<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
-<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
- </holder>
+ <holder>Lawrence Lessig</holder>
</copyright>
+ <legalnotice>
+ <para>
+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>
+ </para>
+ </legalnotice>
+
<abstract>
<title>ABOUT THE AUTHOR</title>
<para>
the original copyright to make a copy or a derivative work without the
original copyright owner's permission.
</para>
+<indexterm id="idxwinickjudd" class='startofrange'>
+ <primary>Winick, Judd</primary>
+</indexterm>
<para>
Yet this illegal market exists and indeed flourishes in Japan, and in
the view of many, it is precisely because it exists that Japanese manga
flourish. As American graphic novelist Judd Winick said to me, "The
early days of comics in America are very much like what's going on
in Japan now. . . . American comics were born out of copying each
-
<!-- PAGE BREAK 40 -->
other. . . . That's how [the artists] learn to draw—by going into comic
books and not tracing them, but looking at them and copying them"
do. "As a creator, it's frustrating having to stick to some parameters
which are fifty years old."
</para>
+<indexterm startref="idxwinickjudd" class='endofrange'/>
<para>
The norm in Japan mitigates this legal difficulty. Some say it is
precisely the benefit accruing to the Japanese manga market that
popular has been selected by a very democratic process of
peer-generated rankings.
</para>
+<indexterm id="idxwinerdave" class='startofrange'>
+ <primary>Winer, Dave</primary>
+</indexterm>
<para>
There's a second way, as well, in which blogs have a different cycle
<!-- PAGE BREAK 57 -->
happens. When there are ten million, there will be something
extraordinary to report.
</para>
+<indexterm startref="idxwinerdave" class='endofrange'/>
+<indexterm id="idxbrownjohnseely" class='startofrange'>
+ <primary>Brown, John Seely</primary>
+</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
His work, as his Web site describes it, is "human learning and . . . the
architecture that unleashes 60 percent of the brain [and] a legal
system that closes down that part of the brain."
</para>
+<indexterm startref="idxbrownjohnseely" class='endofrange'/>
<para>
We're building a technology that takes the magic of Kodak, mixes
moving images and sound, and adds a space for commentary and an
every year to physical piracy<footnote><para>
<!-- f1 -->
See IFPI (International Federation of the Phonographic Industry), The
-Recording Industry Commercial Piracy Report 2003, July 2003, available at
-
-<ulink url="http://free-culture.cc/notes/">link #14</ulink>. See also Ben Hunt, "Companies Warned on Music Piracy Risk,"
-Financial Times, 14 February 2003, 11.
+Recording Industry Commercial Piracy Report 2003, July 2003, available
+at <ulink url="http://free-culture.cc/notes/">link #14</ulink>. See
+also Ben Hunt, "Companies Warned on Music Piracy Risk," Financial
+Times, 14 February 2003, 11.
</para></footnote>
-(that works out to one in three CDs sold
-worldwide). The MPAA estimates that it loses $3 billion annually
-worldwide to piracy.
+(that works out to one in three CDs sold worldwide). The MPAA
+estimates that it loses $3 billion annually worldwide to piracy.
</para>
<para>
This is piracy plain and simple. Nothing in the argument of this
<para>
Which is not to say that excuses and justifications couldn't be made
for it. We could, for example, remind ourselves that for the first one
-hundred years of the American Republic, America did not honor
- foreign
+hundred years of the American Republic, America did not honor foreign
copyrights. We were born, in this sense, a pirate nation. It might
-therefore seem hypocritical for us to insist so strongly that other
- developing
-nations treat as wrong what we, for the first hundred years of our
-existence, treated as right.
+therefore seem hypocritical for us to insist so strongly that other
+developing nations treat as wrong what we, for the first hundred years
+of our existence, treated as right.
</para>
<para>
That excuse isn't terribly strong. Technically, our law did not ban
the taking of foreign works. It explicitly limited itself to American
works. Thus the American publishers who published foreign works
without the permission of foreign authors were not violating any rule.
-The copy shops in Asia, by contrast, are violating Asian law. Asian law
-does protect foreign copyrights, and the actions of the copy shops
- violate
-that law. So the wrong of piracy that they engage in is not just a
-moral wrong, but a legal wrong, and not just an internationally legal
-wrong, but a locally legal wrong as well.
+The copy shops in Asia, by contrast, are violating Asian law. Asian
+law does protect foreign copyrights, and the actions of the copy shops
+violate that law. So the wrong of piracy that they engage in is not
+just a moral wrong, but a legal wrong, and not just an internationally
+legal wrong, but a locally legal wrong as well.
</para>
<para>
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
<!-- PAGE BREAK 77 -->
not to protect copyright internationally. We may have been born a
- pirate
-nation, but we will not allow any other nation to have a similar
-childhood.
+pirate nation, but we will not allow any other nation to have a
+similar childhood.
</para>
<para>
If a country is to be treated as a sovereign, however, then its laws are
</para>
<para>
This argument is still very weak. However, although copyright is a
-property right of a very special sort, it is a property right. Like all
- property
-rights, the copyright gives the owner the right to decide the terms
-under which content is shared. If the copyright owner doesn't want to
-sell, she doesn't have to. There are exceptions: important statutory
- licenses
-that apply to copyrighted content regardless of the wish of the
-copyright owner. Those licenses give people the right to "take"
- copyrighted
-content whether or not the copyright owner wants to sell. But
+property right of a very special sort, it is a property right. Like
+all property rights, the copyright gives the owner the right to decide
+the terms under which content is shared. If the copyright owner
+doesn't want to sell, she doesn't have to. There are exceptions:
+important statutory licenses that apply to copyrighted content
+regardless of the wish of the copyright owner. Those licenses give
+people the right to "take" copyrighted content whether or not the
+copyright owner wants to sell. But
<!-- PAGE BREAK 78 -->
where the law does not give people the right to take content, it is
wrong to take that content even if the wrong does no harm. If we have
-a property system, and that system is properly balanced to the
- technology
-of a time, then it is wrong to take property without the permission
-of a property owner. That is exactly what "property" means.
-</para>
-<para>
-Finally, we could try to excuse this piracy with the argument that
-the piracy actually helps the copyright owner. When the Chinese
-"steal" Windows, that makes the Chinese dependent on Microsoft.
-Microsoft loses the value of the software that was taken. But it gains
-users who are used to life in the Microsoft world. Over time, as the
- nation
-grows more wealthy, more and more people will buy software
-rather than steal it. And hence over time, because that buying will
- benefit
+a property system, and that system is properly balanced to the
+technology of a time, then it is wrong to take property without the
+permission of a property owner. That is exactly what "property" means.
+</para>
+<para>
+Finally, we could try to excuse this piracy with the argument that the
+piracy actually helps the copyright owner. When the Chinese "steal"
+Windows, that makes the Chinese dependent on Microsoft. Microsoft
+loses the value of the software that was taken. But it gains users who
+are used to life in the Microsoft world. Over time, as the nation
+grows more wealthy, more and more people will buy software rather than
+steal it. And hence over time, because that buying will benefit
Microsoft, Microsoft benefits from the piracy. If instead of pirating
Microsoft Windows, the Chinese used the free GNU/Linux operating
-system, then these Chinese users would not eventually be buying
- Microsoft.
-Without piracy, then, Microsoft would lose.
+system, then these Chinese users would not eventually be buying
+Microsoft. Without piracy, then, Microsoft would lose.
+<indexterm><primary>Windows</primary></indexterm>
</para>
<para>
-This argument, too, is somewhat true. The addiction strategy is a
-good one. Many businesses practice it. Some thrive because of it. Law
+This argument, too, is somewhat true. The addiction strategy is a good
+one. Many businesses practice it. Some thrive because of it. Law
students, for example, are given free access to the two largest legal
-databases. The companies marketing both hope the students will
- become
+databases. The companies marketing both hope the students will become
so used to their service that they will want to use it and not the
other when they become lawyers (and must pay high subscription fees).
</para>
<para>
-Still, the argument is not terribly persuasive. We don't give the
- alcoholic
-a defense when he steals his first beer, merely because that will
-make it more likely that he will buy the next three. Instead, we
- ordinarily
-allow businesses to decide for themselves when it is best to give
-their product away. If Microsoft fears the competition of GNU/Linux,
-then Microsoft can give its product away, as it did, for example, with
-Internet Explorer to fight Netscape. A property right means
- giving
-the property owner the right to say who gets access to what—at
-least ordinarily. And if the law properly balances the rights of the
- copyright
-owner with the rights of access, then violating the law is still
-wrong.
+Still, the argument is not terribly persuasive. We don't give the
+alcoholic a defense when he steals his first beer, merely because that
+will make it more likely that he will buy the next three. Instead, we
+ordinarily allow businesses to decide for themselves when it is best
+to give their product away. If Microsoft fears the competition of
+GNU/Linux, then Microsoft can give its product away, as it did, for
+example, with Internet Explorer to fight Netscape. A property right
+means giving the property owner the right to say who gets access to
+what—at least ordinarily. And if the law properly balances the
+rights of the copyright owner with the rights of access, then
+violating the law is still wrong.
</para>
<para>
<!-- PAGE BREAK 79 -->
</para>
<para>
These differences distinguish p2p sharing from true piracy. They
-should push us to find a way to protect artists while enabling this
- sharing
-to survive.
+should push us to find a way to protect artists while enabling this
+sharing to survive.
</para>
</sect2>
<sect2 id="piracy-ii">
or your 20,000 best friends.
</para>
<para>
-According to a number of estimates, a huge proportion of
- Americans
+According to a number of estimates, a huge proportion of Americans
have tasted file-sharing technology. A study by Ipsos-Insight in
September 2002 estimated that 60 million Americans had downloaded
music—28 percent of Americans older than 12.<footnote><para>
+
<!-- f7 -->
See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
(September 2002), reporting that 28 percent of Americans aged twelve
and older have downloaded music off of the Internet and 30 percent have
listened to digital music files stored on their computers.
</para></footnote>
-A survey by the NPD
-group quoted in The New York Times estimated that 43 million citizens
-
used file-sharing networks to exchange content in May 2003.<footnote><para>
+A survey by the NPD group quoted in The New York Times estimated that
+43 million citizens used file-sharing networks to exchange content in
+May 2003.<footnote><para>
<!-- f8 -->
Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
York Times, 6 June 2003, A1.
</para></footnote>
-The vast
-majority of these are not kids. Whatever the actual figure, a massive
-quantity of content is being "taken" on these networks. The ease and
-inexpensiveness of file-sharing networks have inspired millions to
- enjoy
-music in a way that they hadn't before.
+The vast majority of these are not kids. Whatever the actual figure, a
+massive quantity of content is being "taken" on these networks. The
+ease and inexpensiveness of file-sharing networks have inspired
+millions to enjoy music in a way that they hadn't before.
</para>
<para>
-Some of this enjoying involves copyright infringement. Some of it
-does not. And even among the part that is technically copyright
- infringement,
-calculating the actual harm to copyright owners is more
-complicated than one might think. So consider—a bit more carefully
-than the polarized voices around this debate usually do—the kinds of
-sharing that file sharing enables, and the kinds of harm it entails.
+Some of this enjoying involves copyright infringement. Some of it does
+not. And even among the part that is technically copyright
+infringement, calculating the actual harm to copyright owners is more
+complicated than one might think. So consider—a bit more
+carefully than the polarized voices around this debate usually
+do—the kinds of sharing that file sharing enables, and the kinds
+of harm it entails.
</para>
<para>
<!-- PAGE BREAK 81 -->
<orderedlist numeration="upperalpha">
<listitem><para>
<!-- A. -->
-There are some who use sharing networks as substitutes for
- purchasing
-content. Thus, when a new Madonna CD is released,
-rather than buying the CD, these users simply take it. We might
-quibble about whether everyone who takes it would actually
-have bought it if sharing didn't make it available for free. Most
-probably wouldn't have, but clearly there are some who would.
-The latter are the target of category A: users who download
- instead
-of purchasing.
+There are some who use sharing networks as substitutes for purchasing
+content. Thus, when a new Madonna CD is released, rather than buying
+the CD, these users simply take it. We might quibble about whether
+everyone who takes it would actually have bought it if sharing didn't
+make it available for free. Most probably wouldn't have, but clearly
+there are some who would. The latter are the target of category A:
+users who download instead of purchasing.
</para></listitem>
<listitem><para>
<!-- B. -->
There are some who use sharing networks to sample music before
-purchasing it. Thus, a friend sends another friend an MP3 of an
-artist he's not heard of. The other friend then buys CDs by that
-artist. This is a kind of targeted advertising, quite likely to
- succeed.
-If the friend recommending the album gains nothing from
-a bad recommendation, then one could expect that the
- recommendations
-will actually be quite good. The net effect of this
-sharing could increase the quantity of music purchased.
+purchasing it. Thus, a friend sends another friend an MP3 of an artist
+he's not heard of. The other friend then buys CDs by that artist. This
+is a kind of targeted advertising, quite likely to succeed. If the
+friend recommending the album gains nothing from a bad recommendation,
+then one could expect that the recommendations will actually be quite
+good. The net effect of this sharing could increase the quantity of
+music purchased.
</para></listitem>
<listitem><para>
<!-- C. -->
-There are many who use sharing networks to get access to
- copyrighted
-content that is no longer sold or that they would not
-have purchased because the transaction costs off the Net are too
-high. This use of sharing networks is among the most
- rewarding
-for many. Songs that were part of your childhood but have
-long vanished from the marketplace magically appear again on
-the network. (One friend told me that when she discovered
-Napster, she spent a solid weekend "recalling" old songs. She
-was astonished at the range and mix of content that was
- available.)
-For content not sold, this is still technically a violation of
-copyright, though because the copyright owner is not selling the
-content anymore, the economic harm is zero—the same harm
-that occurs when I sell my collection of 1960s 45-rpm records to
+There are many who use sharing networks to get access to copyrighted
+content that is no longer sold or that they would not have purchased
+because the transaction costs off the Net are too high. This use of
+sharing networks is among the most rewarding for many. Songs that were
+part of your childhood but have long vanished from the marketplace
+magically appear again on the network. (One friend told me that when
+she discovered Napster, she spent a solid weekend "recalling" old
+songs. She was astonished at the range and mix of content that was
+available.) For content not sold, this is still technically a
+violation of copyright, though because the copyright owner is not
+selling the content anymore, the economic harm is zero—the same
+harm that occurs when I sell my collection of 1960s 45-rpm records to
a local collector.
</para></listitem>
<listitem><para>
that instructed children how to save themselves in the middle of
nuclear attack? Go to archive.org, and you can download the film in a
few minutes—for free.
+<indexterm><primary>Movie Archive</primary></indexterm>
</para>
<para>
Here again, Kahle is providing access to a part of our culture that we
<para>
Here's the metaphor that will capture the argument to follow.
</para>
+<indexterm id="idxddt" class='startofrange'>
+ <primary>DDT</primary>
+</indexterm>
<para>
In 1873, the chemical DDT was first synthesized. In 1948, Swiss
chemist Paul Hermann Müller won the Nobel Prize for his work
demonstrating the insecticidal properties of DDT. By the 1950s, the
insecticide was widely used around the world to kill disease-carrying
pests. It was also used to increase farm production.
+<indexterm><primary>Müller, Paul Hermann</primary></indexterm>
</para>
<para>
No one doubts that killing disease-carrying pests or increasing crop
for free culture that will be far more devastating than that this gnat will
be lost.
</para>
+<indexterm startref="idxddt" class='endofrange'/>
</sect2>
<sect2 id="beginnings">
<title>Beginnings</title>
Disney's permission.
</para>
<para>
-Now, you might think this is a close case, and I think the courts would
-consider it a close case. My point here is to map the change that gives
-Disney this power. Before the Internet, Disney couldn't really control
-how people got access to their content. Once a video was in the
- marketplace,
-the "first-sale doctrine" would free the seller to use the video as he
-wished, including showing portions of it in order to engender sales of the
-entire movie video. But with the Internet, it becomes possible for Disney
-to centralize control over access to this content. Because each use of the
-Internet produces a copy, use on the Internet becomes subject to the
-copyright owner's control. The technology expands the scope of effective
-control, because the technology builds a copy into every transaction.
+Now, you might think this is a close case, and I think the courts
+would consider it a close case. My point here is to map the change
+that gives Disney this power. Before the Internet, Disney couldn't
+really control how people got access to their content. Once a video
+was in the marketplace, the "first-sale doctrine" would free the
+seller to use the video as he wished, including showing portions of it
+in order to engender sales of the entire movie video. But with the
+Internet, it becomes possible for Disney to centralize control over
+access to this content. Because each use of the Internet produces a
+copy, use on the Internet becomes subject to the copyright owner's
+control. The technology expands the scope of effective control,
+because the technology builds a copy into every transaction.
</para>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
- control
-is not yet the abuse of control. Barnes & Noble has the right to say
-you can't touch a book in their store; property law gives them that right.
-But the market effectively protects against that abuse. If Barnes &
- Noble
-banned browsing, then consumers would choose other bookstores.
-Competition protects against the extremes. And it may well be (my
- argument
-so far does not even question this) that competition would prevent
-any similar danger when it comes to copyright. Sure, publishers
- exercising
-the rights that authors have assigned to them might try to regulate
-how many times you read a book, or try to stop you from sharing the book
-with anyone. But in a competitive market such as the book market, the
-dangers of this happening are quite slight.
+control is not yet the abuse of control. Barnes & Noble has the
+right to say you can't touch a book in their store; property law gives
+them that right. But the market effectively protects against that
+abuse. If Barnes & Noble banned browsing, then consumers would
+choose other bookstores. Competition protects against the
+extremes. And it may well be (my argument so far does not even
+question this) that competition would prevent any similar danger when
+it comes to copyright. Sure, publishers exercising the rights that
+authors have assigned to them might try to regulate how many times you
+read a book, or try to stop you from sharing the book with anyone. But
+in a competitive market such as the book market, the dangers of this
+happening are quite slight.
</para>
<para>
Again, my aim so far is simply to map the changes that this changed
architecture enables. Enabling technology to enforce the control of
copyright means that the control of copyright is no longer defined by
-balanced policy. The control of copyright is simply what private
- owners
-choose. In some contexts, at least, that fact is harmless. But in some
-contexts it is a recipe for disaster.
+balanced policy. The control of copyright is simply what private
+owners choose. In some contexts, at least, that fact is harmless. But
+in some contexts it is a recipe for disaster.
</para>
</sect2>
<sect2 id="lawforce">
Marxes, warning them that there would be serious legal consequences
if they went forward with their plan.<footnote><para>
<!-- f19 -->
-See David Lange, "Recognizing the Public Domain," Law and
- Contemporary
-Problems 44 (1981): 172–73.
+See David Lange, "Recognizing the Public Domain," Law and
+Contemporary Problems 44 (1981): 172–73.
</para></footnote>
</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,
+<indexterm><primary>Diller, Barry</primary></indexterm>
+<indexterm><primary>Moyers, Bill</primary></indexterm>
</para>
<blockquote>
<para>
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>Comcast</primary></indexterm>
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
</para></footnote>
the settlement, see MCI press release, "MCI Wins U.S. District Court
Approval for SEC Settlement" (7 July 2003), available at
<ulink url="http://free-culture.cc/notes/">link #37</ulink>.
+<indexterm><primary>Worldcom</primary></indexterm>
</para></footnote>
And under legislation being pushed in Congress right now, a doctor who
negligently removes the wrong leg in an operation would be liable for
recent months.
<indexterm><primary>Bush, George W.</primary></indexterm>
</para></footnote>
- Can common sense recognize the absurdity in a world where
+Can common sense recognize the absurdity in a world where
the maximum fine for downloading two songs off the Internet is more
than the fine for a doctor's negligently butchering a patient?
+<indexterm><primary>Worldcom</primary></indexterm>
</para>
<para>
The consequence of this legal uncertainty, tied to these extremely
projects / text-free-culture-lessig.git / blobdiff