</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.
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.
</chapter>
<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.
(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
<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
</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
<!-- PAGE BREAK 96 -->
<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
Kenneth Branagh's adaptation of Henry V: "I liked it, but Shakespeare
is so full of clichés."
</para>
-<indexterm><primary>Henry V</primary></indexterm>
<para>
In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was written, the
"copy-right" for the work was still thought by many to be the exclusive
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,"
inventions. And by 1710, Parliament was eager to deal with the growing
monopoly in publishing.
</para>
-<indexterm><primary>Henry VIII, King of England</primary></indexterm>
<para>
Thus the "copy-right," when viewed as a monopoly right, was naturally
viewed as a right that should be limited. (However convincing the
<!-- 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 -->
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
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.
</para>
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
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>
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
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.
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
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
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
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
<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
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
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,
projects / text-free-culture-lessig.git / blobdiff