msgid ""
msgstr ""
"Project-Id-Version: PACKAGE VERSION\n"
-"POT-Creation-Date: 2012-07-25 22:10+0300\n"
+"POT-Creation-Date: 2012-07-25 23:58+0300\n"
"PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n"
"Last-Translator: FULL NAME <EMAIL@ADDRESS>\n"
"Language-Team: LANGUAGE <LL@li.org>\n"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:361 freeculture.xml:12688
+#: freeculture.xml:361 freeculture.xml:12689
msgid "CodePink Women in Peace"
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:372 freeculture.xml:382 freeculture.xml:12701
+#: freeculture.xml:372 freeculture.xml:382 freeculture.xml:12702
msgid "Safire, William"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:467 freeculture.xml:480 freeculture.xml:511 freeculture.xml:530 freeculture.xml:930 freeculture.xml:947 freeculture.xml:992 freeculture.xml:8735 freeculture.xml:12089 freeculture.xml:12792
+#: freeculture.xml:467 freeculture.xml:480 freeculture.xml:511 freeculture.xml:530 freeculture.xml:930 freeculture.xml:947 freeculture.xml:992 freeculture.xml:8736 freeculture.xml:12090 freeculture.xml:12793
msgid "Causby, Thomas Lee"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:468 freeculture.xml:481 freeculture.xml:512 freeculture.xml:531 freeculture.xml:931 freeculture.xml:948 freeculture.xml:993 freeculture.xml:8736 freeculture.xml:12090 freeculture.xml:12793
+#: freeculture.xml:468 freeculture.xml:481 freeculture.xml:512 freeculture.xml:531 freeculture.xml:931 freeculture.xml:948 freeculture.xml:993 freeculture.xml:8737 freeculture.xml:12091 freeculture.xml:12794
msgid "Causby, Tinie"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:894 freeculture.xml:14031
+#: freeculture.xml:894 freeculture.xml:14032
msgid "Netanel, Neil Weinstock"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1125 freeculture.xml:6741
+#: freeculture.xml:1125 freeculture.xml:6747
msgid "Zittrain, Jonathan"
msgstr ""
#. f31
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2011 freeculture.xml:3697 freeculture.xml:4776 freeculture.xml:7924
+#: freeculture.xml:2011 freeculture.xml:3697 freeculture.xml:4776 freeculture.xml:7925
msgid "Ibid."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:2119 freeculture.xml:7862
+#: freeculture.xml:2119 freeculture.xml:7863
msgid "ABC"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2781 freeculture.xml:3024 freeculture.xml:4117 freeculture.xml:9460
+#: freeculture.xml:2781 freeculture.xml:3024 freeculture.xml:4117 freeculture.xml:9461
msgid "Picker, Randal C."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:2947 freeculture.xml:13707
+#: freeculture.xml:2947 freeculture.xml:13708
msgid "Grisham, John"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3303 freeculture.xml:12184 freeculture.xml:12613 freeculture.xml:12620
+#: freeculture.xml:3303 freeculture.xml:12185 freeculture.xml:12614 freeculture.xml:12621
msgid "Drahos, Peter"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3323 freeculture.xml:3578 freeculture.xml:14230
+#: freeculture.xml:3323 freeculture.xml:3578 freeculture.xml:14231
msgid "Liebowitz, Stan"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:3458 freeculture.xml:7993
+#: freeculture.xml:3458 freeculture.xml:7994
msgid "Christensen, Clayton M."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:5007 freeculture.xml:5015 freeculture.xml:5026 freeculture.xml:5041 freeculture.xml:5050 freeculture.xml:5055 freeculture.xml:5107 freeculture.xml:5123 freeculture.xml:5146 freeculture.xml:5208 freeculture.xml:9562
+#: freeculture.xml:5007 freeculture.xml:5015 freeculture.xml:5026 freeculture.xml:5041 freeculture.xml:5050 freeculture.xml:5055 freeculture.xml:5107 freeculture.xml:5123 freeculture.xml:5146 freeculture.xml:5208 freeculture.xml:9563
msgid "Alben, Alex"
msgstr ""
"from around the world covered the events of that day."
msgstr ""
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:5556
+msgid "Movie Archive"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><para>
#: freeculture.xml:5540
msgid ""
"access to this important part of our culture. Want to see a copy of the "
"\"Duck and Cover\" film that instructed children how to save themselves in "
"the middle of nuclear attack? Go to archive.org, and you can download the "
-"film in a few minutes—for free."
+"film in a few minutes—for free. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5558
+#: freeculture.xml:5559
msgid ""
"Here again, Kahle is providing access to a part of our culture that we "
"otherwise could not get easily, if at all. It is yet another part of what "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5566
+#: freeculture.xml:5567
msgid ""
"The key here is access, not price. Kahle wants to enable free access to this "
"content, but he also wants to enable others to sell access to it. His aim is "
#. PAGE BREAK 124
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5574
+#: freeculture.xml:5575
msgid ""
"For here is an idea that we should more clearly recognize. Every bit of "
"creative property goes through different \"lives.\" In its first life, if "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5586
+#: freeculture.xml:5587
msgid ""
"After the commercial life of creative property has ended, our tradition has "
"always supported a second life as well. A newspaper delivers the news every "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5598
+#: freeculture.xml:5599
msgid ""
"Dave Barns, \"Fledgling Career in Antique Books: Woodstock Landlord, Bar "
"Owner Starts a New Chapter by Adopting Business,\" Chicago Tribune, 5 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5595
+#: freeculture.xml:5596
msgid ""
"The same has always been true about books. A book goes out of print very "
"quickly (the average today is after about a year<placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5612
+#: freeculture.xml:5613
msgid ""
"Yet increasingly, any assumption about a stable second life for creative "
"property does not hold true with the most important components of popular "
#. PAGE BREAK 125
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5623
+#: freeculture.xml:5624
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5635
+#: freeculture.xml:5636
msgid ""
"Perhaps the single most important feature of the digital revolution is that "
"for the first time since the Library of Alexandria, it is feasible to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5643
+#: freeculture.xml:5644
msgid ""
"The scale of this potential archive is something we've never imagined "
"before. The Brewster Kahles of our history have dreamed about it; but we are "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5650
+#: freeculture.xml:5651
msgid ""
"It looks like there's about two to three million recordings of music. "
"Ever. There are about a hundred thousand theatrical releases of movies, "
#. PAGE BREAK 126
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5664
+#: freeculture.xml:5665
msgid ""
"Kahle is not the only librarian. The Internet Archive is not the only "
"archive. But Kahle and the Internet Archive suggest what the future of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5679
+#: freeculture.xml:5680
msgid ""
"Technologists have thus removed the economic costs of building such an "
"archive. But lawyers' costs remain. For as much as we might like to call "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:5689
+#: freeculture.xml:5690
msgid "CHAPTER TEN: \"Property\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5698
+#: freeculture.xml:5699
msgid "Johnson, Lyndon"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5691
+#: freeculture.xml:5692
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5711
+#: freeculture.xml:5712
msgid "Disney, Inc."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5712
+#: freeculture.xml:5713
msgid "Sony Pictures Entertainment"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5713
+#: freeculture.xml:5714
msgid "MGM"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5714
+#: freeculture.xml:5715
msgid "Paramount Pictures"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5715
+#: freeculture.xml:5716
msgid "Twentieth Century Fox"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5716
+#: freeculture.xml:5717
msgid "Universal Pictures"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5717
+#: freeculture.xml:5718
msgid "Warner Brothers"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5701
+#: freeculture.xml:5702
msgid ""
"The MPAA is the American branch of the international Motion Picture "
"Association. It was formed in 1922 as a trade association whose goal was to "
#. PAGE BREAK 128
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5721
+#: freeculture.xml:5722
msgid ""
"Valenti is only the third president of the MPAA. No president before him has "
"had as much influence over that organization, or over Washington. As a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5733
+#: freeculture.xml:5734
msgid ""
"In defending artistic liberty and the freedom of speech that our culture "
"depends upon, the MPAA has done important good. In crafting the MPAA rating "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5742
+#: freeculture.xml:5743
msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:"
msgstr ""
#. f1
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:5756
+#: freeculture.xml:5757
msgid ""
"Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, "
"H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5747
+#: freeculture.xml:5748
msgid ""
"No matter the lengthy arguments made, no matter the charges and the "
"counter-charges, no matter the tumult and the shouting, reasonable men and "
#. PAGE BREAK 129
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5766
+#: freeculture.xml:5767
msgid ""
"The strategy of this rhetoric, like the strategy of most of Valenti's "
"rhetoric, is brilliant and simple and brilliant because simple. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5777
+#: freeculture.xml:5778
msgid ""
"This claim has an obvious and powerful intuitive pull. It is stated with "
"such clarity as to make the idea as obvious as the notion that we use "
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5792
+#: freeculture.xml:5793
msgid ""
"Lawyers speak of \"property\" not as an absolute thing, but as a bundle of "
"rights that are sometimes associated with a particular object. Thus, my "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5789
+#: freeculture.xml:5790
msgid ""
"While \"creative property\" is certainly \"property\" in a nerdy and precise "
"sense that lawyers are trained to understand,<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5807
+#: freeculture.xml:5808
msgid ""
"Valenti knows this. But he speaks for an industry that cares squat for our "
"tradition and the values it represents. He speaks for an industry that is "
#. PAGE BREAK 130
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5815
+#: freeculture.xml:5816
msgid ""
"I have two purposes in this chapter. The first is to convince you that, "
"historically, Valenti's claim is absolutely wrong. The second is to convince "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5830
+#: freeculture.xml:5831
msgid ""
"Organizations such as the MPAA, whose board includes the most powerful of "
"the old guard, have little interest, their rhetoric notwithstanding, in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5842
+#: freeculture.xml:5843
msgid ""
"The framers of our Constitution loved \"property.\" Indeed, so strongly did "
"they love property that they built into the Constitution an important "
#. PAGE BREAK 131
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5853
+#: freeculture.xml:5854
msgid ""
"Yet the very same Constitution speaks very differently about what Valenti "
"calls \"creative property.\" In the clause granting Congress the power to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5868
+#: freeculture.xml:5869
msgid ""
"The Constitution thus on its face states that these two forms of property "
"are not to be accorded the same rights. They are plainly to be treated "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5877
+#: freeculture.xml:5878
msgid ""
"Arguing for a change in our Constitution is not necessarily wrong. There "
"was much in our original Constitution that was plainly wrong. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5889
+#: freeculture.xml:5890
msgid ""
"Instead, my argument is that because Jefferson did it, we should at least "
"try to understand why. Why did the framers, fanatical property types that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5896
+#: freeculture.xml:5897
msgid ""
"To answer this question, we need to get some perspective on the history of "
"these \"creative property\" rights, and the control that they enabled. Once "
#. PAGE BREAK 132
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5910
+#: freeculture.xml:5911
msgid ""
"To answer these questions, we need a more general way to talk about how "
"property is protected. More precisely, we need a more general way than the "
msgstr ""
#. type: Content of: <book><chapter><sect1><figure><title>
-#: freeculture.xml:5919
+#: freeculture.xml:5920
msgid ""
"How four different modalities of regulation interact to support or weaken "
"the right or regulation."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:5920 freeculture.xml:6094 freeculture.xml:6390
+#: freeculture.xml:5921 freeculture.xml:6095 freeculture.xml:6396
msgid "<graphic fileref=\"images/1331.png\"></graphic>"
msgstr ""
#. PAGE BREAK 133
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5923
+#: freeculture.xml:5924
msgid ""
"At the center of this picture is a regulated dot: the individual or group "
"that is the target of regulation, or the holder of a right. (In each case "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5939
+#: freeculture.xml:5940
msgid ""
"Norms are a different kind of constraint. They, too, punish an individual "
"for violating a rule. But the punishment of a norm is imposed by a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5950
+#: freeculture.xml:5951
msgid ""
"The market is a third type of constraint. Its constraint is effected through "
"conditions: You can do X if you pay Y; you'll be paid M if you do N. These "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5960
+#: freeculture.xml:5961
msgid ""
"Finally, and for the moment, perhaps, most mysteriously, "
"\"architecture\"—the physical world as one finds it—is a "
#. PAGE BREAK 134
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5977
+#: freeculture.xml:5978
msgid ""
"So the first point about these four modalities of regulation is obvious: "
"They interact. Restrictions imposed by one might be reinforced by "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5983
+#: freeculture.xml:5984
msgid ""
"The second point follows directly: If we want to understand the effective "
"freedom that anyone has at a given moment to do any particular thing, we "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5992
+#: freeculture.xml:5993
msgid "driving speed, constraints on"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5995
+#: freeculture.xml:5996
msgid ""
"So, for example, consider the \"freedom\" to drive a car at a high "
"speed. That freedom is in part restricted by laws: speed limits that say how "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:6013
+#: freeculture.xml:6014
msgid ""
"By describing the way law affects the other three modalities, I don't mean "
"to suggest that the other three don't affect law. Obviously, they do. Law's "
#. PAGE BREAK 135
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:6009
+#: freeculture.xml:6010
msgid ""
"The final point about this simple model should also be fairly clear: While "
"these four modalities are analytically independent, law has a special role "
msgstr ""
#. type: Content of: <book><chapter><sect1><figure><title>
-#: freeculture.xml:6037
+#: freeculture.xml:6038
msgid "Law has a special role in affecting the three."
msgstr ""
#. type: Content of: <book><chapter><sect1><figure>
-#: freeculture.xml:6038
+#: freeculture.xml:6039
msgid "<graphic fileref=\"images/1361.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6077
+#: freeculture.xml:6078
msgid "Commons, John R."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:6049
+#: freeculture.xml:6050
msgid ""
"Some people object to this way of talking about \"liberty.\" They object "
"because their focus when considering the constraints that exist at any "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:6041
+#: freeculture.xml:6042
msgid ""
"These constraints can thus change, and they can be changed. To understand "
"the effective protection of liberty or protection of property at any "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6081
+#: freeculture.xml:6082
msgid "Why Hollywood Is Right"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6083
+#: freeculture.xml:6084
msgid ""
"The most obvious point that this model reveals is just why, or just how, "
"Hollywood is right. The copyright warriors have rallied Congress and the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6089
+#: freeculture.xml:6090
msgid "Let's say this is the picture of copyright's regulation before the Internet:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6093 freeculture.xml:6389
+#: freeculture.xml:6094 freeculture.xml:6395
msgid "Copyright's regulation before the Internet."
msgstr ""
#. PAGE BREAK 136
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6098
+#: freeculture.xml:6099
msgid ""
"There is balance between law, norms, market, and architecture. The law "
"limits the ability to copy and share content, by imposing penalties on those "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6110
+#: freeculture.xml:6111
msgid ""
"Enter the Internet, or, more precisely, technologies such as MP3s and p2p "
"sharing. Now the constraint of architecture changes dramatically, as does "
#. PAGE BREAK 137
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6118
+#: freeculture.xml:6119
msgid ""
"Thus the sense of, and justification for, the warriors' response. "
"Technology has changed, the warriors say, and the effect of this change, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6128
+#: freeculture.xml:6129
msgid "effective state of anarchy after the Internet."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6129
+#: freeculture.xml:6130
msgid "<graphic fileref=\"images/1381.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6132
+#: freeculture.xml:6133
msgid ""
"Neither this analysis nor the conclusions that follow are new to the "
"warriors. Indeed, in a \"White Paper\" prepared by the Commerce Department "
#. PAGE BREAK 138
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6144
+#: freeculture.xml:6145
msgid ""
"This mixed strategy is just what copyright needed—if it was to "
"preserve the particular balance that existed before the change induced by "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6161
+#: freeculture.xml:6162
msgid ""
"Thus, there's nothing wrong or surprising in the content industry's campaign "
"to protect itself from the harmful consequences of a technological "
#. f5
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6177
+#: freeculture.xml:6178
msgid ""
"See Geoffrey Smith, \"Film vs. Digital: Can Kodak Build a Bridge?\" "
"BusinessWeek online, 2 August 1999, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6169
+#: freeculture.xml:6170
msgid ""
"But just because a particular interest asks for government support, it "
"doesn't follow that support should be granted. And just because technology "
#. f6
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6209
+#: freeculture.xml:6210
msgid "Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71."
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:6218 freeculture.xml:12587
+#: freeculture.xml:6219 freeculture.xml:12588
msgid "Gates, Bill"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6199
+#: freeculture.xml:6200
msgid ""
"The obvious answer to these obviously rhetorical questions is no. In a free "
"society, with a free market, supported by free enterprise and free trade, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6221
+#: freeculture.xml:6222
msgid ""
"Thus, while it is understandable for industries threatened with new "
"technologies that change the way they do business to look to the government "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6231
+#: freeculture.xml:6232
msgid ""
"In the context of laws regulating speech—which include, obviously, "
"copyright law—that duty is even stronger. When the industry "
#. PAGE BREAK 140
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6245
+#: freeculture.xml:6246
msgid ""
"My argument just now, however, has nothing to do with whether the changes "
"that are being pushed by the copyright warriors are \"justified.\" My "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6254
+#: freeculture.xml:6255
msgid "Here's the metaphor that will capture the argument to follow."
msgstr ""
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:6258
+msgid "DDT"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
+#: freeculture.xml:6266
+msgid "Müller, Paul Hermann"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6257
+#: freeculture.xml:6261
msgid ""
"In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul "
"Hermann Müller won the Nobel Prize for his work demonstrating the "
"insecticidal properties of DDT. By the 1950s, the insecticide was widely "
"used around the world to kill disease-carrying pests. It was also used to "
-"increase farm production."
+"increase farm production. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6264
+#: freeculture.xml:6269
msgid ""
"No one doubts that killing disease-carrying pests or increasing crop "
"production is a good thing. No one doubts that the work of Müller was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:6268 freeculture.xml:6274
+#: freeculture.xml:6273 freeculture.xml:6279
msgid "Carson, Rachel"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:6275
+#: freeculture.xml:6280
msgid "Silent Sprint (Carson)"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6270
+#: freeculture.xml:6275
msgid ""
"But in 1962, Rachel Carson published Silent Spring, which argued that DDT, "
"whatever its primary benefits, was also having unintended environmental "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6278
+#: freeculture.xml:6283
msgid ""
"No one set out to destroy the environment. Paul Müller certainly did not aim "
"to harm any birds. But the effort to solve one set of problems produced "
#. f7
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6291
+#: freeculture.xml:6296
msgid ""
"See, for example, James Boyle, \"A Politics of Intellectual Property: "
"Environmentalism for the Net?\" Duke Law Journal 47 (1997): 87."
#. PAGE BREAK 141
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6287
+#: freeculture.xml:6292
msgid ""
"It is to this image precisely that Duke University law professor James Boyle "
"appeals when he argues that we need an \"environmentalism\" for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6308
+#: freeculture.xml:6313
msgid ""
"My argument, in the balance of this chapter, tries to map exactly this "
"effect. No doubt the technology of the Internet has had a dramatic effect on "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6319
+#: freeculture.xml:6324
msgid ""
"In a line: To kill a gnat, we are spraying DDT with consequences for free "
"culture that will be far more devastating than that this gnat will be lost."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6325
+#: freeculture.xml:6331
msgid "Beginnings"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6327
+#: freeculture.xml:6333
msgid ""
"America copied English copyright law. Actually, we copied and improved "
"English copyright law. Our Constitution makes the purpose of \"creative "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6333
+#: freeculture.xml:6339
msgid ""
"The power to establish \"creative property\" rights is granted to Congress "
"in a way that, for our Constitution, at least, is very odd. Article I, "
#. PAGE BREAK 142
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6338
+#: freeculture.xml:6344
msgid ""
"Congress has the power to promote the Progress of Science and useful Arts, "
"by securing for limited Times to Authors and Inventors the exclusive Right "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6351
+#: freeculture.xml:6357
msgid ""
"The Progress Clause expressly limits the term of copyrights. As we saw in "
"chapter 6, the English limited the term of copyright so as to assure that a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6360
+#: freeculture.xml:6366
msgid ""
"The design of the Progress Clause reflects something about the "
"Constitution's design in general. To avoid a problem, the framers built "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6375
+#: freeculture.xml:6381
msgid ""
"I doubt the framers would recognize the regulation we call \"copyright\" "
"today. The scope of that regulation is far beyond anything they ever "
#. PAGE BREAK 143
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6382
+#: freeculture.xml:6388
msgid ""
"Some of these changes come from the law: some in light of changes in "
"technology, and some in light of changes in technology given a particular "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6393
+#: freeculture.xml:6399
msgid "We will end here:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6396
+#: freeculture.xml:6402
msgid ""Copyright" today."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6397
+#: freeculture.xml:6403
msgid "<graphic fileref=\"images/1442.png\"></graphic>"
msgstr ""
#. PAGE BREAK 144
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6400
+#: freeculture.xml:6406
msgid "Let me explain how."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6405
+#: freeculture.xml:6411
msgid "Law: Duration"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6420
+#: freeculture.xml:6426
msgid "Crosskey, William W."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6415
+#: freeculture.xml:6421
msgid ""
"William W. Crosskey, Politics and the Constitution in the History of the "
"United States (London: Cambridge University Press, 1953), vol. 1, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6407
+#: freeculture.xml:6413
msgid ""
"When the first Congress enacted laws to protect creative property, it faced "
"the same uncertainty about the status of creative property that the English "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6430
+#: freeculture.xml:6436
msgid ""
"That uncertainty ended after Congress passed legislation granting "
"copyrights. Because federal law overrides any contrary state law, federal "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6438
+#: freeculture.xml:6444
msgid ""
"In 1790, Congress enacted the first copyright law. It created a federal "
"copyright and secured that copyright for fourteen years. If the author was "
#. f9
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6453
+#: freeculture.xml:6459
msgid ""
"Although 13,000 titles were published in the United States from 1790 to "
"1799, only 556 copyright registrations were filed; John Tebbel, A History of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6445
+#: freeculture.xml:6451
msgid ""
"While there were many works created in the United States in the first ten "
"years of the Republic, only 5 percent of the works were actually registered "
#. PAGE BREAK 145
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6469
+#: freeculture.xml:6475
msgid ""
"This system of renewal was a crucial part of the American system of "
"copyright. It assured that the maximum terms of copyright would be granted "
#. f10
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6484
+#: freeculture.xml:6490
msgid ""
"Few copyright holders ever chose to renew their copyrights. For instance, of "
"the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6478
+#: freeculture.xml:6484
msgid ""
"Fourteen years may not seem long to us, but for the vast majority of "
"copyright owners at that time, it was long enough: Only a small minority of "
#. f11
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6499
+#: freeculture.xml:6505
msgid "See Ringer, ch. 9, n. 2."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6495
+#: freeculture.xml:6501
msgid ""
"Even today, this structure would make sense. Most creative work has an "
"actual commercial life of just a couple of years. Most books fall out of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6507
+#: freeculture.xml:6513
msgid ""
"In the first hundred years of the Republic, the term of copyright was "
"changed once. In 1831, the term was increased from a maximum of 28 years to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6515
+#: freeculture.xml:6521
msgid ""
"Then, beginning in 1962, Congress started a practice that has defined "
"copyright law since. Eleven times in the last forty years, Congress has "
#. PAGE BREAK 146
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6525
+#: freeculture.xml:6531
msgid ""
"The effect of these extensions is simply to toll, or delay, the passing of "
"works into the public domain. This latest extension means that the public "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6536
+#: freeculture.xml:6542
msgid ""
"The effect of these extensions has been exacerbated by another, "
"little-noticed change in the copyright law. Remember I said that the framers "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6546
+#: freeculture.xml:6552
msgid ""
"The United States abandoned this sensible system in 1976. For all works "
"created after 1978, there was only one copyright term—the maximum "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6556
+#: freeculture.xml:6562
msgid ""
"This change meant that American law no longer had an automatic way to assure "
"that works that were no longer exploited passed into the public domain. And "
#. f12
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6573
+#: freeculture.xml:6579
msgid ""
"These statistics are understated. Between the years 1910 and 1962 (the first "
"year the renewal term was extended), the average term was never more than "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6565
+#: freeculture.xml:6571
msgid ""
"The effect of these changes on the average duration of copyright is "
"dramatic. In 1973, more than 85 percent of copyright owners failed to renew "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6582
+#: freeculture.xml:6588
msgid "Law: Scope"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6584
+#: freeculture.xml:6590
msgid ""
"The \"scope\" of a copyright is the range of rights granted by the law. The "
"scope of American copyright has changed dramatically. Those changes are not "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6590
+#: freeculture.xml:6596
msgid ""
"In 1790, that scope was very narrow. Copyright covered only \"maps, charts, "
"and books.\" That means it didn't cover, for example, music or "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6603
+#: freeculture.xml:6609
msgid ""
"This, too, has changed dramatically. While the contours of copyright today "
"are extremely hard to describe simply, in general terms, the right covers "
#. PAGE BREAK 148
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6618
+#: freeculture.xml:6624
msgid ""
"At the same time that the scope of copyright has expanded, procedural "
"limitations on the right have been relaxed. I've already described the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6631
+#: freeculture.xml:6637
msgid ""
"The reason for the registration requirement was the sensible understanding "
"that for most works, no copyright was required. Again, in the first ten "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6645
+#: freeculture.xml:6651
msgid ""
"All of these \"formalities\" were abolished in the American system when we "
"decided to follow European copyright law. There is no requirement that you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6653
+#: freeculture.xml:6659
msgid "Consider a practical example to understand the scope of these differences."
msgstr ""
#. f13
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6664
+#: freeculture.xml:6670
msgid ""
"See Thomas Bender and David Sampliner, \"Poets, Pirates, and the Creation of "
"American Literature,\" 29 New York University Journal of International Law "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6657
+#: freeculture.xml:6663
msgid ""
"If, in 1790, you wrote a book and you were one of the 5 percent who actually "
"copyrighted that book, then the copyright law protected you against another "
#. PAGE BREAK 149
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6677
+#: freeculture.xml:6683
msgid ""
"The act left other creators totally unregulated. If I copied your poem by "
"hand, over and over again, as a way to learn it by heart, my act was totally "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6687
+#: freeculture.xml:6693
msgid ""
"Today the story is very different: If you write a book, your book is "
"automatically protected. Indeed, not just your book. Every e-mail, every "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6696
+#: freeculture.xml:6702
msgid ""
"That protection gives you the right (subject to a narrow range of fair use "
"exceptions) to control how others copy the work, whether they copy it to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6701
+#: freeculture.xml:6707
msgid ""
"That much is the obvious part. Any system of copyright would control "
"competing publishing. But there's a second part to the copyright of today "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6715
+#: freeculture.xml:6721
msgid ""
"It is this derivative right that would seem most bizarre to our framers, "
"though it has become second nature to us. Initially, this expansion was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6738
+#: freeculture.xml:6744
msgid ""
"Jonathan Zittrain, \"The Copyright Cage,\" Legal Affairs, July/August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #26</ulink>. "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6728
+#: freeculture.xml:6734
msgid ""
"In preventing that joke, the law created an astonishing power within a free "
"culture—at least, it's astonishing when you understand that the law "
#. f15
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6754
+#: freeculture.xml:6760
msgid ""
"Professor Rubenfeld has presented a powerful constitutional argument about "
"the difference that copyright law should draw (from the perspective of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6748
+#: freeculture.xml:6754
msgid ""
"Yet copyright law treats these two different wrongs in the same way. I can "
"go to court and get an injunction against your pirating my book. I can go to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6765
+#: freeculture.xml:6771
msgid ""
"This again may seem right to you. If I wrote a book, then why should you be "
"able to write a movie that takes my story and makes money from it without "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6774
+#: freeculture.xml:6780
msgid ""
"These are good arguments, and, in general, my point is not that the "
"derivative right is unjustified. My aim just now is much narrower: simply to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6782
+#: freeculture.xml:6788
msgid "Law and Architecture: Reach"
msgstr ""
#. f16
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6789
+#: freeculture.xml:6795
msgid ""
"This is a simplification of the law, but not much of one. The law certainly "
"regulates more than \"copies\"—a public performance of a copyrighted "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6784
+#: freeculture.xml:6790
msgid ""
"Whereas originally the law regulated only publishers, the change in "
"copyright's scope means that the law today regulates publishers, users, and "
#. PAGE BREAK 151
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6801
+#: freeculture.xml:6807
msgid ""
"\"Copies.\" That certainly sounds like the obvious thing for copyright law "
"to regulate. But as with Jack Valenti's argument at the start of this "
#. f17
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6817
+#: freeculture.xml:6823
msgid ""
"Thus, my argument is not that in each place that copyright law extends, we "
"should repeal it. It is instead that we should have a good argument for its "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6812
+#: freeculture.xml:6818
msgid ""
"This is perhaps the central claim of this book, so let me take this very "
"slowly so that the point is not easily missed. My claim is that the Internet "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6828
+#: freeculture.xml:6834
msgid ""
"We can see this point abstractly by beginning with this largely empty "
"circle."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6832
+#: freeculture.xml:6838
msgid "All potential uses of a book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6833
+#: freeculture.xml:6839
msgid "<graphic fileref=\"images/1521.png\"></graphic>"
msgstr ""
#. PAGE BREAK 152
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6837
+#: freeculture.xml:6843
msgid ""
"Think about a book in real space, and imagine this circle to represent all "
"its potential uses. Most of these uses are unregulated by copyright law, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6850
+#: freeculture.xml:6856
msgid "Examples of unregulated uses of a book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6851
+#: freeculture.xml:6857
msgid "<graphic fileref=\"images/1531.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6854
+#: freeculture.xml:6860
msgid ""
"Obviously, however, some uses of a copyrighted book are regulated by "
"copyright law. Republishing the book, for example, makes a copy. It is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6862
+#: freeculture.xml:6868
msgid ""
"Finally, there is a tiny sliver of otherwise regulated copying uses that "
"remain unregulated because the law considers these \"fair uses.\""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6867
+#: freeculture.xml:6873
msgid ""
"Republishing stands at the core of this circle of possible uses of a "
"copyrighted work."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6868
+#: freeculture.xml:6874
msgid "<graphic fileref=\"images/1541.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6871
+#: freeculture.xml:6877
msgid ""
"These are uses that themselves involve copying, but which the law treats as "
"unregulated because public policy demands that they remain unregulated. You "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6882
+#: freeculture.xml:6888
msgid "Unregulated copying considered "fair uses.""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6883
+#: freeculture.xml:6889
msgid "<graphic fileref=\"images/1542.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6887
+#: freeculture.xml:6893
msgid ""
"Uses that before were presumptively unregulated are now presumptively "
"regulated."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6888
+#: freeculture.xml:6894
msgid "<graphic fileref=\"images/1551.png\"></graphic>"
msgstr ""
#. PAGE BREAK 154
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6892
+#: freeculture.xml:6898
msgid ""
"In real space, then, the possible uses of a book are divided into three "
"sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that "
#. f18
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6900
+#: freeculture.xml:6906
msgid ""
"I don't mean \"nature\" in the sense that it couldn't be different, but "
"rather that its present instantiation entails a copy. Optical networks need "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6897
+#: freeculture.xml:6903
msgid ""
"Enter the Internet—a distributed, digital network where every use of a "
"copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> "
#. PAGE BREAK 155
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6921
+#: freeculture.xml:6927
msgid ""
"So let's be very specific to make this general point clear. Before the "
"Internet, if you purchased a book and read it ten times, there would be no "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6934
+#: freeculture.xml:6940
msgid ""
"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 only once or "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6948
+#: freeculture.xml:6954
msgid ""
"There are some people who think this makes perfect sense. My aim just now is "
"not to argue about whether it makes sense or not. My aim is only to make "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6954
+#: freeculture.xml:6960
msgid ""
"First, making category 1 disappear is not anything any policy maker ever "
"intended. Congress did not think through the collapse of the presumptively "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6964
+#: freeculture.xml:6970
msgid ""
"Second, this shift is especially troubling in the context of transformative "
"uses of creative content. Again, we can all understand the wrong in "
#. PAGE BREAK 156
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6980
+#: freeculture.xml:6986
msgid ""
"Third, this shift from category 1 to category 2 puts an extraordinary burden "
"on category 3 (\"fair use\") that fair use never before had to bear. If a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6995
+#: freeculture.xml:7001
msgid ""
"This point about fair use is totally ignored, even by advocates for free "
"culture. We have been cornered into arguing that our rights depend upon fair "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7006
+#: freeculture.xml:7012
msgid ""
"The case of Video Pipeline is a good example. Video Pipeline was in the "
"business of making \"trailer\" advertisements for movies available to video "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7013
+#: freeculture.xml:7019
msgid ""
"The company did this for about fifteen years. Then, in 1997, it began to "
"think about the Internet as another way to distribute these previews. The "
#. PAGE BREAK 157
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7025
+#: freeculture.xml:7031
msgid ""
"In 1998, Video Pipeline informed Disney and other film distributors that it "
"intended to distribute the trailers through the Internet (rather than "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7042
+#: freeculture.xml:7048
msgid ""
"Disney countersued—for $100 million in damages. Those damages were "
"predicated upon a claim that Video Pipeline had \"willfully infringed\" on "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7054
+#: freeculture.xml:7060
msgid ""
"Disney has the right to control its property, of course. But the video "
"stores that were selling Disney's films also had some sort of right to be "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7063
+#: freeculture.xml:7069
msgid ""
"Now, you might think this is a close case, and I think the courts would "
"consider it a close case. My point here is to map the change that gives "
#. PAGE BREAK 158
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7078
+#: freeculture.xml:7084
msgid ""
"No doubt, a potential is not yet an abuse, and so the potential for control "
"is not yet the abuse of control. Barnes & Noble has the right to say you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7096
+#: freeculture.xml:7099
msgid ""
"Again, my aim so far is simply to map the changes that this changed "
"architecture enables. Enabling technology to enforce the control of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:7106
+#: freeculture.xml:7108
msgid "Architecture and Law: Force"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7108
+#: freeculture.xml:7110
msgid ""
"The disappearance of unregulated uses would be change enough, but a second "
"important change brought about by the Internet magnifies its "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7114
+#: freeculture.xml:7116
msgid ""
"In the world before digital technology, it was generally the law that "
"controlled whether and how someone was regulated by copyright law. The law, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7121
+#: freeculture.xml:7123
msgid "Casablanca"
msgstr ""
#. f19
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7130
+#: freeculture.xml:7132
msgid ""
"See David Lange, \"Recognizing the Public Domain,\" Law and Contemporary "
"Problems 44 (1981): 172–73."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7123
+#: freeculture.xml:7125
msgid ""
"There's a famous story about a battle between the Marx Brothers and Warner "
"Brothers. The Marxes intended to make a parody of Casablanca. Warner "
#. f20
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7140
+#: freeculture.xml:7141
msgid "Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7136
+#: freeculture.xml:7137
msgid ""
"This led the Marx Brothers to respond in kind. They warned Warner Brothers "
"that the Marx Brothers \"were brothers long before you were.\"<placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7147
+#: freeculture.xml:7148
msgid ""
"An absurd and hollow threat, of course, because Warner Brothers, like the "
"Marx Brothers, knew that no court would ever enforce such a silly "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7153
+#: freeculture.xml:7154
msgid ""
"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 machine: "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7164
+#: freeculture.xml:7165
msgid "Consider the life of my Adobe eBook Reader."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7167
+#: freeculture.xml:7168
msgid ""
"An e-book is a book delivered in electronic form. An Adobe eBook is not a "
"book that Adobe has published; Adobe simply produces the software that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7174
+#: freeculture.xml:7175
msgid "On the next page is a picture of an old version of my Adobe eBook Reader."
msgstr ""
#. PAGE BREAK 160
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7178
+#: freeculture.xml:7179
msgid ""
"As you can see, I have a small collection of e-books within this e-book "
"library. Some of these books reproduce content that is in the public domain: "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7189
+#: freeculture.xml:7190
msgid "Picture of an old version of Adobe eBook Reader"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7190
+#: freeculture.xml:7191
msgid "<graphic fileref=\"images/1611.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7193
+#: freeculture.xml:7194
msgid ""
"If you click on the Permissions button, you'll see a list of the permissions "
"that the publisher purports to grant with this book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7197
+#: freeculture.xml:7198
msgid "List of the permissions that the publisher purports to grant."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7198
+#: freeculture.xml:7199
msgid "<graphic fileref=\"images/1612.png\"></graphic>"
msgstr ""
#. PAGE BREAK 161
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7202
+#: freeculture.xml:7203
msgid ""
"According to my eBook Reader, I have the permission to copy to the clipboard "
"of the computer ten text selections every ten days. (So far, I've copied no "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7218
+#: freeculture.xml:7219
msgid ""
"Here's the e-book for another work in the public domain (including the "
"translation): Aristotle's Politics."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7222
+#: freeculture.xml:7223
msgid "E-book of Aristotle;s "Politics""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7223
+#: freeculture.xml:7224
msgid "<graphic fileref=\"images/1621.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7226
+#: freeculture.xml:7227
msgid ""
"According to its permissions, no printing or copying is permitted at "
"all. But fortunately, you can use the Read Aloud button to hear the book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7231
+#: freeculture.xml:7232
msgid "List of the permissions for Aristotle;s "Politics"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7232
+#: freeculture.xml:7233
msgid "<graphic fileref=\"images/1622.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7235
+#: freeculture.xml:7236
msgid ""
"Finally (and most embarrassingly), here are the permissions for the original "
"e-book version of my last book, The Future of Ideas:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7240
+#: freeculture.xml:7241
msgid "List of the permissions for "The Future of Ideas"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7241
+#: freeculture.xml:7242
msgid "<graphic fileref=\"images/1631.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7244
+#: freeculture.xml:7245
msgid "No copying, no printing, and don't you dare try to listen to this book!"
msgstr ""
#. f21
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7254
+#: freeculture.xml:7255
msgid ""
"In principle, a contract might impose a requirement on me. I might, for "
"example, buy a book from you that includes a contract that says I will read "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7247
+#: freeculture.xml:7248
msgid ""
"Now, the Adobe eBook Reader calls these controls \"permissions\"— as "
"if the publisher has the power to control how you use these works. For "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7269
+#: freeculture.xml:7270
msgid ""
"The control comes instead from the code—from the technology within "
"which the e-book \"lives.\" Though the e-book says that these are "
#. PAGE BREAK 163
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7287
+#: freeculture.xml:7288
msgid ""
"These are controls, not permissions. Imagine a world where the Marx Brothers "
"sold word processing software that, when you tried to type \"Warner "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7292
+#: freeculture.xml:7293
msgid ""
"This is the future of copyright law: not so much copyright law as copyright "
"code. The controls over access to content will not be controls that are "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7300
+#: freeculture.xml:7301
msgid ""
"How significant is this? Isn't it always possible to get around the controls "
"built into the technology? Software used to be sold with technologies that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7308
+#: freeculture.xml:7309
msgid ""
"We've only scratched the surface of this story. Return to the Adobe eBook "
"Reader."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7312
+#: freeculture.xml:7313
msgid ""
"Early in the life of the Adobe eBook Reader, Adobe suffered a public "
"relations nightmare. Among the books that you could download for free on the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7320
+#: freeculture.xml:7321
msgid "List of the permissions for "Alice's Adventures in Wonderland"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7322
+#: freeculture.xml:7323
msgid "<graphic fileref=\"images/1641.png\"></graphic>"
msgstr ""
#. PAGE BREAK 164
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7326
+#: freeculture.xml:7327
msgid ""
"Here was a public domain children's book that you were not allowed to copy, "
"not allowed to lend, not allowed to give, and, as the \"permissions\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7333
+#: freeculture.xml:7334
msgid ""
"The public relations nightmare attached to that final permission. For the "
"text did not say that you were not permitted to use the Read Aloud button; "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7341
+#: freeculture.xml:7342
msgid ""
"Adobe responded quickly that it was absurd to think that it was trying to "
"restrict the right to read a book aloud. Obviously it was only restricting "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7354
+#: freeculture.xml:7355
msgid ""
"The point is not to blame Adobe. Indeed, Adobe is among the most innovative "
"companies developing strategies to balance open access to content with "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7362
+#: freeculture.xml:7363
msgid ""
"To see the point in a particularly absurd context, consider a favorite story "
"of mine that makes the same point."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7366
+#: freeculture.xml:7367
msgid "Aibo robotic dog"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7369
+#: freeculture.xml:7370
msgid ""
"Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns "
"tricks, cuddles, and follows you around. It eats only electricity and that "
#. PAGE BREAK 165
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7374
+#: freeculture.xml:7375
msgid ""
"The Aibo is expensive and popular. Fans from around the world have set up "
"clubs to trade stories. One fan in particular set up a Web site to enable "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7383
+#: freeculture.xml:7384
msgid ""
"\"Teach\" here has a special meaning. Aibos are just cute computers. You "
"teach a computer how to do something by programming it differently. So to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7391
+#: freeculture.xml:7392
msgid ""
"If you're not a programmer or don't know many programmers, the word hack has "
"a particularly unfriendly connotation. Nonprogrammers hack bushes or "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7403
+#: freeculture.xml:7404
msgid ""
"Some hacks are easy. Some are unbelievably hard. Hackers as a community like "
"to challenge themselves and others with increasingly difficult "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7410
+#: freeculture.xml:7411
msgid ""
"The Aibo fan was displaying a bit of both when he hacked the program and "
"offered to the world a bit of code that would enable the Aibo to dance "
#. PAGE BREAK 166
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7418
+#: freeculture.xml:7419
msgid ""
"I've told this story in many contexts, both inside and outside the United "
"States. Once I was asked by a puzzled member of the audience, is it "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7434
+#: freeculture.xml:7435
msgid ""
"Let's put the dog to sleep for a minute, and turn to a pony show— not "
"literally a pony show, but rather a paper that a Princeton academic named Ed "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:7457 freeculture.xml:9874
+#: freeculture.xml:7458 freeculture.xml:9875
msgid "Electronic Frontier Foundation"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7447
+#: freeculture.xml:7448
msgid ""
"See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" "
"Science 293 (2001): 2028; Brendan I. Koerner, \"Play Dead: Sony Muzzles the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7445
+#: freeculture.xml:7446
msgid ""
"But Felten's bravery was really tested in April 2001.<placeholder "
"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7465
+#: freeculture.xml:7466
msgid ""
"The SDMI coalition had as its goal a technology to enable content owners to "
"exercise much better control over their content than the Internet, as it "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7475
+#: freeculture.xml:7476
msgid ""
"When SDMI thought it was close to a standard, it set up a competition. In "
"exchange for providing contestants with the code to an SDMI-encrypted bit of "
#. PAGE BREAK 167
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7482
+#: freeculture.xml:7483
msgid ""
"Felten and his team figured out the encryption system quickly. He and the "
"team saw the weakness of this system as a type: Many encryption systems "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7488
+#: freeculture.xml:7489
msgid ""
"Let's review just what Felten was doing. Again, this is the United "
"States. We have a principle of free speech. We have this principle not just "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7496
+#: freeculture.xml:7497
msgid ""
"What Felten and his colleagues were doing was publishing a paper describing "
"the weakness in a technology. They were not spreading free music, or "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7504
+#: freeculture.xml:7505
msgid ""
"What links these two, aibopet.com and Felten, is the letters they then "
"received. Aibopet.com received a letter from Sony about the aibopet.com "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7511
+#: freeculture.xml:7512
msgid ""
"Your site contains information providing the means to circumvent AIBO-ware's "
"copy protection protocol constituting a violation of the anti-circumvention "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7517
+#: freeculture.xml:7518
msgid ""
"And though an academic paper describing the weakness in a system of "
"encryption should also be perfectly legal, Felten received a letter from an "
#. PAGE BREAK 168
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7523
+#: freeculture.xml:7524
msgid ""
"Any disclosure of information gained from participating in the Public "
"Challenge would be outside the scope of activities permitted by the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7531
+#: freeculture.xml:7532
msgid ""
"In both cases, this weirdly Orwellian law was invoked to control the spread "
"of information. The Digital Millennium Copyright Act made spreading such "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7536
+#: freeculture.xml:7537
msgid ""
"The DMCA was enacted as a response to copyright owners' first fear about "
"cyberspace. The fear was that copyright control was effectively dead; the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7545
+#: freeculture.xml:7546
msgid ""
"The DMCA was a bit of law intended to back up the protection of this code "
"designed to protect copyrighted material. It was, we could say, legal code "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7551
+#: freeculture.xml:7552
msgid ""
"But the DMCA was not designed merely to protect copyrighted works to the "
"extent copyright law protected them. Its protection, that is, did not end at "
#. PAGE BREAK 169
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7560
+#: freeculture.xml:7561
msgid ""
"Aibopet.com and Felten make the point. The Aibo hack circumvented a "
"copyright protection system for the purpose of enabling the dog to dance "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7572
+#: freeculture.xml:7573
msgid ""
"The threat against Felten was more attenuated, but it followed the same line "
"of reasoning. By publishing a paper describing how a copyright protection "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7580
+#: freeculture.xml:7581
msgid ""
"The bizarreness of these arguments is captured in a cartoon drawn in 1981 by "
"Paul Conrad. At that time, a court in California had held that the VCR could "
#. f23
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:7606
+#: freeculture.xml:7607
msgid ""
"Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, "
"455 fn. 27 (1984). Rogers never changed his view about the VCR. See James "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7591
+#: freeculture.xml:7592
msgid ""
"Some public stations, as well as commercial stations, program the "
"\"Neighborhood\" at hours when some children cannot use it. I think that "
#. PAGE BREAK 170
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7615
+#: freeculture.xml:7616
msgid ""
"Even though there were uses that were legal, because there were some uses "
"that were illegal, the court held the companies producing the VCR "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7620
+#: freeculture.xml:7621
msgid "This led Conrad to draw the cartoon below, which we can adopt to the DMCA."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7624
+#: freeculture.xml:7625
msgid "No argument I have can top this picture, but let me try to get close."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7627
+#: freeculture.xml:7628
msgid ""
"The anticircumvention provisions of the DMCA target copyright circumvention "
"technologies. Circumvention technologies can be used for different "
#. PAGE BREAK 171
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7635
+#: freeculture.xml:7636
msgid ""
"A handgun can be used to shoot a police officer or a child. Most would agree "
"such a use is bad. Or a handgun can be used for target practice or to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7643
+#: freeculture.xml:7644
msgid "VCR/handgun cartoon."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7644
+#: freeculture.xml:7645
msgid "<graphic fileref=\"images/1711.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7647
+#: freeculture.xml:7648
msgid ""
"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 circumvention "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7655
+#: freeculture.xml:7656
msgid ""
"The Aibo and RIAA examples demonstrate how copyright owners are changing the "
"balance that copyright law grants. Using code, copyright owners restrict "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7663
+#: freeculture.xml:7664
msgid ""
"This is how code becomes law. The controls built into the technology of copy "
"and access protection become rules the violation of which is also a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7673
+#: freeculture.xml:7674
msgid ""
"There is one final aspect of the interaction between architecture and law "
"that contributes to the force of copyright's regulation. This is the ease "
#. f24
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7692
+#: freeculture.xml:7693
msgid ""
"For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, "
"Copyright, Fan Fiction, and a New Common Law,\" Loyola of Los Angeles "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7686
+#: freeculture.xml:7687
msgid ""
"For example, imagine you were part of a Star Trek fan club. You gathered "
"every month to share trivia, and maybe to enact a kind of fan fiction about "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7698
+#: freeculture.xml:7699
msgid ""
"Before the Internet, this was, in effect, a totally unregulated activity. "
"No matter what happened inside your club room, you would never be interfered "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7705
+#: freeculture.xml:7706
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7715
+#: freeculture.xml:7716
msgid ""
"This change in the effective force of the law is caused by a change in the "
"ease with which the law can be enforced. That change too shifts the law's "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:7724
+#: freeculture.xml:7725
msgid "Market: Concentration"
msgstr ""
#. PAGE BREAK 173
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7726
+#: freeculture.xml:7727
msgid ""
"So copyright's duration has increased dramatically—tripled in the past "
"thirty years. And copyright's scope has increased as well—from "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7744
+#: freeculture.xml:7745
msgid ""
"Still, in my view, all of these changes would not matter much if it weren't "
"for one more change that we must also consider. This is a change that is in "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7751
+#: freeculture.xml:7752
msgid ""
"This is the change in the concentration and integration of the media. In "
"the past twenty years, the nature of media ownership has undergone a radical "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7762
+#: freeculture.xml:7763
msgid "These changes are of two sorts: the scope of concentration, and its nature."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7765
+#: freeculture.xml:7766
msgid "BMG"
msgstr ""
#. f25
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7771
+#: freeculture.xml:7772
msgid ""
"FCC Oversight: Hearing Before the Senate Commerce, Science and "
"Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement "
#. f26
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7778
+#: freeculture.xml:7779
msgid ""
"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" "
"New York Times, 23 December 2002."
#. f27
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7784
+#: freeculture.xml:7785
msgid ""
"Molly Ivins, \"Media Consolidation Must Be Stopped,\" Charleston Gazette, 31 "
"May 2003."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7767
+#: freeculture.xml:7768
msgid ""
"Changes in scope are the easier ones to describe. As Senator John McCain "
"summarized the data produced in the FCC's review of media ownership, \"five "
#. PAGE BREAK 174
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7789
+#: freeculture.xml:7790
msgid ""
"The story with radio is even more dramatic. Before deregulation, the "
"nation's largest radio broadcasting conglomerate owned fewer than "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7800
+#: freeculture.xml:7801
msgid ""
"Newspaper ownership is becoming more concentrated as well. Today, there are "
"six hundred fewer daily newspapers in the United States than there were "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:7814 freeculture.xml:7831
+#: freeculture.xml:7815 freeculture.xml:7832
msgid "Fallows, James"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7811
+#: freeculture.xml:7812
msgid ""
"Concentration in size alone is one thing. The more invidious change is in "
"the nature of that concentration. As author James Fallows put it in a recent "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:7829
+#: freeculture.xml:7830
msgid ""
"James Fallows, \"The Age of Murdoch,\" Atlantic Monthly (September 2003): "
"89. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7818
+#: freeculture.xml:7819
msgid ""
"Murdoch's companies now constitute a production system unmatched in its "
"integration. They supply content—Fox movies . . . Fox TV shows "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7836
+#: freeculture.xml:7837
msgid ""
"The pattern with Murdoch is the pattern of modern media. Not just large "
"companies owning many radio stations, but a few companies owning as many "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7842
+#: freeculture.xml:7843
msgid "Pattern of modern media ownership."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7843
+#: freeculture.xml:7844
msgid "<graphic fileref=\"images/1761.png\"></graphic>"
msgstr ""
#. PAGE BREAK 175
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7847
+#: freeculture.xml:7848
msgid ""
"Does this concentration matter? Will it affect what is made, or what is "
"distributed? Or is it merely a more efficient way to produce and distribute "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7852
+#: freeculture.xml:7853
msgid ""
"My view was that concentration wouldn't matter. I thought it was nothing "
"more than a more efficient financial structure. But now, after reading and "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7858
+#: freeculture.xml:7859
msgid ""
"Here's a representative story that begins to suggest how this integration "
"may matter."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7861
+#: freeculture.xml:7862
msgid "Lear, Norman"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7863 freeculture.xml:7927
+#: freeculture.xml:7864 freeculture.xml:7928
msgid "All in the Family"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7865
+#: freeculture.xml:7866
msgid ""
"In 1969, Norman Lear created a pilot for All in the Family. He took the "
"pilot to ABC. The network didn't like it. It was too edgy, they told "
#. f29
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7877
+#: freeculture.xml:7878
msgid ""
"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center "
"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7872
+#: freeculture.xml:7873
msgid ""
"Rather than comply, Lear simply took the show elsewhere. CBS was happy to "
"have the series; ABC could not stop Lear from walking. The copyrights that "
#. PAGE BREAK 176
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7889
+#: freeculture.xml:7890
msgid ""
"The network did not control those copyrights because the law forbade the "
"networks from controlling the content they syndicated. The law required a "
#. f30
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7908
+#: freeculture.xml:7909
msgid ""
"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
"Ownership Before the Senate Commerce Committee, 108th Cong., 1st "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7898
+#: freeculture.xml:7899
msgid ""
"In 1994, the FCC abandoned the rules that required this independence. After "
"that change, the networks quickly changed the balance. In 1985, there were "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7929
+#: freeculture.xml:7930
msgid ""
"Today, another Norman Lear with another All in the Family would find that he "
"had the choice either to make the show less edgy or to be fired: The content "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:7938
+#: freeculture.xml:7939
msgid "Diller, Barry"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:7939
+#: freeculture.xml:7940
msgid "Moyers, Bill"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7935
+#: freeculture.xml:7936
msgid ""
"While the number of channels has increased dramatically, the ownership of "
"those channels has narrowed to an ever smaller and smaller few. As Barry "
#. f32
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:7952
+#: freeculture.xml:7953
msgid ""
"\"Barry Diller Takes on Media Deregulation,\" Now with Bill Moyers, Bill "
"Moyers, 25 April 2003, edited transcript available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7943
+#: freeculture.xml:7944
msgid ""
"Well, if you have companies that produce, that finance, that air on their "
"channel and then distribute worldwide everything that goes through their "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7959
+#: freeculture.xml:7960
msgid ""
"This narrowing has an effect on what is produced. The product of such large "
"and concentrated networks is increasingly homogenous. Increasingly "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7970
+#: freeculture.xml:7971
msgid "Clark, Kim B."
msgstr ""
#. f33
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7979
+#: freeculture.xml:7980
msgid ""
"Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National "
"Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7972
+#: freeculture.xml:7973
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the \"Innovator's "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7996
+#: freeculture.xml:7997
msgid ""
"I don't think we know enough about the economics of the media market to say "
"with certainty what concentration and integration will do. The efficiencies "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8002
+#: freeculture.xml:8003
msgid ""
"But there is a quintessentially obvious example that does strongly suggest "
"the concern."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8006
+#: freeculture.xml:8007
msgid ""
"In addition to the copyright wars, we're in the middle of the drug "
"wars. Government policy is strongly directed against the drug cartels; "
#. PAGE BREAK 178
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8011
+#: freeculture.xml:8012
msgid ""
"Let me hereby disqualify myself from any possible appointment to any "
"position in government by saying I believe this war is a profound mistake. I "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8030
+#: freeculture.xml:8031
msgid ""
"You may not be convinced. That's fine. We live in a democracy, and it is "
"through votes that we are to choose policy. But to do that, we depend "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8036
+#: freeculture.xml:8037
msgid ""
"Beginning in 1998, the Office of National Drug Control Policy launched a "
"media campaign as part of the \"war on drugs.\" The campaign produced scores "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8048
+#: freeculture.xml:8049
msgid ""
"Fair enough. It's a good ad. Not terribly misleading. It delivers its "
"message well. It's a fair and reasonable message."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8052
+#: freeculture.xml:8053
msgid ""
"But let's say you think it is a wrong message, and you'd like to run a "
"countercommercial. Say you want to run a series of ads that try to "
#. PAGE BREAK 179
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8058
+#: freeculture.xml:8059
msgid ""
"Well, obviously, these ads cost lots of money. Assume you raise the "
"money. Assume a group of concerned citizens donates all the money in the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8099
+#: freeculture.xml:8100
msgid "Comcast"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8100
+#: freeculture.xml:8101
msgid "Marijuana Policy Project"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8101
+#: freeculture.xml:8102
msgid "WJOA"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8075
+#: freeculture.xml:8076
msgid ""
"The Marijuana Policy Project, in February 2003, sought to place ads that "
"directly responded to the Nick and Norm series on stations within the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8065
+#: freeculture.xml:8066
msgid ""
"No. You cannot. Television stations have a general policy of avoiding "
"\"controversial\" ads. Ads sponsored by the government are deemed "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8105
+#: freeculture.xml:8106
msgid ""
"I'd be happy to defend the networks' rights, as well—if we lived in a "
"media market that was truly diverse. But concentration in the media throws "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:8117
+#: freeculture.xml:8118
msgid "Together"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8119
+#: freeculture.xml:8120
msgid ""
"There is something innocent and obvious about the claim of the copyright "
"warriors that the government should \"protect my property.\" In the "
#. PAGE BREAK 180
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8125
+#: freeculture.xml:8126
msgid ""
"But when we see how dramatically this \"property\" has changed— when "
"we recognize how it might now interact with both technology and markets to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8141
+#: freeculture.xml:8142
msgid ""
"Not starkly. Or absolutely. My point is not that we should abolish copyright "
"or go back to the eighteenth century. That would be a total mistake, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8147
+#: freeculture.xml:8148
msgid ""
"But there is a space between zero and one, Internet culture "
"notwithstanding. And these massive shifts in the effective power of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8159
+#: freeculture.xml:8160
msgid ""
"Copyright law has not been a rock of Gibraltar. It's not a set of constant "
"commitments that, for some mysterious reason, teenagers and geeks now "
#. PAGE BREAK 181
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8171
+#: freeculture.xml:8172
msgid ""
"For the single point that is lost in this war on pirates is a point that we "
"see only after surveying the range of these changes. When you add together "
#. f35
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8193
+#: freeculture.xml:8194
msgid ""
"Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of "
"copyright law in the digital age. See Vaidhyanathan, 159–60."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8179
+#: freeculture.xml:8180
msgid ""
"Not when copyrights were perpetual, for when copyrights were perpetual, they "
"affected only that precise creative work. Not when only publishers had the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8198
+#: freeculture.xml:8199
msgid "This has been a long chapter. Its point can now be briefly stated."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8201
+#: freeculture.xml:8202
msgid ""
"At the start of this book, I distinguished between commercial and "
"noncommercial culture. In the course of this chapter, I have distinguished "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:8214 freeculture.xml:8252
+#: freeculture.xml:8215 freeculture.xml:8253
msgid "PUBLISH"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:8215 freeculture.xml:8253 freeculture.xml:8292 freeculture.xml:8325
+#: freeculture.xml:8216 freeculture.xml:8254 freeculture.xml:8293 freeculture.xml:8326
msgid "TRANSFORM"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8220 freeculture.xml:8258 freeculture.xml:8297 freeculture.xml:8330
+#: freeculture.xml:8221 freeculture.xml:8259 freeculture.xml:8298 freeculture.xml:8331
msgid "Commercial"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8221 freeculture.xml:8259 freeculture.xml:8260 freeculture.xml:8298 freeculture.xml:8299 freeculture.xml:8331 freeculture.xml:8332 freeculture.xml:8336 freeculture.xml:8337
+#: freeculture.xml:8222 freeculture.xml:8260 freeculture.xml:8261 freeculture.xml:8299 freeculture.xml:8300 freeculture.xml:8332 freeculture.xml:8333 freeculture.xml:8337 freeculture.xml:8338
msgid "©"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8222 freeculture.xml:8226 freeculture.xml:8227 freeculture.xml:8264 freeculture.xml:8265 freeculture.xml:8304
+#: freeculture.xml:8223 freeculture.xml:8227 freeculture.xml:8228 freeculture.xml:8265 freeculture.xml:8266 freeculture.xml:8305
msgid "Free"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8225 freeculture.xml:8263 freeculture.xml:8302 freeculture.xml:8335
+#: freeculture.xml:8226 freeculture.xml:8264 freeculture.xml:8303 freeculture.xml:8336
msgid "Noncommercial"
msgstr ""
#. PAGE BREAK 182
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8234
+#: freeculture.xml:8235
msgid ""
"The act of publishing a map, chart, and book was regulated by copyright "
"law. Nothing else was. Transformations were free. And as copyright attached "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8243
+#: freeculture.xml:8244
msgid "By the end of the nineteenth century, the law had changed to this:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8272
+#: freeculture.xml:8273
msgid ""
"Derivative works were now regulated by copyright law—if published, "
"which again, given the economics of publishing at the time, means if offered "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8278
+#: freeculture.xml:8279
msgid ""
"In 1909 the law changed to regulate copies, not publishing, and after this "
"change, the scope of the law was tied to technology. As the technology of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:8291 freeculture.xml:8324
+#: freeculture.xml:8292 freeculture.xml:8325
msgid "COPY"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8303
+#: freeculture.xml:8304
msgid "©/Free"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8311
+#: freeculture.xml:8312
msgid ""
"The law was interpreted to reach noncommercial copying through, say, copy "
"machines, but still much of copying outside of the commercial market "
#. PAGE BREAK 183
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8344
+#: freeculture.xml:8345
msgid ""
"Every realm is governed by copyright law, whereas before most creativity was "
"not. The law now regulates the full range of creativity— commercial or "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8352
+#: freeculture.xml:8353
msgid ""
"Obviously, copyright law is not the enemy. The enemy is regulation that does "
"no good. So the question that we should be asking just now is whether "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8358
+#: freeculture.xml:8359
msgid ""
"I have no doubt that it does good in regulating commercial copying. But I "
"also have no doubt that it does more harm than good when regulating (as it "
#. f36
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8374
+#: freeculture.xml:8375
msgid ""
"It was the single most important contribution of the legal realist movement "
"to demonstrate that all property rights are always crafted to balance public "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8368
+#: freeculture.xml:8369
msgid ""
"The issue is therefore not simply whether copyright is property. Of course "
"copyright is a kind of \"property,\" and of course, as with any property, "
#. PAGE BREAK 184
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8391
+#: freeculture.xml:8392
msgid ""
"We achieved that free culture because our law respected important limits on "
"the scope of the interests protected by \"property.\" The very birth of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8410
+#: freeculture.xml:8411
msgid ""
"Free culture is increasingly the casualty in this war on piracy. In response "
"to a real, if not yet quantified, threat that the technologies of the "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:8427
+#: freeculture.xml:8428
msgid "PUZZLES"
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:8431
+#: freeculture.xml:8432
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8433
+#: freeculture.xml:8434
msgid "chimeras"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8436
+#: freeculture.xml:8437
msgid "Wells, H. G."
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8439
+#: freeculture.xml:8440
msgid ""Country of the Blind, The" (Wells)"
msgstr ""
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:8447
+#: freeculture.xml:8448
msgid ""
"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, The "
"Country of the Blind and Other Stories, Michael Sherborne, ed. (New York: "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8443
+#: freeculture.xml:8444
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8459
+#: freeculture.xml:8460
msgid ""
"Things don't go quite as he planned. He tries to explain the idea of sight "
"to the villagers. They don't understand. He tells them they are \"blind.\" "
#. PAGE BREAK 187
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8471
+#: freeculture.xml:8472
msgid ""
"The villagers don't leave him alone. Nor do they see (so to speak) the "
"virtue of his special power. Not even the ultimate target of his affection, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8482
+#: freeculture.xml:8483
msgid ""
"When Nunez announces his desire to marry his \"mysteriously delighted\" "
"love, the father and the village object. \"You see, my dear,\" her father "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8488
+#: freeculture.xml:8489
msgid ""
"After a careful examination, the doctor gives his opinion. \"His brain is "
"affected,\" he reports."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8492
+#: freeculture.xml:8493
msgid ""
"\"What affects it?\" the father asks. \"Those queer things that are called "
"the eyes . . . are diseased . . . in such a way as to affect his brain.\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8497
+#: freeculture.xml:8498
msgid ""
"The doctor continues: \"I think I may say with reasonable certainty that in "
"order to cure him completely, all that we need to do is a simple and easy "
#. PAGE BREAK 188
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8503
+#: freeculture.xml:8504
msgid ""
"\"Thank Heaven for science!\" says the father to the doctor. They inform "
"Nunez of this condition necessary for him to be allowed his bride. (You'll "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8520
+#: freeculture.xml:8521
msgid ""
"Before I had read about chimeras, I would have said they were impossible. A "
"single person can't have two sets of DNA. The very idea of DNA is that it is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8528
+#: freeculture.xml:8529
msgid ""
"The more I work to understand the current struggle over copyright and "
"culture, which I've sometimes called unfairly, and sometimes not unfairly "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8542
+#: freeculture.xml:8543
msgid ""
"But the description is also false in part. For when my p2p server is on a "
"p2p network through which anyone can get access to my music, then sure, my "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8551
+#: freeculture.xml:8552
msgid ""
"Likewise, when the other side says, \"File sharing is just like walking into "
"a Tower Records and taking a CD off the shelf and walking out with it,\" "
#. PAGE BREAK 189
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8561
+#: freeculture.xml:8562
msgid ""
"But it is not quite stealing from Tower. After all, when I take a CD from "
"Tower Records, Tower has one less CD to sell. And when I take a CD from "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8571
+#: freeculture.xml:8572
msgid ""
"The point is not that it is as neither side describes. The point is that it "
"is both—both as the RIAA describes it and as Kazaa describes it. It is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8617 freeculture.xml:9319
+#: freeculture.xml:8618 freeculture.xml:9320
msgid "Berman, Howard L."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:8587
+#: freeculture.xml:8588
msgid ""
"For an excellent summary, see the report prepared by GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School, \"Copyright "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8578
+#: freeculture.xml:8579
msgid ""
"We could respond by simply pretending that it is not a chimera. We could, "
"with the RIAA, decide that every act of file sharing should be a felony. We "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8623
+#: freeculture.xml:8624
msgid ""
"Alternatively, we could respond to file sharing the way many kids act as "
"though we've responded. We could totally legalize it. Let there be no "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8630
+#: freeculture.xml:8631
msgid ""
"Either response is possible. I think either would be a mistake. Rather than "
"embrace one of these two extremes, we should embrace something that "
#. PAGE BREAK 190
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8642
+#: freeculture.xml:8643
msgid ""
"Yet zero tolerance is increasingly our government's policy. In the middle of "
"the chaos that the Internet has created, an extraordinary land grab is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8650
+#: freeculture.xml:8651
msgid ""
"I'm not talking about the opportunities for kids to \"steal\" music. My "
"focus instead is the commercial and cultural innovation that this war will "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:8663
+#: freeculture.xml:8664
msgid ""
"eMusic opposes music piracy. We are a distributor of copyrighted material, "
"and we want to protect those rights."
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:8667
+#: freeculture.xml:8668
msgid ""
"But building a technology fortress that locks in the clout of the major "
"labels is by no means the only way to protect copyright interests, nor is it "
#. f3.
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:8684
+#: freeculture.xml:8685
msgid ""
"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
"Entertainment on the Internet and Other Media: Hearing Before the "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:8675
+#: freeculture.xml:8676
msgid ""
"This is a critical point. The choices that industry sectors make with "
"respect to these systems will in many ways directly shape the market for "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8699
+#: freeculture.xml:8700
msgid ""
"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the "
"major labels.\" Its position on these matters has now changed."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8704
+#: freeculture.xml:8705
msgid ""
"Reversing our tradition of tolerance now will not merely quash piracy. It "
"will sacrifice values that are important to this culture, and will kill "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:8712
+#: freeculture.xml:8713
msgid "CHAPTER TWELVE: Harms"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8715
+#: freeculture.xml:8716
msgid ""
"To fight \"piracy,\" to protect \"property,\" the content industry has "
"launched a war. Lobbying and lots of campaign contributions have now brought "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8723
+#: freeculture.xml:8724
msgid ""
"My aim so far has been to describe the consequences of this war, in "
"particular, the consequences for \"free culture.\" But my aim now is to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8730
+#: freeculture.xml:8731
msgid ""
"In my view, it is not. There is no good reason why this time, for the first "
"time, the law should defend the old against the new, just when the power of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8738
+#: freeculture.xml:8739
msgid ""
"Yet \"common sense\" does not see it this way. Common sense is still on the "
"side of the Causbys and the content industry. The extreme claims of control "
#. PAGE BREAK 193
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8745
+#: freeculture.xml:8746
msgid ""
"There will be many consequences of continuing this war. I want to describe "
"just three. All three might be said to be unintended. I am quite confident "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:8752
+#: freeculture.xml:8753
msgid "Constraining Creators"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8754
+#: freeculture.xml:8755
msgid ""
"In the next ten years we will see an explosion of digital technologies. "
"These technologies will enable almost anyone to capture and share "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8769
+#: freeculture.xml:8770
msgid ""
"This digital \"capturing and sharing\" is in part an extension of the "
"capturing and sharing that has always been integral to our culture, and in "
#. PAGE BREAK 194
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8780
+#: freeculture.xml:8781
msgid ""
"Technology has thus given us an opportunity to do something with culture "
"that has only ever been possible for individuals in small groups, isolated "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8790
+#: freeculture.xml:8791
msgid ""
"Yet all this is possible only if the activity is presumptively legal. In the "
"current regime of legal regulation, it is not. Forget file sharing for a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:8818 freeculture.xml:8839
+#: freeculture.xml:8819 freeculture.xml:8840
msgid "Worldcom"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8813
+#: freeculture.xml:8814
msgid ""
"See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom (Hoboken, "
"N.J.: John Wiley & Sons, 2003), 176, 204; for details of the settlement, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8834
+#: freeculture.xml:8835
msgid "Bush, George W."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8825
+#: freeculture.xml:8826
msgid ""
"The bill, modeled after California's tort reform model, was passed in the "
"House of Representatives but defeated in a Senate vote in July 2003. For an "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8801
+#: freeculture.xml:8802
msgid ""
"That presumption will increasingly chill creativity, as the examples of "
"extreme penalties for vague infringements continue to proliferate. It is "
#. f3.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8862
+#: freeculture.xml:8863
msgid ""
"See Danit Lidor, \"Artists Just Wanna Be Free,\" Wired, 7 July 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8842
+#: freeculture.xml:8843
msgid ""
"The consequence of this legal uncertainty, tied to these extremely high "
"penalties, is that an extraordinary amount of creativity will either never "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8873
+#: freeculture.xml:8874
msgid ""
"Part of the reason for this fear of illegality has to do with the changing "
"law. I described that change in detail in chapter 10. But an even bigger "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8884
+#: freeculture.xml:8885
msgid ""
"Never in our history has a painter had to worry about whether his painting "
"infringed on someone else's work; but the modern-day painter, using the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8895
+#: freeculture.xml:8896
msgid ""
"Lawyers rarely see this because lawyers are rarely empirical. As I described "
"in chapter 7, in response to the story about documentary filmmaker Jon Else, "
#. PAGE BREAK 196
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8904
+#: freeculture.xml:8905
msgid ""
"But fair use in America simply means the right to hire a lawyer to defend "
"your right to create. And as lawyers love to forget, our system for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8914
+#: freeculture.xml:8915
msgid ""
"Judges and lawyers can tell themselves that fair use provides adequate "
"\"breathing room\" between regulation by the law and the access the law "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8925
+#: freeculture.xml:8926
msgid ""
"For in a world that threatens $150,000 for a single willful infringement of "
"a copyright, and which demands tens of thousands of dollars to even defend "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8936
+#: freeculture.xml:8937
msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me,"
msgstr ""
#. PAGE BREAK 197
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:8940
+#: freeculture.xml:8941
msgid ""
"We're losing [creative] opportunities right and left. Creative people are "
"being forced not to express themselves. Thoughts are not being "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:8953
+#: freeculture.xml:8954
msgid "Constraining Innovators"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8955
+#: freeculture.xml:8956
msgid ""
"The story of the last section was a crunchy-lefty story—creativity "
"quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8963
+#: freeculture.xml:8964
msgid ""
"But there's an aspect of this story that is not lefty in any sense. Indeed, "
"it is an aspect that could be written by the most extreme promarket "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8972
+#: freeculture.xml:8973
msgid ""
"The charge I've been making about the regulation of culture is the same "
"charge free marketers make about regulating markets. Everyone, of course, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:8984 freeculture.xml:9085
+#: freeculture.xml:8985 freeculture.xml:9086
msgid "Barry, Hank"
msgstr ""
#. PAGE BREAK 198
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8986
+#: freeculture.xml:8987
msgid ""
"This is the single most dramatic effect of the shift in regulatory strategy "
"that I described in chapter 10. The consequence of this massive threat of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8998
+#: freeculture.xml:8999
msgid ""
"Consider one example to make the point, a story whose beginning I told in "
"The Future of Ideas and which has progressed in a way that even I (pessimist "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9003
+#: freeculture.xml:9004
msgid ""
"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 facilitate new "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9011
+#: freeculture.xml:9012
msgid ""
"To make this system work, however, MP3.com needed a reliable way to "
"recommend music to its users. The idea behind this alternative was to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9018
+#: freeculture.xml:9019
msgid ""
"This idea required a simple way to gather data about user preferences. "
"MP3.com came up with an extraordinarily clever way to gather this preference "
#. PAGE BREAK 199
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9030
+#: freeculture.xml:9031
msgid ""
"No doubt some could use this system to illegally copy content. But that "
"opportunity existed with or without MP3.com. The aim of the my.mp3.com "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9039
+#: freeculture.xml:9040
msgid ""
"To make this system function, however, MP3.com needed to copy 50,000 CDs to "
"a server. (In principle, it could have been the user who uploaded the music, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9051
+#: freeculture.xml:9052
msgid ""
"Nine days after MP3.com launched its service, the five major labels, headed "
"by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9061
+#: freeculture.xml:9062
msgid "That part of the story I have told before. Now consider its conclusion."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9064
+#: freeculture.xml:9065
msgid ""
"After Vivendi purchased MP3.com, Vivendi turned around and filed a "
"malpractice lawsuit against the lawyers who had advised it that they had a "
#. PAGE BREAK 200
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9074
+#: freeculture.xml:9075
msgid ""
"The clear purpose of this lawsuit (which was settled for an unspecified "
"amount shortly after the story was no longer covered in the press) was to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:9084
+#: freeculture.xml:9085
msgid "Hummer, John"
msgstr ""
#. f4.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9092
+#: freeculture.xml:9093
msgid ""
"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" Los Angeles Times, "
"23 April 2003. For a parallel argument about the effects on innovation in "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9087
+#: freeculture.xml:9088
msgid ""
"This strategy is not just limited to the lawyers. In April 2003, Universal "
"and EMI brought a lawsuit against Hummer Winblad, the venture capital firm "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><indexterm><primary>
-#: freeculture.xml:9116
+#: freeculture.xml:9117
msgid "BMW"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9131
+#: freeculture.xml:9132
msgid "Needleman, Rafe"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:9127
+#: freeculture.xml:9128
msgid ""
"Rafe Needleman, \"Driving in Cars with MP3s,\" Business 2.0, 16 June 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9118
+#: freeculture.xml:9119
msgid ""
"I asked why, with all the storage capacity and computer power in the car, "
"there was no way to play MP3 files. I was told that BMW engineers in Germany "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9136
+#: freeculture.xml:9137
msgid ""
"This is the world of the mafia—filled with \"your money or your life\" "
"offers, governed in the end not by courts but by the threats that the law "
#. PAGE BREAK 201
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9146
+#: freeculture.xml:9147
msgid ""
"The point is not that businesses should have a right to start illegal "
"enterprises. The point is the definition of \"illegal.\" The law is a mess "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9161
+#: freeculture.xml:9162
msgid ""
"The point is directly parallel to the crunchy-lefty point about fair "
"use. Whatever the \"real\" law is, realism about the effect of law in both "
#. PAGE BREAK 202
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9173
+#: freeculture.xml:9174
msgid ""
"The building of a permission culture, rather than a free culture, is the "
"first important way in which the changes I have described will burden "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9195
+#: freeculture.xml:9196
msgid ""
"The motivation for this response is obvious. The Internet enables the "
"efficient spread of content. That efficiency is a feature of the Internet's "
#. f6.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9209
+#: freeculture.xml:9210
msgid ""
"\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School (2003), "
#. f7.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9225
+#: freeculture.xml:9226
msgid "GartnerG2, 26–27."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9205
+#: freeculture.xml:9206
msgid ""
"The examples of this form of legislation are many. At the urging of the "
"content industry, some in Congress have threatened legislation that would "
#. PAGE BREAK 203
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9230
+#: freeculture.xml:9231
msgid ""
"In one sense, these solutions seem sensible. If the problem is the code, why "
"not regulate the code to remove the problem. But any regulation of technical "
#. f8.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9244
+#: freeculture.xml:9245
msgid ""
"See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, "
"February 2002 (Entertainment)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9241
+#: freeculture.xml:9242
msgid ""
"In March 2002, a broad coalition of technology companies, led by Intel, "
"tried to get Congress to see the harm that such legislation would "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9252
+#: freeculture.xml:9253
msgid ""
"There is one more obvious way in which this war has harmed "
"innovation—again, a story that will be quite familiar to the free "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9258
+#: freeculture.xml:9259
msgid ""
"Copyright may be property, but like all property, it is also a form of "
"regulation. It is a regulation that benefits some and harms others. When "
#. f9.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9267
+#: freeculture.xml:9268
msgid "Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9264
+#: freeculture.xml:9265
msgid ""
"As I described in chapter 10, despite this feature of copyright as "
"regulation, and subject to important qualifications outlined by Jessica "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9277
+#: freeculture.xml:9278
msgid ""
"But that pattern of deference to new technologies has now changed with the "
"rise of the Internet. Rather than striking a balance between the claims of a "
#. f10.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9285
+#: freeculture.xml:9286
msgid ""
"The only circuit court exception is found in Recording Industry Association "
"of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9305
+#: freeculture.xml:9306
msgid ""
"For example, in July 2002, Representative Howard Berman introduced the "
"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9284
+#: freeculture.xml:9285
msgid ""
"The response by the courts has been fairly universal.<placeholder "
"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
#. PAGE BREAK 204
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9327
+#: freeculture.xml:9328
msgid ""
"As I described in chapter 4, when a radio station plays a song, the "
"recording artist doesn't get paid for that \"radio performance\" unless he "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9337
+#: freeculture.xml:9338
msgid ""
"The reasoning behind this balance struck by Congress makes some sense. The "
"justification was that radio was a kind of advertising. The recording artist "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9348
+#: freeculture.xml:9349
msgid ""
"Enter Internet radio. Like regular radio, Internet radio is a technology to "
"stream content from a broadcaster to a listener. The broadcast travels "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9357
+#: freeculture.xml:9358
msgid ""
"This feature of the architecture of Internet radio means that there are "
"potentially an unlimited number of radio stations that a user could tune in "
#. PAGE BREAK 205
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9372
+#: freeculture.xml:9373
msgid ""
"Internet radio is thus to radio what FM was to AM. It is an improvement "
"potentially vastly more significant than the FM improvement over AM, since "
#. f12.
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:9396
+#: freeculture.xml:9397
msgid "Lessing, 239."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9382
+#: freeculture.xml:9383
msgid ""
"An almost unlimited number of FM stations was possible in the shortwaves, "
"thus ending the unnatural restrictions imposed on radio in the crowded "
#. f13.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9406
+#: freeculture.xml:9407
msgid "Ibid., 229."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9401
+#: freeculture.xml:9402
msgid ""
"This potential for FM radio was never realized—not because Armstrong "
"was wrong about the technology, but because he underestimated the power of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9411
+#: freeculture.xml:9412
msgid ""
"Now the very same claim could be made about Internet radio. For again, there "
"is no technical limitation that could restrict the number of Internet radio "
#. PAGE BREAK 206
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9419
+#: freeculture.xml:9420
msgid ""
"But here the power of the lobbyists is reversed. Internet radio is a new "
"industry. The recording artists, on the other hand, have a very powerful "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9459
+#: freeculture.xml:9460
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9442
+#: freeculture.xml:9443
msgid ""
"This example was derived from fees set by the original Copyright Arbitration "
"Royalty Panel (CARP) proceedings, and is drawn from an example offered by "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9435
+#: freeculture.xml:9436
msgid ""
"This financial burden is not slight. As Harvard law professor William Fisher "
"estimates, if an Internet radio station distributed adfree popular music to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9466
+#: freeculture.xml:9467
msgid ""
"The burden is not financial only. Under the original rules that were "
"proposed, an Internet radio station (but not a terrestrial radio station) "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9473
+#: freeculture.xml:9474
msgid "name of the service;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9476
+#: freeculture.xml:9477
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9479
+#: freeculture.xml:9480
msgid "type of program (archived/looped/live);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9482
+#: freeculture.xml:9483
msgid "date of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9485
+#: freeculture.xml:9486
msgid "time of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9488
+#: freeculture.xml:9489
msgid "time zone of origination of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9491
+#: freeculture.xml:9492
msgid "numeric designation of the place of the sound recording within the program;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9494
+#: freeculture.xml:9495
msgid "duration of transmission (to nearest second);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9497
+#: freeculture.xml:9498
msgid "sound recording title;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9500
+#: freeculture.xml:9501
msgid "ISRC code of the recording;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9503
+#: freeculture.xml:9504
msgid ""
"release year of the album per copyright notice and in the case of "
"compilation albums, the release year of the album and copy- right date of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9506
+#: freeculture.xml:9507
msgid "featured recording artist;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9509
+#: freeculture.xml:9510
msgid "retail album title;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9512
+#: freeculture.xml:9513
msgid "recording label;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9515
+#: freeculture.xml:9516
msgid "UPC code of the retail album;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9518
+#: freeculture.xml:9519
msgid "catalog number;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9521
+#: freeculture.xml:9522
msgid "copyright owner information;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9524
+#: freeculture.xml:9525
msgid "musical genre of the channel or program (station format);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9527
+#: freeculture.xml:9528
msgid "name of the service or entity;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9530
+#: freeculture.xml:9531
msgid "channel or program;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9533
+#: freeculture.xml:9534
msgid "date and time that the user logged in (in the user's time zone);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9536
+#: freeculture.xml:9537
msgid "date and time that the user logged out (in the user's time zone);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9539
+#: freeculture.xml:9540
msgid "time zone where the signal was received (user);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9542
+#: freeculture.xml:9543
msgid "Unique User identifier;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9545
+#: freeculture.xml:9546
msgid "the country in which the user received the transmissions."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9550
+#: freeculture.xml:9551
msgid ""
"The Librarian of Congress eventually suspended these reporting requirements, "
"pending further study. And he also changed the original rates set by the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9558
+#: freeculture.xml:9559
msgid ""
"Why? What justifies this difference? Was there any study of the economic "
"consequences from Internet radio that would justify these differences? Was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9564
+#: freeculture.xml:9565
msgid ""
"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 Policy at "
#. PAGE BREAK 208
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9570
+#: freeculture.xml:9571
msgid ""
"The RIAA, which was representing the record labels, presented some testimony "
"about what they thought a willing buyer would pay to a willing seller, and "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9586
+#: freeculture.xml:9587
msgid ""
"And the RIAA experts said, \"Well, we don't really model this as an industry "
"with thousands of webcasters, we think it should be an industry with, you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9593
+#: freeculture.xml:9594
msgid ""
"Translation: The aim is to use the law to eliminate competition, so that "
"this platform of potentially immense competition, which would cause the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:9603
+#: freeculture.xml:9604
msgid "Corrupting Citizens"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9605
+#: freeculture.xml:9606
msgid ""
"Overregulation stifles creativity. It smothers innovation. It gives "
"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9611
+#: freeculture.xml:9612
msgid ""
"In addition to these important harms, there is one more that was important "
"to our forebears, but seems forgotten today. Overregulation corrupts "
#. f15.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9620
+#: freeculture.xml:9621
msgid ""
"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet "
"and American Life Project (24 April 2001), available at <ulink "
#. PAGE BREAK 209
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9616
+#: freeculture.xml:9617
msgid ""
"The war that is being waged today is a war of prohibition. As with every war "
"of prohibition, it is targeted against the behavior of a very large number "
#. f16.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9654
+#: freeculture.xml:9655
msgid ""
"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" Los "
"Angeles Times, 10 September 2003, Business."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9641
+#: freeculture.xml:9642
msgid ""
"The content industry's tactics exploit the failings of the American legal "
"system. When the RIAA brought suit against Jesse Jordan, it knew that in "
#. f17.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9676
+#: freeculture.xml:9677
msgid ""
"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During "
"Prohibition,\" American Economic Review 81, no. 2 (1991): 242."
#. f18.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9684
+#: freeculture.xml:9685
msgid ""
"National Drug Control Policy: Hearing Before the House Government Reform "
"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John "
#. f19.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9694
+#: freeculture.xml:9695
msgid ""
"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" "
"Journal of Economic Literature 36 (1998): 818 (survey of compliance "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9666
+#: freeculture.xml:9667
msgid ""
"Wars of prohibition are nothing new in America. This one is just something "
"more extreme than anything we've seen before. We experimented with alcohol "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9703
+#: freeculture.xml:9704
msgid ""
"This state of affairs is not without consequence. It is a particularly "
"salient issue for teachers like me, whose job it is to teach law students "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9720
+#: freeculture.xml:9721
msgid ""
"The response to this general illegality is either to enforce the law more "
"severely or to change the law. We, as a society, have to learn how to make "
#. PAGE BREAK 211
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9733
+#: freeculture.xml:9734
msgid ""
"My point is not the idiotic one: Just because people violate a law, we "
"should therefore repeal it. Obviously, we could reduce murder statistics "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9740
+#: freeculture.xml:9741
msgid ""
"My point is instead one that democracies understood for generations, but "
"that we recently have learned to forget. The rule of law depends upon people "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9754
+#: freeculture.xml:9755
msgid ""
"When at least forty-three million citizens download content from the "
"Internet, and when they use tools to combine that content in ways "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9766
+#: freeculture.xml:9767
msgid "This abstract point can be made more clear with a particular example."
msgstr ""
#. PAGE BREAK 212
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9769
+#: freeculture.xml:9770
msgid ""
"We all own CDs. Many of us still own phonograph records. These pieces of "
"plastic encode music that in a certain sense we have bought. The law "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9780
+#: freeculture.xml:9781
msgid ""
"But as the MP3 craze has demonstrated, there is another use of phonograph "
"records that is effectively free. Because these recordings were made without "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:9788
+#: freeculture.xml:9789
msgid "Adromeda"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9790
+#: freeculture.xml:9791
msgid ""
"This \"use\" of my records is certainly valuable. I have begun a large "
"process at home of ripping all of my and my wife's CDs, and storing them in "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9801
+#: freeculture.xml:9802
msgid ""
"This use is enabled by unprotected media—either CDs or records. But "
"unprotected media also enable file sharing. File sharing threatens (or so "
#. PAGE BREAK 213
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9811
+#: freeculture.xml:9812
msgid ""
"If these technologies took off, then the building of large archives of your "
"own music would become quite difficult. You might hang in hacker circles, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9825
+#: freeculture.xml:9826
msgid ""
"If the only way to assure that artists get paid were the elimination of the "
"ability to freely move content, then these technologies to interfere with "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9834
+#: freeculture.xml:9835
msgid ""
"My point just now is not to prove that there is such a system. I offer a "
"version of such a system in the last chapter of this book. For now, the only "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9845
+#: freeculture.xml:9846
msgid ""
"I believe there is a way to assure that artists are paid without turning "
"forty-three million Americans into felons. But the salient feature of this "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9854
+#: freeculture.xml:9855
msgid ""
"Except that this generation's buggy manufacturers have already saddled "
"Congress, and are riding the law to protect themselves against this new form "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9860
+#: freeculture.xml:9861
msgid ""
"It is understandable why they choose as they do. It is not understandable "
"why we as a democracy continue to choose as we do. Jack Valenti is charming; "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9877
+#: freeculture.xml:9878
msgid "\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains,"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9882
+#: freeculture.xml:9883
msgid ""
"then all of a sudden a lot of basic civil liberty protections evaporate to "
"one degree or another. . . . If you're a copyright infringer, how can you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9894
+#: freeculture.xml:9895
msgid ""
"And the consequence of this transformation of the American public into "
"criminals is that it becomes trivial, as a matter of due process, to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9899
+#: freeculture.xml:9900
msgid ""
"Users of the Internet began to see this generally in 2003 as the RIAA "
"launched its campaign to force Internet service providers to turn over the "
#. f20.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9917
+#: freeculture.xml:9918
msgid ""
"See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in "
"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9908
+#: freeculture.xml:9909
msgid ""
"The RIAA then expanded this campaign, by announcing a general strategy to "
"sue individual users of the Internet who are alleged to have downloaded "
#. f21.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9935
+#: freeculture.xml:9936
msgid ""
"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some "
"Methods Used,\" CNN.com, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9931
+#: freeculture.xml:9932
msgid ""
"Even this understates the espionage that is being waged by the RIAA. A "
"report from CNN late last summer described a strategy the RIAA had adopted "
#. f22.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9956
+#: freeculture.xml:9957
msgid ""
"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" Boston "
"Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, \"Four Students Sued over "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9944
+#: freeculture.xml:9945
msgid ""
"So imagine the following not-implausible scenario: Imagine a friend gives a "
"CD to your daughter—a collection of songs just like the cassettes you "
#. PAGE BREAK 216
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9975
+#: freeculture.xml:9976
msgid ""
"Now, of course, she'll have the right to defend herself. You can hire a "
"lawyer for her (at $300 per hour, if you're lucky), and she can plead that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9990
+#: freeculture.xml:9991
msgid ""
"So when we're talking about numbers like forty to sixty million Americans "
"that are essentially copyright infringers, you create a situation where the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:10010
+#: freeculture.xml:10011
msgid ""
"When forty to sixty million Americans are considered \"criminals\" under the "
"law, and when the law could achieve the same objective— securing "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:10023
+#: freeculture.xml:10024
msgid "BALANCES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10027
+#: freeculture.xml:10028
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10033
+#: freeculture.xml:10034
msgid ""
"As you ponder the mess, someone else comes along. In a panic, she grabs the "
"bucket. Before you have a chance to tell her to stop—or before she "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10041
+#: freeculture.xml:10042
msgid ""
"A war about copyright rages all around—and we're all focusing on the "
"wrong thing. No doubt, current technologies threaten existing businesses. "
#. PAGE BREAK 219
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10050
+#: freeculture.xml:10051
msgid ""
"Yet policy makers are not willing to leave this fire to itself. Primed with "
"plenty of lobbyists' money, they are keen to intervene to eliminate the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10058
+#: freeculture.xml:10059
msgid ""
"Somehow we have to find a way to turn attention to this more important and "
"fundamental issue. Somehow we have to find a way to avoid pouring gasoline "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10063
+#: freeculture.xml:10064
msgid ""
"We have not found that way yet. Instead, we seem trapped in a simpler, "
"binary view. However much many people push to frame this debate more "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10069
+#: freeculture.xml:10070
msgid ""
"This challenge has been my life these last few years. It has also been my "
"failure. In the two chapters that follow, I describe one small brace of "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:10078
+#: freeculture.xml:10079
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10080
+#: freeculture.xml:10081
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10089
+#: freeculture.xml:10090
msgid ""
"It didn't work—at least for his daughters. They didn't find Hawthorne "
"any more interesting than before. But Eldred's experiment gave birth to a "
#. PAGE BREAK 221
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10096
+#: freeculture.xml:10097
msgid ""
"Eldred's library was not simply a copy of certain public domain works, "
"though even a copy would have been of great value to people across the world "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10107
+#: freeculture.xml:10108
msgid ""
"Eldred's freedom to do this with Hawthorne's work grew from the same source "
"as Disney's. Hawthorne's Scarlet Letter had passed into the public domain in "
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10130
+#: freeculture.xml:10131
msgid ""
"There's a parallel here with pornography that is a bit hard to describe, but "
"it's a strong one. One phenomenon that the Internet created was a world of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10119
+#: freeculture.xml:10120
msgid ""
"The Internet created the possibility of noncommercial publications of public "
"domain works. Eldred's is just one example. There are literally thousands of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10147
+#: freeculture.xml:10148
msgid ""
"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection "
"of poems New Hampshire was slated to pass into the public domain. Eldred "
#. f2.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10167
+#: freeculture.xml:10168
msgid ""
"The full text is: \"Sonny [Bono] wanted the term of copyright protection to "
"last forever. I am informed by staff that such a change would violate the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10162
+#: freeculture.xml:10163
msgid ""
"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in "
"memory of the congressman and former musician Sonny Bono, who, his widow, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10178
+#: freeculture.xml:10179
msgid ""
"Eldred decided to fight this law. He first resolved to fight it through "
"civil disobedience. In a series of interviews, Eldred announced that he "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10187
+#: freeculture.xml:10188
msgid ""
"It was here that I became involved in Eldred's battle. I was a "
"constitutional scholar whose first passion was constitutional "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:10198
+#: freeculture.xml:10199
msgid ""
"Congress has the power to promote the Progress of Science . . . by securing "
"for limited Times to Authors . . . exclusive Right to their "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10204
+#: freeculture.xml:10205
msgid ""
"As I've described, this clause is unique within the power-granting clause of "
"Article I, section 8 of our Constitution. Every other clause granting power "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:10223 freeculture.xml:11673
+#: freeculture.xml:10224 freeculture.xml:11674
msgid "Jaszi, Peter"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10214
+#: freeculture.xml:10215
msgid ""
"In the past forty years, Congress has gotten into the practice of extending "
"existing terms of copyright protection. What puzzled me about this was, if "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10226
+#: freeculture.xml:10227
msgid ""
"As an academic, my first response was to hit the books. I remember sitting "
"late at the office, scouring on-line databases for any serious consideration "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10237
+#: freeculture.xml:10238
msgid ""
"For this is the core of the corruption in our present system of "
"government. \"Corruption\" not in the sense that representatives are "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10246
+#: freeculture.xml:10247
msgid ""
"If that's not obvious to you, consider the following: Say you're one of the "
"very few lucky copyright owners whose copyright continues to make money one "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10256
+#: freeculture.xml:10257
msgid ""
"So imagine the Robert Frost estate is earning $100,000 a year from three of "
"Frost's poems. And imagine the copyright for those poems is about to "
#. PAGE BREAK 224
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10263
+#: freeculture.xml:10264
msgid ""
"\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C "
"will expire. That means that after next year, we will no longer be receiving "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10271
+#: freeculture.xml:10272
msgid ""
"\"There's a proposal in Congress, however,\" she continues, \"that could "
"change this. A few congressmen are floating a bill to extend the terms of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10277
+#: freeculture.xml:10278
msgid ""
"\"Hope?\" a fellow board member says. \"Can't we be doing something about "
"it?\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10281
+#: freeculture.xml:10282
msgid ""
"\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the "
"campaigns of a number of representatives to try to assure that they support "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10286
+#: freeculture.xml:10287
msgid ""
"You hate politics. You hate contributing to campaigns. So you want to know "
"whether this disgusting practice is worth it. \"How much would we get if "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10292
+#: freeculture.xml:10293
msgid ""
"\"Well,\" the adviser says, \"if you're confident that you will continue to "
"get at least $100,000 a year from these copyrights, and you use the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10298
+#: freeculture.xml:10299
msgid ""
"You're a bit shocked by the number, but you quickly come to the correct "
"conclusion:"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10302
+#: freeculture.xml:10303
msgid ""
"\"So you're saying it would be worth it for us to pay more than $1,000,000 "
"in campaign contributions if we were confident those contributions would "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10308
+#: freeculture.xml:10309
msgid ""
"\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute "
"up to the `present value' of the income you expect from these "
#. PAGE BREAK 225
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10314
+#: freeculture.xml:10315
msgid ""
"You quickly get the point—you as the member of the board and, I trust, "
"you the reader. Each time copyrights are about to expire, every beneficiary "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10325
+#: freeculture.xml:10326
msgid ""
"Thus a congressional perpetual motion machine: So long as legislation can be "
"bought (albeit indirectly), there will be all the incentive in the world to "
#. f3.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10338
+#: freeculture.xml:10339
msgid ""
"Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse "
"Effort; Congress OKs Bill Granting Creators 20 More Years,\" Chicago "
#. f4.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10345
+#: freeculture.xml:10346
msgid ""
"See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>."
#. f5.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10352
+#: freeculture.xml:10353
msgid ""
"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" Congressional "
"Quarterly This Week, 8 August 1990, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10331
+#: freeculture.xml:10332
msgid ""
"In the lobbying that led to the passage of the Sonny Bono Copyright Term "
"Extension Act, this \"theory\" about incentives was proved real. Ten of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10360
+#: freeculture.xml:10361
msgid ""
"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 "
#. PAGE BREAK 226
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10373
+#: freeculture.xml:10374
msgid ""
"It was also my judgment that this Supreme Court would not allow Congress to "
"extend existing terms. As anyone close to the Supreme Court's work knows, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10386
+#: freeculture.xml:10387
msgid ""
"Since 1937, the Supreme Court had interpreted Congress's granted powers very "
"broadly; so, while the Constitution grants Congress the power to regulate "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10396
+#: freeculture.xml:10397
msgid ""
"As the economy grew, this standard increasingly meant that there was no "
"limit to Congress's power to regulate, since just about every activity, when "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10405
+#: freeculture.xml:10406
msgid ""
"The Supreme Court, under Chief Justice Rehnquist's command, changed that in "
"United States v. Lopez. The government had argued that possessing guns near "
#. f6.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10421
+#: freeculture.xml:10422
msgid "United States v. Lopez, 514 U.S. 549, 564 (1995)."
msgstr ""
#. f7.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10427
+#: freeculture.xml:10428
msgid "United States v. Morrison, 529 U.S. 598 (2000)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10418
+#: freeculture.xml:10419
msgid ""
"\"We pause to consider the implications of the government's arguments,\" the "
"Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> If anything "
#. f8.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10434
+#: freeculture.xml:10435
msgid ""
"If it is a principle about enumerated powers, then the principle carries "
"from one enumerated power to another. The animating point in the context of "
#. PAGE BREAK 227
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10432
+#: freeculture.xml:10433
msgid ""
"If a principle were at work here, then it should apply to the Progress "
"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10458
+#: freeculture.xml:10459
msgid ""
"If, that is, the principle announced in Lopez stood for a principle. Many "
"believed the decision in Lopez stood for politics—a conservative "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10472
+#: freeculture.xml:10473
msgid ""
"Now let's pause for a moment to make sure we understand what the argument in "
"Eldred was not about. By insisting on the Constitution's limits to "
#. f9.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10495
+#: freeculture.xml:10496
msgid ""
"Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 "
"U.S. 186 (2003) (No. 01-618), n.10, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10490
+#: freeculture.xml:10491
msgid ""
"Some people view the public domain with contempt. In their brief before the "
"Supreme Court, the Nashville Songwriters Association wrote that the public "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10505
+#: freeculture.xml:10506
msgid ""
"As we've seen, our constitutional system requires limits on copyright as a "
"way to assure that copyright holders do not too heavily influence the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10517
+#: freeculture.xml:10518
msgid ""
"It is valuable copyrights that are responsible for terms being extended. "
"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for "
#. f10.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10538
+#: freeculture.xml:10539
msgid ""
"The figure of 2 percent is an extrapolation from the study by the "
"Congressional Research Service, in light of the estimated renewal "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10532
+#: freeculture.xml:10533
msgid ""
"If you look at the work created in the first twenty years (1923 to 1942) "
"affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that "
#. PAGE BREAK 229
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10547
+#: freeculture.xml:10548
msgid ""
"Think practically about the consequence of this extension—practically, "
"as a businessperson, and not as a lawyer eager for more legal work. In 1930, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10559
+#: freeculture.xml:10560
msgid ""
"Well, first, you'd have to determine which of the 9,873 books were still "
"under copyright. That requires going to a library (these data are not "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10567
+#: freeculture.xml:10568
msgid ""
"Then for the books still under copyright, you would need to locate the "
"current copyright owners. How would you do that?"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10571
+#: freeculture.xml:10572
msgid ""
"Most people think that there must be a list of these copyright owners "
"somewhere. Practical people think this way. How could there be thousands and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10578
+#: freeculture.xml:10579
msgid ""
"But there is no list. There may be a name from 1930, and then in 1959, of "
"the person who registered the copyright. But just think practically about "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10587
+#: freeculture.xml:10588
msgid ""
"\"But there isn't a list of who owns property generally,\" the apologists "
"for the system respond. \"Why should there be a list of copyright owners?\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10593
+#: freeculture.xml:10594
msgid ""
"Well, actually, if you think about it, there are plenty of lists of who owns "
"what property. Think about deeds on houses, or titles to cars. And where "
#. PAGE BREAK 230
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10602
+#: freeculture.xml:10603
msgid ""
"So: You walk down a street and see a house. You can know who owns the house "
"by looking it up in the courthouse registry. If you see a car, there is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10617
+#: freeculture.xml:10618
msgid ""
"Compare this story to intangible property. You go into a library. The "
"library owns the books. But who owns the copyrights? As I've already "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10629
+#: freeculture.xml:10630
msgid ""
"The consequence with respect to old books is that they won't be digitized, "
"and hence will simply rot away on shelves. But the consequence for other "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10634
+#: freeculture.xml:10635
msgid "Agee, Michael"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10647
+#: freeculture.xml:10648
msgid ""
"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" Los "
"Angeles Times, 6 October 2002; David Streitfeld, \"Classic Movies, Songs, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10636
+#: freeculture.xml:10637
msgid ""
"Consider the story of Michael Agee, chairman of Hal Roach Studios, which "
"owns the copyrights for the Laurel and Hardy films. Agee is a direct "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10655
+#: freeculture.xml:10656
msgid ""
"Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this "
"culture: selflessness. He argued in a brief before the Supreme Court that "
#. PAGE BREAK 231
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10661
+#: freeculture.xml:10662
msgid ""
"His argument is straightforward. A tiny fraction of this work has any "
"continuing commercial value. The rest—to the extent it survives at "
#. f12.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10678
+#: freeculture.xml:10679
msgid ""
"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the "
"Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618), 12. See "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10672
+#: freeculture.xml:10673
msgid ""
"We can't know the benefits, but we do know a lot about the costs. For most "
"of the history of film, the costs of restoring film were very high; digital "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10688
+#: freeculture.xml:10689
msgid ""
"Restoration technology is not the only cost, nor the most important. "
"Lawyers, too, are a cost, and increasingly, a very important one. In "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10696
+#: freeculture.xml:10697
msgid ""
"Or more accurately, owners. As we've seen, there isn't only a single "
"copyright associated with a film; there are many. There isn't a single "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10705
+#: freeculture.xml:10706
msgid ""
"\"But can't you just restore the film, distribute it, and then pay the "
"copyright owner when she shows up?\" Sure, if you want to commit a "
#. PAGE BREAK 232
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10716
+#: freeculture.xml:10717
msgid ""
"For some films, the benefit of releasing the film may well exceed these "
"costs. But for the vast majority of them, there is no way the benefit would "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10726
+#: freeculture.xml:10727
msgid ""
"But by the time the copyright for these films expires, the film will have "
"expired. These films were produced on nitrate-based stock, and nitrate stock "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10734
+#: freeculture.xml:10735
msgid ""
"Of all the creative work produced by humans anywhere, a tiny fraction has "
"continuing commercial value. For that tiny fraction, the copyright is a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10743
+#: freeculture.xml:10744
msgid ""
"But even for that tiny fraction, the actual time during which the creative "
"work has a commercial life is extremely short. As I've indicated, most books "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10753
+#: freeculture.xml:10754
msgid ""
"Yet that doesn't mean the life of the creative work ends. We don't keep "
"libraries of books in order to compete with Barnes & Noble, and we don't "
#. PAGE BREAK 233
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10766
+#: freeculture.xml:10767
msgid ""
"Copyrights in this context do not drive an engine of free expression. In "
"this context, there is no need for an exclusive right. Copyrights in this "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10773
+#: freeculture.xml:10774
msgid ""
"Yet, for most of our history, they also did little harm. For most of our "
"history, when a work ended its commercial life, there was no "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10783
+#: freeculture.xml:10784
msgid ""
"The same was effectively true of film. Because the costs of restoring a "
"film—the real economic costs, not the lawyer costs—were so high, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10792
+#: freeculture.xml:10793
msgid ""
"In other words, though copyright has been relatively short for most of our "
"history, long copyrights wouldn't have mattered for the works that lost "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10798
+#: freeculture.xml:10799
msgid "But this situation has now changed."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10801
+#: freeculture.xml:10802
msgid ""
"One crucially important consequence of the emergence of digital technologies "
"is to enable the archive that Brewster Kahle dreams of. Digital "
#. PAGE BREAK 234
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10814
+#: freeculture.xml:10815
msgid ""
"And now copyright law does get in the way. Every step of producing this "
"digital archive of our culture infringes on the exclusive right of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10824
+#: freeculture.xml:10825
msgid ""
"Here is the core of the harm that comes from extending terms: Now that "
"technology enables us to rebuild the library of Alexandria, the law gets in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10835
+#: freeculture.xml:10836
msgid ""
"You may well ask, \"But if digital technologies lower the costs for Brewster "
"Kahle, then they will lower the costs for Random House, too. So won't "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10841
+#: freeculture.xml:10842
msgid ""
"Maybe. Someday. But there is absolutely no evidence to suggest that "
"publishers would be as complete as libraries. If Barnes & Noble offered "
#. f13.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10864
+#: freeculture.xml:10865
msgid ""
"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 "
"December 2002, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10852
+#: freeculture.xml:10853
msgid ""
"I would be the first to agree that it should do as much as it can: We should "
"rely upon the market as much as possible to spread and enable culture. My "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10871
+#: freeculture.xml:10872
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10879
+#: freeculture.xml:10880
msgid ""
"The district court dismissed our claims without even hearing an argument. A "
"panel of the Court of Appeals for the D.C. Circuit also dismissed our "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10886
+#: freeculture.xml:10887
msgid ""
"Judge David Sentelle said the CTEA violated the requirement that copyrights "
"be for \"limited Times\" only. His argument was as elegant as it was simple: "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10897
+#: freeculture.xml:10898
msgid ""
"We asked the Court of Appeals for the D.C. Circuit as a whole to hear the "
"case. Cases are ordinarily heard in panels of three, except for important "
#. PAGE BREAK 236
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10903
+#: freeculture.xml:10904
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10912
+#: freeculture.xml:10913
msgid ""
"It was here that most expected Eldred v. Ashcroft would die, for the Supreme "
"Court rarely reviews any decision by a court of appeals. (It hears about one "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10919
+#: freeculture.xml:10920
msgid ""
"But in February 2002, the Supreme Court surprised the world by granting our "
"petition to review the D.C. Circuit opinion. Argument was set for October of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10925
+#: freeculture.xml:10926
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10935
+#: freeculture.xml:10936
msgid ""
"But my client and these friends were wrong. This case could have been "
"won. It should have been won. And no matter how hard I try to retell this "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10940 freeculture.xml:10954
+#: freeculture.xml:10941 freeculture.xml:10955
msgid "Steward, Geoffrey"
msgstr ""
#. PAGE BREAK 237
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10942
+#: freeculture.xml:10943
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10952 freeculture.xml:11293 freeculture.xml:11308 freeculture.xml:11402 freeculture.xml:11616 freeculture.xml:11647 freeculture.xml:11735
+#: freeculture.xml:10953 freeculture.xml:11294 freeculture.xml:11309 freeculture.xml:11403 freeculture.xml:11617 freeculture.xml:11648 freeculture.xml:11736
msgid "Ayer, Don"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10953
+#: freeculture.xml:10954
msgid "Bromberg, Dan"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10956
+#: freeculture.xml:10957
msgid ""
"There were three key lawyers on the case from Jones Day. Geoff Stewart was "
"the first, but then Dan Bromberg and Don Ayer became quite "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10966
+#: freeculture.xml:10967
msgid ""
"I hate this view of the law. Of course I thought the Sonny Bono Act was a "
"dramatic harm to free speech and free culture. Of course I still think it "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10987
+#: freeculture.xml:10988
msgid ""
"In any case, I thought, the Court must already see the danger and the harm "
"caused by this sort of law. Why else would they grant review? There was no "
#. PAGE BREAK 238
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10995
+#: freeculture.xml:10996
msgid ""
"There was one way, however, in which I felt politics would matter and in "
"which I thought a response was appropriate. I was convinced that the Court "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11026 freeculture.xml:11049
+#: freeculture.xml:11027 freeculture.xml:11050
msgid "Eagle Forum"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11027
+#: freeculture.xml:11028
msgid "Schlafly, Phyllis"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11014
+#: freeculture.xml:11015
msgid ""
"The first step happened all by itself. Phyllis Schlafly's organization, "
"Eagle Forum, had been an opponent of the CTEA from the very beginning. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11030
+#: freeculture.xml:11031
msgid ""
"In the Court of Appeals, Eagle Forum was eager to file a brief supporting "
"our position. Their brief made the argument that became the core claim in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11038
+#: freeculture.xml:11039
msgid ""
"In the Supreme Court, the briefs on our side were about as diverse as it "
"gets. They included an extraordinary historical brief by the Free Software "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11052
+#: freeculture.xml:11053
msgid ""
"Those briefs framed a legal argument. Then to support the legal argument, "
"there were a number of powerful briefs by libraries and archives, including "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11058
+#: freeculture.xml:11059
msgid ""
"But two briefs captured the policy argument best. One made the argument I've "
"already described: A brief by Hal Roach Studios argued that unless the law "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11064
+#: freeculture.xml:11065
msgid "Akerlof, George"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11065
+#: freeculture.xml:11066
msgid "Arrow, Kenneth"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11066
+#: freeculture.xml:11067
msgid "Buchanan, James"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11067
+#: freeculture.xml:11068
msgid "Coase, Ronald"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11068
+#: freeculture.xml:11069
msgid "Friedman, Milton"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11070
+#: freeculture.xml:11071
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11093 freeculture.xml:11106 freeculture.xml:11299 freeculture.xml:11652
+#: freeculture.xml:11094 freeculture.xml:11107 freeculture.xml:11300 freeculture.xml:11653
msgid "Fried, Charles"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11081
+#: freeculture.xml:11082
msgid ""
"The same effort at balance was reflected in the legal team we gathered to "
"write our briefs in the case. The Jones Day lawyers had been with us from "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11096
+#: freeculture.xml:11097
msgid ""
"Fried was a special victory for our side. Every other former solicitor "
"general was hired by the other side to defend Congress's power to give media "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11109
+#: freeculture.xml:11110
msgid ""
"The government, in defending the statute, had its collection of friends, as "
"well. Significantly, however, none of these \"friends\" included historians "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11116
+#: freeculture.xml:11117
msgid ""
"The media companies were not surprising. They had the most to gain from the "
"law. The congressmen were not surprising either—they were defending "
#. f14.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:11132
+#: freeculture.xml:11133
msgid ""
"Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. "
"(2003) (No. 01-618), 19."
#. f15.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:11140
+#: freeculture.xml:11141
msgid ""
"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
"the Fray,\" New York Times, 28 March 1998, B7."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11147
+#: freeculture.xml:11148
msgid "Gershwin, George"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11125
+#: freeculture.xml:11126
msgid ""
"Dr. Seuss's representatives, for example, argued that it was better for the "
"Dr. Seuss estate to control what happened to Dr. Seuss's work— better "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11150
+#: freeculture.xml:11151
msgid ""
"This argument made clear a theme that is rarely noticed in this debate. "
"When Congress decides to extend the term of existing copyrights, Congress is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11162
+#: freeculture.xml:11163
msgid ""
"We argued as much in a final brief. Not only would upholding the CTEA mean "
"that there was no limit to the power of Congress to extend "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11171
+#: freeculture.xml:11172
msgid ""
"The Supreme Court was divided into two important camps. One camp we called "
"\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11180 freeculture.xml:11204 freeculture.xml:11545 freeculture.xml:11557
+#: freeculture.xml:11181 freeculture.xml:11205 freeculture.xml:11546 freeculture.xml:11558
msgid "Breyer, Stephen"
msgstr ""
#. PAGE BREAK 242
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11182
+#: freeculture.xml:11183
msgid ""
"The Rest were the four Justices who had strongly opposed limits on "
"Congress's power. These four—Justice Stevens, Justice Souter, Justice "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11194
+#: freeculture.xml:11195
msgid ""
"In particular, the least likely was Justice Ginsburg's. In addition to her "
"general view about deference to Congress (except where issues of gender are "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11206
+#: freeculture.xml:11207
msgid ""
"Close behind Justice Ginsburg were two justices whom we also viewed as "
"unlikely allies, though possible surprises. Justice Souter strongly favored "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11214
+#: freeculture.xml:11215
msgid ""
"The only vote we could be confident about was that of Justice "
"Stevens. History will record Justice Stevens as one of the greatest judges "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11222
+#: freeculture.xml:11223
msgid ""
"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 "
#. PAGE BREAK 243
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11232
+#: freeculture.xml:11233
msgid ""
"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 Lopez case, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11245
+#: freeculture.xml:11246
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11254
+#: freeculture.xml:11255
msgid ""
"There was some truth to the government's claim, but not much. We certainly "
"agreed that Congress had extended existing terms in and in 1909. And of "
#. PAGE BREAK 244
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11261
+#: freeculture.xml:11262
msgid ""
"But this \"consistency\" should be kept in perspective. Congress extended "
"existing terms once in the first hundred years of the Republic. It then "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11284
+#: freeculture.xml:11285
msgid ""
"I was convinced that to win, I had to keep the Court focused on a single "
"point: that if this extension is permitted, then there is no limit to the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11295
+#: freeculture.xml:11296
msgid ""
"One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He "
"had served in the Reagan Justice Department with Solicitor General Charles "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11302
+#: freeculture.xml:11303
msgid ""
"\"I'm just afraid that unless they really see the harm, they won't be "
"willing to upset this practice that the government says has been a "
#. PAGE BREAK 245
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11310
+#: freeculture.xml:11311
msgid ""
"He may have argued many cases before this Court, I thought, but he didn't "
"understand its soul. As a clerk, I had seen the Justices do the right "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11327
+#: freeculture.xml:11328
msgid ""
"Not everyone has to wait in line. People who know the Justices can ask for "
"seats they control. (I asked Justice Scalia's chambers for seats for my "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11342
+#: freeculture.xml:11343
msgid ""
"When the Chief Justice called me to begin my argument, I began where I "
"intended to stay: on the question of the limits on Congress's power. This "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11348
+#: freeculture.xml:11349
msgid ""
"Justice O'Connor stopped me within one minute of my opening. The history "
"was bothering her."
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11353
+#: freeculture.xml:11354
msgid ""
"justice o'connor: Congress has extended the term so often through the years, "
"and if you are right, don't we run the risk of upsetting previous extensions "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11360
+#: freeculture.xml:11361
msgid ""
"She was quite willing to concede \"that this flies directly in the face of "
"what the framers had in mind.\" But my response again and again was to "
#. PAGE BREAK 246
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11366
+#: freeculture.xml:11367
msgid ""
"mr. lessig: Well, if it flies in the face of what the framers had in mind, "
"then the question is, is there a way of interpreting their words that gives "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11374
+#: freeculture.xml:11375
msgid ""
"There were two points in this argument when I should have seen where the "
"Court was going. The first was a question by Justice Kennedy, who observed,"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11380
+#: freeculture.xml:11381
msgid ""
"justice kennedy: Well, I suppose implicit in the argument that the '76 act, "
"too, should have been declared void, and that we might leave it alone "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11388
+#: freeculture.xml:11389
msgid ""
"Here follows my clear mistake. Like a professor correcting a student, I "
"answered,"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11394
+#: freeculture.xml:11395
msgid ""
"mr. lessig: Justice, we are not making an empirical claim at all. Nothing "
"in our Copyright Clause claim hangs upon the empirical assertion about "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11404
+#: freeculture.xml:11405
msgid ""
"That was a correct answer, but it wasn't the right answer. The right answer "
"was instead that there was an obvious and profound harm. Any number of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11411
+#: freeculture.xml:11412
msgid ""
"The second came from the Chief, for whom the whole case had been "
"crafted. For the Chief Justice had crafted the Lopez ruling, and we hoped "
#. PAGE BREAK 247
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11416
+#: freeculture.xml:11417
msgid ""
"It was clear a second into his question that he wasn't at all sympathetic. "
"To him, we were a bunch of anarchists. As he asked:"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11424
+#: freeculture.xml:11425
msgid ""
"chief justice: Well, but you want more than that. You want the right to copy "
"verbatim other people's books, don't you?"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11428
+#: freeculture.xml:11429
msgid ""
"mr. lessig: We want the right to copy verbatim works that should be in the "
"public domain and would be in the public domain but for a statute that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11437
+#: freeculture.xml:11438
msgid ""
"Things went better for us when the government gave its argument; for now the "
"Court picked up on the core of our claim. As Justice Scalia asked Solicitor "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11443
+#: freeculture.xml:11444
msgid ""
"justice scalia: You say that the functional equivalent of an unlimited time "
"would be a violation [of the Constitution], but that's precisely the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11451
+#: freeculture.xml:11452
msgid ""
"When Olson was finished, it was my turn to give a closing rebuttal. Olson's "
"flailing had revived my anger. But my anger still was directed to the "
#. PAGE BREAK 248
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11464
+#: freeculture.xml:11465
msgid ""
"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 answered "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11472
+#: freeculture.xml:11473
msgid ""
"The government had been asked over and over again, what is the limit? Over "
"and over again, it had answered there is no limit. This was precisely the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11487
+#: freeculture.xml:11488
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11494
+#: freeculture.xml:11495
msgid ""
"A few seconds later, the opinions arrived by e-mail. I took the phone off "
"the hook, posted an announcement to our blog, and sat down to see where I "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11499
+#: freeculture.xml:11500
msgid ""
"My reasoning. Here was a case that pitted all the money in the world against "
"reasoning. And here was the last naïve law professor, scouring the pages, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11504
+#: freeculture.xml:11505
msgid ""
"I first scoured the opinion, looking for how the Court would distinguish the "
"principle in this case from the principle in Lopez. The argument was nowhere "
#. PAGE BREAK 249
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11513
+#: freeculture.xml:11514
msgid ""
"Justice Ginsburg simply ignored the enumerated powers argument. Consistent "
"with her view that Congress's power was not limited generally, she had found "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11518
+#: freeculture.xml:11519
msgid ""
"Her opinion was perfectly reasonable—for her, and for Justice "
"Souter. Neither believes in Lopez. It would be too much to expect them to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11524
+#: freeculture.xml:11525
msgid ""
"But as I realized what had happened, I couldn't quite believe what I was "
"reading. I had said there was no way this Court could reconcile limited "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11535
+#: freeculture.xml:11536
msgid ""
"Yet by what right did they get to choose which of the framers' values they "
"would respect? By what right did they—the silent five—get to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11547
+#: freeculture.xml:11548
msgid ""
"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
"was crafted internal to the law: He argued that the tradition of "
#. PAGE BREAK 250
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11560
+#: freeculture.xml:11561
msgid ""
"Justice Breyer's opinion, perhaps the best opinion he has ever written, was "
"external to the Constitution. He argued that the term of copyrights has "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11571
+#: freeculture.xml:11572
msgid ""
"These two justices understood all the arguments we had made. But because "
"neither believed in the Lopez case, neither was willing to push it as a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11578
+#: freeculture.xml:11579
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11583
+#: freeculture.xml:11584
msgid ""
"It was first anger with the five \"Conservatives.\" It would have been one "
"thing for them to have explained why the principle of Lopez didn't apply in "
#. PAGE BREAK 251
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11596
+#: freeculture.xml:11597
msgid ""
"Here, they had joined an opinion that never once tried to explain what the "
"framers had meant by crafting the Progress Clause as they did; they joined "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11611
+#: freeculture.xml:11612
msgid ""
"My anger with the Conservatives quickly yielded to anger with myself. For I "
"had let a view of the law that I liked interfere with a view of the law as "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11618
+#: freeculture.xml:11619
msgid ""
"Most lawyers, and most law professors, have little patience for idealism "
"about courts in general and this Supreme Court in particular. Most have a "
#. PAGE BREAK 252
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11629
+#: freeculture.xml:11630
msgid ""
"As I read back over the transcript from that argument in October, I can see "
"a hundred places where the answers could have taken the conversation in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11649
+#: freeculture.xml:11650
msgid ""
"Would it have been different if I had argued it differently? Would it have "
"been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11655
+#: freeculture.xml:11656
msgid ""
"My friends huddled around me to insist it would not. The Court was not "
"ready, my friends insisted. This was a loss that was destined. It would take "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11661
+#: freeculture.xml:11662
msgid ""
"Maybe, but I doubt it. These Justices have no financial interest in doing "
"anything except the right thing. They are not lobbied. They have little "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11668
+#: freeculture.xml:11669
msgid ""
"And even if I couldn't, then that doesn't excuse what happened in "
"January. For at the start of this case, one of America's leading "
#. PAGE BREAK 253
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11676
+#: freeculture.xml:11677
msgid ""
"After the argument and after the decision, Peter said to me, and publicly, "
"that he was wrong. But if indeed that Court could not have been persuaded, "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11697
+#: freeculture.xml:11698
msgid ""
"In effect, the Supreme Court's decision makes it likely that we are seeing "
"the beginning of the end of public domain and the birth of copyright "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11711
+#: freeculture.xml:11712
msgid "Bolling, Ruben"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11706
+#: freeculture.xml:11707
msgid ""
"The best responses were in the cartoons. There was a gaggle of hilarious "
"images—of Mickey in jail and the like. The best, from my view of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11714
+#: freeculture.xml:11715
msgid ""
"The image that will always stick in my head is that evoked by the quote from "
"The New York Times. That \"grand experiment\" we call the \"public domain\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:11725
+#: freeculture.xml:11726
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11727
+#: freeculture.xml:11728
msgid ""
"The day Eldred was decided, fate would have it that I was to travel to "
"Washington, D.C. (The day the rehearing petition in Eldred was "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11737
+#: freeculture.xml:11738
msgid ""
"It was an act of contrition. During the whole of the flight from San "
"Francisco to Washington, I had heard over and over again in my head the same "
#. PAGE BREAK 256
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11747
+#: freeculture.xml:11748
msgid ""
"The New York Times published the piece. In it, I proposed a simple fix: "
"Fifty years after a work has been published, the copyright owner would be "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11755
+#: freeculture.xml:11756
msgid ""
"We called this the Eldred Act, but that was just to give it a name. Eric "
"Eldred was kind enough to let his name be used once again, but as he said "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11760
+#: freeculture.xml:11761
msgid ""
"Or another two names. For depending upon your perspective, this is either "
"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11768 freeculture.xml:11966
+#: freeculture.xml:11769 freeculture.xml:11967
msgid "Forbes, Steve"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11770
+#: freeculture.xml:11771
msgid ""
"The reaction to this idea was amazingly strong. Steve Forbes endorsed it in "
"an editorial. I received an avalanche of e-mail and letters expressing "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11782
+#: freeculture.xml:11783
msgid ""
"Indeed, many recognized the obvious benefit of the registration "
"requirement. For one of the hardest things about the current system for "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11792
+#: freeculture.xml:11793
msgid "Berlin Act (1908)"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11793 freeculture.xml:11832
+#: freeculture.xml:11794 freeculture.xml:11833
msgid "Berne Convention (1908)"
msgstr ""
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:11800
+#: freeculture.xml:11801
msgid ""
"Until the 1908 Berlin Act of the Berne Convention, national copyright "
"legislation sometimes made protection depend upon compliance with "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11796
+#: freeculture.xml:11797
msgid ""
"As I described in chapter 10, formalities in copyright law were removed in "
"1976, when Congress followed the Europeans by abandoning any formal "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11826
+#: freeculture.xml:11827
msgid ""
"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
"copyright policy. It is absurd especially for authors, because a world "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11834
+#: freeculture.xml:11835
msgid ""
"The fight against formalities achieved its first real victory in Berlin in "
"1908. International copyright lawyers amended the Berne Convention in 1908, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11844
+#: freeculture.xml:11845
msgid ""
"These complaints were real and sensible. And the strictness of the "
"formalities, especially in the United States, was absurd. The law should "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11852
+#: freeculture.xml:11853
msgid ""
"Even that would have been resisted, however, because registration in the "
"nineteenth and twentieth centuries was still expensive. It was also a "
#. PAGE BREAK 258
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11860
+#: freeculture.xml:11861
msgid ""
"In addition to the practical complaint of authors in 1908, there was a moral "
"claim as well. There was no reason that creative property should be a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11872
+#: freeculture.xml:11873
msgid ""
"This argument is correct, but its implications are misleading. For the "
"argument in favor of formalities does not depend upon creative property "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11881
+#: freeculture.xml:11882
msgid ""
"No one thinks, for example, that land is second-class property just because "
"you have to register a deed with a court if your sale of land is to be "
#. PAGE BREAK 259
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11897
+#: freeculture.xml:11898
msgid ""
"It is similarly special physics that makes formalities important in "
"copyright law. Unlike a carpenter's table, there's nothing in nature that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11911
+#: freeculture.xml:11912
msgid ""
"This was the understanding of the problem with the Sonny Bono Act that we "
"tried to demonstrate to the Court. This was the part it didn't \"get.\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11921
+#: freeculture.xml:11922
msgid ""
"But now that copyrights can be just about a century long, the inability to "
"know what is protected and what is not protected becomes a huge and obvious "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11930
+#: freeculture.xml:11931
msgid ""
"The Eldred Act was designed to respond to exactly this problem. If it is "
"worth $1 to you, then register your work and you can get the longer "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11937
+#: freeculture.xml:11938
msgid ""
"If it isn't worth it to you to register to get the benefit of an extended "
"term, then it shouldn't be worth it for the government to defend your "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11944
+#: freeculture.xml:11945
msgid ""
"Some worry about the burden on authors. Won't the burden of registering the "
"work mean that the $1 is really misleading? Isn't the hassle worth more than "
#. PAGE BREAK 260
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11950
+#: freeculture.xml:11951
msgid ""
"It is. The hassle is terrible. The system that exists now is awful. I "
"completely agree that the Copyright Office has done a terrible job (no doubt "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11968
+#: freeculture.xml:11969
msgid ""
"When Steve Forbes endorsed the idea, some in Washington began to pay "
"attention. Many people contacted me pointing to representatives who might be "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11974
+#: freeculture.xml:11975
msgid ""
"One representative, Zoe Lofgren of California, went so far as to get the "
"bill drafted. The draft solved any problem with international law. It "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11983
+#: freeculture.xml:11984
msgid ""
"But at this stage, the lobbyists began to intervene. Jack Valenti and the "
"MPAA general counsel came to the congresswoman's office to give the view of "
#. PAGE BREAK 261
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11991
+#: freeculture.xml:11992
msgid ""
"The MPAA argued first that Congress had \"firmly rejected the central "
"concept in the proposed bill\"—that copyrights be renewed. That was "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12012
+#: freeculture.xml:12013
msgid ""
"Finally, the MPAA argued that existing law enabled copyright owners to do "
"this if they wanted. But the whole point is that there are thousands of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12020
+#: freeculture.xml:12021
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12030
+#: freeculture.xml:12031
msgid ""
"I used these two cases as a way to frame the war that this book has been "
"about. For here, too, a new technology is forcing the law to react. And "
#. PAGE BREAK 262
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12039
+#: freeculture.xml:12040
msgid ""
"When the issue is piracy, it is right for the law to back the copyright "
"owners. The commercial piracy that I described is wrong and harmful, and the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12050
+#: freeculture.xml:12051
msgid ""
"But when the copyright owners oppose a proposal such as the Eldred Act, "
"then, finally, there is an example that lays bare the naked selfinterest "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12060
+#: freeculture.xml:12061
msgid "What does this industry really want?"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12063
+#: freeculture.xml:12064
msgid ""
"With very little effort, the warriors could protect their content. So the "
"effort to block something like the Eldred Act is not really about protecting "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12073
+#: freeculture.xml:12074
msgid ""
"The opposition to the Eldred Act reveals how extreme the other side is. The "
"most powerful and sexy and well loved of lobbies really has as its aim not "
#. PAGE BREAK 263
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12080
+#: freeculture.xml:12081
msgid ""
"It is not hard to understand why the warriors take this view. It is not hard "
"to see why it would benefit them if the competition of the public domain "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12092
+#: freeculture.xml:12093
msgid ""
"What is hard to understand is why the public takes this view. It is as if "
"the law made airplanes trespassers. The MPAA stands with the Causbys and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12099
+#: freeculture.xml:12100
msgid ""
"All this seems to follow easily from this untroubled acceptance of the "
"\"property\" in intellectual property. Common sense supports it, and so long "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:12111
+#: freeculture.xml:12112
msgid "CONCLUSION"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12113
+#: freeculture.xml:12114
msgid ""
"There are more than 35 million people with the AIDS virus "
"worldwide. Twenty-five million of them live in sub-Saharan Africa. "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12120
+#: freeculture.xml:12121
msgid ""
"There is no cure for AIDS, but there are drugs to slow its progression. "
"These antiretroviral therapies are still experimental, but they have already "
#. f1.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12135
+#: freeculture.xml:12136
msgid ""
"Commission on Intellectual Property Rights, \"Final Report: Integrating "
"Intellectual Property Rights and Development Policy\" (London, 2002), "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12128
+#: freeculture.xml:12129
msgid ""
"These drugs are expensive. When they were first introduced in the United "
"States, they cost between $10,000 and $15,000 per person per year. Today, "
#. PAGE BREAK 265
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12146
+#: freeculture.xml:12147
msgid ""
"These prices are not high because the ingredients of the drugs are "
"expensive. These prices are high because the drugs are protected by "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12154
+#: freeculture.xml:12155
msgid ""
"There are many who are skeptical of patents, especially drug patents. I am "
"not. Indeed, of all the areas of research that might be supported by "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12165
+#: freeculture.xml:12166
msgid ""
"But it is one thing to support patents, even drug patents. It is another "
"thing to determine how best to deal with a crisis. And as African leaders "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12183 freeculture.xml:12614
+#: freeculture.xml:12184 freeculture.xml:12615
msgid "Braithwaite, John"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12181
+#: freeculture.xml:12182
msgid ""
"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the "
"Knowledge Economy? (New York: The New Press, 2003), 37. <placeholder "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12172
+#: freeculture.xml:12173
msgid ""
"In 1997, South Africa tried one tack. It passed a law to allow the "
"importation of patented medicines that had been produced or sold in another "
#. f3.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12193
+#: freeculture.xml:12194
msgid ""
"International Intellectual Property Institute (IIPI), Patent Protection and "
"Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared "
#. f4.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12225
+#: freeculture.xml:12226
msgid ""
"International Intellectual Property Institute (IIPI), Patent Protection and "
"Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12188
+#: freeculture.xml:12189
msgid ""
"However, the United States government opposed the bill. Indeed, more than "
"opposed. As the International Intellectual Property Association "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12231
+#: freeculture.xml:12232
msgid ""
"We should place the intervention by the United States in context. No doubt "
"patents are not the most important reason that Africans don't have access to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12241
+#: freeculture.xml:12242
msgid ""
"By stopping the flow of HIV treatment into Africa, the United States "
"government was not saving drugs for United States citizens. This is not "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12249
+#: freeculture.xml:12250
msgid ""
"Nor was the intervention by the United States going to protect the profits "
"of United States drug companies—at least, not substantially. It was "
#. f5.
#. PAGE BREAK 333
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12264
+#: freeculture.xml:12265
msgid ""
"See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at "
"Odds with Firms' Profit Motive,\" San Francisco Chronicle, 24 May 1999, A1, "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12258
+#: freeculture.xml:12259
msgid ""
"Instead, the argument in favor of restricting this flow of information, "
"which was needed to save the lives of millions, was an argument about the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12285
+#: freeculture.xml:12286
msgid ""
"Now just step back for a moment. There will be a time thirty years from now "
"when our children look back at us and ask, how could we have let this "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12295
+#: freeculture.xml:12296
msgid ""
"Some blame the drug companies. I don't. They are corporations. Their "
"managers are ordered by law to make money for the corporation. They push a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12303
+#: freeculture.xml:12304
msgid ""
"The corruption is our own politicians' failure of integrity. For the drug "
"companies would love—they say, and I believe them—to sell their "
#. PAGE BREAK 268
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12311
+#: freeculture.xml:12312
msgid ""
"A different problem, however, could not be overcome. This is the fear of the "
"grandstanding politician who would call the presidents of the drug companies "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12326
+#: freeculture.xml:12327
msgid ""
"So when the common sense of your child confronts you, what will you say? "
"When the common sense of a generation finally revolts against what we have "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12332
+#: freeculture.xml:12333
msgid ""
"A sensible patent policy could endorse and strongly support the patent "
"system without having to reach everyone everywhere in exactly the same "
#. PAGE BREAK 269
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12344
+#: freeculture.xml:12345
msgid ""
"But we as a culture have lost this sense of balance. We have lost the "
"critical eye that helps us see the difference between truth and extremism. "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12364
+#: freeculture.xml:12365
msgid ""
"So far, common sense sleeps. There is no revolt. Common sense does not yet "
"see what there could be to revolt about. The extremism that now dominates "
#. f6.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12381
+#: freeculture.xml:12382
msgid ""
"Jonathan Krim, \"The Quiet War over Open-Source,\" Washington Post, August "
"2003, E1, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:12409 freeculture.xml:13129
+#: freeculture.xml:12410 freeculture.xml:13130
msgid "PLoS (Public Library of Science)"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12378
+#: freeculture.xml:12379
msgid ""
"In August 2003, a fight broke out in the United States about a decision by "
"the World Intellectual Property Organization to cancel a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12412
+#: freeculture.xml:12413
msgid ""
"The aim of the meeting was to consider this wide range of projects from one "
"common perspective: that none of these projects relied upon intellectual "
#. f7.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12420
+#: freeculture.xml:12421
msgid ""
"I should disclose that I was one of the people who asked WIPO for the "
"meeting."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12419
+#: freeculture.xml:12420
msgid ""
"From the perspective of this book, then, the conference was "
"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its "
#. PAGE BREAK 271
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12430
+#: freeculture.xml:12431
msgid ""
"Indeed, I was once publicly scolded for not recognizing this fact about "
"WIPO. In February 2003, I delivered a keynote address to a preparatory "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12454
+#: freeculture.xml:12455
msgid ""
"So whether or not WSIS can discuss balance in intellectual property, I had "
"thought it was taken for granted that WIPO could and should. And thus the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12460
+#: freeculture.xml:12461
msgid ""
"But there is one project within that list that is highly controversial, at "
"least among lobbyists. That project is \"open source and free software.\" "
#. f8.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12482
+#: freeculture.xml:12483
msgid ""
"Microsoft's position about free and open source software is more "
"sophisticated. As it has repeatedly asserted, it has no problem with \"open "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12471
+#: freeculture.xml:12472
msgid ""
"I don't mean to enter that debate here. It is important only to make clear "
"that the distinction is not between commercial and noncommercial "
#. PAGE BREAK 272
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12500
+#: freeculture.xml:12501
msgid ""
"More important for our purposes, to support \"open source and free "
"software\" is not to oppose copyright. \"Open source and free software\" is "
#. f9.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12526
+#: freeculture.xml:12527
msgid ""
"Krim, \"The Quiet War over Open-Source,\" available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #64</ulink>."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12518
+#: freeculture.xml:12519
msgid ""
"It is therefore understandable that as a proprietary software developer, "
"Microsoft would oppose this WIPO meeting, and understandable that it would "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12532
+#: freeculture.xml:12533
msgid ""
"I don't blame Microsoft for doing what it can to advance its own interests, "
"consistent with the law. And lobbying governments is plainly consistent with "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12540
+#: freeculture.xml:12541
msgid ""
"What was surprising was the United States government's reason for opposing "
"the meeting. Again, as reported by Krim, Lois Boland, acting director of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12550
+#: freeculture.xml:12551
msgid "These statements are astonishing on a number of levels."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12554
+#: freeculture.xml:12555
msgid ""
"First, they are just flat wrong. As I described, most open source and free "
"software relies fundamentally upon the intellectual property right called "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12564
+#: freeculture.xml:12565
msgid ""
"Second, who ever said that WIPO's exclusive aim was to \"promote\" "
"intellectual property maximally? As I had been scolded at the preparatory "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12577
+#: freeculture.xml:12578
msgid ""
"Third, even if one believed that the purpose of WIPO was to maximize "
"intellectual property rights, in our tradition, intellectual property rights "
#. PAGE BREAK 274
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12590
+#: freeculture.xml:12591
msgid ""
"When Ms. Boland says that there is something wrong with a meeting \"which "
"has as its purpose to disclaim or waive such rights,\" she's saying that "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12602
+#: freeculture.xml:12603
msgid ""
"There is a history of just such a property system that is well known in the "
"Anglo-American tradition. It is called \"feudalism.\" Under feudalism, not "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12619
+#: freeculture.xml:12620
msgid ""
"See Drahos with Braithwaite, Information Feudalism, 210–20. "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12616
+#: freeculture.xml:12617
msgid ""
"As Peter Drahos and John Braithwaite relate, this is precisely the choice we "
"are now making about intellectual property.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12627
+#: freeculture.xml:12628
msgid ""
"When this battle broke, I blogged it. A spirited debate within the comment "
"section ensued. Ms. Boland had a number of supporters who tried to show why "
#. PAGE BREAK 275
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:12634
+#: freeculture.xml:12635
msgid ""
"George, you misunderstand Lessig: He's only talking about the world as it "
"should be (\"the goal of WIPO, and the goal of any government, should be to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12646
+#: freeculture.xml:12647
msgid ""
"I missed the irony the first time I read it. I read it quickly and thought "
"the poster was supporting the idea that seeking balance was what our "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12656
+#: freeculture.xml:12657
msgid ""
"Obviously, however, the poster was not supporting that idea. Instead, the "
"poster was ridiculing the very idea that in the real world, the \"goal\" of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12664
+#: freeculture.xml:12665
msgid ""
"I understand criticism of academic utopianism. I think utopianism is silly, "
"too, and I'd be the first to poke fun at the absurdly unrealistic ideals of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12670
+#: freeculture.xml:12671
msgid ""
"But when it has become silly to suppose that the role of our government "
"should be to \"seek balance,\" then count me with the silly, for that means "
#. PAGE BREAK 276
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12681
+#: freeculture.xml:12682
msgid ""
"It might be crazy to expect a high government official to speak the "
"truth. It might be crazy to believe that government policy will be something "
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:12700
+#: freeculture.xml:12701
msgid "Turner, Ted"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12690
+#: freeculture.xml:12691
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12704
+#: freeculture.xml:12705
msgid ""
"This activism did not stop the FCC, but soon after, a broad coalition in the "
"Senate voted to reverse the FCC decision. The hostile hearings leading up to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12712
+#: freeculture.xml:12713
msgid ""
"But even this movement misses an important piece of the puzzle. Largeness "
"as such is not bad. Freedom is not threatened just because some become very "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12719
+#: freeculture.xml:12720
msgid ""
"The danger in media concentration comes not from the concentration, but "
"instead from the feudalism that this concentration, tied to the change in "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12729
+#: freeculture.xml:12730
msgid ""
"It is therefore significant that so many would rally to demand competition "
"and increased diversity. Still, if the rally is understood as being about "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12736
+#: freeculture.xml:12737
msgid ""
"It would be something new, and something very important, if an equal number "
"could be rallied to fight the increasing extremism built within the idea of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12744
+#: freeculture.xml:12745
msgid ""
"If we were Achilles, this would be our heel. This would be the place of our "
"tragedy."
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12747
+#: freeculture.xml:12748
msgid "Dylan, Bob"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12752
+#: freeculture.xml:12753
msgid ""
"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. f12.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12770
+#: freeculture.xml:12771
msgid ""
"Jon Wiederhorn, \"Eminem Gets Sued . . . by a Little Old Lady,\" mtv.com, 17 "
"September 2003, available at <ulink "
#. f13.
#. PAGE BREAK 334
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12777
+#: freeculture.xml:12778
msgid ""
"Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan "
"Songs,\" Kansascity.com, 9 July 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12749
+#: freeculture.xml:12750
msgid ""
"As I write these final words, the news is filled with stories about the RIAA "
"lawsuits against almost three hundred individuals.<placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:12794 freeculture.xml:13145
+#: freeculture.xml:12795 freeculture.xml:13146
msgid "Creative Commons"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12795
+#: freeculture.xml:12796
msgid "Gil, Gilberto"
msgstr ""
#. f14.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12800
+#: freeculture.xml:12801
msgid ""
"\"BBC Plans to Open Up Its Archive to the Public,\" BBC press release, 24 "
"August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. f15.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12809
+#: freeculture.xml:12810
msgid ""
"\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>."
#. PAGE BREAK 278
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12797
+#: freeculture.xml:12798
msgid ""
"Yet on the other side of the Atlantic, the BBC has just announced that it "
"will build a \"Creative Archive,\" from which British citizens can download "
#. PAGE BREAK 279
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12823
+#: freeculture.xml:12824
msgid ""
"Common sense must revolt. It must act to free culture. Soon, if this "
"potential is ever to be realized."
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:12831
+#: freeculture.xml:12832
msgid "AFTERWORD"
msgstr ""
#. PAGE BREAK 280
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12835
+#: freeculture.xml:12836
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12840
+#: freeculture.xml:12841
msgid ""
"I divide this map into two parts: that which anyone can do now, and that "
"which requires the help of lawmakers. If there is one lesson that we can "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12846
+#: freeculture.xml:12847
msgid ""
"That means this movement must begin in the streets. It must recruit a "
"significant number of parents, teachers, librarians, creators, authors, "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12853
+#: freeculture.xml:12854
msgid ""
"Once this movement has its effect in the streets, it has some hope of having "
"an effect in Washington. We are still a democracy. What people think "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:12862
+#: freeculture.xml:12863
msgid "US, NOW"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12864
+#: freeculture.xml:12865
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12870
+#: freeculture.xml:12871
msgid ""
"The mistake here is the error of the excluded middle. There are extremes in "
"this debate, but the extremes are not all that there is. There are those who "
#. PAGE BREAK 282
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12880
+#: freeculture.xml:12881
msgid ""
"When the Internet was first born, its initial architecture effectively "
"tilted in the \"no rights reserved\" direction. Content could be copied "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12892
+#: freeculture.xml:12893
msgid ""
"This initial character produced a reaction (opposite, but not quite equal) "
"by copyright owners. That reaction has been the topic of this book. Through "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12906
+#: freeculture.xml:12907
msgid ""
"What's needed is a way to say something in the middle—neither \"all "
"rights reserved\" nor \"no rights reserved\" but \"some rights "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:12915
+#: freeculture.xml:12916
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12917
+#: freeculture.xml:12918
msgid ""
"If you step back from the battle I've been describing here, you will "
"recognize this problem from other contexts. Think about privacy. Before the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12927
+#: freeculture.xml:12928
msgid "What made it assured?"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12931
+#: freeculture.xml:12932
msgid ""
"Well, if we think in terms of the modalities I described in chapter 10, your "
"privacy was assured because of an inefficient architecture for gathering "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:12945
+#: freeculture.xml:12946
msgid "Amazon"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12947
+#: freeculture.xml:12948
msgid ""
"Enter the Internet, where the cost of tracking browsing in particular has "
"become quite tiny. If you're a customer at Amazon, then as you browse the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12957
+#: freeculture.xml:12958
msgid ""
"Amazon, of course, is not the problem. But we might begin to worry about "
"libraries. If you're one of those crazy lefties who thinks that people "
#. f1.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:12973
+#: freeculture.xml:12974
msgid ""
"See, for example, Marc Rotenberg, \"Fair Information Practices and the "
"Architecture of Privacy (What Larry Doesn't Get),\" Stanford Technology Law "
#. PAGE BREAK 284
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12967
+#: freeculture.xml:12968
msgid ""
"It is this reality that explains the push of many to define \"privacy\" on "
"the Internet. It is the recognition that technology can remove what friction "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12991
+#: freeculture.xml:12992
msgid ""
"A similar story could be told about the birth of the free software "
"movement. When computers with software were first made available "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:12998
+#: freeculture.xml:12999
msgid "Stallman, Richard"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13000
+#: freeculture.xml:13001
msgid ""
"That was the world Richard Stallman was born into, and while he was a "
"researcher at MIT, he grew to love the community that developed when one was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13008
+#: freeculture.xml:13009
msgid ""
"In an academic setting, at least, that's not a terribly radical idea. In a "
"math department, anyone would be free to tinker with a proof that someone "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13020
+#: freeculture.xml:13021
msgid ""
"No one answered that question. Instead, the architecture of revenue for "
"computing changed. As it became possible to import programs from one system "
#. PAGE BREAK 285
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13029
+#: freeculture.xml:13030
msgid ""
"Thus, the practice of proprietary code began to spread, and by the early "
"1980s, Stallman found himself surrounded by proprietary code. The world of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13038
+#: freeculture.xml:13039
msgid ""
"Therefore, in 1984, Stallman began a project to build a free operating "
"system, so that at least a strain of free software would survive. That was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13044
+#: freeculture.xml:13045
msgid ""
"Stallman's technique was to use copyright law to build a world of software "
"that must be kept free. Software licensed under the Free Software "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13055
+#: freeculture.xml:13056
msgid ""
"Stallman was thus doing for software what privacy advocates now do for "
"privacy. He was seeking a way to rebuild a kind of freedom that was taken "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13063
+#: freeculture.xml:13064
msgid ""
"Finally, consider a very recent example that more directly resonates with "
"the story of this book. This is the shift in the way academic and scientific "
#. PAGE BREAK 286
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13068
+#: freeculture.xml:13069
msgid ""
"As digital technologies develop, it is becoming obvious to many that "
"printing thousands of copies of journals every month and sending them to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13084
+#: freeculture.xml:13085
msgid ""
"There's nothing wrong in general with this, and indeed, the ability to "
"charge for access to even public domain materials is a good incentive for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13093
+#: freeculture.xml:13094
msgid ""
"But what if the only way to get access to social and scientific data was "
"through proprietary services? What if no one had the ability to browse this "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13098
+#: freeculture.xml:13099
msgid ""
"As many are beginning to notice, this is increasingly the reality with "
"scientific journals. When these journals were distributed in paper form, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13110
+#: freeculture.xml:13111
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13118
+#: freeculture.xml:13119
msgid ""
"This shrinking freedom has led many to take affirmative steps to restore the "
"freedom that has been lost. The Public Library of Science (PLoS), for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13132
+#: freeculture.xml:13133
msgid ""
"This is one of many such efforts to restore a freedom taken for granted "
"before, but now threatened by changing technology and markets. There's no "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13143
+#: freeculture.xml:13144
msgid "Rebuilding Free Culture: One Idea"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13148
+#: freeculture.xml:13149
msgid ""
"The same strategy could be applied to culture, as a response to the "
"increasing control effected through law and technology."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13152
+#: freeculture.xml:13153
msgid ""
"Enter the Creative Commons. The Creative Commons is a nonprofit corporation "
"established in Massachusetts, but with its home at Stanford University. Its "
#. PAGE BREAK 288
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13162
+#: freeculture.xml:13163
msgid ""
"Simple—which means without a middleman, or without a lawyer. By "
"developing a free set of licenses that people can attach to their content, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13180
+#: freeculture.xml:13181
msgid ""
"These freedoms are beyond the freedoms promised by fair use. Their precise "
"contours depend upon the choices the creator makes. The creator can choose a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13191
+#: freeculture.xml:13192
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:13212
+#: freeculture.xml:13213
msgid "Garlick, Mia"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13202
+#: freeculture.xml:13203
msgid ""
"This is just one project among many within the Creative Commons. And of "
"course, Creative Commons is not the only organization pursuing such "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13215
+#: freeculture.xml:13216
msgid ""
"The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to "
"complement them. The problems that the law creates for us as a culture are "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13227
+#: freeculture.xml:13228
msgid ""
"Why would creators participate in giving up total control? Some participate "
"to better spread their content. Cory Doctorow, for example, is a science "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13234
+#: freeculture.xml:13235
msgid ""
"Why would a publisher ever agree to this? I suspect his publisher reasoned "
"like this: There are two groups of people out there: (1) those who will buy "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13246
+#: freeculture.xml:13247
msgid ""
"Indeed, the experience of his publisher clearly supports that conclusion. "
"The book's first printing was exhausted months before the publisher had "
#. PAGE BREAK 290
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13252
+#: freeculture.xml:13253
msgid ""
"The idea that free content might increase the value of nonfree content was "
"confirmed by the experience of another author. Peter Wayner, who wrote a "
#. f2.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13278
+#: freeculture.xml:13279
msgid ""
"Willful Infringement: A Report from the Front Lines of the Real Culture Wars "
"(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13263
+#: freeculture.xml:13264
msgid ""
"These are examples of using the Commons to better spread proprietary "
"content. I believe that is a wonderful and common use of the Commons. There "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13287
+#: freeculture.xml:13288
msgid ""
"Finally, there are many who mark their content with a Creative Commons "
"license just because they want to express to others the importance of "
#. PAGE BREAK 291
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13299
+#: freeculture.xml:13300
msgid ""
"In the first six months of the Creative Commons experiment, over 1 million "
"objects were licensed with these free-culture licenses. The next step is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13309
+#: freeculture.xml:13310
msgid ""
"These are first steps to rebuilding a public domain. They are not mere "
"arguments; they are action. Building a public domain is the first step to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13317
+#: freeculture.xml:13318
msgid ""
"Creative Commons is just one example of voluntary efforts by individuals and "
"creators to change the mix of rights that now govern the creative field. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:13331
+#: freeculture.xml:13332
msgid "THEM, SOON"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:13333
+#: freeculture.xml:13334
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:13340
+#: freeculture.xml:13341
msgid ""
"In this chapter, I outline five kinds of changes: four that are general, and "
"one that's specific to the most heated battle of the day, music. Each is a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13347
+#: freeculture.xml:13348
msgid "1. More Formalities"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13349
+#: freeculture.xml:13350
msgid ""
"If you buy a house, you have to record the sale in a deed. If you buy land "
"upon which to build a house, you have to record the purchase in a deed. If "
#. PAGE BREAK 293
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13356
+#: freeculture.xml:13357
msgid ""
"These are all formalities associated with property. They are requirements "
"that we all must bear if we want our property to be protected."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13361
+#: freeculture.xml:13362
msgid ""
"In contrast, under current copyright law, you automatically get a copyright, "
"regardless of whether you comply with any formality. You don't have to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13367
+#: freeculture.xml:13368
msgid "Why?"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13370
+#: freeculture.xml:13371
msgid ""
"As I suggested in chapter 10, the motivation to abolish formalities was a "
"good one. In the world before digital technologies, formalities imposed a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13378
+#: freeculture.xml:13379
msgid ""
"But the Internet changes all this. Formalities today need not be a "
"burden. Rather, the world without formalities is the world that burdens "
#. f1.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13392
+#: freeculture.xml:13393
msgid ""
"The proposal I am advancing here would apply to American works only. "
"Obviously, I believe it would be beneficial for the same idea to be adopted "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13390
+#: freeculture.xml:13391
msgid ""
"The law should therefore change this requirement<placeholder "
"type=\"footnote\" id=\"0\"/>—but it should not change it by going back "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13400
+#: freeculture.xml:13401
msgid ""
"The important formalities are three: marking copyrighted work, registering "
"copyrights, and renewing the claim to copyright. Traditionally, the first of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><title>
-#: freeculture.xml:13412
+#: freeculture.xml:13413
msgid "REGISTRATION AND RENEWAL"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13414
+#: freeculture.xml:13415
msgid ""
"Under the old system, a copyright owner had to file a registration with the "
"Copyright Office to register or renew a copyright. When filing that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13427
+#: freeculture.xml:13428
msgid ""
"Yet it is always astonishing to me that we, who come from a tradition of "
"extraordinary innovation in governmental design, can no longer think "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13436
+#: freeculture.xml:13437
msgid ""
"In the context of registration, one obvious model is the Internet. There "
"are at least 32 million Web sites registered around the world. Domain name "
#. PAGE BREAK 295
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13446
+#: freeculture.xml:13447
msgid ""
"We should adopt a similar model for the registration and renewal of "
"copyrights. The Copyright Office may well serve as the central registry, but "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><title>
-#: freeculture.xml:13461
+#: freeculture.xml:13462
msgid "MARKING"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13463
+#: freeculture.xml:13464
msgid ""
"It used to be that the failure to include a copyright notice on a creative "
"work meant that the copyright was forfeited. That was a harsh punishment for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13473
+#: freeculture.xml:13474
msgid ""
"The aim of marking is to signal to the public that this work is copyrighted "
"and that the author wants to enforce his rights. The mark also makes it easy "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13479
+#: freeculture.xml:13480
msgid ""
"One of the problems the copyright system confronted early on was that "
"different copyrighted works had to be differently marked. It wasn't clear "
#. f2.
#. type: Content of: <book><chapter><sect1><sect2><sect3><para><footnote><para>
-#: freeculture.xml:13496
+#: freeculture.xml:13497
msgid ""
"There would be a complication with derivative works that I have not solved "
"here. In my view, the law of derivatives creates a more complicated system "
#. PAGE BREAK 296
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13489
+#: freeculture.xml:13490
msgid ""
"Let's start with the last point. If a copyright owner allows his work to be "
"published without a copyright notice, the consequence of that failure need "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13509
+#: freeculture.xml:13510
msgid ""
"That in turn raises the question about how work should best be marked. Here "
"again, the system needs to adjust as the technologies evolve. The best way "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13516
+#: freeculture.xml:13517
msgid ""
"For example, if a recording industry association devises a method for "
"marking CDs, it would propose that to the Copyright Office. The Copyright "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13527
+#: freeculture.xml:13528
msgid ""
"Finally, marking content clearly would simplify registration requirements. "
"If photographs were marked by author and year, there would be little reason "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13535
+#: freeculture.xml:13536
msgid ""
"The objective of formalities is to make things clear. The existing system "
"does nothing to make things clear. Indeed, it seems designed to make things "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13540
+#: freeculture.xml:13541
msgid ""
"If formalities such as registration were reinstated, one of the most "
"difficult aspects of relying upon the public domain would be removed. It "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13552
+#: freeculture.xml:13553
msgid "2. Shorter Terms"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13554
+#: freeculture.xml:13555
msgid ""
"The term of copyright has gone from fourteen years to ninety-five years for "
"corporate authors, and life of the author plus seventy years for natural "
#. f3.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13566
+#: freeculture.xml:13567
msgid ""
"\"A Radical Rethink,\" Economist, 366:8308 (25 January 2003): 15, available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #74</ulink>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13559
+#: freeculture.xml:13560
msgid ""
"In The Future of Ideas, I proposed a seventy-five-year term, granted in "
"five-year increments with a requirement of renewal every five years. That "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13573
+#: freeculture.xml:13574
msgid ""
"I agree with those who believe that we need a radical change in copyright's "
"term. But whether fourteen years or seventy-five, there are four principles "
#. (1)
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13581
+#: freeculture.xml:13582
msgid ""
"Keep it short: The term should be as long as necessary to give incentives to "
"create, but no longer. If it were tied to very strong protections for "
#. (2)
#. PAGE BREAK 298
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13589
+#: freeculture.xml:13590
msgid ""
"Keep it simple: The line between the public domain and protected content "
"must be kept clear. Lawyers like the fuzziness of \"fair use,\" and the "
#. f4.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><footnote><para>
-#: freeculture.xml:13609
+#: freeculture.xml:13610
msgid ""
"Department of Veterans Affairs, Veteran's Application for Compensation "
"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13602
+#: freeculture.xml:13603
msgid ""
"Keep it alive: Copyright should have to be renewed. Especially if the "
"maximum term is long, the copyright owner should be required to signal "
#. (4)
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13620
+#: freeculture.xml:13621
msgid ""
"Keep it prospective: Whatever the term of copyright should be, the clearest "
"lesson that economists teach is that a term once given should not be "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13635
+#: freeculture.xml:13636
msgid ""
"These changes together should produce an average copyright term that is much "
"shorter than the current term. Until 1976, the average term was just 32.2 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13640
+#: freeculture.xml:13641
msgid ""
"No doubt the extremists will call these ideas \"radical.\" (After all, I "
"call them \"extremists.\") But again, the term I recommended was longer than "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13650
+#: freeculture.xml:13651
msgid "3. Free Use Vs. Fair Use"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13652
+#: freeculture.xml:13653
msgid ""
"As I observed at the beginning of this book, property law originally granted "
"property owners the right to control their property from the ground to the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13660
+#: freeculture.xml:13661
msgid ""
"Our Constitution gives Congress the power to give authors \"exclusive "
"right\" to \"their writings.\" Congress has given authors an exclusive right "
#. f5.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13673
+#: freeculture.xml:13674
msgid ""
"Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia "
"University Press, 1967), 32."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13669
+#: freeculture.xml:13670
msgid ""
"Congress granted the beginnings of this right in 1870, when it expanded the "
"exclusive right of copyright to include a right to control translations and "
#. f6.
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:13686
+#: freeculture.xml:13687
msgid "Ibid., 56."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:13682
+#: freeculture.xml:13683
msgid ""
"So inured have we become to the extension of the monopoly to a large range "
"of so-called derivative works, that we no longer sense the oddity of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13691
+#: freeculture.xml:13692
msgid ""
"I think it's time to recognize that there are airplanes in this field and "
"the expansiveness of these rights of derivative use no longer make "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13698
+#: freeculture.xml:13699
msgid ""
"Term: If Congress wants to grant a derivative right, then that right should "
"be for a much shorter term. It makes sense to protect John Grisham's right "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13710
+#: freeculture.xml:13711
msgid ""
"Scope: Likewise should the scope of derivative rights be narrowed. Again, "
"there are some cases in which derivative rights are important. Those should "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13722
+#: freeculture.xml:13723
msgid ""
"This was the point that Alben made when describing the making of the Clint "
"Eastwood CD. While it makes sense to require negotiation for foreseeable "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:13738
+#: freeculture.xml:13739
msgid "Goldstein, Paul"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13736
+#: freeculture.xml:13737
msgid ""
"Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox "
"(Stanford: Stanford University Press, 2003), 187–216. <placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13730
+#: freeculture.xml:13731
msgid ""
"In each of these cases, the law should mark the uses that are protected, and "
"the presumption should be that other uses are not protected. This is the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13744
+#: freeculture.xml:13745
msgid ""
"Goldstein's analysis would make perfect sense if the cost of the legal "
"system were small. But as we are currently seeing in the context of the "
#. PAGE BREAK 301
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13751
+#: freeculture.xml:13752
msgid ""
"The law could remedy this problem either by removing protection beyond the "
"part explicitly drawn or by granting reuse rights upon certain statutory "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13761
+#: freeculture.xml:13762
msgid "4. Liberate the Music—Again"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13763
+#: freeculture.xml:13764
msgid ""
"The battle that got this whole war going was about music, so it wouldn't be "
"fair to end this book without addressing the issue that is, to most people, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13770
+#: freeculture.xml:13771
msgid ""
"The appeal of file-sharing music was the crack cocaine of the Internet's "
"growth. It drove demand for access to the Internet more powerfully than any "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13779
+#: freeculture.xml:13780
msgid ""
"The aim of copyright, with respect to content in general and music in "
"particular, is to create the incentives for music to be composed, performed, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13786
+#: freeculture.xml:13787
msgid ""
"File-sharing networks complicate this model by enabling the spread of "
"content for which the performer has not been paid. But of course, that's not "
#. A.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13794
+#: freeculture.xml:13795
msgid ""
"There are some who are using sharing networks as substitutes for purchasing "
"CDs."
#. B.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13799
+#: freeculture.xml:13800
msgid ""
"There are also some who are using sharing networks to sample, on the way to "
"purchasing CDs."
#. PAGE BREAK 302
#. C.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13805
+#: freeculture.xml:13806
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is no longer sold but is still under copyright or that would have been "
#. D.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13811
+#: freeculture.xml:13812
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is not copyrighted or to get access that the copyright owner plainly "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13817
+#: freeculture.xml:13818
msgid ""
"Any reform of the law needs to keep these different uses in focus. It must "
"avoid burdening type D even if it aims to eliminate type A. The eagerness "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13825
+#: freeculture.xml:13826
msgid ""
"As I said in chapter 5, the actual harm caused by sharing is controversial. "
"For the purposes of this chapter, however, I assume the harm is real. I "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13832
+#: freeculture.xml:13833
msgid ""
"Nonetheless, there is a crucial fact about the current technological context "
"that we must keep in mind if we are to understand how the law should "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13837
+#: freeculture.xml:13838
msgid ""
"Today, file sharing is addictive. In ten years, it won't be. It is addictive "
"today because it is the easiest way to gain access to a broad range of "
#. PAGE BREAK 303
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13849
+#: freeculture.xml:13850
msgid ""
"But it will become a reality, and that means the way we get access to the "
"Internet today is a technology in transition. Policy makers should not make "
#. f8.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13881
+#: freeculture.xml:13882
msgid ""
"See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April "
"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13864
+#: freeculture.xml:13865
msgid ""
"In that world, it will be extremely easy to connect to services that give "
"you access to content on the fly—such as Internet radio, content that "
#. PAGE BREAK 304
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13888
+#: freeculture.xml:13889
msgid ""
"This point about the future is meant to suggest a perspective on the "
"present: It is emphatically temporary. The \"problem\" with file "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13904
+#: freeculture.xml:13905
msgid ""
"The answer begins with recognizing that there are different \"problems\" "
"here to solve. Let's start with type D content—uncopyrighted content "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13915
+#: freeculture.xml:13916
msgid ""
"Type C content raises a different \"problem.\" This is content that was, at "
"one time, published and is no longer available. It may be unavailable "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13924
+#: freeculture.xml:13925
msgid ""
"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 stores. But libraries "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13934
+#: freeculture.xml:13935
msgid ""
"The model of used book stores suggests that the law could simply deem "
"out-of-print music fair game. If the publisher does not make copies of the "
#. PAGE BREAK 305
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13945
+#: freeculture.xml:13946
msgid ""
"Alternatively, the law could create a statutory license that would ensure "
"that artists get something from the trade of their work. For example, if the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13955
+#: freeculture.xml:13956
msgid ""
"This system would also create an incentive for publishers to keep works "
"available commercially. Works that are available commercially would not be "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13965
+#: freeculture.xml:13966
msgid ""
"The hard case is content of types A and B, and again, this case is hard only "
"because the extent of the problem will change over time, as the technologies "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13973
+#: freeculture.xml:13974
msgid ""
"So here's a solution that will at first seem very strange to both sides in "
"this war, but which upon reflection, I suggest, should make some sense."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13977
+#: freeculture.xml:13978
msgid ""
"Stripped of the rhetoric about the sanctity of property, the basic claim of "
"the content industry is this: A new technology (the Internet) has harmed a "
#. PAGE BREAK 306
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13988
+#: freeculture.xml:13989
msgid ""
"I love the Internet, and so I don't like likening it to tobacco or "
"asbestos. But the analogy is a fair one from the perspective of the law. "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:14032
+#: freeculture.xml:14033
msgid "Fisher, William"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13999
+#: freeculture.xml:14000
msgid ""
"William Fisher, Digital Music: Problems and Possibilities (last revised: 10 "
"October 2000), available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13996
+#: freeculture.xml:13997
msgid ""
"The idea would be a modification of a proposal that has been floated by "
"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14045
+#: freeculture.xml:14046
msgid ""
"Fisher's proposal is careful and comprehensive. It raises a million "
"questions, most of which he answers well in his upcoming book, Promises to "
#. PAGE BREAK 307
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14060
+#: freeculture.xml:14061
msgid ""
"Fisher would balk at the idea of allowing the system to lapse. His aim is "
"not just to ensure that artists are paid, but also to ensure that the system "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14073
+#: freeculture.xml:14074
msgid ""
"No doubt it would be difficult to calculate the proper measure of \"harm\" "
"to an industry. But the difficulty of making that calculation would be "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14088
+#: freeculture.xml:14089
msgid ""
"This competition has already occurred against the background of \"free\" "
"music from p2p systems. As the sellers of cable television have known for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14100
+#: freeculture.xml:14101
msgid ""
"This regime of competition, with a backstop to assure that artists don't "
"lose, would facilitate a great deal of innovation in the delivery of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14109
+#: freeculture.xml:14110
msgid "In summary, then, my proposal is this:"
msgstr ""
#. PAGE BREAK 308
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14114
+#: freeculture.xml:14115
msgid ""
"The Internet is in transition. We should not be regulating a technology in "
"transition. We should instead be regulating to minimize the harm to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14121
+#: freeculture.xml:14122
msgid "We can minimize that harm while maximizing the benefit to innovation by"
msgstr ""
#. 1.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:14127
+#: freeculture.xml:14128
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""
#. 2.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:14131
+#: freeculture.xml:14132
msgid ""
"permitting noncommercial type C sharing without liability, and commercial "
"type C sharing at a low and fixed rate set by statute;"
#. 3.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:14137
+#: freeculture.xml:14138
msgid ""
"while in this transition, taxing and compensating for type A sharing, to the "
"extent actual harm is demonstrated."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14142
+#: freeculture.xml:14143
msgid ""
"But what if \"piracy\" doesn't disappear? What if there is a competitive "
"market providing content at a low cost, but a significant number of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14148
+#: freeculture.xml:14149
msgid ""
"Yes, it should. But, again, what it should do depends upon how the facts "
"develop. These changes may not eliminate type A sharing. But the real issue "
#. PAGE BREAK 309
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14162
+#: freeculture.xml:14163
msgid ""
"But we're a long way away from whittling the problem down to this subset of "
"type A sharers. And our focus until we're there should not be on finding "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:14173
+#: freeculture.xml:14174
msgid "5. Fire Lots of Lawyers"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14175
+#: freeculture.xml:14176
msgid ""
"I'm a lawyer. I make lawyers for a living. I believe in the law. I believe "
"in the law of copyright. Indeed, I have devoted my life to working in law, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14181
+#: freeculture.xml:14182
msgid ""
"Yet much of this book has been a criticism of lawyers, or the role lawyers "
"have played in this debate. The law speaks to ideals, but it is my view that "
#. f10.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:14198
+#: freeculture.xml:14199
msgid ""
"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer "
"Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14189
+#: freeculture.xml:14190
msgid ""
"The evidence of this bending is compelling. I'm attacked as a \"radical\" by "
"many within the profession, yet the positions that I am advocating are "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14204
+#: freeculture.xml:14205
msgid ""
"However, my criticism of the role that lawyers have played in this debate is "
"not just about a professional bias. It is more importantly about our failure "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:14214
+#: freeculture.xml:14215
msgid ""
"A good example is the work of Professor Stan Liebowitz. Liebowitz is to be "
"commended for his careful review of data about infringement, leading him to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14209
+#: freeculture.xml:14210
msgid ""
"Economists are supposed to be good at reckoning costs and benefits. But "
"more often than not, economists, with no clue about how the legal system "
#. PAGE BREAK 310
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14238
+#: freeculture.xml:14239
msgid ""
"But the legal system doesn't work. Or more accurately, it doesn't work for "
"anyone except those with the most resources. Not because the system is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14246
+#: freeculture.xml:14247
msgid ""
"These costs distort free culture in many ways. A lawyer's time is billed at "
"the largest firms at more than $400 per hour. How much time should such a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14256
+#: freeculture.xml:14257
msgid ""
"The costliness and clumsiness and randomness of this system mock our "
"tradition. And lawyers, as well as academics, should consider it their duty "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14264
+#: freeculture.xml:14265
msgid ""
"But until that reform is complete, we as a society should keep the law away "
"from areas that we know it will only harm. And that is precisely what the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14270
+#: freeculture.xml:14271
msgid ""
"Think about the amazing things your kid could do or make with digital "
"technology—the film, the music, the Web page, the blog. Or think about "
#. PAGE BREAK 311
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14279
+#: freeculture.xml:14280
msgid ""
"The law should regulate in certain areas of culture—but it should "
"regulate culture only where that regulation does good. Yet lawyers rarely "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14288
+#: freeculture.xml:14289
msgid ""
"We should ask, \"Why?\" Show me why your regulation of culture is "
"needed. Show me how it does good. And until you can show me both, keep your "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14297
+#: freeculture.xml:14298
msgid "NOTES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14299
+#: freeculture.xml:14300
msgid ""
"Throughout this text, there are references to links on the World Wide "
"Web. As anyone who has tried to use the Web knows, these links can be highly "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14314
+#: freeculture.xml:14315
msgid "ACKNOWLEDGMENTS"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14316
+#: freeculture.xml:14317
msgid ""
"This book is the product of a long and as yet unsuccessful struggle that "
"began when I read of Eric Eldred's war to keep books free. Eldred's work "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14322
+#: freeculture.xml:14323
msgid ""
"I received guidance in various places from friends and academics, including "
"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and "
#. PAGE BREAK 337
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14335
+#: freeculture.xml:14336
msgid ""
"Yuko Noguchi helped me to understand the laws of Japan as well as its "
"culture. I am thankful to her, and to the many in Japan who helped me "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14346
+#: freeculture.xml:14347
msgid ""
"These are the traditional sorts of help that academics regularly draw "
"upon. But in addition to them, the Internet has made it possible to receive "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14366
+#: freeculture.xml:14367
msgid ""
"Richard Stallman and Michael Carroll each read the whole book in draft, and "
"each provided extremely helpful correction and advice. Michael helped me to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14375
+#: freeculture.xml:14376
msgid ""
"Finally, and forever, I am thankful to Bettina, who has always insisted that "
"there would be unending happiness away from these battles, and who has "
projects / text-free-culture-lessig.git / blobdiff