</para>
</dedication>
<!-- PAGE BREAK 4 -->
-<dedication id="frontpublisher">
-<title></title>
-<para>
-THE PENGUIN PRESS, NEW YORK
-</para>
-</dedication>
<!-- PAGE BREAK 5 -->
-<dedication id="frontbookinfo">
-<title></title>
-<para>
-FREE CULTURE
-</para>
-
-<para>
-HOW BIG MEDIA USES TECHNOLOGY AND
-THE LAW TO LOCK DOWN CULTURE
-AND CONTROL CREATIVITY
-</para>
-
-<para>
-LAWRENCE LESSIG
-</para>
-</dedication>
<!-- PAGE BREAK 6 -->
<colophon>
<para>
<preface id="preface">
<title>PREFACE</title>
-<indexterm id="idxpoguedavid" class='startofrange'>
- <primary>Pogue, David</primary>
-</indexterm>
+<indexterm id="idxpoguedavid" class='startofrange'><primary>Pogue, David</primary></indexterm>
<para>
<emphasis role="bold">At the end</emphasis> of his review of my first
book, <citetitle>Code: And Other Laws of Cyberspace</citetitle>, David
changes I describe affect values that both sides of our political
culture deem fundamental.
</para>
+<indexterm id='idxpower' class='startofrange'><primary>power, concentration of</primary></indexterm>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
+<indexterm><primary>Safire, William</primary></indexterm>
+<indexterm><primary>Stevens, Ted</primary></indexterm>
<para>
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
Olympia Snowe and conservative Ted Stevens,</quote> 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>
the effective scope of the law. The law is changing; that change is
altering the way our culture gets made; that change should worry
you—whether or not you care about the Internet, and whether you're on
-Safire's left or on his right. The inspiration for the title and for
+Safire's left or on his right.
+</para>
+<indexterm startref='idxpower' class='endofrange'/>
+<para>
+<emphasis role="strong">The inspiration</emphasis> for the title and for
much of the argument of this book comes from the work of Richard
Stallman and the Free Software Foundation. Indeed, as I reread
Stallman's own work, especially the essays in <citetitle>Free Software, Free
<!-- PAGE BREAK 16 -->
<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
-<indexterm id='idxairtraffic' class='startofrange'>
- <primary>air traffic, land ownership vs.</primary>
-</indexterm>
-<indexterm id='idxlandownership' class='startofrange'>
- <primary>land ownership, air traffic and</primary>
-</indexterm>
-<indexterm id='idxproprigtair' class='startofrange'>
- <primary>property rights</primary>
- <secondary>air traffic vs.</secondary>
-</indexterm>
-<indexterm><primary>Wright brothers</primary></indexterm>
+<indexterm id='idxwrightbrothers' class='startofrange'><primary>Wright brothers</primary></indexterm>
<para>
-On December 17, 1903, on a windy North Carolina beach for just
+<emphasis role="strong">On December 17</emphasis>, 1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
heavier-than-air, self-propelled vehicle could fly. The moment was electric
and its importance widely understood. Almost immediately, there
was an explosion of interest in this newfound technology of manned
flight, and a gaggle of innovators began to build upon it.
</para>
+<indexterm id='idxairtraffic' class='startofrange'><primary>air traffic, land ownership vs.</primary></indexterm>
+<indexterm id='idxlandownership' class='startofrange'><primary>land ownership, air traffic and</primary></indexterm>
+<indexterm id='idxproprigtair' class='startofrange'><primary>property rights</primary><secondary>air traffic vs.</secondary></indexterm>
<para>
At the time the Wright brothers invented the airplane, American
law held that a property owner presumptively owned not just the surface
rights in land ran to the heavens. Did that mean that you owned the
stars? Could you prosecute geese for their willful and regular trespass?
</para>
+<indexterm startref='idxwrightbrothers' class='endofrange'/>
<para>
Then came airplanes, and for the first time, this principle of American
law—deep within the foundations of our tradition, and acknowledged
<indexterm startref='idxproprigtair' class='endofrange'/>
<indexterm startref='idxlandownership' class='endofrange'/>
<indexterm startref='idxairtraffic' class='endofrange'/>
-<para>
-<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of America's forgotten inventor
-geniuses. He came to the great American inventor scene just after the
-titans Thomas Edison and Alexander Graham Bell. But his work in
-the area of radio technology was perhaps the most important of any
-single inventor in the first fifty years of radio. He was better educated
-than Michael Faraday, who as a bookbinder's apprentice had discovered
-electric induction in 1831. But he had the same intuition about
-how the world of radio worked, and on at least three occasions,
-Armstrong invented profoundly important technologies that advanced our
-understanding of radio.
-<!-- PAGE BREAK 19 -->
+<indexterm id='idxarmstrongedwin' class='startofrange'><primary>Armstrong, Edwin Howard</primary></indexterm>
<indexterm><primary>Bell, Alexander Graham</primary></indexterm>
<indexterm><primary>Edison, Thomas</primary></indexterm>
<indexterm><primary>Faraday, Michael</primary></indexterm>
+<para>
+<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of
+America's forgotten inventor geniuses. He came to the great American
+inventor scene just after the titans Thomas Edison and Alexander
+Graham Bell. But his work in the area of radio technology was perhaps
+the most important of any single inventor in the first fifty years of
+radio. He was better educated than Michael Faraday, who as a
+bookbinder's apprentice had discovered electric induction in 1831. But
+he had the same intuition about how the world of radio worked, and on
+at least three occasions, Armstrong invented profoundly important
+technologies that advanced our understanding of radio.
+<!-- PAGE BREAK 19 -->
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
</para></footnote>
</para>
</blockquote>
+<indexterm id='idxlessing' class='startofrange'><primary>Lessing, Lawrence</primary></indexterm>
<para>
Armstrong's invention threatened RCA's AM empire, so the company
launched a campaign to smother FM radio. While FM may have been a
</para></footnote>
</para>
</blockquote>
+<indexterm startref='idxlessing' class='endofrange'/>
<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
now broke, in 1954 Armstrong wrote a short note to his wife and then
stepped out of a thirteenth-story window to his death.
</para>
+<indexterm startref='idxarmstrongedwin' class='endofrange'/>
<para>
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From
effect of technological change.
</para>
<para>
-There's no single inventor of the Internet. Nor is there any good date
+<emphasis role="strong">There's no</emphasis> 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
sense was it dominant within our tradition. It was instead just one
part, a controlled part, balanced with the free.
</para>
+<indexterm><primary>free culture</primary><secondary> permission culture vs.</secondary></indexterm>
+<indexterm><primary>permission culture</primary><secondary> free culture vs.</secondary></indexterm>
<para>
This rough divide between the free and the controlled has now
been erased.<footnote><para>
succeeding in their plan to remake the Internet before the Internet
remakes them.
</para>
+<indexterm><primary>Valenti, Jack</primary><secondary> on creative property rights</secondary></indexterm>
<para>
It doesn't seem this way to many. The battles over copyright and the
<!-- PAGE BREAK 25 -->
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-Like the Causbys' battle, this war is, in part, about <quote>property.</quote> The
+<emphasis role="strong">Like the Causbys'</emphasis> battle, this war is, in part, about <quote>property.</quote> The
property of this war is not as tangible as the Causbys', and no
innocent chicken has yet to lose its life. Yet the ideas surrounding
this <quote>property</quote> are as obvious to most as the Causbys' claim about the
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
</para>
+<indexterm><primary>power, concentration of</primary></indexterm>
<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
<!-- PAGE BREAK 28 -->
</para>
<para>
-The struggle that rages just now centers on two ideas: <quote>piracy</quote> and
+<emphasis role="strong">The struggle</emphasis> that rages just now centers on two ideas: <quote>piracy</quote> and
<quote>property.</quote> My aim in this book's next two parts is to explore these two
ideas.
</para>
<title><quote>PIRACY</quote></title>
<partintro>
<!-- PAGE BREAK 30 -->
-<indexterm id="idxmansfield1" class='startofrange'>
- <primary>Mansfield, William Murray, Lord</primary>
-</indexterm>
+<indexterm id="idxmansfield1" class='startofrange'><primary>Mansfield, William Murray, Lord</primary></indexterm>
<para>
-Since the inception of the law regulating creative property, there has
+<emphasis role="strong">Since the inception</emphasis> of the law regulating creative property, there has
been a war against <quote>piracy.</quote> The precise contours of this concept,
<quote>piracy,</quote> are hard to sketch, but the animating injustice is easy to
capture. As Lord Mansfield wrote in a case that extended the reach of
piracy.
</para>
</blockquote>
+<indexterm><primary>ASCAP</primary></indexterm>
<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
+<indexterm><primary>Girl Scouts</primary></indexterm>
+<indexterm id='idxifvalue' class='startofrange'><primary><quote>if value, then right</quote> theory</primary></indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote>
There was <quote>value</quote> (the songs) so there must have been a
<quote>right</quote>—even against the Girl Scouts.
</para>
-<indexterm><primary>ASCAP</primary></indexterm>
<para>
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
theory of creative property has never been America's theory of
creative property. It has never taken hold within our law.
</para>
+<indexterm startref='idxifvalue' class='endofrange'/>
<para>
Instead, in our tradition, intellectual property is an instrument. It
sets the groundwork for a richly creative society but remains
<!-- PAGE BREAK 34 -->
<chapter label="1" id="creators">
<title>CHAPTER ONE: Creators</title>
-<indexterm id="idxanimadedcartoons" class='startofrange'>
- <primary>animated cartoons</primary>
-</indexterm>
+<indexterm id="idxanimadedcartoons" class='startofrange'><primary>animated cartoons</primary></indexterm>
+<indexterm id='idxcartoonfilms' class='startofrange'><primary>cartoon films</primary></indexterm>
<para>
-In 1928, a cartoon character was born. An early Mickey Mouse
+<emphasis role="strong">In 1928</emphasis>, a cartoon character was born. An early Mickey Mouse
made his debut in May of that year, in a silent flop called <citetitle>Plane Crazy</citetitle>.
In November, in New York City's Colony Theater, in the first widely
distributed cartoon synchronized with sound, <citetitle>Steamboat Willie</citetitle> brought
permission. Yet today, the public domain is presumptive only for
content from before the Great Depression.
</para>
+<indexterm startref='idxcartoonfilms' class='endofrange'/>
<para>
-Of course, Walt Disney had no monopoly on <quote>Walt Disney creativity.</quote>
+<emphasis role="strong">Of course</emphasis>, Walt Disney had no monopoly on <quote>Walt Disney creativity.</quote>
Nor does America. The norm of free culture has, until recently, and
except within totalitarian nations, been broadly exploited and quite
universal.
infringement of 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>
+<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
York: Perennial, 2000).
</para></footnote>
</para>
+<indexterm><primary>Superman comics</primary></indexterm>
<para>
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi are
uncompensated sharing? Does piracy here hurt the victims of the
piracy, or does it help them? Would lawyers fighting this piracy help
their clients or hurt them?
-Let's pause for a moment.
+</para>
+<para>
+<emphasis role='strong'>Let's pause</emphasis> for a moment.
</para>
<para>
If you're like I was a decade ago, or like most people are when they
</chapter>
<chapter label="2" id="mere-copyists">
<title>CHAPTER TWO: <quote>Mere Copyists</quote></title>
-<indexterm id="idxphotography" class='startofrange'>
- <primary>photography</primary>
-</indexterm>
+<indexterm id='idxcameratech' class='startofrange'><primary>camera technology</primary></indexterm>
+<indexterm id="idxphotography" class='startofrange'><primary>photography</primary></indexterm>
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
<para>
-In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call <quote>photographs.</quote> Appropriately enough, they
-were called <quote>daguerreotypes.</quote> The process was complicated and
+<emphasis role='strong'>In 1839</emphasis>, Louis Daguerre invented
+the first practical technology for producing what we would call
+<quote>photographs.</quote> Appropriately enough, they were called
+<quote>daguerreotypes.</quote> The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
Association that helped regulate the industry, as do all such
associations, by keeping competition down so as to keep prices up.)
-<indexterm><primary>Daguerre, Louis</primary></indexterm>
</para>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
amateurs.
<indexterm><primary>Talbot, William</primary></indexterm>
</para>
-<indexterm id="idxeastmangeorge" class='startofrange'>
- <primary>Eastman, George</primary>
-</indexterm>
+<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
Based on a chart in Jenkins, p. 178.
</para></footnote>
</para>
+<indexterm startref='idxcameratech' class='endofrange'/>
<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<citetitle>Steamboat Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
</para>
+<indexterm><primary>images, ownership of</primary></indexterm>
<para>
Fortunately for Mr. Eastman, and for photography in general, these
early decisions went in favor of the pirates. In general, no
photography to ordinary people would not have occurred. Nothing like
that growth would have been realized. And certainly, nothing like that
growth in a democratic technology of expression would have been
-realized. If you drive through San Francisco's Presidio, you might
-see two gaudy yellow school buses painted over with colorful and
-striking images, and the logo <quote>Just Think!</quote> in place of the name of a
-school. But there's little that's <quote>just</quote> cerebral in the projects that
-these busses enable. These buses are filled with technologies that
-teach kids to tinker with film. Not the film of Eastman. Not even the
-film of your VCR. Rather the <quote>film</quote> of digital cameras. Just Think!
-is a project that enables kids to make films, as a way to understand
-and critique the filmed culture that they find all around them. Each
-year, these busses travel to more than thirty schools and enable three
-hundred to five hundred children to learn something about media by
-doing something with media. By doing, they think. By tinkering, they
-learn.
+realized.
+</para>
+<indexterm><primary>camera technology</primary></indexterm>
+<para>
+<emphasis role='strong'>If you drive</emphasis> through San
+Francisco's Presidio, you might see two gaudy yellow school buses
+painted over with colorful and striking images, and the logo
+<quote>Just Think!</quote> in place of the name of a school. But
+there's little that's <quote>just</quote> cerebral in the projects
+that these busses enable. These buses are filled with technologies
+that teach kids to tinker with film. Not the film of Eastman. Not even
+the film of your VCR. Rather the <quote>film</quote> of digital
+cameras. Just Think! is a project that enables kids to make films, as
+a way to understand and critique the filmed culture that they find all
+around them. Each year, these busses travel to more than thirty
+schools and enable three hundred to five hundred children to learn
+something about media by doing something with media. By doing, they
+think. By tinkering, they learn.
</para>
<indexterm startref="idxeastmangeorge" class='endofrange'/>
<indexterm startref="idxphotography" class='endofrange'/>
<!-- FIXME removed a " from the end of the previous paragraph that did
not match with any start quote. -->
</blockquote>
+<indexterm><primary>World Trade Center</primary></indexterm>
<para>
-When two planes crashed into the World Trade Center, another into the
-Pentagon, and a fourth into a Pennsylvania field, all media around the
-world shifted to this news. Every moment of just about every day for
-that week, and for weeks after, television in particular, and media
-generally, retold the story of the events we had just witnessed. The
-telling was a retelling, because we had seen the events that were
-described. The genius of this awful act of terrorism was that the
-delayed second attack was perfectly timed to assure that the whole
-world would be watching.
+<emphasis role='strong'>When two planes</emphasis> crashed into the
+World Trade Center, another into the Pentagon, and a fourth into a
+Pennsylvania field, all media around the world shifted to this
+news. Every moment of just about every day for that week, and for
+weeks after, television in particular, and media generally, retold the
+story of the events we had just witnessed. The telling was a
+retelling, because we had seen the events that were described. The
+genius of this awful act of terrorism was that the delayed second
+attack was perfectly timed to assure that the whole world would be
+watching.
</para>
<para>
These retellings had an increasingly familiar feel. There was music
cultures, it records private facts in a public way—it's a kind
of electronic <citetitle>Jerry Springer</citetitle>, available anywhere in the world.
</para>
+<indexterm><primary>blogs (Web-logs)</primary></indexterm>
<para>
But in the United States, blogs have taken on a very different
character. There are some who use the space simply to talk about
in those elections. The cycle of these elections has become totally
professionalized and routinized. Most of us think this is democracy.
</para>
+<indexterm><primary>Tocqueville, Alexis de</primary></indexterm>
+<indexterm><primary>jury system</primary></indexterm>
<para>
But democracy has never just been about elections. Democracy
means rule by the people, but rule means something more than mere
</para></footnote> We say what our friends want to hear, and hear very
little beyond what our friends say.
</para>
+<indexterm id='idxblogs1' class='startofrange'><primary>blogs (Web-logs)</primary></indexterm>
+<indexterm><primary>e-mail</primary></indexterm>
<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
but there are many of all political stripes. And even blogs that are not
political cover political issues when the occasion merits.
</para>
+<indexterm><primary>Dean, Howard</primary></indexterm>
<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
is having an effect.
-<indexterm><primary>Dean, Howard</primary></indexterm>
</para>
+<indexterm><primary>Lott, Trent</primary></indexterm>
+<indexterm><primary>Thurmond, Strom</primary></indexterm>
<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
Noah Shachtman, <quote>With Incessant Postings, a Pundit Stirs the Pot,</quote> New
York Times, 16 January 2003, G5.
</para></footnote>
-<indexterm><primary>Lott, Trent</primary></indexterm>
</para>
<para>
This different cycle is possible because the same commercial pressures
popular has been selected by a very democratic process of
peer-generated rankings.
</para>
-<indexterm id="idxwinerdave" class='startofrange'>
- <primary>Winer, Dave</primary>
-</indexterm>
+<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 -->
get it out of the way.</quote>
</para>
<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Iraq war</primary></indexterm>
<para>
These conflicts become more important as media becomes more
concentrated (more on this below). A concentrated media can hide more
have been told to curtail their blogging.<footnote>
<para>
<!-- f21 -->
+<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Iraq war</primary></indexterm>
+<indexterm><primary>Olafson, Steve</primary></indexterm>
+<indexterm><primary>blogs (Web-logs)</primary></indexterm>
See Michael Falcone, <quote>Does an Editor's Pencil Ruin a Web Log?</quote> <citetitle>New
York Times</citetitle>, 29 September 2003, C4. (<quote>Not all news organizations have
been as accepting of employees who blog. Kevin Sites, a CNN
request. Last year Steve Olafson, a <citetitle>Houston Chronicle</citetitle> reporter, was
fired for keeping a personal Web log, published under a pseudonym,
that dealt with some of the issues and people he was covering.</quote>)
-<indexterm><primary>CNN</primary></indexterm>
</para></footnote>
But it is clear that we are still in transition. <quote>A
happens. When there are ten million, there will be something
extraordinary to report.
</para>
+<indexterm startref='idxblogs1' class='endofrange'/>
<indexterm startref="idxwinerdave" class='endofrange'/>
-<indexterm id="idxbrownjohnseely" class='startofrange'>
- <primary>Brown, John Seely</primary>
-</indexterm>
-<indexterm id='idxadvertising1' class='startofrange'>
- <primary>advertising</primary>
-</indexterm>
+<indexterm id="idxbrownjohnseely" class='startofrange'><primary>Brown, John Seely</primary></indexterm>
+<indexterm id='idxadvertising1' class='startofrange'><primary>advertising</primary></indexterm>
<para>
-John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is <quote>human learning and … the
-creation of knowledge ecologies for creating … innovation.</quote>
+<emphasis role='strong'>John Seely Brown</emphasis> is the chief
+scientist of the Xerox Corporation. His work, as his Web site
+describes it, is <quote>human learning and … the creation of
+knowledge ecologies for creating … innovation.</quote>
</para>
<para>
Brown thus looks at these technologies of digital creativity a bit
<chapter label="3" id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
<indexterm><primary>RPI</primary><see>Rensselaer Polytechnic Institute (RPI)</see></indexterm>
-<indexterm id="idxrensselaer" class='startofrange'>
- <primary>Rensselaer Polytechnic Institute (RPI)</primary>
-</indexterm>
+<indexterm id="idxrensselaer" class='startofrange'><primary>Rensselaer Polytechnic Institute (RPI)</primary></indexterm>
<para>
-In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
-a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
-His major at RPI was information technology. Though he is not a
-programmer, in October Jesse decided to begin to tinker with search
-engine technology that was available on the RPI network.
+<emphasis role='strong'>In the fall</emphasis> of 2002, Jesse Jordan
+of Oceanside, New York, enrolled as a freshman at Rensselaer
+Polytechnic Institute, in Troy, New York. His major at RPI was
+information technology. Though he is not a programmer, in October
+Jesse decided to begin to tinker with search engine technology that
+was available on the RPI network.
</para>
<para>
RPI is one of America's foremost technological research institutions.
created or posted, and the vast majority of which had nothing to do
with music.
</para>
+<indexterm><primary>statutory damages</primary></indexterm>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore <quote>willfully</quote> violated copyright laws. They
hundred specific copyright infringements, they therefore demanded that
Jesse pay them at least $15,000,000.
</para>
+<indexterm><primary>Princeton University</primary></indexterm>
+<indexterm><primary>Michigan Technical University</primary></indexterm>
<para>
Similar lawsuits were brought against three other students: one other
student at RPI, one at Michigan Technical University, and one at
$12,000 from summer jobs and other employment. They demanded
$12,000 to dismiss the case.
</para>
+<indexterm><primary>Oppenheimer, Matt</primary></indexterm>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
refused. They wanted him to agree to an injunction that would
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
The recording industry insists this is a matter of law and morality.
Let's put the law aside for a moment and think about the morality.
</chapter>
<chapter label="4" id="pirates">
<title>CHAPTER FOUR: <quote>Pirates</quote></title>
-<para>
-If <quote>piracy</quote> means using the creative property of others without
-their permission—if <quote>if value, then right</quote> is true—then the history of
-the content industry is a history of piracy. Every important sector of
-<quote>big media</quote> today—film, records, radio, and cable TV—was born of a
-kind of piracy so defined. The consistent story is how last generation's
-pirates join this generation's country club—until now.
+<indexterm><primary><quote>if value, then right</quote> theory</primary></indexterm>
+<para>
+<emphasis role='strong'>If <quote>piracy</quote> means</emphasis>
+using the creative property of others without their
+permission—if <quote>if value, then right</quote> is
+true—then the history of the content industry is a history of
+piracy. Every important sector of <quote>big media</quote>
+today—film, records, radio, and cable TV—was born of a
+kind of piracy so defined. The consistent story is how last
+generation's pirates join this generation's country club—until
+now.
</para>
<section id="film">
<title>Film</title>
Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
the Propertization of Copyright</quote> (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
-Working Paper No. 159. </para></footnote>
+Working Paper No. 159.
+<indexterm><primary>broadcast flag</primary></indexterm>
+</para></footnote>
<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
The record industry was born of another kind of piracy, though to see
how requires a bit of detail about the way the law regulates music.
</para>
-<indexterm id="idxfourneauxhenri" class='startofrange'>
- <primary>Fourneaux, Henri</primary>
-</indexterm>
+<indexterm id="idxfourneauxhenri" class='startofrange'><primary>Fourneaux, Henri</primary></indexterm>
<indexterm><primary>Russel, Phil</primary></indexterm>
<para>
At the time that Edison and Henri Fourneaux invented machines
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Sousa, John Philip</primary></indexterm>
<para>
The innovators who developed the technology to record other
people's works were <quote>sponging upon the toil, the work, the talent, and
</section>
<section id="radio">
<title>Radio</title>
+<indexterm id='idxartistspayments1' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
Radio was also born of piracy.
</para>
for free, even if it must pay the composer something for the privilege
of playing the song.
</para>
-<indexterm id="idxmadonna" class='startofrange'>
- <primary>Madonna</primary>
-</indexterm>
+<indexterm id="idxmadonna" class='startofrange'><primary>Madonna</primary></indexterm>
<para>
This difference can be huge. Imagine you compose a piece of music.
Imagine it is your first. You own the exclusive right to authorize
the choice for him or her, the law gives the radio station the right
to take something for nothing.
</para>
+<indexterm startref='idxartistspayments1' class='endofrange'/>
</section>
<section id="cabletv">
<title>Cable TV</title>
+<indexterm id='idxcabletv1' class='startofrange'><primary>cable television</primary></indexterm>
<para>
-
Cable TV was also born of a kind of piracy.
</para>
<para>
companies thus built their empire in part upon a <quote>piracy</quote> of the value
created by broadcasters' content.
</para>
+<indexterm startref='idxcabletv1' class='endofrange'/>
<para>
-These separate stories sing a common theme. If <quote>piracy</quote> means
-using value from someone else's creative property without permission
-from that creator—as it is increasingly described
-today<footnote><para>
+<emphasis role='strong'>These separate stories</emphasis> sing a
+common theme. If <quote>piracy</quote> means using value from someone
+else's creative property without permission from that creator—as
+
it is increasingly described today<footnote><para>
<!-- f19 -->
See, for example, National Music Publisher's Association, <citetitle>The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
<chapter label="5" id="piracy">
<title>CHAPTER FIVE: <quote>Piracy</quote></title>
<para>
-There is piracy of copyrighted material. Lots of it. This piracy comes
-in many forms. The most significant is commercial piracy, the
-unauthorized taking of other people's content within a commercial
-context. Despite the many justifications that are offered in its
-defense, this taking is wrong. No one should condone it, and the law
-should stop it.
+<emphasis role='strong'>There is piracy</emphasis> of copyrighted
+material. Lots of it. This piracy comes in many forms. The most
+significant is commercial piracy, the unauthorized taking of other
+people's content within a commercial context. Despite the many
+justifications that are offered in its defense, this taking is
+wrong. No one should condone it, and the law should stop it.
</para>
<para>
But as well as copy-shop piracy, there is another kind of <quote>taking</quote>
</para>
<section id="piracy-i">
<title>Piracy I</title>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
+<indexterm id='idxcdsforeign' class='startofrange'><primary>CDs</primary><secondary>foreign piracy of</secondary></indexterm>
<para>
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
should be respected. And under the laws of these nations, this piracy
is wrong.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Alternatively, we could try to excuse this piracy by noting that in
any case, it does no harm to the industry. The Chinese who get access
The physics of piracy of the intangible are different from the physics of
piracy of the tangible.
</para>
+<indexterm startref='idxcdsforeign' class='endofrange'/>
<para>
This argument is still very weak. However, although copyright is a
property right of a very special sort, it <emphasis>is</emphasis> a
technology of a time, then it is wrong to take property without the
permission of a property owner. That is exactly what <quote>property</quote> means.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Finally, we could try to excuse this piracy with the argument that the
piracy actually helps the copyright owner. When the Chinese <quote>steal</quote>
Microsoft. Without piracy, then, Microsoft would lose.
<indexterm><primary>GNU/Linux operating system</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
-<indexterm>
-<primary>Microsoft</primary>
-<secondary>Windows operating system of</secondary>
-</indexterm>
+<indexterm><primary>Microsoft</primary><secondary>Windows operating system of</secondary></indexterm>
<indexterm><primary>Windows</primary></indexterm>
</para>
<para>
law should seek to either prevent it or find an alternative to assure the
author of his profit.
</para>
+<indexterm><primary>innovation</primary></indexterm>
<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 -->
+<indexterm><primary>innovation</primary></indexterm>
See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The Revolutionary
National Bestseller That Changed the Way We Do Business</citetitle> (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
industry complains that type A sharing is a kind of <quote>theft</quote> that is
<quote>devastating</quote> the industry.
</para>
+<indexterm id='idxcassette' class='startofrange'><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
<para>
While the numbers do suggest that sharing is harmful, how
harmful is harder to reckon. It has long been the recording industry's
& Young put it, <quote>Rather than exploiting this new, popular
technology, the labels fought it.</quote><footnote><para>
<!-- f10 -->
+<indexterm><primary>cassette recording</primary></indexterm>
See Cap Gemini Ernst & Young, <citetitle>Technology Evolution and the
Music Industry's Business Model Crisis</citetitle> (2003), 3. This report
describes the music industry's effort to stigmatize the budding
U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4.
</para></footnote>
</para>
+<indexterm startref='idxcassette' class='endofrange'/>
<para>
But just because the industry was wrong before does not mean it is
wrong today. To evaluate the real threat that p2p sharing presents to
them.
</para>
+<indexterm id='idxcdssales' class='startofrange'><primary>CDs</primary><secondary>sales levels of</secondary></indexterm>
<para>
Could that be true? Could the industry as a whole be gaining because
of file sharing? Odd as that might sound, the data about CD sales
free, and yet sales revenue dropped by just 6.7 percent, then there is
a huge difference between <quote>downloading a song and stealing a CD.</quote>
</para>
+<indexterm startref='idxcdssales' class='endofrange'/>
<para>
These are the harms—alleged and perhaps exaggerated but, let's
assume, real. What of the benefits? File sharing may impose costs on
publisher or the distributor has decided it no longer makes economic
sense <emphasis>to the company</emphasis> to make it available.
</para>
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
<para>
In real space—long before the Internet—the market had a simple
<!-- PAGE BREAK 85 -->
thousands of used book and used record stores in America
today.<footnote><para>
<!-- f16 -->
-While there are not good estimates of the number of used record stores in
-existence, in 2002, there were 7,198 used book dealers in the United States,
-an increase of 20 percent since 1993. See Book Hunter Press, <citetitle>The Quiet
-Revolution: The Expansion of the Used Book Market</citetitle> (2002), available at
-<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used records accounted for $260 million in sales in 2002. See
- National
-Association of Recording Merchandisers, <quote>2002 Annual Survey
- Results,</quote>
-available at
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
+While there are not good estimates of the number of used record stores
+in existence, in 2002, there were 7,198 used book dealers in the
+United States, an increase of 20 percent since 1993. See Book Hunter
+Press, <citetitle>The Quiet Revolution: The Expansion of the Used Book
+Market</citetitle> (2002), available at
+<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used
+records accounted for $260 million in sales in 2002. See National
+Association of Recording Merchandisers, <quote>2002 Annual Survey
+Results,</quote> available at
<ulink url="http://free-culture.cc/notes/">link #20</ulink>.
</para></footnote>
These stores buy content from owners, then sell the content they
the content they sell.
</para>
<indexterm><primary>Bernstein, Leonard</primary></indexterm>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
<para>
Type C sharing, then, is very much like used book stores or used
record stores. It is different, of course, because the person making
stopped, do you think that libraries and used book stores should be
shut as well?
</para>
+<indexterm id='idxbooksfreeonline1' class='startofrange'><primary>books</primary><secondary>free on-line releases of</secondary></indexterm>
<para>
Finally, and perhaps most importantly, file-sharing networks enable
type D sharing to occur—the sharing of content that copyright owners
both he and society are better off. (Actually, much better off: It is a
great book!)
</para>
+<indexterm startref='idxbooksfreeonline1' class='endofrange'/>
<para>
Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
legitimate rights of creators while protecting innovation. Sometimes
this has meant more rights for creators. Sometimes less.
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
So, as we've seen, when <quote>mechanical reproduction</quote> threatened the
interests of composers, Congress balanced the rights of composers
creativity it broadcast), Congress rejected their claim. An indirect
benefit was enough.
</para>
+<indexterm id='idxcabletv2' class='startofrange'><primary>cable television</primary></indexterm>
<para>
Cable TV followed the pattern of record albums. When the courts
rejected the claim that cable broadcasters had to pay for the content
<emphasis>compensation</emphasis> without giving the past
(broadcasters) control over the future (cable).
</para>
+<indexterm startref='idxcabletv2' class='endofrange'/>
<indexterm><primary>Betamax</primary></indexterm>
+<indexterm id='idxcassettevcrs1' class='startofrange'><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
<para>
In the same year that Congress struck this balance, two major
producers and distributors of film content filed a lawsuit against
</para>
<informaltable id="t1">
-<tgroup cols="4" align="char">
+<tgroup cols="4" align="left">
<thead>
<row>
<entry>CASE</entry>
</tbody>
</tgroup>
</informaltable>
-
+<indexterm startref='idxcassettevcrs1' class='endofrange'/>
<para>
In each case throughout our history, a new technology changed the
way content was distributed.<footnote><para>
eliminate the opportunity for free riding in the sense I've described. See
Lessig, <citetitle>Future</citetitle>, 71. See also Picker, <quote>From Edison to the Broadcast Flag,</quote>
<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 293–96.
+<indexterm><primary>broadcast flag</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
John Schwartz, <quote>New Economy: The Attack on Peer-to-Peer Software
Echoes Past Efforts,</quote> <citetitle>New York Times</citetitle>, 22 September 2003, C3.
</para></footnote>
-Yet when anyone begins to talk about <quote>balance,</quote> the copyright warriors
-raise a different argument. <quote>All this hand waving about balance and
-incentives,</quote> they say, <quote>misses a fundamental point. Our content,</quote> the
-warriors insist, <quote>is our <emphasis>property</emphasis>. Why should we
-wait for Congress to `rebalance' our property rights? Do you have to
-wait before calling the police when your car has been stolen? And why
-should Congress deliberate at all about the merits of this theft? Do
-we ask whether the car thief had a good use for the car before we
-arrest him?</quote>
+</para>
+<para>
+<emphasis role='strong'>Yet when anyone</emphasis> begins to talk
+about <quote>balance,</quote> the copyright warriors raise a different
+argument. <quote>All this hand waving about balance and
+incentives,</quote> they say, <quote>misses a fundamental point. Our
+content,</quote> the warriors insist, <quote>is our
+<emphasis>property</emphasis>. Why should we wait for Congress to
+`rebalance' our property rights? Do you have to wait before calling
+the police when your car has been stolen? And why should Congress
+deliberate at all about the merits of this theft? Do we ask whether
+the car thief had a good use for the car before we arrest him?</quote>
</para>
<para>
<quote>It is <emphasis>our property</emphasis>,</quote> the warriors
<para>
<!-- PAGE BREAK 94 -->
-The copyright warriors are right: A copyright is a kind of
-property. It can be owned and sold, and the law protects against its
-theft. Ordinarily, the copyright owner gets to hold out for any price he
-wants. Markets reckon the supply and demand that partially determine
-the price she can get.
+<emphasis role='strong'>The copyright warriors</emphasis> are right: A
+copyright is a kind of property. It can be owned and sold, and the law
+protects against its theft. Ordinarily, the copyright owner gets to
+hold out for any price he wants. Markets reckon the supply and demand
+that partially determine the price she can get.
</para>
<para>
But in ordinary language, to call a copyright a <quote>property</quote> right is a
<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
<indexterm><primary>Henry V</primary></indexterm>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
+<indexterm id='idxbooksenglishlaw' class='startofrange'><primary>books</primary><secondary>English copyright law developed for</secondary></indexterm>
<para>
-William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
-was first published in 1597. It was the eleventh major play that
-Shakespeare had written. He would continue to write plays through
-1613, and the plays that he wrote have continued to define
-Anglo-American culture ever since. So deeply have the works of a
-sixteenth-century writer seeped into our culture that we often don't
-even recognize their source. I once overheard someone commenting on
-Kenneth Branagh's adaptation of Henry V: <quote>I liked it, but Shakespeare
-is so full of clichés.</quote>
+<emphasis role='strong'>William Shakespeare</emphasis> wrote
+<citetitle>Romeo and Juliet</citetitle> in 1595. The play was first
+published in 1597. It was the eleventh major play that Shakespeare had
+written. He would continue to write plays through 1613, and the plays
+that he wrote have continued to define Anglo-American culture ever
+since. So deeply have the works of a sixteenth-century writer seeped
+into our culture that we often don't even recognize their source. I
+once overheard someone commenting on Kenneth Branagh's adaptation of
+Henry V: <quote>I liked it, but Shakespeare is so full of
+clichés.</quote>
</para>
<para>
In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was written, the
<quote>copy-right</quote> for the work was still thought by many to be the exclusive
right of a single London publisher, Jacob Tonson.<footnote><para>
<!-- f1 -->
+<indexterm><primary>Jonson, Ben</primary></indexterm>
+<indexterm><primary>Dryden, John</primary></indexterm>
Jacob Tonson is typically remembered for his associations with prominent
eighteenth-century literary figures, especially John Dryden, and for his
handsome <quote>definitive editions</quote> of classic works. In addition to <citetitle>Romeo and
copyright. Prices of the classics were thus kept high; competition to
produce better or cheaper editions was eliminated.
</para>
+<indexterm id='idxbritishparliament' class='startofrange'><primary>British Parliament</primary></indexterm>
<para>
Now, there's something puzzling about the year 1774 to anyone who
knows a little about copyright law. The better-known year in the
the author the exclusive right to copy, the exclusive right to
distribute, the exclusive right to perform, and so on.
</para>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
<para>
So, for example, even if the copyright to Shakespeare's works were
perpetual, all that would have meant under the original meaning of the
right to print—no less, of course, but also no more.
</para>
<indexterm><primary>Henry VIII, King of England</primary></indexterm>
+<indexterm><primary>Statute of Monopolies (1656)</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
They had had a long and ugly experience with <quote>exclusive rights,</quote>
only so long as it benefited society. The British saw the harms from
specialinterest favors; they passed a law to stop them.
</para>
+<indexterm id='idxbooksellers' class='startofrange'><primary>booksellers, English</primary></indexterm>
<para>
Second, about booksellers. It wasn't just that the copyright was a
monopoly. It was also that it was a monopoly held by the booksellers.
Donaldson's. A number of actions were successful against the <quote>pirates,</quote>
the most important early victory being <citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>.
</para>
+<indexterm><primary>Taylor, Robert</primary></indexterm>
<para>
Millar was a bookseller who in 1729 had purchased the rights to James
Thomson's poem <quote>The Seasons.</quote> Millar complied with the requirements of
(1983): 1152.
</para></footnote>
</para>
-<indexterm id="idxmansfield2" class='startofrange'>
- <primary>Mansfield, William Murray, Lord</primary>
-</indexterm>
+<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
culture is available to people and how they get access to it are made
by the few despite the wishes of the many.
</para>
+<indexterm startref='idxbooksellers' class='endofrange'/>
<para>
At least, this was the rule in a world where the Parliament is
antimonopoly, resistant to the protectionist pleas of publishers. In a
world where the Parliament is more pliant, free culture would be less
protected.
</para>
+<indexterm startref='idxbritishparliament' class='endofrange'/>
+<indexterm startref='idxbooksenglishlaw' class='endofrange'/>
<!-- PAGE BREAK 106 -->
</chapter>
<chapter label="7" id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
<para>
-Jon Else is a filmmaker. He is best known for his documentaries and
-has been very successful in spreading his art. He is also a teacher, and
-as a teacher myself, I envy the loyalty and admiration that his students
-feel for him. (I met, by accident, two of his students at a dinner party.
-He was their god.)
+<emphasis role='strong'>Jon Else</emphasis> is a filmmaker. He is best
+known for his documentaries and has been very successful in spreading
+his art. He is also a teacher, and as a teacher myself, I envy the
+loyalty and admiration that his students feel for him. (I met, by
+accident, two of his students at a dinner party. He was their god.)
</para>
<para>
Else worked on a documentary that I was involved in. At a break,
to use this four-point-five seconds of … entirely unsolicited
<citetitle>Simpsons</citetitle> which was in the corner of the shot.</quote>
</para>
+<indexterm><primary>Herrera, Rebecca</primary></indexterm>
<para>
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
shot in the film. They take a dim view of <quote>fair use,</quote> and a claim of
<quote>fair use</quote> can grind the application process to a halt.
</para></listitem>
-<listitem><para>
+<listitem>
+<indexterm><primary><citetitle>Star Wars</citetitle></primary></indexterm>
+<para>
<!-- 2. -->
I probably never should have asked Matt Groening in the first
place. But I knew (at least from folklore) that Fox had a history of
<chapter label="8" id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
-<indexterm id='idxalbenalex1' class='startofrange'>
- <primary>Alben, Alex</primary>
-</indexterm>
+<indexterm id='idxalbenalex1' class='startofrange'><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Microsoft</primary></indexterm>
<para>
-In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
-was an innovative company founded by Microsoft cofounder Paul Allen to
-develop digital entertainment. Long before the Internet became
-popular, Starwave began investing in new technology for delivering
-entertainment in anticipation of the power of networks.
+<emphasis role='strong'>In 1993</emphasis>, Alex Alben was a lawyer
+working at Starwave, Inc. Starwave was an innovative company founded
+by Microsoft cofounder Paul Allen to develop digital
+entertainment. Long before the Internet became popular, Starwave began
+investing in new technology for delivering entertainment in
+anticipation of the power of networks.
</para>
+<indexterm id='idxartistsretrospective' class='startofrange'><primary>artists</primary><secondary>retrospective compilations on</secondary></indexterm>
+<indexterm id='idxcdroms' class='startofrange'><primary>CD-ROMs, film clips used in</primary></indexterm>
<para>
Alben had a special interest in new technology. He was intrigued by
the emerging market for CD-ROM technology—not to distribute
publicity—rights an artist has to control the commercial
exploitation of his image. But these rights, too, burden <quote>Rip, Mix,
Burn</quote> creativity, as this chapter evinces.
-<indexterm>
-<primary>artists</primary>
-<secondary>publicity rights on images of</secondary>
-</indexterm>
+<indexterm><primary>artists</primary><secondary>publicity rights on images of</secondary></indexterm>
<indexterm><primary>Alben, Alex</primary></indexterm>
</para></footnote>
</para>
started calling people.
</para>
</blockquote>
+<indexterm><primary>Sutherland, Donald</primary></indexterm>
<para>
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
that the average Web designer would not have. So if it took him a
year, how long would it take someone else? And how much creativity is
never made just because the costs of clearing the rights are so high?
+</para>
+<indexterm startref='idxcdroms' class='endofrange'/>
+<indexterm startref='idxartistsretrospective' class='endofrange'/>
+<para>
These costs are the burdens of a kind of regulation. Put on a
Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
find just about any image you want; in another second, you can have it
planted in your presentation.
</para>
+<indexterm><primary>Camp Chaos</primary></indexterm>
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
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
What reason would anyone have to oppose it?
</para>
<para>
-In February 2003, DreamWorks studios announced an agreement with Mike
-Myers, the comic genius of <citetitle>Saturday Night Live</citetitle> and
+<emphasis role='strong'>In February 2003</emphasis>, DreamWorks
+studios announced an agreement with Mike Myers, the comic genius of
+<citetitle>Saturday Night Live</citetitle> and
<!-- PAGE BREAK 118 -->
Austin Powers. According to the announcement, Myers and Dream-Works
would work together to form a <quote>unique filmmaking pact.</quote> Under the
</chapter>
<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
+<indexterm id='idxarchivesdigital1' class='startofrange'><primary>archives, digital</primary></indexterm>
+<indexterm><primary>bots</primary></indexterm>
<para>
-In April 1996, millions of <quote>bots</quote>—computer codes designed to
-<quote>spider,</quote> or automatically search the Internet and copy content—began
-running across the Net. Page by page, these bots copied Internet-based
-information onto a small set of computers located in a basement in San
-Francisco's Presidio. Once the bots finished the whole of the Internet,
-they started again. Over and over again, once every two months, these
-bits of code took copies of the Internet and stored them.
+<emphasis role='strong'>In April 1996</emphasis>, millions of
+<quote>bots</quote>—computer codes designed to
+<quote>spider,</quote> or automatically search the Internet and copy
+content—began running across the Net. Page by page, these bots
+copied Internet-based information onto a small set of computers
+located in a basement in San Francisco's Presidio. Once the bots
+finished the whole of the Internet, they started again. Over and over
+again, once every two months, these bits of code took copies of the
+Internet and stored them.
</para>
+<indexterm><primary>Way Back Machine</primary></indexterm>
<para>
By October 2001, the bots had collected more than five years of
copies. And at a small announcement in Berkeley, California, the
enter a Web page, and see all of its copies going back to 1996, as
well as when those pages changed.
</para>
+<indexterm id='idxorwellgeorge' class='startofrange'><primary>Orwell, George</primary></indexterm>
<para>
This is the thing about the Internet that Orwell would have
appreciated. In the dystopia described in <citetitle>1984</citetitle>, old newspapers were
but the content could easily be different. The Internet is Orwell's
library—constantly updated, without any reliable memory.
</para>
+<indexterm startref='idxorwellgeorge' class='endofrange'/>
+<indexterm><primary>Way Back Machine</primary></indexterm>
<para>
Until the Way Back Machine, at least. With the Way Back Machine, and
the Internet Archive underlying it, you can see what the Internet
perhaps, you also have the power to find what you don't remember and
what others might prefer you forget.<footnote><para>
<!-- f1 -->
+<indexterm><primary>Iraq war</primary></indexterm>
+<indexterm><primary>White House press releases</primary></indexterm>
The temptations remain, however. Brewster Kahle reports that the White
House changes its own press releases without notice. A May 13, 2003,
press release stated, <quote>Combat Operations in Iraq Have Ended.</quote> That was
Have Ended.</quote> E-mail from Brewster Kahle, 1 December 2003.
</para></footnote>
</para>
+<indexterm><primary>history, records of</primary></indexterm>
<para>
-We take it for granted that we can go back to see what we remember
-reading. Think about newspapers. If you wanted to study the reaction
-of your hometown newspaper to the race riots in Watts in 1965, or to
-Bull Connor's water cannon in 1963, you could go to your public
-library and look at the newspapers. Those papers probably exist on
-microfiche. If you're lucky, they exist in paper, too. Either way, you
-are free, using a library, to go back and remember—not just what
-it is convenient to remember, but remember something close to the
-truth.
+<emphasis role='strong'>We take it</emphasis> for granted that we can
+go back to see what we remember reading. Think about newspapers. If
+you wanted to study the reaction of your hometown newspaper to the
+race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
+you could go to your public library and look at the newspapers. Those
+papers probably exist on microfiche. If you're lucky, they exist in
+paper, too. Either way, you are free, using a library, to go back and
+remember—not just what it is convenient to remember, but
+remember something close to the truth.
</para>
<para>
It is said that those who fail to remember history are doomed to
Carnegie of the Internet. By December of 2002, the archive had over 10
billion pages, and it was growing at about a billion pages a month.
</para>
+<indexterm><primary>Library of Congress</primary></indexterm>
+<indexterm><primary>Television Archive</primary></indexterm>
+<indexterm><primary>Vanderbilt University</primary></indexterm>
+<indexterm><primary>Way Back Machine</primary></indexterm>
+<indexterm><primary>libraries</primary><secondary>archival function of</secondary></indexterm>
<para>
The Way Back Machine is the largest archive of human knowledge in
human history. At the end of 2002, it held <quote>two hundred and thirty
</para>
<blockquote>
<indexterm><primary>Quayle, Dan</primary></indexterm>
+<indexterm><primary>60 Minutes</primary></indexterm>
<para>
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
impossible. … Those materials are almost unfindable. …
</para>
</blockquote>
+<indexterm><primary>newspapers</primary><secondary>archives of</secondary></indexterm>
<para>
Why is that? Why is it that the part of our culture that is recorded
in newspapers remains perpetually accessible, while the part that is
once the copyright expired, so that others might access and copy the
work.
</para>
+<indexterm><primary>Library of Congress</primary></indexterm>
+<indexterm><primary>films</primary><secondary>archive of</secondary></indexterm>
<para>
These rules applied to film as well. But in 1915, the Library
of Congress made an exception for film. Film could be copyrighted so
demand them. The content of this part of American culture is
practically invisible to anyone who would look.
</para>
+<indexterm><primary>September 11, 2001, terrorist attacks of</primary></indexterm>
<para>
Kahle was eager to correct this. Before September 11, 2001, he and
<!-- PAGE BREAK 123 -->
Anyone could see how news reports from around the world covered the
events of that day.
</para>
+<indexterm><primary>Movie Archive</primary></indexterm>
+<indexterm><primary>archive.org</primary><seealso>Internet Archive</seealso></indexterm>
+<indexterm><primary>films</primary><secondary>archive of</secondary></indexterm>
+<indexterm><primary>Internet Archive</primary></indexterm>
+<indexterm><primary>Duck and Cover film</primary></indexterm>
+<indexterm><primary>ephemeral films</primary></indexterm>
+<indexterm><primary>Prelinger, Rick</primary></indexterm>
<para>
Kahle had the same idea with film. Working with Rick Prelinger, whose
archive of film includes close to 45,000 <quote>ephemeral films</quote> (meaning
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
the content can continue to inform even if that information is no
longer sold.
</para>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
<para>
The same has always been true about books. A book goes out of print
very quickly (the average today is after about a year<footnote><para>
<!-- f3 -->
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
Dave Barns, <quote>Fledgling Career in Antique Books: Woodstock Landlord,
Bar Owner Starts a New Chapter by Adopting Business,</quote> <citetitle>Chicago Tribune</citetitle>,
5 September 1997, at Metro Lake 1L. Of books published between 1927
disappears.
</para>
<para>
-For most of the twentieth century, it was economics that made this
-so. It would have been insanely expensive to collect and make
-accessible all television and film and music: The cost of analog
-copies is extraordinarily high. So even though the law in principle
-would have restricted the ability of a Brewster Kahle to copy culture
-generally, the
+<emphasis role='strong'>For most of</emphasis> the twentieth century,
+it was economics that made this so. It would have been insanely
+expensive to collect and make accessible all television and film and
+music: The cost of analog copies is extraordinarily high. So even
+though the law in principle would have restricted the ability of a
+Brewster Kahle to copy culture generally, the
<!-- PAGE BREAK 125 -->
real restriction was economics. The market made it impossibly
difficult to do anything about this ephemeral culture; the law had
Kahle describes,
</para>
<blockquote>
+<indexterm><primary>books</primary><secondary>total number of</secondary></indexterm>
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
someone's <quote>property.</quote> And the law of property restricts the freedoms
that Kahle and others would exercise.
</para>
+<indexterm startref='idxarchivesdigital1' class='endofrange'/>
<!-- PAGE BREAK 127 -->
</chapter>
<chapter label="10" id="property-i">
<title>CHAPTER TEN: <quote>Property</quote></title>
-<para>
-Jack Valenti has been the president of the Motion Picture Association
-of America since 1966. He first came to Washington, D.C., with Lyndon
-Johnson's administration—literally. The famous picture of
-Johnson's swearing-in on Air Force One after the assassination of
-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>
<indexterm><primary>Kennedy, John F.</primary></indexterm>
+<para>
+<emphasis role='strong'>Jack Valenti</emphasis> has been the president
+of the Motion Picture Association of America since 1966. He first came
+to Washington, D.C., with Lyndon Johnson's
+administration—literally. The famous picture of Johnson's
+swearing-in on Air Force One after the assassination of 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.
</para>
<para>
The MPAA is the American branch of the international Motion Picture
organization does. No person does. (Ask me about tenure, for example.)
But what's good for the MPAA is not necessarily good for America. A
society that defends the ideals of free culture must preserve
-precisely the opportunity for new creativity to threaten the old. To
-get just a hint that there is something fundamentally wrong in
-Valenti's argument, we need look no further than the United States
-Constitution itself.
+precisely the opportunity for new creativity to threaten the old.
+</para>
+<para>
+<emphasis role='strong'>To get</emphasis> just a hint that there is
+something fundamentally wrong in Valenti's argument, we need look no
+further than the United States Constitution itself.
</para>
<para>
The framers of our Constitution loved <quote>property.</quote> Indeed, so strongly
an ex ante rule. It is imposed by the state.
<indexterm><primary>Madonna</primary></indexterm>
</para>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
Norms are a different kind of constraint. They, too, punish an
individual for violating a rule. But the punishment of a norm is
state. The mark of the difference is not the severity of the rule, but
the source of the enforcement.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The market is a third type of constraint. Its constraint is effected
through conditions: You can do X if you pay Y; you'll be paid M if you
contract law, the market imposes a simultaneous constraint upon how an
individual or group might behave.
</para>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
Finally, and for the moment, perhaps, most mysteriously,
<quote>architecture</quote>—the physical world as one finds it—is a
most significant, and any regulator (whether controlling or freeing)
must consider how these four in particular interact.
</para>
-<indexterm id="idxdrivespeed" class='startofrange'>
- <primary>driving speed, constraints on</primary>
-</indexterm>
+<indexterm id="idxdrivespeed" class='startofrange'><primary>driving speed, constraints on</primary></indexterm>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
So, for example, consider the <quote>freedom</quote> to drive a car at a high
speed. That freedom is in part restricted by laws: speed limits that
<title>Law has a special role in affecting the three.</title>
<graphic fileref="images/1361.png"></graphic>
</figure>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
These constraints can thus change, and they can be changed. To
understand the effective protection of liberty or protection of
effective liberty that each of these groups might face.
<indexterm><primary>Americans with Disabilities Act (1990)</primary></indexterm>
<indexterm><primary>Commons, John R.</primary></indexterm>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
</para></footnote>
</para>
<section id="hollywood">
<title>Copyright's regulation before the Internet.</title>
<graphic fileref="images/1331.png"></graphic>
</figure>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
<!-- PAGE BREAK 136 -->
There is balance between law, norms, market, and architecture. The law
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
</para>
+<indexterm><primary>steel industry</primary></indexterm>
<para>
This mixed strategy is just what copyright needed—if it was to
preserve the particular balance that existed before the change induced
</para>
<indexterm><primary>railroad industry</primary></indexterm>
<indexterm><primary>advertising</primary></indexterm>
+<indexterm><primary>camera technology</primary></indexterm>
<para>
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
reinforce commercial television? (Maybe by limiting them to function
only once a second, or to switch to only ten channels within an hour?)
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
+<indexterm><primary>Gates, Bill</primary></indexterm>
<para>
The obvious answer to these obviously rhetorical questions is no.
In a free society, with a free market, supported by free enterprise and
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
<para>
Here's the metaphor that will capture the argument to follow.
</para>
-<indexterm id="idxddt" class='startofrange'>
- <primary>DDT</primary>
-</indexterm>
+<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
important and valuable and probably saved lives, possibly millions.
</para>
<indexterm><primary>Carson, Rachel</primary></indexterm>
+<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
<para>
But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, which argued that
DDT, whatever its primary benefits, was also having unintended
environmental consequences. Birds were losing the ability to
reproduce. Whole chains of the ecology were being destroyed.
-<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
when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
</para>
+<indexterm><primary>Boyle, James</primary></indexterm>
<para>
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an <quote>environmentalism</quote> for
<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, 498–501, and
accompanying figures. </para></footnote>
</para>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
<para>
Even today, this structure would make sense. Most creative work
has an actual commercial life of just a couple of years. Most books fall
<title>All potential uses of a book.</title>
<graphic fileref="images/1521.png"></graphic>
</figure>
+<indexterm id='idxbooksusetypes' class='startofrange'><primary>books</primary><secondary>three types of uses of</secondary></indexterm>
<para>
<!-- PAGE BREAK 152 -->
Think about a book in real space, and imagine this circle to represent
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
are nonetheless deemed <quote>fair</quote> regardless of the copyright owner's views.
</para>
+<indexterm startref='idxbooksusetypes' class='endofrange'/>
+<indexterm><primary>books</primary><secondary>on Internet</secondary></indexterm>
<para>
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.<footnote><para>
use—reading— could be regulated by copyright law because
none of those uses produced a copy.
</para>
+<indexterm><primary>books</primary><secondary>on Internet</secondary></indexterm>
<para>
But the same book as an e-book is effectively governed by a different
set of rules. Now if the copyright owner says you may read the book
presumptively regulated, then the protections of fair use are not
enough.
</para>
-<indexterm id='idxadvertising2' class='startofrange'>
- <primary>advertising</primary>
-</indexterm>
+<indexterm id='idxadvertising2' class='startofrange'><primary>advertising</primary></indexterm>
<para>
The case of Video Pipeline is a good example. Video Pipeline was
in the business of making <quote>trailer</quote> advertisements for movies available
videos. Video Pipeline got the trailers from the film distributors, put
the trailers on tape, and sold the tapes to the retail stores.
</para>
+<indexterm><primary>browsing</primary></indexterm>
<para>
The company did this for about fifteen years. Then, in 1997, it began
to think about the Internet as another way to distribute these
control. The technology expands the scope of effective control,
because the technology builds a copy into every transaction.
</para>
+<indexterm><primary>Barnes & Noble</primary></indexterm>
+<indexterm><primary>browsing</primary></indexterm>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
your freedom.
</para>
<indexterm><primary>Casablanca</primary></indexterm>
-<indexterm id="idxmarxbrothers" class='startofrange'>
- <primary>Marx Brothers</primary>
-</indexterm>
-<indexterm id="idxwarnerbrothers" class='startofrange'>
- <primary>Warner Brothers</primary>
-</indexterm>
+<indexterm id="idxmarxbrothers" class='startofrange'><primary>Marx Brothers</primary></indexterm>
+<indexterm id="idxwarnerbrothers" class='startofrange'><primary>Warner Brothers</primary></indexterm>
<para>
There's a famous story about a battle between the Marx Brothers
and Warner Brothers. The Marxes intended to make a parody of
silly claim. This extremism was irrelevant to the real freedoms anyone
(including Warner Brothers) enjoyed.
</para>
+<indexterm id='idxbooksoninternet' class='startofrange'><primary>books</primary><secondary>on Internet</secondary></indexterm>
<para>
On the Internet, however, there is no check on silly rules, because on
the Internet, increasingly, rules are enforced not by a human but by a
<indexterm startref="idxwarnerbrothers" class='endofrange'/>
<indexterm startref="idxmarxbrothers" class='endofrange'/>
-<indexterm id="idxadobeebookreader" class='startofrange'>
- <primary>Adobe eBook Reader</primary>
-</indexterm>
+<indexterm id="idxadobeebookreader" class='startofrange'><primary>Adobe eBook Reader</primary></indexterm>
<para>
Consider the life of my Adobe eBook Reader.
</para>
often crazy.
</para>
<indexterm startref="idxadobeebookreader" class='endofrange'/>
+<indexterm startref='idxbooksoninternet' class='endofrange'/>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
-<indexterm id="idxaibo1" class='startofrange'>
- <primary>Aibo robotic dog</primary>
-</indexterm>
-<indexterm id="idxroboticdog1" class='startofrange'>
- <primary>robotic dog</primary>
-</indexterm>
-<indexterm id="idxsonyaibo1" class='startofrange'>
- <primary>Sony</primary>
- <secondary>Aibo robotic dog produced by</secondary>
-</indexterm>
+<indexterm id="idxaibo1" class='startofrange'><primary>Aibo robotic dog</primary></indexterm>
+<indexterm id="idxroboticdog1" class='startofrange'><primary>robotic dog</primary></indexterm>
+<indexterm id="idxsonyaibo1" class='startofrange'><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
Consider the robotic dog made by Sony named <quote>Aibo.</quote> The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
was giving information to users of the Aibo pet about how to hack
their computer <quote>dog</quote> to make it do new tricks (thus, aibohack.com).
</para>
+<indexterm><primary>hacks</primary></indexterm>
<para>
If you're not a programmer or don't know many programmers, the word
<citetitle>hack</citetitle> has a particularly unfriendly
weakness in the SDMI system, and why SDMI would not, as presently
constituted, succeed.
</para>
-<indexterm id="idxaibo2" class='startofrange'>
- <primary>Aibo robotic dog</primary>
-</indexterm>
-<indexterm id="idxroboticdog2" class='startofrange'>
- <primary>robotic dog</primary>
-</indexterm>
-<indexterm id="idxsonyaibo2" class='startofrange'>
- <primary>Sony</primary>
- <secondary>Aibo robotic dog produced by</secondary>
-</indexterm>
+<indexterm id="idxaibo2" class='startofrange'><primary>Aibo robotic dog</primary></indexterm>
+<indexterm id="idxroboticdog2" class='startofrange'><primary>robotic dog</primary></indexterm>
+<indexterm id="idxsonyaibo2" class='startofrange'><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
What links these two, aibopet.com and Felten, is the letters they
then received. Aibopet.com received a letter from Sony about the
</para>
<indexterm><primary>Aibo robotic dog</primary></indexterm>
<indexterm><primary>robotic dog</primary></indexterm>
-<indexterm>
- <primary>Sony</primary>
- <secondary>Aibo robotic dog produced by</secondary>
-</indexterm>
+<indexterm><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
Aibopet.com and Felten make the point. The Aibo hack circumvented a
copyright protection system for the purpose of enabling the dog to
his academic paper was enabling others to infringe others' copyright.
</para>
<indexterm><primary>Rogers, Fred</primary></indexterm>
+<indexterm id='idxcassettevcrs2' class='startofrange'><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
<para>
The bizarreness of these arguments is captured in a cartoon drawn in
1981 by Paul Conrad. At that time, a court in California had held that
in the control of his or her life, in a healthy way, is
important.<footnote><para>
<!-- f23 -->
+<indexterm><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417,
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
to enable the use of particular copyrighted materials in ways that
would be considered fair use—a good end.
</para>
+<indexterm id='idxhandguns' class='startofrange'><primary>handguns</primary></indexterm>
<para>
A handgun can be used to shoot a police officer or a child. Most
<!-- PAGE BREAK 171 -->
<title>VCR/handgun cartoon.</title>
<graphic fileref="images/1711.png"></graphic>
</figure>
+<indexterm><primary>Conrad, Paul</primary></indexterm>
<para>
The obvious point of Conrad's cartoon is the weirdness of a world
where guns are legal, despite the harm they can do, while VCRs (and
died from copyright circumvention</emphasis>. Yet the law bans circumvention
technologies absolutely, despite the potential that they might do some
good, but permits guns, despite the obvious and tragic harm they do.
-<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
+<indexterm startref='idxhandguns' class='endofrange'/>
+<indexterm startref='idxcassettevcrs2' class='endofrange'/>
<indexterm><primary>Aibo robotic dog</primary></indexterm>
<indexterm><primary>robotic dog</primary></indexterm>
-<indexterm>
- <primary>Sony</primary>
- <secondary>Aibo robotic dog produced by</secondary>
-</indexterm>
+<indexterm><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm>
<para>
The Aibo and RIAA examples demonstrate how copyright owners are
changing the balance that copyright law grants. Using code, copyright
that space to do as you wished with this part of our culture. You were
allowed to build on it as you wished without fear of legal control.
</para>
+<indexterm><primary>bots</primary></indexterm>
<para>
But if you moved your club onto the Internet, and made it generally
available for others to join, the story would be very different. Bots
These changes are of two sorts: the scope of concentration, and its
nature.
</para>
+<indexterm><primary>cable television</primary></indexterm>
<para>
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
market's revenues. Overall, just four companies control 90 percent of
the nation's radio advertising revenues.
</para>
+<indexterm><primary>cable television</primary></indexterm>
<para>
Newspaper ownership is becoming more concentrated as well. Today,
there are six hundred fewer daily newspapers in the United States than
depend fundamentally upon the press to help inform Americans about
these issues.
</para>
-<indexterm id='idxadvertising3' class='startofrange'>
- <primary>advertising</primary>
-</indexterm>
+<indexterm id='idxadvertising3' class='startofrange'><primary>advertising</primary></indexterm>
<para>
Beginning in 1998, the Office of National Drug Control Policy launched
a media campaign as part of the <quote>war on drugs.</quote> The campaign produced
</para></footnote>
</para>
<para>
-This has been a long chapter. Its point can now be briefly stated.
+<emphasis role='strong'>This has been</emphasis> a long chapter. Its
+point can now be briefly stated.
</para>
<para>
At the start of this book, I distinguished between commercial and
</para>
<informaltable id="t2">
-<tgroup cols="3" align="char">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
</para>
<informaltable id="t3">
-<tgroup cols="3" align="char">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
</para>
<informaltable id="t4">
-<tgroup cols="3" align="char">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
</para>
<informaltable id="t5">
-<tgroup cols="3" align="char">
+<tgroup cols="3" align="left">
<thead>
<row>
<entry></entry>
free, and for almost 180 years our country consistently protected a
vibrant and rich free culture.
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
We achieved that free culture because our law respected important
limits on the scope of the interests protected by <quote>property.</quote> The very
<!-- PAGE BREAK 186 -->
<chapter label="11" id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
-<indexterm id="idxchimera" class='startofrange'>
- <primary>chimeras</primary>
-</indexterm>
-<indexterm id="idxwells" class='startofrange'>
- <primary>Wells, H. G.</primary>
-</indexterm>
-<indexterm id="idxtcotb" class='startofrange'>
- <primary><quote>Country of the Blind, The</quote> (Wells)</primary>
-</indexterm>
-
-<para>
-In a well-known short story by H. G. Wells, a mountain climber
-named Nunez trips (literally, down an ice slope) into an unknown and
-isolated valley in the Peruvian Andes.<footnote><para>
+<indexterm id="idxchimera" class='startofrange'><primary>chimeras</primary></indexterm>
+<indexterm id="idxwells" class='startofrange'><primary>Wells, H. G.</primary></indexterm>
+<indexterm id="idxtcotb" class='startofrange'><primary><quote>Country of the Blind, The</quote> (Wells)</primary></indexterm>
+
+<para>
+<emphasis role='strong'>In a well-known</emphasis> short story by
+H. G. Wells, a mountain climber named Nunez trips (literally, down an
+ice slope) into an unknown and isolated valley in the Peruvian
+Andes.<footnote><para>
<!-- f1. -->
H. G. Wells, <quote>The Country of the Blind</quote> (1904, 1911). See H. G. Wells,
<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael Sherborne, ed. (New
Nunez of this condition necessary for him to be allowed his bride.
(You'll have to read the original to learn what happens in the end. I
believe in free culture, but never in giving away the end of a story.)
-It sometimes happens that the eggs of twins fuse in the mother's
-womb. That fusion produces a <quote>chimera.</quote> A chimera is a single creature
-with two sets of DNA. The DNA in the blood, for example, might be
-different from the DNA of the skin. This possibility is an underused
+</para>
+<para>
+<emphasis role='strong'>It sometimes</emphasis> happens that the eggs
+of twins fuse in the mother's womb. That fusion produces a
+<quote>chimera.</quote> A chimera is a single creature with two sets
+of DNA. The DNA in the blood, for example, might be different from the
+DNA of the skin. This possibility is an underused
<!-- PAGE BREAK 188 -->
plot for murder mysteries. <quote>But the DNA shows with 100 percent
be extreme, but each of them has either been proposed or actually
implemented.<footnote><para>
<!-- f2. -->
+<indexterm><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
For an excellent summary, see the report prepared by GartnerG2 and the
Berkman Center for Internet and Society at Harvard Law School,
<quote>Copyright and Digital Media in a Post-Napster World,</quote> 27 June 2003,
<chapter label="12" id="harms">
<title>CHAPTER TWELVE: Harms</title>
<para>
-To fight <quote>piracy,</quote> to protect <quote>property,</quote> the content industry has
-launched a war. Lobbying and lots of campaign contributions have now
-brought the government into this war. As with any war, this one will
-have both direct and collateral damage. As with any war of
-prohibition, these damages will be suffered most by our own people.
+<emphasis role='strong'>To fight</emphasis> <quote>piracy,</quote> to
+protect <quote>property,</quote> the content industry has launched a
+war. Lobbying and lots of campaign contributions have now brought the
+government into this war. As with any war, this one will have both
+direct and collateral damage. As with any war of prohibition, these
+damages will be suffered most by our own people.
</para>
<para>
My aim so far has been to describe the consequences of this war, in
of control in the name of property still resonate; the uncritical
rejection of <quote>piracy</quote> still has play.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 193 -->
There will be many consequences of continuing this war. I want to
than the fine for a doctor's negligently butchering a patient?
<indexterm><primary>Worldcom</primary></indexterm>
</para>
+<indexterm><primary>art, underground</primary></indexterm>
<para>
The consequence of this legal uncertainty, tied to these extremely
high penalties, is that an extraordinary amount of creativity will
In the act of mixing the culture around us with an expression that is
critical or reflective.
</para>
+<indexterm><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
<para>
Part of the reason for this fear of illegality has to do with the
changing law. I described that change in detail in chapter
the songs that you played in the privacy of your own home that anyone
could tune into for whatever reason they chose.
</para>
+<indexterm><primary>images, ownership of</primary></indexterm>
<para>
Never in our history has a painter had to worry about whether
his painting infringed on someone else's work; but the modern-day
<quote>free culture.</quote> The point is the same, even if the interests
affecting culture are more fundamental.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The charge I've been making about the regulation of culture is the
same charge free marketers make about regulating markets. Everyone, of
MP3.com offered creators a venue to distribute their creativity,
without demanding an exclusive engagement from the creators.
</para>
+<indexterm><primary>Lovett, Lyle</primary></indexterm>
+<indexterm id='idxcdsprefdata' class='startofrange'><primary>CDs</primary><secondary>preference data on</secondary></indexterm>
<para>
To make this system work, however, MP3.com needed a reliable way to
recommend music to its users. The idea behind this alternative was to
leverage the revealed preferences of music listeners to recommend new
artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
Raitt. And so on.
-<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
This idea required a simple way to gather data about user preferences.
as a by-product, by seeing the content they already owned, to discover
the kind of content the users liked.
</para>
+<indexterm startref='idxcdsprefdata' class='endofrange'/>
<para>
To make this system function, however, MP3.com needed to copy 50,000
CDs to a server. (In principle, it could have been the user who
copies, it was 50,000 copies directed at giving customers something
they had already bought.
</para>
-<indexterm id="idxvivendiuniversal" class='startofrange'>
- <primary>Vivendi Universal</primary>
-</indexterm>
+<indexterm id="idxvivendiuniversal" class='startofrange'><primary>Vivendi Universal</primary></indexterm>
<para>
Nine days after MP3.com launched its service, the five major labels,
headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
</para>
<blockquote>
<indexterm><primary>BMW</primary></indexterm>
+<indexterm><primary>cars, MP3 sound system in</primary></indexterm>
<para>
I asked why, with all the storage capacity and computer power in
the car, there was no way to play MP3 files. I was told that BMW
unlimited liability, we will have much less vibrant innovation and
much less creativity.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The point is directly parallel to the crunchy-lefty point about fair
use. Whatever the <quote>real</quote> law is, realism about the effect of law in
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.
+result.
+</para>
+<para>
+<emphasis role='strong'>The uncertainty</emphasis> 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
the Internet less efficient. If the Internet enables <quote>piracy,</quote> then,
this response says, we should break the kneecaps of the Internet.
</para>
+<indexterm><primary>broadcast flag</primary></indexterm>
<para>
The examples of this form of legislation are many. At the urging of
the content industry, some in Congress have threatened legislation that
<indexterm><primary>Intel</primary></indexterm>
</para>
<para>
-There is one more obvious way in which this war has harmed
-innovation—again, a story that will be quite familiar to the
-free market crowd.
+<emphasis role='strong'>There is one</emphasis> more obvious way in
+which this war has harmed innovation—again, a story that will be
+quite familiar to the free market crowd.
</para>
<para>
Copyright may be property, but like all property, it is also a form
When done right, it benefits creators and harms leeches. When done
wrong, it is regulation the powerful use to defeat competitors.
</para>
+<indexterm><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
+<indexterm><primary>VCRs</primary></indexterm>
<para>
As I described in chapter <xref xrefstyle="select: labelnumber"
linkend="property-i"/>, despite this feature of copyright as
<para>
The response by the courts has been fairly universal.<footnote><para>
<!-- f10. -->
+<indexterm><primary>Grokster, Ltd.</primary></indexterm>
The only circuit court exception is found in <citetitle>Recording Industry
Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 180 F. 3d
1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
implemented by Congress. I won't catalog all of those responses
here.<footnote><para>
<!-- f11. -->
+<indexterm><primary>Tauzin, Billy</primary></indexterm>
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
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
<indexterm><primary>Hollings, Fritz</primary></indexterm>
+<indexterm><primary>broadcast flag</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.
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
<!-- PAGE BREAK 204 -->
of users worldwide. According to some estimates, more than eighty
million users worldwide have tuned in to this new form of radio.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 205 -->
question we should ask is, what copyright rules would govern Internet
radio?
</para>
+<indexterm id='idxartistspayments2' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
But here the power of the lobbyists is reversed. Internet radio is a
new industry. The recording artists, on the other hand, have a very
A regular radio station broadcasting the same content would pay no
equivalent fee.
</para>
+<indexterm startref='idxartistspayments2' class='endofrange'/>
<para>
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio
differences? Was the motive to protect artists against piracy?
</para>
<indexterm><primary>Real Networks</primary></indexterm>
-<indexterm id='idxalbenalex2' class='startofrange'>
- <primary>Alben, Alex</primary>
-</indexterm>
+<indexterm id='idxalbenalex2' class='startofrange'><primary>Alben, Alex</primary></indexterm>
<para>
In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
high, you're going to drive the small webcasters out of
business. …</quote>
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
And the RIAA experts said, <quote>Well, we don't really model this as an
industry with thousands of webcasters, <emphasis>we think it should be
right: In a series of commercials, Apple endorsed the <quote>Rip, Mix, Burn</quote>
capacities of digital technologies.
</para>
-<indexterm><primary>Adromeda</primary></indexterm>
+<indexterm><primary>Andromeda</primary></indexterm>
+<indexterm id='idxcdsmix' class='startofrange'><primary>CDs</primary><secondary>mix technology and</secondary></indexterm>
<para>
This <quote>use</quote> of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
plastic or were part of a massively complex <quote>digital rights
management</quote> system.
</para>
+<indexterm startref='idxcdsmix' class='endofrange'/>
<para>
If the only way to assure that artists get paid were the elimination
of the ability to freely move content, then these technologies to
Valenti is charming; but not so charming as to justify giving up a
tradition as deep and important as our tradition of free culture.
-There's one more aspect to this corruption that is particularly
-important to civil liberties, and follows directly from any war of
-prohibition. As Electronic Frontier Foundation attorney Fred von
-Lohmann describes, this is the <quote>collateral damage</quote> that <quote>arises
-whenever you turn a very large percentage of the population into
-criminals.</quote> This is the collateral damage to civil liberties
-generally.
+</para>
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
+<indexterm id='idxisps' class='startofrange'><primary>ISPs (Internet service providers), user identities revealed by</primary></indexterm>
+<para>
+<emphasis role='strong'>There's one more</emphasis> aspect to this
+corruption that is particularly important to civil liberties, and
+follows directly from any war of prohibition. As Electronic Frontier
+Foundation attorney Fred von Lohmann describes, this is the
+<quote>collateral damage</quote> that <quote>arises whenever you turn
+a very large percentage of the population into criminals.</quote> This
+is the collateral damage to civil liberties generally.
</para>
<para>
<quote>If you can treat someone as a putative lawbreaker,</quote> von Lohmann
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
</para>
+<indexterm startref='idxisps' class='endofrange'/>
<para>
Now, of course, she'll have the right to defend herself. You can hire
a lawyer for her (at $300 per hour, if you're lucky), and she can
<!-- PAGE BREAK 218 -->
<para>
-So here's the picture: You're standing at the side of the road. Your
-car is on fire. You are angry and upset because in part you helped start
-the fire. Now you don't know how to put it out. Next to you is a bucket,
-filled with gasoline. Obviously, gasoline won't put the fire out.
+<emphasis role='strong'>So here's</emphasis> the picture: You're
+standing at the side of the road. Your car is on fire. You are angry
+and upset because in part you helped start the fire. Now you don't
+know how to put it out. Next to you is a bucket, filled with
+gasoline. Obviously, gasoline won't put the fire out.
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
everything around.
</para>
<para>
-A war about copyright rages all around—and we're all focusing on
-the wrong thing. No doubt, current technologies threaten existing
-businesses. No doubt they may threaten artists. But technologies
-change. The industry and technologists have plenty of ways to use
-technology to protect themselves against the current threats of the
-Internet. This is a fire that if let alone would burn itself out.
+<emphasis role='strong'>A war</emphasis> about copyright rages all
+around—and we're all focusing on the wrong thing. No doubt,
+current technologies threaten existing businesses. No doubt they may
+threaten artists. But technologies change. The industry and
+technologists have plenty of ways to use technology to protect
+themselves against the current threats of the Internet. This is a fire
+that if let alone would burn itself out.
</para>
<para>
<!-- PAGE BREAK 219 -->
<!-- PAGE BREAK 220 -->
<chapter label="13" id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
-<indexterm id="idxhawthornenathaniel" class='startofrange'>
- <primary>Hawthorne, Nathaniel</primary>
-</indexterm>
+<indexterm id="idxhawthornenathaniel" class='startofrange'><primary>Hawthorne, Nathaniel</primary></indexterm>
<para>
-In 1995, a father was frustrated that his daughters didn't seem to
-like Hawthorne. No doubt there was more than one such father, but at
-least one did something about it. Eric Eldred, a retired computer
-programmer living in New Hampshire, decided to put Hawthorne on the
-Web. An electronic version, Eldred thought, with links to pictures and
-explanatory text, would make this nineteenth-century author's work
-come alive.
+<emphasis role='strong'>In 1995</emphasis>, a father was frustrated
+that his daughters didn't seem to like Hawthorne. No doubt there was
+more than one such father, but at least one did something about
+it. Eric Eldred, a retired computer programmer living in New
+Hampshire, decided to put Hawthorne on the Web. An electronic version,
+Eldred thought, with links to pictures and explanatory text, would
+make this nineteenth-century author's work come alive.
</para>
<para>
It didn't work—at least for his daughters. They didn't find
if Congress extends the term again). By contrast, in the same period,
more than 1 million patents will pass into the public domain.
</para>
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
<para>
<!-- PAGE BREAK 222 -->
Sonny Bono, who, his widow, Mary Bono, says, believed that
<quote>copyrights should be forever.</quote><footnote><para>
<!-- f2. -->
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
The full text is: <quote>Sonny [Bono] wanted the term of copyright
protection to last forever. I am informed by staff that such a change
would violate the Constitution. I invite all of you to work with me to
</para>
<para>
-Constitutional law is not oblivious to the obvious. Or at least,
-it need not be. So when I was considering Eldred's complaint, this
- reality
-about the never-ending incentives to increase the copyright term
-was central to my thinking. In my view, a pragmatic court committed
-to interpreting and applying the Constitution of our framers would see
-that if Congress has the power to extend existing terms, then there
-would be no effective constitutional requirement that terms be
- <quote>limited.</quote>
-If they could extend it once, they would extend it again and again
-and again.
+<emphasis role='strong'>Constitutional law</emphasis> is not oblivious
+to the obvious. Or at least, it need not be. So when I was considering
+Eldred's complaint, this reality about the never-ending incentives to
+increase the copyright term was central to my thinking. In my view, a
+pragmatic court committed to interpreting and applying the
+Constitution of our framers would see that if Congress has the power
+to extend existing terms, then there would be no effective
+constitutional requirement that terms be <quote>limited.</quote> If
+they could extend it once, they would extend it again and again and
+again.
</para>
<para>
It was also my judgment that <emphasis>this</emphasis> Supreme Court
were going to be petty politicians.
</para>
<para>
-Now let's pause for a moment to make sure we understand what the
-argument in <citetitle>Eldred</citetitle> was not about. By insisting on the
+<emphasis role='strong'>Now let's pause</emphasis> for a moment to
+make sure we understand what the argument in
+<citetitle>Eldred</citetitle> was not about. By insisting on the
Constitution's limits to copyright, obviously Eldred was not endorsing
piracy. Indeed, in an obvious sense, he was fighting a kind of
piracy—piracy of the public domain. When Robert Frost wrote his
bought to extend them again.
</para>
<para>
-It is valuable copyrights that are responsible for terms being
- extended.
-Mickey Mouse and <quote>Rhapsody in Blue.</quote> These works are too
-valuable for copyright owners to ignore. But the real harm to our
- society
-from copyright extensions is not that Mickey Mouse remains
- Disney's.
-Forget Mickey Mouse. Forget Robert Frost. Forget all the works
-from the 1920s and 1930s that have continuing commercial value. The
-real harm of term extension comes not from these famous works. The
-real harm is to the works that are not famous, not commercially
- exploited,
+<emphasis role='strong'>It is valuable</emphasis> copyrights that are
+responsible for terms being extended. Mickey Mouse and
+<quote>Rhapsody in Blue.</quote> These works are too valuable for
+copyright owners to ignore. But the real harm to our society from
+copyright extensions is not that Mickey Mouse remains Disney's.
+Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
+the 1920s and 1930s that have continuing commercial value. The real
+harm of term extension comes not from these famous works. The real
+harm is to the works that are not famous, not commercially exploited,
and no longer available as a result.
</para>
<para>
remaining
9,873. What would you have to do?
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
Well, first, you'd have to determine which of the 9,873 books were
still under copyright. That requires going to a library (these data are
consequence
for other creative works is much more dire.
</para>
-<indexterm id='idxageemichael' class='startofrange'>
- <primary>Agee, Michael</primary>
-</indexterm>
+<indexterm id='idxageemichael' class='startofrange'><primary>Agee, Michael</primary></indexterm>
<indexterm><primary>Hal Roach Studios</primary></indexterm>
<indexterm><primary>Laurel and Hardy Films</primary></indexterm>
<para>
than dust.
</para>
<para>
-Of all the creative work produced by humans anywhere, a tiny
-fraction has continuing commercial value. For that tiny fraction, the
-copyright is a crucially important legal device. For that tiny fraction,
-the copyright creates incentives to produce and distribute the
- creative
-work. For that tiny fraction, the copyright acts as an <quote>engine of
-free expression.</quote>
+<emphasis role='strong'>Of all the</emphasis> creative work produced
+by humans anywhere, a tiny fraction has continuing commercial
+value. For that tiny fraction, the copyright is a crucially important
+legal device. For that tiny fraction, the copyright creates incentives
+to produce and distribute the creative work. For that tiny fraction,
+the copyright acts as an <quote>engine of free expression.</quote>
</para>
<para>
But even for that tiny fraction, the actual time during which the
<para>
But this situation has now changed.
</para>
+<indexterm id='idxarchivesdigital2' class='startofrange'><primary>archives, digital</primary></indexterm>
<para>
One crucially important consequence of the emergence of digital
technologies is to enable the archive that Brewster Kahle dreams of.
particular bit of that culture or not—then we can't count on the
commercial market to do our library work for us.
</para>
+<indexterm startref='idxarchivesdigital2' class='endofrange'/>
<para>
I would be the first to agree that it should do as much as it can: We
should rely upon the market as much as possible to spread and enable
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
-district court in Washington, D.C., asking the court to declare the
-Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
-violated the Constitution's <quote>limited Times</quote> requirement, and (2) that
-extending terms by another twenty years violated the First Amendment.
+<emphasis role='strong'>In January 1999</emphasis>, we filed a lawsuit
+on Eric Eldred's behalf in federal district court in Washington, D.C.,
+asking the court to declare the Sonny Bono Copyright Term Extension
+Act unconstitutional. The two central claims that we made were (1)
+that extending existing terms violated the Constitution's
+<quote>limited Times</quote> requirement, and (2) that extending terms
+by another twenty years violated the First Amendment.
</para>
<para>
The district court dismissed our claims without even hearing an
important cases or cases that raise issues specific to the circuit as a
whole, where the court will sit <quote>en banc</quote> to hear the case.
</para>
+<indexterm><primary>Tatel, David</primary></indexterm>
<para>
The Court of Appeals rejected our request to hear the case en banc.
This time, Judge Sentelle was joined by the most liberal member of the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still
-astonishingly hard. If you know anything at all about this story, you
-know that we lost the appeal. And if you know something more than just
-the minimum, you probably think there was no way this case could have
-been won. After our defeat, I received literally thousands of missives
-by well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
-significant to me than the e-mail from my client, Eric Eldred.
+<emphasis role='strong'>It is over</emphasis> a year later as I write
+these words. It is still astonishingly hard. If you know anything at
+all about this story, you know that we lost the appeal. And if you
+know something more than just the minimum, you probably think there
+was no way this case could have been won. After our defeat, I received
+literally thousands of missives by well-wishers and supporters,
+thanking me for my work on behalf of this noble but doomed cause. And
+none from this pile was more significant to me than the e-mail from my
+client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
</para>
<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the very
-end. Our case had been supported from the very beginning by an
-extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
-moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
-heat
+<emphasis role='strong'>The mistake</emphasis> was made early, though
+it became obvious only at the very end. Our case had been supported
+from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
+and by the law firm he had moved to, Jones, Day, Reavis and
+Pogue. Jones Day took a great deal of heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
ignored this pressure (something that few law firms today would ever
copyrights—extensions that would further concentrate the market;
it would also mean that there was no limit to Congress's power to play
favorites, through copyright, with who has the right to speak.
-Between February and October, there was little I did beyond preparing
-for this case. Early on, as I said, I set the strategy.
+</para>
+<para>
+<emphasis role='strong'>Between February</emphasis> and October, there
+was little I did beyond preparing for this case. Early on, as I said,
+I set the strategy.
</para>
<indexterm><primary>Rehnquist, William H.</primary></indexterm>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
The Supreme Court was divided into two important camps. One camp we
called <quote>the Conservatives.</quote> The other we called <quote>the Rest.</quote> The
assure that Congress's powers had limits.
</para>
<indexterm><primary>Breyer, Stephen</primary></indexterm>
+<indexterm id='idxginsburg' class='startofrange'><primary>Ginsburg, Ruth Bader</primary></indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
Congress's power. These four—Justice Stevens, Justice Souter,
believed, there was a very important free speech argument against
these retrospective extensions.
</para>
+<indexterm startref='idxginsburg' class='endofrange'/>
<para>
The only vote we could be confident about was that of Justice
Stevens. History will record Justice Stevens as one of the greatest
be limited.
</para>
<para>
-The argument on the government's side came down to this: Congress has
-done it before. It should be allowed to do it again. The government
-claimed that from the very beginning, Congress has been extending the
-term of existing copyrights. So, the government argued, the Court
-should not now say that practice is unconstitutional.
+<emphasis role='strong'>The argument</emphasis> on the government's
+side came down to this: Congress has done it before. It should be
+allowed to do it again. The government claimed that from the very
+beginning, Congress has been extending the term of existing
+copyrights. So, the government argued, the Court should not now say
+that practice is unconstitutional.
</para>
<para>
There was some truth to the government's claim, but not much. We
hesitated
to intervene where Congress was in a similar cycle of extension.
There was no reason it couldn't intervene here.
-Oral argument was scheduled for the first week in October. I
- arrived
-in D.C. two weeks before the argument. During those two
-weeks, I was repeatedly <quote>mooted</quote> by lawyers who had volunteered to
+</para>
+<para>
+<emphasis role='strong'>Oral argument</emphasis> was scheduled for the
+first week in October. I arrived in D.C. two weeks before the
+argument. During those two weeks, I was repeatedly
+<quote>mooted</quote> by lawyers who had volunteered to
<!-- PAGE BREAK 244 -->
help in the case. Such <quote>moots</quote> are basically practice rounds, where
I listened to Ayer's plea for passion in pressing politics, I understood
his point, and I rejected it. Our argument was right. That was enough.
Let the politicians learn to see that it was also good.
-The night before the argument, a line of people began to form
-in front of the Supreme Court. The case had become a focus of the
-press and of the movement to free culture. Hundreds stood in line
+</para>
+<para>
+<emphasis role='strong'>The night before</emphasis> the argument, a
+line of people began to form in front of the Supreme Court. The case
+had become a focus of the press and of the movement to free
+culture. Hundreds stood in line
<!-- PAGE BREAK 245 -->
for the chance to see the proceedings. Scores spent the night on the
power. This was a case about enumerated powers, I said, and whether
those enumerated powers had any limit.
</para>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
Justice O'Connor stopped me within one minute of my opening.
The history was bothering her.
into the Copyright Clause.
</para>
</blockquote>
+<indexterm><primary>Olson, Theodore B.</primary></indexterm>
<para>
Things went better for us when the government gave its argument;
for now the Court picked up on the core of our claim. As Justice Scalia
Court to my side.
</para>
<para>
-As I left the court that day, I knew there were a hundred points I
-wished I could remake. There were a hundred questions I wished I had
+<emphasis role='strong'>As I left</emphasis> the court that day, I
+knew there were a hundred points I wished I could remake. There were a
+hundred questions I wished I had
<!-- PAGE BREAK 248 -->
answered differently. But one way of thinking about this case left me
law that it had established elsewhere.
</para>
<para>
-The morning of January 15, 2003, I was five minutes late to the office
-and missed the 7:00 A.M. call from the Supreme Court clerk. Listening to
-the message, I could tell in an instant that she had bad news to report.The
-Supreme Court had affirmed the decision of the Court of Appeals. Seven
-justices had voted in the majority. There were two dissents.
+<emphasis role='strong'>The morning</emphasis> of January 15, 2003, I
+was five minutes late to the office and missed the 7:00 A.M. call from
+the Supreme Court clerk. Listening to the message, I could tell in an
+instant that she had bad news to report.The Supreme Court had affirmed
+the decision of the Court of Appeals. Seven justices had voted in the
+majority. There were two dissents.
</para>
<para>
A few seconds later, the opinions arrived by e-mail. I took the
cited. The argument that was the core argument of our case did not
even appear in the Court's opinion.
</para>
+<indexterm><primary>Ginsburg, Ruth Bader</primary></indexterm>
<para>
<!-- PAGE BREAK 249 -->
Sentelle. It was <citetitle>Hamlet</citetitle> without the Prince.
</para>
<para>
-Defeat brings depression. They say it is a sign of health when
-depression gives way to anger. My anger came quickly, but it didn't cure
-the depression. This anger was of two sorts.
+<emphasis role='strong'>Defeat brings depression</emphasis>. They say
+it is a sign of health when depression gives way to anger. My anger
+came quickly, but it didn't cure the depression. This anger was of two
+sorts.
</para>
+<indexterm><primary>originalism</primary></indexterm>
<para>
It was first anger with the five <quote>Conservatives.</quote> It would have been
one thing for them to have explained why the principle of <citetitle>Lopez</citetitle> didn't
a way that would do some good or they were not ready to hear this case
in a way that would do some good. Either way, the decision to bring
this case—a decision I had made four years before—was wrong.
-While the reaction to the Sonny Bono Act itself was almost
-unanimously negative, the reaction to the Court's decision was mixed.
-No one, at least in the press, tried to say that extending the term of
-copyright was a good idea. We had won that battle over ideas. Where
+</para>
+<para>
+<emphasis role='strong'>While the reaction</emphasis> to the Sonny
+Bono Act itself was almost unanimously negative, the reaction to the
+Court's decision was mixed. No one, at least in the press, tried to
+say that extending the term of copyright was a good idea. We had won
+that battle over ideas. Where
<!-- PAGE BREAK 253 -->
the decision was praised, it was praised by papers that had been
<chapter label="14" id="eldred-ii">
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
-The day <citetitle>Eldred</citetitle> was decided, fate would have it that I was to travel to
-Washington, D.C. (The day the rehearing petition in <citetitle>Eldred</citetitle> was
-denied—meaning the case was really finally over—fate would
-have it that I was giving a speech to technologists at Disney World.)
-This was a particularly long flight to my least favorite city. The
-drive into the city from Dulles was delayed because of traffic, so I
-opened up my computer and wrote an op-ed piece.
+<emphasis role='strong'>The day</emphasis>
+<citetitle>Eldred</citetitle> was decided, fate would have it that I
+was to travel to Washington, D.C. (The day the rehearing petition in
+<citetitle>Eldred</citetitle> was denied—meaning the case was
+really finally over—fate would have it that I was giving a
+speech to technologists at Disney World.) This was a particularly
+long flight to my least favorite city. The drive into the city from
+Dulles was delayed because of traffic, so I opened up my computer and
+wrote an op-ed piece.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
<!-- f1. -->
+<indexterm><primary>German copyright law</primary></indexterm>
Until the 1908 Berlin Act of the Berne Convention, national copyright
legislation sometimes made protection depend upon compliance with
formalities such as registration, deposit, and affixation of notice of
</para>
<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-When Steve Forbes endorsed the idea, some in Washington began to pay
-attention. Many people contacted me pointing to representatives who
-might be willing to introduce the Eldred Act. And I had a few who
-directly suggested that they might be willing to take the first step.
+<emphasis role='strong'>When Steve Forbes</emphasis> endorsed the
+idea, some in Washington began to pay attention. Many people contacted
+me pointing to representatives who might be willing to introduce the
+Eldred Act. And I had a few who directly suggested that they might be
+willing to take the first step.
</para>
<para>
One representative, Zoe Lofgren of California, went so far as to get
about a copyright, they're not likely to.
</para>
<para>
-At the beginning of this book, I told two stories about the law
-reacting to changes in technology. In the one, common sense prevailed.
-In the other, common sense was delayed. The difference between the two
-stories was the power of the opposition—the power of the side
-that fought to defend the status quo. In both cases, a new technology
-threatened old interests. But in only one case did those interest's
-have the power to protect themselves against this new competitive
-threat.
+<emphasis role='strong'>At the beginning</emphasis> of this book, I
+told two stories about the law reacting to changes in technology. In
+the one, common sense prevailed. In the other, common sense was
+delayed. The difference between the two stories was the power of the
+opposition—the power of the side that fought to defend the
+status quo. In both cases, a new technology threatened old
+interests. But in only one case did those interest's have the power to
+protect themselves against this new competitive threat.
</para>
<para>
I used these two cases as a way to frame the war that this book has
don't recognize the reasons for limiting copyright terms; it is thus
still possible to see good faith within the resistance.
</para>
+<indexterm><primary>Kelly, Kevin</primary></indexterm>
<para>
But when the copyright owners oppose a proposal such as the Eldred
Act, then, finally, there is an example that lays bare the naked
content. It would simply liberate what Kevin Kelly calls the <quote>Dark
Content</quote> that fills archives around the world. So when the warriors
oppose a change like this, we should ask one simple question:
-<indexterm><primary>Kelly, Kevin</primary></indexterm>
</para>
<para>
What does this industry really want?
</part>
<chapter label="15" id="c-conclusion">
<title>CONCLUSION</title>
-<indexterm id="idxantiretroviraldrugs" class='startofrange'>
- <primary>antiretroviral drugs</primary>
-</indexterm>
-<indexterm id="idxhivaidstherapies" class='startofrange'>
- <primary>HIV/AIDS therapies</primary>
-</indexterm>
-<indexterm id="idxafricahivmed" class='startofrange'>
- <primary>Africa, medications for HIV patients in</primary>
-</indexterm>
-<para>
-There are more than 35 million people with the AIDS virus
-worldwide. Twenty-five million of them live in sub-Saharan Africa.
-Seventeen million have already died. Seventeen million Africans
-is proportional percentage-wise to seven million Americans. More
-importantly, it is seventeen million Africans.
+<indexterm id="idxantiretroviraldrugs" class='startofrange'><primary>antiretroviral drugs</primary></indexterm>
+<indexterm id="idxhivaidstherapies" class='startofrange'><primary>HIV/AIDS therapies</primary></indexterm>
+<indexterm id="idxafricahivmed" class='startofrange'><primary>Africa, medications for HIV patients in</primary></indexterm>
+<para>
+<emphasis role='strong'>There are more</emphasis> than 35 million
+people with the AIDS virus worldwide. Twenty-five million of them live
+in sub-Saharan Africa. Seventeen million have already died. Seventeen
+million Africans is proportional percentage-wise to seven million
+Americans. More importantly, it is seventeen million Africans.
</para>
<para>
There is no cure for AIDS, but there are drugs to slow its
<indexterm startref="idxhivaidstherapies" class='endofrange'/>
<indexterm startref="idxantiretroviraldrugs" class='endofrange'/>
<para>
-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
+<emphasis role='strong'>A simple idea</emphasis> 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
produce the <quote>perfect storm</quote> for free culture.
</para>
<indexterm><primary>Reagan, Ronald</primary></indexterm>
+<indexterm id='idxbiomedicalresearch' class='startofrange'><primary>biomedical research</primary></indexterm>
+<indexterm><primary>Wellcome Trust</primary></indexterm>
<para>
-In August 2003, a fight broke out in the United States about a
-decision by the World Intellectual Property Organization to cancel a
-meeting.<footnote><para>
+<emphasis role='strong'>In August 2003</emphasis>, a fight broke out
+in the United States about a decision by the World Intellectual
+
Property Organization to cancel a meeting.<footnote><para>
<!-- f6. --> Jonathan Krim, <quote>The Quiet War over Open-Source,</quote> <citetitle>Washington Post</citetitle>,
August 2003, E1, available at
<ulink url="http://free-culture.cc/notes/">link #59</ulink>; William New, <quote>Global Group's
<indexterm><primary>IBM</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
+<indexterm startref='idxbiomedicalresearch' class='endofrange'/>
<para>
The aim of the meeting was to consider this wide range of projects
from one common perspective: that none of these projects relied upon
thus the meeting about <quote>open and collaborative projects to create
public goods</quote> seemed perfectly appropriate within the WIPO agenda.
</para>
+<indexterm><primary>Apple Corporation</primary></indexterm>
<para>
But there is one project within that list that is highly
controversial, at least among lobbyists. That project is <quote>open source
powerful software producer in the United States having succeeded in
its lobbying efforts.
</para>
+<indexterm><primary>Boland, Lois</primary></indexterm>
<para>
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
first-year law student, but an embarrassment from a high government
official dealing with intellectual property issues.
</para>
+<indexterm><primary>generic drugs</primary></indexterm>
<para>
Second, who ever said that WIPO's exclusive aim was to <quote>promote</quote>
intellectual property maximally? As I had been scolded at the
Does the public domain weaken intellectual property? Would it have
been better if the protocols of the Internet had been patented?
</para>
+<indexterm><primary>Gates, Bill</primary></indexterm>
<para>
Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
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 <emphasis>their</emphasis> property.
-<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
+<indexterm id='idxboland' class='startofrange'><primary>Boland, Lois</primary></indexterm>
<para>
When Ms. Boland says that there is something wrong with a meeting
<quote>which has as its purpose to disclaim or waive such rights,</quote> she's
whether Republican or Democrat. My only illusion apparently is about
whether our government should speak the truth or not.)
</para>
+<indexterm startref='idxboland' class='endofrange'/>
<para>
Obviously, however, the poster was not supporting that idea. Instead,
the poster was ridiculing the very idea that in the real world, the
It might be crazy to argue that we should preserve a tradition that has
been part of our tradition for most of our history—free culture.
</para>
-<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<para>
-If this is crazy, then let there be more crazies. Soon. There are
-moments of hope in this struggle. And moments that surprise. When the
-FCC was considering relaxing ownership rules, which would thereby
-further increase the concentration in media ownership, an
-extraordinary bipartisan coalition formed to fight this change. For
-perhaps the first time in history, interests as diverse as the NRA,
-the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
-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>
+If this is crazy, then let there be more crazies. Soon.
+</para>
+<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<indexterm><primary>Safire, William</primary></indexterm>
+<indexterm><primary>Turner, Ted</primary></indexterm>
+<para>
+<emphasis role='strong'>There are moments</emphasis> of hope in this
+struggle. And moments that surprise. When the FCC was considering
+relaxing ownership rules, which would thereby further increase the
+concentration in media ownership, an extraordinary bipartisan
+coalition formed to fight this change. For perhaps the first time in
+history, interests as diverse as the NRA, the ACLU, Moveon.org,
+William Safire, Ted Turner, and CodePink Women 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.
</para>
<para>
This activism did not stop the FCC, but soon after, a broad coalition
</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>
+<emphasis role='strong'>As I write</emphasis> these final words, the
+news is filled with stories about the RIAA lawsuits against almost
+three hundred individuals.<footnote><para>
<!-- f11. -->
John Borland, <quote>RIAA Sues 261 File Swappers,</quote> CNET News.com, September
2003, available at
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>BBC</primary></indexterm>
+<indexterm><primary>Brazil, free culture in</primary></indexterm>
<indexterm><primary>Creative Commons</primary></indexterm>
<indexterm><primary>Gil, Gilberto</primary></indexterm>
+<indexterm><primary>United Kingdom</primary><secondary>public creative archive in</secondary></indexterm>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
that it will build a <quote>Creative Archive,</quote> from which British citizens can
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that something
-must be done to change where we are heading. The balance of this book
-maps what might be done.
+<emphasis role='strong'>At least some</emphasis> who have read this
+far will agree with me that something must be done to change where we
+are heading. The balance of this book maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
<section id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so far
-has been framed at the extremes—as a grand either/or: either
-property or anarchy, either total control or artists won't be paid. If
-that really is the choice, then the warriors should win.
+<emphasis role='strong'>Common sense</emphasis> is with the copyright
+warriors because the debate so far has been framed at the
+extremes—as a grand either/or: either property or anarchy,
+either total control or artists won't be paid. If that really is the
+choice, then the warriors should win.
</para>
<para>
The mistake here is the error of the excluded middle. There are
<section id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
+<indexterm id='browsing' class='startofrange'><primary>browsing</primary></indexterm>
<para>
If you step back from the battle I've been describing here, you will
recognize this problem from other contexts. Think about
electronic spaces, then the friction-induced privacy of yesterday
disappears.
</para>
+<indexterm startref='browsing' class='endofrange'/>
<para>
It is this reality that explains the push of many to define <quote>privacy</quote>
on the Internet. It is the recognition that technology can remove what
it, then the freedom to change and share software would be
fundamentally weakened.
</para>
+<indexterm><primary>Torvalds, Linus</primary></indexterm>
<para>
Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
with the story of this book. This is the shift in the way academic and
scientific journals are produced.
</para>
-<indexterm id="idxacademocjournals" class='startofrange'>
- <primary>academic journals</primary>
-</indexterm>
+<indexterm id="idxacademocjournals" class='startofrange'><primary>academic journals</primary></indexterm>
<para>
As digital technologies develop, it is becoming obvious to many that
printing thousands of copies of journals every month and sending them
</section>
<section id="oneidea">
<title>Rebuilding Free Culture: One Idea</title>
-<indexterm id="idxcc" class='startofrange'>
- <primary>Creative Commons</primary>
-</indexterm>
+<indexterm id="idxcc" class='startofrange'><primary>Creative Commons</primary></indexterm>
<para>
The same strategy could be applied to culture, as a response to the
increasing control effected through law and technology.
</para>
+<indexterm><primary>Stanford University</primary></indexterm>
<para>
Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
</para>
+<indexterm id='idxbooksfreeonline2' class='startofrange'><primary>books</primary><secondary>free on-line releases of</secondary></indexterm>
<para>
Why would creators participate in giving up total control? Some
participate to better spread their content. Cory Doctorow, for
publisher had expected. This first novel of a science fiction author
was a total success.
</para>
+<indexterm><primary>Free for All (Wayner)</primary></indexterm>
+<indexterm><primary>Wayner, Peter</primary></indexterm>
<para>
The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
used book store prices for the book. As predicted, as the number of
downloads increased, the used book price for his book increased, as
well.
-<indexterm><primary>Free for All (Wayner)</primary></indexterm>
-<indexterm><primary>Wayner, Peter</primary></indexterm>
</para>
+<indexterm startref='idxbooksfreeonline2' class='endofrange'/>
<indexterm><primary>Public Enemy</primary></indexterm>
<indexterm><primary>rap music</primary></indexterm>
+<indexterm><primary>Leaphart, Walter</primary></indexterm>
<para>
These are examples of using the Commons to better spread proprietary
content. I believe that is a wonderful and common use of the
</para></footnote>),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
-<indexterm><primary>Leaphart, Walter</primary></indexterm>
</para>
<para>
Finally, there are many who mark their content with a Creative Commons
<section id="themsoon">
<title>THEM, SOON</title>
<para>
-We will not reclaim a free culture by individual action alone. It will
-also take important reforms of laws. We have a long way to go before
-the politicians will listen to these ideas and implement these reforms.
-But that also means that we have time to build awareness around the
-changes that we need.
+<emphasis role='strong'>We will</emphasis> not reclaim a free culture
+by individual action alone. It will also take important reforms of
+laws. We have a long way to go before the politicians will listen to
+these ideas and implement these reforms. But that also means that we
+have time to build awareness around the changes that we need.
</para>
<para>
In this chapter, I outline five kinds of changes: four that are general,
Copyright Office's role to that of approving standards for marking
content that have been crafted elsewhere.
</para>
+<indexterm><primary>CDs</primary><secondary>copyright marking of</secondary></indexterm>
<para>
For example, if a recording industry association devises a method for
marking CDs, it would propose that to the Copyright Office. The
<section id="freefairuse">
<title>3. Free Use Vs. Fair Use</title>
<indexterm><primary>land ownership, air traffic and</primary></indexterm>
-<indexterm>
- <primary>property rights</primary>
- <secondary>air traffic vs.</secondary>
-</indexterm>
+<indexterm><primary>property rights</primary><secondary>air traffic vs.</secondary></indexterm>
<para>
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
owner plainly endorses.
</para></listitem>
</orderedlist>
+<indexterm><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm>
+<indexterm><primary>VCRs</primary></indexterm>
<para>
Any reform of the law needs to keep these different uses in focus. It
must avoid burdening type D even if it aims to eliminate type A. The
Internet. Imagine the Internet as ubiquitous as the best cell-phone
service, where with the flip of a device, you are connected.
</para>
+<indexterm><primary>cell phones, music streamed over</primary></indexterm>
<para>
In that world, it will be extremely easy to connect to services that
give you access to content on the fly—such as Internet radio,
law should be to facilitate the access to this content, ideally in a
way that returns something to the artist.
</para>
+<indexterm><primary>books</primary><secondary>out of print</secondary></indexterm>
+<indexterm><primary>books</primary><secondary>resales of</secondary></indexterm>
<para>
Again, the model here is the used book store. Once a book goes out of
print, it may still be available in libraries and used book
floated by Harvard law professor William Fisher.<footnote>
<para>
<!-- f9. -->
+<indexterm id='idxartistspayments3' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
William Fisher, <citetitle>Digital Music: Problems and Possibilities</citetitle> (last
revised: 10 October 2000), available at
<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William
<indexterm><primary>Fisher, William</primary></indexterm>
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
+<indexterm startref='idxartistspayments3' class='endofrange'/>
</para></footnote>
Fisher suggests a very clever way around the current impasse of the
Internet. Under his plan, all content capable of digital transmission
compensated. The compensation would be paid for by (4) an appropriate
tax.
</para>
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
<para>
Fisher's proposal is careful and comprehensive. It raises a million
questions, most of which he answers well in his upcoming book,
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.
-<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para>
+<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<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
semiotic democracy if there were few limitations on what one was
allowed to do with the content itself.
</para>
+<indexterm><primary>Apple Corporation</primary></indexterm>
+<indexterm><primary>MusicStore</primary></indexterm>
<indexterm><primary>Real Networks</primary></indexterm>
+<indexterm><primary>CDs</primary><secondary>prices of</secondary></indexterm>
<para>
No doubt it would be difficult to calculate the proper measure of
<quote>harm</quote> to an industry. But the difficulty of making that calculation
there will be a great deal of competition to offer and sell music
on-line.
</para>
+<indexterm><primary>cable television</primary></indexterm>
+<indexterm><primary>television</primary><secondary>cable vs. broadcast</secondary></indexterm>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
+<indexterm><primary>piracy</primary><secondary>in Asia</secondary></indexterm>
+<indexterm><primary>film industry</primary><secondary>luxury theatres vs. video piracy in</secondary></indexterm>
<para>
This competition has already occurred against the background of <quote>free</quote>
music from p2p systems. As the sellers of cable television have known
the unwillingness of the profession to question or counter that one
strong view queers the law.
</para>
+<indexterm><primary>Nimmer, Melville</primary></indexterm>
+<indexterm><primary>Sonny Bono Copyright Term Extension Act (CTEA) (1998)</primary><secondary>Supreme Court challenge of</secondary></indexterm>
<para>
The evidence of this bending is compelling. I'm attacked as a
<quote>radical</quote> by many within the profession, yet the positions that I am
what the law will too often do if too much of our culture is left to
its review.
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
<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
disappeared, you will be redirected to an appropriate reference for
the material.
</para>
+
+<!-- insert endnotes here -->
+
<!--PAGE BREAK 336-->
</chapter>
projects / text-free-culture-lessig.git / blobdiff