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<para>
LAWRENCE LESSIG
(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
-professor of law and a John A. Wilson Distinguished Faculty Scholar
+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>).
<!-- PAGE BREAK 3 -->
<para>
ALSO BY LAWRENCE LESSIG
-<sbr/>The Future of Ideas: The Fate of the Commons
+</para>
+<para>
+The Future of Ideas: The Fate of the Commons
in a Connected World
-<sbr/>Code: And Other Laws of Cyberspace
+</para>
+<para>
+Code: And Other Laws of Cyberspace
</para>
<!-- PAGE BREAK 4 -->
<para>
THE PENGUIN PRESS
-<sbr/>NEW YORK
+</para>
+<para>
+NEW YORK
</para>
<!-- PAGE BREAK 5 -->
<para>
FREE CULTURE
-<sbr/>HOW BIG MEDIA USES TECHNOLOGY AND THE
+</para>
+
+<para>
HOW BIG MEDIA USES TECHNOLOGY AND
-LAW TO LOCK DOWN CULTURE AND CONTROL
THE LAW TO LOCK DOWN CULTURE
-CREATIVITY
AND CONTROL CREATIVITY
-<sbr/>LAWRENCE LESSIG
+</para>
+
+<para>
+LAWRENCE LESSIG
</para>
<!-- PAGE BREAK 6 -->
<para>
THE PENGUIN PRESS
-<sbr/>a member of Penguin Group (USA) Inc. 375 Hudson Street New
+</para>
+<para>
+a member of Penguin Group (USA) Inc. 375 Hudson Street New
York, New York
-<sbr/>Copyright © Lawrence Lessig,
-<sbr/>All rights reserved
-<sbr/>Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
+</para>
+<para>
+Copyright © Lawrence Lessig,
+</para>
+<para>
+All rights reserved
+</para>
+<para>
+Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co.
Reprinted with permission.
-<sbr/>Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
-<sbr/>All rights reserved. Reprinted with permission.
-<sbr/>Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
-<sbr/>Library of Congress Cataloging-in-Publication Data
-<sbr/>Lessig, Lawrence.
+</para>
+<para>
+Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
+</para>
+<para>
+All rights reserved. Reprinted with permission.
+</para>
+<para>
+Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
+</para>
+<para>
+Library of Congress Cataloging-in-Publication Data
+</para>
+<para>
+Lessig, Lawrence.
Free culture : how big media uses technology and the law to lock down
culture and control creativity / Lawrence Lessig.
-<sbr/>p. cm.
-<sbr/>Includes index.
-<sbr/>ISBN 1-59420-006-8 (hardcover)
-<sbr/>1. Intellectual property—United States. 2. Mass media—United States.
-<sbr/>3. Technological innovations—United States. 4. Art—United States. I. Title.
-<sbr/>KF2979.L47
-<sbr/>343.7309'9—dc22
-<sbr/>This book is printed on acid-free paper.
-<sbr/>Printed in the United States of America
-<sbr/>1 3 5 7 9 10 8 6 4
-<sbr/>Designed by Marysarah Quinn
+</para>
+<para>
+p. cm.
+</para>
+<para>
+Includes index.
+</para>
+<para>
+ISBN 1-59420-006-8 (hardcover)
+</para>
+<para>
+1. Intellectual property—United States. 2. Mass media—United States.
+</para>
+<para>
+3. Technological innovations—United States. 4. Art—United States. I. Title.
+</para>
+<para>
+KF2979.L47
+</para>
+<para>
+343.7309'9—dc22
+</para>
+<para>
+This book is printed on acid-free paper.
+</para>
+<para>
+Printed in the United States of America
+</para>
+<para>
+1 3 5 7 9 10 8 6 4
+</para>
+<para>
+Designed by Marysarah Quinn
+</para>
+
+<para>
+&translationblock;
</para>
<para>
it continues still.
</para>
-<para>&translationblock;</para>
-
<figure id="CreativeCommons">
<title>Creative Commons, Some rights reserved</title>
<graphic fileref="images/cc.png"></graphic>
</para>
</blockquote>
<para>
-Pogue was skeptical of the core argument of the book—that
- software,
-or "code," functioned as a kind of law—and his review suggested
-the happy thought that if life in cyberspace got bad, we could always
-"drizzle, drazzle, druzzle, drome"-like simply flip a switch and be back
-home. Turn off the modem, unplug the computer, and any troubles
-that exist in that space wouldn't "affect" us anymore.
+Pogue was skeptical of the core argument of the book—that
+software, or "code," functioned as a kind of law—and his review
+suggested the happy thought that if life in cyberspace got bad, we
+could always "drizzle, drazzle, druzzle, drome"-like simply flip a
+switch and be back home. Turn off the modem, unplug the computer, and
+any troubles that exist in that space wouldn't "affect" us anymore.
</para>
<para>
Pogue might have been right in 1999—I'm skeptical, but maybe.
That tradition is the way our culture gets made. As I explain in the
pages that follow, we come from a tradition of "free culture"—not
"free" as in "free beer" (to borrow a phrase from the founder of the
-freesoftware movement<footnote>
+free software movement<footnote>
<para>
Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002).
</para></footnote>), but "free" as in "free speech," "free markets," "free
changes I describe affect values that both sides of our political
culture deem fundamental.
</para>
+<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<para>
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
</para>
<para>
I accept that criticism, if indeed it is a criticism. The work of a
-lawyer is always derivative, and I mean to do nothing more in this book
-than to remind a culture about a tradition that has always been its own.
-Like Stallman, I defend that tradition on the basis of values. Like
-Stallman, I believe those are the values of freedom. And like Stallman,
-I believe those are values of our past that will need to be defended in
-our future. A free culture has been our past, but it will only be our
- future
-if we change the path we are on right now.
-xv
+lawyer is always derivative, and I mean to do nothing more in this
+book than to remind a culture about a tradition that has always been
+its own. Like Stallman, I defend that tradition on the basis of
+values. Like Stallman, I believe those are the values of freedom. And
+like Stallman, I believe those are values of our past that will need
+to be defended in our future. A free culture has been our past, but it
+will only be our future if we change the path we are on right now.
+
<!-- PAGE BREAK 14 -->
Like Stallman's arguments for free software, an argument for free
culture stumbles on a confusion that is hard to avoid, and even harder
what I advance here.
</para>
<para>
-Instead, the free culture that I defend in this book is a balance
- between
-anarchy and control. A free culture, like a free market, is filled
-with property. It is filled with rules of property and contract that get
-enforced by the state. But just as a free market is perverted if its
- property
-becomes feudal, so too can a free culture be queered by extremism
-in the property rights that define it. That is what I fear about our
- culture
-today. It is against that extremism that this book is written.
+Instead, the free culture that I defend in this book is a balance
+between anarchy and control. A free culture, like a free market, is
+filled with property. It is filled with rules of property and contract
+that get enforced by the state. But just as a free market is perverted
+if its property becomes feudal, so too can a free culture be queered
+by extremism in the property rights that define it. That is what I
+fear about our culture today. It is against that extremism that this
+book is written.
</para>
</chapter>
to enter into an exclusive license with Delta Airlines? Could we
set up an auction to decide how much these rights are worth?
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
In 1945, these questions became a federal case. When North Carolina
farmers Thomas Lee and Tinie Causby started losing chickens
extent, upwards," then the government was trespassing on their
property, and the Causbys wanted it to stop.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the public
interest, and transfer into private ownership that to which only
-the public has a just claim.<footnote><para>
-United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that
-there could be a "taking" if the government's use of its land effectively
- destroyed
-the value of the Causbys' land. This example was suggested to me
-by Keith Aoki's wonderful piece, "(Intellectual) Property and Sovereignty:
-Notes Toward a Cultural Geography of Authorship," Stanford Law
- Review
-48 (1996): 1293, 1333. See also Paul Goldstein, Real Property
- (Mineola,
-N.Y.: Foundation Press, 1984), 1112–13.
+the public has a just claim.<footnote>
+<para>
+United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
+that there could be a "taking" if the government's use of its land
+effectively destroyed the value of the Causbys' land. This example was
+suggested to me by Keith Aoki's wonderful piece, "(Intellectual)
+Property and Sovereignty: Notes Toward a Cultural Geography of
+Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul
+Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984),
+1112–13.
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
</para></footnote>
</para>
</blockquote>
technologies of the time. And as it adjusts, it changes. Ideas that were
as solid as rock in one age crumble in another.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
Or at least, this is how things happen when there's no one powerful
on the other side of the change. The Causbys were just farmers. And
much less transmitter power and static.
</para>
<para>
-On November 5, 1935, he demonstrated the technology at a meeting
-of the Institute of Radio Engineers at the Empire State Building in
-New York City. He tuned his radio dial across a range of AM stations,
-until the radio locked on a broadcast that he had arranged from
- seventeen
-miles away. The radio fell totally silent, as if dead, and then with a
-clarity no one else in that room had ever heard from an electrical
- device,
-it produced the sound of an announcer's voice: "This is amateur
-station W2AG at Yonkers, New York, operating on frequency
- modulation
-at two and a half meters."
+On November 5, 1935, he demonstrated the technology at a meeting of
+the Institute of Radio Engineers at the Empire State Building in New
+York City. He tuned his radio dial across a range of AM stations,
+until the radio locked on a broadcast that he had arranged from
+seventeen miles away. The radio fell totally silent, as if dead, and
+then with a clarity no one else in that room had ever heard from an
+electrical device, it produced the sound of an announcer's voice:
+"This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters."
</para>
<para>
The audience was hearing something no one had thought possible:
<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 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 live-ness rarely if ever heard before from a radio
-"music box."<footnote><para>
+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
+live-ness rarely if ever heard before from a radio "music
+box."<footnote><para>
Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
</para>
</blockquote>
<para>
-As our own common sense tells us, Armstrong had discovered a
-vastly superior radio technology. But at the time of his invention,
- Armstrong
-was working for RCA. RCA was the dominant player in the
-then dominant AM radio market. By 1935, there were a thousand radio
-stations across the United States, but the stations in large cities were all
-owned by a handful of networks.
+As our own common sense tells us, Armstrong had discovered a vastly
+superior radio technology. But at the time of his invention, Armstrong
+was working for RCA. RCA was the dominant player in the then dominant
+AM radio market. By 1935, there were a thousand radio stations across
+the United States, but the stations in large cities were all owned by
+a handful of networks.
<!-- PAGE BREAK 20 -->
</para>
<para>
<blockquote>
<para>
I thought Armstrong would invent some kind of a filter to remove
-static from our AM radio. I didn't think he'd start a revolution—
-start up a whole damn new industry to compete with RCA.<footnote><para>
-See "Saints: The Heroes and Geniuses of the Electronic Era," First
- Electronic
-Church of America, at www.webstationone.com/fecha, available at
+static from our AM radio. I didn't think he'd start a
+revolution— start up a whole damn new industry to compete with
+RCA.<footnote><para> See "Saints: The Heroes and Geniuses of the
+Electronic Era," First Electronic Church of America, at
+www.webstationone.com/fecha, available at
<ulink url="http://free-culture.cc/notes/">link #1</ulink>.
</para></footnote>
The series of body blows that FM radio received right after the
war, in a series of rulings manipulated through the FCC by the
big radio interests, were almost incredible in their force and
-
deviousness.<footnote><para>
+deviousness.<footnote><para>
Lessing, 256.
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
FM radio users were to be moved to a totally new spectrum band. The
least temporarily.
</para>
<para>
-Armstrong resisted RCA's efforts. In response, RCA resisted
- Armstrong's
-patents. After incorporating FM technology into the emerging
-standard for television, RCA declared the patents invalid—baselessly,
-and almost fifteen years after they were issued. It thus refused to pay
-him royalties. For six years, Armstrong fought an expensive war of
- litigation
-to defend the patents. Finally, just as the patents expired, RCA
-offered a settlement so low that it would not even cover Armstrong's
-lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong
-wrote a short note to his wife and then stepped out of a
- thirteenth-story
-window to his death.
+Armstrong resisted RCA's efforts. In response, RCA resisted
+Armstrong's patents. After incorporating FM technology into the
+emerging standard for television, RCA declared the patents
+invalid—baselessly, and almost fifteen years after they were
+issued. It thus refused to pay him royalties. For six years, Armstrong
+fought an expensive war of litigation to defend the patents. Finally,
+just as the patents expired, RCA offered a settlement so low that it
+would not even cover Armstrong's lawyers' fees. Defeated, broken, and
+now broke, in 1954 Armstrong wrote a short note to his wife and then
+stepped out of a thirteenth-story window to his death.
</para>
<para>
This is how the law sometimes works. Not often this tragically, and
-rarely with heroic drama, but sometimes, this is how it works. From the
-beginning, government and government agencies have been subject
-to capture. They are more likely captured when a powerful interest is
-threatened by either a legal or technical change. That powerful interest
-too often exerts its influence within the government to get the
- government
-to protect it. The rhetoric of this protection is of course always
-public spirited; the reality is something different. Ideas that were as
-solid as rock in one age, but that, left to themselves, would crumble in
+rarely with heroic drama, but sometimes, this is how it works. From
+the beginning, government and government agencies have been subject to
+capture. They are more likely captured when a powerful interest is
+threatened by either a legal or technical change. That powerful
+interest too often exerts its influence within the government to get
+the government to protect it. The rhetoric of this protection is of
+course always public spirited; the reality is something
+different. Ideas that were as solid as rock in one age, but that, left
+to themselves, would crumble in
<!-- PAGE BREAK 22 -->
another, are sustained through this subtle corruption of our political
-process. RCA had what the Causbys did not: the power to stifle the
- effect
-of technological change.
+process. RCA had what the Causbys did not: the power to stifle the
+effect of technological change.
</para>
<para>
-There's no single inventor of the Internet. Nor is there any good
-date upon which to mark its birth. Yet in a very short time, the
- Internet
+There's no single inventor of the Internet. Nor is there any good date
+upon which to mark its birth. Yet in a very short time, the Internet
has become part of ordinary American life. According to the Pew
-Internet and American Life Project, 58 percent of Americans had
- access
-
to the Internet in 2002, up from 49 percent two years before.<footnote><para>
-Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look
-at Internet Access and the Digital Divide," Pew Internet and American
-Life Project, 15 April 2003: 6, available at
+Internet and American Life Project, 58 percent of Americans had access
+to the Internet in 2002, up from 49 percent two years
+before.<footnote><para>
+Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at
+Internet Access and the Digital Divide," Pew Internet and American
+Life Project, 15 April 2003: 6, available at
<ulink url="http://free-culture.cc/notes/">link #2</ulink>.
</para></footnote>
That number could well exceed two thirds of the nation by the end
the Internet. But this is not a book about the Internet.
</para>
<para>
-Instead, this book is about an effect of the Internet beyond the
- Internet
-itself: an effect upon how culture is made. My claim is that the
-Internet has induced an important and unrecognized change in that
-process. That change will radically transform a tradition that is as old as
-the Republic itself. Most, if they recognized this change, would reject
-it. Yet most don't even see the change that the Internet has introduced.
+Instead, this book is about an effect of the Internet beyond the
+Internet itself: an effect upon how culture is made. My claim is that
+the Internet has induced an important and unrecognized change in that
+process. That change will radically transform a tradition that is as
+old as the Republic itself. Most, if they recognized this change,
+would reject it. Yet most don't even see the change that the Internet
+has introduced.
</para>
<para>
We can glimpse a sense of this change by distinguishing between
-commercial and noncommercial culture, and by mapping the law's
- regulation
-of each. By "commercial culture" I mean that part of our culture
-that is produced and sold or produced to be sold. By "noncommercial
-culture" I mean all the rest. When old men sat around parks or on
+commercial and noncommercial culture, and by mapping the law's
+regulation of each. By "commercial culture" I mean that part of our
+culture that is produced and sold or produced to be sold. By
+"noncommercial culture" I mean all the rest. When old men sat around
+parks or on
<!-- PAGE BREAK 23 -->
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.
+noncommercial culture. When Noah Webster published his "Reader," or
+Joel Barlow his poetry, that was commercial culture.
</para>
<para>
At the beginning of our history, and for just about the whole of our
tradition, noncommercial culture was essentially unregulated. Of
-course, if your stories were lewd, or if your song disturbed the peace,
-then the law might intervene. But the law was never directly concerned
-with the creation or spread of this form of culture, and it left this
- culture
-"free." The ordinary ways in which ordinary individuals shared and
-transformed their culture—telling stories, reenacting scenes from plays
-or TV, participating in fan clubs, sharing music, making tapes—were
-left alone by the law.
+course, if your stories were lewd, or if your song disturbed the
+peace, then the law might intervene. But the law was never directly
+concerned with the creation or spread of this form of culture, and it
+left this culture "free." The ordinary ways in which ordinary
+individuals shared and transformed their culture—telling
+stories, reenacting scenes from plays or TV, participating in fan
+clubs, sharing music, making tapes—were left alone by the law.
</para>
<para>
The focus of the law was on commercial creativity. At first slightly,
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial
-marketplace.<footnote><para>
+marketplace.<footnote>
+<para>
This is not the only purpose of copyright, though it is the overwhelmingly
-primary purpose of the copyright established in the federal constitution.
+primary purpose of the copyright established in the federal constitution.
State copyright law historically protected not just the commercial interest in
publication, but also a privacy interest. By granting authors the exclusive
right to first publication, state copyright law gave authors the power to
control the spread of facts about them. See Samuel D. Warren and Louis
D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193,
198–200.
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</para></footnote>
-This is also, of
-course, an important part of creativity and culture, and it has become
-an increasingly important part in America. But in no sense was it
- dominant
-within our tradition. It was instead just one part, a controlled
-part, balanced with the free.
+This is also, of course, an important part of creativity and culture,
+and it has become an increasingly important part in America. But in no
+sense was it dominant within our tradition. It was instead just one
+part, a controlled part, balanced with the free.
</para>
<para>
This rough divide between the free and the controlled has now
See Jessica Litman, Digital Copyright (New York: Prometheus Books,
2001), ch. 13.
</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 tradition, the ordinary ways in which individuals create and share
-culture fall within the reach of the regulation of the law, which has
- expanded
-to draw within its control a vast amount of culture and
- creativity
-that it never reached before. The technology that preserved the
-balance of our history—between uses of our culture that were free and
-uses of our culture that were only upon permission—has been undone.
-The consequence is that we are less and less a free culture, more and
-more a permission culture.
+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
+tradition, the ordinary ways in which individuals create and share
+culture fall within the reach of the regulation of the law, which has
+expanded to draw within its control a vast amount of culture and
+creativity that it never reached before. The technology that preserved
+the balance of our history—between uses of our culture that were
+free and uses of our culture that were only upon permission—has
+been undone. The consequence is that we are less and less a free
+culture, more and more a permission culture.
</para>
<!-- PAGE BREAK 24 -->
<para>
-This change gets justified as necessary to protect commercial
- creativity.
-And indeed, protectionism is precisely its motivation. But the
-protectionism that justifies the changes that I will describe below is not
-the limited and balanced sort that has defined the law in the past. This
-is not a protectionism to protect artists. It is instead a protectionism
-to protect certain forms of business. Corporations threatened by the
-potential of the Internet to change the way both commercial and
-noncommercial culture are made and shared have united to induce
-lawmakers to use the law to protect them. It is the story of RCA and
-Armstrong; it is the dream of the Causbys.
+This change gets justified as necessary to protect commercial
+creativity. And indeed, protectionism is precisely its
+motivation. But the protectionism that justifies the changes that I
+will describe below is not the limited and balanced sort that has
+defined the law in the past. This is not a protectionism to protect
+artists. It is instead a protectionism to protect certain forms of
+business. Corporations threatened by the potential of the Internet to
+change the way both commercial and noncommercial culture are made and
+shared have united to induce lawmakers to use the law to protect
+them. It is the story of RCA and Armstrong; it is the dream of the
+Causbys.
</para>
<para>
For the Internet has unleashed an extraordinary possibility for many
-to participate in the process of building and cultivating a culture that
-reaches far beyond local boundaries. That power has changed the
- marketplace
-for making and cultivating culture generally, and that change
-in turn threatens established content industries. The Internet is thus to
-the industries that built and distributed content in the twentieth
- century
-what FM radio was to AM radio, or what the truck was to the
-railroad industry of the nineteenth century: the beginning of the end,
-or at least a substantial transformation. Digital technologies, tied to the
-Internet, could produce a vastly more competitive and vibrant market
-for building and cultivating culture; that market could include a much
-wider and more diverse range of creators; those creators could produce
-and distribute a much more vibrant range of creativity; and depending
-upon a few important factors, those creators could earn more on average
-from this system than creators do today—all so long as the RCAs of our
-day don't use the law to protect themselves against this competition.
-</para>
-<para>
-Yet, as I argue in the pages that follow, that is precisely what is
- happening
-in our culture today. These modern-day equivalents of the early
-twentieth-century radio or nineteenth-century railroads are using their
-power to get the law to protect them against this new, more efficient,
-more vibrant technology for building culture. They are succeeding in
-their plan to remake the Internet before the Internet remakes them.
+to participate in the process of building and cultivating a culture
+that reaches far beyond local boundaries. That power has changed the
+marketplace for making and cultivating culture generally, and that
+change in turn threatens established content industries. The Internet
+is thus to the industries that built and distributed content in the
+twentieth century what FM radio was to AM radio, or what the truck was
+to the railroad industry of the nineteenth century: the beginning of
+the end, or at least a substantial transformation. Digital
+technologies, tied to the Internet, could produce a vastly more
+competitive and vibrant market for building and cultivating culture;
+that market could include a much wider and more diverse range of
+creators; those creators could produce and distribute a much more
+vibrant range of creativity; and depending upon a few important
+factors, those creators could earn more on average from this system
+than creators do today—all so long as the RCAs of our day don't
+use the law to protect themselves against this competition.
+</para>
+<para>
+Yet, as I argue in the pages that follow, that is precisely what is
+happening in our culture today. These modern-day equivalents of the
+early twentieth-century radio or nineteenth-century railroads are
+using their power to get the law to protect them against this new,
+more efficient, more vibrant technology for building culture. They are
+succeeding in their plan to remake the Internet before the Internet
+remakes them.
</para>
<para>
It doesn't seem this way to many. The battles over copyright and the
mainly about a much simpler brace of questions—whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
has been waged against the technologies of the Internet—what
- Motion
-Picture Association of America (MPAA) president Jack Valenti
+Motion Picture Association of America (MPAA) president Jack Valenti
calls his "own terrorist war"<footnote><para>
Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates
Use New Tools to Turn the Net into an Illicit Video Club," New York
</para>
<para>
If those really were the choices, then I would be with Jack Valenti
-and the content industry. I, too, am a believer in property, and
- especially
-in the importance of what Mr. Valenti nicely calls "creative
- property."
-I believe that "piracy" is wrong, and that the law, properly tuned,
-should punish "piracy," whether on or off the Internet.
+and the content industry. I, too, am a believer in property, and
+especially in the importance of what Mr. Valenti nicely calls
+"creative property." I believe that "piracy" is wrong, and that the
+law, properly tuned, should punish "piracy," whether on or off the
+Internet.
</para>
<para>
But those simple beliefs mask a much more fundamental question
our Republic, guaranteed creators the right to build freely upon their
past, and protected creators and innovators from either state or private
control. The First Amendment protected creators against state control.
-And as Professor Neil Netanel powerfully argues,<footnote><para>
+And as Professor Neil Netanel powerfully argues,<footnote>
+<para>
Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
Journal 106 (1996): 283.
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
</para></footnote>
-copyright law,
- properly
-balanced, protected creators against private control. Our tradition
-was thus neither Soviet nor the tradition of patrons. It instead carved out
-a wide berth within which creators could cultivate and extend our culture.
+copyright law, properly balanced, protected creators against private
+control. Our tradition was thus neither Soviet nor the tradition of
+patrons. It instead carved out a wide berth within which creators
+could cultivate and extend our culture.
</para>
<para>
Yet the law's response to the Internet, when tied to changes in the
-technology of the Internet itself, has massively increased the effective
-regulation of creativity in America. To build upon or critique the
- culture
-around us one must ask, Oliver Twist–like, for permission first.
-Permission is, of course, often granted—but it is not often granted to
-the critical or the independent. We have built a kind of cultural
- nobility;
-those within the noble class live easily; those outside it don't. But it
-is nobility of any form that is alien to our tradition.
+technology of the Internet itself, has massively increased the
+effective regulation of creativity in America. To build upon or
+critique the culture around us one must ask, Oliver Twist–like,
+for permission first. Permission is, of course, often
+granted—but it is not often granted to the critical or the
+independent. We have built a kind of cultural nobility; those within
+the noble class live easily; those outside it don't. But it is
+nobility of any form that is alien to our tradition.
</para>
<!-- PAGE BREAK 26 -->
<para>
understand
the source of this war. We must resolve it soon.
</para>
-<para>
-Like the Causbys' battle, this war is, in part, about "property."
-The property of this war is not as tangible as the Causbys', and no
-innocent chicken has yet to lose its life. Yet the ideas surrounding this
-"property" are as obvious to most as the Causbys' claim about the
- sacredness
-of their farm was to them. We are the Causbys. Most of us
-take for granted the extraordinarily powerful claims that the owners of
-"intellectual property" now assert. Most of us, like the Causbys, treat
-these claims as obvious. And hence we, like the Causbys, object when
-a new technology interferes with this property. It is as plain to us as it
-was to them that the new technologies of the Internet are "trespassing"
-upon legitimate claims of "property." It is as plain to us as it was to
-them that the law should intervene to stop this trespass.
-</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<para>
+Like the Causbys' battle, this war is, in part, about "property." The
+property of this war is not as tangible as the Causbys', and no
+innocent chicken has yet to lose its life. Yet the ideas surrounding
+this "property" are as obvious to most as the Causbys' claim about the
+sacredness of their farm was to them. We are the Causbys. Most of us
+take for granted the extraordinarily powerful claims that the owners
+of "intellectual property" now assert. Most of us, like the Causbys,
+treat these claims as obvious. And hence we, like the Causbys, object
+when a new technology interferes with this property. It is as plain to
+us as it was to them that the new technologies of the Internet are
+"trespassing" upon legitimate claims of "property." It is as plain to
+us as it was to them that the law should intervene to stop this
+trespass.
+</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
And thus, when geeks and technologists defend their Armstrong or
-Wright brothers technology, most of us are simply unsympathetic.
- Common
-sense does not revolt. Unlike in the case of the unlucky Causbys,
-common sense is on the side of the property owners in this war. Unlike
+Wright brothers technology, most of us are simply unsympathetic.
+Common sense does not revolt. Unlike in the case of the unlucky
+Causbys, common sense is on the side of the property owners in this
+war. Unlike
<!-- PAGE BREAK 27 -->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
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>
-I don't mean to be mysterious. My own views are resolved. I believe
-it was right for common sense to revolt against the extremism of the
-Causbys. I believe it would be right for common sense to revolt against
-the extreme claims made today on behalf of "intellectual property."
-What the law demands today is increasingly as silly as a sheriff
- arresting
-an airplane for trespass. But the consequences of this silliness will
-be much more profound.
+I don't mean to be mysterious. My own views are resolved. I believe it
+was right for common sense to revolt against the extremism of the
+Causbys. I believe it would be right for common sense to revolt
+against the extreme claims made today on behalf of "intellectual
+property." What the law demands today is increasingly as silly as a
+sheriff arresting an airplane for trespass. But the consequences of
+this silliness will be much more profound.
<!-- PAGE BREAK 28 -->
</para>
<para>
who we have always been.
</para>
<para>
-We allow this, I believe, not because it is right, and not because
-most of us really believe in these changes. We allow it because the
- interests
-most threatened are among the most powerful players in our
-depressingly compromised process of making law. This book is the
-story of one more consequence of this form of corruption—a
- consequence
+We allow this, I believe, not because it is right, and not because
+most of us really believe in these changes. We allow it because the
+interests most threatened are among the most powerful players in our
+depressingly compromised process of making law. This book is the story
+of one more consequence of this form of corruption—a consequence
to which most of us remain oblivious.
</para>
</chapter>
piracy.
</para>
</blockquote>
+<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the "if value, then right"
- theory
-of creative property<footnote><para>
+theory of creative property<footnote><para>
<!-- f2 -->
See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
</para></footnote>
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
- organization,
-ASCAP, to sue the Girl Scouts for failing to pay for the
+organization, ASCAP, to sue the Girl Scouts for failing to pay for the
songs that girls sang around Girl Scout campfires.<footnote><para>
<!-- f3 -->
Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins," Boston Globe, 24 November 2002.
</para></footnote>
-There was "value"
-(the songs) so there must have been a "right"—even against the Girl
-Scouts.
+There was "value" (the songs) so there must have been a
+"right"—even against the Girl Scouts.
</para>
+<indexterm><primary>ASCAP</primary></indexterm>
<para>
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
</para>
<para>
Instead, in our tradition, intellectual property is an instrument. It
-sets the groundwork for a richly creative society but remains
- subservient
-to the value of creativity. The current debate has this turned
-around. We have become so concerned with protecting the instrument
-that we are losing sight of the value.
+sets the groundwork for a richly creative society but remains
+subservient to the value of creativity. The current debate has this
+turned around. We have become so concerned with protecting the
+instrument that we are losing sight of the value.
</para>
<para>
The source of this confusion is a distinction that the law no longer
copyright law today regulates both.
</para>
<para>
-Before the technologies of the Internet, this conflation didn't
- matter
+Before the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive; that
meant the vast majority of publishing was commercial. Commercial
entities could bear the burden of the law—even the burden of the
Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
</para>
+<indexterm><primary>Florida, Richard</primary></indexterm>
<para>
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
-commercial creators but effectively that of anyone. Although that
- expansion
-would not matter much if copyright law regulated only
- "copying,"
-when the law regulates as broadly and obscurely as it does, the
-extension matters a lot. The burden of this law now vastly outweighs
-any original benefit—certainly as it affects noncommercial creativity,
-and increasingly as it affects commercial creativity as well. Thus, as
-we'll see more clearly in the chapters below, the law's role is less and
-less to support creativity, and more and more to protect certain
- industries
-against competition. Just at the time digital technology could
-unleash an extraordinary range of commercial and noncommercial
-creativity, the law burdens this creativity with insanely complex and
-vague rules and with the threat of obscenely severe penalties. We may
+commercial creators but effectively that of anyone. Although that
+expansion would not matter much if copyright law regulated only
+"copying," when the law regulates as broadly and obscurely as it does,
+the extension matters a lot. The burden of this law now vastly
+outweighs any original benefit—certainly as it affects
+noncommercial creativity, and increasingly as it affects commercial
+creativity as well. Thus, as we'll see more clearly in the chapters
+below, the law's role is less and less to support creativity, and more
+and more to protect certain industries against competition. Just at
+the time digital technology could unleash an extraordinary range of
+commercial and noncommercial creativity, the law burdens this
+creativity with insanely complex and vague rules and with the threat
+of obscenely severe penalties. We may
<!-- PAGE BREAK 33 -->
-be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote><para>
+be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote>
+<para>
<!-- f4 -->
-In The Rise of the Creative Class (New York: Basic Books, 2002), Richard
-Florida documents a shift in the nature of labor toward a labor of
- creativity.
-His work, however, doesn't directly address the legal conditions under
-which that creativity is enabled or stifled. I certainly agree with him about
-the importance and significance of this change, but I also believe the
- conditions
-under which it will be enabled are much more tenuous.
+In The Rise of the Creative Class (New York: Basic Books, 2002),
+Richard Florida documents a shift in the nature of labor toward a
+labor of creativity. His work, however, doesn't directly address the
+legal conditions under which that creativity is enabled or stifled. I
+certainly agree with him about the importance and significance of this
+change, but I also believe the conditions under which it will be
+enabled are much more tenuous.
+<indexterm><primary>Florida, Richard</primary></indexterm>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
to life the character that would become Mickey Mouse.
</para>
<para>
-Synchronized sound had been introduced to film a year earlier in
-the movie The Jazz Singer. That success led Walt Disney to copy the
-technique and mix sound with cartoons. No one knew whether it
-would work or, if it did work, whether it would win an audience. But
-when Disney ran a test in the summer of 1928, the results were
- unambiguous.
+Synchronized sound had been introduced to film a year earlier in the
+movie The Jazz Singer. That success led Walt Disney to copy the
+technique and mix sound with cartoons. No one knew whether it would
+work or, if it did work, whether it would win an audience. But when
+Disney ran a test in the summer of 1928, the results were unambiguous.
As Disney describes that first experiment,
</para>
<blockquote>
<!-- PAGE BREAK 35 -->
</para>
<para>
-The boys worked from a music and sound-effects score. After
-several false starts, sound and action got off with the gun. The
-mouth organist played the tune, the rest of us in the sound
- department
-bammed tin pans and blew slide whistles on the beat.
-The synchronization was pretty close.
+The boys worked from a music and sound-effects score. After several
+false starts, sound and action got off with the gun. The mouth
+organist played the tune, the rest of us in the sound department
+bammed tin pans and blew slide whistles on the beat. The
+synchronization was pretty close.
</para>
<para>
The effect on our little audience was nothing less than
in my life. Nothing since has ever equaled it."
</para>
<para>
-Disney had created something very new, based upon something
- relatively
-new. Synchronized sound brought life to a form of creativity
-that had rarely—except in Disney's hands—been anything more than
-filler for other films. Throughout animation's early history, it was
- Disney's
-invention that set the standard that others struggled to match.
-And quite often, Disney's great genius, his spark of creativity, was built
-upon the work of others.
+Disney had created something very new, based upon something relatively
+new. Synchronized sound brought life to a form of creativity that had
+rarely—except in Disney's hands—been anything more than
+filler for other films. Throughout animation's early history, it was
+Disney's invention that set the standard that others struggled to
+match. And quite often, Disney's great genius, his spark of
+creativity, was built upon the work of others.
</para>
<para>
This much is familiar. What you might not know is that 1928 also
Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
<!-- PAGE BREAK 36 -->
The coincidence of titles is not coincidental. Steamboat Willie is a
- direct
-cartoon parody of Steamboat Bill,<footnote><para>
+direct cartoon parody of Steamboat Bill,<footnote><para>
<!-- f2 -->
I am grateful to David Gerstein and his careful history, described at
<ulink url="http://free-culture.cc/notes/">link #4</ulink>.
Straw," was already in the public domain. Letter from David Smith to
Harry Surden, 10 July 2003, on file with author.
</para></footnote>
-and both are built upon a
- common
-song as a source. It is not just from the invention of synchronized
-sound in The Jazz Singer that we get Steamboat Willie. It is also from
-Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the
-song "Steamboat Bill," that we get Steamboat Willie, and then from
-Steamboat Willie, Mickey Mouse.
+and both are built upon a common song as a source. It is not just from
+the invention of synchronized sound in The Jazz Singer that we get
+Steamboat Willie. It is also from Buster Keaton's invention of
+Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill,"
+that we get Steamboat Willie, and then from Steamboat Willie, Mickey
+Mouse.
</para>
<para>
This "borrowing" was nothing unique, either for Disney or for the
films of his day.<footnote><para>
<!-- f3 -->
He was also a fan of the public domain. See Chris Sprigman, "The Mouse
-that Ate the Public Domain," Findlaw, 5 March 2002, at
+that Ate the Public Domain," Findlaw, 5 March 2002, at
<ulink url="http://free-culture.cc/notes/">link #5</ulink>.
</para></footnote>
-So did many others. Early cartoons are filled with
-knockoffs—slight variations on winning themes; retellings of ancient
-stories. The key to success was the brilliance of the differences. With
-Disney, it was sound that gave his animation its spark. Later, it was the
-quality of his work relative to the production-line cartoons with which
-he competed. Yet these additions were built upon a base that was
- borrowed.
-Disney added to the work of others before him, creating
- something
-new out of something just barely old.
+So did many others. Early cartoons are filled with
+knockoffs—slight variations on winning themes; retellings of
+ancient stories. The key to success was the brilliance of the
+differences. With Disney, it was sound that gave his animation its
+spark. Later, it was the quality of his work relative to the
+production-line cartoons with which he competed. Yet these additions
+were built upon a base that was borrowed. Disney added to the work of
+others before him, creating something new out of something just barely
+old.
</para>
<para>
Sometimes this borrowing was slight. Sometimes it was significant.
-Think about the fairy tales of the Brothers Grimm. If you're as
- oblivious
-as I was, you're likely to think that these tales are happy, sweet
- stories,
-appropriate for any child at bedtime. In fact, the Grimm fairy tales
-are, well, for us, grim. It is a rare and perhaps overly ambitious parent
-who would dare to read these bloody, moralistic stories to his or her
-child, at bedtime or anytime.
-</para>
-<para>
-Disney took these stories and retold them in a way that carried
-them into a new age. He animated the stories, with both characters and
+Think about the fairy tales of the Brothers Grimm. If you're as
+oblivious as I was, you're likely to think that these tales are happy,
+sweet stories, appropriate for any child at bedtime. In fact, the
+Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
+overly ambitious parent who would dare to read these bloody,
+moralistic stories to his or her child, at bedtime or anytime.
+</para>
+<para>
+Disney took these stories and retold them in a way that carried them
+into a new age. He animated the stories, with both characters and
light. Without removing the elements of fear and danger altogether, he
-made funny what was dark and injected a genuine emotion of
- compassion
+made funny what was dark and injected a genuine emotion of compassion
where before there was fear. And not just with the work of the
-Brothers Grimm. Indeed, the catalog of Disney work drawing upon
-the work of others is astonishing when set together: Snow White
-(1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi
-(1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland
-(1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp
+Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
+work of others is astonishing when set together: Snow White (1937),
+Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of
+the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin
+Hood (1952), Peter Pan (1953), Lady and the Tramp
<!-- PAGE BREAK 37 -->
(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
-The Sword in the Stone (1963), and The Jungle Book (1967)—not to
-mention a recent example that we should perhaps quickly forget,
- Treasure
-Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped
-creativity from the culture around him, mixed that creativity with his
-own extraordinary talent, and then burned that mix into the soul of his
-culture. Rip, mix, and burn.
-</para>
-<para>
-This is a kind of creativity. It is a creativity that we should
- remember
-and celebrate. There are some who would say that there is no
- creativity
-except this kind. We don't need to go that far to recognize its
-importance. We could call this "Disney creativity," though that would
-be a bit misleading. It is, more precisely, "Walt Disney creativity"—a
-form of expression and genius that builds upon the culture around us
-and makes it something different.
-</para>
-<para>
-In 1928, the culture that Disney was free to draw upon was
- relatively
-fresh. The public domain in 1928 was not very old and was
+The Sword in the Stone (1963), and The Jungle Book (1967)—not to
+mention a recent example that we should perhaps quickly forget,
+Treasure Planet (2003). In all of these cases, Disney (or Disney,
+Inc.) ripped creativity from the culture around him, mixed that
+creativity with his own extraordinary talent, and then burned that mix
+into the soul of his culture. Rip, mix, and burn.
+</para>
+<para>
+This is a kind of creativity. It is a creativity that we should
+remember and celebrate. There are some who would say that there is no
+creativity except this kind. We don't need to go that far to recognize
+its importance. We could call this "Disney creativity," though that
+would be a bit misleading. It is, more precisely, "Walt Disney
+creativity"—a form of expression and genius that builds upon the
+culture around us and makes it something different.
+</para>
+<para> In 1928, the culture that Disney was free to draw upon was
+relatively fresh. The public domain in 1928 was not very old and was
therefore quite vibrant. The average term of copyright was just around
-thirty years—for that minority of creative work that was in fact copyrighted.<footnote><para>
+thirty years—for that minority of creative work that was in fact
+copyrighted.<footnote><para>
<!-- f4 -->
Until 1976, copyright law granted an author the possibility of two terms: an
initial term and a renewal term. I have calculated the "average" term by
- determining
+determining
the weighted average of total registrations for any particular year,
and the proportion renewing. Thus, if 100 copyrights are registered in year
1, and only 15 are renewed, and the renewal term is 28 years, then the
- average
+average
term is 32.2 years. For the renewal data and other relevant data, see the
Web site associated with this book, available at
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
required the permission of the copyright owner.
</para>
<para>
-At the end of a copyright term, a work passes into the public
- domain.
+At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
permission and, hence, no lawyers. The public domain is a "lawyer-free
zone." Thus, most of the content from the nineteenth century was free
-for Disney to use and build upon in 1928. It was free for anyone—
-whether connected or not, whether rich or not, whether approved or
-not—to use and build upon.
+for Disney to use and build upon in 1928. It was free for
+anyone— whether connected or not, whether rich or not, whether
+approved or not—to use and build upon.
</para>
<para>
This is the ways things always were—until quite recently. For most
<!-- PAGE BREAK 38 -->
free for anyone to build upon without the permission of anyone else.
-Today's equivalent would be for creative work from the 1960s and
-1970s to now be free for the next Walt Disney to build upon without
-permission. Yet today, the public domain is presumptive only for
- content
-from before the Great Depression.
+Today's equivalent would be for creative work from the 1960s and 1970s
+to now be free for the next Walt Disney to build upon without
+permission. Yet today, the public domain is presumptive only for
+content from before the Great Depression.
</para>
<para>
-Of course, Walt Disney had no monopoly on "Walt Disney
- creativity."
-Nor does America. The norm of free culture has, until recently,
-and except within totalitarian nations, been broadly exploited and quite
+Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+Nor does America. The norm of free culture has, until recently, and
+except within totalitarian nations, been broadly exploited and quite
universal.
</para>
<para>
-Consider, for example, a form of creativity that seems strange to
-many Americans but that is inescapable within Japanese culture:
-manga, or comics. The Japanese are fanatics about comics. Some 40
-percent of publications are comics, and 30 percent of publication
- revenue
-derives from comics. They are everywhere in Japanese society, at
-every magazine stand, carried by a large proportion of commuters on
-Japan's extraordinary system of public transportation.
+Consider, for example, a form of creativity that seems strange to many
+Americans but that is inescapable within Japanese culture: manga, or
+comics. The Japanese are fanatics about comics. Some 40 percent of
+publications are comics, and 30 percent of publication revenue derives
+from comics. They are everywhere in Japanese society, at every
+magazine stand, carried by a large proportion of commuters on Japan's
+extraordinary system of public transportation.
</para>
<para>
Americans tend to look down upon this form of culture. That's an
-unattractive characteristic of ours. We're likely to misunderstand much
-about manga, because few of us have ever read anything close to the
-stories that these "graphic novels" tell. For the Japanese, manga cover
-every aspect of social life. For us, comics are "men in tights." And
- anyway,
-it's not as if the New York subways are filled with readers of Joyce
-or even Hemingway. People of different cultures distract themselves in
-different ways, the Japanese in this interestingly different way.
+unattractive characteristic of ours. We're likely to misunderstand
+much about manga, because few of us have ever read anything close to
+the stories that these "graphic novels" tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are "men in tights."
+And anyway, it's not as if the New York subways are filled with
+readers of Joyce or even Hemingway. People of different cultures
+distract themselves in different ways, the Japanese in this
+interestingly different way.
</para>
<para>
But my purpose here is not to understand manga. It is to describe a
and reject any copycat comic that is merely a copy.
</para>
<para>
-These copycat comics are not a tiny part of the manga market. They
-are huge. More than 33,000 "circles" of creators from across Japan
- produce
-these bits of Walt Disney creativity. More than 450,000 Japanese
-come together twice a year, in the largest public gathering in the
- country,
+These copycat comics are not a tiny part of the manga market. They are
+huge. More than 33,000 "circles" of creators from across Japan produce
+these bits of Walt Disney creativity. More than 450,000 Japanese come
+together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
mainstream commercial manga market. In some ways, it obviously
competes with that market, but there is no sustained effort by those
-who control the commercial manga market to shut the doujinshi
- market
+who control the commercial manga market to shut the doujinshi market
down. It flourishes, despite the competition and despite the law.
</para>
<para>
-The most puzzling feature of the doujinshi market, for those
-trained in the law, at least, is that it is allowed to exist at all. Under
-Japanese copyright law, which in this respect (on paper) mirrors
- American
-copyright law, the doujinshi market is an illegal one. Doujinshi are
-plainly "derivative works." There is no general practice by doujinshi
-artists of securing the permission of the manga creators. Instead, the
-practice is simply to take and modify the creations of others, as Walt
-Disney did with Steamboat Bill, Jr. Under both Japanese and American
-law, that "taking" without the permission of the original copyright
-owner is illegal. It is an infringement of the original copyright to make
-a copy or a derivative work without the original copyright owner's
-permission.
+The most puzzling feature of the doujinshi market, for those trained
+in the law, at least, is that it is allowed to exist at all. Under
+Japanese copyright law, which in this respect (on paper) mirrors
+American copyright law, the doujinshi market is an illegal
+one. Doujinshi are plainly "derivative works." There is no general
+practice by doujinshi artists of securing the permission of the manga
+creators. Instead, the practice is simply to take and modify the
+creations of others, as Walt Disney did with Steamboat Bill, Jr. Under
+both Japanese and American law, that "taking" without the permission
+of the original copyright owner is illegal. It is an infringement of
+the original copyright to make a copy or a derivative work without the
+original copyright owner's permission.
</para>
<para>
Yet this illegal market exists and indeed flourishes in Japan, and in
which are fifty years old."
</para>
<para>
-The norm in Japan mitigates this legal difficulty. Some say it is
- precisely
-the benefit accruing to the Japanese manga market that explains
-the mitigation. Temple University law professor Salil Mehra, for
- example,
-hypothesizes that the manga market accepts these technical
-violations because they spur the manga market to be more wealthy and
-productive. Everyone would be worse off if doujinshi were banned, so
-the law does not ban doujinshi.<footnote><para>
+The norm in Japan mitigates this legal difficulty. Some say it is
+precisely the benefit accruing to the Japanese manga market that
+explains the mitigation. Temple University law professor Salil Mehra,
+for example, hypothesizes that the manga market accepts these
+technical violations because they spur the manga market to be more
+wealthy and productive. Everyone would be worse off if doujinshi were
+banned, so the law does not ban doujinshi.<footnote><para>
<!-- f6 -->
See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
-Review 55 (2002): 155, 182. "[T]here might be a collective economic
- rationality
-that would lead manga and anime artists to forgo bringing legal
-actions for infringement. One hypothesis is that all manga artists may be
-better off collectively if they set aside their individual self-interest and
- decide
-not to press their legal rights. This is essentially a prisoner's dilemma
-solved."
+Review 55 (2002): 155, 182. "[T]here might be a collective economic
+rationality that would lead manga and anime artists to forgo bringing
+legal actions for infringement. One hypothesis is that all manga
+artists may be better off collectively if they set aside their
+individual self-interest and decide not to press their legal
+rights. This is essentially a prisoner's dilemma solved."
</para></footnote>
</para>
<para>
-The problem with this story, however, as Mehra plainly
- acknowledges,
+The problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response is not
-clear. It may well be that the market as a whole is better off if
- doujinshi
-are permitted rather than banned, but that doesn't explain why
- individual
-copyright owners don't sue nonetheless. If the law has no
-general exception for doujinshi, and indeed in some cases individual
-manga artists have sued doujinshi artists, why is there not a more
- general
-pattern of blocking this "free taking" by the doujinshi culture?
+clear. It may well be that the market as a whole is better off if
+doujinshi are permitted rather than banned, but that doesn't explain
+why individual copyright owners don't sue nonetheless. If the law has
+no general exception for doujinshi, and indeed in some cases
+individual manga artists have sued doujinshi artists, why is there not
+a more general pattern of blocking this "free taking" by the doujinshi
+culture?
</para>
<para>
I spent four wonderful months in Japan, and I asked this question
be puzzled about something you hadn't thought through before.
</para>
<para>
-We live in a world that celebrates "property." I am one of those
- celebrants.
-I believe in the value of property in general, and I also believe
-in the value of that weird form of property that lawyers call
- "intellectual
-property."<footnote><para>
+We live in a world that celebrates "property." I am one of those
+celebrants. I believe in the value of property in general, and I also
+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,
intellectual property.
</para>
<para>
-But it takes just a second's reflection to realize that there is plenty of
-value out there that "property" doesn't capture. I don't mean "money
-can't buy you love," but rather, value that is plainly part of a process of
-production, including commercial as well as noncommercial
- production.
-If Disney animators had stolen a set of pencils to draw Steamboat
-Willie, we'd have no hesitation in condemning that taking as wrong—
-even though trivial, even if unnoticed. Yet there was nothing wrong, at
-least under the law of the day, with Disney's taking from Buster Keaton
-or from the Brothers Grimm. There was nothing wrong with the
- taking
-from Keaton because Disney's use would have been considered
-"fair." There was nothing wrong with the taking from the Grimms
- because
-the Grimms' work was in the public domain.
+But it takes just a second's reflection to realize that there is
+plenty of value out there that "property" doesn't capture. I don't
+mean "money can't buy you love," but rather, value that is plainly
+part of a process of production, including commercial as well as
+noncommercial production. If Disney animators had stolen a set of
+pencils to draw Steamboat Willie, we'd have no hesitation in
+condemning that taking as wrong— even though trivial, even if
+unnoticed. Yet there was nothing wrong, at least under the law of the
+day, with Disney's taking from Buster Keaton or from the Brothers
+Grimm. There was nothing wrong with the taking from Keaton because
+Disney's use would have been considered "fair." There was nothing
+wrong with the taking from the Grimms because the Grimms' work was in
+the public domain.
</para>
<para>
Thus, even though the things that Disney took—or more generally,
valuable, our tradition does not treat those takings as wrong. Some
<!-- PAGE BREAK 42 -->
-things remain free for the taking within a free culture, and that
- freedom
-is good.
+things remain free for the taking within a free culture, and that
+freedom is good.
</para>
<para>
The same with the doujinshi culture. If a doujinshi artist broke into
</para>
<para>
Yet there is an obvious reluctance, even among Japanese lawyers, to
-say that the copycat comic artists are "stealing." This form of Walt
- Disney
-creativity is seen as fair and right, even if lawyers in particular find
-it hard to say why.
-</para>
-<para>
-It's the same with a thousand examples that appear everywhere once
-you begin to look. Scientists build upon the work of other scientists
-without asking or paying for the privilege. ("Excuse me, Professor
- Einstein,
-but may I have permission to use your theory of relativity to show
-that you were wrong about quantum physics?") Acting companies
- perform
-adaptations of the works of Shakespeare without securing
- permission
-from anyone. (Does anyone believe Shakespeare would be
+say that the copycat comic artists are "stealing." This form of Walt
+Disney creativity is seen as fair and right, even if lawyers in
+particular find it hard to say why.
+</para>
+<para>
+It's the same with a thousand examples that appear everywhere once you
+begin to look. Scientists build upon the work of other scientists
+without asking or paying for the privilege. ("Excuse me, Professor
+Einstein, but may I have permission to use your theory of relativity
+to show that you were wrong about quantum physics?") Acting companies
+perform adaptations of the works of Shakespeare without securing
+permission from anyone. (Does anyone believe Shakespeare would be
better spread within our culture if there were a central Shakespeare
rights clearinghouse that all productions of Shakespeare must appeal
to first?) And Hollywood goes through cycles with a certain kind of
-movie: five asteroid films in the late 1990s; two volcano disaster films
-in 1997.
+movie: five asteroid films in the late 1990s; two volcano disaster
+films in 1997.
</para>
<para>
Creators here and everywhere are always and at all times building
<!-- PAGE BREAK 43 -->
</para>
<para>
-The hard question is therefore not whether a culture is free. All
- cultures
-are free to some degree. The hard question instead is "How free is
-this culture?" How much, and how broadly, is the culture free for
- others
-to take and build upon? Is that freedom limited to party members?
-To members of the royal family? To the top ten corporations on the
-New York Stock Exchange? Or is that freedom spread broadly? To
-artists generally, whether affiliated with the Met or not? To musicians
-generally, whether white or not? To filmmakers generally, whether
- affiliated
-with a studio or not?
+The hard question is therefore not whether a culture is free. All
+cultures are free to some degree. The hard question instead is "How
+free is this culture?" How much, and how broadly, is the culture free
+for others to take and build upon? Is that freedom limited to party
+members? To members of the royal family? To the top ten corporations
+on the New York Stock Exchange? Or is that freedom spread broadly? To
+artists generally, whether affiliated with the Met or not? To
+musicians generally, whether white or not? To filmmakers generally,
+whether affiliated with a studio or not?
</para>
<para>
Free cultures are cultures that leave a great deal open for others to
</sect1>
<sect1 id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
<para>
-
In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call "photographs." Appropriately enough,
-they were called "daguerreotypes." The process was complicated and
+producing what we would call "photographs." Appropriately enough, they
+were called "daguerreotypes." The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
-Association that helped regulate the industry, as do all such
- associations,
-by keeping competition down so as to keep prices up.)
+Association that helped regulate the industry, as do all such
+associations, by keeping competition down so as to keep prices up.)
</para>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
-This pushed inventors to find simpler and cheaper ways to make
- "automatic
-pictures." William Talbot soon discovered a process for
- making
-"negatives." But because the negatives were glass, and had to be
-kept wet, the process still remained expensive and cumbersome. In the
-1870s, dry plates were developed, making it easier to separate the
- 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.
+This pushed inventors to find simpler and cheaper ways to make
+"automatic pictures." William Talbot soon discovered a process for
+making "negatives." But because the negatives were glass, and had to
+be kept wet, the process still remained expensive and cumbersome. In
+the 1870s, dry plates were developed, making it easier to separate the
+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.
</para>
<para>
The technological change that made mass photography possible
<!-- PAGE BREAK 45 -->
Eastman, himself an amateur photographer, was frustrated by the
technology of photographs made with plates. In a flash of insight (so
-to speak), Eastman saw that if the film could be made to be flexible, it
-could be held on a single spindle. That roll could then be sent to a
- developer,
-driving the costs of photography down substantially. By
- lowering
-the costs, Eastman expected he could dramatically broaden the
+to speak), Eastman saw that if the film could be made to be flexible,
+it could be held on a single spindle. That roll could then be sent to
+a developer, driving the costs of photography down substantially. By
+lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
</para>
<para>
Eastman developed flexible, emulsion-coated paper film and placed
-rolls of it in small, simple cameras: the Kodak. The device was
- marketed
-on the basis of its simplicity. "You press the button and we do the
-rest."<footnote><para>
+rolls of it in small, simple cameras: the Kodak. The device was
+marketed on the basis of its simplicity. "You press the button and we
+do the rest."<footnote><para>
<!-- f1 -->
Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in The Kodak Primer:
</para>
<blockquote>
<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 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, in fact, any special knowledge of
-the art. It can be employed without preliminary study, without a
-darkroom and without chemicals.<footnote><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
+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,
+in fact, any special knowledge of the art. It can be employed without
+preliminary study, without a darkroom and without
+chemicals.<footnote>
+<para>
<!-- f2 -->
Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
+<indexterm><primary>Coe, Brian</primary></indexterm>
</para></footnote>
</para>
</blockquote>
Based on a chart in Jenkins, p. 178.
</para></footnote>
</para>
+<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<!-- PAGE BREAK 46 -->
The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
-glimpse of places they would never otherwise see. Amateur
- photography
+glimpse of places they would never otherwise see. Amateur photography
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 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>
+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
+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>
<!-- f5 -->
Coe, 58.
</para></footnote>
</para>
<para>
What was required for this technology to flourish? Obviously,
-Eastman's genius was an important part. But also important was the
- legal
-environment within which Eastman's invention grew. For early in
-the history of photography, there was a series of judicial decisions that
-could well have changed the course of photography substantially.
+Eastman's genius was an important part. But also important was the
+legal environment within which Eastman's invention grew. For early in
+the history of photography, there was a series of judicial decisions
+that could well have changed the course of photography substantially.
Courts were asked whether the photographer, amateur or professional,
required permission before he could capture and print whatever image
he wanted. Their answer was no.<footnote><para>
</para></footnote>
</para>
<para>
-The arguments in favor of requiring permission will sound
- surprisingly
-familiar. The photographer was "taking" something from the
- person
-or building whose photograph he shot—pirating something of
-value. Some even thought he was taking the target's soul. Just as
- Disney
-was not free to take the pencils that his animators used to draw
+The arguments in favor of requiring permission will sound surprisingly
+familiar. The photographer was "taking" something from the person or
+building whose photograph he shot—pirating something of
+value. Some even thought he was taking the target's soul. Just as
+Disney was not free to take the pencils that his animators used to
+draw
<!-- PAGE BREAK 47 -->
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
</para>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<para>
On the other side was an argument that should be familiar, as well.
Sure, there may be something of value being used. But citizens should
have the right to capture at least those images that stand in public view.
(Louis Brandeis, who would become a Supreme Court Justice, thought
-the rule should be different for images from private spaces.<footnote><para>
+the rule should be different for images from private spaces.<footnote>
+<para>
<!-- f7 -->
-Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
- Harvard
-Law Review 4 (1890): 193.
-</para></footnote>) It may be
-that this means that the photographer gets something for nothing. Just
-as Disney could take inspiration from Steamboat Bill, Jr. or the
- Brothers
-Grimm, the photographer should be free to capture an image
- without
-compensating the source.
+Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
+Harvard Law Review 4 (1890): 193.
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<indexterm><primary>Warren, Samuel D.</primary></indexterm>
+</para></footnote>) It may be that this means that the photographer
+gets something for nothing. Just as Disney could take inspiration from
+Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
+free to capture an image without compensating the source.
</para>
<para>
Fortunately for Mr. Eastman, and for photography in general, these
-early decisions went in favor of the pirates. In general, no permission
-would be required before an image could be captured and shared with
-others. Instead, permission was presumed. Freedom was the default.
-(The law would eventually craft an exception for famous people:
- commercial
-photographers who snap pictures of famous people for
- commercial
-purposes have more restrictions than the rest of us. But in the
-ordinary case, the image can be captured without clearing the rights to
-do the capturing.<footnote><para>
+early decisions went in favor of the pirates. In general, no
+permission would be required before an image could be captured and
+shared with others. Instead, permission was presumed. Freedom was the
+default. (The law would eventually craft an exception for famous
+people: commercial photographers who snap pictures of famous people
+for commercial purposes have more restrictions than the rest of
+us. But in the ordinary case, the image can be captured without
+clearing the rights to do the capturing.<footnote><para>
<!-- f8 -->
See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
-Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
- Review
-48 (1960) 398–407; White v. Samsung Electronics America, Inc., 971 F.
-2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
+Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
+Review 48 (1960) 398–407; White v. Samsung Electronics America,
+Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
+(1993).
</para></footnote>)
</para>
<para>
-We can only speculate about how photography would have
- developed
-had the law gone the other way. If the presumption had been
-against the photographer, then the photographer would have had to
-demonstrate permission. Perhaps Eastman Kodak would have had to
-demonstrate permission, too, before it developed the film upon which
-images were captured. After all, if permission were not granted, then
-Eastman Kodak would be benefiting from the "theft" committed by
-the photographer. Just as Napster benefited from the copyright
- infringements
-committed by Napster users, Kodak would be benefiting
+We can only speculate about how photography would have developed had
+the law gone the other way. If the presumption had been against the
+photographer, then the photographer would have had to demonstrate
+permission. Perhaps Eastman Kodak would have had to demonstrate
+permission, too, before it developed the film upon which images were
+captured. After all, if permission were not granted, then Eastman
+Kodak would be benefiting from the "theft" committed by the
+photographer. Just as Napster benefited from the copyright
+infringements committed by Napster users, Kodak would be benefiting
from the "image-right" infringement of its photographers. We could
imagine the law then requiring that some form of permission be
-demonstrated before a company developed pictures. We could imagine
-a system developing to demonstrate that permission.
+demonstrated before a company developed pictures. We could imagine a
+system developing to demonstrate that permission.
</para>
<para>
<!-- PAGE BREAK 48 -->
-But though we could imagine this system of permission, it would
-be very hard to see how photography could have flourished as it did if
-the requirement for permission had been built into the rules that
- govern
-it. Photography would have existed. It would have grown in
- importance
-over time. Professionals would have continued to use the
-technology as they did—since professionals could have more easily borne
-the burdens of the permission system. But the spread of photography
-to ordinary people would not have occurred. Nothing like that growth
-would have been realized. And certainly, nothing like that growth in a
-democratic technology of expression would have been realized.
-If you drive through San Francisco's Presidio, you might see two
-gaudy yellow school buses painted over with colorful and striking
- images,
-and the logo "Just Think!" in place of the name of a school. But
-there's little that's "just" cerebral in the projects that these busses
- enable.
-These buses are filled with technologies that teach kids to tinker
-with film. Not the film of Eastman. Not even the film of your VCR.
-Rather the "film" of digital cameras. Just Think! is a project that
- enables
-kids to make films, as a way to understand and critique the filmed
-culture that they find all around them. Each year, these busses travel to
-more than thirty schools and enable three hundred to five hundred
-children to learn something about media by doing something with
- media.
-By doing, they think. By tinkering, they learn.
+But though we could imagine this system of permission, it would be
+very hard to see how photography could have flourished as it did if
+the requirement for permission had been built into the rules that
+govern it. Photography would have existed. It would have grown in
+importance over time. Professionals would have continued to use the
+technology as they did—since professionals could have more
+easily borne the burdens of the permission system. But the spread of
+photography to ordinary people would not have occurred. Nothing like
+that growth would have been realized. And certainly, nothing like that
+growth in a democratic technology of expression would have been
+realized. If you drive through San Francisco's Presidio, you might
+see two gaudy yellow school buses painted over with colorful and
+striking images, and the logo "Just Think!" in place of the name of a
+school. But there's little that's "just" cerebral in the projects that
+these busses enable. These buses are filled with technologies that
+teach kids to tinker with film. Not the film of Eastman. Not even the
+film of your VCR. Rather the "film" of digital cameras. Just Think!
+is a project that enables kids to make films, as a way to understand
+and critique the filmed culture that they find all around them. Each
+year, these busses travel to more than thirty schools and enable three
+hundred to five hundred children to learn something about media by
+doing something with media. By doing, they think. By tinkering, they
+learn.
</para>
<para>
These buses are not cheap, but the technology they carry is
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-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."
+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."
</para>
<para>
This may seem like an odd way to think about "literacy." For most
<para>
Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
- commercials
-generally,<footnote><para>
+commercials generally,<footnote><para>
<!-- f10 -->
Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
reflecting upon what one has written. One learns to write with images
by making them and then reflecting upon what one has created.
</para>
+<indexterm><primary>Crichton, Michael</primary></indexterm>
<para>
-This grammar has changed as media has changed. When it was just
-film, as Elizabeth Daley, executive director of the University of
- Southern
+This grammar has changed as media has changed. When it was just film,
+as Elizabeth Daley, executive director of the University of Southern
California's Annenberg Center for Communication and dean of the
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
- texture."<footnote><para>
+about "the placement of objects, color, . . . rhythm, pacing, and
+texture."<footnote>
+<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
2002.
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<indexterm><primary>Daley, Elizabeth</primary></indexterm>
</para></footnote>
But as computers open up an interactive space where a story is
"played" as well as experienced, that grammar changes. The simple
-control of narrative is lost, and so other techniques are necessary.
- Author
+control of narrative is lost, and so other techniques are necessary. Author
Michael Crichton had mastered the narrative of science fiction.
But when he tried to design a computer game based on one of his
works, it was a new craft he had to learn. How to lead people through
to a wildly successful author.<footnote><para>
<!-- f12 -->
See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
- November
-2000, available at
+November 2000, available at
<ulink url="http://free-culture.cc/notes/">link #8</ulink>; "Timeline," 22 November 2000,
- available
-at
+available at
<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
</para></footnote>
</para>
+<indexterm><primary>computer games</primary></indexterm>
<para>
-This skill is precisely the craft a filmmaker learns. As Daley
- describes,
-"people are very surprised about how they are led through a
+This skill is precisely the craft a filmmaker learns. As Daley
+describes, "people are very surprised about how they are led through a
film. [I]t is perfectly constructed to keep you from seeing it, so you
have no idea. If a filmmaker succeeds you do not know how you were
led." If you know you were led through a film, the film has failed.
</para>
<para>
-Yet the push for an expanded literacy—one that goes beyond text to
-include audio and visual elements—is not about making better film
- directors.
-The aim is not to improve the profession of filmmaking at all.
-Instead, as Daley explained,
+Yet the push for an expanded literacy—one that goes beyond text
+to include audio and visual elements—is not about making better
+film directors. The aim is not to improve the profession of
+filmmaking at all. Instead, as Daley explained,
</para>
<blockquote>
<para>
<!-- 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><para>
+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>
<!-- f14 -->
Ibid.
</para></footnote>
</para>
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
-As with any language, this language comes more easily to some
-than to others. It doesn't necessarily come more easily to those who
- excel
-in written language. Daley and Stephanie Barish, director of the
- Institute
-for Multimedia Literacy at the Annenberg Center, describe one
-particularly poignant example of a project they ran in a high school.
-The high school was a very poor inner-city Los Angeles school. In all
-the traditional measures of success, this school was a failure. But Daley
-and Barish ran a program that gave kids an opportunity to use film
-to express meaning about something the students know something
-about—gun violence.
+As with any language, this language comes more easily to some than to
+others. It doesn't necessarily come more easily to those who excel in
+written language. Daley and Stephanie Barish, director of the
+Institute for Multimedia Literacy at the Annenberg Center, describe
+one particularly poignant example of a project they ran in a high
+school. The high school was a very poor inner-city Los Angeles
+school. In all the traditional measures of success, this school was a
+failure. But Daley and Barish ran a program that gave kids an
+opportunity to use film to express meaning about something the
+students know something about—gun violence.
</para>
<para>
The class was held on Friday afternoons, and it created a relatively
what education should be about—learning how to express themselves.
</para>
<para>
-Using whatever "free web stuff they could find," and relatively
- simple
+Using whatever "free web stuff they could find," and relatively simple
tools to enable the kids to mix "image, sound, and text," Barish said
this class produced a series of projects that showed something about
gun violence that few would otherwise understand. This was an issue
-close to the lives of these students. The project "gave them a tool and
-empowered them to be able to both understand it and talk about it,"
-Barish explained. That tool succeeded in creating expression—far more
-successfully and powerfully than could have been created using only
-text. "If you had said to these students, `you have to do it in text,' they
-would've just thrown their hands up and gone and done something
-else," Barish described, in part, no doubt, because expressing
- themselves
-in text is not something these students can do well. Yet neither
-is text a form in which these ideas can be expressed well. The power of
-this message depended upon its connection to this form of expression.
+close to the lives of these students. The project "gave them a tool
+and empowered them to be able to both understand it and talk about
+it," Barish explained. That tool succeeded in creating
+expression—far more successfully and powerfully than could have
+been created using only text. "If you had said to these students, `you
+have to do it in text,' they would've just thrown their hands up and
+gone and done something else," Barish described, in part, no doubt,
+because expressing themselves in text is not something these students
+can do well. Yet neither is text a form in which these ideas can be
+expressed well. The power of this message depended upon its connection
+to this form of expression.
</para>
<para>
</para></footnote>
</para>
<para>
-This different cycle is possible because the same commercial
- pressures
+This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
newspapers are commercial entities. They must work to keep attention.
-If they lose readers, they lose revenue. Like sharks, they must move on.
+If they lose readers, they lose revenue. Like sharks, they must move
+on.
</para>
<para>
But bloggers don't have a similar constraint. They can obsess, they
-can focus, they can get serious. If a particular blogger writes a
- particularly
-interesting story, more and more people link to that story. And as
-the number of links to a particular story increases, it rises in the ranks
-of stories. People read what is popular; what is popular has been
- selected
-by a very democratic process of peer-generated rankings.
+can focus, they can get serious. If a particular blogger writes a
+particularly interesting story, more and more people link to that
+story. And as the number of links to a particular story increases, it
+rises in the ranks of stories. People read what is popular; what is
+popular has been selected by a very democratic process of
+peer-generated rankings.
</para>
<para>
There's a second way, as well, in which blogs have a different cycle
conflict of interest is so easily disclosed that you know you can sort of
get it out of the way."
</para>
+<indexterm><primary>CNN</primary></indexterm>
<para>
These conflicts become more important as media becomes more
-concentrated (more on this below). A concentrated media can hide
-more from the public than an unconcentrated media can—as CNN
-admitted it did after the Iraq war because it was afraid of the
- consequences
-to its own employees.<footnote><para>
+concentrated (more on this below). A concentrated media can hide more
+from the public than an unconcentrated media can—as CNN admitted
+it did after the Iraq war because it was afraid of the consequences to
+its own employees.<footnote><para>
<!-- f19 -->
Telephone interview with David Winer, 16 April 2003.
</para></footnote>
-It also needs to sustain a more
- coherent
-account. (In the middle of the Iraq war, I read a post on the
-Internet from someone who was at that time listening to a satellite
- uplink
-with a reporter in Iraq. The New York headquarters was telling the
-reporter over and over that her account of the war was too bleak: She
-needed to offer a more optimistic story. When she told New York that
-wasn't warranted, they told her that they were writing "the story.")
-</para>
-<para>
-Blog space gives amateurs a way to enter the debate—"amateur" not
-in the sense of inexperienced, but in the sense of an Olympic athlete,
-meaning not paid by anyone to give their reports. It allows for a much
-broader range of input into a story, as reporting on the Columbia
- disaster
-revealed, when hundreds from across the southwest United States
-turned to the Internet to retell what they had seen.<footnote><para>
+It also needs to sustain a more coherent
+account. (In the middle of the Iraq war, I read a post on the Internet
+from someone who was at that time listening to a satellite uplink with
+a reporter in Iraq. The New York headquarters was telling the reporter
+over and over that her account of the war was too bleak: She needed to
+offer a more optimistic story. When she told New York that wasn't
+warranted, they told her that they were writing "the story.")
+</para>
+<para> Blog space gives amateurs a way to enter the
+debate—"amateur" not in the sense of inexperienced, but in the
+sense of an Olympic athlete, meaning not paid by anyone to give their
+reports. It allows for a much broader range of input into a story, as
+reporting on the Columbia disaster revealed, when hundreds from across
+the southwest United States turned to the Internet to retell what they
+had seen.<footnote><para>
<!-- f20 -->
-John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
- Information
-Online," New York Times, 2 February 2003, A28; Staci D. Kramer,
-"Shuttle Disaster Coverage Mixed, but Strong Overall," Online
- Journalism
-Review, 2 February 2003, available at
+John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
+Information Online," New York Times, 2 February 2003, A28; Staci
+D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
+Online Journalism Review, 2 February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #10</ulink>.
</para></footnote>
-And it drives
-readers to read across the range of accounts and "triangulate," as Winer
-puts it, the truth. Blogs, Winer says, are "communicating directly with
-our constituency, and the middle man is out of it"—with all the
- benefits,
-and costs, that might entail.
+And it drives readers to read across the range of accounts and
+"triangulate," as Winer puts it, the truth. Blogs, Winer says, are
+"communicating directly with our constituency, and the middle man is
+out of it"—with all the benefits, and costs, that might entail.
</para>
<para>
-Winer is optimistic about the future of journalism infected with
-blogs. "It's going to become an essential skill," Winer predicts, for
- public
-figures and increasingly for private figures as well. It's not clear that
-"journalism" is happy about this—some journalists have been told to
-
curtail their blogging.<footnote><para>
+Winer is optimistic about the future of journalism infected
+with blogs. "It's going to become an essential skill," Winer predicts,
+for public figures and increasingly for private figures as well. It's
+not clear that "journalism" is happy about this—some journalists
+have been told to curtail their blogging.<footnote>
+<para>
<!-- f21 -->
See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
York Times, 29 September 2003, C4. ("Not all news organizations have
-been as accepting of employees who blog. Kevin Sites, a CNN
- correspondent
-in Iraq who started a blog about his reporting of the war on March 9,
-stopped posting 12 days later at his bosses' request. Last year Steve
- Olafson,
-a Houston Chronicle reporter, was fired for keeping a personal Web log,
-published under a pseudonym, that dealt with some of the issues and
-people he was covering.")
+been as accepting of employees who blog. Kevin Sites, a CNN
+correspondent in Iraq who started a blog about his reporting of the
+war on March 9, stopped posting 12 days later at his bosses'
+request. Last year Steve Olafson, a Houston Chronicle reporter, was
+fired for keeping a personal Web log, published under a pseudonym,
+that dealt with some of the issues and people he was covering.")
+<indexterm><primary>CNN</primary></indexterm>
</para></footnote>
But it is clear that we are still in transition. "A
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
of recognition.
</para>
<para>
-Yet the freedom to tinker with these objects is not guaranteed.
- Indeed,
-as we'll see through the course of this book, that freedom is
- increasingly
-highly contested. While there's no doubt that your father
-had the right to tinker with the car engine, there's great doubt that your
-child will have the right to tinker with the images she finds all around.
-The law and, increasingly, technology interfere with a freedom that
-technology, and curiosity, would otherwise ensure.
+Yet the freedom to tinker with these objects is not guaranteed.
+Indeed, as we'll see through the course of this book, that freedom is
+increasingly highly contested. While there's no doubt that your father
+had the right to tinker with the car engine, there's great doubt that
+your child will have the right to tinker with the images she finds all
+around. The law and, increasingly, technology interfere with a
+freedom that technology, and curiosity, would otherwise ensure.
</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
+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
-tinker" as it applies to computer science and to knowledge in general.<footnote><para>
+tinker" as it applies to computer science and to knowledge in
+general.<footnote><para>
<!-- f22 -->
-See, for example, Edward Felten and Andrew Appel, "Technological
- Access
+See, for example, Edward Felten and Andrew Appel, "Technological Access
Control Interferes with Noninfringing Scholarship," Communications
of the Association for Computer Machinery 43 (2000): 9.
</para></footnote>
about the learning that kids can do, or can't do, because of the law.
</para>
<para>
-"This is where education in the twenty-first century is going,"
-Brown explains. We need to "understand how kids who grow up
- digital
-think and want to learn."
+"This is where education in the twenty-first century is going," Brown
+explains. We need to "understand how kids who grow up digital think
+and want to learn."
</para>
<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
- architecture
-that unleashes 60 percent of the brain [and] a legal system that
-closes down that part of the brain."
+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>
We're building a technology that takes the magic of Kodak, mixes
<sect1 id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
<para>
-In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled
-as a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
-His major at RPI was information technology. Though he is not a
- programmer,
-in October Jesse decided to begin to tinker with search
- engine
-technology that was available on the RPI network.
+In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
+a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
+His major at RPI was information technology. Though he is not a
+programmer, in October Jesse decided to begin to tinker with search
+engine technology that was available on the RPI network.
</para>
<para>
-RPI is one of America's foremost technological research
- institutions.
-It offers degrees in fields ranging from architecture and
- engineering
-to information sciences. More than 65 percent of its five
-thousand undergraduates finished in the top 10 percent of their high
-school class. The school is thus a perfect mix of talent and experience
-to imagine and then build, a generation for the network age.
+RPI is one of America's foremost technological research institutions.
+It offers degrees in fields ranging from architecture and engineering
+to information sciences. More than 65 percent of its five thousand
+undergraduates finished in the top 10 percent of their high school
+class. The school is thus a perfect mix of talent and experience to
+imagine and then build, a generation for the network age.
</para>
<para>
-RPI's computer network links students, faculty, and administration
-to one another. It also links RPI to the Internet. Not everything
- available
-on the RPI network is available on the Internet. But the network
-is designed to enable students to get access to the Internet, as well as
-more intimate access to other members of the RPI community.
+RPI's computer network links students, faculty, and administration to
+one another. It also links RPI to the Internet. Not everything
+available on the RPI network is available on the Internet. But the
+network is designed to enable students to get access to the Internet,
+as well as more intimate access to other members of the RPI community.
</para>
<para>
Search engines are a measure of a network's intimacy. Google
<!-- PAGE BREAK 62 -->
-brought the Internet much closer to all of us by fantastically improving
-the quality of search on the network. Specialty search engines can do
-this even better. The idea of "intranet" search engines, search engines
-that search within the network of a particular institution, is to provide
-users of that institution with better access to material from that
- institution.
-Businesses do this all the time, enabling employees to have
- access
-to material that people outside the business can't get. Universities
-do it as well.
-</para>
-<para>
-These engines are enabled by the network technology itself.
- Microsoft,
-for example, has a network file system that makes it very easy
-for search engines tuned to that network to query the system for
- information
-about the publicly (within that network) available content.
-Jesse's search engine was built to take advantage of this technology. It
-used Microsoft's network file system to build an index of all the files
-available within the RPI network.
-</para>
-<para>
-Jesse's wasn't the first search engine built for the RPI network.
- Indeed,
-his engine was a simple modification of engines that others had
-built. His single most important improvement over those engines was
-to fix a bug within the Microsoft file-sharing system that could cause a
-user's computer to crash. With the engines that existed before, if you
-tried to access a file through a Windows browser that was on a
- computer
-that was off-line, your computer could crash. Jesse modified the
-system a bit to fix that problem, by adding a button that a user could
-click to see if the machine holding the file was still on-line.
+brought the Internet much closer to all of us by fantastically
+improving the quality of search on the network. Specialty search
+engines can do this even better. The idea of "intranet" search
+engines, search engines that search within the network of a particular
+institution, is to provide users of that institution with better
+access to material from that institution. Businesses do this all the
+time, enabling employees to have access to material that people
+outside the business can't get. Universities do it as well.
+</para>
+<para>
+These engines are enabled by the network technology itself.
+Microsoft, for example, has a network file system that makes it very
+easy for search engines tuned to that network to query the system for
+information about the publicly (within that network) available
+content. Jesse's search engine was built to take advantage of this
+technology. It used Microsoft's network file system to build an index
+of all the files available within the RPI network.
+</para>
+<para>
+Jesse's wasn't the first search engine built for the RPI network.
+Indeed, his engine was a simple modification of engines that others
+had built. His single most important improvement over those engines
+was to fix a bug within the Microsoft file-sharing system that could
+cause a user's computer to crash. With the engines that existed
+before, if you tried to access a file through a Windows browser that
+was on a computer that was off-line, your computer could crash. Jesse
+modified the system a bit to fix that problem, by adding a button that
+a user could click to see if the machine holding the file was still
+on-line.
</para>
<para>
Jesse's engine went on-line in late October. Over the following six
</para>
<para>
But the index also included music files. In fact, one quarter of the
-files that Jesse's search engine listed were music files. But that means,
-of course, that three quarters were not, and—so that this point is
- absolutely
-clear—Jesse did nothing to induce people to put music files in
-their public folders. He did nothing to target the search engine to these
-files. He was a kid tinkering with a Google-like technology at a
- university
-where he was studying information science, and hence,
- tinkering
-was the aim. Unlike Google, or Microsoft, for that matter, he made
-no money from this tinkering; he was not connected to any business
-that would make any money from this experiment. He was a kid
- tinkering
-with technology in an environment where tinkering with
- technology
-was precisely what he was supposed to do.
+files that Jesse's search engine listed were music files. But that
+means, of course, that three quarters were not, and—so that this
+point is absolutely clear—Jesse did nothing to induce people to
+put music files in their public folders. He did nothing to target the
+search engine to these files. He was a kid tinkering with a
+Google-like technology at a university where he was studying
+information science, and hence, tinkering was the aim. Unlike Google,
+or Microsoft, for that matter, he made no money from this tinkering;
+he was not connected to any business that would make any money from
+this experiment. He was a kid tinkering with technology in an
+environment where tinkering with technology was precisely what he was
+supposed to do.
</para>
<para>
On April 3, 2003, Jesse was contacted by the dean of students at
RPI. The dean informed Jesse that the Recording Industry Association
of America, the RIAA, would be filing a lawsuit against him and three
-other students whom he didn't even know, two of them at other
- universities.
-A few hours later, Jesse was served with papers from the suit.
-As he read these papers and watched the news reports about them, he
-was increasingly astonished.
-</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 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
-search engine, which Jesse had not himself built, using the Windows
- filesharing
-system, which Jesse had not himself built, to enable members
-of the RPI community to get access to content, which Jesse had not
-himself created or posted, and the vast majority of which had nothing
-to do with music.
+other students whom he didn't even know, two of them at other
+universities. A few hours later, Jesse was served with papers from
+the suit. As he read these papers and watched the news reports about
+them, he was increasingly astonished.
+</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
+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 search engine, which Jesse had not
+himself built, using the Windows filesharing system, which Jesse had
+not himself built, to enable members of the RPI community to get
+access to content, which Jesse had not himself created or posted, and
+the vast majority of which had nothing to do with music.
</para>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
</para>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
-refused. They wanted him to agree to an injunction that would
- essentially
-make it impossible for him to work in many fields of technology
-for the rest of his life. He refused. They made him understand that this
-process of being sued was not going to be pleasant. (As Jesse's father
-recounted to me, the chief lawyer on the case, Matt Oppenheimer, told
-Jesse, "You don't want to pay another visit to a dentist like me.") And
-throughout, the RIAA insisted it would not settle the case until it took
-every penny Jesse had saved.
+refused. They wanted him to agree to an injunction that would
+essentially make it impossible for him to work in many fields of
+technology for the rest of his life. He refused. They made him
+understand that this process of being sued was not going to be
+pleasant. (As Jesse's father recounted to me, the chief lawyer on the
+case, Matt Oppenheimer, told Jesse, "You don't want to pay another
+visit to a dentist like me.") And throughout, the RIAA insisted it
+would not settle the case until it took every penny Jesse had saved.
</para>
<para>
Jesse's family was outraged at these claims. They wanted to fight.
paper saying he and his family were bankrupt.
</para>
<para>
-So Jesse faced a mafia-like choice: $250,000 and a chance at
- winning,
+So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
<para>
</para></footnote>
There are plenty of ways for the RIAA to affect
and direct policy. So where is the morality in taking money from a
- student
-for running a search engine?<footnote><para>
+student for running a search engine?<footnote><para>
<!-- f3 -->
Douglas Lichtman makes a related point in "KaZaA and Punishment,"
Wall Street Journal, 10 September 2003, A24.
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
ever foresee anything like this, but I think it's just completely
- absurd
-what the RIAA has done.
+absurd what the RIAA has done.
</para>
</blockquote>
<para>
<sect1 id="pirates">
<title>CHAPTER FOUR: "Pirates"</title>
<para>
-
If "piracy" means using the creative property of others without
their permission—if "if value, then right" is true—then the history of
the content industry is a history of piracy. Every important sector of
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- f1 -->
I am grateful to Peter DiMauro for pointing me to this extraordinary
- history.
-See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
+history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
which details Edison's "adventures" with copyright and patent.
</para></footnote>
-Creators
-and directors migrated from the East Coast to California in the early
-twentieth century in part to escape controls that patents granted the
-inventor of filmmaking, Thomas Edison. These controls were
- exercised
-through a monopoly "trust," the Motion Pictures Patents
- Company,
-and were based on Thomas Edison's creative property—patents.
-Edison formed the MPPC to exercise the rights this creative property
+Creators and directors migrated from the East Coast to California in
+the early twentieth century in part to escape controls that patents
+granted the inventor of filmmaking, Thomas Edison. These controls were
+exercised through a monopoly "trust," the Motion Pictures Patents
+Company, and were based on Thomas Edison's creative
+property—patents. Edison formed the MPPC to exercise the rights
+this creative property
<!-- PAGE BREAK 67 -->
gave him, and the MPPC was serious about the control it demanded.
</para>
imported film stock to create their own underground market.
</para>
<para>
-With the country experiencing a tremendous expansion in the
-number of nickelodeons, the Patents Company reacted to the
- independent
-movement by forming a strong-arm subsidiary known
-as the General Film Company to block the entry of non-licensed
-independents. With coercive tactics that have become legendary,
-General Film confiscated unlicensed equipment, discontinued
-product supply to theaters which showed unlicensed films, and
-effectively monopolized distribution with the acquisition of all
-U.S. film exchanges, except for the one owned by the independent
-William Fox who defied the Trust even after his license was
- revoked.<footnote><para>
+With the country experiencing a tremendous expansion in the number of
+nickelodeons, the Patents Company reacted to the independent movement
+by forming a strong-arm subsidiary known as the General Film Company
+to block the entry of non-licensed independents. With coercive tactics
+that have become legendary, General Film confiscated unlicensed
+equipment, discontinued product supply to theaters which showed
+unlicensed films, and effectively monopolized distribution with the
+acquisition of all U.S. film exchanges, except for the one owned by
+the independent William Fox who defied the Trust even after his
+license was revoked.<footnote><para>
<!-- f2 -->
J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
posted at "The Edison Movie Monopoly: The Motion Picture Patents
Company vs. the Independent Outlaws," available at
-<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
- discussion
-of the economic motive behind both these limits and the limits
-imposed by Victor on phonographs, see Randal C. Picker, "From Edison
-to the Broadcast Flag: Mechanisms of Consent and Refusal and 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>
+<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
+discussion of the economic motive behind both these limits and the
+limits imposed by Victor on phonographs, see Randal C. Picker, "From
+Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
+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>
</para>
</blockquote>
<para>
The Napsters of those days, the "independents," were companies like
-Fox. And no less than today, these independents were vigorously
- resisted.
-"Shooting was disrupted by machinery stolen, and `accidents'
-resulting in loss of negatives, equipment, buildings and sometimes life
-and limb frequently occurred."<footnote><para>
+Fox. And no less than today, these independents were vigorously
+resisted. "Shooting was disrupted by machinery stolen, and
+`accidents' resulting in loss of negatives, equipment, buildings and
+sometimes life and limb frequently occurred."<footnote><para>
<!-- f3 -->
Marc Wanamaker, "The First Studios," The Silents Majority, archived at
-
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
-That led the independents to flee the
-East Coast. California was remote enough from Edison's reach that
- filmmakers
-there could pirate his inventions without fear of the law. And the
-leaders of Hollywood filmmaking, Fox most prominently, did just that.
+That led the independents to flee the East
+Coast. California was remote enough from Edison's reach that
+filmmakers there could pirate his inventions without fear of the
+law. And the leaders of Hollywood filmmaking, Fox most prominently,
+did just that.
</para>
<para>
Of course, California grew quickly, and the effective enforcement
<!-- PAGE BREAK 68 -->
time), by the time enough federal marshals appeared, the patents had
-expired. A new industry had been born, in part from the piracy of
- Edison's
-creative property.
+expired. A new industry had been born, in part from the piracy of
+Edison's creative property.
</para>
</sect2>
<sect2 id="recordedmusic">
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
</para>
-<para>
-But what if I wanted to record "Happy Mose," using Edison's
-phonograph or Fourneaux's player piano? Here the law stumbled. It was
-clear enough that I would have to buy any copy of the musical score that
-I performed in making this recording. And it was clear enough that I
-would have to pay for any public performance of the work I was
- recording.
-But it wasn't totally clear that I would have to pay for a "public
- performance"
-if I recorded the song in my own house (even today, you don't
-owe the Beatles anything if you sing their songs in the shower), or if I
-recorded the song from memory (copies in your brain are not—yet—
-regulated by copyright law). So if I simply sang the song into a
- recording
-device in the privacy of my own home, it wasn't clear that I owed the
-composer anything. And more importantly, it wasn't clear whether I
-owed the composer anything if I then made copies of those recordings.
-Because of this gap in the law, then, I could effectively pirate someone
-else's song without paying its composer anything.
+<indexterm><primary>Beatles</primary></indexterm>
+<para>
+But what if I wanted to record "Happy Mose," using Edison's phonograph
+or Fourneaux's player piano? Here the law stumbled. It was clear
+enough that I would have to buy any copy of the musical score that I
+performed in making this recording. And it was clear enough that I
+would have to pay for any public performance of the work I was
+recording. But it wasn't totally clear that I would have to pay for a
+"public performance" if I recorded the song in my own house (even
+today, you don't owe the Beatles anything if you sing their songs in
+the shower), or if I recorded the song from memory (copies in your
+brain are not—yet— regulated by copyright law). So if I
+simply sang the song into a recording device in the privacy of my own
+home, it wasn't clear that I owed the composer anything. And more
+importantly, it wasn't clear whether I owed the composer anything if I
+then made copies of those recordings. Because of this gap in the law,
+then, I could effectively pirate someone else's song without paying
+its composer anything.
</para>
<para>
The composers (and publishers) were none too happy about
<para>
Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same and
-copyrights it. Along come the phonographic companies and
- companies
-who cut music rolls and deliberately steal the work of the brain
-
of the composer and publisher without any regard for [their] rights.<footnote><para>
+copyrights it. Along come the phonographic companies and companies who
+cut music rolls and deliberately steal the work of the brain of the
+composer and publisher without any regard for [their]
+rights.<footnote><para>
<!-- f4 -->
To Amend and Consolidate the Acts Respecting Copyright: Hearings on
S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th
-Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of
-South Dakota, chairman), reprinted in Legislative History of the
-Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
- Hackensack,
-N.J.: Rothman Reprints, 1976).
+Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
+of South Dakota, chairman), reprinted in Legislative History of the
+Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
+Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
</para>
</blockquote>
genius of American composers,"<footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
and the "music publishing industry"
was thereby "at the complete mercy of this one pirate."<footnote><para>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226
- (statement
-of Nathan Burkan, attorney for the Music Publishers Association).
+(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
As John Philip
Sousa put it, in as direct a way as possible, "When they make money
out of my pieces, I want a share of it."<footnote><para>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23
- (statement
-of John Philip Sousa, composer).
+(statement of John Philip Sousa, composer).
</para></footnote>
</para>
<para>
-These arguments have familiar echoes in the wars of our day. So,
-too, do the arguments on the other side. The innovators who
- developed
-the player piano argued that "it is perfectly demonstrable that the
-introduction of automatic music players has not deprived any
- composer
-of anything he had before their introduction." Rather, the
- machines
+These arguments have familiar echoes in the wars of our day. So, too,
+do the arguments on the other side. The innovators who developed the
+player piano argued that "it is perfectly demonstrable that the
+introduction of automatic music players has not deprived any composer
+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
thus set by Grisham, and copyright law ordinarily says you have no
permission to use Grisham's work except with permission of Grisham.
</para>
+<indexterm><primary>Beatles</primary></indexterm>
<para>
But the law governing recordings gives recording artists less. And
thus, in effect, the law subsidizes the recording industry through a kind
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 March 1967). I am grateful to Glenn Brown for drawing my attention
-to this report.
-</para></footnote>
+Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
+on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
+March 1967). I am grateful to Glenn Brown for drawing my attention to
+this report.</para></footnote>
</para>
</blockquote>
<para>
Cable TV was also born of a kind of piracy.
</para>
<para>
-When cable entrepreneurs first started wiring communities with
-cable television in 1948, most refused to pay broadcasters for the
- content
-that they echoed to their customers. Even when the cable
- companies
+When cable entrepreneurs first started wiring communities with cable
+television in 1948, most refused to pay broadcasters for the content
+that they echoed to their customers. Even when the cable companies
started selling access to television broadcasts, they refused to pay
<!-- PAGE BREAK 73 -->
for what they sold. Cable companies were thus Napsterizing
- broadcasters'
-content, but more egregiously than anything Napster ever did—
-Napster never charged for the content it enabled others to give away.
+broadcasters' content, but more egregiously than anything Napster ever
+did— Napster never charged for the content it enabled others to
+give away.
</para>
+<indexterm><primary>Anello, Douglas</primary></indexterm>
+<indexterm><primary>Burdick, Quentin</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
"unfair and potentially destructive competition."<footnote><para>
<!-- f13 -->
-Copyright Law Revision—CATV: Hearing on S. 1006 Before the
- Subcommittee
-on Patents, Trademarks, and Copyrights of the Senate
- Committee
-on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of
-Rosel H. Hyde, chairman of the Federal Communications Commission).
-</para></footnote>
-There may have
-been a "public interest" in spreading the reach of cable TV, but as
- Douglas
-Anello, general counsel to the National Association of
- Broadcasters,
-asked Senator Quentin Burdick during testimony, "Does public
+Copyright Law Revision—CATV: Hearing on S. 1006 Before the
+Subcommittee on Patents, Trademarks, and Copyrights of the Senate
+Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
+(statement of Rosel H. Hyde, chairman of the Federal Communications
+Commission).
+</para></footnote>
+There may have been a "public interest" in spreading the reach of cable
+TV, but as Douglas Anello, general counsel to the National Association
+of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
interest dictate that you use somebody else's property?"<footnote><para>
<!-- f14 -->
Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
</para>
</blockquote>
<para>
-Again, the demand of the copyright holders seemed reasonable
-enough:
+Again, the demand of the copyright holders seemed reasonable enough:
</para>
<blockquote>
<para>
</para>
</blockquote>
<para>
-These were "free-ride[rs]," Screen Actor's Guild president
- Charlton
-
Heston said, who were "depriving actors of compensation."<footnote><para>
+These were "free-ride[rs]," Screen Actor's Guild president Charlton
+Heston said, who were "depriving actors of
+compensation."<footnote><para>
<!-- f17 -->
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
</para></footnote>
</para>
<para>
-But again, there was another side to the debate. As Assistant
- Attorney
+But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
</para>
<blockquote>
<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
+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
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
how far back they should carry their right to compensation.<footnote><para>
<!-- f18 -->
-Copyright Law Revision—CATV, 216 (statement of Edwin M.
- Zimmerman,
-acting assistant attorney general).
+Copyright Law Revision—CATV, 216 (statement of Edwin M.
+Zimmerman, acting assistant attorney general).
</para></footnote>
</para>
</blockquote>
<para>
-Copyright owners took the cable companies to court. Twice the
-Supreme Court held that the cable companies owed the copyright
-owners nothing.
+Copyright owners took the cable companies to court. Twice the Supreme
+Court held that the cable companies owed the copyright owners nothing.
</para>
<para>
It took Congress almost thirty years before it resolved the question
of whether cable companies had to pay for the content they "pirated."
-In the end, Congress resolved this question in the same way that it
- resolved
-the question about record players and player pianos. Yes, cable
-companies would have to pay for the content that they broadcast; but
-the price they would have to pay was not set by the copyright owner.
-The price was set by law, so that the broadcasters couldn't exercise veto
-power over the emerging technologies of cable. Cable companies thus
-built their empire in part upon a "piracy" of the value created by
- broadcasters'
-content.
-</para>
-<para>
-These separate stories sing a common theme. If "piracy"
-means using value from someone else's creative property without
- permission
-from that creator—as it is increasingly described today<footnote><para>
+In the end, Congress resolved this question in the same way that it
+resolved the question about record players and player pianos. Yes,
+cable companies would have to pay for the content that they broadcast;
+but the price they would have to pay was not set by the copyright
+owner. The price was set by law, so that the broadcasters couldn't
+exercise veto power over the emerging technologies of cable. Cable
+companies thus built their empire in part upon a "piracy" of the value
+created by broadcasters' content.
+</para>
+<para>
+These separate stories sing a common theme. If "piracy" means
+using value from someone else's creative property without permission
+from that creator—as it is increasingly described
+today<footnote><para>
<!-- f19 -->
See, for example, National Music Publisher's Association, The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
<sect1 id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
-
-There is piracy of copyrighted material. Lots of it. This piracy
-comes in many forms. The most significant is commercial piracy, the
+There is piracy of copyrighted material. Lots of it. This piracy comes
+in many forms. The most significant is commercial piracy, the
unauthorized taking of other people's content within a commercial
-context. Despite the many justifications that are offered in its defense,
-this taking is wrong. No one should condone it, and the law should
-stop it.
+context. Despite the many justifications that are offered in its
+defense, this taking is wrong. No one should condone it, and the law
+should stop it.
</para>
<para>
But as well as copy-shop piracy, there is another kind of "taking"
that is more directly related to the Internet. That taking, too, seems
wrong to many, and it is wrong much of the time. Before we paint this
taking "piracy," however, we should understand its nature a bit more.
-For the harm of this taking is significantly more ambiguous than
- outright
-copying, and the law should account for that ambiguity, as it has
-so often done in the past.
+For the harm of this taking is significantly more ambiguous than
+outright copying, and the law should account for that ambiguity, as it
+has so often done in the past.
<!-- PAGE BREAK 76 -->
</para>
<sect2 id="piracy-i">
holder's permission. Developing nations may be able to use this to
gain the benefits of foreign patents at lower prices. This is a
promising strategy for developing nations within the TRIPS framework.
+<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote> In my view, more developing nations should take
advantage of that opportunity, but when they don't, then their laws
should be respected. And under the laws of these nations, this piracy
is flat out wrong.
</para>
<para>
-But as the examples from the four chapters that introduced this
-part suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
-at least, not all "piracy" is wrong if that term is understood in the way
-it is increasingly used today. Many kinds of "piracy" are useful and
- productive,
-to produce either new content or new ways of doing business.
-Neither our tradition nor any tradition has ever banned all "piracy" in
-that sense of the term.
+But as the examples from the four chapters that introduced this part
+suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
+at least, not all "piracy" is wrong if that term is understood in the
+way it is increasingly used today. Many kinds of "piracy" are useful
+and productive, to produce either new content or new ways of doing
+business. Neither our tradition nor any tradition has ever banned all
+"piracy" in that sense of the term.
</para>
<para>
This doesn't mean that there are no questions raised by the latest
Like every great advance in innovation on the Internet (and,
arguably,
off the Internet as well<footnote><para>
-<!-- f5 -->
+<!-- f5 -->
See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
National Bestseller That Changed the Way We Do Business (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
<para>
But just because the industry was wrong before does not mean it is
wrong today. To evaluate the real threat that p2p sharing presents to
-the industry in particular, and society in general—or at least the
- society
-that inherits the tradition that gave us the film industry, the record
-industry, the radio industry, cable TV, and the VCR—the question is
-not simply whether type A sharing is harmful. The question is also how
-harmful type A sharing is, and how beneficial the other types of
- sharing
-are.
+the industry in particular, and society in general—or at least
+the society that inherits the tradition that gave us the film
+industry, the record industry, the radio industry, cable TV, and the
+VCR—the question is not simply whether type A sharing is
+harmful. The question is also how harmful type A sharing is, and how
+beneficial the other types of sharing are.
</para>
<para>
We start to answer this question by focusing on the net harm, from
than 20 percent drop in the number of CDs released since 1999. That
no doubt accounts for some of the decrease in sales. Rising prices could
account for at least some of the loss. "From 1999 to 2001, the average
-price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote><para>
+price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote>
<!-- f13 -->
+<para>
Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
- February
-2003, available at
+February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #17</ulink>.
-</para></footnote>
-Competition
-from other forms of media could also account for some of the decline.
-As Jane Black of BusinessWeek notes, "The soundtrack to the film High
-Fidelity has a list price of $18.98. You could get the whole movie [on
-DVD] for $19.99."<footnote><para>
-<!-- f14 -->
+<indexterm><primary>Black, Jane</primary></indexterm>
+</para>
+</footnote>
+Competition from other forms of media could also account for some of the
+decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film
+High Fidelity has a list price of $18.98. You could get the whole movie
+[on DVD] for $19.99."<footnote><para>
+<!-- f14 -->
Ibid.
</para></footnote>
</para>
before statutory licensing, they don't have to pay the copyright
owner for the content they sell.
</para>
+<indexterm><primary>Bernstein, Leonard</primary></indexterm>
<para>
Type C sharing, then, is very much like used book stores or used
-record stores. It is different, of course, because the person making the
-content available isn't making money from making the content
- available.
-It is also different, of course, because in real space, when I sell a
-record, I don't have it anymore, while in cyberspace, when someone
-shares my 1949 recording of Bernstein's "Two Love Songs," I still have
-it. That difference would matter economically if the owner of the
-copyright were selling the record in competition to my sharing. But
-we're talking about the class of content that is not currently
- commercially
-available. The Internet is making it available, through
- cooperative
-sharing, without competing with the market.
+record stores. It is different, of course, because the person making
+the content available isn't making money from making the content
+available. It is also different, of course, because in real space,
+when I sell a record, I don't have it anymore, while in cyberspace,
+when someone shares my 1949 recording of Bernstein's "Two Love Songs,"
+I still have it. That difference would matter economically if the
+owner of the copyright were selling the record in competition to my
+sharing. But we're talking about the class of content that is not
+currently commercially available. The Internet is making it available,
+through cooperative sharing, without competing with the market.
</para>
<para>
It may well be, all things considered, that it would be better if the
great book!)
</para>
<para>
-Likewise for work in the public domain: This sharing benefits
- society
+Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
of type A sharing destroy the opportunity for type D sharing, then we
lose something important in order to protect type A content.
</para>
<para>
-The point throughout is this: While the recording industry
- understandably
-says, "This is how much we've lost," we must also ask, "How
-much has society gained from p2p sharing? What are the efficiencies?
-What is the content that otherwise would be unavailable?"
+The point throughout is this: While the recording industry
+understandably says, "This is how much we've lost," we must also ask,
+"How much has society gained from p2p sharing? What are the
+efficiencies? What is the content that otherwise would be
+unavailable?"
</para>
<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 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 cable TV, the
-question we should be asking about file sharing is how best to preserve
-its benefits while minimizing (to the extent possible) the wrongful harm
-it causes artists. The question is one of balance. The law should seek
-that balance, and that balance will be found only with time.
+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
+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
+cable TV, the question we should be asking about file sharing is how
+best to preserve its benefits while minimizing (to the extent
+possible) the wrongful harm it causes artists. The question is one of
+balance. The law should seek that balance, and that balance will be
+found only with time.
</para>
<para>
"But isn't the war just a war against illegal sharing? Isn't the target
control
over the future (cable).
</para>
+<indexterm><primary>Betamax</primary></indexterm>
<para>
-In the same year that Congress struck this balance, two major
- producers
-and distributors of film content filed a lawsuit against another
-technology, the video tape recorder (VTR, or as we refer to them today,
-VCRs) that Sony had produced, the Betamax. Disney's and Universal's
-claim against Sony was relatively simple: Sony produced a device,
- Disney
-and Universal claimed, that enabled consumers to engage in
- copyright
-infringement. Because the device that Sony built had a "record"
-button, the device could be used to record copyrighted movies and
-shows. Sony was therefore benefiting from the copyright infringement
-of its customers. It should therefore, Disney and Universal claimed, be
-partially liable for that infringement.
+In the same year that Congress struck this balance, two major
+producers and distributors of film content filed a lawsuit against
+another technology, the video tape recorder (VTR, or as we refer to
+them today, VCRs) that Sony had produced, the Betamax. Disney's and
+Universal's claim against Sony was relatively simple: Sony produced a
+device, Disney and Universal claimed, that enabled consumers to engage
+in copyright infringement. Because the device that Sony built had a
+"record" button, the device could be used to record copyrighted movies
+and shows. Sony was therefore benefiting from the copyright
+infringement of its customers. It should therefore, Disney and
+Universal claimed, be partially liable for that infringement.
</para>
<para>
There was something to Disney's and Universal's claim. Sony did
doubt the majority of shows would not have authorized copying. And
<!-- PAGE BREAK 89 -->
in the face of this obvious preference, Sony could have designed its
- system
-to minimize the opportunity for copyright infringement. It did
+system to minimize the opportunity for copyright infringement. It did
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
</para>
<para>
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "When
-there are 20, 30, 40 million of these VCRs in the land, we will be
- invaded
-by millions of `tapeworms,' eating away at the very heart and
-essence of the most precious asset the copyright owner has, his
- copyright."<footnote><para>
+champion. Valenti called VCRs "tapeworms." He warned, "When there are
+20, 30, 40 million of these VCRs in the land, we will be invaded by
+millions of `tapeworms,' eating away at the very heart and essence of
+the most precious asset the copyright owner has, his
+copyright."<footnote><para>
<!-- f18 -->
Copyright Infringements (Audio and Video Recorders): Hearing on
S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
Picture Association of America, Inc.).
</para></footnote>
-"One does not have to be trained in sophisticated marketing
-and creative judgment," he told Congress, "to understand the
- devastation
-on the after-theater marketplace caused by the hundreds of
- millions
-of tapings that will adversely impact on the future of the creative
+"One does not have to be trained in sophisticated marketing and
+creative judgment," he told Congress, "to understand the devastation
+on the after-theater marketplace caused by the hundreds of millions of
+tapings that will adversely impact on the future of the creative
community in this country. It is simply a question of basic economics
and plain common sense."<footnote><para>
<!-- f19 -->
Congress imposed did burden DAT producers, by taxing tape sales and
controlling the technology of DAT. See Audio Home Recording Act of
1992 (Title 17 of the United States Code), Pub. L. No. 102-563, 106 Stat.
-4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
+4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
eliminate the opportunity for free riding in the sense I've described. See
Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag,"
University of Chicago Law Review 70 (2003): 293–96.
seeped into our culture that we often don't even recognize their source.
I once overheard someone commenting on Kenneth Branagh's
adaptation
-of Henry V: "I liked it, but Shakespeare is so full of clichés."
+of Henry V: "I liked it, but Shakespeare is so full of clichés."
</para>
<para>
In 1774, almost 180 years after Romeo and Juliet was written, the
I see no Reason for granting a further Term now, which will not
hold as well for granting it again and again, as often as the Old
<!-- PAGE BREAK 101 -->
-ones Expire; so that should this Bill pass, it will in Effect be
- establishing
-a perpetual Monopoly, a Thing deservedly odious in
-the Eye of the Law; it will be a great Cramp to Trade, a
- Discouragement
-to Learning, no Benefit to the Authors, but a general
-Tax on the Publick; and all this only to increase the private Gain
-of the Booksellers.<footnote><para>
+ones Expire; so that should this Bill pass, it will in Effect be
+establishing a perpetual Monopoly, a Thing deservedly odious in the
+Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
+Learning, no Benefit to the Authors, but a general Tax on the Publick;
+and all this only to increase the private Gain of the
+Booksellers.<footnote><para>
<!-- f5 -->
A Letter to a Member of Parliament concerning the Bill now depending
in the House of Commons, for making more effectual an Act in the
-Eighth Year of the Reign of Queen Anne, entitled, An Act for the
- Encouragement
-of Learning, by Vesting the Copies of Printed Books in the
-Authors or Purchasers of such Copies, during the Times therein
- mentioned
-(London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et al., 8,
-Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618).
+Eighth Year of the Reign of Queen Anne, entitled, An Act for the
+Encouragement of Learning, by Vesting the Copies of Printed Books in
+the Authors or Purchasers of such Copies, during the Times therein
+mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
+al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618).
</para></footnote>
</para>
</blockquote>
<para>
-Having failed in Parliament, the publishers turned to the courts in
-a series of cases. Their argument was simple and direct: The Statute of
+Having failed in Parliament, the publishers turned to the courts in a
+series of cases. Their argument was simple and direct: The Statute of
Anne gave authors certain protections through positive law, but those
protections were not intended as replacements for the common law.
Instead, they were intended simply to supplement the common law.
-Under common law, it was already wrong to take another person's
- creative
-"property" and use it without his permission. The Statute of Anne,
-the booksellers argued, didn't change that. Therefore, just because the
-protections of the Statute of Anne expired, that didn't mean the
- protections
-of the common law expired: Under the common law they had
-the right to ban the publication of a book, even if its Statute of Anne
-copyright had expired. This, they argued, was the only way to protect
-authors.
-</para>
-<para>
-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 rancher has
-for cattle."<footnote><para>
+Under common law, it was already wrong to take another person's
+creative "property" and use it without his permission. The Statute of
+Anne, the booksellers argued, didn't change that. Therefore, just
+because the protections of the Statute of Anne expired, that didn't
+mean the protections of the common law expired: Under the common law
+they had the right to ban the publication of a book, even if its
+Statute of Anne copyright had expired. This, they argued, was the only
+way to protect authors.
+</para>
+<para>
+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
+rancher has for cattle."<footnote><para>
<!-- f6 -->
Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
Law Review 40 (1987): 28. For a wonderfully compelling account, see
Vaidhyanathan, 37–48.
</para></footnote>
-The bookseller didn't care squat for the rights of the
- author.
-His concern was the monopoly profit that the author's work gave.
+The bookseller didn't care squat for the rights of the author. His
+concern was the monopoly profit that the author's work gave.
</para>
<para>
The booksellers' argument was not accepted without a fight.
<!-- f9 -->
Ibid., 93.
</para></footnote>
+<indexterm><primary>Erskine, Andrew</primary></indexterm>
</para>
<para>
-When the London booksellers tried to shut down Donaldson's
-shop in Scotland, he responded by moving his shop to London, where
-he sold inexpensive editions "of the most popular English books, in
- defiance
-
of the supposed common law right of Literary Property."<footnote><para>
+When the London booksellers tried to shut down Donaldson's shop in
+Scotland, he responded by moving his shop to London, where he sold
+inexpensive editions "of the most popular English books, in defiance
+of the supposed common law right of Literary
+Property."<footnote><para>
<!-- f10 -->
Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting
Borwell).
</para></footnote>
-His
-books undercut the Conger prices by 30 to 50 percent, and he rested
-his right to compete upon the ground that, under the Statute of Anne,
-the works he was selling had passed out of protection.
+His books undercut the Conger prices by 30 to 50 percent, and he
+rested his right to compete upon the ground that, under the Statute of
+Anne, the works he was selling had passed out of protection.
</para>
<para>
The London booksellers quickly brought suit to block "piracy" like
the most important early victory being Millar v. Taylor.
</para>
<para>
-Millar was a bookseller who in 1729 had purchased the rights to
-James Thomson's poem "The Seasons." Millar complied with the
- requirements
-of the Statute of Anne, and therefore received the full
- protection
-of the statute. After the term of copyright ended, Robert Taylor
-began printing a competing volume. Millar sued, claiming a perpetual
-common law right, the Statute of Anne notwithstanding.<footnote><para>
+Millar was a bookseller who in 1729 had purchased the rights to James
+Thomson's poem "The Seasons." Millar complied with the requirements of
+the Statute of Anne, and therefore received the full protection of the
+statute. After the term of copyright ended, Robert Taylor began
+printing a competing volume. Millar sued, claiming a perpetual common
+law right, the Statute of Anne notwithstanding.<footnote><para>
<!-- f11 -->
-Howard B. Abrams, "The Historic Foundation of American Copyright
-Law: Exploding the Myth of Common Law Copyright," Wayne Law
- Review
-29 (1983): 1152.
+Howard B. Abrams, "The Historic Foundation of American Copyright Law:
+Exploding the Myth of Common Law Copyright," Wayne Law Review 29
+(1983): 1152.
</para></footnote>
</para>
<para>
-Astonishingly to modern lawyers, one of the greatest judges in
- English
+Astonishingly to modern lawyers, one of the greatest judges in English
history, Lord Mansfield, agreed with the booksellers. Whatever
protection the Statute of Anne gave booksellers, it did not, he held,
-extinguish any common law right. The question was whether the
-common law would protect the author against subsequent "pirates."
+extinguish any common law right. The question was whether the common
+law would protect the author against subsequent "pirates."
Mansfield's answer was yes: The common law would bar Taylor from
-reprinting Thomson's poem without Millar's permission. That
- common
-law rule thus effectively gave the booksellers a perpetual right to
+reprinting Thomson's poem without Millar's permission. That common law
+rule thus effectively gave the booksellers a perpetual right to
control the publication of any book assigned to them.
</para>
<para>
-Considered as a matter of abstract justice—reasoning as if justice
-were just a matter of logical deduction from first principles—Mansfield's
-conclusion might make some sense. But what it ignored was the larger
-issue that Parliament had struggled with in 1710: How best to limit
+Considered as a matter of abstract justice—reasoning as if
+justice were just a matter of logical deduction from first
+principles—Mansfield's conclusion might make some sense. But
+what it ignored was the larger issue that Parliament had struggled
+with in 1710: How best to limit
<!-- PAGE BREAK 103 -->
the monopoly power of publishers? Parliament's strategy was to offer a
term for existing works that was long enough to buy peace in 1710, but
short enough to assure that culture would pass into competition within
-a reasonable period of time. Within twenty-one years, Parliament
- believed,
-Britain would mature from the controlled culture that the
+a reasonable period of time. Within twenty-one years, Parliament
+believed, Britain would mature from the controlled culture that the
Crown coveted to the free culture that we inherited.
</para>
<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.
</para>
+<indexterm><primary>Beckett, Thomas</primary></indexterm>
<para>
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
</para>
<para>
The House of Lords was an odd institution. Legal questions were
-presented to the House and voted upon first by the "law lords,"
- members
-of special legal distinction who functioned much like the Justices
-in our Supreme Court. Then, after the law lords voted, the House of
-Lords generally voted.
+presented to the House and voted upon first by the "law lords,"
+members of special legal distinction who functioned much like the
+Justices in our Supreme Court. Then, after the law lords voted, the
+House of Lords generally voted.
</para>
<para>
The reports about the law lords' votes are mixed. On some counts,
it looks as if perpetual copyright prevailed. But there is no ambiguity
<!-- PAGE BREAK 104 -->
-about how the House of Lords voted as whole. By a two-to-one
- majority
+about how the House of Lords voted as whole. By a two-to-one majority
(22 to 11) they voted to reject the idea of perpetual copyrights.
-Whatever one's understanding of the common law, now a copyright
-was fixed for a limited time, after which the work protected by
- copyright
+Whatever one's understanding of the common law, now a copyright was
+fixed for a limited time, after which the work protected by copyright
passed into the public domain.
</para>
+<indexterm><primary>Bacon, Francis</primary></indexterm>
+<indexterm><primary>Bunyan, John</primary></indexterm>
<para>
"The public domain." Before the case of Donaldson v. Beckett, there
was no clear idea of a public domain in England. Before 1774, there
was a strong argument that common law copyrights were perpetual.
After 1774, the public domain was born. For the first time in
- Anglo-American
-history, the legal control over creative works expired, and the
-greatest works in English history—including those of Shakespeare,
-Bacon, Milton, Johnson, and Bunyan—were free of legal restraint.
+Anglo-American history, the legal control over creative works expired,
+and the greatest works in English history—including those of
+Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of
+legal restraint.
</para>
<para>
It is hard for us to imagine, but this decision by the House of Lords
fueled an extraordinarily popular and political reaction. In Scotland,
-where most of the "pirate publishers" did their work, people celebrated
-the decision in the streets. As the Edinburgh Advertiser reported, "No
-private cause has so much engrossed the attention of the public, and
-none has been tried before the House of Lords in the decision of
-which so many individuals were interested." "Great rejoicing in
- Edinburgh
-upon victory over literary property: bonfires and
- illuminations."<footnote><para>
+where most of the "pirate publishers" did their work, people
+celebrated the decision in the streets. As the Edinburgh Advertiser
+reported, "No private cause has so much engrossed the attention of the
+public, and none has been tried before the House of Lords in the
+decision of which so many individuals were interested." "Great
+rejoicing in Edinburgh upon victory over literary property: bonfires
+and illuminations."<footnote><para>
<!-- f13 -->
Rose, 97.
</para></footnote>
</para>
<para>
In London, however, at least among publishers, the reaction was
-equally strong in the opposite direction. The Morning Chronicle
- reported:
+equally strong in the opposite direction. The Morning Chronicle
+reported:
</para>
<blockquote>
<para>
-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 Copy-right, are in a manner ruined, and those who
-after many years industry thought they had acquired a
- competency
-to provide for their families now find themselves without a
-shilling to devise to their successors.<footnote><para>
+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
+Copy-right, are in a manner ruined, and those who after many years
+industry thought they had acquired a competency to provide for their
+families now find themselves without a shilling to devise to their
+successors.<footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<!-- PAGE BREAK 105 -->
"Ruined" is a bit of an exaggeration. But it is not an exaggeration to
say that the change was profound. The decision of the House of Lords
-meant that the booksellers could no longer control how culture in
- England
-would grow and develop. Culture in England was thereafter free.
-Not in the sense that copyrights would not be respected, for of course,
-for a limited time after a work was published, the bookseller had an
- exclusive
-right to control the publication of that book. And not in the
-sense that books could be stolen, for even after a copyright expired, you
-still had to buy the book from someone. But free in the sense that the
-culture and its growth would no longer be controlled by a small group
-of publishers. As every free market does, this free market of free culture
-would grow as the consumers and producers chose. English culture
-would develop as the many English readers chose to let it develop—
-chose in the books they bought and wrote; chose in the memes they
-repeated and endorsed. Chose in a competitive context, not a context
-in which the choices about what culture is available to people and
-how they get access to it are made by the few despite the wishes of
-the many.
-</para>
-<para>
-At least, this was the rule in a world where the Parliament is
- antimonopoly,
-resistant to the protectionist pleas of publishers. In a world
-where the Parliament is more pliant, free culture would be less
- protected.
+meant that the booksellers could no longer control how culture in
+England would grow and develop. Culture in England was thereafter
+free. Not in the sense that copyrights would not be respected, for of
+course, for a limited time after a work was published, the bookseller
+had an exclusive right to control the publication of that book. And
+not in the sense that books could be stolen, for even after a
+copyright expired, you still had to buy the book from someone. But
+free in the sense that the culture and its growth would no longer be
+controlled by a small group of publishers. As every free market does,
+this free market of free culture would grow as the consumers and
+producers chose. English culture would develop as the many English
+readers chose to let it develop— chose in the books they bought
+and wrote; chose in the memes they repeated and endorsed. Chose in a
+competitive context, not a context in which the choices about what
+culture is available to people and how they get access to it are made
+by the few despite the wishes of the many.
+</para>
+<para>
+At least, this was the rule in a world where the Parliament is
+antimonopoly, resistant to the protectionist pleas of publishers. In a
+world where the Parliament is more pliant, free culture would be less
+protected.
</para>
<!-- PAGE BREAK 106 -->
</sect1>
</para>
<para>
In 1990, Else was working on a documentary about Wagner's Ring
-Cycle. The focus was stagehands at the San Francisco Opera.
- Stagehands
-are a particularly funny and colorful element of an opera.
- 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.
+Cycle. The focus was stagehands at the San Francisco Opera.
+Stagehands are a particularly funny and colorful element of an opera.
+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.
</para>
<para>
-During one of the performances, Else was shooting some
- stagehands
+During one of the performances, Else was shooting some stagehands
playing checkers. In one corner of the room was a television set.
-Playing on the television set, while the stagehands played checkers and
-the opera company played Wagner, was The Simpsons. As Else judged
+Playing on the television set, while the stagehands played checkers
+and the opera company played Wagner, was The Simpsons. As Else judged
<!-- PAGE BREAK 107 -->
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
unless "fair use" or some other privilege applies.
</para>
<para>
-Else called Simpsons creator Matt Groening's office to get
- permission.
-Groening approved the shot. The shot was a
- four-and-a-halfsecond
-image on a tiny television set in the corner of the room. How
-could it hurt? Groening was happy to have it in the film, but he told
-Else to contact Gracie Films, the company that produces the program.
+Else called Simpsons creator Matt Groening's office to get permission.
+Groening approved the shot. The shot was a four-and-a-halfsecond image
+on a tiny television set in the corner of the room. How could it hurt?
+Groening was happy to have it in the film, but he told Else to contact
+Gracie Films, the company that produces the program.
</para>
<para>
Gracie Films was okay with it, too, but they, like Groening, wanted
Else said. He was just confirming the permission with Fox.
</para>
<para>
-Then, as Else told me, "two things happened. First we
- discovered
-. . . 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 Simpsons which
-was in the corner of the shot."
+Then, as Else told me, "two things happened. First we discovered
+. . . 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
+Simpsons 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 asking for your educational rate on this." That was the
- educational
+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
+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.
</para>
<para>
-"I wanted to make sure I had my facts straight," he told me. "Yes,
-you have your facts straight," she said. It would cost $10,000 to use the
-clip of The Simpsons in the corner of a shot in a documentary film about
+"I wanted to make sure I had my facts straight," he told me. "Yes, you
+have your facts straight," she said. It would cost $10,000 to use the
+clip of The Simpsons in the corner of a shot in a documentary film
+about
<!-- PAGE BREAK 108 -->
Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And
-if you quote me, I'll turn you over to our attorneys." As an assistant to
-Herrera told Else later on, "They don't give a shit. They just want the
-money."
+if you quote me, I'll turn you over to our attorneys." As an assistant
+to Herrera told Else later on, "They don't give a shit. They just want
+the money."
</para>
<para>
-Else didn't have the money to buy the right to replay what was
- playing
+Else didn't have the money to buy the right to replay what was playing
on the television backstage at the San Francisco Opera. To reproduce
-this reality was beyond the documentary filmmaker's budget. At the 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.
+this reality was beyond the documentary filmmaker's budget. At the
+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.
</para>
<para>
-There's no doubt that someone, whether Matt Groening or Fox,
-owns the copyright to The Simpsons. That copyright is their property.
-To use that copyrighted material thus sometimes requires the
- permission
-of the copyright owner. If the use that Else wanted to make of the
+There's no doubt that someone, whether Matt Groening or Fox, owns the
+copyright to The Simpsons. That copyright is their property. To use
+that copyrighted material thus sometimes requires the permission of
+the copyright owner. If the use that Else wanted to make of the
Simpsons copyright were one of the uses restricted by the law, then he
would need to get the permission of the copyright owner before he
-could use the work in that way. And in a free market, it is the owner of
-the copyright who gets to set the price for any use that the law says the
-owner gets to control.
+could use the work in that way. And in a free market, it is the owner
+of the copyright who gets to set the price for any use that the law
+says the owner gets to control.
</para>
<para>
-For example, "public performance" is a use of The Simpsons that
-the copyright owner gets to control. If you take a selection of favorite
+For example, "public performance" is a use of The Simpsons that the
+copyright owner gets to control. If you take a selection of favorite
episodes, rent a movie theater, and charge for tickets to come see "My
-Favorite Simpsons," then you need to get permission from the
- copyright
+Favorite Simpsons," then you need to get permission from the copyright
owner. And the copyright owner (rightly, in my view) can charge
-whatever she wants—$10 or $1,000,000. That's her right, as set by
-the law.
+whatever she wants—$10 or $1,000,000. That's her right, as set
+by the law.
</para>
<para>
But when lawyers hear this story about Jon Else and Fox, their first
thought is "fair use."<footnote><para>
<!-- f1 -->
-For an excellent argument that such use is "fair use," but that lawyers don't
-permit recognition that it is "fair use," see Richard A. Posner with William
-F. Patry, "Fair Use and Statutory Reform in the Wake of Eldred " (draft on
-file with author), University of Chicago Law School, 5 August 2003.
+For an excellent argument that such use is "fair use," but that
+lawyers don't permit recognition that it is "fair use," see Richard
+A. Posner with William F. Patry, "Fair Use and Statutory Reform in the
+Wake of Eldred " (draft on file with author), University of Chicago
+Law School, 5 August 2003.
</para></footnote>
-Else's use of just 4.5 seconds of an indirect shot
-of a Simpsons episode is clearly a fair use of The Simpsons—and fair use
-does not require the permission of anyone.
+Else's use of just 4.5 seconds of an indirect shot of a Simpsons
+episode is clearly a fair use of The Simpsons—and fair use does
+not require the permission of anyone.
</para>
<para>
<!-- PAGE BREAK 109 -->
</para>
<blockquote>
<para>
-The Simpsons fiasco was for me a great lesson in the gulf
- between
-what lawyers find irrelevant in some abstract sense, and
-what is crushingly relevant in practice to those of us actually
-trying to make and broadcast documentaries. I never had any
-doubt that it was "clearly fair use" in an absolute legal sense. But
-I couldn't rely on the concept in any concrete way. Here's why:
+The Simpsons fiasco was for me a great lesson in the gulf between what
+lawyers find irrelevant in some abstract sense, and what is crushingly
+relevant in practice to those of us actually trying to make and
+broadcast documentaries. I never had any doubt that it was "clearly
+fair use" in an absolute legal sense. But I couldn't rely on the
+concept in any concrete way. Here's why:
</para>
<orderedlist numeration="arabic">
<listitem><para>
<!-- 1. -->
-Before our films can be broadcast, the network requires
-that we buy Errors and Omissions insurance. The carriers
- require
-a detailed "visual cue sheet" listing the source and
- licensing
-status of each shot in the film. They take a dim view of
-"fair use," and a claim of "fair use" can grind the application
-process to a halt.
+Before our films can be broadcast, the network requires that we buy
+Errors and Omissions insurance. The carriers require a detailed
+"visual cue sheet" listing the source and licensing status of each
+shot in the film. They take a dim view of "fair use," and a claim of
+"fair use" can grind the application process to a halt.
</para></listitem>
<listitem><para>
<!-- 2. -->
-I probably never should have asked Matt Groening in the
-first place. But I knew (at least from folklore) that Fox had a
-history of tracking down and stopping unlicensed Simpsons
-usage, just as George Lucas had a very high profile litigating
-Star Wars usage. So I decided to play by the book, thinking
-that we would be granted free or cheap license to four seconds
-of Simpsons. As a documentary producer working to
- exhaustion
-on a shoestring, the last thing I wanted was to risk legal
-trouble, even nuisance legal trouble, and even to defend a
+I probably never should have asked Matt Groening in the first
+place. But I knew (at least from folklore) that Fox had a history of
+tracking down and stopping unlicensed Simpsons usage, just as George
+Lucas had a very high profile litigating Star Wars usage. So I decided
+to play by the book, thinking that we would be granted free or cheap
+license to four seconds of Simpsons. As a documentary producer working
+to exhaustion on a shoestring, the last thing I wanted was to risk
+legal trouble, even nuisance legal trouble, and even to defend a
principle.
</para></listitem>
<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 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 pockets, me or them.
+I did, in fact, speak with one of your colleagues at Stanford Law
+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
+pockets, me or them.
<!-- PAGE BREAK 110 -->
</para></listitem>
<listitem><para>
</orderedlist>
</blockquote>
<para>
-In theory, fair use means you need no permission. The theory
- therefore
-supports free culture and insulates against a permission culture.
-But in practice, fair use functions very differently. The fuzzy lines of
-the law, tied to the extraordinary liability if lines are crossed, means
-that the effective fair use for many types of creators is slight. The law
-has the right aim; practice has defeated the aim.
+In theory, fair use means you need no permission. The theory therefore
+supports free culture and insulates against a permission culture. But
+in practice, fair use functions very differently. The fuzzy lines of
+the law, tied to the extraordinary liability if lines are crossed,
+means that the effective fair use for many types of creators is
+slight. The law has the right aim; practice has defeated the aim.
</para>
<para>
This practice shows just how far the law has come from its
-eighteenth-century roots. The law was born as a shield to protect
- publishers'
-profits against the unfair competition of a pirate. It has matured
-into a sword that interferes with any use, transformative or not.
+eighteenth-century roots. The law was born as a shield to protect
+publishers' profits against the unfair competition of a pirate. It has
+matured into a sword that interferes with any use, transformative or
+not.
</para>
<!-- PAGE BREAK 111 -->
</sect1>
<sect1 id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
was an innovative company founded by Microsoft cofounder Paul Allen to
popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben had a special interest in new technology. He was intrigued by
the emerging market for CD-ROM technology—not to distribute
-film, but to do things with film that otherwise would be very difficult.
-In 1993, he launched an initiative to develop a product to build
- retrospectives
-on the work of particular actors. The first actor chosen was
-Clint Eastwood. The idea was to showcase all of the work of
- Eastwood,
-with clips from his films and interviews with figures important
-to his career.
-</para>
-<para>
-At that time, Eastwood had made more than fifty films, as an actor
-and as a director. Alben began with a series of interviews with
- Eastwood,
+film, but to do things with film that otherwise would be very
+difficult. In 1993, he launched an initiative to develop a product to
+build retrospectives on the work of particular actors. The first actor
+chosen was Clint Eastwood. The idea was to showcase all of the work of
+Eastwood, with clips from his films and interviews with figures
+important to his career.
+</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
+<para>
+At that time, Eastwood had made more than fifty films, as an actor and
+as a director. Alben began with a series of interviews with Eastwood,
asking him about his career. Because Starwave produced those
interviews, it was free to include them on the CD.
</para>
made. Most of his career was spent at Warner Brothers, and so it was
relatively easy to get permission for that content.
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Then Alben and his team decided to include actual film clips. "Our
-goal was that we were going to have a clip from every one of
- Eastwood's
-films," Alben told me. It was here that the problem arose. "No
-one had ever really done this before," Alben explained. "No one had
-ever tried to do this in the context of an artistic look at an actor's
-career."
+goal was that we were going to have a clip from every one of
+Eastwood's films," Alben told me. It was here that the problem
+arose. "No one had ever really done this before," Alben explained. "No
+one had ever tried to do this in the context of an artistic look at an
+actor's career."
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben brought the idea to Michael Slade, the CEO of Starwave.
Slade asked, "Well, what will it take?"
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben replied, "Well, we're going to have to clear rights from
everyone who appears in these films, and the music and everything
else that we want to use in these film clips." Slade said, "Great! Go
-for it."<footnote><para>
+for it."<footnote>
+<para>
<!-- f1 -->
-Technically, the rights that Alben had to clear were mainly those of
- publicity—rights
-an artist has to control the commercial exploitation of his
- image.
-But these rights, too, burden "Rip, Mix, Burn" creativity, as this chapter
-evinces.
+Technically, the rights that Alben had to clear were mainly those of
+publicity—rights an artist has to control the commercial
+exploitation of his image. But these rights, too, burden "Rip, Mix,
+Burn" creativity, as this chapter evinces.
+<indexterm>
+<primary>artists</primary>
+<secondary>publicity rights on images of</secondary>
+</indexterm>
</para></footnote>
</para>
<para>
</para>
<blockquote>
<para>
-So we very mechanically went about looking up the film clips.
-We made some artistic decisions about what film clips to
- include—of
-course we were going to use the "Make my day" clip
-from Dirty Harry. But you then need to get the guy on the ground
-who's wiggling under the gun and you need to get his
- permission.
-And then you have to decide what you are going to pay
-him.
+So we very mechanically went about looking up the film clips. We made
+some artistic decisions about what film clips to include—of
+course we were going to use the "Make my day" clip from Dirty
+Harry. But you then need to get the guy on the ground who's wiggling
+under the gun and you need to get his permission. And then you have
+to decide what you are going to pay him.
</para>
<para>
<!-- PAGE BREAK 113 -->
-We decided that it would be fair if we offered them the
- dayplayer
-rate for the right to reuse that performance. We're talking
-about a clip of less than a minute, but to reuse that performance
-in the CD-ROM the rate at the time was about $600.
-So we had to identify the people—some of them were hard to
-identify because in Eastwood movies you can't tell who's the guy
-crashing through the glass—is it the actor or is it the stuntman?
-And then we just, we put together a team, my assistant and some
-others, and we just started calling people.
+We decided that it would be fair if we offered them the dayplayer rate
+for the right to reuse that performance. We're talking about a clip of
+less than a minute, but to reuse that performance in the CD-ROM the
+rate at the time was about $600. So we had to identify the
+people—some of them were hard to identify because in Eastwood
+movies you can't tell who's the guy crashing through the
+glass—is it the actor or is it the stuntman? And then we just,
+we put together a team, my assistant and some others, and we just
+started calling people.
</para>
</blockquote>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
It was one year later—"and even then we weren't sure whether we
were totally in the clear."
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben is proud of his work. The project was the first of its kind and
the only time he knew of that a team had undertaken such a massive
</para>
<blockquote>
<para>
-Everyone thought it would be too hard. Everyone just threw up
-their hands and said, "Oh, my gosh, a film, it's so many
- copyrights,
-there's 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 systematically and cleared the rights.
+Everyone thought it would be too hard. Everyone just threw up their
+hands and said, "Oh, my gosh, a film, it's so many copyrights, there's
+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
+systematically and cleared the rights.
</para>
</blockquote>
<para>
And no doubt, the product itself was exceptionally good. Eastwood
loved it, and it sold very well.
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Drucker, Peter</primary></indexterm>
<para>
But I pressed Alben about how weird it seems that it would have to
-take a year's work simply to clear rights. No doubt Alben had done this
-efficiently, but as Peter Drucker has famously quipped, "There is
- nothing
-so useless as doing efficiently that which should not be done at
-all."<footnote><para>
+take a year's work simply to clear rights. No doubt Alben had done
+this efficiently, but as Peter Drucker has famously quipped, "There is
+nothing so useless as doing efficiently that which should not be done
+at all."<footnote><para>
<!-- f2 -->
U.S. Department of Commerce Office of Acquisition Management, Seven
Steps to Performance-Based Services Acquisition, available at
</blockquote>
<para>
Or at least, is this how the artist should be compensated? Would it
-make sense, I asked, for there to be some kind of statutory license that
-someone could pay and be free to make derivative use of clips like this?
-Did it really make sense that a follow-on creator would have to track
-down every artist, actor, director, musician, and get explicit permission
-from each? Wouldn't a lot more be created if the legal part of the
- creative
-process could be made to be more clean?
+make sense, I asked, for there to be some kind of statutory license
+that someone could pay and be free to make derivative use of clips
+like this? Did it really make sense that a follow-on creator would
+have to track down every artist, actor, director, musician, and get
+explicit permission from each? Wouldn't a lot more be created if the
+legal part of the creative process could be made to be more clean?
</para>
<blockquote>
<para>
-Absolutely. I think that if there were some fair-licensing
- mechanism—where
-you weren't subject to hold-ups and you weren't
+Absolutely. I think that if there were some fair-licensing
+mechanism—where you weren't subject to hold-ups and you weren't
subject to estranged former spouses—you'd see a lot more of this
work, because it wouldn't be so daunting to try to put together a
<!-- PAGE BREAK 115 -->
-retrospective of someone's career and meaningfully illustrate it
-with lots of media from that person's career. You'd build in a cost
-as the producer of one of these things. You'd build in a cost of
- paying
-X dollars to the talent that performed. But it would be a
-known cost. That's the thing that trips everybody up and makes
-this kind of product hard to get off the ground. If you knew I have
-a hundred minutes of film in this product and it's going to cost me
-X, then you build your budget around it, and you can get
- investments
-and everything else that you need to produce it. But if you
-say, "Oh, I want a hundred minutes of something and I have no
-idea what it's going to cost me, and a certain number of people are
-going to hold me up for money," then it becomes difficult to put
-one of these things together.
+retrospective of someone's career and meaningfully illustrate it with
+lots of media from that person's career. You'd build in a cost as the
+producer of one of these things. You'd build in a cost of paying X
+dollars to the talent that performed. But it would be a known
+cost. That's the thing that trips everybody up and makes this kind of
+product hard to get off the ground. If you knew I have a hundred
+minutes of film in this product and it's going to cost me X, then you
+build your budget around it, and you can get investments and
+everything else that you need to produce it. But if you say, "Oh, I
+want a hundred minutes of something and I have no idea what it's going
+to cost me, and a certain number of people are going to hold me up for
+money," then it becomes difficult to put one of these things together.
</para>
</blockquote>
-<para>
-Alben worked for a big company. His company was backed by some
-of the richest investors in the world. He therefore had authority and
-access that the average Web designer would not have. So if it took him
-a year, how long would it take someone else? And how much creativity
-is never made just because the costs of clearing the rights are so high?
-These costs are the burdens of a kind of regulation. Put on a
- Republican
-hat for a moment, and get angry for a bit. The government
+<indexterm><primary>Alben, Alex</primary></indexterm>
+<para>
+Alben worked for a big company. His company was backed by some of the
+richest investors in the world. He therefore had authority and access
+that the average Web designer would not have. So if it took him a
+year, how long would it take someone else? And how much creativity is
+never made just because the costs of clearing the rights are so high?
+These costs are the burdens of a kind of regulation. Put on a
+Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
-how much it's going to cost to negotiate them. (Remember the idea
-that land runs to the heavens, and imagine the pilot purchasing
- flythrough
+how much it's going to cost to negotiate them. (Remember the idea that
+land runs to the heavens, and imagine the pilot purchasing flythrough
rights as he negotiates to fly from Los Angeles to San Francisco.)
These rights might well have once made sense; but as circumstances
-change, they make no sense at all. Or at least, a well-trained,
- regulationminimizing
-Republican should look at the rights and ask, "Does this
-still make sense?"
+change, they make no sense at all. Or at least, a well-trained,
+regulationminimizing Republican should look at the rights and ask,
+"Does this still make sense?"
</para>
<para>
I've seen the flash of recognition when people get this point, but only
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
</para>
+<indexterm><primary>Nimmer, David</primary></indexterm>
<para>
When the lights came up, I looked over to my copanelist, David
Nimmer, perhaps the leading copyright scholar and practitioner in the
began his talk with a question: "Do you know how many federal laws
were just violated in this room?"
</para>
+<indexterm><primary>Boies, David</primary></indexterm>
<para>
For of course, the two brilliantly talented creators who made this
film hadn't done what Alben did. They hadn't spent a year clearing the
-rights to these clips; technically, what they had done violated the law.
-Of course, it wasn't as if they or anyone were going to be prosecuted for
-this violation (the presence of 250 judges and a gaggle of federal
- marshals
-notwithstanding). But Nimmer was making an important point:
-A year before anyone would have heard of the word Napster, and two
-years before another member of our panel, David Boies, would defend
-Napster before the Ninth Circuit Court of Appeals, Nimmer was
- trying
-to get the judges to see that the law would not be friendly to the
-capacities that this technology would enable. Technology means you
-can now do amazing things easily; but you couldn't easily do them
-legally.
+rights to these clips; technically, what they had done violated the
+law. Of course, it wasn't as if they or anyone were going to be
+prosecuted for this violation (the presence of 250 judges and a gaggle
+of federal marshals notwithstanding). But Nimmer was making an
+important point: A year before anyone would have heard of the word
+Napster, and two years before another member of our panel, David
+Boies, would defend Napster before the Ninth Circuit Court of Appeals,
+Nimmer was trying to get the judges to see that the law would not be
+friendly to the capacities that this technology would
+enable. Technology means you can now do amazing things easily; but you
+couldn't easily do them legally.
</para>
<para>
We live in a "cut and paste" culture enabled by technology. Anyone
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
-its archives, musicians are able to string together mixes of sound never
-before imagined; filmmakers are able to build movies out of clips on
-computers around the world. An extraordinary site in Sweden takes
-images of politicians and blends them with music to create biting
- political
-commentary. A site called Camp Chaos has produced some of
-the most biting criticism of the record industry that there is through
-the mixing of Flash! and music.
+its archives, musicians are able to string together mixes of sound
+never before imagined; filmmakers are able to build movies out of
+clips on computers around the world. An extraordinary site in Sweden
+takes images of politicians and blends them with music to create
+biting political commentary. A site called Camp Chaos has produced
+some of the most biting criticism of the record industry that there is
+through the mixing of Flash! and music.
</para>
<para>
All of these creations are technically illegal. Even if the creators
clearance rules, it doesn't get released.
</para>
<para>
-To some, these stories suggest a solution: Let's alter the mix of
-rights so that people are free to build upon our culture. Free to add or
-mix as they see fit. We could even make this change without
- necessarily
-requiring that the "free" use be free as in "free beer." Instead, the
- system
-could simply make it easy for follow-on creators to compensate
-artists without requiring an army of lawyers to come along: a rule, for
-example, that says "the royalty owed the copyright owner of an
- unregistered
-work for the derivative reuse of his work will be a flat 1 percent
-of net revenues, to be held in escrow for the copyright owner." Under
-this rule, the copyright owner could benefit from some royalty, but he
-would not have the benefit of a full property right (meaning the right
-to name his own price) unless he registers the work.
+To some, these stories suggest a solution: Let's alter the mix of
+rights so that people are free to build upon our culture. Free to add
+or mix as they see fit. We could even make this change without
+necessarily requiring that the "free" use be free as in "free beer."
+Instead, the system could simply make it easy for follow-on creators
+to compensate artists without requiring an army of lawyers to come
+along: a rule, for example, that says "the royalty owed the copyright
+owner of an unregistered work for the derivative reuse of his work
+will be a flat 1 percent of net revenues, to be held in escrow for the
+copyright owner." Under this rule, the copyright owner could benefit
+from some royalty, but he would not have the benefit of a full
+property right (meaning the right to name his own price) unless he
+registers the work.
</para>
<para>
Who could possibly object to this? And what reason would there be
What reason would anyone have to oppose it?
</para>
<para>
-In February 2003, DreamWorks studios announced an
- agreement
-with Mike Myers, the comic genius of Saturday Night Live and
+In February 2003, DreamWorks studios announced an agreement with Mike
+Myers, the comic genius of Saturday Night Live and
<!-- PAGE BREAK 118 -->
-Austin Powers. According to the announcement, Myers and
- Dream-Works
-would work together to form a "unique filmmaking pact." Under
-the agreement, DreamWorks "will acquire the rights to existing motion
-picture hits and classics, write new storylines and—with the use of
- stateof-the-art
-digital technology—insert Myers and other actors into the
-film, thereby creating an entirely new piece of entertainment."
-</para>
-<para>
-The announcement called this "film sampling." As Myers
- explained,
-"Film Sampling is an exciting way to put an original spin on
-existing films and allow audiences to see old movies in a new light. Rap
+Austin Powers. According to the announcement, Myers and Dream-Works
+would work together to form a "unique filmmaking pact." Under the
+agreement, DreamWorks "will acquire the rights to existing motion
+picture hits and classics, write new storylines and—with the use
+of stateof-the-art digital technology—insert Myers and other
+actors into the film, thereby creating an entirely new piece of
+entertainment."
+</para>
+<para>
+The announcement called this "film sampling." As Myers explained,
+"Film Sampling is an exciting way to put an original spin on existing
+films and allow audiences to see old movies in a new light. Rap
artists have been doing this for years with music and now we are able
to take that same concept and apply it to film." Steven Spielberg is
-quoted as saying, "If anyone can create a way to bring old films to new
-audiences, it is Mike."
+quoted as saying, "If anyone can create a way to bring old films to
+new audiences, it is Mike."
</para>
<para>
Spielberg is right. Film sampling by Myers will be brilliant. But if
you don't think about it, you might miss the truly astonishing point
-about this announcement. As the vast majority of our film heritage
- remains
-under copyright, the real meaning of the DreamWorks
- announcement
-is just this: It is Mike Myers and only Mike Myers who is
+about this announcement. As the vast majority of our film heritage
+remains under copyright, the real meaning of the DreamWorks
+announcement is just this: It is Mike Myers and only Mike Myers who is
free to sample. Any general freedom to build upon the film archive of
our culture, a freedom in other contexts presumed for us all, is now a
privilege reserved for the funny and famous—and presumably rich.
</para>
<para>
By October 2001, the bots had collected more than five years of
-copies. And at a small announcement in Berkeley, California, the archive
-that these copies created, the Internet Archive, was opened to the
-world. Using a technology called "the Way Back Machine," you could
-enter a Web page, and see all of its copies going back to 1996, as well
-as when those pages changed.
+copies. And at a small announcement in Berkeley, California, the
+archive that these copies created, the Internet Archive, was opened to
+the world. Using a technology called "the Way Back Machine," you could
+enter a Web page, and see all of its copies going back to 1996, as
+well as when those pages changed.
</para>
<para>
-This is the thing about the Internet that Orwell would have
- appreciated.
-In the dystopia described in 1984, old newspapers were
- constantly
-updated to assure that the current view of the world, approved
-of by the government, was not contradicted by previous news reports.
+This is the thing about the Internet that Orwell would have
+appreciated. In the dystopia described in 1984, old newspapers were
+constantly updated to assure that the current view of the world,
+approved of by the government, was not contradicted by previous news
+reports.
</para>
<para>
<!-- PAGE BREAK 120 -->
It's the same with the Internet. If you go to a Web page today,
there's no way for you to know whether the content you are reading is
the same as the content you read before. The page may seem the same,
-but the content could easily be different. The Internet is Orwell's
- library—constantly
-updated, without any reliable memory.
+but the content could easily be different. The Internet is Orwell's
+library—constantly updated, without any reliable memory.
</para>
<para>
-Until the Way Back Machine, at least. With the Way Back
- Machine,
-and the Internet Archive underlying it, you can see what the
-Internet was. You have the power to see what you remember. More
-importantly, perhaps, you also have the power to find what you don't
-remember and what others might prefer you forget.<footnote><para>
+Until the Way Back Machine, at least. With the Way Back Machine, and
+the Internet Archive underlying it, you can see what the Internet
+was. You have the power to see what you remember. More importantly,
+perhaps, you also have the power to find what you don't remember and
+what others might prefer you forget.<footnote><para>
<!-- f1 -->
The temptations remain, however. Brewster Kahle reports that the White
-House changes its own press releases without notice. A May 13, 2003, press
-release stated, "Combat Operations in Iraq Have Ended." That was later
-changed, without notice, to "Major Combat Operations in Iraq Have Ended."
-E-mail from Brewster Kahle, 1 December 2003.
+House changes its own press releases without notice. A May 13, 2003,
+press release stated, "Combat Operations in Iraq Have Ended." That was
+later changed, without notice, to "Major Combat Operations in Iraq
+Have Ended." E-mail from Brewster Kahle, 1 December 2003.
</para></footnote>
</para>
<para>
-We take it for granted that we can go back to see what we
- remember
-reading. Think about newspapers. If you wanted to study the
- reaction
-of your hometown newspaper to the race riots in Watts in 1965,
-or to Bull Connor's water cannon in 1963, you could go to your public
+We take it for granted that we can go back to see what we remember
+reading. Think about newspapers. If you wanted to study the reaction
+of your hometown newspaper to the race riots in Watts in 1965, or to
+Bull Connor's water cannon in 1963, you could go to your public
library and look at the newspapers. Those papers probably exist on
microfiche. If you're lucky, they exist in paper, too. Either way, you
-are free, using a library, to go back and remember—not just what it is
-convenient to remember, but remember something close to the truth.
+are free, using a library, to go back and remember—not just what
+it is convenient to remember, but remember something close to the
+truth.
</para>
<para>
-It is said that those who fail to remember history are doomed to
- repeat
-it. That's not quite correct. We all forget history. The key is whether
-we have a way to go back to rediscover what we forget. More directly, the
-key is whether an objective past can keep us honest. Libraries help do
-that, by collecting content and keeping it, for schoolchildren, for
- researchers,
-for grandma. A free society presumes this knowedge.
+It is said that those who fail to remember history are doomed to
+repeat it. That's not quite correct. We all forget history. The key is
+whether we have a way to go back to rediscover what we forget. More
+directly, the key is whether an objective past can keep us
+honest. Libraries help do that, by collecting content and keeping it,
+for schoolchildren, for researchers, for grandma. A free society
+presumes this knowedge.
</para>
<para>
-The Internet was an exception to this presumption. Until the
- Internet
+The Internet was an exception to this presumption. Until the Internet
Archive, there was no way to go back. The Internet was the
-quintessentially transitory medium. And yet, as it becomes more
- important
-in forming and reforming society, it becomes more and more
+quintessentially transitory medium. And yet, as it becomes more
+important in forming and reforming society, it becomes more and more
<!-- PAGE BREAK 121 -->
- important
-to maintain in some historical form. It's just bizarre to think that
-we have scads of archives of newspapers from tiny towns around the
-world, yet there is but one copy of the Internet—the one kept by the
- Internet
-Archive.
+important to maintain in some historical form. It's just bizarre to
+think that we have scads of archives of newspapers from tiny towns
+around the world, yet there is but one copy of the Internet—the
+one kept by the Internet Archive.
</para>
<para>
Brewster Kahle is the founder of the Internet Archive. He was a very
-successful Internet entrepreneur after he was a successful computer
- researcher.
-In the 1990s, Kahle decided he had had enough business
- success.
-It was time to become a different kind of success. So he launched
-a series of projects designed to archive human knowledge. The
- Internet
-Archive was just the first of the projects of this Andrew Carnegie
-of the Internet. By December of 2002, the archive had over 10 billion
-pages, and it was growing at about a billion pages a month.
-</para>
-<para>
-The Way Back Machine is the largest archive of human knowledge
-in human history. At the end of 2002, it held "two hundred and thirty
-terabytes of material"—and was "ten times larger than the Library of
-Congress." And this was just the first of the archives that Kahle set
-out to build. In addition to the Internet Archive, Kahle has been
- constructing
-the Television Archive. Television, it turns out, is even more
-ephemeral than the Internet. While much of twentieth-century culture
-was constructed through television, only a tiny proportion of that
- culture
-is available for anyone to see today. Three hours of news are
- recorded
-each evening by Vanderbilt University—thanks to a specific
-exemption in the copyright law. That content is indexed, and is available
-to scholars for a very low fee. "But other than that, [television] is almost
-unavailable," Kahle told me. "If you were Barbara Walters you could get
-access to [the archives], but if you are just a graduate student?" As Kahle
-put it,
+successful Internet entrepreneur after he was a successful computer
+researcher. In the 1990s, Kahle decided he had had enough business
+success. It was time to become a different kind of success. So he
+launched a series of projects designed to archive human knowledge. The
+Internet Archive was just the first of the projects of this Andrew
+Carnegie of the Internet. By December of 2002, the archive had over 10
+billion pages, and it was growing at about a billion pages a month.
+</para>
+<para>
+The Way Back Machine is the largest archive of human knowledge in
+human history. At the end of 2002, it held "two hundred and thirty
+terabytes of material"—and was "ten times larger than the
+Library of Congress." And this was just the first of the archives that
+Kahle set out to build. In addition to the Internet Archive, Kahle has
+been constructing the Television Archive. Television, it turns out, is
+even more ephemeral than the Internet. While much of twentieth-century
+culture was constructed through television, only a tiny proportion of
+that culture is available for anyone to see today. Three hours of news
+are recorded each evening by Vanderbilt University—thanks to a
+specific exemption in the copyright law. That content is indexed, and
+is available to scholars for a very low fee. "But other than that,
+[television] is almost unavailable," Kahle told me. "If you were
+Barbara Walters you could get access to [the archives], but if you are
+just a graduate student?" As Kahle put it,
</para>
<blockquote>
<para>
-Do you remember when Dan Quayle was interacting with
- Murphy
-Brown? Remember that back and forth surreal experience of
-a politician interacting with a fictional television character? If you
-were a graduate student wanting to study that, and you wanted to
-get those original back and forth exchanges between the two, the
+Do you remember when Dan Quayle was interacting with Murphy Brown?
+Remember that back and forth surreal experience of a politician
+interacting with a fictional television character? If you were a
+graduate student wanting to study that, and you wanted to get those
+original back and forth exchanges between the two, the
<!-- PAGE BREAK 122 -->
60 Minutes episode that came out after it . . . it would be almost
Why is that? Why is it that the part of our culture that is recorded
in newspapers remains perpetually accessible, while the part that is
recorded on videotape is not? How is it that we've created a world
-where researchers trying to understand the effect of media on
- nineteenthcentury
-America will have an easier time than researchers trying to
- understand
-the effect of media on twentieth-century America?
+where researchers trying to understand the effect of media on
+nineteenthcentury America will have an easier time than researchers
+trying to understand the effect of media on twentieth-century America?
</para>
<para>
In part, this is because of the law. Early in American copyright law,
-copyright owners were required to deposit copies of their work in
- libraries.
-These copies were intended both to facilitate the spread of
-knowledge and to assure that a copy of the work would be around once
-the copyright expired, so that others might access and copy the work.
+copyright owners were required to deposit copies of their work in
+libraries. These copies were intended both to facilitate the spread
+of knowledge and to assure that a copy of the work would be around
+once the copyright expired, so that others might access and copy the
+work.
</para>
<para>
-These rules applied to film as well. But in 1915, the Library of
- Congress
-made an exception for film. Film could be copyrighted so long
-as such deposits were made. But the filmmaker was then allowed to
-borrow back the deposits—for an unlimited time at no cost. In 1915
-alone, there were more than 5,475 films deposited and "borrowed back."
-Thus, when the copyrights to films expire, there is no copy held by any
-library. The copy exists—if it exists at all—in the library archive of the
-film company.<footnote><para>
-<!-- f2 -->
-Doug Herrick, "Toward a National Film Collection: Motion Pictures at the
-Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5;
- Anthony
-Slide, Nitrate Won't Wait: A History of Film Preservation in the United
-States ( Jefferson, N.C.: McFarland & Co., 1992), 36.
+These rules applied to film as well. But in 1915, the Library
+of Congress made an exception for film. Film could be copyrighted so
+long as such deposits were made. But the filmmaker was then allowed to
+borrow back the deposits—for an unlimited time at no cost. In
+1915 alone, there were more than 5,475 films deposited and "borrowed
+back." Thus, when the copyrights to films expire, there is no copy
+held by any library. The copy exists—if it exists at
+all—in the library archive of the film company.<footnote><para>
+<!-- f2 -->
+Doug Herrick, "Toward a National Film Collection: Motion Pictures at
+the Library of Congress," Film Library Quarterly 13 nos. 2–3
+(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film
+Preservation in the United States ( Jefferson, N.C.: McFarland &
+Co., 1992), 36.
</para></footnote>
</para>
<para>
The same is generally true about television. Television broadcasts
were originally not copyrighted—there was no way to capture the
broadcasts, so there was no fear of "theft." But as technology enabled
-capturing, broadcasters relied increasingly upon the law. The law
- required
-they make a copy of each broadcast for the work to be
- "copyrighted."
-But those copies were simply kept by the broadcasters. No
-library had any right to them; the government didn't demand them.
-The content of this part of American culture is practically invisible to
-anyone who would look.
+capturing, broadcasters relied increasingly upon the law. The law
+required they make a copy of each broadcast for the work to be
+"copyrighted." But those copies were simply kept by the
+broadcasters. No library had any right to them; the government didn't
+demand them. The content of this part of American culture is
+practically invisible to anyone who would look.
</para>
<para>
Kahle was eager to correct this. Before September 11, 2001, he and
<!-- PAGE BREAK 123 -->
-his allies had started capturing television. They selected twenty
- stations
-from around the world and hit the Record button. After
- September
-11, Kahle, working with dozens of others, selected twenty stations
-from around the world and, beginning October 11, 2001, made their
-coverage during the week of September 11 available free on-line.
- Anyone
-could see how news reports from around the world covered the
+his allies had started capturing television. They selected twenty
+stations from around the world and hit the Record button. After
+September 11, Kahle, working with dozens of others, selected twenty
+stations from around the world and, beginning October 11, 2001, made
+their coverage during the week of September 11 available free on-line.
+Anyone could see how news reports from around the world covered the
events of that day.
</para>
<para>
-Kahle had the same idea with film. Working with Rick Prelinger,
-whose archive of film includes close to 45,000 "ephemeral films"
-(meaning films other than Hollywood movies, films that were never
-copyrighted), Kahle established the Movie Archive. Prelinger let Kahle
-digitize 1,300 films in this archive and post those films on the Internet
-to be downloaded for free. Prelinger's is a for-profit company. It sells
+Kahle had the same idea with film. Working with Rick Prelinger, whose
+archive of film includes close to 45,000 "ephemeral films" (meaning
+films other than Hollywood movies, films that were never copyrighted),
+Kahle established the Movie Archive. Prelinger let Kahle digitize
+1,300 films in this archive and post those films on the Internet to be
+downloaded for free. Prelinger's is a for-profit company. It sells
copies of these films as stock footage. What he has discovered is that
-after he made a significant chunk available for free, his stock footage
-sales went up dramatically. People could easily find the material they
-wanted to use. Some downloaded that material and made films on
-their own. Others purchased copies to enable other films to be made.
-Either way, the archive enabled access to this important part of our
- culture.
-Want to see a copy of the "Duck and Cover" film that instructed
-children how to save themselves in the middle of nuclear attack? Go to
-archive.org, and you can download the film in a few minutes—for free.
+after he made a significant chunk available for free, his stock
+footage sales went up dramatically. People could easily find the
+material they wanted to use. Some downloaded that material and made
+films on their own. Others purchased copies to enable other films to
+be made. Either way, the archive enabled access to this important
+part of our culture. Want to see a copy of the "Duck and Cover" film
+that instructed children how to save themselves in the middle of
+nuclear attack? Go to archive.org, and you can download the film in a
+few minutes—for free.
</para>
<para>
-Here again, Kahle is providing access to a part of our culture that
-we otherwise could not get easily, if at all. It is yet another part of what
-defines the twentieth century that we have lost to history. The law
-doesn't require these copies to be kept by anyone, or to be deposited in
-an archive by anyone. Therefore, there is no simple way to find them.
+Here again, Kahle is providing access to a part of our culture that we
+otherwise could not get easily, if at all. It is yet another part of
+what defines the twentieth century that we have lost to history. The
+law doesn't require these copies to be kept by anyone, or to be
+deposited in an archive by anyone. Therefore, there is no simple way
+to find them.
</para>
<para>
-The key here is access, not price. Kahle wants to enable free access to
-this content, but he also wants to enable others to sell access to it. His
-aim is to ensure competition in access to this important part of our
- culture.
-Not during the commercial life of a bit of creative property, but
- during
-a second life that all creative property has—a noncommercial life.
+The key here is access, not price. Kahle wants to enable free access
+to this content, but he also wants to enable others to sell access to
+it. His aim is to ensure competition in access to this important part
+of our culture. Not during the commercial life of a bit of creative
+property, but during a second life that all creative property
+has—a noncommercial life.
</para>
<para>
For here is an idea that we should more clearly recognize. Every bit
-of creative property goes through different "lives." In its first life, if the
+of creative property goes through different "lives." In its first
+life, if the
<!-- PAGE BREAK 124 -->
-creator is lucky, the content is sold. In such cases the commercial
- market
-is successful for the creator. The vast majority of creative property
-doesn't enjoy such success, but some clearly does. For that content,
-commercial life is extremely important. Without this commercial
- market,
-there would be, many argue, much less creativity.
+creator is lucky, the content is sold. In such cases the commercial
+market is successful for the creator. The vast majority of creative
+property doesn't enjoy such success, but some clearly does. For that
+content, commercial life is extremely important. Without this
+commercial market, there would be, many argue, much less creativity.
</para>
<para>
-After the commercial life of creative property has ended, our
- tradition
-has always supported a second life as well. A newspaper delivers
-the news every day to the doorsteps of America. The very next day, it is
-used to wrap fish or to fill boxes with fragile gifts or to build an archive
-of knowledge about our history. In this second life, the content can
-continue to inform even if that information is no longer sold.
+After the commercial life of creative property has ended, our
+tradition has always supported a second life as well. A newspaper
+delivers the news every day to the doorsteps of America. The very next
+day, it is used to wrap fish or to fill boxes with fragile gifts or to
+build an archive of knowledge about our history. In this second life,
+the content can continue to inform even if that information is no
+longer sold.
</para>
<para>
-The same has always been true about books. A book goes out of
-
print very quickly (the average today is after about a year<footnote><para>
+The same has always been true about books. A book goes out of print
+very quickly (the average today is after about a year<footnote><para>
<!-- f3 -->
Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune,
5 September 1997, at Metro Lake 1L. Of books published between 1927
-and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, "The
-First Sale Doctrine in the Era of Digital Networks," Boston College Law
- Review
-44 (2003): 593 n. 51.
-</para></footnote>). After it is
-out of print, it can be sold in used book stores without the copyright
-owner getting anything and stored in libraries, where many get to read
-the book, also for free. Used book stores and libraries are thus the
- second
-life of a book. That second life is extremely important to the
-spread and stability of culture.
-</para>
-<para>
-Yet increasingly, any assumption about a stable second life for
- creative
-property does not hold true with the most important components
-of popular culture in the twentieth and twenty-first centuries. For
-these—television, movies, music, radio, the Internet—there is no
- guarantee
-of a second life. For these sorts of culture, it is as if we've replaced
-libraries with Barnes & Noble superstores. With this culture, what's
-accessible is nothing but what a certain limited market demands.
- Beyond
-that, culture disappears.
+and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
+"The First Sale Doctrine in the Era of Digital Networks," Boston
+College Law Review 44 (2003): 593 n. 51.
+</para></footnote>). After
+it is out of print, it can be sold in used book stores without the
+copyright owner getting anything and stored in libraries, where many
+get to read the book, also for free. Used book stores and libraries
+are thus the second life of a book. That second life is extremely
+important to the spread and stability of culture.
+</para>
+<para>
+Yet increasingly, any assumption about a stable second life for
+creative property does not hold true with the most important
+components of popular culture in the twentieth and twenty-first
+centuries. For these—television, movies, music, radio, the
+Internet—there is no guarantee of a second life. For these sorts
+of culture, it is as if we've replaced libraries with Barnes &
+Noble superstores. With this culture, what's accessible is nothing but
+what a certain limited market demands. Beyond that, culture
+disappears.
</para>
<para>
For most of the twentieth century, it was economics that made this
-so. It would have been insanely expensive to collect and make
- accessible
-all television and film and music: The cost of analog copies is
- extraordinarily
-high. So even though the law in principle would have
-restricted the ability of a Brewster Kahle to copy culture generally, the
+so. It would have been insanely expensive to collect and make
+accessible all television and film and music: The cost of analog
+copies is extraordinarily high. So even though the law in principle
+would have restricted the ability of a Brewster Kahle to copy culture
+generally, the
<!-- PAGE BREAK 125 -->
-real restriction was economics. The market made it impossibly difficult
-to do anything about this ephemeral culture; the law had little
- practical
-effect.
+real restriction was economics. The market made it impossibly
+difficult to do anything about this ephemeral culture; the law had
+little practical effect.
</para>
<para>
-Perhaps the single most important feature of the digital revolution
-is that for the first time since the Library of Alexandria, it is feasible to
-imagine constructing archives that hold all culture produced or
- distributed
-publicly. Technology makes it possible to imagine an archive of all
-books published, and increasingly makes it possible to imagine an
-archive of all moving images and sound.
+Perhaps the single most important feature of the digital revolution is
+that for the first time since the Library of Alexandria, it is
+feasible to imagine constructing archives that hold all culture
+produced or distributed publicly. Technology makes it possible to
+imagine an archive of all books published, and increasingly makes it
+possible to imagine an archive of all moving images and sound.
</para>
<para>
-The scale of this potential archive is something we've never
- imagined
-before. The Brewster Kahles of our history have dreamed about it;
-but we are for the first time at a point where that dream is possible. As
+The scale of this potential archive is something we've never imagined
+before. The Brewster Kahles of our history have dreamed about it; but
+we are for the first time at a point where that dream is possible. As
Kahle describes,
</para>
<blockquote>
<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 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 proud of. Up there with the Library of Alexandria,
-putting a man on the moon, and the invention of the printing
-press.
+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
+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
+proud of. Up there with the Library of Alexandria, putting a man on
+the moon, and the invention of the printing press.
</para>
</blockquote>
<para>
archive. But Kahle and the Internet Archive suggest what the future of
libraries or archives could be. When the commercial life of creative
property ends, I don't know. But it does. And whenever it does, Kahle
-and his archive hint at a world where this knowledge, and culture,
- remains
-perpetually available. Some will draw upon it to understand it;
+and his archive hint at a world where this knowledge, and culture,
+remains perpetually available. Some will draw upon it to understand
+it;
<!-- PAGE BREAK 126 -->
-some to criticize it. Some will use it, as Walt Disney did, to re-create
-the past for the future. These technologies promise something that had
-become unimaginable for much of our past—a future for our past. The
-technology of digital arts could make the dream of the Library of
-Alexandria real again.
+some to criticize it. Some will use it, as Walt Disney did, to
+re-create the past for the future. These technologies promise
+something that had become unimaginable for much of our past—a
+future for our past. The technology of digital arts could make the
+dream of the Library of Alexandria real again.
</para>
<para>
-Technologists have thus removed the economic costs of building
-such an archive. But lawyers' costs remain. For as much as we might
-like to call these "archives," as warm as the idea of a "library" might
-seem, the "content" that is collected in these digital spaces is also
- someone's
-"property." And the law of property restricts the freedoms that
-Kahle and others would exercise.
+Technologists have thus removed the economic costs of building such an
+archive. But lawyers' costs remain. For as much as we might like to
+call these "archives," as warm as the idea of a "library" might seem,
+the "content" that is collected in these digital spaces is also
+someone's "property." And the law of property restricts the freedoms
+that Kahle and others would exercise.
</para>
<!-- PAGE BREAK 127 -->
</sect1>
<sect1 id="property-i">
<title>CHAPTER TEN: "Property"</title>
<para>
-Jack Valenti has been the president of the Motion Picture
- Association
-of America since 1966. He first came to Washington, D.C.,
-with Lyndon Johnson's administration—literally. The famous picture
-of Johnson's swearing-in on Air Force One after the assassination of
+Jack Valenti has been the president of the Motion Picture Association
+of America since 1966. He first came to Washington, D.C., with Lyndon
+Johnson's administration—literally. The famous picture of
+Johnson's swearing-in on Air Force One after the assassination of
President Kennedy has Valenti in the background. In his almost forty
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
</para>
<para>
-The MPAA is the American branch of the international Motion
-Picture Association. It was formed in 1922 as a trade association whose
-goal was to defend American movies against increasing domestic
- criticism.
-The organization now represents not only filmmakers but
- producers
-and distributors of entertainment for television, video, and
-cable. Its board is made up of the chairmen and presidents of the seven
-major producers and distributors of motion picture and television
- programs
-in the United States: Walt Disney, Sony Pictures
- Entertainment,
-MGM, Paramount Pictures, Twentieth Century Fox, Universal
-Studios, and Warner Brothers.
+The MPAA is the American branch of the international Motion Picture
+Association. It was formed in 1922 as a trade association whose goal
+was to defend American movies against increasing domestic criticism.
+The organization now represents not only filmmakers but producers and
+distributors of entertainment for television, video, and cable. Its
+board is made up of the chairmen and presidents of the seven major
+producers and distributors of motion picture and television programs
+in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
+Paramount Pictures, Twentieth Century Fox, Universal Studios, and
+Warner Brothers.
</para>
<para>
<!-- PAGE BREAK 128 -->
-Valenti is only the third president of the MPAA. No president
-before him has had as much influence over that organization, or over
-Washington. As a Texan, Valenti has mastered the single most
- important
+Valenti is only the third president of the MPAA. No president before
+him has had as much influence over that organization, or over
+Washington. As a Texan, Valenti has mastered the single most important
political skill of a Southerner—the ability to appear simple and
-slow while hiding a lightning-fast intellect. To this day, Valenti plays
-the simple, humble man. But this Harvard MBA, and author of four
+slow while hiding a lightning-fast intellect. To this day, Valenti
+plays the simple, humble man. But this Harvard MBA, and author of four
books, who finished high school at the age of fifteen and flew more
than fifty combat missions in World War II, is no Mr. Smith. When
Valenti went to Washington, he mastered the city in a quintessentially
Washingtonian way.
</para>
<para>
-In defending artistic liberty and the freedom of speech that our
- culture
-depends upon, the MPAA has done important good. In crafting
+In defending artistic liberty and the freedom of speech that our
+culture depends upon, the MPAA has done important good. In crafting
the MPAA rating system, it has probably avoided a great deal of
speech-regulating harm. But there is an aspect to the organization's
mission that is both the most radical and the most important. This is
-the organization's effort, epitomized in Valenti's every act, to redefine
-the meaning of "creative property."
+the organization's effort, epitomized in Valenti's every act, to
+redefine the meaning of "creative property."
</para>
<para>
-In 1982, Valenti's testimony to Congress captured the strategy
- perfectly:
+In 1982, Valenti's testimony to Congress captured the strategy
+perfectly:
</para>
<blockquote>
<para>
-No matter the lengthy arguments made, no matter the charges
-and the counter-charges, no matter the tumult and the shouting,
-reasonable men and women will keep returning to the
- fundamental
-issue, the central theme which animates this entire debate:
- Creative
-property owners must be accorded the same rights and protection
-resident in all other property owners in the nation. That is the issue.
-That is the question. And that is the rostrum on which this entire
-hearing and the debates to follow must rest.<footnote><para>
+No matter the lengthy arguments made, no matter the charges and the
+counter-charges, no matter the tumult and the shouting, reasonable men
+and women will keep returning to the fundamental issue, the central
+theme which animates this entire debate: Creative property owners must
+be accorded the same rights and protection resident in all other
+property owners in the nation. That is the issue. That is the
+question. And that is the rostrum on which this entire hearing and the
+debates to follow must rest.<footnote><para>
<!-- f1 -->
Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
-4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
- Subcommittee
-on Courts, Civil Liberties, and the Administration of Justice of
-the Committee on the Judiciary of the House of Representatives, 97th
-Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti).
+4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
+Subcommittee on Courts, Civil Liberties, and the Administration of
+Justice of the Committee on the Judiciary of the House of
+Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
+Valenti).
</para></footnote>
</para>
</blockquote>
<para>
The strategy of this rhetoric, like the strategy of most of Valenti's
-rhetoric, is brilliant and simple and brilliant because simple. The
- "central
-theme" to which "reasonable men and women" will return is this:
+rhetoric, is brilliant and simple and brilliant because simple. The
+"central theme" to which "reasonable men and women" will return is
+this:
<!-- PAGE BREAK 129 -->
"Creative property owners must be accorded the same rights and
- protections
-resident in all other property owners in the nation." There are
-no second-class citizens, Valenti might have continued. There should
-be no second-class property owners.
+protections resident in all other property owners in the nation."
+There are no second-class citizens, Valenti might have
+continued. There should be no second-class property owners.
</para>
<para>
This claim has an obvious and powerful intuitive pull. It is stated
with such clarity as to make the idea as obvious as the notion that we
-use elections to pick presidents. But in fact, there is no more extreme a
-claim made by anyone who is serious in this debate than this claim of
-Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps
-the nation's foremost extremist when it comes to the nature and scope
-of "creative property." His views have no reasonable connection to our
-actual legal tradition, even if the subtle pull of his Texan charm has
-slowly redefined that tradition, at least in Washington.
-</para>
-<para>
-While "creative property" is certainly "property" in a nerdy and
- precise
-sense that lawyers are trained to understand,<footnote><para>
+use elections to pick presidents. But in fact, there is no more
+extreme a claim made by anyone who is serious in this debate than this
+claim of Valenti's. Jack Valenti, however sweet and however brilliant,
+is perhaps the nation's foremost extremist when it comes to the nature
+and scope of "creative property." His views have no reasonable
+connection to our actual legal tradition, even if the subtle pull of
+his Texan charm has slowly redefined that tradition, at least in
+Washington.
+</para>
+<para>
+While "creative property" is certainly "property" in a nerdy and
+
precise sense that lawyers are trained to understand,<footnote><para>
<!-- f2 -->
-Lawyers speak of "property" not as an absolute thing, but as a bundle of
-rights that are sometimes associated with a particular object. Thus, my
-"property right" to my car gives me the right to exclusive use, but not the
-right to drive at 150 miles an hour. For the best effort to connect the
- ordinary
-meaning of "property" to "lawyer talk," see Bruce Ackerman, Private
-Property and the Constitution (New Haven: Yale University Press, 1977),
-26–27.
-</para></footnote> it has never been the
-case, nor should it be, that "creative property owners" have been
- "accorded
-the same rights and protection resident in all other property
-owners." Indeed, if creative property owners were given the same rights
-as all other property owners, that would effect a radical, and radically
-undesirable, change in our tradition.
-</para>
-<para>
-Valenti knows this. But he speaks for an industry that cares squat
-for our tradition and the values it represents. He speaks for an industry
-that is instead fighting to restore the tradition that the British
- overturned
-in 1710. In the world that Valenti's changes would create, a
-powerful few would exercise powerful control over how our creative
+Lawyers speak of "property" not as an absolute thing, but as a bundle
+of rights that are sometimes associated with a particular
+object. Thus, my "property right" to my car gives me the right to
+exclusive use, but not the right to drive at 150 miles an hour. For
+the best effort to connect the ordinary meaning of "property" to
+"lawyer talk," see Bruce Ackerman, Private Property and the
+Constitution (New Haven: Yale University Press, 1977), 26–27.
+</para></footnote> it has never been the case, nor should it be, that
+"creative property owners" have been "accorded the same rights and
+protection resident in all other property owners." Indeed, if creative
+property owners were given the same rights as all other property
+owners, that would effect a radical, and radically undesirable, change
+in our tradition.
+</para>
+<para>
+Valenti knows this. But he speaks for an industry that cares squat for
+our tradition and the values it represents. He speaks for an industry
+that is instead fighting to restore the tradition that the British
+overturned in 1710. In the world that Valenti's changes would create,
+a powerful few would exercise powerful control over how our creative
culture would develop.
</para>
<para>
I have two purposes in this chapter. The first is to convince you
-that, historically, Valenti's claim is absolutely wrong. The second is to
-convince you that it would be terribly wrong for us to reject our
- history.
-We have always treated rights in creative property differently
-from the rights resident in all other property owners. They have never
-been the same. And they should never be the same, because, however
-counterintuitive this may seem, to make them the same would be to
+that, historically, Valenti's claim is absolutely wrong. The second is
+to convince you that it would be terribly wrong for us to reject our
+history. We have always treated rights in creative property
+differently from the rights resident in all other property
+owners. They have never been the same. And they should never be the
+same, because, however counterintuitive this may seem, to make them
+the same would be to
<!-- PAGE BREAK 130 -->
-fundamentally weaken the opportunity for new creators to create.
- Creativity
-depends upon the owners of creativity having less than perfect
-control.
-</para>
-<para>
-Organizations such as the MPAA, whose board includes the most
-powerful of the old guard, have little interest, their rhetoric
- notwithstanding,
-in assuring that the new can displace them. No organization
-does. No person does. (Ask me about tenure, for example.) But what's
-good for the MPAA is not necessarily good for America. A society that
-defends the ideals of free culture must preserve precisely the
- opportunity
-for new creativity to threaten the old.
-To get just a hint that there is something fundamentally wrong in
+fundamentally weaken the opportunity for new creators to create.
+Creativity depends upon the owners of creativity having less than
+perfect control.
+</para>
+<para>
+Organizations such as the MPAA, whose board includes the most powerful
+of the old guard, have little interest, their rhetoric
+notwithstanding, in assuring that the new can displace them. No
+organization does. No person does. (Ask me about tenure, for example.)
+But what's good for the MPAA is not necessarily good for America. A
+society that defends the ideals of free culture must preserve
+precisely the opportunity for new creativity to threaten the old. To
+get just a hint that there is something fundamentally wrong in
Valenti's argument, we need look no further than the United States
Constitution itself.
</para>
<para>
-The framers of our Constitution loved "property." Indeed, so
-strongly did they love property that they built into the Constitution an
-important requirement. If the government takes your property—if it
-condemns your house, or acquires a slice of land from your farm—it is
-required, under the Fifth Amendment's "Takings Clause," to pay you
-"just compensation" for that taking. The Constitution thus guarantees
-that property is, in a certain sense, sacred. It cannot ever be taken from
-the property owner unless the government pays for the privilege.
+The framers of our Constitution loved "property." Indeed, so strongly
+did they love property that they built into the Constitution an
+important requirement. If the government takes your property—if
+it condemns your house, or acquires a slice of land from your
+farm—it is required, under the Fifth Amendment's "Takings
+Clause," to pay you "just compensation" for that taking. The
+Constitution thus guarantees that property is, in a certain sense,
+sacred. It cannot ever be taken from the property owner unless the
+government pays for the privilege.
</para>
<para>
Yet the very same Constitution speaks very differently about what
Valenti calls "creative property." In the clause granting Congress the
-power to create "creative property," the Constitution requires that after
-a "limited time," Congress take back the rights that it has granted and
-set the "creative property" free to the public domain. Yet when
- Congress
-does this, when the expiration of a copyright term "takes" your
-copyright and turns it over to the public domain, Congress does not
-have any obligation to pay "just compensation" for this "taking."
- Instead,
-the same Constitution that requires compensation for your land
+power to create "creative property," the Constitution requires that
+after a "limited time," Congress take back the rights that it has
+granted and set the "creative property" free to the public domain. Yet
+when Congress does this, when the expiration of a copyright term
+"takes" your copyright and turns it over to the public domain,
+Congress does not have any obligation to pay "just compensation" for
+this "taking." Instead, the same Constitution that requires
+compensation for your land
<!-- PAGE BREAK 131 -->
-requires that you lose your "creative property" right without any
- compensation
-at all.
+requires that you lose your "creative property" right without any
+compensation at all.
</para>
<para>
The Constitution thus on its face states that these two forms of
-property are not to be accorded the same rights. They are plainly to be
-treated differently. Valenti is therefore not just asking for a change in
-our tradition when he argues that creative-property owners should be
-accorded the same rights as every other property-right owner. He is
- effectively
-arguing for a change in our Constitution itself.
+property are not to be accorded the same rights. They are plainly to
+be treated differently. Valenti is therefore not just asking for a
+change in our tradition when he argues that creative-property owners
+should be accorded the same rights as every other property-right
+owner. He is effectively arguing for a change in our Constitution
+itself.
</para>
<para>
Arguing for a change in our Constitution is not necessarily wrong.
There was much in our original Constitution that was plainly wrong.
-The Constitution of 1789 entrenched slavery; it left senators to be
- appointed
-rather than elected; it made it possible for the electoral college
-to produce a tie between the president and his own vice president (as it
-did in 1800). The framers were no doubt extraordinary, but I would be
-the first to admit that they made big mistakes. We have since rejected
-some of those mistakes; no doubt there could be others that we should
-reject as well. So my argument is not simply that because Jefferson did
-it, we should, too.
+The Constitution of 1789 entrenched slavery; it left senators to be
+appointed rather than elected; it made it possible for the electoral
+college to produce a tie between the president and his own vice
+president (as it did in 1800). The framers were no doubt
+extraordinary, but I would be the first to admit that they made big
+mistakes. We have since rejected some of those mistakes; no doubt
+there could be others that we should reject as well. So my argument is
+not simply that because Jefferson did it, we should, too.
</para>
<para>
Instead, my argument is that because Jefferson did it, we should at
least try to understand why. Why did the framers, fanatical property
-types that they were, reject the claim that creative property be given the
-same rights as all other property? Why did they require that for
- creative
-property there must be a public domain?
+types that they were, reject the claim that creative property be given
+the same rights as all other property? Why did they require that for
+creative property there must be a public domain?
</para>
<para>
-To answer this question, we need to get some perspective on the
- history
-of these "creative property" rights, and the control that they
- enabled.
-Once we see clearly how differently these rights have been
-defined, we will be in a better position to ask the question that should
-be at the core of this war: Not whether creative property should be
- protected,
-but how. Not whether we will enforce the rights the law gives to
-creative-property owners, but what the particular mix of rights ought to
-be. Not whether artists should be paid, but whether institutions designed
-to assure that artists get paid need also control how culture develops.
+To answer this question, we need to get some perspective on the
+history of these "creative property" rights, and the control that they
+enabled. Once we see clearly how differently these rights have been
+defined, we will be in a better position to ask the question that
+should be at the core of this war: Not whether creative property
+should be protected, but how. Not whether we will enforce the rights
+the law gives to creative-property owners, but what the particular mix
+of rights ought to be. Not whether artists should be paid, but whether
+institutions designed to assure that artists get paid need also
+control how culture develops.
</para>
<para>
<graphic fileref="images/1331.png"></graphic>
</figure>
<para>
-At the center of this picture is a regulated dot: the individual or
-group that is the target of regulation, or the holder of a right. (In each
-case throughout, we can describe this either as regulation or as a right.
-For simplicity's sake, I will speak only of regulations.) The ovals
- represent
-four ways in which the individual or group might be regulated—
-either constrained or, alternatively, enabled. Law is the most obvious
-constraint (to lawyers, at least). It constrains by threatening
- punishments
-after the fact if the rules set in advance are violated. So if, for
- example,
-you willfully infringe Madonna's copyright by copying a song
-from her latest CD and posting it on the Web, you can be punished
+At the center of this picture is a regulated dot: the individual or
+group that is the target of regulation, or the holder of a right. (In
+each case throughout, we can describe this either as regulation or as
+a right. For simplicity's sake, I will speak only of regulations.)
+The ovals represent four ways in which the individual or group might
+be regulated— either constrained or, alternatively, enabled. Law
+is the most obvious constraint (to lawyers, at least). It constrains
+by threatening punishments after the fact if the rules set in advance
+are violated. So if, for example, you willfully infringe Madonna's
+copyright by copying a song from her latest CD and posting it on the
+Web, you can be punished
<!-- PAGE BREAK 133 -->
with a $150,000 fine. The fine is an ex post punishment for violating
an ex ante rule. It is imposed by the state.
The market is a third type of constraint. Its constraint is effected
through conditions: You can do X if you pay Y; you'll be paid M if you
do N. These constraints are obviously not independent of law or
-norms—it is property law that defines what must be bought if it is to
-be taken legally; it is norms that say what is appropriately sold. But
-given a set of norms, and a background of property and contract law,
-the market imposes a simultaneous constraint upon how an individual or
-group might behave.
+norms—it is property law that defines what must be bought if it
+is to be taken legally; it is norms that say what is appropriately
+sold. But given a set of norms, and a background of property and
+contract law, the market imposes a simultaneous constraint upon how an
+individual or group might behave.
</para>
<para>
Finally, and for the moment, perhaps, most mysteriously,
-"architecture"—the physical world as one finds it—is a constraint on
-behavior. A fallen bridge might constrain your ability to get across
-a river. Railroad tracks might constrain the ability of a community to
-integrate its social life. As with the market, architecture does not
-effect its constraint through ex post punishments. Instead, also as
-with the market, architecture effects its constraint through
-simultaneous conditions. These conditions are imposed not by courts
-enforcing contracts, or by police punishing theft, but by nature, by
-"architecture." If a 500-pound boulder blocks your way, it is the law
-of gravity that enforces this constraint. If a $500 airplane ticket
-stands between you and a flight to New York, it is the market that
-enforces this constraint.
+"architecture"—the physical world as one finds it—is a
+constraint on behavior. A fallen bridge might constrain your ability
+to get across a river. Railroad tracks might constrain the ability of
+a community to integrate its social life. As with the market,
+architecture does not effect its constraint through ex post
+punishments. Instead, also as with the market, architecture effects
+its constraint through simultaneous conditions. These conditions are
+imposed not by courts enforcing contracts, or by police punishing
+theft, but by nature, by "architecture." If a 500-pound boulder
+blocks your way, it is the law of gravity that enforces this
+constraint. If a $500 airplane ticket stands between you and a flight
+to New York, it is the market that enforces this constraint.
</para>
<para>
<!-- PAGE BREAK 134 -->
-So the first point about these four modalities of regulation is
- obvious:
-They interact. Restrictions imposed by one might be reinforced
-by another. Or restrictions imposed by one might be undermined by
-another.
+So the first point about these four modalities of regulation is
+obvious: They interact. Restrictions imposed by one might be
+reinforced by another. Or restrictions imposed by one might be
+undermined by another.
</para>
<para>
The second point follows directly: If we want to understand the
-effective freedom that anyone has at a given moment to do any
- particular
-thing, we have to consider how these four modalities interact.
-Whether or not there are other constraints (there may well be; my
-claim is not about comprehensiveness), these four are among the most
-significant, and any regulator (whether controlling or freeing) must
-consider how these four in particular interact.
+effective freedom that anyone has at a given moment to do any
+particular thing, we have to consider how these four modalities
+interact. Whether or not there are other constraints (there may well
+be; my claim is not about comprehensiveness), these four are among the
+most significant, and any regulator (whether controlling or freeing)
+must consider how these four in particular interact.
</para>
+<indexterm id="idxdrivespeed" class='startofrange'>
+ <primary>driving speed, constraints on</primary>
+</indexterm>
<para>
So, for example, consider the "freedom" to drive a car at a high
-speed. That freedom is in part restricted by laws: speed limits that say
-how fast you can drive in particular places at particular times. It is in
-part restricted by architecture: speed bumps, for example, slow most
- rational
-drivers; governors in buses, as another example, set the
- maximum
-rate at which the driver can drive. The freedom is in part restricted
-by the market: Fuel efficiency drops as speed increases, thus the price of
-gasoline indirectly constrains speed. And finally, the norms of a
- community
-may or may not constrain the freedom to speed. Drive at 50
-mph by a school in your own neighborhood and you're likely to be
-punished by the neighbors. The same norm wouldn't be as effective in
-a different town, or at night.
+speed. That freedom is in part restricted by laws: speed limits that
+say how fast you can drive in particular places at particular
+times. It is in part restricted by architecture: speed bumps, for
+example, slow most rational drivers; governors in buses, as another
+example, set the maximum rate at which the driver can drive. The
+freedom is in part restricted by the market: Fuel efficiency drops as
+speed increases, thus the price of gasoline indirectly constrains
+speed. And finally, the norms of a community may or may not constrain
+the freedom to speed. Drive at 50 mph by a school in your own
+neighborhood and you're likely to be punished by the neighbors. The
+same norm wouldn't be as effective in a different town, or at night.
</para>
<para>
The final point about this simple model should also be fairly clear:
While these four modalities are analytically independent, law has a
special role in affecting the three.<footnote><para>
<!-- f3 -->
-By describing the way law affects the other three modalities, I don't mean
-to suggest that the other three don't affect law. Obviously, they do. Law's
-only distinction is that it alone speaks as if it has a right self-consciously to
-change the other three. The right of the other three is more timidly
- expressed.
-See Lawrence Lessig, Code: And Other Laws of Cyberspace (New
-York: Basic Books, 1999): 90–95; Lawrence Lessig, "The New Chicago
-School," Journal of Legal Studies, June 1998.
-</para></footnote>
-The law, in other words, sometimes
-operates to increase or decrease the constraint of a particular modality.
-Thus, the law might be used to increase taxes on gasoline, so as to
- increase
-the incentives to drive more slowly. The law might be used to
-mandate more speed bumps, so as to increase the difficulty of driving
-rapidly. The law might be used to fund ads that stigmatize reckless
-driving. Or the law might be used to require that other laws be more
+By describing the way law affects the other three modalities, I don't
+mean to suggest that the other three don't affect law. Obviously, they
+do. Law's only distinction is that it alone speaks as if it has a
+right self-consciously to change the other three. The right of the
+other three is more timidly expressed. See Lawrence Lessig, Code: And
+Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95;
+Lawrence Lessig, "The New Chicago School," Journal of Legal Studies,
+June 1998.
+</para></footnote>
+The law, in other words, sometimes operates to increase or decrease
+the constraint of a particular modality. Thus, the law might be used
+to increase taxes on gasoline, so as to increase the incentives to
+drive more slowly. The law might be used to mandate more speed bumps,
+so as to increase the difficulty of driving rapidly. The law might be
+used to fund ads that stigmatize reckless driving. Or the law might be
+used to require that other laws be more
<!-- PAGE BREAK 135 -->
-strict—a federal requirement that states decrease the speed limit, for
-example—so as to decrease the attractiveness of fast driving.
+strict—a federal requirement that states decrease the speed
+limit, for example—so as to decrease the attractiveness of fast
+driving.
</para>
+<indexterm startref="idxdrivespeed" class='endofrange'/>
+
<figure id="fig-1361">
<title>Law has a special role in affecting the three.</title>
<graphic fileref="images/1361.png"></graphic>
property at any particular moment, we must track these changes over
time. A restriction imposed by one modality might be erased by
another. A freedom enabled by one modality might be displaced by
-another.<footnote><para>
-<!-- f4 -->
-Some people object to this way of talking about "liberty." They object
- because
-their focus when considering the constraints that exist at any
- particular
-moment are constraints imposed exclusively by the government. For
-instance, if a storm destroys a bridge, these people think it is meaningless
-to say that one's liberty has been restrained. A bridge has washed out, and
-it's harder to get from one place to another. To talk about this as a loss of
-freedom, they say, is to confuse the stuff of politics with the vagaries of
- ordinary
-life.
-I don't mean to deny the value in this narrower view, which depends
-upon the context of the inquiry. I do, however, mean to argue against any
-insistence that this narrower view is the only proper view of liberty. As I
-argued in Code, we come from a long tradition of political thought with a
-broader focus than the narrow question of what the government did when.
-John Stuart Mill defended freedom of speech, for example, from the
-tyranny of narrow minds, not from the fear of government prosecution;
-John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19.
-John R. Commons famously defended the economic freedom of labor
-from constraints imposed by the market; John R. Commons, "The Right
-to Work," in Malcom Rutherford and Warren J. Samuels, eds., John R.
-Commons: Selected Essays (London: Routledge: 1997), 62. The Americans
-with Disabilities Act increases the liberty of people with physical
- disabilities
-by changing the architecture of certain public places, thereby making
-access to those places easier; 42 United States Code, section 12101 (2000).
-Each of these interventions to change existing conditions changes the
-liberty of a particular group. The effect of those interventions should be
-accounted for in order to understand the effective liberty that each of these
-groups might face.
+another.<footnote>
+<para>
+<!-- f4 -->
+Some people object to this way of talking about "liberty." They object
+because their focus when considering the constraints that exist at any
+particular moment are constraints imposed exclusively by the
+government. For instance, if a storm destroys a bridge, these people
+think it is meaningless to say that one's liberty has been
+restrained. A bridge has washed out, and it's harder to get from one
+place to another. To talk about this as a loss of freedom, they say,
+is to confuse the stuff of politics with the vagaries of ordinary
+life. I don't mean to deny the value in this narrower view, which
+depends upon the context of the inquiry. I do, however, mean to argue
+against any insistence that this narrower view is the only proper view
+of liberty. As I argued in Code, we come from a long tradition of
+political thought with a broader focus than the narrow question of
+what the government did when. John Stuart Mill defended freedom of
+speech, for example, from the tyranny of narrow minds, not from the
+fear of government prosecution; John Stuart Mill, On Liberty (Indiana:
+Hackett Publishing Co., 1978), 19. John R. Commons famously defended
+the economic freedom of labor from constraints imposed by the market;
+John R. Commons, "The Right to Work," in Malcom Rutherford and Warren
+J. Samuels, eds., John R. Commons: Selected Essays (London:
+Routledge: 1997), 62. The Americans with Disabilities Act increases
+the liberty of people with physical disabilities by changing the
+architecture of certain public places, thereby making access to those
+places easier; 42 United States Code, section 12101 (2000). Each of
+these interventions to change existing conditions changes the liberty
+of a particular group. The effect of those interventions should be
+accounted for in order to understand the effective liberty that each
+of these groups might face.
+<indexterm><primary>Commons, John R.</primary></indexterm>
</para></footnote>
</para>
<sect2 id="hollywood">
<title>Why Hollywood Is Right</title>
<para>
-
The most obvious point that this model reveals is just why, or just
how, Hollywood is right. The copyright warriors have rallied Congress
and the courts to defend copyright. This model helps us see why that
rallying makes sense.
</para>
<para>
-Let's say this is the picture of copyright's regulation before the
- Internet:
+Let's say this is the picture of copyright's regulation before the
+Internet:
</para>
<figure id="fig-1371">
<title>Copyright's regulation before the Internet.</title>
</figure>
<para>
<!-- PAGE BREAK 136 -->
-There is balance between law, norms, market, and architecture. The
-law limits the ability to copy and share content, by imposing penalties
-on those who copy and share content. Those penalties are reinforced by
-technologies that make it hard to copy and share content (architecture)
-and expensive to copy and share content (market). Finally, those
- penalties
-are mitigated by norms we all recognize—kids, for example, taping
-other kids' records. These uses of copyrighted material may well be
- infringement,
-but the norms of our society (before the Internet, at least)
-had no problem with this form of infringement.
-</para>
-<para>
-Enter the Internet, or, more precisely, technologies such as MP3s
-and p2p sharing. Now the constraint of architecture changes
- dramatically,
+There is balance between law, norms, market, and architecture. The law
+limits the ability to copy and share content, by imposing penalties on
+those who copy and share content. Those penalties are reinforced by
+technologies that make it hard to copy and share content
+(architecture) and expensive to copy and share content
+(market). Finally, those penalties are mitigated by norms we all
+recognize—kids, for example, taping other kids' records. These
+uses of copyrighted material may well be infringement, but the norms
+of our society (before the Internet, at least) had no problem with
+this form of infringement.
+</para>
+<para>
+Enter the Internet, or, more precisely, technologies such as MP3s and
+p2p sharing. Now the constraint of architecture changes dramatically,
as does the constraint of the market. And as both the market and
architecture relax the regulation of copyright, norms pile on. The
-happy balance (for the warriors, at least) of life before the Internet
- becomes
-an effective state of anarchy after the Internet.
+happy balance (for the warriors, at least) of life before the Internet
+becomes an effective state of anarchy after the Internet.
</para>
<para>
-Thus the sense of, and justification for, the warriors' response.
- Technology
-has changed, the warriors say, and the effect of this change,
-when ramified through the market and norms, is that a balance of
- protection
-for the copyright owners' rights has been lost. This is Iraq
+Thus the sense of, and justification for, the warriors' response.
+Technology has changed, the warriors say, and the effect of this
+change, when ramified through the market and norms, is that a balance
+of protection for the copyright owners' rights has been lost. This is
+Iraq
<!-- PAGE BREAK 137 -->
after the fall of Saddam, but this time no government is justifying the
looting that results.
</figure>
<para>
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce
- Department
-(one heavily influenced by the copyright warriors) in 1995,
+warriors. Indeed, in a "White Paper" prepared by the Commerce
+Department (one heavily influenced by the copyright warriors) in 1995,
this mix of regulatory modalities had already been identified and the
-strategy to respond already mapped. In response to the changes the
- Internet
-had effected, the White Paper argued (1) Congress should
-strengthen intellectual property law, (2) businesses should adopt
- innovative
-marketing techniques, (3) technologists should push to develop
-code to protect copyrighted material, and (4) educators should educate
-kids to better protect copyright.
-</para>
-<para>
-This mixed strategy is just what copyright needed—if it was to
- preserve
-the particular balance that existed before the change induced by
-the Internet. And it's just what we should expect the content industry
-to push for. It is as American as apple pie to consider the happy life
-you have as an entitlement, and to look to the law to protect it if
- something
-comes along to change that happy life. Homeowners living in a
+strategy to respond already mapped. In response to the changes the
+Internet had effected, the White Paper argued (1) Congress should
+strengthen intellectual property law, (2) businesses should adopt
+innovative marketing techniques, (3) technologists should push to
+develop code to protect copyrighted material, and (4) educators should
+educate kids to better protect copyright.
+</para>
+<para>
+This mixed strategy is just what copyright needed—if it was to
+preserve the particular balance that existed before the change induced
+by the Internet. And it's just what we should expect the content
+industry to push for. It is as American as apple pie to consider the
+happy life you have as an entitlement, and to look to the law to
+protect it if something comes along to change that happy
+life. Homeowners living in a
<!-- PAGE BREAK 138 -->
flood plain have no hesitation appealing to the government to rebuild
-(and rebuild again) when a flood (architecture) wipes away their
- property
-(law). Farmers have no hesitation appealing to the government to
-bail them out when a virus (architecture) devastates their crop. Unions
-have no hesitation appealing to the government to bail them out when
-imports (market) wipe out the U.S. steel industry.
+(and rebuild again) when a flood (architecture) wipes away their
+property (law). Farmers have no hesitation appealing to the government
+to bail them out when a virus (architecture) devastates their
+crop. Unions have no hesitation appealing to the government to bail
+them out when imports (market) wipe out the U.S. steel industry.
</para>
<para>
Thus, there's nothing wrong or surprising in the content industry's
-campaign to protect itself from the harmful consequences of a
- technological
-innovation. And I would be the last person to argue that the
-changing technology of the Internet has not had a profound effect on the
-content industry's way of doing business, or as John Seely Brown
- describes
-it, its "architecture of revenue."
+campaign to protect itself from the harmful consequences of a
+technological innovation. And I would be the last person to argue that
+the changing technology of the Internet has not had a profound effect
+on the content industry's way of doing business, or as John Seely
+Brown describes it, its "architecture of revenue."
</para>
<para>
-But just because a particular interest asks for government support,
-it doesn't follow that support should be granted. And just because
- technology
-has weakened a particular way of doing business, it doesn't
- follow
-that the government should intervene to support that old way of
+But just because a particular interest asks for government support, it
+doesn't follow that support should be granted. And just because
+technology has weakened a particular way of doing business, it doesn't
+follow that the government should intervene to support that old way of
doing business. Kodak, for example, has lost perhaps as much as 20
percent of their traditional film market to the emerging technologies
of digital cameras.<footnote><para>
<!-- f5 -->
-See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
- BusinessWeek
-online, 2 August 1999, available at
-<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more recent
-analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can
-Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003,
- available
-at
+See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+BusinessWeek online, 2 August 1999, available at
+<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more
+recent analysis of Kodak's place in the market, see Chana
+R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6
+October 2003, available at
<ulink url="http://free-culture.cc/notes/">link #24</ulink>.
</para></footnote>
-Does anyone believe the government should ban
-digital cameras just to support Kodak? Highways have weakened the
-freight business for railroads. Does anyone think we should ban trucks
-from roads for the purpose of protecting the railroads? Closer to the
- subject
-of this book, remote channel changers have weakened the
- "stickiness"
-of television advertising (if a boring commercial comes on the
-TV, the remote makes it easy to surf ), and it may well be that this
-change has weakened the television advertising market. But does
- anyone
-believe we should regulate remotes to reinforce commercial
- television?
-(Maybe by limiting them to function only once a second, or to
-switch to only ten channels within an hour?)
+
+Does anyone believe the government should ban digital cameras just to
+support Kodak? Highways have weakened the freight business for
+railroads. Does anyone think we should ban trucks from roads for the
+purpose of protecting the railroads? Closer to the subject of this
+book, remote channel changers have weakened the "stickiness" of
+television advertising (if a boring commercial comes on the TV, the
+remote makes it easy to surf ), and it may well be that this change
+has weakened the television advertising market. But does anyone
+believe we should regulate remotes to reinforce commercial television?
+(Maybe by limiting them to function only once a second, or to switch
+to only ten channels within an hour?)
</para>
<para>
The obvious answer to these obviously rhetorical questions is no.
</para>
<para>
Thus, while it is understandable for industries threatened with new
-technologies that change the way they do business to look to the
- government
-for protection, it is the special duty of policy makers to
- guarantee
-that that protection not become a deterrent to progress. It is the
-duty of policy makers, in other words, to assure that the changes they
-create, in response to the request of those hurt by changing technology,
-are changes that preserve the incentives and opportunities for
- innovation
-and change.
-</para>
-<para>
-In the context of laws regulating speech—which include, obviously,
-copyright law—that duty is even stronger. When the industry
- complaining
-about changing technologies is asking Congress to respond in
-a way that burdens speech and creativity, policy makers should be
- especially
-wary of the request. It is always a bad deal for 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 Congress is being asked to
-pass laws that would "abridge" the freedom of speech, it should ask—
-carefully—whether such regulation is justified.
+technologies that change the way they do business to look to the
+government for protection, it is the special duty of policy makers to
+guarantee that that protection not become a deterrent to progress. It
+is the duty of policy makers, in other words, to assure that the
+changes they create, in response to the request of those hurt by
+changing technology, are changes that preserve the incentives and
+opportunities for innovation and change.
+</para>
+<para>
+In the context of laws regulating speech—which include,
+obviously, copyright law—that duty is even stronger. When the
+industry complaining about changing technologies is asking Congress to
+respond in a way that burdens speech and creativity, policy makers
+should be especially wary of the request. It is always a bad deal for
+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
+Congress is being asked to pass laws that would "abridge" the freedom
+of speech, it should ask— carefully—whether such
+regulation is justified.
</para>
<para>
My argument just now, however, has nothing to do with whether
<!-- PAGE BREAK 140 -->
the changes that are being pushed by the copyright warriors are
- "justified."
-My argument is about their effect. For before we get to the
- question
-of justification, a hard question that depends a great deal upon
-your values, we should first ask whether we understand the effect of the
-changes the content industry wants.
+"justified." My argument is about their effect. For before we get to
+the question of justification, a hard question that depends a great
+deal upon your values, we should first ask whether we understand the
+effect of the changes the content industry wants.
</para>
<para>
Here's the metaphor that will capture the argument to follow.
</para>
<para>
In 1873, the chemical DDT was first synthesized. In 1948, Swiss
-chemist Paul Hermann Müller won the Nobel Prize for his work
+chemist Paul Hermann Müller won the Nobel Prize for his work
demonstrating the insecticidal properties of DDT. By the 1950s, the
insecticide was widely used around the world to kill disease-carrying
pests. It was also used to increase farm production.
</para>
<para>
No one doubts that killing disease-carrying pests or increasing crop
-production is a good thing. No one doubts that the work of Müller was
+production is a good thing. No one doubts that the work of Müller was
important and valuable and probably saved lives, possibly millions.
</para>
+<indexterm><primary>Carson, Rachel</primary></indexterm>
<para>
-But in 1962, Rachel Carson published Silent Spring, which argued
-that DDT, whatever its primary benefits, was also having unintended
-environmental consequences. Birds were losing the ability to
- reproduce.
-Whole chains of the ecology were being destroyed.
+But in 1962, Rachel Carson published Silent Spring, which argued that
+DDT, whatever its primary benefits, was also having unintended
+environmental consequences. Birds were losing the ability to
+reproduce. Whole chains of the ecology were being destroyed.
</para>
<para>
-No one set out to destroy the environment. Paul Müller certainly
-did not aim to harm any birds. But the effort to solve one set of
- problems
-produced another set which, in the view of some, was far worse
-than the problems that were originally attacked. Or more accurately,
-the problems DDT caused were worse than the problems it solved, at
-least when considering the other, more environmentally friendly ways
-to solve the problems that DDT was meant to solve.
+No one set out to destroy the environment. Paul Müller certainly did
+not aim to harm any birds. But the effort to solve one set of problems
+produced another set which, in the view of some, was far worse than
+the problems that were originally attacked. Or more accurately, the
+problems DDT caused were worse than the problems it solved, at least
+when considering the other, more environmentally friendly ways to
+solve the problems that DDT was meant to solve.
</para>
<para>
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an "environmentalism" for
culture.<footnote><para>
<!-- f7 -->
-See, for example, James Boyle, "A Politics of Intellectual Property:
- Environmentalism
-for the Net?" Duke Law Journal 47 (1997): 87.
-</para></footnote>
-His point, and the point I want to develop in the balance of
-this chapter, is not that the aims of copyright are flawed. Or that
- authors
-should not be paid for their work. Or that music should be given
-away "for free." The point is that some of the ways in which we might
-protect authors will have unintended consequences for the cultural
- environment,
-much like DDT had for the natural environment. And just
+See, for example, James Boyle, "A Politics of Intellectual Property:
+Environmentalism for the Net?" Duke Law Journal 47 (1997): 87.
+</para></footnote>
+His point, and the point I want to develop in the balance of this
+chapter, is not that the aims of copyright are flawed. Or that authors
+should not be paid for their work. Or that music should be given away
+"for free." The point is that some of the ways in which we might
+protect authors will have unintended consequences for the cultural
+environment, much like DDT had for the natural environment. And just
<!-- PAGE BREAK 141 -->
as criticism of DDT is not an endorsement of malaria or an attack on
-farmers, so, too, is criticism of one particular set of regulations
- protecting
-copyright not an endorsement of anarchy or an attack on authors.
-It is an environment of creativity that we seek, and we should be aware
-of our actions' effects on the environment.
+farmers, so, too, is criticism of one particular set of regulations
+protecting copyright not an endorsement of anarchy or an attack on
+authors. It is an environment of creativity that we seek, and we
+should be aware of our actions' effects on the environment.
</para>
<para>
My argument, in the balance of this chapter, tries to map exactly
<sect2 id="beginnings">
<title>Beginnings</title>
<para>
-America copied English copyright law. Actually, we copied and
- improved
-English copyright law. Our Constitution makes the purpose of
-"creative property" rights clear; its express limitations reinforce the
- English
+America copied English copyright law. Actually, we copied and improved
+English copyright law. Our Constitution makes the purpose of "creative
+property" rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
</para>
<para>
-The power to establish "creative property" rights is granted to
- Congress
-in a way that, for our Constitution, at least, is very odd. Article I,
-section 8, clause 8 of our Constitution states that:
+The power to establish "creative property" rights is granted to
+Congress in a way that, for our Constitution, at least, is very
+odd. Article I, section 8, clause 8 of our Constitution states that:
</para>
<para>
Congress has the power to promote the Progress of Science and
the exclusive Right to their respective Writings and Discoveries.
<!-- PAGE BREAK 142 -->
-We can call this the "Progress Clause," for notice what this clause does
-not say. It does not say Congress has the power to grant "creative
- property
-rights." It says that Congress has the power to promote progress. The
-grant of power is its purpose, and its purpose is a public one, not the
-purpose of enriching publishers, nor even primarily the purpose of
- rewarding
-authors.
+We can call this the "Progress Clause," for notice what this clause
+does not say. It does not say Congress has the power to grant
+"creative property rights." It says that Congress has the power to
+promote progress. The grant of power is its purpose, and its purpose
+is a public one, not the purpose of enriching publishers, nor even
+primarily the purpose of rewarding authors.
</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.
+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.
</para>
<para>
The design of the Progress Clause reflects something about the
-Constitution's design in general. To avoid a problem, the framers built
-structure. To prevent the concentrated power of publishers, they built
-a structure that kept copyrights away from publishers and kept them
-short. To prevent the concentrated power of a church, they banned the
-federal government from establishing a church. To prevent
- concentrating
-power in the federal government, they built structures to reinforce
-the power of the states—including the Senate, whose members were
-at the time selected by the states, and an electoral college, also selected
-by the states, to select the president. In each case, a structure built
-checks and balances into the constitutional frame, structured to
- prevent
-otherwise inevitable concentrations of power.
-</para>
-<para>
-I doubt the framers would recognize the regulation we call
- "copyright"
-today. The scope of that regulation is far beyond anything they
-ever considered. To begin to understand what they did, we need to put
-our "copyright" in context: We need to see how it has changed in the
-210 years since they first struck its design.
+Constitution's design in general. To avoid a problem, the framers
+built structure. To prevent the concentrated power of publishers, they
+built a structure that kept copyrights away from publishers and kept
+them short. To prevent the concentrated power of a church, they banned
+the federal government from establishing a church. To prevent
+concentrating power in the federal government, they built structures
+to reinforce the power of the states—including the Senate, whose
+members were at the time selected by the states, and an electoral
+college, also selected by the states, to select the president. In each
+case, a structure built checks and balances into the constitutional
+frame, structured to prevent otherwise inevitable concentrations of
+power.
+</para>
+<para>
+I doubt the framers would recognize the regulation we call "copyright"
+today. The scope of that regulation is far beyond anything they ever
+considered. To begin to understand what they did, we need to put our
+"copyright" in context: We need to see how it has changed in the 210
+years since they first struck its design.
</para>
<para>
Some of these changes come from the law: some in light of changes
<para>
When the first Congress enacted laws to protect creative property, it
faced the same uncertainty about the status of creative property that
-the English had confronted in 1774. Many states had passed laws
- protecting
-creative property, and some believed that these laws simply
-supplemented common law rights that already protected creative
-
authorship.<footnote><para>
+the English had confronted in 1774. Many states had passed laws
+protecting creative property, and some believed that these laws simply
+supplemented common law rights that already protected creative
+authorship.<footnote>
+<para>
<!-- f8 -->
-William W. Crosskey, Politics and the Constitution in the History of the
-United States (London: Cambridge University Press, 1953), vol. 1, 485–86:
-"extinguish[ing], by plain implication of `the supreme Law of the Land,'
-the perpetual rights which authors had, or were supposed by some to have, under
-the Common Law" (emphasis added).
-</para></footnote>
-This meant that there was no guaranteed public domain in
-the United States in 1790. If copyrights were protected by the
- common
-law, then there was no simple way to know whether a work
- published
-in the United States was controlled or free. Just as in England,
-this lingering uncertainty would make it hard for publishers to rely
-upon a public domain to reprint and distribute works.
+William W. Crosskey, Politics and the Constitution in the History of
+the United States (London: Cambridge University Press, 1953), vol. 1,
+485–86: "extinguish[ing], by plain implication of `the supreme
+Law of the Land,' the perpetual rights which authors had, or were
+supposed by some to have, under the Common Law" (emphasis added).
+<indexterm><primary>Crosskey, William W.</primary></indexterm>
+</para></footnote>
+This meant that there was no guaranteed public domain in the United
+States in 1790. If copyrights were protected by the common law, then
+there was no simple way to know whether a work published in the United
+States was controlled or free. Just as in England, this lingering
+uncertainty would make it hard for publishers to rely upon a public
+domain to reprint and distribute works.
</para>
<para>
That uncertainty ended after Congress passed legislation granting
-copyrights. Because federal law overrides any contrary state law, federal
-protections for copyrighted works displaced any state law protections.
-Just as in England the Statute of Anne eventually meant that the
- copyrights
-for all English works expired, a federal statute meant that any
-state copyrights expired as well.
+copyrights. Because federal law overrides any contrary state law,
+federal protections for copyrighted works displaced any state law
+protections. Just as in England the Statute of Anne eventually meant
+that the copyrights for all English works expired, a federal statute
+meant that any state copyrights expired as well.
</para>
<para>
In 1790, Congress enacted the first copyright law. It created a
percent immediately passed into the public domain; the balance would
pass into the pubic domain within twenty-eight years at most, and more
likely within fourteen years.<footnote><para>
-<!-- f9 -->
+<!-- f9 -->
Although 13,000 titles were published in the United States from 1790
to 1799, only 556 copyright registrations were filed; John Tebbel, A
History of Book Publishing in the United States, vol. 1, The Creation
copyrighted fell into the public domain quickly, because the term of
copyright was short. The initial term of copyright was fourteen years,
with the option of renewal for an additional fourteen years. Copyright
-Act of May 31, 1790, §1, 1 stat. 124. </para></footnote>
+Act of May 31, 1790, §1, 1 stat. 124. </para></footnote>
</para>
<para>
This system of renewal was a crucial part of the American system
tradition embraced, who said whether and how the law would restrict
your freedom.
</para>
+<indexterm><primary>Casablanca</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
Holland, "Copyright Act Raising Free-Speech Concerns," Billboard,
May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com,
April 2001; Electronic Frontier Foundation, "Frequently Asked
- Questions
-about Felten and USENIX v. RIAA Legal Case," available at
+Questions about Felten and USENIX v. RIAA Legal Case," available at
<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
+<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para></footnote>
He and a group of colleagues were working on a paper to be submitted
at conference. The paper was intended to describe the weakness in an
These changes are of two sorts: the scope of concentration, and its
nature.
</para>
+<indexterm><primary>BMG</primary></indexterm>
<para>
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
<!-- f25 -->
FCC Oversight: Hearing Before the Senate Commerce, Science and
Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
-(statement of Senator John McCain). </para></footnote> The five
-recording labels of Universal Music Group, BMG, Sony Music
+(statement of Senator John McCain). </para></footnote>
+The five recording labels of Universal Music Group, BMG, Sony Music
Entertainment, Warner Music Group, and EMI control 84.8 percent of the
U.S. music market.<footnote><para>
<!-- f26 -->
Concentration in size alone is one thing. The more invidious
change is in the nature of that concentration. As author James Fallows
put it in a recent article about Rupert Murdoch,
+<indexterm><primary>Fallows, James</primary></indexterm>
</para>
<blockquote>
<para>
<!-- f28 -->
James Fallows, "The Age of Murdoch," Atlantic Monthly (September
2003): 89.
+<indexterm><primary>Fallows, James</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
<!-- PAGE BREAK 176 -->
-The network did not control those copyrights because the law
- forbade
-the networks from controlling the content they syndicated. The
-law required a separation between the networks and the content
- producers;
-that separation would guarantee Lear freedom. And as late as
-1992, because of these rules, the vast majority of prime time
- television—75
-percent of it—was "independent" of the networks.
-</para>
-<para>
-In 1994, the FCC abandoned the rules that required this
- independence.
-After that change, the networks quickly changed the balance.
-In 1985, there were twenty-five independent television production
- studios;
-in 2002, only five independent television studios remained. "In
-1992, only 15 percent of new series were produced for a network by a
-company it controlled. Last year, the percentage of shows produced by
-controlled companies more than quintupled to 77 percent." "In 1992,
-16 new series were produced independently of conglomerate control,
-last year there was one."<footnote><para>
+The network did not control those copyrights because the law forbade
+the networks from controlling the content they syndicated. The law
+required a separation between the networks and the content producers;
+that separation would guarantee Lear freedom. And as late as 1992,
+because of these rules, the vast majority of prime time
+television—75 percent of it—was "independent" of the
+networks.
+</para>
+<para>
+In 1994, the FCC abandoned the rules that required this independence.
+After that change, the networks quickly changed the balance. In 1985,
+there were twenty-five independent television production studios; in
+2002, only five independent television studios remained. "In 1992,
+only 15 percent of new series were produced for a network by a company
+it controlled. Last year, the percentage of shows produced by
+controlled companies more than quintupled to 77 percent." "In 1992, 16
+new series were produced independently of conglomerate control, last
+year there was one."<footnote><para>
<!-- f30 -->
-NewsCorp./DirecTV Merger and Media Consolidation: Hearings on
-Media Ownership Before the Senate Commerce Committee, 108th
-Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of
- Consumers
-Union and the Consumer Federation of America), available at
-<ulink url="http://free-culture.cc/notes/">link #30</ulink>. Kimmelman quotes Victoria Riskin, president of Writers Guild of
-America, West, in her Remarks at FCC En Banc Hearing, Richmond,
-Virginia, 27 February 2003.
-</para></footnote>
-In 2002, 75 percent of prime time television
-was owned by the networks that ran it. "In the ten-year period between
-1992 and 2002, the number of prime time television hours per week
-produced by network studios increased over 200%, whereas the
- number
-of prime time television hours per week produced by independent
-studios decreased 63%."<footnote><para>
+NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
+Ownership Before the Senate Commerce Committee, 108th Cong., 1st
+sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
+and the Consumer Federation of America), available at
+<ulink url="http://free-culture.cc/notes/">link #30</ulink>. Kimmelman
+quotes Victoria Riskin, president of Writers Guild of America, West,
+in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
+2003.
+</para></footnote>
+In 2002, 75 percent of prime time television was owned by the networks
+that ran it. "In the ten-year period between 1992 and 2002, the number
+of prime time television hours per week produced by network studios
+increased over 200%, whereas the number of prime time television hours
+per week produced by independent studios decreased
+63%."<footnote><para>
<!-- f31 -->
Ibid.
</para></footnote>
owned by the network.
</para>
<para>
-While the number of channels has increased dramatically, the
- ownership
-of those channels has narrowed to an ever smaller and smaller
-few. As Barry Diller said to Bill Moyers,
+While the number of channels has increased dramatically, the ownership
+of those channels has narrowed to an ever smaller and smaller few. As
+Barry Diller said to Bill Moyers,
</para>
<blockquote>
<para>
through their controlled distribution system, then what you get is
fewer and fewer actual voices participating in the process. [We
<!-- PAGE BREAK 177 -->
-u]sed to have dozens and dozens of thriving independent
- production
-companies producing television programs. Now you have less
-than a handful.<footnote><para>
+u]sed to have dozens and dozens of thriving independent production
+companies producing television programs. Now you have less than a
+handful.<footnote><para>
<!-- f32 -->
"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
Moyers, 25 April 2003, edited transcript available at
</para>
</blockquote>
<para>
-This narrowing has an effect on what is produced. The product of
-such large and concentrated networks is increasingly homogenous.
- Increasingly
-safe. Increasingly sterile. The product of news shows from
-networks like this is increasingly tailored to the message the network
-wants to convey. This is not the communist party, though from the
- inside,
-it must feel a bit like the communist party. No one can question
-without risk of consequence—not necessarily banishment to Siberia,
-but punishment nonetheless. Independent, critical, different views are
-quashed. This is not the environment for a democracy.
+This narrowing has an effect on what is produced. The product of such
+large and concentrated networks is increasingly homogenous.
+Increasingly safe. Increasingly sterile. The product of news shows
+from networks like this is increasingly tailored to the message the
+network wants to convey. This is not the communist party, though from
+the inside, it must feel a bit like the communist party. No one can
+question without risk of consequence—not necessarily banishment
+to Siberia, but punishment nonetheless. Independent, critical,
+different views are quashed. This is not the environment for a
+democracy.
</para>
+<indexterm><primary>Clark, Kim B.</primary></indexterm>
<para>
Economics itself offers a parallel that explains why this integration
affects creativity. Clay Christensen has written about the "Innovator's
The same analysis could help explain why large, traditional media
companies would find it rational to ignore new cultural trends.<footnote><para>
<!-- f33 -->
-Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
- National
-Bestseller that Changed the Way We Do Business (Cambridge: Harvard
-Business School Press, 1997). Christensen acknowledges that the idea was
-first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of
-Design Hierarchies and Market Concepts in Technological Evolution,"
-Research Policy 14 (1985): 235–51. For a more recent study, see Richard
-Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are
-Built to Last Underperform the Market—and How to Successfully Transform
-Them (New York: Currency/Doubleday, 2001).
-</para></footnote>
-
- Lumbering
-giants not only don't, but should not, sprint. Yet if the field is
-only open to the giants, there will be far too little sprinting.
+Clayton M. Christensen, The Innovator's Dilemma: The
+Revolutionary National Bestseller that Changed the Way We Do Business
+(Cambridge: Harvard Business School Press, 1997). Christensen
+acknowledges that the idea was first suggested by Dean Kim Clark. See
+Kim B. Clark, "The Interaction of Design Hierarchies and Market
+Concepts in Technological Evolution," Research Policy 14 (1985):
+235–51. For a more recent study, see Richard Foster and Sarah
+Kaplan, Creative Destruction: Why Companies That Are Built to Last
+Underperform the Market—and How to Successfully Transform Them
+(New York: Currency/Doubleday, 2001). </para></footnote>
+
+Lumbering giants not only don't, but should not, sprint. Yet if the
+field is only open to the giants, there will be far too little
+sprinting.
</para>
<para>
I don't think we know enough about the economics of the media
mistake. I am not pro drugs. Indeed, I come from a family once
<!-- PAGE BREAK 178 -->
-wrecked by drugs—though the drugs that wrecked my family were all
-quite legal. I believe this war is a profound mistake because the
- collateral
-damage from it is so great as to make waging the war insane.
-When you add together the burdens on the criminal justice system, the
-desperation of generations of kids whose only real economic
- opportunities
-are as drug warriors, the queering of constitutional protections
- because
-of the constant surveillance this war requires, and, most profoundly,
-the total destruction of the legal systems of many South American
- nations
-because of the power of the local drug cartels, I find it impossible
-to believe that the marginal benefit in reduced drug consumption by
-Americans could possibly outweigh these costs.
-</para>
-<para>
-You may not be convinced. That's fine. We live in a democracy, and
-it is through votes that we are to choose policy. But to do that, we
- depend
-fundamentally upon the press to help inform Americans about
+wrecked by drugs—though the drugs that wrecked my family were
+all quite legal. I believe this war is a profound mistake because the
+collateral damage from it is so great as to make waging the war
+insane. When you add together the burdens on the criminal justice
+system, the desperation of generations of kids whose only real
+economic opportunities are as drug warriors, the queering of
+constitutional protections because of the constant surveillance this
+war requires, and, most profoundly, the total destruction of the legal
+systems of many South American nations because of the power of the
+local drug cartels, I find it impossible to believe that the marginal
+benefit in reduced drug consumption by Americans could possibly
+outweigh these costs.
+</para>
+<para>
+You may not be convinced. That's fine. We live in a democracy, and it
+is through votes that we are to choose policy. But to do that, we
+depend fundamentally upon the press to help inform Americans about
these issues.
</para>
<para>
-Beginning in 1998, the Office of National Drug Control Policy
-launched a media campaign as part of the "war on drugs." The
- campaign
-produced scores of short film clips about issues related to illegal
-drugs. In one series (the Nick and Norm series) two men are in a bar,
-discussing the idea of legalizing drugs as a way to avoid some of the
-collateral damage from the war. One advances an argument in favor of
-drug legalization. The other responds in a powerful and effective way
-against the argument of the first. In the end, the first guy changes his
-mind (hey, it's television). The plug at the end is a damning attack on
-the pro-legalization campaign.
+Beginning in 1998, the Office of National Drug Control Policy launched
+a media campaign as part of the "war on drugs." The campaign produced
+scores of short film clips about issues related to illegal drugs. In
+one series (the Nick and Norm series) two men are in a bar, discussing
+the idea of legalizing drugs as a way to avoid some of the collateral
+damage from the war. One advances an argument in favor of drug
+legalization. The other responds in a powerful and effective way
+against the argument of the first. In the end, the first guy changes
+his mind (hey, it's television). The plug at the end is a damning
+attack on the pro-legalization campaign.
</para>
<para>
Fair enough. It's a good ad. Not terribly misleading. It delivers its
<para>
But let's say you think it is a wrong message, and you'd like to run a
countercommercial. Say you want to run a series of ads that try to
-demonstrate the extraordinary collateral harm that comes from the
-drug war. Can you do it?
+demonstrate the extraordinary collateral harm that comes from the drug
+war. Can you do it?
</para>
<para>
Well, obviously, these ads cost lots of money. Assume you raise the
<!-- PAGE BREAK 179 -->
money. Assume a group of concerned citizens donates all the money in
-the world to help you get your message out. Can you be sure your
- message
-will be heard then?
+the world to help you get your message out. Can you be sure your
+message will be heard then?
</para>
<para>
-No. You cannot. Television stations have a general policy of
- avoiding
+No. You cannot. Television stations have a general policy of avoiding
"controversial" ads. Ads sponsored by the government are deemed
-uncontroversial; ads disagreeing with the government are controversial.
-This selectivity might be thought inconsistent with the First
- Amendment,
-but the Supreme Court has held that stations have the right to
-choose what they run. Thus, the major channels of commercial media
-will refuse one side of a crucial debate the opportunity to present its case.
-
And the courts will defend the rights of the stations to be this biased.<footnote><para>
+uncontroversial; ads disagreeing with the government are
+controversial. This selectivity might be thought inconsistent with
+the First Amendment, but the Supreme Court has held that stations have
+the right to choose what they run. Thus, the major channels of
+commercial media will refuse one side of a crucial debate the
+opportunity to present its case. And the courts will defend the
+rights of the stations to be this biased.<footnote><para>
<!-- f34 -->
-The Marijuana Policy Project, in February 2003, sought to place ads that
-directly responded to the Nick and Norm series on stations within the
-Washington, D.C., area. Comcast rejected the ads as "against [their]
- policy."
-The local NBC affiliate, WRC, rejected the ads without reviewing
-them. The local ABC affiliate, WJOA, originally agreed to run the ads and
-accepted payment to do so, but later decided not to run the ads and
- returned
-the collected fees. Interview with Neal Levine, 15 October 2003.
-These restrictions are, of course, not limited to drug policy. See, for
- example,
-Nat Ives, "On the Issue of an Iraq War, Advocacy Ads Meet with
-Rejection from TV Networks," New York Times, 13 March 2003, C4.
- Outside
-of election-related air time there is very little that the FCC or the
-courts are willing to do to even the playing field. For a general overview,
-see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial
- Advertising
-on Television and Radio," Yale Law and Policy Review 6 (1988):
-449–79, and for a more recent summary of the stance of the FCC and the
-courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d
-872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
-the networks. In a recent example from San Francisco, the San Francisco
-transit authority rejected an ad that criticized its Muni diesel buses. Phillip
-Matier and Andrew Ross, "Antidiesel Group Fuming 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."
-</para></footnote>
-</para>
-<para>
-I'd be happy to defend the networks' rights, as well—if we lived in
-a media market that was truly diverse. But concentration in the media
-throws that condition into doubt. If a handful of companies control
- access
-to the media, and that handful of companies gets to decide which
-political positions it will allow to be promoted on its channels, then in
-an obvious and important way, concentration matters. You might like
-the positions the handful of companies 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.
-
+The Marijuana Policy Project, in February 2003, sought to place ads
+that directly responded to the Nick and Norm series on stations within
+the Washington, D.C., area. Comcast rejected the ads as "against
+[their] policy." The local NBC affiliate, WRC, rejected the ads
+without reviewing them. The local ABC affiliate, WJOA, originally
+agreed to run the ads and accepted payment to do so, but later decided
+not to run the ads and returned the collected fees. Interview with
+Neal Levine, 15 October 2003. These restrictions are, of course, not
+limited to drug policy. See, for example, Nat Ives, "On the Issue of
+an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," New
+York Times, 13 March 2003, C4. Outside of election-related air time
+there is very little that the FCC or the courts are willing to do to
+even the playing field. For a general overview, see Rhonda Brown, "Ad
+Hoc Access: The Regulation of Editorial Advertising on Television and
+Radio," Yale Law and Policy Review 6 (1988): 449–79, and for a
+more recent summary of the stance of the FCC and the courts, see
+Radio-Television News Directors Association v. FCC, 184 F. 3d 872
+(D.C. Cir. 1999). Municipal authorities exercise the same authority as
+the networks. In a recent example from San Francisco, the San
+Francisco transit authority rejected an ad that criticized its Muni
+diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming
+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."
+</para></footnote>
+</para>
+<para>
+I'd be happy to defend the networks' rights, as well—if we lived
+in a media market that was truly diverse. But concentration in the
+media throws that condition into doubt. If a handful of companies
+control access to the media, and that handful of companies gets to
+decide which political positions it will allow to be promoted on its
+channels, then in an obvious and important way, concentration
+matters. You might like the positions the handful of companies
+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">
<title>Together</title>
<para>
-There is something innocent and obvious about the claim of the
- copyright
-warriors that the government should "protect my property." In
-the abstract, it is obviously true and, ordinarily, totally harmless. No
-sane sort who is not an anarchist could disagree.
+There is something innocent and obvious about the claim of the
+copyright warriors that the government should "protect my property."
+In the abstract, it is obviously true and, ordinarily, totally
+harmless. No sane sort who is not an anarchist could disagree.
</para>
<para>
But when we see how dramatically this "property" has changed—
-when we recognize how it might now interact with both technology
-and markets to mean that the effective constraint on the liberty to
- cultivate
-our culture is dramatically different—the claim begins to seem
+when we recognize how it might now interact with both technology and
+markets to mean that the effective constraint on the liberty to
+cultivate our culture is dramatically different—the claim begins
+to seem
<!-- PAGE BREAK 180 -->
-less innocent and obvious. Given (1) the power of technology to
- supplement
-the law's control, and (2) the power of concentrated markets
-to weaken the opportunity for dissent, if strictly enforcing the
- massively
-expanded "property" rights granted by copyright fundamentally
-changes the freedom within this culture to cultivate and build upon our
-past, then we have to ask whether this property should be redefined.
+less innocent and obvious. Given (1) the power of technology to
+supplement the law's control, and (2) the power of concentrated
+markets to weaken the opportunity for dissent, if strictly enforcing
+the massively expanded "property" rights granted by copyright
+fundamentally changes the freedom within this culture to cultivate and
+build upon our past, then we have to ask whether this property should
+be redefined.
</para>
<para>
Not starkly. Or absolutely. My point is not that we should abolish
our culture today.
</para>
<para>
-But there is a space between zero and one, Internet culture
- notwithstanding.
-And these massive shifts in the effective power of copyright
-regulation, tied to increased concentration of the content industry and
-resting in the hands of technology that will increasingly enable control
-over the use of culture, should drive us to consider whether another
- adjustment
-is called for. Not an adjustment that increases copyright's
-power. Not an adjustment that increases its term. Rather, an
- adjustment
-to restore the balance that has traditionally defined copyright's
-regulation—a weakening of that regulation, to strengthen creativity.
+But there is a space between zero and one, Internet culture
+notwithstanding. And these massive shifts in the effective power of
+copyright regulation, tied to increased concentration of the content
+industry and resting in the hands of technology that will increasingly
+enable control over the use of culture, should drive us to consider
+whether another adjustment is called for. Not an adjustment that
+increases copyright's power. Not an adjustment that increases its
+term. Rather, an adjustment to restore the balance that has
+traditionally defined copyright's regulation—a weakening of that
+regulation, to strengthen creativity.
</para>
<para>
-Copyright law has not been a rock of Gibraltar. It's not a set of
- constant
-commitments that, for some mysterious reason, teenagers and
+Copyright law has not been a rock of Gibraltar. It's not a set of
+constant commitments that, for some mysterious reason, teenagers and
geeks now flout. Instead, copyright power has grown dramatically in a
short period of time, as the technologies of distribution and creation
-have changed and as lobbyists have pushed for more control by
- copyright
-holders. Changes in the past in response to changes in
- technology
-suggest that we may well need similar changes in the future. And
-these changes have to be reductions in the scope of copyright, in
- response
-to the extraordinary increase in control that technology and the
-market enable.
+have changed and as lobbyists have pushed for more control by
+copyright holders. Changes in the past in response to changes in
+technology suggest that we may well need similar changes in the
+future. And these changes have to be reductions in the scope of
+copyright, in response to the extraordinary increase in control that
+technology and the market enable.
</para>
<para>
For the single point that is lost in this war on pirates is a point that
we see only after surveying the range of these changes. When you add
<!-- PAGE BREAK 181 -->
together the effect of changing law, concentrated markets, and
- changing
-technology, together they produce an astonishing conclusion:
-Never in our history have fewer had a legal right to control more of the
- development
-of our culture than now.
-</para>
-<para>
-Not when copyrights were perpetual, for when copyrights were
-perpetual, they affected only that precise creative work. Not when only
-publishers had the tools to publish, for the market then was much more
-diverse. Not when there were only three television networks, for even
-then, newspapers, film studios, radio stations, and publishers were
- independent
-of the networks. Never has copyright protected such a wide
-range of rights, against as broad a range of actors, for a term that was
-remotely as long. This form of regulation—a tiny regulation of a tiny
-part of the creative energy of a nation at the founding—is now a
- massive
-regulation of the overall creative process. Law plus technology plus
-the market now interact to turn this historically benign regulation into
-the most significant regulation of culture that our free society has
-known.<footnote><para>
+changing technology, together they produce an astonishing conclusion:
+Never in our history have fewer had a legal right to control more of
+the development of our culture than now.
+</para>
+<para> Not when copyrights were perpetual, for when copyrights were
+perpetual, they affected only that precise creative work. Not when
+only publishers had the tools to publish, for the market then was much
+more diverse. Not when there were only three television networks, for
+even then, newspapers, film studios, radio stations, and publishers
+were independent of the networks. Never has copyright protected such a
+wide range of rights, against as broad a range of actors, for a term
+that was remotely as long. This form of regulation—a tiny
+regulation of a tiny part of the creative energy of a nation at the
+founding—is now a massive regulation of the overall creative
+process. Law plus technology plus the market now interact to turn this
+historically benign regulation into the most significant regulation of
+culture that our free society has known.<footnote><para>
<!-- f35 -->
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
copyright law in the digital age. See Vaidhyanathan, 159–60.
</para>
<para>
At the start of this book, I distinguished between commercial and
-noncommercial culture. In the course of this chapter, I have
- distinguished
-between copying a work and transforming it. We can now
+noncommercial culture. In the course of this chapter, I have
+distinguished between copying a work and transforming it. We can now
combine these two distinctions and draw a clear map of the changes
-that copyright law has undergone.
-In 1790, the law looked like this:
+that copyright law has undergone. In 1790, the law looked like this:
</para>
<table id="t2">
</table>
<para>
-Derivative works were now regulated by copyright law—if
- published,
-which again, given the economics of publishing at the time,
+Derivative works were now regulated by copyright law—if
+published, which again, given the economics of publishing at the time,
means if offered commercially. But noncommercial publishing and
transformation were still essentially free.
</para>
<para>
-In 1909 the law changed to regulate copies, not publishing, and
- after
+In 1909 the law changed to regulate copies, not publishing, and after
this change, the scope of the law was tied to technology. As the
-technology of copying became more prevalent, the reach of the law
- expanded.
-Thus by 1975, as photocopying machines became more
- common,
+technology of copying became more prevalent, the reach of the law
+expanded. Thus by 1975, as photocopying machines became more common,
we could say the law began to look like this:
</para>
</table>
<para>
-The law was interpreted to reach noncommercial copying through,
-say, copy machines, but still much of copying outside of the
- commercial
-market remained free. But the consequence of the emergence of
-digital technologies, especially in the context of a digital network,
-means that the law now looks like this:
+The law was interpreted to reach noncommercial copying through, say,
+copy machines, but still much of copying outside of the commercial
+market remained free. But the consequence of the emergence of digital
+technologies, especially in the context of a digital network, means
+that the law now looks like this:
</para>
<table id="t5">
</table>
<para>
-Every realm is governed by copyright law, whereas before most
- creativity
-was not. The law now regulates the full range of creativity—
+Every realm is governed by copyright law, whereas before most
+creativity was not. The law now regulates the full range of
+creativity—
<!-- PAGE BREAK 183 -->
-commercial or not, transformative or not—with the same rules designed
-to regulate commercial publishers.
+commercial or not, transformative or not—with the same rules
+designed to regulate commercial publishers.
</para>
<para>
Obviously, copyright law is not the enemy. The enemy is regulation
<para>
I have no doubt that it does good in regulating commercial copying.
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
+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.
<para>
The issue is therefore not simply whether copyright is property. Of
course copyright is a kind of "property," and of course, as with any
-property, the state ought to protect it. But first impressions
- notwithstanding,
-
historically, this property right (as with all property rights<footnote><para>
+property, the state ought to protect it. But first impressions
+notwithstanding, historically, this property right (as with all
+property rights<footnote><para>
<!-- f36 -->
-It was the single most important contribution of the legal realist
- movement
-to demonstrate that all property rights are always crafted to balance
-public and private interests. See Thomas C. Grey, "The Disintegration of
-Property," in Nomos XXII: Property, J. Roland Pennock and John W.
-Chapman, eds. (New York: New York University Press, 1980).
+It was the single most important contribution of the legal realist
+movement to demonstrate that all property rights are always crafted to
+balance public and private interests. See Thomas C. Grey, "The
+Disintegration of Property," in Nomos XXII: Property, J. Roland
+Pennock and John W. Chapman, eds. (New York: New York University
+Press, 1980).
</para></footnote>)
has been crafted to balance the important need to give authors and
artists incentives with the equally important need to assure access to
-creative work. This balance has always been struck in light of new
- technologies.
-And for almost half of our tradition, the "copyright" did not
-control at all the freedom of others to build upon or transform a creative
-work. American culture was born free, and for almost 180 years our
-country consistently protected a vibrant and rich free culture.
+creative work. This balance has always been struck in light of new
+technologies. And for almost half of our tradition, the "copyright"
+did not control at all the freedom of others to build upon or
+transform a creative work. American culture was born free, and for
+almost 180 years our country consistently protected a vibrant and rich
+free culture.
</para>
<para>
We achieved that free culture because our law respected important
limits on the scope of the interests protected by "property." The very
birth of "copyright" as a statutory right recognized those limits, by
-granting copyright owners protection for a limited time only (the story
-of chapter 6). The tradition of "fair use" is animated by a similar
- concern
-that is increasingly under strain as the costs of exercising any fair
-use right become unavoidably high (the story of chapter 7). Adding
+granting copyright owners protection for a limited time only (the
+story of chapter 6). The tradition of "fair use" is animated by a
+similar concern that is increasingly under strain as the costs of
+exercising any fair use right become unavoidably high (the story of
+chapter 7). Adding
<!-- PAGE BREAK 184 -->
statutory rights where markets might stifle innovation is another
- familiar
-limit on the property right that copyright is (chapter 8). And
- granting
-archives and libraries a broad freedom to collect, claims of property
-notwithstanding, is a crucial part of guaranteeing the soul of a culture
-(chapter 9). Free cultures, like free markets, are built with property. But
-the nature of the property that builds a free culture is very different
-from the extremist vision that dominates the debate today.
-</para>
-<para>
-Free culture is increasingly the casualty in this war on piracy. In
- response
-to a real, if not yet quantified, threat that the technologies of the
-Internet present to twentieth-century business models for producing
-and distributing culture, the law and technology are being transformed
-in a way that will undermine our tradition of free culture. The property
-right that is copyright is no longer the balanced right that it was, or
-was intended to be. The property right that is copyright has become
-unbalanced, tilted toward an extreme. The opportunity to create and
-transform becomes weakened in a world in which creation requires
-permission and creativity must check with a lawyer.
+familiar limit on the property right that copyright is (chapter
+8). And granting archives and libraries a broad freedom to collect,
+claims of property notwithstanding, is a crucial part of guaranteeing
+the soul of a culture (chapter 9). Free cultures, like free markets,
+are built with property. But the nature of the property that builds a
+free culture is very different from the extremist vision that
+dominates the debate today.
+</para>
+<para>
+Free culture is increasingly the casualty in this war on piracy. In
+response to a real, if not yet quantified, threat that the
+technologies of the Internet present to twentieth-century business
+models for producing and distributing culture, the law and technology
+are being transformed in a way that will undermine our tradition of
+free culture. The property right that is copyright is no longer the
+balanced right that it was, or was intended to be. The property right
+that is copyright has become unbalanced, tilted toward an extreme. The
+opportunity to create and transform becomes weakened in a world in
+which creation requires permission and creativity must check with a
+lawyer.
</para>
<!-- PAGE BREAK 185 -->
</sect2>
</chapter>
<chapter id="c-puzzles">
<title>PUZZLES</title>
-
-<para> </para>
-
+<para></para>
<!-- PAGE BREAK 186 -->
<sect1 id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
-<para>
+<indexterm id="idxchimera" class='startofrange'>
+ <primary>chimeras</primary>
+</indexterm>
+<indexterm id="idxwells" class='startofrange'>
+ <primary>Wells, H. G.</primary>
+</indexterm>
+<indexterm id="idxtcotb" class='startofrange'>
+ <primary>"Country of the Blind, The" (Wells)</primary>
+</indexterm>
+<para>
In a well-known short story by H. G. Wells, a mountain climber
named Nunez trips (literally, down an ice slope) into an unknown and
isolated valley in the Peruvian Andes.<footnote><para>
-<!-- f1. --> H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
+<!-- f1. -->
+H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
The Country of the Blind and Other Stories, Michael Sherborne, ed. (New
York: Oxford University Press, 1996).
</para></footnote>
-The valley is extraordinarily
-beautiful, with "sweet water, pasture, an even climate, slopes of rich
-brown soil with tangles of a shrub that bore an excellent fruit." But the
-villagers are all blind. Nunez takes this as an opportunity. "In the
-Country of the Blind," he tells himself, "the One-Eyed Man is King."
-So he resolves to live with the villagers to explore life as a king.
+The valley is extraordinarily beautiful, with "sweet water, pasture,
+an even climate, slopes of rich brown soil with tangles of a shrub
+that bore an excellent fruit." But the villagers are all blind. Nunez
+takes this as an opportunity. "In the Country of the Blind," he tells
+himself, "the One-Eyed Man is King." So he resolves to live with the
+villagers to explore life as a king.
</para>
<para>
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
-"blind." They don't have the word blind. They think he's just thick.
- Indeed,
-as they increasingly notice the things he can't do (hear the sound
-of grass being stepped on, for example), they increasingly try to control
-him. He, in turn, becomes increasingly frustrated. "`You don't
- understand,'
-he cried, in a voice that was meant to be great and resolute, and
-which broke. `You are blind and I can see. Leave me alone!'"
+"blind." They don't have the word blind. They think he's just thick.
+Indeed, as they increasingly notice the things he can't do (hear the
+sound of grass being stepped on, for example), they increasingly try
+to control him. He, in turn, becomes increasingly frustrated. "`You
+don't understand,' he cried, in a voice that was meant to be great and
+resolute, and which broke. `You are blind and I can see. Leave me
+alone!'"
</para>
<para>
<!-- PAGE BREAK 187 -->
-The villagers don't leave him alone. Nor do they see (so to speak)
-the virtue of his special power. Not even the ultimate target of his
- affection,
-a young woman who to him seems "the most beautiful thing in
-the whole of creation," understands the beauty of sight. Nunez's
- description
-of what he sees "seemed to her the most poetical of fancies,
-and she listened to his description of the stars and the mountains and
-her own sweet white-lit beauty as though it was a guilty indulgence."
-"She did not believe," Wells tells us, and "she could only half
- understand,
-but she was mysteriously delighted."
-</para>
-<para>
-When Nunez announces his desire to marry his "mysteriously
- delighted"
+The villagers don't leave him alone. Nor do they see (so to speak) the
+virtue of his special power. Not even the ultimate target of his
+affection, a young woman who to him seems "the most beautiful thing in
+the whole of creation," understands the beauty of sight. Nunez's
+description of what he sees "seemed to her the most poetical of
+fancies, and she listened to his description of the stars and the
+mountains and her own sweet white-lit beauty as though it was a guilty
+indulgence." "She did not believe," Wells tells us, and "she could
+only half understand, but she was mysteriously delighted."
+</para>
+<para>
+When Nunez announces his desire to marry his "mysteriously delighted"
love, the father and the village object. "You see, my dear," her
-father instructs, "he's an idiot. He has delusions. He can't do anything
-right." They take Nunez to the village doctor.
+father instructs, "he's an idiot. He has delusions. He can't do
+anything right." They take Nunez to the village doctor.
</para>
<para>
After a careful examination, the doctor gives his opinion. "His brain
is affected," he reports.
</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 his brain."
+"What affects it?" the father asks. "Those queer things that are
+called the eyes . . . are diseased . . . in such a way as to affect
+his brain."
</para>
<para>
The doctor continues: "I think I may say with reasonable certainty
-that in order to cure him completely, all that we need to do is a simple
-and easy surgical operation—namely, to remove these irritant bodies
-[the eyes]."
+that in order to cure him completely, all that we need to do is a
+simple and easy surgical operation—namely, to remove these
+irritant bodies [the eyes]."
</para>
<para>
-"Thank Heaven for science!" says the father to the doctor. They
- inform
+"Thank Heaven for science!" says the father to the doctor. They inform
Nunez of this condition necessary for him to be allowed his bride.
-(You'll have to read the original to learn what happens in the end. I
- believe
-in free culture, but never in giving away the end of a story.)
+(You'll have to read the original to learn what happens in the end. I
+believe in free culture, but never in giving away the end of a story.)
It sometimes happens that the eggs of twins fuse in the mother's
womb. That fusion produces a "chimera." A chimera is a single creature
with two sets of DNA. The DNA in the blood, for example, might be
different from the DNA of the skin. This possibility is an underused
<!-- PAGE BREAK 188 -->
-plot for murder mysteries. "But the DNA shows with 100 percent
- certainty
-that she was not the person whose blood was at the scene. . . ."
+plot for murder mysteries. "But the DNA shows with 100 percent
+certainty that she was not the person whose blood was at the
+scene. . . ."
</para>
+<indexterm startref="idxtcotb" class='endofrange'/>
+<indexterm startref="idxwells" class="endofrange"/>
<para>
-Before I had read about chimeras, I would have said they were
- impossible.
-A single person can't have two sets of DNA. The very idea of
-DNA is that it is the code of an individual. Yet in fact, not only can two
-individuals have the same set of DNA (identical twins), but one person
-can have two different sets of DNA (a chimera). Our understanding of
-a "person" should reflect this reality.
+Before I had read about chimeras, I would have said they were
+impossible. A single person can't have two sets of DNA. The very idea
+of DNA is that it is the code of an individual. Yet in fact, not only
+can two individuals have the same set of DNA (identical twins), but
+one person can have two different sets of DNA (a chimera). Our
+understanding of a "person" should reflect this reality.
</para>
<para>
-The more I work to understand the current struggle over copyright
-and culture, which I've sometimes called unfairly, and sometimes not
+The more I work to understand the current struggle over copyright and
+culture, which I've sometimes called unfairly, and sometimes not
unfairly enough, "the copyright wars," the more I think we're dealing
with a chimera. For example, in the battle over the question "What is
-p2p file sharing?" both sides have it right, and both sides have it wrong.
-One side says, "File sharing is just like two kids taping each others'
-records—the sort of thing we've been doing for the last thirty years
-without any question at all." That's true, at least in part. When I tell my
-best friend to try out a new CD that I've bought, but rather than just
-send the CD, I point him to my p2p server, that is, in all relevant
- respects,
-just like what every executive in every recording company no
-doubt did as a kid: sharing music.
+p2p file sharing?" both sides have it right, and both sides have it
+wrong. One side says, "File sharing is just like two kids taping each
+others' records—the sort of thing we've been doing for the last
+thirty years without any question at all." That's true, at least in
+part. When I tell my best friend to try out a new CD that I've bought,
+but rather than just send the CD, I point him to my p2p server, that
+is, in all relevant respects, just like what every executive in every
+recording company no doubt did as a kid: sharing music.
</para>
<para>
But the description is also false in part. For when my p2p server is
-on a p2p network through which anyone can get access to my music,
-then sure, my friends can get access, but it stretches the meaning of
+on a p2p network through which anyone can get access to my music, then
+sure, my friends can get access, but it stretches the meaning of
"friends" beyond recognition to say "my ten thousand best friends" can
get access. Whether or not sharing my music with my best friend is
-what "we have always been allowed to do," we have not always been
- allowed
-to share music with "our ten thousand best friends."
+what "we have always been allowed to do," we have not always been
+allowed to share music with "our ten thousand best friends."
</para>
<para>
Likewise, when the other side says, "File sharing is just like walking
into a Tower Records and taking a CD off the shelf and walking out
-with it," that's true, at least in part. If, after Lyle Lovett (finally)
- releases
-a new album, rather than buying it, I go to Kazaa and find a free
-copy to take, that is very much like stealing a copy from Tower.
+with it," that's true, at least in part. If, after Lyle Lovett
+(finally) releases a new album, rather than buying it, I go to Kazaa
+and find a free copy to take, that is very much like stealing a copy
+from Tower.
</para>
<para>
<!-- PAGE BREAK 189 -->
But it is not quite stealing from Tower. After all, when I take a CD
-from Tower Records, Tower has one less CD to sell. And when I take
-a CD from Tower Records, I get a bit of plastic and a cover, and
- something
-to show on my shelves. (And, while we're at it, we could also note
-that when I take a CD from Tower Records, the maximum fine that
-might be imposed on me, under California law, at least, is $1,000.
- According
-to the RIAA, by contrast, if I download a ten-song CD, I'm
- liable
-for $1,500,000 in damages.)
+from Tower Records, Tower has one less CD to sell. And when I take a
+CD from Tower Records, I get a bit of plastic and a cover, and
+something to show on my shelves. (And, while we're at it, we could
+also note that when I take a CD from Tower Records, the maximum fine
+that might be imposed on me, under California law, at least, is
+$1,000. According to the RIAA, by contrast, if I download a ten-song
+CD, I'm liable for $1,500,000 in damages.)
</para>
<para>
-The point is not that it is as neither side describes. The point is that
-it is both—both as the RIAA describes it and as Kazaa describes it. It
-is a chimera. And rather than simply denying what the other side
- asserts,
-we need to begin to think about how we should respond to this
-chimera. What rules should govern it?
+The point is not that it is as neither side describes. The point is
+that it is both—both as the RIAA describes it and as Kazaa
+describes it. It is a chimera. And rather than simply denying what the
+other side asserts, we need to begin to think about how we should
+respond to this chimera. What rules should govern it?
</para>
<para>
We could respond by simply pretending that it is not a chimera. We
-could, with the RIAA, decide that every act of file sharing should be a
-felony. We could prosecute families for millions of dollars in damages
-just because file sharing occurred on a family computer. And we can get
-universities to monitor all computer traffic to make sure 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>
+could, with the RIAA, decide that every act of file sharing should be
+a felony. We could prosecute families for millions of dollars in
+damages just because file sharing occurred on a family computer. And
+we can get universities to monitor all computer traffic to make sure
+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
</para></footnote>
</para>
+<indexterm startref="idxchimera" class='endofrange'/>
<para>
-Alternatively, we could respond to file sharing the way many kids
-act as though we've responded. We could totally legalize it. Let there
-be no copyright liability, either civil or criminal, for making
- copyrighted
-content available on the Net. Make file sharing like gossip:
- regulated,
-if at all, by social norms but not by law.
+Alternatively, we could respond to file sharing the way many kids act
+as though we've responded. We could totally legalize it. Let there be
+no copyright liability, either civil or criminal, for making
+copyrighted content available on the Net. Make file sharing like
+gossip: regulated, if at all, by social norms but not by law.
</para>
<para>
Either response is possible. I think either would be a mistake.
Rather than embrace one of these two extremes, we should embrace
something that recognizes the truth in both. And while I end this book
-with a sketch of a system that does just that, my aim in the next chapter
-is to show just how awful it would be for us to adopt the zero-tolerance
-extreme. I believe either extreme would be worse than a reasonable
- alternative.
-But I believe the zero-tolerance solution would be the worse
-of the two extremes.
+with a sketch of a system that does just that, my aim in the next
+chapter is to show just how awful it would be for us to adopt the
+zero-tolerance extreme. I believe either extreme would be worse than a
+reasonable alternative. But I believe the zero-tolerance solution
+would be the worse of the two extremes.
</para>
<para>
<!-- PAGE BREAK 190 -->
Yet zero tolerance is increasingly our government's policy. In the
-middle of the chaos that the Internet has created, an extraordinary land
-grab is occurring. The law and technology are being shifted to give
- content
-holders a kind of control over our culture that they have never had
-before. And in this extremism, many an opportunity for new
- innovation
-and new creativity will be lost.
+middle of the chaos that the Internet has created, an extraordinary
+land grab is occurring. The law and technology are being shifted to
+give content holders a kind of control over our culture that they have
+never had before. And in this extremism, many an opportunity for new
+innovation and new creativity will be lost.
</para>
<para>
I'm not talking about the opportunities for kids to "steal" music. My
focus instead is the commercial and cultural innovation that this war
will also kill. We have never seen the power to innovate spread so
-broadly among our citizens, and we have just begun to see the
- innovation
-that this power will unleash. Yet the Internet has already seen the
-passing of one cycle of innovation around technologies to distribute
-content. The law is responsible for this passing. As the vice president
-for global public policy at one of these new innovators, eMusic.com,
-put it when criticizing the DMCA's added protection for copyrighted
-material,
+broadly among our citizens, and we have just begun to see the
+innovation that this power will unleash. Yet the Internet has already
+seen the passing of one cycle of innovation around technologies to
+distribute content. The law is responsible for this passing. As the
+vice president for global public policy at one of these new
+innovators, eMusic.com, put it when criticizing the DMCA's added
+protection for copyrighted material,
</para>
<blockquote>
<para>
power of the property called "intellectual property" is at its greatest in
our history.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-Yet "common sense" does not see it this way. Common sense is still
-on the side of the Causbys and the content industry. The extreme
-claims of control in the name of property still resonate; the uncritical
+Yet "common sense" does not see it this way. Common sense is still on
+the side of the Causbys and the content industry. The extreme claims
+of control in the name of property still resonate; the uncritical
rejection of "piracy" still has play.
</para>
<para>
And under legislation being pushed in Congress right now, a doctor who
negligently removes the wrong leg in an operation would be liable for
no more than $250,000 in damages for pain and
-suffering.<footnote><para>
+suffering.<footnote>
+<para>
<!-- f2. --> The bill, modeled after California's tort reform model, was passed in the
House of Representatives but defeated in a Senate vote in July 2003. For
an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
available at
<ulink url="http://free-culture.cc/notes/">link #39</ulink>. President Bush has continued to urge tort reform in
recent months.
+<indexterm><primary>Bush, George W.</primary></indexterm>
</para></footnote>
Can common sense recognize the absurdity in a world where
the maximum fine for downloading two songs off the Internet is more
simply enables the powerful industries of today to protect themselves
against the competitors of tomorrow.
</para>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
</para>
+<indexterm><primary>Hummer, John</primary></indexterm>
+<indexterm><primary>Barry, Hank</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
2.0, Rafe Needleman describes a discussion with BMW:
</para>
<blockquote>
+<indexterm><primary>BMW</primary></indexterm>
<para>
I asked why, with all the storage capacity and computer power in
the car, there was no way to play MP3 files. I was told that BMW
engineers in Germany had rigged a new vehicle to play MP3s via
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><para>
-<!-- f5. --> Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+forward for release stateside. Even today, no new cars are sold in the
+United States with bona fide MP3 players. . . . <footnote>
+<para>
+<!-- f5. -->
+Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
2003, available at
-<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli
-for this example.
+<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful
+to Dr. Mohammad Al-Ubaydli for this example.
+<indexterm><primary>Needleman, Rafe</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
This is the world of the mafia—filled with "your money or your
-life" offers, governed in the end not by courts but by the threats that the
-law empowers copyright holders to exercise. It is a system that will
- obviously
-and necessarily stifle new innovation. It is hard enough to start
-a company. It is impossibly hard if that company is constantly
- threatened
-by litigation.
+life" offers, governed in the end not by courts but by the threats
+that the law empowers copyright holders to exercise. It is a system
+that will obviously and necessarily stifle new innovation. It is hard
+enough to start a company. It is impossibly hard if that company is
+constantly threatened by litigation.
</para>
<para>
</para>
<para>
This financial burden is not slight. As Harvard law professor
-William Fisher estimates, if an Internet radio station distributed
- adfree
+William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
-over $1 million a year.<footnote><para>
-<!-- f14. --> This example was derived from fees set by the original Copyright
- Arbitration
-Royalty Panel (CARP) proceedings, and is drawn from an example
-offered by Professor William Fisher. Conference Proceedings, iLaw
-(Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain
-submitted testimony in the CARP proceeding that was ultimately rejected.
-See Jonathan Zittrain, Digital Performance Right in Sound Recordings
-and Ephemeral Recordings, Docket No. 2000-9, CARP DTRA 1 and 2,
-available at
+over $1 million a year.<footnote>
+<para>
+<!-- f14. -->
+This example was derived from fees set by the original Copyright
+Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
+example offered by Professor William Fisher. Conference Proceedings,
+iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
+and Zittrain submitted testimony in the CARP proceeding that was
+ultimately rejected. See Jonathan Zittrain, Digital Performance Right
+in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
+DTRA 1 and 2, available at
<ulink url="http://free-culture.cc/notes/">link #45</ulink>.
-For an excellent analysis making a similar point, see Randal C. Picker,
-"Copyright as Entry Policy: The Case of Digital Distribution," Antitrust
-Bulletin (Summer/Fall 2002): 461: "This was not confusion, these are just
-old-fashioned entry barriers. Analog radio stations are protected from
- digital
-entrants, reducing entry in radio and diversity. Yes, this is done in the
-name of getting royalties to copyright holders, but, absent the play of
- powerful
+For an excellent analysis making a similar point, see Randal
+C. Picker, "Copyright as Entry Policy: The Case of Digital
+Distribution," Antitrust Bulletin (Summer/Fall 2002): 461: "This was
+not confusion, these are just old-fashioned entry barriers. Analog
+radio stations are protected from digital entrants, reducing entry in
+radio and diversity. Yes, this is done in the name of getting
+royalties to copyright holders, but, absent the play of powerful
interests, that could have been done in a media-neutral way."
+<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
</para></footnote>
- A regular radio station broadcasting the same
-content would pay no equivalent fee.
+A regular radio station broadcasting the same content would pay no
+equivalent fee.
</para>
<para>
The burden is not financial only. Under the original rules that were
economic consequences from Internet radio that would justify these
differences? Was the motive to protect artists against piracy?
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
-In a rare bit of candor, one RIAA expert admitted what seemed
- obvious
+In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
Policy at Real Networks, told me,
</para>
sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
was.<footnote><para>
-<!-- f16. --> Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
+<!-- f16. -->
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
Angeles Times, 10 September 2003, Business.
</para></footnote>
- As these scapegoats discovered, it will always cost more to
- defend
+As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
year old, for example, like Jesse Jordan, paid her life savings of $2,000
to settle the case.) Our law is an awful system for defending rights. It
</para>
<para>
Wars of prohibition are nothing new in America. This one is just
-something more extreme than anything we've seen before. We
- experimented
-with alcohol prohibition, at a time when the per capita
- consumption
-of alcohol was 1.5 gallons per capita per year. The war against
-drinking initially reduced that consumption to just 30 percent of its
-preprohibition levels, but by the end of prohibition, consumption was
-up to 70 percent of the preprohibition level. Americans were drinking
-just about as much, but now, a vast number were criminals.<footnote><para>
-<!-- f17. --> Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
- Prohibition,"
-American Economic Review 81, no. 2 (1991): 242.
-</para></footnote>
- We have
-
+something more extreme than anything we've seen before. We
+experimented with alcohol prohibition, at a time when the per capita
+consumption of alcohol was 1.5 gallons per capita per year. The war
+against drinking initially reduced that consumption to just 30 percent
+of its preprohibition levels, but by the end of prohibition,
+consumption was up to 70 percent of the preprohibition
+level. Americans were drinking just about as much, but now, a vast
+number were criminals.<footnote><para>
+<!-- f17. -->
+Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
+Prohibition," American Economic Review 81, no. 2 (1991): 242.
+</para></footnote>
+We have
<!-- PAGE BREAK 210 -->
-launched a war on drugs aimed at reducing the consumption of
- regulated
+launched a war on drugs aimed at reducing the consumption of regulated
narcotics that 7 percent (or 16 million) Americans now use.<footnote><para>
-<!-- f18. --> National Drug Control Policy: Hearing Before the House Government
+<!-- f18. -->
+National Drug Control Policy: Hearing Before the House Government
Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
John P. Walters, director of National Drug Control Policy).
</para></footnote>
-
-That is a drop from the high (so to speak) in 1979 of 14 percent of the
-population. We regulate automobiles to the point where the vast
- majority
-of Americans violate the law every day. We run such a complex
-tax system that a majority of cash businesses regularly cheat.<footnote><para>
-<!-- f19. --> See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
- Compliance,"
-Journal of Economic Literature 36 (1998): 818 (survey of compliance
-literature).
+That is a drop from the high (so to speak) in 1979 of 14 percent of
+the population. We regulate automobiles to the point where the vast
+majority of Americans violate the law every day. We run such a complex
+tax system that a majority of cash businesses regularly
+cheat.<footnote><para>
+<!-- f19. -->
+See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
+Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+compliance literature).
</para></footnote>
- 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.
+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.
</para>
<para>
This state of affairs is not without consequence. It is a particularly
-salient issue for teachers like me, whose job it is to teach law students
-about the importance of "ethics." As my colleague Charlie Nesson told
-a class at Stanford, each year law schools admit thousands of students
-who have illegally downloaded music, illegally consumed alcohol and
-sometimes drugs, illegally worked without paying taxes, illegally driven
-cars. These are kids for whom behaving illegally is increasingly the
-norm. And then we, as law professors, are supposed to teach them how
-to behave ethically—how to say no to bribes, or keep client funds
- separate,
-or honor a demand to disclose a document that will mean that
-your case is over. Generations of Americans—more significantly in
-some parts of America than in others, but still, everywhere in America
-today—can't live their lives both normally and legally, since "normally"
-entails a certain degree of illegality.
+salient issue for teachers like me, whose job it is to teach law
+students about the importance of "ethics." As my colleague Charlie
+Nesson told a class at Stanford, each year law schools admit thousands
+of students who have illegally downloaded music, illegally consumed
+alcohol and sometimes drugs, illegally worked without paying taxes,
+illegally driven cars. These are kids for whom behaving illegally is
+increasingly the norm. And then we, as law professors, are supposed to
+teach them how to behave ethically—how to say no to bribes, or
+keep client funds separate, or honor a demand to disclose a document
+that will mean that your case is over. Generations of
+Americans—more significantly in some parts of America than in
+others, but still, everywhere in America today—can't live their
+lives both normally and legally, since "normally" entails a certain
+degree of illegality.
</para>
<para>
The response to this general illegality is either to enforce the law
-more severely or to change the law. We, as a society, have to learn how
-to make that choice more rationally. Whether a law makes sense
- depends,
-in part, at least, upon whether the costs of the law, both
- intended
-and collateral, outweigh the benefits. If the costs, intended and
-collateral, do outweigh the benefits, then the law ought to be changed.
-Alternatively, if the costs of the existing system are much greater than
-the costs of an alternative, then we have a good reason to consider the
-alternative.
+more severely or to change the law. We, as a society, have to learn
+how to make that choice more rationally. Whether a law makes sense
+depends, in part, at least, upon whether the costs of the law, both
+intended and collateral, outweigh the benefits. If the costs, intended
+and collateral, do outweigh the benefits, then the law ought to be
+changed. Alternatively, if the costs of the existing system are much
+greater than the costs of an alternative, then we have a good reason
+to consider the alternative.
</para>
<para>
week. A society is right to ban murder always and everywhere.
</para>
<para>
-My point is instead one that democracies understood for
- generations,
-but that we recently have learned to forget. The rule of law
-depends upon people obeying the law. The more often, and more
- repeatedly,
-we as citizens experience violating the law, the less we respect
-the law. Obviously, in most cases, the important issue is the law, not
-respect for the law. I don't care whether the rapist respects the law or
-not; I want to catch and incarcerate the rapist. But I do care whether
-my students respect the law. And I do care if the rules of law sow
- increasing
-disrespect because of the extreme of regulation they impose.
-Twenty million Americans have come of age since the Internet
- introduced
-this different idea of "sharing." We need to be able to call these
-twenty million Americans "citizens," not "felons."
-</para>
-<para>
-When at least forty-three million citizens download content from
-the Internet, and when they use tools to combine that content in ways
-unauthorized by copyright holders, the first question we should be
- asking
-is not how best to involve the FBI. The first question should be
-whether this particular prohibition is really necessary in order to achieve
-the proper ends that copyright law serves. Is there another way to
-assure that artists get paid without transforming forty-three million
-Americans into felons? Does it make sense if there are other ways to
-assure that artists get paid without transforming America into a nation
-of felons?
+My point is instead one that democracies understood for generations,
+but that we recently have learned to forget. The rule of law depends
+upon people obeying the law. The more often, and more repeatedly, we
+as citizens experience violating the law, the less we respect the
+law. Obviously, in most cases, the important issue is the law, not
+respect for the law. I don't care whether the rapist respects the law
+or not; I want to catch and incarcerate the rapist. But I do care
+whether my students respect the law. And I do care if the rules of law
+sow increasing disrespect because of the extreme of regulation they
+impose. Twenty million Americans have come of age since the Internet
+introduced this different idea of "sharing." We need to be able to
+call these twenty million Americans "citizens," not "felons."
+</para>
+<para>
+When at least forty-three million citizens download content from the
+Internet, and when they use tools to combine that content in ways
+unauthorized by copyright holders, the first question we should be
+asking is not how best to involve the FBI. The first question should
+be whether this particular prohibition is really necessary in order to
+achieve the proper ends that copyright law serves. Is there another
+way to assure that artists get paid without transforming forty-three
+million Americans into felons? Does it make sense if there are other
+ways to assure that artists get paid without transforming America into
+a nation of felons?
</para>
<para>
This abstract point can be made more clear with a particular example.
</para>
<para>
-We all own CDs. Many of us still own phonograph records. These
-pieces of plastic encode music that in a certain sense we have bought.
-The law protects our right to buy and sell that plastic: It is not a
- copyright
-infringement for me to sell all my classical records at a used
+We all own CDs. Many of us still own phonograph records. These pieces
+of plastic encode music that in a certain sense we have bought. The
+law protects our right to buy and sell that plastic: It is not a
+copyright infringement for me to sell all my classical records at a
+used
<!-- PAGE BREAK 212 -->
record store and buy jazz records to replace them. That "use" of the
phonograph records that is effectively free. Because these recordings
were made without copy-protection technologies, I am "free" to copy,
or "rip," music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that "freedom" was a right:
-In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
- capacities
-of digital technologies.
+Apple Corporation went so far as to suggest that "freedom" was a
+right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+capacities of digital technologies.
</para>
+<indexterm><primary>Adromeda</primary></indexterm>
<para>
This "use" of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
-them in one archive. Then, using Apple's iTunes, or a wonderful
- program
-called Andromeda, we can build different play lists of our music:
-Bach, Baroque, Love Songs, Love Songs of Significant Others—the
-potential is endless. And by reducing the costs of mixing play lists,
-these technologies help build a creativity with play lists that is itself
- independently
-valuable. Compilations of songs are creative and
- meaningful
-in their own right.
+them in one archive. Then, using Apple's iTunes, or a wonderful
+program called Andromeda, we can build different play lists of our
+music: Bach, Baroque, Love Songs, Love Songs of Significant
+Others—the potential is endless. And by reducing the costs of
+mixing play lists, these technologies help build a creativity with
+play lists that is itself independently valuable. Compilations of
+songs are creative and meaningful in their own right.
</para>
<para>
This use is enabled by unprotected media—either CDs or records.
But unprotected media also enable file sharing. File sharing threatens
-(or so the content industry believes) the ability of creators to earn a fair
-return from their creativity. And thus, many are beginning to
- experiment
-with technologies to eliminate unprotected media. These
- technologies,
-for example, would enable CDs that could not be ripped. Or
-they might enable spy programs to identify ripped content on people's
-machines.
+(or so the content industry believes) the ability of creators to earn
+a fair return from their creativity. And thus, many are beginning to
+experiment with technologies to eliminate unprotected media. These
+technologies, for example, would enable CDs that could not be
+ripped. Or they might enable spy programs to identify ripped content
+on people's machines.
</para>
<para>
If these technologies took off, then the building of large archives of
-your own music would become quite difficult. You might hang in
-hacker circles, and get technology to disable the technologies that
- protect
+your own music would become quite difficult. You might hang in hacker
+circles, and get technology to disable the technologies that protect
the content. Trading in those technologies is illegal, but maybe that
doesn't bother you much. In any case, for the vast majority of people,
these protection technologies would effectively destroy the archiving
<!-- PAGE BREAK 213 -->
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
-plastic or were part of a massively complex "digital rights
- management"
-system.
+plastic or were part of a massively complex "digital rights
+management" system.
</para>
<para>
If the only way to assure that artists get paid were the elimination
-of the ability to freely move content, then these technologies to
- interfere
-with the freedom to move content would be justifiable. But what
-if there were another way to assure that artists are paid, without
- locking
-down any content? What if, in other words, a different system
-could assure compensation to artists while also preserving the freedom
-to move content easily?
-</para>
-<para>
-My point just now is not to prove that there is such a system. I
- offer
+of the ability to freely move content, then these technologies to
+interfere with the freedom to move content would be justifiable. But
+what if there were another way to assure that artists are paid,
+without locking down any content? What if, in other words, a different
+system could assure compensation to artists while also preserving the
+freedom to move content easily?
+</para>
+<para>
+My point just now is not to prove that there is such a system. I offer
a version of such a system in the last chapter of this book. For now,
-the only point is the relatively uncontroversial one: If a different system
-achieved the same legitimate objectives that the existing copyright
- system
-achieved, but left consumers and creators much more free, then
-we'd have a very good reason to pursue this alternative—namely,
- freedom.
-The choice, in other words, would not be between property and
-piracy; the choice would be between different property systems and the
-freedoms each allowed.
-</para>
-<para>
-I believe there is a way to assure that artists are paid without
- turning
-forty-three million Americans into felons. But the salient feature
-of this alternative is that it would lead to a very different market for
-producing and distributing creativity. The dominant few, who today
-control the vast majority of the distribution of content in the world,
-would no longer exercise this extreme of control. Rather, they would go
-the way of the horse-drawn buggy.
-</para>
-<para>
-Except that this generation's buggy manufacturers have already
-saddled Congress, and are riding the law to protect themselves against
-this new form of competition. For them the choice is between
- fortythree
+the only point is the relatively uncontroversial one: If a different
+system achieved the same legitimate objectives that the existing
+copyright system achieved, but left consumers and creators much more
+free, then we'd have a very good reason to pursue this
+alternative—namely, freedom. The choice, in other words, would
+not be between property and piracy; the choice would be between
+different property systems and the freedoms each allowed.
+</para>
+<para>
+I believe there is a way to assure that artists are paid without
+turning forty-three million Americans into felons. But the salient
+feature of this alternative is that it would lead to a very different
+market for producing and distributing creativity. The dominant few,
+who today control the vast majority of the distribution of content in
+the world, would no longer exercise this extreme of control. Rather,
+they would go the way of the horse-drawn buggy.
+</para>
+<para>
+Except that this generation's buggy manufacturers have already saddled
+Congress, and are riding the law to protect themselves against this
+new form of competition. For them the choice is between fortythree
million Americans as criminals and their own survival.
</para>
<para>
-It is understandable why they choose as they do. It is not
- understandable
-why we as a democracy continue to choose as we do. Jack
+It is understandable why they choose as they do. It is not
+understandable why we as a democracy continue to choose as we do. Jack
<!-- PAGE BREAK 214 -->
-Valenti is charming; but not so charming as to justify giving up a
- tradition
-as deep and important as our tradition of free culture.
-There's one more aspect to this corruption that is particularly
- important
-to civil liberties, and follows directly from any war of
- prohibition.
-As Electronic Frontier Foundation attorney Fred von Lohmann
-describes, this is the "collateral damage" that "arises whenever you turn
-a very large percentage of the population into criminals." This is the
-collateral damage to civil liberties generally.
+
+Valenti is charming; but not so charming as to justify giving up a
+tradition as deep and important as our tradition of free culture.
+There's one more aspect to this corruption that is particularly
+important to civil liberties, and follows directly from any war of
+prohibition. As Electronic Frontier Foundation attorney Fred von
+Lohmann describes, this is the "collateral damage" that "arises
+whenever you turn a very large percentage of the population into
+criminals." This is the collateral damage to civil liberties
+generally.
+<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para>
<para>
"If you can treat someone as a putative lawbreaker," von Lohmann
</para>
<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 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, 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."
+then all of a sudden a lot of basic civil liberty protections
+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,
+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."
</para>
</blockquote>
<para>
effectively erase much of the privacy most would presume.
</para>
<para>
-Users of the Internet began to see this generally in 2003 as the
-RIAA launched its campaign to force Internet service providers to turn
-over the names of customers who the RIAA believed were violating
-copyright law. Verizon fought that demand and lost. With a simple
- request
-to a judge, and without any notice to the customer at all, the
-identity of an Internet user is revealed.
+Users of the Internet began to see this generally in 2003 as the RIAA
+launched its campaign to force Internet service providers to turn over
+the names of customers who the RIAA believed were violating copyright
+law. Verizon fought that demand and lost. With a simple request to a
+judge, and without any notice to the customer at all, the identity of
+an Internet user is revealed.
</para>
<para>
-
<!-- PAGE BREAK 215 -->
-The RIAA then expanded this campaign, by announcing a general
-strategy to sue individual users of the Internet who are alleged to have
+The RIAA then expanded this campaign, by announcing a general strategy
+to sue individual users of the Internet who are alleged to have
downloaded copyrighted music from file-sharing systems. But as we've
-seen, the potential damages from these suits are astronomical: If a
- family's
-computer is used to download a single CD's worth of music, the
-family could be liable for $2 million in damages. That didn't stop the
-RIAA from suing a number of these families, just as they had sued
+seen, the potential damages from these suits are astronomical: If a
+family's computer is used to download a single CD's worth of music,
+the family could be liable for $2 million in damages. That didn't stop
+the RIAA from suing a number of these families, just as they had sued
Jesse Jordan.<footnote><para>
-<!-- f20. --> See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
-Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
- Washington
-Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents Pull
-Plug on File `Stealing'; With the Music Industry Cracking Down on File
-Swapping, Parents are Yanking Software from Home PCs to Avoid Being
-Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham,
-"Recording Industry Sues Parents," USA Today, 15 September 2003, 4D;
-John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either,"
-New York Times, 25 September 2003, C1; Margo Varadi, "Is Brianna a
-Criminal?" Toronto Star, 18 September 2003, P7.
+<!-- f20. -->
+See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
+Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
+File Swapping, Parents are Yanking Software from Home PCs to Avoid
+Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," USA Today, 15 September
+2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
+Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
</para></footnote>
</para>
Even this understates the espionage that is being waged by the
RIAA. A report from CNN late last summer described a strategy the
RIAA had adopted to track Napster users.<footnote><para>
-<!-- f21. --> See "Revealed: How RIAA Tracks Downloaders: Music Industry
- Discloses
-Some Methods Used," CNN.com, available at
+<!-- f21. -->
+See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used," CNN.com, available at
<ulink url="http://free-culture.cc/notes/">link #47</ulink>.
</para></footnote>
- Using a sophisticated
-hashing algorithm, the RIAA took what is in effect a fingerprint of
-every song in the Napster catalog. Any copy of one of those MP3s will
-have the same "fingerprint."
-</para>
-<para>
-So imagine the following not-implausible scenario: Imagine a
-friend gives a CD to your daughter—a collection of songs just like the
-cassettes you used to make as a kid. You don't know, and neither does
-your daughter, where these songs came from. But she copies these
-songs onto her computer. She then takes her computer to college and
-connects it to a college network, and if the college network is
- "cooperating"
-with the RIAA's espionage, and she hasn't properly protected
-her content from the network (do you know how to do that yourself ?),
-then the RIAA will be able to identify your daughter as a "criminal."
-And under the rules that universities are beginning to deploy,<footnote><para>
-<!-- f22. --> See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," Boston
-Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued
-over Music Sites; Industry Group Targets File Sharing at Colleges,"
- Washington
-Post, 4 April 2003, E1; Elizabeth Armstrong, "Students `Rip, Mix,
-Burn' at Their Own Risk," Christian Science Monitor, 2 September 2003,
-20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to
- Loyola;
-Two Students Names Are Handed Over; Lawsuit Possible," Chicago
-Tribune, 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on
-Universities," Internet News, 30 January 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #48</ulink>; Benny
-Evangelista, "Download Warning 101: Freshman Orientation This Fall to
-Include Record Industry Warnings Against File Sharing," San Francisco
-Chronicle, 11 August 2003, E11; "Raid, Letters Are Weapons at
- Universities,"
-USA Today, 26 September 2000, 3D.
-</para></footnote>
- your
-daughter can lose the right to use the university's computer network.
-She can, in some cases, be expelled.
+Using a sophisticated hashing algorithm, the RIAA took what is in
+effect a fingerprint of every song in the Napster catalog. Any copy of
+one of those MP3s will have the same "fingerprint."
+</para>
+<para>
+So imagine the following not-implausible scenario: Imagine a
+friend gives a CD to your daughter—a collection of songs just
+like the cassettes you used to make as a kid. You don't know, and
+neither does your daughter, where these songs came from. But she
+copies these songs onto her computer. She then takes her computer to
+college and connects it to a college network, and if the college
+network is "cooperating" with the RIAA's espionage, and she hasn't
+properly protected her content from the network (do you know how to do
+that yourself ?), then the RIAA will be able to identify your daughter
+as a "criminal." And under the rules that universities are beginning
+to deploy,<footnote><para>
+<!-- f22. -->
+See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
+Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+Students Sued over Music Sites; Industry Group Targets File Sharing at
+Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
+Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
+Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," Internet News, 30 January
+2003, available at <ulink url="http://free-culture.cc/notes/">link
+#48</ulink>; Benny Evangelista, "Download Warning 101: Freshman
+Orientation This Fall to Include Record Industry Warnings Against File
+Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," USA Today, 26 September 2000, 3D.
+</para></footnote>
+your daughter can lose the right to use the university's computer
+network. She can, in some cases, be expelled.
</para>
<para>
Now, of course, she'll have the right to defend herself. You can hire
-a lawyer for her (at $300 per hour, if you're lucky), and she can plead
-that she didn't know anything about the source of the songs or that
-they came from Napster. And it may well be that the university believes
-her. But the university might not believe her. It might treat this
- "contraband"
-as presumptive of guilt. And as any number of college students
+a lawyer for her (at $300 per hour, if you're lucky), and she can
+plead that she didn't know anything about the source of the songs or
+that they came from Napster. And it may well be that the university
+believes her. But the university might not believe her. It might treat
+this "contraband" as presumptive of guilt. And as any number of
+college students
<!-- PAGE BREAK 216 -->
have already learned, our presumptions about innocence disappear in
So when we're talking about numbers like forty to sixty million
Americans that are essentially copyright infringers, you create a
situation where the civil liberties of those people are very much in
-peril in a general matter. [I don't] think [there is any] analog
-where you could randomly choose any person off the street and be
-confident that they were committing an unlawful act that could
-put them on the hook for potential felony liability or hundreds of
-millions of dollars of civil liability. Certainly we all speed, but
-speeding isn't the kind of an act for which we routinely forfeit
-civil liberties. Some people use drugs, and I think that's the
- closest
-analog, [but] many 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 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.
+peril in a general matter. [I don't] think [there is any] analog where
+you could randomly choose any person off the street and be confident
+that they were committing an unlawful act that could put them on the
+hook for potential felony liability or hundreds of millions of dollars
+of civil liability. Certainly we all speed, but speeding isn't the
+kind of an act for which we routinely forfeit civil liberties. Some
+people use drugs, and I think that's the closest analog, [but] many
+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
+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>
</blockquote>
<para>
-When forty to sixty million Americans are considered "criminals"
-under the law, and when the law could achieve the same objective—
-securing rights to authors—without these millions being considered
-"criminals," who is the villain? Americans or the law? Which is
- American,
-a constant war on our own people or a concerted effort through
-our democracy to change our law?
+When forty to sixty million Americans are considered "criminals" under
+the law, and when the law could achieve the same objective—
+securing rights to authors—without these millions being
+considered "criminals," who is the villain? Americans or the law?
+Which is American, a constant war on our own people or a concerted
+effort through our democracy to change our law?
</para>
<!-- PAGE BREAK 217 -->
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
-grabs the bucket. Before you have a chance to tell her to stop—or
- before
-she understands just why she should stop—the bucket is in the air.
-The gasoline is about to hit the blazing car. And the fire that gasoline
-will ignite is about to ignite everything around.
+grabs the bucket. Before you have a chance to tell her to
+stop—or before she understands just why she should
+stop—the bucket is in the air. The gasoline is about to hit the
+blazing car. And the fire that gasoline will ignite is about to ignite
+everything around.
</para>
<para>
-A war about copyright rages all around—and we're all focusing on the
-wrong thing. No doubt, current technologies threaten existing
- businesses.
-No doubt they may threaten artists. But technologies change.
-The industry and technologists have plenty of ways to use technology
-to protect themselves against the current threats of the Internet. This
-is a fire that if let alone would burn itself out.
+A war about copyright rages all around—and we're all focusing on
+the wrong thing. No doubt, current technologies threaten existing
+businesses. No doubt they may threaten artists. But technologies
+change. The industry and technologists have plenty of ways to use
+technology to protect themselves against the current threats of the
+Internet. This is a fire that if let alone would burn itself out.
</para>
<para>
<!-- PAGE BREAK 219 -->
Yet policy makers are not willing to leave this fire to itself. Primed
-with plenty of lobbyists' money, they are keen to intervene to eliminate
-the problem they perceive. But the problem they perceive is not the real
-threat this culture faces. For while we watch this small fire in the
- corner,
-there is a massive change in the way culture is made that is
- happening
-all around.
+with plenty of lobbyists' money, they are keen to intervene to
+eliminate the problem they perceive. But the problem they perceive is
+not the real threat this culture faces. For while we watch this small
+fire in the corner, there is a massive change in the way culture is
+made that is happening all around.
</para>
<para>
-Somehow we have to find a way to turn attention to this more
- important
-and fundamental issue. Somehow we have to find a way to
-avoid pouring gasoline onto this fire.
+Somehow we have to find a way to turn attention to this more important
+and fundamental issue. Somehow we have to find a way to avoid pouring
+gasoline onto this fire.
</para>
<para>
-We have not found that way yet. Instead, we seem trapped in a
- simpler,
-binary view. However much many people push to frame this
- debate
-more broadly, it is the simple, binary view that remains. We
-rubberneck to look at the fire when we should be keeping our eyes on
-the road.
+We have not found that way yet. Instead, we seem trapped in a simpler,
+binary view. However much many people push to frame this debate more
+broadly, it is the simple, binary view that remains. We rubberneck to
+look at the fire when we should be keeping our eyes on the road.
</para>
<para>
This challenge has been my life these last few years. It has also been
-my failure. In the two chapters that follow, I describe one small brace
-of efforts, so far failed, to find a way to refocus this debate. We must
-understand these failures if we're to understand what success will
- require.
+my failure. In the two chapters that follow, I describe one small
+brace of efforts, so far failed, to find a way to refocus this
+debate. We must understand these failures if we're to understand what
+success will require.
</para>
<!-- PAGE BREAK 220 -->
<sect1 id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
<para>
-
-In 1995, a father was frustrated that his daughters didn't seem to like
-Hawthorne. No doubt there was more than one such father, but at least
-one did something about it. Eric Eldred, a retired computer
- programmer
-living in New Hampshire, decided to put Hawthorne on the
+In 1995, a father was frustrated that his daughters didn't seem to
+like Hawthorne. No doubt there was more than one such father, but at
+least one did something about it. Eric Eldred, a retired computer
+programmer living in New Hampshire, decided to put Hawthorne on the
Web. An electronic version, Eldred thought, with links to pictures and
explanatory text, would make this nineteenth-century author's work
come alive.
</para>
<para>
-It didn't work—at least for his daughters. They didn't find
- Hawthorne
-any more interesting than before. But Eldred's experiment gave
-birth to a hobby, and his hobby begat a cause: Eldred would build a
-library of public domain works by scanning these works and making
+It didn't work—at least for his daughters. They didn't find
+Hawthorne any more interesting than before. But Eldred's experiment
+gave birth to a hobby, and his hobby begat a cause: Eldred would build
+a library of public domain works by scanning these works and making
them available for free.
</para>
<para>
works. Instead, Eldred was producing derivative works from these
public domain works. Just as Disney turned Grimm into stories more
<!-- PAGE BREAK 221 -->
-accessible to the twentieth century, Eldred transformed Hawthorne,
-and many others, into a form more accessible—technically
- accessible—today.
+accessible to the twentieth century, Eldred transformed Hawthorne, and
+many others, into a form more accessible—technically
+accessible—today.
</para>
<para>
-Eldred's freedom to do this with Hawthorne's work grew from the
-same source as Disney's. Hawthorne's Scarlet Letter had passed into the
-public domain in 1907. It was free for anyone to take without the
- permission
-of the Hawthorne estate or anyone else. Some, such as Dover
+Eldred's freedom to do this with Hawthorne's work grew from the same
+source as Disney's. Hawthorne's Scarlet Letter had passed into the
+public domain in 1907. It was free for anyone to take without the
+permission of the Hawthorne estate or anyone else. Some, such as Dover
Press and Penguin Classics, take works from the public domain and
produce printed editions, which they sell in bookstores across the
country. Others, such as Disney, take these stories and turn them into
animated cartoons, sometimes successfully (Cinderella), sometimes not
-(The Hunchback of Notre Dame, Treasure Planet). These are all
- commercial
-publications of public domain works.
-</para>
-<para>
-The Internet created the possibility of noncommercial publications
-of public domain works. Eldred's is just one example. There are
- literally
-thousands of others. Hundreds of thousands from across the world
-have discovered this platform of expression and now use it to share
-works that are, by law, free for the taking. This has produced what we
-might call the "noncommercial publishing industry," which before the
-Internet was limited to people with large egos or with political or
- social
-causes. But with the Internet, it includes a wide range of
- individuals
-and groups dedicated to spreading culture generally.<footnote><para>
-<!-- f1. --> There's a parallel here with pornography that is a bit hard to describe, but
-it's a strong one. One phenomenon that the Internet created was a world
-of noncommercial pornographers—people who were distributing porn
-but were not making money directly or indirectly from that distribution.
-Such a class didn't exist before the Internet came into being because the
-costs of distributing porn were so high. Yet this new class of distributors
-got special attention in the Supreme Court, when the Court struck down
-the Communications Decency Act of 1996. It was partly because of the
-burden on noncommercial speakers that the statute was found to exceed
-Congress's power. The same point could have been made about
- noncommercial
+(The Hunchback of Notre Dame, Treasure Planet). These are all
+commercial publications of public domain works.
+</para>
+<para>
+The Internet created the possibility of noncommercial publications of
+public domain works. Eldred's is just one example. There are literally
+thousands of others. Hundreds of thousands from across the world have
+discovered this platform of expression and now use it to share works
+that are, by law, free for the taking. This has produced what we might
+call the "noncommercial publishing industry," which before the
+Internet was limited to people with large egos or with political or
+social causes. But with the Internet, it includes a wide range of
+individuals and groups dedicated to spreading culture
+generally.<footnote><para>
+<!-- f1. -->
+There's a parallel here with pornography that is a bit hard to
+describe, but it's a strong one. One phenomenon that the Internet
+created was a world of noncommercial pornographers—people who
+were distributing porn but were not making money directly or
+indirectly from that distribution. Such a class didn't exist before
+the Internet came into being because the costs of distributing porn
+were so high. Yet this new class of distributors got special attention
+in the Supreme Court, when the Court struck down the Communications
+Decency Act of 1996. It was partly because of the burden on
+noncommercial speakers that the statute was found to exceed Congress's
+power. The same point could have been made about noncommercial
publishers after the advent of the Internet. The Eric Eldreds of the
-world before the Internet were extremely few. Yet one would think it at
-least as important to protect the Eldreds of the world as to protect
- noncommercial
-pornographers.
-</para></footnote>
-
+world before the Internet were extremely few. Yet one would think it
+at least as important to protect the Eldreds of the world as to
+protect noncommercial pornographers.</para></footnote>
</para>
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
collection of poems New Hampshire 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.
+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.
</para>
<para>
This was the Sonny Bono Copyright Term Extension Act
(CTEA), enacted in memory of the congressman and former musician
Sonny Bono, who, his widow, Mary Bono, says, believed that
- "copyrights
-should be forever."<footnote><para>
-<!-- f2. --> The full text is: "Sonny [Bono] wanted the term of copyright protection to
-last forever. I am informed by staff that such a change would violate the
-Constitution. I invite all of you to work with me to strengthen our
- copyright
-laws in all of the ways available to us. As you know, there is also Jack
-Valenti's proposal for a term to last forever less one day. Perhaps the
- Committee
-may look at that next Congress," 144 Cong. Rec. H9946, 9951-2
-(October 7, 1998).
+"copyrights should be forever."<footnote><para>
+<!-- f2. -->
+The full text is: "Sonny [Bono] wanted the term of copyright
+protection to last forever. I am informed by staff that such a change
+would violate the Constitution. I invite all of you to work with me to
+strengthen our copyright laws in all of the ways available to us. As
+you know, there is also Jack Valenti's proposal for a term to last
+forever less one day. Perhaps the Committee may look at that next
+Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
</para></footnote>
</para>
consequence
for other creative works is much more dire.
</para>
+<indexterm><primary>Agee, Michael</primary></indexterm>
<para>
-Consider the story of Michael Agee, chairman of Hal Roach
- Studios,
-which owns the copyrights for the Laurel and Hardy films. Agee
-is a direct beneficiary of the Bono Act. The Laurel and Hardy films
-were made between 1921 and 1951. Only one of these films, The Lucky
-Dog, is currently out of copyright. But for the CTEA, films made after
-1923 would have begun entering the public domain. Because Agee
-controls the exclusive rights for these popular films, he makes a great
-deal of money. According to one estimate, "Roach has sold about
-60,000 videocassettes and 50,000 DVDs of the duo's silent films."<footnote><para>
-<!-- f11. --> See David G. Savage, "High Court Scene of Showdown on Copyright
-Law," Los Angeles Times, 6 October 2002; David Streitfeld, "Classic
-Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today
-on Striking Down Copyright Extension," Orlando Sentinel Tribune, 9
- October
-2002.
+Consider the story of Michael Agee, chairman of Hal Roach Studios,
+which owns the copyrights for the Laurel and Hardy films. Agee is a
+direct beneficiary of the Bono Act. The Laurel and Hardy films were
+made between 1921 and 1951. Only one of these films, The Lucky Dog, is
+currently out of copyright. But for the CTEA, films made after 1923
+would have begun entering the public domain. Because Agee controls the
+exclusive rights for these popular films, he makes a great deal of
+money. According to one estimate, "Roach has sold about 60,000
+videocassettes and 50,000 DVDs of the duo's silent
+films."<footnote><para>
+<!-- f11. -->
+See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
+Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
+Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
</para></footnote>
</para>
<para>
-Yet Agee opposed the CTEA. His reasons demonstrate a rare
-virtue in this culture: selflessness. He argued in a brief before the
-Supreme Court that the Sonny Bono Copyright Term Extension Act
-will, if left standing, destroy a whole generation of American film.
+Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
+this culture: selflessness. He argued in a brief before the Supreme
+Court that the Sonny Bono Copyright Term Extension Act will, if left
+standing, destroy a whole generation of American film.
</para>
<para>
His argument is straightforward. A tiny fraction of this work has
<!-- PAGE BREAK 231 -->
-any continuing commercial value. The rest—to the extent it survives at
-all—sits in vaults gathering dust. It may be that some of this work not
-now commercially valuable will be deemed to be valuable by the
- owners
-of the vaults. For this to occur, however, the commercial benefit
-from the work must exceed the costs of making the work available for
-distribution.
+any continuing commercial value. The rest—to the extent it
+survives at all—sits in vaults gathering dust. It may be that
+some of this work not now commercially valuable will be deemed to be
+valuable by the owners of the vaults. For this to occur, however, the
+commercial benefit from the work must exceed the costs of making the
+work available for distribution.
</para>
<para>
We can't know the benefits, but we do know a lot about the costs.
our history, when a work ended its commercial life, there was no
copyright-related use that would be inhibited by an exclusive right.
When a book went out of print, you could not buy it from a publisher.
-But you could still buy it from a used book store, and when a used book
-store sells it, in America, at least, there is no need to pay the copyright
-owner anything. Thus, the ordinary use of a book after its commercial
-life ended was a use that was independent of copyright law.
+But you could still buy it from a used book store, and when a used
+book store sells it, in America, at least, there is no need to pay the
+copyright owner anything. Thus, the ordinary use of a book after its
+commercial life ended was a use that was independent of copyright law.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
-a film—the real economic costs, not the lawyer costs—were so high, it
-was never at all feasible to preserve or restore film. Like the remains of
-a great dinner, when it's over, it's over. Once a film passed out of its
-commercial life, it may have been archived for a bit, but that was the
-end of its life so long as the market didn't have more to offer.
+a film—the real economic costs, not the lawyer costs—were
+so high, it was never at all feasible to preserve or restore
+film. Like the remains of a great dinner, when it's over, it's
+over. Once a film passed out of its commercial life, it may have been
+archived for a bit, but that was the end of its life so long as the
+market didn't have more to offer.
</para>
<para>
In other words, though copyright has been relatively short for most
technologies is to enable the archive that Brewster Kahle dreams of.
Digital technologies now make it possible to preserve and give access
to all sorts of knowledge. Once a book goes out of print, we can now
-imagine digitizing it and making it available to everyone, forever. Once
-a film goes out of distribution, we could digitize it and make it
- available
-to everyone, forever. Digital technologies give new life to
- copyrighted
-material after it passes out of its commercial life. It is now
-possible to preserve and assure universal access to this knowledge and
-culture, whereas before it was not.
+imagine digitizing it and making it available to everyone,
+forever. Once a film goes out of distribution, we could digitize it
+and make it available to everyone, forever. Digital technologies give
+new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to
+this knowledge and culture, whereas before it was not.
</para>
<para>
<!-- PAGE BREAK 234 -->
-And now copyright law does get in the way. Every step of
- producing
-this digital archive of our culture infringes on the exclusive right of
-copyright. To digitize a book is to copy it. To do that requires
- permission
-of the copyright owner. The same with music, film, or any other
-aspect of our culture protected by copyright. The effort to make these
-things available to history, or to researchers, or to those who just want
-to explore, is now inhibited by a set of rules that were written for a
- radically
-different context.
-</para>
-<para>
-Here is the core of the harm that comes from extending terms:
-Now that technology enables us to rebuild the library of Alexandria,
-the law gets in the way. And it doesn't get in the way for any useful
-copyright purpose, for the purpose of copyright is to enable the
- commercial
-market that spreads culture. No, we are talking about culture
-after it has lived its commercial life. In this context, copyright is
- serving
-no purpose at all related to the spread of knowledge. In this
- context,
-copyright is not an engine of free expression. Copyright is a brake.
+And now copyright law does get in the way. Every step of producing
+this digital archive of our culture infringes on the exclusive right
+of copyright. To digitize a book is to copy it. To do that requires
+permission of the copyright owner. The same with music, film, or any
+other aspect of our culture protected by copyright. The effort to make
+these things available to history, or to researchers, or to those who
+just want to explore, is now inhibited by a set of rules that were
+written for a radically different context.
+</para>
+<para>
+Here is the core of the harm that comes from extending terms: Now that
+technology enables us to rebuild the library of Alexandria, the law
+gets in the way. And it doesn't get in the way for any useful
+copyright purpose, for the purpose of copyright is to enable the
+commercial market that spreads culture. No, we are talking about
+culture after it has lived its commercial life. In this context,
+copyright is serving no purpose at all related to the spread of
+knowledge. In this context, copyright is not an engine of free
+expression. Copyright is a brake.
</para>
<para>
You may well ask, "But if digital technologies lower the costs for
culture widely?"
</para>
<para>
-Maybe. Someday. But there is absolutely no evidence to suggest
-that publishers would be as complete as libraries. If Barnes & Noble
-offered to lend books from its stores for a low price, would that
- eliminate
-the need for libraries? Only if you think that the only role of a
- library
-is to serve what "the market" would demand. But if you think the
-role of a library is bigger than this—if you think its role is to archive
-culture, whether there's a demand for any particular bit of that culture
-or not—then we can't count on the commercial market to do our
- library
-work for us.
+Maybe. Someday. But there is absolutely no evidence to suggest that
+publishers would be as complete as libraries. If Barnes & Noble
+offered to lend books from its stores for a low price, would that
+eliminate the need for libraries? Only if you think that the only role
+of a library is to serve what "the market" would demand. But if you
+think the role of a library is bigger than this—if you think its
+role is to archive culture, whether there's a demand for any
+particular bit of that culture or not—then we can't count on the
+commercial market to do our library work for us.
</para>
<para>
I would be the first to agree that it should do as much as it can: We
market is not doing the job, then we should allow nonmarket forces the
<!-- PAGE BREAK 235 -->
-freedom to fill the gaps. As one researcher calculated for American
- culture,
-94 percent of the films, books, and music produced between
+freedom to fill the gaps. As one researcher calculated for American
+culture, 94 percent of the films, books, and music produced between
and 1946 is not commercially available. However much you love the
-commercial market, if access is a value, then 6 percent is a failure to
-provide that value.<footnote><para>
-<!-- f13. --> Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
- December
-2002, available at
+commercial market, if access is a value, then 6 percent is a failure
+
to provide that value.<footnote><para>
+<!-- f13. -->
+Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+December 2002, available at
<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
</para></footnote>
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in
- federal
+In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
district court in Washington, D.C., asking the court to declare the
Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
- violated
-the Constitution's "limited Times" requirement, and (2) that
- extending
-terms by another twenty years violated the First Amendment.
+central claims that we made were (1) that extending existing terms
+violated the Constitution's "limited Times" requirement, and (2) that
+extending terms by another twenty years violated the First Amendment.
</para>
<para>
-The district court dismissed our claims without even hearing an
- argument.
-A panel of the Court of Appeals for the D.C. Circuit also
- dismissed
-our claims, though after hearing an extensive argument. But
+The district court dismissed our claims without even hearing an
+argument. A panel of the Court of Appeals for the D.C. Circuit also
+dismissed our claims, though after hearing an extensive argument. But
that decision at least had a dissent, by one of the most conservative
judges on that court. That dissent gave our claims life.
</para>
it was simple: If Congress can extend existing terms, then there is no
"stopping point" to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are "limited." Thus, Judge Sentelle argued, the court had to
-interpret the term "limited Times" to give it meaning. And the best
- interpretation,
-Judge Sentelle argued, would be to deny Congress the
+terms that are "limited." Thus, Judge Sentelle argued, the court had
+to interpret the term "limited Times" to give it meaning. And the best
+interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
</para>
<para>
<!-- PAGE BREAK 236 -->
D.C. Circuit, Judge David Tatel. Both the most conservative and the
-most liberal judges in the D.C. Circuit believed Congress had
- overstepped
-its bounds.
+most liberal judges in the D.C. Circuit believed Congress had
+overstepped its bounds.
</para>
<para>
It was here that most expected Eldred v. Ashcroft would die, for the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still astonishingly
-hard. If you know anything at all about this story, you know that we
-lost the appeal. And if you know something more than just the
- minimum,
-you probably think there was no way this case could have been
-won. After our defeat, I received literally thousands of missives by
-well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
- significant
-to me than the e-mail from my client, Eric Eldred.
+It is over a year later as I write these words. It is still
+astonishingly hard. If you know anything at all about this story, you
+know that we lost the appeal. And if you know something more than just
+the minimum, you probably think there was no way this case could have
+been won. After our defeat, I received literally thousands of missives
+by well-wishers and supporters, thanking me for my work on behalf of
+this noble but doomed cause. And none from this pile was more
+significant to me than the e-mail from my client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
retell this story to myself, I can never escape believing that my own
mistake lost it.
</para>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the
-very end. Our case had been supported from the very beginning by an
- extraordinary
-lawyer, Geoffrey Stewart, and by the law firm he had moved
-to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat
+The mistake was made early, though it became obvious only at the very
+end. Our case had been supported from the very beginning by an
+extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
+moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
+heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
- ignored
-this pressure (something that few law firms today would ever
+ignored this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Bromberg, Dan</primary></indexterm>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
judge, Judge Sentelle.
</para>
<para>
-In the Supreme Court, the briefs on our side were about as diverse
-as it gets. They included an extraordinary historical brief by the Free
+In the Supreme Court, the briefs on our side were about as diverse as
+it gets. They included an extraordinary historical brief by the Free
<!-- PAGE BREAK 239 -->
-Software Foundation (home of the GNU project that made GNU/
-Linux possible). They included a powerful brief about the costs of
- uncertainty
-by Intel. There were two law professors' briefs, one by
- copyright
-scholars and one by First Amendment scholars. There was an
-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.
+Software Foundation (home of the GNU project that made GNU/ Linux
+possible). They included a powerful brief about the costs of
+uncertainty by Intel. There were two law professors' briefs, one by
+copyright scholars and one by First Amendment scholars. There was an
+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.
</para>
<para>
Those briefs framed a legal argument. Then to support the legal
Law Libraries, and the National Writers Union.
</para>
<para>
-But two briefs captured the policy argument best. One made the
- argument
-I've already described: A brief by Hal Roach Studios argued that
-unless the law was struck, a whole generation of American film would
-disappear. The other made the economic argument absolutely clear.
+But two briefs captured the policy argument best. One made the
+argument I've already described: A brief by Hal Roach Studios argued
+that unless the law was struck, a whole generation of American film
+would disappear. The other made the economic argument absolutely
+clear.
</para>
+<indexterm><primary>Akerlof, George</primary></indexterm>
+<indexterm><primary>Arrow, Kenneth</primary></indexterm>
+<indexterm><primary>Buchanan, James</primary></indexterm>
+<indexterm><primary>Coase, Ronald</primary></indexterm>
+<indexterm><primary>Friedman, Milton</primary></indexterm>
<para>
This economists' brief was signed by seventeen economists, including
five Nobel Prize winners, including Ronald Coase, James Buchanan,
-Milton Friedman, Kenneth Arrow, and George Akerlof. The
- economists,
-as the list of Nobel winners demonstrates, spanned the political
+Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
+the list of Nobel winners demonstrates, spanned the political
spectrum. Their conclusions were powerful: There was no plausible
-claim that extending the terms of existing copyrights would do anything
-to increase incentives to create. Such extensions were nothing more
-than "rent-seeking"—the fancy term economists use to describe
-special-interest legislation gone wild.
-</para>
-<para>
-The same effort at balance was reflected in the legal team we
- gathered
-to write our briefs in the case. The Jones Day lawyers had been
-with us from the start. But when the case got to the Supreme Court,
-we added three lawyers to help us frame this argument to this Court:
-Alan Morrison, a lawyer from Public Citizen, a Washington group
-that had made constitutional history with a series of seminal victories
-in the Supreme Court defending individual rights; my colleague and
-dean, Kathleen Sullivan, who had argued many cases in the Court, and
+claim that extending the terms of existing copyrights would do
+anything to increase incentives to create. Such extensions were
+nothing more than "rent-seeking"—the fancy term economists use
+to describe special-interest legislation gone wild.
+</para>
+<para>
+The same effort at balance was reflected in the legal team we gathered
+to write our briefs in the case. The Jones Day lawyers had been with
+us from the start. But when the case got to the Supreme Court, we
+added three lawyers to help us frame this argument to this Court: Alan
+Morrison, a lawyer from Public Citizen, a Washington group that had
+made constitutional history with a series of seminal victories in the
+Supreme Court defending individual rights; my colleague and dean,
+Kathleen Sullivan, who had argued many cases in the Court, and
<!-- PAGE BREAK 240 -->
-who had advised us early on about a First Amendment strategy; and
- finally,
-former solicitor general Charles Fried.
+who had advised us early on about a First Amendment strategy; and
+finally, former solicitor general Charles Fried.
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
general was hired by the other side to defend Congress's power to give
media companies the special favor of extended copyright terms. Fried
-was the only one who turned down that lucrative assignment to stand
-up for something he believed in. He had been Ronald Reagan's chief
-lawyer in the Supreme Court. He had helped craft the line of cases that
+was the only one who turned down that lucrative assignment to stand up
+for something he believed in. He had been Ronald Reagan's chief lawyer
+in the Supreme Court. He had helped craft the line of cases that
limited Congress's power in the context of the Commerce Clause. And
-while he had argued many positions in the Supreme Court that I
- personally
-disagreed with, his joining the cause was a vote of confidence in
-our argument.
+while he had argued many positions in the Supreme Court that I
+personally disagreed with, his joining the cause was a vote of
+confidence in our argument.
</para>
<para>
The government, in defending the statute, had its collection of
copyright holders.
</para>
<para>
-The media companies were not surprising. They had the most to
-gain from the law. The congressmen were not surprising either—they
-were defending their power and, indirectly, the gravy train of
- contributions
-such power induced. And of course it was not surprising that the
-copyright holders would defend the idea that they should continue to
-have the right to control who did what with content they wanted to
-control.
+The media companies were not surprising. They had the most to gain
+from the law. The congressmen were not surprising either—they
+were defending their power and, indirectly, the gravy train of
+contributions such power induced. And of course it was not surprising
+that the copyright holders would defend the idea that they should
+continue to have the right to control who did what with content they
+wanted to control.
</para>
<para>
Dr. Seuss's representatives, for example, argued that it was
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
Mouse Joins the Fray," New York Times, 28 March 1998, B7.
</para></footnote>
- That's
+That's
<!-- PAGE BREAK 241 -->
their view of how this part of American culture should be controlled,
and they wanted this law to help them effect that control.
</para>
<para>
-This argument made clear a theme that is rarely noticed in this
- debate.
-When Congress decides to extend the term of existing
- copyrights,
-Congress is making a choice about which speakers it will favor.
-Famous and beloved copyright owners, such as the Gershwin estate
-and Dr. Seuss, come to Congress and say, "Give us twenty years to
- control
-the speech about these icons of American culture. We'll do better
-with them than anyone else." Congress of course likes to reward the
-popular and famous by giving them what they want. But when
- Congress
-gives people an exclusive right to speak in a certain way, that's just
-what the First Amendment is traditionally meant to block.
+This argument made clear a theme that is rarely noticed in this
+debate. When Congress decides to extend the term of existing
+copyrights, Congress is making a choice about which speakers it will
+favor. Famous and beloved copyright owners, such as the Gershwin
+estate and Dr. Seuss, come to Congress and say, "Give us twenty years
+to control the speech about these icons of American culture. We'll do
+better with them than anyone else." Congress of course likes to reward
+the popular and famous by giving them what they want. But when
+Congress gives people an exclusive right to speak in a certain way,
+that's just what the First Amendment is traditionally meant to block.
</para>
<para>
-We argued as much in a final brief. Not only would upholding the
-CTEA mean that there was no limit to the power of Congress to extend
-copyrights—extensions that would further concentrate the market; it
-would also mean that there was no limit to Congress's power to play
- favorites,
-through copyright, with who has the right to speak.
-Between February and October, there was little I did beyond
-preparing for this case. Early on, as I said, I set the strategy.
+We argued as much in a final brief. Not only would upholding the CTEA
+mean that there was no limit to the power of Congress to extend
+copyrights—extensions that would further concentrate the market;
+it would also mean that there was no limit to Congress's power to play
+favorites, through copyright, with who has the right to speak.
+Between February and October, there was little I did beyond preparing
+for this case. Early on, as I said, I set the strategy.
</para>
<para>
The Supreme Court was divided into two important camps. One
an enumerated power had to be interpreted to assure that Congress's
powers had limits.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
-Congress's power. These four—Justice Stevens, Justice Souter, Justice
-Ginsburg, and Justice Breyer—had repeatedly argued that the
- Constitution
+Congress's power. These four—Justice Stevens, Justice Souter,
+Justice Ginsburg, and Justice Breyer—had repeatedly argued that
+the Constitution
<!-- PAGE BREAK 242 -->
-gives Congress broad discretion to decide how best to
- implement
-its powers. In case after case, these justices had argued that the
-Court's role should be one of deference. Though the votes of these four
+gives Congress broad discretion to decide how best to implement its
+powers. In case after case, these justices had argued that the Court's
+role should be one of deference. Though the votes of these four
justices were the votes that I personally had most consistently agreed
with, they were also the votes that we were least likely to get.
</para>
<para>
In particular, the least likely was Justice Ginsburg's. In addition to
her general view about deference to Congress (except where issues of
-gender are involved), she had been particularly deferential in the
- context
-of intellectual property protections. She and her daughter (an
- excellent
-and well-known intellectual property scholar) were cut from
+gender are involved), she had been particularly deferential in the
+context of intellectual property protections. She and her daughter (an
+excellent and well-known intellectual property scholar) were cut from
the same intellectual property cloth. We expected she would agree with
-the writings of her daughter: that Congress had the power in this
- context
-to do as it wished, even if what Congress wished made little sense.
+the writings of her daughter: that Congress had the power in this
+context to do as it wished, even if what Congress wished made little
+sense.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-Close behind Justice Ginsburg were two justices whom we also
-viewed as unlikely allies, though possible surprises. Justice Souter
-strongly favored deference to Congress, as did Justice Breyer. But both
-were also very sensitive to free speech concerns. And as we strongly
- believed,
-there was a very important free speech argument against these
-retrospective extensions.
+Close behind Justice Ginsburg were two justices whom we also viewed as
+unlikely allies, though possible surprises. Justice Souter strongly
+favored deference to Congress, as did Justice Breyer. But both were
+also very sensitive to free speech concerns. And as we strongly
+believed, there was a very important free speech argument against
+these retrospective extensions.
</para>
<para>
The only vote we could be confident about was that of Justice
were an effective practice; I found ways to take every question back to
this central idea.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
One moot was before the lawyers at Jones Day. Don Ayer was the
-skeptic. He had served in the Reagan Justice Department with
- Solicitor
-General Charles Fried. He had argued many cases before the
-Supreme Court. And in his review of the moot, he let his concern
-speak:
+skeptic. He had served in the Reagan Justice Department with Solicitor
+General Charles Fried. He had argued many cases before the Supreme
+Court. And in his review of the moot, he let his concern speak:
</para>
<para>
"I'm just afraid that unless they really see the harm, they won't be
-willing to upset this practice that the government says has been a
- consistent
-practice for two hundred years. You have to make them see the
-harm—passionately get them to see the harm. For if they don't see
-that, then we haven't any chance of winning."
+willing to upset this practice that the government says has been a
+consistent practice for two hundred years. You have to make them see
+the harm—passionately get them to see the harm. For if they
+don't see that, then we haven't any chance of winning."
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
He may have argued many cases before this Court, I thought, but
he didn't understand its soul. As a clerk, I had seen the Justices do the
perpetual term not be permitted under the copyright laws.
</para>
</blockquote>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
That was a correct answer, but it wasn't the right answer. The right
answer was instead that there was an obvious and profound harm. Any
</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,
+world against reasoning. And here was the last naïve law professor,
scouring the pages, looking for reasoning.
</para>
<para>
would not.
</para>
<para>
-Yet by what right did they get to choose which of the framers'
- values
-they would respect? By what right did they—the silent five—get to
-select the part of the Constitution they would enforce based on the
- values
-they thought important? We were right back to the argument that
-I said I hated at the start: I had failed to convince them that the issue
-here was important, and I had failed to recognize that however much I
-might hate a system in which the Court gets to pick the constitutional
-values that it will respect, that is the system we have.
+Yet by what right did they get to choose which of the framers' values
+they would respect? By what right did they—the silent
+five—get to select the part of the Constitution they would
+enforce based on the values they thought important? We were right back
+to the argument that I said I hated at the start: I had failed to
+convince them that the issue here was important, and I had failed to
+recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is
+the system we have.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
Justices Breyer and Stevens wrote very strong dissents. Stevens's
-opinion was crafted internal to the law: He argued that the tradition of
-intellectual property law should not support this unjustified extension
-of terms. He based his argument on a parallel analysis that had
- governed
-in the context of patents (so had we). But the rest of the Court
-discounted the parallel—without explaining how the very same words
-in the Progress Clause could come to mean totally different things
- depending
-upon whether the words were about patents or copyrights.
-The Court let Justice Stevens's charge go unanswered.
+opinion was crafted internal to the law: He argued that the tradition
+of intellectual property law should not support this unjustified
+extension of terms. He based his argument on a parallel analysis that
+had governed in the context of patents (so had we). But the rest of
+the Court discounted the parallel—without explaining how the
+very same words in the Progress Clause could come to mean totally
+different things depending upon whether the words were about patents
+or copyrights. The Court let Justice Stevens's charge go unanswered.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-
<!-- PAGE BREAK 250 -->
-Justice Breyer's opinion, perhaps the best opinion he has ever
- written,
-was external to the Constitution. He argued that the term of
- copyrights
-has become so long as to be effectively unlimited. We had said
-that under the current term, a copyright gave an author 99.8 percent of
-the value of a perpetual term. Breyer said we were wrong, that the
- actual
-number was 99.9997 percent of a perpetual term. Either way, the
-point was clear: If the Constitution said a term had to be "limited," and
-the existing term was so long as to be effectively unlimited, then it was
-unconstitutional.
+Justice Breyer's opinion, perhaps the best opinion he has ever
+written, was external to the Constitution. He argued that the term of
+copyrights has become so long as to be effectively unlimited. We had
+said that under the current term, a copyright gave an author 99.8
+percent of the value of a perpetual term. Breyer said we were wrong,
+that the actual number was 99.9997 percent of a perpetual term. Either
+way, the point was clear: If the Constitution said a term had to be
+"limited," and the existing term was so long as to be effectively
+unlimited, then it was unconstitutional.
</para>
<para>
These two justices understood all the arguments we had made. But
<para>
It was first anger with the five "Conservatives." It would have been
one thing for them to have explained why the principle of Lopez didn't
-apply in this case. That wouldn't have been a very convincing
- argument,
-I don't believe, having read it made by others, and having tried
-to make it myself. But it at least would have been an act of integrity.
-These justices in particular have repeatedly said that the proper mode
-of interpreting the Constitution is "originalism"—to first understand
-the framers' text, interpreted in their context, in light of the structure
-of the Constitution. That method had produced Lopez and many other
-"originalist" rulings. Where was their "originalism" now?
+apply in this case. That wouldn't have been a very convincing
+argument, I don't believe, having read it made by others, and having
+tried to make it myself. But it at least would have been an act of
+integrity. These justices in particular have repeatedly said that the
+proper mode of interpreting the Constitution is "originalism"—to
+first understand the framers' text, interpreted in their context, in
+light of the structure of the Constitution. That method had produced
+Lopez and many other "originalist" rulings. Where was their
+"originalism" now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
<!-- PAGE BREAK 251 -->
power. And they joined an opinion that didn't even try to explain why
this grant of power could be unlimited, whereas the Commerce Clause
-would be limited. In short, they had joined an opinion that did not
- apply
-to, and was inconsistent with, their own method for interpreting
-the Constitution. This opinion may well have yielded a result that they
-liked. It did not produce a reason that was consistent with their own
-principles.
+would be limited. In short, they had joined an opinion that did not
+apply to, and was inconsistent with, their own method for interpreting
+the Constitution. This opinion may well have yielded a result that
+they liked. It did not produce a reason that was consistent with their
+own principles.
</para>
<para>
My anger with the Conservatives quickly yielded to anger with
For I had let a view of the law that I liked interfere with a view of
the law as it is.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
-Most lawyers, and most law professors, have little patience for
- idealism
-about courts in general and this Supreme Court in particular.
-Most have a much more pragmatic view. When Don Ayer said that
-this case would be won based on whether I could convince the Justices
-that the framers' values were important, I fought the idea, because I
-didn't want to believe that that is how this Court decides. I insisted on
-arguing this case as if it were a simple application of a set of principles.
-I had an argument that followed in logic. I didn't need to waste my
-time showing it should also follow in popularity.
+Most lawyers, and most law professors, have little patience for
+idealism about courts in general and this Supreme Court in particular.
+Most have a much more pragmatic view. When Don Ayer said that this
+case would be won based on whether I could convince the Justices that
+the framers' values were important, I fought the idea, because I
+didn't want to believe that that is how this Court decides. I insisted
+on arguing this case as if it were a simple application of a set of
+principles. I had an argument that followed in logic. I didn't need
+to waste my time showing it should also follow in popularity.
</para>
<para>
As I read back over the transcript from that argument in October, I
-can see a hundred places where the answers could have taken the
- conversation
-in different directions, where the truth about the harm that
-this unchecked power will cause could have been made clear to this
-Court. Justice Kennedy in good faith wanted to be shown. I, idiotically,
-corrected his question. Justice Souter in good faith wanted to be shown
-the First Amendment harms. I, like a math teacher, reframed the
- question
-to make the logical point. I had shown them how they could strike
-this law of Congress if they wanted to. There were a hundred places
-where I could have helped them want to, yet my stubbornness, my
- refusal
-to give in, stopped me. I have stood before hundreds of audiences
-trying to persuade; I have used passion in that effort to persuade; but I
+can see a hundred places where the answers could have taken the
+conversation in different directions, where the truth about the harm
+that this unchecked power will cause could have been made clear to
+this Court. Justice Kennedy in good faith wanted to be shown. I,
+idiotically, corrected his question. Justice Souter in good faith
+wanted to be shown the First Amendment harms. I, like a math teacher,
+reframed the question to make the logical point. I had shown them how
+they could strike this law of Congress if they wanted to. There were a
+hundred places where I could have helped them want to, yet my
+stubbornness, my refusal to give in, stopped me. I have stood before
+hundreds of audiences trying to persuade; I have used passion in that
+effort to persuade; but I
<!-- PAGE BREAK 252 -->
refused to stand before this audience and try to persuade with the
- passion
-I had used elsewhere. It was not the basis on which a court should
-decide the issue.
+passion I had used elsewhere. It was not the basis on which a court
+should decide the issue.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
Would it have been different if I had argued it differently? Would it
have been different if Don Ayer had argued it? Or Charles Fried? Or
</para>
<para>
And even if I couldn't, then that doesn't excuse what happened in
-January. For at the start of this case, one of America's leading
- intellectual
-property professors stated publicly that my bringing this case was
-a mistake. "The Court is not ready," Peter Jaszi said; this issue should
-not be raised until it is.
+January. For at the start of this case, one of America's leading
+intellectual property professors stated publicly that my bringing this
+case was a mistake. "The Court is not ready," Peter Jaszi said; this
+issue should not be raised until it is.
</para>
<para>
After the argument and after the decision, Peter said to me, and
copyright was a good idea. We had won that battle over ideas. Where
<!-- PAGE BREAK 253 -->
-the decision was praised, it was praised by papers that had been
- skeptical
-of the Court's activism in other cases. Deference was a good thing,
-even if it left standing a silly law. But where the decision was attacked,
-it was attacked because it left standing a silly and harmful law. The New
-York Times wrote in its editorial,
+the decision was praised, it was praised by papers that had been
+skeptical of the Court's activism in other cases. Deference was a good
+thing, even if it left standing a silly law. But where the decision
+was attacked, it was attacked because it left standing a silly and
+harmful law. The New York Times wrote in its editorial,
</para>
<blockquote>
<para>
In effect, the Supreme Court's decision makes it likely that we are
seeing the beginning of the end of public domain and the birth of
-copyright perpetuity. The public domain has been a grand
- experiment,
-one that should not be allowed to die. The ability to draw
-freely on the entire creative output of humanity is one of the
- reasons
-we live in a time of such fruitful creative ferment.
+copyright perpetuity. The public domain has been a grand experiment,
+one that should not be allowed to die. The ability to draw freely on
+the entire creative output of humanity is one of the reasons we live
+in a time of such fruitful creative ferment.
</para>
</blockquote>
<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.
+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.
</para>
<para>
The image that will always stick in my head is that evoked by the
quote from The New York Times. That "grand experiment" we call the
"public domain" is over? When I can make light of it, I think, "Honey,
-I shrunk the Constitution." But I can rarely make light of it. We had in
-our Constitution a commitment to free culture. In the case that I
- fathered,
-the Supreme Court effectively renounced that commitment. A
+I shrunk the Constitution." But I can rarely make light of it. We had
+in our Constitution a commitment to free culture. In the case that I
+fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
The day Eldred was decided, fate would have it that I was to travel to
-Washington, D.C. (The day the rehearing petition in Eldred was
- denied—meaning
-the case was really finally over—fate would have it that
-I was giving a speech to technologists at Disney World.) This was a
-particularly long flight to my least favorite city. The drive into the city
-from Dulles was delayed because of traffic, so I opened up my
- computer
-and wrote an op-ed piece.
+Washington, D.C. (The day the rehearing petition in Eldred was
+denied—meaning the case was really finally over—fate would
+have it that I was giving a speech to technologists at Disney World.)
+This was a particularly long flight to my least favorite city. The
+drive into the city from Dulles was delayed because of traffic, so I
+opened up my computer and wrote an op-ed piece.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
It was an act of contrition. During the whole of the flight from San
Francisco to Washington, I had heard over and over again in my head
Congress allows for those works where its worth is at least $1. But for
everything else, let the content go.
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-The reaction to this idea was amazingly strong. Steve Forbes
- endorsed
+The reaction to this idea was amazingly strong. Steve Forbes endorsed
it in an editorial. I received an avalanche of e-mail and letters
-expressing support. When you focus the issue on lost creativity, people
-can see the copyright system makes no sense. As a good Republican
-might say, here government regulation is simply getting in the way of
-innovation and creativity. And as a good Democrat might say, here the
-government is blocking access and the spread of knowledge for no
-good reason. Indeed, there is no real difference between Democrats
-and Republicans on this issue. Anyone can recognize the stupid harm
-of the present system.
-</para>
-<para>
-Indeed, many recognized the obvious benefit of the registration
- requirement.
-For one of the hardest things about the current system for
-people who want to license content is that there is no obvious place to
-look for the current copyright owners. Since registration is not
- required,
-since marking content is not required, since no formality at all
-is required, it is often impossibly hard to locate copyright owners to ask
-permission to use or license their work. This system would lower these
-costs, by establishing at least one registry where copyright owners
-could be identified.
-</para>
+expressing support. When you focus the issue on lost creativity,
+people can see the copyright system makes no sense. As a good
+Republican might say, here government regulation is simply getting in
+the way of innovation and creativity. And as a good Democrat might
+say, here the government is blocking access and the spread of
+knowledge for no good reason. Indeed, there is no real difference
+between Democrats and Republicans on this issue. Anyone can recognize
+the stupid harm of the present system.
+</para>
+<para>
+Indeed, many recognized the obvious benefit of the registration
+requirement. For one of the hardest things about the current system
+for people who want to license content is that there is no obvious
+place to look for the current copyright owners. Since registration is
+not required, since marking content is not required, since no
+formality at all is required, it is often impossibly hard to locate
+copyright owners to ask permission to use or license their work. This
+system would lower these costs, by establishing at least one registry
+where copyright owners could be identified.
+</para>
+<indexterm><primary>Berlin Act (1908)</primary></indexterm>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
As I described in chapter 10, formalities in copyright law were
- removed
-in 1976, when Congress followed the Europeans by
- abandoning
+removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
-<!-- f1. --> Until the 1908 Berlin Act of the Berne Convention, national copyright
-legislation sometimes made protection depend upon compliance with
- formalities
-such as registration, deposit, and affixation of notice of the
- author's
-claim of copyright. However, starting with the 1908 act, every text
-of the Convention has provided that "the enjoyment and the exercise" of
-rights guaranteed by the Convention "shall not be subject to any
- formality."
-The prohibition against formalities is presently embodied in Article
-5(2) of the Paris Text of the Berne Convention. Many countries continue
-to impose some form of deposit or registration requirement, albeit not as
-a condition of copyright. French law, for example, requires the deposit of
-copies of works in national repositories, principally the National Museum.
+<!-- f1. -->
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject
+to any formality." The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the National Museum.
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
-of Authors where the author's true name can be filed in the case of
- anonymous
-or pseudonymous works. Paul Goldstein, International Intellectual
-Property Law, Cases and Materials (New York: Foundation Press, 2001),
-153–54.
-</para></footnote>
- The
- Europeans
-are said to view copyright as a "natural right." Natural rights
-don't need forms to exist. Traditions, like the Anglo-American
- tradition
-that required copyright owners to follow form if their rights were
-to be protected, did not, the Europeans thought, properly respect the
-dignity of the author. My right as a creator turns on my creativity, not
-upon the special favor of the government.
-</para>
-<para>
-That's great rhetoric. It sounds wonderfully romantic. But it is
- absurd
-copyright policy. It is absurd especially for authors, because a
-world without formalities harms the creator. The ability to spread
+of Authors where the author's true name can be filed in the case of
+anonymous or pseudonymous works. Paul Goldstein, International
+Intellectual Property Law, Cases and Materials (New York: Foundation
+Press, 2001), 153–54. </para></footnote>
+The Europeans are said to view copyright as a "natural right." Natural
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+</para>
+<para>
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
</para>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
-The fight against formalities achieved its first real victory in Berlin
-in 1908. International copyright lawyers amended the Berne
- Convention
-in 1908, to require copyright terms of life plus fifty years, as well as
-the abolition of copyright formalities. The formalities were hated
- because
-the stories of inadvertent loss were increasingly common. It was
-as if a Charles Dickens character ran all copyright offices, and the
- failure
-to dot an i or cross a t resulted in the loss of widows' only income.
+The fight against formalities achieved its first real victory in
+Berlin in 1908. International copyright lawyers amended the Berne
+Convention in 1908, to require copyright terms of life plus fifty
+years, as well as the abolition of copyright formalities. The
+formalities were hated because the stories of inadvertent loss were
+increasingly common. It was as if a Charles Dickens character ran all
+copyright offices, and the failure to dot an i or cross a t resulted
+in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
-formalities, especially in the United States, was absurd. The law should
-always have ways of forgiving innocent mistakes. There is no reason
-copyright law couldn't, as well. Rather than abandoning formalities
- totally,
-the response in Berlin should have been to embrace a more
- equitable
-system of registration.
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
</para>
<para>
Even that would have been resisted, however, because registration
a moral claim as well. There was no reason that creative property
<!-- PAGE BREAK 258 -->
-should be a second-class form of property. If a carpenter builds a table,
-his rights over the table don't depend upon filing a form with the
- government.
-He has a property right over the table "naturally," and he can
-assert that right against anyone who would steal the table, whether or
-not he has informed the government of his ownership of the table.
+should be a second-class form of property. If a carpenter builds a
+table, his rights over the table don't depend upon filing a form with
+the government. He has a property right over the table "naturally,"
+and he can assert that right against anyone who would steal the table,
+whether or not he has informed the government of his ownership of the
+table.
</para>
<para>
-This argument is correct, but its implications are misleading. For
-the argument in favor of formalities does not depend upon creative
-property being second-class property. The argument in favor of
- formalities
-turns upon the special problems that creative property
- presents.
-The law of formalities responds to the special physics of creative
-property, to assure that it can be efficiently and fairly spread.
+This argument is correct, but its implications are misleading. For the
+argument in favor of formalities does not depend upon creative
+property being second-class property. The argument in favor of
+formalities turns upon the special problems that creative property
+presents. The law of formalities responds to the special physics of
+creative property, to assure that it can be efficiently and fairly
+spread.
</para>
<para>
No one thinks, for example, that land is second-class property just
-because you have to register a deed with a court if your sale of land is
-to be effective. And few would think a car is second-class property just
-because you must register the car with the state and tag it with a
- license.
-In both of those cases, everyone sees that there is an important
-reason to secure registration—both because it makes the markets more
-efficient and because it better secures the rights of the owner. Without
-a registration system for land, landowners would perpetually have to
-guard their property. With registration, they can simply point the
- police
-to a deed. Without a registration system for cars, auto theft would
-be much easier. With a registration system, the thief has a high burden
-to sell a stolen car. A slight burden is placed on the property owner, but
-those burdens produce a much better system of protection for property
-generally.
+because you have to register a deed with a court if your sale of land
+is to be effective. And few would think a car is second-class property
+just because you must register the car with the state and tag it with
+a license. In both of those cases, everyone sees that there is an
+important reason to secure registration—both because it makes
+the markets more efficient and because it better secures the rights of
+the owner. Without a registration system for land, landowners would
+perpetually have to guard their property. With registration, they can
+simply point the police to a deed. Without a registration system for
+cars, auto theft would be much easier. With a registration system, the
+thief has a high burden to sell a stolen car. A slight burden is
+placed on the property owner, but those burdens produce a much better
+system of protection for property generally.
</para>
<para>
It is similarly special physics that makes formalities important in
be presumptively uncontrolled.
</para>
<para>
-But now that copyrights can be just about a century long, the
- inability
-to know what is protected and what is not protected becomes a
-huge and obvious burden on the creative process. If the only way a
- library
-can offer an Internet exhibit about the New Deal is to hire a
-lawyer to clear the rights to every image and sound, then the copyright
-system is burdening creativity in a way that has never been seen before
-because there are no formalities.
+But now that copyrights can be just about a century long, the
+inability to know what is protected and what is not protected becomes
+a huge and obvious burden on the creative process. If the only way a
+library can offer an Internet exhibit about the New Deal is to hire a
+lawyer to clear the rights to every image and sound, then the
+copyright system is burdening creativity in a way that has never been
+seen before because there are no formalities.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
movie based on it. It should become free if it is not worth $1 to you.
</para>
<para>
-Some worry about the burden on authors. Won't the burden of
- registering
-the work mean that the $1 is really misleading? Isn't the hassle
-worth more than $1? Isn't that the real problem with registration?
+Some worry about the burden on authors. Won't the burden of
+registering the work mean that the $1 is really misleading? Isn't the
+hassle worth more than $1? Isn't that the real problem with
+registration?
</para>
<para>
It is. The hassle is terrible. The system that exists now is awful. I
work, commercial work that no longer had a commercial life, into the
public domain within fifty years. What do you think?
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
When Steve Forbes endorsed the idea, some in Washington began to pay
attention. Many people contacted me pointing to representatives who
domain connected to a public that now has the means to create with it
and to share its own creation.
</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
What is hard to understand is why the public takes this view. It is
as if the law made airplanes trespassers. The MPAA stands with the
example, if the drug was sold in India, it could be imported into
Africa from India. This is called "parallel importation," and it is
generally permitted under international trade law and is specifically
-permitted within the European Union.<footnote><para>
-<!-- f2. --> See Peter Drahos with John Braithwaite, Information Feudalism: Who
+permitted within the European Union.<footnote>
+<para>
+<!-- f2. -->
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
+<indexterm><primary>Braithwaite, John</primary></indexterm>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
</para>
<para>
United States in the lead, was that South Africa respect these patents
as it respects any other patent, regardless of any effect on the treatment
of AIDS within South Africa.<footnote><para>
-<!-- f4. --> International Intellectual Property Institute (IIPI), Patent Protection and
-Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report
- Prepared
-for the World Intellectual Property Organization (Washington, D.C.,
-2000), 15.
-</para></footnote>
+<!-- f4. -->
+International Intellectual Property Institute (IIPI), Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization (Washington, D.C., 2000), 15. </para></footnote>
</para>
<para>
-We should place the intervention by the United States in context.
-No doubt patents are not the most important reason that Africans
-don't have access to drugs. Poverty and the total absence of an effective
+We should place the intervention by the United States in context. No
+doubt patents are not the most important reason that Africans don't
+have access to drugs. Poverty and the total absence of an effective
health care infrastructure matter more. But whether patents are the
-most important reason or not, the price of drugs has an effect on their
-demand, and patents affect price. And so, whether massive or
- marginal,
-there was an effect from our government's intervention to stop
-the flow of medications into Africa.
+most important reason or not, the price of drugs has an effect on
+their demand, and patents affect price. And so, whether massive or
+marginal, there was an effect from our government's intervention to
+stop the flow of medications into Africa.
</para>
<para>
By stopping the flow of HIV treatment into Africa, the United
by U.S. companies.
</para>
<para>
-Instead, the argument in favor of restricting this flow of
- information,
-which was needed to save the lives of millions, was an argument
+Instead, the argument in favor of restricting this flow of
+information, which was needed to save the lives of millions, was an
+argument
<!-- PAGE BREAK 267 -->
about the sanctity of property.<footnote><para>
-<!-- f5. --> See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
+<!-- f5. -->
+See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24
-May 1999, A1, available at
-<ulink url="http://free-culture.cc/notes/">link #57</ulink> ("compulsory licenses and gray
- markets
-pose a threat to the entire system of intellectual property protection");
-Robert Weissman, "AIDS and Developing Countries: Democratizing
- Access
-to Essential Medicines," Foreign Policy in Focus 4:23 (August 1999),
-available at
-<ulink url="http://free-culture.cc/notes/">link #58</ulink> (describing U.S. policy); John A. Harrelson, "TRIPS,
-Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper
-Balance Between Intellectual Property Rights and Compassion, a
- Synopsis,"
-Widener Law Symposium Journal (Spring 2001): 175.
+May 1999, A1, available at
+<ulink url="http://free-culture.cc/notes/">link #57</ulink>
+("compulsory licenses and gray markets pose a threat to the entire
+system of intellectual property protection"); Robert Weissman, "AIDS
+and Developing Countries: Democratizing Access to Essential
+Medicines," Foreign Policy in Focus 4:23 (August 1999), available at
+<ulink url="http://free-culture.cc/notes/">link #58</ulink>
+(describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical
+Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
+Intellectual Property Rights and Compassion, a Synopsis," Widener Law
+Symposium Journal (Spring 2001): 175.
<!-- PAGE BREAK 333 -->
</para></footnote>
- It was because "intellectual property"
-would be violated that these drugs should not flow into Africa. It was
-a principle about the importance of "intellectual property" that led
-these government actors to intervene against the South African
- response
-to AIDS.
+It was because "intellectual property" would be violated that these
+drugs should not flow into Africa. It was a principle about the
+importance of "intellectual property" that led these government actors
+to intervene against the South African response to AIDS.
</para>
<para>
Now just step back for a moment. There will be a time thirty years
from now when our children look back at us and ask, how could we have
-let this happen? How could we allow a policy to be pursued whose
- direct
-cost would be to speed the death of 15 to 30 million Africans, and
-whose only real benefit would be to uphold the "sanctity" of an idea?
-What possible justification could there ever be for a policy that results
-in so many deaths? What exactly is the insanity that would allow so
-many to die for such an abstraction?
+let this happen? How could we allow a policy to be pursued whose
+direct cost would be to speed the death of 15 to 30 million Africans,
+and whose only real benefit would be to uphold the "sanctity" of an
+idea? What possible justification could there ever be for a policy
+that results in so many deaths? What exactly is the insanity that
+would allow so many to die for such an abstraction?
</para>
<para>
Some blame the drug companies. I don't. They are corporations.
</para>
<para>
The corruption is our own politicians' failure of integrity. For the
-drug companies would love—they say, and I believe them—to sell their
-drugs as cheaply as they can to countries in Africa and elsewhere.
-There are issues they'd have to resolve to make sure the drugs didn't get
-back into the United States, but those are mere problems of
- technology.
-They could be overcome.
+drug companies would love—they say, and I believe them—to
+sell their drugs as cheaply as they can to countries in Africa and
+elsewhere. There are issues they'd have to resolve to make sure the
+drugs didn't get back into the United States, but those are mere
+problems of technology. They could be overcome.
</para>
<para>
A different problem, however, could not be overcome. This is the
What is the argument?
</para>
<para>
-A sensible patent policy could endorse and strongly support the
-patent system without having to reach everyone everywhere in exactly
-the same way. Just as a sensible copyright policy could endorse and
-strongly support a copyright system without having to regulate the
-spread of culture perfectly and forever, a sensible patent policy could
-endorse and strongly support a patent system without having to block
-the spread of drugs to a country not rich enough to afford market
-prices in any case. A sensible policy, in other words, could be a balanced
-policy. For most of our history, both copyright and patent policies were
-balanced in just this sense.
+A sensible patent policy could endorse and strongly support the patent
+system without having to reach everyone everywhere in exactly the same
+way. Just as a sensible copyright policy could endorse and strongly
+support a copyright system without having to regulate the spread of
+culture perfectly and forever, a sensible patent policy could endorse
+and strongly support a patent system without having to block the
+spread of drugs to a country not rich enough to afford market prices
+in any case. A sensible policy, in other words, could be a balanced
+policy. For most of our history, both copyright and patent policies
+were balanced in just this sense.
</para>
<para>
But we as a culture have lost this sense of balance. We have lost the
-critical eye that helps us see the difference between truth and
- extremism.
-A certain property fundamentalism, having no connection to our
-tradition, now reigns in this culture—bizarrely, and with consequences
-more grave to the spread of ideas and culture than almost any other
-single policy decision that we as a democracy will make.
-A simple idea blinds us, and under the cover of darkness, much
-happens that most of us would reject if any of us looked. So uncritically
-do we accept the idea of property in ideas that we don't even notice
-how monstrous it is to deny ideas to a people who are dying without
-them. So uncritically do we accept the idea of property in culture that
-we don't even question when the control of that property removes our
+critical eye that helps us see the difference between truth and
+extremism. A certain property fundamentalism, having no connection to
+our tradition, now reigns in this culture—bizarrely, and with
+consequences more grave to the spread of ideas and culture than almost
+any other single policy decision that we as a democracy will make. A
+simple idea blinds us, and under the cover of darkness, much happens
+that most of us would reject if any of us looked. So uncritically do
+we accept the idea of property in ideas that we don't even notice how
+monstrous it is to deny ideas to a people who are dying without
+them. So uncritically do we accept the idea of property in culture
+that we don't even question when the control of that property removes
+our
<!-- PAGE BREAK 269 -->
ability, as a people, to develop our culture democratically. Blindness
becomes our common sense. And the challenge for anyone who would
Daily, 19 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #61</ulink>.
</para></footnote>
- At the request of a wide range of interests, WIPO had
- decided
-to hold a meeting to discuss "open and collaborative projects to
-create public goods." These are projects that have been successful in
-producing public goods without relying exclusively upon a proprietary
-use of intellectual property. Examples include the Internet and the
-World Wide Web, both of which were developed on the basis of
- protocols
-in the public domain. It included an emerging trend to support
-open academic journals, including the Public Library of Science
- project
+At the request of a wide range of interests, WIPO had decided to hold
+a meeting to discuss "open and collaborative projects to create public
+goods." These are projects that have been successful in producing
+public goods without relying exclusively upon a proprietary use of
+intellectual property. Examples include the Internet and the World
+Wide Web, both of which were developed on the basis of protocols in
+the public domain. It included an emerging trend to support open
+academic journals, including the Public Library of Science project
that I describe in the Afterword. It included a project to develop
single nucleotide polymorphisms (SNPs), which are thought to have
-great significance in biomedical research. (That nonprofit project
- comprised
-a consortium of the Wellcome Trust and pharmaceutical and
+great significance in biomedical research. (That nonprofit project
+comprised a consortium of the Wellcome Trust and pharmaceutical and
technological companies, including Amersham Biosciences, AstraZeneca,
<!-- PAGE BREAK 270 -->
Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
- 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."
+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."
</para>
<para>
The aim of the meeting was to consider this wide range of projects
<!-- f7. --> I should disclose that I was one of the people who asked WIPO for the
meeting.
</para></footnote>
-The projects within its scope included both commercial and
- noncommercial
-work. They primarily involved science, but from many
- perspectives.
-And WIPO was an ideal venue for this discussion, since
+The projects within its scope included both commercial and
+noncommercial work. They primarily involved science, but from many
+perspectives. And WIPO was an ideal venue for this discussion, since
WIPO is the preeminent international body dealing with intellectual
property issues.
</para>
<para>
Indeed, I was once publicly scolded for not recognizing this fact
about WIPO. In February 2003, I delivered a keynote address to a
-preparatory conference for the World Summit on the Information
- Society
-(WSIS). At a press conference before the address, I was asked
-what I would say. I responded that I would be talking a little about the
+preparatory conference for the World Summit on the Information Society
+(WSIS). At a press conference before the address, I was asked what I
+would say. I responded that I would be talking a little about the
importance of balance in intellectual property for the development of
-an information society. The moderator for the event then promptly
- interrupted
-to inform me and the assembled reporters that no question
+an information society. The moderator for the event then promptly
+interrupted to inform me and the assembled reporters that no question
about intellectual property would be discussed by WSIS, since those
questions were the exclusive domain of WIPO. In the talk that I had
-prepared, I had actually made the issue of intellectual property
- relatively
-minor. But after this astonishing statement, I made intellectual
-property the sole focus of my talk. There was no way to talk about an
-"Information Society" unless one also talked about the range of
- information
-and culture that would be free. My talk did not make my
- immoderate
-moderator very happy. And she was no doubt correct that the
-scope of intellectual property protections was ordinarily the stuff of
+prepared, I had actually made the issue of intellectual property
+relatively minor. But after this astonishing statement, I made
+intellectual property the sole focus of my talk. There was no way to
+talk about an "Information Society" unless one also talked about the
+range of information and culture that would be free. My talk did not
+make my immoderate moderator very happy. And she was no doubt correct
+that the scope of intellectual property protections was ordinarily the
+stuff of
<!-- PAGE BREAK 271 -->
WIPO. But in my view, there couldn't be too much of a conversation
about how much intellectual property is needed, since in my view, the
very idea of balance in intellectual property had been lost.
</para>
<para>
-So whether or not WSIS can discuss balance in intellectual
- property,
-I had thought it was taken for granted that WIPO could and
-should. And thus the meeting about "open and collaborative projects to
-create public goods" seemed perfectly appropriate within the WIPO
-agenda.
+So whether or not WSIS can discuss balance in intellectual property, I
+had thought it was taken for granted that WIPO could and should. And
+thus the meeting about "open and collaborative projects to create
+public goods" seemed perfectly appropriate within the WIPO agenda.
</para>
<para>
-But there is one project within that list that is highly controversial,
-at least among lobbyists. That project is "open source and free
- software."
-Microsoft in particular is wary of discussion of the subject. From
-its perspective, a conference to discuss open source and free software
-would be like a conference to discuss Apple's operating system. Both
-open source and free software compete with Microsoft's software. And
-internationally, many governments have begun to explore requirements
-that they use open source or free software, rather than "proprietary
-software," for their own internal uses.
+But there is one project within that list that is highly
+controversial, at least among lobbyists. That project is "open source
+and free software." Microsoft in particular is wary of discussion of
+the subject. From its perspective, a conference to discuss open source
+and free software would be like a conference to discuss Apple's
+operating system. Both open source and free software compete with
+Microsoft's software. And internationally, many governments have begun
+to explore requirements that they use open source or free software,
+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
<para>
First, they are just flat wrong. As I described, most open source and
free software relies fundamentally upon the intellectual property
-right called "copyright." Without it, restrictions imposed by those
+right called "copyright". Without it, restrictions imposed by those
licenses wouldn't work. Thus, to say it "runs counter" to the mission
of promoting intellectual property rights reveals an extraordinary gap
in understanding—the sort of mistake that is excusable in a
intellectual property is. As every economist and lawyer knows, the
hard question in intellectual property law is to find that
balance. But that there should be limits is, I had thought,
-uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
+uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
based on drugs whose patent has expired) contrary to the WIPO mission?
Does the public domain weaken intellectual property? Would it have
been better if the protocols of the Internet had been patented?
and concentration. It fought any freedom that might interfere with
that control.
</para>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
-<!-- f10. --> See Drahos with Braithwaite, Information Feudalism, 210–20.
+<!-- f10. -->
+See Drahos with Braithwaite, Information Feudalism, 210–20.
+<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
We will have an information society. That much is certain. Our only
choice now is whether that information society will be free or
<para>
George, you misunderstand Lessig: He's only talking about the world as
it should be ("the goal of WIPO, and the goal of any government,
-should be to promote the right balance of intellectualproperty rights,
+should be to promote the right balance of intellectual property rights,
not simply to promote intellectual property rights"), not as it is. If
we were talking about the world as it is, then of course Boland didn't
say anything wrong. But in the world
It might be crazy to argue that we should preserve a tradition that has
been part of our tradition for most of our history—free culture.
</para>
+<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<para>
-If this is crazy, then let there be more crazies. Soon.
-There are moments of hope in this struggle. And moments that
-surprise. When the FCC was considering relaxing ownership rules,
-which would thereby further increase the concentration in media
- ownership,
-an extraordinary bipartisan coalition formed to fight this
-change. For perhaps the first time in history, interests as diverse as the
-NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and
-CodePink Women for Peace organized to oppose this change in FCC
-policy. An astonishing 700,000 letters were sent to the FCC,
- demanding
-more hearings and a different result.
+If this is crazy, then let there be more crazies. Soon. There are
+moments of hope in this struggle. And moments that surprise. When the
+FCC was considering relaxing ownership rules, which would thereby
+further increase the concentration in media ownership, an
+extraordinary bipartisan coalition formed to fight this change. For
+perhaps the first time in history, interests as diverse as the NRA,
+the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
+for Peace organized to oppose this change in FCC policy. An
+astonishing 700,000 letters were sent to the FCC, demanding more
+hearings and a different result.
</para>
<para>
-This activism did not stop the FCC, but soon after, a broad
- coalition
-in the Senate voted to reverse the FCC decision. The hostile
- hearings
-leading up to that vote revealed just how powerful this movement
-had become. There was no substantial support for the FCC's decision,
-and there was broad and sustained support for fighting further
- concentration
-in the media.
+This activism did not stop the FCC, but soon after, a broad coalition
+in the Senate voted to reverse the FCC decision. The hostile hearings
+leading up to that vote revealed just how powerful this movement had
+become. There was no substantial support for the FCC's decision, and
+there was broad and sustained support for fighting further
+concentration in the media.
</para>
<para>
But even this movement misses an important piece of the puzzle.
Largeness as such is not bad. Freedom is not threatened just because
-some become very rich, or because there are only a handful of big
- players.
-The poor quality of Big Macs or Quarter Pounders does not mean
-that you can't get a good hamburger from somewhere else.
+some become very rich, or because there are only a handful of big
+players. The poor quality of Big Macs or Quarter Pounders does not
+mean that you can't get a good hamburger from somewhere else.
</para>
<para>
-The danger in media concentration comes not from the
- concentration,
+The danger in media concentration comes not from the concentration,
but instead from the feudalism that this concentration, tied to the
-change in copyright, produces. It is not just that there are a few
- powerful
-companies that control an ever expanding slice of the media. It
-is that this concentration can call upon an equally bloated range of
-rights—property rights of a historically extreme form—that makes
-their bigness bad.
+change in copyright, produces. It is not just that there are a few
+powerful companies that control an ever expanding slice of the
+media. It is that this concentration can call upon an equally bloated
+range of rights—property rights of a historically extreme
+form—that makes their bigness bad.
</para>
<!-- PAGE BREAK 277 -->
<para>
-It is therefore significant that so many would rally to demand
- competition
-and increased diversity. Still, if the rally is understood as being
-about bigness alone, it is not terribly surprising. We Americans have a
-long history of fighting "big," wisely or not. That we could be
- motivated
-to fight "big" again is not something new.
+It is therefore significant that so many would rally to demand
+competition and increased diversity. Still, if the rally is understood
+as being about bigness alone, it is not terribly surprising. We
+Americans have a long history of fighting "big," wisely or not. That
+we could be motivated to fight "big" again is not something new.
</para>
<para>
-It would be something new, and something very important, if an
-equal number could be rallied to fight the increasing extremism built
-within the idea of "intellectual property." Not because balance is alien
-to our tradition; indeed, as I've argued, balance is our tradition. But
- because
-the muscle to think critically about the scope of anything called
-"property" is not well exercised within this tradition anymore.
+It would be something new, and something very important, if an equal
+number could be rallied to fight the increasing extremism built within
+the idea of "intellectual property." Not because balance is alien to
+our tradition; indeed, as I've argued, balance is our tradition. But
+because the muscle to think critically about the scope of anything
+called "property" is not well exercised within this tradition anymore.
</para>
<para>
If we were Achilles, this would be our heel. This would be the place
of our tragedy.
</para>
+<indexterm><primary>Dylan, Bob</primary></indexterm>
<para>
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.<footnote><para>
-<!-- f11. --> John Borland, "RIAA Sues 261 File Swappers," CNET News.com,
-September 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul R. La Monica, "Music
- Industry
-Sues Swappers," CNN/Money, 8 September 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a
-Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily
-News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet
- Surprised
+<!-- f11. -->
+John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul
+R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni
+Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
+September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
- available
-at
+"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #67</ulink>.
</para></footnote>
-
- Eminem
-has just been sued for "sampling" someone else's music.<footnote><para>
-<!-- f12. --> Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com,
-17 September 2003, available at
+Eminem has just been sued for "sampling" someone else's
+music.<footnote><para>
+<!-- f12. -->
+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>
- The
-story about Bob Dylan "stealing" from a Japanese author has just
- finished
-making the rounds.<footnote><para>
-<!-- f13. --> Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
- Dylan
-Songs," Kansascity.com, 9 July 2003, available at
+The story about Bob Dylan "stealing" from a Japanese author has just
+finished making the rounds.<footnote><para>
+<!-- f13. -->
+Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
+Dylan Songs," Kansascity.com, 9 July 2003, available at
<ulink url="http://free-culture.cc/notes/">link #69</ulink>.
<!-- PAGE BREAK 334 -->
</para></footnote>
- An insider from Hollywood—who insists
-he must remain anonymous—reports "an amazing conversation with
-these studio guys. They've got extraordinary [old] content that they'd
-love to use but can't because they can't begin to clear the rights. They've
-got scores of kids who could do amazing things with the content, but
-it would take scores of lawyers to clean it first." Congressmen are
- talking
-about deputizing computer viruses to bring down computers thought
-to violate the law. Universities are threatening expulsion for kids who
-use a computer to share content.
-</para>
+An insider from Hollywood—who insists he must remain
+anonymous—reports "an amazing conversation with these studio
+guys. They've got extraordinary [old] content that they'd love to use
+but can't because they can't begin to clear the rights. They've got
+scores of kids who could do amazing things with the content, but it
+would take scores of lawyers to clean it first." Congressmen are
+talking about deputizing computer viruses to bring down computers
+thought to violate the law. Universities are threatening expulsion for
+kids who use a computer to share content.
+</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Creative Commons</primary></indexterm>
+<indexterm><primary>Gil, Gilberto</primary></indexterm>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
that it will build a "Creative Archive," from which British citizens can
24 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
</para></footnote>
- And in Brazil, the
-culture minister, Gilberto Gil, himself a folk hero of Brazilian music,
-has joined with Creative Commons to release content and free licenses
-in that Latin American country.<footnote><para>
-<!-- f15. --> "Creative Commons and Brazil," Creative Commons Weblog, 6 August
-2003, available at
+And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
+of Brazilian music, has joined with Creative Commons to release
+content and free licenses in that Latin American
+country.<footnote><para>
+<!-- f15. -->
+"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
</para></footnote>
<!-- PAGE BREAK 278 -->
<para>
<!-- PAGE BREAK 280 -->
-At least some who have read this far will agree with me that
- something
-must be done to change where we are heading. The balance of
-this book maps what might be done.
+At least some who have read this far will agree with me that something
+must be done to change where we are heading. The balance of this book
+maps what might be done.
</para>
<para>
I divide this map into two parts: that which anyone can do now,
it requires remaking how many people think about the very same issue.
</para>
<para>
-That means this movement must begin in the streets. It must
- recruit
-a significant number of parents, teachers, librarians, creators,
- authors,
-musicians, filmmakers, scientists—all to tell this story in their
-own words, and to tell their neighbors why this battle is so important.
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators,
+authors, musicians, filmmakers, scientists—all to tell this
+story in their own words, and to tell their neighbors why this battle
+is so important.
</para>
<para>
Once this movement has its effect in the streets, it has some hope of
<sect1 id="usnow">
<title>US, NOW</title>
<para>
-Common sense is with the copyright warriors because the debate so
-far has been framed at the extremes—as a grand either/or: either
- property
-or anarchy, either total control or artists won't be paid. If that
- really
-is the choice, then the warriors should win.
+Common sense is with the copyright warriors because the debate so far
+has been framed at the extremes—as a grand either/or: either
+property or anarchy, either total control or artists won't be paid. If
+that really is the choice, then the warriors should win.
</para>
<para>
-The mistake here is the error of the excluded middle. There are
- extremes
-in this debate, but the extremes are not all that there is. There
-are those who believe in maximal copyright—"All Rights Reserved"—
-and those who reject copyright—"No Rights Reserved." The "All
-Rights Reserved" sorts believe that you should ask permission before
-you "use" a copyrighted work in any way. The "No Rights Reserved"
-sorts believe you should be able to do with content as you wish,
- regardless
-of whether you have permission or not.
+The mistake here is the error of the excluded middle. There are
+extremes in this debate, but the extremes are not all that there
+is. There are those who believe in maximal copyright—"All Rights
+Reserved"— and those who reject copyright—"No Rights
+Reserved." The "All Rights Reserved" sorts believe that you should ask
+permission before you "use" a copyrighted work in any way. The "No
+Rights Reserved" sorts believe you should be able to do with content
+as you wish, regardless of whether you have permission or not.
</para>
<para>
When the Internet was first born, its initial architecture effectively
tilted in the "no rights reserved" direction. Content could be copied
-perfectly and cheaply; rights could not easily be controlled. Thus,
- regardless
-of anyone's desire, the effective regime of copyright under the
+perfectly and cheaply; rights could not easily be controlled. Thus,
+regardless of anyone's desire, the effective regime of copyright under
+the
<!-- PAGE BREAK 282 -->
original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
- unprotected.
+"taken" regardless of the rights. Any rights were effectively
+unprotected.
</para>
<para>
This initial character produced a reaction (opposite, but not quite
equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
-design, copyright holders have been able to change the essential
- character
-of the environment of the original Internet. If the original
- architecture
-made the effective default "no rights reserved," the future
-architecture will make the effective default "all rights reserved." The
- architecture
-and law that surround the Internet's design will increasingly
-produce an environment where all use of content requires permission.
-The "cut and paste" world that defines the Internet today will become
-a "get permission to cut and paste" world that is a creator's nightmare.
-</para>
-<para>
-What's needed is a way to say something in the middle—neither "all
-rights reserved" nor "no rights reserved" but "some rights reserved"—
-and thus a way to respect copyrights but enable creators to free content
-as they see fit. In other words, we need a way to restore a set of
- freedoms
-that we could just take for granted before.
+design, copyright holders have been able to change the essential
+character of the environment of the original Internet. If the original
+architecture made the effective default "no rights reserved," the
+future architecture will make the effective default "all rights
+reserved." The architecture and law that surround the Internet's
+design will increasingly produce an environment where all use of
+content requires permission. The "cut and paste" world that defines
+the Internet today will become a "get permission to cut and paste"
+world that is a creator's nightmare.
+</para>
+<para>
+What's needed is a way to say something in the middle—neither
+"all rights reserved" nor "no rights reserved" but "some rights
+reserved"— and thus a way to respect copyrights but enable
+creators to free content as they see fit. In other words, we need a
+way to restore a set of freedoms that we could just take for granted
+before.
</para>
<sect2 id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
-If you step back from the battle I've been describing here, you will
- recognize
-this problem from other contexts. Think about privacy. Before
-the Internet, most of us didn't have to worry much about data about
-our lives that we broadcast to the world. If you walked into a bookstore
-and browsed through some of the works of Karl Marx, you didn't need
-to worry about explaining your browsing habits to your neighbors or
-boss. The "privacy" of your browsing habits was assured.
+If you step back from the battle I've been describing here, you will
+recognize this problem from other contexts. Think about
+privacy. Before the Internet, most of us didn't have to worry much
+about data about our lives that we broadcast to the world. If you
+walked into a bookstore and browsed through some of the works of Karl
+Marx, you didn't need to worry about explaining your browsing habits
+to your neighbors or boss. The "privacy" of your browsing habits was
+assured.
</para>
<para>
What made it assured?
<!-- 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
-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 enough to
-spend the thousands required to track you. But for most of us (again,
-we can hope), spying doesn't pay. The highly inefficient architecture of
-real space means we all enjoy a fairly robust amount of privacy. That
-privacy is guaranteed to us by friction. Not by law (there is no law
- protecting
-"privacy" in public places), and in many places, not by norms
-(snooping and gossip are just fun), but instead, by the costs that
- friction
-imposes on anyone who would want to spy.
+10, 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
+enough to spend the thousands required to track you. But for most of
+us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount
+of privacy. That privacy is guaranteed to us by friction. Not by law
+(there is no law protecting "privacy" in public places), and in many
+places, not by norms (snooping and gossip are just fun), but instead,
+by the costs that friction imposes on anyone who would want to spy.
</para>
<indexterm><primary>Amazon</primary></indexterm>
<para>
It is this reality that explains the push of many to define "privacy"
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
- friction
-did.<footnote><para>
-<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
- Architecture
-of Privacy (What Larry Doesn't Get)," Stanford Technology Law
-Review 1 (2001): par. 6–18, available at
-<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
-which technology defines privacy policy). See also Jeffrey Rosen, The Naked
-Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
- Random
-House, 2004) (mapping tradeoffs between technology and privacy).
-</para></footnote>
- And whether you're in favor of those laws or not, it is the
- pattern
+friction did.<footnote><para>
+<!-- f1. -->
+
+See, for example, Marc Rotenberg, "Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+Law Review 1 (2001): par. 6–18, available at
+
+<ulink url="http://free-culture.cc/notes/">link #72</ulink>
+(describing examples in which technology defines privacy policy). See
+also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
+between technology and privacy).</para></footnote>
+And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
<!-- PAGE BREAK 284 -->
-kind of freedom that was passively provided before. A change in
- technology
-now forces those who believe in privacy to affirmatively act
-where, before, privacy was given by default.
+kind of freedom that was passively provided before. A change in
+technology now forces those who believe in privacy to affirmatively
+act where, before, privacy was given by default.
</para>
<para>
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
-commercially, the software—both the source code and the binaries—
-was free. You couldn't run a program written for a Data General
- machine
-on an IBM machine, so Data General and IBM didn't care much
-about controlling their software.
+commercially, the software—both the source code and the
+binaries— was free. You couldn't run a program written for a
+Data General machine on an IBM machine, so Data General and IBM didn't
+care much about controlling their software.
</para>
+<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
-That was the world Richard Stallman was born into, and while he
-was a researcher at MIT, he grew to love the community that
- developed
-when one was free to explore and tinker with the software that
-ran on machines. Being a smart sort himself, and a talented
- programmer,
-Stallman grew to depend upon the freedom to add to or modify
-other people's work.
-</para>
-<para>
-In an academic setting, at least, that's not a terribly radical idea. In
-a math department, anyone would be free to tinker with a proof that
-someone offered. If you thought you had a better way to prove a
- theorem,
-you could take what someone else did and change it. In a classics
-department, if you believed a colleague's translation of a recently
- discovered
-text was flawed, you were free to improve it. Thus, to Stallman,
-it seemed obvious that you should be free to tinker with and improve
-the code that ran a machine. This, too, was knowledge. Why shouldn't
-it be open for criticism like anything else?
+That was the world Richard Stallman was born into, and while he was a
+researcher at MIT, he grew to love the community that developed when
+one was free to explore and tinker with the software that ran on
+machines. Being a smart sort himself, and a talented programmer,
+Stallman grew to depend upon the freedom to add to or modify other
+people's work.
+</para>
+<para>
+In an academic setting, at least, that's not a terribly radical
+idea. In a math department, anyone would be free to tinker with a
+proof that someone offered. If you thought you had a better way to
+prove a theorem, you could take what someone else did and change
+it. In a classics department, if you believed a colleague's
+translation of a recently discovered text was flawed, you were free to
+improve it. Thus, to Stallman, it seemed obvious that you should be
+free to tinker with and improve the code that ran a machine. This,
+too, was knowledge. Why shouldn't it be open for criticism like
+anything else?
</para>
<para>
No one answered that question. Instead, the architecture of revenue
-for computing changed. As it became possible to import programs
-from one system to another, it became economically attractive (at least
-in the view of some) to hide the code of your program. So, too, as
- companies
-started selling peripherals for mainframe systems. If I could just
-take your printer driver and copy it, then that would make it easier for
-me to sell a printer to the market than it was for you.
+for computing changed. As it became possible to import programs from
+one system to another, it became economically attractive (at least in
+the view of some) to hide the code of your program. So, too, as
+companies started selling peripherals for mainframe systems. If I
+could just take your printer driver and copy it, then that would make
+it easier for me to sell a printer to the market than it was for you.
</para>
<para>
Thus, the practice of proprietary code began to spread, and by the
early 1980s, Stallman found himself surrounded by proprietary code.
<!-- PAGE BREAK 285 -->
-The world of free software had been erased by a change in the
- economics
-of computing. And as he believed, if he did nothing about it,
-then the freedom to change and share software would be
- fundamentally
-weakened.
+The world of free software had been erased by a change in the
+economics of computing. And as he believed, if he did nothing about
+it, then the freedom to change and share software would be
+fundamentally weakened.
</para>
<para>
-Therefore, in 1984, Stallman began a project to build a free
- operating
+Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
</para>
<para>
Stallman's technique was to use copyright law to build a world of
-software that must be kept free. Software licensed under the Free
- Software
-Foundation's GPL cannot be modified and distributed unless the
-source code for that software is made available as well. Thus, anyone
-building upon GPL'd software would have to make their buildings free
-as well. This would assure, Stallman believed, that an ecology of code
-would develop that remained free for others to build upon. His
- fundamental
-goal was freedom; innovative creative code was a byproduct.
+software that must be kept free. Software licensed under the Free
+Software Foundation's GPL cannot be modified and distributed unless
+the source code for that software is made available as well. Thus,
+anyone building upon GPL'd software would have to make their buildings
+free as well. This would assure, Stallman believed, that an ecology of
+code would develop that remained free for others to build upon. His
+fundamental goal was freedom; innovative creative code was a
+byproduct.
</para>
<para>
Stallman was thus doing for software what privacy advocates now
scientific journals are produced.
</para>
<para>
-As digital technologies develop, it is becoming obvious to many
-that printing thousands of copies of journals every month and sending
-them to libraries is perhaps not the most efficient way to distribute
+As digital technologies develop, it is becoming obvious to many that
+printing thousands of copies of journals every month and sending them
+to libraries is perhaps not the most efficient way to distribute
knowledge. Instead, journals are increasingly becoming electronic, and
-libraries and their users are given access to these electronic journals
-through password-protected sites. Something similar to this has been
-happening in law for almost thirty years: Lexis and Westlaw have had
-electronic versions of case reports available to subscribers to their
- service.
-Although a Supreme Court opinion is not copyrighted, and
- anyone
-is free to go to a library and read it, Lexis and Westlaw are also free
+libraries and their users are given access to these electronic
+journals through password-protected sites. Something similar to this
+has been happening in law for almost thirty years: Lexis and Westlaw
+have had electronic versions of case reports available to subscribers
+to their service. Although a Supreme Court opinion is not
+copyrighted, and anyone is free to go to a library and read it, Lexis
+and Westlaw are also free
<!-- PAGE BREAK 286 -->
to charge users for the privilege of gaining access to that Supreme
Court opinion through their respective services.
</para>
<para>
-There's nothing wrong in general with this, and indeed, the ability
-to charge for access to even public domain materials is a good incentive
+There's nothing wrong in general with this, and indeed, the ability to
+charge for access to even public domain materials is a good incentive
for people to develop new and innovative ways to spread knowledge.
-The law has agreed, which is why Lexis and Westlaw have been
- allowed
+The law has agreed, which is why Lexis and Westlaw have been allowed
to flourish. And if there's nothing wrong with selling the public
domain, then there could be nothing wrong, in principle, with selling
access to material that is not in the public domain.
</para>
<para>
As many are beginning to notice, this is increasingly the reality with
-scientific journals. When these journals were distributed in paper form,
-libraries could make the journals available to anyone who had access to
-the library. Thus, patients with cancer could become cancer experts
- because
-the library gave them access. Or patients trying to understand
-the risks of a certain treatment could research those risks by reading all
-available articles about that treatment. This freedom was therefore a
-function of the institution of libraries (norms) and the technology of
-paper journals (architecture)—namely, that it was very hard to control
-access to a paper journal.
+scientific journals. When these journals were distributed in paper
+form, libraries could make the journals available to anyone who had
+access to the library. Thus, patients with cancer could become cancer
+experts because the library gave them access. Or patients trying to
+understand the risks of a certain treatment could research those risks
+by reading all available articles about that treatment. This freedom
+was therefore a function of the institution of libraries (norms) and
+the technology of paper journals (architecture)—namely, that it
+was very hard to control access to a paper journal.
</para>
<para>
-As journals become electronic, however, the publishers are
- demanding
-that libraries not give the general public access to the journals. This
-means that the freedoms provided by print journals in public libraries
-begin to disappear. Thus, as with privacy and with software, a changing
-technology and market shrink a freedom taken for granted before.
+As journals become electronic, however, the publishers are demanding
+that libraries not give the general public access to the
+journals. This means that the freedoms provided by print journals in
+public libraries begin to disappear. Thus, as with privacy and with
+software, a changing technology and market shrink a freedom taken for
+granted before.
</para>
<para>
This shrinking freedom has led many to take affirmative steps to
scientific research available to anyone with a Web connection. Authors
<!-- PAGE BREAK 287 -->
of scientific work submit that work to the Public Library of Science.
-That work is then subject to peer review. If accepted, the work is then
-deposited in a public, electronic archive and made permanently
- 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.
+That work is then subject to peer review. If accepted, the work is
+then deposited in a public, electronic archive and made permanently
+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.
</para>
<para>
This is one of many such efforts to restore a freedom taken for
-granted before, but now threatened by changing technology and
- markets.
-There's no doubt that this alternative competes with the
- traditional
+granted before, but now threatened by changing technology and markets.
+There's no doubt that this alternative competes with the traditional
publishers and their efforts to make money from the exclusive
-distribution of content. But competition in our tradition is
- presumptively
-a good—especially when it helps spread knowledge and science.
+distribution of content. But competition in our tradition is
+presumptively a good—especially when it helps spread knowledge
+and science.
</para>
</sect2>
<sect2 id="oneidea">
<title>Rebuilding Free Culture: One Idea</title>
+<indexterm id="idxcc" class='startofrange'>
+ <primary>Creative Commons</primary>
+</indexterm>
<para>
-The same strategy could be applied to culture, as a response to the
- increasing
-control effected through law and technology.
+The same strategy could be applied to culture, as a response to the
+increasing control effected through law and technology.
</para>
<para>
-Enter the Creative Commons. The Creative Commons is a
- nonprofit
+Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
-Stanford University. Its aim is to build a layer of reasonable copyright
-on top of the extremes that now reign. It does this by making it easy for
-people to build upon other people's work, by making it simple for
- creators
-to express the freedom for others to take and build upon their
-work. Simple tags, tied to human-readable descriptions, tied to
- bulletproof
-licenses, make this possible.
-</para>
-<para>
-Simple—which means without a middleman, or without a lawyer.
-By developing a free set of licenses that people can attach to their
-content, Creative Commons aims to mark a range of content that
-can easily, and reliably, be built upon. These tags are then linked to
-machine-readable versions of the license that enable computers
- automatically
-to identify content that can easily be shared. These three
- expressions
-together—a legal license, a human-readable description, and
+Stanford University. Its aim is to build a layer of reasonable
+copyright on top of the extremes that now reign. It does this by
+making it easy for people to build upon other people's work, by making
+it simple for creators to express the freedom for others to take and
+build upon their work. Simple tags, tied to human-readable
+descriptions, tied to bulletproof licenses, make this possible.
+</para>
+<para>
+Simple—which means without a middleman, or without a lawyer. By
+developing a free set of licenses that people can attach to their
+content, Creative Commons aims to mark a range of content that can
+easily, and reliably, be built upon. These tags are then linked to
+machine-readable versions of the license that enable computers
+automatically to identify content that can easily be shared. These
+three expressions together—a legal license, a human-readable
+description, and
<!-- PAGE BREAK 288 -->
machine-readable tags—constitute a Creative Commons license. A
-Creative Commons license constitutes a grant of freedom to anyone
-who accesses the license, and more importantly, an expression of the
-ideal that the person associated with the license believes in something
+Creative Commons license constitutes a grant of freedom to anyone who
+accesses the license, and more importantly, an expression of the ideal
+that the person associated with the license believes in something
different than the "All" or "No" extremes. Content is marked with the
-CC mark, which does not mean that copyright is waived, but that
- certain
-freedoms are given.
+CC mark, which does not mean that copyright is waived, but that
+certain freedoms are given.
</para>
<para>
These freedoms are beyond the freedoms promised by fair use. Their
-precise contours depend upon the choices the creator makes. The
- creator
-can choose a license that permits any use, so long as attribution is
-given. She can choose a license that permits only noncommercial use.
-She can choose a license that permits any use so long as the same
- freedoms
-are given to other uses ("share and share alike"). Or any use so
-long as no derivative use is made. Or any use at all within developing
-nations. Or any sampling use, so long as full copies are not made. Or
-lastly, any educational use.
-</para>
-<para>
-These choices thus establish a range of freedoms beyond the default
-of copyright law. They also enable freedoms that go beyond traditional
+precise contours depend upon the choices the creator makes. The
+creator can choose a license that permits any use, so long as
+attribution is given. She can choose a license that permits only
+noncommercial use. She can choose a license that permits any use so
+long as the same freedoms are given to other uses ("share and share
+alike"). Or any use so long as no derivative use is made. Or any use
+at all within developing nations. Or any sampling use, so long as full
+copies are not made. Or lastly, any educational use.
+</para>
+<para>
+These choices thus establish a range of freedoms beyond the default of
+copyright law. They also enable freedoms that go beyond traditional
fair use. And most importantly, they express these freedoms in a way
that subsequent users can use and rely upon without the need to hire a
-lawyer. Creative Commons thus aims to build a layer of content,
- governed
-by a layer of reasonable copyright law, that others can build
-upon. Voluntary choice of individuals and creators will make this
- content
-available. And that content will in turn enable us to rebuild a
- public
-domain.
-</para>
-<para>
-This is just one project among many within the Creative
- Commons.
-And of course, Creative Commons is not the only organization
-pursuing such freedoms. But the point that distinguishes the Creative
-Commons from many is that we are not interested only in talking
-about a public domain or in getting legislators to help build a public
-domain. Our aim is to build a movement of consumers and producers
+lawyer. Creative Commons thus aims to build a layer of content,
+governed by a layer of reasonable copyright law, that others can build
+upon. Voluntary choice of individuals and creators will make this
+content available. And that content will in turn enable us to rebuild
+a public domain.
+</para>
+<para>
+This is just one project among many within the Creative Commons. And
+of course, Creative Commons is not the only organization pursuing such
+freedoms. But the point that distinguishes the Creative Commons from
+many is that we are not interested only in talking about a public
+domain or in getting legislators to help build a public domain. Our
+aim is to build a movement of consumers and producers
<!-- PAGE BREAK 289 -->
of content ("content conducers," as attorney Mia Garlick calls them)
who help build the public domain and, by their work, demonstrate the
importance of the public domain to other creativity.
</para>
<para>
-The aim is not to fight the "All Rights Reserved" sorts. The aim is
-to complement them. The problems that the law creates for us as a
- culture
-are produced by insane and unintended consequences of laws
-written centuries ago, applied to a technology that only Jefferson could
-have imagined. The rules may well have made sense against a
- background
-of technologies from centuries ago, but they do not make sense
-against the background of digital technologies. New rules—with
- different
-freedoms, expressed in ways so that humans without lawyers can
-use them—are needed. Creative Commons gives people a way
- effectively
+The aim is not to fight the "All Rights Reserved" sorts. The aim is to
+complement them. The problems that the law creates for us as a culture
+are produced by insane and unintended consequences of laws written
+centuries ago, applied to a technology that only Jefferson could have
+imagined. The rules may well have made sense against a background of
+technologies from centuries ago, but they do not make sense against
+the background of digital technologies. New rules—with different
+freedoms, expressed in ways so that humans without lawyers can use
+them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
</para>
<para>
Why would creators participate in giving up total control? Some
-participate to better spread their content. Cory Doctorow, for example,
-is a science fiction author. His first novel, Down and Out in the Magic
-Kingdom, was released on-line and for free, under a Creative
- Commons
-license, on the same day that it went on sale in bookstores.
+participate to better spread their content. Cory Doctorow, for
+example, is a science fiction author. His first novel, Down and Out in
+the Magic Kingdom, was released on-line and for free, under a Creative
+Commons license, on the same day that it went on sale in bookstores.
</para>
<para>
Why would a publisher ever agree to this? I suspect his publisher
-reasoned like this: There are two groups of people out there: (1) those
-who will buy Cory's book whether or not it's on the Internet, and (2)
-those who may never hear of Cory's book, if it isn't made available for
-free on the Internet. Some part of (1) will download Cory's book
- instead
-of buying it. Call them bad-(1)s. Some part of (2) will download
-Cory's book, like it, and then decide to buy it. Call them (2)-goods.
-If there are more (2)-goods than bad-(1)s, the strategy of releasing
-Cory's book free on-line will probably increase sales of Cory's book.
+reasoned like this: There are two groups of people out there: (1)
+those who will buy Cory's book whether or not it's on the Internet,
+and (2) those who may never hear of Cory's book, if it isn't made
+available for free on the Internet. Some part of (1) will download
+Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
+will download Cory's book, like it, and then decide to buy it. Call
+them (2)-goods. If there are more (2)-goods than bad-(1)s, the
+strategy of releasing Cory's book free on-line will probably increase
+sales of Cory's book.
</para>
<para>
-Indeed, the experience of his publisher clearly supports that
- conclusion.
-The book's first printing was exhausted months before the
-publisher had expected. This first novel of a science fiction author was
-a total success.
+Indeed, the experience of his publisher clearly supports that
+conclusion. The book's first printing was exhausted months before the
+publisher had expected. This first novel of a science fiction author
+was a total success.
</para>
<para>
-The idea that free content might increase the value of nonfree
- content
+The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
<!-- PAGE BREAK 290 -->
who wrote a book about the free software movement titled Free for All,
well.
</para>
<para>
-These are examples of using the Commons to better spread
- proprietary
-content. I believe that is a wonderful and common use of the
-Commons. There are others who use Creative Commons licenses for
-other reasons. Many who use the "sampling license" do so because
- anything
-else would be hypocritical. The sampling license says that others
-are free, for commercial or noncommercial purposes, to sample content
-from the licensed work; they are just not free to make full copies of the
-licensed work available to others. This is consistent with their own
-art—they, too, sample from others. Because the legal costs of sampling
-are so high (Walter Leaphart, manager of the rap group Public Enemy,
-which was born sampling the music of others, has stated that he does
-not "allow" Public Enemy to sample anymore, because the legal costs
-are so high<footnote><para>
-<!-- f2. --> Willful Infringement: A Report from the Front Lines of the Real Culture Wars
-(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat
- Lucre
-production, available at
+These are examples of using the Commons to better spread
+proprietary content. I believe that is a wonderful and common use of
+the Commons. There are others who use Creative Commons licenses for
+other reasons. Many who use the "sampling license" do so because
+anything else would be hypocritical. The sampling license says that
+others are free, for commercial or noncommercial purposes, to sample
+content from the licensed work; they are just not free to make full
+copies of the licensed work available to others. This is consistent
+with their own art—they, too, sample from others. Because the
+legal costs of sampling are so high (Walter Leaphart, manager of the
+rap group Public Enemy, which was born sampling the music of others,
+has stated that he does not "allow" Public Enemy to sample anymore,
+because the legal costs are so high<footnote><para>
+<!-- f2. -->
+
+Willful Infringement: A Report from the Front Lines of the Real
+Culture Wars (2003), produced by Jed Horovitz, directed by Greg
+Hittelman, a Fiat Lucre production, available at
<ulink url="http://free-culture.cc/notes/">link #72</ulink>.
</para></footnote>),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
</para>
<para>
-Finally, there are many who mark their content with a Creative
-Commons license just because they want to express to others the
- importance
-of balance in this debate. If you just go along with the system
-as it is, you are effectively saying you believe in the "All Rights Reserved"
-model. Good for you, but many do not. Many believe that however
- appropriate
-that rule is for Hollywood and freaks, it is not an appropriate
-description of how most creators view the rights associated with their
-content. The Creative Commons license expresses this notion of "Some
-Rights Reserved," and gives many the chance to say it to others.
+Finally, there are many who mark their content with a Creative Commons
+license just because they want to express to others the importance of
+balance in this debate. If you just go along with the system as it is,
+you are effectively saying you believe in the "All Rights Reserved"
+model. Good for you, but many do not. Many believe that however
+appropriate that rule is for Hollywood and freaks, it is not an
+appropriate description of how most creators view the rights
+associated with their content. The Creative Commons license expresses
+this notion of "Some Rights Reserved," and gives many the chance to
+say it to others.
</para>
<para>
In the first six months of the Creative Commons experiment, over
steps are possible.
</para>
<para>
-Creative Commons is just one example of voluntary efforts by
- individuals
-and creators to change the mix of rights that now govern the
-creative field. The project does not compete with copyright; it
- complements
-it. Its aim is not to defeat the rights of authors, but to make it
-easier for authors and creators to exercise their rights more flexibly and
-cheaply. That difference, we believe, will enable creativity to spread
-more easily.
+Creative Commons is just one example of voluntary efforts by
+individuals and creators to change the mix of rights that now govern
+the creative field. The project does not compete with copyright; it
+complements it. Its aim is not to defeat the rights of authors, but to
+make it easier for authors and creators to exercise their rights more
+flexibly and cheaply. That difference, we believe, will enable
+creativity to spread more easily.
</para>
+<indexterm startref="idxcc" class='endofrange'/>
<!-- PAGE BREAK 292 -->
</sect2>
</para>
<para>
<!-- PAGE BREAK 293 -->
-These are all formalities associated with property. They are
- requirements
-that we all must bear if we want our property to be protected.
+These are all formalities associated with property. They are
+requirements that we all must bear if we want our property to be
+protected.
</para>
<para>
In contrast, under current copyright law, you automatically get a
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
- formalities
-were getting in the way.
+copyright owner must bear to protect and secure his work. Those
+formalities were getting in the way.
</para>
<para>
But the Internet changes all this. Formalities today need not be a
-burden. Rather, the world without formalities is the world that
- burdens
-creativity. Today, there is no simple way to know who owns what,
-or with whom one must deal in order to use or build upon the
- creative
-work of others. There are no records, there is no system to trace—
-there is no simple way to know how to get permission. Yet given the
-massive increase in the scope of copyright's rule, getting permission is
-a necessary step for any work that builds upon our past. And thus, the
-lack of formalities forces many into silence where they otherwise could
-speak.
+burden. Rather, the world without formalities is the world that
+burdens creativity. Today, there is no simple way to know who owns
+what, or with whom one must deal in order to use or build upon the
+creative work of others. There are no records, there is no system to
+trace— there is no simple way to know how to get permission. Yet
+given the massive increase in the scope of copyright's rule, getting
+permission is a necessary step for any work that builds upon our
+past. And thus, the lack of formalities forces many into silence where
+they otherwise could speak.
</para>
<para>
The law should therefore change this requirement<footnote><para>
-<!-- f1. --> The proposal I am advancing here would apply to American works only.
-Obviously, I believe it would be beneficial for the same idea to be adopted
-by other countries as well.
-</para></footnote>—but it should
-not change it by going back to the old, broken system. We should
- require
-formalities, but we should establish a system that will create the
-incentives to minimize the burden of these formalities.
-</para>
-<para>
-The important formalities are three: marking copyrighted work,
- registering
-copyrights, and renewing the claim to copyright. Traditionally,
-the first of these three was something the copyright owner did; the
- second
-two were something the government did. But a revised system of
-formalities would banish the government from the process, except for
-the sole purpose of approving standards developed by others.
+<!-- f1. -->
+The proposal I am advancing here would apply to American works only.
+Obviously, I believe it would be beneficial for the same idea to be
+adopted by other countries as well.</para></footnote>—but it
+should not change it by going back to the old, broken system. We
+should require formalities, but we should establish a system that will
+create the incentives to minimize the burden of these formalities.
+</para>
+<para>
+The important formalities are three: marking copyrighted work,
+registering copyrights, and renewing the claim to
+copyright. Traditionally, the first of these three was something the
+copyright owner did; the second two were something the government
+did. But a revised system of formalities would banish the government
+from the process, except for the sole purpose of approving standards
+developed by others.
</para>
<!-- PAGE BREAK 294 -->
<sect3 id="registration">
<title>REGISTRATION AND RENEWAL</title>
<para>
-Under the old system, a copyright owner had to file a registration with
-the Copyright Office to register or renew a copyright. When filing that
-registration, the copyright owner paid a fee. As with most government
-agencies, the Copyright Office had little incentive to minimize the
-burden of registration; it also had little incentive to minimize the fee.
-And as the Copyright Office is not a main target of government
- policymaking,
-the office has historically been terribly underfunded. Thus,
-when people who know something about the process hear this idea
-about formalities, their first reaction is panic—nothing could be worse
-than forcing people to deal with the mess that is the Copyright Office.
-</para>
-<para>
-Yet it is always astonishing to me that we, who come from a
- tradition
+Under the old system, a copyright owner had to file a registration
+with the Copyright Office to register or renew a copyright. When
+filing that registration, the copyright owner paid a fee. As with most
+government agencies, the Copyright Office had little incentive to
+minimize the burden of registration; it also had little incentive to
+minimize the fee. And as the Copyright Office is not a main target of
+government policymaking, the office has historically been terribly
+underfunded. Thus, when people who know something about the process
+hear this idea about formalities, their first reaction is
+panic—nothing could be worse than forcing people to deal with
+the mess that is the Copyright Office.
+</para>
+<para>
+Yet it is always astonishing to me that we, who come from a tradition
of extraordinary innovation in governmental design, can no longer
think innovatively about how governmental functions can be designed.
-Just because there is a public purpose to a government role, it doesn't
-follow that the government must actually administer the role. Instead,
-we should be creating incentives for private parties to serve the public,
-subject to standards that the government sets.
+Just because there is a public purpose to a government role, it
+doesn't follow that the government must actually administer the
+role. Instead, we should be creating incentives for private parties to
+serve the public, subject to standards that the government sets.
</para>
<para>
In the context of registration, one obvious model is the Internet.
There are at least 32 million Web sites registered around the world.
Domain name owners for these Web sites have to pay a fee to keep their
registration alive. In the main top-level domains (.com, .org, .net),
-there is a central registry. The actual registrations are, however,
- performed
-by many competing registrars. That competition drives the cost
-of registering down, and more importantly, it drives the ease with which
-registration occurs up.
+there is a central registry. The actual registrations are, however,
+performed by many competing registrars. That competition drives the
+cost of registering down, and more importantly, it drives the ease
+with which registration occurs up.
</para>
<para>
We should adopt a similar model for the registration and renewal of
-copyrights. The Copyright Office may well serve as the central registry,
-but it should not be in the registrar business. Instead, it should
- establish
-a database, and a set of standards for registrars. It should approve
-registrars that meet its standards. Those registrars would then compete
-with one another to deliver the cheapest and simplest systems for
- registering
-and renewing copyrights. That competition would
- substantially
-lower the burden of this formality—while producing a database
+copyrights. The Copyright Office may well serve as the central
+registry, but it should not be in the registrar business. Instead, it
+should establish a database, and a set of standards for registrars. It
+should approve registrars that meet its standards. Those registrars
+would then compete with one another to deliver the cheapest and
+simplest systems for registering and renewing copyrights. That
+competition would substantially lower the burden of this
+formality—while producing a database
<!-- PAGE BREAK 295 -->
of registrations that would facilitate the licensing of content.
</para>
<sect3 id="marking">
<title>MARKING</title>
<para>
-It used to be that the failure to include a copyright notice on a creative
-work meant that the copyright was forfeited. That was a harsh
- punishment
-for failing to comply with a regulatory rule—akin to imposing
-the death penalty for a parking ticket in the world of creative rights.
-Here again, there is no reason that a marking requirement needs to be
-enforced in this way. And more importantly, there is no reason a
- marking
-requirement needs to be enforced uniformly across all media.
+It used to be that the failure to include a copyright notice on a
+creative work meant that the copyright was forfeited. That was a harsh
+punishment for failing to comply with a regulatory rule—akin to
+imposing the death penalty for a parking ticket in the world of
+creative rights. Here again, there is no reason that a marking
+requirement needs to be enforced in this way. And more importantly,
+there is no reason a marking requirement needs to be enforced
+uniformly across all media.
</para>
<para>
-The aim of marking is to signal to the public that this work is
- copyrighted
-and that the author wants to enforce his rights. The mark also
-makes it easy to locate a copyright owner to secure permission to use
-the work.
+The aim of marking is to signal to the public that this work is
+copyrighted and that the author wants to enforce his rights. The mark
+also makes it easy to locate a copyright owner to secure permission to
+use the work.
</para>
<para>
One of the problems the copyright system confronted early on was
Let's start with the last point. If a copyright owner allows his work
to be published without a copyright notice, the consequence of that
failure need not be that the copyright is lost. The consequence could
-instead be that anyone has the right to use this work, until the
- copyright
-owner complains and demonstrates that it is his work and he
+instead be that anyone has the right to use this work, until the
+copyright owner complains and demonstrates that it is his work and he
doesn't give permission.<footnote><para>
-<!-- f2. --> There would be a complication with derivative works that I have not
+<!-- f2. -->
+There would be a complication with derivative works that I have not
solved here. In my view, the law of derivatives creates a more complicated
system than is justified by the marginal incentive it creates.
</para></footnote>
- The meaning of an unmarked work would
-therefore be "use unless someone complains." If someone does
- complain,
-then the obligation would be to stop using the work in any new
+The meaning of an unmarked work would therefore be "use unless someone
+complains." If someone does complain, then the obligation would be to
+stop using the work in any new
<!-- PAGE BREAK 296 -->
work from then on though no penalty would attach for existing uses.
This would create a strong incentive for copyright owners to mark
content that have been crafted elsewhere.
</para>
<para>
-For example, if a recording industry association devises a method
-for marking CDs, it would propose that to the Copyright Office. The
+For example, if a recording industry association devises a method for
+marking CDs, it would propose that to the Copyright Office. The
Copyright Office would hold a hearing, at which other proposals could
be made. The Copyright Office would then select the proposal that it
-judged preferable, and it would base that choice solely upon the
- consideration
-of which method could best be integrated into the registration
-and renewal system. We would not count on the government to
- innovate;
-but we would count on the government to keep the product of
- innovation
-in line with its other important functions.
+judged preferable, and it would base that choice solely upon the
+consideration of which method could best be integrated into the
+registration and renewal system. We would not count on the government
+to innovate; but we would count on the government to keep the product
+of innovation in line with its other important functions.
</para>
<para>
-Finally, marking content clearly would simplify registration
- requirements.
-If photographs were marked by author and year, there
-would be little reason not to allow a photographer to reregister, for
- example,
-all photographs taken in a particular year in one quick step. The
-aim of the formality is not to burden the creator; the system itself
-should be kept as simple as possible.
+Finally, marking content clearly would simplify registration
+requirements. If photographs were marked by author and year, there
+would be little reason not to allow a photographer to reregister, for
+example, all photographs taken in a particular year in one quick
+step. The aim of the formality is not to burden the creator; the
+system itself should be kept as simple as possible.
</para>
<para>
The objective of formalities is to make things clear. The existing
</para>
<para>
In The Future of Ideas, I proposed a seventy-five-year term, granted
-in five-year increments with a requirement of renewal every five years.
-That seemed radical enough at the time. But after we lost Eldred v.
-Ashcroft, the proposals became even more radical. The Economist
- endorsed
-a proposal for a fourteen-year copyright term.<footnote><para>
-<!-- f3. --> "A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, available
-at
+in five-year increments with a requirement of renewal every five
+years. That seemed radical enough at the time. But after we lost
+Eldred v. Ashcroft, the proposals became even more radical. The
+Economist endorsed a proposal for a fourteen-year copyright
+term.<footnote><para>
+<!-- f3. -->
+"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
+available at
<ulink url="http://free-culture.cc/notes/">link #74</ulink>.
</para></footnote>
- Others have
-proposed tying the term to the term for patents.
+Others have proposed tying the term to the term for patents.
</para>
<para>
-I agree with those who believe that we need a radical change in
- copyright's
-term. But whether fourteen years or seventy-five, there are four
-principles that are important to keep in mind about copyright terms.
+I agree with those who believe that we need a radical change in
+copyright's term. But whether fourteen years or seventy-five, there
+are four principles that are important to keep in mind about copyright
+terms.
</para>
<orderedlist numeration="arabic">
<listitem><para>
<!-- (1) -->
-Keep it short: The term should be as long as necessary to
-give incentives to create, but no longer. If it were tied to very
-strong protections for authors (so authors were able to reclaim
-rights from publishers), rights to the same work (not
- derivative
-works) might be extended further. The key is not to tie the
-work up with legal regulations when it no longer benefits an
-author.
-</para></listitem>
+Keep it short: The term should be as long as necessary to give
+incentives to create, but no longer. If it were tied to very strong
+protections for authors (so authors were able to reclaim rights from
+publishers), rights to the same work (not derivative works) might be
+extended further. The key is not to tie the work up with legal
+regulations when it no longer benefits an author. </para></listitem>
<listitem><para>
<!-- (2) -->
-Keep it simple: The line between the public domain and
-protected content must be kept clear. Lawyers like the
- fuzziness
-of "fair use," and the distinction between "ideas" and
- "expression."
-That kind of law gives them lots of work. But our
-framers had a simpler idea in mind: protected versus
- unprotected.
-The value of short terms is that there is little need to
-build exceptions into copyright when the term itself is kept
-short. A clear and active "lawyer-free zone" makes the
- complexities
-of "fair use" and "idea/expression" less necessary to
+Keep it simple: The line between the public domain and protected
+content must be kept clear. Lawyers like the fuzziness of "fair use,"
+and the distinction between "ideas" and "expression." That kind of
+law gives them lots of work. But our framers had a simpler idea in
+mind: protected versus unprotected. The value of short terms is that
+there is little need to build exceptions into copyright when the term
+itself is kept short. A clear and active "lawyer-free zone" makes the
+complexities of "fair use" and "idea/expression" less necessary to
navigate.
<!-- PAGE BREAK 298 -->
</para></listitem>
<listitem><para>
<!-- (3) -->
-Keep it alive: Copyright should have to be renewed.
- Especially
-if the maximum term is long, the copyright owner
-should be required to signal periodically that he wants the
-protection continued. This need not be an onerous burden,
-but there is no reason this monopoly protection has to be
-granted for free. On average, it takes ninety minutes for a
- veteran
-to apply for a pension.<footnote><para>
-<!-- f4. --> Department of Veterans Affairs, Veteran's Application for Compensation
+Keep it alive: Copyright should have to be renewed. Especially if the
+maximum term is long, the copyright owner should be required to signal
+periodically that he wants the protection continued. This need not be
+an onerous burden, but there is no reason this monopoly protection has
+to be granted for free. On average, it takes ninety minutes for a
+veteran to apply for a pension.<footnote><para>
+<!-- f4. -->
+Department of Veterans Affairs, Veteran's Application for Compensation
and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
available at
<ulink url="http://free-culture.cc/notes/">link #75</ulink>.
</para></footnote>
- If we make veterans suffer that
-burden, I don't see why we couldn't require authors to spend
-ten minutes every fifty years to file a single form.
+If we make veterans suffer that burden, I don't see why we couldn't
+require authors to spend ten minutes every fifty years to file a
+single form.
</para></listitem>
<listitem><para>
<!-- (4) -->
-Keep it prospective: Whatever the term of copyright should
-be, the clearest lesson that economists teach is that a term
-once given should not be extended. It might have been a
- mistake
-in 1923 for the law to offer authors only a fifty-six-year
-term. I don't think so, but it's possible. If it was a mistake, then
-the consequence was that we got fewer authors to create in
-1923 than we otherwise would have. But we can't correct that
-mistake today by increasing the term. No matter what we do
-today, we will not increase the number of authors who wrote
-in 1923. Of course, we can increase the reward that those who
-write now get (or alternatively, increase the copyright burden
-that smothers many works that are today invisible). But
- increasing
-their reward will not increase their creativity in 1923.
-What's not done is not done, and there's nothing we can do
-about that now.
-</para></listitem>
+Keep it prospective: Whatever the term of copyright should be, the
+clearest lesson that economists teach is that a term once given should
+not be extended. It might have been a mistake in 1923 for the law to
+offer authors only a fifty-six-year term. I don't think so, but it's
+possible. If it was a mistake, then the consequence was that we got
+fewer authors to create in 1923 than we otherwise would have. But we
+can't correct that mistake today by increasing the term. No matter
+what we do today, we will not increase the number of authors who wrote
+in 1923. Of course, we can increase the reward that those who write
+now get (or alternatively, increase the copyright burden that smothers
+many works that are today invisible). But increasing their reward will
+not increase their creativity in 1923. What's not done is not done,
+and there's nothing we can do about that now. </para></listitem>
</orderedlist>
<para>
These changes together should produce an average copyright term
the emergence of that new technology.
</para>
<para>
-Our Constitution gives Congress the power to give authors
- "exclusive
+Our Constitution gives Congress the power to give authors "exclusive
right" to "their writings." Congress has given authors an exclusive
-right to "their writings" plus any derivative writings (made by others) that
-are sufficiently close to the author's original work. Thus, if I write a book,
-and you base a movie on that book, I have the power to deny you the
-right to release that movie, even though that movie is not "my writing."
-</para>
-<para>
-Congress granted the beginnings of this right in 1870, when it
- expanded
-the exclusive right of copyright to include a right to control
-translations and dramatizations of a work.<footnote><para>
-<!-- f5. --> Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
+right to "their writings" plus any derivative writings (made by
+others) that are sufficiently close to the author's original
+work. Thus, if I write a book, and you base a movie on that book, I
+have the power to deny you the right to release that movie, even
+though that movie is not "my writing."
+</para>
+<para>
+Congress granted the beginnings of this right in 1870, when it
+expanded the exclusive right of copyright to include a right to
+control translations and dramatizations of a work.<footnote><para>
+<!-- f5. -->
+Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
University Press, 1967), 32.
</para></footnote>
- 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.
+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.
</para>
<blockquote>
<para>
Again, there are some cases in which derivative rights are important.
Those should be specified. But the law should draw clear lines around
regulated and unregulated uses of copyrighted material. When all
-"reuse" of creative material was within the control of businesses,
- perhaps
-it made sense to require lawyers to negotiate the lines. It no longer
-makes sense for lawyers to negotiate the lines. Think about all the
- creative
-possibilities that digital technologies enable; now imagine
- pouring
-molasses into the machines. That's what this general requirement
-of permission does to the creative process. Smothers it.
+"reuse" of creative material was within the control of businesses,
+perhaps it made sense to require lawyers to negotiate the lines. It no
+longer makes sense for lawyers to negotiate the lines. Think about all
+the creative possibilities that digital technologies enable; now
+imagine pouring molasses into the machines. That's what this general
+requirement of permission does to the creative process. Smothers it.
</para>
<para>
-This was the point that Alben made when describing the making of
-the Clint Eastwood CD. While it makes sense to require negotiation
-for foreseeable derivative rights—turning a book into a movie, or a
-poem into a musical score—it doesn't make sense to require
- negotiation
-for the unforeseeable. Here, a statutory right would make much
-more sense.
+This was the point that Alben made when describing the making of the
+Clint Eastwood CD. While it makes sense to require negotiation for
+foreseeable derivative rights—turning a book into a movie, or a
+poem into a musical score—it doesn't make sense to require
+negotiation for the unforeseeable. Here, a statutory right would make
+much more sense.
</para>
<para>
-In each of these cases, the law should mark the uses that are
- protected,
-and the presumption should be that other uses are not
- protected.
-This is the reverse of the recommendation of my colleague Paul
-Goldstein.<footnote><para>
-<!-- f7. --> Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
- Jukebox
-(Stanford: Stanford University Press, 2003), 187–216.
+In each of these cases, the law should mark the uses that are
+protected, and the presumption should be that other uses are not
+protected. This is the reverse of the recommendation of my colleague
+Paul Goldstein.<footnote>
+<para>
+<!-- f7. -->
+Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
+Jukebox (Stanford: Stanford University Press, 2003), 187–216.
+<indexterm><primary>Goldstein, Paul</primary></indexterm>
</para></footnote>
- His view is that the law should be written so that expanded
-protections follow expanded uses.
+His view is that the law should be written so that
+expanded protections follow expanded uses.
</para>
<para>
-Goldstein's analysis would make perfect sense if the cost of the
- legal
+Goldstein's analysis would make perfect sense if the cost of the legal
system were small. But as we are currently seeing in the context of
-the Internet, the uncertainty about the scope of protection, and the
- incentives
-to protect existing architectures of revenue, combined with a
-strong copyright, weaken the process of innovation.
+the Internet, the uncertainty about the scope of protection, and the
+incentives to protect existing architectures of revenue, combined with
+a strong copyright, weaken the process of innovation.
</para>
<para>
The law could remedy this problem either by removing protection
<!-- PAGE BREAK 301 -->
beyond the part explicitly drawn or by granting reuse rights upon
- certain
-statutory conditions. Either way, the effect would be to free a great
-deal of culture to others to cultivate. And under a statutory rights
-regime, that reuse would earn artists more income.
+certain statutory conditions. Either way, the effect would be to free
+a great deal of culture to others to cultivate. And under a statutory
+rights regime, that reuse would earn artists more income.
</para>
</sect2>
<sect2 id="liberatemusic">
<title>4. Liberate the Music—Again</title>
<para>
-The battle that got this whole war going was about music, so it wouldn't
-be fair to end this book without addressing the issue that is, to most
-people, most pressing—music. There is no other policy issue that
- better
-teaches the lessons of this book than the battles around the sharing
-of music.
+The battle that got this whole war going was about music, so it
+wouldn't be fair to end this book without addressing the issue that
+is, to most people, most pressing—music. There is no other
+policy issue that better teaches the lessons of this book than the
+battles around the sharing of music.
</para>
<para>
-The appeal of file-sharing music was the crack cocaine of the
- Internet's
-growth. It drove demand for access to the Internet more
- powerfully
-than any other single application. It was the Internet's killer
-app—possibly in two senses of that word. It no doubt was the
- application
-that drove demand for bandwidth. It may well be the application
-that drives demand for regulations that in the end kill innovation on
-the network.
-</para>
-<para>
-The aim of copyright, with respect to content in general and music
-in particular, is to create the incentives for music to be composed,
- performed,
-and, most importantly, spread. The law does this by giving
+The appeal of file-sharing music was the crack cocaine of the
+Internet's growth. It drove demand for access to the Internet more
+powerfully than any other single application. It was the Internet's
+killer app—possibly in two senses of that word. It no doubt was
+the application that drove demand for bandwidth. It may well be the
+application that drives demand for regulations that in the end kill
+innovation on the network.
+</para>
+<para>
+The aim of copyright, with respect to content in general and music in
+particular, is to create the incentives for music to be composed,
+performed, and, most importantly, spread. The law does this by giving
an exclusive right to a composer to control public performances of his
work, and to a performing artist to control copies of her performance.
</para>
<listitem><para>
<!-- PAGE BREAK 302 -->
<!-- C. -->
-There are many who are using file-sharing networks to get
- access
-to content that is no longer sold but is still under copyright
-or that would have been too cumbersome to buy off the Net.
+There are many who are using file-sharing networks to get access to
+content that is no longer sold but is still under copyright or that
+would have been too cumbersome to buy off the Net.
</para></listitem>
<listitem><para>
<!-- D. -->
-There are many who are using file-sharing networks to get
- access
-to content that is not copyrighted or to get access that the
-copyright owner plainly endorses.
+There are many who are using file-sharing networks to get access to
+content that is not copyrighted or to get access that the copyright
+owner plainly endorses.
</para></listitem>
</orderedlist>
<para>
significantly weakened.
</para>
<para>
-As I said in chapter 5, 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 networks.
+As I said in chapter 5, 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
+networks.
</para>
<para>
Nonetheless, there is a crucial fact about the current technological
should respond.
</para>
<para>
-Today, file sharing is addictive. In ten years, it won't be. It is addictive
-today because it is the easiest way to gain access to a broad range of
- content.
-It won't be the easiest way to get access to a broad range of content
-in ten years. Today, access to the Internet is cumbersome and slow—we
-in the United States are lucky to have broadband service at 1.5 MBs, and
-very rarely do we get service at that speed both up and down. Although
-wireless access is growing, most of us still get access across wires. Most
-only gain access through a machine with a keyboard. The idea of the
- always
-on, always connected Internet is mainly just an idea.
+Today, file sharing is addictive. In ten years, it won't be. It is
+addictive today because it is the easiest way to gain access to a
+broad range of content. It won't be the easiest way to get access to
+a broad range of content in ten years. Today, access to the Internet
+is cumbersome and slow—we in the United States are lucky to have
+broadband service at 1.5 MBs, and very rarely do we get service at
+that speed both up and down. Although wireless access is growing, most
+of us still get access across wires. Most only gain access through a
+machine with a keyboard. The idea of the always on, always connected
+Internet is mainly just an idea.
</para>
<para>
But it will become a reality, and that means the way we get access to
not make policy on the basis of technology in transition. They should
<!-- PAGE BREAK 303 -->
make policy on the basis of where the technology is going. The
- question
-should not be, how should the law regulate sharing in this world?
-The question should be, what law will we require when the network
-becomes the network it is clearly becoming? That network is one in
-which every machine with electricity is essentially on the Net; where
-everywhere you are—except maybe the desert or the Rockies—you can
-instantaneously be connected to the Internet. Imagine the Internet as
-ubiquitous as the best cell-phone service, where with the flip of a
- device,
-you are connected.
-</para>
-<para>
-In that world, it will be extremely easy to connect to services that
-give you access to content on the fly—such as Internet radio, content
-that is streamed to the user when the user demands. Here, then, is the
-critical point: When it is extremely easy to connect to services that give
-access to content, it will be easier to connect to services that give you
-access to content than it will be to download and store content on the
-many devices you will have for playing content. It will be easier, in other
-words, to subscribe than it will be to be a database manager, as
- everyone
-in the download-sharing world of Napster-like technologies
- essentially
-is. Content services will compete with content sharing, even if
-the services charge money for the content they give access to. Already
-cell-phone services in Japan offer music (for a fee) streamed over cell
-phones (enhanced with plugs for headphones). The Japanese are
- paying
-for this content even though "free" content is available in the form
-of MP3s across the Web.<footnote><para>
-<!-- f8. --> See, for example, "Music Media Watch," The J@pan Inc. Newsletter,
-3 April 2002, available at
+question should not be, how should the law regulate sharing in this
+world? The question should be, what law will we require when the
+network becomes the network it is clearly becoming? That network is
+one in which every machine with electricity is essentially on the Net;
+where everywhere you are—except maybe the desert or the
+Rockies—you can instantaneously be connected to the
+Internet. Imagine the Internet as ubiquitous as the best cell-phone
+service, where with the flip of a device, you are connected.
+</para>
+<para>
+In that world, it will be extremely easy to connect to services
+that give you access to content on the fly—such as Internet
+radio, content that is streamed to the user when the user
+demands. Here, then, is the critical point: When it is extremely easy
+to connect to services that give access to content, it will be easier
+to connect to services that give you access to content than it will be
+to download and store content on the many devices you will have for
+playing content. It will be easier, in other words, to subscribe than
+it will be to be a database manager, as everyone in the
+download-sharing world of Napster-like technologies essentially
+is. Content services will compete with content sharing, even if the
+services charge money for the content they give access to. Already
+cell-phone services in Japan offer music (for a fee) streamed over
+cell phones (enhanced with plugs for headphones). The Japanese are
+paying for this content even though "free" content is available in the
+form of MP3s across the Web.<footnote><para>
+<!-- f8. -->
+See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
+April 2002, available at
<ulink url="http://free-culture.cc/notes/">link #76</ulink>.
</para></footnote>
his being compensated is less than ideal.
</para>
<para>
-The model of used book stores suggests that the law could simply
-deem out-of-print music fair game. If the publisher does not make
-copies of the music available for sale, then commercial and
- noncommercial
+The model of used book stores suggests that the law could simply deem
+out-of-print music fair game. If the publisher does not make copies of
+the music available for sale, then commercial and noncommercial
providers would be free, under this rule, to "share" that content,
-even though the sharing involved making a copy. The copy here would
-be incidental to the trade; in a context where commercial publishing
-has ended, trading music should be as free as trading books.
+even though the sharing involved making a copy. The copy here would be
+incidental to the trade; in a context where commercial publishing has
+ended, trading music should be as free as trading books.
</para>
<para>
</para>
<para>
The idea would be a modification of a proposal that has been
-floated by Harvard law professor William Fisher.<footnote><para>
+floated by Harvard law professor William Fisher.<footnote>
+<para>
<!-- f9. --> William Fisher, Digital Music: Problems and Possibilities (last revised:
10 October 2000), available at
<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William Fisher, Promises to Keep:
<ulink url="http://free-culture.cc/notes/">link #82</ulink>; Steven M. Cherry, "Getting Copyright Right,"
IEEE Spectrum Online, 1 July 2002, available at
<ulink url="http://free-culture.cc/notes/">link #83</ulink>; Declan
- McCullagh,
-"Verizon's Copyright Campaign," CNET News.com, 27 August
+McCullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August
2002, available at
<ulink url="http://free-culture.cc/notes/">link #84</ulink>.
Fisher's proposal is very similar to Richard Stallman's proposal for
DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
proportionally, though more popular artists would get more than the less
popular. As is typical with Stallman, his proposal predates the current
- debate
-by about a decade. See
+debate by about a decade. See
<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<indexterm><primary>Fisher, William</primary></indexterm>
</para></footnote>
- Fisher suggests a
-very clever way around the current impasse of the Internet. Under his
-plan, all content capable of digital transmission would (1) be marked
-with a digital watermark (don't worry about how easy it is to evade
-these marks; as you'll see, there's no incentive to evade them). Once the
-content is marked, then entrepreneurs would develop (2) systems to
-monitor how many items of each content were distributed. On the
- basis
-of those numbers, then (3) artists would be compensated. The
- compensation
-would be paid for by (4) an appropriate tax.
+Fisher suggests a very clever way around the current impasse of the
+Internet. Under his plan, all content capable of digital transmission
+would (1) be marked with a digital watermark (don't worry about how
+easy it is to evade these marks; as you'll see, there's no incentive
+to evade them). Once the content is marked, then entrepreneurs would
+develop (2) systems to monitor how many items of each content were
+distributed. On the basis of those numbers, then (3) artists would be
+compensated. The compensation would be paid for by (4) an appropriate
+tax.
</para>
<para>
Fisher's proposal is careful and comprehensive. It raises a million
questions, most of which he answers well in his upcoming book,
-Promises to Keep. The modification that I would make is relatively
- simple:
-Fisher imagines his proposal replacing the existing copyright
- system.
-I imagine it complementing the existing system. The aim of the
-proposal would be to facilitate compensation to the extent that harm
-could be shown. This compensation would be temporary, aimed at
- facilitating
-a transition between regimes. And it would require renewal
-after a period of years. If it continues to make sense to facilitate free
- exchange
-of content, supported through a taxation system, then it can be
-continued. If this form of protection is no longer necessary, then the
-system could lapse into the old system of controlling access.
-</para>
-<para>
-Fisher would balk at the idea of allowing the system to lapse. His
-aim is not just to ensure that artists are paid, but also to ensure that the
-system supports the widest range of "semiotic democracy" possible. But
-the aims of semiotic democracy would be satisfied if the other changes
-I described were accomplished—in particular, the limits on derivative
+Promises to Keep. The modification that I would make is relatively
+simple: Fisher imagines his proposal replacing the existing copyright
+system. I imagine it complementing the existing system. The aim of
+the proposal would be to facilitate compensation to the extent that
+harm could be shown. This compensation would be temporary, aimed at
+facilitating a transition between regimes. And it would require
+renewal after a period of years. If it continues to make sense to
+facilitate free exchange of content, supported through a taxation
+system, then it can be continued. If this form of protection is no
+longer necessary, then the system could lapse into the old system of
+controlling access.
+</para>
+<para>
+Fisher would balk at the idea of allowing the system to lapse. His aim
+is not just to ensure that artists are paid, but also to ensure that
+the system supports the widest range of "semiotic democracy"
+possible. But the aims of semiotic democracy would be satisfied if the
+other changes I described were accomplished—in particular, the
+limits on derivative
<!-- PAGE BREAK 307 -->
uses. A system that simply charges for access would not greatly burden
-semiotic democracy if there were few limitations on what one was
- allowed
-to do with the content itself.
+semiotic democracy if there were few limitations on what one was
+allowed to do with the content itself.
</para>
<para>
No doubt it would be difficult to calculate the proper measure of
</para></listitem>
</orderedlist>
<para>
-But what if "piracy" doesn't disappear? What if there is a
- competitive
+But what if "piracy" doesn't disappear? What if there is a competitive
market providing content at a low cost, but a significant number of
consumers continue to "take" content for nothing? Should the law do
something then?
</para>
<para>
Yes, it should. But, again, what it should do depends upon how the
-facts develop. These changes may not eliminate type A sharing. But
-the real issue is not whether it eliminates sharing in the abstract.
-The real issue is its effect on the market. Is it better (a) to have a
- technology
-that is 95 percent secure and produces a market of size x, or
-(b) to have a technology that is 50 percent secure but produces a
- market
-of five times x? Less secure might produce more unauthorized
-sharing, but it is likely to also produce a much bigger market in
- authorized
-sharing. The most important thing is to assure artists'
- compensation
-without breaking the Internet. Once that's assured, then it
-may well be appropriate to find ways to track down the petty pirates.
+facts develop. These changes may not eliminate type A sharing. But the
+real issue is not whether it eliminates sharing in the abstract. The
+real issue is its effect on the market. Is it better (a) to have a
+technology that is 95 percent secure and produces a market of size x,
+or (b) to have a technology that is 50 percent secure but produces a
+market of five times x? Less secure might produce more unauthorized
+sharing, but it is likely to also produce a much bigger market in
+authorized sharing. The most important thing is to assure artists'
+compensation without breaking the Internet. Once that's assured, then
+it may well be appropriate to find ways to track down the petty
+pirates.
</para>
<para>
But we're a long way away from whittling the problem down to this
-subset of type A sharers. And our focus until we're there should not be
-on finding ways to break the Internet. Our focus until we're there
+subset of type A sharers. And our focus until we're there should not
+be on finding ways to break the Internet. Our focus until we're there
<!-- PAGE BREAK 309 -->
-should be on how to make sure the artists are paid, while protecting the
-space for innovation and creativity that the Internet is.
+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>
</para>
<para>
Yet much of this book has been a criticism of lawyers, or the role
-lawyers have played in this debate. The law speaks to ideals, but it is
-my view that our profession has become too attuned to the client. And
-in a world where the rich clients have one strong view, the
- unwillingness
-of the profession to question or counter that one strong view queers
-the law.
-</para>
-<para>
-The evidence of this bending is compelling. I'm attacked as a
- "radical"
-by many within the profession, yet the positions that I am
- advocating
-are precisely the positions of some of the most moderate and
-significant figures in the history of this branch of the law. Many, for
- example,
-thought crazy the challenge that we brought to the Copyright
-Term Extension Act. Yet just thirty years ago, the dominant scholar
-and practitioner in the field of copyright, Melville Nimmer, thought it
-obvious.<footnote><para>
-<!-- f10. --> Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
+lawyers have played in this debate. The law speaks to ideals, but it
+is my view that our profession has become too attuned to the
+client. And in a world where the rich clients have one strong view,
+the unwillingness of the profession to question or counter that one
+strong view queers the law.
+</para>
+<para>
+The evidence of this bending is compelling. I'm attacked as a
+"radical" by many within the profession, yet the positions that I am
+advocating are precisely the positions of some of the most moderate
+and significant figures in the history of this branch of the
+law. Many, for example, thought crazy the challenge that we brought to
+the Copyright Term Extension Act. Yet just thirty years ago, the
+dominant scholar and practitioner in the field of copyright, Melville
+Nimmer, thought it obvious.<footnote><para>
+<!-- f10. -->
+Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
</para></footnote>
about our failure to actually reckon the costs of the law.
</para>
<para>
-Economists are supposed to be good at reckoning costs and
- benefits.
-But more often than not, economists, with no clue about how the
-legal system actually functions, simply assume that the transaction
-costs of the legal system are slight.<footnote><para>
-<!-- f11. --> A good example is the work of Professor Stan Liebowitz. Liebowitz is to
-be commended for his careful review of data about infringement, leading
-him to question his own publicly stated position—twice. He initially
- predicted
-that downloading would substantially harm the industry. He then
-revised his view in light of the data, and he has since revised his view again.
-Compare Stan J. Liebowitz, Rethinking the Network Economy: The True
-Forces That Drive the Digital Marketplace (New York: Amacom, 2002),
-(reviewing his original view but expressing skepticism) with Stan J.
-Liebowitz, "Will MP3s Annihilate the Record Industry?" working paper,
-June 2003, available at
+Economists are supposed to be good at reckoning costs and benefits.
+But more often than not, economists, with no clue about how the legal
+system actually functions, simply assume that the transaction costs of
+the legal system are slight.<footnote><para>
+<!-- f11. -->
+A good example is the work of Professor Stan Liebowitz. Liebowitz is
+to be commended for his careful review of data about infringement,
+leading him to question his own publicly stated
+position—twice. He initially predicted that downloading would
+substantially harm the industry. He then revised his view in light of
+the data, and he has since revised his view again. Compare Stan
+J. Liebowitz, Rethinking the Network Economy: The True Forces That
+Drive the Digital Marketplace (New York: Amacom, 2002), (reviewing his
+original view but expressing skepticism) with Stan J. Liebowitz,
+"Will MP3s Annihilate the Record Industry?" working paper, June 2003,
+available at
<ulink url="http://free-culture.cc/notes/">link #86</ulink>.
-Liebowitz's careful analysis is extremely valuable in estimating the
- effect
-of file-sharing technology. In my view, however, he underestimates the
-costs of the legal system. See, for example, Rethinking, 174–76.
+Liebowitz's careful analysis is extremely valuable in estimating the
+effect of file-sharing technology. In my view, however, he
+underestimates the costs of the legal system. See, for example,
+Rethinking, 174–76.
</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 them it works.
+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
+them it works.
</para>
<para>
<!-- PAGE BREAK 310 -->
-But the legal system doesn't work. Or more accurately, it doesn't
-work for anyone except those with the most resources. Not because the
-system is corrupt. I don't think our legal system (at the federal level, at
-least) is at all corrupt. I mean simply because the costs of our legal
- system
-are so astonishingly high that justice can practically never be done.
+But the legal system doesn't work. Or more accurately, it doesn't work
+for anyone except those with the most resources. Not because the
+system is corrupt. I don't think our legal system (at the federal
+level, at least) is at all corrupt. I mean simply because the costs of
+our legal system are so astonishingly high that justice can
+practically never be done.
</para>
<para>
These costs distort free culture in many ways. A lawyer's time is
billed at the largest firms at more than $400 per hour. How much time
-should such a lawyer spend reading cases carefully, or researching
- obscure
-strands of authority? The answer is the increasing reality: very
- little.
-The law depended upon the careful articulation and development
-of doctrine, but the careful articulation and development of legal
- doctrine
-depends upon careful work. Yet that careful work costs too much,
-except in the most high-profile and costly cases.
+should such a lawyer spend reading cases carefully, or researching
+obscure strands of authority? The answer is the increasing reality:
+very little. The law depended upon the careful articulation and
+development of doctrine, but the careful articulation and development
+of legal doctrine depends upon careful work. Yet that careful work
+costs too much, except in the most high-profile and costly cases.
</para>
<para>
The costliness and clumsiness and randomness of this system mock
and inexpensive, and hence radically more just.
</para>
<para>
-But until that reform is complete, we as a society should keep the
-law away from areas that we know it will only harm. And that is
- precisely
-what the law will too often do if too much of our culture is left
-to its review.
+But until that reform is complete, we as a society should keep the law
+away from areas that we know it will only harm. And that is precisely
+what the law will too often do if too much of our culture is left to
+its review.
</para>
<para>
-Think about the amazing things your kid could do or make with
-digital technology—the film, the music, the Web page, the blog. Or
-think about the amazing things your community could facilitate with
-digital technology—a wiki, a barn raising, activism to change
- something.
-Think about all those creative things, and then imagine cold
-molasses poured onto the machines. This is what any regime that
- requires
-permission produces. Again, this is the reality of Brezhnev's
-Russia.
+Think about the amazing things your kid could do or make with digital
+technology—the film, the music, the Web page, the blog. Or think
+about the amazing things your community could facilitate with digital
+technology—a wiki, a barn raising, activism to change something.
+Think about all those creative things, and then imagine cold molasses
+poured onto the machines. This is what any regime that requires
+permission produces. Again, this is the reality of Brezhnev's Russia.
</para>
<para>
The law should regulate in certain areas of culture—but it should
<chapter id="c-notes">
<title>NOTES</title>
<para>
-Throughout this text, there are references to links on the World Wide Web. As
-anyone who has tried to use the Web knows, these links can be highly unstable. I
-have tried to remedy the instability by redirecting readers to the original source
-through the Web site associated with this book. For each link below, you can go to
-http://free-culture.cc/notes and locate the original source by clicking on the
-number after the # sign. If the original link remains alive, you will be redirected to
-that link. If the original link has disappeared, you will be redirected to an
- appropriate
-reference for the material.
+Throughout this text, there are references to links on the World Wide
+Web. As anyone who has tried to use the Web knows, these links can be
+highly unstable. I have tried to remedy the instability by redirecting
+readers to the original source through the Web site associated with
+this book. For each link below, you can go to
+http://free-culture.cc/notes and locate the original source by
+clicking on the number after the # sign. If the original link remains
+alive, you will be redirected to that link. If the original link has
+disappeared, you will be redirected to an appropriate reference for
+the material.
</para>
<!-- PAGE BREAK 336 -->
</para>
<para>
I received guidance in various places from friends and academics,
-including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard
-Posner, Mark Rose, and Kathleen Sullivan. And I received correction
-and guidance from many amazing students at Stanford Law School
-and Stanford University. They included Andrew B. Coan, John Eden,
-James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert
- Hallman,
-Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum,
-Alina Ng, and Erica Platt. I am particularly grateful to Catherine
-Crump and Harry Surden, who helped direct their research, and to
-Laura Lynch, who brilliantly managed the army that they assembled,
-and provided her own critical eye on much of this.
+including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
+Mark Rose, and Kathleen Sullivan. And I received correction and
+guidance from many amazing students at Stanford Law School and
+Stanford University. They included Andrew B. Coan, John Eden, James
+P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
+Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
+Erica Platt. I am particularly grateful to Catherine Crump and Harry
+Surden, who helped direct their research, and to Laura Lynch, who
+brilliantly managed the army that they assembled, and provided her own
+critical eye on much of this.
</para>
<para>
Yuko Noguchi helped me to understand the laws of Japan as well as
Yamagami for their generous help while I was there.
</para>
<para>
-These are the traditional sorts of help that academics regularly
-draw upon. But in addition to them, the Internet has made it possible
-to receive advice and correction from many whom I have never even
-met. Among those who have responded with extremely helpful advice
-to requests on my blog about the book are Dr. Mohammad Al-Ubaydli,
-David Gerstein, and Peter DiMauro, as well as a long list of those who
-had specific ideas about ways to develop my argument. They included
-Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob
-Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy
-Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James
- Lindenschmidt,
-K. L. Mann, Mark Manning, Nora McCauley, Jeffrey
-McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D.
-Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack,
-Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina,
-Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger
-Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have
-missed anyone; with computers come glitches, and a crash of my
-e-mail system meant I lost a bunch of great replies.)
-</para>
-<para>
-Richard Stallman and Michael Carroll each read the whole book
-in draft, and each provided extremely helpful correction and advice.
-Michael helped me to see more clearly the significance of the
- regulation
-of derivitive works. And Richard corrected an embarrassingly large
-number of errors. While my work is in part inspired by Stallman's, he
-does not agree with me in important places throughout this book.
-</para>
-<para>
-Finally, and forever, I am thankful to Bettina, who has always
- insisted
-that there would be unending happiness away from these battles,
-and who has always been right. This slow learner is, as ever, grateful for
-her perpetual patience and love.
+These are the traditional sorts of help that academics regularly draw
+upon. But in addition to them, the Internet has made it possible to
+receive advice and correction from many whom I have never even
+met. Among those who have responded with extremely helpful advice to
+requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
+Gerstein, and Peter DiMauro, as well as a long list of those who had
+specific ideas about ways to develop my argument. They included
+Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
+Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
+Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
+K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
+McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
+Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
+Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
+Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
+and Richard Yanco. (I apologize if I have missed anyone; with
+computers come glitches, and a crash of my e-mail system meant I lost
+a bunch of great replies.)
+</para>
+<para>
+Richard Stallman and Michael Carroll each read the whole book in
+draft, and each provided extremely helpful correction and advice.
+Michael helped me to see more clearly the significance of the
+regulation of derivitive works. And Richard corrected an
+embarrassingly large number of errors. While my work is in part
+inspired by Stallman's, he does not agree with me in important places
+throughout this book.
+</para>
+<para>
+Finally, and forever, I am thankful to Bettina, who has always
+insisted that there would be unending happiness away from these
+battles, and who has always been right. This slow learner is, as ever,
+grateful for her perpetual patience and love.
</para>
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projects / text-free-culture-lessig.git / blobdiff