The fight to defend the limits of the Statute of Anne was not to end
there, however, and it is here that Donaldson enters the mix.
</para>
+<indexterm><primary>Beckett, Thomas</primary></indexterm>
<para>
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
simply enables the powerful industries of today to protect themselves
against the competitors of tomorrow.
</para>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
</para>
+<indexterm><primary>Hummer, John</primary></indexterm>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
our history, when a work ended its commercial life, there was no
copyright-related use that would be inhibited by an exclusive right.
When a book went out of print, you could not buy it from a publisher.
-But you could still buy it from a used book store, and when a used book
-store sells it, in America, at least, there is no need to pay the copyright
-owner anything. Thus, the ordinary use of a book after its commercial
-life ended was a use that was independent of copyright law.
+But you could still buy it from a used book store, and when a used
+book store sells it, in America, at least, there is no need to pay the
+copyright owner anything. Thus, the ordinary use of a book after its
+commercial life ended was a use that was independent of copyright law.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
-a film—the real economic costs, not the lawyer costs—were so high, it
-was never at all feasible to preserve or restore film. Like the remains of
-a great dinner, when it's over, it's over. Once a film passed out of its
-commercial life, it may have been archived for a bit, but that was the
-end of its life so long as the market didn't have more to offer.
+a film—the real economic costs, not the lawyer costs—were
+so high, it was never at all feasible to preserve or restore
+film. Like the remains of a great dinner, when it's over, it's
+over. Once a film passed out of its commercial life, it may have been
+archived for a bit, but that was the end of its life so long as the
+market didn't have more to offer.
</para>
<para>
In other words, though copyright has been relatively short for most
technologies is to enable the archive that Brewster Kahle dreams of.
Digital technologies now make it possible to preserve and give access
to all sorts of knowledge. Once a book goes out of print, we can now
-imagine digitizing it and making it available to everyone, forever. Once
-a film goes out of distribution, we could digitize it and make it
- available
-to everyone, forever. Digital technologies give new life to
- copyrighted
-material after it passes out of its commercial life. It is now
-possible to preserve and assure universal access to this knowledge and
-culture, whereas before it was not.
+imagine digitizing it and making it available to everyone,
+forever. Once a film goes out of distribution, we could digitize it
+and make it available to everyone, forever. Digital technologies give
+new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to
+this knowledge and culture, whereas before it was not.
</para>
<para>
<!-- PAGE BREAK 234 -->
-And now copyright law does get in the way. Every step of
- producing
-this digital archive of our culture infringes on the exclusive right of
-copyright. To digitize a book is to copy it. To do that requires
- permission
-of the copyright owner. The same with music, film, or any other
-aspect of our culture protected by copyright. The effort to make these
-things available to history, or to researchers, or to those who just want
-to explore, is now inhibited by a set of rules that were written for a
- radically
-different context.
-</para>
-<para>
-Here is the core of the harm that comes from extending terms:
-Now that technology enables us to rebuild the library of Alexandria,
-the law gets in the way. And it doesn't get in the way for any useful
-copyright purpose, for the purpose of copyright is to enable the
- commercial
-market that spreads culture. No, we are talking about culture
-after it has lived its commercial life. In this context, copyright is
- serving
-no purpose at all related to the spread of knowledge. In this
- context,
-copyright is not an engine of free expression. Copyright is a brake.
+And now copyright law does get in the way. Every step of producing
+this digital archive of our culture infringes on the exclusive right
+of copyright. To digitize a book is to copy it. To do that requires
+permission of the copyright owner. The same with music, film, or any
+other aspect of our culture protected by copyright. The effort to make
+these things available to history, or to researchers, or to those who
+just want to explore, is now inhibited by a set of rules that were
+written for a radically different context.
+</para>
+<para>
+Here is the core of the harm that comes from extending terms: Now that
+technology enables us to rebuild the library of Alexandria, the law
+gets in the way. And it doesn't get in the way for any useful
+copyright purpose, for the purpose of copyright is to enable the
+commercial market that spreads culture. No, we are talking about
+culture after it has lived its commercial life. In this context,
+copyright is serving no purpose at all related to the spread of
+knowledge. In this context, copyright is not an engine of free
+expression. Copyright is a brake.
</para>
<para>
You may well ask, "But if digital technologies lower the costs for
culture widely?"
</para>
<para>
-Maybe. Someday. But there is absolutely no evidence to suggest
-that publishers would be as complete as libraries. If Barnes & Noble
-offered to lend books from its stores for a low price, would that
- eliminate
-the need for libraries? Only if you think that the only role of a
- library
-is to serve what "the market" would demand. But if you think the
-role of a library is bigger than this—if you think its role is to archive
-culture, whether there's a demand for any particular bit of that culture
-or not—then we can't count on the commercial market to do our
- library
-work for us.
+Maybe. Someday. But there is absolutely no evidence to suggest that
+publishers would be as complete as libraries. If Barnes & Noble
+offered to lend books from its stores for a low price, would that
+eliminate the need for libraries? Only if you think that the only role
+of a library is to serve what "the market" would demand. But if you
+think the role of a library is bigger than this—if you think its
+role is to archive culture, whether there's a demand for any
+particular bit of that culture or not—then we can't count on the
+commercial market to do our library work for us.
</para>
<para>
I would be the first to agree that it should do as much as it can: We
market is not doing the job, then we should allow nonmarket forces the
<!-- PAGE BREAK 235 -->
-freedom to fill the gaps. As one researcher calculated for American
- culture,
-94 percent of the films, books, and music produced between
+freedom to fill the gaps. As one researcher calculated for American
+culture, 94 percent of the films, books, and music produced between
and 1946 is not commercially available. However much you love the
-commercial market, if access is a value, then 6 percent is a failure to
-provide that value.<footnote><para>
-<!-- f13. --> Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
- December
-2002, available at
+commercial market, if access is a value, then 6 percent is a failure
+
to provide that value.<footnote><para>
+<!-- f13. -->
+Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+December 2002, available at
<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
</para></footnote>
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in
- federal
+In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
district court in Washington, D.C., asking the court to declare the
Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
- violated
-the Constitution's "limited Times" requirement, and (2) that
- extending
-terms by another twenty years violated the First Amendment.
+central claims that we made were (1) that extending existing terms
+violated the Constitution's "limited Times" requirement, and (2) that
+extending terms by another twenty years violated the First Amendment.
</para>
<para>
-The district court dismissed our claims without even hearing an
- argument.
-A panel of the Court of Appeals for the D.C. Circuit also
- dismissed
-our claims, though after hearing an extensive argument. But
+The district court dismissed our claims without even hearing an
+argument. A panel of the Court of Appeals for the D.C. Circuit also
+dismissed our claims, though after hearing an extensive argument. But
that decision at least had a dissent, by one of the most conservative
judges on that court. That dissent gave our claims life.
</para>
it was simple: If Congress can extend existing terms, then there is no
"stopping point" to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are "limited." Thus, Judge Sentelle argued, the court had to
-interpret the term "limited Times" to give it meaning. And the best
- interpretation,
-Judge Sentelle argued, would be to deny Congress the
+terms that are "limited." Thus, Judge Sentelle argued, the court had
+to interpret the term "limited Times" to give it meaning. And the best
+interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
</para>
<para>
<!-- PAGE BREAK 236 -->
D.C. Circuit, Judge David Tatel. Both the most conservative and the
-most liberal judges in the D.C. Circuit believed Congress had
- overstepped
-its bounds.
+most liberal judges in the D.C. Circuit believed Congress had
+overstepped its bounds.
</para>
<para>
It was here that most expected Eldred v. Ashcroft would die, for the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still astonishingly
-hard. If you know anything at all about this story, you know that we
-lost the appeal. And if you know something more than just the
- minimum,
-you probably think there was no way this case could have been
-won. After our defeat, I received literally thousands of missives by
-well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
- significant
-to me than the e-mail from my client, Eric Eldred.
+It is over a year later as I write these words. It is still
+astonishingly hard. If you know anything at all about this story, you
+know that we lost the appeal. And if you know something more than just
+the minimum, you probably think there was no way this case could have
+been won. After our defeat, I received literally thousands of missives
+by well-wishers and supporters, thanking me for my work on behalf of
+this noble but doomed cause. And none from this pile was more
+significant to me than the e-mail from my client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
retell this story to myself, I can never escape believing that my own
mistake lost it.
</para>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the
-very end. Our case had been supported from the very beginning by an
- extraordinary
-lawyer, Geoffrey Stewart, and by the law firm he had moved
-to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat
+The mistake was made early, though it became obvious only at the very
+end. Our case had been supported from the very beginning by an
+extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
+moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
+heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
- ignored
-this pressure (something that few law firms today would ever
+ignored this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Bromberg, Dan</primary></indexterm>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
an enumerated power had to be interpreted to assure that Congress's
powers had limits.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
-Congress's power. These four—Justice Stevens, Justice Souter, Justice
-Ginsburg, and Justice Breyer—had repeatedly argued that the
- Constitution
+Congress's power. These four—Justice Stevens, Justice Souter,
+Justice Ginsburg, and Justice Breyer—had repeatedly argued that
+the Constitution
<!-- PAGE BREAK 242 -->
-gives Congress broad discretion to decide how best to
- implement
-its powers. In case after case, these justices had argued that the
-Court's role should be one of deference. Though the votes of these four
+gives Congress broad discretion to decide how best to implement its
+powers. In case after case, these justices had argued that the Court's
+role should be one of deference. Though the votes of these four
justices were the votes that I personally had most consistently agreed
with, they were also the votes that we were least likely to get.
</para>
<para>
In particular, the least likely was Justice Ginsburg's. In addition to
her general view about deference to Congress (except where issues of
-gender are involved), she had been particularly deferential in the
- context
-of intellectual property protections. She and her daughter (an
- excellent
-and well-known intellectual property scholar) were cut from
+gender are involved), she had been particularly deferential in the
+context of intellectual property protections. She and her daughter (an
+excellent and well-known intellectual property scholar) were cut from
the same intellectual property cloth. We expected she would agree with
-the writings of her daughter: that Congress had the power in this
- context
-to do as it wished, even if what Congress wished made little sense.
+the writings of her daughter: that Congress had the power in this
+context to do as it wished, even if what Congress wished made little
+sense.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-Close behind Justice Ginsburg were two justices whom we also
-viewed as unlikely allies, though possible surprises. Justice Souter
-strongly favored deference to Congress, as did Justice Breyer. But both
-were also very sensitive to free speech concerns. And as we strongly
- believed,
-there was a very important free speech argument against these
-retrospective extensions.
+Close behind Justice Ginsburg were two justices whom we also viewed as
+unlikely allies, though possible surprises. Justice Souter strongly
+favored deference to Congress, as did Justice Breyer. But both were
+also very sensitive to free speech concerns. And as we strongly
+believed, there was a very important free speech argument against
+these retrospective extensions.
</para>
<para>
The only vote we could be confident about was that of Justice
would not.
</para>
<para>
-Yet by what right did they get to choose which of the framers'
- values
-they would respect? By what right did they—the silent five—get to
-select the part of the Constitution they would enforce based on the
- values
-they thought important? We were right back to the argument that
-I said I hated at the start: I had failed to convince them that the issue
-here was important, and I had failed to recognize that however much I
-might hate a system in which the Court gets to pick the constitutional
-values that it will respect, that is the system we have.
+Yet by what right did they get to choose which of the framers' values
+they would respect? By what right did they—the silent
+five—get to select the part of the Constitution they would
+enforce based on the values they thought important? We were right back
+to the argument that I said I hated at the start: I had failed to
+convince them that the issue here was important, and I had failed to
+recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is
+the system we have.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
Justices Breyer and Stevens wrote very strong dissents. Stevens's
-opinion was crafted internal to the law: He argued that the tradition of
-intellectual property law should not support this unjustified extension
-of terms. He based his argument on a parallel analysis that had
- governed
-in the context of patents (so had we). But the rest of the Court
-discounted the parallel—without explaining how the very same words
-in the Progress Clause could come to mean totally different things
- depending
-upon whether the words were about patents or copyrights.
-The Court let Justice Stevens's charge go unanswered.
+opinion was crafted internal to the law: He argued that the tradition
+of intellectual property law should not support this unjustified
+extension of terms. He based his argument on a parallel analysis that
+had governed in the context of patents (so had we). But the rest of
+the Court discounted the parallel—without explaining how the
+very same words in the Progress Clause could come to mean totally
+different things depending upon whether the words were about patents
+or copyrights. The Court let Justice Stevens's charge go unanswered.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-
<!-- PAGE BREAK 250 -->
-Justice Breyer's opinion, perhaps the best opinion he has ever
- written,
-was external to the Constitution. He argued that the term of
- copyrights
-has become so long as to be effectively unlimited. We had said
-that under the current term, a copyright gave an author 99.8 percent of
-the value of a perpetual term. Breyer said we were wrong, that the
- actual
-number was 99.9997 percent of a perpetual term. Either way, the
-point was clear: If the Constitution said a term had to be "limited," and
-the existing term was so long as to be effectively unlimited, then it was
-unconstitutional.
+Justice Breyer's opinion, perhaps the best opinion he has ever
+written, was external to the Constitution. He argued that the term of
+copyrights has become so long as to be effectively unlimited. We had
+said that under the current term, a copyright gave an author 99.8
+percent of the value of a perpetual term. Breyer said we were wrong,
+that the actual number was 99.9997 percent of a perpetual term. Either
+way, the point was clear: If the Constitution said a term had to be
+"limited," and the existing term was so long as to be effectively
+unlimited, then it was unconstitutional.
</para>
<para>
These two justices understood all the arguments we had made. But
<para>
It was first anger with the five "Conservatives." It would have been
one thing for them to have explained why the principle of Lopez didn't
-apply in this case. That wouldn't have been a very convincing
- argument,
-I don't believe, having read it made by others, and having tried
-to make it myself. But it at least would have been an act of integrity.
-These justices in particular have repeatedly said that the proper mode
-of interpreting the Constitution is "originalism"—to first understand
-the framers' text, interpreted in their context, in light of the structure
-of the Constitution. That method had produced Lopez and many other
-"originalist" rulings. Where was their "originalism" now?
+apply in this case. That wouldn't have been a very convincing
+argument, I don't believe, having read it made by others, and having
+tried to make it myself. But it at least would have been an act of
+integrity. These justices in particular have repeatedly said that the
+proper mode of interpreting the Constitution is "originalism"—to
+first understand the framers' text, interpreted in their context, in
+light of the structure of the Constitution. That method had produced
+Lopez and many other "originalist" rulings. Where was their
+"originalism" now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
<!-- PAGE BREAK 251 -->
power. And they joined an opinion that didn't even try to explain why
this grant of power could be unlimited, whereas the Commerce Clause
-would be limited. In short, they had joined an opinion that did not
- apply
-to, and was inconsistent with, their own method for interpreting
-the Constitution. This opinion may well have yielded a result that they
-liked. It did not produce a reason that was consistent with their own
-principles.
+would be limited. In short, they had joined an opinion that did not
+apply to, and was inconsistent with, their own method for interpreting
+the Constitution. This opinion may well have yielded a result that
+they liked. It did not produce a reason that was consistent with their
+own principles.
</para>
<para>
My anger with the Conservatives quickly yielded to anger with
</para>
<para>
As I read back over the transcript from that argument in October, I
-can see a hundred places where the answers could have taken the
- conversation
-in different directions, where the truth about the harm that
-this unchecked power will cause could have been made clear to this
-Court. Justice Kennedy in good faith wanted to be shown. I, idiotically,
-corrected his question. Justice Souter in good faith wanted to be shown
-the First Amendment harms. I, like a math teacher, reframed the
- question
-to make the logical point. I had shown them how they could strike
-this law of Congress if they wanted to. There were a hundred places
-where I could have helped them want to, yet my stubbornness, my
- refusal
-to give in, stopped me. I have stood before hundreds of audiences
-trying to persuade; I have used passion in that effort to persuade; but I
+can see a hundred places where the answers could have taken the
+conversation in different directions, where the truth about the harm
+that this unchecked power will cause could have been made clear to
+this Court. Justice Kennedy in good faith wanted to be shown. I,
+idiotically, corrected his question. Justice Souter in good faith
+wanted to be shown the First Amendment harms. I, like a math teacher,
+reframed the question to make the logical point. I had shown them how
+they could strike this law of Congress if they wanted to. There were a
+hundred places where I could have helped them want to, yet my
+stubbornness, my refusal to give in, stopped me. I have stood before
+hundreds of audiences trying to persuade; I have used passion in that
+effort to persuade; but I
<!-- PAGE BREAK 252 -->
refused to stand before this audience and try to persuade with the
- passion
-I had used elsewhere. It was not the basis on which a court should
-decide the issue.
+passion I had used elsewhere. It was not the basis on which a court
+should decide the issue.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
</para>
<para>
And even if I couldn't, then that doesn't excuse what happened in
-January. For at the start of this case, one of America's leading
- intellectual
-property professors stated publicly that my bringing this case was
-a mistake. "The Court is not ready," Peter Jaszi said; this issue should
-not be raised until it is.
+January. For at the start of this case, one of America's leading
+intellectual property professors stated publicly that my bringing this
+case was a mistake. "The Court is not ready," Peter Jaszi said; this
+issue should not be raised until it is.
</para>
<para>
After the argument and after the decision, Peter said to me, and
copyright was a good idea. We had won that battle over ideas. Where
<!-- PAGE BREAK 253 -->
-the decision was praised, it was praised by papers that had been
- skeptical
-of the Court's activism in other cases. Deference was a good thing,
-even if it left standing a silly law. But where the decision was attacked,
-it was attacked because it left standing a silly and harmful law. The New
-York Times wrote in its editorial,
+the decision was praised, it was praised by papers that had been
+skeptical of the Court's activism in other cases. Deference was a good
+thing, even if it left standing a silly law. But where the decision
+was attacked, it was attacked because it left standing a silly and
+harmful law. The New York Times wrote in its editorial,
</para>
<blockquote>
<para>
In effect, the Supreme Court's decision makes it likely that we are
seeing the beginning of the end of public domain and the birth of
-copyright perpetuity. The public domain has been a grand
- experiment,
-one that should not be allowed to die. The ability to draw
-freely on the entire creative output of humanity is one of the
- reasons
-we live in a time of such fruitful creative ferment.
+copyright perpetuity. The public domain has been a grand experiment,
+one that should not be allowed to die. The ability to draw freely on
+the entire creative output of humanity is one of the reasons we live
+in a time of such fruitful creative ferment.
</para>
</blockquote>
<para>
-The best responses were in the cartoons. There was a gaggle of
- hilarious
-images—of Mickey in jail and the like. The best, from my view
-of the case, was Ruben Bolling's, reproduced on the next page. The
-"powerful and wealthy" line is a bit unfair. But the punch in the face felt
-exactly like that.
+The best responses were in the cartoons. There was a gaggle of
+hilarious images—of Mickey in jail and the like. The best, from
+my view of the case, was Ruben Bolling's, reproduced on the next
+page. The "powerful and wealthy" line is a bit unfair. But the punch
+in the face felt exactly like that.
</para>
<para>
The image that will always stick in my head is that evoked by the
quote from The New York Times. That "grand experiment" we call the
"public domain" is over? When I can make light of it, I think, "Honey,
-I shrunk the Constitution." But I can rarely make light of it. We had in
-our Constitution a commitment to free culture. In the case that I
- fathered,
-the Supreme Court effectively renounced that commitment. A
+I shrunk the Constitution." But I can rarely make light of it. We had
+in our Constitution a commitment to free culture. In the case that I
+fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
Congress allows for those works where its worth is at least $1. But for
everything else, let the content go.
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-The reaction to this idea was amazingly strong. Steve Forbes
- endorsed
+The reaction to this idea was amazingly strong. Steve Forbes endorsed
it in an editorial. I received an avalanche of e-mail and letters
-expressing support. When you focus the issue on lost creativity, people
-can see the copyright system makes no sense. As a good Republican
-might say, here government regulation is simply getting in the way of
-innovation and creativity. And as a good Democrat might say, here the
-government is blocking access and the spread of knowledge for no
-good reason. Indeed, there is no real difference between Democrats
-and Republicans on this issue. Anyone can recognize the stupid harm
-of the present system.
+expressing support. When you focus the issue on lost creativity,
+people can see the copyright system makes no sense. As a good
+Republican might say, here government regulation is simply getting in
+the way of innovation and creativity. And as a good Democrat might
+say, here the government is blocking access and the spread of
+knowledge for no good reason. Indeed, there is no real difference
+between Democrats and Republicans on this issue. Anyone can recognize
+the stupid harm of the present system.
</para>
<para>
Indeed, many recognized the obvious benefit of the registration
<para>
<!-- PAGE BREAK 257 -->
As I described in chapter 10, formalities in copyright law were
- removed
-in 1976, when Congress followed the Europeans by
- abandoning
+removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
-<!-- f1. --> Until the 1908 Berlin Act of the Berne Convention, national copyright
-legislation sometimes made protection depend upon compliance with
- formalities
-such as registration, deposit, and affixation of notice of the
- author's
-claim of copyright. However, starting with the 1908 act, every text
-of the Convention has provided that "the enjoyment and the exercise" of
-rights guaranteed by the Convention "shall not be subject to any
- formality."
-The prohibition against formalities is presently embodied in Article
-5(2) of the Paris Text of the Berne Convention. Many countries continue
-to impose some form of deposit or registration requirement, albeit not as
-a condition of copyright. French law, for example, requires the deposit of
-copies of works in national repositories, principally the National Museum.
+<indexterm><primary>Berlin Act (1908)</primary></indexterm>
+<!-- f1. -->
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject
+to any formality." The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the National Museum.
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
-of Authors where the author's true name can be filed in the case of
- anonymous
-or pseudonymous works. Paul Goldstein, International Intellectual
-Property Law, Cases and Materials (New York: Foundation Press, 2001),
-153–54.
-</para></footnote>
- The
- Europeans
-are said to view copyright as a "natural right." Natural rights
-don't need forms to exist. Traditions, like the Anglo-American
- tradition
-that required copyright owners to follow form if their rights were
-to be protected, did not, the Europeans thought, properly respect the
-dignity of the author. My right as a creator turns on my creativity, not
-upon the special favor of the government.
-</para>
-<para>
-That's great rhetoric. It sounds wonderfully romantic. But it is
- absurd
-copyright policy. It is absurd especially for authors, because a
-world without formalities harms the creator. The ability to spread
+of Authors where the author's true name can be filed in the case of
+anonymous or pseudonymous works. Paul Goldstein, International
+Intellectual Property Law, Cases and Materials (New York: Foundation
+Press, 2001), 153–54. </para></footnote>
+The Europeans are said to view copyright as a "natural right." Natural
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+</para>
+<para>
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
</para>
<para>
-The fight against formalities achieved its first real victory in Berlin
-in 1908. International copyright lawyers amended the Berne
- Convention
-in 1908, to require copyright terms of life plus fifty years, as well as
-the abolition of copyright formalities. The formalities were hated
- because
-the stories of inadvertent loss were increasingly common. It was
-as if a Charles Dickens character ran all copyright offices, and the
- failure
-to dot an i or cross a t resulted in the loss of widows' only income.
+The fight against formalities achieved its first real victory in
+Berlin in 1908. International copyright lawyers amended the Berne
+Convention in 1908, to require copyright terms of life plus fifty
+years, as well as the abolition of copyright formalities. The
+formalities were hated because the stories of inadvertent loss were
+increasingly common. It was as if a Charles Dickens character ran all
+copyright offices, and the failure to dot an i or cross a t resulted
+in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
-formalities, especially in the United States, was absurd. The law should
-always have ways of forgiving innocent mistakes. There is no reason
-copyright law couldn't, as well. Rather than abandoning formalities
- totally,
-the response in Berlin should have been to embrace a more
- equitable
-system of registration.
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
</para>
<para>
Even that would have been resisted, however, because registration
a moral claim as well. There was no reason that creative property
<!-- PAGE BREAK 258 -->
-should be a second-class form of property. If a carpenter builds a table,
-his rights over the table don't depend upon filing a form with the
- government.
-He has a property right over the table "naturally," and he can
-assert that right against anyone who would steal the table, whether or
-not he has informed the government of his ownership of the table.
+should be a second-class form of property. If a carpenter builds a
+table, his rights over the table don't depend upon filing a form with
+the government. He has a property right over the table "naturally,"
+and he can assert that right against anyone who would steal the table,
+whether or not he has informed the government of his ownership of the
+table.
</para>
<para>
-This argument is correct, but its implications are misleading. For
-the argument in favor of formalities does not depend upon creative
-property being second-class property. The argument in favor of
- formalities
-turns upon the special problems that creative property
- presents.
-The law of formalities responds to the special physics of creative
-property, to assure that it can be efficiently and fairly spread.
+This argument is correct, but its implications are misleading. For the
+argument in favor of formalities does not depend upon creative
+property being second-class property. The argument in favor of
+formalities turns upon the special problems that creative property
+presents. The law of formalities responds to the special physics of
+creative property, to assure that it can be efficiently and fairly
+spread.
</para>
<para>
No one thinks, for example, that land is second-class property just
-because you have to register a deed with a court if your sale of land is
-to be effective. And few would think a car is second-class property just
-because you must register the car with the state and tag it with a
- license.
-In both of those cases, everyone sees that there is an important
-reason to secure registration—both because it makes the markets more
-efficient and because it better secures the rights of the owner. Without
-a registration system for land, landowners would perpetually have to
-guard their property. With registration, they can simply point the
- police
-to a deed. Without a registration system for cars, auto theft would
-be much easier. With a registration system, the thief has a high burden
-to sell a stolen car. A slight burden is placed on the property owner, but
-those burdens produce a much better system of protection for property
-generally.
+because you have to register a deed with a court if your sale of land
+is to be effective. And few would think a car is second-class property
+just because you must register the car with the state and tag it with
+a license. In both of those cases, everyone sees that there is an
+important reason to secure registration—both because it makes
+the markets more efficient and because it better secures the rights of
+the owner. Without a registration system for land, landowners would
+perpetually have to guard their property. With registration, they can
+simply point the police to a deed. Without a registration system for
+cars, auto theft would be much easier. With a registration system, the
+thief has a high burden to sell a stolen car. A slight burden is
+placed on the property owner, but those burdens produce a much better
+system of protection for property generally.
</para>
<para>
It is similarly special physics that makes formalities important in
be presumptively uncontrolled.
</para>
<para>
-But now that copyrights can be just about a century long, the
- inability
-to know what is protected and what is not protected becomes a
-huge and obvious burden on the creative process. If the only way a
- library
-can offer an Internet exhibit about the New Deal is to hire a
-lawyer to clear the rights to every image and sound, then the copyright
-system is burdening creativity in a way that has never been seen before
-because there are no formalities.
+But now that copyrights can be just about a century long, the
+inability to know what is protected and what is not protected becomes
+a huge and obvious burden on the creative process. If the only way a
+library can offer an Internet exhibit about the New Deal is to hire a
+lawyer to clear the rights to every image and sound, then the
+copyright system is burdening creativity in a way that has never been
+seen before because there are no formalities.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
movie based on it. It should become free if it is not worth $1 to you.
</para>
<para>
-Some worry about the burden on authors. Won't the burden of
- registering
-the work mean that the $1 is really misleading? Isn't the hassle
-worth more than $1? Isn't that the real problem with registration?
+Some worry about the burden on authors. Won't the burden of
+registering the work mean that the $1 is really misleading? Isn't the
+hassle worth more than $1? Isn't that the real problem with
+registration?
</para>
<para>
It is. The hassle is terrible. The system that exists now is awful. I
work, commercial work that no longer had a commercial life, into the
public domain within fifty years. What do you think?
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
When Steve Forbes endorsed the idea, some in Washington began to pay
attention. Many people contacted me pointing to representatives who
been part of our tradition for most of our history—free culture.
</para>
<para>
-If this is crazy, then let there be more crazies. Soon.
-There are moments of hope in this struggle. And moments that
-surprise. When the FCC was considering relaxing ownership rules,
-which would thereby further increase the concentration in media
- ownership,
-an extraordinary bipartisan coalition formed to fight this
-change. For perhaps the first time in history, interests as diverse as the
-NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and
-CodePink Women for Peace organized to oppose this change in FCC
-policy. An astonishing 700,000 letters were sent to the FCC,
- demanding
-more hearings and a different result.
+If this is crazy, then let there be more crazies. Soon. There are
+moments of hope in this struggle. And moments that surprise. When the
+FCC was considering relaxing ownership rules, which would thereby
+further increase the concentration in media ownership, an
+extraordinary bipartisan coalition formed to fight this change. For
+perhaps the first time in history, interests as diverse as the NRA,
+the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
+for Peace organized to oppose this change in FCC policy. An
+astonishing 700,000 letters were sent to the FCC, demanding more
+hearings and a different result.
</para>
<para>
-This activism did not stop the FCC, but soon after, a broad
- coalition
-in the Senate voted to reverse the FCC decision. The hostile
- hearings
-leading up to that vote revealed just how powerful this movement
-had become. There was no substantial support for the FCC's decision,
-and there was broad and sustained support for fighting further
- concentration
-in the media.
+This activism did not stop the FCC, but soon after, a broad coalition
+in the Senate voted to reverse the FCC decision. The hostile hearings
+leading up to that vote revealed just how powerful this movement had
+become. There was no substantial support for the FCC's decision, and
+there was broad and sustained support for fighting further
+concentration in the media.
</para>
<para>
But even this movement misses an important piece of the puzzle.
Largeness as such is not bad. Freedom is not threatened just because
-some become very rich, or because there are only a handful of big
- players.
-The poor quality of Big Macs or Quarter Pounders does not mean
-that you can't get a good hamburger from somewhere else.
+some become very rich, or because there are only a handful of big
+players. The poor quality of Big Macs or Quarter Pounders does not
+mean that you can't get a good hamburger from somewhere else.
</para>
<para>
-The danger in media concentration comes not from the
- concentration,
+The danger in media concentration comes not from the concentration,
but instead from the feudalism that this concentration, tied to the
-change in copyright, produces. It is not just that there are a few
- powerful
-companies that control an ever expanding slice of the media. It
-is that this concentration can call upon an equally bloated range of
-rights—property rights of a historically extreme form—that makes
-their bigness bad.
+change in copyright, produces. It is not just that there are a few
+powerful companies that control an ever expanding slice of the
+media. It is that this concentration can call upon an equally bloated
+range of rights—property rights of a historically extreme
+form—that makes their bigness bad.
</para>
<!-- PAGE BREAK 277 -->
<para>
-It is therefore significant that so many would rally to demand
- competition
-and increased diversity. Still, if the rally is understood as being
-about bigness alone, it is not terribly surprising. We Americans have a
-long history of fighting "big," wisely or not. That we could be
- motivated
-to fight "big" again is not something new.
+It is therefore significant that so many would rally to demand
+competition and increased diversity. Still, if the rally is understood
+as being about bigness alone, it is not terribly surprising. We
+Americans have a long history of fighting "big," wisely or not. That
+we could be motivated to fight "big" again is not something new.
</para>
<para>
-It would be something new, and something very important, if an
-equal number could be rallied to fight the increasing extremism built
-within the idea of "intellectual property." Not because balance is alien
-to our tradition; indeed, as I've argued, balance is our tradition. But
- because
-the muscle to think critically about the scope of anything called
-"property" is not well exercised within this tradition anymore.
+It would be something new, and something very important, if an equal
+number could be rallied to fight the increasing extremism built within
+the idea of "intellectual property." Not because balance is alien to
+our tradition; indeed, as I've argued, balance is our tradition. But
+because the muscle to think critically about the scope of anything
+called "property" is not well exercised within this tradition anymore.
</para>
<para>
If we were Achilles, this would be our heel. This would be the place
<para>
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.<footnote><para>
-<!-- f11. --> John Borland, "RIAA Sues 261 File Swappers," CNET News.com,
-September 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul R. La Monica, "Music
- Industry
-Sues Swappers," CNN/Money, 8 September 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a
-Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily
-News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet
- Surprised
+<!-- f11. -->
+John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul
+R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni
+Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
+September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
- available
-at
+"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #67</ulink>.
</para></footnote>
-
- Eminem
-has just been sued for "sampling" someone else's music.<footnote><para>
-<!-- f12. --> Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com,
-17 September 2003, available at
+Eminem has just been sued for "sampling" someone else's
+music.<footnote><para>
+<!-- f12. -->
+Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+mtv.com, 17 September 2003, available at
<ulink url="http://free-culture.cc/notes/">link #68</ulink>.
</para></footnote>
- The
-story about Bob Dylan "stealing" from a Japanese author has just
- finished
-making the rounds.<footnote><para>
-<!-- f13. --> Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
- Dylan
-Songs," Kansascity.com, 9 July 2003, available at
+The story about Bob Dylan "stealing" from a Japanese author has just
+finished making the rounds.<footnote><para>
+<!-- f13. -->
+Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
+Dylan Songs," Kansascity.com, 9 July 2003, available at
<ulink url="http://free-culture.cc/notes/">link #69</ulink>.
<!-- PAGE BREAK 334 -->
</para></footnote>
- An insider from Hollywood—who insists
-he must remain anonymous—reports "an amazing conversation with
-these studio guys. They've got extraordinary [old] content that they'd
-love to use but can't because they can't begin to clear the rights. They've
-got scores of kids who could do amazing things with the content, but
-it would take scores of lawyers to clean it first." Congressmen are
- talking
-about deputizing computer viruses to bring down computers thought
-to violate the law. Universities are threatening expulsion for kids who
-use a computer to share content.
+An insider from Hollywood—who insists he must remain
+anonymous—reports "an amazing conversation with these studio
+guys. They've got extraordinary [old] content that they'd love to use
+but can't because they can't begin to clear the rights. They've got
+scores of kids who could do amazing things with the content, but it
+would take scores of lawyers to clean it first." Congressmen are
+talking about deputizing computer viruses to bring down computers
+thought to violate the law. Universities are threatening expulsion for
+kids who use a computer to share content.
</para>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
24 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
</para></footnote>
- And in Brazil, the
-culture minister, Gilberto Gil, himself a folk hero of Brazilian music,
-has joined with Creative Commons to release content and free licenses
-in that Latin American country.<footnote><para>
+<indexterm><primary>Gil, Gilberto</primary></indexterm>
+And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
+of Brazilian music, has joined with Creative Commons to release
+content and free licenses in that Latin American
+country.<footnote><para>
<!-- f15. --> "Creative Commons and Brazil," Creative Commons Weblog, 6 August
2003, available at
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that
- something
-must be done to change where we are heading. The balance of
-this book maps what might be done.
+At least some who have read this far will agree with me that something
+must be done to change where we are heading. The balance of this book
+maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
it requires remaking how many people think about the very same issue.
</para>
<para>
-That means this movement must begin in the streets. It must
- recruit
-a significant number of parents, teachers, librarians, creators,
- authors,
-musicians, filmmakers, scientists—all to tell this story in their
-own words, and to tell their neighbors why this battle is so important.
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators,
+authors, musicians, filmmakers, scientists—all to tell this
+story in their own words, and to tell their neighbors why this battle
+is so important.
</para>
<para>
Once this movement has its effect in the streets, it has some hope of
<sect1 id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so
-far has been framed at the extremes—as a grand either/or: either
- property
-or anarchy, either total control or artists won't be paid. If that
- really
-is the choice, then the warriors should win.
+Common sense is with the copyright warriors because the debate so far
+has been framed at the extremes—as a grand either/or: either
+property or anarchy, either total control or artists won't be paid. If
+that really is the choice, then the warriors should win.
</para>
<para>
-The mistake here is the error of the excluded middle. There are
- extremes
-in this debate, but the extremes are not all that there is. There
-are those who believe in maximal copyright—"All Rights Reserved"—
-and those who reject copyright—"No Rights Reserved." The "All
-Rights Reserved" sorts believe that you should ask permission before
-you "use" a copyrighted work in any way. The "No Rights Reserved"
-sorts believe you should be able to do with content as you wish,
- regardless
-of whether you have permission or not.
+The mistake here is the error of the excluded middle. There are
+extremes in this debate, but the extremes are not all that there
+is. There are those who believe in maximal copyright—"All Rights
+Reserved"— and those who reject copyright—"No Rights
+Reserved." The "All Rights Reserved" sorts believe that you should ask
+permission before you "use" a copyrighted work in any way. The "No
+Rights Reserved" sorts believe you should be able to do with content
+as you wish, regardless of whether you have permission or not.
</para>
<para>
When the Internet was first born, its initial architecture effectively
tilted in the "no rights reserved" direction. Content could be copied
-perfectly and cheaply; rights could not easily be controlled. Thus,
- regardless
-of anyone's desire, the effective regime of copyright under the
+perfectly and cheaply; rights could not easily be controlled. Thus,
+regardless of anyone's desire, the effective regime of copyright under
+the
<!-- PAGE BREAK 282 -->
original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
- unprotected.
+"taken" regardless of the rights. Any rights were effectively
+unprotected.
</para>
<para>
This initial character produced a reaction (opposite, but not quite
equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
-design, copyright holders have been able to change the essential
- character
-of the environment of the original Internet. If the original
- architecture
-made the effective default "no rights reserved," the future
-architecture will make the effective default "all rights reserved." The
- architecture
-and law that surround the Internet's design will increasingly
-produce an environment where all use of content requires permission.
-The "cut and paste" world that defines the Internet today will become
-a "get permission to cut and paste" world that is a creator's nightmare.
+design, copyright holders have been able to change the essential
+character of the environment of the original Internet. If the original
+architecture made the effective default "no rights reserved," the
+future architecture will make the effective default "all rights
+reserved." The architecture and law that surround the Internet's
+design will increasingly produce an environment where all use of
+content requires permission. The "cut and paste" world that defines
+the Internet today will become a "get permission to cut and paste"
+world that is a creator's nightmare.
</para>
<para>
What's needed is a way to say something in the middle—neither "all
<sect2 id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
-If you step back from the battle I've been describing here, you will
- recognize
-this problem from other contexts. Think about privacy. Before
-the Internet, most of us didn't have to worry much about data about
-our lives that we broadcast to the world. If you walked into a bookstore
-and browsed through some of the works of Karl Marx, you didn't need
-to worry about explaining your browsing habits to your neighbors or
-boss. The "privacy" of your browsing habits was assured.
+If you step back from the battle I've been describing here, you will
+recognize this problem from other contexts. Think about
+privacy. Before the Internet, most of us didn't have to worry much
+about data about our lives that we broadcast to the world. If you
+walked into a bookstore and browsed through some of the works of Karl
+Marx, you didn't need to worry about explaining your browsing habits
+to your neighbors or boss. The "privacy" of your browsing habits was
+assured.
</para>
<para>
What made it assured?
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture for
-gathering data and hence a market constraint (cost) on anyone who
-wanted to gather that data. If you were a suspected spy for North
- Korea,
-working for the CIA, no doubt your privacy would not be assured.
-But that's because the CIA would (we hope) find it valuable enough to
-spend the thousands required to track you. But for most of us (again,
-we can hope), spying doesn't pay. The highly inefficient architecture of
-real space means we all enjoy a fairly robust amount of privacy. That
-privacy is guaranteed to us by friction. Not by law (there is no law
- protecting
-"privacy" in public places), and in many places, not by norms
-(snooping and gossip are just fun), but instead, by the costs that
- friction
-imposes on anyone who would want to spy.
+10, your privacy was assured because of an inefficient architecture
+for gathering data and hence a market constraint (cost) on anyone who
+wanted to gather that data. If you were a suspected spy for North
+Korea, working for the CIA, no doubt your privacy would not be
+assured. But that's because the CIA would (we hope) find it valuable
+enough to spend the thousands required to track you. But for most of
+us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount
+of privacy. That privacy is guaranteed to us by friction. Not by law
+(there is no law protecting "privacy" in public places), and in many
+places, not by norms (snooping and gossip are just fun), but instead,
+by the costs that friction imposes on anyone who would want to spy.
</para>
<indexterm><primary>Amazon</primary></indexterm>
<para>
It is this reality that explains the push of many to define "privacy"
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
- friction
-did.<footnote><para>
-<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
- Architecture
-of Privacy (What Larry Doesn't Get)," Stanford Technology Law
-Review 1 (2001): par. 6–18, available at
-<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
-which technology defines privacy policy). See also Jeffrey Rosen, The Naked
-Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
- Random
-House, 2004) (mapping tradeoffs between technology and privacy).
-</para></footnote>
- And whether you're in favor of those laws or not, it is the
- pattern
+friction did.<footnote><para>
+<!-- f1. -->
+
+See, for example, Marc Rotenberg, "Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+Law Review 1 (2001): par. 6–18, available at
+
+<ulink url="http://free-culture.cc/notes/">link #72</ulink>
+(describing examples in which technology defines privacy policy). See
+also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
+between technology and privacy).</para></footnote>
+And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
<!-- PAGE BREAK 284 -->
-kind of freedom that was passively provided before. A change in
- technology
-now forces those who believe in privacy to affirmatively act
-where, before, privacy was given by default.
+kind of freedom that was passively provided before. A change in
+technology now forces those who believe in privacy to affirmatively
+act where, before, privacy was given by default.
</para>
<para>
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
-commercially, the software—both the source code and the binaries—
-was free. You couldn't run a program written for a Data General
- machine
-on an IBM machine, so Data General and IBM didn't care much
-about controlling their software.
+commercially, the software—both the source code and the
+binaries— was free. You couldn't run a program written for a
+Data General machine on an IBM machine, so Data General and IBM didn't
+care much about controlling their software.
</para>
+<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
-That was the world Richard Stallman was born into, and while he
-was a researcher at MIT, he grew to love the community that
- developed
-when one was free to explore and tinker with the software that
-ran on machines. Being a smart sort himself, and a talented
- programmer,
-Stallman grew to depend upon the freedom to add to or modify
-other people's work.
-</para>
-<para>
-In an academic setting, at least, that's not a terribly radical idea. In
-a math department, anyone would be free to tinker with a proof that
-someone offered. If you thought you had a better way to prove a
- theorem,
-you could take what someone else did and change it. In a classics
-department, if you believed a colleague's translation of a recently
- discovered
-text was flawed, you were free to improve it. Thus, to Stallman,
-it seemed obvious that you should be free to tinker with and improve
-the code that ran a machine. This, too, was knowledge. Why shouldn't
-it be open for criticism like anything else?
+That was the world Richard Stallman was born into, and while he was a
+researcher at MIT, he grew to love the community that developed when
+one was free to explore and tinker with the software that ran on
+machines. Being a smart sort himself, and a talented programmer,
+Stallman grew to depend upon the freedom to add to or modify other
+people's work.
+</para>
+<para>
+In an academic setting, at least, that's not a terribly radical
+idea. In a math department, anyone would be free to tinker with a
+proof that someone offered. If you thought you had a better way to
+prove a theorem, you could take what someone else did and change
+it. In a classics department, if you believed a colleague's
+translation of a recently discovered text was flawed, you were free to
+improve it. Thus, to Stallman, it seemed obvious that you should be
+free to tinker with and improve the code that ran a machine. This,
+too, was knowledge. Why shouldn't it be open for criticism like
+anything else?
</para>
<para>
No one answered that question. Instead, the architecture of revenue
-for computing changed. As it became possible to import programs
-from one system to another, it became economically attractive (at least
-in the view of some) to hide the code of your program. So, too, as
- companies
-started selling peripherals for mainframe systems. If I could just
-take your printer driver and copy it, then that would make it easier for
-me to sell a printer to the market than it was for you.
+for computing changed. As it became possible to import programs from
+one system to another, it became economically attractive (at least in
+the view of some) to hide the code of your program. So, too, as
+companies started selling peripherals for mainframe systems. If I
+could just take your printer driver and copy it, then that would make
+it easier for me to sell a printer to the market than it was for you.
</para>
<para>
Thus, the practice of proprietary code began to spread, and by the
early 1980s, Stallman found himself surrounded by proprietary code.
<!-- PAGE BREAK 285 -->
-The world of free software had been erased by a change in the
- economics
-of computing. And as he believed, if he did nothing about it,
-then the freedom to change and share software would be
- fundamentally
-weakened.
+The world of free software had been erased by a change in the
+economics of computing. And as he believed, if he did nothing about
+it, then the freedom to change and share software would be
+fundamentally weakened.
</para>
<para>
-Therefore, in 1984, Stallman began a project to build a free
- operating
+Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
</para>
<para>
Stallman's technique was to use copyright law to build a world of
-software that must be kept free. Software licensed under the Free
- Software
-Foundation's GPL cannot be modified and distributed unless the
-source code for that software is made available as well. Thus, anyone
-building upon GPL'd software would have to make their buildings free
-as well. This would assure, Stallman believed, that an ecology of code
-would develop that remained free for others to build upon. His
- fundamental
-goal was freedom; innovative creative code was a byproduct.
+software that must be kept free. Software licensed under the Free
+Software Foundation's GPL cannot be modified and distributed unless
+the source code for that software is made available as well. Thus,
+anyone building upon GPL'd software would have to make their buildings
+free as well. This would assure, Stallman believed, that an ecology of
+code would develop that remained free for others to build upon. His
+fundamental goal was freedom; innovative creative code was a
+byproduct.
</para>
<para>
Stallman was thus doing for software what privacy advocates now
projects / text-free-culture-lessig.git / blobdiff