msgid ""
msgstr ""
"Project-Id-Version: PACKAGE VERSION\n"
-"POT-Creation-Date: 2012-07-19 21:43+0300\n"
+"POT-Creation-Date: 2012-07-21 22:20+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:353 freeculture.xml:12745
+#: freeculture.xml:353 freeculture.xml:12749
msgid "CodePink Women in Peace"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:457 freeculture.xml:470 freeculture.xml:501 freeculture.xml:520 freeculture.xml:920 freeculture.xml:937 freeculture.xml:987 freeculture.xml:8769 freeculture.xml:12143 freeculture.xml:12847
+#: freeculture.xml:457 freeculture.xml:470 freeculture.xml:501 freeculture.xml:520 freeculture.xml:916 freeculture.xml:933 freeculture.xml:983 freeculture.xml:8767 freeculture.xml:12146 freeculture.xml:12851
msgid "Causby, Thomas Lee"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:458 freeculture.xml:471 freeculture.xml:502 freeculture.xml:521 freeculture.xml:921 freeculture.xml:938 freeculture.xml:988 freeculture.xml:8770 freeculture.xml:12144 freeculture.xml:12848
+#: freeculture.xml:458 freeculture.xml:471 freeculture.xml:502 freeculture.xml:521 freeculture.xml:917 freeculture.xml:934 freeculture.xml:984 freeculture.xml:8768 freeculture.xml:12147 freeculture.xml:12852
msgid "Causby, Tinie"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:774 freeculture.xml:1786 freeculture.xml:1797
+#: freeculture.xml:774 freeculture.xml:1782 freeculture.xml:1793
msgid "Brandeis, Louis D."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:880 freeculture.xml:14083
+#: freeculture.xml:880 freeculture.xml:14089
msgid "Netanel, Neil Weinstock"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:909
+#: freeculture.xml:908
msgid ""
"It is instead an effort to understand a hopelessly destructive war inspired "
"by the technologies of the Internet but reaching far beyond its code. And by "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:923
+#: freeculture.xml:919
msgid ""
"Like the Causbys' battle, this war is, in part, about \"property.\" The "
"property of this war is not as tangible as the Causbys', and no innocent "
#. PAGE BREAK 27
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:940
+#: freeculture.xml:936
msgid ""
"And thus, when geeks and technologists defend their Armstrong or Wright "
"brothers technology, most of us are simply unsympathetic. Common sense does "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:950
+#: freeculture.xml:946
msgid ""
"My hope is to push this common sense along. I have become increasingly "
"amazed by the power of this idea of intellectual property and, more "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:960
+#: freeculture.xml:956
msgid ""
"The puzzle is, Why? Is it because we have come to understand a truth about "
"the value and importance of absolute property over ideas and culture? Is it "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:969
+#: freeculture.xml:965
msgid ""
"Or is it because the idea of absolute property over ideas and culture "
"benefits the RCAs of our time and fits our own unreflective intuitions?"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:973
+#: freeculture.xml:969
msgid ""
"Is the radical shift away from our tradition of free culture an instance of "
"America correcting a mistake from its past, as we did after a bloody war "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:980
+#: freeculture.xml:976
msgid ""
"Does common sense lead to the extremes on this question because common sense "
"actually believes in these extremes? Or does common sense stand silent in "
#. PAGE BREAK 28
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:990
+#: freeculture.xml:986
msgid ""
"I don't mean to be mysterious. My own views are resolved. I believe it was "
"right for common sense to revolt against the extremism of the Causbys. I "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1000
+#: freeculture.xml:996
msgid ""
"The struggle that rages just now centers on two ideas: \"piracy\" and "
"\"property.\" My aim in this book's next two parts is to explore these two "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1005
+#: freeculture.xml:1001
msgid ""
"My method is not the usual method of an academic. I don't want to plunge you "
"into a complex argument, buttressed with references to obscure French "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1014
+#: freeculture.xml:1010
msgid ""
"The two sections set up the core claim of this book: that while the Internet "
"has indeed produced something fantastic and new, our government, pushed by "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1027
+#: freeculture.xml:1023
msgid ""
"We allow this, I believe, not because it is right, and not because most of "
"us really believe in these changes. We allow it because the interests most "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:1037
+#: freeculture.xml:1033
msgid "\"PIRACY\""
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1041
+#: freeculture.xml:1037
msgid ""
"Since the inception of the law regulating creative property, there has been "
"a war against \"piracy.\" The precise contours of this concept, \"piracy,\" "
#. f1
#. type: Content of: <book><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:1054
+#: freeculture.xml:1050
msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield)."
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:1050
+#: freeculture.xml:1046
msgid ""
"A person may use the copy by playing it, but he has no right to rob the "
"author of the profit, by multiplying copies and disposing of them for his "
#. PAGE BREAK 31
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1059
+#: freeculture.xml:1055
msgid ""
"Today we are in the middle of another \"war\" against \"piracy.\" The "
"Internet has provoked this war. The Internet makes possible the efficient "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1070
+#: freeculture.xml:1066
msgid ""
"This efficiency does not respect the traditional lines of copyright. The "
"network doesn't discriminate between the sharing of copyrighted and "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1078
+#: freeculture.xml:1074
msgid ""
"The warriors have turned to the courts, to the legislatures, and "
"increasingly to technology to defend their \"property\" against this "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1087
+#: freeculture.xml:1083
msgid ""
"There's no doubt that \"piracy\" is wrong, and that pirates should be "
"punished. But before we summon the executioners, we should put this notion "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1093
+#: freeculture.xml:1089
msgid "The idea goes something like this:"
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:1097
+#: freeculture.xml:1093
msgid ""
"Creative work has value; whenever I use, or take, or build upon the creative "
"work of others, I am taking from them something of value. Whenever I take "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:1105
+#: freeculture.xml:1101
msgid "Dreyfuss, Rochelle"
msgstr ""
#. f2
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:1111
+#: freeculture.xml:1107
msgid ""
"See Rochelle Dreyfuss, \"Expressive Genericity: Trademarks as Language in "
"the Pepsi Generation,\" Notre Dame Law Review 65 (1990): 397."
#. f3
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:1119
+#: freeculture.xml:1115
msgid ""
"Lisa Bannon, \"The Birds May Sing, but Campers Can't Unless They Pay Up,\" "
"Wall Street Journal, 21 August 1996, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1107
+#: freeculture.xml:1103
msgid ""
"This view runs deep within the current debates. It is what NYU law professor "
"Rochelle Dreyfuss criticizes as the \"if value, then right\" theory of "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:1128
+#: freeculture.xml:1124
msgid "ASCAP"
msgstr ""
#. PAGE BREAK 32
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1130
+#: freeculture.xml:1126
msgid ""
"This idea is certainly a possible understanding of how creative property "
"should work. It might well be a possible design for a system of law "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1139
+#: freeculture.xml:1135
msgid ""
"Instead, in our tradition, intellectual property is an instrument. It sets "
"the groundwork for a richly creative society but remains subservient to the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1146
+#: freeculture.xml:1142
msgid ""
"The source of this confusion is a distinction that the law no longer takes "
"care to draw—the distinction between republishing someone's work on "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1153
+#: freeculture.xml:1149
msgid ""
"Before the technologies of the Internet, this conflation didn't matter all "
"that much. The technologies of publishing were expensive; that meant the "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1160 freeculture.xml:1188
+#: freeculture.xml:1156 freeculture.xml:1184
msgid "Florida, Richard"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:1181
+#: freeculture.xml:1177
msgid ""
"In The Rise of the Creative Class (New York: Basic Books, 2002), Richard "
"Florida documents a shift in the nature of labor toward a labor of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1162
+#: freeculture.xml:1158
msgid ""
"But with the birth of the Internet, this natural limit to the reach of the "
"law has disappeared. The law controls not just the creativity of commercial "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1194
+#: freeculture.xml:1190
msgid ""
"These burdens make no sense in our tradition. We should begin by "
"understanding that tradition a bit more and by placing in their proper "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:1201
+#: freeculture.xml:1197
msgid "CHAPTER ONE: Creators"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1203
+#: freeculture.xml:1199
msgid ""
"In 1928, a cartoon character was born. An early Mickey Mouse made his debut "
"in May of that year, in a silent flop called Plane Crazy. In November, in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1210
+#: freeculture.xml:1206
msgid ""
"Synchronized sound had been introduced to film a year earlier in the movie "
"The Jazz Singer. That success led Walt Disney to copy the technique and mix "
#. PAGE BREAK 35
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1219
+#: freeculture.xml:1215
msgid ""
"A couple of my boys could read music, and one of them could play a mouth "
"organ. We put them in a room where they could not see the screen and "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1226
+#: freeculture.xml:1222
msgid ""
"The boys worked from a music and sound-effects score. After several false "
"starts, sound and action got off with the gun. The mouth organist played the "
#. f1
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:1240
+#: freeculture.xml:1236
msgid ""
"Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons "
"(New York: Penguin Books, 1987), 34–35."
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1233
+#: freeculture.xml:1229
msgid ""
"The effect on our little audience was nothing less than electric. They "
"responded almost instinctively to this union of sound and motion. I thought "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:1250
+#: freeculture.xml:1246
msgid "Iwerks, Ub"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1247
+#: freeculture.xml:1243
msgid ""
"Disney's then partner, and one of animation's most extraordinary talents, Ub "
"Iwerks, put it more strongly: \"I have never been so thrilled in my "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1253
+#: freeculture.xml:1249
msgid ""
"Disney had created something very new, based upon something relatively "
"new. Synchronized sound brought life to a form of creativity that had "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1262
+#: freeculture.xml:1258
msgid ""
"This much is familiar. What you might not know is that 1928 also marks "
"another important transition. In that year, a comic (as opposed to cartoon) "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1268
+#: freeculture.xml:1264
msgid ""
"Keaton was born into a vaudeville family in 1895. In the era of silent film, "
"he had mastered using broad physical comedy as a way to spark uncontrollable "
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1281
+#: freeculture.xml:1277
msgid ""
"I am grateful to David Gerstein and his careful history, described at <ulink "
"url=\"http://free-culture.cc/notes/\">link #4</ulink>. According to Dave "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1276
+#: freeculture.xml:1272
msgid ""
"Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The "
"coincidence of titles is not coincidental. Steamboat Willie is a direct "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1302
+#: freeculture.xml:1298
msgid ""
"He was also a fan of the public domain. See Chris Sprigman, \"The Mouse that "
"Ate the Public Domain,\" Findlaw, 5 March 2002, at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1298
+#: freeculture.xml:1294
msgid ""
"This \"borrowing\" was nothing unique, either for Disney or for the "
"industry. Disney was always parroting the feature-length mainstream films of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1317
+#: freeculture.xml:1313
msgid ""
"Sometimes this borrowing was slight. Sometimes it was significant. Think "
"about the fairy tales of the Brothers Grimm. If you're as oblivious as I "
#. PAGE BREAK 37
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1326
+#: freeculture.xml:1322
msgid ""
"Disney took these stories and retold them in a way that carried them into a "
"new age. He animated the stories, with both characters and light. Without "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1346
+#: freeculture.xml:1342
msgid ""
"This is a kind of creativity. It is a creativity that we should remember and "
"celebrate. There are some who would say that there is no creativity except "
#. f4
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1360
+#: freeculture.xml:1356
msgid ""
"Until 1976, copyright law granted an author the possibility of two terms: an "
"initial term and a renewal term. I have calculated the \"average\" term by "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1354
+#: freeculture.xml:1350
msgid ""
"In 1928, the culture that Disney was free to draw upon was relatively "
"fresh. The public domain in 1928 was not very old and was therefore quite "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1377
+#: freeculture.xml:1373
msgid ""
"At the end of a copyright term, a work passes into the public domain. No "
"permission is then needed to draw upon or use that work. No permission and, "
#. PAGE BREAK 38
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1386
+#: freeculture.xml:1382
msgid ""
"This is the ways things always were—until quite recently. For most of "
"our history, the public domain was just over the horizon. From until 1978, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1399
+#: freeculture.xml:1395
msgid ""
"Of course, Walt Disney had no monopoly on \"Walt Disney creativity.\" Nor "
"does America. The norm of free culture has, until recently, and except "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1405
+#: freeculture.xml:1401
msgid ""
"Consider, for example, a form of creativity that seems strange to many "
"Americans but that is inescapable within Japanese culture: manga, or "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1414
+#: freeculture.xml:1410
msgid ""
"Americans tend to look down upon this form of culture. That's an "
"unattractive characteristic of ours. We're likely to misunderstand much "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1425
+#: freeculture.xml:1421
msgid ""
"But my purpose here is not to understand manga. It is to describe a variant "
"on manga that from a lawyer's perspective is quite odd, but from a Disney "
#. PAGE BREAK 39
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1430
+#: freeculture.xml:1426
msgid ""
"This is the phenomenon of doujinshi. Doujinshi are also comics, but they are "
"a kind of copycat comic. A rich ethic governs the creation of doujinshi. It "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1444
+#: freeculture.xml:1440
msgid ""
"These copycat comics are not a tiny part of the manga market. They are "
"huge. More than 33,000 \"circles\" of creators from across Japan produce "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1455
+#: freeculture.xml:1451
msgid ""
"The most puzzling feature of the doujinshi market, for those trained in the "
"law, at least, is that it is allowed to exist at all. Under Japanese "
#. f5
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1480
+#: freeculture.xml:1476
msgid ""
"For an excellent history, see Scott McCloud, Reinventing Comics (New York: "
"Perennial, 2000)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1469
+#: freeculture.xml:1465
msgid ""
"Yet this illegal market exists and indeed flourishes in Japan, and in the "
"view of many, it is precisely because it exists that Japanese manga "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1485
+#: freeculture.xml:1481
msgid ""
"American comics now are quite different, Winick explains, in part because of "
"the legal difficulty of adapting comics the way doujinshi are "
#. f6
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1501
+#: freeculture.xml:1497
msgid ""
"See Salil K. Mehra, \"Copyright and Comics in Japan: Does Law Explain Why "
"All the Comics My Kid Watches Are Japanese Imports?\" Rutgers Law Review 55 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1493
+#: freeculture.xml:1489
msgid ""
"The norm in Japan mitigates this legal difficulty. Some say it is precisely "
"the benefit accruing to the Japanese manga market that explains the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1512
+#: freeculture.xml:1508
msgid ""
"The problem with this story, however, as Mehra plainly acknowledges, is that "
"the mechanism producing this laissez faire response is not clear. It may "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1523
+#: freeculture.xml:1519
msgid ""
"I spent four wonderful months in Japan, and I asked this question as often "
"as I could. Perhaps the best account in the end was offered by a friend from "
#. PAGE BREAK 41
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1530
+#: freeculture.xml:1526
msgid ""
"This is a theme to which we will return: that regulation by law is a "
"function of both the words on the books and the costs of making those words "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1543
+#: freeculture.xml:1539
msgid ""
"If you're like I was a decade ago, or like most people are when they first "
"start thinking about these issues, then just about now you should be puzzled "
#. f7
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1553
+#: freeculture.xml:1549
msgid ""
"The term intellectual property is of relatively recent origin. See Siva "
"Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1548
+#: freeculture.xml:1544
msgid ""
"We live in a world that celebrates \"property.\" I am one of those "
"celebrants. I believe in the value of property in general, and I also "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1568
+#: freeculture.xml:1564
msgid ""
"But it takes just a second's reflection to realize that there is plenty of "
"value out there that \"property\" doesn't capture. I don't mean \"money "
#. PAGE BREAK 42
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1583
+#: freeculture.xml:1579
msgid ""
"Thus, even though the things that Disney took—or more generally, the "
"things taken by anyone exercising Walt Disney creativity—are valuable, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1592
+#: freeculture.xml:1588
msgid ""
"The same with the doujinshi culture. If a doujinshi artist broke into a "
"publisher's office and ran off with a thousand copies of his latest "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1600
+#: freeculture.xml:1596
msgid ""
"Yet there is an obvious reluctance, even among Japanese lawyers, to say that "
"the copycat comic artists are \"stealing.\" This form of Walt Disney "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1606
+#: freeculture.xml:1602
msgid ""
"It's the same with a thousand examples that appear everywhere once you begin "
"to look. Scientists build upon the work of other scientists without asking "
#. PAGE BREAK 43
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1620
+#: freeculture.xml:1616
msgid ""
"Creators here and everywhere are always and at all times building upon the "
"creativity that went before and that surrounds them now. That building is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1631
+#: freeculture.xml:1627
msgid ""
"The hard question is therefore not whether a culture is free. All cultures "
"are free to some degree. The hard question instead is \"How free is this "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1642
+#: freeculture.xml:1638
msgid ""
"Free cultures are cultures that leave a great deal open for others to build "
"upon; unfree, or permission, cultures leave much less. Ours was a free "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:1650
+#: freeculture.xml:1646
msgid "CHAPTER TWO: \"Mere Copyists\""
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1651
+#: freeculture.xml:1647
msgid "Daguerre, Louis"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1653
+#: freeculture.xml:1649
msgid ""
"In 1839, Louis Daguerre invented the first practical technology for "
"producing what we would call \"photographs.\" Appropriately enough, they "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1662
+#: freeculture.xml:1658
msgid ""
"Yet despite high prices, the demand for daguerreotypes was strong. This "
"pushed inventors to find simpler and cheaper ways to make \"automatic "
#. PAGE BREAK 45
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1673
+#: freeculture.xml:1669
msgid ""
"The technological change that made mass photography possible didn't happen "
"until 1888, and was the creation of a single man. George Eastman, himself an "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1690
+#: freeculture.xml:1686
msgid ""
"Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University "
"Press, 1975), 112."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1685
+#: freeculture.xml:1681
msgid ""
"Eastman developed flexible, emulsion-coated paper film and placed rolls of "
"it in small, simple cameras: the Kodak. The device was marketed on the basis "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1708 freeculture.xml:1731
+#: freeculture.xml:1704 freeculture.xml:1727
msgid "Coe, Brian"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:1706
+#: freeculture.xml:1702
msgid ""
"Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), "
"53. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1695
+#: freeculture.xml:1691
msgid ""
"The principle of the Kodak system is the separation of the work that any "
"person whomsoever can do in making a photograph, from the work that only an "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1724
+#: freeculture.xml:1720
msgid "Jenkins, 177."
msgstr ""
#. f4
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1728
+#: freeculture.xml:1724
msgid "Based on a chart in Jenkins, p. 178."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1713
+#: freeculture.xml:1709
msgid ""
"For $25, anyone could make pictures. The camera came preloaded with film, "
"and when it had been used, the camera was returned to an Eastman factory, "
#. f5
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1746
+#: freeculture.xml:1742
msgid "Coe, 58."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1735
+#: freeculture.xml:1731
msgid ""
"The real significance of Eastman's invention, however, was not economic. It "
"was social. Professional photography gave individuals a glimpse of places "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1750
+#: freeculture.xml:1746
msgid ""
"In this way, the Kodak camera and film were technologies of expression. The "
"pencil or paintbrush was also a technology of expression, of course. But it "
#. f6
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1772
+#: freeculture.xml:1768
msgid ""
"For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 "
"S.E."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1763
+#: freeculture.xml:1759
msgid ""
"What was required for this technology to flourish? Obviously, Eastman's "
"genius was an important part. But also important was the legal environment "
#. PAGE BREAK 47
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1776
+#: freeculture.xml:1772
msgid ""
"The arguments in favor of requiring permission will sound surprisingly "
"familiar. The photographer was \"taking\" something from the person or "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1798
+#: freeculture.xml:1794
msgid "Warren, Samuel D."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1795
+#: freeculture.xml:1791
msgid ""
"Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" Harvard "
"Law Review 4 (1890): 193. <placeholder type=\"indexterm\" id=\"0\"/> "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1788
+#: freeculture.xml:1784
msgid ""
"On the other side was an argument that should be familiar, as well. Sure, "
"there may be something of value being used. But citizens should have the "
#. f8
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1815
+#: freeculture.xml:1811
msgid ""
"See Melville B. Nimmer, \"The Right of Publicity,\" Law and Contemporary "
"Problems 19 (1954): 203; William L. Prosser, \"Privacy,\" California Law "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1805
+#: freeculture.xml:1801
msgid ""
"Fortunately for Mr. Eastman, and for photography in general, these early "
"decisions went in favor of the pirates. In general, no permission would be "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1823
+#: freeculture.xml:1819
msgid ""
"We can only speculate about how photography would have developed had the law "
"gone the other way. If the presumption had been against the photographer, "
#. PAGE BREAK 48
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1840
+#: freeculture.xml:1836
msgid ""
"But though we could imagine this system of permission, it would be very hard "
"to see how photography could have flourished as it did if the requirement "
#. f9
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1871
+#: freeculture.xml:1867
msgid ""
"H. Edward Goldberg, \"Essential Presentation Tools: Hardware and Software "
"You Need to Create Digital Multimedia Presentations,\" cadalyst, February "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1865
+#: freeculture.xml:1861
msgid ""
"These buses are not cheap, but the technology they carry is increasingly "
"so. The cost of a high-quality digital video system has fallen "
#. PAGE BREAK 49
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1885
+#: freeculture.xml:1881
msgid ""
"\"Media literacy,\" as Dave Yanofsky, the executive director of Just Think!, "
"puts it, \"is the ability . . . to understand, analyze, and deconstruct "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1892
+#: freeculture.xml:1888
msgid ""
"This may seem like an odd way to think about \"literacy.\" For most people, "
"literacy is about reading and writing. Faulkner and Hemingway and noticing "
#. f10
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1902
+#: freeculture.xml:1898
msgid ""
"Judith Van Evra, Television and Child Development (Hillsdale, N.J.: Lawrence "
"Erlbaum Associates, 1990); \"Findings on Family and TV Study,\" Denver Post, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1898
+#: freeculture.xml:1894
msgid ""
"Maybe. But in a world where children see on average 390 hours of television "
"commercials per year, or between 20,000 and 45,000 commercials "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1914
+#: freeculture.xml:1910
msgid ""
"A growing field of academics and activists sees this form of literacy as "
"crucial to the next generation of culture. For though anyone who has written "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1925
+#: freeculture.xml:1921
msgid ""
"It took filmmaking a generation before it could do these things well. But "
"even then, the knowledge was in the filming, not in writing about the "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1932
+#: freeculture.xml:1928
msgid "Crichton, Michael"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1946 freeculture.xml:2006 freeculture.xml:2013 freeculture.xml:2459
+#: freeculture.xml:1942 freeculture.xml:2002 freeculture.xml:2009 freeculture.xml:2455
msgid "Barish, Stephanie"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1947
+#: freeculture.xml:1943
msgid "Daley, Elizabeth"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1944
+#: freeculture.xml:1940
msgid ""
"Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
#. f12
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1958
+#: freeculture.xml:1954
msgid ""
"See Scott Steinberg, \"Crichton Gets Medieval on PCs,\" E!online, 4 November "
"2000, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1934
+#: freeculture.xml:1930
msgid ""
"This grammar has changed as media has changed. When it was just film, as "
"Elizabeth Daley, executive director of the University of Southern "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1965
+#: freeculture.xml:1961
msgid "computer games"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1967
+#: freeculture.xml:1963
msgid ""
"This skill is precisely the craft a filmmaker learns. As Daley describes, "
"\"people are very surprised about how they are led through a film. [I]t is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1974
+#: freeculture.xml:1970
msgid ""
"Yet the push for an expanded literacy—one that goes beyond text to "
"include audio and visual elements—is not about making better film "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1981
+#: freeculture.xml:1977
msgid ""
"From my perspective, probably the most important digital divide is not "
"access to a box. It's the ability to be empowered with the language that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1989
+#: freeculture.xml:1985
msgid ""
"\"Read-only.\" Passive recipients of culture produced elsewhere. Couch "
"potatoes. Consumers. This is the world of media from the twentieth century."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2005
+#: freeculture.xml:2001
msgid "Interview with Daley and Barish. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. f31
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2010 freeculture.xml:3760 freeculture.xml:4834 freeculture.xml:7964
+#: freeculture.xml:2006 freeculture.xml:3750 freeculture.xml:4825 freeculture.xml:7961
msgid "Ibid."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1994
+#: freeculture.xml:1990
msgid ""
"The twenty-first century could be different. This is the crucial point: It "
"could be both read and write. Or at least reading and better understanding "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2015
+#: freeculture.xml:2011
msgid ""
"As with any language, this language comes more easily to some than to "
"others. It doesn't necessarily come more easily to those who excel in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2027
+#: freeculture.xml:2023
msgid ""
"The class was held on Friday afternoons, and it created a relatively new "
"problem for the school. While the challenge in most classes was getting the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2035
+#: freeculture.xml:2031
msgid ""
"Using whatever \"free web stuff they could find,\" and relatively simple "
"tools to enable the kids to mix \"image, sound, and text,\" Barish said this "
#. PAGE BREAK 52
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2054
+#: freeculture.xml:2050
msgid ""
"\"But isn't education about teaching kids to write?\" I asked. In part, of "
"course, it is. But why are we teaching kids to write? Education, Daley "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2067
+#: freeculture.xml:2063
msgid ""
"What you want is to give these students ways of constructing meaning. If all "
"you give them is text, they're not going to do it. Because they can't. You "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2086
+#: freeculture.xml:2082
msgid ""
"That empowers enormously. And then what happens, of course, is eventually, "
"as it has happened in all these classes, they bump up against the fact, \"I "
#. PAGE BREAK 53
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2093
+#: freeculture.xml:2089
msgid ""
"Because they needed to. There was a reason for doing it. They needed to say "
"something, as opposed to just jumping through your hoops. They actually "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2102
+#: freeculture.xml:2098
msgid ""
"When two planes crashed into the World Trade Center, another into the "
"Pentagon, and a fourth into a Pennsylvania field, all media around the world "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2113
+#: freeculture.xml:2109
msgid ""
"These retellings had an increasingly familiar feel. There was music scored "
"for the intermissions, and fancy graphics that flashed across the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:2120 freeculture.xml:7902
+#: freeculture.xml:2116 freeculture.xml:7899
msgid "ABC"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:2121
+#: freeculture.xml:2117
msgid "CBS"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2123
+#: freeculture.xml:2119
msgid ""
"But in addition to this produced news about the \"tragedy of September 11,\" "
"those of us tied to the Internet came to see a very different production as "
#. PAGE BREAK 54
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2137
+#: freeculture.xml:2133
msgid ""
"I don't mean simply to praise the Internet—though I do think the "
"people who supported this form of speech should be praised. I mean instead "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2147
+#: freeculture.xml:2143
msgid ""
"But unlike any technology for simply capturing images, the Internet allows "
"these creations to be shared with an extraordinary number of people, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2156
+#: freeculture.xml:2152
msgid ""
"September 11 was not an aberration. It was a beginning. Around the same "
"time, a form of communication that has grown dramatically was just beginning "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2165
+#: freeculture.xml:2161
msgid ""
"But in the United States, blogs have taken on a very different character. "
"There are some who use the space simply to talk about their private "
#. PAGE BREAK 55
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2179
+#: freeculture.xml:2175
msgid ""
"That's a strong statement. Yet it says as much about our democracy as it "
"does about blogs. This is the part of America that is most difficult for "
#. f15
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2205
+#: freeculture.xml:2201
msgid ""
"See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, "
"trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2190
+#: freeculture.xml:2186
msgid ""
"But democracy has never just been about elections. Democracy means rule by "
"the people, but rule means something more than mere elections. In our "
#. f16
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2214
+#: freeculture.xml:2210
msgid ""
"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" Journal of Political "
"Philosophy 10 (2) (2002): 129."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2210
+#: freeculture.xml:2206
msgid ""
"Yet even this institution flags in American life today. And in its place, "
"there is no systematic effort to enable citizen deliberation. Some are "
#. f17
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2234
+#: freeculture.xml:2230
msgid ""
"Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), "
"65–80, 175, 182, 183, 192."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2225
+#: freeculture.xml:2221
msgid ""
"More bizarrely, there is generally not even permission for it to occur. We, "
"the most powerful democracy in the world, have developed a strong norm "
#. PAGE BREAK 56
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2240
+#: freeculture.xml:2236
msgid ""
"Enter the blog. The blog's very architecture solves one part of this "
"problem. People post when they want to post, and people read when they want "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2252
+#: freeculture.xml:2248
msgid ""
"But beyond architecture, blogs also have solved the problem of "
"norms. There's no norm (yet) in blog space not to talk about politics. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2260
+#: freeculture.xml:2256
msgid ""
"The significance of these blogs is tiny now, though not so tiny. The name "
"Howard Dean may well have faded from the 2004 presidential race but for "
#. f18
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2280
+#: freeculture.xml:2276
msgid ""
"Noah Shachtman, \"With Incessant Postings, a Pundit Stirs the Pot,\" New "
"York Times, 16 January 2003, G5."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2267
+#: freeculture.xml:2263
msgid ""
"One direct effect is on stories that had a different life cycle in the "
"mainstream media. The Trent Lott affair is an example. When Lott "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2285
+#: freeculture.xml:2281
msgid ""
"This different cycle is possible because the same commercial pressures don't "
"exist with blogs as with other ventures. Television and newspapers are "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2292
+#: freeculture.xml:2288
msgid ""
"But bloggers don't have a similar constraint. They can obsess, they can "
"focus, they can get serious. If a particular blogger writes a particularly "
#. PAGE BREAK 57
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2301
+#: freeculture.xml:2297
msgid ""
"There's a second way, as well, in which blogs have a different cycle from "
"the mainstream press. As Dave Winer, one of the fathers of this movement and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2311 freeculture.xml:2364
+#: freeculture.xml:2307 freeculture.xml:2360
msgid "CNN"
msgstr ""
#. f19
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2319
+#: freeculture.xml:2315
msgid "Telephone interview with David Winer, 16 April 2003."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2313
+#: freeculture.xml:2309
msgid ""
"These conflicts become more important as media becomes more concentrated "
"(more on this below). A concentrated media can hide more from the public "
#. f20
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2337
+#: freeculture.xml:2333
msgid ""
"John Schwartz, \"Loss of the Shuttle: The Internet; A Wealth of Information "
"Online,\" New York Times, 2 February 2003, A28; Staci D. Kramer, \"Shuttle "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2329
+#: freeculture.xml:2325
msgid ""
"Blog space gives amateurs a way to enter the debate—\"amateur\" not in "
"the sense of inexperienced, but in the sense of an Olympic athlete, meaning "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2356
+#: freeculture.xml:2352
msgid ""
"See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" New York "
"Times, 29 September 2003, C4. (\"Not all news organizations have been as "
#. PAGE BREAK 58
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2349
+#: freeculture.xml:2345
msgid ""
"Winer is optimistic about the future of journalism infected with "
"blogs. \"It's going to become an essential skill,\" Winer predicts, for "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2376
+#: freeculture.xml:2372
msgid ""
"This speech affects democracy. Winer thinks that happens because \"you don't "
"have to work for somebody who controls, [for] a gatekeeper.\" That is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2393
+#: freeculture.xml:2389
msgid ""
"John Seely Brown is the chief scientist of the Xerox Corporation. His work, "
"as his Web site describes it, is \"human learning and . . . the creation of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2398
+#: freeculture.xml:2394
msgid ""
"Brown thus looks at these technologies of digital creativity a bit "
"differently from the perspectives I've sketched so far. I'm sure he would be "
#. PAGE BREAK 59
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2405
+#: freeculture.xml:2401
msgid ""
"As Brown believes, we learn by tinkering. When \"a lot of us grew up,\" he "
"explains, that tinkering was done \"on motorcycle engines, lawnmower "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2420
+#: freeculture.xml:2416
msgid ""
"The best large-scale example of this kind of tinkering so far is free "
"software or open-source software (FS/OSS). FS/OSS is software whose source "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2427
+#: freeculture.xml:2423
msgid ""
"This opportunity creates a \"completely new kind of learning platform,\" as "
"Brown describes. \"As soon as you start doing that, you . . . unleash a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2437
+#: freeculture.xml:2433
msgid ""
"In this process, \"the concrete things you tinker with are abstract. They "
"are code.\" Kids are \"shifting to the ability to tinker in the abstract, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2447
+#: freeculture.xml:2443
msgid ""
"This same thing happens with content, too. And it happens in the same "
"collaborative way when that content is part of the Web. As Brown puts it, "
#. PAGE BREAK 60
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2461
+#: freeculture.xml:2457
msgid ""
"Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just "
"Think! teach: that this tinkering with culture teaches as well as "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2469
+#: freeculture.xml:2465
msgid ""
"Yet the freedom to tinker with these objects is not guaranteed. Indeed, as "
"we'll see through the course of this book, that freedom is increasingly "
#. f22
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2484
+#: freeculture.xml:2480
msgid ""
"See, for example, Edward Felten and Andrew Appel, \"Technological Access "
"Control Interferes with Noninfringing Scholarship,\" Communications of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2478
+#: freeculture.xml:2474
msgid ""
"These restrictions have become the focus of researchers and scholars. "
"Professor Ed Felten of Princeton (whom we'll see more of in chapter 10) has "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2492
+#: freeculture.xml:2488
msgid ""
"\"This is where education in the twenty-first century is going,\" Brown "
"explains. We need to \"understand how kids who grow up digital think and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2497
+#: freeculture.xml:2493
msgid ""
"\"Yet,\" as Brown continued, and as the balance of this book will evince, "
"\"we are building a legal system that completely suppresses the natural "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2504
+#: freeculture.xml:2500
msgid ""
"We're building a technology that takes the magic of Kodak, mixes moving "
"images and sound, and adds a space for commentary and an opportunity to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2510
+#: freeculture.xml:2506
msgid ""
"\"No way to run a culture,\" as Brewster Kahle, whom we'll meet in chapter "
"9, quipped to me in a rare moment of despondence."
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:2516
+#: freeculture.xml:2512
msgid "CHAPTER THREE: Catalogs"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2518
+#: freeculture.xml:2514
msgid ""
"In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a "
"freshman at Rensselaer Polytechnic Institute, in Troy, New York. His major "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2525
+#: freeculture.xml:2521
msgid ""
"RPI is one of America's foremost technological research institutions. It "
"offers degrees in fields ranging from architecture and engineering to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2533
+#: freeculture.xml:2529
msgid ""
"RPI's computer network links students, faculty, and administration to one "
"another. It also links RPI to the Internet. Not everything available on the "
#. PAGE BREAK 62
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2540
+#: freeculture.xml:2536
msgid ""
"Search engines are a measure of a network's intimacy. Google brought the "
"Internet much closer to all of us by fantastically improving the quality of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2552
+#: freeculture.xml:2548
msgid ""
"These engines are enabled by the network technology itself. Microsoft, for "
"example, has a network file system that makes it very easy for search "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2561
+#: freeculture.xml:2557
msgid ""
"Jesse's wasn't the first search engine built for the RPI network. Indeed, "
"his engine was a simple modification of engines that others had built. His "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2573
+#: freeculture.xml:2569
msgid ""
"Jesse's engine went on-line in late October. Over the following six months, "
"he continued to tweak it to improve its functionality. By March, the system "
#. PAGE BREAK 63
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2580
+#: freeculture.xml:2576
msgid ""
"Thus the index his search engine produced included pictures, which students "
"could use to put on their own Web sites; copies of notes or research; copies "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2590
+#: freeculture.xml:2586
msgid ""
"But the index also included music files. In fact, one quarter of the files "
"that Jesse's search engine listed were music files. But that means, of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2605
+#: freeculture.xml:2601
msgid ""
"On April 3, 2003, Jesse was contacted by the dean of students at RPI. The "
"dean informed Jesse that the Recording Industry Association of America, the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2614
+#: freeculture.xml:2610
msgid ""
"\"It was absurd,\" he told me. \"I don't think I did anything wrong. . . . "
"I don't think there's anything wrong with the search engine that I ran or "
#. PAGE BREAK 64
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2626
+#: freeculture.xml:2622
msgid ""
"But the RIAA branded Jesse a pirate. They claimed he operated a network and "
"had therefore \"willfully\" violated copyright laws. They demanded that he "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2647
+#: freeculture.xml:2643
msgid ""
"Tim Goral, \"Recording Industry Goes After Campus P-2-P Networks: Suit "
"Alleges $97.8 Billion in Damages,\" Professional Media Group LCC 6 (2003): "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2638
+#: freeculture.xml:2634
msgid ""
"Similar lawsuits were brought against three other students: one other "
"student at RPI, one at Michigan Technical University, and one at "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2653
+#: freeculture.xml:2649
msgid ""
"Jesse called his parents. They were supportive but a bit frightened. An "
"uncle was a lawyer. He began negotiations with the RIAA. They demanded to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2660
+#: freeculture.xml:2656
msgid ""
"The RIAA wanted Jesse to admit to doing something wrong. He refused. They "
"wanted him to agree to an injunction that would essentially make it "
#. PAGE BREAK 65
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2671
+#: freeculture.xml:2667
msgid ""
"Jesse's family was outraged at these claims. They wanted to fight. But "
"Jesse's uncle worked to educate the family about the nature of the American "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2681
+#: freeculture.xml:2677
msgid ""
"So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or "
"$12,000 and a settlement."
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2693
+#: freeculture.xml:2689
msgid ""
"Occupational Employment Survey, U.S. Dept. of Labor (2001) "
"(27–2042—Musicians and Singers). See also National Endowment for "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2701
+#: freeculture.xml:2697
msgid ""
"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" Wall "
"Street Journal, 10 September 2003, A24."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2685
+#: freeculture.xml:2681
msgid ""
"The recording industry insists this is a matter of law and morality. Let's "
"put the law aside for a moment and think about the morality. Where is the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2706
+#: freeculture.xml:2702
msgid ""
"On June 23, Jesse wired his savings to the lawyer working for the RIAA. The "
"case against him was then dismissed. And with this, this kid who had "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2713
+#: freeculture.xml:2709
msgid ""
"I was definitely not an activist [before]. I never really meant to be an "
"activist. . . . [But] I've been pushed into this. In no way did I ever "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2720
+#: freeculture.xml:2716
msgid ""
"Jesse's parents betray a certain pride in their reluctant activist. As his "
"father told me, Jesse \"considers himself very conservative, and so do "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:2729
+#: freeculture.xml:2725
msgid "CHAPTER FOUR: \"Pirates\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2731
+#: freeculture.xml:2727
msgid ""
"If \"piracy\" means using the creative property of others without their "
"permission—if \"if value, then right\" is true—then the history "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:2739
+#: freeculture.xml:2735
msgid "Film"
msgstr ""
#. f1
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2743
+#: freeculture.xml:2739
msgid ""
"I am grateful to Peter DiMauro for pointing me to this extraordinary "
"history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, "
#. PAGE BREAK 67
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2741
+#: freeculture.xml:2737
msgid ""
"The film industry of Hollywood was built by fleeing pirates.<placeholder "
"type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2758
+#: freeculture.xml:2754
msgid "As one commentator tells one part of the story,"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:2762
+#: freeculture.xml:2758
msgid ""
"A January 1909 deadline was set for all companies to comply with the "
"license. By February, unlicensed outlaws, who referred to themselves as "
#. f2
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:2782
+#: freeculture.xml:2778
msgid ""
"J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion "
"Picture Producers (Cobblestone Entertainment, 2000) and expanded texts "
"M. Olin Program in Law and Economics, Working Paper No. 159."
msgstr ""
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><indexterm><primary>
+#: freeculture.xml:2789
+msgid "General Film Company"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:2790 freeculture.xml:3042 freeculture.xml:4170 freeculture.xml:9510
+msgid "Picker, Randal C."
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:2771
+#: freeculture.xml:2767
msgid ""
"With the country experiencing a tremendous expansion in the number of "
"nickelodeons, the Patents Company reacted to the independent movement by "
"effectively monopolized distribution with the acquisition of all U.S. film "
"exchanges, except for the one owned by the independent William Fox who "
"defied the Trust even after his license was revoked.<placeholder "
-"type=\"footnote\" id=\"0\"/>"
+"type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> "
+"<placeholder type=\"indexterm\" id=\"2\"/>"
msgstr ""
#. f3
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2802
+#: freeculture.xml:2800
msgid ""
"Marc Wanamaker, \"The First Studios,\" The Silents Majority, archived at "
"<ulink url=\"http://free-culture.cc/notes/\">link #12</ulink>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2796
+#: freeculture.xml:2794
msgid ""
"The Napsters of those days, the \"independents,\" were companies like "
"Fox. And no less than today, these independents were vigorously resisted. "
#. PAGE BREAK 68
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2812
+#: freeculture.xml:2810
msgid ""
"Of course, California grew quickly, and the effective enforcement of federal "
"law eventually spread west. But because patents grant the patent holder a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:2823
+#: freeculture.xml:2821
msgid "Recorded Music"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2825
+#: freeculture.xml:2823
msgid ""
"The record industry was born of another kind of piracy, though to see how "
"requires a bit of detail about the way the law regulates music."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2829
+#: freeculture.xml:2827
msgid ""
"At the time that Edison and Henri Fourneaux invented machines for "
"reproducing music (Edison the phonograph, Fourneaux the player piano), the "
"score, and I would also have to pay for the right to perform it publicly."
msgstr ""
-#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:2838 freeculture.xml:2963
+#. type: Content of: <book><chapter><sect1><sect2><
para><indexterm><primary>
+#: freeculture.xml:2836 freeculture.xml:2982
msgid "Beatles"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2840
+#: freeculture.xml:2838
msgid ""
"But what if I wanted to record \"Happy Mose,\" using Edison's phonograph or "
"Fourneaux's player piano? Here the law stumbled. It was clear enough that I "
#. PAGE BREAK 69
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2858
+#: freeculture.xml:2856
msgid ""
"The composers (and publishers) were none too happy about this capacity to "
"pirate. As South Dakota senator Alfred Kittredge put it,"
#. f4
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:2872
+#: freeculture.xml:2870
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 "
"and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:2865
+#: freeculture.xml:2863
msgid ""
"Imagine the injustice of the thing. A composer writes a song or an opera. A "
"publisher buys at great expense the rights to the same and copyrights "
#. f5
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2886
+#: freeculture.xml:2884
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
#. f6
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2892
+#: freeculture.xml:2890
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
#. f7
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2899
+#: freeculture.xml:2897
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of "
"John Philip Sousa, composer)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2882
+#: freeculture.xml:2880
msgid ""
"The innovators who developed the technology to record other people's works "
"were \"sponging upon the toil, the work, the talent, and genius of American "
#. f8
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2911
+#: freeculture.xml:2909
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 283–84 "
"(statement of Albert Walker, representative of the Auto-Music Perforating "
#. f9
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2922
+#: freeculture.xml:2920
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared "
"memorandum of Philip Mauro, general patent counsel of the American "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2904
+#: freeculture.xml:2902
msgid ""
"These arguments have familiar echoes in the wars of our day. So, too, do the "
"arguments on the other side. The innovators who developed the player piano "
#. PAGE BREAK 70
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2930
+#: freeculture.xml:2928
msgid ""
"The law soon resolved this battle in favor of the composer and the recording "
"artist. Congress amended the law to make sure that composers would be paid "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2946
+#: freeculture.xml:2944
msgid ""
"American law ordinarily calls this a \"compulsory license,\" but I will "
"refer to it as a \"statutory license.\" A statutory license is a license "
"statute."
msgstr ""
+#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
+#: freeculture.xml:2960 freeculture.xml:13765
+msgid "Grisham, John"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2955
+#: freeculture.xml:2953
msgid ""
"This is an exception within the law of copyright. When John Grisham writes a "
"novel, a publisher is free to publish that novel only if Grisham gives the "
"publisher permission. Grisham, in turn, is free to charge whatever he wants "
"for that permission. The price to publish Grisham is thus set by Grisham, "
"and copyright law ordinarily says you have no permission to use Grisham's "
-"work except with permission of Grisham."
+"work except with permission of Grisham. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. f10
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2978
+#: freeculture.xml:2976
msgid ""
"Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and "
"H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2965
+#: freeculture.xml:2963
msgid ""
"But the law governing recordings gives recording artists less. And thus, in "
"effect, the law subsidizes the recording industry through a kind of "
"wider range of musical creativity. Indeed, Congress was quite explicit about "
"its reasons for granting this right. Its fear was the monopoly power of "
"rights holders, and that that power would stifle follow-on "
-"creativity.<placeholder type=\"footnote\" id=\"0\"/>"
+"creativity.<placeholder type=\"footnote\" id=\"0\"/> <placeholder "
+"type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2986
+#: freeculture.xml:2985
msgid ""
"While the recording industry has been quite coy about this recently, "
"historically it has been quite a supporter of the statutory license for "
#. f11
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:3012
+#: freeculture.xml:3011
msgid ""
"Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on "
"the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8 March "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:2993
+#: freeculture.xml:2992
msgid ""
"the record producers argued vigorously that the compulsory license system "
"must be retained. They asserted that the record industry is a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3019
+#: freeculture.xml:3018
msgid ""
"By limiting the rights musicians have, by partially pirating their creative "
"work, the record producers, and the public, benefit."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:3025 freeculture.xml:4145
+#: freeculture.xml:3024 freeculture.xml:4135
msgid "Radio"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3027
+#: freeculture.xml:3026
msgid "Radio was also born of piracy."
msgstr ""
-#. f12
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:3041
+msgid "Hand, Learned"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3033
+#: freeculture.xml:3032
msgid ""
"See 17 United States Code, sections 106 and 110. At the beginning, record "
"companies printed \"Not Licensed for Radio Broadcast\" and other messages "
"Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, "
"\"From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and "
"the Propertization of Copyright,\" University of Chicago Law Review 70 "
-"(2003): 281."
+"(2003): 281. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
+"type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3030
+#: freeculture.xml:3029
msgid ""
"When a radio station plays a record on the air, that constitutes a \"public "
"performance\" of the composer's work.<placeholder type=\"footnote\" "
"id=\"0\"/> As I described above, the law gives the composer (or copyright "
-"holder) an exclusive right to public performances of his work. The radio "
+"holder) an exclusive right to public performances of his work. The radio "
"station thus owes the composer money for that performance."
msgstr ""
#. PAGE BREAK 72
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3052
+#: freeculture.xml:3049
msgid ""
"But when the radio station plays a record, it is not only performing a copy "
"of the composer's work. The radio station is also performing a copy of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3068
+#: freeculture.xml:3062
msgid ""
"But it doesn't. Under the law governing radio performances, the radio "
"station does not have to pay the recording artist. The radio station need "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3078
+#: freeculture.xml:3072
msgid ""
"This difference can be huge. Imagine you compose a piece of music. Imagine "
"it is your first. You own the exclusive right to authorize public "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3085
+#: freeculture.xml:3079
msgid ""
"Imagine she does sing your song, and imagine she likes it a lot. She then "
"decides to make a recording of your song, and it becomes a top hit. Under "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3094
+#: freeculture.xml:3088
msgid ""
"No doubt, one might argue that, on balance, the recording artists "
"benefit. On average, the promotion they get is worth more than the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:3104 freeculture.xml:4151
+#: freeculture.xml:3098 freeculture.xml:4141
msgid "Cable TV"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3107
+#: freeculture.xml:3101
msgid "Cable TV was also born of a kind of piracy."
msgstr ""
#. PAGE BREAK 73
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3110
+#: freeculture.xml:3104
msgid ""
"When cable entrepreneurs first started wiring communities with cable "
"television in 1948, most refused to pay broadcasters for the content that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:3120
+#: freeculture.xml:3114
msgid "Anello, Douglas"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:3121
+#: freeculture.xml:3115
msgid "Burdick, Quentin"
msgstr ""
#. f13
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3127
+#: freeculture.xml:3121
msgid ""
"Copyright Law Revision—CATV: Hearing on S. 1006 Before the "
"Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee "
#. f14
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3138
+#: freeculture.xml:3132
msgid ""
"Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, "
"general counsel of the National Association of Broadcasters)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3123
+#: freeculture.xml:3117
msgid ""
"Broadcasters and copyright owners were quick to attack this theft. Rosel "
"Hyde, chairman of the FCC, viewed the practice as a kind of \"unfair and "
#. f15
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:3149
+#: freeculture.xml:3143
msgid ""
"Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes, "
"general counsel of the Association of Maximum Service Telecasters, Inc.)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:3145
+#: freeculture.xml:3139
msgid ""
"The extraordinary thing about the CATV business is that it is the only "
"business I know of where the product that is being sold is not paid "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3155
+#: freeculture.xml:3149
msgid "Again, the demand of the copyright holders seemed reasonable enough:"
msgstr ""
#. f16
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:3164
+#: freeculture.xml:3158
msgid ""
"Copyright Law Revision—CATV, 169 (joint statement of Arthur B. Krim, "
"president of United Artists Corp., and John Sinn, president of United "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:3159
+#: freeculture.xml:3153
msgid ""
"All we are asking for is a very simple thing, that people who now take our "
"property for nothing pay for it. We are trying to stop piracy and I don't "
#. f17
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3175
+#: freeculture.xml:3169
msgid ""
"Copyright Law Revision—CATV, 209 (statement of Charlton Heston, "
"president of the Screen Actors Guild)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3171
+#: freeculture.xml:3165
msgid ""
"These were \"free-ride[rs],\" Screen Actor's Guild president Charlton Heston "
"said, who were \"depriving actors of compensation.\"<placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3180
+#: freeculture.xml:3174
msgid ""
"But again, there was another side to the debate. As Assistant Attorney "
"General Edwin Zimmerman put it,"
#. f18
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:3194
+#: freeculture.xml:3188
msgid ""
"Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, "
"acting assistant attorney general)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:3185
+#: freeculture.xml:3179
msgid ""
"Our point here is that unlike the problem of whether you have any copyright "
"protection at all, the problem here is whether copyright holders who are "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3200
+#: freeculture.xml:3194
msgid ""
"Copyright owners took the cable companies to court. Twice the Supreme Court "
"held that the cable companies owed the copyright owners nothing."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3204
+#: freeculture.xml:3198
msgid ""
"It took Congress almost thirty years before it resolved the question of "
"whether cable companies had to pay for the content they \"pirated.\" In the "
#. f19
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3221
+#: freeculture.xml:3215
msgid ""
"See, for example, National Music Publisher's Association, The Engine of Free "
"Expression: Copyright on the Internet—The Myth of Free Information, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3216
+#: freeculture.xml:3210
msgid ""
"These separate stories sing a common theme. If \"piracy\" means using value "
"from someone else's creative property without permission from that "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:3238
+#: freeculture.xml:3232
msgid "CHAPTER FIVE: \"Piracy\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:3240
+#: freeculture.xml:3234
msgid ""
"There is piracy of copyrighted material. Lots of it. This piracy comes in "
"many forms. The most significant is commercial piracy, the unauthorized "
#. PAGE BREAK 76
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:3248
+#: freeculture.xml:3242
msgid ""
"But as well as copy-shop piracy, there is another kind of \"taking\" that is "
"more directly related to the Internet. That taking, too, seems wrong to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:3258
+#: freeculture.xml:3252
msgid "Piracy I"
msgstr ""
#. f1
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3266
+#: freeculture.xml:3260
msgid ""
"See IFPI (International Federation of the Phonographic Industry), The "
"Recording Industry Commercial Piracy Report 2003, July 2003, available at "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3260
+#: freeculture.xml:3254
msgid ""
"All across the world, but especially in Asia and Eastern Europe, there are "
"businesses that do nothing but take others people's copyrighted content, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3277
+#: freeculture.xml:3271
msgid ""
"This is piracy plain and simple. Nothing in the argument of this book, nor "
"in the argument that most people make when talking about the subject of this "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3283
+#: freeculture.xml:3277
msgid ""
"Which is not to say that excuses and justifications couldn't be made for "
"it. We could, for example, remind ourselves that for the first one hundred "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3294
+#: freeculture.xml:3288
msgid ""
"That excuse isn't terribly strong. Technically, our law did not ban the "
"taking of foreign works. It explicitly limited itself to American "
#. PAGE BREAK 77
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3306
+#: freeculture.xml:3300
msgid ""
"True, these local rules have, in effect, been imposed upon these "
"countries. No country can be part of the world economy and choose not to "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3334 freeculture.xml:12238 freeculture.xml:12670 freeculture.xml:12677
+#: freeculture.xml:3328 freeculture.xml:12241 freeculture.xml:12674 freeculture.xml:12681
msgid "Drahos, Peter"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3320
+#: freeculture.xml:3314
msgid ""
"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the "
"Knowledge Economy? (New York: The New Press, 2003), 10–13, 209. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3315
+#: freeculture.xml:3309
msgid ""
"If a country is to be treated as a sovereign, however, then its laws are its "
"laws regardless of their source. The international law under which these "
#. f3
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3347
+#: freeculture.xml:3341
msgid ""
"For an analysis of the economic impact of copying technology, see Stan "
"Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3341
+#: freeculture.xml:3335
msgid ""
"Alternatively, we could try to excuse this piracy by noting that in any "
"case, it does no harm to the industry. The Chinese who get access to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3357
+#: freeculture.xml:3351
msgid ""
"This is often true (though I have friends who have purchased many thousands "
"of pirated DVDs who certainly have enough money to pay for the content they "
#. PAGE BREAK 78
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3370
+#: freeculture.xml:3364
msgid ""
"This argument is still very weak. However, although copyright is a property "
"right of a very special sort, it is a property right. Like all property "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3391
+#: freeculture.xml:3385
msgid ""
"Finally, we could try to excuse this piracy with the argument that the "
"piracy actually helps the copyright owner. When the Chinese \"steal\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3407
+#: freeculture.xml:3401
msgid ""
"This argument, too, is somewhat true. The addiction strategy is a good "
"one. Many businesses practice it. Some thrive because of it. Law students, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3416
+#: freeculture.xml:3410
msgid ""
"Still, the argument is not terribly persuasive. We don't give the alcoholic "
"a defense when he steals his first beer, merely because that will make it "
#. PAGE BREAK 79
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3434
+#: freeculture.xml:3428
msgid ""
"Thus, while I understand the pull of these justifications for piracy, and I "
"certainly see the motivation, in my view, in the end, these efforts at "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3444
+#: freeculture.xml:3438
msgid ""
"But as the examples from the four chapters that introduced this part "
"suggest, even if some piracy is plainly wrong, not all \"piracy\" is. Or at "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3453
+#: freeculture.xml:3447
msgid ""
"This doesn't mean that there are no questions raised by the latest piracy "
"concern, peer-to-peer file sharing. But it does mean that we need to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3459
+#: freeculture.xml:3453
msgid ""
"For (1) like the original Hollywood, p2p sharing escapes an overly "
"controlling industry; and (2) like the original recording industry, it "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3465
+#: freeculture.xml:3459
msgid ""
"These differences distinguish p2p sharing from true piracy. They should push "
"us to find a way to protect artists while enabling this sharing to survive."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:3472
+#: freeculture.xml:3466
msgid "Piracy II"
msgstr ""
#. f4
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3477
+#: freeculture.xml:3471
msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777)."
msgstr ""
#. PAGE BREAK 80
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3474
+#: freeculture.xml:3468
msgid ""
"The key to the \"piracy\" that the law aims to quash is a use that \"rob[s] "
"the author of [his] profit.\"<placeholder type=\"footnote\" id=\"0\"/> This "
"alternative to assure the author of his profit."
msgstr ""
-#. f5
+#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
+#: freeculture.xml:3493 freeculture.xml:8028
+msgid "Christensen, Clayton M."
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3493
+#: freeculture.xml:3485
msgid ""
"See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary "
"National Bestseller That Changed the Way We Do Business (New York: "
"with the most creative, paradigm-shifting uses for their own products. This "
"job usually falls to outside innovators, who reassemble existing technology "
"in inventive ways. For a discussion of Christensen's ideas, see Lawrence "
-"Lessig, Future, 89–92, 139."
+"Lessig, Future, 89–92, 139. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:3504
+#: freeculture.xml:3496
msgid "Fanning, Shawn"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3486
+#: freeculture.xml:3480
msgid ""
"Peer-to-peer sharing was made famous by Napster. But the inventors of the "
"Napster technology had not made any major technological innovations. Like "
#. f6
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3512
+#: freeculture.xml:3504
msgid ""
"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" San "
"Francisco Chronicle, 24 September 2002, A1; \"Rock 'n' Roll Suicide,\" New "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3507
+#: freeculture.xml:3499
msgid ""
"The result was spontaneous combustion. Launched in July 1999, Napster "
"amassed over 10 million users within nine months. After eighteen months, "
#. f7
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3536
+#: freeculture.xml:3526
msgid ""
"See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution "
"(September 2002), reporting that 28 percent of Americans aged twelve and "
#. f8
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3545
+#: freeculture.xml:3535
msgid ""
"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" New York "
"Times, 6 June 2003, A1."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3530
+#: freeculture.xml:3520
msgid ""
"According to a number of estimates, a huge proportion of Americans have "
"tasted file-sharing technology. A study by Ipsos-Insight in September 2002 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3556
+#: freeculture.xml:3546
msgid ""
"Some of this enjoying involves copyright infringement. Some of it does "
"not. And even among the part that is technically copyright infringement, "
#. PAGE BREAK 81
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3566
+#: freeculture.xml:3556
msgid ""
"File sharers share different kinds of content. We can divide these different "
"kinds into four types."
#. A.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3572
+#: freeculture.xml:3562
msgid ""
"There are some who use sharing networks as substitutes for purchasing "
"content. Thus, when a new Madonna CD is released, rather than buying the CD, "
#. B.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3585
+#: freeculture.xml:3575
msgid ""
"There are some who use sharing networks to sample music before purchasing "
"it. Thus, a friend sends another friend an MP3 of an artist he's not heard "
#. C.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3598
+#: freeculture.xml:3588
msgid ""
"There are many who use sharing networks to get access to copyrighted content "
"that is no longer sold or that they would not have purchased because the "
#. PAGE BREAK 82
#. D.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3619
+#: freeculture.xml:3609
msgid ""
"Finally, there are many who use sharing networks to get access to content "
"that is not copyrighted or that the copyright owner wants to give away."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3625
+#: freeculture.xml:3615
msgid "How do these different types of sharing balance out?"
msgstr ""
#. f9
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3633
+#: freeculture.xml:3623
msgid "See Liebowitz, Rethinking the Network Economy,148–49."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3628
+#: freeculture.xml:3618
msgid ""
"Let's start with some simple but important points. From the perspective of "
"the law, only type D sharing is clearly legal. From the perspective of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3645
+#: freeculture.xml:3635
msgid ""
"Whether on balance sharing is harmful depends importantly on how harmful "
"type A sharing is. Just as Edison complained about Hollywood, composers "
#. f10
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3663
+#: freeculture.xml:3653
msgid ""
"See Cap Gemini Ernst & Young, Technology Evolution and the Music "
"Industry's Business Model Crisis (2003), 3. This report describes the music "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3654
+#: freeculture.xml:3644
msgid ""
"While the numbers do suggest that sharing is harmful, how harmful is harder "
"to reckon. It has long been the recording industry's practice to blame "
#. f11
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3692
+#: freeculture.xml:3682
msgid "U.S. Congress, Copyright and Home Copying, 4."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3684
+#: freeculture.xml:3674
msgid ""
"Yet soon thereafter, and before Congress was given an opportunity to enact "
"regulation, MTV was launched, and the industry had a record turnaround. \"In "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3696
+#: freeculture.xml:3686
msgid ""
"But just because the industry was wrong before does not mean it is wrong "
"today. To evaluate the real threat that p2p sharing presents to the industry "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3706
+#: freeculture.xml:3696
msgid ""
"We start to answer this question by focusing on the net harm, from the "
"standpoint of the industry as a whole, that sharing networks cause. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3715
+#: freeculture.xml:3705
msgid ""
"Could that be true? Could the industry as a whole be gaining because of file "
"sharing? Odd as that might sound, the data about CD sales actually suggest "
#. f12
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3725
+#: freeculture.xml:3715
msgid ""
"See Recording Industry Association of America, 2002 Yearend Statistics, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3752
+#: freeculture.xml:3742
msgid "Black, Jane"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3749
+#: freeculture.xml:3739
msgid ""
"Jane Black, \"Big Music's Broken Record,\" BusinessWeek online, 13 February "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3721
+#: freeculture.xml:3711
msgid ""
"In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 "
"million to 803 million units; revenues fell 6.7 percent.<placeholder "
#. PAGE BREAK 84
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3766
+#: freeculture.xml:3756
msgid ""
"But let's assume the RIAA is right, and all of the decline in CD sales is "
"because of Internet sharing. Here's the rub: In the same period that the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3775
+#: freeculture.xml:3765
msgid ""
"There are too many different things happening at the same time to explain "
"these numbers definitively, but one conclusion is unavoidable: The recording "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3793
+#: freeculture.xml:3783
msgid ""
"These are the harms—alleged and perhaps exaggerated but, let's assume, "
"real. What of the benefits? File sharing may impose costs on the recording "
#. f15
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3806
+#: freeculture.xml:3796
msgid ""
"By one estimate, 75 percent of the music released by the major labels is no "
"longer in print. See Online Entertainment and Copyright Law—Coming "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3800
+#: freeculture.xml:3790
msgid ""
"One benefit is type C sharing—making available content that is "
"technically still under copyright but is no longer commercially available. "
#. f16
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3831
+#: freeculture.xml:3821
msgid ""
"While there are not good estimates of the number of used record stores in "
"existence, in 2002, there were 7,198 used book dealers in the United States, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3825
+#: freeculture.xml:3815
msgid ""
"In real space—long before the Internet—the market had a simple "
"response to this problem: used book and record stores. There are thousands "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:3852
+#: freeculture.xml:3842
msgid "Bernstein, Leonard"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3854
+#: freeculture.xml:3844
msgid ""
"Type C sharing, then, is very much like used book stores or used record "
"stores. It is different, of course, because the person making the content "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3867
+#: freeculture.xml:3857
msgid ""
"It may well be, all things considered, that it would be better if the "
"copyright owner got something from this trade. But just because it may well "
#. PAGE BREAK 86
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3875
+#: freeculture.xml:3865
msgid ""
"Finally, and perhaps most importantly, file-sharing networks enable type D "
"sharing to occur—the sharing of content that copyright owners want to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3892
+#: freeculture.xml:3882
msgid ""
"Likewise for work in the public domain: This sharing benefits society with "
"no legal harm to authors at all. If efforts to solve the problem of type A "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3898
+#: freeculture.xml:3888
msgid ""
"The point throughout is this: While the recording industry understandably "
"says, \"This is how much we've lost,\" we must also ask, \"How much has "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3905
+#: freeculture.xml:3895
msgid ""
"For unlike the piracy I described in the first section of this chapter, much "
"of the \"piracy\" that file sharing enables is plainly legal and good. And "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3918
+#: freeculture.xml:3908
msgid ""
"\"But isn't the war just a war against illegal sharing? Isn't the target "
"just what you call type A sharing?\""
#. f17
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3935
+#: freeculture.xml:3925
msgid ""
"See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 "
"(N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3922
+#: freeculture.xml:3912
msgid ""
"You would think. And we should hope. But so far, it is not. The effect of "
"the war purportedly on type A sharing alone has been felt far beyond that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3945
+#: freeculture.xml:3935
msgid ""
"If 99.4 percent is not good enough, then this is a war on file-sharing "
"technologies, not a war on copyright infringement. There is no way to assure "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3956
+#: freeculture.xml:3946
msgid ""
"Zero tolerance has not been our history. It has not produced the content "
"industry that we know today. The history of American law has been a process "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3967
+#: freeculture.xml:3957
msgid ""
"So, as we've seen, when \"mechanical reproduction\" threatened the interests "
"of composers, Congress balanced the rights of composers against the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3980
+#: freeculture.xml:3970
msgid ""
"Cable TV followed the pattern of record albums. When the courts rejected the "
"claim that cable broadcasters had to pay for the content they rebroadcast, "
#. PAGE BREAK 88
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3990
+#: freeculture.xml:3980
msgid ""
"This compromise, like the compromise affecting records and player pianos, "
"served two important goals—indeed, the two central goals of any "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:4008
+#: freeculture.xml:3998
msgid "Betamax"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4010
+#: freeculture.xml:4000
msgid ""
"In the same year that Congress struck this balance, two major producers and "
"distributors of film content filed a lawsuit against another technology, the "
#. PAGE BREAK 89
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4023
+#: freeculture.xml:4013
msgid ""
"There was something to Disney's and Universal's claim. Sony did decide to "
"design its machine to make it very simple to record television shows. It "
#. f18
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4045
+#: freeculture.xml:4035
msgid ""
"Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 "
"Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., "
#. f19
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4057
+#: freeculture.xml:4047
msgid "Copyright Infringements (Audio and Video Recorders), 475."
msgstr ""
#. f20
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4062
+#: freeculture.xml:4052
msgid ""
"Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, "
"(C.D. Cal., 1979)."
#. f21
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4073
+#: freeculture.xml:4063
msgid ""
"Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack "
"Valenti)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4038
+#: freeculture.xml:4028
msgid ""
"MPAA president Jack Valenti became the studios' most vocal champion. Valenti "
"called VCRs \"tapeworms.\" He warned, \"When there are 20, 30, 40 million of "
#. f22
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4089
+#: freeculture.xml:4079
msgid ""
"Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th "
"Cir. 1981)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4078
+#: freeculture.xml:4068
msgid ""
"It took eight years for this case to be resolved by the Supreme Court. In "
"the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in "
#. PAGE BREAK 90
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4094
+#: freeculture.xml:4084
msgid ""
"But the Supreme Court reversed the decision of the Ninth Circuit. And in "
"its reversal, the Court clearly articulated its understanding of when and "
#. f23
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:4113
+#: freeculture.xml:4103
msgid ""
"Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 "
"(1984)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:4103
+#: freeculture.xml:4093
msgid ""
"Sound policy, as well as history, supports our consistent deference to "
"Congress when major technological innovations alter the market for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4118
+#: freeculture.xml:4108
msgid ""
"Congress was asked to respond to the Supreme Court's decision. But as with "
"the plea of recording artists about radio broadcasts, Congress ignored the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><title>
-#: freeculture.xml:4127
+#: freeculture.xml:4117
msgid "Table"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4131
+#: freeculture.xml:4121
msgid "CASE"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4132
+#: freeculture.xml:4122
msgid "WHOSE VALUE WAS \"PIRATED\""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4133
+#: freeculture.xml:4123
msgid "RESPONSE OF THE COURTS"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4134
+#: freeculture.xml:4124
msgid "RESPONSE OF CONGRESS"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4139
+#: freeculture.xml:4129
msgid "Recordings"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4140
+#: freeculture.xml:4130
msgid "Composers"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4141 freeculture.xml:4153 freeculture.xml:4159
+#: freeculture.xml:4131 freeculture.xml:4143 freeculture.xml:4149
msgid "No protection"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4142 freeculture.xml:4154
+#: freeculture.xml:4132 freeculture.xml:4144
msgid "Statutory license"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4146
+#: freeculture.xml:4136
msgid "Recording artists"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4147
+#: freeculture.xml:4137
msgid "N/A"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4148 freeculture.xml:4160
+#: freeculture.xml:4138 freeculture.xml:4150
msgid "Nothing"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4152
+#: freeculture.xml:4142
msgid "Broadcasters"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4157
+#: freeculture.xml:4147
msgid "VCR"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4158
+#: freeculture.xml:4148
msgid "Film creators"
msgstr ""
-#. f24
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4170
+#: freeculture.xml:4160
msgid ""
"These are the most important instances in our history, but there are other "
"cases as well. The technology of digital audio tape (DAT), for example, was "
"U.S.C. §1001. Again, however, this regulation did not eliminate the "
"opportunity for free riding in the sense I've described. See Lessig, Future, "
"71. See also Picker, \"From Edison to the Broadcast Flag,\" University of "
-"Chicago Law Review 70 (2003): 293–96."
+"Chicago Law Review 70 (2003): 293–96. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4167
+#: freeculture.xml:4157
msgid ""
"In each case throughout our history, a new technology changed the way "
"content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each "
#. PAGE BREAK 91
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4186
+#: freeculture.xml:4177
msgid ""
"In none of these cases did either the courts or Congress eliminate all free "
"riding. In none of these cases did the courts or Congress insist that the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4198
+#: freeculture.xml:4189
msgid ""
"When you think across these examples, and the other examples that make up "
"the first four chapters of this section, this balance makes sense. Was Walt "
#. f25
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4215
+#: freeculture.xml:4206
msgid "Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4210
+#: freeculture.xml:4201
msgid ""
"We could answer yes to each of these questions, but our tradition has "
"answered no. In our tradition, as the Supreme Court has stated, copyright "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4227
+#: freeculture.xml:4218
msgid ""
"We should be doing the same thing today. The technology of the Internet is "
"changing quickly. The way people connect to the Internet (wires "
#. f26
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4254
+#: freeculture.xml:4245
msgid ""
"John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes "
"Past Efforts,\" New York Times, 22 September 2003, C3."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4244
+#: freeculture.xml:4235
msgid ""
"This is especially true when a new technology enables a vastly superior mode "
"of distribution. And this p2p has done. P2p technologies can be ideally "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4268
+#: freeculture.xml:4259
msgid ""
"\"It is our property,\" the warriors insist. \"And it should be protected "
"just as any other property is protected.\""
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:4276
+#: freeculture.xml:4267
msgid "\"PROPERTY\""
msgstr ""
#. PAGE BREAK 94
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4280
+#: freeculture.xml:4271
msgid ""
"The copyright warriors are right: A copyright is a kind of property. It can "
"be owned and sold, and the law protects against its theft. Ordinarily, the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4287
+#: freeculture.xml:4278
msgid ""
"But in ordinary language, to call a copyright a \"property\" right is a bit "
"misleading, for the property of copyright is an odd kind of property. "
#. f1
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:4312
+#: freeculture.xml:4303
msgid ""
"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The "
"Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4299
+#: freeculture.xml:4290
msgid ""
"The point is not just about the thingness of picnic tables versus ideas, "
"though that's an important difference. The point instead is that in the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4318
+#: freeculture.xml:4309
msgid ""
"The exceptions to free use are ideas and expressions within the reach of the "
"law of patent and copyright, and a few other domains that I won't discuss "
#. f2
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:4333
+#: freeculture.xml:4324
msgid ""
"As the legal realists taught American law, all property rights are "
"intangible. A property right is simply a right that an individual has "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4326
+#: freeculture.xml:4317
msgid ""
"But how, and to what extent, and in what form—the details, in other "
"words—matter. To get a good sense of how this practice of turning the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4346
+#: freeculture.xml:4337
msgid ""
"My strategy in doing this will be the same as my strategy in the preceding "
"part. I offer four stories to help put the idea of \"copyright material is "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:4360
+#: freeculture.xml:4351
msgid "CHAPTER SIX: Founders"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4362
+#: freeculture.xml:4353
msgid ""
"William Shakespeare wrote Romeo and Juliet in 1595. The play was first "
"published in 1597. It was the eleventh major play that Shakespeare had "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4378
+#: freeculture.xml:4369
msgid ""
"Jacob Tonson is typically remembered for his associations with prominent "
"eighteenth-century literary figures, especially John Dryden, and for his "
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4389
+#: freeculture.xml:4380
msgid ""
"Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: "
"Vanderbilt University Press, 1968), 151–52."
#. PAGE BREAK 97
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4374
+#: freeculture.xml:4365
msgid ""
"In 1774, almost 180 years after Romeo and Juliet was written, the "
"\"copy-right\" for the work was still thought by many to be the exclusive "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4415
+#: freeculture.xml:4406
msgid ""
"As Siva Vaidhyanathan nicely argues, it is erroneous to call this a "
"\"copyright law.\" See Vaidhyanathan, Copyrights and Copywrongs, 40."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4405
+#: freeculture.xml:4396
msgid ""
"Now, there's something puzzling about the year 1774 to anyone who knows a "
"little about copyright law. The better-known year in the history of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4423
+#: freeculture.xml:4414
msgid ""
"The reason is that the English hadn't yet agreed on what a \"copyright\" "
"was—indeed, no one had. At the time the English passed the Statute of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4436
+#: freeculture.xml:4427
msgid ""
"There was no positive law, but that didn't mean that there was no law. The "
"Anglo-American legal tradition looks to both the words of legislatures and "
#. PAGE BREAK 98
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4453
+#: freeculture.xml:4444
msgid ""
"This question was important to the publishers, or \"booksellers,\" as they "
"were called, because there was growing competition from foreign "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4465
+#: freeculture.xml:4456
msgid ""
"The Statute of Anne granted the author or \"proprietor\" of a book an "
"exclusive right to print that book. In an important limitation, however, and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4475
+#: freeculture.xml:4466
msgid ""
"Now, the thing to puzzle about for a moment is this: Why would Parliament "
"limit the exclusive right? Not why would they limit it to the particular "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4480
+#: freeculture.xml:4471
msgid ""
"For the booksellers, and the authors whom they represented, had a very "
"strong claim. Take Romeo and Juliet as an example: That play was written by "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4492
+#: freeculture.xml:4483
msgid ""
"The answer comes in two parts. We first need to see something special about "
"the notion of \"copyright\" that existed at the time of the Statute of "
#. PAGE BREAK 99
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4499
+#: freeculture.xml:4490
msgid ""
"First, about copyright. In the last three hundred years, we have come to "
"apply the concept of \"copyright\" ever more broadly. But in 1710, it wasn't "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4516
+#: freeculture.xml:4507
msgid ""
"So, for example, even if the copyright to Shakespeare's works were "
"perpetual, all that would have meant under the original meaning of the term "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4528
+#: freeculture.xml:4519
msgid ""
"Even that limited right was viewed with skepticism by the British. They had "
"had a long and ugly experience with \"exclusive rights,\" especially "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4544
+#: freeculture.xml:4535
msgid ""
"Thus the \"copy-right,\" when viewed as a monopoly right, was naturally "
"viewed as a right that should be limited. (However convincing the claim that "
#. f4
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4568
+#: freeculture.xml:4559
msgid ""
"Philip Wittenberg, The Protection and Marketing of Literary Property (New "
"York: J. Messner, Inc., 1937), 31."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4555
+#: freeculture.xml:4546
msgid ""
"Second, about booksellers. It wasn't just that the copyright was a "
"monopoly. It was also that it was a monopoly held by the booksellers. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4573
+#: freeculture.xml:4564
msgid ""
"Many believed the power the booksellers exercised over the spread of "
"knowledge was harming that spread, just at the time the Enlightenment was "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4582
+#: freeculture.xml:4573
msgid ""
"To balance this power, Parliament decided to increase competition among "
"booksellers, and the simplest way to do that was to spread the wealth of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4594
+#: freeculture.xml:4585
msgid ""
"When 1731 (1710 + 21) came along, however, the booksellers were getting "
"anxious. They saw the consequences of more competition, and like every "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4603
+#: freeculture.xml:4594
msgid ""
"Parliament rejected their requests. As one pamphleteer put it, in words that "
"echo today,"
#. f5
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:4618
+#: freeculture.xml:4609
msgid ""
"A Letter to a Member of Parliament concerning the Bill now depending in the "
"House of Commons, for making more effectual an Act in the Eighth Year of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:4608
+#: freeculture.xml:4599
msgid ""
"I see no Reason for granting a further Term now, which will not hold as well "
"for granting it again and again, as often as the Old ones Expire; so that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4629
+#: freeculture.xml:4620
msgid ""
"Having failed in Parliament, the publishers turned to the courts in a series "
"of cases. Their argument was simple and direct: The Statute of Anne gave "
#. f6
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4650
+#: freeculture.xml:4641
msgid ""
"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" Vanderbilt "
"Law Review 40 (1987): 28. For a wonderfully compelling account, see "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4644
+#: freeculture.xml:4635
msgid ""
"This was a clever argument, and one that had the support of some of the "
"leading jurists of the day. It also displayed extraordinary chutzpah. Until "
#. f7
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4662
+#: freeculture.xml:4653
msgid ""
"For a compelling account, see David Saunders, Authorship and Copyright "
"(London: Routledge, 1992), 62–69."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4658
+#: freeculture.xml:4649
msgid ""
"The booksellers' argument was not accepted without a fight. The hero of "
"this fight was a Scottish bookseller named Alexander Donaldson.<placeholder "
#. f8
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4672
+#: freeculture.xml:4663
msgid ""
"Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), "
"92."
#. f9
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4682
+#: freeculture.xml:4673
msgid "Ibid., 93."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4684
+#: freeculture.xml:4675
msgid "Erskine, Andrew"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4667
+#: freeculture.xml:4658
msgid ""
"Donaldson was an outsider to the London Conger. He began his career in "
"Edinburgh in 1750. The focus of his business was inexpensive reprints \"of "
#. f10
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4693
+#: freeculture.xml:4684
msgid ""
"Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting "
"Borwell)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4687
+#: freeculture.xml:4678
msgid ""
"When the London booksellers tried to shut down Donaldson's shop in Scotland, "
"he responded by moving his shop to London, where he sold inexpensive "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4701
+#: freeculture.xml:4692
msgid ""
"The London booksellers quickly brought suit to block \"piracy\" like "
"Donaldson's. A number of actions were successful against the \"pirates,\" "
#. f11
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4713
+#: freeculture.xml:4704
msgid ""
"Howard B. Abrams, \"The Historic Foundation of American Copyright Law: "
"Exploding the Myth of Common Law Copyright,\" Wayne Law Review 29 (1983): "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4706
+#: freeculture.xml:4697
msgid ""
"Millar was a bookseller who in 1729 had purchased the rights to James "
"Thomson's poem \"The Seasons.\" Millar complied with the requirements of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4719
+#: freeculture.xml:4710
msgid ""
"Astonishingly to modern lawyers, one of the greatest judges in English "
"history, Lord Mansfield, agreed with the booksellers. Whatever protection "
#. PAGE BREAK 103
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4730
+#: freeculture.xml:4721
msgid ""
"Considered as a matter of abstract justice—reasoning as if justice "
"were just a matter of logical deduction from first "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4744
+#: freeculture.xml:4735
msgid ""
"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."
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:4747
+#: freeculture.xml:4738
msgid "Beckett, Thomas"
msgstr ""
#. f12
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4753
+#: freeculture.xml:4744
msgid "Ibid., 1156."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4749
+#: freeculture.xml:4740
msgid ""
"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 Thomas "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4763
+#: freeculture.xml:4754
msgid ""
"As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of "
"attention throughout Britain. Donaldson's lawyers argued that whatever "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4773
+#: freeculture.xml:4764
msgid ""
"The House of Lords was an odd institution. Legal questions were presented to "
"the House and voted upon first by the \"law lords,\" members of special "
#. PAGE BREAK 104
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4780
+#: freeculture.xml:4771
msgid ""
"The reports about the law lords' votes are mixed. On some counts, it looks "
"as if perpetual copyright prevailed. But there is no ambiguity about how the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4798
+#: freeculture.xml:4789
msgid "Bacon, Francis"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4799
+#: freeculture.xml:4790
msgid "Bunyan, John"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4800
+#: freeculture.xml:4791
msgid "Johnson, Samuel"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4801
+#: freeculture.xml:4792
msgid "Milton, John"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4802
+#: freeculture.xml:4793
msgid "Shakespeare, William"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4790
+#: freeculture.xml:4781
msgid ""
"\"The public domain.\" Before the case of Donaldson v. Beckett, there was no "
"clear idea of a public domain in England. Before 1774, there was a strong "
#. f13
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4815
+#: freeculture.xml:4806
msgid "Rose, 97."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4805
+#: freeculture.xml:4796
msgid ""
"It is hard for us to imagine, but this decision by the House of Lords fueled "
"an extraordinarily popular and political reaction. In Scotland, where most "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4819
+#: freeculture.xml:4810
msgid ""
"In London, however, at least among publishers, the reaction was equally "
"strong in the opposite direction. The Morning Chronicle reported:"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:4825
+#: freeculture.xml:4816
msgid ""
"By the above decision . . . near 200,000 pounds worth of what was honestly "
"purchased at public sale, and which was yesterday thought property is now "
#. PAGE BREAK 105
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4840
+#: freeculture.xml:4831
msgid ""
"\"Ruined\" is a bit of an exaggeration. But it is not an exaggeration to say "
"that the change was profound. The decision of the House of Lords meant that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4860
+#: freeculture.xml:4851
msgid ""
"At least, this was the rule in a world where the Parliament is antimonopoly, "
"resistant to the protectionist pleas of publishers. In a world where the "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:4868
+#: freeculture.xml:4859
msgid "CHAPTER SEVEN: Recorders"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4870
+#: freeculture.xml:4861
msgid ""
"Jon Else is a filmmaker. He is best known for his documentaries and has been "
"very successful in spreading his art. He is also a teacher, and as a teacher "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4877
+#: freeculture.xml:4868
msgid ""
"Else worked on a documentary that I was involved in. At a break, he told me "
"a story about the freedom to create with film in America today."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4882
+#: freeculture.xml:4873
msgid ""
"In 1990, Else was working on a documentary about Wagner's Ring Cycle. The "
"focus was stagehands at the San Francisco Opera. Stagehands are a "
#. PAGE BREAK 107
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4890
+#: freeculture.xml:4881
msgid ""
"During one of the performances, Else was shooting some stagehands playing "
"checkers. In one corner of the room was a television set. Playing on the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4899
+#: freeculture.xml:4890
msgid ""
"Years later, when he finally got funding to complete the film, Else "
"attempted to clear the rights for those few seconds of The Simpsons. For of "
"or some other privilege applies."
msgstr ""
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:4902 freeculture.xml:4910
+msgid "Gracie Films"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4906
+#: freeculture.xml:4897
msgid ""
"Else called Simpsons creator Matt Groening's office to get permission. "
"Groening approved the shot. The shot was a four-and-a-halfsecond image on a "
"tiny television set in the corner of the room. How could it hurt? Groening "
"was happy to have it in the film, but he told Else to contact Gracie Films, "
-"the company that produces the program."
+"the company that produces the program. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4913
+#: freeculture.xml:4905
msgid ""
"Gracie Films was okay with it, too, but they, like Groening, wanted to be "
"careful. So they told Else to contact Fox, Gracie's parent company. Else "
"called Fox and told them about the clip in the corner of the one room shot "
"of the film. Matt Groening had already given permission, Else said. He was "
-"just confirming the permission with Fox."
+"just confirming the permission with Fox. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4920
+#: freeculture.xml:4913
msgid ""
"Then, as Else told me, \"two things happened. First we discovered . . . that "
"Matt Groening doesn't own his own creation—or at least that someone "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4928
+#: freeculture.xml:4921
msgid ""
"Else was certain there was a mistake. He worked his way up to someone he "
"thought was a vice president for licensing, Rebecca Herrera. He explained "
#. PAGE BREAK 108
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4936
+#: freeculture.xml:4929
msgid ""
"\"I wanted to make sure I had my facts straight,\" he told me. \"Yes, you "
"have your facts straight,\" she said. It would cost $10,000 to use the clip "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4948
+#: freeculture.xml:4941
msgid ""
"Else didn't have the money to buy the right to replay what was playing on "
"the television backstage at the San Francisco Opera. To reproduce this "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4956
+#: freeculture.xml:4949
msgid ""
"There's no doubt that someone, whether Matt Groening or Fox, owns the "
"copyright to The Simpsons. That copyright is their property. To use that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4967
+#: freeculture.xml:4960
msgid ""
"For example, \"public performance\" is a use of The Simpsons that the "
"copyright owner gets to control. If you take a selection of favorite "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4979
+#: freeculture.xml:4972
msgid ""
"For an excellent argument that such use is \"fair use,\" but that lawyers "
"don't permit recognition that it is \"fair use,\" see Richard A. Posner with "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4976
+#: freeculture.xml:4969
msgid ""
"But when lawyers hear this story about Jon Else and Fox, their first thought "
"is \"fair use.\"<placeholder type=\"footnote\" id=\"0\"/> Else's use of just "
#. PAGE BREAK 109
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4991
+#: freeculture.xml:4984
msgid "So I asked Else why he didn't just rely upon \"fair use.\" Here's his reply:"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:4995
+#: freeculture.xml:4988
msgid ""
"The Simpsons fiasco was for me a great lesson in the gulf between what "
"lawyers find irrelevant in some abstract sense, and what is crushingly "
#. 1.
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5005
+#: freeculture.xml:4998
msgid ""
"Before our films can be broadcast, the network requires that we buy Errors "
"and Omissions insurance. The carriers require a detailed \"visual cue "
#. 2.
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5013
+#: freeculture.xml:5006
msgid ""
"I probably never should have asked Matt Groening in the first place. But I "
"knew (at least from folklore) that Fox had a history of tracking down and "
#. 3.
#. PAGE BREAK 110
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5025
+#: freeculture.xml:5018
msgid ""
"I did, in fact, speak with one of your colleagues at Stanford Law School "
". . . who confirmed that it was fair use. He also confirmed that Fox would "
#. 4.
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5035
+#: freeculture.xml:5028
msgid ""
"The question of fair use usually comes up at the end of the project, when we "
"are up against a release deadline and out of money."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5042
+#: freeculture.xml:5035
msgid ""
"In theory, fair use means you need no permission. The theory therefore "
"supports free culture and insulates against a permission culture. But in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5050
+#: freeculture.xml:5043
msgid ""
"This practice shows just how far the law has come from its "
"eighteenth-century roots. The law was born as a shield to protect "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:5059
+#: freeculture.xml:5052
msgid "CHAPTER EIGHT: Transformers"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5060
+#: freeculture.xml:5053
msgid "Allen, Paul"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:5061 freeculture.xml:5069 freeculture.xml:5080 freeculture.xml:5095 freeculture.xml:5104 freeculture.xml:5109 freeculture.xml:5161 freeculture.xml:5177 freeculture.xml:5200 freeculture.xml:5262 freeculture.xml:9613
+#: freeculture.xml:5054 freeculture.xml:5062 freeculture.xml:5073 freeculture.xml:5088 freeculture.xml:5097 freeculture.xml:5102 freeculture.xml:5154 freeculture.xml:5170 freeculture.xml:5193 freeculture.xml:5255 freeculture.xml:9612
msgid "Alben, Alex"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5063
+#: freeculture.xml:5056
msgid ""
"In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an "
"innovative company founded by Microsoft cofounder Paul Allen to develop "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5071
+#: freeculture.xml:5064
msgid ""
"Alben had a special interest in new technology. He was intrigued by the "
"emerging market for CD-ROM technology—not to distribute film, but to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5082
+#: freeculture.xml:5075
msgid ""
"At that time, Eastwood had made more than fifty films, as an actor and as a "
"director. Alben began with a series of interviews with Eastwood, asking him "
#. PAGE BREAK 112
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5089
+#: freeculture.xml:5082
msgid ""
"That alone would not have made a very interesting product, so Starwave "
"wanted to add content from the movies in Eastwood's career: posters, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5097
+#: freeculture.xml:5090
msgid ""
"Then Alben and his team decided to include actual film clips. \"Our goal was "
"that we were going to have a clip from every one of Eastwood's films,\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5106
+#: freeculture.xml:5099
msgid ""
"Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, "
"\"Well, what will it take?\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:5122
+#: freeculture.xml:5115
msgid "artists"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><secondary>
-#: freeculture.xml:5123
+#: freeculture.xml:5116
msgid "publicity rights on images of"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5117
+#: freeculture.xml:5110
msgid ""
"Technically, the rights that Alben had to clear were mainly those of "
"publicity—rights an artist has to control the commercial exploitation "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5111
+#: freeculture.xml:5104
msgid ""
"Alben replied, \"Well, we're going to have to clear rights from everyone who "
"appears in these films, and the music and everything else that we want to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5128
+#: freeculture.xml:5121
msgid ""
"The problem was that neither Alben nor Slade had any idea what clearing "
"those rights would mean. Every actor in each of the films could have a claim "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5135
+#: freeculture.xml:5128
msgid ""
"I asked Alben how he dealt with the problem. With an obvious pride in his "
"resourcefulness that obscured the obvious bizarreness of his tale, Alben "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5141
+#: freeculture.xml:5134
msgid ""
"So we very mechanically went about looking up the film clips. We made some "
"artistic decisions about what film clips to include—of course we were "
#. PAGE BREAK 113
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5150
+#: freeculture.xml:5143
msgid ""
"We decided that it would be fair if we offered them the dayplayer rate for "
"the right to reuse that performance. We're talking about a clip of less than "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5163
+#: freeculture.xml:5156
msgid ""
"Some actors were glad to help—Donald Sutherland, for example, followed "
"up himself to be sure that the rights had been cleared. Others were "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5174
+#: freeculture.xml:5167
msgid ""
"It was one year later—\"and even then we weren't sure whether we were "
"totally in the clear.\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5179
+#: freeculture.xml:5172
msgid ""
"Alben is proud of his work. The project was the first of its kind and the "
"only time he knew of that a team had undertaken such a massive project for "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5185
+#: freeculture.xml:5178
msgid ""
"Everyone thought it would be too hard. Everyone just threw up their hands "
"and said, \"Oh, my gosh, a film, it's so many copyrights, there's the music, "
#. PAGE BREAK 114
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5197
+#: freeculture.xml:5190
msgid ""
"And no doubt, the product itself was exceptionally good. Eastwood loved it, "
"and it sold very well."
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5201
+#: freeculture.xml:5194
msgid "Drucker, Peter"
msgstr ""
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5209
+#: freeculture.xml:5202
msgid ""
"U.S. Department of Commerce Office of Acquisition Management, Seven Steps to "
"Performance-Based Services Acquisition, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5203
+#: freeculture.xml:5196
msgid ""
"But I pressed Alben about how weird it seems that it would have to take a "
"year's work simply to clear rights. No doubt Alben had done this "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5217
+#: freeculture.xml:5210
msgid ""
"For, as he acknowledged, \"very few . . . have the time and resources, and "
"the will to do this,\" and thus, very few such works would ever be "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5225
+#: freeculture.xml:5218
msgid ""
"I don't think so. When an actor renders a performance in a movie, he or she "
"gets paid very well. . . . And then when 30 seconds of that performance is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5233
+#: freeculture.xml:5226
msgid ""
"Or at least, is this how the artist should be compensated? Would it make "
"sense, I asked, for there to be some kind of statutory license that someone "
#. PAGE BREAK 115
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5243
+#: freeculture.xml:5236
msgid ""
"Absolutely. I think that if there were some fair-licensing "
"mechanism—where you weren't subject to hold-ups and you weren't "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5264
+#: freeculture.xml:5257
msgid ""
"Alben worked for a big company. His company was backed by some of the "
"richest investors in the world. He therefore had authority and access that "
#. PAGE BREAK 116
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5281
+#: freeculture.xml:5274
msgid ""
"I've seen the flash of recognition when people get this point, but only a "
"few times. The first was at a conference of federal judges in California. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5291
+#: freeculture.xml:5284
msgid ""
"The video was a brilliant collage of film from every period in the twentieth "
"century, all framed around the idea of a 60 Minutes episode. The execution "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5296
+#: freeculture.xml:5289
msgid "Nimmer, David"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5298
+#: freeculture.xml:5291
msgid ""
"When the lights came up, I looked over to my copanelist, David Nimmer, "
"perhaps the leading copyright scholar and practitioner in the nation. He had "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5305
+#: freeculture.xml:5298
msgid "Boies, David"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5307
+#: freeculture.xml:5300
msgid ""
"For of course, the two brilliantly talented creators who made this film "
"hadn't done what Alben did. They hadn't spent a year clearing the rights to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5322
+#: freeculture.xml:5315
msgid ""
"We live in a \"cut and paste\" culture enabled by technology. Anyone "
"building a presentation knows the extraordinary freedom that the cut and "
"your presentation."
msgstr ""
-#. PAGE BREAK 117
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:5331
+msgid "Camp Chaos"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5329
+#: freeculture.xml:5322
msgid ""
"But presentations are just a tiny beginning. Using the Internet and its "
"archives, musicians are able to string together mixes of sound never before "
"politicians and blends them with music to create biting political "
"commentary. A site called Camp Chaos has produced some of the most biting "
"criticism of the record industry that there is through the mixing of Flash! "
-"and music."
+"and music. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5340
+#: freeculture.xml:5334
msgid ""
"All of these creations are technically illegal. Even if the creators wanted "
"to be \"legal,\" the cost of complying with the law is impossibly "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5347
+#: freeculture.xml:5341
msgid ""
"To some, these stories suggest a solution: Let's alter the mix of rights so "
"that people are free to build upon our culture. Free to add or mix as they "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5362
+#: freeculture.xml:5356
msgid ""
"Who could possibly object to this? And what reason would there be for "
"objecting? We're talking about work that is not now being made; which if "
#. PAGE BREAK 118
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5368
+#: freeculture.xml:5362
msgid ""
"In February 2003, DreamWorks studios announced an agreement with Mike Myers, "
"the comic genius of Saturday Night Live and Austin Powers. According to the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5380
+#: freeculture.xml:5374
msgid ""
"The announcement called this \"film sampling.\" As Myers explained, \"Film "
"Sampling is an exciting way to put an original spin on existing films and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5389
+#: freeculture.xml:5383
msgid ""
"Spielberg is right. Film sampling by Myers will be brilliant. But if you "
"don't think about it, you might miss the truly astonishing point about this "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5399
+#: freeculture.xml:5393
msgid ""
"This privilege becomes reserved for two sorts of reasons. The first "
"continues the story of the last chapter: the vagueness of \"fair use.\" Much "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:5414
+#: freeculture.xml:5408
msgid "CHAPTER NINE: Collectors"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5416
+#: freeculture.xml:5410
msgid ""
"In April 1996, millions of \"bots\"—computer codes designed to "
"\"spider,\" or automatically search the Internet and copy "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5425
+#: freeculture.xml:5419
msgid ""
"By October 2001, the bots had collected more than five years of copies. And "
"at a small announcement in Berkeley, California, the archive that these "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5433
+#: freeculture.xml:5427
msgid ""
"This is the thing about the Internet that Orwell would have appreciated. In "
"the dystopia described in 1984, old newspapers were constantly updated to "
#. PAGE BREAK 120
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5441
+#: freeculture.xml:5435
msgid ""
"Thousands of workers constantly reedited the past, meaning there was no way "
"ever to know whether the story you were reading today was the story that was "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5446
+#: freeculture.xml:5440
msgid ""
"It's the same with the Internet. If you go to a Web page today, there's no "
"way for you to know whether the content you are reading is the same as the "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5459
+#: freeculture.xml:5453
msgid ""
"The temptations remain, however. Brewster Kahle reports that the White House "
"changes its own press releases without notice. A May 13, 2003, press release "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5453
+#: freeculture.xml:5447
msgid ""
"Until the Way Back Machine, at least. With the Way Back Machine, and the "
"Internet Archive underlying it, you can see what the Internet was. You have "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5467
+#: freeculture.xml:5461
msgid ""
"We take it for granted that we can go back to see what we remember "
"reading. Think about newspapers. If you wanted to study the reaction of your "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5478
+#: freeculture.xml:5472
msgid ""
"It is said that those who fail to remember history are doomed to repeat "
"it. That's not quite correct. We all forget history. The key is whether we "
#. PAGE BREAK 121
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5487
+#: freeculture.xml:5481
msgid ""
"The Internet was an exception to this presumption. Until the Internet "
"Archive, there was no way to go back. The Internet was the quintessentially "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5498
+#: freeculture.xml:5492
msgid ""
"Brewster Kahle is the founder of the Internet Archive. He was a very "
"successful Internet entrepreneur after he was a successful computer "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5508
+#: freeculture.xml:5502
msgid ""
"The Way Back Machine is the largest archive of human knowledge in human "
"history. At the end of 2002, it held \"two hundred and thirty terabytes of "
#. PAGE BREAK 122
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5526
+#: freeculture.xml:5520
msgid ""
"Do you remember when Dan Quayle was interacting with Murphy Brown? Remember "
"that back and forth surreal experience of a politician interacting with a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5538
+#: freeculture.xml:5532
msgid ""
"Why is that? Why is it that the part of our culture that is recorded in "
"newspapers remains perpetually accessible, while the part that is recorded "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5546
+#: freeculture.xml:5540
msgid ""
"In part, this is because of the law. Early in American copyright law, "
"copyright owners were required to deposit copies of their work in "
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5563
+#: freeculture.xml:5557
msgid ""
"Doug Herrick, \"Toward a National Film Collection: Motion Pictures at the "
"Library of Congress,\" Film Library Quarterly 13 nos. 2–3 (1980): 5; "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5554
+#: freeculture.xml:5548
msgid ""
"These rules applied to film as well. But in 1915, the Library of Congress "
"made an exception for film. Film could be copyrighted so long as such "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5571
+#: freeculture.xml:5565
msgid ""
"The same is generally true about television. Television broadcasts were "
"originally not copyrighted—there was no way to capture the broadcasts, "
#. PAGE BREAK 123
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5582
+#: freeculture.xml:5576
msgid ""
"Kahle was eager to correct this. Before September 11, 2001, he and his "
"allies had started capturing television. They selected twenty stations from "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5593
+#: freeculture.xml:5587
msgid ""
"Kahle had the same idea with film. Working with Rick Prelinger, whose "
"archive of film includes close to 45,000 \"ephemeral films\" (meaning films "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5611
+#: freeculture.xml:5605
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:5619
+#: freeculture.xml:5613
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:5627
+#: freeculture.xml:5621
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:5639
+#: freeculture.xml:5633
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:5651
+#: freeculture.xml:5645
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:5648
+#: freeculture.xml:5642
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:5665
+#: freeculture.xml:5659
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:5676
+#: freeculture.xml:5670
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:5688
+#: freeculture.xml:5682
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:5696
+#: freeculture.xml:5690
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:5703
+#: freeculture.xml:5697
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:5717
+#: freeculture.xml:5711
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:5732
+#: freeculture.xml:5726
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:5742
+#: freeculture.xml:5736
msgid "CHAPTER TEN: \"Property\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5751
+#: freeculture.xml:5745
msgid "Johnson, Lyndon"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5744
+#: freeculture.xml:5738
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>
-#: freeculture.xml:5754
+#: freeculture.xml:5748
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:5767
+#: freeculture.xml:5761
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:5779
+#: freeculture.xml:5773
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:5788
+#: freeculture.xml:5782
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:5802
+#: freeculture.xml:5796
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:5793
+#: freeculture.xml:5787
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:5812
+#: freeculture.xml:5806
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:5823
+#: freeculture.xml:5817
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:5838
+#: freeculture.xml:5832
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:5835
+#: freeculture.xml:5829
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:5853
+#: freeculture.xml:5847
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:5861
+#: freeculture.xml:5855
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:5876
+#: freeculture.xml:5870
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:5888
+#: freeculture.xml:5882
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:5899
+#: freeculture.xml:5893
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:5914
+#: freeculture.xml:5908
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:5923
+#: freeculture.xml:5917
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:5935
+#: freeculture.xml:5929
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:5942
+#: freeculture.xml:5936
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:5956
+#: freeculture.xml:5950
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:5965
+#: freeculture.xml:5959
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:5966 freeculture.xml:6140 freeculture.xml:6433
+#: freeculture.xml:5960 freeculture.xml:6134 freeculture.xml:6430
msgid "<graphic fileref=\"images/1331.png\"></graphic>"
msgstr ""
#. PAGE BREAK 133
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5969
+#: freeculture.xml:5963
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:5985
+#: freeculture.xml:5979
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:5996
+#: freeculture.xml:5990
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:6006
+#: freeculture.xml:6000
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:6023
+#: freeculture.xml:6017
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:6029
+#: freeculture.xml:6023
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:6038
+#: freeculture.xml:6032
msgid "driving speed, constraints on"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:6041
+#: freeculture.xml:6035
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:6059
+#: freeculture.xml:6053
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:6055
+#: freeculture.xml:6049
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:6083
+#: freeculture.xml:6077
msgid "Law has a special role in affecting the three."
msgstr ""
#. type: Content of: <book><chapter><sect1><figure>
-#: freeculture.xml:6084
+#: freeculture.xml:6078
msgid "<graphic fileref=\"images/1361.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6123
+#: freeculture.xml:6117
msgid "Commons, John R."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:6095
+#: freeculture.xml:6089
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:6087
+#: freeculture.xml:6081
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:6127
+#: freeculture.xml:6121
msgid "Why Hollywood Is Right"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6129
+#: freeculture.xml:6123
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:6135
+#: freeculture.xml:6129
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:6139 freeculture.xml:6432
+#: freeculture.xml:6133 freeculture.xml:6429
msgid "Copyright's regulation before the Internet."
msgstr ""
#. PAGE BREAK 136
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6144
+#: freeculture.xml:6138
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:6156
+#: freeculture.xml:6150
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:6164
+#: freeculture.xml:6158
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:6174
+#: freeculture.xml:6168
msgid "effective state of anarchy after the Internet."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6175
+#: freeculture.xml:6169
msgid "<graphic fileref=\"images/1381.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6178
+#: freeculture.xml:6172
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:6190
+#: freeculture.xml:6184
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:6207
+#: freeculture.xml:6201
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:6223
+#: freeculture.xml:6217
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:6215
+#: freeculture.xml:6209
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:6255
+#: freeculture.xml:6249
msgid "Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71."
msgstr ""
+#. type: Content of: <book><chapter><para><indexterm><primary>
+#: freeculture.xml:6258 freeculture.xml:12648
+msgid "Gates, Bill"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6245
+#: freeculture.xml:6239
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, "
"radio.) A world in which competitors with new ideas must fight not only the "
"market but also the government is a world in which competitors with new "
"ideas will not succeed. It is a world of stasis and increasingly "
-"concentrated stagnation. It is the Soviet Union under Brezhnev."
+"concentrated stagnation. It is the Soviet Union under Brezhnev. "
+"<placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6266
+#: freeculture.xml:6261
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:6276
+#: freeculture.xml:6271
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:6290
+#: freeculture.xml:6285
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:6299
+#: freeculture.xml:6294
msgid "Here's the metaphor that will capture the argument to follow."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6302
+#: freeculture.xml:6297
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6309
+#: freeculture.xml:6304
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 "
"important and valuable and probably saved lives, possibly millions."
msgstr ""
-#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:6313
+#. type: Content of: <book><chapter><sect1><sect2><
para><indexterm><primary>
+#: freeculture.xml:6308 freeculture.xml:6314
msgid "Carson, Rachel"
msgstr ""
-#. type: Content of: <book><chapter><sect1><sect2><para>
+#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
#: freeculture.xml:6315
+msgid "Silent Sprint (Carson)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6310
msgid ""
"But in 1962, Rachel Carson published Silent Spring, which argued that DDT, "
"whatever its primary benefits, was also having unintended environmental "
"consequences. Birds were losing the ability to reproduce. Whole chains of "
-"the ecology were being destroyed."
+"the ecology were being destroyed. <placeholder type=\"indexterm\" "
+"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6321
+#: freeculture.xml:6318
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:6334
+#: freeculture.xml:6331
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:6330
+#: freeculture.xml:6327
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:6351
+#: freeculture.xml:6348
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:6362
+#: freeculture.xml:6359
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:6368
+#: freeculture.xml:6365
msgid "Beginnings"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6370
+#: freeculture.xml:6367
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:6376
+#: freeculture.xml:6373
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:6381
+#: freeculture.xml:6378
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:6394
+#: freeculture.xml:6391
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:6403
+#: freeculture.xml:6400
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:6418
+#: freeculture.xml:6415
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:6425
+#: freeculture.xml:6422
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:6436
+#: freeculture.xml:6433
msgid "We will end here:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6439
+#: freeculture.xml:6436
msgid ""Copyright" today."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6440
+#: freeculture.xml:6437
msgid "<graphic fileref=\"images/1442.png\"></graphic>"
msgstr ""
#. PAGE BREAK 144
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6443
+#: freeculture.xml:6440
msgid "Let me explain how."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6448
+#: freeculture.xml:6445
msgid "Law: Duration"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6463
+#: freeculture.xml:6460
msgid "Crosskey, William W."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6458
+#: freeculture.xml:6455
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:6450
+#: freeculture.xml:6447
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:6473
+#: freeculture.xml:6470
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:6481
+#: freeculture.xml:6478
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:6496
+#: freeculture.xml:6493
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:6488
+#: freeculture.xml:6485
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:6512
+#: freeculture.xml:6509
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:6527
+#: freeculture.xml:6524
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:6521
+#: freeculture.xml:6518
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:6542
+#: freeculture.xml:6539
msgid "See Ringer, ch. 9, n. 2."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6538
+#: freeculture.xml:6535
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:6550
+#: freeculture.xml:6547
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:6558
+#: freeculture.xml:6555
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:6568
+#: freeculture.xml:6565
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:6579
+#: freeculture.xml:6576
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:6589
+#: freeculture.xml:6586
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:6599
+#: freeculture.xml:6596
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:6616
+#: freeculture.xml:6613
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:6608
+#: freeculture.xml:6605
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:6625
+#: freeculture.xml:6622
msgid "Law: Scope"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6627
+#: freeculture.xml:6624
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:6633
+#: freeculture.xml:6630
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:6646
+#: freeculture.xml:6643
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:6661
+#: freeculture.xml:6658
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:6674
+#: freeculture.xml:6671
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:6688
+#: freeculture.xml:6685
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:6696
+#: freeculture.xml:6693
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:6707
+#: freeculture.xml:6704
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:6700
+#: freeculture.xml:6697
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:6720
+#: freeculture.xml:6717
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:6730
+#: freeculture.xml:6727
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:6739
+#: freeculture.xml:6736
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:6744
+#: freeculture.xml:6741
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:6758
+#: freeculture.xml:6755
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 "
#. f14
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6781
+#: freeculture.xml:6778
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:6771
+#: freeculture.xml:6768
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:6796
+#: freeculture.xml:6793
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:6790
+#: freeculture.xml:6787
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:6807
+#: freeculture.xml:6804
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:6816
+#: freeculture.xml:6813
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:6824
+#: freeculture.xml:6821
msgid "Law and Architecture: Reach"
msgstr ""
#. f16
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6831
+#: freeculture.xml:6828
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:6826
+#: freeculture.xml:6823
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:6843
+#: freeculture.xml:6840
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:6859
+#: freeculture.xml:6856
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:6854
+#: freeculture.xml:6851
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:6870
+#: freeculture.xml:6867
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:6874
+#: freeculture.xml:6871
msgid "All potential uses of a book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6875
+#: freeculture.xml:6872
msgid "<graphic fileref=\"images/1521.png\"></graphic>"
msgstr ""
#. PAGE BREAK 152
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6879
+#: freeculture.xml:6876
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:6892
+#: freeculture.xml:6889
msgid "Examples of unregulated uses of a book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6893
+#: freeculture.xml:6890
msgid "<graphic fileref=\"images/1531.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6896
+#: freeculture.xml:6893
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:6904
+#: freeculture.xml:6901
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:6909
+#: freeculture.xml:6906
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:6910
+#: freeculture.xml:6907
msgid "<graphic fileref=\"images/1541.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6913
+#: freeculture.xml:6910
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:6924
+#: freeculture.xml:6921
msgid "Unregulated copying considered "fair uses.""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6925
+#: freeculture.xml:6922
msgid "<graphic fileref=\"images/1542.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6929
+#: freeculture.xml:6926
msgid ""
"Uses that before were presumptively unregulated are now presumptively "
"regulated."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6930
+#: freeculture.xml:6927
msgid "<graphic fileref=\"images/1551.png\"></graphic>"
msgstr ""
#. PAGE BREAK 154
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6934
+#: freeculture.xml:6931
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:6942
+#: freeculture.xml:6939
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:6939
+#: freeculture.xml:6936
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:6963
+#: freeculture.xml:6960
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:6976
+#: freeculture.xml:6973
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:6990
+#: freeculture.xml:6987
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:6996
+#: freeculture.xml:6993
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:7006
+#: freeculture.xml:7003
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:7022
+#: freeculture.xml:7019
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:7037
+#: freeculture.xml:7034
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:7048
+#: freeculture.xml:7045
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:7055
+#: freeculture.xml:7052
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:7067
+#: freeculture.xml:7064
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:7084
+#: freeculture.xml:7081
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:7096
+#: freeculture.xml:7093
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:7105
+#: freeculture.xml:7102
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:7120
+#: freeculture.xml:7117
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:7138
+#: freeculture.xml:7135
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:7148
+#: freeculture.xml:7145
msgid "Architecture and Law: Force"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7150
+#: freeculture.xml:7147
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:7156
+#: freeculture.xml:7153
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:7163
+#: freeculture.xml:7160
msgid "Casablanca"
msgstr ""
#. f19
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7172
+#: freeculture.xml:7169
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:7165
+#: freeculture.xml:7162
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:7182
+#: freeculture.xml:7179
msgid "Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7178
+#: freeculture.xml:7175
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:7189
+#: freeculture.xml:7186
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:7195
+#: freeculture.xml:7192
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:7206
+#: freeculture.xml:7203
msgid "Consider the life of my Adobe eBook Reader."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7209
+#: freeculture.xml:7206
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:7216
+#: freeculture.xml:7213
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:7220
+#: freeculture.xml:7217
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:7231
+#: freeculture.xml:7228
msgid "Picture of an old version of Adobe eBook Reader"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7232
+#: freeculture.xml:7229
msgid "<graphic fileref=\"images/1611.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7235
+#: freeculture.xml:7232
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:7239
+#: freeculture.xml:7236
msgid "List of the permissions that the publisher purports to grant."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7240
+#: freeculture.xml:7237
msgid "<graphic fileref=\"images/1612.png\"></graphic>"
msgstr ""
#. PAGE BREAK 161
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7244
+#: freeculture.xml:7241
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:7260
+#: freeculture.xml:7257
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:7264
+#: freeculture.xml:7261
msgid "E-book of Aristotle;s "Politics""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7265
+#: freeculture.xml:7262
msgid "<graphic fileref=\"images/1621.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7268
+#: freeculture.xml:7265
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:7273
+#: freeculture.xml:7270
msgid "List of the permissions for Aristotle;s "Politics"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7274
+#: freeculture.xml:7271
msgid "<graphic fileref=\"images/1622.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7277
+#: freeculture.xml:7274
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:7282
+#: freeculture.xml:7279
msgid "List of the permissions for "The Future of Ideas"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7283
+#: freeculture.xml:7280
msgid "<graphic fileref=\"images/1631.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7286
+#: freeculture.xml:7283
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:7296
+#: freeculture.xml:7293
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:7289
+#: freeculture.xml:7286
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:7311
+#: freeculture.xml:7308
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:7329
+#: freeculture.xml:7326
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:7334
+#: freeculture.xml:7331
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:7342
+#: freeculture.xml:7339
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:7350
+#: freeculture.xml:7347
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:7354
+#: freeculture.xml:7351
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:7362
+#: freeculture.xml:7359
msgid "List of the permissions for "Alice's Adventures in Wonderland"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7364
+#: freeculture.xml:7361
msgid "<graphic fileref=\"images/1641.png\"></graphic>"
msgstr ""
#. PAGE BREAK 164
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7368
+#: freeculture.xml:7365
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:7375
+#: freeculture.xml:7372
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:7383
+#: freeculture.xml:7380
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:7396
+#: freeculture.xml:7393
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:7404
+#: freeculture.xml:7401
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:7407 freeculture.xml:7449
+#: freeculture.xml:7404 freeculture.xml:7446
msgid "Aibo robotic dog"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7409
+#: freeculture.xml:7406
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:7414
+#: freeculture.xml:7411
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:7423
+#: freeculture.xml:7420
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:7431
+#: freeculture.xml:7428
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:7443
+#: freeculture.xml:7440
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:7451
+#: freeculture.xml:7448
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:7458
+#: freeculture.xml:7455
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:7474
+#: freeculture.xml:7471
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:7497 freeculture.xml:9925
+#: freeculture.xml:7494 freeculture.xml:9924
msgid "Electronic Frontier Foundation"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7487
+#: freeculture.xml:7484
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:7485
+#: freeculture.xml:7482
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:7505
+#: freeculture.xml:7502
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:7515
+#: freeculture.xml:7512
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:7522
+#: freeculture.xml:7519
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:7528
+#: freeculture.xml:7525
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:7536
+#: freeculture.xml:7533
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:7544
+#: freeculture.xml:7541
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:7551
+#: freeculture.xml:7548
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:7557
+#: freeculture.xml:7554
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:7563
+#: freeculture.xml:7560
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:7571
+#: freeculture.xml:7568
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:7576
+#: freeculture.xml:7573
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:7585
+#: freeculture.xml:7582
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:7591
+#: freeculture.xml:7588
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:7600
+#: freeculture.xml:7597
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:7612
+#: freeculture.xml:7609
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:7620
+#: freeculture.xml:7617
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:7646
+#: freeculture.xml:7643
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:7631
+#: freeculture.xml:7628
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:7655
+#: freeculture.xml:7652
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:7660
+#: freeculture.xml:7657
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:7664
+#: freeculture.xml:7661
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:7667
+#: freeculture.xml:7664
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:7675
+#: freeculture.xml:7672
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:7683
+#: freeculture.xml:7680
msgid "VCR/handgun cartoon."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7684
+#: freeculture.xml:7681
msgid "<graphic fileref=\"images/1711.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7687
+#: freeculture.xml:7684
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:7695
+#: freeculture.xml:7692
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:7703
+#: freeculture.xml:7700
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:7713
+#: freeculture.xml:7710
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:7732
+#: freeculture.xml:7729
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:7726
+#: freeculture.xml:7723
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:7738
+#: freeculture.xml:7735
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:7745
+#: freeculture.xml:7742
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:7755
+#: freeculture.xml:7752
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:7764
+#: freeculture.xml:7761
msgid "Market: Concentration"
msgstr ""
#. PAGE BREAK 173
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7766
+#: freeculture.xml:7763
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:7784
+#: freeculture.xml:7781
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:7791
+#: freeculture.xml:7788
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:7802
+#: freeculture.xml:7799
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:7805
+#: freeculture.xml:7802
msgid "BMG"
msgstr ""
#. f25
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7811
+#: freeculture.xml:7808
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:7818
+#: freeculture.xml:7815
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:7824
+#: freeculture.xml:7821
msgid ""
"Molly Ivins, \"Media Consolidation Must Be Stopped,\" Charleston Gazette, 31 "
"May 2003."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7807
+#: freeculture.xml:7804
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:7829
+#: freeculture.xml:7826
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:7840
+#: freeculture.xml:7837
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:7854 freeculture.xml:7871
+#: freeculture.xml:7851 freeculture.xml:7868
msgid "Fallows, James"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7851
+#: freeculture.xml:7848
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:7869
+#: freeculture.xml:7866
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:7858
+#: freeculture.xml:7855
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:7876
+#: freeculture.xml:7873
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:7882
+#: freeculture.xml:7879
msgid "Pattern of modern media ownership."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7883
+#: freeculture.xml:7880
msgid "<graphic fileref=\"images/1761.png\"></graphic>"
msgstr ""
#. PAGE BREAK 175
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7887
+#: freeculture.xml:7884
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:7892
+#: freeculture.xml:7889
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:7898
+#: freeculture.xml:7895
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:7901
+#: freeculture.xml:7898
msgid "Lear, Norman"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7903 freeculture.xml:7967
+#: freeculture.xml:7900 freeculture.xml:7964
msgid "All in the Family"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7905
+#: freeculture.xml:7902
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:7917
+#: freeculture.xml:7914
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:7912
+#: freeculture.xml:7909
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:7929
+#: freeculture.xml:7926
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:7948
+#: freeculture.xml:7945
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:7938
+#: freeculture.xml:7935
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:7969
+#: freeculture.xml:7966
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>
-#: freeculture.xml:7975
+#: freeculture.xml:7972
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:7990
+#: freeculture.xml:7987
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:7981
+#: freeculture.xml:7978
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:7997
+#: freeculture.xml:7994
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:8008
+#: freeculture.xml:8005
msgid "Clark, Kim B."
msgstr ""
#. f33
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8017
+#: freeculture.xml:8014
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:8010
+#: freeculture.xml:8007
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the \"Innovator's "
"would find it rational to ignore new cultural trends.<placeholder "
"type=\"footnote\" id=\"0\"/> Lumbering giants not only don't, but should "
"not, sprint. Yet if the field is only open to the giants, there will be far "
-"too little sprinting."
+"too little sprinting. <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8033
+#: freeculture.xml:8031
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:8039
+#: freeculture.xml:8037
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:8043
+#: freeculture.xml:8041
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:8048
+#: freeculture.xml:8046
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:8067
+#: freeculture.xml:8065
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:8073
+#: freeculture.xml:8071
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:8085
+#: freeculture.xml:8083
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:8089
+#: freeculture.xml:8087
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:8095
+#: freeculture.xml:8093
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 "
#. f34
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8112
+#: freeculture.xml:8110
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:8102
+#: freeculture.xml:8100
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:8139
+#: freeculture.xml:8137
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:8151
+#: freeculture.xml:8149
msgid "Together"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8153
+#: freeculture.xml:8151
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:8159
+#: freeculture.xml:8157
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:8175
+#: freeculture.xml:8173
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:8181
+#: freeculture.xml:8179
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:8193
+#: freeculture.xml:8191
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:8205
+#: freeculture.xml:8203
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:8227
+#: freeculture.xml:8225
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:8213
+#: freeculture.xml:8211
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:8232
+#: freeculture.xml:8230
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:8235
+#: freeculture.xml:8233
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:8248 freeculture.xml:8286
+#: freeculture.xml:8246 freeculture.xml:8284
msgid "PUBLISH"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:8249 freeculture.xml:8287 freeculture.xml:8326 freeculture.xml:8359
+#: freeculture.xml:8247 freeculture.xml:8285 freeculture.xml:8324 freeculture.xml:8357
msgid "TRANSFORM"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8254 freeculture.xml:8292 freeculture.xml:8331 freeculture.xml:8364
+#: freeculture.xml:8252 freeculture.xml:8290 freeculture.xml:8329 freeculture.xml:8362
msgid "Commercial"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8255 freeculture.xml:8293 freeculture.xml:8294 freeculture.xml:8332 freeculture.xml:8333 freeculture.xml:8365 freeculture.xml:8366 freeculture.xml:8370 freeculture.xml:8371
+#: freeculture.xml:8253 freeculture.xml:8291 freeculture.xml:8292 freeculture.xml:8330 freeculture.xml:8331 freeculture.xml:8363 freeculture.xml:8364 freeculture.xml:8368 freeculture.xml:8369
msgid "©"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8256 freeculture.xml:8260 freeculture.xml:8261 freeculture.xml:8298 freeculture.xml:8299 freeculture.xml:8338
+#: freeculture.xml:8254 freeculture.xml:8258 freeculture.xml:8259 freeculture.xml:8296 freeculture.xml:8297 freeculture.xml:8336
msgid "Free"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8259 freeculture.xml:8297 freeculture.xml:8336 freeculture.xml:8369
+#: freeculture.xml:8257 freeculture.xml:8295 freeculture.xml:8334 freeculture.xml:8367
msgid "Noncommercial"
msgstr ""
#. PAGE BREAK 182
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8268
+#: freeculture.xml:8266
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:8277
+#: freeculture.xml:8275
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:8306
+#: freeculture.xml:8304
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:8312
+#: freeculture.xml:8310
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:8325 freeculture.xml:8358
+#: freeculture.xml:8323 freeculture.xml:8356
msgid "COPY"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8337
+#: freeculture.xml:8335
msgid "©/Free"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8345
+#: freeculture.xml:8343
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:8378
+#: freeculture.xml:8376
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:8386
+#: freeculture.xml:8384
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:8392
+#: freeculture.xml:8390
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:8408
+#: freeculture.xml:8406
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:8402
+#: freeculture.xml:8400
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:8425
+#: freeculture.xml:8423
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:8444
+#: freeculture.xml:8442
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:8461
+#: freeculture.xml:8459
msgid "PUZZLES"
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:8465
+#: freeculture.xml:8463
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8467
+#: freeculture.xml:8465
msgid "chimeras"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8470
+#: freeculture.xml:8468
msgid "Wells, H. G."
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8473
+#: freeculture.xml:8471
msgid ""Country of the Blind, The" (Wells)"
msgstr ""
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:8481
+#: freeculture.xml:8479
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:8477
+#: freeculture.xml:8475
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:8493
+#: freeculture.xml:8491
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:8505
+#: freeculture.xml:8503
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:8516
+#: freeculture.xml:8514
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:8522
+#: freeculture.xml:8520
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:8526
+#: freeculture.xml:8524
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:8531
+#: freeculture.xml:8529
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:8537
+#: freeculture.xml:8535
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:8554
+#: freeculture.xml:8552
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:8562
+#: freeculture.xml:8560
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:8576
+#: freeculture.xml:8574
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:8585
+#: freeculture.xml:8583
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:8595
+#: freeculture.xml:8593
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:8605
+#: freeculture.xml:8603
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 "
#. f2.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:8620
+#: freeculture.xml:8618
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:8612
+#: freeculture.xml:8610
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:8657
+#: freeculture.xml:8655
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:8664
+#: freeculture.xml:8662
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:8676
+#: freeculture.xml:8674
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:8684
+#: freeculture.xml:8682
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:8697
+#: freeculture.xml:8695
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:8701
+#: freeculture.xml:8699
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:8718
+#: freeculture.xml:8716
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:8709
+#: freeculture.xml:8707
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:8733
+#: freeculture.xml:8731
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:8738
+#: freeculture.xml:8736
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:8746
+#: freeculture.xml:8744
msgid "CHAPTER TWELVE: Harms"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8749
+#: freeculture.xml:8747
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:8757
+#: freeculture.xml:8755
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:8764
+#: freeculture.xml:8762
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:8772
+#: freeculture.xml:8770
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:8779
+#: freeculture.xml:8777
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:8786
+#: freeculture.xml:8784
msgid "Constraining Creators"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8788
+#: freeculture.xml:8786
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:8803
+#: freeculture.xml:8801
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:8814
+#: freeculture.xml:8812
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:8824
+#: freeculture.xml:8822
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 "
#. f1.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8847
+#: freeculture.xml:8845
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:8867
+#: freeculture.xml:8865
msgid "Bush, George W."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8858
+#: freeculture.xml:8856
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:8835
+#: freeculture.xml:8833
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:8894
+#: freeculture.xml:8892
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:8874
+#: freeculture.xml:8872
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:8905
+#: freeculture.xml:8903
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:8916
+#: freeculture.xml:8914
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:8927
+#: freeculture.xml:8925
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:8936
+#: freeculture.xml:8934
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:8946
+#: freeculture.xml:8944
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:8957
+#: freeculture.xml:8955
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:8968
+#: freeculture.xml:8966
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:8972
+#: freeculture.xml:8970
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:8985
+#: freeculture.xml:8983
msgid "Constraining Innovators"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8987
+#: freeculture.xml:8985
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:8995
+#: freeculture.xml:8993
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:9004
+#: freeculture.xml:9002
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:9016 freeculture.xml:9117
+#: freeculture.xml:9014 freeculture.xml:9115
msgid "Barry, Hank"
msgstr ""
#. PAGE BREAK 198
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9018
+#: freeculture.xml:9016
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:9030
+#: freeculture.xml:9028
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:9035
+#: freeculture.xml:9033
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:9043
+#: freeculture.xml:9041
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:9050
+#: freeculture.xml:9048
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:9062
+#: freeculture.xml:9060
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:9071
+#: freeculture.xml:9069
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:9083
+#: freeculture.xml:9081
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:9093
+#: freeculture.xml:9091
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:9096
+#: freeculture.xml:9094
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:9106
+#: freeculture.xml:9104
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:9116
+#: freeculture.xml:9114
msgid "Hummer, John"
msgstr ""
#. f4.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9124
+#: freeculture.xml:9122
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:9119
+#: freeculture.xml:9117
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:9148
+#: freeculture.xml:9146
msgid "BMW"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9163
+#: freeculture.xml:9161
msgid "Needleman, Rafe"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:9159
+#: freeculture.xml:9157
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:9150
+#: freeculture.xml:9148
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:9168
+#: freeculture.xml:9166
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:9178
+#: freeculture.xml:9176
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:9193
+#: freeculture.xml:9191
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:9210
+#: freeculture.xml:9208
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:9235
+#: freeculture.xml:9233
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:9251
+#: freeculture.xml:9249
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:9267
+#: freeculture.xml:9265
msgid "GartnerG2, 26–27."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9247
+#: freeculture.xml:9245
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:9272
+#: freeculture.xml:9270
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:9286
+#: freeculture.xml:9284
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:9283
+#: freeculture.xml:9281
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:9294
+#: freeculture.xml:9292
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:9300
+#: freeculture.xml:9298
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:9309
+#: freeculture.xml:9307
msgid "Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9306
+#: freeculture.xml:9304
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:9319
+#: freeculture.xml:9317
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:9327
+#: freeculture.xml:9325
msgid ""
"The only circuit court exception is found in Recording Industry Association "
"of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th "
#. f11.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9346
+#: freeculture.xml:9344
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:9326
+#: freeculture.xml:9324
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:9369
+#: freeculture.xml:9367
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:9380
+#: freeculture.xml:9378
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:9392
+#: freeculture.xml:9390
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:9402
+#: freeculture.xml:9400
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:9418
+#: freeculture.xml:9416
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:9447
+#: freeculture.xml:9445
msgid "Lessing, 239."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9430
+#: freeculture.xml:9428
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:9456
+#: freeculture.xml:9454
msgid "Ibid., 229."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9452
+#: freeculture.xml:9450
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:9463
+#: freeculture.xml:9461
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:9471
+#: freeculture.xml:9469
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:9511
+#: freeculture.xml:9509
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9494
+#: freeculture.xml:9492
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 "
"reducing entry in radio and diversity. Yes, this is done in the name of "
"getting royalties to copyright holders, but, absent the play of powerful "
"interests, that could have been done in a media-neutral way.\" <placeholder "
-"type=\"indexterm\" id=\"0\"/>"
+"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9487
+#: freeculture.xml:9485
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:9517
+#: freeculture.xml:9516
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:9524
+#: freeculture.xml:9523
msgid "name of the service;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9527
+#: freeculture.xml:9526
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9530
+#: freeculture.xml:9529
msgid "type of program (archived/looped/live);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9533
+#: freeculture.xml:9532
msgid "date of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9536
+#: freeculture.xml:9535
msgid "time of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9539
+#: freeculture.xml:9538
msgid "time zone of origination of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9542
+#: freeculture.xml:9541
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:9545
+#: freeculture.xml:9544
msgid "duration of transmission (to nearest second);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9548
+#: freeculture.xml:9547
msgid "sound recording title;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9551
+#: freeculture.xml:9550
msgid "ISRC code of the recording;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9554
+#: freeculture.xml:9553
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:9557
+#: freeculture.xml:9556
msgid "featured recording artist;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9560
+#: freeculture.xml:9559
msgid "retail album title;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9563
+#: freeculture.xml:9562
msgid "recording label;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9566
+#: freeculture.xml:9565
msgid "UPC code of the retail album;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9569
+#: freeculture.xml:9568
msgid "catalog number;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9572
+#: freeculture.xml:9571
msgid "copyright owner information;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9575
+#: freeculture.xml:9574
msgid "musical genre of the channel or program (station format);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9578
+#: freeculture.xml:9577
msgid "name of the service or entity;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9581
+#: freeculture.xml:9580
msgid "channel or program;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9584
+#: freeculture.xml:9583
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:9587
+#: freeculture.xml:9586
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:9590
+#: freeculture.xml:9589
msgid "time zone where the signal was received (user);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9593
+#: freeculture.xml:9592
msgid "Unique User identifier;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9596
+#: freeculture.xml:9595
msgid "the country in which the user received the transmissions."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9601
+#: freeculture.xml:9600
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:9609
+#: freeculture.xml:9608
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:9615
+#: freeculture.xml:9614
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:9621
+#: freeculture.xml:9620
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:9637
+#: freeculture.xml:9636
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:9644
+#: freeculture.xml:9643
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:9654
+#: freeculture.xml:9653
msgid "Corrupting Citizens"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9656
+#: freeculture.xml:9655
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:9662
+#: freeculture.xml:9661
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:9671
+#: freeculture.xml:9670
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:9667
+#: freeculture.xml:9666
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:9705
+#: freeculture.xml:9704
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:9692
+#: freeculture.xml:9691
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:9727
+#: freeculture.xml:9726
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:9735
+#: freeculture.xml:9734
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:9745
+#: freeculture.xml:9744
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:9717
+#: freeculture.xml:9716
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:9754
+#: freeculture.xml:9753
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:9771
+#: freeculture.xml:9770
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:9784
+#: freeculture.xml:9783
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:9791
+#: freeculture.xml:9790
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:9805
+#: freeculture.xml:9804
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:9817
+#: freeculture.xml:9816
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:9820
+#: freeculture.xml:9819
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:9831
+#: freeculture.xml:9830
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:9839
+#: freeculture.xml:9838
msgid "Adromeda"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9841
+#: freeculture.xml:9840
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:9852
+#: freeculture.xml:9851
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:9862
+#: freeculture.xml:9861
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:9876
+#: freeculture.xml:9875
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:9885
+#: freeculture.xml:9884
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:9896
+#: freeculture.xml:9895
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:9905
+#: freeculture.xml:9904
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:9911
+#: freeculture.xml:9910
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:9928
+#: freeculture.xml:9927
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:9933
+#: freeculture.xml:9932
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:9945
+#: freeculture.xml:9944
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:9950
+#: freeculture.xml:9949
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:9968
+#: freeculture.xml:9967
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:9959
+#: freeculture.xml:9958
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:9986
+#: freeculture.xml:9985
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:9982
+#: freeculture.xml:9981
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:10007
+#: freeculture.xml:10006
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:9995
+#: freeculture.xml:9994
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:10026
+#: freeculture.xml:10025
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:10041
+#: freeculture.xml:10040
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:10061
+#: freeculture.xml:10060
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:10074
+#: freeculture.xml:10073
msgid "BALANCES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10078
+#: freeculture.xml:10077
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:10084
+#: freeculture.xml:10083
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:10092
+#: freeculture.xml:10091
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:10101
+#: freeculture.xml:10100
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:10109
+#: freeculture.xml:10108
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:10114
+#: freeculture.xml:10113
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:10120
+#: freeculture.xml:10119
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:10129
+#: freeculture.xml:10128
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10131
+#: freeculture.xml:10130
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:10140
+#: freeculture.xml:10139
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:10147
+#: freeculture.xml:10146
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:10158
+#: freeculture.xml:10157
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:10181
+#: freeculture.xml:10180
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:10170
+#: freeculture.xml:10169
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:10198
+#: freeculture.xml:10197
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:10218
+#: freeculture.xml:10217
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:10213
+#: freeculture.xml:10212
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:10229
+#: freeculture.xml:10228
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:10238
+#: freeculture.xml:10237
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:10249
+#: freeculture.xml:10248
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:10255
+#: freeculture.xml:10254
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:10274 freeculture.xml:11728
+#: freeculture.xml:10273 freeculture.xml:11731
msgid "Jaszi, Peter"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10265
+#: freeculture.xml:10264
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:10277
+#: freeculture.xml:10276
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:10288
+#: freeculture.xml:10287
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:10297
+#: freeculture.xml:10296
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:10307
+#: freeculture.xml:10306
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:10314
+#: freeculture.xml:10313
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:10322
+#: freeculture.xml:10321
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:10328
+#: freeculture.xml:10327
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:10332
+#: freeculture.xml:10331
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:10337
+#: freeculture.xml:10336
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:10343
+#: freeculture.xml:10342
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:10349
+#: freeculture.xml:10348
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:10353
+#: freeculture.xml:10352
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:10359
+#: freeculture.xml:10358
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:10365
+#: freeculture.xml:10364
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:10376
+#: freeculture.xml:10375
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:10389
+#: freeculture.xml:10388
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:10396
+#: freeculture.xml:10395
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:10403
+#: freeculture.xml:10402
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:10382
+#: freeculture.xml:10381
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:10411
+#: freeculture.xml:10410
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:10424
+#: freeculture.xml:10423
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:10437
+#: freeculture.xml:10436
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:10447
+#: freeculture.xml:10446
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:10456
+#: freeculture.xml:10455
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:10472
+#: freeculture.xml:10471
msgid "United States v. Lopez, 514 U.S. 549, 564 (1995)."
msgstr ""
#. f7.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10478
+#: freeculture.xml:10477
msgid "United States v. Morrison, 529 U.S. 598 (2000)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10469
+#: freeculture.xml:10468
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:10485
+#: freeculture.xml:10484
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:10483
+#: freeculture.xml:10482
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:10509
+#: freeculture.xml:10508
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:10523
+#: freeculture.xml:10522
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:10546
+#: freeculture.xml:10545
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:10541
+#: freeculture.xml:10540
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:10556
+#: freeculture.xml:10555
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:10568
+#: freeculture.xml:10567
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:10589
+#: freeculture.xml:10588
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:10583
+#: freeculture.xml:10582
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:10598
+#: freeculture.xml:10597
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:10610
+#: freeculture.xml:10609
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:10618
+#: freeculture.xml:10617
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:10622
+#: freeculture.xml:10621
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:10629
+#: freeculture.xml:10628
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:10638
+#: freeculture.xml:10637
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:10644
+#: freeculture.xml:10643
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:10653
+#: freeculture.xml:10652
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:10668
+#: freeculture.xml:10667
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:10680
+#: freeculture.xml:10679
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:10685
+#: freeculture.xml:10684
msgid "Agee, Michael"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10698
+#: freeculture.xml:10697
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:10687
+#: freeculture.xml:10686
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:10706
+#: freeculture.xml:10705
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:10712
+#: freeculture.xml:10711
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:10729
+#: freeculture.xml:10728
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:10723
+#: freeculture.xml:10722
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:10739
+#: freeculture.xml:10738
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:10747
+#: freeculture.xml:10746
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:10756
+#: freeculture.xml:10755
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:10767
+#: freeculture.xml:10766
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:10777
+#: freeculture.xml:10776
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:10785
+#: freeculture.xml:10784
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:10794
+#: freeculture.xml:10793
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:10804
+#: freeculture.xml:10803
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:10817
+#: freeculture.xml:10816
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:10824
+#: freeculture.xml:10823
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:10834
+#: freeculture.xml:10833
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:10843
+#: freeculture.xml:10842
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:10849
+#: freeculture.xml:10848
msgid "But this situation has now changed."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10852
+#: freeculture.xml:10851
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:10865
+#: freeculture.xml:10864
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:10875
+#: freeculture.xml:10874
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:10886
+#: freeculture.xml:10885
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:10892
+#: freeculture.xml:10891
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:10915
+#: freeculture.xml:10914
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:10903
+#: freeculture.xml:10902
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:10922
+#: freeculture.xml:10921
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:10930
+#: freeculture.xml:10929
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:10937
+#: freeculture.xml:10936
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:10948
+#: freeculture.xml:10947
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:10954
+#: freeculture.xml:10953
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:10963
+#: freeculture.xml:10962
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:10970
+#: freeculture.xml:10969
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:10976
+#: freeculture.xml:10975
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:10986
+#: freeculture.xml:10985
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:10991 freeculture.xml:11005
+#: freeculture.xml:10990 freeculture.xml:11004
msgid "Steward, Geoffrey"
msgstr ""
#. PAGE BREAK 237
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10993
+#: freeculture.xml:10992
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:11003 freeculture.xml:11342 freeculture.xml:11356 freeculture.xml:11450 freeculture.xml:11672 freeculture.xml:11703 freeculture.xml:11789
+#: freeculture.xml:11002 freeculture.xml:11343 freeculture.xml:11358 freeculture.xml:11452 freeculture.xml:11674 freeculture.xml:11705 freeculture.xml:11792
msgid "Ayer, Don"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11004
+#: freeculture.xml:11003
msgid "Bromberg, Dan"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11007
+#: freeculture.xml:11006
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:11017
+#: freeculture.xml:11016
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:11038
+#: freeculture.xml:11037
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:11046
+#: freeculture.xml:11045
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>
-#: freeculture.xml:11065
+#: freeculture.xml:11064
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:11081
+#: freeculture.xml:11080
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 "
#. PAGE BREAK 239
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11090
+#: freeculture.xml:11089
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:11103
+#: freeculture.xml:11102
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:11109
+#: freeculture.xml:11108
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:11115
+#: freeculture.xml:11114
msgid "Akerlof, George"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11116
+#: freeculture.xml:11115
msgid "Arrow, Kenneth"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11117
+#: freeculture.xml:11116
msgid "Buchanan, James"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11118
+#: freeculture.xml:11117
msgid "Coase, Ronald"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11119
+#: freeculture.xml:11118
msgid "Friedman, Milton"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11121
+#: freeculture.xml:11120
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
"wild."
msgstr ""
-#. PAGE BREAK 240
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:11143 freeculture.xml:11156 freeculture.xml:11349 freeculture.xml:11710
+msgid "Fried, Charles"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11132
+#: freeculture.xml:11131
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 "
"history with a series of seminal victories in the Supreme Court defending "
"individual rights; my colleague and dean, Kathleen Sullivan, who had argued "
"many cases in the Court, and who had advised us early on about a First "
-"Amendment strategy; and finally, former solicitor general Charles Fried."
+"Amendment strategy; and finally, former solicitor general Charles Fried. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
"Court. He had helped craft the line of cases that limited Congress's power "
"in the context of the Commerce Clause. And while he had argued many "
"positions in the Supreme Court that I personally disagreed with, his joining "
-"the cause was a vote of confidence in our argument."
+"the cause was a vote of confidence in our argument. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11158
+#: freeculture.xml:11159
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:11165
+#: freeculture.xml:11166
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:11181
+#: freeculture.xml:11182
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:11189
+#: freeculture.xml:11190
msgid ""
"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
"the Fray,\" New York Times, 28 March 1998, B7."
msgstr ""
-#. PAGE BREAK 241
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:11197
+msgid "Gershwin, George"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11174
+#: freeculture.xml:11175
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 "
"license Porgy and Bess to anyone who refuses to use African Americans in the "
"cast.<placeholder type=\"footnote\" id=\"1\"/> That's their view of how this "
"part of American culture should be controlled, and they wanted this law to "
-"help them effect that control."
+"help them effect that control. <placeholder type=\"indexterm\" id=\"2\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11199
+#: freeculture.xml:11200
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:11211
+#: freeculture.xml:11212
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:11220
+#: freeculture.xml:11221
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:11229 freeculture.xml:11253 freeculture.xml:11601 freeculture.xml:11613
+#: freeculture.xml:11230 freeculture.xml:11254 freeculture.xml:11603 freeculture.xml:11615
msgid "Breyer, Stephen"
msgstr ""
#. PAGE BREAK 242
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11231
+#: freeculture.xml:11232
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:11243
+#: freeculture.xml:11244
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:11255
+#: freeculture.xml:11256
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:11263
+#: freeculture.xml:11264
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:11271
+#: freeculture.xml:11272
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:11281
+#: freeculture.xml:11282
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:11294
+#: freeculture.xml:11295
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:11303
+#: freeculture.xml:11304
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:11310
+#: freeculture.xml:11311
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:11333
+#: freeculture.xml:11334
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:11344
+#: freeculture.xml:11345
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 "
"Fried. He had argued many cases before the Supreme Court. And in his review "
-"of the moot, he let his concern speak:"
+"of the moot, he let his concern speak: <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11350
+#: freeculture.xml:11352
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:11358
+#: freeculture.xml:11360
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:11375
+#: freeculture.xml:11377
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:11390
+#: freeculture.xml:11392
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:11396
+#: freeculture.xml:11398
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:11401
+#: freeculture.xml:11403
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:11408
+#: freeculture.xml:11410
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:11414
+#: freeculture.xml:11416
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:11422
+#: freeculture.xml:11424
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:11428
+#: freeculture.xml:11430
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:11436
+#: freeculture.xml:11438
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:11442
+#: freeculture.xml:11444
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:11452
+#: freeculture.xml:11454
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:11459
+#: freeculture.xml:11461
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:11464
+#: freeculture.xml:11466
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:11472
+#: freeculture.xml:11474
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:11476
+#: freeculture.xml:11478
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:11485
+#: freeculture.xml:11487
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:11491
+#: freeculture.xml:11493
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:11500
+#: freeculture.xml:11502
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:11513
+#: freeculture.xml:11515
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:11521
+#: freeculture.xml:11523
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:11540
+#: freeculture.xml:11542
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:11547
+#: freeculture.xml:11549
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:11552
+#: freeculture.xml:11554
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:11557
+#: freeculture.xml:11559
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:11568
+#: freeculture.xml:11570
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:11574
+#: freeculture.xml:11576
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:11580
+#: freeculture.xml:11582
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:11591
+#: freeculture.xml:11593
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:11603
+#: freeculture.xml:11605
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:11616
+#: freeculture.xml:11618
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:11627
+#: freeculture.xml:11629
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:11634
+#: freeculture.xml:11636
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:11639
+#: freeculture.xml:11641
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:11652
+#: freeculture.xml:11654
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:11667
+#: freeculture.xml:11669
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:11674
+#: freeculture.xml:11676
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:11685
+#: freeculture.xml:11687
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:11705
+#: freeculture.xml:11707
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 "
-"Sullivan?"
+"Sullivan? <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11710
+#: freeculture.xml:11713
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:11716
+#: freeculture.xml:11719
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:11723
+#: freeculture.xml:11726
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:11731
+#: freeculture.xml:11734
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:11752
+#: freeculture.xml:11755
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>
-#: freeculture.xml:11761
+#: freeculture.xml:11764
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:11768
+#: freeculture.xml:11771
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:11779
+#: freeculture.xml:11782
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11781
+#: freeculture.xml:11784
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:11791
+#: freeculture.xml:11794
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:11801
+#: freeculture.xml:11804
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:11809
+#: freeculture.xml:11812
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:11814
+#: freeculture.xml:11817
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:11822 freeculture.xml:12020
+#: freeculture.xml:11825 freeculture.xml:12023
msgid "Forbes, Steve"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11824
+#: freeculture.xml:11827
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:11836
+#: freeculture.xml:11839
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:11846
+#: freeculture.xml:11849
msgid "Berlin Act (1908)"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11847 freeculture.xml:11886
+#: freeculture.xml:11850 freeculture.xml:11889
msgid "Berne Convention (1908)"
msgstr ""
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:11854
+#: freeculture.xml:11857
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:11850
+#: freeculture.xml:11853
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:11880
+#: freeculture.xml:11883
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:11888
+#: freeculture.xml:11891
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:11898
+#: freeculture.xml:11901
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:11906
+#: freeculture.xml:11909
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:11914
+#: freeculture.xml:11917
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:11926
+#: freeculture.xml:11929
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:11935
+#: freeculture.xml:11938
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:11951
+#: freeculture.xml:11954
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:11965
+#: freeculture.xml:11968
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:11975
+#: freeculture.xml:11978
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:11984
+#: freeculture.xml:11987
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:11991
+#: freeculture.xml:11994
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:11998
+#: freeculture.xml:12001
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:12004
+#: freeculture.xml:12007
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:12022
+#: freeculture.xml:12025
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:12028
+#: freeculture.xml:12031
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:12037
+#: freeculture.xml:12040
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:12045
+#: freeculture.xml:12048
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:12066
+#: freeculture.xml:12069
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:12074
+#: freeculture.xml:12077
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:12084
+#: freeculture.xml:12087
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:12093
+#: freeculture.xml:12096
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:12104
+#: freeculture.xml:12107
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:12114
+#: freeculture.xml:12117
msgid "What does this industry really want?"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12117
+#: freeculture.xml:12120
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:12127
+#: freeculture.xml:12130
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:12134
+#: freeculture.xml:12137
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:12146
+#: freeculture.xml:12149
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:12153
+#: freeculture.xml:12156
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:12165
+#: freeculture.xml:12168
msgid "CONCLUSION"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12167
+#: freeculture.xml:12170
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:12174
+#: freeculture.xml:12177
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:12189
+#: freeculture.xml:12192
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:12182
+#: freeculture.xml:12185
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:12200
+#: freeculture.xml:12203
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:12208
+#: freeculture.xml:12211
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:12219
+#: freeculture.xml:12222
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:12237 freeculture.xml:12671
+#: freeculture.xml:12240 freeculture.xml:12675
msgid "Braithwaite, John"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12235
+#: freeculture.xml:12238
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:12226
+#: freeculture.xml:12229
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:12247
+#: freeculture.xml:12250
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:12279
+#: freeculture.xml:12282
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:12242
+#: freeculture.xml:12245
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:12285
+#: freeculture.xml:12288
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:12295
+#: freeculture.xml:12298
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:12303
+#: freeculture.xml:12306
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:12318
+#: freeculture.xml:12321
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:12312
+#: freeculture.xml:12315
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:12339
+#: freeculture.xml:12342
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:12349
+#: freeculture.xml:12352
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:12357
+#: freeculture.xml:12360
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:12365
+#: freeculture.xml:12368
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:12380
+#: freeculture.xml:12383
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:12386
+#: freeculture.xml:12389
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:12398
+#: freeculture.xml:12401
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:12418
+#: freeculture.xml:12421
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:12435
+#: freeculture.xml:12438
msgid ""
"Jonathan Krim, \"The Quiet War over Open-Source,\" Washington Post, August "
"2003, E1, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. PAGE BREAK 270
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12432
+#: freeculture.xml:12435
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:12465
+#: freeculture.xml:12468
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:12473
+#: freeculture.xml:12476
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:12472
+#: freeculture.xml:12475
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:12483
+#: freeculture.xml:12486
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:12507
+#: freeculture.xml:12510
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:12513
+#: freeculture.xml:12516
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:12536
+#: freeculture.xml:12539
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:12524
+#: freeculture.xml:12527
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:12558
+#: freeculture.xml:12561
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:12584
+#: freeculture.xml:12587
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:12576
+#: freeculture.xml:12579
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:12590
+#: freeculture.xml:12593
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:12598
+#: freeculture.xml:12601
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:12608
+#: freeculture.xml:12611
msgid "These statements are astonishing on a number of levels."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12612
+#: freeculture.xml:12615
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:12622
+#: freeculture.xml:12625
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:12635
+#: freeculture.xml:12638
msgid ""
"Third, even if one believed that the purpose of WIPO was to maximize "
"intellectual property rights, in our tradition, intellectual property rights "
"good in the world, that is not inconsistent with the objectives of the "
"property system. That is, on the contrary, just what a property system is "
"supposed to be about: giving individuals the right to decide what to do with "
-"their property."
+"their property. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. PAGE BREAK 274
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12647
+#: freeculture.xml:12651
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:12659
+#: freeculture.xml:12663
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:12676
+#: freeculture.xml:12680
msgid ""
"See Drahos with Braithwaite, Information Feudalism, 210–20. "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12673
+#: freeculture.xml:12677
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:12684
+#: freeculture.xml:12688
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:12691
+#: freeculture.xml:12695
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:12703
+#: freeculture.xml:12707
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:12713
+#: freeculture.xml:12717
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:12721
+#: freeculture.xml:12725
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:12727
+#: freeculture.xml:12731
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:12738
+#: freeculture.xml:12742
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>
-#: freeculture.xml:12747
+#: freeculture.xml:12751
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:12759
+#: freeculture.xml:12763
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:12767
+#: freeculture.xml:12771
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:12774
+#: freeculture.xml:12778
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:12784
+#: freeculture.xml:12788
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:12791
+#: freeculture.xml:12795
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:12799
+#: freeculture.xml:12803
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:12802
+#: freeculture.xml:12806
msgid "Dylan, Bob"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12807
+#: freeculture.xml:12811
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:12825
+#: freeculture.xml:12829
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:12832
+#: freeculture.xml:12836
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:12804
+#: freeculture.xml:12808
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:12849 freeculture.xml:13199
+#: freeculture.xml:12853 freeculture.xml:13203
msgid "Creative Commons"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12850
+#: freeculture.xml:12854
msgid "Gil, Gilberto"
msgstr ""
#. f14.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12855
+#: freeculture.xml:12859
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:12864
+#: freeculture.xml:12868
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:12852
+#: freeculture.xml:12856
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:12878
+#: freeculture.xml:12882
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:12886
+#: freeculture.xml:12890
msgid "AFTERWORD"
msgstr ""
#. PAGE BREAK 280
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12890
+#: freeculture.xml:12894
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:12895
+#: freeculture.xml:12899
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:12901
+#: freeculture.xml:12905
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:12908
+#: freeculture.xml:12912
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:12917
+#: freeculture.xml:12921
msgid "US, NOW"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12919
+#: freeculture.xml:12923
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:12925
+#: freeculture.xml:12929
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:12935
+#: freeculture.xml:12939
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:12947
+#: freeculture.xml:12951
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:12961
+#: freeculture.xml:12965
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:12970
+#: freeculture.xml:12974
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12972
+#: freeculture.xml:12976
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:12982
+#: freeculture.xml:12986
msgid "What made it assured?"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12986
+#: freeculture.xml:12990
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:13000
+#: freeculture.xml:13004
msgid "Amazon"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13002
+#: freeculture.xml:13006
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:13012
+#: freeculture.xml:13016
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:13028
+#: freeculture.xml:13032
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:13022
+#: freeculture.xml:13026
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:13046
+#: freeculture.xml:13050
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:13053
+#: freeculture.xml:13057
msgid "Stallman, Richard"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13055
+#: freeculture.xml:13059
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:13063
+#: freeculture.xml:13067
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:13075
+#: freeculture.xml:13079
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:13084
+#: freeculture.xml:13088
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:13093
+#: freeculture.xml:13097
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:13099
+#: freeculture.xml:13103
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:13110
+#: freeculture.xml:13114
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:13118
+#: freeculture.xml:13122
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:13123
+#: freeculture.xml:13127
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:13139
+#: freeculture.xml:13143
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:13148
+#: freeculture.xml:13152
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:13153
+#: freeculture.xml:13157
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:13165
+#: freeculture.xml:13169
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
#. PAGE BREAK 287
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13173
+#: freeculture.xml:13177
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:13186
+#: freeculture.xml:13190
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:13197
+#: freeculture.xml:13201
msgid "Rebuilding Free Culture: One Idea"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13202
+#: freeculture.xml:13206
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:13206
+#: freeculture.xml:13210
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:13216
+#: freeculture.xml:13220
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:13234
+#: freeculture.xml:13238
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:13245
+#: freeculture.xml:13249
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
"that content will in turn enable us to rebuild a public domain."
msgstr ""
-#. PAGE BREAK 289
+#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
+#: freeculture.xml:13270
+msgid "Garlick, Mia"
+msgstr ""
+
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13256
+#: freeculture.xml:13260
msgid ""
"This is just one project among many within the Creative Commons. And of "
"course, Creative Commons is not the only organization pursuing such "
"movement of consumers and producers of content (\"content conducers,\" as "
"attorney Mia Garlick calls them) who help build the public domain and, by "
"their work, demonstrate the importance of the public domain to other "
-"creativity."
+"creativity. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13268
+#: freeculture.xml:13273
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:13280
+#: freeculture.xml:13285
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:13287
+#: freeculture.xml:13292
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:13299
+#: freeculture.xml:13304
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:13305
+#: freeculture.xml:13310
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:13331
+#: freeculture.xml:13336
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:13316
+#: freeculture.xml:13321
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:13340
+#: freeculture.xml:13345
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:13352
+#: freeculture.xml:13357
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:13362
+#: freeculture.xml:13367
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:13370
+#: freeculture.xml:13375
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:13384
+#: freeculture.xml:13389
msgid "THEM, SOON"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:13386
+#: freeculture.xml:13391
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:13393
+#: freeculture.xml:13398
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:13400
+#: freeculture.xml:13405
msgid "1. More Formalities"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13402
+#: freeculture.xml:13407
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:13409
+#: freeculture.xml:13414
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:13414
+#: freeculture.xml:13419
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:13420
+#: freeculture.xml:13425
msgid "Why?"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13423
+#: freeculture.xml:13428
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:13431
+#: freeculture.xml:13436
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:13445
+#: freeculture.xml:13450
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:13443
+#: freeculture.xml:13448
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:13453
+#: freeculture.xml:13458
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:13465
+#: freeculture.xml:13470
msgid "REGISTRATION AND RENEWAL"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13467
+#: freeculture.xml:13472
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:13480
+#: freeculture.xml:13485
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:13489
+#: freeculture.xml:13494
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:13499
+#: freeculture.xml:13504
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:13514
+#: freeculture.xml:13519
msgid "MARKING"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13516
+#: freeculture.xml:13521
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:13526
+#: freeculture.xml:13531
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:13532
+#: freeculture.xml:13537
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:13549
+#: freeculture.xml:13554
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:13542
+#: freeculture.xml:13547
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:13562
+#: freeculture.xml:13567
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:13569
+#: freeculture.xml:13574
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:13580
+#: freeculture.xml:13585
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:13588
+#: freeculture.xml:13593
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:13593
+#: freeculture.xml:13598
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:13605
+#: freeculture.xml:13610
msgid "2. Shorter Terms"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13607
+#: freeculture.xml:13612
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:13619
+#: freeculture.xml:13624
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:13612
+#: freeculture.xml:13617
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:13626
+#: freeculture.xml:13631
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:13634
+#: freeculture.xml:13639
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:13642
+#: freeculture.xml:13647
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:13662
+#: freeculture.xml:13667
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:13655
+#: freeculture.xml:13660
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:13673
+#: freeculture.xml:13678
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:13688
+#: freeculture.xml:13693
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:13693
+#: freeculture.xml:13698
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:13703
+#: freeculture.xml:13708
msgid "3. Free Use Vs. Fair Use"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13705
+#: freeculture.xml:13710
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:13713
+#: freeculture.xml:13718
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:13726
+#: freeculture.xml:13731
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:13722
+#: freeculture.xml:13727
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:13739
+#: freeculture.xml:13744
msgid "Ibid., 56."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:13735
+#: freeculture.xml:13740
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:13744
+#: freeculture.xml:13749
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 "
"each limitation in turn."
msgstr ""
-#. PAGE BREAK 300
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13751
+#: freeculture.xml:13756
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 "
"assume it does); but it does not make sense for that right to run for the "
"same term as the underlying copyright. The derivative right could be "
"important in inducing creativity; it is not important long after the "
-"creative work is done."
+"creative work is done. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13762
+#: freeculture.xml:13768
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:13774
+#: freeculture.xml:13780
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:13790
+#: freeculture.xml:13796
msgid "Goldstein, Paul"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13788
+#: freeculture.xml:13794
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:13782
+#: freeculture.xml:13788
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:13796
+#: freeculture.xml:13802
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:13803
+#: freeculture.xml:13809
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:13813
+#: freeculture.xml:13819
msgid "4. Liberate the Music—Again"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13815
+#: freeculture.xml:13821
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:13822
+#: freeculture.xml:13828
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:13831
+#: freeculture.xml:13837
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:13838
+#: freeculture.xml:13844
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:13846
+#: freeculture.xml:13852
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:13851
+#: freeculture.xml:13857
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:13857
+#: freeculture.xml:13863
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:13863
+#: freeculture.xml:13869
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:13869
+#: freeculture.xml:13875
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:13877
+#: freeculture.xml:13883
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:13884
+#: freeculture.xml:13890
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:13889
+#: freeculture.xml:13895
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:13901
+#: freeculture.xml:13907
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:13933
+#: freeculture.xml:13939
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:13916
+#: freeculture.xml:13922
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:13940
+#: freeculture.xml:13946
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:13956
+#: freeculture.xml:13962
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:13967
+#: freeculture.xml:13973
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:13976
+#: freeculture.xml:13982
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:13986
+#: freeculture.xml:13992
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:13997
+#: freeculture.xml:14003
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:14007
+#: freeculture.xml:14013
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:14017
+#: freeculture.xml:14023
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:14025
+#: freeculture.xml:14031
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:14029
+#: freeculture.xml:14035
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:14040
+#: freeculture.xml:14046
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:14084
+#: freeculture.xml:14090
msgid "Fisher, William"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:14051
+#: freeculture.xml:14057
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:14048
+#: freeculture.xml:14054
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:14097
+#: freeculture.xml:14103
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:14112
+#: freeculture.xml:14118
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:14125
+#: freeculture.xml:14131
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:14140
+#: freeculture.xml:14146
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:14152
+#: freeculture.xml:14158
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:14161
+#: freeculture.xml:14167
msgid "In summary, then, my proposal is this:"
msgstr ""
#. PAGE BREAK 308
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14166
+#: freeculture.xml:14172
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:14173
+#: freeculture.xml:14179
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:14179
+#: freeculture.xml:14185
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""
#. 2.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:14183
+#: freeculture.xml:14189
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:14189
+#: freeculture.xml:14195
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:14194
+#: freeculture.xml:14200
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:14200
+#: freeculture.xml:14206
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:14214
+#: freeculture.xml:14220
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:14225
+#: freeculture.xml:14231
msgid "5. Fire Lots of Lawyers"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14227
+#: freeculture.xml:14233
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:14233
+#: freeculture.xml:14239
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:14250
+#: freeculture.xml:14256
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:14241
+#: freeculture.xml:14247
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:14256
+#: freeculture.xml:14262
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 "
#. f11.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:14266
+#: freeculture.xml:14272
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:14261
+#: freeculture.xml:14267
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:14289
+#: freeculture.xml:14295
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:14297
+#: freeculture.xml:14303
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:14307
+#: freeculture.xml:14313
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:14315
+#: freeculture.xml:14321
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:14321
+#: freeculture.xml:14327
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:14330
+#: freeculture.xml:14336
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:14339
+#: freeculture.xml:14345
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:14348
+#: freeculture.xml:14354
msgid "NOTES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14350
+#: freeculture.xml:14356
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:14365
+#: freeculture.xml:14371
msgid "ACKNOWLEDGMENTS"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14367
+#: freeculture.xml:14373
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:14373
+#: freeculture.xml:14379
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:14386
+#: freeculture.xml:14392
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:14397
+#: freeculture.xml:14403
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:14417
+#: freeculture.xml:14423
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:14426
+#: freeculture.xml:14432
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