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[
<!ENTITY copy "©">
<!ENTITY translationblock "">
</author>
</authorgroup>
-<copyright>
- <year>2004</year>
- <holder>Lawrence Lessig</holder>
-</copyright>
-
+<!-- <subjectset> and cover <mediaobject> Based on example from
+ http://jfearn.fedorapeople.org/en-US/Publican/2.7/html/Users_Guide/chap-Users_Guide-Creating_a_document.html
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+ <subjectset scheme="libraryofcongress">
+ <subject>
+ <subjectterm>Intellectual property—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Mass media—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Technological innovations—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Art—United States.</subjectterm>
+ </subject>
+ </subjectset>
+
+
+ <publisher>
+ <publishername>The Penguin Press</publishername>
+ <address><city>New York</city></address>
+ </publisher>
+
+ <copyright>
+ <year>2004</year>
+ <holder>Lawrence Lessig</holder>
+ </copyright>
<legalnotice>
- <para>
+ <para>
+ <inlinemediaobject>
+ <imageobject>
+ <imagedata fileref="images/cc.png" width="100%" align="center"/>
+ </imageobject>
+ <imageobject>
+ <imagedata fileref="images/cc.svg" width="100%" align="center"/>
+ </imageobject>
+ <textobject>
+ <phrase>Creative Commons, Some rights reserved</phrase>
+ </textobject>
+ </inlinemediaobject>
+ </para>
+
+ <para>
This version of <citetitle>Free Culture</citetitle> is licensed under
a Creative Commons license. This license permits non-commercial use of
this work, so long as attribution is given. For more information
about the license, click the icon above, or visit
<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
- </para>
+ </para>
</legalnotice>
<abstract>
<title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
-(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
+(<ulink url="http://www.lessig.org">http://www.lessig.org</ulink>),
professor of law and a John A. Wilson Distinguished Faculty Scholar
at Stanford Law School, is founder of the Stanford Center for Internet
and Society and is chairman of the Creative Commons
-(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
+(<ulink url="http://creativecommons.org">http://creativecommons.org</ulink>).
The author of The Future of Ideas (Random House, 2001) and Code: And
Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
the boards of the Public Library of Science, the Electronic Frontier
Appeals.
</para>
</abstract>
+
+<!-- testing different ways to tag the cover page -->
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+ </mediaobject>
+
+ <biblioid class="isbn">1-59420-006-8</biblioid>
+
+<!-- LCCN from
+ http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page
+ -->
+ <biblioid class="libraryofcongress">2003063276</biblioid>
+
</bookinfo>
<colophon>
<para>
ISBN 1-59420-006-8 (hardcover)
</para>
+
<para>
1. Intellectual property—United States. 2. Mass media—United States.
</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>
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was crumpled
+sounded like a glass of water being poured. … A paper was crumpled
and torn; it sounded like paper and not like a crackling forest
-fire. . . . Sousa marches were played from records and a piano solo
-and guitar number were performed. . . . The music was projected with a
+fire. … Sousa marches were played from records and a piano solo
+and guitar number were performed. … The music was projected with a
live-ness rarely if ever heard before from a radio "music
box."<footnote><para>
Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
The forces for FM, largely engineering, could not overcome the weight
of strategy devised by the sales, patent, and legal offices to subdue
this threat to corporate position. For FM, if allowed to develop
-unrestrained, posed . . . a complete reordering of radio power
-. . . and the eventual overthrow of the carefully restricted AM system
+unrestrained, posed … a complete reordering of radio power
+… and the eventual overthrow of the carefully restricted AM system
on which RCA had grown to power.<footnote><para>Lessing, 226.
</para></footnote>
</para>
street corners telling stories that kids and others consumed, that was
noncommercial culture. When Noah Webster published his "Reader," or
Joel Barlow his poetry, that was commercial culture.
+<indexterm><primary>Barlow, Joel</primary></indexterm>
+<indexterm><primary>Webster, Noah</primary></indexterm>
</para>
<para>
At the beginning of our history, and for just about the whole of our
been erased.<footnote><para>
See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: Prometheus Books,
2001), ch. 13.
+<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
The Internet has set the stage for this erasure and, pushed by big
media, the law has now affected it. For the first time in our
</para>
</chapter>
<!-- PAGE BREAK 29 -->
-<chapter id="c-piracy">
+<part id="c-piracy">
<title>"PIRACY"</title>
-
+<partintro>
<!-- PAGE BREAK 30 -->
<indexterm id="idxmansfield1" class='startofrange'>
<primary>Mansfield, William Murray, Lord</primary>
understanding that tradition a bit more and by placing in their proper
context the current battles about behavior labeled "piracy."
</para>
+</partintro>
<!-- PAGE BREAK 34 -->
-<sect1 id="creators">
+<chapter id="creators">
<title>CHAPTER ONE: Creators</title>
<para>
In 1928, a cartoon character was born. An early Mickey Mouse
the view of many, it is precisely because it exists that Japanese manga
flourish. As American graphic novelist Judd Winick said to me, "The
early days of comics in America are very much like what's going on
-in Japan now. . . . American comics were born out of copying each
+in Japan now. … American comics were born out of copying each
<!-- PAGE BREAK 40 -->
-other. . . . That's how [the artists] learn to draw—by going into comic
+other. … That's how [the artists] learn to draw—by going into comic
books and not tracing them, but looking at them and copying them"
and building from them.<footnote><para>
<!-- f5 -->
</para>
<!-- PAGE BREAK 44 -->
-</sect1>
-<sect1 id="mere-copyists">
+</chapter>
+<chapter id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
-<indexterm><primary>Daguerre, Louis</primary></indexterm>
+<indexterm id="idxphotography" class='startofrange'>
+ <primary>photography</primary>
+</indexterm>
<para>
In 1839, Louis Daguerre invented the first practical technology for
producing what we would call "photographs." Appropriately enough, they
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.
taking of a picture from its developing. These were still plates of
glass, and thus it was still not a process within reach of most
amateurs.
+<indexterm><primary>Talbot, William</primary></indexterm>
</para>
<indexterm id="idxeastmangeorge" class='startofrange'>
<primary>Eastman, George</primary>
<para>
The principle of the Kodak system is the separation of the work that
any person whomsoever can do in making a photograph, from the work
-that only an expert can do. . . . We furnish anybody, man, woman or
+that only an expert can do. … We furnish anybody, man, woman or
child, who has sufficient intelligence to point a box straight and
press a button, with an instrument which altogether removes from the
practice of photography the necessity for exceptional facilities or,
popular photography. Eastman's camera first went on sale in 1888; one
year later, Kodak was printing more than six thousand negatives a day.
From 1888 through 1909, while industrial production was rising by 4.7
-percent, photographic equipment and material sales increased by
+percent, photographic equipment and material sales increased by 11
percent.<footnote><para>
<!-- f3 -->
Jenkins, 177.
gave them the ability to record their own lives in a way they had
never been able to do before. As author Brian Coe notes, "For the
first time the snapshot album provided the man on the street with a
-permanent record of his family and its activities. . . . For the first
+permanent record of his family and its activities. … For the first
time in history there exists an authentic visual record of the
appearance and activities of the common man made without [literary]
interpretation or bias."<footnote><para>
learn.
</para>
<indexterm startref="idxeastmangeorge" class='endofrange'/>
+<indexterm startref="idxphotography" 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
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
+Think!, puts it, "is the ability … to understand, analyze, and
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."
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
+about "the placement of objects, color, … rhythm, pacing, and
texture."<footnote>
<para>
<!-- f11 -->
can do, let's talk about this issue. Play for me music that you think
reflects that, or show me images that you think reflect that, or draw
for me something that reflects that." Not by giving a kid a video
-camera and . . . saying, "Let's go have fun with the video camera and
+camera and … saying, "Let's go have fun with the video camera and
make a little movie." But instead, really help you take these elements
that you understand, that are your language, and construct meaning
-about the topic. . . .
+about the topic. …
</para>
<para>
That empowers enormously. And then what happens, of
</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is "human learning and . . . the
-creation of knowledge ecologies for creating . . . innovation."
+His work, as his Web site describes it, is "human learning and … the
+creation of knowledge ecologies for creating … innovation."
</para>
<para>
Brown thus looks at these technologies of digital creativity a bit
</para>
<para>
This opportunity creates a "completely new kind of learning platform,"
-as Brown describes. "As soon as you start doing that, you . . .
+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
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
+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>
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
+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>
<para>
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter
-10) has developed a powerful argument in favor of the "right to
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>)
+has developed a powerful argument in favor of the "right to
tinker" as it applies to computer science and to knowledge in
general.<footnote><para>
<!-- f22 -->
<para>
"Yet," as Brown continued, and as the balance of this book will
evince, "we are building a legal system that completely suppresses the
-natural tendencies of today's digital kids. . . . We're building an
+natural tendencies of today's digital kids. … We're building an
architecture that unleashes 60 percent of the brain [and] a legal
system that closes down that part of the brain."
</para>
</para>
<para>
"No way to run a culture," as Brewster Kahle, whom we'll meet in
-chapter 9, quipped to me in a rare moment of despondence.
+chapter <xref xrefstyle="select: labelnumber" linkend="collectors"/>,
+quipped to me in a rare moment of despondence.
</para>
<!-- PAGE BREAK 61 -->
-</sect1>
-<sect1 id="catalogs">
+</chapter>
+<chapter id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
<para>
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
</para>
<para>
"It was absurd," he told me. "I don't think I did anything
-wrong. . . . I don't think there's anything wrong with the search
-engine that I ran or . . . what I had done to it. I mean, I hadn't
+wrong. … I don't think there's anything wrong with the search
+engine that I ran or … what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of
pirates. I just modified the search engine in a way that would make it
easier to use"—again, a <emphasis>search engine</emphasis>,
<blockquote>
<para>
I was definitely not an activist [before]. I never really meant to be
-an activist. . . . [But] I've been pushed into this. In no way did I
+an activist. … [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
absurd what the RIAA has done.
</para>
<para>
Jesse's parents betray a certain pride in their reluctant activist. As
his father told me, Jesse "considers himself very conservative, and so do
-I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
+I. … He's not a tree hugger. … I think it's bizarre that they would
pick on him. But he wants to let people know that they're sending the
wrong message. And he wants to correct the record."
</para>
<!-- PAGE BREAK 66 -->
-</sect1>
-<sect1 id="pirates">
+</chapter>
+<chapter id="pirates">
<title>CHAPTER FOUR: "Pirates"</title>
<para>
If "piracy" means using the creative property of others without
kind of piracy so defined. The consistent story is how last generation's
pirates join this generation's country club—until now.
</para>
-<sect2 id="film">
+<section id="film">
<title>Film</title>
<para>
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159. </para></footnote>
+<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para>
expired. A new industry had been born, in part from the piracy of
Edison's creative property.
</para>
-</sect2>
-<sect2 id="recordedmusic">
+</section>
+<section id="recordedmusic">
<title>Recorded Music</title>
<para>
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>
<para>
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
then, I could effectively pirate someone else's song without paying
its composer anything.
</para>
+<indexterm startref="idxfourneauxhenri" class='endofrange'/>
<para>
The composers (and publishers) were none too happy about
<!-- PAGE BREAK 69 -->
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para>
<blockquote>
<para>
of South Dakota, chairman), reprinted in <citetitle>Legislative History of the
Copyright Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
+<indexterm><primary>American Graphophone Company</primary></indexterm>
</para>
<para>
The law soon resolved this battle in favor of the composer
By limiting the rights musicians have, by partially pirating their
creative work, the record producers, and the public, benefit.
</para>
-</sect2>
-<sect2 id="radio">
+</section>
+<section id="radio">
<title>Radio</title>
<para>
Radio was also born of piracy.
the choice for him or her, the law gives the radio station the right
to take something for nothing.
</para>
-</sect2>
-<sect2 id="cabletv">
+</section>
+<section id="cabletv">
<title>Cable TV</title>
<para>
Our point here is that unlike the problem of whether you have any
copyright protection at all, the problem here is whether copyright
holders who are already compensated, who already have a monopoly,
-should be permitted to extend that monopoly. . . . The
+should be permitted to extend that monopoly. … The
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
</para></footnote>
— then <emphasis>every</emphasis> industry affected by copyright
today is the product and beneficiary of a certain kind of
-piracy. Film, records, radio, cable TV. . . . The list is long and
+piracy. Film, records, radio, cable TV. … The list is long and
could well be expanded. Every generation welcomes the pirates from the
last. Every generation—until now.
</para>
<!-- PAGE BREAK 75 -->
-</sect2>
-</sect1>
-<sect1 id="piracy">
+</section>
+</chapter>
+<chapter id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
There is piracy of copyrighted material. Lots of it. This piracy comes
has so often done in the past.
<!-- PAGE BREAK 76 -->
</para>
-<sect2 id="piracy-i">
+<section id="piracy-i">
<title>Piracy I</title>
<para>
All across the world, but especially in Asia and Eastern Europe, there
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: Amacom, 2002),
-144–90. "In some instances . . . the impact of piracy on the
+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
Microsoft Windows, the Chinese used the free GNU/Linux operating
system, then these Chinese users would not eventually be buying
Microsoft. Without piracy, then, Microsoft would lose.
+<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>Windows</primary></indexterm>
</para>
<para>
what—at least ordinarily. And if the law properly balances the
rights of the copyright owner with the rights of access, then
violating the law is still wrong.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
<!-- PAGE BREAK 79 -->
should push us to find a way to protect artists while enabling this
sharing to survive.
</para>
-</sect2>
-<sect2 id="piracy-ii">
+</section>
+<section id="piracy-ii">
<title>Piracy II</title>
<para>
The key to the "piracy" that the law aims to quash is a use that "rob[s]
products. This job usually falls to outside innovators, who
reassemble existing technology in inventive ways. For a discussion of
Christensen's ideas, see Lawrence Lessig, <citetitle>Future</citetitle>, 89–92, 139.
+
<indexterm><primary>Christensen, Clayton M.</primary></indexterm>
</para></footnote>), Shawn Fanning and crew had simply
put together components that had been developed independently.
<para>
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+turnaround. "In the end," Cap Gemini concludes, "the `crisis' … was
not the fault of the tapers—who did not [stop after MTV came into
<!-- PAGE BREAK 83 -->
being]—but had to a large extent resulted from stagnation in musical
<para>
For unlike the piracy I described in the first section of this
chapter, much of the "piracy" that file sharing enables is plainly
-legal and good. And like the piracy I described in chapter 4, much of
+legal and good. And like the piracy I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="pirates"/>, much of
this piracy is motivated by a new way of spreading content caused by
changes in the technology of distribution. Thus, consistent with the
tradition that gave us Hollywood, radio, the recording industry, and
</para>
<table id="t1">
-<title>Table</title>
+<title>Pattern of Court and Congress response</title>
<tgroup cols="4" align="char">
<thead>
<row>
it should be protected just as any other property is protected."
</para>
<!-- PAGE BREAK 93 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-property">
+</part>
+<part id="c-property">
<title>"PROPERTY"</title>
+<partintro>
<para>
<!-- PAGE BREAK 94 -->
more clear, and its implications will be revealed as quite different
from the implications that the copyright warriors would have us draw.
</para>
+</partintro>
<!-- PAGE BREAK 96 -->
-<sect1 id="founders">
+<chapter id="founders">
<title>CHAPTER SIX: Founders</title>
<para>
William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
published. But after it expired, there was no positive law that said
that the publishers, or "Stationers," had an exclusive right to print
books.
+<indexterm><primary>Licensing Act (1662)</primary></indexterm>
</para>
<para>
There was no <emphasis>positive</emphasis> law, but that didn't mean
This was a clever argument, and one that had the support of some of
the leading jurists of the day. It also displayed extraordinary
chutzpah. Until then, as law professor Raymond Patterson has put it,
-"The publishers . . . had as much concern for authors as a cattle
+"The publishers … had as much concern for authors as a cattle
rancher has for cattle."<footnote><para>
<!-- f6 -->
Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," <citetitle>Vanderbilt
</para>
<blockquote>
<para>
-By the above decision . . . near 200,000 pounds worth of what was
+By the above decision … near 200,000 pounds worth of what was
honestly purchased at public sale, and which was yesterday thought
property is now reduced to nothing. The Booksellers of London and
Westminster, many of whom sold estates and houses to purchase
protected.
</para>
<!-- PAGE BREAK 106 -->
-</sect1>
-<sect1 id="recorders">
+</chapter>
+<chapter id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
<para>
Jon Else is a filmmaker. He is best known for his documentaries and
</para>
<para>
Then, as Else told me, "two things happened. First we discovered
-. . . that Matt Groening doesn't own his own creation—or at
+… that Matt Groening doesn't own his own creation—or at
least that someone [at Fox] believes he doesn't own his own creation."
And second, Fox "wanted ten thousand dollars as a licensing fee for us
-to use this four-point-five seconds of . . . entirely unsolicited
+to use this four-point-five seconds of … entirely unsolicited
<citetitle>Simpsons</citetitle> which was in the corner of the shot."
</para>
<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
-explained to her, "There must be some mistake here. . . . We're
+explained to her, "There must be some mistake here. … We're
asking for your educational rate on this." That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
<listitem><para>
<!-- 3. -->
I did, in fact, speak with one of your colleagues at Stanford Law
-School . . . who confirmed that it was fair use. He also confirmed
+School … who confirmed that it was fair use. He also confirmed
that Fox would "depose and litigate you to within an inch of your
life," regardless of the merits of my claim. He made clear that it
would boil down to who had the bigger legal department and the deeper
not.
</para>
<!-- PAGE BREAK 111 -->
-</sect1>
-<sect1 id="transformers">
+</chapter>
+<chapter id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
<indexterm><primary>Alben, Alex</primary></indexterm>
the music, there's the screenplay, there's the director, there's the
actors." But we just broke it down. We just put it into its
constituent parts and said, "Okay, there's this many actors, this many
-directors, . . . this many musicians," and we just went at it very
+directors, … this many musicians," and we just went at it very
systematically and cleared the rights.
</para>
</blockquote>
has to be made?
</para>
<para>
-For, as he acknowledged, "very few . . . have the time and resources,
+For, as he acknowledged, "very few … have the time and resources,
and the will to do this," and thus, very few such works would ever be
made. Does it make sense, I asked him, from the standpoint of what
anybody really thought they were ever giving rights for originally, that
<blockquote>
<para>
I don't think so. When an actor renders a performance in a movie,
-he or she gets paid very well. . . . And then when 30 seconds of
+he or she gets paid very well. … And then when 30 seconds of
that performance is used in a new product that is a retrospective
-of somebody's career, I don't think that that person . . . should be
+of somebody's career, I don't think that that person … should be
compensated for that.
</para>
</blockquote>
curse, reserved for the few.
</para>
<!-- PAGE BREAK 119 -->
-</sect1>
-<sect1 id="collectors">
+</chapter>
+<chapter id="collectors">
<title>CHAPTER NINE: Collectors</title>
<para>
In April 1996, millions of "bots"—computer codes designed to
original back and forth exchanges between the two, the
<!-- PAGE BREAK 122 -->
-<citetitle>60 Minutes</citetitle> episode that came out after it . . . it would be almost
-impossible. . . . Those materials are almost unfindable. . . .
+<citetitle>60 Minutes</citetitle> episode that came out after it … it would be almost
+impossible. … Those materials are almost unfindable. …
</para>
</blockquote>
<para>
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
-movies, . . . and about one to two million movies [distributed] during
+movies, … and about one to two million movies [distributed] during
the twentieth century. There are about twenty-six million different
titles of books. All of these would fit on computers that would fit in
this room and be able to be afforded by a small company. So we're at
a turning point in our history. Universal access is the goal. And the
opportunity of leading a different life, based on this, is
-. . . thrilling. It could be one of the things humankind would be most
+… thrilling. It could be one of the things humankind would be most
proud of. Up there with the Library of Alexandria, putting a man on
the moon, and the invention of the printing press.
</para>
that Kahle and others would exercise.
</para>
<!-- PAGE BREAK 127 -->
-</sect1>
-<sect1 id="property-i">
+</chapter>
+<chapter id="property-i">
<title>CHAPTER TEN: "Property"</title>
<para>
Jack Valenti has been the president of the Motion Picture Association
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>
<para>
The MPAA is the American branch of the international Motion Picture
<indexterm><primary>Commons, John R.</primary></indexterm>
</para></footnote>
</para>
-<sect2 id="hollywood">
+<section id="hollywood">
<title>Why Hollywood Is Right</title>
<para>
The most obvious point that this model reveals is just why, or just
the government to get into the business of regulating speech
markets. The risks and dangers of that game are precisely why our
framers created the First Amendment to our Constitution: "Congress
-shall make no law . . . abridging the freedom of speech." So when
+shall make no law … abridging the freedom of speech." So when
Congress is being asked to pass laws that would "abridge" the freedom
of speech, it should ask— carefully—whether such
regulation is justified.
be lost.
</para>
<indexterm startref="idxddt" class='endofrange'/>
-</sect2>
-<sect2 id="beginnings">
+</section>
+<section id="beginnings">
<title>Beginnings</title>
<para>
America copied English copyright law. Actually, we copied and improved
</para>
<para>
The Progress Clause expressly limits the term of copyrights. As we saw
-in chapter 6, the English limited the term of copyright so as to
-assure that a few would not exercise disproportionate control over
-culture by exercising disproportionate control over publishing. We can
-assume the framers followed the English for a similar purpose. Indeed,
-unlike the English, the framers reinforced that objective, by
-requiring that copyrights extend "to Authors" only.
+in chapter <xref xrefstyle="select: labelnumber" linkend="founders"/>,
+the English limited the term of copyright so as to assure that a few
+would not exercise disproportionate control over culture by exercising
+disproportionate control over publishing. We can assume the framers
+followed the English for a similar purpose. Indeed, unlike the
+English, the framers reinforced that objective, by requiring that
+copyrights extend "to Authors" only.
</para>
<para>
The design of the Progress Clause reflects something about the
Let me explain how.
<!-- PAGE BREAK 144 -->
</para>
-</sect2>
-<sect2 id="lawduration">
+</section>
+<section id="lawduration">
<title>Law: Duration</title>
<para>
When the first Congress enacted laws to protect creative property, it
</para></footnote>
</para>
<!-- PAGE BREAK 147 -->
-</sect2>
-<sect2 id="lawscope">
+</section>
+<section id="lawscope">
<title>Law: Scope</title>
<para>
The "scope" of a copyright is the range of rights granted by the law.
to make clear that this expansion is a significant change from the
rights originally granted.
</para>
-</sect2>
-<sect2 id="lawreach">
+</section>
+<section id="lawreach">
<title>Law and Architecture: Reach</title>
<para>
Whereas originally the law regulated only publishers, the change in
owners choose. In some contexts, at least, that fact is harmless. But
in some contexts it is a recipe for disaster.
</para>
-</sect2>
-<sect2 id="lawforce">
+</section>
+<section id="lawforce">
<title>Architecture and Law: Force</title>
<para>
The disappearance of unregulated uses would be change enough, but a
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>
<para>
There's a famous story about a battle between the Marx Brothers
and Warner Brothers. The Marxes intended to make a parody of
<!-- PAGE BREAK 159 -->
-<citetitle>Casablanca</citetitle>. Warner Brothers objected. They wrote a nasty letter to the
-Marxes, warning them that there would be serious legal consequences
-if they went forward with their plan.<footnote><para>
+<citetitle>Casablanca</citetitle>. Warner Brothers objected. They
+wrote a nasty letter to the Marxes, warning them that there would be
+serious legal consequences if they went forward with their
+plan.<footnote><para>
<!-- f19 -->
See David Lange, "Recognizing the Public Domain," <citetitle>Law and
Contemporary Problems</citetitle> 44 (1981): 172–73.
Warner Brothers that the Marx Brothers "were brothers long before
you were."<footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 1–3.
+Ibid. See also Vaidhyanathan, <citetitle>Copyrights and
+Copywrongs</citetitle>, 1–3.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
-The Marx Brothers therefore owned the word <citetitle>brothers</citetitle>,
-and if Warner Brothers insisted on trying to control <citetitle>Casablanca</citetitle>, then
-the Marx Brothers would insist on control over <citetitle>brothers</citetitle>.
+The Marx Brothers therefore owned the word
+<citetitle>brothers</citetitle>, and if Warner Brothers insisted on
+trying to control <citetitle>Casablanca</citetitle>, then the Marx
+Brothers would insist on control over <citetitle>brothers</citetitle>.
</para>
<para>
An absurd and hollow threat, of course, because Warner Brothers,
(including Warner Brothers) enjoyed.
</para>
<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 machine: Increasingly, the rules of copyright law, as interpreted by
-the copyright owner, get built into the technology that delivers
- copyrighted
-content. It is code, rather than law, that rules. And the problem
-with code regulations is that, unlike law, code has no shame. Code
-would not get the humor of the Marx Brothers. The consequence of
-that is not at all funny.
+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
+machine: Increasingly, the rules of copyright law, as interpreted by
+the copyright owner, get built into the technology that delivers
+copyrighted content. It is code, rather than law, that rules. And the
+problem with code regulations is that, unlike law, code has no
+shame. Code would not get the humor of the Marx Brothers. The
+consequence of that is not at all funny.
</para>
+<indexterm startref="idxwarnerbrothers" class='endofrange'/>
+<indexterm startref="idxmarxbrothers" class='endofrange'/>
+
+<indexterm id="idxadobeebookreader" class='startofrange'>
+ <primary>Adobe eBook Reader</primary>
+</indexterm>
<para>
Consider the life of my Adobe eBook Reader.
</para>
<para>
-An e-book is a book delivered in electronic form. An Adobe eBook
-is not a book that Adobe has published; Adobe simply produces the
-software that publishers use to deliver e-books. It provides the
- technology,
-and the publisher delivers the content by using the technology.
+An e-book is a book delivered in electronic form. An Adobe eBook is
+not a book that Adobe has published; Adobe simply produces the
+software that publishers use to deliver e-books. It provides the
+technology, and the publisher delivers the content by using the
+technology.
</para>
<para>
On the next page is a picture of an old version of my Adobe eBook
Reader.
</para>
<para>
-As you can see, I have a small collection of e-books within this
+As you can see, I have a small collection of e-books within this
e-book library. Some of these books reproduce content that is in the
-public domain: <citetitle>Middlemarch</citetitle>, for example, is in the public domain.
-Some of them reproduce content that is not in the public domain: My
-own book <citetitle>The Future of Ideas</citetitle> is not yet within the public domain.
-Consider <citetitle>Middlemarch</citetitle> first. If you click on my e-book copy of
+public domain: <citetitle>Middlemarch</citetitle>, for example, is in
+the public domain. Some of them reproduce content that is not in the
+public domain: My own book <citetitle>The Future of Ideas</citetitle>
+is not yet within the public domain. Consider
+<citetitle>Middlemarch</citetitle> first. If you click on my e-book
+copy of
<!-- PAGE BREAK 160 -->
-<citetitle>Middlemarch</citetitle>, you'll see a fancy cover, and then a button at the bottom
-called Permissions.
+<citetitle>Middlemarch</citetitle>, you'll see a fancy cover, and then
+a button at the bottom called Permissions.
</para>
<figure id="fig-1611">
<title>Picture of an old version of Adobe eBook Reader</title>
<para>
Here's the e-book for another work in the public domain (including the
translation): Aristotle's <citetitle>Politics</citetitle>.
+<indexterm><primary>Aristotle</primary></indexterm>
+<indexterm><primary><citetitle>Politics</citetitle>, (Aristotle)</primary></indexterm>
</para>
<figure id="fig-1621">
<title>E-book of Aristotle;s "Politics"</title>
</figure>
<para>
Finally (and most embarrassingly), here are the permissions for the
-original e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:
+original e-book version of my last book, <citetitle>The Future of
+Ideas</citetitle>:
</para>
<!-- PAGE BREAK 162 -->
<figure id="fig-1631">
No copying, no printing, and don't you dare try to listen to this book!
</para>
<para>
-Now, the Adobe eBook Reader calls these controls "permissions"—
-as if the publisher has the power to control how you use these works.
-For works under copyright, the copyright owner certainly does have
-the power—up to the limits of the copyright law. But for work not
- under
-
copyright, there is no such copyright power.<footnote><para>
+Now, the Adobe eBook Reader calls these controls
+"permissions"— as if the publisher has the power to control how
+you use these works. For works under copyright, the copyright owner
+certainly does have the power—up to the limits of the copyright
+law. But for work not under copyright, there is no such copyright
+power.<footnote><para>
<!-- f21 -->
-In principle, a contract might impose a requirement on me. I might, for
-example, buy a book from you that includes a contract that says I will read
-it only three times, or that I promise to read it three times. But that
- obligation
-(and the limits for creating that obligation) would come from the
-contract, not from copyright law, and the obligations of contract would
-not necessarily pass to anyone who subsequently acquired the book.
+In principle, a contract might impose a requirement on me. I might,
+for example, buy a book from you that includes a contract that says I
+will read it only three times, or that I promise to read it three
+times. But that obligation (and the limits for creating that
+obligation) would come from the contract, not from copyright law, and
+the obligations of contract would not necessarily pass to anyone who
+subsequently acquired the book.
</para></footnote>
-When my e-book of <citetitle>Middlemarch</citetitle> says I have the permission to
-copy only ten text selections into the memory every ten days, what
-that really means is that the eBook Reader has enabled the publisher
-to control how I use the book on my computer, far beyond the control
-that the law would enable.
+When my e-book of <citetitle>Middlemarch</citetitle> says I have the
+permission to copy only ten text selections into the memory every ten
+days, what that really means is that the eBook Reader has enabled the
+publisher to control how I use the book on my computer, far beyond the
+control that the law would enable.
</para>
<para>
The control comes instead from the code—from the technology
world where the Marx Brothers sold word processing software that, when
you tried to type "Warner Brothers," erased "Brothers" from the
sentence.
+<indexterm><primary>Marx Brothers</primary></indexterm>
</para>
<para>
This is the future of copyright law: not so much copyright
</para>
<para>
How significant is this? Isn't it always possible to get around the
-controls built into the technology? Software used to be sold with
- technologies
-that limited the ability of users to copy the software, but those
-were trivial protections to defeat. Why won't it be trivial to defeat these
-protections as well?
+controls built into the technology? Software used to be sold with
+technologies that limited the ability of users to copy the software,
+but those were trivial protections to defeat. Why won't it be trivial
+to defeat these protections as well?
</para>
<para>
We've only scratched the surface of this story. Return to the Adobe
eBook Reader.
</para>
<para>
-Early in the life of the Adobe eBook Reader, Adobe suffered a
- public
-relations nightmare. Among the books that you could download for
-free on the Adobe site was a copy of <citetitle>Alice's Adventures in Wonderland</citetitle>.
-This wonderful book is in the public domain. Yet when you clicked on
-Permissions for that book, you got the following report:
+Early in the life of the Adobe eBook Reader, Adobe suffered a public
+relations nightmare. Among the books that you could download for free
+on the Adobe site was a copy of <citetitle>Alice's Adventures in
+Wonderland</citetitle>. This wonderful book is in the public
+domain. Yet when you clicked on Permissions for that book, you got the
+following report:
+<indexterm><primary>Alice's Adventures in Wonderland (Carroll)</primary></indexterm>
</para>
<figure id="fig-1641">
<title>List of the permissions for "Alice's Adventures in
</figure>
<para>
<!-- PAGE BREAK 164 -->
-Here was a public domain children's book that you were not
- allowed
-to copy, not allowed to lend, not allowed to give, and, as the
- "permissions"
-indicated, not allowed to "read aloud"!
+Here was a public domain children's book that you were not allowed to
+copy, not allowed to lend, not allowed to give, and, as the
+"permissions" indicated, not allowed to "read aloud"!
</para>
<para>
The public relations nightmare attached to that final permission.
control. That incentive is understandable, yet what it creates is
often crazy.
</para>
+<indexterm startref="idxadobeebookreader" class='endofrange'/>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology
-that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>," for example, had
-testified in that case that he wanted people to feel free to tape
-Mr. Rogers' Neighborhood.
+that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>,"
+for example, had testified in that case that he wanted people to feel
+free to tape Mr. Rogers' Neighborhood.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<blockquote>
<para>
<para>
This led Conrad to draw the cartoon below, which we can adopt to
the DMCA.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<para>
No argument I have can top this picture, but let me try to get close.
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>
<para>
The Aibo and RIAA examples demonstrate how copyright owners are
one step before the state started issuing tickets based upon the data you
transmitted. That is, in effect, what is happening here.
</para>
-</sect2>
-<sect2 id="marketconcentration">
+</section>
+<section id="marketconcentration">
<title>Market: Concentration</title>
<para>
So copyright's duration has increased dramatically—tripled in
<para>
Murdoch's companies now constitute a production system
unmatched in its integration. They supply content—Fox movies
-. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus
+… Fox TV shows … Fox-controlled sports broadcasts, plus
newspapers and books. They sell the content to the public and to
advertisers—in newspapers, on the broadcast network, on the
cable channels. And they operate the physical distribution system
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>ABC</primary></indexterm>
<indexterm><primary>Comcast</primary></indexterm>
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
+<indexterm><primary>NBC</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
+<indexterm><primary>WRC</primary></indexterm>
</para></footnote>
</para>
<para>
selects. But you should not like a world in which a mere few get to
decide which issues the rest of us get to know about.
</para>
-</sect2>
-<sect2 id="together">
+</section>
+<section id="together">
<title>Together</title>
<para>
There is something innocent and obvious about the claim of the
</para>
<table id="t2">
-<title></title>
+<title>Law status in 1790</title>
<tgroup cols="3" align="char">
<thead>
<row>
</para>
<table id="t3">
-<title></title>
+<title>Law status at the end of ninetheenth centory</title>
<tgroup cols="3" align="char">
<thead>
<row>
</para>
<table id="t4">
-<title></title>
+<title>Law status in 1975</title>
<tgroup cols="3" align="char">
<thead>
<row>
</para>
<table id="t5">
-<title></title>
+<title>Law status now</title>
<tgroup cols="3" align="char">
<thead>
<row>
But I also have no doubt that it does more harm than good when
regulating (as it regulates just now) noncommercial copying and,
especially, noncommercial transformation. And increasingly, for the
-reasons sketched especially in chapters 7 and 8, one might well wonder
-whether it does more harm than good for commercial transformation.
-More commercial transformative work would be created if derivative
-rights were more sharply restricted.
+reasons sketched especially in chapters
+<xref xrefstyle="select: labelnumber" linkend="recorders"/> and
+<xref xrefstyle="select: labelnumber" linkend="transformers"/>, one
+might well wonder whether it does more harm than good for commercial
+transformation. More commercial transformative work would be created
+if derivative rights were more sharply restricted.
</para>
<para>
The issue is therefore not simply whether copyright is property. Of
lawyer.
</para>
<!-- PAGE BREAK 185 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-puzzles">
+</part>
+<part id="c-puzzles">
<title>PUZZLES</title>
-<para></para>
+
<!-- PAGE BREAK 186 -->
-<sect1 id="chimera">
+<chapter id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
<indexterm id="idxchimera" class='startofrange'>
<primary>chimeras</primary>
</para>
<para>
"What affects it?" the father asks. "Those queer things that are
-called the eyes . . . are diseased . . . in such a way as to affect
+called the eyes … are diseased … in such a way as to affect
his brain."
</para>
<para>
<!-- PAGE BREAK 188 -->
plot for murder mysteries. "But the DNA shows with 100 percent
certainty that she was not the person whose blood was at the
-scene. . . ."
+scene. …"
</para>
<indexterm startref="idxtcotb" class='endofrange'/>
<indexterm startref="idxwells" class="endofrange"/>
identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
Name Students," <citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Conyers, John, Jr.</primary></indexterm>
<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
</para>
<!-- PAGE BREAK 192 -->
-</sect1>
-<sect1 id="harms">
+</chapter>
+<chapter id="harms">
<title>CHAPTER TWELVE: Harms</title>
<para>
first two protect modern RCAs, but there is no Howard Armstrong in
the wings to fight today's monopolists of culture.
</para>
-<sect2 id="constrain">
+<section id="constrain">
<title>Constraining Creators</title>
<para>
In the next ten years we will see an explosion of digital
</para>
<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 10. But an
+changing law. I described that change in detail in chapter
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>. But an
even bigger part has to do with the increasing ease with which
infractions can be tracked. As users of file-sharing systems
discovered in 2002, it is a trivial matter for copyright owners to get
</para>
<para>
Lawyers rarely see this because lawyers are rarely empirical. As I
-described in chapter 7, in response to the story about documentary
-filmmaker Jon Else, I have been lectured again and again by lawyers
-who insist Else's use was fair use, and hence I am wrong to say that the
-law regulates such a use.
+described in chapter
+<xref xrefstyle="select: labelnumber" linkend="recorders"/>, in
+response to the story about documentary filmmaker Jon Else, I have
+been lectured again and again by lawyers who insist Else's use was
+fair use, and hence I am wrong to say that the law regulates such a
+use.
</para>
<para>
We're losing [creative] opportunities right and left. Creative people
are being forced not to express themselves. Thoughts are not being
expressed. And while a lot of stuff may [still] be created, it still
-won't get distributed. Even if the stuff gets made . . . you're not
+won't get distributed. Even if the stuff gets made … you're not
going to get it distributed in the mainstream media unless
<!-- PAGE BREAK 197 -->
you've got a little note from a lawyer saying, "This has been
permission. That's the point at which they control it.
</para>
</blockquote>
-</sect2>
-<sect2 id="innovators">
+</section>
+<section id="innovators">
<title>Constraining Innovators</title>
<para>
The story of the last section was a crunchy-lefty
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
-strategy that I described in chapter 10. The consequence of this
-massive threat of liability tied to the murky boundaries of copyright
-law is that innovators who want to innovate in this space can safely
-innovate only if they have the sign-off from last generation's
-dominant industries. That lesson has been taught through a series of
-cases that were designed and executed to teach venture capitalists a
+strategy that I described in chapter <xref xrefstyle="select:
+labelnumber" linkend="property-i"/>. The consequence of this massive
+threat of liability tied to the murky boundaries of copyright law is
+that innovators who want to innovate in this space can safely innovate
+only if they have the sign-off from last generation's dominant
+industries. That lesson has been taught through a series of cases
+that were designed and executed to teach venture capitalists a
lesson. That lesson—what former Napster CEO Hank Barry calls a
"nuclear pall" that has fallen over the Valley—has been learned.
</para>
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
forward for release stateside. Even today, no new cars are sold in the
-United States with bona fide MP3 players. . . . <footnote>
+United States with bona fide MP3 players. … <footnote>
<para>
<!-- f5. -->
Rafe Needleman, "Driving in Cars with MP3s," <citetitle>Business 2.0</citetitle>, 16 June
wrong, it is regulation the powerful use to defeat competitors.
</para>
<para>
-As I described in chapter 10, despite this feature of copyright as
-regulation, and subject to important qualifications outlined by Jessica
-Litman in her book <citetitle>Digital Copyright</citetitle>,<footnote><para>
-<!-- f9. --> Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: Prometheus Books,
-2001).
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, despite this feature of copyright as
+regulation, and subject to important qualifications outlined by
+Jessica Litman in her book <citetitle>Digital
+Copyright</citetitle>,<footnote><para>
+<!-- f9. -->
+Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst,
+N.Y.: Prometheus Books, 2001).
+<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
overall this history of copyright
is not bad. As chapter 10 details, when new technologies have come
<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
-recorded a version of "Happy Birthday"—to memorialize her famous
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="pirates"/>, 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 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
Marilyn Monroe would not.
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The reasoning behind this balance struck by Congress makes some
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
+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
pay to a willing seller, and it was much higher. It was ten times
higher than what radio stations pay to perform the same songs for
the same period of time. And so the attorneys representing the
-webcasters asked the RIAA, . . . "How do you come up with a
+webcasters asked the RIAA, … "How do you come up with a
<!-- PAGE BREAK 208 -->
rate that's so much higher? Why is it worth more than radio?
here we have hundreds of thousands of webcasters who
want to pay, and that should establish the market rate, and if you
set the rate so high, you're going to drive the small webcasters out
-of business. . . ."
+of business. …"
</para>
<para>
And the RIAA experts said, "Well, we don't really model this as an
practically no one, on either the right or the left, who is doing anything
effective to prevent it.
</para>
-</sect2>
-<sect2 id="corruptingcitizens">
+</section>
+<section id="corruptingcitizens">
<title>Corrupting Citizens</title>
<para>
Overregulation stifles creativity. It smothers innovation. It gives
We pride ourselves on our "free society," but an endless array of
ordinary behavior is regulated within our society. And as a result, a
huge proportion of Americans regularly violate at least some law.
+<indexterm><primary>alcohol prohibition</primary></indexterm>
</para>
<para>
This state of affairs is not without consequence. It is a particularly
<blockquote>
<para>
then all of a sudden a lot of basic civil liberty protections
-evaporate to one degree or another. . . . If you're a copyright
+evaporate to one degree or another. … If you're a copyright
infringer, how can you hope to have any privacy rights? If you're a
copyright infringer, how can you hope to be secure against seizures of
your computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh, well,
+access? … Our sensibilities change as soon as we think, "Oh, well,
but that person's a criminal, a lawbreaker." Well, what this campaign
against file sharing has done is turn a remarkable percentage of the
American Internet-using population into "lawbreakers."
have noted that the war against drugs has eroded all of our civil
liberties because it's treated so many Americans as criminals. Well, I
think it's fair to say that file sharing is an order of magnitude
-larger number of Americans than drug use. . . . If forty to sixty
+larger number of Americans than drug use. … If forty to sixty
million Americans have become lawbreakers, then we're really on a
slippery slope to lose a lot of civil liberties for all forty to sixty
million of them.
</para>
<!-- PAGE BREAK 217 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-balances">
+</part>
+<part id="c-balances">
<title>BALANCES</title>
+<partintro>
<!-- PAGE BREAK 218 -->
<para>
debate. We must understand these failures if we're to understand what
success will require.
</para>
+</partintro>
<!-- PAGE BREAK 220 -->
-<sect1 id="eldred">
+<chapter id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
<para>
In 1995, a father was frustrated that his daughters didn't seem to
</para>
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
-collection of poems <citetitle>New Hampshire</citetitle> was slated to pass into the public
-domain. Eldred wanted to post that collection in his free public
-library. But Congress got in the way. As I described in chapter 10,
-in 1998, for the eleventh time in forty years, Congress extended the
-terms of existing copyrights—this time by twenty years. Eldred
-would not be free to add any works more recent than 1923 to his
-collection until 2019. Indeed, no copyrighted work would pass into
-the public domain until that year (and not even then, if Congress
-extends the term again). By contrast, in the same period, more than 1
-million patents will pass into the public domain.
+collection of poems <citetitle>New Hampshire</citetitle> was slated to
+pass into the public domain. Eldred wanted to post that collection in
+his free public library. But Congress got in the way. As I described
+in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, in 1998, for the eleventh time in forty years,
+Congress extended the terms of existing copyrights—this time by
+twenty years. Eldred would not be free to add any works more recent
+than 1923 to his collection until 2019. Indeed, no copyrighted work
+would pass into the public domain until that year (and not even then,
+if Congress extends the term again). By contrast, in the same period,
+more than 1 million patents will pass into the public domain.
</para>
<para>
</para>
<blockquote>
<para>
-Congress has the power to promote the Progress of Science . . .
-by securing for limited Times to Authors . . . exclusive Right to
-their . . . Writings. . . .
+Congress has the power to promote the Progress of Science …
+by securing for limited Times to Authors … exclusive Right to
+their … Writings. …
</para>
</blockquote>
<para>
granting power to Congress simply says Congress has the power to do
something—for example, to regulate "commerce among the several
states" or "declare War." But here, the "something" is something quite
-specific—to "promote . . . Progress"—through means that
+specific—to "promote … Progress"—through means that
are also specific— by "securing" "exclusive Rights" (i.e.,
copyrights) "for limited Times."
</para>
system, our law requires it. Some may not like the Constitution's
requirements, but that doesn't make the Constitution a pirate's
charter.
+<indexterm><primary>Nashville Songwriters Association</primary></indexterm>
</para>
<para>
As we've seen, our constitutional system requires limits on
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>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
<indexterm><primary>Eagle Forum</primary></indexterm>
</para>
<para>
argument, there were a number of powerful briefs by libraries and
archives, including the Internet Archive, the American Association of
Law Libraries, and the National Writers Union.
+<indexterm><primary>American Association of Law Libraries</primary></indexterm>
+<indexterm><primary>National Writers Union</primary></indexterm>
</para>
<para>
But two briefs captured the policy argument best. One made the
<para>
The best responses were in the cartoons. There was a gaggle of
hilarious images—of Mickey in jail and the like. The best, from
-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.
+my view of the case, was Ruben Bolling's, reproduced on the next page
+(<xref linkend="fig-18"/>). 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>
+<figure id="fig-18">
+<title>Tom the Dancing Bug cartoon</title>
+<graphic fileref="images/18.png"></graphic>
+</figure>
<para>
The image that will always stick in my head is that evoked by the
quote from <citetitle>The New York Times</citetitle>. That "grand experiment" we call the
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
-</sect1>
-<sect1 id="eldred-ii">
+</chapter>
+<chapter 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
<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
-As I described in chapter 10, formalities in copyright law were
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, formalities in copyright law were
removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
<!-- f1. -->
content. It would simply liberate what Kevin Kelly calls the "Dark
Content" 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?
controlled by this dead (and often unfindable) hand of the past.
</para>
<!-- PAGE BREAK 264 -->
-</sect1>
</chapter>
+</part>
<chapter id="c-conclusion">
<title>CONCLUSION</title>
<para>
permitted within the European Union.<footnote>
<para>
<!-- f2. -->
-See Peter Drahos with John Braithwaite, Information Feudalism: <citetitle>Who
+See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: Who
Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), 37.
<indexterm><primary>Braithwaite, John</primary></indexterm>
<indexterm><primary>Drahos, Peter</primary></indexterm>
<para>
However, the United States government opposed the bill. Indeed, more
than opposed. As the International Intellectual Property Association
-characterized it, "The U.S. government pressured South Africa . . .
+characterized it, "The U.S. government pressured South Africa …
not to permit compulsory licensing or parallel
imports."<footnote><para>
<!-- f3. -->
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>academic journals</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
+<indexterm><primary>"copyleft" licenses</primary></indexterm>
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
More important for our purposes, to support "open source and free
Eminem has just been sued for "sampling" someone else's
music.<footnote><para>
<!-- f12. -->
-Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+Jon Wiederhorn, "Eminem Gets Sued … by a Little Old Lady,"
mtv.com, 17 September 2003, available at
<ulink url="http://free-culture.cc/notes/">link #68</ulink>.
</para></footnote>
</para>
<!-- PAGE BREAK 281 -->
-<sect1 id="usnow">
+<section id="usnow">
<title>US, NOW</title>
<para>
Common sense is with the copyright warriors because the debate so far
before.
</para>
-<sect2 id="examples">
+<section id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
If you step back from the battle I've been describing here, you will
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture
-for gathering data and hence a market constraint (cost) on anyone who
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>, your
+privacy was assured because of an inefficient architecture for
+gathering data and hence a market constraint (cost) on anyone who
wanted to gather that data. If you were a suspected spy for North
Korea, working for the CIA, no doubt your privacy would not be
assured. But that's because the CIA would (we hope) find it valuable
and the function of cookies on the Net, it is easier to collect the
data than not. The friction has disappeared, and hence any "privacy"
protected by the friction disappears, too.
+<indexterm><primary>cookies, Internet</primary></indexterm>
</para>
<para>
Amazon, of course, is not the problem. But we might begin to worry
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
Stallman's technique was to use copyright law to build a world of
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>
<para>
As digital technologies develop, it is becoming obvious to many that
printing thousands of copies of journals every month and sending them
presumptively a good—especially when it helps spread knowledge
and science.
</para>
+<indexterm startref="idxacademocjournals" class='endofrange'/>
-</sect2>
-<sect2 id="oneidea">
+</section>
+<section id="oneidea">
<title>Rebuilding Free Culture: One Idea</title>
<indexterm id="idxcc" class='startofrange'>
<primary>Creative Commons</primary>
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>
<para>
These are examples of using the Commons to better spread proprietary
<indexterm startref="idxcc" class='endofrange'/>
<!-- PAGE BREAK 292 -->
-</sect2>
-</sect1>
-<sect1 id="themsoon">
+</section>
+</section>
+<section id="themsoon">
<title>THEM, SOON</title>
<para>
We will not reclaim a free culture by individual action alone. It will
to our end.
</para>
-<sect2 id="formalities">
+<section id="formalities">
<title>1. More Formalities</title>
<para>
If you buy a house, you have to record the sale in a deed. If you buy land
Why?
</para>
<para>
-As I suggested in chapter 10, the motivation to abolish formalities
-was a good one. In the world before digital technologies, formalities
+As I suggested in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, the motivation to abolish formalities was a
+good one. In the world before digital technologies, formalities
imposed a burden on copyright holders without much benefit. Thus, it
was progress when the law relaxed the formal requirements that a
copyright owner must bear to protect and secure his work. Those
<!-- PAGE BREAK 294 -->
-<sect3 id="registration">
+<section id="registration">
<title>REGISTRATION AND RENEWAL</title>
<para>
Under the old system, a copyright owner had to file a registration
of registrations that would facilitate the licensing of content.
</para>
-</sect3>
-<sect3 id="marking">
+</section>
+<section id="marking">
<title>MARKING</title>
<para>
It used to be that the failure to include a copyright notice on a
</para>
<!-- PAGE BREAK 297 -->
-</sect3>
-</sect2>
-<sect2 id="shortterms">
+</section>
+</section>
+<section id="shortterms">
<title>2. Shorter Terms</title>
<para>
The term of copyright has gone from fourteen years to ninety-five
<!-- PAGE BREAK 299 -->
-</sect2>
-<sect2 id="freefairuse">
+</section>
+<section id="freefairuse">
<title>3. Free Use Vs. Fair Use</title>
<para>
As I observed at the beginning of this book, property law originally
The courts have expanded it slowly through judicial interpretation
ever since. This expansion has been commented upon by one of the law's
greatest judges, Judge Benjamin Kaplan.
+<indexterm><primary>Kaplan, Benjamin</primary></indexterm>
</para>
<blockquote>
<para>
a great deal of culture to others to cultivate. And under a statutory
rights regime, that reuse would earn artists more income.
</para>
-</sect2>
+</section>
-<sect2 id="liberatemusic">
+<section id="liberatemusic">
<title>4. Liberate the Music—Again</title>
<para>
The battle that got this whole war going was about music, so it
work, and to a performing artist to control copies of her performance.
</para>
<para>
-File-sharing networks complicate this model by enabling the
-spread of content for which the performer has not been paid. But of
-course, that's not all the file-sharing networks do. As I described in
-chapter 5, they enable four different kinds of sharing:
+File-sharing networks complicate this model by enabling the spread of
+content for which the performer has not been paid. But of course,
+that's not all the file-sharing networks do. As I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="piracy"/>, they enable
+four different kinds of sharing:
</para>
<orderedlist numeration="upperalpha">
<listitem><para>
significantly weakened.
</para>
<para>
-As I said in chapter 5, the actual harm caused by sharing is
+As I said in chapter <xref xrefstyle="select: labelnumber"
+linkend="piracy"/>, the actual harm caused by sharing is
controversial. For the purposes of this chapter, however, I assume
the harm is real. I assume, in other words, that type A sharing is
significantly greater than type B, and is the dominant use of sharing
should be on how to make sure the artists are paid, while protecting
the space for innovation and creativity that the Internet is.
</para>
-</sect2>
+</section>
-<sect2 id="firelawyers">
+<section id="firelawyers">
<title>5. Fire Lots of Lawyers</title>
<para>
I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
keep your lawyers away.
</para>
<!-- PAGE BREAK 312 -->
-</sect2>
-</sect1>
+</section>
+</section>
</chapter>
<chapter id="c-notes">
<title>NOTES</title>
<!-- PAGE BREAK 338 -->
</chapter>
+<index></index>
</book>
projects / text-free-culture-lessig.git / blobdiff