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</author>
</authorgroup>
-<copyright>
- <year>2004</year>
- <holder>Lawrence Lessig</holder>
-</copyright>
-
+<!-- <subjectset> and cover <mediaobject> Based on example from
+ http://jfearn.fedorapeople.org/en-US/Publican/2.7/html/Users_Guide/chap-Users_Guide-Creating_a_document.html
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+ <subjectset scheme="libraryofcongress">
+ <subject>
+ <subjectterm>Intellectual property—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Mass media—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Technological innovations—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Art—United States.</subjectterm>
+ </subject>
+ </subjectset>
+
+
+ <publisher>
+ <publishername>The Penguin Press</publishername>
+ <address><city>New York</city></address>
+ </publisher>
+
+ <copyright>
+ <year>2004</year>
+ <holder>Lawrence Lessig</holder>
+ </copyright>
<legalnotice>
- <para>
+ <para>
+ <inlinemediaobject>
+ <imageobject>
+ <imagedata fileref="images/cc.png" contentdepth="3em" width="100%" align="center"/>
+ </imageobject>
+ <imageobject>
+ <imagedata fileref="images/cc.svg" contentdepth="3em" width="100%" align="center"/>
+ </imageobject>
+ <textobject>
+ <phrase>Creative Commons, Some rights reserved</phrase>
+ </textobject>
+ </inlinemediaobject>
+ </para>
+
+ <para>
This version of <citetitle>Free Culture</citetitle> is licensed under
a Creative Commons license. This license permits non-commercial use of
this work, so long as attribution is given. For more information
about the license, click the icon above, or visit
<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
- </para>
+ </para>
</legalnotice>
<abstract>
<title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
-(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
+(<ulink url="http://www.lessig.org">http://www.lessig.org</ulink>),
professor of law and a John A. Wilson Distinguished Faculty Scholar
at Stanford Law School, is founder of the Stanford Center for Internet
and Society and is chairman of the Creative Commons
-(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
+(<ulink url="http://creativecommons.org">http://creativecommons.org</ulink>).
The author of The Future of Ideas (Random House, 2001) and Code: And
Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
the boards of the Public Library of Science, the Electronic Frontier
Appeals.
</para>
</abstract>
-</bookinfo>
-<colophon>
-<!-- PAGE BREAK 1 -->
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+ </mediaobject>
+
+ <biblioid class="isbn">1-59420-006-8</biblioid>
+<!-- LCCN from
+ http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page
+ -->
+ <biblioid class="libraryofcongress">2003063276</biblioid>
+
+</bookinfo>
+<!-- PAGE BREAK 1 -->
+<dedication id="salespoints">
+<title></title>
<para>
You can buy a copy of this book by clicking on one of the links below:
</para>
<listitem><para><ulink url="http://www.penguin.com/">Penguin</ulink></para></listitem>
<!-- <ulink url="">Local Bookstore</ulink> -->
</itemizedlist>
+</dedication>
<!-- PAGE BREAK 2 -->
-
<!-- PAGE BREAK 3 -->
+<dedication id="alsobylessig">
+<title></title>
<para>
ALSO BY LAWRENCE LESSIG
</para>
<para>
Code: And Other Laws of Cyberspace
</para>
-
+</dedication>
<!-- PAGE BREAK 4 -->
+<dedication id="frontpublisher">
+<title></title>
<para>
THE PENGUIN PRESS, NEW YORK
</para>
-
+</dedication>
<!-- PAGE BREAK 5 -->
+<dedication id="frontbookinfo">
+<title></title>
<para>
FREE CULTURE
</para>
<para>
LAWRENCE LESSIG
</para>
-
+</dedication>
<!-- PAGE BREAK 6 -->
+<colophon>
<para>
THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New
York, New York
<para>
ISBN 1-59420-006-8 (hardcover)
</para>
+
<para>
1. Intellectual property—United States. 2. Mass media—United States.
</para>
retrieval system, or transmitted, in any form or by any means
(electronic, mechanical, photocopying, recording or otherwise),
without the prior written permission of both the copyright owner and
-the above publisher of this book. The scanning, uploading, and
-distribution of this book via the Internet or via any other means
-without the permission of the publisher is illegal and punishable by
-law. Please purchase only authorized electronic editions and do not
-participate in or encourage electronic piracy of copyrighted
-materials. Your support of the author's rights is appreciated.
+the above publisher of this book.
+</para>
+<para>
+The scanning, uploading, and distribution of this book via the
+Internet or via any other means without the permission of the
+publisher is illegal and punishable by law. Please purchase only
+authorized electronic editions and do not participate in or encourage
+electronic piracy of copyrighted materials. Your support of the
+author's rights is appreciated.
</para>
</colophon>
<!-- PAGE BREAK 7 -->
-<dedication>
+<dedication><title></title>
<para>
To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
</para>
-
-<para>
-<figure id="CreativeCommons">
-<title>Creative Commons, Some rights reserved</title>
-<graphic fileref="images/cc.png"></graphic>
-</figure>
-</para>
</dedication>
<toc id="toc"></toc>
<!-- PAGE BREAK 15 -->
<!-- PAGE BREAK 16 -->
-<chapter id="c-introduction">
+<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
<para>
On December 17, 1903, on a windy North Carolina beach for just
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was crumpled
+sounded like a glass of water being poured. … A paper was crumpled
and torn; it sounded like paper and not like a crackling forest
-fire. . . . Sousa marches were played from records and a piano solo
-and guitar number were performed. . . . The music was projected with a
+fire. … Sousa marches were played from records and a piano solo
+and guitar number were performed. … The music was projected with a
live-ness rarely if ever heard before from a radio "music
box."<footnote><para>
Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
The forces for FM, largely engineering, could not overcome the weight
of strategy devised by the sales, patent, and legal offices to subdue
this threat to corporate position. For FM, if allowed to develop
-unrestrained, posed . . . a complete reordering of radio power
-. . . and the eventual overthrow of the carefully restricted AM system
+unrestrained, posed … a complete reordering of radio power
+… and the eventual overthrow of the carefully restricted AM system
on which RCA had grown to power.<footnote><para>Lessing, 226.
</para></footnote>
</para>
street corners telling stories that kids and others consumed, that was
noncommercial culture. When Noah Webster published his "Reader," or
Joel Barlow his poetry, that was commercial culture.
+<indexterm><primary>Barlow, Joel</primary></indexterm>
+<indexterm><primary>Webster, Noah</primary></indexterm>
</para>
<para>
At the beginning of our history, and for just about the whole of our
more expense of doing business.
</para>
<indexterm><primary>Florida, Richard</primary></indexterm>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
<para>
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
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>
+be seeing, as Richard Florida writes, the "Rise of the Creative
+Class."<footnote>
<para>
<!-- f4 -->
-In <citetitle>The Rise of the Creative Class</citetitle> (New York: Basic Books, 2002),
-Richard Florida documents a shift in the nature of labor toward a
-labor of creativity. His work, however, doesn't directly address the
-legal conditions under which that creativity is enabled or stifled. I
-certainly agree with him about the importance and significance of this
-change, but I also believe the conditions under which it will be
-enabled are much more tenuous.
+In <citetitle>The Rise of the Creative Class</citetitle> (New York:
+Basic Books, 2002), Richard Florida documents a shift in the nature of
+labor toward a labor of creativity. His work, however, doesn't
+directly address the legal conditions under which that creativity is
+enabled or stifled. I certainly agree with him about the importance
+and significance of this change, but I also believe the conditions
+under which it will be enabled are much more tenuous.
+
<indexterm><primary>Florida, Richard</primary></indexterm>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
</partintro>
<!-- PAGE BREAK 34 -->
-<chapter id="creators">
+<chapter label="1" id="creators">
<title>CHAPTER ONE: Creators</title>
<para>
In 1928, a cartoon character was born. An early Mickey Mouse
the view of many, it is precisely because it exists that Japanese manga
flourish. As American graphic novelist Judd Winick said to me, "The
early days of comics in America are very much like what's going on
-in Japan now. . . . American comics were born out of copying each
+in Japan now. … American comics were born out of copying each
<!-- PAGE BREAK 40 -->
-other. . . . That's how [the artists] learn to draw—by going into comic
+other. … That's how [the artists] learn to draw—by going into comic
books and not tracing them, but looking at them and copying them"
and building from them.<footnote><para>
<!-- f5 -->
<!-- PAGE BREAK 44 -->
</chapter>
-<chapter id="mere-copyists">
+<chapter label="2" id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
-<indexterm><primary>Daguerre, Louis</primary></indexterm>
+<indexterm id="idxphotography" class='startofrange'>
+ <primary>photography</primary>
+</indexterm>
<para>
In 1839, Louis Daguerre invented the first practical technology for
producing what we would call "photographs." Appropriately enough, they
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.)
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
</para>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
taking of a picture from its developing. These were still plates of
glass, and thus it was still not a process within reach of most
amateurs.
+<indexterm><primary>Talbot, William</primary></indexterm>
</para>
<indexterm id="idxeastmangeorge" class='startofrange'>
<primary>Eastman, George</primary>
<!-- f1 -->
Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in <citetitle>The Kodak Primer</citetitle>:
+<indexterm><primary>Kodak Primer, The (Eastman)</primary></indexterm>
</para>
<blockquote>
<para>
The principle of the Kodak system is the separation of the work that
any person whomsoever can do in making a photograph, from the work
-that only an expert can do. . . . We furnish anybody, man, woman or
+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,
popular photography. Eastman's camera first went on sale in 1888; one
year later, Kodak was printing more than six thousand negatives a day.
From 1888 through 1909, while industrial production was rising by 4.7
-percent, photographic equipment and material sales increased by
+percent, photographic equipment and material sales increased by 11
percent.<footnote><para>
<!-- f3 -->
Jenkins, 177.
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
+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>
learn.
</para>
<indexterm startref="idxeastmangeorge" class='endofrange'/>
+<indexterm startref="idxphotography" class='endofrange'/>
<para>
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
+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."
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
+about "the placement of objects, color, … rhythm, pacing, and
texture."<footnote>
<para>
<!-- f11 -->
can do, let's talk about this issue. Play for me music that you think
reflects that, or show me images that you think reflect that, or draw
for me something that reflects that." Not by giving a kid a video
-camera and . . . saying, "Let's go have fun with the video camera and
+camera and … saying, "Let's go have fun with the video camera and
make a little movie." But instead, really help you take these elements
that you understand, that are your language, and construct meaning
-about the topic. . . .
+about the topic.…
</para>
<para>
That empowers enormously. And then what happens, of
</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is "human learning and . . . the
-creation of knowledge ecologies for creating . . . innovation."
+His work, as his Web site describes it, is "human learning and … the
+creation of knowledge ecologies for creating … innovation."
</para>
<para>
Brown thus looks at these technologies of digital creativity a bit
</para>
<para>
This opportunity creates a "completely new kind of learning platform,"
-as Brown describes. "As soon as you start doing that, you . . .
+as Brown describes. "As soon as you start doing that, you …
unleash a free collage on the community, so that other people can
start looking at your code, tinkering with it, trying it out, seeing
if they can improve it." Each effort is a kind of
They are code." Kids are "shifting to the ability to tinker in the
abstract, and this tinkering is no longer an isolated activity that
you're doing in your garage. You are tinkering with a community
-platform. . . . You are tinkering with other people's stuff. The more
+platform. … You are tinkering with other people's stuff. The more
you tinker the more you improve." The more you improve, the more you
learn.
</para>
it, "the Web [is] the first medium that truly honors multiple forms of
intelligence." Earlier technologies, such as the typewriter or word
processors, helped amplify text. But the Web amplifies much more than
-text. "The Web . . . says if you are musical, if you are artistic, if
-you are visual, if you are interested in film . . . [then] there is a
+text. "The Web … says if you are musical, if you are artistic, if
+you are visual, if you are interested in film … [then] there is a
lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
</para>
<para>
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter
-10) has developed a powerful argument in favor of the "right to
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>)
+has developed a powerful argument in favor of the "right to
tinker" as it applies to computer science and to knowledge in
general.<footnote><para>
<!-- f22 -->
<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
+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>
<para>
"No way to run a culture," as Brewster Kahle, whom we'll meet in
-chapter 9, quipped to me in a rare moment of despondence.
+chapter <xref xrefstyle="select: labelnumber" linkend="collectors"/>,
+quipped to me in a rare moment of despondence.
</para>
<!-- PAGE BREAK 61 -->
</chapter>
-<chapter id="catalogs">
+<chapter label="3" id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
+<indexterm><primary>RPI</primary><see>Rensselaer Polytechnic Institute (RPI)</see></indexterm>
+<indexterm id="idxrensselaer" class='startofrange'>
+ <primary>Rensselaer Polytechnic Institute (RPI)</primary>
+</indexterm>
<para>
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
</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
+wrong. … I don't think there's anything wrong with the search
+engine that I ran or … what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of
pirates. I just modified the search engine in a way that would make it
easier to use"—again, a <emphasis>search engine</emphasis>,
(2003): 5, available at 2003 WL 55179443.
</para></footnote>
</para>
+<indexterm startref="idxrensselaer" class='endofrange'/>
<para>
Jesse called his parents. They were supportive but a bit frightened.
An uncle was a lawyer. He began negotiations with the RIAA. They
<blockquote>
<para>
I was definitely not an activist [before]. I never really meant to be
-an activist. . . . [But] I've been pushed into this. In no way did I
+an activist. … [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
absurd what the RIAA has done.
</para>
<para>
Jesse's parents betray a certain pride in their reluctant activist. As
his father told me, Jesse "considers himself very conservative, and so do
-I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
+I. … He's not a tree hugger. … I think it's bizarre that they would
pick on him. But he wants to let people know that they're sending the
wrong message. And he wants to correct the record."
</para>
<!-- PAGE BREAK 66 -->
</chapter>
-<chapter id="pirates">
+<chapter label="4" id="pirates">
<title>CHAPTER FOUR: "Pirates"</title>
<para>
If "piracy" means using the creative property of others without
the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159. </para></footnote>
+<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para>
The record industry was born of another kind of piracy, though to see
how requires a bit of detail about the way the law regulates music.
</para>
+<indexterm id="idxfourneauxhenri" class='startofrange'>
+ <primary>Fourneaux, Henri</primary>
+</indexterm>
+<indexterm><primary>Russel, Phil</primary></indexterm>
<para>
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
then, I could effectively pirate someone else's song without paying
its composer anything.
</para>
+<indexterm startref="idxfourneauxhenri" class='endofrange'/>
<para>
The composers (and publishers) were none too happy about
<!-- PAGE BREAK 69 -->
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para>
<blockquote>
<para>
of South Dakota, chairman), reprinted in <citetitle>Legislative History of the
Copyright Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
+<indexterm><primary>American Graphophone Company</primary></indexterm>
</para>
<para>
The law soon resolved this battle in favor of the composer
</para>
<indexterm><primary>Anello, Douglas</primary></indexterm>
<indexterm><primary>Burdick, Quentin</primary></indexterm>
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
(statement of Rosel H. Hyde, chairman of the Federal Communications
Commission).
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
</para></footnote>
There may have been a "public interest" in spreading the reach of cable
TV, but as Douglas Anello, general counsel to the National Association
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
<para>
These were "free-ride[rs]," Screen Actor's Guild president Charlton
Heston said, who were "depriving actors of
<!-- f17 -->
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
-</para></footnote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
+</para>
+</footnote>
</para>
<para>
But again, there was another side to the debate. As Assistant Attorney
Our point here is that unlike the problem of whether you have any
copyright protection at all, the problem here is whether copyright
holders who are already compensated, who already have a monopoly,
-should be permitted to extend that monopoly. . . . The
+should be permitted to extend that monopoly. … The
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
</para></footnote>
— then <emphasis>every</emphasis> industry affected by copyright
today is the product and beneficiary of a certain kind of
-piracy. Film, records, radio, cable TV. . . . The list is long and
+piracy. Film, records, radio, cable TV. … The list is long and
could well be expanded. Every generation welcomes the pirates from the
last. Every generation—until now.
</para>
<!-- PAGE BREAK 75 -->
</section>
</chapter>
-<chapter id="piracy">
+<chapter label="5" id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
There is piracy of copyrighted material. Lots of it. This piracy comes
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: Amacom, 2002),
-144–90. "In some instances . . . the impact of piracy on the
+144–90. "In some instances … the impact of piracy on the
copyright holder's ability to appropriate the value of the work will
be negligible. One obvious instance is the case where the individual
engaging in pirating would not have purchased an original even if
Microsoft Windows, the Chinese used the free GNU/Linux operating
system, then these Chinese users would not eventually be buying
Microsoft. Without piracy, then, Microsoft would lose.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
<indexterm>
<primary>Microsoft</primary>
what—at least ordinarily. And if the law properly balances the
rights of the copyright owner with the rights of access, then
violating the law is still wrong.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Internet Explorer</primary></indexterm>
+<indexterm><primary>Netscape</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
<para>
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+turnaround. "In the end," Cap Gemini concludes, "the `crisis' … was
not the fault of the tapers—who did not [stop after MTV came into
<!-- PAGE BREAK 83 -->
being]—but had to a large extent resulted from stagnation in musical
<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
+legal and good. And like the piracy I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="pirates"/>, much of
this piracy is motivated by a new way of spreading content caused by
changes in the technology of distribution. Thus, consistent with the
tradition that gave us Hollywood, radio, the recording industry, and
<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir.
1981).
</para></footnote>
+<indexterm><primary>Kozinski, Alex</primary></indexterm>
</para>
<para>
But the Supreme Court reversed the decision of the Ninth Circuit.
together, a pattern is clear:
</para>
-<table id="t1">
-<title>Table</title>
+<informaltable id="t1">
<tgroup cols="4" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
In each case throughout our history, a new technology changed the
</partintro>
<!-- PAGE BREAK 96 -->
-<chapter id="founders">
+<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
+<indexterm><primary>Henry V</primary></indexterm>
<para>
William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
was first published in 1597. It was the eleventh major play that
<para>
So, for example, even if the copyright to Shakespeare's works were
perpetual, all that would have meant under the original meaning of the
-term was that no one could reprint Shakespeare's work without the
- permission
-of the Shakespeare estate. It would not have controlled
- anything,
-for example, about how the work could be performed, whether
+term was that no one could reprint Shakespeare's work without the
+permission of the Shakespeare estate. It would not have controlled
+anything, for example, about how the work could be performed, whether
the work could be translated, or whether Kenneth Branagh would be
-allowed to make his films. The "copy-right" was only an exclusive right
-to print—no less, of course, but also no more.
+allowed to make his films. The "copy-right" was only an exclusive
+right to print—no less, of course, but also no more.
</para>
+<indexterm><primary>Henry VIII, King of England</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
-They had had a long and ugly experience with "exclusive rights,"
- especially
-"exclusive rights" granted by the Crown. The English had fought
-a civil war in part about the Crown's practice of handing out
- monopolies—especially
-monopolies for works that already existed. King Henry
-VIII granted a patent to print the Bible and a monopoly to Darcy to
-print playing cards. The English Parliament began to fight back
-against this power of the Crown. In 1656, it passed the Statute of
- Monopolies,
-limiting monopolies to patents for new inventions. And by
-1710, Parliament was eager to deal with the growing monopoly in
-publishing.
-</para>
-<para>
-Thus the "copy-right," when viewed as a monopoly right, was
- naturally
-viewed as a right that should be limited. (However convincing
-the claim that "it's my property, and I should have it forever," try
+They had had a long and ugly experience with "exclusive rights,"
+especially "exclusive rights" granted by the Crown. The English had
+fought a civil war in part about the Crown's practice of handing out
+monopolies—especially monopolies for works that already
+existed. King Henry VIII granted a patent to print the Bible and a
+monopoly to Darcy to print playing cards. The English Parliament began
+to fight back against this power of the Crown. In 1656, it passed the
+Statute of Monopolies, limiting monopolies to patents for new
+inventions. And by 1710, Parliament was eager to deal with the growing
+monopoly in publishing.
+</para>
+<para>
+Thus the "copy-right," when viewed as a monopoly right, was naturally
+viewed as a right that should be limited. (However convincing the
+claim that "it's my property, and I should have it forever," try
sounding convincing when uttering, "It's my monopoly, and I should
-have it forever.") The state would protect the exclusive right, but only
-so long as it benefited society. The British saw the harms from
- specialinterest
-favors; they passed a law to stop them.
+have it forever.") The state would protect the exclusive right, but
+only so long as it benefited society. The British saw the harms from
+specialinterest favors; they passed a law to stop them.
</para>
<para>
Second, about booksellers. It wasn't just that the copyright was a
This was a clever argument, and one that had the support of some of
the leading jurists of the day. It also displayed extraordinary
chutzpah. Until then, as law professor Raymond Patterson has put it,
-"The publishers . . . had as much concern for authors as a cattle
+"The publishers … had as much concern for authors as a cattle
rancher has for cattle."<footnote><para>
<!-- f6 -->
Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," <citetitle>Vanderbilt
<!-- f8 -->
Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard University Press,
1993), 92.
+<indexterm><primary>Rose, Mark</primary></indexterm>
</para></footnote>
Donaldson's publishing house prospered
<!-- PAGE BREAK 102 -->
<!-- f9 -->
Ibid., 93.
</para></footnote>
+<indexterm><primary>Boswell, James</primary></indexterm>
<indexterm><primary>Erskine, Andrew</primary></indexterm>
</para>
<para>
</para>
<blockquote>
<para>
-By the above decision . . . near 200,000 pounds worth of what was
+By the above decision … near 200,000 pounds worth of what was
honestly purchased at public sale, and which was yesterday thought
property is now reduced to nothing. The Booksellers of London and
Westminster, many of whom sold estates and houses to purchase
</para>
<!-- PAGE BREAK 106 -->
</chapter>
-<chapter id="recorders">
+<chapter label="7" id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
<para>
Jon Else is a filmmaker. He is best known for his documentaries and
</para>
<para>
Then, as Else told me, "two things happened. First we discovered
-. . . that Matt Groening doesn't own his own creation—or at
+… that Matt Groening doesn't own his own creation—or at
least that someone [at Fox] believes he doesn't own his own creation."
And second, Fox "wanted ten thousand dollars as a licensing fee for us
-to use this four-point-five seconds of . . . entirely unsolicited
+to use this four-point-five seconds of … entirely unsolicited
<citetitle>Simpsons</citetitle> which was in the corner of the shot."
</para>
<para>
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
-explained to her, "There must be some mistake here. . . . We're
+explained to her, "There must be some mistake here. … We're
asking for your educational rate on this." That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
<listitem><para>
<!-- 3. -->
I did, in fact, speak with one of your colleagues at Stanford Law
-School . . . who confirmed that it was fair use. He also confirmed
+School … who confirmed that it was fair use. He also confirmed
that Fox would "depose and litigate you to within an inch of your
life," regardless of the merits of my claim. He made clear that it
would boil down to who had the bigger legal department and the deeper
</para>
<!-- PAGE BREAK 111 -->
</chapter>
-<chapter id="transformers">
+<chapter label="8" id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
<indexterm><primary>Alben, Alex</primary></indexterm>
the music, there's the screenplay, there's the director, there's the
actors." But we just broke it down. We just put it into its
constituent parts and said, "Okay, there's this many actors, this many
-directors, . . . this many musicians," and we just went at it very
+directors, … this many musicians," and we just went at it very
systematically and cleared the rights.
</para>
</blockquote>
has to be made?
</para>
<para>
-For, as he acknowledged, "very few . . . have the time and resources,
+For, as he acknowledged, "very few … have the time and resources,
and the will to do this," and thus, very few such works would ever be
made. Does it make sense, I asked him, from the standpoint of what
anybody really thought they were ever giving rights for originally, that
<blockquote>
<para>
I don't think so. When an actor renders a performance in a movie,
-he or she gets paid very well. . . . And then when 30 seconds of
+he or she gets paid very well. … And then when 30 seconds of
that performance is used in a new product that is a retrospective
-of somebody's career, I don't think that that person . . . should be
+of somebody's career, I don't think that that person … should be
compensated for that.
</para>
</blockquote>
</para>
<!-- PAGE BREAK 119 -->
</chapter>
-<chapter id="collectors">
+<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
<para>
In April 1996, millions of "bots"—computer codes designed to
just a graduate student?" As Kahle put it,
</para>
<blockquote>
+<indexterm><primary>Quayle, Dan</primary></indexterm>
<para>
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
original back and forth exchanges between the two, the
<!-- PAGE BREAK 122 -->
-<citetitle>60 Minutes</citetitle> episode that came out after it . . . it would be almost
-impossible. . . . Those materials are almost unfindable. . . .
+<citetitle>60 Minutes</citetitle> episode that came out after it … it would be almost
+impossible. … Those materials are almost unfindable. …
</para>
</blockquote>
<para>
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
-movies, . . . and about one to two million movies [distributed] during
+movies, … and about one to two million movies [distributed] during
the twentieth century. There are about twenty-six million different
titles of books. All of these would fit on computers that would fit in
this room and be able to be afforded by a small company. So we're at
a turning point in our history. Universal access is the goal. And the
opportunity of leading a different life, based on this, is
-. . . thrilling. It could be one of the things humankind would be most
+… thrilling. It could be one of the things humankind would be most
proud of. Up there with the Library of Alexandria, putting a man on
the moon, and the invention of the printing press.
</para>
</para>
<!-- PAGE BREAK 127 -->
</chapter>
-<chapter id="property-i">
+<chapter label="10" id="property-i">
<title>CHAPTER TEN: "Property"</title>
<para>
Jack Valenti has been the president of the Motion Picture Association
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
<indexterm><primary>Johnson, Lyndon</primary></indexterm>
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The MPAA is the American branch of the international Motion Picture
the government to get into the business of regulating speech
markets. The risks and dangers of that game are precisely why our
framers created the First Amendment to our Constitution: "Congress
-shall make no law . . . abridging the freedom of speech." So when
+shall make no law … abridging the freedom of speech." So when
Congress is being asked to pass laws that would "abridge" the freedom
of speech, it should ask— carefully—whether such
regulation is justified.
</para>
<para>
The Progress Clause expressly limits the term of copyrights. As we saw
-in chapter 6, the English limited the term of copyright so as to
-assure that a few would not exercise disproportionate control over
-culture by exercising disproportionate control over publishing. We can
-assume the framers followed the English for a similar purpose. Indeed,
-unlike the English, the framers reinforced that objective, by
-requiring that copyrights extend "to Authors" only.
+in chapter <xref xrefstyle="select: labelnumber" linkend="founders"/>,
+the English limited the term of copyright so as to assure that a few
+would not exercise disproportionate control over culture by exercising
+disproportionate control over publishing. We can assume the framers
+followed the English for a similar purpose. Indeed, unlike the
+English, the framers reinforced that objective, by requiring that
+copyrights extend "to Authors" only.
</para>
<para>
The design of the Progress Clause reflects something about the
all—they believe that our law, as the framers penned it, should
not protect derivative rights at all.<footnote><para>
<!-- f14 -->
-Jonathan Zittrain, "The Copyright Cage," <citetitle>Legal Affairs</citetitle>, July/August
-2003, available at
+Jonathan Zittrain, "The Copyright Cage," <citetitle>Legal
+Affairs</citetitle>, July/August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
about the difference that copyright law should draw (from the
perspective of the First Amendment) between mere "copies" and
derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
-Copyright's Constitutionality," <citetitle>Yale Law Journal</citetitle> 112 (2002):
-1–60 (see especially pp. 53–59).
+Copyright's Constitutionality," <citetitle>Yale Law
+Journal</citetitle> 112 (2002): 1–60 (see especially
+pp. 53–59).
+<indexterm><primary>Rubenfeld, Jeb</primary></indexterm>
</para></footnote>
-These two different uses of my creative work are
-treated the same.
+These two different uses of my creative work are treated the same.
</para>
<para>
-This again may seem right to you. If I wrote a book, then why
-should you be able to write a movie that takes my story and makes
-money from it without paying me or crediting me? Or if Disney
- creates
-a creature called "Mickey Mouse," why should you be able to make
-Mickey Mouse toys and be the one to trade on the value that Disney
-originally created?
+This again may seem right to you. If I wrote a book, then why should
+you be able to write a movie that takes my story and makes money from
+it without paying me or crediting me? Or if Disney creates a creature
+called "Mickey Mouse," why should you be able to make Mickey Mouse
+toys and be the one to trade on the value that Disney originally
+created?
</para>
<para>
These are good arguments, and, in general, my point is not that the
-derivative right is unjustified. My aim just now is much narrower:
- simply
-to make clear that this expansion is a significant change from the
-rights originally granted.
+derivative right is unjustified. My aim just now is much narrower:
+simply to make clear that this expansion is a significant change from
+the rights originally granted.
</para>
</section>
<section id="lawreach">
Internet should at least force us to rethink the conditions under which
the law of copyright automatically applies,<footnote><para>
<!-- f17 -->
-Thus, my argument is not that in each place that copyright law extends,
-we should repeal it. It is instead that we should have a good argument for
-its extending where it does, and should not determine its reach on the
- basis
-of arbitrary and automatic changes caused by technology.
+Thus, my argument is not that in each place that copyright law
+extends, we should repeal it. It is instead that we should have a good
+argument for its extending where it does, and should not determine its
+reach on the basis of arbitrary and automatic changes caused by
+technology.
</para></footnote>
because it is clear that the
current reach of copyright was never contemplated, much less chosen,
<graphic fileref="images/1541.png"></graphic>
</figure>
<para>
-These are uses that themselves involve copying, but which the law treats
-as unregulated because public policy demands that they remain
- unregulated.
-You are free to quote from this book, even in a review that
-is quite negative, without my permission, even though that quoting
-makes a copy. That copy would ordinarily give the copyright owner the
-exclusive right to say whether the copy is allowed or not, but the law
-denies the owner any exclusive right over such "fair uses" for public
-policy (and possibly First Amendment) reasons.
+These are uses that themselves involve copying, but which the law
+treats as unregulated because public policy demands that they remain
+unregulated. You are free to quote from this book, even in a review
+that is quite negative, without my permission, even though that
+quoting makes a copy. That copy would ordinarily give the copyright
+owner the exclusive right to say whether the copy is allowed or not,
+but the law denies the owner any exclusive right over such "fair uses"
+for public policy (and possibly First Amendment) reasons.
</para>
<figure id="fig-1542">
<title>Unregulated copying considered "fair uses."</title>
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.<footnote><para>
<!-- f18 -->
-I don't mean "nature" in the sense that it couldn't be different, but rather that
-its present instantiation entails a copy. Optical networks need not make
-copies of content they transmit, and a digital network could be designed to
-delete anything it copies so that the same number of copies remain.
-</para></footnote>
-And because of this single,
-arbitrary feature of the design of a digital network, the scope of
- category
-1 changes dramatically. Uses that before were presumptively
- unregulated
-are now presumptively regulated. No longer is there a set of
-presumptively unregulated uses that define a freedom associated with a
-copyrighted work. Instead, each use is now subject to the copyright,
-because each use also makes a copy—category 1 gets sucked into
- category
-2. And those who would defend the unregulated uses of
- copyrighted
-work must look exclusively to category 3, fair uses, to bear the
-burden of this shift.
+I don't mean "nature" in the sense that it couldn't be different, but
+rather that its present instantiation entails a copy. Optical networks
+need not make copies of content they transmit, and a digital network
+could be designed to delete anything it copies so that the same number
+of copies remain.
+</para></footnote>
+And because of this single, arbitrary feature of the design of a
+digital network, the scope of category 1 changes dramatically. Uses
+that before were presumptively unregulated are now presumptively
+regulated. No longer is there a set of presumptively unregulated uses
+that define a freedom associated with a copyrighted work. Instead,
+each use is now subject to the copyright, because each use also makes
+a copy—category 1 gets sucked into category 2. And those who
+would defend the unregulated uses of copyrighted work must look
+exclusively to category 3, fair uses, to bear the burden of this
+shift.
</para>
<para>
So let's be very specific to make this general point clear. Before the
book. Copyright law would have nothing to say about whether you read
the book once, ten times, or every
<!-- PAGE BREAK 155 -->
-night before you went to bed. None of those instances of use—reading—
-could be regulated by copyright law because none of those uses
- produced
-a copy.
+night before you went to bed. None of those instances of
+use—reading— could be regulated by copyright law because
+none of those uses produced a copy.
</para>
<para>
But the same book as an e-book is effectively governed by a different
Third, this shift from category 1 to category 2 puts an extraordinary
<!-- PAGE BREAK 156 -->
-burden on category 3 ("fair use") that fair use never before had to bear.
-If a copyright owner now tried to control how many times I could read
-a book on-line, the natural response would be to argue that this is a
-violation of my fair use rights. But there has never been any litigation
-about whether I have a fair use right to read, because before the
- Internet,
-reading did not trigger the application of copyright law and hence
-the need for a fair use defense. The right to read was effectively
- protected
-before because reading was not regulated.
+burden on category 3 ("fair use") that fair use never before had to
+bear. If a copyright owner now tried to control how many times I
+could read a book on-line, the natural response would be to argue that
+this is a violation of my fair use rights. But there has never been
+any litigation about whether I have a fair use right to read, because
+before the Internet, reading did not trigger the application of
+copyright law and hence the need for a fair use defense. The right to
+read was effectively protected before because reading was not
+regulated.
</para>
<para>
This point about fair use is totally ignored, even by advocates for
the trailers on tape, and sold the tapes to the retail stores.
</para>
<para>
-The company did this for about fifteen years. Then, in 1997, it
- began
-to think about the Internet as another way to distribute these
- previews.
-The idea was to expand their "selling by sampling" technique by
-giving on-line stores the same ability to enable "browsing." Just as in a
-bookstore you can read a few pages of a book before you buy the book,
-so, too, you would be able to sample a bit from the movie on-line
- before
-you bought it.
+The company did this for about fifteen years. Then, in 1997, it began
+to think about the Internet as another way to distribute these
+previews. The idea was to expand their "selling by sampling"
+technique by giving on-line stores the same ability to enable
+"browsing." Just as in a bookstore you can read a few pages of a book
+before you buy the book, so, too, you would be able to sample a bit
+from the movie on-line before you bought it.
</para>
<para>
-In 1998, Video Pipeline informed Disney and other film
- distributors
+In 1998, Video Pipeline informed Disney and other film distributors
that it intended to distribute the trailers through the Internet
(rather than sending the tapes) to distributors of their videos. Two
years later, Disney told Video Pipeline to stop. The owner of Video
<!-- PAGE BREAK 157 -->
Pipeline asked Disney to talk about the matter—he had built a
- business
-on distributing this content as a way to help sell Disney films; he
-had customers who depended upon his delivering this content. Disney
-would agree to talk only if Video Pipeline stopped the distribution
- immediately.
-Video Pipeline thought it was within their "fair use" rights
-to distribute the clips as they had. So they filed a lawsuit to ask the
-court to declare that these rights were in fact their rights.
+business on distributing this content as a way to help sell Disney
+films; he had customers who depended upon his delivering this
+content. Disney would agree to talk only if Video Pipeline stopped the
+distribution immediately. Video Pipeline thought it was within their
+"fair use" rights to distribute the clips as they had. So they filed a
+lawsuit to ask the court to declare that these rights were in fact
+their rights.
</para>
<para>
Disney countersued—for $100 million in damages. Those damages
-were predicated upon a claim that Video Pipeline had "willfully
- infringed"
-on Disney's copyright. When a court makes a finding of
- willful
-infringement, it can award damages not on the basis of the actual
-harm to the copyright owner, but on the basis of an amount set in the
-statute. Because Video Pipeline had distributed seven hundred clips of
-Disney movies to enable video stores to sell copies of those movies,
-Disney was now suing Video Pipeline for $100 million.
+were predicated upon a claim that Video Pipeline had "willfully
+infringed" on Disney's copyright. When a court makes a finding of
+willful infringement, it can award damages not on the basis of the
+actual harm to the copyright owner, but on the basis of an amount set
+in the statute. Because Video Pipeline had distributed seven hundred
+clips of Disney movies to enable video stores to sell copies of those
+movies, Disney was now suing Video Pipeline for $100 million.
</para>
<para>
Disney has the right to control its property, of course. But the video
There's a famous story about a battle between the Marx Brothers
and Warner Brothers. The Marxes intended to make a parody of
<!-- PAGE BREAK 159 -->
-<citetitle>Casablanca</citetitle>. Warner Brothers objected. They wrote a nasty letter to the
-Marxes, warning them that there would be serious legal consequences
-if they went forward with their plan.<footnote><para>
+<citetitle>Casablanca</citetitle>. Warner Brothers objected. They
+wrote a nasty letter to the Marxes, warning them that there would be
+serious legal consequences if they went forward with their
+plan.<footnote><para>
<!-- f19 -->
See David Lange, "Recognizing the Public Domain," <citetitle>Law and
Contemporary Problems</citetitle> 44 (1981): 172–73.
Warner Brothers that the Marx Brothers "were brothers long before
you were."<footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 1–3.
+Ibid. See also Vaidhyanathan, <citetitle>Copyrights and
+Copywrongs</citetitle>, 1–3.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
-The Marx Brothers therefore owned the word <citetitle>brothers</citetitle>,
-and if Warner Brothers insisted on trying to control <citetitle>Casablanca</citetitle>, then
-the Marx Brothers would insist on control over <citetitle>brothers</citetitle>.
+The Marx Brothers therefore owned the word
+<citetitle>brothers</citetitle>, and if Warner Brothers insisted on
+trying to control <citetitle>Casablanca</citetitle>, then the Marx
+Brothers would insist on control over <citetitle>brothers</citetitle>.
</para>
<para>
An absurd and hollow threat, of course, because Warner Brothers,
</para>
<indexterm startref="idxwarnerbrothers" class='endofrange'/>
<indexterm startref="idxmarxbrothers" class='endofrange'/>
+
+<indexterm id="idxadobeebookreader" class='startofrange'>
+ <primary>Adobe eBook Reader</primary>
+</indexterm>
<para>
Consider the life of my Adobe eBook Reader.
</para>
<para>
-An e-book is a book delivered in electronic form. An Adobe eBook
-is not a book that Adobe has published; Adobe simply produces the
-software that publishers use to deliver e-books. It provides the
- technology,
-and the publisher delivers the content by using the technology.
+An e-book is a book delivered in electronic form. An Adobe eBook is
+not a book that Adobe has published; Adobe simply produces the
+software that publishers use to deliver e-books. It provides the
+technology, and the publisher delivers the content by using the
+technology.
</para>
<para>
On the next page is a picture of an old version of my Adobe eBook
Reader.
</para>
<para>
-As you can see, I have a small collection of e-books within this
+As you can see, I have a small collection of e-books within this
e-book library. Some of these books reproduce content that is in the
-public domain: <citetitle>Middlemarch</citetitle>, for example, is in the public domain.
-Some of them reproduce content that is not in the public domain: My
-own book <citetitle>The Future of Ideas</citetitle> is not yet within the public domain.
-Consider <citetitle>Middlemarch</citetitle> first. If you click on my e-book copy of
+public domain: <citetitle>Middlemarch</citetitle>, for example, is in
+the public domain. Some of them reproduce content that is not in the
+public domain: My own book <citetitle>The Future of Ideas</citetitle>
+is not yet within the public domain. Consider
+<citetitle>Middlemarch</citetitle> first. If you click on my e-book
+copy of
<!-- PAGE BREAK 160 -->
-<citetitle>Middlemarch</citetitle>, you'll see a fancy cover, and then a button at the bottom
-called Permissions.
+<citetitle>Middlemarch</citetitle>, you'll see a fancy cover, and then
+a button at the bottom called Permissions.
</para>
<figure id="fig-1611">
<title>Picture of an old version of Adobe eBook Reader</title>
Wonderland</citetitle>. This wonderful book is in the public
domain. Yet when you clicked on Permissions for that book, you got the
following report:
+<indexterm><primary>Alice's Adventures in Wonderland (Carroll)</primary></indexterm>
</para>
<figure id="fig-1641">
<title>List of the permissions for "Alice's Adventures in
</figure>
<para>
<!-- PAGE BREAK 164 -->
-Here was a public domain children's book that you were not
- allowed
-to copy, not allowed to lend, not allowed to give, and, as the
- "permissions"
-indicated, not allowed to "read aloud"!
+Here was a public domain children's book that you were not allowed to
+copy, not allowed to lend, not allowed to give, and, as the
+"permissions" indicated, not allowed to "read aloud"!
</para>
<para>
The public relations nightmare attached to that final permission.
control. That incentive is understandable, yet what it creates is
often crazy.
</para>
+<indexterm startref="idxadobeebookreader" class='endofrange'/>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
</para>
+<indexterm><primary>Rogers, Fred</primary></indexterm>
<para>
The bizarreness of these arguments is captured in a cartoon drawn in
1981 by Paul Conrad. At that time, a court in California had held that
the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology
-that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>," for example, had
-testified in that case that he wanted people to feel free to tape
-Mr. Rogers' Neighborhood.
+that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>,"
+for example, had testified in that case that he wanted people to feel
+free to tape Mr. Rogers' Neighborhood.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<blockquote>
<para>
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
the VCR</citetitle> (New York: W. W. Norton, 1987), 270–71.
+<indexterm><primary>Rogers, Fred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
This led Conrad to draw the cartoon below, which we can adopt to
the DMCA.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<para>
No argument I have can top this picture, but let me try to get close.
died from copyright circumvention</emphasis>. Yet the law bans circumvention
technologies absolutely, despite the potential that they might do some
good, but permits guns, despite the obvious and tragic harm they do.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<para>
The Aibo and RIAA examples demonstrate how copyright owners are
These changes are of two sorts: the scope of concentration, and its
nature.
</para>
-<indexterm><primary>BMG</primary></indexterm>
<para>
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
Molly Ivins, "Media Consolidation Must Be Stopped," <citetitle>Charleston Gazette</citetitle>,
31 May 2003.
</para></footnote>
+<indexterm><primary>BMG</primary></indexterm>
+<indexterm><primary>EMI</primary></indexterm>
<indexterm><primary>McCain, John</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
+<indexterm><primary>Warner Music Group</primary></indexterm>
</para>
<para>
The story with radio is even more dramatic. Before deregulation,
<para>
Murdoch's companies now constitute a production system
unmatched in its integration. They supply content—Fox movies
-. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus
+… Fox TV shows … Fox-controlled sports broadcasts, plus
newspapers and books. They sell the content to the public and to
advertisers—in newspapers, on the broadcast network, on the
cable channels. And they operate the physical distribution system
control.<footnote><para>
<!-- f29 -->
Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
-Forum, "Entertainment Economics: The Movie Industry," St. Louis,
- Missouri,
-3 April 2003 (transcript of prepared remarks available at
+Forum, "Entertainment Economics: The Movie Industry," St. Louis,
+Missouri, 3 April 2003 (transcript of prepared remarks available at
<ulink url="http://free-culture.cc/notes/">link #28</ulink>;
for the Lear story, not included in the prepared remarks, see
<ulink url="http://free-culture.cc/notes/">link #29</ulink>).
After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
was that the criticism was "too controversial."
+<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>Comcast</primary></indexterm>
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
+<indexterm><primary>NBC</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
+<indexterm><primary>WRC</primary></indexterm>
</para></footnote>
</para>
<para>
that copyright law has undergone. In 1790, the law looked like this:
</para>
-<table id="t2">
-<title></title>
+<informaltable id="t2">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
The act of publishing a map, chart, and book was regulated by
By the end of the nineteenth century, the law had changed to this:
</para>
-<table id="t3">
-<title></title>
+<informaltable id="t3">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
Derivative works were now regulated by copyright law—if
we could say the law began to look like this:
</para>
-<table id="t4">
-<title></title>
+<informaltable id="t4">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
The law was interpreted to reach noncommercial copying through, say,
that the law now looks like this:
</para>
-<table id="t5">
-<title></title>
+<informaltable id="t5">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
Every realm is governed by copyright law, whereas before most
But I also have no doubt that it does more harm than good when
regulating (as it regulates just now) noncommercial copying and,
especially, noncommercial transformation. And increasingly, for the
-reasons sketched especially in chapters 7 and 8, one might well wonder
-whether it does more harm than good for commercial transformation.
-More commercial transformative work would be created if derivative
-rights were more sharply restricted.
+reasons sketched especially in chapters
+<xref xrefstyle="select: labelnumber" linkend="recorders"/> and
+<xref xrefstyle="select: labelnumber" linkend="transformers"/>, one
+might well wonder whether it does more harm than good for commercial
+transformation. More commercial transformative work would be created
+if derivative rights were more sharply restricted.
</para>
<para>
The issue is therefore not simply whether copyright is property. Of
Disintegration of Property," in <citetitle>Nomos XXII: Property</citetitle>, J. Roland
Pennock and John W. Chapman, eds. (New York: New York University
Press, 1980).
+<indexterm><primary>legal realist movement</primary></indexterm>
</para></footnote>)
has been crafted to balance the important need to give authors and
artists incentives with the equally important need to assure access to
<title>PUZZLES</title>
<!-- PAGE BREAK 186 -->
-<chapter id="chimera">
+<chapter label="11" id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
<indexterm id="idxchimera" class='startofrange'>
<primary>chimeras</primary>
</para>
<para>
"What affects it?" the father asks. "Those queer things that are
-called the eyes . . . are diseased . . . in such a way as to affect
+called the eyes … are diseased … in such a way as to affect
his brain."
</para>
<para>
<!-- PAGE BREAK 188 -->
plot for murder mysteries. "But the DNA shows with 100 percent
certainty that she was not the person whose blood was at the
-scene. . . ."
+scene. …"
</para>
<indexterm startref="idxtcotb" class='endofrange'/>
<indexterm startref="idxwells" class="endofrange"/>
identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
Name Students," <citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Conyers, John, Jr.</primary></indexterm>
<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
material, and we want to protect those rights.
</para>
<para>
-But building a technology fortress that locks in the clout of
-the major labels is by no means the only way to protect copyright
-interests, nor is it necessarily the best. It is simply too early to
- answer
-that question. Market forces operating naturally may very
-well produce a totally different industry model.
+But building a technology fortress that locks in the clout of the
+major labels is by no means the only way to protect copyright
+interests, nor is it necessarily the best. It is simply too early to
+answer that question. Market forces operating naturally may very well
+produce a totally different industry model.
</para>
<para>
This is a critical point. The choices that industry sectors make
<!-- PAGE BREAK 192 -->
</chapter>
-<chapter id="harms">
+<chapter label="12" id="harms">
<title>CHAPTER TWELVE: Harms</title>
<para>
-
To fight "piracy," to protect "property," the content industry has
-launched a war. Lobbying and lots of campaign contributions have
-now brought the government into this war. As with any war, this one
-will have both direct and collateral damage. As with any war of
- prohibition,
-these damages will be suffered most by our own people.
+launched a war. Lobbying and lots of campaign contributions have now
+brought the government into this war. As with any war, this one will
+have both direct and collateral damage. As with any war of
+prohibition, these damages will be suffered most by our own people.
</para>
<para>
My aim so far has been to describe the consequences of this war, in
-particular, the consequences for "free culture." But my aim now is to
- extend
-this description of consequences into an argument. Is this war
- justified?
+particular, the consequences for "free culture." But my aim now is to
+extend this description of consequences into an argument. Is this war
+justified?
</para>
<para>
In my view, it is not. There is no good reason why this time, for the
</para>
<para>
Part of the reason for this fear of illegality has to do with the
-changing law. I described that change in detail in chapter 10. But an
+changing law. I described that change in detail in chapter
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>. But an
even bigger part has to do with the increasing ease with which
infractions can be tracked. As users of file-sharing systems
discovered in 2002, it is a trivial matter for copyright owners to get
</para>
<para>
Lawyers rarely see this because lawyers are rarely empirical. As I
-described in chapter 7, in response to the story about documentary
-filmmaker Jon Else, I have been lectured again and again by lawyers
-who insist Else's use was fair use, and hence I am wrong to say that the
-law regulates such a use.
+described in chapter
+<xref xrefstyle="select: labelnumber" linkend="recorders"/>, in
+response to the story about documentary filmmaker Jon Else, I have
+been lectured again and again by lawyers who insist Else's use was
+fair use, and hence I am wrong to say that the law regulates such a
+use.
</para>
<para>
We're losing [creative] opportunities right and left. Creative people
are being forced not to express themselves. Thoughts are not being
expressed. And while a lot of stuff may [still] be created, it still
-won't get distributed. Even if the stuff gets made . . . you're not
+won't get distributed. Even if the stuff gets made … you're not
going to get it distributed in the mainstream media unless
<!-- PAGE BREAK 197 -->
you've got a little note from a lawyer saying, "This has been
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
-strategy that I described in chapter 10. The consequence of this
-massive threat of liability tied to the murky boundaries of copyright
-law is that innovators who want to innovate in this space can safely
-innovate only if they have the sign-off from last generation's
-dominant industries. That lesson has been taught through a series of
-cases that were designed and executed to teach venture capitalists a
+strategy that I described in chapter <xref xrefstyle="select:
+labelnumber" linkend="property-i"/>. The consequence of this massive
+threat of liability tied to the murky boundaries of copyright law is
+that innovators who want to innovate in this space can safely innovate
+only if they have the sign-off from last generation's dominant
+industries. That lesson has been taught through a series of cases
+that were designed and executed to teach venture capitalists a
lesson. That lesson—what former Napster CEO Hank Barry calls a
"nuclear pall" that has fallen over the Valley—has been learned.
</para>
I told in <citetitle>The Future of Ideas</citetitle> and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
</para>
+<indexterm><primary>Roberts, Michael</primary></indexterm>
<para>
In 1997, Michael Roberts launched a company called MP3.com. MP3.com
was keen to remake the music business. Their goal was not just to
<indexterm startref="idxvivendiuniversal" class='endofrange'/>
<indexterm><primary>Hummer, John</primary></indexterm>
<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>Hummer Winblad</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
risk not just in the marketplace, but in the courtroom as well. Your
investment buys you not only a company, it also buys you a lawsuit.
So extreme has the environment become that even car manufacturers are
-afraid of technologies that touch content. In an article in <citetitle>Business
-2.0</citetitle>, Rafe Needleman describes a discussion with BMW:
+afraid of technologies that touch content. In an article in
+<citetitle>Business 2.0</citetitle>, Rafe Needleman describes a
+discussion with BMW:
+<indexterm><primary>EMI</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
</para>
<blockquote>
<indexterm><primary>BMW</primary></indexterm>
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
forward for release stateside. Even today, no new cars are sold in the
-United States with bona fide MP3 players. . . . <footnote>
+United States with bona fide MP3 players. … <footnote>
<para>
<!-- f5. -->
Rafe Needleman, "Driving in Cars with MP3s," <citetitle>Business 2.0</citetitle>, 16 June
<!-- PAGE BREAK 201 -->
The point is not that businesses should have a right to start illegal
-enterprises. The point is the definition of "illegal." The law is a mess of
-uncertainty. We have no good way to know how it should apply to new
-technologies. Yet by reversing our tradition of judicial deference, and
-by embracing the astonishingly high penalties that copyright law
- imposes,
-that uncertainty now yields a reality which is far more
- conservative
-than is right. If the law imposed the death penalty for parking
-tickets, we'd not only have fewer parking tickets, we'd also have much
-less driving. The same principle applies to innovation. If innovation is
-constantly checked by this uncertain and unlimited liability, we will
-have much less vibrant innovation and much less creativity.
+enterprises. The point is the definition of "illegal." The law is a
+mess of uncertainty. We have no good way to know how it should apply
+to new technologies. Yet by reversing our tradition of judicial
+deference, and by embracing the astonishingly high penalties that
+copyright law imposes, that uncertainty now yields a reality which is
+far more conservative than is right. If the law imposed the death
+penalty for parking tickets, we'd not only have fewer parking tickets,
+we'd also have much less driving. The same principle applies to
+innovation. If innovation is constantly checked by this uncertain and
+unlimited liability, we will have much less vibrant innovation and
+much less creativity.
</para>
<para>
The point is directly parallel to the crunchy-lefty point about fair
(2003), 33–35, available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
</para></footnote>
-
- Congress
-has already launched proceedings to explore a mandatory
- "broadcast
-flag" that would be required on any device capable of transmitting
-digital video (i.e., a computer), and that would disable the copying of
-any content that is marked with a broadcast flag. Other members of
-Congress have proposed immunizing content providers from liability
-for technology they might deploy that would hunt down copyright
- violators
-and disable their machines.<footnote><para>
-<!-- f7. --> GartnerG2, 26–27.
+Congress has already launched proceedings to explore a mandatory
+"broadcast flag" that would be required on any device capable of
+transmitting digital video (i.e., a computer), and that would disable
+the copying of any content that is marked with a broadcast flag. Other
+members of Congress have proposed immunizing content providers from
+liability for technology they might deploy that would hunt down
+copyright violators and disable their machines.<footnote><para>
+<!-- f7. -->
+GartnerG2, 26–27.
</para></footnote>
-
</para>
<para>
In one sense, these solutions seem sensible. If the problem is the
-code, why not regulate the code to remove the problem. But any
- regulation
-of technical infrastructure will always be tuned to the particular
-technology of the day. It will impose significant burdens and costs on
-
+code, why not regulate the code to remove the problem. But any
+regulation of technical infrastructure will always be tuned to the
+particular technology of the day. It will impose significant burdens
+and costs on
<!-- PAGE BREAK 203 -->
the technology, but will likely be eclipsed by advances around exactly
those requirements.
</para>
<para>
In March 2002, a broad coalition of technology companies, led by
-Intel, tried to get Congress to see the harm that such legislation would
-impose.<footnote><para>
-<!-- f8. --> See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
+Intel, tried to get Congress to see the harm that such legislation
+would impose.<footnote><para>
+<!-- f8. -->
+See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
February 2002 (Entertainment).
</para></footnote>
- Their argument was obviously not that copyright should not
-be protected. Instead, they argued, any protection should not do more
+Their argument was obviously not that copyright should not be
+protected. Instead, they argued, any protection should not do more
harm than good.
+<indexterm><primary>Intel</primary></indexterm>
</para>
<para>
-There is one more obvious way in which this war has harmed
- innovation—again,
-a story that will be quite familiar to the free market
-crowd.
+There is one more obvious way in which this war has harmed
+innovation—again, a story that will be quite familiar to the
+free market crowd.
</para>
<para>
Copyright may be property, but like all property, it is also a form
wrong, it is regulation the powerful use to defeat competitors.
</para>
<para>
-As I described in chapter 10, despite this feature of copyright as
-regulation, and subject to important qualifications outlined by Jessica
-Litman in her book <citetitle>Digital Copyright</citetitle>,<footnote><para>
-<!-- f9. --> Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: Prometheus Books,
-2001).
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, despite this feature of copyright as
+regulation, and subject to important qualifications outlined by
+Jessica Litman in her book <citetitle>Digital
+Copyright</citetitle>,<footnote><para>
+<!-- f9. -->
+Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst,
+N.Y.: Prometheus Books, 2001).
<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
- overall this history of copyright
-is not bad. As chapter 10 details, when new technologies have come
-along, Congress has struck a balance to assure that the new is protected
-from the old. Compulsory, or statutory, licenses have been one part of
-that strategy. Free use (as in the case of the VCR) has been another.
+overall this history of copyright is not bad. As chapter 10 details,
+when new technologies have come along, Congress has struck a balance
+to assure that the new is protected from the old. Compulsory, or
+statutory, licenses have been one part of that strategy. Free use (as
+in the case of the VCR) has been another.
</para>
<para>
But that pattern of deference to new technologies has now changed
available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
+<indexterm><primary>Hollings, Fritz</primary></indexterm>
</para></footnote>
But there is one example that captures the flavor of them all. This is
the story of the demise of Internet radio.
<para>
<!-- PAGE BREAK 204 -->
-As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless
-he or she is also the composer. So, for example if Marilyn Monroe had
-recorded a version of "Happy Birthday"—to memorialize her famous
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="pirates"/>, when a radio station plays a song, the recording
+artist doesn't get paid for that "radio performance" unless he or she
+is also the composer. So, for example if Marilyn Monroe had recorded a
+version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
then whenever that recording was played on the radio, the current
copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The reasoning behind this balance struck by Congress makes some
shortwaves, thus ending the unnatural restrictions imposed on radio in
the crowded longwaves. If FM were freely developed, the number of
stations would be limited only by economics and competition rather
-than by technical restrictions. . . . Armstrong likened the situation
+than by technical restrictions. … Armstrong likened the situation
that had grown up in radio to that following the invention of the
printing press, when governments and ruling interests attempted to
control this new instrument of mass communications by imposing
time zone where the signal was received (user);
</para></listitem>
<listitem><para>
-Unique User identifier;
+unique user identifier;
</para></listitem>
<listitem><para>
the country in which the user received the transmissions.
differences? Was the motive to protect artists against piracy?
</para>
<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
pay to a willing seller, and it was much higher. It was ten times
higher than what radio stations pay to perform the same songs for
the same period of time. And so the attorneys representing the
-webcasters asked the RIAA, . . . "How do you come up with a
+webcasters asked the RIAA, … "How do you come up with a
<!-- PAGE BREAK 208 -->
-rate that's so much higher? Why is it worth more than radio?
- Because
-here we have hundreds of thousands of webcasters who
-want to pay, and that should establish the market rate, and if you
-set the rate so high, you're going to drive the small webcasters out
-of business. . . ."
+rate that's so much higher? Why is it worth more than radio? Because
+here we have hundreds of thousands of webcasters who want to pay, and
+that should establish the market rate, and if you set the rate so
+high, you're going to drive the small webcasters out of
+business. …"
</para>
<para>
And the RIAA experts said, "Well, we don't really model this as an
We pride ourselves on our "free society," but an endless array of
ordinary behavior is regulated within our society. And as a result, a
huge proportion of Americans regularly violate at least some law.
+<indexterm><primary>alcohol prohibition</primary></indexterm>
</para>
<para>
This state of affairs is not without consequence. It is a particularly
others, but still, everywhere in America today—can't live their
lives both normally and legally, since "normally" entails a certain
degree of illegality.
+<indexterm><primary>law schools</primary></indexterm>
</para>
<para>
The response to this general illegality is either to enforce the law
<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
+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,
+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."
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
+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.
</partintro>
<!-- PAGE BREAK 220 -->
-<chapter id="eldred">
+<chapter label="13" id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
+<indexterm id="idxhawthornenathaniel" class='startofrange'>
+ <primary>Hawthorne, Nathaniel</primary>
+</indexterm>
<para>
In 1995, a father was frustrated that his daughters didn't seem to
like Hawthorne. No doubt there was more than one such father, but at
(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure Planet</citetitle>). These are all
commercial publications of public domain works.
</para>
+<indexterm startref="idxhawthornenathaniel" class='endofrange'/>
<para>
The Internet created the possibility of noncommercial publications of
public domain works. Eldred's is just one example. There are literally
</para>
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
-collection of poems <citetitle>New Hampshire</citetitle> was slated to pass into the public
-domain. Eldred wanted to post that collection in his free public
-library. But Congress got in the way. As I described in chapter 10,
-in 1998, for the eleventh time in forty years, Congress extended the
-terms of existing copyrights—this time by twenty years. Eldred
-would not be free to add any works more recent than 1923 to his
-collection until 2019. Indeed, no copyrighted work would pass into
-the public domain until that year (and not even then, if Congress
-extends the term again). By contrast, in the same period, more than 1
-million patents will pass into the public domain.
+collection of poems <citetitle>New Hampshire</citetitle> was slated to
+pass into the public domain. Eldred wanted to post that collection in
+his free public library. But Congress got in the way. As I described
+in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, in 1998, for the eleventh time in forty years,
+Congress extended the terms of existing copyrights—this time by
+twenty years. Eldred would not be free to add any works more recent
+than 1923 to his collection until 2019. Indeed, no copyrighted work
+would pass into the public domain until that year (and not even then,
+if Congress extends the term again). By contrast, in the same period,
+more than 1 million patents will pass into the public domain.
</para>
<para>
</para>
<blockquote>
<para>
-Congress has the power to promote the Progress of Science . . .
-by securing for limited Times to Authors . . . exclusive Right to
-their . . . Writings. . . .
+Congress has the power to promote the Progress of Science …
+by securing for limited Times to Authors … exclusive Right to
+their … Writings. …
</para>
</blockquote>
<para>
granting power to Congress simply says Congress has the power to do
something—for example, to regulate "commerce among the several
states" or "declare War." But here, the "something" is something quite
-specific—to "promote . . . Progress"—through means that
+specific—to "promote … Progress"—through means that
are also specific— by "securing" "exclusive Rights" (i.e.,
copyrights) "for limited Times."
</para>
commerce. A Constitution designed to limit Congress's power was
instead interpreted to impose no limit.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
<para>
The Supreme Court, under Chief Justice Rehnquist's command, changed
that in <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The government had
system, our law requires it. Some may not like the Constitution's
requirements, but that doesn't make the Constitution a pirate's
charter.
+<indexterm><primary>Nashville Songwriters Association</primary></indexterm>
</para>
<para>
As we've seen, our constitutional system requires limits on
for other creative works is much more dire.
</para>
<indexterm><primary>Agee, Michael</primary></indexterm>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
+<indexterm><primary>Laurel and Hardy Films</primary></indexterm>
<para>
Consider the story of Michael Agee, chairman of Hal Roach Studios,
which owns the copyrights for the Laurel and Hardy films. Agee is a
exhaustive and uncontroverted brief by the world's experts in the
history of the Progress Clause. And of course, there was a new brief
by Eagle Forum, repeating and strengthening its arguments.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Intel</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
<indexterm><primary>Eagle Forum</primary></indexterm>
</para>
argument, there were a number of powerful briefs by libraries and
archives, including the Internet Archive, the American Association of
Law Libraries, and the National Writers Union.
+<indexterm><primary>American Association of Law Libraries</primary></indexterm>
+<indexterm><primary>National Writers Union</primary></indexterm>
</para>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
<para>
But two briefs captured the policy argument best. One made the
argument I've already described: A brief by Hal Roach Studios argued
who had advised us early on about a First Amendment strategy; and
finally, former solicitor general Charles Fried.
<indexterm><primary>Fried, Charles</primary></indexterm>
+<indexterm><primary>Morrison, Alan</primary></indexterm>
+<indexterm><primary>Public Citizen</primary></indexterm>
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
Between February and October, there was little I did beyond preparing
for this case. Early on, as I said, I set the strategy.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
<para>
-The Supreme Court was divided into two important camps. One
-camp we called "the Conservatives." The other we called "the Rest."
-The Conservatives included Chief Justice Rehnquist, Justice O'Connor,
+The Supreme Court was divided into two important camps. One camp we
+called "the Conservatives." The other we called "the Rest." The
+Conservatives included Chief Justice Rehnquist, Justice O'Connor,
Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
been the most consistent in limiting Congress's power. They were the
-five who had supported the <citetitle>Lopez/Morrison</citetitle> line of cases that said that
-an enumerated power had to be interpreted to assure that Congress's
-powers had limits.
+five who had supported the <citetitle>Lopez/Morrison</citetitle> line
+of cases that said that an enumerated power had to be interpreted to
+assure that Congress's powers had limits.
</para>
<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
generally. We were fairly confident he would recognize limits here.
</para>
<para>
-This analysis of "the Rest" showed most clearly where our focus
-had to be: on the Conservatives. To win this case, we had to crack open
-these five and get at least a majority to go our way. Thus, the single
- overriding
-argument that animated our claim rested on the Conservatives'
-most important jurisprudential innovation—the argument that Judge
-Sentelle had relied upon in the Court of Appeals, that Congress's power
-must be interpreted so that its enumerated powers have limits.
+This analysis of "the Rest" showed most clearly where our focus had to
+be: on the Conservatives. To win this case, we had to crack open these
+five and get at least a majority to go our way. Thus, the single
+overriding argument that animated our claim rested on the
+Conservatives' most important jurisprudential innovation—the
+argument that Judge Sentelle had relied upon in the Court of Appeals,
+that Congress's power must be interpreted so that its enumerated
+powers have limits.
</para>
<para>
This then was the core of our strategy—a strategy for which I am
responsible. We would get the Court to see that just as with the
<citetitle>Lopez</citetitle>
-
<!-- PAGE BREAK 243 -->
case, under the government's argument here, Congress would always have
unlimited power to extend existing terms. If anything was plain about
Congress's power under the Progress Clause, it was that this power was
supposed to be "limited." Our aim would be to get the Court to
-reconcile <citetitle>Eldred</citetitle> with <citetitle>Lopez</citetitle>: If Congress's power to
-regulate commerce was limited, then so, too, must Congress's power to
-regulate copyright be limited.
+reconcile <citetitle>Eldred</citetitle> with
+<citetitle>Lopez</citetitle>: If Congress's power to regulate commerce
+was limited, then so, too, must Congress's power to regulate copyright
+be limited.
</para>
<para>
The argument on the government's side came down to this: Congress has
<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.
+my view of the case, was Ruben Bolling's, reproduced on the next page
+(<xref linkend="fig-18"/>). The "powerful and wealthy" line is a bit
+unfair. But the punch in the face felt exactly like that.
<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
+<figure id="fig-18">
+<title>Tom the Dancing Bug cartoon</title>
+<graphic fileref="images/18.png"></graphic>
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
+</figure>
<para>
The image that will always stick in my head is that evoked by the
quote from <citetitle>The New York Times</citetitle>. That "grand experiment" we call the
</para>
<!-- PAGE BREAK 254 -->
</chapter>
-<chapter id="eldred-ii">
+<chapter label="14" id="eldred-ii">
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
The day <citetitle>Eldred</citetitle> was decided, fate would have it that I was to travel to
<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
-As I described in chapter 10, formalities in copyright law were
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, formalities in copyright law were
removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
<!-- f1. -->
content. It would simply liberate what Kevin Kelly calls the "Dark
Content" that fills archives around the world. So when the warriors
oppose a change like this, we should ask one simple question:
+<indexterm><primary>Kelly, Kevin</primary></indexterm>
</para>
<para>
What does this industry really want?
<!-- PAGE BREAK 264 -->
</chapter>
</part>
-<part id="c-conclusion">
+<chapter label="15" id="c-conclusion">
<title>CONCLUSION</title>
-<partintro>
<para>
There are more than 35 million people with the AIDS virus
worldwide. Twenty-five million of them live in sub-Saharan Africa.
<para>
However, the United States government opposed the bill. Indeed, more
than opposed. As the International Intellectual Property Association
-characterized it, "The U.S. government pressured South Africa . . .
+characterized it, "The U.S. government pressured South Africa …
not to permit compulsory licensing or parallel
imports."<footnote><para>
<!-- f3. -->
Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
included the Global Positioning System, which Ronald Reagan set free
in the early 1980s. And it included "open source and free software."
+<indexterm><primary>academic journals</primary></indexterm>
+<indexterm><primary>IBM</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
+<indexterm><primary>IBM</primary></indexterm>
+<indexterm><primary>"copyleft" licenses</primary></indexterm>
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
url="http://free-culture.cc/notes/">link #64</ulink>.
</para></footnote>
And without U.S. backing, the meeting was canceled.
+<indexterm><primary>Krim, Jonathan</primary></indexterm>
</para>
<para>
I don't blame Microsoft for doing what it can to advance its own
Eminem has just been sued for "sampling" someone else's
music.<footnote><para>
<!-- f12. -->
-Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+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>
<!-- PAGE BREAK 279 -->
</para>
-</partintro>
-<chapter><title></title><para></para></chapter>
-</part>
-<part id="c-afterword">
+</chapter>
+<chapter label="16" id="c-afterword">
<title>AFTERWORD</title>
-<partintro>
<para>
<!-- PAGE BREAK 280 -->
<!-- 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
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>, your
+privacy was assured because of an inefficient architecture for
+gathering data and hence a market constraint (cost) on anyone who
wanted to gather that data. If you were a suspected spy for North
Korea, working for the CIA, no doubt your privacy would not be
assured. But that's because the CIA would (we hope) find it valuable
and the function of cookies on the Net, it is easier to collect the
data than not. The friction has disappeared, and hence any "privacy"
protected by the friction disappears, too.
+<indexterm><primary>cookies, Internet</primary></indexterm>
</para>
<para>
Amazon, of course, is not the problem. But we might begin to worry
binaries— was free. You couldn't run a program written for a
Data General machine on an IBM machine, so Data General and IBM didn't
care much about controlling their software.
+<indexterm><primary>IBM</primary></indexterm>
</para>
<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
with the story of this book. This is the shift in the way academic and
scientific journals are produced.
</para>
+<indexterm id="idxacademocjournals" class='startofrange'>
+ <primary>academic journals</primary>
+</indexterm>
<para>
As digital technologies develop, it is becoming obvious to many that
printing thousands of copies of journals every month and sending them
presumptively a good—especially when it helps spread knowledge
and science.
</para>
+<indexterm startref="idxacademocjournals" class='endofrange'/>
</section>
<section id="oneidea">
used book store prices for the book. As predicted, as the number of
downloads increased, the used book price for his book increased, as
well.
+<indexterm><primary>Free for All (Wayner)</primary></indexterm>
+<indexterm><primary>Wayner, Peter</primary></indexterm>
</para>
+<indexterm><primary>Public Enemy</primary></indexterm>
<para>
These are examples of using the Commons to better spread proprietary
content. I believe that is a wonderful and common use of the
Public Enemy to sample anymore, because the legal costs are so
high<footnote><para>
<!-- f2. -->
-
<citetitle>Willful Infringement: A Report from the Front Lines of the Real
Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg
Hittelman, a Fiat Lucre production, available at
</para></footnote>),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
+<indexterm><primary>Leaphart, Walter</primary></indexterm>
</para>
<para>
Finally, there are many who mark their content with a Creative Commons
Why?
</para>
<para>
-As I suggested in chapter 10, the motivation to abolish formalities
-was a good one. In the world before digital technologies, formalities
+As I suggested in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, the motivation to abolish formalities was a
+good one. In the world before digital technologies, formalities
imposed a burden on copyright holders without much benefit. Thus, it
was progress when the law relaxed the formal requirements that a
copyright owner must bear to protect and secure his work. Those
The courts have expanded it slowly through judicial interpretation
ever since. This expansion has been commented upon by one of the law's
greatest judges, Judge Benjamin Kaplan.
+<indexterm><primary>Kaplan, Benjamin</primary></indexterm>
</para>
<blockquote>
<para>
work, and to a performing artist to control copies of her performance.
</para>
<para>
-File-sharing networks complicate this model by enabling the
-spread of content for which the performer has not been paid. But of
-course, that's not all the file-sharing networks do. As I described in
-chapter 5, they enable four different kinds of sharing:
+File-sharing networks complicate this model by enabling the spread of
+content for which the performer has not been paid. But of course,
+that's not all the file-sharing networks do. As I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="piracy"/>, they enable
+four different kinds of sharing:
</para>
<orderedlist numeration="upperalpha">
<listitem><para>
significantly weakened.
</para>
<para>
-As I said in chapter 5, the actual harm caused by sharing is
+As I said in chapter <xref xrefstyle="select: labelnumber"
+linkend="piracy"/>, the actual harm caused by sharing is
controversial. For the purposes of this chapter, however, I assume
the harm is real. I assume, in other words, that type A sharing is
significantly greater than type B, and is the dominant use of sharing
popular. As is typical with Stallman, his proposal predates the current
debate by about a decade. See
<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
-<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Fisher, William</primary></indexterm>
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para></footnote>
Fisher suggests a very clever way around the current impasse of the
Internet. Under his plan, all content capable of digital transmission
system, then it can be continued. If this form of protection is no
longer necessary, then the system could lapse into the old system of
controlling access.
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para>
<para>
Fisher would balk at the idea of allowing the system to lapse. His aim
semiotic democracy if there were few limitations on what one was
allowed to do with the content itself.
</para>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
No doubt it would be difficult to calculate the proper measure of
"harm" to an industry. But the difficulty of making that calculation
<!-- PAGE BREAK 312 -->
</section>
</section>
-</partintro>
-<chapter><title></title><para></para></chapter>
-</part>
-<chapter id="c-notes">
+</chapter>
+<chapter label="17" id="c-notes">
<title>NOTES</title>
<para>
Throughout this text, there are references to links on the World Wide
<!-- PAGE BREAK 336 -->
</chapter>
-<chapter id="c-acknowledgments">
+<chapter label="18" id="c-acknowledgments">
<title>ACKNOWLEDGMENTS</title>
<para>
This book is the product of a long and as yet unsuccessful struggle that
work helped launch a movement, the free culture movement, and it is
to him that this book is dedicated.
</para>
+<indexterm><primary>Rose, Mark</primary></indexterm>
<para>
I received guidance in various places from friends and academics,
including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
<!-- PAGE BREAK 338 -->
</chapter>
+<index></index>
</book>
projects / text-free-culture-lessig.git / blobdiff