Armstrong invented profoundly important technologies that advanced our
understanding of radio.
<!-- PAGE BREAK 19 -->
+<indexterm><primary>Faraday, Michael</primary></indexterm>
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
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>
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
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>
</para>
</blockquote>
<para>
</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,
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
<!-- 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
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
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
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
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
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
</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">
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>
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
<!-- 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
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
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
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
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.
projects / text-free-culture-lessig.git / blobdiff