forget. The rule of law depends
+upon people obeying the law. The more often, and more repeatedly, we
+as citizens experience violating the law, the less we respect the
+law. Obviously, in most cases, the important issue is the law, not
+respect for the law. I don't care whether the rapist respects the law
+or not; I want to catch and incarcerate the rapist. But I do care
+whether my students respect the law. And I do care if the rules of law
+sow increasing disrespect because of the extreme of regulation they
+impose. Twenty million Americans have come of age since the Internet
+introduced this different idea of "sharing." We need to be able to
+call these twenty million Americans "citizens," not "felons."
+</para>
+<para>
+When at least forty-three million citizens download content from the
+Internet, and when they use tools to combine that content in ways
+unauthorized by copyright holders, the first question we should be
+asking is not how best to involve the FBI. The first question should
+be whether this particular prohibition is really necessary in order to
+achieve the proper ends that copyright law serves. Is there another
+way to assure that artists get paid without transforming forty-three
+million Americans into felons? Does it make sense if there are other
+ways to assure that artists get paid without transforming America into
+a nation of felons?
</para>
<para>
This abstract point can be made more clear with a particular example.
</para>
<para>
-We all own CDs. Many of us still own phonograph records. These
-pieces of plastic encode music that in a certain sense we have bought.
-The law protects our right to buy and sell that plastic: It is not a
- copyright
-infringement for me to sell all my classical records at a used
+We all own CDs. Many of us still own phonograph records. These pieces
+of plastic encode music that in a certain sense we have bought. The
+law protects our right to buy and sell that plastic: It is not a
+copyright infringement for me to sell all my classical records at a
+used
<!-- PAGE BREAK 212 -->
record store and buy jazz records to replace them. That "use" of the
phonograph records that is effectively free. Because these recordings
were made without copy-protection technologies, I am "free" to copy,
or "rip," music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that "freedom" was a right:
-In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
- capacities
-of digital technologies.
+Apple Corporation went so far as to suggest that "freedom" was a
+right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+capacities of digital technologies.
</para>
+<indexterm><primary>Adromeda</primary></indexterm>
<para>
This "use" of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
-them in one archive. Then, using Apple's iTunes, or a wonderful
- program
-called Andromeda, we can build different play lists of our music:
-Bach, Baroque, Love Songs, Love Songs of Significant Others—the
-potential is endless. And by reducing the costs of mixing play lists,
-these technologies help build a creativity with play lists that is itself
- independently
-valuable. Compilations of songs are creative and
- meaningful
-in their own right.
+them in one archive. Then, using Apple's iTunes, or a wonderful
+program called Andromeda, we can build different play lists of our
+music: Bach, Baroque, Love Songs, Love Songs of Significant
+Others—the potential is endless. And by reducing the costs of
+mixing play lists, these technologies help build a creativity with
+play lists that is itself independently valuable. Compilations of
+songs are creative and meaningful in their own right.
</para>
<para>
This use is enabled by unprotected media—either CDs or records.
But unprotected media also enable file sharing. File sharing threatens
-(or so the content industry believes) the ability of creators to earn a fair
-return from their creativity. And thus, many are beginning to
- experiment
-with technologies to eliminate unprotected media. These
- technologies,
-for example, would enable CDs that could not be ripped. Or
-they might enable spy programs to identify ripped content on people's
-machines.
+(or so the content industry believes) the ability of creators to earn
+a fair return from their creativity. And thus, many are beginning to
+experiment with technologies to eliminate unprotected media. These
+technologies, for example, would enable CDs that could not be
+ripped. Or they might enable spy programs to identify ripped content
+on people's machines.
</para>
<para>
If these technologies took off, then the building of large archives of
-your own music would become quite difficult. You might hang in
-hacker circles, and get technology to disable the technologies that
- protect
+your own music would become quite difficult. You might hang in hacker
+circles, and get technology to disable the technologies that protect
the content. Trading in those technologies is illegal, but maybe that
doesn't bother you much. In any case, for the vast majority of people,
these protection technologies would effectively destroy the archiving
<!-- PAGE BREAK 213 -->
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
-plastic or were part of a massively complex "digital rights
- management"
-system.
+plastic or were part of a massively complex "digital rights
+management" system.
</para>
<para>
If the only way to assure that artists get paid were the elimination
-of the ability to freely move content, then these technologies to
- interfere
-with the freedom to move content would be justifiable. But what
-if there were another way to assure that artists are paid, without
- locking
-down any content? What if, in other words, a different system
-could assure compensation to artists while also preserving the freedom
-to move content easily?
-</para>
-<para>
-My point just now is not to prove that there is such a system. I
- offer
-a version of such a system in the last chapter of this book. For now,
-the only point is the relatively uncontroversial one: If a different system
-achieved the same legitimate objectives that the existing copyright
- system
-achieved, but left consumers and creators much more free, then
-we'd have a very good reason to pursue this alternative—namely,
- freedom.
-The choice, in other words, would not be between property and
-piracy; the choice would be between different property systems and the
-freedoms each allowed.
+of the ability to freely move content, then these technologies to
+interfere with the freedom to move content would be justifiable. But
+what if there were another way to assure that artists are paid,
+without locking down any content? What if, in other words, a different
+system could assure compensation to artists while also preserving the
+freedom to move content easily?
</para>
<para>
-I believe there is a way to assure that artists are paid without
- turning
-forty-three million Americans into felons. But the salient feature
-of this alternative is that it would lead to a very different market for
-producing and distributing creativity. The dominant few, who today
-control the vast majority of the distribution of content in the world,
-would no longer exercise this extreme of control. Rather, they would go
-the way of the horse-drawn buggy.
-</para>
-<para>
-Except that this generation's buggy manufacturers have already
-saddled Congress, and are riding the law to protect themselves against
-this new form of competition. For them the choice is between
- fortythree
+My point just now is not to prove that there is such a system. I offer
+a version of such a system in the last chapter of this book. For now,
+the only point is the relatively uncontroversial one: If a different
+system achieved the same legitimate objectives that the existing
+copyright system achieved, but left consumers and creators much more
+free, then we'd have a very good reason to pursue this
+alternative—namely, freedom. The choice, in other words, would
+not be between property and piracy; the choice would be between
+different property systems and the freedoms each allowed.
+</para>
+<para>
+I believe there is a way to assure that artists are paid without
+turning forty-three million Americans into felons. But the salient
+feature of this alternative is that it would lead to a very different
+market for producing and distributing creativity. The dominant few,
+who today control the vast majority of the distribution of content in
+the world, would no longer exercise this extreme of control. Rather,
+they would go the way of the horse-drawn buggy.
+</para>
+<para>
+Except that this generation's buggy manufacturers have already saddled
+Congress, and are riding the law to protect themselves against this
+new form of competition. For them the choice is between fortythree
million Americans as criminals and their own survival.
</para>
<para>
-It is understandable why they choose as they do. It is not
- understandable
-why we as a democracy continue to choose as we do. Jack
+It is understandable why they choose as they do. It is not
+understandable why we as a democracy continue to choose as we do. Jack
<!-- PAGE BREAK 214 -->
-Valenti is charming; but not so charming as to justify giving up a
- tradition
-as deep and important as our tradition of free culture.
-There's one more aspect to this corruption that is particularly
- important
-to civil liberties, and follows directly from any war of
- prohibition.
-As Electronic Frontier Foundation attorney Fred von Lohmann
-describes, this is the "collateral damage" that "arises whenever you turn
-a very large percentage of the population into criminals." This is the
-collateral damage to civil liberties generally.
+
+Valenti is charming; but not so charming as to justify giving up a
+tradition as deep and important as our tradition of free culture.
+There's one more aspect to this corruption that is particularly
+important to civil liberties, and follows directly from any war of
+prohibition. As Electronic Frontier Foundation attorney Fred von
+Lohmann describes, this is the "collateral damage" that "arises
+whenever you turn a very large percentage of the population into
+criminals." This is the collateral damage to civil liberties
+generally.
</para>
<para>
"If you can treat someone as a putative lawbreaker," von Lohmann
</para>
<blockquote>
<para>
-then all of a sudden a lot of basic civil liberty protections
- evaporate
-to one degree or another. . . . If you're a copyright infringer,
-how can you hope to have any privacy rights? If you're a copyright
-infringer, how can you hope to be secure against seizures of your
-computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh,
-well, but that person's a criminal, a lawbreaker." Well, what this
-campaign against file sharing has done is turn a remarkable
- percentage
-of the American Internet-using population into
- "lawbreakers."
+then all of a sudden a lot of basic civil liberty protections
+evaporate to one degree or another. . . . If you're a copyright
+infringer, how can you hope to have any privacy rights? If you're a
+copyright infringer, how can you hope to be secure against seizures of
+your computer? How can you hope to continue to receive Internet
+access? . . . Our sensibilities change as soon as we think, "Oh, well,
+but that person's a criminal, a lawbreaker." Well, what this campaign
+against file sharing has done is turn a remarkable percentage of the
+American Internet-using population into "lawbreakers."
</para>
</blockquote>
<para>
effectively erase much of the privacy most would presume.
</para>
<para>
-Users of the Internet began to see this generally in 2003 as the
-RIAA launched its campaign to force Internet service providers to turn
-over the names of customers who the RIAA believed were violating
-copyright law. Verizon fought that demand and lost. With a simple
- request
-to a judge, and without any notice to the customer at all, the
-identity of an Internet user is revealed.
+Users of the Internet began to see this generally in 2003 as the RIAA
+launched its campaign to force Internet service providers to turn over
+the names of customers who the RIAA believed were violating copyright
+law. Verizon fought that demand and lost. With a simple request to a
+judge, and without any notice to the customer at all, the identity of
+an Internet user is revealed.
</para>
<para>
-
<!-- PAGE BREAK 215 -->
-The RIAA then expanded this campaign, by announcing a general
-strategy to sue individual users of the Internet who are alleged to have
+The RIAA then expanded this campaign, by announcing a general strategy
+to sue individual users of the Internet who are alleged to have
downloaded copyrighted music from file-sharing systems. But as we've
-seen, the potential damages from these suits are astronomical: If a
- family's
-computer is used to download a single CD's worth of music, the
-family could be liable for $2 million in damages. That didn't stop the
-RIAA from suing a number of these families, just as they had sued
+seen, the potential damages from these suits are astronomical: If a
+family's computer is used to download a single CD's worth of music,
+the family could be liable for $2 million in damages. That didn't stop
+the RIAA from suing a number of these families, just as they had sued
Jesse Jordan.<footnote><para>
-<!-- f20. --> See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
-Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
- Washington
-Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents Pull
-Plug on File `Stealing'; With the Music Industry Cracking Down on File
-Swapping, Parents are Yanking Software from Home PCs to Avoid Being
-Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham,
-"Recording Industry Sues Parents," USA Today, 15 September 2003, 4D;
-John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either,"
-New York Times, 25 September 2003, C1; Margo Varadi, "Is Brianna a
-Criminal?" Toronto Star, 18 September 2003, P7.
+<!-- f20. -->
+See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
+Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
+File Swapping, Parents are Yanking Software from Home PCs to Avoid
+Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," USA Today, 15 September
+2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
+Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
</para></footnote>
</para>
Even this understates the espionage that is being waged by the
RIAA. A report from CNN late last summer described a strategy the
RIAA had adopted to track Napster users.<footnote><para>
-<!-- f21. --> See "Revealed: How RIAA Tracks Downloaders: Music Industry
- Discloses
-Some Methods Used," CNN.com, available at
+<!-- f21. -->
+See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used," CNN.com, available at
<ulink url="http://free-culture.cc/notes/">link #47</ulink>.
</para></footnote>
- Using a sophisticated
-hashing algorithm, the RIAA took what is in effect a fingerprint of
-every song in the Napster catalog. Any copy of one of those MP3s will
-have the same "fingerprint."
-</para>
-<para>
-So imagine the following not-implausible scenario: Imagine a
-friend gives a CD to your daughter—a collection of songs just like the
-cassettes you used to make as a kid. You don't know, and neither does
-your daughter, where these songs came from. But she copies these
-songs onto her computer. She then takes her computer to college and
-connects it to a college network, and if the college network is
- "cooperating"
-with the RIAA's espionage, and she hasn't properly protected
-her content from the network (do you know how to do that yourself ?),
-then the RIAA will be able to identify your daughter as a "criminal."
-And under the rules that universities are beginning to deploy,<footnote><para>
-<!-- f22. --> See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," Boston
-Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued
-over Music Sites; Industry Group Targets File Sharing at Colleges,"
- Washington
-Post, 4 April 2003, E1; Elizabeth Armstrong, "Students `Rip, Mix,
-Burn' at Their Own Risk," Christian Science Monitor, 2 September 2003,
-20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to
- Loyola;
-Two Students Names Are Handed Over; Lawsuit Possible," Chicago
-Tribune, 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on
-Universities," Internet News, 30 January 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #48</ulink>; Benny
-Evangelista, "Download Warning 101: Freshman Orientation This Fall to
-Include Record Industry Warnings Against File Sharing," San Francisco
-Chronicle, 11 August 2003, E11; "Raid, Letters Are Weapons at
- Universities,"
-USA Today, 26 September 2000, 3D.
-</para></footnote>
- your
-daughter can lose the right to use the university's computer network.
-She can, in some cases, be expelled.
+Using a sophisticated hashing algorithm, the RIAA took what is in
+effect a fingerprint of every song in the Napster catalog. Any copy of
+one of those MP3s will have the same "fingerprint."
+</para>
+<para>
+So imagine the following not-implausible scenario: Imagine a
+friend gives a CD to your daughter—a collection of songs just
+like the cassettes you used to make as a kid. You don't know, and
+neither does your daughter, where these songs came from. But she
+copies these songs onto her computer. She then takes her computer to
+college and connects it to a college network, and if the college
+network is "cooperating" with the RIAA's espionage, and she hasn't
+properly protected her content from the network (do you know how to do
+that yourself ?), then the RIAA will be able to identify your daughter
+as a "criminal." And under the rules that universities are beginning
+to deploy,<footnote><para>
+<!-- f22. -->
+See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
+Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+Students Sued over Music Sites; Industry Group Targets File Sharing at
+Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
+Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
+Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," Internet News, 30 January
+2003, available at <ulink url="http://free-culture.cc/notes/">link
+#48</ulink>; Benny Evangelista, "Download Warning 101: Freshman
+Orientation This Fall to Include Record Industry Warnings Against File
+Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," USA Today, 26 September 2000, 3D.
+</para></footnote>
+your daughter can lose the right to use the university's computer
+network. She can, in some cases, be expelled.
</para>
<para>
Now, of course, she'll have the right to defend herself. You can hire
-a lawyer for her (at $300 per hour, if you're lucky), and she can plead
-that she didn't know anything about the source of the songs or that
-they came from Napster. And it may well be that the university believes
-her. But the university might not believe her. It might treat this
- "contraband"
-as presumptive of guilt. And as any number of college students
+a lawyer for her (at $300 per hour, if you're lucky), and she can
+plead that she didn't know anything about the source of the songs or
+that they came from Napster. And it may well be that the university
+believes her. But the university might not believe her. It might treat
+this "contraband" as presumptive of guilt. And as any number of
+college students
<!-- PAGE BREAK 216 -->
have already learned, our presumptions about innocence disappear in
So when we're talking about numbers like forty to sixty million
Americans that are essentially copyright infringers, you create a
situation where the civil liberties of those people are very much in
-peril in a general matter. [I don't] think [there is any] analog
-where you could randomly choose any person off the street and be
-confident that they were committing an unlawful act that could
-put them on the hook for potential felony liability or hundreds of
-millions of dollars of civil liability. Certainly we all speed, but
-speeding isn't the kind of an act for which we routinely forfeit
-civil liberties. Some people use drugs, and I think that's the
- closest
-analog, [but] many have noted that the war against drugs has
-eroded all of our civil liberties because it's treated so many
- Americans
-as criminals. Well, I think it's fair to say that file sharing
-is an order of magnitude larger number of Americans than drug
-use. . . . If forty to sixty million Americans have become
- lawbreakers,
-then we're really on a slippery slope to lose a lot of civil
-liberties for all forty to sixty million of them.
+peril in a general matter. [I don't] think [there is any] analog where
+you could randomly choose any person off the street and be confident
+that they were committing an unlawful act that could put them on the
+hook for potential felony liability or hundreds of millions of dollars
+of civil liability. Certainly we all speed, but speeding isn't the
+kind of an act for which we routinely forfeit civil liberties. Some
+people use drugs, and I think that's the closest analog, [but] many
+have noted that the war against drugs has eroded all of our civil
+liberties because it's treated so many Americans as criminals. Well, I
+think it's fair to say that file sharing is an order of magnitude
+larger number of Americans than drug use. . . . If forty to sixty
+million Americans have become lawbreakers, then we're really on a
+slippery slope to lose a lot of civil liberties for all forty to sixty
+million of them.
</para>
</blockquote>
<para>
-When forty to sixty million Americans are considered "criminals"
-under the law, and when the law could achieve the same objective—
-securing rights to authors—without these millions being considered
-"criminals," who is the villain? Americans or the law? Which is
- American,
-a constant war on our own people or a concerted effort through
-our democracy to change our law?
+When forty to sixty million Americans are considered "criminals" under
+the law, and when the law could achieve the same objective—
+securing rights to authors—without these millions being
+considered "criminals," who is the villain? Americans or the law?
+Which is American, a constant war on our own people or a concerted
+effort through our democracy to change our law?
</para>
<!-- PAGE BREAK 217 -->
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
-grabs the bucket. Before you have a chance to tell her to stop—or
- before
-she understands just why she should stop—the bucket is in the air.
-The gasoline is about to hit the blazing car. And the fire that gasoline
-will ignite is about to ignite everything around.
+grabs the bucket. Before you have a chance to tell her to
+stop—or before she understands just why she should
+stop—the bucket is in the air. The gasoline is about to hit the
+blazing car. And the fire that gasoline will ignite is about to ignite
+everything around.
</para>
<para>
-A war about copyright rages all around—and we're all focusing on the
-wrong thing. No doubt, current technologies threaten existing
- businesses.
-No doubt they may threaten artists. But technologies change.
-The industry and technologists have plenty of ways to use technology
-to protect themselves against the current threats of the Internet. This
-is a fire that if let alone would burn itself out.
+A war about copyright rages all around—and we're all focusing on
+the wrong thing. No doubt, current technologies threaten existing
+businesses. No doubt they may threaten artists. But technologies
+change. The industry and technologists have plenty of ways to use
+technology to protect themselves against the current threats of the
+Internet. This is a fire that if let alone would burn itself out.
</para>
<para>
<!-- PAGE BREAK 219 -->
Yet policy makers are not willing to leave this fire to itself. Primed
-with plenty of lobbyists' money, they are keen to intervene to eliminate
-the problem they perceive. But the problem they perceive is not the real
-threat this culture faces. For while we watch this small fire in the
- corner,
-there is a massive change in the way culture is made that is
- happening
-all around.
+with plenty of lobbyists' money, they are keen to intervene to
+eliminate the problem they perceive. But the problem they perceive is
+not the real threat this culture faces. For while we watch this small
+fire in the corner, there is a massive change in the way culture is
+made that is happening all around.
</para>
<para>
-Somehow we have to find a way to turn attention to this more
- important
-and fundamental issue. Somehow we have to find a way to
-avoid pouring gasoline onto this fire.
+Somehow we have to find a way to turn attention to this more important
+and fundamental issue. Somehow we have to find a way to avoid pouring
+gasoline onto this fire.
</para>
<para>
-We have not found that way yet. Instead, we seem trapped in a
- simpler,
-binary view. However much many people push to frame this
- debate
-more broadly, it is the simple, binary view that remains. We
-rubberneck to look at the fire when we should be keeping our eyes on
-the road.
+We have not found that way yet. Instead, we seem trapped in a simpler,
+binary view. However much many people push to frame this debate more
+broadly, it is the simple, binary view that remains. We rubberneck to
+look at the fire when we should be keeping our eyes on the road.
</para>
<para>
This challenge has been my life these last few years. It has also been
-my failure. In the two chapters that follow, I describe one small brace
-of efforts, so far failed, to find a way to refocus this debate. We must
-understand these failures if we're to understand what success will
- require.
+my failure. In the two chapters that follow, I describe one small
+brace of efforts, so far failed, to find a way to refocus this
+debate. We must understand these failures if we're to understand what
+success will require.
</para>
<!-- PAGE BREAK 220 -->
<sect1 id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
<para>
-
-In 1995, a father was frustrated that his daughters didn't seem to like
-Hawthorne. No doubt there was more than one such father, but at least
-one did something about it. Eric Eldred, a retired computer
- programmer
-living in New Hampshire, decided to put Hawthorne on the
+In 1995, a father was frustrated that his daughters didn't seem to
+like Hawthorne. No doubt there was more than one such father, but at
+least one did something about it. Eric Eldred, a retired computer
+programmer living in New Hampshire, decided to put Hawthorne on the
Web. An electronic version, Eldred thought, with links to pictures and
explanatory text, would make this nineteenth-century author's work
come alive.
</para>
<para>
-It didn't work—at least for his daughters. They didn't find
- Hawthorne
-any more interesting than before. But Eldred's experiment gave
-birth to a hobby, and his hobby begat a cause: Eldred would build a
-library of public domain works by scanning these works and making
+It didn't work—at least for his daughters. They didn't find
+Hawthorne any more interesting than before. But Eldred's experiment
+gave birth to a hobby, and his hobby begat a cause: Eldred would build
+a library of public domain works by scanning these works and making
them available for free.
</para>
<para>
works. Instead, Eldred was producing derivative works from these
public domain works. Just as Disney turned Grimm into stories more
<!-- PAGE BREAK 221 -->
-accessible to the twentieth century, Eldred transformed Hawthorne,
-and many others, into a form more accessible—technically
- accessible—today.
+accessible to the twentieth century, Eldred transformed Hawthorne, and
+many others, into a form more accessible—technically
+accessible—today.
</para>
<para>
-Eldred's freedom to do this with Hawthorne's work grew from the
-same source as Disney's. Hawthorne's Scarlet Letter had passed into the
-public domain in 1907. It was free for anyone to take without the
- permission
-of the Hawthorne estate or anyone else. Some, such as Dover
+Eldred's freedom to do this with Hawthorne's work grew from the same
+source as Disney's. Hawthorne's Scarlet Letter had passed into the
+public domain in 1907. It was free for anyone to take without the
+permission of the Hawthorne estate or anyone else. Some, such as Dover
Press and Penguin Classics, take works from the public domain and
produce printed editions, which they sell in bookstores across the
country. Others, such as Disney, take these stories and turn them into
animated cartoons, sometimes successfully (Cinderella), sometimes not
-(The Hunchback of Notre Dame, Treasure Planet). These are all
- commercial
-publications of public domain works.
-</para>
-<para>
-The Internet created the possibility of noncommercial publications
-of public domain works. Eldred's is just one example. There are
- literally
-thousands of others. Hundreds of thousands from across the world
-have discovered this platform of expression and now use it to share
-works that are, by law, free for the taking. This has produced what we
-might call the "noncommercial publishing industry," which before the
-Internet was limited to people with large egos or with political or
- social
-causes. But with the Internet, it includes a wide range of
- individuals
-and groups dedicated to spreading culture generally.<footnote><para>
-<!-- f1. --> There's a parallel here with pornography that is a bit hard to describe, but
-it's a strong one. One phenomenon that the Internet created was a world
-of noncommercial pornographers—people who were distributing porn
-but were not making money directly or indirectly from that distribution.
-Such a class didn't exist before the Internet came into being because the
-costs of distributing porn were so high. Yet this new class of distributors
-got special attention in the Supreme Court, when the Court struck down
-the Communications Decency Act of 1996. It was partly because of the
-burden on noncommercial speakers that the statute was found to exceed
-Congress's power. The same point could have been made about
- noncommercial
+(The Hunchback of Notre Dame, Treasure Planet). These are all
+commercial publications of public domain works.
+</para>
+<para>
+The Internet created the possibility of noncommercial publications of
+public domain works. Eldred's is just one example. There are literally
+thousands of others. Hundreds of thousands from across the world have
+discovered this platform of expression and now use it to share works
+that are, by law, free for the taking. This has produced what we might
+call the "noncommercial publishing industry," which before the
+Internet was limited to people with large egos or with political or
+social causes. But with the Internet, it includes a wide range of
+individuals and groups dedicated to spreading culture
+generally.<footnote><para>
+<!-- f1. -->
+There's a parallel here with pornography that is a bit hard to
+describe, but it's a strong one. One phenomenon that the Internet
+created was a world of noncommercial pornographers—people who
+were distributing porn but were not making money directly or
+indirectly from that distribution. Such a class didn't exist before
+the Internet came into being because the costs of distributing porn
+were so high. Yet this new class of distributors got special attention
+in the Supreme Court, when the Court struck down the Communications
+Decency Act of 1996. It was partly because of the burden on
+noncommercial speakers that the statute was found to exceed Congress's
+power. The same point could have been made about noncommercial
publishers after the advent of the Internet. The Eric Eldreds of the
-world before the Internet were extremely few. Yet one would think it at
-least as important to protect the Eldreds of the world as to protect
- noncommercial
-pornographers.
-</para></footnote>
-
+world before the Internet were extremely few. Yet one would think it
+at least as important to protect the Eldreds of the world as to
+protect noncommercial pornographers.</para></footnote>
</para>
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
collection of poems New Hampshire was slated to pass into the public
-domain. Eldred wanted to post that collection in his free public library.
-But Congress got in the way. As I described in chapter 10, in 1998, for
-the eleventh time in forty years, Congress extended the terms of
- existing
-copyrights—this time by twenty years. Eldred would not be free to
-add any works more recent than 1923 to his collection until 2019.
- Indeed,
-no copyrighted work would pass into the public domain until
-that year (and not even then, if Congress extends the term again). By
-contrast, in the same period, more than 1 million patents will pass into
-the public domain.
+domain. Eldred wanted to post that collection in his free public
+library. But Congress got in the way. As I described in chapter 10,
+in 1998, for the eleventh time in forty years, Congress extended the
+terms of existing copyrights—this time by twenty years. Eldred
+would not be free to add any works more recent than 1923 to his
+collection until 2019. Indeed, no copyrighted work would pass into
+the public domain until that year (and not even then, if Congress
+extends the term again). By contrast, in the same period, more than 1
+million patents will pass into the public domain.
</para>
<para>
This was the Sonny Bono Copyright Term Extension Act
(CTEA), enacted in memory of the congressman and former musician
Sonny Bono, who, his widow, Mary Bono, says, believed that
- "copyrights
-should be forever."<footnote><para>
-<!-- f2. --> The full text is: "Sonny [Bono] wanted the term of copyright protection to
-last forever. I am informed by staff that such a change would violate the
-Constitution. I invite all of you to work with me to strengthen our
- copyright
-laws in all of the ways available to us. As you know, there is also Jack
-Valenti's proposal for a term to last forever less one day. Perhaps the
- Committee
-may look at that next Congress," 144 Cong. Rec. H9946, 9951-2
-(October 7, 1998).
+"copyrights should be forever."<footnote><para>
+<!-- f2. -->
+The full text is: "Sonny [Bono] wanted the term of copyright
+protection to last forever. I am informed by staff that such a change
+would violate the Constitution. I invite all of you to work with me to
+strengthen our copyright laws in all of the ways available to us. As
+you know, there is also Jack Valenti's proposal for a term to last
+forever less one day. Perhaps the Committee may look at that next
+Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
</para></footnote>
</para>
consequence
for other creative works is much more dire.
</para>
+<indexterm><primary>Agee, Michael</primary></indexterm>
<para>
-Consider the story of Michael Agee, chairman of Hal Roach
- Studios,
-which owns the copyrights for the Laurel and Hardy films. Agee
-is a direct beneficiary of the Bono Act. The Laurel and Hardy films
-were made between 1921 and 1951. Only one of these films, The Lucky
-Dog, is currently out of copyright. But for the CTEA, films made after
-1923 would have begun entering the public domain. Because Agee
-controls the exclusive rights for these popular films, he makes a great
-deal of money. According to one estimate, "Roach has sold about
-60,000 videocassettes and 50,000 DVDs of the duo's silent films."<footnote><para>
-<!-- f11. --> See David G. Savage, "High Court Scene of Showdown on Copyright
-Law," Los Angeles Times, 6 October 2002; David Streitfeld, "Classic
-Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today
-on Striking Down Copyright Extension," Orlando Sentinel Tribune, 9
- October
-2002.
+Consider the story of Michael Agee, chairman of Hal Roach Studios,
+which owns the copyrights for the Laurel and Hardy films. Agee is a
+direct beneficiary of the Bono Act. The Laurel and Hardy films were
+made between 1921 and 1951. Only one of these films, The Lucky Dog, is
+currently out of copyright. But for the CTEA, films made after 1923
+would have begun entering the public domain. Because Agee controls the
+exclusive rights for these popular films, he makes a great deal of
+money. According to one estimate, "Roach has sold about 60,000
+videocassettes and 50,000 DVDs of the duo's silent
+films."<footnote><para>
+<!-- f11. -->
+See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
+Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
+Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
</para></footnote>
</para>
<para>
-Yet Agee opposed the CTEA. His reasons demonstrate a rare
-virtue in this culture: selflessness. He argued in a brief before the
-Supreme Court that the Sonny Bono Copyright Term Extension Act
-will, if left standing, destroy a whole generation of American film.
+Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
+this culture: selflessness. He argued in a brief before the Supreme
+Court that the Sonny Bono Copyright Term Extension Act will, if left
+standing, destroy a whole generation of American film.
</para>
<para>
His argument is straightforward. A tiny fraction of this work has
<!-- PAGE BREAK 231 -->
-any continuing commercial value. The rest—to the extent it survives at
-all—sits in vaults gathering dust. It may be that some of this work not
-now commercially valuable will be deemed to be valuable by the
- owners
-of the vaults. For this to occur, however, the commercial benefit
-from the work must exceed the costs of making the work available for
-distribution.
+any continuing commercial value. The rest—to the extent it
+survives at all—sits in vaults gathering dust. It may be that
+some of this work not now commercially valuable will be deemed to be
+valuable by the owners of the vaults. For this to occur, however, the
+commercial benefit from the work must exceed the costs of making the
+work available for distribution.
</para>
<para>
We can't know the benefits, but we do know a lot about the costs.
our history, when a work ended its commercial life, there was no
copyright-related use that would be inhibited by an exclusive right.
When a book went out of print, you could not buy it from a publisher.
-But you could still buy it from a used book store, and when a used book
-store sells it, in America, at least, there is no need to pay the copyright
-owner anything. Thus, the ordinary use of a book after its commercial
-life ended was a use that was independent of copyright law.
+But you could still buy it from a used book store, and when a used
+book store sells it, in America, at least, there is no need to pay the
+copyright owner anything. Thus, the ordinary use of a book after its
+commercial life ended was a use that was independent of copyright law.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
-a film—the real economic costs, not the lawyer costs—were so high, it
-was never at all feasible to preserve or restore film. Like the remains of
-a great dinner, when it's over, it's over. Once a film passed out of its
-commercial life, it may have been archived for a bit, but that was the
-end of its life so long as the market didn't have more to offer.
+a film—the real economic costs, not the lawyer costs—were
+so high, it was never at all feasible to preserve or restore
+film. Like the remains of a great dinner, when it's over, it's
+over. Once a film passed out of its commercial life, it may have been
+archived for a bit, but that was the end of its life so long as the
+market didn't have more to offer.
</para>
<para>
In other words, though copyright has been relatively short for most
technologies is to enable the archive that Brewster Kahle dreams of.
Digital technologies now make it possible to preserve and give access
to all sorts of knowledge. Once a book goes out of print, we can now
-imagine digitizing it and making it available to everyone, forever. Once
-a film goes out of distribution, we could digitize it and make it
- available
-to everyone, forever. Digital technologies give new life to
- copyrighted
-material after it passes out of its commercial life. It is now
-possible to preserve and assure universal access to this knowledge and
-culture, whereas before it was not.
+imagine digitizing it and making it available to everyone,
+forever. Once a film goes out of distribution, we could digitize it
+and make it available to everyone, forever. Digital technologies give
+new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to
+this knowledge and culture, whereas before it was not.
</para>
<para>
<!-- PAGE BREAK 234 -->
-And now copyright law does get in the way. Every step of
- producing
-this digital archive of our culture infringes on the exclusive right of
-copyright. To digitize a book is to copy it. To do that requires
- permission
-of the copyright owner. The same with music, film, or any other
-aspect of our culture protected by copyright. The effort to make these
-things available to history, or to researchers, or to those who just want
-to explore, is now inhibited by a set of rules that were written for a
- radically
-different context.
-</para>
-<para>
-Here is the core of the harm that comes from extending terms:
-Now that technology enables us to rebuild the library of Alexandria,
-the law gets in the way. And it doesn't get in the way for any useful
-copyright purpose, for the purpose of copyright is to enable the
- commercial
-market that spreads culture. No, we are talking about culture
-after it has lived its commercial life. In this context, copyright is
- serving
-no purpose at all related to the spread of knowledge. In this
- context,
-copyright is not an engine of free expression. Copyright is a brake.
+And now copyright law does get in the way. Every step of producing
+this digital archive of our culture infringes on the exclusive right
+of copyright. To digitize a book is to copy it. To do that requires
+permission of the copyright owner. The same with music, film, or any
+other aspect of our culture protected by copyright. The effort to make
+these things available to history, or to researchers, or to those who
+just want to explore, is now inhibited by a set of rules that were
+written for a radically different context.
+</para>
+<para>
+Here is the core of the harm that comes from extending terms: Now that
+technology enables us to rebuild the library of Alexandria, the law
+gets in the way. And it doesn't get in the way for any useful
+copyright purpose, for the purpose of copyright is to enable the
+commercial market that spreads culture. No, we are talking about
+culture after it has lived its commercial life. In this context,
+copyright is serving no purpose at all related to the spread of
+knowledge. In this context, copyright is not an engine of free
+expression. Copyright is a brake.
</para>
<para>
You may well ask, "But if digital technologies lower the costs for
culture widely?"
</para>
<para>
-Maybe. Someday. But there is absolutely no evidence to suggest
-that publishers would be as complete as libraries. If Barnes & Noble
-offered to lend books from its stores for a low price, would that
- eliminate
-the need for libraries? Only if you think that the only role of a
- library
-is to serve what "the market" would demand. But if you think the
-role of a library is bigger than this—if you think its role is to archive
-culture, whether there's a demand for any particular bit of that culture
-or not—then we can't count on the commercial market to do our
- library
-work for us.
+Maybe. Someday. But there is absolutely no evidence to suggest that
+publishers would be as complete as libraries. If Barnes & Noble
+offered to lend books from its stores for a low price, would that
+eliminate the need for libraries? Only if you think that the only role
+of a library is to serve what "the market" would demand. But if you
+think the role of a library is bigger than this—if you think its
+role is to archive culture, whether there's a demand for any
+particular bit of that culture or not—then we can't count on the
+commercial market to do our library work for us.
</para>
<para>
I would be the first to agree that it should do as much as it can: We
market is not doing the job, then we should allow nonmarket forces the
<!-- PAGE BREAK 235 -->
-freedom to fill the gaps. As one researcher calculated for American
- culture,
-94 percent of the films, books, and music produced between
+freedom to fill the gaps. As one researcher calculated for American
+culture, 94 percent of the films, books, and music produced between
and 1946 is not commercially available. However much you love the
-commercial market, if access is a value, then 6 percent is a failure to
-provide that value.<footnote><para>
-<!-- f13. --> Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
- December
-2002, available at
+commercial market, if access is a value, then 6 percent is a failure
+
to provide that value.<footnote><para>
+<!-- f13. -->
+Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+December 2002, available at
<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
</para></footnote>
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in
- federal
+In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
district court in Washington, D.C., asking the court to declare the
Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
- violated
-the Constitution's "limited Times" requirement, and (2) that
- extending
-terms by another twenty years violated the First Amendment.
+central claims that we made were (1) that extending existing terms
+violated the Constitution's "limited Times" requirement, and (2) that
+extending terms by another twenty years violated the First Amendment.
</para>
<para>
-The district court dismissed our claims without even hearing an
- argument.
-A panel of the Court of Appeals for the D.C. Circuit also
- dismissed
-our claims, though after hearing an extensive argument. But
+The district court dismissed our claims without even hearing an
+argument. A panel of the Court of Appeals for the D.C. Circuit also
+dismissed our claims, though after hearing an extensive argument. But
that decision at least had a dissent, by one of the most conservative
judges on that court. That dissent gave our claims life.
</para>
it was simple: If Congress can extend existing terms, then there is no
"stopping point" to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are "limited." Thus, Judge Sentelle argued, the court had to
-interpret the term "limited Times" to give it meaning. And the best
- interpretation,
-Judge Sentelle argued, would be to deny Congress the
+terms that are "limited." Thus, Judge Sentelle argued, the court had
+to interpret the term "limited Times" to give it meaning. And the best
+interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
</para>
<para>
<!-- PAGE BREAK 236 -->
D.C. Circuit, Judge David Tatel. Both the most conservative and the
-most liberal judges in the D.C. Circuit believed Congress had
- overstepped
-its bounds.
+most liberal judges in the D.C. Circuit believed Congress had
+overstepped its bounds.
</para>
<para>
It was here that most expected Eldred v. Ashcroft would die, for the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still astonishingly
-hard. If you know anything at all about this story, you know that we
-lost the appeal. And if you know something more than just the
- minimum,
-you probably think there was no way this case could have been
-won. After our defeat, I received literally thousands of missives by
-well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
- significant
-to me than the e-mail from my client, Eric Eldred.
+It is over a year later as I write these words. It is still
+astonishingly hard. If you know anything at all about this story, you
+know that we lost the appeal. And if you know something more than just
+the minimum, you probably think there was no way this case could have
+been won. After our defeat, I received literally thousands of missives
+by well-wishers and supporters, thanking me for my work on behalf of
+this noble but doomed cause. And none from this pile was more
+significant to me than the e-mail from my client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
retell this story to myself, I can never escape believing that my own
mistake lost it.
</para>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the
-very end. Our case had been supported from the very beginning by an
- extraordinary
-lawyer, Geoffrey Stewart, and by the law firm he had moved
-to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat
+The mistake was made early, though it became obvious only at the very
+end. Our case had been supported from the very beginning by an
+extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
+moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
+heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
- ignored
-this pressure (something that few law firms today would ever
+ignored this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Bromberg, Dan</primary></indexterm>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
judge, Judge Sentelle.
</para>
<para>
-In the Supreme Court, the briefs on our side were about as diverse
-as it gets. They included an extraordinary historical brief by the Free
+In the Supreme Court, the briefs on our side were about as diverse as
+it gets. They included an extraordinary historical brief by the Free
<!-- PAGE BREAK 239 -->
-Software Foundation (home of the GNU project that made GNU/
-Linux possible). They included a powerful brief about the costs of
- uncertainty
-by Intel. There were two law professors' briefs, one by
- copyright
-scholars and one by First Amendment scholars. There was an
-exhaustive and uncontroverted brief by the world's experts in the
- history
-of the Progress Clause. And of course, there was a new brief by
-Eagle Forum, repeating and strengthening its arguments.
+Software Foundation (home of the GNU project that made GNU/ Linux
+possible). They included a powerful brief about the costs of
+uncertainty by Intel. There were two law professors' briefs, one by
+copyright scholars and one by First Amendment scholars. There was an
+exhaustive and uncontroverted brief by the world's experts in the
+history of the Progress Clause. And of course, there was a new brief
+by Eagle Forum, repeating and strengthening its arguments.
</para>
<para>
Those briefs framed a legal argument. Then to support the legal
Law Libraries, and the National Writers Union.
</para>
<para>
-But two briefs captured the policy argument best. One made the
- argument
-I've already described: A brief by Hal Roach Studios argued that
-unless the law was struck, a whole generation of American film would
-disappear. The other made the economic argument absolutely clear.
+But two briefs captured the policy argument best. One made the
+argument I've already described: A brief by Hal Roach Studios argued
+that unless the law was struck, a whole generation of American film
+would disappear. The other made the economic argument absolutely
+clear.
</para>
+<indexterm><primary>Akerlof, George</primary></indexterm>
+<indexterm><primary>Arrow, Kenneth</primary></indexterm>
+<indexterm><primary>Buchanan, James</primary></indexterm>
+<indexterm><primary>Coase, Ronald</primary></indexterm>
+<indexterm><primary>Friedman, Milton</primary></indexterm>
<para>
This economists' brief was signed by seventeen economists, including
five Nobel Prize winners, including Ronald Coase, James Buchanan,
-Milton Friedman, Kenneth Arrow, and George Akerlof. The
- economists,
-as the list of Nobel winners demonstrates, spanned the political
+Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
+the list of Nobel winners demonstrates, spanned the political
spectrum. Their conclusions were powerful: There was no plausible
-claim that extending the terms of existing copyrights would do anything
-to increase incentives to create. Such extensions were nothing more
-than "rent-seeking"—the fancy term economists use to describe
-special-interest legislation gone wild.
-</para>
-<para>
-The same effort at balance was reflected in the legal team we
- gathered
-to write our briefs in the case. The Jones Day lawyers had been
-with us from the start. But when the case got to the Supreme Court,
-we added three lawyers to help us frame this argument to this Court:
-Alan Morrison, a lawyer from Public Citizen, a Washington group
-that had made constitutional history with a series of seminal victories
-in the Supreme Court defending individual rights; my colleague and
-dean, Kathleen Sullivan, who had argued many cases in the Court, and
+claim that extending the terms of existing copyrights would do
+anything to increase incentives to create. Such extensions were
+nothing more than "rent-seeking"—the fancy term economists use
+to describe special-interest legislation gone wild.
+</para>
+<para>
+The same effort at balance was reflected in the legal team we gathered
+to write our briefs in the case. The Jones Day lawyers had been with
+us from the start. But when the case got to the Supreme Court, we
+added three lawyers to help us frame this argument to this Court: Alan
+Morrison, a lawyer from Public Citizen, a Washington group that had
+made constitutional history with a series of seminal victories in the
+Supreme Court defending individual rights; my colleague and dean,
+Kathleen Sullivan, who had argued many cases in the Court, and
<!-- PAGE BREAK 240 -->
-who had advised us early on about a First Amendment strategy; and
- finally,
-former solicitor general Charles Fried.
+who had advised us early on about a First Amendment strategy; and
+finally, former solicitor general Charles Fried.
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
general was hired by the other side to defend Congress's power to give
media companies the special favor of extended copyright terms. Fried
-was the only one who turned down that lucrative assignment to stand
-up for something he believed in. He had been Ronald Reagan's chief
-lawyer in the Supreme Court. He had helped craft the line of cases that
+was the only one who turned down that lucrative assignment to stand up
+for something he believed in. He had been Ronald Reagan's chief lawyer
+in the Supreme Court. He had helped craft the line of cases that
limited Congress's power in the context of the Commerce Clause. And
-while he had argued many positions in the Supreme Court that I
- personally
-disagreed with, his joining the cause was a vote of confidence in
-our argument.
+while he had argued many positions in the Supreme Court that I
+personally disagreed with, his joining the cause was a vote of
+confidence in our argument.
</para>
<para>
The government, in defending the statute, had its collection of
copyright holders.
</para>
<para>
-The media companies were not surprising. They had the most to
-gain from the law. The congressmen were not surprising either—they
-were defending their power and, indirectly, the gravy train of
- contributions
-such power induced. And of course it was not surprising that the
-copyright holders would defend the idea that they should continue to
-have the right to control who did what with content they wanted to
-control.
+The media companies were not surprising. They had the most to gain
+from the law. The congressmen were not surprising either—they
+were defending their power and, indirectly, the gravy train of
+contributions such power induced. And of course it was not surprising
+that the copyright holders would defend the idea that they should
+continue to have the right to control who did what with content they
+wanted to control.
</para>
<para>
Dr. Seuss's representatives, for example, argued that it was
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
Mouse Joins the Fray," New York Times, 28 March 1998, B7.
</para></footnote>
- That's
+That's
<!-- PAGE BREAK 241 -->
their view of how this part of American culture should be controlled,
and they wanted this law to help them effect that control.
</para>
<para>
-This argument made clear a theme that is rarely noticed in this
- debate.
-When Congress decides to extend the term of existing
- copyrights,
-Congress is making a choice about which speakers it will favor.
-Famous and beloved copyright owners, such as the Gershwin estate
-and Dr. Seuss, come to Congress and say, "Give us twenty years to
- control
-the speech about these icons of American culture. We'll do better
-with them than anyone else." Congress of course likes to reward the
-popular and famous by giving them what they want. But when
- Congress
-gives people an exclusive right to speak in a certain way, that's just
-what the First Amendment is traditionally meant to block.
+This argument made clear a theme that is rarely noticed in this
+debate. When Congress decides to extend the term of existing
+copyrights, Congress is making a choice about which speakers it will
+favor. Famous and beloved copyright owners, such as the Gershwin
+estate and Dr. Seuss, come to Congress and say, "Give us twenty years
+to control the speech about these icons of American culture. We'll do
+better with them than anyone else." Congress of course likes to reward
+the popular and famous by giving them what they want. But when
+Congress gives people an exclusive right to speak in a certain way,
+that's just what the First Amendment is traditionally meant to block.
</para>
<para>
-We argued as much in a final brief. Not only would upholding the
-CTEA mean that there was no limit to the power of Congress to extend
-copyrights—extensions that would further concentrate the market; it
-would also mean that there was no limit to Congress's power to play
- favorites,
-through copyright, with who has the right to speak.
-Between February and October, there was little I did beyond
-preparing for this case. Early on, as I said, I set the strategy.
+We argued as much in a final brief. Not only would upholding the CTEA
+mean that there was no limit to the power of Congress to extend
+copyrights—extensions that would further concentrate the market;
+it would also mean that there was no limit to Congress's power to play
+favorites, through copyright, with who has the right to speak.
+Between February and October, there was little I did beyond preparing
+for this case. Early on, as I said, I set the strategy.
</para>
<para>
The Supreme Court was divided into two important camps. One
an enumerated power had to be interpreted to assure that Congress's
powers had limits.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
-Congress's power. These four—Justice Stevens, Justice Souter, Justice
-Ginsburg, and Justice Breyer—had repeatedly argued that the
- Constitution
+Congress's power. These four—Justice Stevens, Justice Souter,
+Justice Ginsburg, and Justice Breyer—had repeatedly argued that
+the Constitution
<!-- PAGE BREAK 242 -->
-gives Congress broad discretion to decide how best to
- implement
-its powers. In case after case, these justices had argued that the
-Court's role should be one of deference. Though the votes of these four
+gives Congress broad discretion to decide how best to implement its
+powers. In case after case, these justices had argued that the Court's
+role should be one of deference. Though the votes of these four
justices were the votes that I personally had most consistently agreed
with, they were also the votes that we were least likely to get.
</para>
<para>
In particular, the least likely was Justice Ginsburg's. In addition to
her general view about deference to Congress (except where issues of
-gender are involved), she had been particularly deferential in the
- context
-of intellectual property protections. She and her daughter (an
- excellent
-and well-known intellectual property scholar) were cut from
+gender are involved), she had been particularly deferential in the
+context of intellectual property protections. She and her daughter (an
+excellent and well-known intellectual property scholar) were cut from
the same intellectual property cloth. We expected she would agree with
-the writings of her daughter: that Congress had the power in this
- context
-to do as it wished, even if what Congress wished made little sense.
+the writings of her daughter: that Congress had the power in this
+context to do as it wished, even if what Congress wished made little
+sense.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-Close behind Justice Ginsburg were two justices whom we also
-viewed as unlikely allies, though possible surprises. Justice Souter
-strongly favored deference to Congress, as did Justice Breyer. But both
-were also very sensitive to free speech concerns. And as we strongly
- believed,
-there was a very important free speech argument against these
-retrospective extensions.
+Close behind Justice Ginsburg were two justices whom we also viewed as
+unlikely allies, though possible surprises. Justice Souter strongly
+favored deference to Congress, as did Justice Breyer. But both were
+also very sensitive to free speech concerns. And as we strongly
+believed, there was a very important free speech argument against
+these retrospective extensions.
</para>
<para>
The only vote we could be confident about was that of Justice
were an effective practice; I found ways to take every question back to
this central idea.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
One moot was before the lawyers at Jones Day. Don Ayer was the
-skeptic. He had served in the Reagan Justice Department with
- Solicitor
-General Charles Fried. He had argued many cases before the
-Supreme Court. And in his review of the moot, he let his concern
-speak:
+skeptic. He had served in the Reagan Justice Department with Solicitor
+General Charles Fried. He had argued many cases before the Supreme
+Court. And in his review of the moot, he let his concern speak:
</para>
<para>
"I'm just afraid that unless they really see the harm, they won't be
-willing to upset this practice that the government says has been a
- consistent
-practice for two hundred years. You have to make them see the
-harm—passionately get them to see the harm. For if they don't see
-that, then we haven't any chance of winning."
+willing to upset this practice that the government says has been a
+consistent practice for two hundred years. You have to make them see
+the harm—passionately get them to see the harm. For if they
+don't see that, then we haven't any chance of winning."
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
He may have argued many cases before this Court, I thought, but
he didn't understand its soul. As a clerk, I had seen the Justices do the
perpetual term not be permitted under the copyright laws.
</para>
</blockquote>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
That was a correct answer, but it wasn't the right answer. The right
answer was instead that there was an obvious and profound harm. Any
would not.
</para>
<para>
-Yet by what right did they get to choose which of the framers'
- values
-they would respect? By what right did they—the silent five—get to
-select the part of the Constitution they would enforce based on the
- values
-they thought important? We were right back to the argument that
-I said I hated at the start: I had failed to convince them that the issue
-here was important, and I had failed to recognize that however much I
-might hate a system in which the Court gets to pick the constitutional
-values that it will respect, that is the system we have.
+Yet by what right did they get to choose which of the framers' values
+they would respect? By what right did they—the silent
+five—get to select the part of the Constitution they would
+enforce based on the values they thought important? We were right back
+to the argument that I said I hated at the start: I had failed to
+convince them that the issue here was important, and I had failed to
+recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is
+the system we have.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
Justices Breyer and Stevens wrote very strong dissents. Stevens's
-opinion was crafted internal to the law: He argued that the tradition of
-intellectual property law should not support this unjustified extension
-of terms. He based his argument on a parallel analysis that had
- governed
-in the context of patents (so had we). But the rest of the Court
-discounted the parallel—without explaining how the very same words
-in the Progress Clause could come to mean totally different things
- depending
-upon whether the words were about patents or copyrights.
-The Court let Justice Stevens's charge go unanswered.
+opinion was crafted internal to the law: He argued that the tradition
+of intellectual property law should not support this unjustified
+extension of terms. He based his argument on a parallel analysis that
+had governed in the context of patents (so had we). But the rest of
+the Court discounted the parallel—without explaining how the
+very same words in the Progress Clause could come to mean totally
+different things depending upon whether the words were about patents
+or copyrights. The Court let Justice Stevens's charge go unanswered.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-
<!-- PAGE BREAK 250 -->
-Justice Breyer's opinion, perhaps the best opinion he has ever
- written,
-was external to the Constitution. He argued that the term of
- copyrights
-has become so long as to be effectively unlimited. We had said
-that under the current term, a copyright gave an author 99.8 percent of
-the value of a perpetual term. Breyer said we were wrong, that the
- actual
-number was 99.9997 percent of a perpetual term. Either way, the
-point was clear: If the Constitution said a term had to be "limited," and
-the existing term was so long as to be effectively unlimited, then it was
-unconstitutional.
+Justice Breyer's opinion, perhaps the best opinion he has ever
+written, was external to the Constitution. He argued that the term of
+copyrights has become so long as to be effectively unlimited. We had
+said that under the current term, a copyright gave an author 99.8
+percent of the value of a perpetual term. Breyer said we were wrong,
+that the actual number was 99.9997 percent of a perpetual term. Either
+way, the point was clear: If the Constitution said a term had to be
+"limited," and the existing term was so long as to be effectively
+unlimited, then it was unconstitutional.
</para>
<para>
These two justices understood all the arguments we had made. But
<para>
It was first anger with the five "Conservatives." It would have been
one thing for them to have explained why the principle of Lopez didn't
-apply in this case. That wouldn't have been a very convincing
- argument,
-I don't believe, having read it made by others, and having tried
-to make it myself. But it at least would have been an act of integrity.
-These justices in particular have repeatedly said that the proper mode
-of interpreting the Constitution is "originalism"—to first understand
-the framers' text, interpreted in their context, in light of the structure
-of the Constitution. That method had produced Lopez and many other
-"originalist" rulings. Where was their "originalism" now?
+apply in this case. That wouldn't have been a very convincing
+argument, I don't believe, having read it made by others, and having
+tried to make it myself. But it at least would have been an act of
+integrity. These justices in particular have repeatedly said that the
+proper mode of interpreting the Constitution is "originalism"—to
+first understand the framers' text, interpreted in their context, in
+light of the structure of the Constitution. That method had produced
+Lopez and many other "originalist" rulings. Where was their
+"originalism" now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
<!-- PAGE BREAK 251 -->
power. And they joined an opinion that didn't even try to explain why
this grant of power could be unlimited, whereas the Commerce Clause
-would be limited. In short, they had joined an opinion that did not
- apply
-to, and was inconsistent with, their own method for interpreting
-the Constitution. This opinion may well have yielded a result that they
-liked. It did not produce a reason that was consistent with their own
-principles.
+would be limited. In short, they had joined an opinion that did not
+apply to, and was inconsistent with, their own method for interpreting
+the Constitution. This opinion may well have yielded a result that
+they liked. It did not produce a reason that was consistent with their
+own principles.
</para>
<para>
My anger with the Conservatives quickly yielded to anger with
For I had let a view of the law that I liked interfere with a view of
the law as it is.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
-Most lawyers, and most law professors, have little patience for
- idealism
-about courts in general and this Supreme Court in particular.
-Most have a much more pragmatic view. When Don Ayer said that
-this case would be won based on whether I could convince the Justices
-that the framers' values were important, I fought the idea, because I
-didn't want to believe that that is how this Court decides. I insisted on
-arguing this case as if it were a simple application of a set of principles.
-I had an argument that followed in logic. I didn't need to waste my
-time showing it should also follow in popularity.
+Most lawyers, and most law professors, have little patience for
+idealism about courts in general and this Supreme Court in particular.
+Most have a much more pragmatic view. When Don Ayer said that this
+case would be won based on whether I could convince the Justices that
+the framers' values were important, I fought the idea, because I
+didn't want to believe that that is how this Court decides. I insisted
+on arguing this case as if it were a simple application of a set of
+principles. I had an argument that followed in logic. I didn't need
+to waste my time showing it should also follow in popularity.
</para>
<para>
As I read back over the transcript from that argument in October, I
-can see a hundred places where the answers could have taken the
- conversation
-in different directions, where the truth about the harm that
-this unchecked power will cause could have been made clear to this
-Court. Justice Kennedy in good faith wanted to be shown. I, idiotically,
-corrected his question. Justice Souter in good faith wanted to be shown
-the First Amendment harms. I, like a math teacher, reframed the
- question
-to make the logical point. I had shown them how they could strike
-this law of Congress if they wanted to. There were a hundred places
-where I could have helped them want to, yet my stubbornness, my
- refusal
-to give in, stopped me. I have stood before hundreds of audiences
-trying to persuade; I have used passion in that effort to persuade; but I
+can see a hundred places where the answers could have taken the
+conversation in different directions, where the truth about the harm
+that this unchecked power will cause could have been made clear to
+this Court. Justice Kennedy in good faith wanted to be shown. I,
+idiotically, corrected his question. Justice Souter in good faith
+wanted to be shown the First Amendment harms. I, like a math teacher,
+reframed the question to make the logical point. I had shown them how
+they could strike this law of Congress if they wanted to. There were a
+hundred places where I could have helped them want to, yet my
+stubbornness, my refusal to give in, stopped me. I have stood before
+hundreds of audiences trying to persuade; I have used passion in that
+effort to persuade; but I
<!-- PAGE BREAK 252 -->
refused to stand before this audience and try to persuade with the
- passion
-I had used elsewhere. It was not the basis on which a court should
-decide the issue.
+passion I had used elsewhere. It was not the basis on which a court
+should decide the issue.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
Would it have been different if I had argued it differently? Would it
have been different if Don Ayer had argued it? Or Charles Fried? Or
</para>
<para>
And even if I couldn't, then that doesn't excuse what happened in
-January. For at the start of this case, one of America's leading
- intellectual
-property professors stated publicly that my bringing this case was
-a mistake. "The Court is not ready," Peter Jaszi said; this issue should
-not be raised until it is.
+January. For at the start of this case, one of America's leading
+intellectual property professors stated publicly that my bringing this
+case was a mistake. "The Court is not ready," Peter Jaszi said; this
+issue should not be raised until it is.
</para>
<para>
After the argument and after the decision, Peter said to me, and
copyright was a good idea. We had won that battle over ideas. Where
<!-- PAGE BREAK 253 -->
-the decision was praised, it was praised by papers that had been
- skeptical
-of the Court's activism in other cases. Deference was a good thing,
-even if it left standing a silly law. But where the decision was attacked,
-it was attacked because it left standing a silly and harmful law. The New
-York Times wrote in its editorial,
+the decision was praised, it was praised by papers that had been
+skeptical of the Court's activism in other cases. Deference was a good
+thing, even if it left standing a silly law. But where the decision
+was attacked, it was attacked because it left standing a silly and
+harmful law. The New York Times wrote in its editorial,
</para>
<blockquote>
<para>
In effect, the Supreme Court's decision makes it likely that we are
seeing the beginning of the end of public domain and the birth of
-copyright perpetuity. The public domain has been a grand
- experiment,
-one that should not be allowed to die. The ability to draw
-freely on the entire creative output of humanity is one of the
- reasons
-we live in a time of such fruitful creative ferment.
+copyright perpetuity. The public domain has been a grand experiment,
+one that should not be allowed to die. The ability to draw freely on
+the entire creative output of humanity is one of the reasons we live
+in a time of such fruitful creative ferment.
</para>
</blockquote>
<para>
-The best responses were in the cartoons. There was a gaggle of
- hilarious
-images—of Mickey in jail and the like. The best, from my view
-of the case, was Ruben Bolling's, reproduced on the next page. The
-"powerful and wealthy" line is a bit unfair. But the punch in the face felt
-exactly like that.
+The best responses were in the cartoons. There was a gaggle of
+hilarious images—of Mickey in jail and the like. The best, from
+my view of the case, was Ruben Bolling's, reproduced on the next
+page. The "powerful and wealthy" line is a bit unfair. But the punch
+in the face felt exactly like that.
</para>
<para>
The image that will always stick in my head is that evoked by the
quote from The New York Times. That "grand experiment" we call the
"public domain" is over? When I can make light of it, I think, "Honey,
-I shrunk the Constitution." But I can rarely make light of it. We had in
-our Constitution a commitment to free culture. In the case that I
- fathered,
-the Supreme Court effectively renounced that commitment. A
+I shrunk the Constitution." But I can rarely make light of it. We had
+in our Constitution a commitment to free culture. In the case that I
+fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
The day Eldred was decided, fate would have it that I was to travel to
-Washington, D.C. (The day the rehearing petition in Eldred was
- denied—meaning
-the case was really finally over—fate would have it that
-I was giving a speech to technologists at Disney World.) This was a
-particularly long flight to my least favorite city. The drive into the city
-from Dulles was delayed because of traffic, so I opened up my
- computer
-and wrote an op-ed piece.
+Washington, D.C. (The day the rehearing petition in Eldred was
+denied—meaning the case was really finally over—fate would
+have it that I was giving a speech to technologists at Disney World.)
+This was a particularly long flight to my least favorite city. The
+drive into the city from Dulles was delayed because of traffic, so I
+opened up my computer and wrote an op-ed piece.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
It was an act of contrition. During the whole of the flight from San
Francisco to Washington, I had heard over and over again in my head
Congress allows for those works where its worth is at least $1. But for
everything else, let the content go.
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-The reaction to this idea was amazingly strong. Steve Forbes
- endorsed
+The reaction to this idea was amazingly strong. Steve Forbes endorsed
it in an editorial. I received an avalanche of e-mail and letters
-expressing support. When you focus the issue on lost creativity, people
-can see the copyright system makes no sense. As a good Republican
-might say, here government regulation is simply getting in the way of
-innovation and creativity. And as a good Democrat might say, here the
-government is blocking access and the spread of knowledge for no
-good reason. Indeed, there is no real difference between Democrats
-and Republicans on this issue. Anyone can recognize the stupid harm
-of the present system.
+expressing support. When you focus the issue on lost creativity,
+people can see the copyright system makes no sense. As a good
+Republican might say, here government regulation is simply getting in
+the way of innovation and creativity. And as a good Democrat might
+say, here the government is blocking access and the spread of
+knowledge for no good reason. Indeed, there is no real difference
+between Democrats and Republicans on this issue. Anyone can recognize
+the stupid harm of the present system.
</para>
<para>
Indeed, many recognized the obvious benefit of the registration
<para>
<!-- PAGE BREAK 257 -->
As I described in chapter 10, formalities in copyright law were
- removed
-in 1976, when Congress followed the Europeans by
- abandoning
+removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
-<!-- f1. --> Until the 1908 Berlin Act of the Berne Convention, national copyright
-legislation sometimes made protection depend upon compliance with
- formalities
-such as registration, deposit, and affixation of notice of the
- author's
-claim of copyright. However, starting with the 1908 act, every text
-of the Convention has provided that "the enjoyment and the exercise" of
-rights guaranteed by the Convention "shall not be subject to any
- formality."
-The prohibition against formalities is presently embodied in Article
-5(2) of the Paris Text of the Berne Convention. Many countries continue
-to impose some form of deposit or registration requirement, albeit not as
-a condition of copyright. French law, for example, requires the deposit of
-copies of works in national repositories, principally the National Museum.
+<indexterm><primary>Berlin Act (1908)</primary></indexterm>
+<!-- f1. -->
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject
+to any formality." The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the National Museum.
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
-of Authors where the author's true name can be filed in the case of
- anonymous
-or pseudonymous works. Paul Goldstein, International Intellectual
-Property Law, Cases and Materials (New York: Foundation Press, 2001),
-153–54.
-</para></footnote>
- The
- Europeans
-are said to view copyright as a "natural right." Natural rights
-don't need forms to exist. Traditions, like the Anglo-American
- tradition
-that required copyright owners to follow form if their rights were
-to be protected, did not, the Europeans thought, properly respect the
-dignity of the author. My right as a creator turns on my creativity, not
-upon the special favor of the government.
-</para>
-<para>
-That's great rhetoric. It sounds wonderfully romantic. But it is
- absurd
-copyright policy. It is absurd especially for authors, because a
-world without formalities harms the creator. The ability to spread
+of Authors where the author's true name can be filed in the case of
+anonymous or pseudonymous works. Paul Goldstein, International
+Intellectual Property Law, Cases and Materials (New York: Foundation
+Press, 2001), 153–54. </para></footnote>
+The Europeans are said to view copyright as a "natural right." Natural
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+</para>
+<para>
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
</para>
<para>
-The fight against formalities achieved its first real victory in Berlin
-in 1908. International copyright lawyers amended the Berne
- Convention
-in 1908, to require copyright terms of life plus fifty years, as well as
-the abolition of copyright formalities. The formalities were hated
- because
-the stories of inadvertent loss were increasingly common. It was
-as if a Charles Dickens character ran all copyright offices, and the
- failure
-to dot an i or cross a t resulted in the loss of widows' only income.
+The fight against formalities achieved its first real victory in
+Berlin in 1908. International copyright lawyers amended the Berne
+Convention in 1908, to require copyright terms of life plus fifty
+years, as well as the abolition of copyright formalities. The
+formalities were hated because the stories of inadvertent loss were
+increasingly common. It was as if a Charles Dickens character ran all
+copyright offices, and the failure to dot an i or cross a t resulted
+in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
-formalities, especially in the United States, was absurd. The law should
-always have ways of forgiving innocent mistakes. There is no reason
-copyright law couldn't, as well. Rather than abandoning formalities
- totally,
-the response in Berlin should have been to embrace a more
- equitable
-system of registration.
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
</para>
<para>
Even that would have been resisted, however, because registration
a moral claim as well. There was no reason that creative property
<!-- PAGE BREAK 258 -->
-should be a second-class form of property. If a carpenter builds a table,
-his rights over the table don't depend upon filing a form with the
- government.
-He has a property right over the table "naturally," and he can
-assert that right against anyone who would steal the table, whether or
-not he has informed the government of his ownership of the table.
+should be a second-class form of property. If a carpenter builds a
+table, his rights over the table don't depend upon filing a form with
+the government. He has a property right over the table "naturally,"
+and he can assert that right against anyone who would steal the table,
+whether or not he has informed the government of his ownership of the
+table.
</para>
<para>
-This argument is correct, but its implications are misleading. For
-the argument in favor of formalities does not depend upon creative
-property being second-class property. The argument in favor of
- formalities
-turns upon the special problems that creative property
- presents.
-The law of formalities responds to the special physics of creative
-property, to assure that it can be efficiently and fairly spread.
+This argument is correct, but its implications are misleading. For the
+argument in favor of formalities does not depend upon creative
+property being second-class property. The argument in favor of
+formalities turns upon the special problems that creative property
+presents. The law of formalities responds to the special physics of
+creative property, to assure that it can be efficiently and fairly
+spread.
</para>
<para>
No one thinks, for example, that land is second-class property just
-because you have to register a deed with a court if your sale of land is
-to be effective. And few would think a car is second-class property just
-because you must register the car with the state and tag it with a
- license.
-In both of those cases, everyone sees that there is an important
-reason to secure registration—both because it makes the markets more
-efficient and because it better secures the rights of the owner. Without
-a registration system for land, landowners would perpetually have to
-guard their property. With registration, they can simply point the
- police
-to a deed. Without a registration system for cars, auto theft would
-be much easier. With a registration system, the thief has a high burden
-to sell a stolen car. A slight burden is placed on the property owner, but
-those burdens produce a much better system of protection for property
-generally.
+because you have to register a deed with a court if your sale of land
+is to be effective. And few would think a car is second-class property
+just because you must register the car with the state and tag it with
+a license. In both of those cases, everyone sees that there is an
+important reason to secure registration—both because it makes
+the markets more efficient and because it better secures the rights of
+the owner. Without a registration system for land, landowners would
+perpetually have to guard their property. With registration, they can
+simply point the police to a deed. Without a registration system for
+cars, auto theft would be much easier. With a registration system, the
+thief has a high burden to sell a stolen car. A slight burden is
+placed on the property owner, but those burdens produce a much better
+system of protection for property generally.
</para>
<para>
It is similarly special physics that makes formalities important in
be presumptively uncontrolled.
</para>
<para>
-But now that copyrights can be just about a century long, the
- inability
-to know what is protected and what is not protected becomes a
-huge and obvious burden on the creative process. If the only way a
- library
-can offer an Internet exhibit about the New Deal is to hire a
-lawyer to clear the rights to every image and sound, then the copyright
-system is burdening creativity in a way that has never been seen before
-because there are no formalities.
+But now that copyrights can be just about a century long, the
+inability to know what is protected and what is not protected becomes
+a huge and obvious burden on the creative process. If the only way a
+library can offer an Internet exhibit about the New Deal is to hire a
+lawyer to clear the rights to every image and sound, then the
+copyright system is burdening creativity in a way that has never been
+seen before because there are no formalities.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
movie based on it. It should become free if it is not worth $1 to you.
</para>
<para>
-Some worry about the burden on authors. Won't the burden of
- registering
-the work mean that the $1 is really misleading? Isn't the hassle
-worth more than $1? Isn't that the real problem with registration?
+Some worry about the burden on authors. Won't the burden of
+registering the work mean that the $1 is really misleading? Isn't the
+hassle worth more than $1? Isn't that the real problem with
+registration?
</para>
<para>
It is. The hassle is terrible. The system that exists now is awful. I
work, commercial work that no longer had a commercial life, into the
public domain within fifty years. What do you think?
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
When Steve Forbes endorsed the idea, some in Washington began to pay
attention. Many people contacted me pointing to representatives who
example, if the drug was sold in India, it could be imported into
Africa from India. This is called "parallel importation," and it is
generally permitted under international trade law and is specifically
-permitted within the European Union.<footnote><para>
-<!-- f2. --> See Peter Drahos with John Braithwaite, Information Feudalism: Who
+permitted within the European Union.<footnote>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
+<para>
+<!-- f2. -->
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
</para></footnote>
</para>
intellectual property is. As every economist and lawyer knows, the
hard question in intellectual property law is to find that
balance. But that there should be limits is, I had thought,
-uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
+uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
based on drugs whose patent has expired) contrary to the WIPO mission?
Does the public domain weaken intellectual property? Would it have
been better if the protocols of the Internet had been patented?
and concentration. It fought any freedom that might interfere with
that control.
</para>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
-<!-- f10. --> See Drahos with Braithwaite, Information Feudalism, 210–20.
+<!-- f10. -->
+See Drahos with Braithwaite, Information Feudalism, 210–20.
</para></footnote>
We will have an information society. That much is certain. Our only
choice now is whether that information society will be free or
been part of our tradition for most of our history—free culture.
</para>
<para>
-If this is crazy, then let there be more crazies. Soon.
-There are moments of hope in this struggle. And moments that
-surprise. When the FCC was considering relaxing ownership rules,
-which would thereby further increase the concentration in media
- ownership,
-an extraordinary bipartisan coalition formed to fight this
-change. For perhaps the first time in history, interests as diverse as the
-NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and
-CodePink Women for Peace organized to oppose this change in FCC
-policy. An astonishing 700,000 letters were sent to the FCC,
- demanding
-more hearings and a different result.
+If this is crazy, then let there be more crazies. Soon. There are
+moments of hope in this struggle. And moments that surprise. When the
+FCC was considering relaxing ownership rules, which would thereby
+further increase the concentration in media ownership, an
+extraordinary bipartisan coalition formed to fight this change. For
+perhaps the first time in history, interests as diverse as the NRA,
+the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
+for Peace organized to oppose this change in FCC policy. An
+astonishing 700,000 letters were sent to the FCC, demanding more
+hearings and a different result.
</para>
<para>
-This activism did not stop the FCC, but soon after, a broad
- coalition
-in the Senate voted to reverse the FCC decision. The hostile
- hearings
-leading up to that vote revealed just how powerful this movement
-had become. There was no substantial support for the FCC's decision,
-and there was broad and sustained support for fighting further
- concentration
-in the media.
+This activism did not stop the FCC, but soon after, a broad coalition
+in the Senate voted to reverse the FCC decision. The hostile hearings
+leading up to that vote revealed just how powerful this movement had
+become. There was no substantial support for the FCC's decision, and
+there was broad and sustained support for fighting further
+concentration in the media.
</para>
<para>
But even this movement misses an important piece of the puzzle.
Largeness as such is not bad. Freedom is not threatened just because
-some become very rich, or because there are only a handful of big
- players.
-The poor quality of Big Macs or Quarter Pounders does not mean
-that you can't get a good hamburger from somewhere else.
+some become very rich, or because there are only a handful of big
+players. The poor quality of Big Macs or Quarter Pounders does not
+mean that you can't get a good hamburger from somewhere else.
</para>
<para>
-The danger in media concentration comes not from the
- concentration,
+The danger in media concentration comes not from the concentration,
but instead from the feudalism that this concentration, tied to the
-change in copyright, produces. It is not just that there are a few
- powerful
-companies that control an ever expanding slice of the media. It
-is that this concentration can call upon an equally bloated range of
-rights—property rights of a historically extreme form—that makes
-their bigness bad.
+change in copyright, produces. It is not just that there are a few
+powerful companies that control an ever expanding slice of the
+media. It is that this concentration can call upon an equally bloated
+range of rights—property rights of a historically extreme
+form—that makes their bigness bad.
</para>
<!-- PAGE BREAK 277 -->
<para>
-It is therefore significant that so many would rally to demand
- competition
-and increased diversity. Still, if the rally is understood as being
-about bigness alone, it is not terribly surprising. We Americans have a
-long history of fighting "big," wisely or not. That we could be
- motivated
-to fight "big" again is not something new.
+It is therefore significant that so many would rally to demand
+competition and increased diversity. Still, if the rally is understood
+as being about bigness alone, it is not terribly surprising. We
+Americans have a long history of fighting "big," wisely or not. That
+we could be motivated to fight "big" again is not something new.
</para>
<para>
-It would be something new, and something very important, if an
-equal number could be rallied to fight the increasing extremism built
-within the idea of "intellectual property." Not because balance is alien
-to our tradition; indeed, as I've argued, balance is our tradition. But
- because
-the muscle to think critically about the scope of anything called
-"property" is not well exercised within this tradition anymore.
+It would be something new, and something very important, if an equal
+number could be rallied to fight the increasing extremism built within
+the idea of "intellectual property." Not because balance is alien to
+our tradition; indeed, as I've argued, balance is our tradition. But
+because the muscle to think critically about the scope of anything
+called "property" is not well exercised within this tradition anymore.
</para>
<para>
If we were Achilles, this would be our heel. This would be the place
<para>
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.<footnote><para>
-<!-- f11. --> John Borland, "RIAA Sues 261 File Swappers," CNET News.com,
-September 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul R. La Monica, "Music
- Industry
-Sues Swappers," CNN/Money, 8 September 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a
-Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily
-News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet
- Surprised
+<!-- f11. -->
+John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul
+R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni
+Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
+September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
- available
-at
+"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #67</ulink>.
</para></footnote>
-
- Eminem
-has just been sued for "sampling" someone else's music.<footnote><para>
-<!-- f12. --> Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com,
-17 September 2003, available at
+Eminem has just been sued for "sampling" someone else's
+music.<footnote><para>
+<!-- f12. -->
+Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+mtv.com, 17 September 2003, available at
<ulink url="http://free-culture.cc/notes/">link #68</ulink>.
</para></footnote>
- The
-story about Bob Dylan "stealing" from a Japanese author has just
- finished
-making the rounds.<footnote><para>
-<!-- f13. --> Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
- Dylan
-Songs," Kansascity.com, 9 July 2003, available at
+The story about Bob Dylan "stealing" from a Japanese author has just
+finished making the rounds.<footnote><para>
+<!-- f13. -->
+Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
+Dylan Songs," Kansascity.com, 9 July 2003, available at
<ulink url="http://free-culture.cc/notes/">link #69</ulink>.
<!-- PAGE BREAK 334 -->
</para></footnote>
- An insider from Hollywood—who insists
-he must remain anonymous—reports "an amazing conversation with
-these studio guys. They've got extraordinary [old] content that they'd
-love to use but can't because they can't begin to clear the rights. They've
-got scores of kids who could do amazing things with the content, but
-it would take scores of lawyers to clean it first." Congressmen are
- talking
-about deputizing computer viruses to bring down computers thought
-to violate the law. Universities are threatening expulsion for kids who
-use a computer to share content.
+An insider from Hollywood—who insists he must remain
+anonymous—reports "an amazing conversation with these studio
+guys. They've got extraordinary [old] content that they'd love to use
+but can't because they can't begin to clear the rights. They've got
+scores of kids who could do amazing things with the content, but it
+would take scores of lawyers to clean it first." Congressmen are
+talking about deputizing computer viruses to bring down computers
+thought to violate the law. Universities are threatening expulsion for
+kids who use a computer to share content.
</para>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
24 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
</para></footnote>
- And in Brazil, the
-culture minister, Gilberto Gil, himself a folk hero of Brazilian music,
-has joined with Creative Commons to release content and free licenses
-in that Latin American country.<footnote><para>
+<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
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that
- something
-must be done to change where we are heading. The balance of
-this book maps what might be done.
+At least some who have read this far will agree with me that something
+must be done to change where we are heading. The balance of this book
+maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
it requires remaking how many people think about the very same issue.
</para>
<para>
-That means this movement must begin in the streets. It must
- recruit
-a significant number of parents, teachers, librarians, creators,
- authors,
-musicians, filmmakers, scientists—all to tell this story in their
-own words, and to tell their neighbors why this battle is so important.
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators,
+authors, musicians, filmmakers, scientists—all to tell this
+story in their own words, and to tell their neighbors why this battle
+is so important.
</para>
<para>
Once this movement has its effect in the streets, it has some hope of
<sect1 id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so
-far has been framed at the extremes—as a grand either/or: either
- property
-or anarchy, either total control or artists won't be paid. If that
- really
-is the choice, then the warriors should win.
+Common sense is with the copyright warriors because the debate so far
+has been framed at the extremes—as a grand either/or: either
+property or anarchy, either total control or artists won't be paid. If
+that really is the choice, then the warriors should win.
</para>
<para>
-The mistake here is the error of the excluded middle. There are
- extremes
-in this debate, but the extremes are not all that there is. There
-are those who believe in maximal copyright—"All Rights Reserved"—
-and those who reject copyright—"No Rights Reserved." The "All
-Rights Reserved" sorts believe that you should ask permission before
-you "use" a copyrighted work in any way. The "No Rights Reserved"
-sorts believe you should be able to do with content as you wish,
- regardless
-of whether you have permission or not.
+The mistake here is the error of the excluded middle. There are
+extremes in this debate, but the extremes are not all that there
+is. There are those who believe in maximal copyright—"All Rights
+Reserved"— and those who reject copyright—"No Rights
+Reserved." The "All Rights Reserved" sorts believe that you should ask
+permission before you "use" a copyrighted work in any way. The "No
+Rights Reserved" sorts believe you should be able to do with content
+as you wish, regardless of whether you have permission or not.
</para>
<para>
When the Internet was first born, its initial architecture effectively
tilted in the "no rights reserved" direction. Content could be copied
-perfectly and cheaply; rights could not easily be controlled. Thus,
- regardless
-of anyone's desire, the effective regime of copyright under the
+perfectly and cheaply; rights could not easily be controlled. Thus,
+regardless of anyone's desire, the effective regime of copyright under
+the
<!-- PAGE BREAK 282 -->
original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
- unprotected.
+"taken" regardless of the rights. Any rights were effectively
+unprotected.
</para>
<para>
This initial character produced a reaction (opposite, but not quite
equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
-design, copyright holders have been able to change the essential
- character
-of the environment of the original Internet. If the original
- architecture
-made the effective default "no rights reserved," the future
-architecture will make the effective default "all rights reserved." The
- architecture
-and law that surround the Internet's design will increasingly
-produce an environment where all use of content requires permission.
-The "cut and paste" world that defines the Internet today will become
-a "get permission to cut and paste" world that is a creator's nightmare.
+design, copyright holders have been able to change the essential
+character of the environment of the original Internet. If the original
+architecture made the effective default "no rights reserved," the
+future architecture will make the effective default "all rights
+reserved." The architecture and law that surround the Internet's
+design will increasingly produce an environment where all use of
+content requires permission. The "cut and paste" world that defines
+the Internet today will become a "get permission to cut and paste"
+world that is a creator's nightmare.
</para>
<para>
What's needed is a way to say something in the middle—neither "all
<sect2 id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
-If you step back from the battle I've been describing here, you will
- recognize
-this problem from other contexts. Think about privacy. Before
-the Internet, most of us didn't have to worry much about data about
-our lives that we broadcast to the world. If you walked into a bookstore
-and browsed through some of the works of Karl Marx, you didn't need
-to worry about explaining your browsing habits to your neighbors or
-boss. The "privacy" of your browsing habits was assured.
+If you step back from the battle I've been describing here, you will
+recognize this problem from other contexts. Think about
+privacy. Before the Internet, most of us didn't have to worry much
+about data about our lives that we broadcast to the world. If you
+walked into a bookstore and browsed through some of the works of Karl
+Marx, you didn't need to worry about explaining your browsing habits
+to your neighbors or boss. The "privacy" of your browsing habits was
+assured.
</para>
<para>
What made it assured?
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture for
-gathering data and hence a market constraint (cost) on anyone who
-wanted to gather that data. If you were a suspected spy for North
- Korea,
-working for the CIA, no doubt your privacy would not be assured.
-But that's because the CIA would (we hope) find it valuable enough to
-spend the thousands required to track you. But for most of us (again,
-we can hope), spying doesn't pay. The highly inefficient architecture of
-real space means we all enjoy a fairly robust amount of privacy. That
-privacy is guaranteed to us by friction. Not by law (there is no law
- protecting
-"privacy" in public places), and in many places, not by norms
-(snooping and gossip are just fun), but instead, by the costs that
- friction
-imposes on anyone who would want to spy.
+10, your privacy was assured because of an inefficient architecture
+for gathering data and hence a market constraint (cost) on anyone who
+wanted to gather that data. If you were a suspected spy for North
+Korea, working for the CIA, no doubt your privacy would not be
+assured. But that's because the CIA would (we hope) find it valuable
+enough to spend the thousands required to track you. But for most of
+us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount
+of privacy. That privacy is guaranteed to us by friction. Not by law
+(there is no law protecting "privacy" in public places), and in many
+places, not by norms (snooping and gossip are just fun), but instead,
+by the costs that friction imposes on anyone who would want to spy.
</para>
<indexterm><primary>Amazon</primary></indexterm>
<para>
It is this reality that explains the push of many to define "privacy"
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
- friction
-did.<footnote><para>
-<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
- Architecture
-of Privacy (What Larry Doesn't Get)," Stanford Technology Law
-Review 1 (2001): par. 6–18, available at
-<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
-which technology defines privacy policy). See also Jeffrey Rosen, The Naked
-Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
- Random
-House, 2004) (mapping tradeoffs between technology and privacy).
-</para></footnote>
- And whether you're in favor of those laws or not, it is the
- pattern
+friction did.<footnote><para>
+<!-- f1. -->
+
+See, for example, Marc Rotenberg, "Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+Law Review 1 (2001): par. 6–18, available at
+
+<ulink url="http://free-culture.cc/notes/">link #72</ulink>
+(describing examples in which technology defines privacy policy). See
+also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
+between technology and privacy).</para></footnote>
+And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
<!-- PAGE BREAK 284 -->
-kind of freedom that was passively provided before. A change in
- technology
-now forces those who believe in privacy to affirmatively act
-where, before, privacy was given by default.
+kind of freedom that was passively provided before. A change in
+technology now forces those who believe in privacy to affirmatively
+act where, before, privacy was given by default.
</para>
<para>
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
-commercially, the software—both the source code and the binaries—
-was free. You couldn't run a program written for a Data General
- machine
-on an IBM machine, so Data General and IBM didn't care much
-about controlling their software.
+commercially, the software—both the source code and the
+binaries— was free. You couldn't run a program written for a
+Data General machine on an IBM machine, so Data General and IBM didn't
+care much about controlling their software.
</para>
+<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
-That was the world Richard Stallman was born into, and while he
-was a researcher at MIT, he grew to love the community that
- developed
-when one was free to explore and tinker with the software that
-ran on machines. Being a smart sort himself, and a talented
- programmer,
-Stallman grew to depend upon the freedom to add to or modify
-other people's work.
-</para>
-<para>
-In an academic setting, at least, that's not a terribly radical idea. In
-a math department, anyone would be free to tinker with a proof that
-someone offered. If you thought you had a better way to prove a
- theorem,
-you could take what someone else did and change it. In a classics
-department, if you believed a colleague's translation of a recently
- discovered
-text was flawed, you were free to improve it. Thus, to Stallman,
-it seemed obvious that you should be free to tinker with and improve
-the code that ran a machine. This, too, was knowledge. Why shouldn't
-it be open for criticism like anything else?
+That was the world Richard Stallman was born into, and while he was a
+researcher at MIT, he grew to love the community that developed when
+one was free to explore and tinker with the software that ran on
+machines. Being a smart sort himself, and a talented programmer,
+Stallman grew to depend upon the freedom to add to or modify other
+people's work.
+</para>
+<para>
+In an academic setting, at least, that's not a terribly radical
+idea. In a math department, anyone would be free to tinker with a
+proof that someone offered. If you thought you had a better way to
+prove a theorem, you could take what someone else did and change
+it. In a classics department, if you believed a colleague's
+translation of a recently discovered text was flawed, you were free to
+improve it. Thus, to Stallman, it seemed obvious that you should be
+free to tinker with and improve the code that ran a machine. This,
+too, was knowledge. Why shouldn't it be open for criticism like
+anything else?
</para>
<para>
No one answered that question. Instead, the architecture of revenue
-for computing changed. As it became possible to import programs
-from one system to another, it became economically attractive (at least
-in the view of some) to hide the code of your program. So, too, as
- companies
-started selling peripherals for mainframe systems. If I could just
-take your printer driver and copy it, then that would make it easier for
-me to sell a printer to the market than it was for you.
+for computing changed. As it became possible to import programs from
+one system to another, it became economically attractive (at least in
+the view of some) to hide the code of your program. So, too, as
+companies started selling peripherals for mainframe systems. If I
+could just take your printer driver and copy it, then that would make
+it easier for me to sell a printer to the market than it was for you.
</para>
<para>
Thus, the practice of proprietary code began to spread, and by the
early 1980s, Stallman found himself surrounded by proprietary code.
<!-- PAGE BREAK 285 -->
-The world of free software had been erased by a change in the
- economics
-of computing. And as he believed, if he did nothing about it,
-then the freedom to change and share software would be
- fundamentally
-weakened.
+The world of free software had been erased by a change in the
+economics of computing. And as he believed, if he did nothing about
+it, then the freedom to change and share software would be
+fundamentally weakened.
</para>
<para>
-Therefore, in 1984, Stallman began a project to build a free
- operating
+Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
</para>
<para>
Stallman's technique was to use copyright law to build a world of
-software that must be kept free. Software licensed under the Free
- Software
-Foundation's GPL cannot be modified and distributed unless the
-source code for that software is made available as well. Thus, anyone
-building upon GPL'd software would have to make their buildings free
-as well. This would assure, Stallman believed, that an ecology of code
-would develop that remained free for others to build upon. His
- fundamental
-goal was freedom; innovative creative code was a byproduct.
+software that must be kept free. Software licensed under the Free
+Software Foundation's GPL cannot be modified and distributed unless
+the source code for that software is made available as well. Thus,
+anyone building upon GPL'd software would have to make their buildings
+free as well. This would assure, Stallman believed, that an ecology of
+code would develop that remained free for others to build upon. His
+fundamental goal was freedom; innovative creative code was a
+byproduct.
</para>
<para>
Stallman was thus doing for software what privacy advocates now
<para>
But we're a long way away from whittling the problem down to this
subset of type A sharers. And our focus until we're there should not be
-on finding ways to break the Internet. Our focus until we're there
+on finding ways to break the Internet. Our focus until we're there
<!-- PAGE BREAK 309 -->
should be on how to make sure the artists are paid, while protecting the
projects / text-free-culture-lessig.git / blobdiff