<abbrev>"freeculture"</abbrev>
- <subtitle>Version 2004-02-10</subtitle>
+ <subtitle>HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
+ CULTURE AND CONTROL CREATIVITY</subtitle>
+
+ <pubdate>2004-03-25</pubdate>
+
+ <releaseinfo>Version 2004-02-10</releaseinfo>
<authorgroup>
<author>
<copyright>
<year>2004</year>
-<holder>
- Lawrence Lessig.
-This version of Free Culture is licensed
-under a Creative Commons license. This license permits
-non-commercial use of this work,
-so long as attribution is given.
-For more information about the license,
-click the icon above, or visit
+ <holder>
+Lawrence Lessig. This version of Free Culture is licensed under a
+Creative Commons license. This license permits non-commercial use of
+this work, so long as attribution is given. For more information
+about the license, click the icon above, or visit
<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
-</holder>
+ </holder>
</copyright>
<abstract>
-<title>ABOUT THE AUTHOR</title>
+ <title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
</abstract>
</bookinfo>
-<chapter id="c-info">
-<title>Info</title>
+<colophon>
<!-- PAGE BREAK 1 -->
<para>
ALSO BY LAWRENCE LESSIG
</para>
<para>
-The Future of Ideas: The Fate of the Commons
-in a Connected World
+The Future of Ideas: The Fate of the Commons in a Connected World
</para>
<para>
Code: And Other Laws of Cyberspace
participate in or encourage electronic piracy of copyrighted
materials. Your support of the author's rights is appreciated.
</para>
-<!-- PAGE BREAK 7 -->
+</colophon>
+<!-- PAGE BREAK 7 -->
+<dedication>
<para>
To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
</para>
+<para>
<figure id="CreativeCommons">
<title>Creative Commons, Some rights reserved</title>
<graphic fileref="images/cc.png"></graphic>
</figure>
+</para>
+</dedication>
<toc id="toc"></toc>
<!-- PAGE BREAK 11 -->
-</chapter>
-<chapter id="c-preface">
+<preface id="preface">
<title>PREFACE</title>
+<indexterm id="idxpoguedavid" class='startofrange'>
+ <primary>Pogue, David</primary>
+</indexterm>
<para>
At the end of his review of my first book, Code: And Other Laws of
Cyberspace, David Pogue, a brilliant writer and author of countless
on-line have fundamentally affected "people who aren't online." There
is no switch that will insulate us from the Internet's effect.
</para>
+<indexterm startref="idxpoguedavid" class='endofrange'/>
<para>
But unlike Code, the argument here is not much about the Internet
itself. It is instead about the consequence of the Internet to a part of
Olympia Snowe and conservative Ted Stevens," he formulated perhaps
most simply just what was at stake: the concentration of power. And as
he asked,
+<indexterm><primary>Safire, William</primary></indexterm>
</para>
<blockquote>
<para>
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy.<footnote><para> William Safire,
"The Great Media Gulp," New York Times, 22 May 2003.
+<indexterm><primary>Safire, William</primary></indexterm>
</para></footnote>
</para>
</blockquote>
book is written.
</para>
-</chapter>
+</preface>
<!-- PAGE BREAK 15 -->
<!-- PAGE BREAK 16 -->
Armstrong invented profoundly important technologies that advanced our
understanding of radio.
<!-- PAGE BREAK 19 -->
+<indexterm><primary>Bell, Alexander Graham</primary></indexterm>
+<indexterm><primary>Edison, Thomas</primary></indexterm>
<indexterm><primary>Faraday, Michael</primary></indexterm>
</para>
<para>
Sarnoff was quite excited when Armstrong told him he had a device
that removed static from "radio." But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
+<indexterm><primary>Sarnoff, David</primary></indexterm>
</para>
<blockquote>
<para>
launched a campaign to smother FM radio. While FM may have been a
superior technology, Sarnoff was a superior tactician. As one author
described,
+<indexterm><primary>Sarnoff, David</primary></indexterm>
</para>
<blockquote>
<para>
on its side.
</para>
<para>
-My hope is to push this common sense along. I have become
- increasingly
-amazed by the power of this idea of intellectual property
-and, more importantly, its power to disable critical thought by policy
-makers and citizens. There has never been a time in our history when
-more of our "culture" was as "owned" as it is now. And yet there has
-never been a time when the concentration of power to control the uses
-of culture has been as unquestioningly accepted as it is now.
+My hope is to push this common sense along. I have become increasingly
+amazed by the power of this idea of intellectual property and, more
+importantly, its power to disable critical thought by policy makers
+and citizens. There has never been a time in our history when more of
+our "culture" was as "owned" as it is now. And yet there has never
+been a time when the concentration of power to control the uses of
+culture has been as unquestioningly accepted as it is now.
</para>
<para>
-The puzzle is, Why?
-Is it because we have come to understand a truth about the value
-and importance of absolute property over ideas and culture? Is it
- because
-we have discovered that our tradition of rejecting such an
- absolute
-claim was wrong?
+The puzzle is, Why? Is it because we have come to understand a truth
+about the value and importance of absolute property over ideas and
+culture? Is it because we have discovered that our tradition of
+rejecting such an absolute claim was wrong?
</para>
<para>
Or is it because the idea of absolute property over ideas and culture
of a political system captured by a few powerful special interests?
</para>
<para>
-Does common sense lead to the extremes on this question because
-common sense actually believes in these extremes? Or does common
-sense stand silent in the face of these extremes because, as with
- Armstrong
-versus RCA, the more powerful side has ensured that it has the
-more powerful view?
+Does common sense lead to the extremes on this question because common
+sense actually believes in these extremes? Or does common sense stand
+silent in the face of these extremes because, as with Armstrong versus
+RCA, the more powerful side has ensured that it has the more powerful
+view?
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
</para>
<para>
My method is not the usual method of an academic. I don't want to
-plunge you into a complex argument, buttressed with references to
- obscure
-French theorists—however natural that is for the weird sort we
-academics have become. Instead I begin in each part with a collection
-of stories that set a context within which these apparently simple ideas
-can be more fully understood.
+plunge you into a complex argument, buttressed with references to
+obscure French theorists—however natural that is for the weird
+sort we academics have become. Instead I begin in each part with a
+collection of stories that set a context within which these apparently
+simple ideas can be more fully understood.
</para>
<para>
The two sections set up the core claim of this book: that while the
-Internet has indeed produced something fantastic and new, our
- government,
-pushed by big media to respond to this "something new," is
+Internet has indeed produced something fantastic and new, our
+government, pushed by big media to respond to this "something new," is
destroying something very old. Rather than understanding the changes
the Internet might permit, and rather than taking time to let "common
-sense" resolve how best to respond, we are allowing those most
- threatened
-by the changes to use their power to change the law—and more
-importantly, to use their power to change something fundamental about
-who we have always been.
+sense" resolve how best to respond, we are allowing those most
+threatened by the changes to use their power to change the
+law—and more importantly, to use their power to change something
+fundamental about who we have always been.
</para>
<para>
We allow this, I believe, not because it is right, and not because
<title>"PIRACY"</title>
<!-- PAGE BREAK 30 -->
+<indexterm id="idxmansfield1" class='startofrange'>
+ <primary>Mansfield, William Murray, Lord</primary>
+</indexterm>
<para>
-Since the inception of the law regulating creative property, there
-has been a war against "piracy." The precise contours of this concept,
-"piracy," are hard to sketch, but the animating injustice is easy to
- capture.
-As Lord Mansfield wrote in a case that extended the reach of
+Since the inception of the law regulating creative property, there has
+been a war against "piracy." The precise contours of this concept,
+"piracy," are hard to sketch, but the animating injustice is easy to
+capture. As Lord Mansfield wrote in a case that extended the reach of
English copyright law to include sheet music,
</para>
<blockquote>
Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
</para></footnote>
</para>
+<indexterm startref="idxmansfield1" class='endofrange'/>
</blockquote>
<para>
Today we are in the middle of another "war" against "piracy." The
-Internet has provoked this war. The Internet makes possible the
- efficient
-spread of content. Peer-to-peer (p2p) file sharing is among the
-most efficient of the efficient technologies the Internet enables. Using
-distributed intelligence, p2p systems facilitate the easy spread of
- content
-in a way unimagined a generation ago.
+Internet has provoked this war. The Internet makes possible the
+efficient spread of content. Peer-to-peer (p2p) file sharing is among
+the most efficient of the efficient technologies the Internet
+enables. Using distributed intelligence, p2p systems facilitate the
+easy spread of content in a way unimagined a generation ago.
<!-- PAGE BREAK 31 -->
</para>
<para>
This efficiency does not respect the traditional lines of copyright.
The network doesn't discriminate between the sharing of copyrighted
-and uncopyrighted content. Thus has there been a vast amount of
- sharing
-of copyrighted content. That sharing in turn has excited the war, as
-copyright owners fear the sharing will "rob the author of the profit."
+and uncopyrighted content. Thus has there been a vast amount of
+sharing of copyrighted content. That sharing in turn has excited the
+war, as copyright owners fear the sharing will "rob the author of the
+profit."
</para>
<para>
-The warriors have turned to the courts, to the legislatures, and
- increasingly
-to technology to defend their "property" against this "piracy."
-A generation of Americans, the warriors warn, is being raised to
- believe
-that "property" should be "free." Forget tattoos, never mind body
-piercing—our kids are becoming thieves!
+The warriors have turned to the courts, to the legislatures, and
+increasingly to technology to defend their "property" against this
+"piracy." A generation of Americans, the warriors warn, is being
+raised to believe that "property" should be "free." Forget tattoos,
+never mind body piercing—our kids are becoming thieves!
</para>
<para>
There's no doubt that "piracy" is wrong, and that pirates should be
<ulink url="http://free-culture.cc/notes/">link #3</ulink>; Jonathan
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins," Boston Globe, 24 November 2002.
+<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
There was "value" (the songs) so there must have been a
"right"—even against the Girl Scouts.
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
<!-- PAGE BREAK 32 -->
-of law protecting creative property. But the "if value, then right" theory
-of creative property has never been America's theory of creative
- property.
-It has never taken hold within our law.
+of law protecting creative property. But the "if value, then right"
+theory of creative property has never been America's theory of
+creative property. It has never taken hold within our law.
</para>
<para>
Instead, in our tradition, intellectual property is an instrument. It
synchronization was pretty close.
</para>
<para>
-The effect on our little audience was nothing less than
- electric.
-They responded almost instinctively to this union of sound
-and motion. I thought they were kidding me. So they put me in
-the audience and ran the action again. It was terrible, but it was
-wonderful! And it was something new!<footnote><para>
+The effect on our little audience was nothing less than electric.
+They responded almost instinctively to this union of sound and
+motion. I thought they were kidding me. So they put me in the audience
+and ran the action again. It was terrible, but it was wonderful! And
+it was something new!<footnote><para>
<!-- f1 -->
-Leonard Maltin, Of Mice and Magic: A History of American Animated
- Cartoons
-(New York: Penguin Books, 1987), 34–35.
+Leonard Maltin, Of Mice and Magic: A History of American Animated
+Cartoons (New York: Penguin Books, 1987), 34–35.
</para></footnote>
</para>
</blockquote>
believe in the value of that weird form of property that lawyers call
"intellectual property."<footnote><para>
<!-- f7 -->
-The term intellectual property is of relatively recent origin. See Siva
- Vaidhyanathan,
-Copyrights and Copywrongs, 11 (New York: New York
- University
-Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York:
-Random House, 2001), 293 n. 26. The term accurately describes a set of
-"property" rights—copyright, patents, trademark, and trade-secret—but the
-nature of those rights is very different.
-</para></footnote>
-A large, diverse society cannot survive without
- property;
-a large, diverse, and modern society cannot flourish without
-intellectual property.
+The term intellectual property is of relatively recent origin. See
+Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York
+University Press, 2001). See also Lawrence Lessig, The Future of Ideas
+(New York: Random House, 2001), 293 n. 26. The term accurately
+describes a set of "property" rights—copyright, patents,
+trademark, and trade-secret—but the nature of those rights is
+very different.
+</para></footnote>
+A large, diverse society cannot survive without property; a large,
+diverse, and modern society cannot flourish without intellectual
+property.
</para>
<para>
But it takes just a second's reflection to realize that there is
glass, and thus it was still not a process within reach of most
amateurs.
</para>
+<indexterm id="idxeastmangeorge" class='startofrange'>
+ <primary>Eastman, George</primary>
+</indexterm>
<para>
The technological change that made mass photography possible
didn't happen until 1888, and was the creation of a single man. George
doing something with media. By doing, they think. By tinkering, they
learn.
</para>
+<indexterm startref="idxeastmangeorge" class='endofrange'/>
<para>
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
real-time digital video editing system cost $25,000. Today you can get
professional quality for $595."<footnote><para>
<!-- f9 -->
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
- Software
-You Need to Create Digital Multimedia Presentations," cadalyst,
-February 2002, available at
+H. Edward Goldberg, "Essential Presentation Tools: Hardware and
+Software You Need to Create Digital Multimedia Presentations,"
+cadalyst, February 2002, available at
<ulink url="http://free-culture.cc/notes/">link #7</ulink>.
</para></footnote>
-These buses are filled with technology that
-would have cost hundreds of thousands just ten years ago. And it is
-now feasible to imagine not just buses like this, but classrooms across
-the country where kids are learning more and more of something
-teachers call "media literacy."
+These buses are filled with technology that would have cost hundreds
+of thousands just ten years ago. And it is now feasible to imagine not
+just buses like this, but classrooms across the country where kids are
+learning more and more of something teachers call "media literacy."
</para>
<para>
<!-- PAGE BREAK 49 -->
deconstruct media images. Its aim is to make [kids] literate about the
way media works, the way it's constructed, the way it's delivered, and
the way people access it."
+<indexterm><primary>Yanofsky, Dave</primary></indexterm>
</para>
<para>
This may seem like an odd way to think about "literacy." For most
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
Study," Denver Post, 25 May 1997, B6.
</para></footnote>
-it is increasingly important to understand the
-"grammar" of media. For just as there is a grammar for the written
-word, so, too, is there one for media. And just as kids learn how to write
-by writing lots of terrible prose, kids learn how to write media by
- constructing
-lots of (at least at first) terrible media.
+it is increasingly important to understand the "grammar" of media. For
+just as there is a grammar for the written word, so, too, is there one
+for media. And just as kids learn how to write by writing lots of
+terrible prose, kids learn how to write media by constructing lots of
+(at least at first) terrible media.
</para>
<para>
A growing field of academics and activists sees this form of literacy
-as crucial to the next generation of culture. For though anyone who has
-written understands how difficult writing is—how difficult it is to
- sequence
-the story, to keep a reader's attention, to craft language to be
-understandable—few of us have any real sense of how difficult media
-is. Or more fundamentally, few of us have a sense of how media works,
-how it holds an audience or leads it through a story, how it triggers
-emotion or builds suspense.
+as crucial to the next generation of culture. For though anyone who
+has written understands how difficult writing is—how difficult
+it is to sequence the story, to keep a reader's attention, to craft
+language to be understandable—few of us have any real sense of
+how difficult media is. Or more fundamentally, few of us have a sense
+of how media works, how it holds an audience or leads it through a
+story, how it triggers emotion or builds suspense.
</para>
<para>
It took filmmaking a generation before it could do these things well.
twentieth century.
</para>
<para>
-The twenty-first century could be different. This is the crucial point:
-It could be both read and write. Or at least reading and better
- understanding
-the craft of writing. Or best, reading and understanding the
-tools that enable the writing to lead or mislead. The aim of any literacy,
+The twenty-first century could be different. This is the crucial
+point: It could be both read and write. Or at least reading and better
+understanding the craft of writing. Or best, reading and understanding
+the tools that enable the writing to lead or mislead. The aim of any
+literacy,
<!-- PAGE BREAK 51 -->
-and this literacy in particular, is to "empower people to choose the
- appropriate
-language for what they need to create or express."<footnote>
+and this literacy in particular, is to "empower people to choose the
+appropriate language for what they need to create or
+express."<footnote>
<para>
<!-- f13 -->
Interview with Daley and Barish.
<indexterm><primary>Barish, Stephanie</primary></indexterm>
-</para></footnote> It is to enable
-
students "to communicate in the language of the twenty-first century."<footnote><para>
+</para></footnote> It is to enable students "to communicate in the
+language of the twenty-first century."<footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<!-- PAGE BREAK 52 -->
"But isn't education about teaching kids to write?" I asked. In part,
-of course, it is. But why are we teaching kids to write? Education,
- Daley
-explained, is about giving students a way of "constructing
- meaning."
-To say that that means just writing is like saying teaching writing
-is only about teaching kids how to spell. Text is one part—and
- increasingly,
-not the most powerful part—of constructing meaning. As Daley
-explained in the most moving part of our interview,
+of course, it is. But why are we teaching kids to write? Education,
+Daley explained, is about giving students a way of "constructing
+meaning." To say that that means just writing is like saying teaching
+writing is only about teaching kids how to spell. Text is one
+part—and increasingly, not the most powerful part—of
+constructing meaning. As Daley explained in the most moving part of
+our interview,
</para>
<blockquote>
<para>
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.<footnote><para>
<!-- f16 -->
-Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
- Political
-Philosophy 10 (2) (2002): 129.
-</para></footnote>
-And in some towns in
-New England, something close to deliberation remains. But for most
-of us for most of the time, there is no time or place for "democratic
- deliberation"
-to occur.
-</para>
-<para>
-More bizarrely, there is generally not even permission for it to
- occur.
-We, the most powerful democracy in the world, have developed a
-strong norm against talking about politics. It's fine to talk about
- politics
-with people you agree with. But it is rude to argue about politics
-with people you disagree with. Political discourse becomes isolated,
-and isolated discourse becomes more extreme.<footnote><para>
+Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
+Political Philosophy 10 (2) (2002): 129.
+</para></footnote>
+And in some towns in New England, something close to deliberation
+remains. But for most of us for most of the time, there is no time or
+place for "democratic deliberation" to occur.
+</para>
+<para>
+More bizarrely, there is generally not even permission for it to
+occur. We, the most powerful democracy in the world, have developed a
+strong norm against talking about politics. It's fine to talk about
+politics with people you agree with. But it is rude to argue about
+politics with people you disagree with. Political discourse becomes
+isolated, and isolated discourse becomes more extreme.<footnote><para>
<!-- f17 -->
Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
65–80, 175, 182, 183, 192.
-</para></footnote> We say what our
-friends want to hear, and hear very little beyond what our friends say.
+</para></footnote> We say what our friends want to hear, and hear very
+little beyond what our friends say.
</para>
<para>
Enter the blog. The blog's very architecture solves one part of this
-problem. People post when they want to post, and people read when
-they want to read. The most difficult time is synchronous time.
- Technologies
-that enable asynchronous communication, such as e-mail,
+problem. People post when they want to post, and people read when they
+want to read. The most difficult time is synchronous time.
+Technologies that enable asynchronous communication, such as e-mail,
increase the opportunity for communication. Blogs allow for public
<!-- PAGE BREAK 56 -->
</para>
<para>
The significance of these blogs is tiny now, though not so tiny. The
-name Howard Dean may well have faded from the 2004 presidential
-race but for blogs. Yet even if the number of readers is small, the
- reading
+name Howard Dean may well have faded from the 2004 presidential race
+but for blogs. Yet even if the number of readers is small, the reading
is having an effect.
</para>
<para>
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
-"misspoke" at a party for Senator Strom Thurmond, essentially
- praising
+"misspoke" at a party for Senator Strom Thurmond, essentially praising
Thurmond's segregationist policies, he calculated correctly that this
story would disappear from the mainstream press within forty-eight
-hours. It did. But he didn't calculate its life cycle in blog space. The
-bloggers kept researching the story. Over time, more and more
- instances
-of the same "misspeaking" emerged. Finally, the story broke
-back into the mainstream press. In the end, Lott was forced to resign
-as senate majority leader.<footnote><para>
+hours. It did. But he didn't calculate its life cycle in blog
+space. The bloggers kept researching the story. Over time, more and
+more instances of the same "misspeaking" emerged. Finally, the story
+broke back into the mainstream press. In the end, Lott was forced to
+resign as senate majority leader.<footnote><para>
<!-- f18 -->
Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
York Times, 16 January 2003, G5.
be the last thing that gets shut down."
</para>
<para>
-This speech affects democracy. Winer thinks that happens because
-"you don't have to work for somebody who controls, [for] a
- gatekeeper."
-That is true. But it affects democracy in another way as well.
-As more and more citizens express what they think, and defend it in
-writing, that will change the way people understand public issues. It is
-easy to be wrong and misguided in your head. It is harder when the
-product of your mind can be criticized by others. Of course, it is a rare
-human who admits that he has been persuaded that he is wrong. But it
-is even rarer for a human to ignore when he has been proven wrong.
+This speech affects democracy. Winer thinks that happens because "you
+don't have to work for somebody who controls, [for] a gatekeeper."
+That is true. But it affects democracy in another way as well. As
+more and more citizens express what they think, and defend it in
+writing, that will change the way people understand public issues. It
+is easy to be wrong and misguided in your head. It is harder when the
+product of your mind can be criticized by others. Of course, it is a
+rare human who admits that he has been persuaded that he is wrong. But
+it is even rarer for a human to ignore when he has been proven wrong.
The writing of ideas, arguments, and criticism improves democracy.
Today there are probably a couple of million blogs where such writing
-happens. When there are ten million, there will be something
- extraordinary
-to report.
+happens. When there are ten million, there will be something
+extraordinary to report.
</para>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
creation of knowledge ecologies for creating . . . innovation."
</para>
<para>
-Brown thus looks at these technologies of digital creativity a bit
- differently
-from the perspectives I've sketched so far. I'm sure he would be
-excited about any technology that might improve democracy. But his
-real excitement comes from how these technologies affect learning.
+Brown thus looks at these technologies of digital creativity a bit
+differently from the perspectives I've sketched so far. I'm sure he
+would be excited about any technology that might improve
+democracy. But his real excitement comes from how these technologies
+affect learning.
</para>
<para>
-As Brown believes, we learn by tinkering. When "a lot of us grew
-up," he explains, that tinkering was done "on motorcycle engines,
- lawnmower
-engines, automobiles, radios, and so on." But digital
- technologies
+As Brown believes, we learn by tinkering. When "a lot of us grew up,"
+he explains, that tinkering was done "on motorcycle engines, lawnmower
+engines, automobiles, radios, and so on." But digital technologies
enable a different kind of tinkering—with abstract ideas though
-in concrete form. The kids at Just Think! not only think about how
-a commercial portrays a politician; using digital technology, they can
+in concrete form. The kids at Just Think! not only think about how a
+commercial portrays a politician; using digital technology, they can
<!-- PAGE BREAK 59 -->
take the commercial apart and manipulate it, tinker with it to see how
-it does what it does. Digital technologies launch a kind of bricolage, or
-"free collage," as Brown calls it. Many get to add to or transform the
-tinkering of many others.
+it does what it does. Digital technologies launch a kind of bricolage,
+or "free collage," as Brown calls it. Many get to add to or transform
+the tinkering of many others.
</para>
<para>
The best large-scale example of this kind of tinkering so far is free
software or open-source software (FS/OSS). FS/OSS is software whose
-source code is shared. Anyone can download the technology that makes
-a FS/OSS program run. And anyone eager to learn how a particular bit
-of FS/OSS technology works can tinker with the code.
+source code is shared. Anyone can download the technology that makes a
+FS/OSS program run. And anyone eager to learn how a particular bit of
+FS/OSS technology works can tinker with the code.
</para>
<para>
-This opportunity creates a "completely new kind of learning
- platform,"
+This opportunity creates a "completely new kind of learning platform,"
as Brown describes. "As soon as you start doing that, you . . .
-unleash a free collage on the community, so that other people can start
-looking at your code, tinkering with it, trying it out, seeing if they can
-improve it." Each effort is a kind of apprenticeship. "Open source
- becomes
-a major apprenticeship platform."
+unleash a free collage on the community, so that other people can
+start looking at your code, tinkering with it, trying it out, seeing
+if they can improve it." Each effort is a kind of
+apprenticeship. "Open source becomes a major apprenticeship platform."
</para>
<para>
In this process, "the concrete things you tinker with are abstract.
-They are code." Kids are "shifting to the ability to tinker in the
- abstract,
-and this tinkering is no longer an isolated activity that you're
- doing
-in your garage. You are tinkering with a community platform. . . .
-You are tinkering with other people's stuff. The more you tinker the
-more you improve." The more you improve, the more you learn.
-</para>
-<para>
-This same thing happens with content, too. And it happens in the
-same collaborative way when that content is part of the Web. As
-Brown puts it, "the Web [is] the first medium that truly honors
- multiple
-forms of intelligence." Earlier technologies, such as the typewriter
-or word processors, helped amplify text. But the Web amplifies much
-more than text. "The Web . . . says if you are musical, if you are
- artistic,
-if you are visual, if you are interested in film . . . [then] there is a lot
-you can start to do on this medium. [It] can now amplify and honor
+They are code." Kids are "shifting to the ability to tinker in the
+abstract, and this tinkering is no longer an isolated activity that
+you're doing in your garage. You are tinkering with a community
+platform. . . . You are tinkering with other people's stuff. The more
+you tinker the more you improve." The more you improve, the more you
+learn.
+</para>
+<para>
+This same thing happens with content, too. And it happens in the same
+collaborative way when that content is part of the Web. As Brown puts
+it, "the Web [is] the first medium that truly honors multiple forms of
+intelligence." Earlier technologies, such as the typewriter or word
+processors, helped amplify text. But the Web amplifies much more than
+text. "The Web . . . says if you are musical, if you are artistic, if
+you are visual, if you are interested in film . . . [then] there is a
+lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
</para>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
-Brown is talking about what Elizabeth Daley, Stephanie Barish,
-and Just Think! teach: that this tinkering with culture teaches as well
+Brown is talking about what Elizabeth Daley, Stephanie Barish, and
+Just Think! teach: that this tinkering with culture teaches as well
<!-- PAGE BREAK 60 -->
-as creates. It develops talents differently, and it builds a different kind
-of recognition.
+as creates. It develops talents differently, and it builds a different
+kind of recognition.
</para>
<para>
Yet the freedom to tinker with these objects is not guaranteed.
be on users' computers.
</para>
<para>
-Thus the index his search engine produced included pictures,
-which students could use to put on their own Web sites; copies of notes
-or research; copies of information pamphlets; movie clips that
- students
+Thus the index his search engine produced included pictures, which
+students could use to put on their own Web sites; copies of notes or
+research; copies of information pamphlets; movie clips that students
might have created; university brochures—basically anything that
<!-- PAGE BREAK 63 -->
users of the RPI network made available in a public folder of their
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore "willfully" violated copyright laws. They
<!-- PAGE BREAK 64 -->
- demanded
-that he pay them the damages for his wrong. For cases of
+demanded that he pay them the damages for his wrong. For cases of
"willful infringement," the Copyright Act specifies something lawyers
call "statutory damages." These damages permit a copyright owner to
claim $150,000 per infringement. As the RIAA alleged more than one
-hundred specific copyright infringements, they therefore demanded
-that Jesse pay them at least $15,000,000.
+hundred specific copyright infringements, they therefore demanded that
+Jesse pay them at least $15,000,000.
</para>
<para>
Similar lawsuits were brought against three other students: one
of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
+
To Amend and Consolidate the Acts Respecting Copyright, 283–84
-(statement of Albert Walker, representative of the Auto-Music
- Perforating
-Company of New York).
-</para></footnote> In any case, the innovators
-argued, the job of Congress was "to consider first the interest of [the
-public], whom they represent, and whose servants they are." "All talk
-about `theft,'" the general counsel of the American Graphophone
-Company wrote, "is the merest claptrap, for there exists no property in
-
ideas musical, literary or artistic, except as defined by statute."<footnote><para>
+(statement of Albert Walker, representative of the Auto-Music
+Perforating Company of New York).
+</para></footnote> In any case, the innovators argued, the job of
+Congress was "to consider first the interest of [the public], whom
+they represent, and whose servants they are." "All talk about
+`theft,'" the general counsel of the American Graphophone Company
+wrote, "is the merest claptrap, for there exists no property in ideas
+musical, literary or artistic, except as defined by
+statute."<footnote><para>
<!-- f9 -->
-To Amend and Consolidate the Acts Respecting Copyright, 376
- (prepared
-memorandum of Philip Mauro, general patent counsel of the
- American
+To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
+memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
</para>
<para>
-The law soon resolved this battle in favor of the composer and
-the recording artist. Congress amended the law to make sure that
-composers would be paid for the "mechanical reproductions" of their
-music. But rather than simply granting the composer complete
- control
-over the right to make mechanical reproductions, Congress gave
-recording artists a right to record the music, at a price set by Congress,
-once the composer allowed it to be recorded once. This is the part of
+The law soon resolved this battle in favor of the composer and the
+recording artist. Congress amended the law to make sure that composers
+would be paid for the "mechanical reproductions" of their music. But
+rather than simply granting the composer complete control over the
+right to make mechanical reproductions, Congress gave recording
+artists a right to record the music, at a price set by Congress, once
+the composer allowed it to be recorded once. This is the part of
<!-- PAGE BREAK 70 -->
-copyright law that makes cover songs possible. Once a composer
- authorizes
-a recording of his song, others are free to record the same
+copyright law that makes cover songs possible. Once a composer
+authorizes a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
</para>
<para>
American law ordinarily calls this a "compulsory license," but I will
-refer to it as a "statutory license." A statutory license is a license whose
-key terms are set by law. After Congress's amendment of the Copyright
-Act in 1909, record companies were free to distribute copies of
- recordings
-so long as they paid the composer (or copyright holder) the fee set
-by the statute.
+refer to it as a "statutory license." A statutory license is a license
+whose key terms are set by law. After Congress's amendment of the
+Copyright Act in 1909, record companies were free to distribute copies
+of recordings so long as they paid the composer (or copyright holder)
+the fee set by the statute.
</para>
<para>
This is an exception within the law of copyright. When John Grisham
the record producers argued vigorously that the compulsory
<!-- PAGE BREAK 71 -->
license system must be retained. They asserted that the record
- industry
-is a half-billion-dollar business of great economic
- importance
-in the United States and throughout the world; records
-today are the principal means of disseminating music, and this
-creates special problems, since performers need unhampered
- access
-to musical material on nondiscriminatory terms. Historically,
-the record producers pointed out, there were no recording rights
-before 1909 and the 1909 statute adopted the compulsory license
-as a deliberate anti-monopoly condition on the grant of these
-rights. They argue that the result has been an outpouring of
-recorded music, with the public being given lower prices,
- improved
-quality, and a greater choice.<footnote><para>
+industry is a half-billion-dollar business of great economic
+importance in the United States and throughout the world; records
+today are the principal means of disseminating music, and this creates
+special problems, since performers need unhampered access to musical
+material on nondiscriminatory terms. Historically, the record
+producers pointed out, there were no recording rights before 1909 and
+the 1909 statute adopted the compulsory license as a deliberate
+anti-monopoly condition on the grant of these rights. They argue that
+the result has been an outpouring of recorded music, with the public
+being given lower prices, improved quality, and a greater
+choice.<footnote><para>
<!-- f11 -->
Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
</para>
</blockquote>
<para>
-By limiting the rights musicians have, by partially pirating their
- creative
-work, the record producers, and the public, benefit.
+By limiting the rights musicians have, by partially pirating their
+creative work, the record producers, and the public, benefit.
</para>
</sect2>
<sect2 id="radio">
<!-- PAGE BREAK 72 -->
</para>
<para>
-But it doesn't. Under the law governing radio performances, the
- radio
+But it doesn't. Under the law governing radio performances, the radio
station does not have to pay the recording artist. The radio station
-need only pay the composer. The radio station thus gets a bit of
- something
-for nothing. It gets to perform the recording artist's work for
-free, even if it must pay the composer something for the privilege of
-playing the song.
+need only pay the composer. The radio station thus gets a bit of
+something for nothing. It gets to perform the recording artist's work
+for free, even if it must pay the composer something for the privilege
+of playing the song.
</para>
<para>
-This difference can be huge. Imagine you compose a piece of
- music.
+This difference can be huge. Imagine you compose a piece of music.
Imagine it is your first. You own the exclusive right to authorize
public performances of that music. So if Madonna wants to sing your
song in public, she has to get your permission.
<para>
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
-performance rights they give up. Maybe. But even if so, the law
- ordinarily
-gives the creator the right to make this choice. By making the
-choice for him or her, the law gives the radio station the right to take
-something for nothing.
+performance rights they give up. Maybe. But even if so, the law
+ordinarily gives the creator the right to make this choice. By making
+the choice for him or her, the law gives the radio station the right
+to take something for nothing.
</para>
</sect2>
<sect2 id="cabletv">
<!-- f18 -->
Copyright Law Revision—CATV, 216 (statement of Edwin M.
Zimmerman, acting assistant attorney general).
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para></footnote>
+<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para>
</blockquote>
<para>
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
-144–90. "In some instances . . . the impact of piracy on the copyright holder's
-ability to appropriate the value of the work will be negligible. One obvious
- instance
-is the case where the individual engaging in pirating would not have
-purchased an original even if pirating were not an option." Ibid., 149.
+144–90. "In some instances . . . the impact of piracy on the
+copyright holder's ability to appropriate the value of the work will
+be negligible. One obvious instance is the case where the individual
+engaging in pirating would not have purchased an original even if
+pirating were not an option." Ibid., 149.
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
</para>
<para>
How do these different types of sharing balance out?
</para>
<para>
-Let's start with some simple but important points. From the
- perspective
-of the law, only type D sharing is clearly legal. From the
-
perspective of economics, only type A sharing is clearly harmful.<footnote><para>
+Let's start with some simple but important points. From the
+perspective of the law, only type D sharing is clearly legal. From the
+perspective of economics, only type A sharing is clearly
+harmful.<footnote><para>
<!-- f9 -->
See Liebowitz, Rethinking the Network Economy,148–49.
-</para></footnote>
-Type B sharing is illegal but plainly beneficial. Type C sharing is
- illegal,
-yet good for society (since more exposure to music is good) and
-harmless to the artist (since the work is not otherwise available). So
-how sharing matters on balance is a hard question to answer—and
- certainly
-much more difficult than the current rhetoric around the issue
-suggests.
-</para>
-<para>
-Whether on balance sharing is harmful depends importantly on
-how harmful type A sharing is. Just as Edison complained about
- Hollywood,
-composers complained about piano rolls, recording artists
-complained about radio, and broadcasters complained about cable TV,
-the music industry complains that type A sharing is a kind of "theft"
-that is "devastating" the industry.
-</para>
-<para>
-While the numbers do suggest that sharing is harmful, how
- harmful
-is harder to reckon. It has long been the recording industry's
- practice
-to blame technology for any drop in sales. The history of cassette
-recording is a good example. As a study by Cap Gemini Ernst &
-Young put it, "Rather than exploiting this new, popular technology, the
-labels fought it."<footnote><para>
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
+</para></footnote>
+Type B sharing is illegal but plainly beneficial. Type C sharing is
+illegal, yet good for society (since more exposure to music is good)
+and harmless to the artist (since the work is not otherwise
+available). So how sharing matters on balance is a hard question to
+answer—and certainly much more difficult than the current
+rhetoric around the issue suggests.
+</para>
+<para>
+Whether on balance sharing is harmful depends importantly on how
+harmful type A sharing is. Just as Edison complained about Hollywood,
+composers complained about piano rolls, recording artists complained
+about radio, and broadcasters complained about cable TV, the music
+industry complains that type A sharing is a kind of "theft" that is
+"devastating" the industry.
+</para>
+<para>
+While the numbers do suggest that sharing is harmful, how
+harmful is harder to reckon. It has long been the recording industry's
+practice to blame technology for any drop in sales. The history of
+cassette recording is a good example. As a study by Cap Gemini Ernst
+& Young put it, "Rather than exploiting this new, popular
+technology, the labels fought it."<footnote><para>
<!-- f10 -->
-See Cap Gemini Ernst & Young, Technology Evolution and the Music
- Industry's
-Business Model Crisis (2003), 3. This report describes the music
- industry's
-effort to stigmatize the budding practice of cassette taping in the
-1970s, including an advertising campaign featuring a cassette-shape skull
-and the caption "Home taping is killing music."
-At the time digital audio tape became a threat, the Office of Technical
-Assessment conducted a survey of consumer behavior. In 1988, 40 percent
-of consumers older than ten had taped music to a cassette format. U.S.
-Congress, Office of Technology Assessment, Copyright and Home Copying:
-Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
-Government Printing Office, October 1989), 145–56.
-</para></footnote>
-The labels claimed that every album taped was an
-album unsold, and when record sales fell by 11.4 percent in 1981, the
-industry claimed that its point was proved. Technology was the
- problem,
-and banning or regulating technology was the answer.
+See Cap Gemini Ernst & Young, Technology Evolution and the
+Music Industry's Business Model Crisis (2003), 3. This report
+describes the music industry's effort to stigmatize the budding
+practice of cassette taping in the 1970s, including an advertising
+campaign featuring a cassette-shape skull and the caption "Home taping
+is killing music." At the time digital audio tape became a threat,
+the Office of Technical Assessment conducted a survey of consumer
+behavior. In 1988, 40 percent of consumers older than ten had taped
+music to a cassette format. U.S. Congress, Office of Technology
+Assessment, Copyright and Home Copying: Technology Challenges the Law,
+OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office,
+October 1989), 145–56. </para></footnote>
+The labels claimed that every album taped was an album unsold, and
+when record sales fell by 11.4 percent in 1981, the industry claimed
+that its point was proved. Technology was the problem, and banning or
+regulating technology was the answer.
</para>
<para>
Yet soon thereafter, and before Congress was given an opportunity
(1983): 1152.
</para></footnote>
</para>
+<indexterm id="idxmansfield2" class='startofrange'>
+ <primary>Mansfield, William Murray, Lord</primary>
+</indexterm>
<para>
Astonishingly to modern lawyers, one of the greatest judges in English
history, Lord Mansfield, agreed with the booksellers. Whatever
believed, Britain would mature from the controlled culture that the
Crown coveted to the free culture that we inherited.
</para>
+<indexterm startref="idxmansfield2" class='endofrange'/>
<para>
The fight to defend the limits of the Statute of Anne was not to end
there, however, and it is here that Donaldson enters the mix.
During a show, they hang out below the stage in the grips' lounge and
in the lighting loft. They make a perfect contrast to the art on the
stage.
+<indexterm><primary>San Francisco Opera</primary></indexterm>
</para>
<para>
During one of the performances, Else was shooting some stagehands
very last minute before the film was to be released, Else digitally
replaced the shot with a clip from another film that he had worked on,
The Day After Trinity, from ten years before.
+<indexterm><primary>San Francisco Opera</primary></indexterm>
</para>
<para>
There's no doubt that someone, whether Matt Groening or Fox, owns the
in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
Paramount Pictures, Twentieth Century Fox, Universal Studios, and
Warner Brothers.
+<indexterm><primary>Disney, Inc.</primary></indexterm>
+<indexterm><primary>Sony Pictures Entertainment</primary></indexterm>
+<indexterm><primary>MGM</primary></indexterm>
+<indexterm><primary>Paramount Pictures</primary></indexterm>
+<indexterm><primary>Twentieth Century Fox</primary></indexterm>
+<indexterm><primary>Universal Pictures</primary></indexterm>
+<indexterm><primary>Warner Brothers</primary></indexterm>
</para>
<para>
<!-- PAGE BREAK 128 -->
Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August
2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
+<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
Whether or not you go that far, it seems
plain that whatever wrong is involved is fundamentally different from
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
-<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm id="idxaibo" class='startofrange'>
+ <primary>Aibo robotic dog</primary>
+</indexterm>
<para>
Consider the robotic dog made by Sony named "Aibo." The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
well. There's a well-deserved respect that goes with the talent to hack
ethically.
</para>
-<indexterm><primary>Aibo robotic dog</primary></indexterm>
<para>
The Aibo fan was displaying a bit of both when he hacked the program
and offered to the world a bit of code that would enable the Aibo to
bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
+<indexterm startref="idxaibo" class='endofrange'/>
<para>
I've told this story in many contexts, both inside and outside the
United States. Once I was asked by a puzzled member of the audience,
After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
was that the criticism was "too controversial."
+<indexterm><primary>Marijuana Policy Project</primary></indexterm>
</para></footnote>
</para>
<para>
that no computer is used to commit this crime. These responses might
be extreme, but each of them has either been proposed or actually
implemented.<footnote><para>
-<!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
-Berkman Center for Internet and Society at Harvard Law School,
- "Copyright
-and Digital Media in a Post-Napster World," 27 June 2003, available
-at
-<ulink url="http://free-culture.cc/notes/">link #33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
-(D-Calif.) have introduced a bill that would treat unauthorized on-line
-copying as a felony offense with punishments ranging as high as five years
-imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy,"
-Los Angeles Times, 17 July 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil penalties are
-currently set at $150,000 per copied song. For a recent (and unsuccessful)
-legal challenge to the RIAA's demand that an ISP reveal the identity of a
-user accused of sharing more than 600 songs through a family computer,
-see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F.
-Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as
-high as $90 million. Such astronomical figures furnish the RIAA with a
-powerful arsenal in its prosecution of file sharers. Settlements ranging
-from $12,000 to $17,500 for four students accused of heavy file sharing on
-university networks must have seemed a mere pittance next to the $98
- billion
-the RIAA could seek should the matter proceed to court. See
- Elizabeth
-Young, "Downloading Could Lead to Fines," redandblack.com,
-August 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an example of the RIAA's
- targeting
-of student file sharing, and of the subpoenas issued to universities to
-reveal student file-sharer identities, see James Collins, "RIAA Steps Up
-Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003,
-D3, available at
+<!-- f2. -->
+For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+"Copyright and Digital Media in a Post-Napster World," 27 June 2003,
+available at
+<ulink url="http://free-culture.cc/notes/">link
+#33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized
+on-line copying as a felony offense with punishments ranging as high
+as five years imprisonment; see Jon Healey, "House Bill Aims to Up
+Stakes on Piracy," Los Angeles Times, 17 July 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil
+penalties are currently set at $150,000 per copied song. For a recent
+(and unsuccessful) legal challenge to the RIAA's demand that an ISP
+reveal the identity of a user accused of sharing more than 600 songs
+through a family computer, see RIAA v. Verizon Internet Services (In
+re. Verizon Internet Services), 240 F. Supp. 2d 24
+(D.D.C. 2003). Such a user could face liability ranging as high as $90
+million. Such astronomical figures furnish the RIAA with a powerful
+arsenal in its prosecution of file sharers. Settlements ranging from
+$12,000 to $17,500 for four students accused of heavy file sharing on
+university networks must have seemed a mere pittance next to the $98
+billion the RIAA could seek should the matter proceed to court. See
+Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com,
+August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an
+example of the RIAA's targeting of student file sharing, and of the
+subpoenas issued to universities to reveal student file-sharer
+identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
+Name Students," Boston Globe, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
</para>
</para>
<para>
The point is directly parallel to the crunchy-lefty point about fair
-use. Whatever the "real" law is, realism about the effect of law in both
-contexts is the same. This wildly punitive system of regulation will
- systematically
-stifle creativity and innovation. It will protect some
- industries
-and some creators, but it will harm industry and creativity
-generally. Free market and free culture depend upon vibrant
- competition.
-Yet the effect of the law today is to stifle just this kind of
- competition.
-The effect is to produce an overregulated culture, just as the effect
-of too much control in the market is to produce an
- overregulatedregulated
-market.
+use. Whatever the "real" law is, realism about the effect of law in
+both contexts is the same. This wildly punitive system of regulation
+will systematically stifle creativity and innovation. It will protect
+some industries and some creators, but it will harm industry and
+creativity generally. Free market and free culture depend upon vibrant
+competition. Yet the effect of the law today is to stifle just this
+kind of competition. The effect is to produce an overregulated
+culture, just as the effect of too much control in the market is to
+produce an overregulatedregulated market.
</para>
<para>
The building of a permission culture, rather than a free culture, is
-the first important way in which the changes I have described will
- burden
-innovation. A permission culture means a lawyer's culture—a
- culture
-in which the ability to create requires a call to your lawyer. Again,
-I am not antilawyer, at least when they're kept in their proper place. I
-am certainly not antilaw. But our profession has lost the sense of its
-limits. And leaders in our profession have lost an appreciation of the
-high costs that our profession imposes upon others. The inefficiency of
-the law is an embarrassment to our tradition. And while I believe our
-profession should therefore do everything it can to make the law more
-efficient, it should at least do everything it can to limit the reach of the
+the first important way in which the changes I have described will
+burden innovation. A permission culture means a lawyer's
+culture—a culture in which the ability to create requires a call
+to your lawyer. Again, I am not antilawyer, at least when they're kept
+in their proper place. I am certainly not antilaw. But our profession
+has lost the sense of its limits. And leaders in our profession have
+lost an appreciation of the high costs that our profession imposes
+upon others. The inefficiency of the law is an embarrassment to our
+tradition. And while I believe our profession should therefore do
+everything it can to make the law more efficient, it should at least
+do everything it can to limit the reach of the
<!-- PAGE BREAK 202 -->
law where the law is not doing any good. The transaction costs buried
-within a permission culture are enough to bury a wide range of
- creativity.
-Someone needs to do a lot of justifying to justify that result.
-The uncertainty of the law is one burden on innovation. There is
-a second burden that operates more directly. This is the effort by many
-in the content industry to use the law to directly regulate the
- technology
-of the Internet so that it better protects their content.
+within a permission culture are enough to bury a wide range of
+creativity. Someone needs to do a lot of justifying to justify that
+result. The uncertainty of the law is one burden on innovation. There
+is a second burden that operates more directly. This is the effort by
+many in the content industry to use the law to directly regulate the
+technology of the Internet so that it better protects their content.
</para>
<para>
-The motivation for this response is obvious. The Internet enables
-the efficient spread of content. That efficiency is a feature of the
- Internet's
-design. But from the perspective of the content industry, this
- feature
-is a "bug." The efficient spread of content means that content
-distributors have a harder time controlling the distribution of content.
-One obvious response to this efficiency is thus to make the Internet
-less efficient. If the Internet enables "piracy," then, this response says,
-we should break the kneecaps of the Internet.
+The motivation for this response is obvious. The Internet enables the
+efficient spread of content. That efficiency is a feature of the
+Internet's design. But from the perspective of the content industry,
+this feature is a "bug." The efficient spread of content means that
+content distributors have a harder time controlling the distribution
+of content. One obvious response to this efficiency is thus to make
+the Internet less efficient. If the Internet enables "piracy," then,
+this response says, we should break the kneecaps of the Internet.
</para>
<para>
The examples of this form of legislation are many. At the urging of
It has been
mirrored in the responses threatened and actually implemented by
Congress. I won't catalog all of those responses here.<footnote><para>
-<!-- f11. --> For example, in July 2002, Representative Howard Berman introduced the
+<!-- f11. -->
+For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
-copyright holders use technology to stop copyright infringement. In
- August
-2002, Representative Billy Tauzin introduced a bill to mandate that
-technologies capable of rebroadcasting digital copies of films broadcast on
-TV (i.e., computers) respect a "broadcast flag" that would disable copying
-of that content. And in March of the same year, Senator Fritz Hollings
-introduced the Consumer Broadband and Digital Television Promotion
-Act, which mandated copyright protection technology in all digital media
-devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster
-World," 27 June 2003, 33–34, available at
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a "broadcast flag" that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, which mandated copyright protection
+technology in all digital media devices. See GartnerG2, "Copyright and
+Digital Media in a Post-Napster World," 27 June 2003, 33–34,
+available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
- But there is one
-example that captures the flavor of them all. This is the story of the
- demise
-of Internet radio.
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
</para>
<para>
<!-- PAGE BREAK 204 -->
As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless he
-or she is also the composer. So, for example if Marilyn Monroe had
+recording artist doesn't get paid for that "radio performance" unless
+he or she is also the composer. So, for example if Marilyn Monroe had
recorded a version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
-then whenever that recording was played on the radio, the current
- copyright
-owners of "Happy Birthday" would get some money, whereas
+then whenever that recording was played on the radio, the current
+copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
</para>
<para>
The reasoning behind this balance struck by Congress makes some
sense. The justification was that radio was a kind of advertising. The
-recording artist thus benefited because by playing her music, the radio
-station was making it more likely that her records would be purchased.
-Thus, the recording artist got something, even if only indirectly.
- Probably
-this reasoning had less to do with the result than with the power
-of radio stations: Their lobbyists were quite good at stopping any
- efforts
-to get Congress to require compensation to the recording artists.
+recording artist thus benefited because by playing her music, the
+radio station was making it more likely that her records would be
+purchased. Thus, the recording artist got something, even if only
+indirectly. Probably this reasoning had less to do with the result
+than with the power of radio stations: Their lobbyists were quite good
+at stopping any efforts to get Congress to require compensation to the
+recording artists.
</para>
<para>
-Enter Internet radio. Like regular radio, Internet radio is a
- technology
-to stream content from a broadcaster to a listener. The broadcast
-travels across the Internet, not across the ether of radio spectrum.
-Thus, I can "tune in" to an Internet radio station in Berlin while sitting
-in San Francisco, even though there's no way for me to tune in to a
- regular
-radio station much beyond the San Francisco metropolitan area.
+Enter Internet radio. Like regular radio, Internet radio is a
+technology to stream content from a broadcaster to a listener. The
+broadcast travels across the Internet, not across the ether of radio
+spectrum. Thus, I can "tune in" to an Internet radio station in
+Berlin while sitting in San Francisco, even though there's no way for
+me to tune in to a regular radio station much beyond the San Francisco
+metropolitan area.
</para>
<para>
This feature of the architecture of Internet radio means that there
-are potentially an unlimited number of radio stations that a user could
-tune in to using her computer, whereas under the existing architecture
-for broadcast radio, there is an obvious limit to the number of
- broadcasters
-and clear broadcast frequencies. Internet radio could therefore
-be more competitive than regular radio; it could provide a wider range
-of selections. And because the potential audience for Internet radio is
-the whole world, niche stations could easily develop and market their
-content to a relatively large number of users worldwide. According to
-some estimates, more than eighty million users worldwide have tuned
-in to this new form of radio.
+are potentially an unlimited number of radio stations that a user
+could tune in to using her computer, whereas under the existing
+architecture for broadcast radio, there is an obvious limit to the
+number of broadcasters and clear broadcast frequencies. Internet radio
+could therefore be more competitive than regular radio; it could
+provide a wider range of selections. And because the potential
+audience for Internet radio is the whole world, niche stations could
+easily develop and market their content to a relatively large number
+of users worldwide. According to some estimates, more than eighty
+million users worldwide have tuned in to this new form of radio.
</para>
<para>
<!-- PAGE BREAK 205 -->
-Internet radio is thus to radio what FM was to AM. It is an
- improvement
-potentially vastly more significant than the FM
- improvement
-over AM, since not only is the technology better, so, too, is the
-competition. Indeed, there is a direct parallel between the fight to
- establish
-FM radio and the fight to protect Internet radio. As one author
-describes Howard Armstrong's struggle to enable FM radio,
+Internet radio is thus to radio what FM was to AM. It is an
+improvement potentially vastly more significant than the FM
+improvement over AM, since not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
</para>
<blockquote>
<para>
An almost unlimited number of FM stations was possible in the
-shortwaves, thus ending the unnatural restrictions imposed on
- radio
-in the crowded longwaves. If FM were freely developed, the
-number of stations would be limited only by economics and
- competition
-rather than by technical restrictions. . . . Armstrong
-likened the situation that had grown up in radio to that following
-the invention of the printing press, when governments and ruling
-interests attempted to control this new instrument of mass
- communications
-by imposing restrictive licenses on it. This tyranny
-was broken only when it became possible for men freely to
- acquire
-printing presses and freely to run them. FM in this sense
-was as great an invention as the printing presses, for it gave radio
-the opportunity to strike off its shackles.<footnote><para>
-<!-- f12. --> Lessing, 239.
+shortwaves, thus ending the unnatural restrictions imposed on radio in
+the crowded longwaves. If FM were freely developed, the number of
+stations would be limited only by economics and competition rather
+than by technical restrictions. . . . Armstrong likened the situation
+that had grown up in radio to that following the invention of the
+printing press, when governments and ruling interests attempted to
+control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it
+became possible for men freely to acquire printing presses and freely
+to run them. FM in this sense was as great an invention as the
+printing presses, for it gave radio the opportunity to strike off its
+shackles.<footnote><para>
+<!-- f12. -->
+Lessing, 239.
</para></footnote>
</para>
</blockquote>
<para>
-This potential for FM radio was never realized—not because
- Armstrong
-was wrong about the technology, but because he underestimated
-the power of "vested interests, habits, customs and legislation"<footnote><para>
-<!-- f13. --> Ibid., 229.
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of "vested interests, habits, customs and
+legislation"<footnote><para>
+<!-- f13. -->
+Ibid., 229.
</para></footnote>
-to
- retard
-the growth of this competing technology.
+to retard the growth of this competing technology.
</para>
<para>
Now the very same claim could be made about Internet radio. For
that this law was unconstitutional regardless of one's politics.
</para>
<para>
-The first step happened all by itself. Phyllis Schlafly's organization,
-Eagle Forum, had been an opponent of the CTEA from the very
- beginning.
-Mrs. Schlafly viewed the CTEA as a sellout by Congress. In
-November 1998, she wrote a stinging editorial attacking the
- Republican
-Congress for allowing the law to pass. As she wrote, "Do you
-sometimes wonder why bills that create a financial windfall to narrow
-special interests slide easily through the intricate legislative process,
-while bills that benefit the general public seem to get bogged down?"
-The answer, as the editorial documented, was the power of money.
-Schlafly enumerated Disney's contributions to the key players on the
-committees. It was money, not justice, that gave Mickey Mouse twenty
-more years in Disney's control, Schlafly argued.
-</para>
-<para>
-In the Court of Appeals, Eagle Forum was eager to file a brief
- supporting
-our position. Their brief made the argument that became the
+The first step happened all by itself. Phyllis Schlafly's
+organization, Eagle Forum, had been an opponent of the CTEA from the
+very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
+Congress. In November 1998, she wrote a stinging editorial attacking
+the Republican Congress for allowing the law to pass. As she wrote,
+"Do you sometimes wonder why bills that create a financial windfall to
+narrow special interests slide easily through the intricate
+legislative process, while bills that benefit the general public seem
+to get bogged down?" The answer, as the editorial documented, was the
+power of money. Schlafly enumerated Disney's contributions to the key
+players on the committees. It was money, not justice, that gave Mickey
+Mouse twenty more years in Disney's control, Schlafly argued.
+<indexterm><primary>Eagle Forum</primary></indexterm>
+<indexterm><primary>Schlafly, Phyllis</primary></indexterm>
+</para>
+<para>
+In the Court of Appeals, Eagle Forum was eager to file a brief
+supporting our position. Their brief made the argument that became the
core claim in the Supreme Court: If Congress can extend the term of
-existing copyrights, there is no limit to Congress's power to set terms.
-That strong conservative argument persuaded a strong conservative
-judge, Judge Sentelle.
+existing copyrights, there is no limit to Congress's power to set
+terms. That strong conservative argument persuaded a strong
+conservative judge, Judge Sentelle.
</para>
<para>
In the Supreme Court, the briefs on our side were about as diverse as
exhaustive and uncontroverted brief by the world's experts in the
history of the Progress Clause. And of course, there was a new brief
by Eagle Forum, repeating and strengthening its arguments.
+<indexterm><primary>Eagle Forum</primary></indexterm>
</para>
<para>
Those briefs framed a legal argument. Then to support the legal
</para>
<blockquote>
<para>
-justice scalia: You say that the functional equivalent of an
- unlimited
-time would be a violation [of the Constitution], but that's
-precisely the argument that's being made by petitioners here, that
-a limited time which is extendable is the functional equivalent of
-an unlimited time.
+justice scalia: You say that the functional equivalent of an unlimited
+time would be a violation [of the Constitution], but that's precisely
+the argument that's being made by petitioners here, that a limited
+time which is extendable is the functional equivalent of an unlimited
+time.
</para>
</blockquote>
<para>
When Olson was finished, it was my turn to give a closing rebuttal.
Olson's flailing had revived my anger. But my anger still was directed
to the academic, not the practical. The government was arguing as if
-this were the first case ever to consider limits on Congress's Copyright
-and Patent Clause power. Ever the professor and not the advocate, I
-closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause—
-indeed, the very first case striking a law of Congress as exceeding a
- specific
-enumerated power was based upon the Copyright and Patent
-Clause. All true. But it wasn't going to move the Court to my side.
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+Copyright and Patent Clause. All true. But it wasn't going to move the
+Court to my side.
</para>
<para>
As I left the court that day, I knew there were a hundred points I
optimistic.
</para>
<para>
-The government had been asked over and over again, what is the
-limit? Over and over again, it had answered there is no limit. This
-was precisely the answer I wanted the Court to hear. For I could not
-imagine how the Court could understand that the government
- believed
-Congress's power was unlimited under the terms of the
- Copyright
-Clause, and sustain the government's argument. The solicitor
-general had made my argument for me. No matter how often I tried,
-I could not understand how the Court could find that Congress's
-power under the Commerce Clause was limited, but under the
- Copyright
-Clause, unlimited. In those rare moments when I let myself
- believe
-that we may have prevailed, it was because I felt this Court—in
-particular, the Conservatives—would feel itself constrained by the rule
-of law that it had established elsewhere.
+The government had been asked over and over again, what is the limit?
+Over and over again, it had answered there is no limit. This was
+precisely the answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+the Conservatives—would feel itself constrained by the rule of
+law that it had established elsewhere.
</para>
<para>
The morning of January 15, 2003, I was five minutes late to the office
down to see where I had been wrong in my reasoning.
</para>
<para>
-My reasoning. Here was a case that pitted all the money in the
-world against reasoning. And here was the last naïve law professor,
-scouring the pages, looking for reasoning.
+My reasoning. Here was a case that pitted all the money in the world
+against reasoning. And here was the last naïve law professor, scouring
+the pages, looking for reasoning.
</para>
<para>
-I first scoured the opinion, looking for how the Court would
- distinguish
-the principle in this case from the principle in Lopez. The
- argument
-was nowhere to be found. The case was not even cited. The
-argument that was the core argument of our case did not even appear
-in the Court's opinion.
+I first scoured the opinion, looking for how the Court would
+distinguish the principle in this case from the principle in
+Lopez. The argument was nowhere to be found. The case was not even
+cited. The argument that was the core argument of our case did not
+even appear in the Court's opinion.
</para>
<para>
<!-- PAGE BREAK 249 -->
Justice Ginsburg simply ignored the enumerated powers argument.
-Consistent with her view that Congress's power was not limited
- generally,
-she had found Congress's power not limited here.
+Consistent with her view that Congress's power was not limited
+generally, she had found Congress's power not limited here.
</para>
<para>
Her opinion was perfectly reasonable—for her, and for Justice
<para>
But as I realized what had happened, I couldn't quite believe what I
was reading. I had said there was no way this Court could reconcile
-limited powers with the Commerce Clause and unlimited powers with
-the Progress Clause. It had never even occurred to me that they could
+limited powers with the Commerce Clause and unlimited powers with the
+Progress Clause. It had never even occurred to me that they could
reconcile the two simply by not addressing the argument. There was no
inconsistency because they would not talk about the two together.
There was therefore no principle that followed from the Lopez case: In
-that context, Congress's power would be limited, but in this context it
-would not.
+that context, Congress's power would be limited, but in this context
+it would not.
</para>
<para>
Yet by what right did they get to choose which of the framers' values
my view of the case, was Ruben Bolling's, reproduced on the next
page. The "powerful and wealthy" line is a bit unfair. But the punch
in the face felt exactly like that.
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
<para>
The image that will always stick in my head is that evoked by the
Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
included the Global Positioning System, which Ronald Reagan set free
in the early 1980s. And it included "open source and free software."
+<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
The aim of the meeting was to consider this wide range of projects
rather than "proprietary software," for their own internal uses.
</para>
<para>
-I don't mean to enter that debate here. It is important only to make
-clear that the distinction is not between commercial and
- noncommercial
-software. There are many important companies that depend
- fundamentally
-upon open source and free software, IBM being the most
+I don't mean to enter that debate here. It is important only to
+make clear that the distinction is not between commercial and
+noncommercial software. There are many important companies that depend
+fundamentally upon open source and free software, IBM being the most
prominent. IBM is increasingly shifting its focus to the GNU/Linux
-operating system, the most famous bit of "free software"—and IBM is
-emphatically a commercial entity. Thus, to support "open source and
-free software" is not to oppose commercial entities. It is, instead, to
-support a mode of software development that is different from
- Microsoft's.<footnote><para>
-<!-- f8. --> Microsoft's position about free and open source software is more
- sophisticated.
-As it has repeatedly asserted, it has no problem with "open source"
-software or software in the public domain. Microsoft's principal
- opposition
-is to "free software" licensed under a "copyleft" license, meaning a
- license
-that requires the licensee to adopt the same terms on any derivative
-work. See Bradford L. Smith, "The Future of Software: Enabling the
- Marketplace
-to Decide," Government Policy Toward Open Source Software
-(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies,
-American Enterprise Institute for Public Policy Research, 2002), 69,
-available at
-<ulink url="http://free-culture.cc/notes/">link #62</ulink>. See also Craig Mundie, Microsoft senior vice
- president,
-The Commercial Software Model, discussion at New York University
-Stern School of Business (3 May 2001), available at
+operating system, the most famous bit of "free software"—and IBM
+is emphatically a commercial entity. Thus, to support "open source and
+free software" is not to oppose commercial entities. It is, instead,
+to support a mode of software development that is different from
+Microsoft's.<footnote><para>
+<!-- f8. -->
+Microsoft's position about free and open source software is more
+sophisticated. As it has repeatedly asserted, it has no problem with
+"open source" software or software in the public domain. Microsoft's
+principal opposition is to "free software" licensed under a "copyleft"
+license, meaning a license that requires the licensee to adopt the
+same terms on any derivative work. See Bradford L. Smith, "The Future
+of Software: Enabling the Marketplace to Decide," Government Policy
+Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint
+Center for Regulatory Studies, American Enterprise Institute for
+Public Policy Research, 2002), 69, available at
+<ulink url="http://free-culture.cc/notes/">link #62</ulink>. See also
+Craig Mundie, Microsoft senior vice president, The Commercial Software
+Model, discussion at New York University Stern School of Business (3
+May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
</para>
for Peace organized to oppose this change in FCC policy. An
astonishing 700,000 letters were sent to the FCC, demanding more
hearings and a different result.
+<indexterm><primary>Turner, Ted</primary></indexterm>
+<indexterm><primary>Safire, William</primary></indexterm>
</para>
<para>
This activism did not stop the FCC, but soon after, a broad coalition
available for free. PLoS also sells a print version of its work, but
the copyright for the print journal does not inhibit the right of
anyone to redistribute the work for free.
+<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
This is one of many such efforts to restore a freedom taken for
effect of file-sharing technology. In my view, however, he
underestimates the costs of the legal system. See, for example,
Rethinking, 174–76.
+<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
They see a system that has been around for hundreds of years, and they
assume it works the way their elementary school civics class taught
projects / text-free-culture-lessig.git / blobdiff