</para></footnote>
</para>
<para>
-This different cycle is possible because the same commercial
- pressures
+This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
newspapers are commercial entities. They must work to keep attention.
-If they lose readers, they lose revenue. Like sharks, they must move on.
+If they lose readers, they lose revenue. Like sharks, they must move
+on.
</para>
<para>
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
-interesting story, more and more people link to that story. And as
-the number of links to a particular story increases, it rises in the ranks
-of stories. People read what is popular; what is popular has been
- selected
-by a very democratic process of peer-generated rankings.
+can focus, they can get serious. If a particular blogger writes a
+particularly interesting story, more and more people link to that
+story. And as the number of links to a particular story increases, it
+rises in the ranks of stories. People read what is popular; what is
+popular has been selected by a very democratic process of
+peer-generated rankings.
</para>
<para>
There's a second way, as well, in which blogs have a different cycle
conflict of interest is so easily disclosed that you know you can sort of
get it out of the way."
</para>
+<indexterm><primary>CNN</primary></indexterm>
<para>
These conflicts become more important as media becomes more
-concentrated (more on this below). A concentrated media can hide
-more from the public than an unconcentrated media can—as CNN
-admitted it did after the Iraq war because it was afraid of the
- consequences
-to its own employees.<footnote><para>
+concentrated (more on this below). A concentrated media can hide more
+from the public than an unconcentrated media can—as CNN admitted
+it did after the Iraq war because it was afraid of the consequences to
+its own employees.<footnote><para>
<!-- f19 -->
Telephone interview with David Winer, 16 April 2003.
</para></footnote>
-It also needs to sustain a more
- coherent
-account. (In the middle of the Iraq war, I read a post on the
-Internet from someone who was at that time listening to a satellite
- uplink
-with a reporter in Iraq. The New York headquarters was telling the
-reporter over and over that her account of the war was too bleak: She
-needed to offer a more optimistic story. When she told New York that
-wasn't warranted, they told her that they were writing "the story.")
-</para>
-<para>
-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 not paid by anyone to give their reports. It allows for a much
-broader range of input into a story, as reporting on the Columbia
- disaster
-revealed, when hundreds from across the southwest United States
-turned to the Internet to retell what they had seen.<footnote><para>
+It also needs to sustain a more coherent
+account. (In the middle of the Iraq war, I read a post on the Internet
+from someone who was at that time listening to a satellite uplink with
+a reporter in Iraq. The New York headquarters was telling the reporter
+over and over that her account of the war was too bleak: She needed to
+offer a more optimistic story. When she told New York that wasn't
+warranted, they told her that they were writing "the story.")
+</para>
+<para> 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 not paid by anyone to give their
+reports. It allows for a much broader range of input into a story, as
+reporting on the Columbia disaster revealed, when hundreds from across
+the southwest United States turned to the Internet to retell what they
+had seen.<footnote><para>
<!-- f20 -->
-John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
- Information
-Online," New York Times, 2 February 2003, A28; Staci D. Kramer,
-"Shuttle Disaster Coverage Mixed, but Strong Overall," Online
- Journalism
-Review, 2 February 2003, available at
+John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
+Information Online," New York Times, 2 February 2003, A28; Staci
+D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
+Online Journalism Review, 2 February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #10</ulink>.
</para></footnote>
-And it drives
-readers to read across the range of accounts and "triangulate," as Winer
-puts it, the truth. Blogs, Winer says, are "communicating directly with
-our constituency, and the middle man is out of it"—with all the
- benefits,
-and costs, that might entail.
+And it drives readers to read across the range of accounts and
+"triangulate," as Winer puts it, the truth. Blogs, Winer says, are
+"communicating directly with our constituency, and the middle man is
+out of it"—with all the benefits, and costs, that might entail.
</para>
<para>
-Winer is optimistic about the future of journalism infected with
-blogs. "It's going to become an essential skill," Winer predicts, for
- public
-figures and increasingly for private figures as well. It's not clear that
-"journalism" is happy about this—some journalists have been told to
-curtail their blogging.<footnote><para>
+Winer is optimistic about the future of journalism infected
+with blogs. "It's going to become an essential skill," Winer predicts,
+for public figures and increasingly for private figures as well. It's
+not clear that "journalism" is happy about this—some journalists
+have been told to curtail their blogging.<footnote>
+<indexterm><primary>CNN</primary></indexterm>
+<para>
<!-- f21 -->
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 accepting of employees who blog. Kevin Sites, a CNN
- correspondent
-in Iraq who started a blog about his reporting of the war on March 9,
-stopped posting 12 days later at his bosses' request. Last year Steve
- Olafson,
-a Houston Chronicle reporter, was fired for keeping a personal Web log,
-published under a pseudonym, that dealt with some of the issues and
-people he was covering.")
+been as accepting of employees who blog. Kevin Sites, a CNN
+correspondent in Iraq who started a blog about his reporting of the
+war on March 9, stopped posting 12 days later at his bosses'
+request. Last year Steve Olafson, a Houston Chronicle reporter, was
+fired for keeping a personal Web log, published under a pseudonym,
+that dealt with some of the issues and people he was covering.")
</para></footnote>
But it is clear that we are still in transition. "A
Cable TV was also born of a kind of piracy.
</para>
<para>
-When cable entrepreneurs first started wiring communities with
-cable television in 1948, most refused to pay broadcasters for the
- content
-that they echoed to their customers. Even when the cable
- companies
+When cable entrepreneurs first started wiring communities with cable
+television in 1948, most refused to pay broadcasters for the content
+that they echoed to their customers. Even when the cable companies
started selling access to television broadcasts, they refused to pay
<!-- PAGE BREAK 73 -->
for what they sold. Cable companies were thus Napsterizing
- broadcasters'
-content, but more egregiously than anything Napster ever did—
-Napster never charged for the content it enabled others to give away.
+broadcasters' content, but more egregiously than anything Napster ever
+did— Napster never charged for the content it enabled others to
+give away.
</para>
<indexterm><primary>Anello, Douglas</primary></indexterm>
+<indexterm><primary>Burdick, Quentin</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
"unfair and potentially destructive competition."<footnote><para>
<!-- f13 -->
-Copyright Law Revision—CATV: Hearing on S. 1006 Before the Subcommittee
-on Patents, Trademarks, and Copyrights of the Senate Committee
-on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of
-Rosel H. Hyde, chairman of the Federal Communications Commission).
+Copyright Law Revision—CATV: Hearing on S. 1006 Before the
+Subcommittee on Patents, Trademarks, and Copyrights of the Senate
+Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
+(statement of Rosel H. Hyde, chairman of the Federal Communications
+Commission).
</para></footnote>
There may have been a "public interest" in spreading the reach of cable
TV, but as Douglas Anello, general counsel to the National Association
</para>
</blockquote>
<para>
-Again, the demand of the copyright holders seemed reasonable
-enough:
+Again, the demand of the copyright holders seemed reasonable enough:
</para>
<blockquote>
<para>
</para>
</blockquote>
<para>
-These were "free-ride[rs]," Screen Actor's Guild president
- Charlton
-
Heston said, who were "depriving actors of compensation."<footnote><para>
+These were "free-ride[rs]," Screen Actor's Guild president Charlton
+Heston said, who were "depriving actors of
+compensation."<footnote><para>
<!-- f17 -->
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
</para></footnote>
</para>
<para>
-But again, there was another side to the debate. As Assistant
- Attorney
+But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
</para>
<blockquote>
<para>
-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 already compensated, who already have a
-monopoly, should be permitted to extend that monopoly. . . . The
+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 already compensated, who already have a monopoly,
+should be permitted to extend that monopoly. . . . The
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
how far back they should carry their right to compensation.<footnote><para>
<!-- f18 -->
-Copyright Law Revision—CATV, 216 (statement of Edwin M.
- Zimmerman,
-acting assistant attorney general).
+Copyright Law Revision—CATV, 216 (statement of Edwin M.
+Zimmerman, acting assistant attorney general).
</para></footnote>
</para>
</blockquote>
<para>
-Copyright owners took the cable companies to court. Twice the
-Supreme Court held that the cable companies owed the copyright
-owners nothing.
+Copyright owners took the cable companies to court. Twice the Supreme
+Court held that the cable companies owed the copyright owners nothing.
</para>
<para>
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 end, Congress resolved this question in the same way that it
- resolved
-the question about record players and player pianos. Yes, cable
-companies would have to pay for the content that they broadcast; but
-the price they would have to pay was not set by the copyright owner.
-The price was set by law, so that the broadcasters couldn't exercise veto
-power over the emerging technologies of cable. Cable companies thus
-built their empire in part upon a "piracy" of the value created by
- broadcasters'
-content.
-</para>
-<para>
-These separate stories sing a common theme. If "piracy"
-means using value from someone else's creative property without
- permission
-from that creator—as it is increasingly described today<footnote><para>
+In the end, Congress resolved this question in the same way that it
+resolved the question about record players and player pianos. Yes,
+cable companies would have to pay for the content that they broadcast;
+but the price they would have to pay was not set by the copyright
+owner. The price was set by law, so that the broadcasters couldn't
+exercise veto power over the emerging technologies of cable. Cable
+companies thus built their empire in part upon a "piracy" of the value
+created by broadcasters' content.
+</para>
+<para>
+These separate stories sing a common theme. If "piracy" means
+using value from someone else's creative property without permission
+from that creator—as it is increasingly described
+today<footnote><para>
<!-- f19 -->
See, for example, National Music Publisher's Association, The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
<sect1 id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
-
-There is piracy of copyrighted material. Lots of it. This piracy
-comes in many forms. The most significant is commercial piracy, the
+There is piracy of copyrighted material. Lots of it. This piracy comes
+in many forms. The most significant is commercial piracy, the
unauthorized taking of other people's content within a commercial
-context. Despite the many justifications that are offered in its defense,
-this taking is wrong. No one should condone it, and the law should
-stop it.
+context. Despite the many justifications that are offered in its
+defense, this taking is wrong. No one should condone it, and the law
+should stop it.
</para>
<para>
But as well as copy-shop piracy, there is another kind of "taking"
that is more directly related to the Internet. That taking, too, seems
wrong to many, and it is wrong much of the time. Before we paint this
taking "piracy," however, we should understand its nature a bit more.
-For the harm of this taking is significantly more ambiguous than
- outright
-copying, and the law should account for that ambiguity, as it has
-so often done in the past.
+For the harm of this taking is significantly more ambiguous than
+outright copying, and the law should account for that ambiguity, as it
+has so often done in the past.
<!-- PAGE BREAK 76 -->
</para>
<sect2 id="piracy-i">
Like every great advance in innovation on the Internet (and,
arguably,
off the Internet as well<footnote><para>
-<!-- f5 -->
+<!-- f5 -->
See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
National Bestseller That Changed the Way We Do Business (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film
High Fidelity has a list price of $18.98. You could get the whole movie
[on DVD] for $19.99."<footnote><para>
-<!-- f14 -->
+<!-- f14 -->
Ibid.
</para></footnote>
</para>
Thus, when the copyrights to films expire, there is no copy held by any
library. The copy exists—if it exists at all—in the library archive of the
film company.<footnote><para>
-<!-- f2 -->
+<!-- f2 -->
Doug Herrick, "Toward a National Film Collection: Motion Pictures at the
Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5;
Anthony
another.<footnote>
<indexterm><primary>Commons, John R.</primary></indexterm>
<para>
-<!-- f4 -->
+<!-- f4 -->
Some people object to this way of talking about "liberty." They object
because their focus when considering the constraints that exist at any
particular moment are constraints imposed exclusively by the
<sect2 id="hollywood">
<title>Why Hollywood Is Right</title>
<para>
-
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 courts to defend copyright. This model helps us see why that
rallying makes sense.
</para>
<para>
-Let's say this is the picture of copyright's regulation before the
- Internet:
+Let's say this is the picture of copyright's regulation before the
+Internet:
</para>
<figure id="fig-1371">
<title>Copyright's regulation before the Internet.</title>
</figure>
<para>
<!-- PAGE BREAK 136 -->
-There is balance between law, norms, market, and architecture. The
-law limits the ability to copy and share content, by imposing penalties
-on those who copy and share content. Those penalties are reinforced by
-technologies that make it hard to copy and share content (architecture)
-and expensive to copy and share content (market). Finally, those
- penalties
-are mitigated by norms we all recognize—kids, for example, taping
-other kids' records. These uses of copyrighted material may well be
- infringement,
-but the norms of our society (before the Internet, at least)
-had no problem with this form of infringement.
-</para>
-<para>
-Enter the Internet, or, more precisely, technologies such as MP3s
-and p2p sharing. Now the constraint of architecture changes
- dramatically,
+There is balance between law, norms, market, and architecture. The law
+limits the ability to copy and share content, by imposing penalties on
+those who copy and share content. Those penalties are reinforced by
+technologies that make it hard to copy and share content
+(architecture) and expensive to copy and share content
+(market). Finally, those penalties are mitigated by norms we all
+recognize—kids, for example, taping other kids' records. These
+uses of copyrighted material may well be infringement, but the norms
+of our society (before the Internet, at least) had no problem with
+this form of infringement.
+</para>
+<para>
+Enter the Internet, or, more precisely, technologies such as MP3s and
+p2p sharing. Now the constraint of architecture changes dramatically,
as does the constraint of the market. And as both the market and
architecture relax the regulation of copyright, norms pile on. The
-happy balance (for the warriors, at least) of life before the Internet
- becomes
-an effective state of anarchy after the Internet.
+happy balance (for the warriors, at least) of life before the Internet
+becomes an effective state of anarchy after the Internet.
</para>
<para>
-Thus the sense of, and justification for, the warriors' response.
- Technology
-has changed, the warriors say, and the effect of this change,
-when ramified through the market and norms, is that a balance of
- protection
-for the copyright owners' rights has been lost. This is Iraq
+Thus the sense of, and justification for, the warriors' response.
+Technology has changed, the warriors say, and the effect of this
+change, when ramified through the market and norms, is that a balance
+of protection for the copyright owners' rights has been lost. This is
+Iraq
<!-- PAGE BREAK 137 -->
after the fall of Saddam, but this time no government is justifying the
looting that results.
</figure>
<para>
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce
- Department
-(one heavily influenced by the copyright warriors) in 1995,
+warriors. Indeed, in a "White Paper" prepared by the Commerce
+Department (one heavily influenced by the copyright warriors) in 1995,
this mix of regulatory modalities had already been identified and the
-strategy to respond already mapped. In response to the changes the
- Internet
-had effected, the White Paper argued (1) Congress should
-strengthen intellectual property law, (2) businesses should adopt
- innovative
-marketing techniques, (3) technologists should push to develop
-code to protect copyrighted material, and (4) educators should educate
-kids to better protect copyright.
-</para>
-<para>
-This mixed strategy is just what copyright needed—if it was to
- preserve
-the particular balance that existed before the change induced by
-the Internet. And it's just what we should expect the content industry
-to push for. It is as American as apple pie to consider the happy life
-you have as an entitlement, and to look to the law to protect it if
- something
-comes along to change that happy life. Homeowners living in a
+strategy to respond already mapped. In response to the changes the
+Internet had effected, the White Paper argued (1) Congress should
+strengthen intellectual property law, (2) businesses should adopt
+innovative marketing techniques, (3) technologists should push to
+develop code to protect copyrighted material, and (4) educators should
+educate kids to better protect copyright.
+</para>
+<para>
+This mixed strategy is just what copyright needed—if it was to
+preserve the particular balance that existed before the change induced
+by the Internet. And it's just what we should expect the content
+industry to push for. It is as American as apple pie to consider the
+happy life you have as an entitlement, and to look to the law to
+protect it if something comes along to change that happy
+life. Homeowners living in a
<!-- PAGE BREAK 138 -->
flood plain have no hesitation appealing to the government to rebuild
-(and rebuild again) when a flood (architecture) wipes away their
- property
-(law). Farmers have no hesitation appealing to the government to
-bail them out when a virus (architecture) devastates their crop. Unions
-have no hesitation appealing to the government to bail them out when
-imports (market) wipe out the U.S. steel industry.
+(and rebuild again) when a flood (architecture) wipes away their
+property (law). Farmers have no hesitation appealing to the government
+to bail them out when a virus (architecture) devastates their
+crop. Unions have no hesitation appealing to the government to bail
+them out when imports (market) wipe out the U.S. steel industry.
</para>
<para>
Thus, there's nothing wrong or surprising in the content industry's
-campaign to protect itself from the harmful consequences of a
- technological
-innovation. And I would be the last person to argue that the
-changing technology of the Internet has not had a profound effect on the
-content industry's way of doing business, or as John Seely Brown
- describes
-it, its "architecture of revenue."
+campaign to protect itself from the harmful consequences of a
+technological innovation. And I would be the last person to argue that
+the changing technology of the Internet has not had a profound effect
+on the content industry's way of doing business, or as John Seely
+Brown describes it, its "architecture of revenue."
</para>
<para>
-But just because a particular interest asks for government support,
-it doesn't follow that support should be granted. And just because
- technology
-has weakened a particular way of doing business, it doesn't
- follow
-that the government should intervene to support that old way of
+But just because a particular interest asks for government support, it
+doesn't follow that support should be granted. And just because
+technology has weakened a particular way of doing business, it doesn't
+follow that the government should intervene to support that old way of
doing business. Kodak, for example, has lost perhaps as much as 20
percent of their traditional film market to the emerging technologies
of digital cameras.<footnote><para>
<!-- f5 -->
-See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
- BusinessWeek
-online, 2 August 1999, available at
-<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more recent
-analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can
-Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003,
- available
-at
+See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+BusinessWeek online, 2 August 1999, available at
+<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more
+recent analysis of Kodak's place in the market, see Chana
+R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6
+October 2003, available at
<ulink url="http://free-culture.cc/notes/">link #24</ulink>.
</para></footnote>
-Does anyone believe the government should ban
-digital cameras just to support Kodak? Highways have weakened the
-freight business for railroads. Does anyone think we should ban trucks
-from roads for the purpose of protecting the railroads? Closer to the
- subject
-of this book, remote channel changers have weakened the
- "stickiness"
-of television advertising (if a boring commercial comes on the
-TV, the remote makes it easy to surf ), and it may well be that this
-change has weakened the television advertising market. But does
- anyone
-believe we should regulate remotes to reinforce commercial
- television?
-(Maybe by limiting them to function only once a second, or to
-switch to only ten channels within an hour?)
+
+Does anyone believe the government should ban digital cameras just to
+support Kodak? Highways have weakened the freight business for
+railroads. Does anyone think we should ban trucks from roads for the
+purpose of protecting the railroads? Closer to the subject of this
+book, remote channel changers have weakened the "stickiness" of
+television advertising (if a boring commercial comes on the TV, the
+remote makes it easy to surf ), and it may well be that this change
+has weakened the television advertising market. But does anyone
+believe we should regulate remotes to reinforce commercial television?
+(Maybe by limiting them to function only once a second, or to switch
+to only ten channels within an hour?)
</para>
<para>
The obvious answer to these obviously rhetorical questions is no.
</para>
<para>
Thus, while it is understandable for industries threatened with new
-technologies that change the way they do business to look to the
- government
-for protection, it is the special duty of policy makers to
- guarantee
-that that protection not become a deterrent to progress. It is the
-duty of policy makers, in other words, to assure that the changes they
-create, in response to the request of those hurt by changing technology,
-are changes that preserve the incentives and opportunities for
- innovation
-and change.
-</para>
-<para>
-In the context of laws regulating speech—which include, obviously,
-copyright law—that duty is even stronger. When the industry
- complaining
-about changing technologies is asking Congress to respond in
-a way that burdens speech and creativity, policy makers should be
- especially
-wary of the request. It is always a bad deal for the government
-to get into the business of regulating speech markets. The risks and
-dangers of that game are precisely why our framers created the First
-Amendment to our Constitution: "Congress shall make no law . . .
-abridging the freedom of speech." So when Congress is being asked to
-pass laws that would "abridge" the freedom of speech, it should ask—
-carefully—whether such regulation is justified.
+technologies that change the way they do business to look to the
+government for protection, it is the special duty of policy makers to
+guarantee that that protection not become a deterrent to progress. It
+is the duty of policy makers, in other words, to assure that the
+changes they create, in response to the request of those hurt by
+changing technology, are changes that preserve the incentives and
+opportunities for innovation and change.
+</para>
+<para>
+In the context of laws regulating speech—which include,
+obviously, copyright law—that duty is even stronger. When the
+industry complaining about changing technologies is asking Congress to
+respond in a way that burdens speech and creativity, policy makers
+should be especially wary of the request. It is always a bad deal for
+the government to get into the business of regulating speech
+markets. The risks and dangers of that game are precisely why our
+framers created the First Amendment to our Constitution: "Congress
+shall make no law . . . abridging the freedom of speech." So when
+Congress is being asked to pass laws that would "abridge" the freedom
+of speech, it should ask— carefully—whether such
+regulation is justified.
</para>
<para>
My argument just now, however, has nothing to do with whether
<!-- PAGE BREAK 140 -->
the changes that are being pushed by the copyright warriors are
- "justified."
-My argument is about their effect. For before we get to the
- question
-of justification, a hard question that depends a great deal upon
-your values, we should first ask whether we understand the effect of the
-changes the content industry wants.
+"justified." My argument is about their effect. For before we get to
+the question of justification, a hard question that depends a great
+deal upon your values, we should first ask whether we understand the
+effect of the changes the content industry wants.
</para>
<para>
Here's the metaphor that will capture the argument to follow.
important and valuable and probably saved lives, possibly millions.
</para>
<para>
-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.
+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.
</para>
<para>
-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 another set which, in the view of some, was far worse
-than the problems that were originally attacked. Or more accurately,
-the problems DDT caused were worse than the problems it solved, at
-least when considering the other, more environmentally friendly ways
-to solve the problems that DDT was meant to solve.
+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 another set which, in the view of some, was far worse than
+the problems that were originally attacked. Or more accurately, the
+problems DDT caused were worse than the problems it solved, at least
+when considering the other, more environmentally friendly ways to
+solve the problems that DDT was meant to solve.
</para>
<para>
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an "environmentalism" for
culture.<footnote><para>
<!-- f7 -->
-See, for example, James Boyle, "A Politics of Intellectual Property:
- Environmentalism
-for the Net?" Duke Law Journal 47 (1997): 87.
-</para></footnote>
-His point, and the point I want to develop in the balance of
-this chapter, is not that the aims of copyright are flawed. Or that
- authors
-should not be paid for their work. Or that music should be given
-away "for free." The point is that some of the ways in which we might
-protect authors will have unintended consequences for the cultural
- environment,
-much like DDT had for the natural environment. And just
+See, for example, James Boyle, "A Politics of Intellectual Property:
+Environmentalism for the Net?" Duke Law Journal 47 (1997): 87.
+</para></footnote>
+His point, and the point I want to develop in the balance of this
+chapter, is not that the aims of copyright are flawed. Or that authors
+should not be paid for their work. Or that music should be given away
+"for free." The point is that some of the ways in which we might
+protect authors will have unintended consequences for the cultural
+environment, much like DDT had for the natural environment. And just
<!-- PAGE BREAK 141 -->
as criticism of DDT is not an endorsement of malaria or an attack on
-farmers, so, too, is criticism of one particular set of regulations
- protecting
-copyright not an endorsement of anarchy or an attack on authors.
-It is an environment of creativity that we seek, and we should be aware
-of our actions' effects on the environment.
+farmers, so, too, is criticism of one particular set of regulations
+protecting copyright not an endorsement of anarchy or an attack on
+authors. It is an environment of creativity that we seek, and we
+should be aware of our actions' effects on the environment.
</para>
<para>
My argument, in the balance of this chapter, tries to map exactly
<sect2 id="beginnings">
<title>Beginnings</title>
<para>
-America copied English copyright law. Actually, we copied and
- improved
-English copyright law. Our Constitution makes the purpose of
-"creative property" rights clear; its express limitations reinforce the
- English
+America copied English copyright law. Actually, we copied and improved
+English copyright law. Our Constitution makes the purpose of "creative
+property" rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
</para>
<para>
-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,
-section 8, clause 8 of our Constitution states that:
+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, section 8, clause 8 of our Constitution states that:
</para>
<para>
Congress has the power to promote the Progress of Science and
the exclusive Right to their respective Writings and Discoveries.
<!-- PAGE BREAK 142 -->
-We can call this the "Progress Clause," for notice what this clause does
-not say. It does not say Congress has the power to grant "creative
- property
-rights." It says that Congress has the power to promote progress. The
-grant of power is its purpose, and its purpose is a public one, not the
-purpose of enriching publishers, nor even primarily the purpose of
- rewarding
-authors.
+We can call this the "Progress Clause," for notice what this clause
+does not say. It does not say Congress has the power to grant
+"creative property rights." It says that Congress has the power to
+promote progress. The grant of power is its purpose, and its purpose
+is a public one, not the purpose of enriching publishers, nor even
+primarily the purpose of rewarding authors.
</para>
<para>
-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 few would not exercise disproportionate control over culture
-by exercising disproportionate control over publishing. We can assume
-the framers followed the English for a similar purpose. Indeed, unlike
-the English, the framers reinforced that objective, by requiring that
-copyrights extend "to Authors" only.
+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 few would not exercise disproportionate control over
+culture by exercising disproportionate control over publishing. We can
+assume the framers followed the English for a similar purpose. Indeed,
+unlike the English, the framers reinforced that objective, by
+requiring that copyrights extend "to Authors" only.
</para>
<para>
The design of the Progress Clause reflects something about the
-Constitution's design in general. To avoid a problem, the framers built
-structure. To prevent the concentrated power of publishers, they built
-a structure that kept copyrights away from publishers and kept them
-short. To prevent the concentrated power of a church, they banned the
-federal government from establishing a church. To prevent
- concentrating
-power in the federal government, they built structures to reinforce
-the power of the states—including the Senate, whose members were
-at the time selected by the states, and an electoral college, also selected
-by the states, to select the president. In each case, a structure built
-checks and balances into the constitutional frame, structured to
- prevent
-otherwise inevitable concentrations of power.
-</para>
-<para>
-I doubt the framers would recognize the regulation we call
- "copyright"
-today. The scope of that regulation is far beyond anything they
-ever considered. To begin to understand what they did, we need to put
-our "copyright" in context: We need to see how it has changed in the
-210 years since they first struck its design.
+Constitution's design in general. To avoid a problem, the framers
+built structure. To prevent the concentrated power of publishers, they
+built a structure that kept copyrights away from publishers and kept
+them short. To prevent the concentrated power of a church, they banned
+the federal government from establishing a church. To prevent
+concentrating power in the federal government, they built structures
+to reinforce the power of the states—including the Senate, whose
+members were at the time selected by the states, and an electoral
+college, also selected by the states, to select the president. In each
+case, a structure built checks and balances into the constitutional
+frame, structured to prevent otherwise inevitable concentrations of
+power.
+</para>
+<para>
+I doubt the framers would recognize the regulation we call "copyright"
+today. The scope of that regulation is far beyond anything they ever
+considered. To begin to understand what they did, we need to put our
+"copyright" in context: We need to see how it has changed in the 210
+years since they first struck its design.
</para>
<para>
Some of these changes come from the law: some in light of changes
percent immediately passed into the public domain; the balance would
pass into the pubic domain within twenty-eight years at most, and more
likely within fourteen years.<footnote><para>
-<!-- f9 -->
+<!-- f9 -->
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 Book Publishing in the United States, vol. 1, The Creation
projects / text-free-culture-lessig.git / blobdiff