<abbrev>"freeculture"</abbrev>
- <subtitle>Version 2004-02-10</subtitle>
+ <subtitle>HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
+ CULTURE AND CONTROL CREATIVITY</subtitle>
+
+ <pubdate>2004-03-25</pubdate>
+
+ <releaseinfo>Version 2004-02-10</releaseinfo>
<authorgroup>
<author>
<copyright>
<year>2004</year>
-<holder>
- Lawrence Lessig.
-This version of Free Culture is licensed
-under a Creative Commons license. This license permits
-non-commercial use of this work,
-so long as attribution is given.
-For more information about the license,
-click the icon above, or visit
+ <holder>
+Lawrence Lessig. This version of Free Culture is licensed under a
+Creative Commons license. This license permits non-commercial use of
+this work, so long as attribution is given. For more information
+about the license, click the icon above, or visit
<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
-</holder>
+ </holder>
</copyright>
<abstract>
-<title>ABOUT THE AUTHOR</title>
+ <title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
</abstract>
</bookinfo>
-<chapter id="c-info">
-<title>Info</title>
+<colophon>
<!-- PAGE BREAK 1 -->
<para>
ALSO BY LAWRENCE LESSIG
</para>
<para>
-The Future of Ideas: The Fate of the Commons
-in a Connected World
+The Future of Ideas: The Fate of the Commons in a Connected World
</para>
<para>
Code: And Other Laws of Cyberspace
participate in or encourage electronic piracy of copyrighted
materials. Your support of the author's rights is appreciated.
</para>
-<!-- PAGE BREAK 7 -->
+</colophon>
+<!-- PAGE BREAK 7 -->
+<dedication>
<para>
To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
</para>
+<para>
<figure id="CreativeCommons">
<title>Creative Commons, Some rights reserved</title>
<graphic fileref="images/cc.png"></graphic>
</figure>
+</para>
+</dedication>
<toc id="toc"></toc>
<!-- PAGE BREAK 11 -->
-</chapter>
-<chapter id="c-preface">
+<preface id="preface">
<title>PREFACE</title>
+<indexterm id="idxpoguedavid" class='startofrange'>
+ <primary>Pogue, David</primary>
+</indexterm>
<para>
At the end of his review of my first book, Code: And Other Laws of
Cyberspace, David Pogue, a brilliant writer and author of countless
</para>
</blockquote>
<para>
-Pogue was skeptical of the core argument of the book—that
- software,
-or "code," functioned as a kind of law—and his review suggested
-the happy thought that if life in cyberspace got bad, we could always
-"drizzle, drazzle, druzzle, drome"-like simply flip a switch and be back
-home. Turn off the modem, unplug the computer, and any troubles
-that exist in that space wouldn't "affect" us anymore.
+Pogue was skeptical of the core argument of the book—that
+software, or "code," functioned as a kind of law—and his review
+suggested the happy thought that if life in cyberspace got bad, we
+could always "drizzle, drazzle, druzzle, drome"-like simply flip a
+switch and be back home. Turn off the modem, unplug the computer, and
+any troubles that exist in that space wouldn't "affect" us anymore.
</para>
<para>
Pogue might have been right in 1999—I'm skeptical, but maybe.
on-line have fundamentally affected "people who aren't online." There
is no switch that will insulate us from the Internet's effect.
</para>
+<indexterm startref="idxpoguedavid" class='endofrange'/>
<para>
But unlike Code, the argument here is not much about the Internet
itself. It is instead about the consequence of the Internet to a part of
Olympia Snowe and conservative Ted Stevens," he formulated perhaps
most simply just what was at stake: the concentration of power. And as
he asked,
+<indexterm><primary>Safire, William</primary></indexterm>
</para>
<blockquote>
<para>
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy.<footnote><para> William Safire,
"The Great Media Gulp," New York Times, 22 May 2003.
+<indexterm><primary>Safire, William</primary></indexterm>
</para></footnote>
</para>
</blockquote>
book is written.
</para>
-</chapter>
+</preface>
<!-- PAGE BREAK 15 -->
<!-- PAGE BREAK 16 -->
Armstrong invented profoundly important technologies that advanced our
understanding of radio.
<!-- PAGE BREAK 19 -->
+<indexterm><primary>Bell, Alexander Graham</primary></indexterm>
+<indexterm><primary>Edison, Thomas</primary></indexterm>
+<indexterm><primary>Faraday, Michael</primary></indexterm>
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
much less transmitter power and static.
</para>
<para>
-On November 5, 1935, he demonstrated the technology at a meeting
-of the Institute of Radio Engineers at the Empire State Building in
-New York City. He tuned his radio dial across a range of AM stations,
-until the radio locked on a broadcast that he had arranged from
- seventeen
-miles away. The radio fell totally silent, as if dead, and then with a
-clarity no one else in that room had ever heard from an electrical
- device,
-it produced the sound of an announcer's voice: "This is amateur
-station W2AG at Yonkers, New York, operating on frequency
- modulation
-at two and a half meters."
+On November 5, 1935, he demonstrated the technology at a meeting of
+the Institute of Radio Engineers at the Empire State Building in New
+York City. He tuned his radio dial across a range of AM stations,
+until the radio locked on a broadcast that he had arranged from
+seventeen miles away. The radio fell totally silent, as if dead, and
+then with a clarity no one else in that room had ever heard from an
+electrical device, it produced the sound of an announcer's voice:
+"This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters."
</para>
<para>
The audience was hearing something no one had thought possible:
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was
-crumpled and torn; it sounded like paper and not like a crackling
-forest fire. . . . Sousa marches were played from records and a
- piano
-solo and guitar number were performed. . . . The music was
-projected with a live-ness rarely if ever heard before from a radio
-"music box."<footnote><para>
+sounded like a glass of water being poured. . . . A paper was crumpled
+and torn; it sounded like paper and not like a crackling forest
+fire. . . . Sousa marches were played from records and a piano solo
+and guitar number were performed. . . . The music was projected with a
+live-ness rarely if ever heard before from a radio "music
+box."<footnote><para>
Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
</para>
</blockquote>
<para>
-As our own common sense tells us, Armstrong had discovered a
-vastly superior radio technology. But at the time of his invention,
- Armstrong
-was working for RCA. RCA was the dominant player in the
-then dominant AM radio market. By 1935, there were a thousand radio
-stations across the United States, but the stations in large cities were all
-owned by a handful of networks.
+As our own common sense tells us, Armstrong had discovered a vastly
+superior radio technology. But at the time of his invention, Armstrong
+was working for RCA. RCA was the dominant player in the then dominant
+AM radio market. By 1935, there were a thousand radio stations across
+the United States, but the stations in large cities were all owned by
+a handful of networks.
<!-- PAGE BREAK 20 -->
</para>
<para>
Sarnoff was quite excited when Armstrong told him he had a device
that removed static from "radio." But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
+<indexterm><primary>Sarnoff, David</primary></indexterm>
</para>
<blockquote>
<para>
I thought Armstrong would invent some kind of a filter to remove
-static from our AM radio. I didn't think he'd start a revolution—
-start up a whole damn new industry to compete with RCA.<footnote><para>
-See "Saints: The Heroes and Geniuses of the Electronic Era," First
- Electronic
-Church of America, at www.webstationone.com/fecha, available at
+static from our AM radio. I didn't think he'd start a
+revolution— start up a whole damn new industry to compete with
+RCA.<footnote><para> See "Saints: The Heroes and Geniuses of the
+Electronic Era," First Electronic Church of America, at
+www.webstationone.com/fecha, available at
<ulink url="http://free-culture.cc/notes/">link #1</ulink>.
</para></footnote>
launched a campaign to smother FM radio. While FM may have been a
superior technology, Sarnoff was a superior tactician. As one author
described,
+<indexterm><primary>Sarnoff, David</primary></indexterm>
</para>
<blockquote>
<para>
to themselves, would crumble in
<!-- PAGE BREAK 22 -->
another, are sustained through this subtle corruption of our political
-process. RCA had what the Causbys did not: the power to stifle the
- effect
-of technological change.
+process. RCA had what the Causbys did not: the power to stifle the
+effect of technological change.
</para>
<para>
-There's no single inventor of the Internet. Nor is there any good
-date upon which to mark its birth. Yet in a very short time, the
- Internet
+There's no single inventor of the Internet. Nor is there any good date
+upon which to mark its birth. Yet in a very short time, the Internet
has become part of ordinary American life. According to the Pew
-Internet and American Life Project, 58 percent of Americans had
- access
-
to the Internet in 2002, up from 49 percent two years before.<footnote><para>
-Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look
-at Internet Access and the Digital Divide," Pew Internet and American
-Life Project, 15 April 2003: 6, available at
+Internet and American Life Project, 58 percent of Americans had access
+to the Internet in 2002, up from 49 percent two years
+before.<footnote><para>
+Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at
+Internet Access and the Digital Divide," Pew Internet and American
+Life Project, 15 April 2003: 6, available at
<ulink url="http://free-culture.cc/notes/">link #2</ulink>.
</para></footnote>
That number could well exceed two thirds of the nation by the end
the Internet. But this is not a book about the Internet.
</para>
<para>
-Instead, this book is about an effect of the Internet beyond the
- Internet
-itself: an effect upon how culture is made. My claim is that the
-Internet has induced an important and unrecognized change in that
-process. That change will radically transform a tradition that is as old as
-the Republic itself. Most, if they recognized this change, would reject
-it. Yet most don't even see the change that the Internet has introduced.
+Instead, this book is about an effect of the Internet beyond the
+Internet itself: an effect upon how culture is made. My claim is that
+the Internet has induced an important and unrecognized change in that
+process. That change will radically transform a tradition that is as
+old as the Republic itself. Most, if they recognized this change,
+would reject it. Yet most don't even see the change that the Internet
+has introduced.
</para>
<para>
We can glimpse a sense of this change by distinguishing between
-commercial and noncommercial culture, and by mapping the law's
- regulation
-of each. By "commercial culture" I mean that part of our culture
-that is produced and sold or produced to be sold. By "noncommercial
-culture" I mean all the rest. When old men sat around parks or on
+commercial and noncommercial culture, and by mapping the law's
+regulation of each. By "commercial culture" I mean that part of our
+culture that is produced and sold or produced to be sold. By
+"noncommercial culture" I mean all the rest. When old men sat around
+parks or on
<!-- PAGE BREAK 23 -->
street corners telling stories that kids and others consumed, that was
-noncommercial culture. When Noah Webster published his "Reader,"
-or Joel Barlow his poetry, that was commercial culture.
+noncommercial culture. When Noah Webster published his "Reader," or
+Joel Barlow his poetry, that was commercial culture.
</para>
<para>
At the beginning of our history, and for just about the whole of our
tradition, noncommercial culture was essentially unregulated. Of
-course, if your stories were lewd, or if your song disturbed the peace,
-then the law might intervene. But the law was never directly concerned
-with the creation or spread of this form of culture, and it left this
- culture
-"free." The ordinary ways in which ordinary individuals shared and
-transformed their culture—telling stories, reenacting scenes from plays
-or TV, participating in fan clubs, sharing music, making tapes—were
-left alone by the law.
+course, if your stories were lewd, or if your song disturbed the
+peace, then the law might intervene. But the law was never directly
+concerned with the creation or spread of this form of culture, and it
+left this culture "free." The ordinary ways in which ordinary
+individuals shared and transformed their culture—telling
+stories, reenacting scenes from plays or TV, participating in fan
+clubs, sharing music, making tapes—were left alone by the law.
</para>
<para>
The focus of the law was on commercial creativity. At first slightly,
198–200.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</para></footnote>
-This is also, of
-course, an important part of creativity and culture, and it has become
-an increasingly important part in America. But in no sense was it
- dominant
-within our tradition. It was instead just one part, a controlled
-part, balanced with the free.
+This is also, of course, an important part of creativity and culture,
+and it has become an increasingly important part in America. But in no
+sense was it dominant within our tradition. It was instead just one
+part, a controlled part, balanced with the free.
</para>
<para>
This rough divide between the free and the controlled has now
See Jessica Litman, Digital Copyright (New York: Prometheus Books,
2001), ch. 13.
</para></footnote>
-The Internet has set the stage for this erasure and,
-pushed by big media, the law has now affected it. For the first time in
-our tradition, the ordinary ways in which individuals create and share
-culture fall within the reach of the regulation of the law, which has
- expanded
-to draw within its control a vast amount of culture and
- creativity
-that it never reached before. The technology that preserved the
-balance of our history—between uses of our culture that were free and
-uses of our culture that were only upon permission—has been undone.
-The consequence is that we are less and less a free culture, more and
-more a permission culture.
+The Internet has set the stage for this erasure and, pushed by big
+media, the law has now affected it. For the first time in our
+tradition, the ordinary ways in which individuals create and share
+culture fall within the reach of the regulation of the law, which has
+expanded to draw within its control a vast amount of culture and
+creativity that it never reached before. The technology that preserved
+the balance of our history—between uses of our culture that were
+free and uses of our culture that were only upon permission—has
+been undone. The consequence is that we are less and less a free
+culture, more and more a permission culture.
</para>
<!-- PAGE BREAK 24 -->
<para>
-This change gets justified as necessary to protect commercial
- creativity.
-And indeed, protectionism is precisely its motivation. But the
-protectionism that justifies the changes that I will describe below is not
-the limited and balanced sort that has defined the law in the past. This
-is not a protectionism to protect artists. It is instead a protectionism
-to protect certain forms of business. Corporations threatened by the
-potential of the Internet to change the way both commercial and
-noncommercial culture are made and shared have united to induce
-lawmakers to use the law to protect them. It is the story of RCA and
-Armstrong; it is the dream of the Causbys.
+This change gets justified as necessary to protect commercial
+creativity. And indeed, protectionism is precisely its
+motivation. But the protectionism that justifies the changes that I
+will describe below is not the limited and balanced sort that has
+defined the law in the past. This is not a protectionism to protect
+artists. It is instead a protectionism to protect certain forms of
+business. Corporations threatened by the potential of the Internet to
+change the way both commercial and noncommercial culture are made and
+shared have united to induce lawmakers to use the law to protect
+them. It is the story of RCA and Armstrong; it is the dream of the
+Causbys.
</para>
<para>
For the Internet has unleashed an extraordinary possibility for many
-to participate in the process of building and cultivating a culture that
-reaches far beyond local boundaries. That power has changed the
- marketplace
-for making and cultivating culture generally, and that change
-in turn threatens established content industries. The Internet is thus to
-the industries that built and distributed content in the twentieth
- century
-what FM radio was to AM radio, or what the truck was to the
-railroad industry of the nineteenth century: the beginning of the end,
-or at least a substantial transformation. Digital technologies, tied to the
-Internet, could produce a vastly more competitive and vibrant market
-for building and cultivating culture; that market could include a much
-wider and more diverse range of creators; those creators could produce
-and distribute a much more vibrant range of creativity; and depending
-upon a few important factors, those creators could earn more on average
-from this system than creators do today—all so long as the RCAs of our
-day don't use the law to protect themselves against this competition.
-</para>
-<para>
-Yet, as I argue in the pages that follow, that is precisely what is
- happening
-in our culture today. These modern-day equivalents of the early
-twentieth-century radio or nineteenth-century railroads are using their
-power to get the law to protect them against this new, more efficient,
-more vibrant technology for building culture. They are succeeding in
-their plan to remake the Internet before the Internet remakes them.
+to participate in the process of building and cultivating a culture
+that reaches far beyond local boundaries. That power has changed the
+marketplace for making and cultivating culture generally, and that
+change in turn threatens established content industries. The Internet
+is thus to the industries that built and distributed content in the
+twentieth century what FM radio was to AM radio, or what the truck was
+to the railroad industry of the nineteenth century: the beginning of
+the end, or at least a substantial transformation. Digital
+technologies, tied to the Internet, could produce a vastly more
+competitive and vibrant market for building and cultivating culture;
+that market could include a much wider and more diverse range of
+creators; those creators could produce and distribute a much more
+vibrant range of creativity; and depending upon a few important
+factors, those creators could earn more on average from this system
+than creators do today—all so long as the RCAs of our day don't
+use the law to protect themselves against this competition.
+</para>
+<para>
+Yet, as I argue in the pages that follow, that is precisely what is
+happening in our culture today. These modern-day equivalents of the
+early twentieth-century radio or nineteenth-century railroads are
+using their power to get the law to protect them against this new,
+more efficient, more vibrant technology for building culture. They are
+succeeding in their plan to remake the Internet before the Internet
+remakes them.
</para>
<para>
It doesn't seem this way to many. The battles over copyright and the
mainly about a much simpler brace of questions—whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
has been waged against the technologies of the Internet—what
- Motion
-Picture Association of America (MPAA) president Jack Valenti
+Motion Picture Association of America (MPAA) president Jack Valenti
calls his "own terrorist war"<footnote><para>
Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates
Use New Tools to Turn the Net into an Illicit Video Club," New York
</para>
<para>
If those really were the choices, then I would be with Jack Valenti
-and the content industry. I, too, am a believer in property, and
- especially
-in the importance of what Mr. Valenti nicely calls "creative
- property."
-I believe that "piracy" is wrong, and that the law, properly tuned,
-should punish "piracy," whether on or off the Internet.
+and the content industry. I, too, am a believer in property, and
+especially in the importance of what Mr. Valenti nicely calls
+"creative property." I believe that "piracy" is wrong, and that the
+law, properly tuned, should punish "piracy," whether on or off the
+Internet.
</para>
<para>
But those simple beliefs mask a much more fundamental question
the noble class live easily; those outside it don't. But it is
nobility of any form that is alien to our tradition.
</para>
-<!-- PAGE BREAK 26 -->
+<!-- PAGE BREAK 26. FIXME: Should "Is it" be "It is" ? -->
<para>
-The story that follows is about this war. Is it not about the
- "centrality
-of technology" to ordinary life. I don't believe in gods, digital or
-otherwise. Nor is it an effort to demonize any individual or group, for
-neither do I believe in a devil, corporate or otherwise. It is not a
- morality
-tale. Nor is it a call to jihad against an industry.
+The story that follows is about this war. Is it not about the
+"centrality of technology" to ordinary life. I don't believe in gods,
+digital or otherwise. Nor is it an effort to demonize any individual
+or group, for neither do I believe in a devil, corporate or
+otherwise. It is not a morality tale. Nor is it a call to jihad
+against an industry.
</para>
<para>
-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 understanding this battle, it is an effort to map peace.
-There is no good reason for the current struggle around Internet
- technologies
-to continue. There will be great harm to our tradition and
-culture if it is allowed to continue unchecked. We must come to
- understand
-the source of this war. We must resolve it soon.
+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 understanding this battle, it is an effort to map
+peace. There is no good reason for the current struggle around
+Internet technologies to continue. There will be great harm to our
+tradition and culture if it is allowed to continue unchecked. We must
+come to understand the source of this war. We must resolve it soon.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
on its side.
</para>
<para>
-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 importantly, its power to disable critical thought by policy
-makers and citizens. There has never been a time in our history when
-more of our "culture" was as "owned" as it is now. And yet there has
-never been a time when the concentration of power to control the uses
-of culture has been as unquestioningly accepted as it is now.
+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
+importantly, its power to disable critical thought by policy makers
+and citizens. There has never been a time in our history when more of
+our "culture" was as "owned" as it is now. And yet there has never
+been a time when the concentration of power to control the uses of
+culture has been as unquestioningly accepted as it is now.
</para>
<para>
-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
- because
-we have discovered that our tradition of rejecting such an
- absolute
-claim was wrong?
+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 because we have discovered that our tradition of
+rejecting such an absolute claim was wrong?
</para>
<para>
Or is it because the idea of absolute property over ideas and culture
of a political system captured by a few powerful special interests?
</para>
<para>
-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 the face of these extremes because, as with
- Armstrong
-versus RCA, the more powerful side has ensured that it has the
-more powerful view?
+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 the face of these extremes because, as with Armstrong versus
+RCA, the more powerful side has ensured that it has the more powerful
+view?
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
</para>
<para>
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 theorists—however natural that is for the weird sort we
-academics have become. Instead I begin in each part with a collection
-of stories that set a context within which these apparently simple ideas
-can be more fully understood.
+plunge you into a complex argument, buttressed with references to
+obscure French theorists—however natural that is for the weird
+sort we academics have become. Instead I begin in each part with a
+collection of stories that set a context within which these apparently
+simple ideas can be more fully understood.
</para>
<para>
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 big media to respond to this "something new," is
+Internet has indeed produced something fantastic and new, our
+government, pushed by big media to respond to this "something new," is
destroying something very old. Rather than understanding the changes
the Internet might permit, and rather than taking time to let "common
-sense" resolve how best to respond, we are allowing those most
- threatened
-by the changes to use their power to change the law—and more
-importantly, to use their power to change something fundamental about
-who we have always been.
+sense" resolve how best to respond, we are allowing those most
+threatened by the changes to use their power to change the
+law—and more importantly, to use their power to change something
+fundamental about who we have always been.
</para>
<para>
We allow this, I believe, not because it is right, and not because
<title>"PIRACY"</title>
<!-- PAGE BREAK 30 -->
+<indexterm id="idxmansfield1" class='startofrange'>
+ <primary>Mansfield, William Murray, Lord</primary>
+</indexterm>
<para>
-Since the inception of the law regulating creative property, there
-has been a war against "piracy." The precise contours of this concept,
-"piracy," are hard to sketch, but the animating injustice is easy to
- capture.
-As Lord Mansfield wrote in a case that extended the reach of
+Since the inception of the law regulating creative property, there has
+been a war against "piracy." The precise contours of this concept,
+"piracy," are hard to sketch, but the animating injustice is easy to
+capture. As Lord Mansfield wrote in a case that extended the reach of
English copyright law to include sheet music,
</para>
<blockquote>
Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
</para></footnote>
</para>
+<indexterm startref="idxmansfield1" class='endofrange'/>
</blockquote>
<para>
Today we are in the middle of another "war" against "piracy." The
-Internet has provoked this war. The Internet makes possible the
- efficient
-spread of content. Peer-to-peer (p2p) file sharing is among the
-most efficient of the efficient technologies the Internet enables. Using
-distributed intelligence, p2p systems facilitate the easy spread of
- content
-in a way unimagined a generation ago.
+Internet has provoked this war. The Internet makes possible the
+efficient spread of content. Peer-to-peer (p2p) file sharing is among
+the most efficient of the efficient technologies the Internet
+enables. Using distributed intelligence, p2p systems facilitate the
+easy spread of content in a way unimagined a generation ago.
<!-- PAGE BREAK 31 -->
</para>
<para>
This efficiency does not respect the traditional lines of copyright.
The network doesn't discriminate between the sharing of copyrighted
-and uncopyrighted content. Thus has there been a vast amount of
- sharing
-of copyrighted content. That sharing in turn has excited the war, as
-copyright owners fear the sharing will "rob the author of the profit."
+and uncopyrighted content. Thus has there been a vast amount of
+sharing of copyrighted content. That sharing in turn has excited the
+war, as copyright owners fear the sharing will "rob the author of the
+profit."
</para>
<para>
-The warriors have turned to the courts, to the legislatures, and
- increasingly
-to technology to defend their "property" against this "piracy."
-A generation of Americans, the warriors warn, is being raised to
- believe
-that "property" should be "free." Forget tattoos, never mind body
-piercing—our kids are becoming thieves!
+The warriors have turned to the courts, to the legislatures, and
+increasingly to technology to defend their "property" against this
+"piracy." A generation of Americans, the warriors warn, is being
+raised to believe that "property" should be "free." Forget tattoos,
+never mind body piercing—our kids are becoming thieves!
</para>
<para>
There's no doubt that "piracy" is wrong, and that pirates should be
piracy.
</para>
</blockquote>
+<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the "if value, then right"
<ulink url="http://free-culture.cc/notes/">link #3</ulink>; Jonathan
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins," Boston Globe, 24 November 2002.
+<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
There was "value" (the songs) so there must have been a
"right"—even against the Girl Scouts.
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
<!-- PAGE BREAK 32 -->
-of law protecting creative property. But the "if value, then right" theory
-of creative property has never been America's theory of creative
- property.
-It has never taken hold within our law.
+of law protecting creative property. But the "if value, then right"
+theory of creative property has never been America's theory of
+creative property. It has never taken hold within our law.
</para>
<para>
Instead, in our tradition, intellectual property is an instrument. It
synchronization was pretty close.
</para>
<para>
-The effect on our little audience was nothing less than
- electric.
-They responded almost instinctively to this union of sound
-and motion. I thought they were kidding me. So they put me in
-the audience and ran the action again. It was terrible, but it was
-wonderful! And it was something new!<footnote><para>
+The effect on our little audience was nothing less than electric.
+They responded almost instinctively to this union of sound and
+motion. I thought they were kidding me. So they put me in the audience
+and ran the action again. It was terrible, but it was wonderful! And
+it was something new!<footnote><para>
<!-- f1 -->
-Leonard Maltin, Of Mice and Magic: A History of American Animated
- Cartoons
-(New York: Penguin Books, 1987), 34–35.
+Leonard Maltin, Of Mice and Magic: A History of American Animated
+Cartoons (New York: Penguin Books, 1987), 34–35.
</para></footnote>
</para>
</blockquote>
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 life. Nothing since has ever equaled it."
+<indexterm><primary>Iwerks, Ub</primary></indexterm>
</para>
<para>
Disney had created something very new, based upon something relatively
believe in the value of that weird form of property that lawyers call
"intellectual property."<footnote><para>
<!-- f7 -->
-The term intellectual property is of relatively recent origin. See Siva
- Vaidhyanathan,
-Copyrights and Copywrongs, 11 (New York: New York
- University
-Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York:
-Random House, 2001), 293 n. 26. The term accurately describes a set of
-"property" rights—copyright, patents, trademark, and trade-secret—but the
-nature of those rights is very different.
-</para></footnote>
-A large, diverse society cannot survive without
- property;
-a large, diverse, and modern society cannot flourish without
-intellectual property.
+The term intellectual property is of relatively recent origin. See
+Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York
+University Press, 2001). See also Lawrence Lessig, The Future of Ideas
+(New York: Random House, 2001), 293 n. 26. The term accurately
+describes a set of "property" rights—copyright, patents,
+trademark, and trade-secret—but the nature of those rights is
+very different.
+</para></footnote>
+A large, diverse society cannot survive without property; a large,
+diverse, and modern society cannot flourish without intellectual
+property.
</para>
<para>
But it takes just a second's reflection to realize that there is
glass, and thus it was still not a process within reach of most
amateurs.
</para>
+<indexterm id="idxeastmangeorge" class='startofrange'>
+ <primary>Eastman, George</primary>
+</indexterm>
<para>
The technological change that made mass photography possible
didn't happen until 1888, and was the creation of a single man. George
doing something with media. By doing, they think. By tinkering, they
learn.
</para>
+<indexterm startref="idxeastmangeorge" class='endofrange'/>
<para>
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
real-time digital video editing system cost $25,000. Today you can get
professional quality for $595."<footnote><para>
<!-- f9 -->
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
- Software
-You Need to Create Digital Multimedia Presentations," cadalyst,
-February 2002, available at
+H. Edward Goldberg, "Essential Presentation Tools: Hardware and
+Software You Need to Create Digital Multimedia Presentations,"
+cadalyst, February 2002, available at
<ulink url="http://free-culture.cc/notes/">link #7</ulink>.
</para></footnote>
-These buses are filled with technology that
-would have cost hundreds of thousands just ten years ago. And it is
-now feasible to imagine not just buses like this, but classrooms across
-the country where kids are learning more and more of something
-teachers call "media literacy."
+These buses are filled with technology that would have cost hundreds
+of thousands just ten years ago. And it is now feasible to imagine not
+just buses like this, but classrooms across the country where kids are
+learning more and more of something teachers call "media literacy."
</para>
<para>
<!-- PAGE BREAK 49 -->
deconstruct media images. Its aim is to make [kids] literate about the
way media works, the way it's constructed, the way it's delivered, and
the way people access it."
+<indexterm><primary>Yanofsky, Dave</primary></indexterm>
</para>
<para>
This may seem like an odd way to think about "literacy." For most
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
Study," Denver Post, 25 May 1997, B6.
</para></footnote>
-it is increasingly important to understand the
-"grammar" of media. For just as there is a grammar for the written
-word, so, too, is there one for media. And just as kids learn how to write
-by writing lots of terrible prose, kids learn how to write media by
- constructing
-lots of (at least at first) terrible media.
+it is increasingly important to understand the "grammar" of media. For
+just as there is a grammar for the written word, so, too, is there one
+for media. And just as kids learn how to write by writing lots of
+terrible prose, kids learn how to write media by constructing lots of
+(at least at first) terrible media.
</para>
<para>
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 understands how difficult writing is—how difficult it is to
- sequence
-the story, to keep a reader's attention, to craft language to be
-understandable—few of us have any real sense of how difficult media
-is. Or more fundamentally, few of us have a sense of how media works,
-how it holds an audience or leads it through a story, how it triggers
-emotion or builds suspense.
+as crucial to the next generation of culture. For though anyone who
+has written understands how difficult writing is—how difficult
+it is to sequence the story, to keep a reader's attention, to craft
+language to be understandable—few of us have any real sense of
+how difficult media is. Or more fundamentally, few of us have a sense
+of how media works, how it holds an audience or leads it through a
+story, how it triggers emotion or builds suspense.
</para>
<para>
It took filmmaking a generation before it could do these things well.
twentieth century.
</para>
<para>
-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
-the craft of writing. Or best, reading and understanding the
-tools that enable the writing to lead or mislead. The aim of any literacy,
+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 the craft of writing. Or best, reading and understanding
+the tools that enable the writing to lead or mislead. The aim of any
+literacy,
<!-- PAGE BREAK 51 -->
-and this literacy in particular, is to "empower people to choose the
- appropriate
-language for what they need to create or express."<footnote>
+and this literacy in particular, is to "empower people to choose the
+appropriate language for what they need to create or
+express."<footnote>
<para>
<!-- f13 -->
Interview with Daley and Barish.
<indexterm><primary>Barish, Stephanie</primary></indexterm>
-</para></footnote> It is to enable
-
students "to communicate in the language of the twenty-first century."<footnote><para>
+</para></footnote> It is to enable students "to communicate in the
+language of the twenty-first century."<footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<!-- PAGE BREAK 52 -->
"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
-explained, is about giving students a way of "constructing
- meaning."
-To say that that means just writing is like saying teaching writing
-is only about teaching kids how to spell. Text is one part—and
- increasingly,
-not the most powerful part—of constructing meaning. As Daley
-explained in the most moving part of our interview,
+of course, it is. But why are we teaching kids to write? Education,
+Daley explained, is about giving students a way of "constructing
+meaning." To say that that means just writing is like saying teaching
+writing is only about teaching kids how to spell. Text is one
+part—and increasingly, not the most powerful part—of
+constructing meaning. As Daley explained in the most moving part of
+our interview,
</para>
<blockquote>
<para>
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.<footnote><para>
<!-- f16 -->
-Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
- Political
-Philosophy 10 (2) (2002): 129.
-</para></footnote>
-And in some towns in
-New England, something close to deliberation remains. But for most
-of us for most of the time, there is no time or place for "democratic
- deliberation"
-to occur.
-</para>
-<para>
-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 against talking about politics. It's fine to talk about
- politics
-with people you agree with. But it is rude to argue about politics
-with people you disagree with. Political discourse becomes isolated,
-and isolated discourse becomes more extreme.<footnote><para>
+Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
+Political Philosophy 10 (2) (2002): 129.
+</para></footnote>
+And in some towns in New England, something close to deliberation
+remains. But for most of us for most of the time, there is no time or
+place for "democratic deliberation" to occur.
+</para>
+<para>
+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 against talking about politics. It's fine to talk about
+politics with people you agree with. But it is rude to argue about
+politics with people you disagree with. Political discourse becomes
+isolated, and isolated discourse becomes more extreme.<footnote><para>
<!-- f17 -->
Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
65–80, 175, 182, 183, 192.
-</para></footnote> We say what our
-friends want to hear, and hear very little beyond what our friends say.
+</para></footnote> We say what our friends want to hear, and hear very
+little beyond what our friends say.
</para>
<para>
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 to read. The most difficult time is synchronous time.
- Technologies
-that enable asynchronous communication, such as e-mail,
+problem. People post when they want to post, and people read when they
+want to read. The most difficult time is synchronous time.
+Technologies that enable asynchronous communication, such as e-mail,
increase the opportunity for communication. Blogs allow for public
<!-- PAGE BREAK 56 -->
</para>
<para>
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 blogs. Yet even if the number of readers is small, the
- reading
+name Howard Dean may well have faded from the 2004 presidential race
+but for blogs. Yet even if the number of readers is small, the reading
is having an effect.
</para>
<para>
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
-"misspoke" at a party for Senator Strom Thurmond, essentially
- praising
+"misspoke" at a party for Senator Strom Thurmond, essentially praising
Thurmond's segregationist policies, he calculated correctly that this
story would disappear from the mainstream press within forty-eight
-hours. It did. But he didn't calculate its life cycle in blog space. The
-bloggers kept researching the story. Over time, more and more
- instances
-of the same "misspeaking" emerged. Finally, the story broke
-back into the mainstream press. In the end, Lott was forced to resign
-as senate majority leader.<footnote><para>
+hours. It did. But he didn't calculate its life cycle in blog
+space. The bloggers kept researching the story. Over time, more and
+more instances of the same "misspeaking" emerged. Finally, the story
+broke back into the mainstream press. In the end, Lott was forced to
+resign as senate majority leader.<footnote><para>
<!-- f18 -->
Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
York Times, 16 January 2003, G5.
be the last thing that gets shut down."
</para>
<para>
-This speech affects democracy. Winer thinks that happens because
-"you don't have to work for somebody who controls, [for] a
- gatekeeper."
-That is true. But it affects democracy in another way as well.
-As more and more citizens express what they think, and defend it in
-writing, that will change the way people understand public issues. It is
-easy to be wrong and misguided in your head. It is harder when the
-product of your mind can be criticized by others. Of course, it is a rare
-human who admits that he has been persuaded that he is wrong. But it
-is even rarer for a human to ignore when he has been proven wrong.
+This speech affects democracy. Winer thinks that happens because "you
+don't have to work for somebody who controls, [for] a gatekeeper."
+That is true. But it affects democracy in another way as well. As
+more and more citizens express what they think, and defend it in
+writing, that will change the way people understand public issues. It
+is easy to be wrong and misguided in your head. It is harder when the
+product of your mind can be criticized by others. Of course, it is a
+rare human who admits that he has been persuaded that he is wrong. But
+it is even rarer for a human to ignore when he has been proven wrong.
The writing of ideas, arguments, and criticism improves democracy.
Today there are probably a couple of million blogs where such writing
-happens. When there are ten million, there will be something
- extraordinary
-to report.
+happens. When there are ten million, there will be something
+extraordinary to report.
</para>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
creation of knowledge ecologies for creating . . . innovation."
</para>
<para>
-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
-excited about any technology that might improve democracy. But his
-real excitement comes from how these technologies affect learning.
+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 excited about any technology that might improve
+democracy. But his real excitement comes from how these technologies
+affect learning.
</para>
<para>
-As Brown believes, we learn by tinkering. When "a lot of us grew
-up," he explains, that tinkering was done "on motorcycle engines,
- lawnmower
-engines, automobiles, radios, and so on." But digital
- technologies
+As Brown believes, we learn by tinkering. When "a lot of us grew up,"
+he explains, that tinkering was done "on motorcycle engines, lawnmower
+engines, automobiles, radios, and so on." But digital technologies
enable a different kind of tinkering—with abstract ideas though
-in concrete form. The kids at Just Think! not only think about how
-a commercial portrays a politician; using digital technology, they can
+in concrete form. The kids at Just Think! not only think about how a
+commercial portrays a politician; using digital technology, they can
<!-- PAGE BREAK 59 -->
take the commercial apart and manipulate it, tinker with it to see how
-it does what it does. Digital technologies launch a kind of bricolage, or
-"free collage," as Brown calls it. Many get to add to or transform the
-tinkering of many others.
+it does what it does. Digital technologies launch a kind of bricolage,
+or "free collage," as Brown calls it. Many get to add to or transform
+the tinkering of many others.
</para>
<para>
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 code is shared. Anyone can download the technology that makes
-a FS/OSS program run. And anyone eager to learn how a particular bit
-of FS/OSS technology works can tinker with the code.
+source code is shared. Anyone can download the technology that makes a
+FS/OSS program run. And anyone eager to learn how a particular bit of
+FS/OSS technology works can tinker with the code.
</para>
<para>
-This opportunity creates a "completely new kind of learning
- platform,"
+This opportunity creates a "completely new kind of learning platform,"
as Brown describes. "As soon as you start doing that, you . . .
-unleash a free collage on the community, so that other people can start
-looking at your code, tinkering with it, trying it out, seeing if they can
-improve it." Each effort is a kind of apprenticeship. "Open source
- becomes
-a major apprenticeship platform."
+unleash a free collage on the community, so that other people can
+start looking at your code, tinkering with it, trying it out, seeing
+if they can improve it." Each effort is a kind of
+apprenticeship. "Open source becomes a major apprenticeship platform."
</para>
<para>
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,
-and this tinkering is no longer an isolated activity that you're
- doing
-in your garage. You are tinkering with a community platform. . . .
-You are tinkering with other people's stuff. The more you tinker the
-more you improve." The more you improve, the more you learn.
-</para>
-<para>
-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, "the Web [is] the first medium that truly honors
- multiple
-forms of intelligence." Earlier technologies, such as the typewriter
-or word processors, helped amplify text. But the Web amplifies much
-more than text. "The Web . . . says if you are musical, if you are
- artistic,
-if you are visual, if you are interested in film . . . [then] there is a lot
-you can start to do on this medium. [It] can now amplify and honor
+They are code." Kids are "shifting to the ability to tinker in the
+abstract, and this tinkering is no longer an isolated activity that
+you're doing in your garage. You are tinkering with a community
+platform. . . . You are tinkering with other people's stuff. The more
+you tinker the more you improve." The more you improve, the more you
+learn.
+</para>
+<para>
+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, "the Web [is] the first medium that truly honors multiple forms of
+intelligence." Earlier technologies, such as the typewriter or word
+processors, helped amplify text. But the Web amplifies much more than
+text. "The Web . . . says if you are musical, if you are artistic, if
+you are visual, if you are interested in film . . . [then] there is a
+lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
</para>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
-Brown is talking about what Elizabeth Daley, Stephanie Barish,
-and Just Think! teach: that this tinkering with culture teaches as well
+Brown is talking about what Elizabeth Daley, Stephanie Barish, and
+Just Think! teach: that this tinkering with culture teaches as well
<!-- PAGE BREAK 60 -->
-as creates. It develops talents differently, and it builds a different kind
-of recognition.
+as creates. It develops talents differently, and it builds a different
+kind of recognition.
</para>
<para>
Yet the freedom to tinker with these objects is not guaranteed.
be on users' computers.
</para>
<para>
-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 of information pamphlets; movie clips that
- students
+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 of information pamphlets; movie clips that students
might have created; university brochures—basically anything that
<!-- PAGE BREAK 63 -->
users of the RPI network made available in a public folder of their
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore "willfully" violated copyright laws. They
<!-- PAGE BREAK 64 -->
- demanded
-that he pay them the damages for his wrong. For cases of
+demanded that he pay them the damages for his wrong. For cases of
"willful infringement," the Copyright Act specifies something lawyers
call "statutory damages." These damages permit a copyright owner to
claim $150,000 per infringement. As the RIAA alleged more than one
-hundred specific copyright infringements, they therefore demanded
-that Jesse pay them at least $15,000,000.
+hundred specific copyright infringements, they therefore demanded that
+Jesse pay them at least $15,000,000.
</para>
<para>
Similar lawsuits were brought against three other students: one
the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159. </para></footnote>
+<indexterm><primary>General Film Company</primary></indexterm>
+<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para>
</blockquote>
<para>
of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
+
To Amend and Consolidate the Acts Respecting Copyright, 283–84
-(statement of Albert Walker, representative of the Auto-Music
- Perforating
-Company of New York).
-</para></footnote> In any case, the innovators
-argued, the job of Congress was "to consider first the interest of [the
-public], whom they represent, and whose servants they are." "All talk
-about `theft,'" the general counsel of the American Graphophone
-Company wrote, "is the merest claptrap, for there exists no property in
-
ideas musical, literary or artistic, except as defined by statute."<footnote><para>
+(statement of Albert Walker, representative of the Auto-Music
+Perforating Company of New York).
+</para></footnote> In any case, the innovators argued, the job of
+Congress was "to consider first the interest of [the public], whom
+they represent, and whose servants they are." "All talk about
+`theft,'" the general counsel of the American Graphophone Company
+wrote, "is the merest claptrap, for there exists no property in ideas
+musical, literary or artistic, except as defined by
+statute."<footnote><para>
<!-- f9 -->
-To Amend and Consolidate the Acts Respecting Copyright, 376
- (prepared
-memorandum of Philip Mauro, general patent counsel of the
- American
+To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
+memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
</para>
<para>
-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 for the "mechanical reproductions" of their
-music. But rather than simply granting the composer complete
- control
-over the right to make mechanical reproductions, Congress gave
-recording artists a right to record the music, at a price set by Congress,
-once the composer allowed it to be recorded once. This is the part of
+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 for the "mechanical reproductions" of their music. But
+rather than simply granting the composer complete control over the
+right to make mechanical reproductions, Congress gave recording
+artists a right to record the music, at a price set by Congress, once
+the composer allowed it to be recorded once. This is the part of
<!-- PAGE BREAK 70 -->
-copyright law that makes cover songs possible. Once a composer
- authorizes
-a recording of his song, others are free to record the same
+copyright law that makes cover songs possible. Once a composer
+authorizes a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
</para>
<para>
American law ordinarily calls this a "compulsory license," but I will
-refer to it as a "statutory license." A statutory license is a license whose
-key terms are set by law. After Congress's amendment of the Copyright
-Act in 1909, record companies were free to distribute copies of
- recordings
-so long as they paid the composer (or copyright holder) the fee set
-by the statute.
+refer to it as a "statutory license." A statutory license is a license
+whose key terms are set by law. After Congress's amendment of the
+Copyright Act in 1909, record companies were free to distribute copies
+of recordings so long as they paid the composer (or copyright holder)
+the fee set by the statute.
</para>
<para>
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.
+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.
+<indexterm><primary>Grisham, John</primary></indexterm>
</para>
-<indexterm><primary>Beatles</primary></indexterm>
<para>
But the law governing recordings gives recording artists less. And
-thus, in effect, the law subsidizes the recording industry through a kind
-of piracy—by giving recording artists a weaker right than it otherwise
-gives creative authors. The Beatles have less control over their creative
-work than Grisham does. And the beneficiaries of this less control are
-the recording industry and the public. The recording industry gets
-something of value for less than it otherwise would pay; the public gets
-access to a much 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.<footnote><para>
+thus, in effect, the law subsidizes the recording industry through a
+kind of piracy—by giving recording artists a weaker right than
+it otherwise gives creative authors. The Beatles have less control
+over their creative work than Grisham does. And the beneficiaries of
+this less control are the recording industry and the public. The
+recording industry gets something of value for less than it otherwise
+would pay; the public gets access to a much 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.<footnote><para>
<!-- f10 -->
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
in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
+<indexterm><primary>Beatles</primary></indexterm>
</para>
<para>
While the recording industry has been quite coy about this recently,
the record producers argued vigorously that the compulsory
<!-- PAGE BREAK 71 -->
license system must be retained. They asserted that the record
- industry
-is a half-billion-dollar business of great economic
- importance
-in the United States and throughout the world; records
-today are the principal means of disseminating music, and this
-creates special problems, since performers need unhampered
- access
-to musical material on nondiscriminatory terms. Historically,
-the record producers pointed out, there were no recording rights
-before 1909 and the 1909 statute adopted the compulsory license
-as a deliberate anti-monopoly condition on the grant of these
-rights. They argue that the result has been an outpouring of
-recorded music, with the public being given lower prices,
- improved
-quality, and a greater choice.<footnote><para>
+industry is a half-billion-dollar business of great economic
+importance in the United States and throughout the world; records
+today are the principal means of disseminating music, and this creates
+special problems, since performers need unhampered access to musical
+material on nondiscriminatory terms. Historically, the record
+producers pointed out, there were no recording rights before 1909 and
+the 1909 statute adopted the compulsory license as a deliberate
+anti-monopoly condition on the grant of these rights. They argue that
+the result has been an outpouring of recorded music, with the public
+being given lower prices, improved quality, and a greater
+choice.<footnote><para>
<!-- f11 -->
Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
</para>
</blockquote>
<para>
-By limiting the rights musicians have, by partially pirating their
- creative
-work, the record producers, and the public, benefit.
+By limiting the rights musicians have, by partially pirating their
+creative work, the record producers, and the public, benefit.
</para>
</sect2>
<sect2 id="radio">
When a radio station plays a record on the air, that constitutes a
"public performance" of the composer's work.<footnote><para>
<!-- f12 -->
-See 17 United States Code, sections 106 and 110. At the beginning, record
-companies printed "Not Licensed for Radio Broadcast" and other
- messages
-purporting to restrict the ability to play a record on a radio station.
-Judge Learned Hand rejected the argument that a warning attached to a
-record might restrict the rights of the radio station. See RCA
- Manufacturing
-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.
-</para></footnote>
-As I described above,
-the law gives the composer (or copyright holder) an exclusive right to
-public performances of his work. The radio station thus owes the
- composer
-money for that performance.
-</para>
-<para>
-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 recording artist's work. It's one thing to have "Happy
- Birthday"
-sung on the radio by the local children's choir; it's quite another to
-have it sung by the Rolling Stones or Lyle Lovett. The recording artist
-is adding to the value of the composition performed on the radio
- station.
-And if the law were perfectly consistent, the radio station would
-have to pay the recording artist for his work, just as it pays the
- composer
-of the music for his work.
+See 17 United States Code, sections 106 and 110. At the beginning,
+record companies printed "Not Licensed for Radio Broadcast" and other
+messages purporting to restrict the ability to play a record on a
+radio station. Judge Learned Hand rejected the argument that a
+warning attached to a record might restrict the rights of the radio
+station. See RCA Manufacturing 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.
+<indexterm><primary>Hand, Learned</primary></indexterm>
+<indexterm><primary>Picker, Randal C.</primary></indexterm>
+</para></footnote>
+As I described above, the law gives the composer (or copyright holder)
+an exclusive right to public performances of his work. The radio
+station thus owes the composer money for that performance.
+</para>
+<para>
+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 recording artist's work. It's one thing to have "Happy
+Birthday" sung on the radio by the local children's choir; it's quite
+another to have it sung by the Rolling Stones or Lyle Lovett. The
+recording artist is adding to the value of the composition performed
+on the radio station. And if the law were perfectly consistent, the
+radio station would have to pay the recording artist for his work,
+just as it pays the composer of the music for his work.
<!-- PAGE BREAK 72 -->
</para>
<para>
-But it doesn't. Under the law governing radio performances, the
- radio
+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 only pay the composer. The radio station thus gets a bit of
- something
-for nothing. It gets to perform the recording artist's work for
-free, even if it must pay the composer something for the privilege of
-playing the song.
+need only pay the composer. The radio station thus gets a bit of
+something for nothing. It gets to perform the recording artist's work
+for free, even if it must pay the composer something for the privilege
+of playing the song.
</para>
<para>
-This difference can be huge. Imagine you compose a piece of
- music.
+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 performances of that music. So if Madonna wants to sing your
song in public, she has to get your permission.
<para>
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
-performance rights they give up. Maybe. But even if so, the law
- ordinarily
-gives the creator the right to make this choice. By making the
-choice for him or her, the law gives the radio station the right to take
-something for nothing.
+performance rights they give up. Maybe. But even if so, the law
+ordinarily gives the creator the right to make this choice. By making
+the choice for him or her, the law gives the radio station the right
+to take something for nothing.
</para>
</sect2>
<sect2 id="cabletv">
<!-- f18 -->
Copyright Law Revision—CATV, 216 (statement of Edwin M.
Zimmerman, acting assistant attorney general).
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para></footnote>
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para>
</blockquote>
<para>
holder's permission. Developing nations may be able to use this to
gain the benefits of foreign patents at lower prices. This is a
promising strategy for developing nations within the TRIPS framework.
+<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote> In my view, more developing nations should take
advantage of that opportunity, but when they don't, then their laws
should be respected. And under the laws of these nations, this piracy
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
-144–90. "In some instances . . . the impact of piracy on the copyright holder's
-ability to appropriate the value of the work will be negligible. One obvious
- instance
-is the case where the individual engaging in pirating would not have
-purchased an original even if pirating were not an option." Ibid., 149.
+144–90. "In some instances . . . the impact of piracy on the
+copyright holder's ability to appropriate the value of the work will
+be negligible. One obvious instance is the case where the individual
+engaging in pirating would not have purchased an original even if
+pirating were not an option." Ibid., 149.
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
</para>
<para>
author of his profit.
</para>
<para>
-Peer-to-peer sharing was made famous by Napster. But the inventors
-of the Napster technology had not made any major technological
- innovations.
-Like every great advance in innovation on the Internet (and,
- arguably,
-off the Internet as well<footnote><para>
+Peer-to-peer sharing was made famous by Napster. But the inventors of
+the Napster technology had not made any major technological
+innovations. Like every great advance in innovation on the Internet
+(and, arguably, off the Internet as well<footnote><para>
<!-- 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
-that give rise to and dominate a product area are frequently unable to come
-up 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.
+that give rise to and dominate a product area are frequently unable to
+come up 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.
+<indexterm><primary>Christensen, Clayton M.</primary></indexterm>
</para></footnote>), Shawn Fanning and crew had simply
put together components that had been developed independently.
+<indexterm><primary>Fanning, Shawn</primary></indexterm>
</para>
<para>
The result was spontaneous combustion. Launched in July 1999,
eighteen months, there were close to 80 million registered users of the
system.<footnote><para>
<!-- f6 -->
-See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare,"
-San Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
+See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," San
+Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
-Secures New Financing," San Francisco Chronicle, 23 May 2003, C1;
- "Napster's
-Wake-Up Call," Economist, 24 June 2000, 23; John Naughton,
- "Hollywood
-at War with the Internet" (London) Times, 26 July 2002, 18.
+Secures New Financing," San Francisco Chronicle, 23 May 2003, C1;
+"Napster's Wake-Up Call," Economist, 24 June 2000, 23; John Naughton,
+"Hollywood at War with the Internet" (London) Times, 26 July 2002, 18.
</para></footnote>
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
How do these different types of sharing balance out?
</para>
<para>
-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 economics, only type A sharing is clearly harmful.<footnote><para>
+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 economics, only type A sharing is clearly
+harmful.<footnote><para>
<!-- f9 -->
See Liebowitz, Rethinking the Network Economy,148–49.
-</para></footnote>
-Type B sharing is illegal but plainly beneficial. Type C sharing is
- illegal,
-yet good for society (since more exposure to music is good) and
-harmless to the artist (since the work is not otherwise available). So
-how sharing matters on balance is a hard question to answer—and
- certainly
-much more difficult than the current rhetoric around the issue
-suggests.
-</para>
-<para>
-Whether on balance sharing is harmful depends importantly on
-how harmful type A sharing is. Just as Edison complained about
- Hollywood,
-composers complained about piano rolls, recording artists
-complained about radio, and broadcasters complained about cable TV,
-the music industry complains that type A sharing is a kind of "theft"
-that is "devastating" the industry.
-</para>
-<para>
-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 technology for any drop in sales. The history of cassette
-recording is a good example. As a study by Cap Gemini Ernst &
-Young put it, "Rather than exploiting this new, popular technology, the
-labels fought it."<footnote><para>
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
+</para></footnote>
+Type B sharing is illegal but plainly beneficial. Type C sharing is
+illegal, yet good for society (since more exposure to music is good)
+and harmless to the artist (since the work is not otherwise
+available). So how sharing matters on balance is a hard question to
+answer—and certainly much more difficult than the current
+rhetoric around the issue suggests.
+</para>
+<para>
+Whether on balance sharing is harmful depends importantly on how
+harmful type A sharing is. Just as Edison complained about Hollywood,
+composers complained about piano rolls, recording artists complained
+about radio, and broadcasters complained about cable TV, the music
+industry complains that type A sharing is a kind of "theft" that is
+"devastating" the industry.
+</para>
+<para>
+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 technology for any drop in sales. The history of
+cassette recording is a good example. As a study by Cap Gemini Ernst
+& Young put it, "Rather than exploiting this new, popular
+technology, the labels fought it."<footnote><para>
<!-- f10 -->
-See Cap Gemini Ernst & Young, Technology Evolution and the Music
- Industry's
-Business Model Crisis (2003), 3. This report describes the music
- industry's
-effort to stigmatize the budding practice of cassette taping in the
-1970s, including an advertising campaign featuring a cassette-shape skull
-and the caption "Home taping is killing music."
-At the time digital audio tape became a threat, the Office of Technical
-Assessment conducted a survey of consumer behavior. In 1988, 40 percent
-of consumers older than ten had taped music to a cassette format. U.S.
-Congress, Office of Technology Assessment, Copyright and Home Copying:
-Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
-Government Printing Office, October 1989), 145–56.
-</para></footnote>
-The labels claimed that every album taped was an
-album unsold, and when record sales fell by 11.4 percent in 1981, the
-industry claimed that its point was proved. Technology was the
- problem,
-and banning or regulating technology was the answer.
+See Cap Gemini Ernst & Young, Technology Evolution and the
+Music Industry's Business Model Crisis (2003), 3. This report
+describes the music industry's effort to stigmatize the budding
+practice of cassette taping in the 1970s, including an advertising
+campaign featuring a cassette-shape skull and the caption "Home taping
+is killing music." At the time digital audio tape became a threat,
+the Office of Technical Assessment conducted a survey of consumer
+behavior. In 1988, 40 percent of consumers older than ten had taped
+music to a cassette format. U.S. Congress, Office of Technology
+Assessment, Copyright and Home Copying: Technology Challenges the Law,
+OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office,
+October 1989), 145–56. </para></footnote>
+The labels claimed that every album taped was an album unsold, and
+when record sales fell by 11.4 percent in 1981, the industry claimed
+that its point was proved. Technology was the problem, and banning or
+regulating technology was the answer.
</para>
<para>
Yet soon thereafter, and before Congress was given an opportunity
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.
+<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
that change meant that someone got a "free ride" on someone else's
<!-- f9 -->
Ibid., 93.
</para></footnote>
+<indexterm><primary>Erskine, Andrew</primary></indexterm>
</para>
<para>
When the London booksellers tried to shut down Donaldson's shop in
(1983): 1152.
</para></footnote>
</para>
+<indexterm id="idxmansfield2" class='startofrange'>
+ <primary>Mansfield, William Murray, Lord</primary>
+</indexterm>
<para>
Astonishingly to modern lawyers, one of the greatest judges in English
history, Lord Mansfield, agreed with the booksellers. Whatever
believed, Britain would mature from the controlled culture that the
Crown coveted to the free culture that we inherited.
</para>
+<indexterm startref="idxmansfield2" class='endofrange'/>
<para>
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.
fixed for a limited time, after which the work protected by copyright
passed into the public domain.
</para>
-<indexterm><primary>Bacon, Francis</primary></indexterm>
-<indexterm><primary>Bunyan, John</primary></indexterm>
<para>
"The public domain." Before the case of Donaldson v. Beckett, there
was no clear idea of a public domain in England. Before 1774, there
and the greatest works in English history—including those of
Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of
legal restraint.
+<indexterm><primary>Bacon, Francis</primary></indexterm>
+<indexterm><primary>Bunyan, John</primary></indexterm>
+<indexterm><primary>Johnson, Samuel</primary></indexterm>
+<indexterm><primary>Milton, John</primary></indexterm>
+<indexterm><primary>Shakespeare, William</primary></indexterm>
</para>
<para>
It is hard for us to imagine, but this decision by the House of Lords
During a show, they hang out below the stage in the grips' lounge and
in the lighting loft. They make a perfect contrast to the art on the
stage.
+<indexterm><primary>San Francisco Opera</primary></indexterm>
</para>
<para>
During one of the performances, Else was shooting some stagehands
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.
+<indexterm><primary>Gracie Films</primary></indexterm>
</para>
<para>
Gracie Films was okay with it, too, but they, like Groening, wanted
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.
+<indexterm><primary>Gracie Films</primary></indexterm>
</para>
<para>
Then, as Else told me, "two things happened. First we discovered
very last minute before the film was to be released, Else digitally
replaced the shot with a clip from another film that he had worked on,
The Day After Trinity, from ten years before.
+<indexterm><primary>San Francisco Opera</primary></indexterm>
</para>
<para>
There's no doubt that someone, whether Matt Groening or Fox, owns the
loved it, and it sold very well.
</para>
<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Drucker, Peter</primary></indexterm>
<para>
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
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.
+<indexterm><primary>Camp Chaos</primary></indexterm>
</para>
<para>
All of these creations are technically illegal. Even if the creators
President Kennedy has Valenti in the background. In his almost forty
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
+<indexterm><primary>Johnson, Lyndon</primary></indexterm>
</para>
<para>
The MPAA is the American branch of the international Motion Picture
in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
Paramount Pictures, Twentieth Century Fox, Universal Studios, and
Warner Brothers.
+<indexterm><primary>Disney, Inc.</primary></indexterm>
+<indexterm><primary>Sony Pictures Entertainment</primary></indexterm>
+<indexterm><primary>MGM</primary></indexterm>
+<indexterm><primary>Paramount Pictures</primary></indexterm>
+<indexterm><primary>Twentieth Century Fox</primary></indexterm>
+<indexterm><primary>Universal Pictures</primary></indexterm>
+<indexterm><primary>Warner Brothers</primary></indexterm>
</para>
<para>
<!-- PAGE BREAK 128 -->
competitors with new ideas will not succeed. It is a world of stasis and
increasingly concentrated stagnation. It is the Soviet Union under
Brezhnev.
+<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<para>
Thus, while it is understandable for industries threatened with new
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.
+<indexterm><primary>Carson, Rachel</primary></indexterm>
+<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
</para>
<para>
No one set out to destroy the environment. Paul Müller certainly did
Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August
2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
+<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
Whether or not you go that far, it seems
plain that whatever wrong is involved is fundamentally different from
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
-<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm id="idxaibo" class='startofrange'>
+ <primary>Aibo robotic dog</primary>
+</indexterm>
<para>
Consider the robotic dog made by Sony named "Aibo." The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
well. There's a well-deserved respect that goes with the talent to hack
ethically.
</para>
-<indexterm><primary>Aibo robotic dog</primary></indexterm>
<para>
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
bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
+<indexterm startref="idxaibo" class='endofrange'/>
<para>
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,
Holland, "Copyright Act Raising Free-Speech Concerns," Billboard,
May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com,
April 2001; Electronic Frontier Foundation, "Frequently Asked
- Questions
-about Felten and USENIX v. RIAA Legal Case," available at
+Questions about Felten and USENIX v. RIAA Legal Case," available at
<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
+<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para></footnote>
He and a group of colleagues were working on a paper to be submitted
at conference. The paper was intended to describe the weakness in an
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 article about Rupert Murdoch,
+<indexterm><primary>Fallows, James</primary></indexterm>
</para>
<blockquote>
<para>
<!-- f28 -->
James Fallows, "The Age of Murdoch," Atlantic Monthly (September
2003): 89.
+<indexterm><primary>Fallows, James</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
<!-- PAGE BREAK 176 -->
-The network did not control those copyrights because the law
- forbade
-the networks from controlling the content they syndicated. The
-law required a separation between the networks and the content
- producers;
-that separation would guarantee Lear freedom. And as late as
-1992, because of these rules, the vast majority of prime time
- television—75
-percent of it—was "independent" of the networks.
-</para>
-<para>
-In 1994, the FCC abandoned the rules that required this
- independence.
-After that change, the networks quickly changed the balance.
-In 1985, there were twenty-five independent television production
- studios;
-in 2002, only five independent television studios remained. "In
-1992, only 15 percent of new series were produced for a network by a
-company it controlled. Last year, the percentage of shows produced by
-controlled companies more than quintupled to 77 percent." "In 1992,
-16 new series were produced independently of conglomerate control,
-last year there was one."<footnote><para>
+The network did not control those copyrights because the law forbade
+the networks from controlling the content they syndicated. The law
+required a separation between the networks and the content producers;
+that separation would guarantee Lear freedom. And as late as 1992,
+because of these rules, the vast majority of prime time
+television—75 percent of it—was "independent" of the
+networks.
+</para>
+<para>
+In 1994, the FCC abandoned the rules that required this independence.
+After that change, the networks quickly changed the balance. In 1985,
+there were twenty-five independent television production studios; in
+2002, only five independent television studios remained. "In 1992,
+only 15 percent of new series were produced for a network by a company
+it controlled. Last year, the percentage of shows produced by
+controlled companies more than quintupled to 77 percent." "In 1992, 16
+new series were produced independently of conglomerate control, last
+year there was one."<footnote><para>
<!-- f30 -->
-NewsCorp./DirecTV Merger and Media Consolidation: Hearings on
-Media Ownership Before the Senate Commerce Committee, 108th
-Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of
- Consumers
-Union and the Consumer Federation of America), available at
-<ulink url="http://free-culture.cc/notes/">link #30</ulink>. Kimmelman quotes Victoria Riskin, president of Writers Guild of
-America, West, in her Remarks at FCC En Banc Hearing, Richmond,
-Virginia, 27 February 2003.
-</para></footnote>
-In 2002, 75 percent of prime time television
-was owned by the networks that ran it. "In the ten-year period between
-1992 and 2002, the number of prime time television hours per week
-produced by network studios increased over 200%, whereas the
- number
-of prime time television hours per week produced by independent
-studios decreased 63%."<footnote><para>
+NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
+Ownership Before the Senate Commerce Committee, 108th Cong., 1st
+sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
+and the Consumer Federation of America), available at
+<ulink url="http://free-culture.cc/notes/">link #30</ulink>. Kimmelman
+quotes Victoria Riskin, president of Writers Guild of America, West,
+in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
+2003.
+</para></footnote>
+In 2002, 75 percent of prime time television was owned by the networks
+that ran it. "In the ten-year period between 1992 and 2002, the number
+of prime time television hours per week produced by network studios
+increased over 200%, whereas the number of prime time television hours
+per week produced by independent studios decreased
+63%."<footnote><para>
<!-- f31 -->
Ibid.
</para></footnote>
owned by the network.
</para>
<para>
-While the number of channels has increased dramatically, the
- ownership
-of those channels has narrowed to an ever smaller and smaller
-few. As Barry Diller said to Bill Moyers,
+While the number of channels has increased dramatically, the ownership
+of those channels has narrowed to an ever smaller and smaller few. As
+Barry Diller said to Bill Moyers,
</para>
<blockquote>
<para>
through their controlled distribution system, then what you get is
fewer and fewer actual voices participating in the process. [We
<!-- PAGE BREAK 177 -->
-u]sed to have dozens and dozens of thriving independent
- production
-companies producing television programs. Now you have less
-than a handful.<footnote><para>
+u]sed to have dozens and dozens of thriving independent production
+companies producing television programs. Now you have less than a
+handful.<footnote><para>
<!-- f32 -->
"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
Moyers, 25 April 2003, edited transcript available at
</para>
</blockquote>
<para>
-This narrowing has an effect on what is produced. The product of
-such large and concentrated networks is increasingly homogenous.
- Increasingly
-safe. Increasingly sterile. The product of news shows from
-networks like this is increasingly tailored to the message the network
-wants to convey. This is not the communist party, though from the
- inside,
-it must feel a bit like the communist party. No one can question
-without risk of consequence—not necessarily banishment to Siberia,
-but punishment nonetheless. Independent, critical, different views are
-quashed. This is not the environment for a democracy.
+This narrowing has an effect on what is produced. The product of such
+large and concentrated networks is increasingly homogenous.
+Increasingly safe. Increasingly sterile. The product of news shows
+from networks like this is increasingly tailored to the message the
+network wants to convey. This is not the communist party, though from
+the inside, it must feel a bit like the communist party. No one can
+question without risk of consequence—not necessarily banishment
+to Siberia, but punishment nonetheless. Independent, critical,
+different views are quashed. This is not the environment for a
+democracy.
</para>
<indexterm><primary>Clark, Kim B.</primary></indexterm>
<para>
The same analysis could help explain why large, traditional media
companies would find it rational to ignore new cultural trends.<footnote><para>
<!-- f33 -->
-Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
- National
-Bestseller that Changed the Way We Do Business (Cambridge: Harvard
-Business School Press, 1997). Christensen acknowledges that the idea was
-first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of
-Design Hierarchies and Market Concepts in Technological Evolution,"
-Research Policy 14 (1985): 235–51. For a more recent study, see Richard
-Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are
-Built to Last Underperform the Market—and How to Successfully Transform
-Them (New York: Currency/Doubleday, 2001).
-</para></footnote>
+Clayton M. Christensen, The Innovator's Dilemma: The
+Revolutionary National Bestseller that Changed the Way We Do Business
+(Cambridge: Harvard Business School Press, 1997). Christensen
+acknowledges that the idea was first suggested by Dean Kim Clark. See
+Kim B. Clark, "The Interaction of Design Hierarchies and Market
+Concepts in Technological Evolution," Research Policy 14 (1985):
+235–51. For a more recent study, see Richard Foster and Sarah
+Kaplan, Creative Destruction: Why Companies That Are Built to Last
+Underperform the Market—and How to Successfully Transform Them
+(New York: Currency/Doubleday, 2001). </para></footnote>
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.
+<indexterm><primary>Christensen, Clayton M.</primary></indexterm>
</para>
<para>
I don't think we know enough about the economics of the media
After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
was that the criticism was "too controversial."
+<indexterm><primary>Marijuana Policy Project</primary></indexterm>
</para></footnote>
</para>
<para>
</table>
<para>
-The law was interpreted to reach noncommercial copying through,
-say, copy machines, but still much of copying outside of the
- commercial
-market remained free. But the consequence of the emergence of
-digital technologies, especially in the context of a digital network,
-means that the law now looks like this:
+The law was interpreted to reach noncommercial copying through, say,
+copy machines, but still much of copying outside of the commercial
+market remained free. But the consequence of the emergence of digital
+technologies, especially in the context of a digital network, means
+that the law now looks like this:
</para>
<table id="t5">
that no computer is used to commit this crime. These responses might
be extreme, but each of them has either been proposed or actually
implemented.<footnote><para>
-<!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
-Berkman Center for Internet and Society at Harvard Law School,
- "Copyright
-and Digital Media in a Post-Napster World," 27 June 2003, available
-at
-<ulink url="http://free-culture.cc/notes/">link #33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
-(D-Calif.) have introduced a bill that would treat unauthorized on-line
-copying as a felony offense with punishments ranging as high as five years
-imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy,"
-Los Angeles Times, 17 July 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil penalties are
-currently set at $150,000 per copied song. For a recent (and unsuccessful)
-legal challenge to the RIAA's demand that an ISP reveal the identity of a
-user accused of sharing more than 600 songs through a family computer,
-see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F.
-Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as
-high as $90 million. Such astronomical figures furnish the RIAA with a
-powerful arsenal in its prosecution of file sharers. Settlements ranging
-from $12,000 to $17,500 for four students accused of heavy file sharing on
-university networks must have seemed a mere pittance next to the $98
- billion
-the RIAA could seek should the matter proceed to court. See
- Elizabeth
-Young, "Downloading Could Lead to Fines," redandblack.com,
-August 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an example of the RIAA's
- targeting
-of student file sharing, and of the subpoenas issued to universities to
-reveal student file-sharer identities, see James Collins, "RIAA Steps Up
-Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003,
-D3, available at
+<!-- f2. -->
+For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+"Copyright and Digital Media in a Post-Napster World," 27 June 2003,
+available at
+<ulink url="http://free-culture.cc/notes/">link
+#33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized
+on-line copying as a felony offense with punishments ranging as high
+as five years imprisonment; see Jon Healey, "House Bill Aims to Up
+Stakes on Piracy," Los Angeles Times, 17 July 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil
+penalties are currently set at $150,000 per copied song. For a recent
+(and unsuccessful) legal challenge to the RIAA's demand that an ISP
+reveal the identity of a user accused of sharing more than 600 songs
+through a family computer, see RIAA v. Verizon Internet Services (In
+re. Verizon Internet Services), 240 F. Supp. 2d 24
+(D.D.C. 2003). Such a user could face liability ranging as high as $90
+million. Such astronomical figures furnish the RIAA with a powerful
+arsenal in its prosecution of file sharers. Settlements ranging from
+$12,000 to $17,500 for four students accused of heavy file sharing on
+university networks must have seemed a mere pittance next to the $98
+billion the RIAA could seek should the matter proceed to court. See
+Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com,
+August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an
+example of the RIAA's targeting of student file sharing, and of the
+subpoenas issued to universities to reveal student file-sharer
+identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
+Name Students," Boston Globe, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
</para>
Either response is possible. I think either would be a mistake.
Rather than embrace one of these two extremes, we should embrace
something that recognizes the truth in both. And while I end this book
-with a sketch of a system that does just that, my aim in the next chapter
-is to show just how awful it would be for us to adopt the zero-tolerance
-extreme. I believe either extreme would be worse than a reasonable
- alternative.
-But I believe the zero-tolerance solution would be the worse
-of the two extremes.
+with a sketch of a system that does just that, my aim in the next
+chapter is to show just how awful it would be for us to adopt the
+zero-tolerance extreme. I believe either extreme would be worse than a
+reasonable alternative. But I believe the zero-tolerance solution
+would be the worse of the two extremes.
</para>
<para>
<!-- PAGE BREAK 190 -->
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 occurring. The law and technology are being shifted to give
- content
-holders a kind of control over our culture that they have never had
-before. And in this extremism, many an opportunity for new
- innovation
-and new creativity will be lost.
+middle of the chaos that the Internet has created, an extraordinary
+land grab is occurring. The law and technology are being shifted to
+give content holders a kind of control over our culture that they have
+never had before. And in this extremism, many an opportunity for new
+innovation and new creativity will be lost.
</para>
<para>
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 also kill. We have never seen the power to innovate spread so
-broadly among our citizens, and we have just begun to see the
- innovation
-that this power will unleash. Yet the Internet has already seen the
-passing of one cycle of innovation around technologies to distribute
-content. The law is responsible for this passing. As the vice president
-for global public policy at one of these new innovators, eMusic.com,
-put it when criticizing the DMCA's added protection for copyrighted
-material,
+broadly among our citizens, and we have just begun to see the
+innovation that this power will unleash. Yet the Internet has already
+seen the passing of one cycle of innovation around technologies to
+distribute content. The law is responsible for this passing. As the
+vice president for global public policy at one of these new
+innovators, eMusic.com, put it when criticizing the DMCA's added
+protection for copyrighted material,
</para>
<blockquote>
<para>
</para>
<para>
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
-contexts is the same. This wildly punitive system of regulation will
- systematically
-stifle creativity and innovation. It will protect some
- industries
-and some creators, but it will harm industry and creativity
-generally. Free market and free culture depend upon vibrant
- competition.
-Yet the effect of the law today is to stifle just this kind of
- competition.
-The effect is to produce an overregulated culture, just as the effect
-of too much control in the market is to produce an
- overregulatedregulated
-market.
+use. Whatever the "real" law is, realism about the effect of law in
+both contexts is the same. This wildly punitive system of regulation
+will systematically stifle creativity and innovation. It will protect
+some industries and some creators, but it will harm industry and
+creativity generally. Free market and free culture depend upon vibrant
+competition. Yet the effect of the law today is to stifle just this
+kind of competition. The effect is to produce an overregulated
+culture, just as the effect of too much control in the market is to
+produce an overregulatedregulated market.
</para>
<para>
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
-innovation. A permission culture means a lawyer's culture—a
- culture
-in which the ability to create requires a call to your lawyer. Again,
-I am not antilawyer, at least when they're kept in their proper place. I
-am certainly not antilaw. But our profession has lost the sense of its
-limits. And leaders in our profession have lost an appreciation of the
-high costs that our profession imposes upon others. The inefficiency of
-the law is an embarrassment to our tradition. And while I believe our
-profession should therefore do everything it can to make the law more
-efficient, it should at least do everything it can to limit the reach of the
+the first important way in which the changes I have described will
+burden innovation. A permission culture means a lawyer's
+culture—a culture in which the ability to create requires a call
+to your lawyer. Again, I am not antilawyer, at least when they're kept
+in their proper place. I am certainly not antilaw. But our profession
+has lost the sense of its limits. And leaders in our profession have
+lost an appreciation of the high costs that our profession imposes
+upon others. The inefficiency of the law is an embarrassment to our
+tradition. And while I believe our profession should therefore do
+everything it can to make the law more efficient, it should at least
+do everything it can to limit the reach of the
<!-- PAGE BREAK 202 -->
law where the law is not doing any good. The transaction costs buried
-within a permission culture are enough to bury a wide range of
- creativity.
-Someone needs to do a lot of justifying to justify that result.
-The uncertainty of the law is one burden on innovation. There is
-a second burden that operates more directly. This is the effort by many
-in the content industry to use the law to directly regulate the
- technology
-of the Internet so that it better protects their content.
+within a permission culture are enough to bury a wide range of
+creativity. Someone needs to do a lot of justifying to justify that
+result. The uncertainty of the law is one burden on innovation. There
+is a second burden that operates more directly. This is the effort by
+many in the content industry to use the law to directly regulate the
+technology of the Internet so that it better protects their content.
</para>
<para>
-The motivation for this response is obvious. The Internet enables
-the efficient spread of content. That efficiency is a feature of the
- Internet's
-design. But from the perspective of the content industry, this
- feature
-is a "bug." The efficient spread of content means that content
-distributors have a harder time controlling the distribution of content.
-One obvious response to this efficiency is thus to make the Internet
-less efficient. If the Internet enables "piracy," then, this response says,
-we should break the kneecaps of the Internet.
+The motivation for this response is obvious. The Internet enables the
+efficient spread of content. That efficiency is a feature of the
+Internet's design. But from the perspective of the content industry,
+this feature is a "bug." The efficient spread of content means that
+content distributors have a harder time controlling the distribution
+of content. One obvious response to this efficiency is thus to make
+the Internet less efficient. If the Internet enables "piracy," then,
+this response says, we should break the kneecaps of the Internet.
</para>
<para>
The examples of this form of legislation are many. At the urging of
It has been
mirrored in the responses threatened and actually implemented by
Congress. I won't catalog all of those responses here.<footnote><para>
-<!-- f11. --> For example, in July 2002, Representative Howard Berman introduced the
+<!-- f11. -->
+For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
-copyright holders use technology to stop copyright infringement. In
- August
-2002, Representative Billy Tauzin introduced a bill to mandate that
-technologies capable of rebroadcasting digital copies of films broadcast on
-TV (i.e., computers) respect a "broadcast flag" that would disable copying
-of that content. And in March of the same year, Senator Fritz Hollings
-introduced the Consumer Broadband and Digital Television Promotion
-Act, which mandated copyright protection technology in all digital media
-devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster
-World," 27 June 2003, 33–34, available at
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a "broadcast flag" that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, which mandated copyright protection
+technology in all digital media devices. See GartnerG2, "Copyright and
+Digital Media in a Post-Napster World," 27 June 2003, 33–34,
+available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
- But there is one
-example that captures the flavor of them all. This is the story of the
- demise
-of Internet radio.
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
</para>
<para>
<!-- PAGE BREAK 204 -->
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
-or she is also the composer. So, for example if Marilyn Monroe had
+recording artist doesn't get paid for that "radio performance" unless
+he or she is also the composer. So, for example if Marilyn Monroe had
recorded a version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
-then whenever that recording was played on the radio, the current
- copyright
-owners of "Happy Birthday" would get some money, whereas
+then whenever that recording was played on the radio, the current
+copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
</para>
<para>
The reasoning behind this balance struck by Congress makes some
sense. The justification was that radio was a kind of advertising. The
-recording artist thus benefited because by playing her music, the radio
-station was making it more likely that her records would be purchased.
-Thus, the recording artist got something, even if only indirectly.
- Probably
-this reasoning had less to do with the result than with the power
-of radio stations: Their lobbyists were quite good at stopping any
- efforts
-to get Congress to require compensation to the recording artists.
+recording artist thus benefited because by playing her music, the
+radio station was making it more likely that her records would be
+purchased. Thus, the recording artist got something, even if only
+indirectly. Probably this reasoning had less to do with the result
+than with the power of radio stations: Their lobbyists were quite good
+at stopping any efforts to get Congress to require compensation to the
+recording artists.
</para>
<para>
-Enter Internet radio. Like regular radio, Internet radio is a
- technology
-to stream content from a broadcaster to a listener. The broadcast
-travels across the Internet, not across the ether of radio spectrum.
-Thus, I can "tune in" to an Internet radio station in Berlin while sitting
-in San Francisco, even though there's no way for me to tune in to a
- regular
-radio station much beyond the San Francisco metropolitan area.
+Enter Internet radio. Like regular radio, Internet radio is a
+technology to stream content from a broadcaster to a listener. The
+broadcast travels across the Internet, not across the ether of radio
+spectrum. Thus, I can "tune in" to an Internet radio station in
+Berlin while sitting in San Francisco, even though there's no way for
+me to tune in to a regular radio station much beyond the San Francisco
+metropolitan area.
</para>
<para>
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 to using her computer, whereas under the existing architecture
-for broadcast radio, there is an obvious limit to the number of
- broadcasters
-and clear broadcast frequencies. Internet radio could therefore
-be more competitive than regular radio; it could provide a wider range
-of selections. And because the potential audience for Internet radio is
-the whole world, niche stations could easily develop and market their
-content to a relatively large number of users worldwide. According to
-some estimates, more than eighty million users worldwide have tuned
-in to this new form of radio.
+are potentially an unlimited number of radio stations that a user
+could tune in to using her computer, whereas under the existing
+architecture for broadcast radio, there is an obvious limit to the
+number of broadcasters and clear broadcast frequencies. Internet radio
+could therefore be more competitive than regular radio; it could
+provide a wider range of selections. And because the potential
+audience for Internet radio is the whole world, niche stations could
+easily develop and market their content to a relatively large number
+of users worldwide. According to some estimates, more than eighty
+million users worldwide have tuned in to this new form of radio.
</para>
<para>
<!-- PAGE BREAK 205 -->
-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 not only is the technology better, so, too, is the
-competition. Indeed, there is a direct parallel between the fight to
- establish
-FM radio and the fight to protect Internet radio. As one author
-describes Howard Armstrong's struggle to enable FM radio,
+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 not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
</para>
<blockquote>
<para>
An almost unlimited number of FM stations was possible in the
-shortwaves, thus ending the unnatural restrictions imposed on
- radio
-in the crowded longwaves. If FM were freely developed, the
-number of stations would be limited only by economics and
- competition
-rather than by technical restrictions. . . . Armstrong
-likened the situation that had grown up in radio to that following
-the invention of the printing press, when governments and ruling
-interests attempted to control this new instrument of mass
- communications
-by imposing restrictive licenses on it. This tyranny
-was broken only when it became possible for men freely to
- acquire
-printing presses and freely to run them. FM in this sense
-was as great an invention as the printing presses, for it gave radio
-the opportunity to strike off its shackles.<footnote><para>
-<!-- f12. --> Lessing, 239.
+shortwaves, thus ending the unnatural restrictions imposed on radio in
+the crowded longwaves. If FM were freely developed, the number of
+stations would be limited only by economics and competition rather
+than by technical restrictions. . . . Armstrong likened the situation
+that had grown up in radio to that following the invention of the
+printing press, when governments and ruling interests attempted to
+control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it
+became possible for men freely to acquire printing presses and freely
+to run them. FM in this sense was as great an invention as the
+printing presses, for it gave radio the opportunity to strike off its
+shackles.<footnote><para>
+<!-- f12. -->
+Lessing, 239.
</para></footnote>
</para>
</blockquote>
<para>
-This potential for FM radio was never realized—not because
- Armstrong
-was wrong about the technology, but because he underestimated
-the power of "vested interests, habits, customs and legislation"<footnote><para>
-<!-- f13. --> Ibid., 229.
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of "vested interests, habits, customs and
+legislation"<footnote><para>
+<!-- f13. -->
+Ibid., 229.
</para></footnote>
-to
- retard
-the growth of this competing technology.
+to retard the growth of this competing technology.
</para>
<para>
Now the very same claim could be made about Internet radio. For
royalties to copyright holders, but, absent the play of powerful
interests, that could have been done in a media-neutral way."
<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
+<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
A regular radio station broadcasting the same content would pay no
equivalent fee.
whenever you turn a very large percentage of the population into
criminals." This is the collateral damage to civil liberties
generally.
+<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para>
<para>
"If you can treat someone as a putative lawbreaker," von Lohmann
clause of Article I, section 8 of our Constitution. Every other clause
granting power to Congress simply says Congress has the power to do
something—for example, to regulate "commerce among the several
-states" or "declare War." But here, the "something" is something quite
- specific—to
-"promote . . . Progress"—through means that are also specific—
-by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times."
+states" or "declare War." But here, the "something" is something quite
+specific—to "promote . . . Progress"—through means that
+are also specific— by "securing" "exclusive Rights" (i.e.,
+copyrights) "for limited Times."
</para>
<para>
-In the past forty years, Congress has gotten into the practice of
- extending
-existing terms of copyright protection. What puzzled me
+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 Congress has the power to extend existing terms,
then the Constitution's requirement that terms be "limited" will have
<!-- PAGE BREAK 223 -->
no practical effect. If every time a copyright is about to expire,
- Congress
-has the power to extend its term, then Congress can achieve what
-the Constitution plainly forbids—perpetual terms "on the installment
-plan," as Professor Peter Jaszi so nicely put it.
+Congress has the power to extend its term, then Congress can achieve
+what the Constitution plainly forbids—perpetual terms "on the
+installment plan," as Professor Peter Jaszi so nicely put it.
+<indexterm><primary>Jaszi, Peter</primary></indexterm>
</para>
<para>
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
-of the question. No one had ever challenged Congress's
+sitting late at the office, scouring on-line databases for any serious
+consideration of the question. No one had ever challenged Congress's
practice of extending existing terms. That failure may in part be why
-Congress seemed so untroubled in its habit. That, and the fact that the
-practice had become so lucrative for Congress. Congress knows that
+Congress seemed so untroubled in its habit. That, and the fact that
+the practice had become so lucrative for Congress. Congress knows that
copyright owners will be willing to pay a great deal of money to see
-their copyright terms extended. And so Congress is quite happy to
-keep this gravy train going.
+their copyright terms extended. And so Congress is quite happy to keep
+this gravy train going.
</para>
<para>
For this is the core of the corruption in our present system of
-government. "Corruption" not in the sense that representatives are bribed.
-Rather, "corruption" in the sense that the system induces the
- beneficiaries
-of Congress's acts to raise and give money to Congress to induce
-it to act. There's only so much time; there's only so much Congress can
-do. Why not limit its actions to those things it must do—and those
-things that pay? Extending copyright terms pays.
+government. "Corruption" not in the sense that representatives are
+bribed. Rather, "corruption" in the sense that the system induces the
+beneficiaries of Congress's acts to raise and give money to Congress
+to induce it to act. There's only so much time; there's only so much
+Congress can do. Why not limit its actions to those things it must
+do—and those things that pay? Extending copyright terms pays.
</para>
<para>
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 hundred years after it was created. The Estate of
-Robert Frost is a good example. Frost died in 1963. His poetry
- continues
-to be extraordinarily valuable. Thus the Robert Frost estate
- benefits
-greatly from any extension of copyright, since no publisher would
-pay the estate any money if the poems Frost wrote could be published
-by anyone for free.
+Robert Frost is a good example. Frost died in 1963. His poetry
+continues to be extraordinarily valuable. Thus the Robert Frost estate
+benefits greatly from any extension of copyright, since no publisher
+would pay the estate any money if the poems Frost wrote could be
+published by anyone for free.
</para>
<para>
So imagine the Robert Frost estate is earning $100,000 a year from
that this law was unconstitutional regardless of one's politics.
</para>
<para>
-The first step happened all by itself. Phyllis Schlafly's organization,
-Eagle Forum, had been an opponent of the CTEA from the very
- beginning.
-Mrs. Schlafly viewed the CTEA as a sellout by Congress. In
-November 1998, she wrote a stinging editorial attacking the
- Republican
-Congress for allowing the law to pass. As she wrote, "Do you
-sometimes wonder why bills that create a financial windfall to narrow
-special interests slide easily through the intricate legislative process,
-while bills that benefit the general public seem to get bogged down?"
-The answer, as the editorial documented, was the power of money.
-Schlafly enumerated Disney's contributions to the key players on the
-committees. It was money, not justice, that gave Mickey Mouse twenty
-more years in Disney's control, Schlafly argued.
-</para>
-<para>
-In the Court of Appeals, Eagle Forum was eager to file a brief
- supporting
-our position. Their brief made the argument that became the
+The first step happened all by itself. Phyllis Schlafly's
+organization, Eagle Forum, had been an opponent of the CTEA from the
+very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
+Congress. In November 1998, she wrote a stinging editorial attacking
+the Republican Congress for allowing the law to pass. As she wrote,
+"Do you sometimes wonder why bills that create a financial windfall to
+narrow special interests slide easily through the intricate
+legislative process, while bills that benefit the general public seem
+to get bogged down?" The answer, as the editorial documented, was the
+power of money. Schlafly enumerated Disney's contributions to the key
+players on the committees. It was money, not justice, that gave Mickey
+Mouse twenty more years in Disney's control, Schlafly argued.
+<indexterm><primary>Eagle Forum</primary></indexterm>
+<indexterm><primary>Schlafly, Phyllis</primary></indexterm>
+</para>
+<para>
+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 the Supreme Court: If Congress can extend the term of
-existing copyrights, there is no limit to Congress's power to set terms.
-That strong conservative argument persuaded a strong conservative
-judge, Judge Sentelle.
+existing copyrights, there is no limit to Congress's power to set
+terms. That strong conservative argument persuaded a strong
+conservative judge, Judge Sentelle.
</para>
<para>
In the Supreme Court, the briefs on our side were about as diverse as
exhaustive and uncontroverted brief by the world's experts in the
history of the Progress Clause. And of course, there was a new brief
by Eagle Forum, repeating and strengthening its arguments.
+<indexterm><primary>Eagle Forum</primary></indexterm>
</para>
<para>
Those briefs framed a legal argument. Then to support the legal
<!-- PAGE BREAK 240 -->
who had advised us early on about a First Amendment strategy; and
finally, former solicitor general Charles Fried.
+<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
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.
+<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
The government, in defending the statute, had its collection of
Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
U.S. (2003) (No. 01-618), 19.
</para></footnote>
-That was also the motive of
-the Gershwin estate, which defended its "protection" of the work of
-George Gershwin. They refuse, for example, to license Porgy and Bess
-
to anyone who refuses to use African Americans in the cast.<footnote><para>
+That was also the motive of the Gershwin estate, which defended its
+"protection" of the work of George Gershwin. They refuse, for example,
+to license Porgy and Bess to anyone who refuses to use African
+Americans in the cast.<footnote><para>
<!-- f15. -->
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
Mouse Joins the Fray," New York Times, 28 March 1998, B7.
</para></footnote>
That's
-
<!-- PAGE BREAK 241 -->
their view of how this part of American culture should be controlled,
and they wanted this law to help them effect that control.
+<indexterm><primary>Gershwin, George</primary></indexterm>
</para>
<para>
This argument made clear a theme that is rarely noticed in this
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:
+<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
"I'm just afraid that unless they really see the harm, they won't be
</para>
<blockquote>
<para>
-justice scalia: You say that the functional equivalent of an
- unlimited
-time would be a violation [of the Constitution], but that's
-precisely the argument that's being made by petitioners here, that
-a limited time which is extendable is the functional equivalent of
-an unlimited time.
+justice scalia: You say that the functional equivalent of an unlimited
+time would be a violation [of the Constitution], but that's precisely
+the argument that's being made by petitioners here, that a limited
+time which is extendable is the functional equivalent of an unlimited
+time.
</para>
</blockquote>
<para>
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 academic, not the practical. The government was arguing as if
-this were the first case ever to consider limits on Congress's Copyright
-and Patent Clause power. Ever the professor and not the advocate, I
-closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause—
-indeed, the very first case striking a law of Congress as exceeding a
- specific
-enumerated power was based upon the Copyright and Patent
-Clause. All true. But it wasn't going to move the Court to my side.
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+Copyright and Patent Clause. All true. But it wasn't going to move the
+Court to my side.
</para>
<para>
As I left the court that day, I knew there were a hundred points I
optimistic.
</para>
<para>
-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 answer I wanted the Court to hear. For I could not
-imagine how the Court could understand that the government
- believed
-Congress's power was unlimited under the terms of the
- Copyright
-Clause, and sustain the government's argument. The solicitor
-general had made my argument for me. No matter how often I tried,
-I could not understand how the Court could find that Congress's
-power under the Commerce Clause was limited, but under the
- Copyright
-Clause, unlimited. In those rare moments when I let myself
- believe
-that we may have prevailed, it was because I felt this Court—in
-particular, the Conservatives—would feel itself constrained by the rule
-of law that it had established elsewhere.
+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 answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+the Conservatives—would feel itself constrained by the rule of
+law that it had established elsewhere.
</para>
<para>
The morning of January 15, 2003, I was five minutes late to the office
down to see where I had been wrong in my reasoning.
</para>
<para>
-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, looking for reasoning.
+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, looking for reasoning.
</para>
<para>
-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 to be found. The case was not even cited. The
-argument that was the core argument of our case did not even appear
-in the Court's opinion.
+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 to be found. The case was not even
+cited. The argument that was the core argument of our case did not
+even appear in the Court's opinion.
</para>
<para>
<!-- PAGE BREAK 249 -->
Justice Ginsburg simply ignored the enumerated powers argument.
-Consistent with her view that Congress's power was not limited
- generally,
-she had found Congress's power not limited here.
+Consistent with her view that Congress's power was not limited
+generally, she had found Congress's power not limited here.
</para>
<para>
Her opinion was perfectly reasonable—for her, and for Justice
<para>
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 powers with the Commerce Clause and unlimited powers with
-the Progress Clause. It had never even occurred to me that they could
+limited powers with the Commerce Clause and unlimited powers with the
+Progress Clause. It had never even occurred to me that they could
reconcile the two simply by not addressing the argument. There was no
inconsistency because they would not talk about the two together.
There was therefore no principle that followed from the Lopez case: In
-that context, Congress's power would be limited, but in this context it
-would not.
+that context, Congress's power would be limited, but in this context
+it would not.
</para>
<para>
Yet by what right did they get to choose which of the framers' values
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?
+<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
My friends huddled around me to insist it would not. The Court
intellectual property professors stated publicly that my bringing this
case was a mistake. "The Court is not ready," Peter Jaszi said; this
issue should not be raised until it is.
+<indexterm><primary>Jaszi, Peter</primary></indexterm>
</para>
<para>
After the argument and after the decision, Peter said to me, and
my view of the case, was Ruben Bolling's, reproduced on the next
page. The "powerful and wealthy" line is a bit unfair. But the punch
in the face felt exactly like that.
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
<para>
The image that will always stick in my head is that evoked by the
See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
<indexterm><primary>Braithwaite, John</primary></indexterm>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
</para>
<para>
United States in the lead, was that South Africa respect these patents
as it respects any other patent, regardless of any effect on the treatment
of AIDS within South Africa.<footnote><para>
-<!-- f4. --> International Intellectual Property Institute (IIPI), Patent Protection and
-Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report
- Prepared
-for the World Intellectual Property Organization (Washington, D.C.,
-2000), 15.
-</para></footnote>
+<!-- f4. -->
+International Intellectual Property Institute (IIPI), Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization (Washington, D.C., 2000), 15. </para></footnote>
</para>
<para>
-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 drugs. Poverty and the total absence of an effective
+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 drugs. Poverty and the total absence of an effective
health care infrastructure matter more. But whether patents are the
-most important reason or not, the price of drugs has an effect on their
-demand, and patents affect price. And so, whether massive or
- marginal,
-there was an effect from our government's intervention to stop
-the flow of medications into Africa.
+most important reason or not, the price of drugs has an effect on
+their demand, and patents affect price. And so, whether massive or
+marginal, there was an effect from our government's intervention to
+stop the flow of medications into Africa.
</para>
<para>
By stopping the flow of HIV treatment into Africa, the United
by U.S. companies.
</para>
<para>
-Instead, the argument in favor of restricting this flow of
- information,
-which was needed to save the lives of millions, was an argument
+Instead, the argument in favor of restricting this flow of
+information, which was needed to save the lives of millions, was an
+argument
<!-- PAGE BREAK 267 -->
about the sanctity of property.<footnote><para>
-<!-- f5. --> See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
+<!-- f5. -->
+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, available at
-<ulink url="http://free-culture.cc/notes/">link #57</ulink> ("compulsory licenses and gray
- markets
-pose a threat to the entire system of intellectual property protection");
-Robert Weissman, "AIDS and Developing Countries: Democratizing
- Access
-to Essential Medicines," Foreign Policy in Focus 4:23 (August 1999),
-available at
-<ulink url="http://free-culture.cc/notes/">link #58</ulink> (describing U.S. policy); John A. Harrelson, "TRIPS,
-Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper
-Balance Between Intellectual Property Rights and Compassion, a
- Synopsis,"
-Widener Law Symposium Journal (Spring 2001): 175.
+May 1999, A1, available at
+<ulink url="http://free-culture.cc/notes/">link #57</ulink>
+("compulsory licenses and gray markets pose a threat to the entire
+system of intellectual property protection"); Robert Weissman, "AIDS
+and Developing Countries: Democratizing Access to Essential
+Medicines," Foreign Policy in Focus 4:23 (August 1999), available at
+<ulink url="http://free-culture.cc/notes/">link #58</ulink>
+(describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical
+Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
+Intellectual Property Rights and Compassion, a Synopsis," Widener Law
+Symposium Journal (Spring 2001): 175.
<!-- PAGE BREAK 333 -->
</para></footnote>
- It was because "intellectual property"
-would be violated that these drugs should not flow into Africa. It was
-a principle about the importance of "intellectual property" that led
-these government actors to intervene against the South African
- response
-to AIDS.
+It was because "intellectual property" would be violated that these
+drugs should not flow into Africa. It was a principle about the
+importance of "intellectual property" that led these government actors
+to intervene against the South African response to AIDS.
</para>
<para>
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 happen? How could we allow a policy to be pursued whose
- direct
-cost would be to speed the death of 15 to 30 million Africans, and
-whose only real benefit would be to uphold the "sanctity" of an idea?
-What possible justification could there ever be for a policy that results
-in so many deaths? What exactly is the insanity that would allow so
-many to die for such an abstraction?
+let this happen? How could we allow a policy to be pursued whose
+direct cost would be to speed the death of 15 to 30 million Africans,
+and whose only real benefit would be to uphold the "sanctity" of an
+idea? What possible justification could there ever be for a policy
+that results in so many deaths? What exactly is the insanity that
+would allow so many to die for such an abstraction?
</para>
<para>
Some blame the drug companies. I don't. They are corporations.
</para>
<para>
The corruption is our own politicians' failure of integrity. For the
-drug companies would love—they say, and I believe them—to sell their
-drugs as cheaply as they can to countries in Africa and elsewhere.
-There are issues they'd have to resolve to make sure the drugs didn't get
-back into the United States, but those are mere problems of
- technology.
-They could be overcome.
+drug companies would love—they say, and I believe them—to
+sell their drugs as cheaply as they can to countries in Africa and
+elsewhere. There are issues they'd have to resolve to make sure the
+drugs didn't get back into the United States, but those are mere
+problems of technology. They could be overcome.
</para>
<para>
A different problem, however, could not be overcome. This is the
What is the argument?
</para>
<para>
-A sensible patent policy could endorse and strongly support the
-patent system without having to reach everyone everywhere in exactly
-the same way. Just as a sensible copyright policy could endorse and
-strongly support a copyright system without having to regulate the
-spread of culture perfectly and forever, a sensible patent policy could
-endorse and strongly support a patent system without having to block
-the spread of drugs to a country not rich enough to afford market
-prices in any case. A sensible policy, in other words, could be a balanced
-policy. For most of our history, both copyright and patent policies were
-balanced in just this sense.
+A sensible patent policy could endorse and strongly support the patent
+system without having to reach everyone everywhere in exactly the same
+way. Just as a sensible copyright policy could endorse and strongly
+support a copyright system without having to regulate the spread of
+culture perfectly and forever, a sensible patent policy could endorse
+and strongly support a patent system without having to block the
+spread of drugs to a country not rich enough to afford market prices
+in any case. A sensible policy, in other words, could be a balanced
+policy. For most of our history, both copyright and patent policies
+were balanced in just this sense.
</para>
<para>
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.
-A certain property fundamentalism, having no connection to our
-tradition, now reigns in this culture—bizarrely, and with consequences
-more grave to the spread of ideas and culture than almost any other
-single policy decision that we as a democracy will make.
-A simple idea blinds us, and under the cover of darkness, much
-happens that most of us would reject if any of us looked. So uncritically
-do we accept the idea of property in ideas that we don't even notice
-how monstrous it is to deny ideas to a people who are dying without
-them. So uncritically do we accept the idea of property in culture that
-we don't even question when the control of that property removes our
+critical eye that helps us see the difference between truth and
+extremism. A certain property fundamentalism, having no connection to
+our tradition, now reigns in this culture—bizarrely, and with
+consequences more grave to the spread of ideas and culture than almost
+any other single policy decision that we as a democracy will make. A
+simple idea blinds us, and under the cover of darkness, much happens
+that most of us would reject if any of us looked. So uncritically do
+we accept the idea of property in ideas that we don't even notice how
+monstrous it is to deny ideas to a people who are dying without
+them. So uncritically do we accept the idea of property in culture
+that we don't even question when the control of that property removes
+our
<!-- PAGE BREAK 269 -->
ability, as a people, to develop our culture democratically. Blindness
becomes our common sense. And the challenge for anyone who would
Daily, 19 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #61</ulink>.
</para></footnote>
- At the request of a wide range of interests, WIPO had
- decided
-to hold a meeting to discuss "open and collaborative projects to
-create public goods." These are projects that have been successful in
-producing public goods without relying exclusively upon a proprietary
-use of intellectual property. Examples include the Internet and the
-World Wide Web, both of which were developed on the basis of
- protocols
-in the public domain. It included an emerging trend to support
-open academic journals, including the Public Library of Science
- project
+At the request of a wide range of interests, WIPO had decided to hold
+a meeting to discuss "open and collaborative projects to create public
+goods." These are projects that have been successful in producing
+public goods without relying exclusively upon a proprietary use of
+intellectual property. Examples include the Internet and the World
+Wide Web, both of which were developed on the basis of protocols in
+the public domain. It included an emerging trend to support open
+academic journals, including the Public Library of Science project
that I describe in the Afterword. It included a project to develop
single nucleotide polymorphisms (SNPs), which are thought to have
-great significance in biomedical research. (That nonprofit project
- comprised
-a consortium of the Wellcome Trust and pharmaceutical and
+great significance in biomedical research. (That nonprofit project
+comprised a consortium of the Wellcome Trust and pharmaceutical and
technological companies, including Amersham Biosciences, AstraZeneca,
<!-- PAGE BREAK 270 -->
Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
- Glaxo-SmithKline,
-IBM, Motorola, Novartis, Pfizer, and Searle.) It included
-the Global Positioning System, which Ronald Reagan set free in the
-early 1980s. And it included "open source and free software."
+Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
+included the Global Positioning System, which Ronald Reagan set free
+in the early 1980s. And it included "open source and free software."
+<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
The aim of the meeting was to consider this wide range of projects
<!-- f7. --> I should disclose that I was one of the people who asked WIPO for the
meeting.
</para></footnote>
-The projects within its scope included both commercial and
- noncommercial
-work. They primarily involved science, but from many
- perspectives.
-And WIPO was an ideal venue for this discussion, since
+The projects within its scope included both commercial and
+noncommercial work. They primarily involved science, but from many
+perspectives. And WIPO was an ideal venue for this discussion, since
WIPO is the preeminent international body dealing with intellectual
property issues.
</para>
<para>
Indeed, I was once publicly scolded for not recognizing this fact
about WIPO. In February 2003, I delivered a keynote address to a
-preparatory conference for the World Summit on the Information
- Society
-(WSIS). At a press conference before the address, I was asked
-what I would say. I responded that I would be talking a little about the
+preparatory conference for the World Summit on the Information Society
+(WSIS). At a press conference before the address, I was asked what I
+would say. I responded that I would be talking a little about the
importance of balance in intellectual property for the development of
-an information society. The moderator for the event then promptly
- interrupted
-to inform me and the assembled reporters that no question
+an information society. The moderator for the event then promptly
+interrupted to inform me and the assembled reporters that no question
about intellectual property would be discussed by WSIS, since those
questions were the exclusive domain of WIPO. In the talk that I had
-prepared, I had actually made the issue of intellectual property
- relatively
-minor. But after this astonishing statement, I made intellectual
-property the sole focus of my talk. There was no way to talk about an
-"Information Society" unless one also talked about the range of
- information
-and culture that would be free. My talk did not make my
- immoderate
-moderator very happy. And she was no doubt correct that the
-scope of intellectual property protections was ordinarily the stuff of
+prepared, I had actually made the issue of intellectual property
+relatively minor. But after this astonishing statement, I made
+intellectual property the sole focus of my talk. There was no way to
+talk about an "Information Society" unless one also talked about the
+range of information and culture that would be free. My talk did not
+make my immoderate moderator very happy. And she was no doubt correct
+that the scope of intellectual property protections was ordinarily the
+stuff of
<!-- PAGE BREAK 271 -->
WIPO. But in my view, there couldn't be too much of a conversation
about how much intellectual property is needed, since in my view, the
very idea of balance in intellectual property had been lost.
</para>
<para>
-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 meeting about "open and collaborative projects to
-create public goods" seemed perfectly appropriate within the WIPO
-agenda.
-</para>
-<para>
-But there is one project within that list that is highly controversial,
-at least among lobbyists. That project is "open source and free
- software."
-Microsoft in particular is wary of discussion of the subject. From
-its perspective, a conference to discuss open source and free software
-would be like a conference to discuss Apple's operating system. Both
-open source and free software compete with Microsoft's software. And
-internationally, many governments have begun to explore requirements
-that they use open source or free software, rather than "proprietary
-software," for their own internal uses.
-</para>
-<para>
-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
-software. There are many important companies that depend
- fundamentally
-upon open source and free software, IBM being the most
+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 meeting about "open and collaborative projects to create
+public goods" seemed perfectly appropriate within the WIPO agenda.
+</para>
+<para>
+But there is one project within that list that is highly
+controversial, at least among lobbyists. That project is "open source
+and free software." Microsoft in particular is wary of discussion of
+the subject. From its perspective, a conference to discuss open source
+and free software would be like a conference to discuss Apple's
+operating system. Both open source and free software compete with
+Microsoft's software. And internationally, many governments have begun
+to explore requirements that they use open source or free software,
+rather than "proprietary software," for their own internal uses.
+</para>
+<para>
+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 software. There are many important companies that depend
+fundamentally upon open source and free software, IBM being the most
prominent. IBM is increasingly shifting its focus to the GNU/Linux
-operating system, the most famous bit of "free software"—and IBM is
-emphatically a commercial entity. Thus, to support "open source and
-free software" is not to oppose commercial entities. It is, instead, to
-support a mode of software development that is different from
- Microsoft's.<footnote><para>
-<!-- f8. --> Microsoft's position about free and open source software is more
- sophisticated.
-As it has repeatedly asserted, it has no problem with "open source"
-software or software in the public domain. Microsoft's principal
- opposition
-is to "free software" licensed under a "copyleft" license, meaning a
- license
-that requires the licensee to adopt the same terms on any derivative
-work. See Bradford L. Smith, "The Future of Software: Enabling the
- Marketplace
-to Decide," Government Policy Toward Open Source Software
-(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies,
-American Enterprise Institute for Public Policy Research, 2002), 69,
-available at
-<ulink url="http://free-culture.cc/notes/">link #62</ulink>. See also Craig Mundie, Microsoft senior vice
- president,
-The Commercial Software Model, discussion at New York University
-Stern School of Business (3 May 2001), available at
+operating system, the most famous bit of "free software"—and IBM
+is emphatically a commercial entity. Thus, to support "open source and
+free software" is not to oppose commercial entities. It is, instead,
+to support a mode of software development that is different from
+Microsoft's.<footnote><para>
+<!-- f8. -->
+Microsoft's position about free and open source software is more
+sophisticated. As it has repeatedly asserted, it has no problem with
+"open source" software or software in the public domain. Microsoft's
+principal opposition is to "free software" licensed under a "copyleft"
+license, meaning a license that requires the licensee to adopt the
+same terms on any derivative work. See Bradford L. Smith, "The Future
+of Software: Enabling the Marketplace to Decide," Government Policy
+Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint
+Center for Regulatory Studies, American Enterprise Institute for
+Public Policy Research, 2002), 69, available at
+<ulink url="http://free-culture.cc/notes/">link #62</ulink>. See also
+Craig Mundie, Microsoft senior vice president, The Commercial Software
+Model, discussion at New York University Stern School of Business (3
+May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
</para>
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.
+<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<para>
When Ms. Boland says that there is something wrong with a meeting
choice we are now making about intellectual property.<footnote><para>
<!-- f10. -->
See Drahos with Braithwaite, Information Feudalism, 210–20.
+<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
We will have an information society. That much is certain. Our only
choice now is whether that information society will be free or
for Peace organized to oppose this change in FCC policy. An
astonishing 700,000 letters were sent to the FCC, demanding more
hearings and a different result.
+<indexterm><primary>Turner, Ted</primary></indexterm>
+<indexterm><primary>Safire, William</primary></indexterm>
</para>
<para>
This activism did not stop the FCC, but soon after, a broad coalition
If we were Achilles, this would be our heel. This would be the place
of our tragedy.
</para>
+<indexterm><primary>Dylan, Bob</primary></indexterm>
<para>
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.<footnote><para>
world that is a creator's nightmare.
</para>
<para>
-What's needed is a way to say something in the middle—neither "all
-rights reserved" nor "no rights reserved" but "some rights reserved"—
-and thus a way to respect copyrights but enable creators to free content
-as they see fit. In other words, we need a way to restore a set of
- freedoms
-that we could just take for granted before.
+What's needed is a way to say something in the middle—neither
+"all rights reserved" nor "no rights reserved" but "some rights
+reserved"— and thus a way to respect copyrights but enable
+creators to free content as they see fit. In other words, we need a
+way to restore a set of freedoms that we could just take for granted
+before.
</para>
<sect2 id="examples">
scientific journals are produced.
</para>
<para>
-As digital technologies develop, it is becoming obvious to many
-that printing thousands of copies of journals every month and sending
-them to libraries is perhaps not the most efficient way to distribute
+As digital technologies develop, it is becoming obvious to many that
+printing thousands of copies of journals every month and sending them
+to libraries is perhaps not the most efficient way to distribute
knowledge. Instead, journals are increasingly becoming electronic, and
-libraries and their users are given access to these electronic journals
-through password-protected sites. Something similar to this has been
-happening in law for almost thirty years: Lexis and Westlaw have had
-electronic versions of case reports available to subscribers to their
- service.
-Although a Supreme Court opinion is not copyrighted, and
- anyone
-is free to go to a library and read it, Lexis and Westlaw are also free
+libraries and their users are given access to these electronic
+journals through password-protected sites. Something similar to this
+has been happening in law for almost thirty years: Lexis and Westlaw
+have had electronic versions of case reports available to subscribers
+to their service. Although a Supreme Court opinion is not
+copyrighted, and anyone is free to go to a library and read it, Lexis
+and Westlaw are also free
<!-- PAGE BREAK 286 -->
to charge users for the privilege of gaining access to that Supreme
Court opinion through their respective services.
</para>
<para>
-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
+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 people to develop new and innovative ways to spread knowledge.
-The law has agreed, which is why Lexis and Westlaw have been
- allowed
+The law has agreed, which is why Lexis and Westlaw have been allowed
to flourish. And if there's nothing wrong with selling the public
domain, then there could be nothing wrong, in principle, with selling
access to material that is not in the public domain.
</para>
<para>
As many are beginning to notice, this is increasingly the reality with
-scientific journals. When these journals were distributed in paper form,
-libraries could make the journals available to anyone who had access to
-the library. Thus, patients with cancer could become cancer experts
- because
-the library gave them access. Or patients trying to understand
-the risks of a certain treatment could research those risks by reading all
-available articles about that treatment. This freedom was therefore a
-function of the institution of libraries (norms) and the technology of
-paper journals (architecture)—namely, that it was very hard to control
-access to a paper journal.
+scientific journals. When these journals were distributed in paper
+form, libraries could make the journals available to anyone who had
+access to the library. Thus, patients with cancer could become cancer
+experts because the library gave them access. Or patients trying to
+understand the risks of a certain treatment could research those risks
+by reading all available articles about that treatment. This freedom
+was therefore a function of the institution of libraries (norms) and
+the technology of paper journals (architecture)—namely, that it
+was very hard to control access to a paper journal.
</para>
<para>
As journals become electronic, however, the publishers are demanding
available for free. PLoS also sells a print version of its work, but
the copyright for the print journal does not inhibit the right of
anyone to redistribute the work for free.
+<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
This is one of many such efforts to restore a freedom taken for
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.
+<indexterm><primary>Garlick, Mia</primary></indexterm>
</para>
<para>
The aim is not to fight the "All Rights Reserved" sorts. The aim is to
</para>
<para>
<!-- PAGE BREAK 293 -->
-These are all formalities associated with property. They are
- requirements
-that we all must bear if we want our property to be protected.
+These are all formalities associated with property. They are
+requirements that we all must bear if we want our property to be
+protected.
</para>
<para>
In contrast, under current copyright law, you automatically get a
was a good one. In the world before digital technologies, formalities
imposed a burden on copyright holders without much benefit. Thus, it
was progress when the law relaxed the formal requirements that a
-copyright owner must bear to protect and secure his work. Those
- formalities
-were getting in the way.
+copyright owner must bear to protect and secure his work. Those
+formalities were getting in the way.
</para>
<para>
But the Internet changes all this. Formalities today need not be a
-burden. Rather, the world without formalities is the world that
- burdens
-creativity. Today, there is no simple way to know who owns what,
-or with whom one must deal in order to use or build upon the
- creative
-work of others. There are no records, there is no system to trace—
-there is no simple way to know how to get permission. Yet given the
-massive increase in the scope of copyright's rule, getting permission is
-a necessary step for any work that builds upon our past. And thus, the
-lack of formalities forces many into silence where they otherwise could
-speak.
+burden. Rather, the world without formalities is the world that
+burdens creativity. Today, there is no simple way to know who owns
+what, or with whom one must deal in order to use or build upon the
+creative work of others. There are no records, there is no system to
+trace— there is no simple way to know how to get permission. Yet
+given the massive increase in the scope of copyright's rule, getting
+permission is a necessary step for any work that builds upon our
+past. And thus, the lack of formalities forces many into silence where
+they otherwise could speak.
</para>
<para>
The law should therefore change this requirement<footnote><para>
-<!-- f1. --> 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
-by other countries as well.
-</para></footnote>—but it should
-not change it by going back to the old, broken system. We should
- require
-formalities, but we should establish a system that will create the
-incentives to minimize the burden of these formalities.
-</para>
-<para>
-The important formalities are three: marking copyrighted work,
- registering
-copyrights, and renewing the claim to copyright. Traditionally,
-the first of these three was something the copyright owner did; the
- second
-two were something the government did. But a revised system of
-formalities would banish the government from the process, except for
-the sole purpose of approving standards developed by others.
+<!-- f1. -->
+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 by other countries as well.</para></footnote>—but it
+should not change it by going back to the old, broken system. We
+should require formalities, but we should establish a system that will
+create the incentives to minimize the burden of these formalities.
+</para>
+<para>
+The important formalities are three: marking copyrighted work,
+registering copyrights, and renewing the claim to
+copyright. Traditionally, the first of these three was something the
+copyright owner did; the second two were something the government
+did. But a revised system of formalities would banish the government
+from the process, except for the sole purpose of approving standards
+developed by others.
</para>
<!-- PAGE BREAK 294 -->
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.
+<indexterm><primary>Grisham, John</primary></indexterm>
</para>
<para>
Scope: Likewise should the scope of derivative rights be narrowed.
Again, there are some cases in which derivative rights are important.
Those should be specified. But the law should draw clear lines around
regulated and unregulated uses of copyrighted material. When all
-"reuse" of creative material was within the control of businesses,
- perhaps
-it made sense to require lawyers to negotiate the lines. It no longer
-makes sense for lawyers to negotiate the lines. Think about all the
- creative
-possibilities that digital technologies enable; now imagine
- pouring
-molasses into the machines. That's what this general requirement
-of permission does to the creative process. Smothers it.
+"reuse" of creative material was within the control of businesses,
+perhaps it made sense to require lawyers to negotiate the lines. It no
+longer makes sense for lawyers to negotiate the lines. Think about all
+the creative possibilities that digital technologies enable; now
+imagine pouring molasses into the machines. That's what this general
+requirement of permission does to the creative process. Smothers it.
</para>
<para>
This was the point that Alben made when describing the making of the
<ulink url="http://free-culture.cc/notes/">link #82</ulink>; Steven M. Cherry, "Getting Copyright Right,"
IEEE Spectrum Online, 1 July 2002, available at
<ulink url="http://free-culture.cc/notes/">link #83</ulink>; Declan
- McCullagh,
-"Verizon's Copyright Campaign," CNET News.com, 27 August
+McCullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August
2002, available at
<ulink url="http://free-culture.cc/notes/">link #84</ulink>.
Fisher's proposal is very similar to Richard Stallman's proposal for
DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
proportionally, though more popular artists would get more than the less
popular. As is typical with Stallman, his proposal predates the current
- debate
-by about a decade. See
+debate by about a decade. See
<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Fisher, William</primary></indexterm>
</para></footnote>
- Fisher suggests a
-very clever way around the current impasse of the Internet. Under his
-plan, all content capable of digital transmission would (1) be marked
-with a digital watermark (don't worry about how easy it is to evade
-these marks; as you'll see, there's no incentive to evade them). Once the
-content is marked, then entrepreneurs would develop (2) systems to
-monitor how many items of each content were distributed. On the
- basis
-of those numbers, then (3) artists would be compensated. The
- compensation
-would be paid for by (4) an appropriate tax.
+Fisher suggests a very clever way around the current impasse of the
+Internet. Under his plan, all content capable of digital transmission
+would (1) be marked with a digital watermark (don't worry about how
+easy it is to evade these marks; as you'll see, there's no incentive
+to evade them). Once the content is marked, then entrepreneurs would
+develop (2) systems to monitor how many items of each content were
+distributed. On the basis of those numbers, then (3) artists would be
+compensated. The compensation would be paid for by (4) an appropriate
+tax.
</para>
<para>
Fisher's proposal is careful and comprehensive. It raises a million
questions, most of which he answers well in his upcoming book,
-Promises to Keep. The modification that I would make is relatively
- simple:
-Fisher imagines his proposal replacing the existing copyright
- system.
-I imagine it complementing the existing system. The aim of the
-proposal would be to facilitate compensation to the extent that harm
-could be shown. This compensation would be temporary, aimed at
- facilitating
-a transition between regimes. And it would require renewal
-after a period of years. If it continues to make sense to facilitate free
- exchange
-of content, supported through a taxation system, then it can be
-continued. If this form of protection is no longer necessary, then the
-system could lapse into the old system of controlling access.
-</para>
-<para>
-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 supports the widest range of "semiotic democracy" possible. But
-the aims of semiotic democracy would be satisfied if the other changes
-I described were accomplished—in particular, the limits on derivative
+Promises to Keep. The modification that I would make is relatively
+simple: Fisher imagines his proposal replacing the existing copyright
+system. I imagine it complementing the existing system. The aim of
+the proposal would be to facilitate compensation to the extent that
+harm could be shown. This compensation would be temporary, aimed at
+facilitating a transition between regimes. And it would require
+renewal after a period of years. If it continues to make sense to
+facilitate free exchange of content, supported through a taxation
+system, then it can be continued. If this form of protection is no
+longer necessary, then the system could lapse into the old system of
+controlling access.
+</para>
+<para>
+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 supports the widest range of "semiotic democracy"
+possible. But the aims of semiotic democracy would be satisfied if the
+other changes I described were accomplished—in particular, the
+limits on derivative
<!-- PAGE BREAK 307 -->
uses. A system that simply charges for access would not greatly burden
-semiotic democracy if there were few limitations on what one was
- allowed
-to do with the content itself.
+semiotic democracy if there were few limitations on what one was
+allowed to do with the content itself.
</para>
<para>
No doubt it would be difficult to calculate the proper measure of
</para></listitem>
</orderedlist>
<para>
-But what if "piracy" doesn't disappear? What if there is a
- competitive
+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
consumers continue to "take" content for nothing? Should the law do
something then?
</para>
<para>
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 is not whether it eliminates sharing in the abstract.
-The real issue is its effect on the market. Is it better (a) to have a
- technology
-that is 95 percent secure and produces a market of size x, or
-(b) to have a technology that is 50 percent secure but produces a
- market
-of five times x? Less secure might produce more unauthorized
-sharing, but it is likely to also produce a much bigger market in
- authorized
-sharing. The most important thing is to assure artists'
- compensation
-without breaking the Internet. Once that's assured, then it
-may well be appropriate to find ways to track down the petty pirates.
+facts develop. These changes may not eliminate type A sharing. But the
+real issue is not whether it eliminates sharing in the abstract. The
+real issue is its effect on the market. Is it better (a) to have a
+technology that is 95 percent secure and produces a market of size x,
+or (b) to have a technology that is 50 percent secure but produces a
+market of five times x? Less secure might produce more unauthorized
+sharing, but it is likely to also produce a much bigger market in
+authorized sharing. The most important thing is to assure artists'
+compensation without breaking the Internet. Once that's assured, then
+it may well be appropriate to find ways to track down the petty
+pirates.
</para>
<para>
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 ways to break the Internet. Our focus until we're there
+subset of type A sharers. And our focus until we're there should not
+be on finding ways to break the Internet. Our focus until we're there
<!-- PAGE BREAK 309 -->
-should be on how to make sure the artists are paid, while protecting the
-space for innovation and creativity that the Internet is.
+should be on how to make sure the artists are paid, while protecting
+the space for innovation and creativity that the Internet is.
</para>
</sect2>
</para>
<para>
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 our profession has become too attuned to the client. And
-in a world where the rich clients have one strong view, the
- unwillingness
-of the profession to question or counter that one strong view queers
-the law.
-</para>
-<para>
-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 precisely the positions of some of the most moderate and
-significant figures in the history of this branch of the law. Many, for
- example,
-thought crazy the challenge that we brought to the Copyright
-Term Extension Act. Yet just thirty years ago, the dominant scholar
-and practitioner in the field of copyright, Melville Nimmer, thought it
-obvious.<footnote><para>
-<!-- f10. --> Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
+lawyers have played in this debate. The law speaks to ideals, but it
+is my view that our profession has become too attuned to the
+client. And in a world where the rich clients have one strong view,
+the unwillingness of the profession to question or counter that one
+strong view queers the law.
+</para>
+<para>
+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 precisely the positions of some of the most moderate
+and significant figures in the history of this branch of the
+law. Many, for example, thought crazy the challenge that we brought to
+the Copyright Term Extension Act. Yet just thirty years ago, the
+dominant scholar and practitioner in the field of copyright, Melville
+Nimmer, thought it obvious.<footnote><para>
+<!-- f10. -->
+Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
</para></footnote>
about our failure to actually reckon the costs of the law.
</para>
<para>
-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 actually functions, simply assume that the transaction
-costs of the legal system are slight.<footnote><para>
-<!-- f11. --> 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 question his own publicly stated position—twice. He initially
- predicted
-that downloading would substantially harm the industry. He then
-revised his view in light of the data, and he has since revised his view again.
-Compare Stan J. Liebowitz, Rethinking the Network Economy: The True
-Forces That Drive the Digital Marketplace (New York: Amacom, 2002),
-(reviewing his original view but expressing skepticism) with Stan J.
-Liebowitz, "Will MP3s Annihilate the Record Industry?" working paper,
-June 2003, available at
+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 actually functions, simply assume that the transaction costs of
+the legal system are slight.<footnote><para>
+<!-- f11. -->
+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 question his own publicly stated
+position—twice. He initially predicted that downloading would
+substantially harm the industry. He then revised his view in light of
+the data, and he has since revised his view again. Compare Stan
+J. Liebowitz, Rethinking the Network Economy: The True Forces That
+Drive the Digital Marketplace (New York: Amacom, 2002), (reviewing his
+original view but expressing skepticism) with Stan J. Liebowitz,
+"Will MP3s Annihilate the Record Industry?" working paper, June 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #86</ulink>.
-Liebowitz's careful analysis is extremely valuable in estimating the
- effect
-of file-sharing technology. In my view, however, he underestimates the
-costs of the legal system. See, for example, Rethinking, 174–76.
+Liebowitz's careful analysis is extremely valuable in estimating the
+effect of file-sharing technology. In my view, however, he
+underestimates the costs of the legal system. See, for example,
+Rethinking, 174–76.
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
- They see a system that has been
-around for hundreds of years, and they assume it works the way their
-elementary school civics class taught them it works.
+They see a system that has been around for hundreds of years, and they
+assume it works the way their elementary school civics class taught
+them it works.
</para>
<para>
<!-- PAGE BREAK 310 -->
-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 corrupt. I don't think our legal system (at the federal level, at
-least) is at all corrupt. I mean simply because the costs of our legal
- system
-are so astonishingly high that justice can practically never be done.
+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 corrupt. I don't think our legal system (at the federal
+level, at least) is at all corrupt. I mean simply because the costs of
+our legal system are so astonishingly high that justice can
+practically never be done.
</para>
<para>
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 lawyer spend reading cases carefully, or researching
- obscure
-strands of authority? The answer is the increasing reality: very
- little.
-The law depended upon the careful articulation and development
-of doctrine, but the careful articulation and development of legal
- doctrine
-depends upon careful work. Yet that careful work costs too much,
-except in the most high-profile and costly cases.
+should such a lawyer spend reading cases carefully, or researching
+obscure strands of authority? The answer is the increasing reality:
+very little. The law depended upon the careful articulation and
+development of doctrine, but the careful articulation and development
+of legal doctrine depends upon careful work. Yet that careful work
+costs too much, except in the most high-profile and costly cases.
</para>
<para>
The costliness and clumsiness and randomness of this system mock
and inexpensive, and hence radically more just.
</para>
<para>
-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 law will too often do if too much of our culture is left
-to its review.
+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 law will too often do if too much of our culture is left to
+its review.
</para>
<para>
-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 the amazing things your community could facilitate with
-digital technology—a wiki, a barn raising, activism to change
- something.
-Think about all those creative things, and then imagine cold
-molasses poured onto the machines. This is what any regime that
- requires
-permission produces. Again, this is the reality of Brezhnev's
-Russia.
+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 the amazing things your community could facilitate with digital
+technology—a wiki, a barn raising, activism to change something.
+Think about all those creative things, and then imagine cold molasses
+poured onto the machines. This is what any regime that requires
+permission produces. Again, this is the reality of Brezhnev's Russia.
</para>
<para>
The law should regulate in certain areas of culture—but it should
projects / text-free-culture-lessig.git / blobdiff