</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>
-HOW BIG MEDIA USES TECHNOLOGY AND
-THE LAW TO LOCK DOWN CULTURE
-AND CONTROL CREATIVITY
-</para>
-
-<para>
-LAWRENCE LESSIG
-</para>
-</dedication>
<!-- PAGE BREAK 6 -->
<colophon>
<para>
culture deem fundamental.
</para>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
+<indexterm><primary>Stevens, Ted</primary></indexterm>
<para>
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
the effective scope of the law. The law is changing; that change is
altering the way our culture gets made; that change should worry
you—whether or not you care about the Internet, and whether you're on
-Safire's left or on his right. The inspiration for the title and for
+Safire's left or on his right.
+</para>
+<para>
+<emphasis role="strong">The inspiration</emphasis> for the title and for
much of the argument of this book comes from the work of Richard
Stallman and the Free Software Foundation. Indeed, as I reread
Stallman's own work, especially the essays in <citetitle>Free Software, Free
</indexterm>
<indexterm><primary>Wright brothers</primary></indexterm>
<para>
-On December 17, 1903, on a windy North Carolina beach for just
+<emphasis role="strong">On December 17</emphasis>, 1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
heavier-than-air, self-propelled vehicle could fly. The moment was electric
and its importance widely understood. Almost immediately, there
<indexterm id='idxarmstrongedwin' class='startofrange'>
<primary>Armstrong, Edwin Howard</primary>
</indexterm>
-<para>
-<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of America's forgotten inventor
-geniuses. He came to the great American inventor scene just after the
-titans Thomas Edison and Alexander Graham Bell. But his work in
-the area of radio technology was perhaps the most important of any
-single inventor in the first fifty years of radio. He was better educated
-than Michael Faraday, who as a bookbinder's apprentice had discovered
-electric induction in 1831. But he had the same intuition about
-how the world of radio worked, and on at least three occasions,
-Armstrong invented profoundly important technologies that advanced our
-understanding of radio.
-<!-- PAGE BREAK 19 -->
<indexterm><primary>Bell, Alexander Graham</primary></indexterm>
<indexterm><primary>Edison, Thomas</primary></indexterm>
<indexterm><primary>Faraday, Michael</primary></indexterm>
+<para>
+<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of
+America's forgotten inventor geniuses. He came to the great American
+inventor scene just after the titans Thomas Edison and Alexander
+Graham Bell. But his work in the area of radio technology was perhaps
+the most important of any single inventor in the first fifty years of
+radio. He was better educated than Michael Faraday, who as a
+bookbinder's apprentice had discovered electric induction in 1831. But
+he had the same intuition about how the world of radio worked, and on
+at least three occasions, Armstrong invented profoundly important
+technologies that advanced our understanding of radio.
+<!-- PAGE BREAK 19 -->
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
</para></footnote>
</para>
</blockquote>
+<indexterm id='idxlessing' class='startofrange'>
+ <primary>Lessing, Lawrence</primary>
+</indexterm>
<para>
Armstrong's invention threatened RCA's AM empire, so the company
launched a campaign to smother FM radio. While FM may have been a
</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxlessing' class='endofrange'/>
<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
effect of technological change.
</para>
<para>
-There's no single inventor of the Internet. Nor is there any good date
+<emphasis role="strong">There's no</emphasis> single inventor of the Internet. Nor is there any good date
upon which to mark its birth. Yet in a very short time, the Internet
has become part of ordinary American life. According to the Pew
Internet and American Life Project, 58 percent of Americans had access
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-Like the Causbys' battle, this war is, in part, about <quote>property.</quote> The
+<emphasis role="strong">Like the Causbys'</emphasis> battle, this war is, in part, about <quote>property.</quote> The
property of this war is not as tangible as the Causbys', and no
innocent chicken has yet to lose its life. Yet the ideas surrounding
this <quote>property</quote> are as obvious to most as the Causbys' claim about the
<!-- PAGE BREAK 28 -->
</para>
<para>
-The struggle that rages just now centers on two ideas: <quote>piracy</quote> and
+<emphasis role="strong">The struggle</emphasis> that rages just now centers on two ideas: <quote>piracy</quote> and
<quote>property.</quote> My aim in this book's next two parts is to explore these two
ideas.
</para>
<primary>Mansfield, William Murray, Lord</primary>
</indexterm>
<para>
-Since the inception of the law regulating creative property, there has
+<emphasis role="strong">Since the inception</emphasis> of the law regulating creative property, there has
been a war against <quote>piracy.</quote> The precise contours of this concept,
<quote>piracy,</quote> are hard to sketch, but the animating injustice is easy to
capture. As Lord Mansfield wrote in a case that extended the reach of
</para>
</blockquote>
<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
+<indexterm><primary>Girl Schouts</primary></indexterm>
+<indexterm id='idxifvalue' class='startofrange'>
+ <primary><quote>if value, then right</quote> theory</primary>
+</indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote>
theory of creative property has never been America's theory of
creative property. It has never taken hold within our law.
</para>
+<indexterm startref='idxifvalue' class='endofrange'/>
<para>
Instead, in our tradition, intellectual property is an instrument. It
sets the groundwork for a richly creative society but remains
<indexterm id="idxanimadedcartoons" class='startofrange'>
<primary>animated cartoons</primary>
</indexterm>
+<indexterm id='idxcartoonfilms' class='startofrange'>
+ <primary>cartoon films</primary>
+</indexterm>
<para>
-In 1928, a cartoon character was born. An early Mickey Mouse
+<emphasis role="strong">In 1928</emphasis>, a cartoon character was born. An early Mickey Mouse
made his debut in May of that year, in a silent flop called <citetitle>Plane Crazy</citetitle>.
In November, in New York City's Colony Theater, in the first widely
distributed cartoon synchronized with sound, <citetitle>Steamboat Willie</citetitle> brought
permission. Yet today, the public domain is presumptive only for
content from before the Great Depression.
</para>
+<indexterm startref='idxcartoonfilms' class='endofrange'/>
<para>
-Of course, Walt Disney had no monopoly on <quote>Walt Disney creativity.</quote>
+<emphasis role="strong">Of course</emphasis>, Walt Disney had no monopoly on <quote>Walt Disney creativity.</quote>
Nor does America. The norm of free culture has, until recently, and
except within totalitarian nations, been broadly exploited and quite
universal.
York: Perennial, 2000).
</para></footnote>
</para>
+<indexterm><primary>Superman comics</primary></indexterm>
<para>
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi are
uncompensated sharing? Does piracy here hurt the victims of the
piracy, or does it help them? Would lawyers fighting this piracy help
their clients or hurt them?
-Let's pause for a moment.
+</para>
+<para>
+<emphasis role='strong'>Let's pause</emphasis> for a moment.
</para>
<para>
If you're like I was a decade ago, or like most people are when they
<indexterm id="idxphotography" class='startofrange'>
<primary>photography</primary>
</indexterm>
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
<para>
-In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call <quote>photographs.</quote> Appropriately enough, they
-were called <quote>daguerreotypes.</quote> The process was complicated and
+<emphasis role='strong'>In 1839</emphasis>, Louis Daguerre invented
+the first practical technology for producing what we would call
+<quote>photographs.</quote> Appropriately enough, they were called
+<quote>daguerreotypes.</quote> The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
Association that helped regulate the industry, as do all such
associations, by keeping competition down so as to keep prices up.)
-<indexterm><primary>Daguerre, Louis</primary></indexterm>
</para>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
<citetitle>Steamboat Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
</para>
+<indexterm><primary>images, ownership of</primary></indexterm>
<para>
Fortunately for Mr. Eastman, and for photography in general, these
early decisions went in favor of the pirates. In general, no
photography to ordinary people would not have occurred. Nothing like
that growth would have been realized. And certainly, nothing like that
growth in a democratic technology of expression would have been
-realized. If you drive through San Francisco's Presidio, you might
-see two gaudy yellow school buses painted over with colorful and
-striking images, and the logo <quote>Just Think!</quote> in place of the name of a
-school. But there's little that's <quote>just</quote> cerebral in the projects that
-these busses enable. These buses are filled with technologies that
-teach kids to tinker with film. Not the film of Eastman. Not even the
-film of your VCR. Rather the <quote>film</quote> of digital cameras. Just Think!
-is a project that enables kids to make films, as a way to understand
-and critique the filmed culture that they find all around them. Each
-year, these busses travel to more than thirty schools and enable three
-hundred to five hundred children to learn something about media by
-doing something with media. By doing, they think. By tinkering, they
-learn.
+realized.
+</para>
+<para>
+<emphasis role='strong'>If you drive</emphasis> through San
+Francisco's Presidio, you might see two gaudy yellow school buses
+painted over with colorful and striking images, and the logo
+<quote>Just Think!</quote> in place of the name of a school. But
+there's little that's <quote>just</quote> cerebral in the projects
+that these busses enable. These buses are filled with technologies
+that teach kids to tinker with film. Not the film of Eastman. Not even
+the film of your VCR. Rather the <quote>film</quote> of digital
+cameras. Just Think! is a project that enables kids to make films, as
+a way to understand and critique the filmed culture that they find all
+around them. Each year, these busses travel to more than thirty
+schools and enable three hundred to five hundred children to learn
+something about media by doing something with media. By doing, they
+think. By tinkering, they learn.
</para>
<indexterm startref="idxeastmangeorge" class='endofrange'/>
<indexterm startref="idxphotography" class='endofrange'/>
<!-- FIXME removed a " from the end of the previous paragraph that did
not match with any start quote. -->
</blockquote>
+<indexterm><primary>World Trade Center</primary></indexterm>
<para>
-When two planes crashed into the World Trade Center, another into the
-Pentagon, and a fourth into a Pennsylvania field, all media around the
-world shifted to this news. Every moment of just about every day for
-that week, and for weeks after, television in particular, and media
-generally, retold the story of the events we had just witnessed. The
-telling was a retelling, because we had seen the events that were
-described. The genius of this awful act of terrorism was that the
-delayed second attack was perfectly timed to assure that the whole
-world would be watching.
+<emphasis role='strong'>When two planes</emphasis> crashed into the
+World Trade Center, another into the Pentagon, and a fourth into a
+Pennsylvania field, all media around the world shifted to this
+news. Every moment of just about every day for that week, and for
+weeks after, television in particular, and media generally, retold the
+story of the events we had just witnessed. The telling was a
+retelling, because we had seen the events that were described. The
+genius of this awful act of terrorism was that the delayed second
+attack was perfectly timed to assure that the whole world would be
+watching.
</para>
<para>
These retellings had an increasingly familiar feel. There was music
cultures, it records private facts in a public way—it's a kind
of electronic <citetitle>Jerry Springer</citetitle>, available anywhere in the world.
</para>
+<indexterm><primary>blogs (Web-logs)</primary></indexterm>
<para>
But in the United States, blogs have taken on a very different
character. There are some who use the space simply to talk about
in those elections. The cycle of these elections has become totally
professionalized and routinized. Most of us think this is democracy.
</para>
+<indexterm><primary>Tocqueville, Alexis de</primary></indexterm>
<para>
But democracy has never just been about elections. Democracy
means rule by the people, but rule means something more than mere
</para></footnote> We say what our friends want to hear, and hear very
little beyond what our friends say.
</para>
+<indexterm id='idxblogs1' class='startofrange'>
+ <primary>blogs (Web-logs)</primary>
+</indexterm>
<para>
Enter the blog. The blog's very architecture solves one part of this
problem. People post when they want to post, and people read when they
is having an effect.
<indexterm><primary>Dean, Howard</primary></indexterm>
</para>
+<indexterm><primary>Thurmond, Strom</primary></indexterm>
<para>
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
get it out of the way.</quote>
</para>
<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Iraq war</primary></indexterm>
<para>
These conflicts become more important as media becomes more
concentrated (more on this below). A concentrated media can hide more
have been told to curtail their blogging.<footnote>
<para>
<!-- f21 -->
+<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Iraq war</primary></indexterm>
+<indexterm><primary>Olafson, Steve</primary></indexterm>
+<indexterm><primary>blogs (Web-logs)</primary></indexterm>
See Michael Falcone, <quote>Does an Editor's Pencil Ruin a Web Log?</quote> <citetitle>New
York Times</citetitle>, 29 September 2003, C4. (<quote>Not all news organizations have
been as accepting of employees who blog. Kevin Sites, a CNN
request. Last year Steve Olafson, a <citetitle>Houston Chronicle</citetitle> reporter, was
fired for keeping a personal Web log, published under a pseudonym,
that dealt with some of the issues and people he was covering.</quote>)
-<indexterm><primary>CNN</primary></indexterm>
-<indexterm><primary>Olafson, Steve</primary></indexterm>
</para></footnote>
But it is clear that we are still in transition. <quote>A
happens. When there are ten million, there will be something
extraordinary to report.
</para>
+<indexterm startref='idxblogs1' class='endofrange'/>
<indexterm startref="idxwinerdave" class='endofrange'/>
<indexterm id="idxbrownjohnseely" class='startofrange'>
<primary>Brown, John Seely</primary>
<primary>advertising</primary>
</indexterm>
<para>
-John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is <quote>human learning and … the
-creation of knowledge ecologies for creating … innovation.</quote>
+<emphasis role='strong'>John Seely Brown</emphasis> is the chief
+scientist of the Xerox Corporation. His work, as his Web site
+describes it, is <quote>human learning and … the creation of
+knowledge ecologies for creating … innovation.</quote>
</para>
<para>
Brown thus looks at these technologies of digital creativity a bit
<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.
-His major at RPI was information technology. Though he is not a
-programmer, in October Jesse decided to begin to tinker with search
-engine technology that was available on the RPI network.
+<emphasis role='strong'>In the fall</emphasis> of 2002, Jesse Jordan
+of Oceanside, New York, enrolled as a freshman at Rensselaer
+Polytechnic Institute, in Troy, New York. His major at RPI was
+information technology. Though he is not a programmer, in October
+Jesse decided to begin to tinker with search engine technology that
+was available on the RPI network.
</para>
<para>
RPI is one of America's foremost technological research institutions.
created or posted, and the vast majority of which had nothing to do
with music.
</para>
+<indexterm><primary>statutory damages</primary></indexterm>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore <quote>willfully</quote> violated copyright laws. They
hundred specific copyright infringements, they therefore demanded that
Jesse pay them at least $15,000,000.
</para>
+<indexterm><primary>Princeton University</primary></indexterm>
+<indexterm><primary>Michigan Technical University</primary></indexterm>
<para>
Similar lawsuits were brought against three other students: one other
student at RPI, one at Michigan Technical University, and one at
</chapter>
<chapter label="4" id="pirates">
<title>CHAPTER FOUR: <quote>Pirates</quote></title>
-<para>
-If <quote>piracy</quote> means using the creative property of others without
-their permission—if <quote>if value, then right</quote> is true—then the history of
-the content industry is a history of piracy. Every important sector of
-<quote>big media</quote> today—film, records, radio, and cable TV—was born of a
-kind of piracy so defined. The consistent story is how last generation's
-pirates join this generation's country club—until now.
+<indexterm><primary><quote>if value, then right</quote> theory</primary></indexterm>
+<para>
+<emphasis role='strong'>If <quote>piracy</quote> means</emphasis>
+using the creative property of others without their
+permission—if <quote>if value, then right</quote> is
+true—then the history of the content industry is a history of
+piracy. Every important sector of <quote>big media</quote>
+today—film, records, radio, and cable TV—was born of a
+kind of piracy so defined. The consistent story is how last
+generation's pirates join this generation's country club—until
+now.
</para>
<section id="film">
<title>Film</title>
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Sousa, John Philip</primary></indexterm>
<para>
The innovators who developed the technology to record other
people's works were <quote>sponging upon the toil, the work, the talent, and
created by broadcasters' content.
</para>
<para>
-These separate stories sing a common theme. If <quote>piracy</quote> means
-using value from someone else's creative property without permission
-from that creator—as it is increasingly described
-today<footnote><para>
+<emphasis role='strong'>These separate stories</emphasis> sing a
+common theme. If <quote>piracy</quote> means using value from someone
+else's creative property without permission from that creator—as
+
it is increasingly described today<footnote><para>
<!-- f19 -->
See, for example, National Music Publisher's Association, <citetitle>The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
<chapter label="5" id="piracy">
<title>CHAPTER FIVE: <quote>Piracy</quote></title>
<para>
-There is piracy of copyrighted material. Lots of it. This piracy comes
-in many forms. The most significant is commercial piracy, the
-unauthorized taking of other people's content within a commercial
-context. Despite the many justifications that are offered in its
-defense, this taking is wrong. No one should condone it, and the law
-should stop it.
+<emphasis role='strong'>There is piracy</emphasis> of copyrighted
+material. Lots of it. This piracy comes in many forms. The most
+significant is commercial piracy, the unauthorized taking of other
+people's content within a commercial context. Despite the many
+justifications that are offered in its defense, this taking is
+wrong. No one should condone it, and the law should stop it.
</para>
<para>
But as well as copy-shop piracy, there is another kind of <quote>taking</quote>
law should seek to either prevent it or find an alternative to assure the
author of his profit.
</para>
+<indexterm><primary>innovation</primary></indexterm>
<para>
Peer-to-peer sharing was made famous by Napster. But the inventors of
the Napster technology had not made any major technological
innovations. Like every great advance in innovation on the Internet
(and, arguably, off the Internet as well<footnote><para>
<!-- f5 -->
+<indexterm><primary>innovation</primary></indexterm>
See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The Revolutionary
National Bestseller That Changed the Way We Do Business</citetitle> (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
publisher or the distributor has decided it no longer makes economic
sense <emphasis>to the company</emphasis> to make it available.
</para>
+<indexterm>
+ <primary>books</primary>
+ <secondary>resales of</secondary>
+</indexterm>
<para>
In real space—long before the Internet—the market had a simple
<!-- PAGE BREAK 85 -->
thousands of used book and used record stores in America
today.<footnote><para>
<!-- f16 -->
-While there are not good estimates of the number of used record stores in
-existence, in 2002, there were 7,198 used book dealers in the United States,
-an increase of 20 percent since 1993. See Book Hunter Press, <citetitle>The Quiet
-Revolution: The Expansion of the Used Book Market</citetitle> (2002), available at
-<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used records accounted for $260 million in sales in 2002. See
- National
-Association of Recording Merchandisers, <quote>2002 Annual Survey
- Results,</quote>
-available at
+<indexterm>
+ <primary>books</primary>
+ <secondary>resales of</secondary>
+</indexterm>
+While there are not good estimates of the number of used record stores
+in existence, in 2002, there were 7,198 used book dealers in the
+United States, an increase of 20 percent since 1993. See Book Hunter
+Press, <citetitle>The Quiet Revolution: The Expansion of the Used Book
+Market</citetitle> (2002), available at
+<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used
+records accounted for $260 million in sales in 2002. See National
+Association of Recording Merchandisers, <quote>2002 Annual Survey
+Results,</quote> available at
<ulink url="http://free-culture.cc/notes/">link #20</ulink>.
</para></footnote>
These stores buy content from owners, then sell the content they
the content they sell.
</para>
<indexterm><primary>Bernstein, Leonard</primary></indexterm>
+<indexterm>
+ <primary>books</primary>
+ <secondary>out of print</secondary>
+</indexterm>
<para>
Type C sharing, then, is very much like used book stores or used
record stores. It is different, of course, because the person making
stopped, do you think that libraries and used book stores should be
shut as well?
</para>
+<indexterm id='idxbooksfreeonline1' class='startofrange'>
+ <primary>books</primary>
+ <secondary>free on-line releases of</secondary>
+</indexterm>
<para>
Finally, and perhaps most importantly, file-sharing networks enable
type D sharing to occur—the sharing of content that copyright owners
both he and society are better off. (Actually, much better off: It is a
great book!)
</para>
+<indexterm startref='idxbooksfreeonline1' class='endofrange'/>
<para>
Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
John Schwartz, <quote>New Economy: The Attack on Peer-to-Peer Software
Echoes Past Efforts,</quote> <citetitle>New York Times</citetitle>, 22 September 2003, C3.
</para></footnote>
-Yet when anyone begins to talk about <quote>balance,</quote> the copyright warriors
-raise a different argument. <quote>All this hand waving about balance and
-incentives,</quote> they say, <quote>misses a fundamental point. Our content,</quote> the
-warriors insist, <quote>is our <emphasis>property</emphasis>. Why should we
-wait for Congress to `rebalance' our property rights? Do you have to
-wait before calling the police when your car has been stolen? And why
-should Congress deliberate at all about the merits of this theft? Do
-we ask whether the car thief had a good use for the car before we
-arrest him?</quote>
+</para>
+<para>
+<emphasis role='strong'>Yet when anyone</emphasis> begins to talk
+about <quote>balance,</quote> the copyright warriors raise a different
+argument. <quote>All this hand waving about balance and
+incentives,</quote> they say, <quote>misses a fundamental point. Our
+content,</quote> the warriors insist, <quote>is our
+<emphasis>property</emphasis>. Why should we wait for Congress to
+`rebalance' our property rights? Do you have to wait before calling
+the police when your car has been stolen? And why should Congress
+deliberate at all about the merits of this theft? Do we ask whether
+the car thief had a good use for the car before we arrest him?</quote>
</para>
<para>
<quote>It is <emphasis>our property</emphasis>,</quote> the warriors
<para>
<!-- PAGE BREAK 94 -->
-The copyright warriors are right: A copyright is a kind of
-property. It can be owned and sold, and the law protects against its
-theft. Ordinarily, the copyright owner gets to hold out for any price he
-wants. Markets reckon the supply and demand that partially determine
-the price she can get.
+<emphasis role='strong'>The copyright warriors</emphasis> are right: A
+copyright is a kind of property. It can be owned and sold, and the law
+protects against its theft. Ordinarily, the copyright owner gets to
+hold out for any price he wants. Markets reckon the supply and demand
+that partially determine the price she can get.
</para>
<para>
But in ordinary language, to call a copyright a <quote>property</quote> right is a
<title>CHAPTER SIX: Founders</title>
<indexterm><primary>Henry V</primary></indexterm>
<indexterm><primary>Branagh, Kenneth</primary></indexterm>
+<indexterm id='idxbooksenglishlaw' class='startofrange'>
+ <primary>books</primary>
+ <secondary>English copyright law developed for</secondary>
+</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
-Shakespeare had written. He would continue to write plays through
-1613, and the plays that he wrote have continued to define
-Anglo-American culture ever since. So deeply have the works of a
-sixteenth-century writer seeped into our culture that we often don't
-even recognize their source. I once overheard someone commenting on
-Kenneth Branagh's adaptation of Henry V: <quote>I liked it, but Shakespeare
-is so full of clichés.</quote>
+<emphasis role='strong'>William Shakespeare</emphasis> wrote
+<citetitle>Romeo and Juliet</citetitle> in 1595. The play was first
+published in 1597. It was the eleventh major play that Shakespeare had
+written. He would continue to write plays through 1613, and the plays
+that he wrote have continued to define Anglo-American culture ever
+since. So deeply have the works of a sixteenth-century writer seeped
+into our culture that we often don't even recognize their source. I
+once overheard someone commenting on Kenneth Branagh's adaptation of
+Henry V: <quote>I liked it, but Shakespeare is so full of
+clichés.</quote>
</para>
<para>
In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was written, the
<quote>copy-right</quote> for the work was still thought by many to be the exclusive
right of a single London publisher, Jacob Tonson.<footnote><para>
<!-- f1 -->
+<indexterm><primary>Jonson, Ben</primary></indexterm>
+<indexterm><primary>Dryden, John</primary></indexterm>
Jacob Tonson is typically remembered for his associations with prominent
eighteenth-century literary figures, especially John Dryden, and for his
handsome <quote>definitive editions</quote> of classic works. In addition to <citetitle>Romeo and
copyright. Prices of the classics were thus kept high; competition to
produce better or cheaper editions was eliminated.
</para>
+<indexterm id='idxbritishparliament' class='startofrange'>
+ <primary>British Parliament</primary>
+</indexterm>
<para>
Now, there's something puzzling about the year 1774 to anyone who
knows a little about copyright law. The better-known year in the
right to print—no less, of course, but also no more.
</para>
<indexterm><primary>Henry VIII, King of England</primary></indexterm>
+<indexterm><primary>Statute of Monopolies (1656)</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
They had had a long and ugly experience with <quote>exclusive rights,</quote>
only so long as it benefited society. The British saw the harms from
specialinterest favors; they passed a law to stop them.
</para>
+<indexterm id='idxbooksellers' class='startofrange'>
+ <primary>booksellers, English</primary>
+</indexterm>
<para>
Second, about booksellers. It wasn't just that the copyright was a
monopoly. It was also that it was a monopoly held by the booksellers.
Donaldson's. A number of actions were successful against the <quote>pirates,</quote>
the most important early victory being <citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>.
</para>
+<indexterm><primary>Taylor, Robert</primary></indexterm>
<para>
Millar was a bookseller who in 1729 had purchased the rights to James
Thomson's poem <quote>The Seasons.</quote> Millar complied with the requirements of
culture is available to people and how they get access to it are made
by the few despite the wishes of the many.
</para>
+<indexterm startref='idxbooksellers' class='endofrange'/>
<para>
At least, this was the rule in a world where the Parliament is
antimonopoly, resistant to the protectionist pleas of publishers. In a
world where the Parliament is more pliant, free culture would be less
protected.
</para>
+<indexterm startref='idxbritishparliament' class='endofrange'/>
+<indexterm startref='idxbooksenglishlaw' class='endofrange'/>
<!-- PAGE BREAK 106 -->
</chapter>
<chapter label="7" id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
<para>
-Jon Else is a filmmaker. He is best known for his documentaries and
-has been very successful in spreading his art. He is also a teacher, and
-as a teacher myself, I envy the loyalty and admiration that his students
-feel for him. (I met, by accident, two of his students at a dinner party.
-He was their god.)
+<emphasis role='strong'>Jon Else</emphasis> is a filmmaker. He is best
+known for his documentaries and has been very successful in spreading
+his art. He is also a teacher, and as a teacher myself, I envy the
+loyalty and admiration that his students feel for him. (I met, by
+accident, two of his students at a dinner party. He was their god.)
</para>
<para>
Else worked on a documentary that I was involved in. At a break,
to use this four-point-five seconds of … entirely unsolicited
<citetitle>Simpsons</citetitle> which was in the corner of the shot.</quote>
</para>
+<indexterm><primary>Herrera, Rebecca</primary></indexterm>
<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
shot in the film. They take a dim view of <quote>fair use,</quote> and a claim of
<quote>fair use</quote> can grind the application process to a halt.
</para></listitem>
-<listitem><para>
+<listitem>
+<indexterm><primary><citetitle>Star Wars</citetitle></primary></indexterm>
+<para>
<!-- 2. -->
I probably never should have asked Matt Groening in the first
place. But I knew (at least from folklore) that Fox had a history of
<indexterm id='idxalbenalex1' class='startofrange'>
<primary>Alben, Alex</primary>
</indexterm>
+<indexterm><primary>Microsoft</primary></indexterm>
<para>
-In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
-was an innovative company founded by Microsoft cofounder Paul Allen to
-develop digital entertainment. Long before the Internet became
-popular, Starwave began investing in new technology for delivering
-entertainment in anticipation of the power of networks.
+<emphasis role='strong'>In 1993</emphasis>, Alex Alben was a lawyer
+working at Starwave, Inc. Starwave was an innovative company founded
+by Microsoft cofounder Paul Allen to develop digital
+entertainment. Long before the Internet became popular, Starwave began
+investing in new technology for delivering entertainment in
+anticipation of the power of networks.
</para>
<indexterm id='idxartistsretrospective' class='startofrange'>
<primary>artists</primary>
started calling people.
</para>
</blockquote>
+<indexterm><primary>Sutherland, Donald</primary></indexterm>
<para>
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
What reason would anyone have to oppose it?
</para>
<para>
-In February 2003, DreamWorks studios announced an agreement with Mike
-Myers, the comic genius of <citetitle>Saturday Night Live</citetitle> and
+<emphasis role='strong'>In February 2003</emphasis>, DreamWorks
+studios announced an agreement with Mike Myers, the comic genius of
+<citetitle>Saturday Night Live</citetitle> and
<!-- PAGE BREAK 118 -->
Austin Powers. According to the announcement, Myers and Dream-Works
would work together to form a <quote>unique filmmaking pact.</quote> Under the
<indexterm id='idxarchivesdigital1' class='startofrange'>
<primary>archives, digital</primary>
</indexterm>
+<indexterm><primary>bots</primary></indexterm>
<para>
-In April 1996, millions of <quote>bots</quote>—computer codes designed to
-<quote>spider,</quote> or automatically search the Internet and copy content—began
-running across the Net. Page by page, these bots copied Internet-based
-information onto a small set of computers located in a basement in San
-Francisco's Presidio. Once the bots finished the whole of the Internet,
-they started again. Over and over again, once every two months, these
-bits of code took copies of the Internet and stored them.
+<emphasis role='strong'>In April 1996</emphasis>, millions of
+<quote>bots</quote>—computer codes designed to
+<quote>spider,</quote> or automatically search the Internet and copy
+content—began running across the Net. Page by page, these bots
+copied Internet-based information onto a small set of computers
+located in a basement in San Francisco's Presidio. Once the bots
+finished the whole of the Internet, they started again. Over and over
+again, once every two months, these bits of code took copies of the
+Internet and stored them.
</para>
<para>
By October 2001, the bots had collected more than five years of
perhaps, you also have the power to find what you don't remember and
what others might prefer you forget.<footnote><para>
<!-- f1 -->
+<indexterm><primary>Iraq war</primary></indexterm>
+<indexterm><primary>White House press releases</primary></indexterm>
The temptations remain, however. Brewster Kahle reports that the White
House changes its own press releases without notice. A May 13, 2003,
press release stated, <quote>Combat Operations in Iraq Have Ended.</quote> That was
Have Ended.</quote> E-mail from Brewster Kahle, 1 December 2003.
</para></footnote>
</para>
+<indexterm><primary>history, records of</primary></indexterm>
<para>
-We take it for granted that we can go back to see what we remember
-reading. Think about newspapers. If you wanted to study the reaction
-of your hometown newspaper to the race riots in Watts in 1965, or to
-Bull Connor's water cannon in 1963, you could go to your public
-library and look at the newspapers. Those papers probably exist on
-microfiche. If you're lucky, they exist in paper, too. Either way, you
-are free, using a library, to go back and remember—not just what
-it is convenient to remember, but remember something close to the
-truth.
+<emphasis role='strong'>We take it</emphasis> for granted that we can
+go back to see what we remember reading. Think about newspapers. If
+you wanted to study the reaction of your hometown newspaper to the
+race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
+you could go to your public library and look at the newspapers. Those
+papers probably exist on microfiche. If you're lucky, they exist in
+paper, too. Either way, you are free, using a library, to go back and
+remember—not just what it is convenient to remember, but
+remember something close to the truth.
</para>
<para>
It is said that those who fail to remember history are doomed to
Carnegie of the Internet. By December of 2002, the archive had over 10
billion pages, and it was growing at about a billion pages a month.
</para>
+<indexterm><primary>Vanderbilt University</primary></indexterm>
<para>
The Way Back Machine is the largest archive of human knowledge in
human history. At the end of 2002, it held <quote>two hundred and thirty
the content can continue to inform even if that information is no
longer sold.
</para>
+<indexterm>
+ <primary>books</primary>
+ <secondary>out of print</secondary>
+</indexterm>
<para>
The same has always been true about books. A book goes out of print
very quickly (the average today is after about a year<footnote><para>
<!-- f3 -->
+<indexterm>
+ <primary>books</primary>
+ <secondary>out of print</secondary>
+</indexterm>
Dave Barns, <quote>Fledgling Career in Antique Books: Woodstock Landlord,
Bar Owner Starts a New Chapter by Adopting Business,</quote> <citetitle>Chicago Tribune</citetitle>,
5 September 1997, at Metro Lake 1L. Of books published between 1927
disappears.
</para>
<para>
-For most of the twentieth century, it was economics that made this
-so. It would have been insanely expensive to collect and make
-accessible all television and film and music: The cost of analog
-copies is extraordinarily high. So even though the law in principle
-would have restricted the ability of a Brewster Kahle to copy culture
-generally, the
+<emphasis role='strong'>For most of</emphasis> the twentieth century,
+it was economics that made this so. It would have been insanely
+expensive to collect and make accessible all television and film and
+music: The cost of analog copies is extraordinarily high. So even
+though the law in principle would have restricted the ability of a
+Brewster Kahle to copy culture generally, the
<!-- PAGE BREAK 125 -->
real restriction was economics. The market made it impossibly
difficult to do anything about this ephemeral culture; the law had
</chapter>
<chapter label="10" id="property-i">
<title>CHAPTER TEN: <quote>Property</quote></title>
-<para>
-Jack Valenti has been the president of the Motion Picture Association
-of America since 1966. He first came to Washington, D.C., with Lyndon
-Johnson's administration—literally. The famous picture of
-Johnson's swearing-in on Air Force One after the assassination of
-President Kennedy has Valenti in the background. In his almost forty
-years of running the MPAA, Valenti has established himself as perhaps
-the most prominent and effective lobbyist in Washington.
<indexterm><primary>Johnson, Lyndon</primary></indexterm>
<indexterm><primary>Kennedy, John F.</primary></indexterm>
+<para>
+<emphasis role='strong'>Jack Valenti</emphasis> has been the president
+of the Motion Picture Association of America since 1966. He first came
+to Washington, D.C., with Lyndon Johnson's
+administration—literally. The famous picture of Johnson's
+swearing-in on Air Force One after the assassination of President
+Kennedy has Valenti in the background. In his almost forty years of
+running the MPAA, Valenti has established himself as perhaps the most
+prominent and effective lobbyist in Washington.
</para>
<para>
The MPAA is the American branch of the international Motion Picture
organization does. No person does. (Ask me about tenure, for example.)
But what's good for the MPAA is not necessarily good for America. A
society that defends the ideals of free culture must preserve
-precisely the opportunity for new creativity to threaten the old. To
-get just a hint that there is something fundamentally wrong in
-Valenti's argument, we need look no further than the United States
-Constitution itself.
+precisely the opportunity for new creativity to threaten the old.
+</para>
+<para>
+<emphasis role='strong'>To get</emphasis> just a hint that there is
+something fundamentally wrong in Valenti's argument, we need look no
+further than the United States Constitution itself.
</para>
<para>
The framers of our Constitution loved <quote>property.</quote> Indeed, so strongly
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
</para>
+<indexterm><primary>steel industry</primary></indexterm>
<para>
This mixed strategy is just what copyright needed—if it was to
preserve the particular balance that existed before the change induced
<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, 498–501, and
accompanying figures. </para></footnote>
</para>
+<indexterm>
+ <primary>books</primary>
+ <secondary>out of print</secondary>
+</indexterm>
+<indexterm>
+ <primary>books</primary>
+ <secondary>resales of</secondary>
+</indexterm>
<para>
Even today, this structure would make sense. Most creative work
has an actual commercial life of just a couple of years. Most books fall
<title>All potential uses of a book.</title>
<graphic fileref="images/1521.png"></graphic>
</figure>
+<indexterm id='idxbooksusetypes' class='startofrange'>
+ <primary>books</primary>
+ <secondary>three types of uses of</secondary>
+</indexterm>
<para>
<!-- PAGE BREAK 152 -->
Think about a book in real space, and imagine this circle to represent
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
are nonetheless deemed <quote>fair</quote> regardless of the copyright owner's views.
</para>
+<indexterm startref='idxbooksusetypes' class='endofrange'/>
+<indexterm>
+ <primary>books</primary>
+ <secondary>on Internet</secondary>
+</indexterm>
<para>
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.<footnote><para>
use—reading— could be regulated by copyright law because
none of those uses produced a copy.
</para>
+<indexterm>
+ <primary>books</primary>
+ <secondary>on Internet</secondary>
+</indexterm>
<para>
But the same book as an e-book is effectively governed by a different
set of rules. Now if the copyright owner says you may read the book
videos. Video Pipeline got the trailers from the film distributors, put
the trailers on tape, and sold the tapes to the retail stores.
</para>
+<indexterm><primary>browsing</primary></indexterm>
<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
because the technology builds a copy into every transaction.
</para>
<indexterm><primary>Barnes & Noble</primary></indexterm>
+<indexterm><primary>browsing</primary></indexterm>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
silly claim. This extremism was irrelevant to the real freedoms anyone
(including Warner Brothers) enjoyed.
</para>
+<indexterm id='idxbooksoninternet' class='startofrange'>
+ <primary>books</primary>
+ <secondary>on Internet</secondary>
+</indexterm>
<para>
On the Internet, however, there is no check on silly rules, because on
the Internet, increasingly, rules are enforced not by a human but by a
often crazy.
</para>
<indexterm startref="idxadobeebookreader" class='endofrange'/>
+<indexterm startref='idxbooksoninternet' class='endofrange'/>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
was giving information to users of the Aibo pet about how to hack
their computer <quote>dog</quote> to make it do new tricks (thus, aibohack.com).
</para>
+<indexterm><primary>hacks</primary></indexterm>
<para>
If you're not a programmer or don't know many programmers, the word
<citetitle>hack</citetitle> has a particularly unfriendly
to enable the use of particular copyrighted materials in ways that
would be considered fair use—a good end.
</para>
+<indexterm id='idxhandguns' class='startofrange'>
+ <primary>handguns</primary>
+</indexterm>
<para>
A handgun can be used to shoot a police officer or a child. Most
<!-- PAGE BREAK 171 -->
<title>VCR/handgun cartoon.</title>
<graphic fileref="images/1711.png"></graphic>
</figure>
+<indexterm><primary>Conrad, Paul</primary></indexterm>
<para>
The obvious point of Conrad's cartoon is the weirdness of a world
where guns are legal, despite the harm they can do, while VCRs (and
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>
+<indexterm startref='idxhandguns' class='endofrange'/>
<indexterm><primary>Aibo robotic dog</primary></indexterm>
<indexterm><primary>robotic dog</primary></indexterm>
<indexterm>
that space to do as you wished with this part of our culture. You were
allowed to build on it as you wished without fear of legal control.
</para>
+<indexterm><primary>bots</primary></indexterm>
<para>
But if you moved your club onto the Internet, and made it generally
available for others to join, the story would be very different. Bots
</para></footnote>
</para>
<para>
-This has been a long chapter. Its point can now be briefly stated.
+<emphasis role='strong'>This has been</emphasis> a long chapter. Its
+point can now be briefly stated.
</para>
<para>
At the start of this book, I distinguished between commercial and
</indexterm>
<para>
-In a well-known short story by H. G. Wells, a mountain climber
-named Nunez trips (literally, down an ice slope) into an unknown and
-isolated valley in the Peruvian Andes.<footnote><para>
+<emphasis role='strong'>In a well-known</emphasis> short story by
+H. G. Wells, a mountain climber named Nunez trips (literally, down an
+ice slope) into an unknown and isolated valley in the Peruvian
+Andes.<footnote><para>
<!-- f1. -->
H. G. Wells, <quote>The Country of the Blind</quote> (1904, 1911). See H. G. Wells,
<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael Sherborne, ed. (New
Nunez of this condition necessary for him to be allowed his bride.
(You'll have to read the original to learn what happens in the end. I
believe in free culture, but never in giving away the end of a story.)
-It sometimes happens that the eggs of twins fuse in the mother's
-womb. That fusion produces a <quote>chimera.</quote> A chimera is a single creature
-with two sets of DNA. The DNA in the blood, for example, might be
-different from the DNA of the skin. This possibility is an underused
+</para>
+<para>
+<emphasis role='strong'>It sometimes</emphasis> happens that the eggs
+of twins fuse in the mother's womb. That fusion produces a
+<quote>chimera.</quote> A chimera is a single creature with two sets
+of DNA. The DNA in the blood, for example, might be different from the
+DNA of the skin. This possibility is an underused
<!-- PAGE BREAK 188 -->
plot for murder mysteries. <quote>But the DNA shows with 100 percent
be extreme, but each of them has either been proposed or actually
implemented.<footnote><para>
<!-- f2. -->
+<indexterm><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
For an excellent summary, see the report prepared by GartnerG2 and the
Berkman Center for Internet and Society at Harvard Law School,
<quote>Copyright and Digital Media in a Post-Napster World,</quote> 27 June 2003,
<chapter label="12" id="harms">
<title>CHAPTER TWELVE: Harms</title>
<para>
-To fight <quote>piracy,</quote> to protect <quote>property,</quote> 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.
+<emphasis role='strong'>To fight</emphasis> <quote>piracy,</quote> to
+protect <quote>property,</quote> 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.
</para>
<para>
My aim so far has been to describe the consequences of this war, in
In the act of mixing the culture around us with an expression that is
critical or reflective.
</para>
+<indexterm><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
<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
the songs that you played in the privacy of your own home that anyone
could tune into for whatever reason they chose.
</para>
+<indexterm><primary>images, ownership of</primary></indexterm>
<para>
Never in our history has a painter had to worry about whether
his painting infringed on someone else's work; but the modern-day
law where the law is not doing any good. The transaction costs buried
within a permission culture are enough to bury a wide range of
creativity. Someone needs to do a lot of justifying to justify that
-result. The uncertainty of the law is one burden on innovation. There
-is a second burden that operates more directly. This is the effort by
-many in the content industry to use the law to directly regulate the
-technology of the Internet so that it better protects their content.
+result.
+</para>
+<para>
+<emphasis role='strong'>The uncertainty</emphasis> of the law is one
+burden on innovation. There is a second burden that operates more
+directly. This is the effort by many in the content industry to use
+the law to directly regulate the technology of the Internet so that it
+better protects their content.
</para>
<para>
The motivation for this response is obvious. The Internet enables the
<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.
+<emphasis role='strong'>There is one</emphasis> 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
<para>
The response by the courts has been fairly universal.<footnote><para>
<!-- f10. -->
+<indexterm><primary>Grokster, Ltd.</primary></indexterm>
The only circuit court exception is found in <citetitle>Recording Industry
Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 180 F. 3d
1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
implemented by Congress. I won't catalog all of those responses
here.<footnote><para>
<!-- f11. -->
+<indexterm><primary>Tauzin, Billy</primary></indexterm>
For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
Valenti is charming; but not so charming as to justify giving up a
tradition as deep and important as our tradition of free culture.
-There's one more aspect to this corruption that is particularly
-important to civil liberties, and follows directly from any war of
-prohibition. As Electronic Frontier Foundation attorney Fred von
-Lohmann describes, this is the <quote>collateral damage</quote> that <quote>arises
-whenever you turn a very large percentage of the population into
-criminals.</quote> This is the collateral damage to civil liberties
-generally.
+</para>
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
+<indexterm id='idxisps' class='startofrange'>
+ <primary>ISPs (Internet service providers), user identities revealed by</primary>
+</indexterm>
+<para>
+<emphasis role='strong'>There's one more</emphasis> aspect to this
+corruption that is particularly important to civil liberties, and
+follows directly from any war of prohibition. As Electronic Frontier
+Foundation attorney Fred von Lohmann describes, this is the
+<quote>collateral damage</quote> that <quote>arises whenever you turn
+a very large percentage of the population into criminals.</quote> This
+is the collateral damage to civil liberties generally.
</para>
<para>
<quote>If you can treat someone as a putative lawbreaker,</quote> von Lohmann
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
</para>
+<indexterm startref='idxisps' class='endofrange'/>
<para>
Now, of course, she'll have the right to defend herself. You can hire
a lawyer for her (at $300 per hour, if you're lucky), and she can
<!-- PAGE BREAK 218 -->
<para>
-So here's the picture: You're standing at the side of the road. Your
-car is on fire. You are angry and upset because in part you helped start
-the fire. Now you don't know how to put it out. Next to you is a bucket,
-filled with gasoline. Obviously, gasoline won't put the fire out.
+<emphasis role='strong'>So here's</emphasis> the picture: You're
+standing at the side of the road. Your car is on fire. You are angry
+and upset because in part you helped start the fire. Now you don't
+know how to put it out. Next to you is a bucket, filled with
+gasoline. Obviously, gasoline won't put the fire out.
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
everything around.
</para>
<para>
-A war about copyright rages all around—and we're all focusing on
-the wrong thing. No doubt, current technologies threaten existing
-businesses. No doubt they may threaten artists. But technologies
-change. The industry and technologists have plenty of ways to use
-technology to protect themselves against the current threats of the
-Internet. This is a fire that if let alone would burn itself out.
+<emphasis role='strong'>A war</emphasis> about copyright rages all
+around—and we're all focusing on the wrong thing. No doubt,
+current technologies threaten existing businesses. No doubt they may
+threaten artists. But technologies change. The industry and
+technologists have plenty of ways to use technology to protect
+themselves against the current threats of the Internet. This is a fire
+that if let alone would burn itself out.
</para>
<para>
<!-- PAGE BREAK 219 -->
<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
-least one did something about it. Eric Eldred, a retired computer
-programmer living in New Hampshire, decided to put Hawthorne on the
-Web. An electronic version, Eldred thought, with links to pictures and
-explanatory text, would make this nineteenth-century author's work
-come alive.
+<emphasis role='strong'>In 1995</emphasis>, a father was frustrated
+that his daughters didn't seem to like Hawthorne. No doubt there was
+more than one such father, but at least one did something about
+it. Eric Eldred, a retired computer programmer living in New
+Hampshire, decided to put Hawthorne on the Web. An electronic version,
+Eldred thought, with links to pictures and explanatory text, would
+make this nineteenth-century author's work come alive.
</para>
<para>
It didn't work—at least for his daughters. They didn't find
</para>
<para>
-Constitutional law is not oblivious to the obvious. Or at least,
-it need not be. So when I was considering Eldred's complaint, this
- reality
-about the never-ending incentives to increase the copyright term
-was central to my thinking. In my view, a pragmatic court committed
-to interpreting and applying the Constitution of our framers would see
-that if Congress has the power to extend existing terms, then there
-would be no effective constitutional requirement that terms be
- <quote>limited.</quote>
-If they could extend it once, they would extend it again and again
-and again.
+<emphasis role='strong'>Constitutional law</emphasis> is not oblivious
+to the obvious. Or at least, it need not be. So when I was considering
+Eldred's complaint, this reality about the never-ending incentives to
+increase the copyright term was central to my thinking. In my view, a
+pragmatic court committed to interpreting and applying the
+Constitution of our framers would see that if Congress has the power
+to extend existing terms, then there would be no effective
+constitutional requirement that terms be <quote>limited.</quote> If
+they could extend it once, they would extend it again and again and
+again.
</para>
<para>
It was also my judgment that <emphasis>this</emphasis> Supreme Court
were going to be petty politicians.
</para>
<para>
-Now let's pause for a moment to make sure we understand what the
-argument in <citetitle>Eldred</citetitle> was not about. By insisting on the
+<emphasis role='strong'>Now let's pause</emphasis> for a moment to
+make sure we understand what the argument in
+<citetitle>Eldred</citetitle> was not about. By insisting on the
Constitution's limits to copyright, obviously Eldred was not endorsing
piracy. Indeed, in an obvious sense, he was fighting a kind of
piracy—piracy of the public domain. When Robert Frost wrote his
bought to extend them again.
</para>
<para>
-It is valuable copyrights that are responsible for terms being
- extended.
-Mickey Mouse and <quote>Rhapsody in Blue.</quote> These works are too
-valuable for copyright owners to ignore. But the real harm to our
- society
-from copyright extensions is not that Mickey Mouse remains
- Disney's.
-Forget Mickey Mouse. Forget Robert Frost. Forget all the works
-from the 1920s and 1930s that have continuing commercial value. The
-real harm of term extension comes not from these famous works. The
-real harm is to the works that are not famous, not commercially
- exploited,
+<emphasis role='strong'>It is valuable</emphasis> copyrights that are
+responsible for terms being extended. Mickey Mouse and
+<quote>Rhapsody in Blue.</quote> These works are too valuable for
+copyright owners to ignore. But the real harm to our society from
+copyright extensions is not that Mickey Mouse remains Disney's.
+Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
+the 1920s and 1930s that have continuing commercial value. The real
+harm of term extension comes not from these famous works. The real
+harm is to the works that are not famous, not commercially exploited,
and no longer available as a result.
</para>
<para>
than dust.
</para>
<para>
-Of all the creative work produced by humans anywhere, a tiny
-fraction has continuing commercial value. For that tiny fraction, the
-copyright is a crucially important legal device. For that tiny fraction,
-the copyright creates incentives to produce and distribute the
- creative
-work. For that tiny fraction, the copyright acts as an <quote>engine of
-free expression.</quote>
+<emphasis role='strong'>Of all the</emphasis> creative work produced
+by humans anywhere, a tiny fraction has continuing commercial
+value. For that tiny fraction, the copyright is a crucially important
+legal device. For that tiny fraction, the copyright creates incentives
+to produce and distribute the creative work. For that tiny fraction,
+the copyright acts as an <quote>engine of free expression.</quote>
</para>
<para>
But even for that tiny fraction, the actual time during which the
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
-district court in Washington, D.C., asking the court to declare the
-Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
-violated the Constitution's <quote>limited Times</quote> requirement, and (2) that
-extending terms by another twenty years violated the First Amendment.
+<emphasis role='strong'>In January 1999</emphasis>, we filed a lawsuit
+on Eric Eldred's behalf in federal district court in Washington, D.C.,
+asking the court to declare the Sonny Bono Copyright Term Extension
+Act unconstitutional. The two central claims that we made were (1)
+that extending existing terms violated the Constitution's
+<quote>limited Times</quote> requirement, and (2) that extending terms
+by another twenty years violated the First Amendment.
</para>
<para>
The district court dismissed our claims without even hearing an
important cases or cases that raise issues specific to the circuit as a
whole, where the court will sit <quote>en banc</quote> to hear the case.
</para>
+<indexterm><primary>Tatel, David</primary></indexterm>
<para>
The Court of Appeals rejected our request to hear the case en banc.
This time, Judge Sentelle was joined by the most liberal member of the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still
-astonishingly hard. If you know anything at all about this story, you
-know that we lost the appeal. And if you know something more than just
-the minimum, you probably think there was no way this case could have
-been won. After our defeat, I received literally thousands of missives
-by well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
-significant to me than the e-mail from my client, Eric Eldred.
+<emphasis role='strong'>It is over</emphasis> a year later as I write
+these words. It is still astonishingly hard. If you know anything at
+all about this story, you know that we lost the appeal. And if you
+know something more than just the minimum, you probably think there
+was no way this case could have been won. After our defeat, I received
+literally thousands of missives by well-wishers and supporters,
+thanking me for my work on behalf of this noble but doomed cause. And
+none from this pile was more significant to me than the e-mail from my
+client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
</para>
<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the very
-end. Our case had been supported from the very beginning by an
-extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
-moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
-heat
+<emphasis role='strong'>The mistake</emphasis> was made early, though
+it became obvious only at the very end. Our case had been supported
+from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
+and by the law firm he had moved to, Jones, Day, Reavis and
+Pogue. Jones Day took a great deal of heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
ignored this pressure (something that few law firms today would ever
copyrights—extensions that would further concentrate the market;
it would also mean that there was no limit to Congress's power to play
favorites, through copyright, with who has the right to speak.
-Between February and October, there was little I did beyond preparing
-for this case. Early on, as I said, I set the strategy.
+</para>
+<para>
+<emphasis role='strong'>Between February</emphasis> 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>
<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
assure that Congress's powers had limits.
</para>
<indexterm><primary>Breyer, Stephen</primary></indexterm>
+<indexterm id='idxginsburg' class='startofrange'>
+ <primary>Ginsburg, Ruth Bader</primary>
+</indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
Congress's power. These four—Justice Stevens, Justice Souter,
believed, there was a very important free speech argument against
these retrospective extensions.
</para>
+<indexterm startref='idxginsburg' class='endofrange'/>
<para>
The only vote we could be confident about was that of Justice
Stevens. History will record Justice Stevens as one of the greatest
be limited.
</para>
<para>
-The argument on the government's side came down to this: Congress has
-done it before. It should be allowed to do it again. The government
-claimed that from the very beginning, Congress has been extending the
-term of existing copyrights. So, the government argued, the Court
-should not now say that practice is unconstitutional.
+<emphasis role='strong'>The argument</emphasis> on the government's
+side came down to this: Congress has done it before. It should be
+allowed to do it again. The government claimed that from the very
+beginning, Congress has been extending the term of existing
+copyrights. So, the government argued, the Court should not now say
+that practice is unconstitutional.
</para>
<para>
There was some truth to the government's claim, but not much. We
hesitated
to intervene where Congress was in a similar cycle of extension.
There was no reason it couldn't intervene here.
-Oral argument was scheduled for the first week in October. I
- arrived
-in D.C. two weeks before the argument. During those two
-weeks, I was repeatedly <quote>mooted</quote> by lawyers who had volunteered to
+</para>
+<para>
+<emphasis role='strong'>Oral argument</emphasis> was scheduled for the
+first week in October. I arrived in D.C. two weeks before the
+argument. During those two weeks, I was repeatedly
+<quote>mooted</quote> by lawyers who had volunteered to
<!-- PAGE BREAK 244 -->
help in the case. Such <quote>moots</quote> are basically practice rounds, where
I listened to Ayer's plea for passion in pressing politics, I understood
his point, and I rejected it. Our argument was right. That was enough.
Let the politicians learn to see that it was also good.
-The night before the argument, a line of people began to form
-in front of the Supreme Court. The case had become a focus of the
-press and of the movement to free culture. Hundreds stood in line
+</para>
+<para>
+<emphasis role='strong'>The night before</emphasis> the argument, a
+line of people began to form in front of the Supreme Court. The case
+had become a focus of the press and of the movement to free
+culture. Hundreds stood in line
<!-- PAGE BREAK 245 -->
for the chance to see the proceedings. Scores spent the night on the
Court to my side.
</para>
<para>
-As I left the court that day, I knew there were a hundred points I
-wished I could remake. There were a hundred questions I wished I had
+<emphasis role='strong'>As I left</emphasis> the court that day, I
+knew there were a hundred points I wished I could remake. There were a
+hundred questions I wished I had
<!-- PAGE BREAK 248 -->
answered differently. But one way of thinking about this case left me
law that it had established elsewhere.
</para>
<para>
-The morning of January 15, 2003, I was five minutes late to the office
-and missed the 7:00 A.M. call from the Supreme Court clerk. Listening to
-the message, I could tell in an instant that she had bad news to report.The
-Supreme Court had affirmed the decision of the Court of Appeals. Seven
-justices had voted in the majority. There were two dissents.
+<emphasis role='strong'>The morning</emphasis> of January 15, 2003, I
+was five minutes late to the office and missed the 7:00 A.M. call from
+the Supreme Court clerk. Listening to the message, I could tell in an
+instant that she had bad news to report.The Supreme Court had affirmed
+the decision of the Court of Appeals. Seven justices had voted in the
+majority. There were two dissents.
</para>
<para>
A few seconds later, the opinions arrived by e-mail. I took the
cited. The argument that was the core argument of our case did not
even appear in the Court's opinion.
</para>
+<indexterm><primary>Ginsburg, Ruth Bader</primary></indexterm>
<para>
<!-- PAGE BREAK 249 -->
Sentelle. It was <citetitle>Hamlet</citetitle> without the Prince.
</para>
<para>
-Defeat brings depression. They say it is a sign of health when
-depression gives way to anger. My anger came quickly, but it didn't cure
-the depression. This anger was of two sorts.
+<emphasis role='strong'>Defeat brings depression</emphasis>. They say
+it is a sign of health when depression gives way to anger. My anger
+came quickly, but it didn't cure the depression. This anger was of two
+sorts.
</para>
<indexterm><primary>originalism</primary></indexterm>
<para>
a way that would do some good or they were not ready to hear this case
in a way that would do some good. Either way, the decision to bring
this case—a decision I had made four years before—was wrong.
-While the reaction to the Sonny Bono Act itself was almost
-unanimously negative, the reaction to the Court's decision was mixed.
-No one, at least in the press, tried to say that extending the term of
-copyright was a good idea. We had won that battle over ideas. Where
+</para>
+<para>
+<emphasis role='strong'>While the reaction</emphasis> to the Sonny
+Bono Act itself was almost unanimously negative, the reaction to the
+Court's decision was mixed. No one, at least in the press, tried to
+say that extending the term of copyright was a good idea. We had won
+that battle over ideas. Where
<!-- PAGE BREAK 253 -->
the decision was praised, it was praised by papers that had been
<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
-Washington, D.C. (The day the rehearing petition in <citetitle>Eldred</citetitle> was
-denied—meaning the case was really finally over—fate would
-have it that I was giving a speech to technologists at Disney World.)
-This was a particularly long flight to my least favorite city. The
-drive into the city from Dulles was delayed because of traffic, so I
-opened up my computer and wrote an op-ed piece.
+<emphasis role='strong'>The day</emphasis>
+<citetitle>Eldred</citetitle> was decided, fate would have it that I
+was to travel to Washington, D.C. (The day the rehearing petition in
+<citetitle>Eldred</citetitle> was denied—meaning the case was
+really finally over—fate would have it that I was giving a
+speech to technologists at Disney World.) This was a particularly
+long flight to my least favorite city. The drive into the city from
+Dulles was delayed because of traffic, so I opened up my computer and
+wrote an op-ed piece.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
<!-- f1. -->
+<indexterm><primary>German copyright law</primary></indexterm>
Until the 1908 Berlin Act of the Berne Convention, national copyright
legislation sometimes made protection depend upon compliance with
formalities such as registration, deposit, and affixation of notice of
</para>
<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-When Steve Forbes endorsed the idea, some in Washington began to pay
-attention. Many people contacted me pointing to representatives who
-might be willing to introduce the Eldred Act. And I had a few who
-directly suggested that they might be willing to take the first step.
+<emphasis role='strong'>When Steve Forbes</emphasis> endorsed the
+idea, some in Washington began to pay attention. Many people contacted
+me pointing to representatives who might be willing to introduce the
+Eldred Act. And I had a few who directly suggested that they might be
+willing to take the first step.
</para>
<para>
One representative, Zoe Lofgren of California, went so far as to get
about a copyright, they're not likely to.
</para>
<para>
-At the beginning of this book, I told two stories about the law
-reacting to changes in technology. In the one, common sense prevailed.
-In the other, common sense was delayed. The difference between the two
-stories was the power of the opposition—the power of the side
-that fought to defend the status quo. In both cases, a new technology
-threatened old interests. But in only one case did those interest's
-have the power to protect themselves against this new competitive
-threat.
+<emphasis role='strong'>At the beginning</emphasis> of this book, I
+told two stories about the law reacting to changes in technology. In
+the one, common sense prevailed. In the other, common sense was
+delayed. The difference between the two stories was the power of the
+opposition—the power of the side that fought to defend the
+status quo. In both cases, a new technology threatened old
+interests. But in only one case did those interest's have the power to
+protect themselves against this new competitive threat.
</para>
<para>
I used these two cases as a way to frame the war that this book has
don't recognize the reasons for limiting copyright terms; it is thus
still possible to see good faith within the resistance.
</para>
+<indexterm><primary>Kelly, Kevin</primary></indexterm>
<para>
But when the copyright owners oppose a proposal such as the Eldred
Act, then, finally, there is an example that lays bare the naked
content. It would simply liberate what Kevin Kelly calls the <quote>Dark
Content</quote> 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?
<primary>Africa, medications for HIV patients in</primary>
</indexterm>
<para>
-There are more than 35 million people with the AIDS virus
-worldwide. Twenty-five million of them live in sub-Saharan Africa.
-Seventeen million have already died. Seventeen million Africans
-is proportional percentage-wise to seven million Americans. More
-importantly, it is seventeen million Africans.
+<emphasis role='strong'>There are more</emphasis> than 35 million
+people with the AIDS virus worldwide. Twenty-five million of them live
+in sub-Saharan Africa. Seventeen million have already died. Seventeen
+million Africans is proportional percentage-wise to seven million
+Americans. More importantly, it is seventeen million Africans.
</para>
<para>
There is no cure for AIDS, but there are drugs to slow its
<indexterm startref="idxhivaidstherapies" class='endofrange'/>
<indexterm startref="idxantiretroviraldrugs" class='endofrange'/>
<para>
-A simple idea blinds us, and under the cover of darkness, much happens
-that most of us would reject if any of us looked. So uncritically do
-we accept the idea of property in ideas that we don't even notice how
-monstrous it is to deny ideas to a people who are dying without
-them. So uncritically do we accept the idea of property in culture
-that we don't even question when the control of that property removes
-our
+<emphasis role='strong'>A simple idea</emphasis> blinds us, and under
+the cover of darkness, much happens that most of us would reject if
+any of us looked. So uncritically do we accept the idea of property in
+ideas that we don't even notice how monstrous it is to deny ideas to a
+people who are dying without them. So uncritically do we accept the
+idea of property in culture that we don't even question when the
+control of that property removes our
<!-- PAGE BREAK 269 -->
ability, as a people, to develop our culture democratically. Blindness
becomes our common sense. And the challenge for anyone who would
<indexterm id='idxbiomedicalresearch' class='startofrange'>
<primary>biomedical research</primary>
</indexterm>
+<indexterm><primary>Wellcome Trust</primary></indexterm>
<para>
-In August 2003, a fight broke out in the United States about a
-decision by the World Intellectual Property Organization to cancel a
-meeting.<footnote><para>
+<emphasis role='strong'>In August 2003</emphasis>, a fight broke out
+in the United States about a decision by the World Intellectual
+
Property Organization to cancel a meeting.<footnote><para>
<!-- f6. --> Jonathan Krim, <quote>The Quiet War over Open-Source,</quote> <citetitle>Washington Post</citetitle>,
August 2003, E1, available at
<ulink url="http://free-culture.cc/notes/">link #59</ulink>; William New, <quote>Global Group's
powerful software producer in the United States having succeeded in
its lobbying efforts.
</para>
+<indexterm><primary>Boland, Lois</primary></indexterm>
<para>
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
first-year law student, but an embarrassment from a high government
official dealing with intellectual property issues.
</para>
+<indexterm><primary>generic drugs</primary></indexterm>
<para>
Second, who ever said that WIPO's exclusive aim was to <quote>promote</quote>
intellectual property maximally? As I had been scolded at the
Does the public domain weaken intellectual property? Would it have
been better if the protocols of the Internet had been patented?
</para>
+<indexterm><primary>Gates, Bill</primary></indexterm>
<para>
Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
property system. That is, on the contrary, just what a property system
is supposed to be about: giving individuals the right to decide what
to do with <emphasis>their</emphasis> property.
-<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
+<indexterm id='idxboland' class='startofrange'>
+ <primary>Boland, Lois</primary>
+</indexterm>
<para>
When Ms. Boland says that there is something wrong with a meeting
<quote>which has as its purpose to disclaim or waive such rights,</quote> she's
whether Republican or Democrat. My only illusion apparently is about
whether our government should speak the truth or not.)
</para>
+<indexterm startref='idxboland' class='endofrange'/>
<para>
Obviously, however, the poster was not supporting that idea. Instead,
the poster was ridiculing the very idea that in the real world, the
been part of our tradition for most of our history—free culture.
</para>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
-<para>
-If this is crazy, then let there be more crazies. Soon. There are
-moments of hope in this struggle. And moments that surprise. When the
-FCC was considering relaxing ownership rules, which would thereby
-further increase the concentration in media ownership, an
-extraordinary bipartisan coalition formed to fight this change. For
-perhaps the first time in history, interests as diverse as the NRA,
-the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
-for Peace organized to oppose this change in FCC policy. An
-astonishing 700,000 letters were sent to the FCC, demanding more
-hearings and a different result.
-<indexterm><primary>Turner, Ted</primary></indexterm>
<indexterm><primary>Safire, William</primary></indexterm>
+<indexterm><primary>Turner, Ted</primary></indexterm>
+<para>
+If this is crazy, then let there be more crazies. Soon.
+</para>
+<para>
+<emphasis role='strong'>There are moments</emphasis> of hope in this
+struggle. And moments that surprise. When the FCC was considering
+relaxing ownership rules, which would thereby further increase the
+concentration in media ownership, an extraordinary bipartisan
+coalition formed to fight this change. For perhaps the first time in
+history, interests as diverse as the NRA, the ACLU, Moveon.org,
+William Safire, Ted Turner, and CodePink Women for Peace organized to
+oppose this change in FCC policy. An astonishing 700,000 letters were
+sent to the FCC, demanding more hearings and a different result.
</para>
<para>
This activism did not stop the FCC, but soon after, a broad coalition
</para>
<indexterm><primary>Dylan, Bob</primary></indexterm>
<para>
-As I write these final words, the news is filled with stories about
-the RIAA lawsuits against almost three hundred individuals.<footnote><para>
+<emphasis role='strong'>As I write</emphasis> these final words, the
+news is filled with stories about the RIAA lawsuits against almost
+three hundred individuals.<footnote><para>
<!-- f11. -->
John Borland, <quote>RIAA Sues 261 File Swappers,</quote> CNET News.com, September
2003, available at
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that something
-must be done to change where we are heading. The balance of this book
-maps what might be done.
+<emphasis role='strong'>At least some</emphasis> who have read this
+far will agree with me that something must be done to change where we
+are heading. The balance of this book maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
<section id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so far
-has been framed at the extremes—as a grand either/or: either
-property or anarchy, either total control or artists won't be paid. If
-that really is the choice, then the warriors should win.
+<emphasis role='strong'>Common sense</emphasis> is with the copyright
+warriors because the debate so far has been framed at the
+extremes—as a grand either/or: either property or anarchy,
+either total control or artists won't be paid. If that really is the
+choice, then the warriors should win.
</para>
<para>
The mistake here is the error of the excluded middle. There are
<section id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
+<indexterm id='browsing' class='startofrange'>
+ <primary>browsing</primary>
+</indexterm>
<para>
If you step back from the battle I've been describing here, you will
recognize this problem from other contexts. Think about
electronic spaces, then the friction-induced privacy of yesterday
disappears.
</para>
+<indexterm startref='browsing' class='endofrange'/>
<para>
It is this reality that explains the push of many to define <quote>privacy</quote>
on the Internet. It is the recognition that technology can remove what
it, then the freedom to change and share software would be
fundamentally weakened.
</para>
+<indexterm><primary>Torvalds, Linus</primary></indexterm>
<para>
Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
The same strategy could be applied to culture, as a response to the
increasing control effected through law and technology.
</para>
+<indexterm><primary>Stanford University</primary></indexterm>
<para>
Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
</para>
+<indexterm id='idxbooksfreeonline2' class='startofrange'>
+ <primary>books</primary>
+ <secondary>free on-line releases of</secondary>
+</indexterm>
<para>
Why would creators participate in giving up total control? Some
participate to better spread their content. Cory Doctorow, for
publisher had expected. This first novel of a science fiction author
was a total success.
</para>
+<indexterm><primary>Free for All (Wayner)</primary></indexterm>
+<indexterm><primary>Wayner, Peter</primary></indexterm>
<para>
The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
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 startref='idxbooksfreeonline2' class='endofrange'/>
<indexterm><primary>Public Enemy</primary></indexterm>
<indexterm><primary>rap music</primary></indexterm>
+<indexterm><primary>Leaphart, Walter</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
</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
<section id="themsoon">
<title>THEM, SOON</title>
<para>
-We will not reclaim a free culture by individual action alone. It will
-also take important reforms of laws. We have a long way to go before
-the politicians will listen to these ideas and implement these reforms.
-But that also means that we have time to build awareness around the
-changes that we need.
+<emphasis role='strong'>We will</emphasis> not reclaim a free culture
+by individual action alone. It will also take important reforms of
+laws. We have a long way to go before the politicians will listen to
+these ideas and implement these reforms. But that also means that we
+have time to build awareness around the changes that we need.
</para>
<para>
In this chapter, I outline five kinds of changes: four that are general,
law should be to facilitate the access to this content, ideally in a
way that returns something to the artist.
</para>
+<indexterm>
+ <primary>books</primary>
+ <secondary>out of print</secondary>
+</indexterm>
+<indexterm>
+ <primary>books</primary>
+ <secondary>resales of</secondary>
+</indexterm>
<para>
Again, the model here is the used book store. Once a book goes out of
print, it may still be available in libraries and used book
compensated. The compensation would be paid for by (4) an appropriate
tax.
</para>
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
<para>
Fisher's proposal is careful and comprehensive. It raises a million
questions, most of which he answers well in his upcoming book,
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>
<indexterm>
<primary>artists</primary>
projects / text-free-culture-lessig.git / blobdiff