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</author>
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-<copyright>
- <year>2004</year>
- <holder>Lawrence Lessig</holder>
-</copyright>
-
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+ <subjectset scheme="libraryofcongress">
+ <subject>
+ <subjectterm>Intellectual property—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Mass media—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Technological innovations—United States.</subjectterm>
+ </subject>
+ <subject>
+ <subjectterm>Art—United States.</subjectterm>
+ </subject>
+ </subjectset>
+
+
+ <publisher>
+ <publishername>The Penguin Press</publishername>
+ <address><city>New York</city></address>
+ </publisher>
+
+ <copyright>
+ <year>2004</year>
+ <holder>Lawrence Lessig</holder>
+ </copyright>
<legalnotice>
- <para>
-This version of Free Culture is licensed under a Creative Commons
-license. This license permits non-commercial use of this work, so long
-as attribution is given. For more information about the license,
-click the icon above, or visit
+ <para>
+ <inlinemediaobject>
+ <imageobject>
+ <imagedata fileref="images/cc.png" contentdepth="3em" width="100%" align="center"/>
+ </imageobject>
+ <imageobject>
+ <imagedata fileref="images/cc.svg" contentdepth="3em" width="100%" align="center"/>
+ </imageobject>
+ <textobject>
+ <phrase>Creative Commons, Some rights reserved</phrase>
+ </textobject>
+ </inlinemediaobject>
+ </para>
+
+ <para>
+This version of <citetitle>Free Culture</citetitle> is licensed under
+a Creative Commons license. This license permits non-commercial use of
+this work, so long as attribution is given. For more information
+about the license, click the icon above, or visit
<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
- </para>
+ </para>
</legalnotice>
<abstract>
<title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
-(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
+(<ulink url="http://www.lessig.org">http://www.lessig.org</ulink>),
professor of law and a John A. Wilson Distinguished Faculty Scholar
at Stanford Law School, is founder of the Stanford Center for Internet
and Society and is chairman of the Creative Commons
-(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
+(<ulink url="http://creativecommons.org">http://creativecommons.org</ulink>).
The author of The Future of Ideas (Random House, 2001) and Code: And
Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
the boards of the Public Library of Science, the Electronic Frontier
Appeals.
</para>
</abstract>
-</bookinfo>
-<colophon>
-<!-- PAGE BREAK 1 -->
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+
+ <biblioid class="isbn">1-59420-006-8</biblioid>
+<!-- LCCN from
+ http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page
+ -->
+ <biblioid class="libraryofcongress">2003063276</biblioid>
+
+</bookinfo>
+<!--PAGE BREAK 1-->
+<dedication id="salespoints">
+<title></title>
<para>
You can buy a copy of this book by clicking on one of the links below:
</para>
<listitem><para><ulink url="http://www.penguin.com/">Penguin</ulink></para></listitem>
<!-- <ulink url="">Local Bookstore</ulink> -->
</itemizedlist>
+</dedication>
<!-- PAGE BREAK 2 -->
-
<!-- PAGE BREAK 3 -->
+<dedication id="alsobylessig">
+<title></title>
<para>
ALSO BY LAWRENCE LESSIG
</para>
<para>
Code: And Other Laws of Cyberspace
</para>
-
+</dedication>
<!-- PAGE BREAK 4 -->
+<dedication id="frontpublisher">
+<title></title>
<para>
THE PENGUIN PRESS, NEW YORK
</para>
-
+</dedication>
<!-- PAGE BREAK 5 -->
+<dedication id="frontbookinfo">
+<title></title>
<para>
FREE CULTURE
</para>
<para>
LAWRENCE LESSIG
</para>
-
+</dedication>
<!-- PAGE BREAK 6 -->
+<colophon>
<para>
THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New
York, New York
</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.
+<citetitle>The New York Times</citetitle>, January 16, 2003. Copyright
+© 2003 by The New York Times Co. Reprinted with permission.
</para>
<para>
Cartoon in <xref linkend="fig-1711"/> by Paul Conrad, copyright Tribune
<para>
ISBN 1-59420-006-8 (hardcover)
</para>
+
<para>
1. Intellectual property—United States. 2. Mass media—United States.
</para>
retrieval system, or transmitted, in any form or by any means
(electronic, mechanical, photocopying, recording or otherwise),
without the prior written permission of both the copyright owner and
-the above publisher of this book. The scanning, uploading, and
-distribution of this book via the Internet or via any other means
-without the permission of the publisher is illegal and punishable by
-law. Please purchase only authorized electronic editions and do not
-participate in or encourage electronic piracy of copyrighted
-materials. Your support of the author's rights is appreciated.
+the above publisher of this book.
+</para>
+<para>
+The scanning, uploading, and distribution of this book via the
+Internet or via any other means without the permission of the
+publisher is illegal and punishable by law. Please purchase only
+authorized electronic editions and do not participate in or encourage
+electronic piracy of copyrighted materials. Your support of the
+author's rights is appreciated.
</para>
</colophon>
<!-- PAGE BREAK 7 -->
-<dedication>
+<dedication><title></title>
<para>
To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
</para>
-
-<para>
-<figure id="CreativeCommons">
-<title>Creative Commons, Some rights reserved</title>
-<graphic fileref="images/cc.png"></graphic>
-</figure>
-</para>
</dedication>
<toc id="toc"></toc>
<primary>Pogue, David</primary>
</indexterm>
<para>
-At the end of his review of my first book, Code: And Other Laws of
-Cyberspace, David Pogue, a brilliant writer and author of countless
-technical and computer-related texts, wrote this:
+At the end of his review of my first book, <citetitle>Code: And Other
+Laws of Cyberspace</citetitle>, David Pogue, a brilliant writer and
+author of countless technical and computer-related texts, wrote this:
</para>
<blockquote>
<para>
doesn't affect people who aren't online (and only a tiny minority
of the world population is). And if you don't like the Internet's
system, you can always flip off the modem.<footnote id="preface01"><para>
-David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
+David Pogue, "Don't Just Chat, Do Something," <citetitle>New York Times</citetitle>, 30 January 2000.
</para></footnote>
</para>
</blockquote>
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.
+any troubles that exist in <emphasis>that</emphasis> space wouldn't
+"affect" us anymore.
</para>
<para>
Pogue might have been right in 1999—I'm skeptical, but maybe.
-But even if he was right then, the point is not right now: Free Culture
-is about the troubles the Internet causes even after the modem is turned
-<!-- PAGE BREAK 12 -->
+But even if he was right then, the point is not right now:
+<citetitle>Free Culture</citetitle> is about the troubles the Internet
+causes even after the modem is turned
+<!--PAGE BREAK 12-->
off. It is an argument about how the battles that now rage regarding life
on-line have fundamentally affected "people who aren't online." There
is no switch that will insulate us from the Internet's effect.
</para>
<indexterm startref="idxpoguedavid" class='endofrange'/>
<para>
-But unlike Code, the argument here is not much about the Internet
-itself. It is instead about the consequence of the Internet to a part of
-our tradition that is much more fundamental, and, as hard as this is for
-a geek-wanna-be to admit, much more important.
+But unlike <citetitle>Code</citetitle>, the argument here is not much
+about the Internet itself. It is instead about the consequence of the
+Internet to a part of our tradition that is much more fundamental,
+and, as hard as this is for a geek-wanna-be to admit, much more
+important.
</para>
<para>
That tradition is the way our culture gets made. As I explain in the
"free" as in "free beer" (to borrow a phrase from the founder of the
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
-trade," "free enterprise," "free will," and "free elections." A free
-culture supports and protects creators and innovators. It does this
-directly by granting intellectual property rights. But it does so
+Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 (Joshua Gay, ed. 2002).
+</para></footnote>), but "free" as in "free speech," "free markets,"
+"free trade," "free enterprise," "free will," and "free elections." A
+free culture supports and protects creators and innovators. It does
+this directly by granting intellectual property rights. But it does so
indirectly by limiting the reach of those rights, to guarantee that
-follow-on creators and innovators remain as free as possible from the
-control of the past. A free culture is not a culture without property,
-just as a free market is not a market in which everything is free. The
-opposite of a free culture is a "permission culture"—a culture in
-which creators get to create only with the permission of the powerful,
-or of creators from the past.
+follow-on creators and innovators remain <emphasis>as free as
+possible</emphasis> from the control of the past. A free culture is
+not a culture without property, just as a free market is not a market
+in which everything is free. The opposite of a free culture is a
+"permission culture"—a culture in which creators get to create
+only with the permission of the powerful, or of creators from the
+past.
</para>
<para>
If we understood this change, I believe we would resist it. Not "we"
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy.<footnote><para> William Safire,
-"The Great Media Gulp," New York Times, 22 May 2003.
+"The Great Media Gulp," <citetitle>New York Times</citetitle>, 22 May 2003.
<indexterm><primary>Safire, William</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
-This idea is an element of the argument of Free Culture, though my
+This idea is an element of the argument of <citetitle>Free Culture</citetitle>, though my
focus is not just on the concentration of power produced by
concentrations in ownership, but more importantly, if because less
visibly, on the concentration of power produced by a radical change in
Safire's left or on his right. The inspiration for the title and for
much of the argument of this book comes from the work of Richard
Stallman and the Free Software Foundation. Indeed, as I reread
-Stallman's own work, especially the essays in Free Software, Free
-Society, I realize that all of the theoretical insights I develop here
+Stallman's own work, especially the essays in <citetitle>Free Software, Free
+Society</citetitle>, I realize that all of the theoretical insights I develop here
are insights Stallman described decades ago. One could thus well argue
that this work is "merely" derivative.
</para>
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 -->
+<!--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
to understand. A free culture is not a culture without property; it is not
<!-- PAGE BREAK 15 -->
<!-- PAGE BREAK 16 -->
-<chapter id="c-introduction">
+<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
<para>
On December 17, 1903, on a windy North Carolina beach for just
law held that a property owner presumptively owned not just the surface
of his land, but all the land below, down to the center of the earth,
and all the space above, to "an indefinite extent, upwards."<footnote><para>
-St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
+St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
</para></footnote>
For many
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),
+Authorship," <citetitle>Stanford Law Review</citetitle> 48 (1996): 1293, 1333. See also Paul
+Goldstein, <citetitle>Real Property</citetitle> (Mineola, N.Y.: Foundation Press, 1984),
1112–13.
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
This is how the law usually works. Not often this abruptly or
impatiently, but eventually, this is how it works. It was Douglas's style not to
dither. Other justices would have blathered on for pages to reach the
-<!-- PAGE BREAK 18 -->
+<!--PAGE BREAK 18-->
conclusion that Douglas holds in a single line: "Common sense revolts
at the idea." But whether it takes pages or a few words, it is the special
genius of a common law system, as ours is, that the law adjusts to the
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was crumpled
+sounded like a glass of water being poured. … A paper was crumpled
and torn; it sounded like paper and not like a crackling forest
-fire. . . . Sousa marches were played from records and a piano solo
-and guitar number were performed. . . . The music was projected with a
+fire. … Sousa marches were played from records and a piano solo
+and guitar number were performed. … The music was projected with a
live-ness rarely if ever heard before from a radio "music
box."<footnote><para>
-Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
</para>
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 -->
+<!--PAGE BREAK 20-->
</para>
<para>
RCA's president, David Sarnoff, a friend of Armstrong's, was eager
The forces for FM, largely engineering, could not overcome the weight
of strategy devised by the sales, patent, and legal offices to subdue
this threat to corporate position. For FM, if allowed to develop
-unrestrained, posed . . . a complete reordering of radio power
-. . . and the eventual overthrow of the carefully restricted AM system
+unrestrained, posed … a complete reordering of radio power
+… and the eventual overthrow of the carefully restricted AM system
on which RCA had grown to power.<footnote><para>Lessing, 226.
</para></footnote>
</para>
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 -->
+<!--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.
street corners telling stories that kids and others consumed, that was
noncommercial culture. When Noah Webster published his "Reader," or
Joel Barlow his poetry, that was commercial culture.
+<indexterm><primary>Barlow, Joel</primary></indexterm>
+<indexterm><primary>Webster, Noah</primary></indexterm>
</para>
<para>
At the beginning of our history, and for just about the whole of our
<para>
This rough divide between the free and the controlled has now
been erased.<footnote><para>
-See Jessica Litman, Digital Copyright (New York: Prometheus Books,
+See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: Prometheus Books,
2001), ch. 13.
+<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
The Internet has set the stage for this erasure and, pushed by big
media, the law has now affected it. For the first time in our
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
-Times, 17 January 2002.
+Use New Tools to Turn the Net into an Illicit Video Club," <citetitle>New York
+Times</citetitle>, 17 January 2002.
</para></footnote>—has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
war, most think that we need only decide whether we're for property or
control. The First Amendment protected creators against state control.
And as Professor Neil Netanel powerfully argues,<footnote>
<para>
-Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
-Journal 106 (1996): 283.
+Neil W. Netanel, "Copyright and a Democratic Civil Society," <citetitle>Yale Law
+Journal</citetitle> 106 (1996): 283.
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
</para></footnote>
copyright law, properly balanced, protected creators against private
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 -->
+<!--PAGE BREAK 27-->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
</para>
importantly, its power to disable critical thought by policy makers
and citizens. There has never been a time in our history when more of
our "culture" was as "owned" as it is now. And yet there has never
-been a time when the concentration of power to control the uses of
-culture has been as unquestioningly accepted as it is now.
+been a time when the concentration of power to control the
+<emphasis>uses</emphasis> of culture has been as unquestioningly
+accepted as it is now.
</para>
<para>
The puzzle is, Why? Is it because we have come to understand a truth
</para>
</chapter>
<!-- PAGE BREAK 29 -->
-<chapter id="c-piracy">
+<part id="c-piracy">
<title>"PIRACY"</title>
-
+<partintro>
<!-- PAGE BREAK 30 -->
<indexterm id="idxmansfield1" class='startofrange'>
<primary>Mansfield, William Murray, Lord</primary>
rob the author of the profit, by multiplying copies and disposing
of them for his own use.<footnote><para>
<!-- f1 -->
-Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777) (Mansfield).
</para></footnote>
</para>
<indexterm startref="idxmansfield1" class='endofrange'/>
increasingly to technology to defend their "property" against this
"piracy." A generation of Americans, the warriors warn, is being
raised to believe that "property" should be "free." Forget tattoos,
-never mind body piercing—our kids are becoming thieves!
+never mind body piercing—our kids are becoming
+<emphasis>thieves</emphasis>!
</para>
<para>
There's no doubt that "piracy" is wrong, and that pirates should be
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.
+in the Pepsi Generation," <citetitle>Notre Dame Law Review</citetitle> 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
songs that girls sang around Girl Scout campfires.<footnote><para>
<!-- f3 -->
Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
-Up," Wall Street Journal, 21 August 1996, available at
+Up," <citetitle>Wall Street Journal</citetitle>, 21 August 1996, available at
<ulink url="http://free-culture.cc/notes/">link #3</ulink>; Jonathan
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
-Speech, No One Wins," Boston Globe, 24 November 2002.
+Speech, No One Wins," <citetitle>Boston Globe</citetitle>, 24 November 2002.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
There was "value" (the songs) so there must have been a
more expense of doing business.
</para>
<indexterm><primary>Florida, Richard</primary></indexterm>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</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
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>
+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 <citetitle>The Rise of the Creative Class</citetitle> (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>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
understanding that tradition a bit more and by placing in their proper
context the current battles about behavior labeled "piracy."
</para>
+</partintro>
<!-- PAGE BREAK 34 -->
-<sect1 id="creators">
+<chapter label="1" id="creators">
<title>CHAPTER ONE: Creators</title>
<para>
In 1928, a cartoon character was born. An early Mickey Mouse
-made his debut in May of that year, in a silent flop called Plane Crazy.
+made his debut in May of that year, in a silent flop called <citetitle>Plane Crazy</citetitle>.
In November, in New York City's Colony Theater, in the first widely
-distributed cartoon synchronized with sound, Steamboat Willie brought
+distributed cartoon synchronized with sound, <citetitle>Steamboat Willie</citetitle> brought
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
+movie <citetitle>The Jazz Singer</citetitle>. 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.
and ran the action again. It was terrible, but it was wonderful! And
it was something new!<footnote><para>
<!-- f1 -->
-Leonard Maltin, Of Mice and Magic: A History of American Animated
-Cartoons (New York: Penguin Books, 1987), 34–35.
+Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated
+Cartoons</citetitle> (New York: Penguin Books, 1987), 34–35.
</para></footnote>
</para>
</blockquote>
creativity, was built upon the work of others.
</para>
<para>
-This much is familiar. What you might not know is that 1928 also
-marks another important transition. In that year, a comic (as opposed
-to cartoon) genius created his last independently produced silent film.
-That genius was Buster Keaton. The film was Steamboat Bill, Jr.
+This much is familiar. What you might not know is that 1928 also marks
+another important transition. In that year, a comic (as opposed to
+cartoon) genius created his last independently produced silent film.
+That genius was Buster Keaton. The film was <citetitle>Steamboat Bill, Jr</citetitle>.
</para>
<para>
-Keaton was born into a vaudeville family in 1895. In the era of
-silent film, he had mastered using broad physical comedy as a way to
-spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was
-a classic of this form, famous among film buffs for its incredible stunts.
-The film was classic Keaton—wildly popular and among the best of its
-genre.
+Keaton was born into a vaudeville family in 1895. In the era of silent
+film, he had mastered using broad physical comedy as a way to spark
+uncontrollable laughter from his audience. <citetitle>Steamboat Bill,
+Jr</citetitle>. was a classic of this form, famous among film buffs for its
+incredible stunts. The film was classic Keaton—wildly popular
+and among the best of its genre.
</para>
<para>
-Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
+<citetitle>Steamboat Bill, Jr</citetitle>. 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>
I am grateful to David Gerstein and his careful history, described at
<ulink url="http://free-culture.cc/notes/">link #4</ulink>.
According to Dave Smith of the Disney Archives, Disney paid royalties to
-use the music for five songs in Steamboat Willie: "Steamboat Bill," "The
+use the music for five songs in <citetitle>Steamboat Willie</citetitle>: "Steamboat Bill," "The
Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1"
(Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the
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
+the invention of synchronized sound in <citetitle>The Jazz Singer</citetitle> that we
+get <citetitle>Steamboat Willie</citetitle>. 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.
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
+work of others is astonishing when set together: <citetitle>Snow White</citetitle>
+(1937), <citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> (1940), <citetitle>Dumbo</citetitle>
+(1941), <citetitle>Bambi</citetitle> (1942), <citetitle>Song of the South</citetitle> (1946),
+<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in Wonderland</citetitle> (1951), <citetitle>Robin
+Hood</citetitle> (1952), <citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the Tramp</citetitle>
<!-- 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.
+(1955), <citetitle>Mulan</citetitle> (1998), <citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101
+Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> (1963), and
+<citetitle>The Jungle Book</citetitle> (1967)—not to mention a recent example
+that we should perhaps quickly forget, <citetitle>Treasure Planet</citetitle>
+(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
</para>
<para>
Consider, for example, a form of creativity that seems strange to many
-Americans but that is inescapable within Japanese culture: manga, or
+Americans but that is inescapable within Japanese culture: <citetitle>manga</citetitle>, 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
from a Disney perspective is quite familiar.
</para>
<para>
-This is the phenomenon of doujinshi. Doujinshi are also comics, but
+This is the phenomenon of <citetitle>doujinshi</citetitle>. Doujinshi are also comics, but
they are a kind of copycat comic. A rich ethic governs the creation of
-doujinshi. It is not doujinshi if it is just a copy; the artist must make a
-contribution to the art he copies, by transforming it either subtly or
+doujinshi. It is not doujinshi if it is <emphasis>just</emphasis> a
+copy; the artist must make a contribution to the art he copies, by
+transforming it either subtly or
<!-- PAGE BREAK 39 -->
significantly. A doujinshi comic can thus take a mainstream comic and
develop it differently—with a different story line. Or the comic can
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.
+creations of others, as Walt Disney did with <citetitle>Steamboat Bill,
+Jr</citetitle>. 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>
<indexterm id="idxwinickjudd" class='startofrange'>
<primary>Winick, Judd</primary>
the view of many, it is precisely because it exists that Japanese manga
flourish. As American graphic novelist Judd Winick said to me, "The
early days of comics in America are very much like what's going on
-in Japan now. . . . American comics were born out of copying each
+in Japan now. … American comics were born out of copying each
<!-- PAGE BREAK 40 -->
-other. . . . That's how [the artists] learn to draw—by going into comic
+other. … That's how [the artists] learn to draw—by going into comic
books and not tracing them, but looking at them and copying them"
and building from them.<footnote><para>
<!-- f5 -->
-For an excellent history, see Scott McCloud, Reinventing Comics (New
+For an excellent history, see Scott McCloud, <citetitle>Reinventing Comics</citetitle> (New
York: Perennial, 2000).
</para></footnote>
</para>
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
+Why All the Comics My Kid Watches Are Japanese Imports?" <citetitle>Rutgers Law
+Review</citetitle> 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
believe in the value of that weird form of property that lawyers call
"intellectual property."<footnote><para>
<!-- f7 -->
-The term intellectual property is of relatively recent origin. See
-Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York
-University Press, 2001). See also Lawrence Lessig, The Future of Ideas
+The term <citetitle>intellectual property</citetitle> is of relatively recent origin. See
+Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 11 (New York: New York
+University Press, 2001). See also Lawrence Lessig, <citetitle>The Future of Ideas</citetitle>
(New York: Random House, 2001), 293 n. 26. The term accurately
describes a set of "property" rights—copyright, patents,
trademark, and trade-secret—but the nature of those rights is
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.
+permission from anyone. (Does <emphasis>anyone</emphasis> 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.
</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 <emphasis>whether</emphasis> a
+culture is free. All cultures are free to some degree. The hard
+question instead is "<emphasis>How</emphasis> 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
</para>
<!-- PAGE BREAK 44 -->
-</sect1>
-<sect1 id="mere-copyists">
+</chapter>
+<chapter label="2" id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
-<indexterm><primary>Daguerre, Louis</primary></indexterm>
+<indexterm id="idxphotography" class='startofrange'>
+ <primary>photography</primary>
+</indexterm>
<para>
In 1839, Louis Daguerre invented the first practical technology for
producing what we would call "photographs." Appropriately enough, they
zealous and wealthy amateurs. (There was even an American Daguerre
Association that helped regulate the industry, as do all such
associations, by keeping competition down so as to keep prices up.)
+<indexterm><primary>Daguerre, Louis</primary></indexterm>
</para>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
taking of a picture from its developing. These were still plates of
glass, and thus it was still not a process within reach of most
amateurs.
+<indexterm><primary>Talbot, William</primary></indexterm>
</para>
<indexterm id="idxeastmangeorge" class='startofrange'>
<primary>Eastman, George</primary>
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:
+Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: Johns Hopkins University Press, 1975), 112.
+</para></footnote> As he described in <citetitle>The Kodak Primer</citetitle>:
+<indexterm><primary>Kodak Primer, The (Eastman)</primary></indexterm>
</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
+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,
chemicals.<footnote>
<para>
<!-- f2 -->
-Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
+Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: Taplinger Publishing,
1977), 53.
<indexterm><primary>Coe, Brian</primary></indexterm>
</para></footnote>
popular photography. Eastman's camera first went on sale in 1888; one
year later, Kodak was printing more than six thousand negatives a day.
From 1888 through 1909, while industrial production was rising by 4.7
-percent, photographic equipment and material sales increased by
+percent, photographic equipment and material sales increased by 11
percent.<footnote><para>
<!-- f3 -->
Jenkins, 177.
gave them the ability to record their own lives in a way they had
never been able to do before. As author Brian Coe notes, "For the
first time the snapshot album provided the man on the street with a
-permanent record of his family and its activities. . . . For the first
+permanent record of his family and its activities. … For the first
time in history there exists an authentic visual record of the
appearance and activities of the common man made without [literary]
interpretation or bias."<footnote><para>
required permission before he could capture and print whatever image
he wanted. Their answer was no.<footnote><para>
<!-- f6 -->
-For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E.
+For illustrative cases, see, for example, <citetitle>Pavesich</citetitle>
+v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905);
+<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, 123090 S.W. 364, 366
+(Ky. 1909); <citetitle>Corliss</citetitle> v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass.
+Dist. Ct. 1894).
</para></footnote>
</para>
<para>
<para>
<!-- f7 -->
Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
-Harvard Law Review 4 (1890): 193.
+<citetitle>Harvard Law Review</citetitle> 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
+<citetitle>Steamboat Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
</para>
<para>
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
+See Melville B. Nimmer, "The Right of Publicity," <citetitle>Law and Contemporary
+Problems</citetitle> 19 (1954): 203; William L. Prosser, "Privacy," <citetitle>California Law
+Review</citetitle> 48 (1960) 398–407; <citetitle>White</citetitle> v. <citetitle>Samsung Electronics America,
+Inc</citetitle>., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
(1993).
</para></footnote>)
</para>
learn.
</para>
<indexterm startref="idxeastmangeorge" class='endofrange'/>
+<indexterm startref="idxphotography" class='endofrange'/>
<para>
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
+Think!, puts it, "is the ability … to understand, analyze, and
deconstruct media images. Its aim is to make [kids] literate about the
way media works, the way it's constructed, the way it's delivered, and
the way people access it."
television commercials per year, or between 20,000 and 45,000
commercials generally,<footnote><para>
<!-- f10 -->
-Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
+Judith Van Evra, <citetitle>Television and Child Development</citetitle> (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
-Study," Denver Post, 25 May 1997, B6.
+Study," <citetitle>Denver Post</citetitle>, 25 May 1997, B6.
</para></footnote>
it is increasingly important to understand the "grammar" of media. For
just as there is a grammar for the written word, so, too, is there one
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
+about "the placement of objects, color, … rhythm, pacing, and
texture."<footnote>
<para>
<!-- f11 -->
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.
+can do well. Yet neither is text a form in which
+<emphasis>these</emphasis> ideas can be expressed well. The power of
+this message depended upon its connection to this form of expression.
</para>
<para>
can do, let's talk about this issue. Play for me music that you think
reflects that, or show me images that you think reflect that, or draw
for me something that reflects that." Not by giving a kid a video
-camera and . . . saying, "Let's go have fun with the video camera and
+camera and … saying, "Let's go have fun with the video camera and
make a little movie." But instead, really help you take these elements
that you understand, that are your language, and construct meaning
-about the topic. . . .
+about the topic.…
</para>
<para>
That empowers enormously. And then what happens, of
letters. There were sound recordings. There was anger and frustration.
There were attempts to provide context. There was, in short, an
extraordinary worldwide barn raising, in the sense Mike Godwin uses
-the term in his book Cyber Rights, around a news event that had
+the term in his book <citetitle>Cyber Rights</citetitle>, around a news event that had
captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
</para>
spread practically instantaneously.
</para>
<para>
-September 11 was not an aberration. It was a beginning. Around
-the same time, a form of communication that has grown dramatically
-was just beginning to come into public consciousness: the Web-log, or
-blog. The blog is a kind of public diary, and within some cultures, such
-as in Japan, it functions very much like a diary. In those cultures, it
-records private facts in a public way—it's a kind of electronic Jerry
-Springer, available anywhere in the world.
+September 11 was not an aberration. It was a beginning. Around the
+same time, a form of communication that has grown dramatically was
+just beginning to come into public consciousness: the Web-log, or
+blog. The blog is a kind of public diary, and within some cultures,
+such as in Japan, it functions very much like a diary. In those
+cultures, it records private facts in a public way—it's a kind
+of electronic <citetitle>Jerry Springer</citetitle>, available anywhere in the world.
</para>
<para>
But in the United States, blogs have taken on a very different
least, they had to agree upon a unanimous result for the process to
come to an end.<footnote><para>
<!-- f15 -->
-See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans.
-Henry Reeve (New York: Bantam Books, 2000), ch. 16.
+See, for example, Alexis de Tocqueville, <citetitle>Democracy in America</citetitle>,
+bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
</para></footnote>
</para>
<para>
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.<footnote><para>
<!-- f16 -->
-Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
-Political Philosophy 10 (2) (2002): 129.
+Bruce Ackerman and James Fishkin, "Deliberation Day," <citetitle>Journal of
+Political Philosophy</citetitle> 10 (2) (2002): 129.
</para></footnote>
And in some towns in New England, something close to deliberation
remains. But for most of us for most of the time, there is no time or
politics with people you disagree with. Political discourse becomes
isolated, and isolated discourse becomes more extreme.<footnote><para>
<!-- f17 -->
-Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
+Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton University Press, 2001),
65–80, 175, 182, 183, 192.
</para></footnote> We say what our friends want to hear, and hear very
little beyond what our friends say.
<!-- 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.")
+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 <emphasis>that</emphasis> 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
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
+Information Online," <citetitle>New York Times</citetitle>, 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>.
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
+See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" <citetitle>New
+York Times</citetitle>, 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
+request. Last year Steve Olafson, a <citetitle>Houston Chronicle</citetitle> reporter, was
fired for keeping a personal Web log, published under a pseudonym,
that dealt with some of the issues and people he was covering.")
<indexterm><primary>CNN</primary></indexterm>
</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is "human learning and . . . the
-creation of knowledge ecologies for creating . . . innovation."
+His work, as his Web site describes it, is "human learning and … the
+creation of knowledge ecologies for creating … innovation."
</para>
<para>
Brown thus looks at these technologies of digital creativity a bit
</para>
<para>
This opportunity creates a "completely new kind of learning platform,"
-as Brown describes. "As soon as you start doing that, you . . .
+as Brown describes. "As soon as you start doing that, you …
unleash a free collage on the community, so that other people can
start looking at your code, tinkering with it, trying it out, seeing
if they can improve it." Each effort is a kind of
They are code." Kids are "shifting to the ability to tinker in the
abstract, and this tinkering is no longer an isolated activity that
you're doing in your garage. You are tinkering with a community
-platform. . . . You are tinkering with other people's stuff. The more
+platform. … You are tinkering with other people's stuff. The more
you tinker the more you improve." The more you improve, the more you
learn.
</para>
it, "the Web [is] the first medium that truly honors multiple forms of
intelligence." Earlier technologies, such as the typewriter or word
processors, helped amplify text. But the Web amplifies much more than
-text. "The Web . . . says if you are musical, if you are artistic, if
-you are visual, if you are interested in film . . . [then] there is a
+text. "The Web … says if you are musical, if you are artistic, if
+you are visual, if you are interested in film … [then] there is a
lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
</para>
<para>
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter
-10) has developed a powerful argument in favor of the "right to
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>)
+has developed a powerful argument in favor of the "right to
tinker" as it applies to computer science and to knowledge in
general.<footnote><para>
<!-- f22 -->
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.
+Control Interferes with Noninfringing Scholarship," <citetitle>Communications
+of the Association for Computer Machinery</citetitle> 43 (2000): 9.
</para></footnote>
But Brown's concern is earlier, or younger, or more fundamental. It is
about the learning that kids can do, or can't do, because of the law.
<para>
"Yet," as Brown continued, and as the balance of this book will
evince, "we are building a legal system that completely suppresses the
-natural tendencies of today's digital kids. . . . We're building an
+natural tendencies of today's digital kids. … We're building an
architecture that unleashes 60 percent of the brain [and] a legal
system that closes down that part of the brain."
</para>
</para>
<para>
"No way to run a culture," as Brewster Kahle, whom we'll meet in
-chapter 9, quipped to me in a rare moment of despondence.
+chapter <xref xrefstyle="select: labelnumber" linkend="collectors"/>,
+quipped to me in a rare moment of despondence.
</para>
<!-- PAGE BREAK 61 -->
-</sect1>
-<sect1 id="catalogs">
+</chapter>
+<chapter label="3" id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
+<indexterm><primary>RPI</primary><see>Rensselaer Polytechnic Institute (RPI)</see></indexterm>
+<indexterm id="idxrensselaer" class='startofrange'>
+ <primary>Rensselaer Polytechnic Institute (RPI)</primary>
+</indexterm>
<para>
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
</para>
<para>
"It was absurd," he told me. "I don't think I did anything
-wrong. . . . I don't think there's anything wrong with the search
-engine that I ran or . . . what I had done to it. I mean, I hadn't
+wrong. … I don't think there's anything wrong with the search
+engine that I ran or … what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of
pirates. I just modified the search engine in a way that would make it
-easier to use"—again, a 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.
+easier to use"—again, a <emphasis>search engine</emphasis>,
+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
Jesse pay them at least $15,000,000.
</para>
<para>
-Similar lawsuits were brought against three other students: one
-other student at RPI, one at Michigan Technical University, and one at
+Similar lawsuits were brought against three other students: one other
+student at RPI, one at Michigan Technical University, and one at
Princeton. Their situations were similar to Jesse's. Though each case
was different in detail, the bottom line in each was exactly the same:
huge demands for "damages" that the RIAA claimed it was entitled to.
If you added up the claims, these four lawsuits were asking courts in
-the United States to award the plaintiffs close to $100 billion—six
-times the total profit of the film industry in 2001.<footnote><para>
+the United States to award the plaintiffs close to $100
+<emphasis>billion</emphasis>—six times the
+<emphasis>total</emphasis> profit of the film industry in
+2001.<footnote><para>
+
<!-- f1 -->
Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
-Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
+Suit Alleges $97.8 Billion in Damages," <citetitle>Professional Media Group LCC</citetitle> 6
(2003): 5, available at 2003 WL 55179443.
</para></footnote>
</para>
+<indexterm startref="idxrensselaer" class='endofrange'/>
<para>
Jesse called his parents. They were supportive but a bit frightened.
An uncle was a lawyer. He began negotiations with the RIAA. They
<!-- f2 -->
Occupational Employment Survey, U.S. Dept. of Labor (2001)
(27–2042—Musicians and Singers). See also National Endowment for
-the Arts, More Than One in a Blue Moon (2000).
+the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000).
</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>
<!-- f3 -->
Douglas Lichtman makes a related point in "KaZaA and Punishment,"
-Wall Street Journal, 10 September 2003, A24.
+<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24.
</para></footnote>
</para>
<para>
<blockquote>
<para>
I was definitely not an activist [before]. I never really meant to be
-an activist. . . . [But] I've been pushed into this. In no way did I
+an activist. … [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
absurd what the RIAA has done.
</para>
<para>
Jesse's parents betray a certain pride in their reluctant activist. As
his father told me, Jesse "considers himself very conservative, and so do
-I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
+I. … He's not a tree hugger. … I think it's bizarre that they would
pick on him. But he wants to let people know that they're sending the
wrong message. And he wants to correct the record."
</para>
<!-- PAGE BREAK 66 -->
-</sect1>
-<sect1 id="pirates">
+</chapter>
+<chapter label="4" id="pirates">
<title>CHAPTER FOUR: "Pirates"</title>
<para>
If "piracy" means using the creative property of others without
kind of piracy so defined. The consistent story is how last generation's
pirates join this generation's country club—until now.
</para>
-<sect2 id="film">
+<section id="film">
<title>Film</title>
<para>
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- 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, <citetitle>Copyrights and Copywrongs</citetitle>, 87–93,
which details Edison's "adventures" with copyright and patent.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
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
+J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent Motion
+Picture Producers</citetitle> (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
the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159. </para></footnote>
+<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para>
`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
+Marc Wanamaker, "The First Studios," <citetitle>The Silents Majority</citetitle>, archived at
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
That led the independents to flee the East
expired. A new industry had been born, in part from the piracy of
Edison's creative property.
</para>
-</sect2>
-<sect2 id="recordedmusic">
+</section>
+<section id="recordedmusic">
<title>Recorded Music</title>
<para>
The record industry was born of another kind of piracy, though to see
how requires a bit of detail about the way the law regulates music.
</para>
+<indexterm id="idxfourneauxhenri" class='startofrange'>
+ <primary>Fourneaux, Henri</primary>
+</indexterm>
+<indexterm><primary>Russel, Phil</primary></indexterm>
<para>
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
then, I could effectively pirate someone else's song without paying
its composer anything.
</para>
+<indexterm startref="idxfourneauxhenri" class='endofrange'/>
<para>
The composers (and publishers) were none too happy about
<!-- PAGE BREAK 69 -->
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para>
<blockquote>
<para>
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
+of South Dakota, chairman), reprinted in <citetitle>Legislative History of the
+Copyright Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
+<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
+<indexterm><primary>American Graphophone Company</primary></indexterm>
</para>
<para>
-The law soon resolved this battle in favor of the composer and the
-recording artist. Congress amended the law to make sure that composers
-would be paid for the "mechanical reproductions" of their music. But
-rather than simply granting the composer complete control over the
-right to make mechanical reproductions, Congress gave recording
-artists a right to record the music, at a price set by Congress, once
-the composer allowed it to be recorded once. This is the part of
+The law soon resolved this battle in favor of the composer
+<emphasis>and</emphasis> the recording artist. Congress amended the
+law to make sure that composers would be paid for the "mechanical
+reproductions" of their music. But rather than simply granting the
+composer complete control over the right to make mechanical
+reproductions, Congress gave recording artists a right to record the
+music, at a price set by Congress, once the composer allowed it to be
+recorded once. This is the part of
<!-- PAGE BREAK 70 -->
copyright law that makes cover songs possible. Once a composer
</para>
<para>
But the law governing recordings gives recording artists less. And
-thus, in effect, the law subsidizes the recording industry through a
-kind of piracy—by giving recording artists a weaker right than
-it otherwise gives creative authors. The Beatles have less control
-over their creative work than Grisham does. And the beneficiaries of
-this less control are the recording industry and the public. The
-recording industry gets something of value for less than it otherwise
-would pay; the public gets access to a much wider range of musical
-creativity. Indeed, Congress was quite explicit about its reasons for
-granting this right. Its fear was the monopoly power of rights
-holders, and that that power would stifle follow-on
+thus, in effect, the law <emphasis>subsidizes</emphasis> the recording
+industry through a kind of piracy—by giving recording artists a
+weaker right than it otherwise gives creative authors. The Beatles
+have less control over their creative work than Grisham does. And the
+beneficiaries of this less control are the recording industry and the
+public. The recording industry gets something of value for less than
+it otherwise would pay; the public gets access to a much wider range
+of musical creativity. Indeed, Congress was quite explicit about its
+reasons for granting this right. Its fear was the monopoly power of
+rights holders, and that that power would stifle follow-on
creativity.<footnote><para>
+
<!-- f10 -->
Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st
sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
-in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and
+in <citetitle>Legislative History of the 1909 Copyright Act</citetitle>, E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
<indexterm><primary>Beatles</primary></indexterm>
By limiting the rights musicians have, by partially pirating their
creative work, the record producers, and the public, benefit.
</para>
-</sect2>
-<sect2 id="radio">
+</section>
+<section id="radio">
<title>Radio</title>
<para>
Radio was also born of piracy.
When a radio station plays a record on the air, that constitutes a
"public performance" of the composer's work.<footnote><para>
<!-- f12 -->
-See 17 United States Code, sections 106 and 110. At the beginning,
+See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At the beginning,
record companies printed "Not Licensed for Radio Broadcast" and other
messages purporting to restrict the ability to play a record on a
radio station. Judge Learned Hand rejected the argument that a
warning attached to a record might restrict the rights of the radio
-station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86 (2nd
+station. See <citetitle>RCA Manufacturing Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd
Cir. 1940). See also Randal C. Picker, "From Edison to the Broadcast
Flag: Mechanisms of Consent and Refusal and the Propertization of
-Copyright," University of Chicago Law Review 70 (2003): 281.
+Copyright," <citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.
<indexterm><primary>Hand, Learned</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
</para>
<para>
But when the radio station plays a record, it is not only performing a
-copy of the composer's work. The radio station is also performing a
-copy of the recording artist's work. It's one thing to have "Happy
-Birthday" sung on the radio by the local children's choir; it's quite
-another to have it sung by the Rolling Stones or Lyle Lovett. The
-recording artist is adding to the value of the composition performed
-on the radio station. And if the law were perfectly consistent, the
-radio station would have to pay the recording artist for his work,
-just as it pays the composer of the music for his work.
+copy of the <emphasis>composer's</emphasis> work. The radio station is
+also performing a copy of the <emphasis>recording artist's</emphasis>
+work. It's one thing to have "Happy Birthday" sung on the radio by the
+local children's choir; it's quite another to have it sung by the
+Rolling Stones or Lyle Lovett. The recording artist is adding to the
+value of the composition performed on the radio station. And if the
+law were perfectly consistent, the radio station would have to pay the
+recording artist for his work, just as it pays the composer of the
+music for his work.
<indexterm><primary>Lovett, Lyle</primary></indexterm>
<!-- PAGE BREAK 72 -->
<para>
Imagine she does sing your song, and imagine she likes it a lot. She
then decides to make a recording of your song, and it becomes a top
-hit. Under our law, every time a radio station plays your song, you get
-some money. But Madonna gets nothing, save the indirect effect on
+hit. Under our law, every time a radio station plays your song, you
+get some money. But Madonna gets nothing, save the indirect effect on
the sale of her CDs. The public performance of her recording is not a
-"protected" right. The radio station thus gets to pirate the value of
-Madonna's work without paying her anything.
+"protected" right. The radio station thus gets to
+<emphasis>pirate</emphasis> the value of Madonna's work without paying
+her anything.
</para>
<indexterm startref="idxmadonna" class='endofrange'/>
<para>
the choice for him or her, the law gives the radio station the right
to take something for nothing.
</para>
-</sect2>
-<sect2 id="cabletv">
+</section>
+<section id="cabletv">
<title>Cable TV</title>
<para>
</para>
<indexterm><primary>Anello, Douglas</primary></indexterm>
<indexterm><primary>Burdick, Quentin</primary></indexterm>
+<indexterm><primary>Hyde, Rosel H.</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
Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
(statement of Rosel H. Hyde, chairman of the Federal Communications
Commission).
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
</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
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
<para>
These were "free-ride[rs]," Screen Actor's Guild president Charlton
Heston said, who were "depriving actors of
<!-- f17 -->
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
-</para></footnote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
+</para>
+</footnote>
</para>
<para>
But again, there was another side to the debate. As Assistant Attorney
Our point here is that unlike the problem of whether you have any
copyright protection at all, the problem here is whether copyright
holders who are already compensated, who already have a monopoly,
-should be permitted to extend that monopoly. . . . The
+should be permitted to extend that monopoly. … The
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
from that creator—as it is increasingly described
today<footnote><para>
<!-- f19 -->
-See, for example, National Music Publisher's Association, The Engine
+See, for example, National Music Publisher's Association, <citetitle>The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
-Information, available at
+Information</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #13</ulink>. "The
threat of piracy—the use of someone else's creative work without
permission or compensation—has grown with the Internet."
</para></footnote>
-— then every industry affected by copyright today is the product
-and beneficiary of a certain kind of piracy. Film, records, radio,
-cable TV. . . . The list is long and could well be expanded. Every
-generation welcomes the pirates from the last. Every
-generation—until now.
+— then <emphasis>every</emphasis> industry affected by copyright
+today is the product and beneficiary of a certain kind of
+piracy. Film, records, radio, cable TV. … The list is long and
+could well be expanded. Every generation welcomes the pirates from the
+last. Every generation—until now.
</para>
<!-- PAGE BREAK 75 -->
-</sect2>
-</sect1>
-<sect1 id="piracy">
+</section>
+</chapter>
+<chapter label="5" id="piracy">
<title>CHAPTER FIVE: "Piracy"</title>
<para>
There is piracy of copyrighted material. Lots of it. This piracy comes
has so often done in the past.
<!-- PAGE BREAK 76 -->
</para>
-<sect2 id="piracy-i">
+<section id="piracy-i">
<title>Piracy I</title>
<para>
All across the world, but especially in Asia and Eastern Europe, there
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy<footnote><para>
<!-- f1 -->
-See IFPI (International Federation of the Phonographic Industry), The
-Recording Industry Commercial Piracy Report 2003, July 2003, available
+See IFPI (International Federation of the Phonographic Industry), <citetitle>The
+Recording Industry Commercial Piracy Report 2003</citetitle>, July 2003, available
at <ulink url="http://free-culture.cc/notes/">link #14</ulink>. See
-also Ben Hunt, "Companies Warned on Music Piracy Risk," Financial
-Times, 14 February 2003, 11.
+also Ben Hunt, "Companies Warned on Music Piracy Risk," <citetitle>Financial
+Times</citetitle>, 14 February 2003, 11.
</para></footnote>
(that works out to one in three CDs sold worldwide). The MPAA
estimates that it loses $3 billion annually worldwide to piracy.
these nations live gives them some opportunities to escape the burden
of intellectual property law.<footnote><para>
<!-- f2 -->
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
+See Peter Drahos with John Braithwaite, Information Feudalism: <citetitle>Who
+Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), 10–13,
209. The Trade-Related Aspects of Intellectual Property Rights
(TRIPS) agreement obligates member nations to create administrative
and enforcement mechanisms for intellectual property rights, a costly
less money than they otherwise would have had.<footnote><para>
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
-Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
-144–90. "In some instances . . . the impact of piracy on the
+Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: Amacom, 2002),
+144–90. "In some instances … the impact of piracy on the
copyright holder's ability to appropriate the value of the work will
be negligible. One obvious instance is the case where the individual
engaging in pirating would not have purchased an original even if
</para>
<para>
This argument is still very weak. However, although copyright is a
-property right of a very special sort, it is a property right. Like
-all property rights, the copyright gives the owner the right to decide
-the terms under which content is shared. If the copyright owner
-doesn't want to sell, she doesn't have to. There are exceptions:
-important statutory licenses that apply to copyrighted content
-regardless of the wish of the copyright owner. Those licenses give
-people the right to "take" copyrighted content whether or not the
+property right of a very special sort, it <emphasis>is</emphasis> a
+property right. Like all property rights, the copyright gives the
+owner the right to decide the terms under which content is shared. If
+the copyright owner doesn't want to sell, she doesn't have to. There
+are exceptions: important statutory licenses that apply to copyrighted
+content regardless of the wish of the copyright owner. Those licenses
+give people the right to "take" copyrighted content whether or not the
copyright owner wants to sell. But
<!-- PAGE BREAK 78 -->
Microsoft Windows, the Chinese used the free GNU/Linux operating
system, then these Chinese users would not eventually be buying
Microsoft. Without piracy, then, Microsoft would lose.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
+<indexterm>
+<primary>Microsoft</primary>
+<secondary>Windows operating system of</secondary>
+</indexterm>
<indexterm><primary>Windows</primary></indexterm>
</para>
<para>
what—at least ordinarily. And if the law properly balances the
rights of the copyright owner with the rights of access, then
violating the law is still wrong.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Internet Explorer</primary></indexterm>
+<indexterm><primary>Netscape</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
<!-- PAGE BREAK 79 -->
should push us to find a way to protect artists while enabling this
sharing to survive.
</para>
-</sect2>
-<sect2 id="piracy-ii">
+</section>
+<section id="piracy-ii">
<title>Piracy II</title>
<para>
The key to the "piracy" that the law aims to quash is a use that "rob[s]
the author of [his] profit."<footnote><para>
<!-- f4 -->
-Bach v. Longman, 98 Eng. Rep. 1274 (1777).
+<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777).
</para></footnote>
This means we must determine whether
and how much p2p sharing harms before we know how strongly the
innovations. Like every great advance in innovation on the Internet
(and, arguably, off the Internet as well<footnote><para>
<!-- f5 -->
-See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
-National Bestseller That Changed the Way We Do Business (New York:
+See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The Revolutionary
+National Bestseller That Changed the Way We Do Business</citetitle> (New York:
HarperBusiness, 2000). Professor Christensen examines why companies
that give rise to and dominate a product area are frequently unable to
come up with the most creative, paradigm-shifting uses for their own
products. This job usually falls to outside innovators, who
reassemble existing technology in inventive ways. For a discussion of
-Christensen's ideas, see Lawrence Lessig, Future, 89–92, 139.
+Christensen's ideas, see Lawrence Lessig, <citetitle>Future</citetitle>, 89–92, 139.
+
<indexterm><primary>Christensen, Clayton M.</primary></indexterm>
</para></footnote>), Shawn Fanning and crew had simply
put together components that had been developed independently.
eighteen months, there were close to 80 million registered users of the
system.<footnote><para>
<!-- f6 -->
-See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," San
-Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
-New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
-Secures New Financing," San Francisco Chronicle, 23 May 2003, C1;
-"Napster's Wake-Up Call," Economist, 24 June 2000, 23; John Naughton,
-"Hollywood at War with the Internet" (London) Times, 26 July 2002, 18.
+See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," <citetitle>San
+Francisco Chronicle</citetitle>, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
+<citetitle>New Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
+Secures New Financing," <citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1;
+"Napster's Wake-Up Call," <citetitle>Economist</citetitle>, 24 June 2000, 23; John Naughton,
+"Hollywood at War with the Internet" (London) <citetitle>Times</citetitle>, 26 July 2002, 18.
</para></footnote>
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
music—28 percent of Americans older than 12.<footnote><para>
<!-- f7 -->
-See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
+See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music Distribution</citetitle>
(September 2002), reporting that 28 percent of Americans aged twelve
and older have downloaded music off of the Internet and 30 percent have
listened to digital music files stored on their computers.
</para></footnote>
-A survey by the NPD group quoted in The New York Times estimated that
-43 million citizens used file-sharing networks to exchange content in
-May 2003.<footnote><para>
+A survey by the NPD group quoted in <citetitle>The New York Times</citetitle>
+estimated that 43 million citizens used file-sharing networks to
+
exchange content in May 2003.<footnote><para>
<!-- f8 -->
-Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
-York Times, 6 June 2003, A1.
+Amy Harmon, "Industry Offers a Carrot in Online Music Fight," <citetitle>New
+York Times</citetitle>, 6 June 2003, A1.
</para></footnote>
The vast majority of these are not kids. Whatever the actual figure, a
massive quantity of content is being "taken" on these networks. The
perspective of economics, only type A sharing is clearly
harmful.<footnote><para>
<!-- f9 -->
-See Liebowitz, Rethinking the Network Economy,148–49.
+See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, 148–49.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
Type B sharing is illegal but plainly beneficial. Type C sharing is
& Young put it, "Rather than exploiting this new, popular
technology, the labels fought it."<footnote><para>
<!-- f10 -->
-See Cap Gemini Ernst & Young, Technology Evolution and the
-Music Industry's Business Model Crisis (2003), 3. This report
+See Cap Gemini Ernst & Young, <citetitle>Technology Evolution and the
+Music Industry's Business Model Crisis</citetitle> (2003), 3. This report
describes the music industry's effort to stigmatize the budding
practice of cassette taping in the 1970s, including an advertising
campaign featuring a cassette-shape skull and the caption "Home taping
the Office of Technical Assessment conducted a survey of consumer
behavior. In 1988, 40 percent of consumers older than ten had taped
music to a cassette format. U.S. Congress, Office of Technology
-Assessment, Copyright and Home Copying: Technology Challenges the Law,
+Assessment, <citetitle>Copyright and Home Copying: Technology Challenges the Law</citetitle>,
OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office,
October 1989), 145–56. </para></footnote>
The labels claimed that every album taped was an album unsold, and
<para>
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+turnaround. "In the end," Cap Gemini concludes, "the `crisis' … was
not the fault of the tapers—who did not [stop after MTV came into
<!-- PAGE BREAK 83 -->
being]—but had to a large extent resulted from stagnation in musical
innovation at the major labels."<footnote><para>
<!-- f11 -->
-U.S. Congress, Copyright and Home Copying, 4.
+U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4.
</para></footnote>
</para>
<para>
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.
+harmful. The question is also <emphasis>how</emphasis> 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
-the standpoint of the industry as a whole, that sharing networks cause.
+We start to answer this question by focusing on the net harm, from the
+standpoint of the industry as a whole, that sharing networks cause.
The "net harm" to the industry as a whole is the amount by which type
A sharing exceeds type B. If the record companies sold more records
through sampling than they lost through substitution, then sharing
-networks would actually benefit music companies on balance. They
-would therefore have little static reason to resist them.
+networks would actually benefit music companies on balance. They would
+therefore have little <emphasis>static</emphasis> reason to resist
+them.
+
</para>
<para>
-Could that be true? Could the industry as a whole be gaining
- because
-of file sharing? Odd as that might sound, the data about CD
-sales actually suggest it might be close.
+Could that be true? Could the industry as a whole be gaining because
+of file sharing? Odd as that might sound, the data about CD sales
+actually suggest it might be close.
</para>
<para>
-In 2002, the RIAA reported that CD sales had fallen by 8.9
- percent,
-
from 882 million to 803 million units; revenues fell 6.7 percent.<footnote><para>
+In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
+from 882 million to 803 million units; revenues fell 6.7
+percent.<footnote><para>
<!-- f12 -->
-See Recording Industry Association of America, 2002 Yearend Statistics,
+See Recording Industry Association of America, <citetitle>2002 Yearend Statistics</citetitle>,
available at
-<ulink url="http://free-culture.cc/notes/">link #15</ulink>. A later report indicates even greater losses. See
-Recording Industry Association of America, Some Facts About Music Piracy,
-25 June 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #16</ulink>: "In the past four years, unit shipments
-of recorded music have fallen by 26 percent from 1.16 billion units in
-to 860 million units in 2002 in the United States (based on units shipped).
-In terms of sales, revenues are down 14 percent, from $14.6 billion in
-to $12.6 billion last year (based on U.S. dollar value of shipments). The
- music
+<ulink url="http://free-culture.cc/notes/">link #15</ulink>. A later
+report indicates even greater losses. See Recording Industry
+Association of America, <citetitle>Some Facts About Music Piracy</citetitle>, 25 June 2003,
+available at <ulink url="http://free-culture.cc/notes/">link
+#16</ulink>: "In the past four years, unit shipments of recorded music
+have fallen by 26 percent from 1.16 billion units in to 860 million
+units in 2002 in the United States (based on units shipped). In terms
+of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
+billion last year (based on U.S. dollar value of shipments). The music
industry worldwide has gone from a $39 billion industry in 2000 down
-to a $32 billion industry in 2002 (based on U.S. dollar value of shipments)."
+to a $32 billion industry in 2002 (based on U.S. dollar value of
+shipments)."
</para></footnote>
-This confirms a trend over the past few years. The RIAA blames
- Internet
-piracy for the trend, though there are many other causes that
+This confirms a trend over the past few years. The RIAA blames
+Internet piracy for the trend, though there are many other causes that
could account for this drop. SoundScan, for example, reports a more
-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
+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>
<!-- f13 -->
<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>
+Competition from other forms of media could also account for some of
+the decline. As Jane Black of <citetitle>BusinessWeek</citetitle> notes, "The
+soundtrack to the film <citetitle>High Fidelity</citetitle> 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>
<!-- PAGE BREAK 84 -->
-But let's assume the RIAA is right, and all of the decline in CD
-sales is because of Internet sharing. Here's the rub: In the same period
+But let's assume the RIAA is right, and all of the decline in CD sales
+is because of Internet sharing. Here's the rub: In the same period
that the RIAA estimates that 803 million CDs were sold, the RIAA
-estimates that 2.1 billion CDs were downloaded for free. Thus,
- although
-2.6 times the total number of CDs sold were downloaded for
+estimates that 2.1 billion CDs were downloaded for free. Thus,
+although 2.6 times the total number of CDs sold were downloaded for
free, sales revenue fell by just 6.7 percent.
</para>
<para>
There are too many different things happening at the same time to
explain these numbers definitively, but one conclusion is unavoidable:
-The recording industry constantly asks, "What's the difference
- between
-downloading a song and stealing a CD?"—but their own
- numbers
+The recording industry constantly asks, "What's the difference between
+downloading a song and stealing a CD?"—but their own numbers
reveal the difference. If I steal a CD, then there is one less CD to
sell. Every taking is a lost sale. But on the basis of the numbers the
RIAA provides, it is absolutely clear that the same is not true of
-downloads. If every download were a lost sale—if every use of Kazaa
-"rob[bed] the author of [his] profit"—then the industry would have
-suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6
-times the number of CDs sold were downloaded for free, and yet sales
-revenue dropped by just 6.7 percent, then there is a huge difference
- between
-"downloading a song and stealing a CD."
+downloads. If every download were a lost sale—if every use of
+Kazaa "rob[bed] the author of [his] profit"—then the industry
+would have suffered a 100 percent drop in sales last year, not a 7
+percent drop. If 2.6 times the number of CDs sold were downloaded for
+free, and yet sales revenue dropped by just 6.7 percent, then there is
+a huge difference between "downloading a song and stealing a CD."
</para>
<para>
-These are the harms—alleged and perhaps exaggerated but, let's
- assume,
-real. What of the benefits? File sharing may impose costs on the
-recording industry. What value does it produce in addition to these
-costs?
+These are the harms—alleged and perhaps exaggerated but, let's
+assume, real. What of the benefits? File sharing may impose costs on
+the recording industry. What value does it produce in addition to
+these costs?
</para>
<para>
-One benefit is type C sharing—making available content that is
-technically still under copyright but is no longer commercially
- available.
-This is not a small category of content. There are millions of
-
tracks that are no longer commercially available.<footnote><para>
+One benefit is type C sharing—making available content that
+is technically still under copyright but is no longer commercially
+available. This is not a small category of content. There are
+millions of tracks that are no longer commercially
+available.<footnote><para>
<!-- f15 -->
-By one estimate, 75 percent of the music released by the major labels is no
-longer in print. See Online Entertainment and Copyright Law—Coming
-Soon to a Digital Device Near You: Hearing Before the Senate
- Committee
-on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared
- statement
-of the Future of Music Coalition), available at
-<ulink url="http://free-culture.cc/notes/">link #18</ulink>.
-</para></footnote>
-And while it's
- conceivable
-that some of this content is not available because the artist
-producing the content doesn't want it to be made available, the vast
-majority of it is unavailable solely because the publisher or the
- distributor
-has decided it no longer makes economic sense to the company to
-make it available.
+By one estimate, 75 percent of the music released by the major labels
+is no longer in print. See Online Entertainment and Copyright
+Law—Coming Soon to a Digital Device Near You: Hearing Before the
+Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
+2001) (prepared statement of the Future of Music Coalition), available
+at <ulink url="http://free-culture.cc/notes/">link #18</ulink>.
+</para></footnote>
+And while it's conceivable that some of this content is not available
+because the artist producing the content doesn't want it to be made
+available, the vast majority of it is unavailable solely because the
+publisher or the distributor has decided it no longer makes economic
+sense <emphasis>to the company</emphasis> to make it available.
</para>
<para>
In real space—long before the Internet—the market had a simple
<!-- PAGE BREAK 85 -->
-response to this problem: used book and record stores. There are
- thousands
-
of used book and used record stores in America today.<footnote><para>
+response to this problem: used book and record stores. There are
+thousands of used book and used record stores in America
+today.<footnote><para>
<!-- f16 -->
While there are not good estimates of the number of used record stores in
existence, in 2002, there were 7,198 used book dealers in the United States,
-an increase of 20 percent since 1993. See Book Hunter Press, The Quiet
-Revolution: The Expansion of the Used Book Market (2002), available at
+an increase of 20 percent since 1993. See Book Hunter Press, <citetitle>The Quiet
+Revolution: The Expansion of the Used Book Market</citetitle> (2002), available at
<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used records accounted for $260 million in sales in 2002. See
National
Association of Recording Merchandisers, "2002 Annual Survey
available at
<ulink url="http://free-culture.cc/notes/">link #20</ulink>.
</para></footnote>
-These
-stores buy content from owners, then sell the content they buy. And
-under American copyright law, when they buy and sell this content,
-even if the content is still under copyright, the copyright owner doesn't get
-a dime. Used book and record stores are commercial entities; their
-owners make money from the content they sell; but as with cable
- companies
-before statutory licensing, they don't have to pay the copyright
-owner for the content they sell.
+These stores buy content from owners, then sell the content they
+buy. And under American copyright law, when they buy and sell this
+content, <emphasis>even if the content is still under
+copyright</emphasis>, the copyright owner doesn't get a dime. Used
+book and record stores are commercial entities; their owners make
+money from the content they sell; but as with cable companies 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 D sharing to occur—the sharing of content that copyright owners
want to have shared or for which there is no continuing copyright. This
sharing clearly benefits authors and society. Science fiction author
-Cory Doctorow, for example, released his first novel, Down and Out in
-the Magic Kingdom, both free on-line and in bookstores on the same
+Cory Doctorow, for example, released his first novel, <citetitle>Down and Out in
+the Magic Kingdom</citetitle>, both free on-line and in bookstores on the same
<!-- PAGE BREAK 86 -->
day. His (and his publisher's) thinking was that the on-line distribution
<para>
For unlike the piracy I described in the first section of this
chapter, much of the "piracy" that file sharing enables is plainly
-legal and good. And like the piracy I described in chapter 4, much of
+legal and good. And like the piracy I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="pirates"/>, much of
this piracy is motivated by a new way of spreading content caused by
changes in the technology of distribution. Thus, consistent with the
tradition that gave us Hollywood, radio, the recording industry, and
See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
MHP, available at
-<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an account of the litigation and its toll on
-Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn
- Fanning's
-Napster (New York: Crown Business, 2003), 269–82.
+
+<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an
+account of the litigation and its toll on Napster, see Joseph Menn,
+<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's Napster</citetitle> (New
+York: Crown Business, 2003), 269–82.
</para></footnote>
</para>
<para>
<para>
Zero tolerance has not been our history. It has not produced the
content industry that we know today. The history of American law has
-been a process of balance. As new technologies changed the way
- content
-was distributed, the law adjusted, after some time, to the new
- technology.
-In this adjustment, the law sought to ensure the legitimate rights
-of creators while protecting innovation. Sometimes this has meant
-more rights for creators. Sometimes less.
+been a process of balance. As new technologies changed the way content
+was distributed, the law adjusted, after some time, to the new
+technology. In this adjustment, the law sought to ensure the
+legitimate rights of creators while protecting innovation. Sometimes
+this has meant more rights for creators. Sometimes less.
</para>
<para>
So, as we've seen, when "mechanical reproduction" threatened the
interests of composers, Congress balanced the rights of composers
-against the interests of the recording industry. It granted rights to
- composers,
-but also to the recording artists: Composers were to be paid, but
-at a price set by Congress. But when radio started broadcasting the
-recordings made by these recording artists, and they complained to
-Congress that their "creative property" was not being respected (since
-the radio station did not have to pay them for the creativity it
- broadcast),
-Congress rejected their claim. An indirect benefit was enough.
+against the interests of the recording industry. It granted rights to
+composers, but also to the recording artists: Composers were to be
+paid, but at a price set by Congress. But when radio started
+broadcasting the recordings made by these recording artists, and they
+complained to Congress that their "creative property" was not being
+respected (since the radio station did not have to pay them for the
+creativity it broadcast), Congress rejected their claim. An indirect
+benefit was enough.
</para>
<para>
Cable TV followed the pattern of record albums. When the courts
rejected the claim that cable broadcasters had to pay for the content
they rebroadcast, Congress responded by giving broadcasters a right to
-compensation, but at a level set by the law. It likewise gave cable
- companies
-the right to the content, so long as they paid the statutory price.
+compensation, but at a level set by the law. It likewise gave cable
+companies the right to the content, so long as they paid the statutory
+price.
</para>
<para>
<!-- PAGE BREAK 88 -->
This compromise, like the compromise affecting records and player
-pianos, served two important goals—indeed, the two central goals of
-any copyright legislation. First, the law assured that new innovators
-would have the freedom to develop new ways to deliver content.
- Second,
-the law assured that copyright holders would be paid for the
- content
-that was distributed. One fear was that if Congress simply
-required cable TV to pay copyright holders whatever they demanded
-for their content, then copyright holders associated with broadcasters
-would use their power to stifle this new technology, cable. But if
- Congress
-had permitted cable to use broadcasters' content for free, then it
-would have unfairly subsidized cable. Thus Congress chose a path that
-would assure compensation without giving the past (broadcasters)
- control
-over the future (cable).
+pianos, served two important goals—indeed, the two central goals
+of any copyright legislation. First, the law assured that new
+innovators would have the freedom to develop new ways to deliver
+content. Second, the law assured that copyright holders would be paid
+for the content that was distributed. One fear was that if Congress
+simply required cable TV to pay copyright holders whatever they
+demanded for their content, then copyright holders associated with
+broadcasters would use their power to stifle this new technology,
+cable. But if Congress had permitted cable to use broadcasters'
+content for free, then it would have unfairly subsidized cable. Thus
+Congress chose a path that would assure
+<emphasis>compensation</emphasis> without giving the past
+(broadcasters) control over the future (cable).
</para>
<indexterm><primary>Betamax</primary></indexterm>
<para>
Indeed, as surveys would later show,
percent of VCR owners had movie libraries of ten videos or more<footnote><para>
<!-- f20 -->
-Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429,
+<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 480 F. Supp. 429,
(C.D. Cal., 1979).
</para></footnote>
— a use the Court would later hold was not "fair." By
<para>
It took eight years for this case to be resolved by the Supreme
Court. In the interim, the Ninth Circuit Court of Appeals, which
-includes Hollywood in its jurisdiction—leading Judge Alex Kozinski,
-who sits on that court, refers to it as the "Hollywood Circuit"—held
-that Sony would be liable for the copyright infringement made possible
-by its machines. Under the Ninth Circuit's rule, this totally familiar
-technology—which Jack Valenti had called "the Boston Strangler of the
-American film industry" (worse yet, it was a Japanese Boston Strangler
-of the American film industry)—was an illegal
+includes Hollywood in its jurisdiction—leading Judge Alex
+Kozinski, who sits on that court, refers to it as the "Hollywood
+Circuit"—held that Sony would be liable for the copyright
+infringement made possible by its machines. Under the Ninth Circuit's
+rule, this totally familiar technology—which Jack Valenti had
+called "the Boston Strangler of the American film industry" (worse
+yet, it was a <emphasis>Japanese</emphasis> Boston Strangler of the
+American film industry)—was an illegal
technology.<footnote><para>
<!-- f22 -->
-Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
+<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir.
1981).
</para></footnote>
+<indexterm><primary>Kozinski, Alex</primary></indexterm>
</para>
<para>
But the Supreme Court reversed the decision of the Ninth Circuit.
implicated
by such new technology.<footnote><para>
<!-- f23 -->
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
+<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984).
</para></footnote>
</para>
</blockquote>
<para>
-Congress was asked to respond to the Supreme Court's decision.
-But as with the plea of recording artists about radio broadcasts,
- Congress
-ignored the request. Congress was convinced that American film
-got enough, this "taking" notwithstanding.
-If we put these cases together, a pattern is clear:
+Congress was asked to respond to the Supreme Court's decision. But as
+with the plea of recording artists about radio broadcasts, Congress
+ignored the request. Congress was convinced that American film got
+enough, this "taking" notwithstanding. If we put these cases
+together, a pattern is clear:
</para>
-<table id="t1">
-<title>Table</title>
+<informaltable id="t1">
<tgroup cols="4" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
In each case throughout our history, a new technology changed the
was regulated by Congress to minimize the risk of piracy. The remedy
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.
+1992 (Title 17 of the <citetitle>United States Code</citetitle>), Pub. L. No. 102-563, 106 Stat.
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.
+Lessig, <citetitle>Future</citetitle>, 71. See also Picker, "From Edison to the Broadcast Flag,"
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 293–96.
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
work.
</para>
<para>
-In none of these cases did either the courts or Congress eliminate all
-free riding. In none of these cases did the courts or Congress insist that
-the law should assure that the copyright holder get all the value that his
-copyright created. In every case, the copyright owners complained of
-"piracy." In every case, Congress acted to recognize some of the
- legitimacy
-in the behavior of the "pirates." In each case, Congress allowed
-some new technology to benefit from content made before. It balanced
-the interests at stake.
+In <emphasis>none</emphasis> of these cases did either the courts or
+Congress eliminate all free riding. In <emphasis>none</emphasis> of
+these cases did the courts or Congress insist that the law should
+assure that the copyright holder get all the value that his copyright
+created. In every case, the copyright owners complained of "piracy."
+In every case, Congress acted to recognize some of the legitimacy in
+the behavior of the "pirates." In each case, Congress allowed some new
+technology to benefit from content made before. It balanced the
+interests at stake.
<!-- PAGE BREAK 91 -->
</para>
<para>
copyright "has never accorded the copyright owner complete control
over all possible uses of his work."<footnote><para>
<!-- f25 -->
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,
+<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417,
(1984).
</para></footnote>
-Instead, the particular uses that the
-law regulates have been defined by balancing the good that comes from
-granting an exclusive right against the burdens such an exclusive right
-creates. And this balancing has historically been done after a
- technology
-has matured, or settled into the mix of technologies that facilitate
-the distribution of content.
+Instead, the particular uses that the law regulates have been defined
+by balancing the good that comes from granting an exclusive right
+against the burdens such an exclusive right creates. And this
+balancing has historically been done <emphasis>after</emphasis> a
+technology has matured, or settled into the mix of technologies that
+facilitate the distribution of content.
</para>
<para>
We should be doing the same thing today. The technology of the
Internet is changing quickly. The way people connect to the Internet
(wires vs. wireless) is changing very quickly. No doubt the network
-should not become a tool for "stealing" from artists. But neither should
-the law become a tool to entrench one particular way in which artists
-(or more accurately, distributors) get paid. As I describe in some detail
-in the last chapter of this book, we should be securing income to artists
-while we allow the market to secure the most efficient way to promote
-and distribute content. This will require changes in the law, at least
-in the interim. These changes should be designed to balance the
- protection
-of the law against the strong public interest that innovation
-continue.
+should not become a tool for "stealing" from artists. But neither
+should the law become a tool to entrench one particular way in which
+artists (or more accurately, distributors) get paid. As I describe in
+some detail in the last chapter of this book, we should be securing
+income to artists while we allow the market to secure the most
+efficient way to promote and distribute content. This will require
+changes in the law, at least in the interim. These changes should be
+designed to balance the protection of the law against the strong
+public interest that innovation continue.
</para>
<para>
<!-- PAGE BREAK 92 -->
-This is especially true when a new technology enables a vastly
- superior
-mode of distribution. And this p2p has done. P2p technologies
-can be ideally efficient in moving content across a widely diverse
- network.
-Left to develop, they could make the network vastly more
- efficient.
-Yet these "potential public benefits," as John Schwartz writes in
-The New York Times, "could be delayed in the P2P fight."<footnote><para>
+This is especially true when a new technology enables a vastly
+superior mode of distribution. And this p2p has done. P2p technologies
+can be ideally efficient in moving content across a widely diverse
+network. Left to develop, they could make the network vastly more
+efficient. Yet these "potential public benefits," as John Schwartz
+writes in <citetitle>The New York Times</citetitle>, "could be delayed in the P2P
+fight."<footnote><para>
<!-- f26 -->
John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
-Echoes Past Efforts," New York Times, 22 September 2003, C3.
+Echoes Past Efforts," <citetitle>New York Times</citetitle>, 22 September 2003, C3.
</para></footnote>
-Yet when anyone begins to talk about "balance," the copyright
- warriors
-raise a different argument. "All this hand waving about balance
-and incentives," they say, "misses a fundamental point. Our content,"
-the warriors insist, "is our property. Why should we wait for Congress
-to `rebalance' our property rights? Do you have to wait before calling
-the police when your car has been stolen? And why should Congress
-deliberate at all about the merits of this theft? Do we ask whether the
-car thief had a good use for the car before we arrest him?"
+Yet when anyone begins to talk about "balance," the copyright warriors
+raise a different argument. "All this hand waving about balance and
+incentives," they say, "misses a fundamental point. Our content," the
+warriors insist, "is our <emphasis>property</emphasis>. Why should we
+wait for Congress to `rebalance' our property rights? Do you have to
+wait before calling the police when your car has been stolen? And why
+should Congress deliberate at all about the merits of this theft? Do
+we ask whether the car thief had a good use for the car before we
+arrest him?"
</para>
<para>
-"It is our property," the warriors insist. "And it should be protected
-just as any other property is protected."
+"It is <emphasis>our property</emphasis>," the warriors insist. "And
+it should be protected just as any other property is protected."
</para>
<!-- PAGE BREAK 93 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-property">
+</part>
+<part id="c-property">
<title>"PROPERTY"</title>
+<partintro>
<para>
<!-- PAGE BREAK 94 -->
</para>
<para>
But in ordinary language, to call a copyright a "property" right is a
-bit misleading, for the property of copyright is an odd kind of property.
-Indeed, the very idea of property in any idea or any expression is very
-odd. I understand what I am taking when I take the picnic table you
-put in your backyard. I am taking a thing, the picnic table, and after I
-take it, you don't have it. But what am I taking when I take the good
-idea you had to put a picnic table in the backyard—by, for example,
- going
-to Sears, buying a table, and putting it in my backyard? What is the
-thing I am taking then?
+bit misleading, for the property of copyright is an odd kind of
+property. Indeed, the very idea of property in any idea or any
+expression is very odd. I understand what I am taking when I take the
+picnic table you put in your backyard. I am taking a thing, the picnic
+table, and after I take it, you don't have it. But what am I taking
+when I take the good <emphasis>idea</emphasis> you had to put a picnic
+table in the backyard—by, for example, going to Sears, buying a
+table, and putting it in my backyard? What is the thing I am taking
+then?
</para>
<para>
The point is not just about the thingness of picnic tables versus
lights his taper at mine, receives light without darkening me."<footnote><para>
<!-- f1 -->
Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
-The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert
+<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew A. Lipscomb and Albert
Ellery Bergh, eds., 1903), 330, 333–34.
</para></footnote>
</para>
property.
</para>
<para>
-But how, and to what extent, and in what form—the details, in
-other words—matter. To get a good sense of how this practice of
- turning
-the intangible into property emerged, we need to place this
- "property"
-in its proper context.<footnote><para>
+But how, and to what extent, and in what form—the details,
+in other words—matter. To get a good sense of how this practice
+of turning the intangible into property emerged, we need to place this
+"property" in its proper context.<footnote><para>
<!-- f2 -->
-As the legal realists taught American law, all property rights are
- intangible.
-A property right is simply a right that an individual has against the
-world to do or not do certain things that may or may not attach to a
- physical
-object. The right itself is intangible, even if the object to which it is
-(metaphorically) attached is tangible. See Adam Mossoff, "What Is
- Property?
-Putting the Pieces Back Together," Arizona Law Review 45 (2003):
-373, 429 n. 241.
-</para></footnote>
-</para>
-<para>
-My strategy in doing this will be the same as my strategy in the
- preceding
-part. I offer four stories to help put the idea of "copyright
- material
-is property" in context. Where did the idea come from? What are
-its limits? How does it function in practice? After these stories, the
-significance of this true statement—"copyright material is property"—
-will be a bit more clear, and its implications will be revealed as quite
-different from the implications that the copyright warriors would have
-us draw.
+As the legal realists taught American law, all property rights are
+intangible. A property right is simply a right that an individual has
+against the world to do or not do certain things that may or may not
+attach to a physical object. The right itself is intangible, even if
+the object to which it is (metaphorically) attached is tangible. See
+Adam Mossoff, "What Is Property? Putting the Pieces Back Together,"
+<citetitle>Arizona Law Review</citetitle> 45 (2003): 373, 429 n. 241.
+</para></footnote>
</para>
+<para>
+My strategy in doing this will be the same as my strategy in the
+preceding part. I offer four stories to help put the idea of
+"copyright material is property" in context. Where did the idea come
+from? What are its limits? How does it function in practice? After
+these stories, the significance of this true
+statement—"copyright material is property"— will be a bit
+more clear, and its implications will be revealed as quite different
+from the implications that the copyright warriors would have us draw.
+</para>
+</partintro>
<!-- PAGE BREAK 96 -->
-<sect1 id="founders">
+<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
+<indexterm><primary>Henry V</primary></indexterm>
<para>
-William Shakespeare wrote Romeo and Juliet in 1595. The play
-was first published in 1597. It was the eleventh major play that
- Shakespeare
-had written. He would continue to write plays through 1613,
-and the plays that he wrote have continued to define Anglo-American
-culture ever since. So deeply have the works of a sixteenth-century writer
-seeped into our culture that we often don't even recognize their source.
-I once overheard someone commenting on Kenneth Branagh's
- adaptation
-of Henry V: "I liked it, but Shakespeare is so full of clichés."
+William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
+was first published in 1597. It was the eleventh major play that
+Shakespeare had written. He would continue to write plays through
+1613, and the plays that he wrote have continued to define
+Anglo-American culture ever since. So deeply have the works of a
+sixteenth-century writer seeped into our culture that we often don't
+even recognize their source. I once overheard someone commenting on
+Kenneth Branagh's adaptation of Henry V: "I liked it, but Shakespeare
+is so full of clichés."
</para>
<para>
-In 1774, almost 180 years after Romeo and Juliet was written, the
+In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was written, the
"copy-right" for the work was still thought by many to be the exclusive
right of a single London publisher, Jacob Tonson.<footnote><para>
<!-- f1 -->
Jacob Tonson is typically remembered for his associations with prominent
eighteenth-century literary figures, especially John Dryden, and for his
-handsome "definitive editions" of classic works. In addition to Romeo and
-Juliet, he published an astonishing array of works that still remain at the
+handsome "definitive editions" of classic works. In addition to <citetitle>Romeo and
+Juliet</citetitle>, he published an astonishing array of works that still remain at the
heart of the English canon, including collected works of Shakespeare, Ben
Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson,
-Bookseller," American Scholar 61:3 (1992): 424–31.
+Bookseller," <citetitle>American Scholar</citetitle> 61:3 (1992): 424–31.
</para></footnote>
Tonson was the most prominent of a small group of publishers called
the Conger<footnote><para>
<!-- f2 -->
-Lyman Ray Patterson, Copyright in Historical Perspective (Nashville:
+Lyman Ray Patterson, <citetitle>Copyright in Historical Perspective</citetitle> (Nashville:
Vanderbilt University Press, 1968), 151–52.
</para></footnote>
who controlled bookselling in England during the eighteenth
additional years.<footnote><para>
<!-- f3 -->
As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
-"copyright law." See Vaidhyanathan, Copyrights and Copywrongs, 40.
+"copyright law." See Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
-</para></footnote> Under this law, Romeo and Juliet should have been
+</para></footnote> Under this law, <citetitle>Romeo and Juliet</citetitle> should have been
free in 1731. So why was there any issue about it still being under
Tonson's control in 1774?
</para>
published. But after it expired, there was no positive law that said
that the publishers, or "Stationers," had an exclusive right to print
books.
+<indexterm><primary>Licensing Act (1662)</primary></indexterm>
</para>
<para>
-There was no positive law, but that didn't mean that there was no
-law. The Anglo-American legal tradition looks to both the words of
-legislatures and the words of judges to know the rules that are to
- govern
-how people are to behave. We call the words from legislatures
- "positive
-law." We call the words from judges "common law." The common
-law sets the background against which legislatures legislate; the
- legislature,
-ordinarily, can trump that background only if it passes a law to
-displace it. And so the real question after the licensing statutes had
- expired
-was whether the common law protected a copyright,
- independent
-of any positive law.
+There was no <emphasis>positive</emphasis> law, but that didn't mean
+that there was no law. The Anglo-American legal tradition looks to
+both the words of legislatures and the words of judges to know the
+rules that are to govern how people are to behave. We call the words
+from legislatures "positive law." We call the words from judges
+"common law." The common law sets the background against which
+legislatures legislate; the legislature, ordinarily, can trump that
+background only if it passes a law to displace it. And so the real
+question after the licensing statutes had expired was whether the
+common law protected a copyright, independent of any positive law.
</para>
<para>
This question was important to the publishers, or "booksellers," as
resulted in the Statute of Anne.
</para>
<para>
-The Statute of Anne granted the author or "proprietor" of a book
-an exclusive right to print that book. In an important limitation,
- however,
-and to the horror of the booksellers, the law gave the bookseller
-that right for a limited term. At the end of that term, the copyright
- "expired,"
-and the work would then be free and could be published by
-anyone. Or so the legislature is thought to have believed.
+The Statute of Anne granted the author or "proprietor" of a book an
+exclusive right to print that book. In an important limitation,
+however, and to the horror of the booksellers, the law gave the
+bookseller that right for a limited term. At the end of that term, the
+copyright "expired," and the work would then be free and could be
+published by anyone. Or so the legislature is thought to have
+believed.
</para>
<para>
Now, the thing to puzzle about for a moment is this: Why would
-Parliament limit the exclusive right? Not why would they limit it to the
-particular limit they set, but why would they limit the right at all?
+Parliament limit the exclusive right? Not why would they limit it to
+the particular limit they set, but why would they limit the right
+<emphasis>at all?</emphasis>
</para>
<para>
-For the booksellers, and the authors whom they represented, had a
-very strong claim. Take Romeo and Juliet as an example: That play was
-written by Shakespeare. It was his genius that brought it into the
+For the booksellers, and the authors whom they represented, had a very
+strong claim. Take <citetitle>Romeo and Juliet</citetitle> as an example: That play
+was written by Shakespeare. It was his genius that brought it into the
world. He didn't take anybody's property when he created this play
-(that's a controversial claim, but never mind), and by his creating this
-play, he didn't make it any harder for others to craft a play. So why is it
-that the law would ever allow someone else to come along and take
-Shakespeare's play without his, or his estate's, permission? What
- reason
-is there to allow someone else to "steal" Shakespeare's work?
+(that's a controversial claim, but never mind), and by his creating
+this play, he didn't make it any harder for others to craft a play. So
+why is it that the law would ever allow someone else to come along and
+take Shakespeare's play without his, or his estate's, permission? What
+reason is there to allow someone else to "steal" Shakespeare's work?
</para>
<para>
-The answer comes in two parts. We first need to see something
- special
+The answer comes in two parts. We first need to see something special
about the notion of "copyright" that existed at the time of the
Statute of Anne. Second, we have to see something important about
"booksellers."
</para>
<para>
-First, about copyright. In the last three hundred years, we have
-come to apply the concept of "copyright" ever more broadly. But in
-1710, it wasn't so much a concept as it was a very particular right. The
-copyright was born as a very specific set of restrictions: It forbade
- others
-from reprinting a book. In 1710, the "copy-right" was a right to use
-a particular machine to replicate a particular work. It did not go
- beyond
-that very narrow right. It did not control any more generally how
+First, about copyright. In the last three hundred years, we have come
+to apply the concept of "copyright" ever more broadly. But in 1710, it
+wasn't so much a concept as it was a very particular right. The
+copyright was born as a very specific set of restrictions: It forbade
+others from reprinting a book. In 1710, the "copy-right" was a right
+to use a particular machine to replicate a particular work. It did not
+go beyond that very narrow right. It did not control any more
+generally how
<!-- PAGE BREAK 99 -->
-a work could be used. Today the right includes a large collection of
- restrictions
-on the freedom of others: It grants the author the exclusive
-right to copy, the exclusive right to distribute, the exclusive right to
-perform, and so on.
+a work could be <emphasis>used</emphasis>. Today the right includes a
+large collection of restrictions on the freedom of others: It grants
+the author the exclusive right to copy, the exclusive right to
+distribute, the exclusive right to perform, and so on.
</para>
<para>
So, for example, even if the copyright to Shakespeare's works were
perpetual, all that would have meant under the original meaning of the
-term was that no one could reprint Shakespeare's work without the
- permission
-of the Shakespeare estate. It would not have controlled
- anything,
-for example, about how the work could be performed, whether
+term was that no one could reprint Shakespeare's work without the
+permission of the Shakespeare estate. It would not have controlled
+anything, for example, about how the work could be performed, whether
the work could be translated, or whether Kenneth Branagh would be
-allowed to make his films. The "copy-right" was only an exclusive right
-to print—no less, of course, but also no more.
+allowed to make his films. The "copy-right" was only an exclusive
+right to print—no less, of course, but also no more.
</para>
+<indexterm><primary>Henry VIII, King of England</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
-They had had a long and ugly experience with "exclusive rights,"
- especially
-"exclusive rights" granted by the Crown. The English had fought
-a civil war in part about the Crown's practice of handing out
- monopolies—especially
-monopolies for works that already existed. King Henry
-VIII granted a patent to print the Bible and a monopoly to Darcy to
-print playing cards. The English Parliament began to fight back
-against this power of the Crown. In 1656, it passed the Statute of
- Monopolies,
-limiting monopolies to patents for new inventions. And by
-1710, Parliament was eager to deal with the growing monopoly in
-publishing.
-</para>
-<para>
-Thus the "copy-right," when viewed as a monopoly right, was
- naturally
-viewed as a right that should be limited. (However convincing
-the claim that "it's my property, and I should have it forever," try
+They had had a long and ugly experience with "exclusive rights,"
+especially "exclusive rights" granted by the Crown. The English had
+fought a civil war in part about the Crown's practice of handing out
+monopolies—especially monopolies for works that already
+existed. King Henry VIII granted a patent to print the Bible and a
+monopoly to Darcy to print playing cards. The English Parliament began
+to fight back against this power of the Crown. In 1656, it passed the
+Statute of Monopolies, limiting monopolies to patents for new
+inventions. And by 1710, Parliament was eager to deal with the growing
+monopoly in publishing.
+</para>
+<para>
+Thus the "copy-right," when viewed as a monopoly right, was naturally
+viewed as a right that should be limited. (However convincing the
+claim that "it's my property, and I should have it forever," try
sounding convincing when uttering, "It's my monopoly, and I should
-have it forever.") The state would protect the exclusive right, but only
-so long as it benefited society. The British saw the harms from
- specialinterest
-favors; they passed a law to stop them.
+have it forever.") The state would protect the exclusive right, but
+only so long as it benefited society. The British saw the harms from
+specialinterest favors; they passed a law to stop them.
</para>
<para>
Second, about booksellers. It wasn't just that the copyright was a
Booksellers sound quaint and harmless to us. They were not viewed
as harmless in seventeenth-century England. Members of the Conger
<!-- PAGE BREAK 100 -->
-were increasingly seen as monopolists of the worst kind—tools of the
-Crown's repression, selling the liberty of England to guarantee
- themselves
-a monopoly profit. The attacks against these monopolists were
-harsh: Milton described them as "old patentees and monopolizers in
-the trade of book-selling"; they were "men who do not therefore labour
-in an honest profession to which learning is indetted."<footnote><para>
+
+were increasingly seen as monopolists of the worst
+kind—tools of the Crown's repression, selling the liberty of
+England to guarantee themselves a monopoly profit. The attacks against
+these monopolists were harsh: Milton described them as "old patentees
+and monopolizers in the trade of book-selling"; they were "men who do
+not therefore labour in an honest profession to which learning is
+indetted."<footnote><para>
+
<!-- f4 -->
-Philip Wittenberg, The Protection and Marketing of Literary Property (New
-York: J. Messner, Inc., 1937), 31.
+Philip Wittenberg, <citetitle>The Protection and Marketing of Literary
+Property</citetitle> (New York: J. Messner, Inc., 1937), 31.
</para></footnote>
</para>
<para>
-Many believed the power the booksellers exercised over the spread
-of knowledge was harming that spread, just at the time the
- Enlightenment
+Many believed the power the booksellers exercised over the spread of
+knowledge was harming that spread, just at the time the Enlightenment
was teaching the importance of education and knowledge spread
-generally. The idea that knowledge should be free was a hallmark of the
-time, and these powerful commercial interests were interfering with
-that idea.
+generally. The idea that knowledge should be free was a hallmark of
+the time, and these powerful commercial interests were interfering
+with that idea.
</para>
<para>
To balance this power, Parliament decided to increase competition
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).
+al., 8, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618).
</para></footnote>
</para>
</blockquote>
This was a clever argument, and one that had the support of some of
the leading jurists of the day. It also displayed extraordinary
chutzpah. Until then, as law professor Raymond Patterson has put it,
-"The publishers . . . had as much concern for authors as a cattle
+"The publishers … had as much concern for authors as a cattle
rancher has for cattle."<footnote><para>
<!-- f6 -->
-Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
-Law Review 40 (1987): 28. For a wonderfully compelling account, see
+Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," <citetitle>Vanderbilt
+Law Review</citetitle> 40 (1987): 28. For a wonderfully compelling account, see
Vaidhyanathan, 37–48.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
The hero of this fight was a Scottish bookseller named Alexander
Donaldson.<footnote><para>
<!-- f7 -->
-For a compelling account, see David Saunders, Authorship and Copyright
+For a compelling account, see David Saunders, <citetitle>Authorship and Copyright</citetitle>
(London: Routledge, 1992), 62–69.
</para></footnote>
</para>
reprints "of standard works whose copyright term had expired," at least
under the Statute of Anne.<footnote><para>
<!-- f8 -->
-Mark Rose, Authors and Owners (Cambridge: Harvard University Press,
+Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard University Press,
1993), 92.
+<indexterm><primary>Rose, Mark</primary></indexterm>
</para></footnote>
Donaldson's publishing house prospered
<!-- PAGE BREAK 102 -->
<!-- f9 -->
Ibid., 93.
</para></footnote>
+<indexterm><primary>Boswell, James</primary></indexterm>
<indexterm><primary>Erskine, Andrew</primary></indexterm>
</para>
<para>
of the supposed common law right of Literary
Property."<footnote><para>
<!-- f10 -->
-Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting
+Lyman Ray Patterson, <citetitle>Copyright in Historical Perspective</citetitle>, 167 (quoting
Borwell).
</para></footnote>
His books undercut the Conger prices by 30 to 50 percent, and he
<para>
The London booksellers quickly brought suit to block "piracy" like
Donaldson's. A number of actions were successful against the "pirates,"
-the most important early victory being Millar v. Taylor.
+the most important early victory being <citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>.
</para>
<para>
Millar was a bookseller who in 1729 had purchased the rights to James
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
+Exploding the Myth of Common Law Copyright," <citetitle>Wayne Law Review</citetitle> 29
(1983): 1152.
</para></footnote>
</para>
Ibid., 1156.
</para></footnote>
Donaldson then released an unauthorized edition
-of Thomson's works. Beckett, on the strength of the decision in Millar,
+of Thomson's works. Beckett, on the strength of the decision in <citetitle>Millar</citetitle>,
got an injunction against Donaldson. Donaldson appealed the case to
the House of Lords, which functioned much like our own Supreme
Court. In February of 1774, that body had the chance to interpret the
meaning of Parliament's limits from sixty years before.
</para>
<para>
-As few legal cases ever do, Donaldson v. Beckett drew an enormous
-amount of attention throughout Britain. Donaldson's lawyers argued
-that whatever rights may have existed under the common law, the Statute
-of Anne terminated those rights. After passage of the Statute of Anne,
-the only legal protection for an exclusive right to control publication
-came from that statute. Thus, they argued, after the term specified in
-the Statute of Anne expired, works that had been protected by the
-statute were no longer protected.
+As few legal cases ever do, <citetitle>Donaldson</citetitle> v. <citetitle>Beckett</citetitle> drew an
+enormous amount of attention throughout Britain. Donaldson's lawyers
+argued that whatever rights may have existed under the common law, the
+Statute of Anne terminated those rights. After passage of the Statute
+of Anne, the only legal protection for an exclusive right to control
+publication came from that statute. Thus, they argued, after the term
+specified in the Statute of Anne expired, works that had been
+protected by the statute were no longer protected.
</para>
<para>
The House of Lords was an odd institution. Legal questions were
passed into the public domain.
</para>
<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.
+"The public domain." Before the case of <citetitle>Donaldson</citetitle>
+v. <citetitle>Beckett</citetitle>, 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.
<indexterm><primary>Bacon, Francis</primary></indexterm>
<indexterm><primary>Bunyan, John</primary></indexterm>
<indexterm><primary>Johnson, Samuel</primary></indexterm>
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
+celebrated the decision in the streets. As the <citetitle>Edinburgh Advertiser</citetitle>
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
</para>
<para>
In London, however, at least among publishers, the reaction was
-equally strong in the opposite direction. The Morning Chronicle
+equally strong in the opposite direction. The <citetitle>Morning Chronicle</citetitle>
reported:
</para>
<blockquote>
<para>
-By the above decision . . . near 200,000 pounds worth of what was
+By the above decision … near 200,000 pounds worth of what was
honestly purchased at public sale, and which was yesterday thought
property is now reduced to nothing. The Booksellers of London and
Westminster, many of whom sold estates and houses to purchase
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
+<emphasis>free</emphasis>. 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 <emphasis>free</emphasis> 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 <emphasis>competitive
+context</emphasis>, 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>
protected.
</para>
<!-- PAGE BREAK 106 -->
-</sect1>
-<sect1 id="recorders">
+</chapter>
+<chapter label="7" id="recorders">
<title>CHAPTER SEVEN: Recorders</title>
<para>
Jon Else is a filmmaker. He is best known for his documentaries and
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
+and the opera company played Wagner, was <citetitle>The Simpsons</citetitle>. As Else judged
<!-- PAGE BREAK 107 -->
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
</para>
<para>
Years later, when he finally got funding to complete the film, Else
-attempted to clear the rights for those few seconds of The Simpsons.
+attempted to clear the rights for those few seconds of <citetitle>The Simpsons</citetitle>.
For of course, those few seconds are copyrighted; and of course, to use
copyrighted material you need the permission of the copyright owner,
unless "fair use" or some other privilege applies.
</para>
<para>
-Else called Simpsons creator Matt Groening's office to get permission.
+Else called <citetitle>Simpsons</citetitle> 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
</para>
<para>
Then, as Else told me, "two things happened. First we discovered
-. . . that Matt Groening doesn't own his own creation—or at
+… that Matt Groening doesn't own his own creation—or at
least that someone [at Fox] believes he doesn't own his own creation."
And second, Fox "wanted ten thousand dollars as a licensing fee for us
-to use this four-point-five seconds of . . . entirely unsolicited
-Simpsons which was in the corner of the shot."
+to use this four-point-five seconds of … entirely unsolicited
+<citetitle>Simpsons</citetitle> which was in the corner of the shot."
</para>
<para>
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
-explained to her, "There must be some mistake here. . . . We're
+explained to her, "There must be some mistake here. … We're
asking for your educational rate on this." That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
<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
+clip of <citetitle>The Simpsons</citetitle> in the corner of a shot in a documentary film
about
<!-- PAGE BREAK 108 -->
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.
+<citetitle>The Day After Trinity</citetitle>, from ten years before.
<indexterm><primary>San Francisco Opera</primary></indexterm>
<indexterm><primary>Day After Trinity, The</primary></indexterm>
</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
+copyright to <citetitle>The Simpsons</citetitle>. 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
+<citetitle>Simpsons</citetitle> 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.
</para>
<para>
-For example, "public performance" is a use of The Simpsons that the
+For example, "public performance" is a use of <citetitle>The Simpsons</citetitle> 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 <citetitle>Simpsons</citetitle>," 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.
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
+Wake of <citetitle>Eldred</citetitle>" (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
+Else's use of just 4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle>
+episode is clearly a fair use of <citetitle>The Simpsons</citetitle>—and fair use does
not require the permission of anyone.
</para>
<para>
</para>
<blockquote>
<para>
-The Simpsons fiasco was for me a great lesson in the gulf between what
+The <citetitle>Simpsons</citetitle> 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
<!-- 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
+tracking down and stopping unlicensed <citetitle>Simpsons</citetitle> usage, just as George
+Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> 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
+license to four seconds of <citetitle>Simpsons</citetitle>. 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.
<listitem><para>
<!-- 3. -->
I did, in fact, speak with one of your colleagues at Stanford Law
-School . . . who confirmed that it was fair use. He also confirmed
+School … who confirmed that it was fair use. He also confirmed
that Fox would "depose and litigate you to within an inch of your
life," regardless of the merits of my claim. He made clear that it
would boil down to who had the bigger legal department and the deeper
not.
</para>
<!-- PAGE BREAK 111 -->
-</sect1>
-<sect1 id="transformers">
+</chapter>
+<chapter label="8" id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
<indexterm><primary>Alben, Alex</primary></indexterm>
<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
+course we were going to use the "Make my day" clip from <citetitle>Dirty
+Harry</citetitle>. 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>
career.
</para>
<para>
-It was one year later—"and even then we weren't sure whether we
-were totally in the clear."
+It was one <emphasis>year</emphasis> later—"and even then we
+weren't sure whether we were totally in the clear."
</para>
<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
the music, there's the screenplay, there's the director, there's the
actors." But we just broke it down. We just put it into its
constituent parts and said, "Okay, there's this many actors, this many
-directors, . . . this many musicians," and we just went at it very
+directors, … this many musicians," and we just went at it very
systematically and cleared the rights.
</para>
</blockquote>
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
+U.S. Department of Commerce Office of Acquisition Management, <citetitle>Seven
+Steps to Performance-Based Services Acquisition</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #22</ulink>.
</para></footnote>
Did it make sense, I asked Alben, that this is the way a new work
has to be made?
</para>
<para>
-For, as he acknowledged, "very few . . . have the time and resources,
+For, as he acknowledged, "very few … have the time and resources,
and the will to do this," and thus, very few such works would ever be
made. Does it make sense, I asked him, from the standpoint of what
anybody really thought they were ever giving rights for originally, that
<blockquote>
<para>
I don't think so. When an actor renders a performance in a movie,
-he or she gets paid very well. . . . And then when 30 seconds of
+he or she gets paid very well. … And then when 30 seconds of
that performance is used in a new product that is a retrospective
-of somebody's career, I don't think that that person . . . should be
+of somebody's career, I don't think that that person … should be
compensated for that.
</para>
</blockquote>
<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?
+Or at least, is this <emphasis>how</emphasis> 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?
</para>
<blockquote>
<para>
</para>
<para>
The video was a brilliant collage of film from every period in the
-twentieth century, all framed around the idea of a 60 Minutes episode.
+twentieth century, all framed around the idea of a <citetitle>60 Minutes</citetitle> episode.
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
</para>
</para>
<para>
In February 2003, DreamWorks studios announced an agreement with Mike
-Myers, the comic genius of Saturday Night Live and
+Myers, the comic genius of <citetitle>Saturday Night Live</citetitle> and
<!-- PAGE BREAK 118 -->
Austin Powers. According to the announcement, Myers and Dream-Works
would work together to form a "unique filmmaking pact." Under the
curse, reserved for the few.
</para>
<!-- PAGE BREAK 119 -->
-</sect1>
-<sect1 id="collectors">
+</chapter>
+<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
<para>
In April 1996, millions of "bots"—computer codes designed to
</para>
<para>
This is the thing about the Internet that Orwell would have
-appreciated. In the dystopia described in 1984, old newspapers were
+appreciated. In the dystopia described in <citetitle>1984</citetitle>, 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>
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.
+repeat it. That's not quite correct. We <emphasis>all</emphasis>
+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
just a graduate student?" As Kahle put it,
</para>
<blockquote>
+<indexterm><primary>Quayle, Dan</primary></indexterm>
<para>
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
original back and forth exchanges between the two, the
<!-- PAGE BREAK 122 -->
-60 Minutes episode that came out after it . . . it would be almost
-impossible. . . . Those materials are almost unfindable. . . .
+<citetitle>60 Minutes</citetitle> episode that came out after it … it would be almost
+impossible. … Those materials are almost unfindable. …
</para>
</blockquote>
<para>
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 &
+the Library of Congress," <citetitle>Film Library Quarterly</citetitle> 13 nos. 2–3
+(1980): 5; Anthony Slide, <citetitle>Nitrate Won't Wait: A History of Film
+Preservation in the United States</citetitle> ( Jefferson, N.C.: McFarland &
Co., 1992), 36.
</para></footnote>
</para>
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,
+Bar Owner Starts a New Chapter by Adopting Business," <citetitle>Chicago Tribune</citetitle>,
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.
+"The First Sale Doctrine in the Era of Digital Networks," <citetitle>Boston
+College Law Review</citetitle> 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
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
-movies, . . . and about one to two million movies [distributed] during
+movies, … and about one to two million movies [distributed] during
the twentieth century. There are about twenty-six million different
titles of books. All of these would fit on computers that would fit in
this room and be able to be afforded by a small company. So we're at
a turning point in our history. Universal access is the goal. And the
opportunity of leading a different life, based on this, is
-. . . thrilling. It could be one of the things humankind would be most
+… thrilling. It could be one of the things humankind would be most
proud of. Up there with the Library of Alexandria, putting a man on
the moon, and the invention of the printing press.
</para>
<para>
Kahle is not the only librarian. The Internet Archive is not the only
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;
+libraries or archives could be. <emphasis>When</emphasis> 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;
<!-- 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.
+future <emphasis>for</emphasis> 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
that Kahle and others would exercise.
</para>
<!-- PAGE BREAK 127 -->
-</sect1>
-<sect1 id="property-i">
+</chapter>
+<chapter label="10" id="property-i">
<title>CHAPTER TEN: "Property"</title>
<para>
Jack Valenti has been the president of the Motion Picture Association
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
<indexterm><primary>Johnson, Lyndon</primary></indexterm>
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The MPAA is the American branch of the international Motion Picture
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>
+theme which animates this entire debate: <emphasis>Creative property
+owners must be accorded the same rights and protection resident in all
+other property owners in the nation</emphasis>. 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
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.
+extreme a claim made by <emphasis>anyone</emphasis> 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 <emphasis>no</emphasis> 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
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.
+"lawyer talk," see Bruce Ackerman, <citetitle>Private Property and the
+Constitution</citetitle> (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
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.
+sacred. It cannot <emphasis>ever</emphasis> 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
+<emphasis>requires</emphasis> 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.
</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?
+least try to understand <emphasis>why</emphasis>. 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?
</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.
+should be at the core of this war: Not <emphasis>whether</emphasis>
+creative property should be protected, but how. Not
+<emphasis>whether</emphasis> we will enforce the rights the law gives
+to creative-property owners, but what the particular mix of rights
+ought to be. Not <emphasis>whether</emphasis> artists should be paid,
+but whether institutions designed to assure that artists get paid need
+also control how culture develops.
</para>
<para>
<!-- PAGE BREAK 132 -->
To answer these questions, we need a more general way to talk about
how property is protected. More precisely, we need a more general way
-than the narrow language of the law allows. In Code and Other Laws of
-Cyberspace, I used a simple model to capture this more general
+than the narrow language of the law allows. In <citetitle>Code and Other Laws of
+Cyberspace</citetitle>, I used a simple model to capture this more general
perspective. For any particular right or regulation, this model asks
how four different modalities of regulation interact to support or
weaken the right or regulation. I represented it with this diagram:
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,
+other three is more timidly expressed. See Lawrence Lessig, <citetitle>Code: And
+Other Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95;
+Lawrence Lessig, "The New Chicago School," <citetitle>Journal of Legal Studies</citetitle>,
June 1998.
</para></footnote>
The law, in other words, sometimes operates to increase or decrease
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
+of liberty. As I argued in <citetitle>Code</citetitle>, 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:
+fear of government prosecution; John Stuart Mill, <citetitle>On Liberty</citetitle> (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:
+J. Samuels, eds., <citetitle>John R. Commons: Selected Essays</citetitle> (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
+places easier; 42 <citetitle>United States Code</citetitle>, 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
<indexterm><primary>Commons, John R.</primary></indexterm>
</para></footnote>
</para>
-<sect2 id="hollywood">
+<section id="hollywood">
<title>Why Hollywood Is Right</title>
<para>
The most obvious point that this model reveals is just why, or just
on the content industry's way of doing business, or as John Seely
Brown describes it, its "architecture of revenue."
</para>
+<indexterm><primary>railroad industry</primary></indexterm>
<para>
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
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?)
+railroads. Does anyone think we should ban trucks from roads
+<emphasis>for the purpose of</emphasis> 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.
1991, in a memo criticizing software patents, "established companies
have an interest in excluding future competitors."<footnote><para>
<!-- f6 -->
-Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71.
+Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, 1994), 170–71.
</para></footnote>
And relative to a
startup, established companies also have the means. (Think RCA and
the government to get into the business of regulating speech
markets. The risks and dangers of that game are precisely why our
framers created the First Amendment to our Constitution: "Congress
-shall make no law . . . abridging the freedom of speech." So when
+shall make no law … abridging the freedom of speech." So when
Congress is being asked to pass laws that would "abridge" the freedom
of speech, it should ask— carefully—whether such
regulation is justified.
</para>
<indexterm><primary>Carson, Rachel</primary></indexterm>
<para>
-But in 1962, Rachel Carson published Silent Spring, which argued that
+But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, which argued that
DDT, whatever its primary benefits, was also having unintended
environmental consequences. Birds were losing the ability to
reproduce. Whole chains of the ecology were being destroyed.
culture.<footnote><para>
<!-- f7 -->
See, for example, James Boyle, "A Politics of Intellectual Property:
-Environmentalism for the Net?" Duke Law Journal 47 (1997): 87.
+Environmentalism for the Net?" <citetitle>Duke Law Journal</citetitle> 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
be lost.
</para>
<indexterm startref="idxddt" class='endofrange'/>
-</sect2>
-<sect2 id="beginnings">
+</section>
+<section id="beginnings">
<title>Beginnings</title>
<para>
America copied English copyright law. Actually, we copied and improved
<!-- 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.
+"creative property rights." It says that Congress has the power
+<emphasis>to promote progress</emphasis>. 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.
+in chapter <xref xrefstyle="select: labelnumber" linkend="founders"/>,
+the English limited the term of copyright so as to assure that a few
+would not exercise disproportionate control over culture by exercising
+disproportionate control over publishing. We can assume the framers
+followed the English for a similar purpose. Indeed, unlike the
+English, the framers reinforced that objective, by requiring that
+copyrights extend "to Authors" only.
</para>
<para>
The design of the Progress Clause reflects something about the
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.
+case, a <emphasis>structure</emphasis> 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"
Let me explain how.
<!-- PAGE BREAK 144 -->
</para>
-</sect2>
-<sect2 id="lawduration">
+</section>
+<section id="lawduration">
<title>Law: Duration</title>
<para>
When the first Congress enacted laws to protect creative property, it
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,
+William W. Crosskey, <citetitle>Politics and the Constitution in the History of
+the United States</citetitle> (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).
+Law of the Land,' <emphasis>the perpetual rights which authors had, or
+were supposed by some to have, under the Common Law</emphasis>"
+(emphasis added).
<indexterm><primary>Crosskey, William W.</primary></indexterm>
</para></footnote>
This meant that there was no guaranteed public domain in the United
likely within fourteen years.<footnote><para>
<!-- 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
-of an Industry, 1630–1865 (New York: Bowker, 1972), 141. Of the 21,000
+to 1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A
+History of Book Publishing in the United States</citetitle>, vol. 1, <citetitle>The Creation
+of an Industry, 1630–1865</citetitle> (New York: Bowker, 1972), 141. Of the 21,000
imprints recorded before 1790, only twelve were copyrighted under the
-1790 act; William J. Maher, Copyright Term, Retrospective Extension
-and the Copyright Law of 1790 in Historical Context, 7–10 (2002),
+1790 act; William J. Maher, <citetitle>Copyright Term, Retrospective Extension
+and the Copyright Law of 1790 in Historical Context</citetitle>, 7–10 (2002),
available at <ulink url="http://free-culture.cc/notes/">link
#25</ulink>. Thus, the overwhelming majority of works fell
immediately into the public domain. Even those works that were
instance, of the 25,006 copyrights registered in 1883, only 894 were
renewed in 1910. For a year-by-year analysis of copyright renewal
rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright,"
-Studies on Copyright, vol. 1 (New York: Practicing Law Institute,
+<citetitle>Studies on Copyright</citetitle>, vol. 1 (New York: Practicing Law Institute,
1963), 618. For a more recent and comprehensive analysis, see William
M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright,"
-University of Chicago Law Review 70 (2003): 471, 498–501, and
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, 498–501, and
accompanying figures. </para></footnote>
</para>
<para>
<!-- f11 -->
See Ringer, ch. 9, n. 2. </para></footnote> When that happens, the
used books are traded free of copyright regulation. Thus the books are
-no longer effectively controlled by copyright. The only practical
-commercial use of the books at that time is to sell the books as used
-books; that use—because it does not involve publication—is
-effectively free.
+no longer <emphasis>effectively</emphasis> controlled by
+copyright. The only practical commercial use of the books at that time
+is to sell the books as used books; that use—because it does not
+involve publication—is effectively free.
</para>
<para>
In the first hundred years of the Republic, the term of copyright was
</para></footnote>
</para>
<!-- PAGE BREAK 147 -->
-</sect2>
-<sect2 id="lawscope">
+</section>
+<section id="lawscope">
<title>Law: Scope</title>
<para>
The "scope" of a copyright is the range of rights granted by the law.
copyright law, there was a requirement that a work be registered
before it could receive the protection of a copyright. There was also
a requirement that any copyrighted work be marked either with that
-famous © or the word copyright. And for most of the history of
-American copyright law, there was a requirement that works be
-deposited with the government before a copyright could be secured.
+famous © or the word <emphasis>copyright</emphasis>. And for most
+of the history of American copyright law, there was a requirement that
+works be deposited with the government before a copyright could be
+secured.
</para>
<para>
The reason for the registration requirement was the sensible
so as to prevent that kind of unfair competition. In 1790, there were
174 publishers in the United States.<footnote><para>
<!-- f13 -->
-See Thomas Bender and David Sampliner, "Poets, Pirates, and the
- Creation
-of American Literature," 29 New York University Journal of
- International
-Law and Politics 255 (1997), and James Gilraeth, ed., Federal
-Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
+See Thomas Bender and David Sampliner, "Poets, Pirates, and the
+Creation of American Literature," 29 <citetitle>New York University Journal of
+International Law and Politics</citetitle> 255 (1997), and James Gilraeth, ed.,
+Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
+
</para></footnote>
The Copyright Act was thus a tiny
regulation of a tiny proportion of a tiny part of the creative market in
</para>
<para>
<!-- PAGE BREAK 149 -->
-The act left other creators totally unregulated. If I copied your
-poem by hand, over and over again, as a way to learn it by heart, my
-act was totally unregulated by the 1790 act. If I took your novel and
-made a play based upon it, or if I translated it or abridged it, none of
-those activities were regulated by the original copyright act. These
- creative
-activities remained free, while the activities of publishers were
- restrained.
+The act left other creators totally unregulated. If I copied your poem
+by hand, over and over again, as a way to learn it by heart, my act
+was totally unregulated by the 1790 act. If I took your novel and made
+a play based upon it, or if I translated it or abridged it, none of
+those activities were regulated by the original copyright act. These
+creative activities remained free, while the activities of publishers
+were restrained.
</para>
<para>
Today the story is very different: If you write a book, your book is
automatically protected. Indeed, not just your book. Every e-mail,
-every note to your spouse, every doodle, every creative act that's
- reduced
-to a tangible form—all of this is automatically copyrighted.
-There is no need to register or mark your work. The protection follows
-the creation, not the steps you take to protect it.
+every note to your spouse, every doodle, <emphasis>every</emphasis>
+creative act that's reduced to a tangible form—all of this is
+automatically copyrighted. There is no need to register or mark your
+work. The protection follows the creation, not the steps you take to
+protect it.
</para>
<para>
That protection gives you the right (subject to a narrow range of
those slight modifications as well as the verbatim original work.
</para>
<para>
-
<!-- PAGE BREAK 150 -->
-In preventing that joke, the law created an astonishing power within
-a free culture—at least, it's astonishing when you understand that the
-law applies not just to the commercial publisher but to anyone with a
-computer. I understand the wrong in duplicating and selling someone
-else's work. But whatever that wrong is, transforming someone else's
-work is a different wrong. Some view transformation as no wrong at
-all—they believe that our law, as the framers penned it, should not
- protect
-derivative rights at all.<footnote><para>
+In preventing that joke, the law created an astonishing power
+within a free culture—at least, it's astonishing when you
+understand that the law applies not just to the commercial publisher
+but to anyone with a computer. I understand the wrong in duplicating
+and selling someone else's work. But whatever
+<emphasis>that</emphasis> wrong is, transforming someone else's work
+is a different wrong. Some view transformation as no wrong at
+all—they believe that our law, as the framers penned it, should
+
not protect derivative rights at all.<footnote><para>
<!-- f14 -->
-Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August
-2003, available at
+Jonathan Zittrain, "The Copyright Cage," <citetitle>Legal
+Affairs</citetitle>, July/August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
the wrong of direct piracy.
</para>
<para>
-Yet copyright law treats these two different wrongs in the same
-way. I can go to court and get an injunction against your pirating my
-book. I can go to court and get an injunction against your
- transformative
-use of my book.<footnote><para>
+Yet copyright law treats these two different wrongs in the same way. I
+can go to court and get an injunction against your pirating my book. I
+can go to court and get an injunction against your transformative use
+of my book.<footnote><para>
<!-- f15 -->
Professor Rubenfeld has presented a powerful constitutional argument
-about the difference that copyright law should draw (from the perspective
-of the First Amendment) between mere "copies" and derivative works. See
-Jed Rubenfeld, "The Freedom of Imagination: Copyright's
- Constitutionality,"
-Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59).
+about the difference that copyright law should draw (from the
+perspective of the First Amendment) between mere "copies" and
+derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
+Copyright's Constitutionality," <citetitle>Yale Law
+Journal</citetitle> 112 (2002): 1–60 (see especially
+pp. 53–59).
+<indexterm><primary>Rubenfeld, Jeb</primary></indexterm>
</para></footnote>
-These two different uses of my creative work are
-treated the same.
+These two different uses of my creative work are treated the same.
</para>
<para>
-This again may seem right to you. If I wrote a book, then why
-should you be able to write a movie that takes my story and makes
-money from it without paying me or crediting me? Or if Disney
- creates
-a creature called "Mickey Mouse," why should you be able to make
-Mickey Mouse toys and be the one to trade on the value that Disney
-originally created?
+This again may seem right to you. If I wrote a book, then why should
+you be able to write a movie that takes my story and makes money from
+it without paying me or crediting me? Or if Disney creates a creature
+called "Mickey Mouse," why should you be able to make Mickey Mouse
+toys and be the one to trade on the value that Disney originally
+created?
</para>
<para>
These are good arguments, and, in general, my point is not that the
-derivative right is unjustified. My aim just now is much narrower:
- simply
-to make clear that this expansion is a significant change from the
-rights originally granted.
+derivative right is unjustified. My aim just now is much narrower:
+simply to make clear that this expansion is a significant change from
+the rights originally granted.
</para>
-</sect2>
-<sect2 id="lawreach">
+</section>
+<section id="lawreach">
<title>Law and Architecture: Reach</title>
<para>
Whereas originally the law regulated only publishers, the change in
and authors. It regulates them because all three are capable of making
copies, and the core of the regulation of copyright law is copies.<footnote><para>
<!-- f16 -->
-This is a simplification of the law, but not much of one. The law certainly
-regulates more than "copies"—a public performance of a copyrighted
-song, for example, is regulated even though performance per se doesn't
-make a copy; 17 United States Code, section 106(4). And it certainly
- sometimes
-doesn't regulate a "copy"; 17 United States Code, section 112(a). But
-the presumption under the existing law (which regulates "copies;" 17
-United States Code, section 102) is that if there is a copy, there is a right.
+This is a simplification of the law, but not much of one. The law
+certainly regulates more than "copies"—a public performance of a
+copyrighted song, for example, is regulated even though performance
+per se doesn't make a copy; 17 <citetitle>United States Code</citetitle>, section
+106(4). And it certainly sometimes doesn't regulate a "copy"; 17
+<citetitle>United States Code</citetitle>, section 112(a). But the presumption under the
+existing law (which regulates "copies;" 17 <citetitle>United States Code</citetitle>, section
+102) is that if there is a copy, there is a right.
</para></footnote>
</para>
<para>
<!-- PAGE BREAK 151 -->
-"Copies." That certainly sounds like the obvious thing for copyright
-law to regulate. But as with Jack Valenti's argument at the start of this
-chapter, that "creative property" deserves the "same rights" as all other
-property, it is the obvious that we need to be most careful about. For
-while it may be obvious that in the world before the Internet, copies
-were the obvious trigger for copyright law, upon reflection, it should be
-obvious that in the world with the Internet, copies should not be the
-trigger for copyright law. More precisely, they should not always be the
-trigger for copyright law.
+"Copies." That certainly sounds like the obvious thing for
+<emphasis>copy</emphasis>right law to regulate. But as with Jack
+Valenti's argument at the start of this chapter, that "creative
+property" deserves the "same rights" as all other property, it is the
+<emphasis>obvious</emphasis> that we need to be most careful
+about. For while it may be obvious that in the world before the
+Internet, copies were the obvious trigger for copyright law, upon
+reflection, it should be obvious that in the world with the Internet,
+copies should <emphasis>not</emphasis> be the trigger for copyright
+law. More precisely, they should not <emphasis>always</emphasis> be
+the trigger for copyright law.
</para>
<para>
This is perhaps the central claim of this book, so let me take this
Internet should at least force us to rethink the conditions under which
the law of copyright automatically applies,<footnote><para>
<!-- f17 -->
-Thus, my argument is not that in each place that copyright law extends,
-we should repeal it. It is instead that we should have a good argument for
-its extending where it does, and should not determine its reach on the
- basis
-of arbitrary and automatic changes caused by technology.
+Thus, my argument is not that in each place that copyright law
+extends, we should repeal it. It is instead that we should have a good
+argument for its extending where it does, and should not determine its
+reach on the basis of arbitrary and automatic changes caused by
+technology.
</para></footnote>
because it is clear that the
current reach of copyright was never contemplated, much less chosen,
<para>
<!-- PAGE BREAK 152 -->
Think about a book in real space, and imagine this circle to represent
-all its potential uses. Most of these uses are unregulated by
-copyright law, because the uses don't create a copy. If you read a
-book, that act is not regulated by copyright law. If you give someone
-the book, that act is not regulated by copyright law. If you resell a
-book, that act is not regulated (copyright law expressly states that
-after the first sale of a book, the copyright owner can impose no
-further conditions on the disposition of the book). If you sleep on
-the book or use it to hold up a lamp or let your puppy chew it up,
-those acts are not regulated by copyright law, because those acts do
-not make a copy.
+all its potential <emphasis>uses</emphasis>. Most of these uses are
+unregulated by copyright law, because the uses don't create a copy. If
+you read a book, that act is not regulated by copyright law. If you
+give someone the book, that act is not regulated by copyright law. If
+you resell a book, that act is not regulated (copyright law expressly
+states that after the first sale of a book, the copyright owner can
+impose no further conditions on the disposition of the book). If you
+sleep on the book or use it to hold up a lamp or let your puppy chew
+it up, those acts are not regulated by copyright law, because those
+acts do not make a copy.
</para>
<figure id="fig-1531">
<title>Examples of unregulated uses of a book.</title>
<graphic fileref="images/1541.png"></graphic>
</figure>
<para>
-These are uses that themselves involve copying, but which the law treats
-as unregulated because public policy demands that they remain
- unregulated.
-You are free to quote from this book, even in a review that
-is quite negative, without my permission, even though that quoting
-makes a copy. That copy would ordinarily give the copyright owner the
-exclusive right to say whether the copy is allowed or not, but the law
-denies the owner any exclusive right over such "fair uses" for public
-policy (and possibly First Amendment) reasons.
+These are uses that themselves involve copying, but which the law
+treats as unregulated because public policy demands that they remain
+unregulated. You are free to quote from this book, even in a review
+that is quite negative, without my permission, even though that
+quoting makes a copy. That copy would ordinarily give the copyright
+owner the exclusive right to say whether the copy is allowed or not,
+but the law denies the owner any exclusive right over such "fair uses"
+for public policy (and possibly First Amendment) reasons.
</para>
<figure id="fig-1542">
<title>Unregulated copying considered "fair uses."</title>
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.<footnote><para>
<!-- f18 -->
-I don't mean "nature" in the sense that it couldn't be different, but rather that
-its present instantiation entails a copy. Optical networks need not make
-copies of content they transmit, and a digital network could be designed to
-delete anything it copies so that the same number of copies remain.
-</para></footnote>
-And because of this single,
-arbitrary feature of the design of a digital network, the scope of
- category
-1 changes dramatically. Uses that before were presumptively
- unregulated
-are now presumptively regulated. No longer is there a set of
-presumptively unregulated uses that define a freedom associated with a
-copyrighted work. Instead, each use is now subject to the copyright,
-because each use also makes a copy—category 1 gets sucked into
- category
-2. And those who would defend the unregulated uses of
- copyrighted
-work must look exclusively to category 3, fair uses, to bear the
-burden of this shift.
+I don't mean "nature" in the sense that it couldn't be different, but
+rather that its present instantiation entails a copy. Optical networks
+need not make copies of content they transmit, and a digital network
+could be designed to delete anything it copies so that the same number
+of copies remain.
+</para></footnote>
+And because of this single, arbitrary feature of the design of a
+digital network, the scope of category 1 changes dramatically. Uses
+that before were presumptively unregulated are now presumptively
+regulated. No longer is there a set of presumptively unregulated uses
+that define a freedom associated with a copyrighted work. Instead,
+each use is now subject to the copyright, because each use also makes
+a copy—category 1 gets sucked into category 2. And those who
+would defend the unregulated uses of copyrighted work must look
+exclusively to category 3, fair uses, to bear the burden of this
+shift.
</para>
<para>
So let's be very specific to make this general point clear. Before the
-Internet, if you purchased a book and read it ten times, there would be
-no plausible copyright-related argument that the copyright owner could
-make to control that use of her book. Copyright law would have
- nothing
-to say about whether you read the book once, ten times, or every
+Internet, if you purchased a book and read it ten times, there would
+be no plausible <emphasis>copyright</emphasis>-related argument that
+the copyright owner could make to control that use of her
+book. Copyright law would have nothing to say about whether you read
+the book once, ten times, or every
<!-- PAGE BREAK 155 -->
-night before you went to bed. None of those instances of use—reading—
-could be regulated by copyright law because none of those uses
- produced
-a copy.
+night before you went to bed. None of those instances of
+use—reading— could be regulated by copyright law because
+none of those uses produced a copy.
</para>
<para>
-But the same book as an e-book is effectively governed by a
- different
+But the same book as an e-book is effectively governed by a different
set of rules. Now if the copyright owner says you may read the book
-only once or only once a month, then copyright law would aid the
- copyright
-owner in exercising this degree of control, because of the
- accidental
-feature of copyright law that triggers its application upon there
-being a copy. Now if you read the book ten times and the license says
-you may read it only five times, then whenever you read the book (or
-any portion of it) beyond the fifth time, you are making a copy of the
-book contrary to the copyright owner's wish.
+only once or only once a month, then <emphasis>copyright
+law</emphasis> would aid the copyright owner in exercising this degree
+of control, because of the accidental feature of copyright law that
+triggers its application upon there being a copy. Now if you read the
+book ten times and the license says you may read it only five times,
+then whenever you read the book (or any portion of it) beyond the
+fifth time, you are making a copy of the book contrary to the
+copyright owner's wish.
</para>
<para>
There are some people who think this makes perfect sense. My aim
</para>
<para>
First, making category 1 disappear is not anything any policy maker
-ever intended. Congress did not think through the collapse of the
- presumptively
-unregulated uses of copyrighted works. There is no
- evidence
-at all that policy makers had this idea in mind when they allowed
-our policy here to shift. Unregulated uses were an important part of
-free culture before the Internet.
-</para>
-<para>
-Second, this shift is especially troubling in the context of
- transformative
-uses of creative content. Again, we can all understand the wrong
-in commercial piracy. But the law now purports to regulate any
- transformation
-you make of creative work using a machine. "Copy and paste"
-and "cut and paste" become crimes. Tinkering with a story and
- releasing
-it to others exposes the tinkerer to at least a requirement of
- justification.
-However troubling the expansion with respect to copying a
-particular work, it is extraordinarily troubling with respect to
- transformative
-uses of creative work.
+ever intended. Congress did not think through the collapse of the
+presumptively unregulated uses of copyrighted works. There is no
+evidence at all that policy makers had this idea in mind when they
+allowed our policy here to shift. Unregulated uses were an important
+part of free culture before the Internet.
+</para>
+<para>
+Second, this shift is especially troubling in the context of
+transformative uses of creative content. Again, we can all understand
+the wrong in commercial piracy. But the law now purports to regulate
+<emphasis>any</emphasis> transformation you make of creative work
+using a machine. "Copy and paste" and "cut and paste" become
+crimes. Tinkering with a story and releasing it to others exposes the
+tinkerer to at least a requirement of justification. However
+troubling the expansion with respect to copying a particular work, it
+is extraordinarily troubling with respect to transformative uses of
+creative work.
</para>
<para>
Third, this shift from category 1 to category 2 puts an extraordinary
<!-- PAGE BREAK 156 -->
-burden on category 3 ("fair use") that fair use never before had to bear.
-If a copyright owner now tried to control how many times I could read
-a book on-line, the natural response would be to argue that this is a
-violation of my fair use rights. But there has never been any litigation
-about whether I have a fair use right to read, because before the
- Internet,
-reading did not trigger the application of copyright law and hence
-the need for a fair use defense. The right to read was effectively
- protected
-before because reading was not regulated.
+burden on category 3 ("fair use") that fair use never before had to
+bear. If a copyright owner now tried to control how many times I
+could read a book on-line, the natural response would be to argue that
+this is a violation of my fair use rights. But there has never been
+any litigation about whether I have a fair use right to read, because
+before the Internet, reading did not trigger the application of
+copyright law and hence the need for a fair use defense. The right to
+read was effectively protected before because reading was not
+regulated.
</para>
<para>
This point about fair use is totally ignored, even by advocates for
-free culture. We have been cornered into arguing that our rights
- depend
-upon fair use—never even addressing the earlier question about
-the expansion in effective regulation. A thin protection grounded in
-fair use makes sense when the vast majority of uses are unregulated. But
-when everything becomes presumptively regulated, then the
- protections
-of fair use are not enough.
+free culture. We have been cornered into arguing that our rights
+depend upon fair use—never even addressing the earlier question
+about the expansion in effective regulation. A thin protection
+grounded in fair use makes sense when the vast majority of uses are
+<emphasis>unregulated</emphasis>. But when everything becomes
+presumptively regulated, then the protections of fair use are not
+enough.
</para>
<para>
The case of Video Pipeline is a good example. Video Pipeline was
the trailers on tape, and sold the tapes to the retail stores.
</para>
<para>
-The company did this for about fifteen years. Then, in 1997, it
- began
-to think about the Internet as another way to distribute these
- previews.
-The idea was to expand their "selling by sampling" technique by
-giving on-line stores the same ability to enable "browsing." Just as in a
-bookstore you can read a few pages of a book before you buy the book,
-so, too, you would be able to sample a bit from the movie on-line
- before
-you bought it.
+The company did this for about fifteen years. Then, in 1997, it began
+to think about the Internet as another way to distribute these
+previews. The idea was to expand their "selling by sampling"
+technique by giving on-line stores the same ability to enable
+"browsing." Just as in a bookstore you can read a few pages of a book
+before you buy the book, so, too, you would be able to sample a bit
+from the movie on-line before you bought it.
</para>
<para>
-In 1998, Video Pipeline informed Disney and other film
- distributors
+In 1998, Video Pipeline informed Disney and other film distributors
that it intended to distribute the trailers through the Internet
(rather than sending the tapes) to distributors of their videos. Two
years later, Disney told Video Pipeline to stop. The owner of Video
<!-- PAGE BREAK 157 -->
Pipeline asked Disney to talk about the matter—he had built a
- business
-on distributing this content as a way to help sell Disney films; he
-had customers who depended upon his delivering this content. Disney
-would agree to talk only if Video Pipeline stopped the distribution
- immediately.
-Video Pipeline thought it was within their "fair use" rights
-to distribute the clips as they had. So they filed a lawsuit to ask the
-court to declare that these rights were in fact their rights.
+business on distributing this content as a way to help sell Disney
+films; he had customers who depended upon his delivering this
+content. Disney would agree to talk only if Video Pipeline stopped the
+distribution immediately. Video Pipeline thought it was within their
+"fair use" rights to distribute the clips as they had. So they filed a
+lawsuit to ask the court to declare that these rights were in fact
+their rights.
</para>
<para>
Disney countersued—for $100 million in damages. Those damages
-were predicated upon a claim that Video Pipeline had "willfully
- infringed"
-on Disney's copyright. When a court makes a finding of
- willful
-infringement, it can award damages not on the basis of the actual
-harm to the copyright owner, but on the basis of an amount set in the
-statute. Because Video Pipeline had distributed seven hundred clips of
-Disney movies to enable video stores to sell copies of those movies,
-Disney was now suing Video Pipeline for $100 million.
+were predicated upon a claim that Video Pipeline had "willfully
+infringed" on Disney's copyright. When a court makes a finding of
+willful infringement, it can award damages not on the basis of the
+actual harm to the copyright owner, but on the basis of an amount set
+in the statute. Because Video Pipeline had distributed seven hundred
+clips of Disney movies to enable video stores to sell copies of those
+movies, Disney was now suing Video Pipeline for $100 million.
</para>
<para>
Disney has the right to control its property, of course. But the video
owners choose. In some contexts, at least, that fact is harmless. But
in some contexts it is a recipe for disaster.
</para>
-</sect2>
-<sect2 id="lawforce">
+</section>
+<section id="lawforce">
<title>Architecture and Law: Force</title>
<para>
The disappearance of unregulated uses would be change enough, but a
your freedom.
</para>
<indexterm><primary>Casablanca</primary></indexterm>
+<indexterm id="idxmarxbrothers" class='startofrange'>
+ <primary>Marx Brothers</primary>
+</indexterm>
+<indexterm id="idxwarnerbrothers" class='startofrange'>
+ <primary>Warner Brothers</primary>
+</indexterm>
<para>
There's a famous story about a battle between the Marx Brothers
and Warner Brothers. The Marxes intended to make a parody of
<!-- PAGE BREAK 159 -->
-Casablanca. Warner Brothers objected. They wrote a nasty letter to the
-Marxes, warning them that there would be serious legal consequences
-if they went forward with their plan.<footnote><para>
+<citetitle>Casablanca</citetitle>. Warner Brothers objected. They
+wrote a nasty letter to the Marxes, warning them that there would be
+serious legal consequences if they went forward with their
+plan.<footnote><para>
<!-- f19 -->
-See David Lange, "Recognizing the Public Domain," Law and
-Contemporary Problems 44 (1981): 172–73.
+See David Lange, "Recognizing the Public Domain," <citetitle>Law and
+Contemporary Problems</citetitle> 44 (1981): 172–73.
</para></footnote>
</para>
<para>
Warner Brothers that the Marx Brothers "were brothers long before
you were."<footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3.
+Ibid. See also Vaidhyanathan, <citetitle>Copyrights and
+Copywrongs</citetitle>, 1–3.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
-The Marx Brothers therefore owned the word brothers,
-and if Warner Brothers insisted on trying to control Casablanca, then
-the Marx Brothers would insist on control over brothers.
+The Marx Brothers therefore owned the word
+<citetitle>brothers</citetitle>, and if Warner Brothers insisted on
+trying to control <citetitle>Casablanca</citetitle>, then the Marx
+Brothers would insist on control over <citetitle>brothers</citetitle>.
</para>
<para>
An absurd and hollow threat, of course, because Warner Brothers,
(including Warner Brothers) enjoyed.
</para>
<para>
-On the Internet, however, there is no check on silly rules, because
-on the Internet, increasingly, rules are enforced not by a human but by
-a machine: Increasingly, the rules of copyright law, as interpreted by
-the copyright owner, get built into the technology that delivers
- copyrighted
-content. It is code, rather than law, that rules. And the problem
-with code regulations is that, unlike law, code has no shame. Code
-would not get the humor of the Marx Brothers. The consequence of
-that is not at all funny.
+On the Internet, however, there is no check on silly rules, because on
+the Internet, increasingly, rules are enforced not by a human but by a
+machine: Increasingly, the rules of copyright law, as interpreted by
+the copyright owner, get built into the technology that delivers
+copyrighted content. It is code, rather than law, that rules. And the
+problem with code regulations is that, unlike law, code has no
+shame. Code would not get the humor of the Marx Brothers. The
+consequence of that is not at all funny.
</para>
+<indexterm startref="idxwarnerbrothers" class='endofrange'/>
+<indexterm startref="idxmarxbrothers" class='endofrange'/>
+
+<indexterm id="idxadobeebookreader" class='startofrange'>
+ <primary>Adobe eBook Reader</primary>
+</indexterm>
<para>
Consider the life of my Adobe eBook Reader.
</para>
<para>
-An e-book is a book delivered in electronic form. An Adobe eBook
-is not a book that Adobe has published; Adobe simply produces the
-software that publishers use to deliver e-books. It provides the
- technology,
-and the publisher delivers the content by using the technology.
+An e-book is a book delivered in electronic form. An Adobe eBook is
+not a book that Adobe has published; Adobe simply produces the
+software that publishers use to deliver e-books. It provides the
+technology, and the publisher delivers the content by using the
+technology.
</para>
<para>
On the next page is a picture of an old version of my Adobe eBook
Reader.
</para>
<para>
-As you can see, I have a small collection of e-books within this
+As you can see, I have a small collection of e-books within this
e-book library. Some of these books reproduce content that is in the
-public domain: Middlemarch, for example, is in the public domain.
-Some of them reproduce content that is not in the public domain: My
-own book The Future of Ideas is not yet within the public domain.
-Consider Middlemarch first. If you click on my e-book copy of
+public domain: <citetitle>Middlemarch</citetitle>, for example, is in
+the public domain. Some of them reproduce content that is not in the
+public domain: My own book <citetitle>The Future of Ideas</citetitle>
+is not yet within the public domain. Consider
+<citetitle>Middlemarch</citetitle> first. If you click on my e-book
+copy of
<!-- PAGE BREAK 160 -->
-Middlemarch, you'll see a fancy cover, and then a button at the bottom
-called Permissions.
+<citetitle>Middlemarch</citetitle>, you'll see a fancy cover, and then
+a button at the bottom called Permissions.
</para>
<figure id="fig-1611">
<title>Picture of an old version of Adobe eBook Reader</title>
</figure>
<para>
<!-- PAGE BREAK 161 -->
-According to my eBook
-Reader, I have the permission
-to copy to the clipboard of the
-computer ten text selections
-every ten days. (So far, I've
-copied no text to the clipboard.)
-I also have the permission to
-print ten pages from the book
-every ten days. Lastly, I have
-the permission to use the Read
-Aloud button to hear
- Middlemarch
-read aloud through the
-computer.
+According to my eBook Reader, I have the permission to copy to the
+clipboard of the computer ten text selections every ten days. (So far,
+I've copied no text to the clipboard.) I also have the permission to
+print ten pages from the book every ten days. Lastly, I have the
+permission to use the Read Aloud button to hear <citetitle>Middlemarch</citetitle>
+read aloud through the computer.
</para>
<para>
Here's the e-book for another work in the public domain (including the
-translation): Aristotle's Politics.
+translation): Aristotle's <citetitle>Politics</citetitle>.
+<indexterm><primary>Aristotle</primary></indexterm>
+<indexterm><primary><citetitle>Politics</citetitle>, (Aristotle)</primary></indexterm>
</para>
<figure id="fig-1621">
<title>E-book of Aristotle;s "Politics"</title>
</figure>
<para>
Finally (and most embarrassingly), here are the permissions for the
-original e-book version of my last book, The Future of Ideas:
+original e-book version of my last book, <citetitle>The Future of
+Ideas</citetitle>:
</para>
<!-- PAGE BREAK 162 -->
<figure id="fig-1631">
No copying, no printing, and don't you dare try to listen to this book!
</para>
<para>
-Now, the Adobe eBook Reader calls these controls "permissions"—
-as if the publisher has the power to control how you use these works.
-For works under copyright, the copyright owner certainly does have
-the power—up to the limits of the copyright law. But for work not
- under
-
copyright, there is no such copyright power.<footnote><para>
+Now, the Adobe eBook Reader calls these controls
+"permissions"— as if the publisher has the power to control how
+you use these works. For works under copyright, the copyright owner
+certainly does have the power—up to the limits of the copyright
+law. But for work not under copyright, there is no such copyright
+power.<footnote><para>
<!-- f21 -->
-In principle, a contract might impose a requirement on me. I might, for
-example, buy a book from you that includes a contract that says I will read
-it only three times, or that I promise to read it three times. But that
- obligation
-(and the limits for creating that obligation) would come from the
-contract, not from copyright law, and the obligations of contract would
-not necessarily pass to anyone who subsequently acquired the book.
+In principle, a contract might impose a requirement on me. I might,
+for example, buy a book from you that includes a contract that says I
+will read it only three times, or that I promise to read it three
+times. But that obligation (and the limits for creating that
+obligation) would come from the contract, not from copyright law, and
+the obligations of contract would not necessarily pass to anyone who
+subsequently acquired the book.
</para></footnote>
-When my e-book of
-Middlemarch says I have the permission to copy only ten text selections
-into the memory every ten days, what that really means is that the
-eBook Reader has enabled the publisher to control how I use the book
-on my computer, far beyond the control that the law would enable.
+When my e-book of <citetitle>Middlemarch</citetitle> says I have the
+permission to copy only ten text selections into the memory every ten
+days, what that really means is that the eBook Reader has enabled the
+publisher to control how I use the book on my computer, far beyond the
+control that the law would enable.
</para>
<para>
The control comes instead from the code—from the technology
within which the e-book "lives." Though the e-book says that these are
-permissions, they are not the sort of "permissions" that most of us deal
-with. When a teenager gets "permission" to stay out till midnight, she
-knows (unless she's Cinderella) that she can stay out till 2 A.M., but
-will suffer a punishment if she's caught. But when the Adobe eBook
-Reader says I have the permission to make ten copies of the text into
-the computer's memory, that means that after I've made ten copies, the
-computer will not make any more. The same with the printing
- restrictions:
-After ten pages, the eBook Reader will not print any more pages.
-It's the same with the silly restriction that says that you can't use the
-Read Aloud button to read my book aloud—it's not that the company
-will sue you if you do; instead, if you push the Read Aloud button with
-my book, the machine simply won't read aloud.
+permissions, they are not the sort of "permissions" that most of us
+deal with. When a teenager gets "permission" to stay out till
+midnight, she knows (unless she's Cinderella) that she can stay out
+till 2 A.M., but will suffer a punishment if she's caught. But when
+the Adobe eBook Reader says I have the permission to make ten copies
+of the text into the computer's memory, that means that after I've
+made ten copies, the computer will not make any more. The same with
+the printing restrictions: After ten pages, the eBook Reader will not
+print any more pages. It's the same with the silly restriction that
+says that you can't use the Read Aloud button to read my book
+aloud—it's not that the company will sue you if you do; instead,
+if you push the Read Aloud button with my book, the machine simply
+won't read aloud.
</para>
<para>
<!-- PAGE BREAK 163 -->
-These are controls, not permissions. Imagine a world where the
-Marx Brothers sold word processing software that, when you tried to
-type "Warner Brothers," erased "Brothers" from the sentence.
+These are <emphasis>controls</emphasis>, not permissions. Imagine a
+world where the Marx Brothers sold word processing software that, when
+you tried to type "Warner Brothers," erased "Brothers" from the
+sentence.
+<indexterm><primary>Marx Brothers</primary></indexterm>
</para>
<para>
-This is the future of copyright law: not so much copyright law as
-copyright code. The controls over access to content will not be controls
-that are ratified by courts; the controls over access to content will be
-controls that are coded by programmers. And whereas the controls that
-are built into the law are always to be checked by a judge, the controls
-that are built into the technology have no similar built-in check.
+This is the future of copyright law: not so much copyright
+<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. The
+controls over access to content will not be controls that are ratified
+by courts; the controls over access to content will be controls that
+are coded by programmers. And whereas the controls that are built into
+the law are always to be checked by a judge, the controls that are
+built into the technology have no similar built-in check.
</para>
<para>
How significant is this? Isn't it always possible to get around the
-controls built into the technology? Software used to be sold with
- technologies
-that limited the ability of users to copy the software, but those
-were trivial protections to defeat. Why won't it be trivial to defeat these
-protections as well?
+controls built into the technology? Software used to be sold with
+technologies that limited the ability of users to copy the software,
+but those were trivial protections to defeat. Why won't it be trivial
+to defeat these protections as well?
</para>
<para>
We've only scratched the surface of this story. Return to the Adobe
eBook Reader.
</para>
<para>
-Early in the life of the Adobe eBook Reader, Adobe suffered a
- public
-relations nightmare. Among the books that you could download for
-free on the Adobe site was a copy of Alice's Adventures in Wonderland.
-This wonderful book is in the public domain. Yet when you clicked on
-Permissions for that book, you got the following report:
+Early in the life of the Adobe eBook Reader, Adobe suffered a public
+relations nightmare. Among the books that you could download for free
+on the Adobe site was a copy of <citetitle>Alice's Adventures in
+Wonderland</citetitle>. This wonderful book is in the public
+domain. Yet when you clicked on Permissions for that book, you got the
+following report:
+<indexterm><primary>Alice's Adventures in Wonderland (Carroll)</primary></indexterm>
</para>
<figure id="fig-1641">
<title>List of the permissions for "Alice's Adventures in
</figure>
<para>
<!-- PAGE BREAK 164 -->
-Here was a public domain children's book that you were not
- allowed
-to copy, not allowed to lend, not allowed to give, and, as the
- "permissions"
-indicated, not allowed to "read aloud"!
+Here was a public domain children's book that you were not allowed to
+copy, not allowed to lend, not allowed to give, and, as the
+"permissions" indicated, not allowed to "read aloud"!
</para>
<para>
The public relations nightmare attached to that final permission.
control. That incentive is understandable, yet what it creates is
often crazy.
</para>
+<indexterm startref="idxadobeebookreader" class='endofrange'/>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
-<indexterm id="idxaibo" class='startofrange'>
+<indexterm id="idxaibo1" class='startofrange'>
<primary>Aibo robotic dog</primary>
</indexterm>
+<indexterm id="idxroboticdog1" class='startofrange'>
+ <primary>robotic dog</primary>
+</indexterm>
+<indexterm id="idxsonyaibo1" class='startofrange'>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
Consider the robotic dog made by Sony named "Aibo." The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
their computer "dog" to make it do new tricks (thus, aibohack.com).
</para>
<para>
-If you're not a programmer or don't know many programmers, the
-word hack has a particularly unfriendly connotation. Nonprogrammers
-hack bushes or weeds. Nonprogrammers in horror movies do even
-worse. But to programmers, or coders, as I call them, hack is a much
-more positive term. Hack just means code that enables the program to
-do something it wasn't originally intended or enabled to do. If you buy
-a new printer for an old computer, you might find the old computer
-doesn't run, or "drive," the printer. If you discovered that, you'd later be
-happy to discover a hack on the Net by someone who has written a
-driver to enable the computer to drive the printer you just bought.
+If you're not a programmer or don't know many programmers, the word
+<citetitle>hack</citetitle> has a particularly unfriendly
+connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
+horror movies do even worse. But to programmers, or coders, as I call
+them, <citetitle>hack</citetitle> is a much more positive
+term. <citetitle>Hack</citetitle> just means code that enables the
+program to do something it wasn't originally intended or enabled to
+do. If you buy a new printer for an old computer, you might find the
+old computer doesn't run, or "drive," the printer. If you discovered
+that, you'd later be happy to discover a hack on the Net by someone
+who has written a driver to enable the computer to drive the printer
+you just bought.
</para>
<para>
Some hacks are easy. Some are unbelievably hard. Hackers as a
bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
-<indexterm startref="idxaibo" class='endofrange'/>
+<indexterm startref="idxsonyaibo1" class='endofrange'/>
+<indexterm startref="idxroboticdog1" class='endofrange'/>
+<indexterm startref="idxaibo1" class='endofrange'/>
<para>
I've told this story in many contexts, both inside and outside the
United States. Once I was asked by a puzzled member of the audience,
to dance jazz. Nor should it be a crime (though we don't have a lot to
go on here) to teach your robot dog to dance jazz. Dancing jazz is a
completely legal activity. One imagines that the owner of aibopet.com
-thought, What possible problem could there be with teaching a robot
-dog to dance?
+thought, <emphasis>What possible problem could there be with teaching
+a robot dog to dance?</emphasis>
</para>
<para>
Let's put the dog to sleep for a minute, and turn to a pony show—
But Felten's bravery was really tested in April 2001.<footnote><para>
<!-- f22 -->
See Pamela Samuelson, "Anticircumvention Rules: Threat to Science,"
-Science 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
-the Techies Who Teach a Robot Dog New Tricks," American Prospect,
+<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
+the Techies Who Teach a Robot Dog New Tricks," <citetitle>American Prospect</citetitle>,
January 2002; "Court Dismisses Computer Scientists' Challenge to
-DMCA," Intellectual Property Litigation Reporter, 11 December 2001; Bill
-Holland, "Copyright Act Raising Free-Speech Concerns," Billboard,
+DMCA," <citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 December 2001; Bill
+Holland, "Copyright Act Raising Free-Speech Concerns," <citetitle>Billboard</citetitle>,
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 <citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> Legal Case," available at
<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para></footnote>
weakness in the SDMI system, and why SDMI would not, as presently
constituted, succeed.
</para>
+<indexterm id="idxaibo2" class='startofrange'>
+ <primary>Aibo robotic dog</primary>
+</indexterm>
+<indexterm id="idxroboticdog2" class='startofrange'>
+ <primary>robotic dog</primary>
+</indexterm>
+<indexterm id="idxsonyaibo2" class='startofrange'>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
What links these two, aibopet.com and Felten, is the letters they
then received. Aibopet.com received a letter from Sony about the
anti-circumvention provisions of the Digital Millennium Copyright Act.
</para>
</blockquote>
+<indexterm startref="idxsonyaibo2" class='endofrange'/>
+<indexterm startref="idxroboticdog2" class='endofrange'/>
+<indexterm startref="idxaibo2" class='endofrange'/>
<para>
And though an academic paper describing the weakness in a system
of encryption should also be perfectly legal, Felten received a letter
The DMCA was enacted as a response to copyright owners' first fear
about cyberspace. The fear was that copyright control was effectively
dead; the response was to find technologies that might compensate.
-These new technologies would be copyright protection technologies—
-technologies to control the replication and distribution of copyrighted
-material. They were designed as code to modify the original code of the
-Internet, to reestablish some protection for copyright owners.
+These new technologies would be copyright protection
+technologies— technologies to control the replication and
+distribution of copyrighted material. They were designed as
+<emphasis>code</emphasis> to modify the original
+<emphasis>code</emphasis> of the Internet, to reestablish some
+protection for copyright owners.
</para>
<para>
The DMCA was a bit of law intended to back up the protection of this
code designed to protect copyrighted material. It was, we could say,
-legal code intended to buttress software code which itself was
-intended to support the legal code of copyright.
+<emphasis>legal code</emphasis> intended to buttress
+<emphasis>software code</emphasis> which itself was intended to
+support the <emphasis>legal code of copyright</emphasis>.
</para>
<para>
But the DMCA was not designed merely to protect copyrighted works to
of the copyrighted material made possible by that circumvention would
have been a copyright violation.
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm><primary>robotic dog</primary></indexterm>
+<indexterm>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
Aibopet.com and Felten make the point. The Aibo hack circumvented a
copyright protection system for the purpose of enabling the dog to
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
</para>
+<indexterm><primary>Rogers, Fred</primary></indexterm>
<para>
The bizarreness of these arguments is captured in a cartoon drawn in
1981 by Paul Conrad. At that time, a court in California had held that
the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology
-that were legal: Fred Rogers, aka "Mr. Rogers," for example, had
-testified in that case that he wanted people to feel free to tape
-Mr. Rogers' Neighborhood.
+that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>,"
+for example, had testified in that case that he wanted people to feel
+free to tape Mr. Rogers' Neighborhood.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<blockquote>
<para>
in the control of his or her life, in a healthy way, is
important.<footnote><para>
<!-- f23 -->
-Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
+<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417,
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
-James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of
-the VCR (New York: W. W. Norton, 1987), 270–71.
+James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
+the VCR</citetitle> (New York: W. W. Norton, 1987), 270–71.
+<indexterm><primary>Rogers, Fred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
This led Conrad to draw the cartoon below, which we can adopt to
the DMCA.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
<para>
No argument I have can top this picture, but let me try to get close.
<para>
The obvious point of Conrad's cartoon is the weirdness of a world
where guns are legal, despite the harm they can do, while VCRs (and
-circumvention technologies) are illegal. Flash: No one ever died from
-copyright circumvention. Yet the law bans circumvention technologies
-absolutely, despite the potential that they might do some good, but
-permits guns, despite the obvious and tragic harm they do.
-</para>
+circumvention technologies) are illegal. Flash: <emphasis>No one ever
+died from copyright circumvention</emphasis>. Yet the law bans circumvention
+technologies absolutely, despite the potential that they might do some
+good, but permits guns, despite the obvious and tragic harm they do.
+<indexterm><primary>Conrad, Paul</primary></indexterm>
+</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm><primary>robotic dog</primary></indexterm>
+<indexterm>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
The Aibo and RIAA examples demonstrate how copyright owners are
changing the balance that copyright law grants. Using code, copyright
law of the DMCA backs up that erasing.
</para>
<para>
-This is how code becomes law. The controls built into the technology
-of copy and access protection become rules the violation of which is also
-a violation of the law. In this way, the code extends the law—increasing its
-regulation, even if the subject it regulates (activities that would otherwise
-plainly constitute fair use) is beyond the reach of the law. Code becomes
-law; code extends the law; code thus extends the control that copyright
-owners effect—at least for those copyright holders with the lawyers
-who can write the nasty letters that Felten and aibopet.com received.
+This is how <emphasis>code</emphasis> becomes
+<emphasis>law</emphasis>. The controls built into the technology of
+copy and access protection become rules the violation of which is also
+a violation of the law. In this way, the code extends the
+law—increasing its regulation, even if the subject it regulates
+(activities that would otherwise plainly constitute fair use) is
+beyond the reach of the law. Code becomes law; code extends the law;
+code thus extends the control that copyright owners effect—at
+least for those copyright holders with the lawyers who can write the
+nasty letters that Felten and aibopet.com received.
</para>
<para>
There is one final aspect of the interaction between architecture and
<para>
<!-- PAGE BREAK 172 -->
-For example, imagine you were part of a Star Trek fan club. You
+For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan club. You
gathered every month to share trivia, and maybe to enact a kind of fan
fiction about the show. One person would play Spock, another, Captain
Kirk. The characters would begin with a plot from a real story, then
simply continue it.<footnote><para>
<!-- f24 -->
For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions,
-Copyright, Fan Fiction, and a New Common Law," Loyola of Los Angeles
-Entertainment Law Journal 17 (1997): 651.
+Copyright, Fan Fiction, and a New Common Law," <citetitle>Loyola of Los Angeles
+Entertainment Law Journal</citetitle> 17 (1997): 651.
</para></footnote>
</para>
<para>
one step before the state started issuing tickets based upon the data you
transmitted. That is, in effect, what is happening here.
</para>
-</sect2>
-<sect2 id="marketconcentration">
+</section>
+<section id="marketconcentration">
<title>Market: Concentration</title>
<para>
So copyright's duration has increased dramatically—tripled in
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
U.S. music market.<footnote><para>
<!-- f26 -->
Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
-Slide," New York Times, 23 December 2002.
+Slide," <citetitle>New York Times</citetitle>, 23 December 2002.
</para></footnote>
The "five largest cable companies pipe
programming to 74 percent of the cable subscribers nationwide."<footnote><para>
<!-- f27 -->
-Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
+Molly Ivins, "Media Consolidation Must Be Stopped," <citetitle>Charleston Gazette</citetitle>,
31 May 2003.
</para></footnote>
+<indexterm><primary>BMG</primary></indexterm>
+<indexterm><primary>EMI</primary></indexterm>
<indexterm><primary>McCain, John</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
+<indexterm><primary>Warner Music Group</primary></indexterm>
</para>
<para>
The story with radio is even more dramatic. Before deregulation,
the nation's largest radio broadcasting conglomerate owned fewer than
<!-- PAGE BREAK 174 -->
-seventy-five stations. Today one company owns more than 1,200
-stations. During that period of consolidation, the total number of
-radio owners dropped by 34 percent. Today, in most markets, the two
-largest broadcasters control 74 percent of that market's
-revenues. Overall, just four companies control 90 percent of the
-nation's radio advertising revenues.
+seventy-five stations. Today <emphasis>one</emphasis> company owns
+more than 1,200 stations. During that period of consolidation, the
+total number of radio owners dropped by 34 percent. Today, in most
+markets, the two largest broadcasters control 74 percent of that
+market's revenues. Overall, just four companies control 90 percent of
+the nation's radio advertising revenues.
</para>
<para>
Newspaper ownership is becoming more concentrated as well. Today,
<para>
Murdoch's companies now constitute a production system
unmatched in its integration. They supply content—Fox movies
-. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus
+… Fox TV shows … Fox-controlled sports broadcasts, plus
newspapers and books. They sell the content to the public and to
advertisers—in newspapers, on the broadcast network, on the
cable channels. And they operate the physical distribution system
Murdoch becomes DirecTV's largest single owner, that system will serve
the same function in the United States.<footnote><para>
<!-- f28 -->
-James Fallows, "The Age of Murdoch," Atlantic Monthly (September
+James Fallows, "The Age of Murdoch," <citetitle>Atlantic Monthly</citetitle> (September
2003): 89.
<indexterm><primary>Fallows, James</primary></indexterm>
</para></footnote>
<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>All in the Family</primary></indexterm>
<para>
-In 1969, Norman Lear created a pilot for All in the Family. He took
+In 1969, Norman Lear created a pilot for <citetitle>All in the Family</citetitle>. He took
the pilot to ABC. The network didn't like it. It was too edgy, they told
Lear. Make it again. Lear made a second pilot, more edgy than the
first. ABC was exasperated. You're missing the point, they told Lear.
control.<footnote><para>
<!-- f29 -->
Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
-Forum, "Entertainment Economics: The Movie Industry," St. Louis,
- Missouri,
-3 April 2003 (transcript of prepared remarks available at
+Forum, "Entertainment Economics: The Movie Industry," St. Louis,
+Missouri, 3 April 2003 (transcript of prepared remarks available at
<ulink url="http://free-culture.cc/notes/">link #28</ulink>;
for the Lear story, not included in the prepared remarks, see
<ulink url="http://free-culture.cc/notes/">link #29</ulink>).
</para>
<indexterm><primary>All in the Family</primary></indexterm>
<para>
-Today, another Norman Lear with another All in the Family would
+Today, another Norman Lear with another <citetitle>All in the Family</citetitle> would
find that he had the choice either to make the show less edgy or to be
fired: The content of any show developed for a network is increasingly
owned by the network.
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
+"Barry Diller Takes on Media Deregulation," <citetitle>Now with Bill Moyers</citetitle>, Bill
Moyers, 25 April 2003, edited transcript available at
<ulink url="http://free-culture.cc/notes/">link #31</ulink>.
</para></footnote>
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
+Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The
+Revolutionary National Bestseller that Changed the Way We Do Business</citetitle>
(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):
+Concepts in Technological Evolution," <citetitle>Research Policy</citetitle> 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
+Kaplan, <citetitle>Creative Destruction: Why Companies That Are Built to Last
+Underperform the Market—and How to Successfully Transform Them</citetitle>
(New York: Currency/Doubleday, 2001). </para></footnote>
Lumbering giants not only don't, but should not, sprint. Yet if the
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
+an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," <citetitle>New
+York Times</citetitle>, 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
+Radio," <citetitle>Yale Law and Policy Review</citetitle> 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
+<citetitle>Radio-Television News Directors Association</citetitle> v. <citetitle>FCC</citetitle>, 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
After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground
was that the criticism was "too controversial."
+<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>Comcast</primary></indexterm>
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
+<indexterm><primary>NBC</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
+<indexterm><primary>WRC</primary></indexterm>
</para></footnote>
</para>
<para>
selects. But you should not like a world in which a mere few get to
decide which issues the rest of us get to know about.
</para>
-</sect2>
-<sect2 id="together">
+</section>
+<section id="together">
<title>Together</title>
<para>
There is something innocent and obvious about the claim of the
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.
+future. And these changes have to be <emphasis>reductions</emphasis>
+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
<!-- 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.
+<emphasis>Never in our history have fewer had a legal right to control
+more of the development of our culture than now</emphasis>.
</para>
<para>
Not when copyrights were perpetual, for when copyrights were
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>
+were independent of the networks. <emphasis>Never</emphasis> 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.
that copyright law has undergone. In 1790, the law looked like this:
</para>
-<table id="t2">
-<title></title>
+<informaltable id="t2">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
The act of publishing a map, chart, and book was regulated by
By the end of the nineteenth century, the law had changed to this:
</para>
-<table id="t3">
-<title></title>
+<informaltable id="t3">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
Derivative works were now regulated by copyright law—if
we could say the law began to look like this:
</para>
-<table id="t4">
-<title></title>
+<informaltable id="t4">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
The law was interpreted to reach noncommercial copying through, say,
that the law now looks like this:
</para>
-<table id="t5">
-<title></title>
+<informaltable id="t5">
<tgroup cols="3" align="char">
<thead>
<row>
</row>
</tbody>
</tgroup>
-</table>
+</informaltable>
<para>
Every realm is governed by copyright law, whereas before most
But I also have no doubt that it does more harm than good when
regulating (as it regulates just now) noncommercial copying and,
especially, noncommercial transformation. And increasingly, for the
-reasons sketched especially in chapters 7 and 8, one might well wonder
-whether it does more harm than good for commercial transformation.
-More commercial transformative work would be created if derivative
-rights were more sharply restricted.
+reasons sketched especially in chapters
+<xref xrefstyle="select: labelnumber" linkend="recorders"/> and
+<xref xrefstyle="select: labelnumber" linkend="transformers"/>, one
+might well wonder whether it does more harm than good for commercial
+transformation. More commercial transformative work would be created
+if derivative rights were more sharply restricted.
</para>
<para>
The issue is therefore not simply whether copyright is property. Of
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
+Disintegration of Property," in <citetitle>Nomos XXII: Property</citetitle>, J. Roland
Pennock and John W. Chapman, eds. (New York: New York University
Press, 1980).
+<indexterm><primary>legal realist movement</primary></indexterm>
</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.
+did not control <emphasis>at all</emphasis> 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
lawyer.
</para>
<!-- PAGE BREAK 185 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-puzzles">
+</part>
+<part id="c-puzzles">
<title>PUZZLES</title>
-<para></para>
+
<!-- PAGE BREAK 186 -->
-<sect1 id="chimera">
+<chapter label="11" id="chimera">
<title>CHAPTER ELEVEN: Chimera</title>
<indexterm id="idxchimera" class='startofrange'>
<primary>chimeras</primary>
isolated valley in the Peruvian Andes.<footnote><para>
<!-- 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
+<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael Sherborne, ed. (New
York: Oxford University Press, 1996).
</para></footnote>
The valley is extraordinarily beautiful, with "sweet water, pasture,
<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.
+"blind." They don't have the word <citetitle>blind</citetitle>. 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
</para>
<para>
"What affects it?" the father asks. "Those queer things that are
-called the eyes . . . are diseased . . . in such a way as to affect
+called the eyes … are diseased … in such a way as to affect
his brain."
</para>
<para>
<!-- PAGE BREAK 188 -->
plot for murder mysteries. "But the DNA shows with 100 percent
certainty that she was not the person whose blood was at the
-scene. . . ."
+scene. …"
</para>
<indexterm startref="idxtcotb" class='endofrange'/>
<indexterm startref="idxwells" class="endofrange"/>
(D-Calif.) have introduced a bill that would treat unauthorized
on-line copying as a felony offense with punishments ranging as high
as five years imprisonment; see Jon Healey, "House Bill Aims to Up
-Stakes on Piracy," Los Angeles Times, 17 July 2003, available at
+Stakes on Piracy," <citetitle>Los Angeles Times</citetitle>, 17 July 2003, available at
<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil
penalties are currently set at $150,000 per copied song. For a recent
(and unsuccessful) legal challenge to the RIAA's demand that an ISP
reveal the identity of a user accused of sharing more than 600 songs
-through a family computer, see RIAA v. Verizon Internet Services (In
-re. Verizon Internet Services), 240 F. Supp. 2d 24
+through a family computer, see <citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In
+re. Verizon Internet Services)</citetitle>, 240 F. Supp. 2d 24
(D.D.C. 2003). Such a user could face liability ranging as high as $90
million. Such astronomical figures furnish the RIAA with a powerful
arsenal in its prosecution of file sharers. Settlements ranging from
example of the RIAA's targeting of student file sharing, and of the
subpoenas issued to universities to reveal student file-sharer
identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
-Name Students," Boston Globe, 8 August 2003, D3, available at
+Name Students," <citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Conyers, John, Jr.</primary></indexterm>
<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
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.
+zero-tolerance extreme. I believe <emphasis>either</emphasis> 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>
material, and we want to protect those rights.
</para>
<para>
-But building a technology fortress that locks in the clout of
-the major labels is by no means the only way to protect copyright
-interests, nor is it necessarily the best. It is simply too early to
- answer
-that question. Market forces operating naturally may very
-well produce a totally different industry model.
+But building a technology fortress that locks in the clout of the
+major labels is by no means the only way to protect copyright
+interests, nor is it necessarily the best. It is simply too early to
+answer that question. Market forces operating naturally may very well
+produce a totally different industry model.
</para>
<para>
This is a critical point. The choices that industry sectors make
</para>
<!-- PAGE BREAK 192 -->
-</sect1>
-<sect1 id="harms">
+</chapter>
+<chapter label="12" id="harms">
<title>CHAPTER TWELVE: Harms</title>
<para>
-
To fight "piracy," to protect "property," the content industry has
-launched a war. Lobbying and lots of campaign contributions have
-now brought the government into this war. As with any war, this one
-will have both direct and collateral damage. As with any war of
- prohibition,
-these damages will be suffered most by our own people.
+launched a war. Lobbying and lots of campaign contributions have now
+brought the government into this war. As with any war, this one will
+have both direct and collateral damage. As with any war of
+prohibition, these damages will be suffered most by our own people.
</para>
<para>
My aim so far has been to describe the consequences of this war, in
-particular, the consequences for "free culture." But my aim now is to
- extend
-this description of consequences into an argument. Is this war
- justified?
+particular, the consequences for "free culture." But my aim now is to
+extend this description of consequences into an argument. Is this war
+justified?
</para>
<para>
In my view, it is not. There is no good reason why this time, for the
first two protect modern RCAs, but there is no Howard Armstrong in
the wings to fight today's monopolists of culture.
</para>
-<sect2 id="constrain">
+<section id="constrain">
<title>Constraining Creators</title>
<para>
In the next ten years we will see an explosion of digital
of over $200 billion—received a fine of a mere $750
million.<footnote><para>
<!-- f1. -->
-See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
+See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at WorldCom</citetitle>
(Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of
the settlement, see MCI press release, "MCI Wins U.S. District Court
Approval for SEC Settlement" (7 July 2003), available at
</para>
<para>
The consequence of this legal uncertainty, tied to these extremely
-high penalties, is that an extraordinary amount of creativity will either
-never be exercised, or never be exercised in the open. We drive this
- creative
-process underground by branding the modern-day Walt Disneys
-"pirates." We make it impossible for businesses to rely upon a public
-domain, because the boundaries of the public domain are designed to
+high penalties, is that an extraordinary amount of creativity will
+either never be exercised, or never be exercised in the open. We drive
+this creative process underground by branding the modern-day Walt
+Disneys "pirates." We make it impossible for businesses to rely upon a
+public domain, because the boundaries of the public domain are
+designed to
<!-- PAGE BREAK 195 -->
-be unclear. It never pays to do anything except pay for the right to
- create,
-and hence only those who can pay are allowed to create. As was the
-case in the Soviet Union, though for very different reasons, we will
- begin
-to see a world of underground art—not because the message is
- necessarily
-political, or because the subject is controversial, but because the
-very act of creating the art is legally fraught. Already, exhibits of
- "illegal
-art" tour the United States.<footnote><para>
-<!-- f3. --> See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003,
- available
-at
+be unclear. It never pays to do anything except pay for the right
+to create, and hence only those who can pay are allowed to create. As
+was the case in the Soviet Union, though for very different reasons,
+we will begin to see a world of underground art—not because the
+message is necessarily political, or because the subject is
+controversial, but because the very act of creating the art is legally
+fraught. Already, exhibits of "illegal art" tour the United
+States.<footnote><para>
+<!-- f3. -->
+
+See Danit Lidor, "Artists Just Wanna Be Free," <citetitle>Wired</citetitle>, 7 July
+2003, available at
<ulink url="http://free-culture.cc/notes/">link #40</ulink>. For an overview of the exhibition, see
<ulink url="http://free-culture.cc/notes/">link #41</ulink>.
</para></footnote>
</para>
<para>
Part of the reason for this fear of illegality has to do with the
-changing law. I described that change in detail in chapter 10. But an
+changing law. I described that change in detail in chapter
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>. But an
even bigger part has to do with the increasing ease with which
infractions can be tracked. As users of file-sharing systems
discovered in 2002, it is a trivial matter for copyright owners to get
</para>
<para>
Lawyers rarely see this because lawyers are rarely empirical. As I
-described in chapter 7, in response to the story about documentary
-filmmaker Jon Else, I have been lectured again and again by lawyers
-who insist Else's use was fair use, and hence I am wrong to say that the
-law regulates such a use.
+described in chapter
+<xref xrefstyle="select: labelnumber" linkend="recorders"/>, in
+response to the story about documentary filmmaker Jon Else, I have
+been lectured again and again by lawyers who insist Else's use was
+fair use, and hence I am wrong to say that the law regulates such a
+use.
</para>
<para>
We're losing [creative] opportunities right and left. Creative people
are being forced not to express themselves. Thoughts are not being
expressed. And while a lot of stuff may [still] be created, it still
-won't get distributed. Even if the stuff gets made . . . you're not
+won't get distributed. Even if the stuff gets made … you're not
going to get it distributed in the mainstream media unless
<!-- PAGE BREAK 197 -->
you've got a little note from a lawyer saying, "This has been
permission. That's the point at which they control it.
</para>
</blockquote>
-</sect2>
-<sect2 id="innovators">
+</section>
+<section id="innovators">
<title>Constraining Innovators</title>
<para>
The story of the last section was a crunchy-lefty
<para>
This is the single most dramatic effect of the shift in regulatory
<!-- PAGE BREAK 198 -->
-strategy that I described in chapter 10. The consequence of this
-massive threat of liability tied to the murky boundaries of copyright
-law is that innovators who want to innovate in this space can safely
-innovate only if they have the sign-off from last generation's
-dominant industries. That lesson has been taught through a series of
-cases that were designed and executed to teach venture capitalists a
+strategy that I described in chapter <xref xrefstyle="select:
+labelnumber" linkend="property-i"/>. The consequence of this massive
+threat of liability tied to the murky boundaries of copyright law is
+that innovators who want to innovate in this space can safely innovate
+only if they have the sign-off from last generation's dominant
+industries. That lesson has been taught through a series of cases
+that were designed and executed to teach venture capitalists a
lesson. That lesson—what former Napster CEO Hank Barry calls a
"nuclear pall" that has fallen over the Valley—has been learned.
</para>
<para>
Consider one example to make the point, a story whose beginning
-I told in The Future of Ideas and which has progressed in a way that
+I told in <citetitle>The Future of Ideas</citetitle> and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
</para>
+<indexterm><primary>Roberts, Michael</primary></indexterm>
<para>
In 1997, Michael Roberts launched a company called MP3.com. MP3.com
was keen to remake the music business. Their goal was not just to
<indexterm startref="idxvivendiuniversal" class='endofrange'/>
<indexterm><primary>Hummer, John</primary></indexterm>
<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>Hummer Winblad</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
its development, its cofounder ( John Hummer), and general partner
(Hank Barry).<footnote><para>
<!-- f4. -->
-See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles
-Times, 23 April 2003. For a parallel argument about the effects on
+See Joseph Menn, "Universal, EMI Sue Napster Investor," <citetitle>Los Angeles
+Times</citetitle>, 23 April 2003. For a parallel argument about the effects on
innovation in the distribution of music, see Janelle Brown, "The Music
Revolution Will Not Be Digitized," Salon.com, 1 June 2001, available
at <ulink url="http://free-culture.cc/notes/">link #42</ulink>.
-See also Jon Healey, "Online Music Services Besieged," Los Angeles
-Times, 28 May 2001.
+See also Jon Healey, "Online Music Services Besieged," <citetitle>Los Angeles
+Times</citetitle>, 28 May 2001.
</para></footnote>
The claim here, as well, was that the VC should have recognized the
right of the content industry to control how the industry should
risk not just in the marketplace, but in the courtroom as well. Your
investment buys you not only a company, it also buys you a lawsuit.
So extreme has the environment become that even car manufacturers are
-afraid of technologies that touch content. In an article in Business
-2.0, Rafe Needleman describes a discussion with BMW:
+afraid of technologies that touch content. In an article in
+<citetitle>Business 2.0</citetitle>, Rafe Needleman describes a
+discussion with BMW:
+<indexterm><primary>EMI</primary></indexterm>
+<indexterm><primary>Universal Music Group</primary></indexterm>
</para>
<blockquote>
<indexterm><primary>BMW</primary></indexterm>
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
forward for release stateside. Even today, no new cars are sold in the
-United States with bona fide MP3 players. . . . <footnote>
+United States with bona fide MP3 players. … <footnote>
<para>
<!-- f5. -->
-Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+Rafe Needleman, "Driving in Cars with MP3s," <citetitle>Business 2.0</citetitle>, 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.
<!-- PAGE BREAK 201 -->
The point is not that businesses should have a right to start illegal
-enterprises. The point is the definition of "illegal." The law is a mess of
-uncertainty. We have no good way to know how it should apply to new
-technologies. Yet by reversing our tradition of judicial deference, and
-by embracing the astonishingly high penalties that copyright law
- imposes,
-that uncertainty now yields a reality which is far more
- conservative
-than is right. If the law imposed the death penalty for parking
-tickets, we'd not only have fewer parking tickets, we'd also have much
-less driving. The same principle applies to innovation. If innovation is
-constantly checked by this uncertain and unlimited liability, we will
-have much less vibrant innovation and much less creativity.
+enterprises. The point is the definition of "illegal." The law is a
+mess of uncertainty. We have no good way to know how it should apply
+to new technologies. Yet by reversing our tradition of judicial
+deference, and by embracing the astonishingly high penalties that
+copyright law imposes, that uncertainty now yields a reality which is
+far more conservative than is right. If the law imposed the death
+penalty for parking tickets, we'd not only have fewer parking tickets,
+we'd also have much less driving. The same principle applies to
+innovation. If innovation is constantly checked by this uncertain and
+unlimited liability, we will have much less vibrant innovation and
+much less creativity.
</para>
<para>
The point is directly parallel to the crunchy-lefty point about fair
(2003), 33–35, available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
</para></footnote>
-
- Congress
-has already launched proceedings to explore a mandatory
- "broadcast
-flag" that would be required on any device capable of transmitting
-digital video (i.e., a computer), and that would disable the copying of
-any content that is marked with a broadcast flag. Other members of
-Congress have proposed immunizing content providers from liability
-for technology they might deploy that would hunt down copyright
- violators
-and disable their machines.<footnote><para>
-<!-- f7. --> GartnerG2, 26–27.
+Congress has already launched proceedings to explore a mandatory
+"broadcast flag" that would be required on any device capable of
+transmitting digital video (i.e., a computer), and that would disable
+the copying of any content that is marked with a broadcast flag. Other
+members of Congress have proposed immunizing content providers from
+liability for technology they might deploy that would hunt down
+copyright violators and disable their machines.<footnote><para>
+<!-- f7. -->
+GartnerG2, 26–27.
</para></footnote>
-
</para>
<para>
In one sense, these solutions seem sensible. If the problem is the
-code, why not regulate the code to remove the problem. But any
- regulation
-of technical infrastructure will always be tuned to the particular
-technology of the day. It will impose significant burdens and costs on
-
+code, why not regulate the code to remove the problem. But any
+regulation of technical infrastructure will always be tuned to the
+particular technology of the day. It will impose significant burdens
+and costs on
<!-- PAGE BREAK 203 -->
the technology, but will likely be eclipsed by advances around exactly
those requirements.
</para>
<para>
In March 2002, a broad coalition of technology companies, led by
-Intel, tried to get Congress to see the harm that such legislation would
-impose.<footnote><para>
-<!-- f8. --> See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
+Intel, tried to get Congress to see the harm that such legislation
+would impose.<footnote><para>
+<!-- f8. -->
+See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
February 2002 (Entertainment).
</para></footnote>
- Their argument was obviously not that copyright should not
-be protected. Instead, they argued, any protection should not do more
+Their argument was obviously not that copyright should not be
+protected. Instead, they argued, any protection should not do more
harm than good.
+<indexterm><primary>Intel</primary></indexterm>
</para>
<para>
-There is one more obvious way in which this war has harmed
- innovation—again,
-a story that will be quite familiar to the free market
-crowd.
+There is one more obvious way in which this war has harmed
+innovation—again, a story that will be quite familiar to the
+free market crowd.
</para>
<para>
Copyright may be property, but like all property, it is also a form
wrong, it is regulation the powerful use to defeat competitors.
</para>
<para>
-As I described in chapter 10, despite this feature of copyright as
-regulation, and subject to important qualifications outlined by Jessica
-Litman in her book Digital Copyright,<footnote><para>
-<!-- f9. --> Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books,
-2001).
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, despite this feature of copyright as
+regulation, and subject to important qualifications outlined by
+Jessica Litman in her book <citetitle>Digital
+Copyright</citetitle>,<footnote><para>
+<!-- f9. -->
+Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst,
+N.Y.: Prometheus Books, 2001).
+<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
- overall this history of copyright
-is not bad. As chapter 10 details, when new technologies have come
-along, Congress has struck a balance to assure that the new is protected
-from the old. Compulsory, or statutory, licenses have been one part of
-that strategy. Free use (as in the case of the VCR) has been another.
+overall this history of copyright is not bad. As chapter 10 details,
+when new technologies have come along, Congress has struck a balance
+to assure that the new is protected from the old. Compulsory, or
+statutory, licenses have been one part of that strategy. Free use (as
+in the case of the VCR) has been another.
</para>
<para>
But that pattern of deference to new technologies has now changed
</para>
<para>
The response by the courts has been fairly universal.<footnote><para>
-<!-- f10. --> The only circuit court exception is found in Recording Industry Association
-of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th
-Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that
-makers of a portable MP3 player were not liable for contributory
- copyright
-infringement for a device that is unable to record or redistribute
- music
-(a device whose only copying function is to render portable a music file
-already stored on a user's hard drive).
-At the district court level, the only exception is found in
- Metro-Goldwyn-Mayer
-Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D.
-Cal., 2003), where the court found the link between the distributor and
-any given user's conduct too attenuated to make the distributor liable for
-contributory or vicarious infringement liability.
-</para></footnote>
- It has been
-mirrored in the responses threatened and actually implemented by
-Congress. I won't catalog all of those responses here.<footnote><para>
+<!-- f10. -->
+The only circuit court exception is found in <citetitle>Recording Industry
+Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 180 F. 3d
+1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
+reasoned that makers of a portable MP3 player were not liable for
+contributory copyright infringement for a device that is unable to
+record or redistribute music (a device whose only copying function is
+to render portable a music file already stored on a user's hard
+drive). At the district court level, the only exception is found in
+<citetitle>Metro-Goldwyn-Mayer Studios, Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 259 F. Supp. 2d
+1029 (C.D. Cal., 2003), where the court found the link between the
+distributor and any given user's conduct too attenuated to make the
+distributor liable for contributory or vicarious infringement
+liability.
+</para></footnote>
+It has been mirrored in the responses threatened and actually
+implemented by Congress. I won't catalog all of those responses
+here.<footnote><para>
<!-- f11. -->
For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
+<indexterm><primary>Hollings, Fritz</primary></indexterm>
</para></footnote>
But there is one example that captures the flavor of them all. This is
the story of the demise of Internet radio.
<para>
<!-- PAGE BREAK 204 -->
-As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless
-he or she is also the composer. So, for example if Marilyn Monroe had
-recorded a version of "Happy Birthday"—to memorialize her famous
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="pirates"/>, when a radio station plays a song, the recording
+artist doesn't get paid for that "radio performance" unless he or she
+is also the composer. So, for example if Marilyn Monroe had recorded a
+version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
then whenever that recording was played on the radio, the current
copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
+<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
<para>
The reasoning behind this balance struck by Congress makes some
shortwaves, thus ending the unnatural restrictions imposed on radio in
the crowded longwaves. If FM were freely developed, the number of
stations would be limited only by economics and competition rather
-than by technical restrictions. . . . Armstrong likened the situation
+than by technical restrictions. … Armstrong likened the situation
that had grown up in radio to that following the invention of the
printing press, when governments and ruling interests attempted to
control this new instrument of mass communications by imposing
new industry. The recording artists, on the other hand, have a very
<!-- PAGE BREAK 206 -->
-powerful lobby, the RIAA. Thus when Congress considered the
- phenomenon
-of Internet radio in 1995, the lobbyists had primed Congress
-to adopt a different rule for Internet radio than the rule that applies to
-terrestrial radio. While terrestrial radio does not have to pay our
- hypothetical
-Marilyn Monroe when it plays her hypothetical recording of
-"Happy Birthday" on the air, Internet radio does. Not only is the law not
-neutral toward Internet radio—the law actually burdens Internet radio
-more than it burdens terrestrial radio.
+powerful lobby, the RIAA. Thus when Congress considered the phenomenon
+of Internet radio in 1995, the lobbyists had primed Congress to adopt
+a different rule for Internet radio than the rule that applies to
+terrestrial radio. While terrestrial radio does not have to pay our
+hypothetical Marilyn Monroe when it plays her hypothetical recording
+of "Happy Birthday" on the air, <emphasis>Internet radio
+does</emphasis>. Not only is the law not neutral toward Internet
+radio—the law actually burdens Internet radio more than it
+burdens terrestrial radio.
</para>
<para>
This financial burden is not slight. As Harvard law professor
<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
+Distribution," <citetitle>Antitrust Bulletin</citetitle> (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
</para>
<para>
The burden is not financial only. Under the original rules that were
-proposed, an Internet radio station (but not a terrestrial radio station)
-would have to collect the following data from every listening transaction:
+proposed, an Internet radio station (but not a terrestrial radio
+station) would have to collect the following data from <emphasis>every
+listening transaction</emphasis>:
</para>
<!-- PAGE BREAK 207 -->
<orderedlist numeration="arabic">
time zone where the signal was received (user);
</para></listitem>
<listitem><para>
-Unique User identifier;
+unique user identifier;
</para></listitem>
<listitem><para>
the country in which the user received the transmissions.
requirements, pending further study. And he also changed the original
rates set by the arbitration panel charged with setting rates. But the
basic difference between Internet radio and terrestrial radio remains:
-Internet radio has to pay a type of copyright fee that terrestrial radio
-does not.
+Internet radio has to pay a <emphasis>type of copyright fee</emphasis>
+that terrestrial radio does not.
</para>
<para>
Why? What justifies this difference? Was there any study of the
differences? Was the motive to protect artists against piracy?
</para>
<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
pay to a willing seller, and it was much higher. It was ten times
higher than what radio stations pay to perform the same songs for
the same period of time. And so the attorneys representing the
-webcasters asked the RIAA, . . . "How do you come up with a
+webcasters asked the RIAA, … "How do you come up with a
<!-- PAGE BREAK 208 -->
-rate that's so much higher? Why is it worth more than radio?
- Because
-here we have hundreds of thousands of webcasters who
-want to pay, and that should establish the market rate, and if you
-set the rate so high, you're going to drive the small webcasters out
-of business. . . ."
+rate that's so much higher? Why is it worth more than radio? Because
+here we have hundreds of thousands of webcasters who want to pay, and
+that should establish the market rate, and if you set the rate so
+high, you're going to drive the small webcasters out of
+business. …"
</para>
<para>
-And the RIAA experts said, "Well, we don't really model this
-as an industry with thousands of webcasters, we think it should be
+And the RIAA experts said, "Well, we don't really model this as an
+industry with thousands of webcasters, <emphasis>we think it should be
an industry with, you know, five or seven big players who can pay a
-high rate and it's a stable, predictable market." (Emphasis added.)
+high rate and it's a stable, predictable market</emphasis>." (Emphasis
+added.)
</para>
</blockquote>
<para>
practically no one, on either the right or the left, who is doing anything
effective to prevent it.
</para>
-</sect2>
-<sect2 id="corruptingcitizens">
+</section>
+<section id="corruptingcitizens">
<title>Corrupting Citizens</title>
<para>
Overregulation stifles creativity. It smothers innovation. It gives
<para>
The war that is being waged today is a war of prohibition. As with
every war of prohibition, it is targeted against the behavior of a very
-large number of citizens. According to The New York Times, 43 million
+large number of citizens. According to <citetitle>The New York Times</citetitle>, 43 million
Americans downloaded music in May 2002.<footnote><para>
<!-- f15. --> Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
Internet and American Life Project (24 April 2001), available at
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
-Angeles Times, 10 September 2003, Business.
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," <citetitle>Los
+Angeles Times</citetitle>, 10 September 2003, Business.
</para></footnote>
As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
number were criminals.<footnote><para>
<!-- f17. -->
Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
-Prohibition," American Economic Review 81, no. 2 (1991): 242.
+Prohibition," <citetitle>American Economic Review</citetitle> 81, no. 2 (1991): 242.
</para></footnote>
We have
<!-- PAGE BREAK 210 -->
cheat.<footnote><para>
<!-- f19. -->
See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
-Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+Compliance," <citetitle>Journal of Economic Literature</citetitle> 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.
+<indexterm><primary>alcohol prohibition</primary></indexterm>
</para>
<para>
This state of affairs is not without consequence. It is a particularly
others, but still, everywhere in America today—can't live their
lives both normally and legally, since "normally" entails a certain
degree of illegality.
+<indexterm><primary>law schools</primary></indexterm>
</para>
<para>
The response to this general illegality is either to enforce the law
<blockquote>
<para>
then all of a sudden a lot of basic civil liberty protections
-evaporate to one degree or another. . . . If you're a copyright
+evaporate to one degree or another. … If you're a copyright
infringer, how can you hope to have any privacy rights? If you're a
copyright infringer, how can you hope to be secure against seizures of
your computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh, well,
+access? … Our sensibilities change as soon as we think, "Oh, well,
but that person's a criminal, a lawbreaker." Well, what this campaign
against file sharing has done is turn a remarkable percentage of the
American Internet-using population into "lawbreakers."
<!-- 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
+<citetitle>Washington Post</citetitle>, 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
+Being Sued," <citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," <citetitle>USA Today</citetitle>, 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.
+Fan, Either," <citetitle>New York Times</citetitle>, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" <citetitle>Toronto Star</citetitle>, 18 September 2003, P7.
</para></footnote>
</para>
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
+<citetitle>Boston Globe</citetitle>, 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
+Colleges," <citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," <citetitle>Christian Science
+Monitor</citetitle>, 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
+Lawsuit Possible," <citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," <citetitle>Internet News</citetitle>, 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.
+Sharing," <citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," <citetitle>USA Today</citetitle>, 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.
have noted that the war against drugs has eroded all of our civil
liberties because it's treated so many Americans as criminals. Well, I
think it's fair to say that file sharing is an order of magnitude
-larger number of Americans than drug use. . . . If forty to sixty
+larger number of Americans than drug use. … If forty to sixty
million Americans have become lawbreakers, then we're really on a
slippery slope to lose a lot of civil liberties for all forty to sixty
million of them.
</para>
<!-- PAGE BREAK 217 -->
-</sect2>
-</sect1>
+</section>
</chapter>
-<chapter id="c-balances">
+</part>
+<part id="c-balances">
<title>BALANCES</title>
+<partintro>
<!-- PAGE BREAK 218 -->
<para>
debate. We must understand these failures if we're to understand what
success will require.
</para>
+</partintro>
<!-- PAGE BREAK 220 -->
-<sect1 id="eldred">
+<chapter label="13" id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
+<indexterm id="idxhawthornenathaniel" class='startofrange'>
+ <primary>Hawthorne, Nathaniel</primary>
+</indexterm>
<para>
In 1995, a father was frustrated that his daughters didn't seem to
like Hawthorne. No doubt there was more than one such father, but at
</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
+source as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> 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
+animated cartoons, sometimes successfully (<citetitle>Cinderella</citetitle>), sometimes not
+(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure Planet</citetitle>). These are all
commercial publications of public domain works.
</para>
+<indexterm startref="idxhawthornenathaniel" class='endofrange'/>
<para>
The Internet created the possibility of noncommercial publications of
public domain works. Eldred's is just one example. There are literally
</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.
+collection of poems <citetitle>New Hampshire</citetitle> was slated to
+pass into the public domain. Eldred wanted to post that collection in
+his free public library. But Congress got in the way. As I described
+in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, in 1998, for the eleventh time in forty years,
+Congress extended the terms of existing copyrights—this time by
+twenty years. Eldred would not be free to add any works more recent
+than 1923 to his collection until 2019. Indeed, no copyrighted work
+would pass into the public domain until that year (and not even then,
+if Congress extends the term again). By contrast, in the same period,
+more than 1 million patents will pass into the public domain.
</para>
<para>
</para>
<blockquote>
<para>
-Congress has the power to promote the Progress of Science . . .
-by securing for limited Times to Authors . . . exclusive Right to
-their . . . Writings. . . .
+Congress has the power to promote the Progress of Science …
+by securing for limited Times to Authors … exclusive Right to
+their … Writings. …
</para>
</blockquote>
<para>
granting power to Congress simply says Congress has the power to do
something—for example, to regulate "commerce among the several
states" or "declare War." But here, the "something" is something quite
-specific—to "promote . . . Progress"—through means that
+specific—to "promote … Progress"—through means that
are also specific— by "securing" "exclusive Rights" (i.e.,
copyrights) "for limited Times."
</para>
the copyright term extended.
</para>
<para>
-Thus a congressional perpetual motion machine: So long as
- legislation
+Thus a congressional perpetual motion machine: So long as legislation
can be bought (albeit indirectly), there will be all the incentive in
the world to buy further extensions of copyright.
</para>
contributions.<footnote><para>
<!-- f3. --> Associated Press, "Disney Lobbying for Copyright Extension No Mickey
Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,"
-Chicago Tribune, 17 October 1998, 22.
+<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22.
</para></footnote>
The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the
cycle.<footnote><para>
-<!-- f5. --> Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
- Congressional
-Quarterly This Week, 8 August 1990, available at
+<!-- f5. -->
+Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
+<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, available at
<ulink url="http://free-culture.cc/notes/">link #50</ulink>.
</para></footnote>
and again.
</para>
<para>
-It was also my judgment that this Supreme Court would not allow
-Congress to extend existing terms. As anyone close to the Supreme
-Court's work knows, this Court has increasingly restricted the power
-of Congress when it has viewed Congress's actions as exceeding the
-power granted to it by the Constitution. Among constitutional
- scholars,
-the most famous example of this trend was the Supreme Court's
+It was also my judgment that <emphasis>this</emphasis> Supreme Court
+would not allow Congress to extend existing terms. As anyone close to
+the Supreme Court's work knows, this Court has increasingly restricted
+the power of Congress when it has viewed Congress's actions as
+exceeding the power granted to it by the Constitution. Among
+constitutional scholars, the most famous example of this trend was the
+Supreme Court's
<!-- PAGE BREAK 226 -->
decision in 1995 to strike down a law that banned the possession of
commerce.
</para>
<para>
-As the economy grew, this standard increasingly meant that there
-was no limit to Congress's power to regulate, since just about every
- activity,
-when considered on a national scale, affects interstate commerce.
-A Constitution designed to limit Congress's power was instead
- interpreted
-to impose no limit.
+As the economy grew, this standard increasingly meant that there was
+no limit to Congress's power to regulate, since just about every
+activity, when considered on a national scale, affects interstate
+commerce. A Constitution designed to limit Congress's power was
+instead interpreted to impose no limit.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
<para>
-The Supreme Court, under Chief Justice Rehnquist's command,
-changed that in United States v. Lopez. The government had argued
-that possessing guns near schools affected interstate commerce. Guns
-near schools increase crime, crime lowers property values, and so on. In
-the oral argument, the Chief Justice asked the government whether
-there was any activity that would not affect interstate commerce under
-the reasoning the government advanced. The government said there
-was not; if Congress says an activity affects interstate commerce, then
-that activity affects interstate commerce. The Supreme Court, the
- government
-said, was not in the position to second-guess Congress.
+The Supreme Court, under Chief Justice Rehnquist's command, changed
+that in <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The government had
+argued that possessing guns near schools affected interstate
+commerce. Guns near schools increase crime, crime lowers property
+values, and so on. In the oral argument, the Chief Justice asked the
+government whether there was any activity that would not affect
+interstate commerce under the reasoning the government advanced. The
+government said there was not; if Congress says an activity affects
+interstate commerce, then that activity affects interstate
+commerce. The Supreme Court, the government said, was not in the
+position to second-guess Congress.
</para>
<para>
-"We pause to consider the implications of the government's
- arguments,"
+"We pause to consider the implications of the government's arguments,"
the Chief Justice wrote.<footnote><para>
-<!-- f6. --> United States v. Lopez, 514 U.S. 549, 564 (1995).
+<!-- f6. --> <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 U.S. 549, 564 (1995).
</para></footnote>
- If anything Congress says is interstate
-commerce must therefore be considered interstate commerce, then
-there would be no limit to Congress's power. The decision in Lopez was
-reaffirmed five years later in United States v. Morrison.<footnote><para>
-<!-- f7. --> United States v. Morrison, 529 U.S. 598 (2000).
+If anything Congress says is interstate commerce must therefore be
+considered interstate commerce, then there would be no limit to
+Congress's power. The decision in <citetitle>Lopez</citetitle> was reaffirmed five years
+later in <citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>.<footnote><para>
+<!-- f7. -->
+<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 U.S. 598 (2000).
</para></footnote>
-
</para>
<para>
If a principle were at work here, then it should apply to the Progress
Clause as much as the Commerce Clause.<footnote><para>
-<!-- f8. --> If it is a principle about enumerated powers, then the principle carries
-from one enumerated power to another. The animating point in the
- context
-of the Commerce Clause was that the interpretation offered by the
-government would allow the government unending power to regulate
-commerce—the limitation to interstate commerce notwithstanding. The
-same point is true in the context of the Copyright Clause. Here, too, the
-government's interpretation would allow the government unending power
-to regulate copyrights—the limitation to "limited times" notwithstanding.
-</para></footnote>
- And if it is applied to the
-Progress Clause, the principle should yield the conclusion that
- Congress
+<!-- f8. -->
+If it is a principle about enumerated powers, then the principle
+carries from one enumerated power to another. The animating point in
+the context of the Commerce Clause was that the interpretation offered
+by the government would allow the government unending power to
+regulate commerce—the limitation to interstate commerce
+notwithstanding. The same point is true in the context of the
+Copyright Clause. Here, too, the government's interpretation would
+allow the government unending power to regulate copyrights—the
+limitation to "limited times" notwithstanding.
+</para></footnote>
+And if it is applied to the Progress Clause, the principle should
+yield the conclusion that Congress
<!-- PAGE BREAK 227 -->
-can't extend an existing term. If Congress could extend an
- existing
-term, then there would be no "stopping point" to Congress's power
-over terms, though the Constitution expressly states that there is such
-a limit. Thus, the same principle applied to the power to grant
- copyrights
-should entail that Congress is not allowed to extend the term of
-existing copyrights.
-</para>
-<para>
-If, that is, the principle announced in Lopez stood for a principle.
-Many believed the decision in Lopez stood for politics—a conservative
-Supreme Court, which believed in states' rights, using its power over
-Congress to advance its own personal political preferences. But I
- rejected
-that view of the Supreme Court's decision. Indeed, shortly after
-the decision, I wrote an article demonstrating the "fidelity" in such an
-interpretation of the Constitution. The idea that the Supreme Court
-decides cases based upon its politics struck me as extraordinarily
- boring.
-I was not going to devote my life to teaching constitutional law if
-these nine Justices were going to be petty politicians.
-</para>
-<para>
-Now let's pause for a moment to make sure we understand what
-the argument in Eldred was not about. By insisting on the
- Constitution's
-limits to copyright, obviously Eldred was not endorsing piracy.
-Indeed, in an obvious sense, he was fighting a kind of piracy—piracy of
-the public domain. When Robert Frost wrote his work and when Walt
-Disney created Mickey Mouse, the maximum copyright term was just
-fifty-six years. Because of interim changes, Frost and Disney had
- already
-enjoyed a seventy-five-year monopoly for their work. They had
-gotten the benefit of the bargain that the Constitution envisions: In
-exchange for a monopoly protected for fifty-six years, they created new
-work. But now these entities were using their power—expressed
-through the power of lobbyists' money—to get another twenty-year
-dollop of monopoly. That twenty-year dollop would be taken from the
-public domain. Eric Eldred was fighting a piracy that affects us all.
+can't extend an existing term. If Congress could extend an existing
+term, then there would be no "stopping point" to Congress's power over
+terms, though the Constitution expressly states that there is such a
+limit. Thus, the same principle applied to the power to grant
+copyrights should entail that Congress is not allowed to extend the
+term of existing copyrights.
+</para>
+<para>
+<emphasis>If</emphasis>, that is, the principle announced in <citetitle>Lopez</citetitle>
+stood for a principle. Many believed the decision in <citetitle>Lopez</citetitle> stood for
+politics—a conservative Supreme Court, which believed in states'
+rights, using its power over Congress to advance its own personal
+political preferences. But I rejected that view of the Supreme Court's
+decision. Indeed, shortly after the decision, I wrote an article
+demonstrating the "fidelity" in such an interpretation of the
+Constitution. The idea that the Supreme Court decides cases based upon
+its politics struck me as extraordinarily boring. I was not going to
+devote my life to teaching constitutional law if these nine Justices
+were going to be petty politicians.
+</para>
+<para>
+Now let's pause for a moment to make sure we understand what the
+argument in <citetitle>Eldred</citetitle> was not about. By insisting on the
+Constitution's limits to copyright, obviously Eldred was not endorsing
+piracy. Indeed, in an obvious sense, he was fighting a kind of
+piracy—piracy of the public domain. When Robert Frost wrote his
+work and when Walt Disney created Mickey Mouse, the maximum copyright
+term was just fifty-six years. Because of interim changes, Frost and
+Disney had already enjoyed a seventy-five-year monopoly for their
+work. They had gotten the benefit of the bargain that the Constitution
+envisions: In exchange for a monopoly protected for fifty-six years,
+they created new work. But now these entities were using their
+power—expressed through the power of lobbyists' money—to
+get another twenty-year dollop of monopoly. That twenty-year dollop
+would be taken from the public domain. Eric Eldred was fighting a
+piracy that affects us all.
</para>
<para>
Some people view the public domain with contempt. In their brief
<!-- PAGE BREAK 228 -->
before the Supreme Court, the Nashville Songwriters Association
wrote that the public domain is nothing more than "legal piracy."<footnote><para>
-<!-- f9. --> Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S.
-186 (2003) (No. 01-618), n.10, available at
-<ulink url="http://free-culture.cc/notes/">link #51</ulink>.
+<!-- f9. -->
+Brief of the Nashville Songwriters Association, <citetitle>Eldred</citetitle>
+v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618), n.10, available
+at <ulink url="http://free-culture.cc/notes/">link #51</ulink>.
</para></footnote>
- But
-it is not piracy when the law allows it; and in our constitutional system,
-our law requires it. Some may not like the Constitution's requirements,
-but that doesn't make the Constitution a pirate's charter.
+But it is not piracy when the law allows it; and in our constitutional
+system, our law requires it. Some may not like the Constitution's
+requirements, but that doesn't make the Constitution a pirate's
+charter.
+<indexterm><primary>Nashville Songwriters Association</primary></indexterm>
</para>
<para>
As we've seen, our constitutional system requires limits on
<!-- f10. --> The figure of 2 percent is an extrapolation from the study by the
Congressional
Research Service, in light of the estimated renewal ranges. See Brief
-of Petitioners, Eldred v. Ashcroft, 7, available at
+of Petitioners, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 7, available at
<ulink url="http://free-culture.cc/notes/">link #52</ulink>.
</para></footnote>
not necessarily the current owner. And we're just talking about 1930!
</para>
<para>
-"But there isn't a list of who owns property generally," the
- apologists
-for the system respond. "Why should there be a list of copyright
-owners?"
+"But there isn't a list of who owns property generally," the
+apologists for the system respond. "Why should there be a list of
+copyright owners?"
</para>
<para>
-Well, actually, if you think about it, there are plenty of lists of who
-owns what property. Think about deeds on houses, or titles to cars.
-And where there isn't a list, the code of real space is pretty good at
- suggesting
-who the owner of a bit of property is. (A swing set in your
-backyard is probably yours.) So formally or informally, we have a pretty
-good way to know who owns what tangible property.
+Well, actually, if you think about it, there <emphasis>are</emphasis>
+plenty of lists of who owns what property. Think about deeds on
+houses, or titles to cars. And where there isn't a list, the code of
+real space is pretty good at suggesting who the owner of a bit of
+property is. (A swing set in your backyard is probably yours.) So
+formally or informally, we have a pretty good way to know who owns
+what tangible property.
</para>
<para>
So: You walk down a street and see a house. You can know who
for other creative works is much more dire.
</para>
<indexterm><primary>Agee, Michael</primary></indexterm>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
+<indexterm><primary>Laurel and Hardy Films</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
+made between 1921 and 1951. Only one of these films, <citetitle>The Lucky Dog</citetitle>, 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
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,
+<citetitle>Los Angeles Times</citetitle>, 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.
+Down Copyright Extension," <citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002.
</para></footnote>
<indexterm><primary>Lucky Dog, The</primary></indexterm>
it cost more than $10,000 to restore a ninety-minute black-and-white
film in 1993, it can now cost as little as $100 to digitize one hour of
mm film.<footnote><para>
-<!-- f12. --> Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
- Supporting
-the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-
-618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by
-the Internet Archive, Eldred v. Ashcroft, available at
+<!-- f12. -->
+Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
+Supporting the Petitoners, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537
+U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
+filed on behalf of Petitioners by the Internet Archive, <citetitle>Eldred</citetitle>
+v. <citetitle>Ashcroft</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #53</ulink>.
</para></footnote>
locate the copyright owner.
</para>
<para>
-Or more accurately, owners. As we've seen, there isn't only a single
-copyright associated with a film; there are many. There isn't a single
-person whom you can contact about those copyrights; there are as
-many as can hold the rights, which turns out to be an extremely large
-number. Thus the costs of clearing the rights to these films is
- exceptionally
-high.
+Or more accurately, <emphasis>owners</emphasis>. As we've seen, there
+isn't only a single copyright associated with a film; there are
+many. There isn't a single person whom you can contact about those
+copyrights; there are as many as can hold the rights, which turns out
+to be an extremely large number. Thus the costs of clearing the rights
+to these films is exceptionally high.
</para>
<para>
"But can't you just restore the film, distribute it, and then pay the
<para>
Yet, for most of our history, they also did little harm. For most of
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.
+<emphasis>copyright-related use</emphasis> 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.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
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.
+<emphasis>copyright</emphasis> 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 <emphasis>at all</emphasis>
+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
and in which I thought a response was appropriate. I was convinced
that the Court would not hear our arguments if it thought these were
just the arguments of a group of lefty loons. This Supreme Court was
-not about to launch into a new field of judicial review if it seemed that
-this field of review was simply the preference of a small political
- minority.
-Although my focus in the case was not to demonstrate how bad the
-Sonny Bono Act was but to demonstrate that it was unconstitutional,
-my hope was to make this argument against a background of briefs that
-covered the full range of political views. To show that this claim against
-the CTEA was grounded in law and not politics, then, we tried to
-gather the widest range of credible critics—credible not because they
+not about to launch into a new field of judicial review if it seemed
+that this field of review was simply the preference of a small
+political minority. Although my focus in the case was not to
+demonstrate how bad the Sonny Bono Act was but to demonstrate that it
+was unconstitutional, my hope was to make this argument against a
+background of briefs that covered the full range of political
+views. To show that this claim against the CTEA was grounded in
+<emphasis>law</emphasis> and not politics, then, we tried to gather
+the widest range of credible critics—credible not because they
were rich and famous, but because they, in the aggregate, demonstrated
that this law was unconstitutional regardless of one's politics.
</para>
exhaustive and uncontroverted brief by the world's experts in the
history of the Progress Clause. And of course, there was a new brief
by Eagle Forum, repeating and strengthening its arguments.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Intel</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
<indexterm><primary>Eagle Forum</primary></indexterm>
</para>
<para>
argument, there were a number of powerful briefs by libraries and
archives, including the Internet Archive, the American Association of
Law Libraries, and the National Writers Union.
+<indexterm><primary>American Association of Law Libraries</primary></indexterm>
+<indexterm><primary>National Writers Union</primary></indexterm>
</para>
+<indexterm><primary>Hal Roach Studios</primary></indexterm>
<para>
But two briefs captured the policy argument best. One made the
argument I've already described: A brief by Hal Roach Studios argued
who had advised us early on about a First Amendment strategy; and
finally, former solicitor general Charles Fried.
<indexterm><primary>Fried, Charles</primary></indexterm>
+<indexterm><primary>Morrison, Alan</primary></indexterm>
+<indexterm><primary>Public Citizen</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
domain, then people could use it to "glorify drugs or to create
pornography."<footnote><para>
<!-- f14. -->
-Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
+Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537
U.S. (2003) (No. 01-618), 19.
</para></footnote>
That was also the motive of the Gershwin estate, which defended its
"protection" of the work of George Gershwin. They refuse, for example,
-to license Porgy and Bess to anyone who refuses to use African
+to license <citetitle>Porgy and Bess</citetitle> to anyone who refuses to use African
Americans in the cast.<footnote><para>
<!-- f15. -->
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
-Mouse Joins the Fray," New York Times, 28 March 1998, B7.
+Mouse Joins the Fray," <citetitle>New York Times</citetitle>, 28 March 1998, B7.
</para></footnote>
That's
<!-- PAGE BREAK 241 -->
Between February and October, there was little I did beyond preparing
for this case. Early on, as I said, I set the strategy.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
<para>
-The Supreme Court was divided into two important camps. One
-camp we called "the Conservatives." The other we called "the Rest."
-The Conservatives included Chief Justice Rehnquist, Justice O'Connor,
+The Supreme Court was divided into two important camps. One camp we
+called "the Conservatives." The other we called "the Rest." The
+Conservatives included Chief Justice Rehnquist, Justice O'Connor,
Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
been the most consistent in limiting Congress's power. They were the
-five who had supported the Lopez/Morrison line of cases that said that
-an enumerated power had to be interpreted to assure that Congress's
-powers had limits.
+five who had supported the <citetitle>Lopez/Morrison</citetitle> line
+of cases that said that an enumerated power had to be interpreted to
+assure that Congress's powers had limits.
</para>
<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
generally. We were fairly confident he would recognize limits here.
</para>
<para>
-This analysis of "the Rest" showed most clearly where our focus
-had to be: on the Conservatives. To win this case, we had to crack open
-these five and get at least a majority to go our way. Thus, the single
- overriding
-argument that animated our claim rested on the Conservatives'
-most important jurisprudential innovation—the argument that Judge
-Sentelle had relied upon in the Court of Appeals, that Congress's power
-must be interpreted so that its enumerated powers have limits.
+This analysis of "the Rest" showed most clearly where our focus had to
+be: on the Conservatives. To win this case, we had to crack open these
+five and get at least a majority to go our way. Thus, the single
+overriding argument that animated our claim rested on the
+Conservatives' most important jurisprudential innovation—the
+argument that Judge Sentelle had relied upon in the Court of Appeals,
+that Congress's power must be interpreted so that its enumerated
+powers have limits.
</para>
<para>
This then was the core of our strategy—a strategy for which I am
-responsible. We would get the Court to see that just as with the Lopez
-
+responsible. We would get the Court to see that just as with the
+<citetitle>Lopez</citetitle>
<!-- PAGE BREAK 243 -->
-case, under the government's argument here, Congress would always
-have unlimited power to extend existing terms. If anything was plain
-about Congress's power under the Progress Clause, it was that this
-power was supposed to be "limited." Our aim would be to get the
-Court to reconcile Eldred with Lopez: If Congress's power to regulate
-commerce was limited, then so, too, must Congress's power to regulate
-copyright be limited.
+case, under the government's argument here, Congress would always have
+unlimited power to extend existing terms. If anything was plain about
+Congress's power under the Progress Clause, it was that this power was
+supposed to be "limited." Our aim would be to get the Court to
+reconcile <citetitle>Eldred</citetitle> with
+<citetitle>Lopez</citetitle>: If Congress's power to regulate commerce
+was limited, then so, too, must Congress's power to regulate copyright
+be limited.
</para>
<para>
-The argument on the government's side came down to this:
- Congress
-has done it before. It should be allowed to do it again. The
- government
-claimed that from the very beginning, Congress has been
-extending the term of existing copyrights. So, the government argued,
-the Court should not now say that practice is unconstitutional.
+The argument on the government's side came down to this: Congress has
+done it before. It should be allowed to do it again. The government
+claimed that from the very beginning, Congress has been extending the
+term of existing copyrights. So, the government argued, the Court
+should not now say that practice is unconstitutional.
</para>
<para>
There was some truth to the government's claim, but not much. We
-certainly agreed that Congress had extended existing terms in
+certainly agreed that Congress had extended existing terms in 1831
and in 1909. And of course, in 1962, Congress began extending
existing
terms regularly—eleven times in forty years.
this central idea.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</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
mr. lessig: Justice, we are not making an empirical claim at all.
Nothing in our Copyright Clause claim hangs upon the empirical
assertion about impeding progress. Our only argument is this is a
-structural limit necessary to assure that what would be an
- effectively
+structural limit necessary to assure that what would be an effectively
perpetual term not be permitted under the copyright laws.
</para>
</blockquote>
softball; my answer was a swing and a miss.
</para>
<para>
-The second came from the Chief, for whom the whole case had
-been crafted. For the Chief Justice had crafted the Lopez ruling, and we
-hoped that he would see this case as its second cousin.
+The second came from the Chief, for whom the whole case had been
+crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> ruling,
+and we hoped that he would see this case as its second cousin.
</para>
<para>
-It was clear a second into his question that he wasn't at all
- sympathetic.
-To him, we were a bunch of anarchists. As he asked:
+It was clear a second into his question that he wasn't at all
+sympathetic. To him, we were a bunch of anarchists. As he asked:
<!-- PAGE BREAK 247 -->
</para>
down to see where I had been wrong in my reasoning.
</para>
<para>
-My reasoning. Here was a case that pitted all the money in the world
-against reasoning. And here was the last naïve law professor, scouring
-the pages, looking for reasoning.
+My <emphasis>reasoning</emphasis>. Here was a case that pitted all the
+money in the world against <emphasis>reasoning</emphasis>. And here
+was the last naïve law professor, scouring the pages, looking for
+reasoning.
</para>
<para>
I first scoured the opinion, looking for how the Court would
distinguish the principle in this case from the principle in
-Lopez. The argument was nowhere to be found. The case was not even
+<citetitle>Lopez</citetitle>. The argument was nowhere to be found. The case was not even
cited. The argument that was the core argument of our case did not
even appear in the Court's opinion.
</para>
</para>
<para>
Her opinion was perfectly reasonable—for her, and for Justice
-Souter. Neither believes in Lopez. It would be too much to expect them
+Souter. Neither believes in <citetitle>Lopez</citetitle>. It would be too much to expect them
to write an opinion that recognized, much less explained, the doctrine
they had worked so hard to defeat.
</para>
was reading. I had said there was no way this Court could reconcile
limited powers with the Commerce Clause and unlimited powers with the
Progress Clause. It had never even occurred to me that they could
-reconcile the two simply by not addressing the argument. There was no
-inconsistency because they would not talk about the two together.
-There was therefore no principle that followed from the Lopez case: In
-that context, Congress's power would be limited, but in this context
-it would not.
+reconcile the two simply <emphasis>by not addressing the
+argument</emphasis>. There was no inconsistency because they would not
+talk about the two together. There was therefore no principle that
+followed from the <citetitle>Lopez</citetitle> case: In that context, Congress's power would
+be limited, but in this context it would not.
</para>
<para>
Yet by what right did they get to choose which of the framers' values
</para>
<para>
These two justices understood all the arguments we had made. But
-because neither believed in the Lopez case, neither was willing to push
+because neither believed in the <citetitle>Lopez</citetitle> case, neither was willing to push
it as a reason to reject this extension. The case was decided without
anyone having addressed the argument that we had carried from Judge
-Sentelle. It was Hamlet without the Prince.
+Sentelle. It was <citetitle>Hamlet</citetitle> without the Prince.
</para>
<para>
Defeat brings depression. They say it is a sign of health when
</para>
<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
+one thing for them to have explained why the principle of <citetitle>Lopez</citetitle> 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
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
+<citetitle>Lopez</citetitle> and many other "originalist" rulings. Where was their
"originalism" now?
</para>
<para>
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,
+harmful law. <citetitle>The New York Times</citetitle> wrote in its editorial,
</para>
<blockquote>
<para>
<para>
The best responses were in the cartoons. There was a gaggle of
hilarious images—of Mickey in jail and the like. The best, from
-my view of the case, was Ruben Bolling's, reproduced on the next
-page. The "powerful and wealthy" line is a bit unfair. But the punch
-in the face felt exactly like that.
+my view of the case, was Ruben Bolling's, reproduced on the next page
+(<xref linkend="fig-18"/>). The "powerful and wealthy" line is a bit
+unfair. But the punch in the face felt exactly like that.
<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
+<figure id="fig-18">
+<title>Tom the Dancing Bug cartoon</title>
+<graphic fileref="images/18.png"></graphic>
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
+</figure>
<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
+quote from <citetitle>The New York Times</citetitle>. 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
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
-</sect1>
-<sect1 id="eldred-ii">
+</chapter>
+<chapter label="14" id="eldred-ii">
<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
+The day <citetitle>Eldred</citetitle> was decided, fate would have it that I was to travel to
+Washington, D.C. (The day the rehearing petition in <citetitle>Eldred</citetitle> was
denied—meaning the case was really finally over—fate would
have it that I was giving a speech to technologists at Disney World.)
This was a particularly long flight to my least favorite city. The
finally, I turned to an argument of politics.
</para>
<para>
-The New York Times published the piece. In it, I proposed a simple
+<citetitle>The New York Times</citetitle> published the piece. In it, I proposed a simple
fix: Fifty years after a work has been published, the copyright owner
<!-- PAGE BREAK 256 -->
would be required to register the work and pay a small fee. If he paid
<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
-As I described in chapter 10, formalities in copyright law were
+As I described in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, formalities in copyright law were
removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.<footnote><para>
<!-- f1. -->
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
+anonymous or pseudonymous works. Paul Goldstein, <citetitle>International
+Intellectual Property Law, Cases and Materials</citetitle> (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
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.
+copyright offices, and the failure to dot an <citetitle>i</citetitle> or cross a
+<citetitle>t</citetitle> resulted in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
the author and what rights he has. Simple transactions are destroyed in
<!-- PAGE BREAK 259 -->
-a world without formalities. Complex, expensive, lawyer transactions
-take their place.
+a world without formalities. Complex, expensive,
+<emphasis>lawyer</emphasis> transactions take their place.
<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
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.
+seen before <emphasis>because there are no formalities</emphasis>.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
<!-- PAGE BREAK 260 -->
registrations. Any real solution to the problem of formalities must
-address the real problem of governments standing at the core of any
-system of formalities. In this book, I offer such a solution. That
-solution essentially remakes the Copyright Office. For now, assume it
-was Amazon that ran the registration system. Assume it was one-click
-registration. The Eldred Act would propose a simple, one-click
-registration fifty years after a work was published. Based upon
-historical data, that system would move up to 98 percent of commercial
-work, commercial work that no longer had a commercial life, into the
-public domain within fifty years. What do you think?
+address the real problem of <emphasis>governments</emphasis> standing
+at the core of any system of formalities. In this book, I offer such a
+solution. That solution essentially remakes the Copyright Office. For
+now, assume it was Amazon that ran the registration system. Assume it
+was one-click registration. The Eldred Act would propose a simple,
+one-click registration fifty years after a work was published. Based
+upon historical data, that system would move up to 98 percent of
+commercial 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>
content. It would simply liberate what Kevin Kelly calls the "Dark
Content" that fills archives around the world. So when the warriors
oppose a change like this, we should ask one simple question:
+<indexterm><primary>Kelly, Kevin</primary></indexterm>
</para>
<para>
What does this industry really want?
<para>
With very little effort, the warriors could protect their content. So
the effort to block something like the Eldred Act is not really about
-protecting their content. The effort to block the Eldred Act is an effort
-to assure that nothing more passes into the public domain. It is another
-step to assure that the public domain will never compete, that there
-will be no use of content that is not commercially controlled, and that
-there will be no commercial use of content that doesn't require their
-permission first.
+protecting <emphasis>their</emphasis> content. The effort to block the
+Eldred Act is an effort to assure that nothing more passes into the
+public domain. It is another step to assure that the public domain
+will never compete, that there will be no use of content that is not
+commercially controlled, and that there will be no commercial use of
+content that doesn't require <emphasis>their</emphasis> permission
+first.
</para>
<para>
The opposition to the Eldred Act reveals how extreme the other side
is. The most powerful and sexy and well loved of lobbies really has as
its aim not the protection of "property" but the rejection of a
-tradition. Their aim is not simply to protect what is theirs. Their
-aim is to assure that all there is is what is theirs.
+tradition. Their aim is not simply to protect what is
+theirs. <emphasis>Their aim is to assure that all there is is what is
+theirs</emphasis>.
</para>
<para>
It is not hard to understand why the warriors take this view. It is not
controlled by this dead (and often unfindable) hand of the past.
</para>
<!-- PAGE BREAK 264 -->
-</sect1>
</chapter>
-<chapter id="c-conclusion">
+</part>
+<chapter label="15" id="c-conclusion">
<title>CONCLUSION</title>
<para>
There are more than 35 million people with the AIDS virus
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.
+See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: Who
+Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), 37.
<indexterm><primary>Braithwaite, John</primary></indexterm>
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
</para>
<para>
-However, the United States government opposed the bill. Indeed,
-more than opposed. As the International Intellectual Property
- Association
-characterized it, "The U.S. government pressured South Africa . . .
-
not to permit compulsory licensing or parallel imports."<footnote><para>
-<!-- f3. --> 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), 14, available at
-<ulink url="http://free-culture.cc/notes/">link #56</ulink>. For a firsthand account of the struggle over
-South Africa, see Hearing Before the Subcommittee on Criminal Justice,
-Drug Policy, and Human Resources, House Committee on Government
-Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150–57
-(statement of James Love).
-</para></footnote>
- Through the
-Office of the United States Trade Representative, the government
-asked South Africa to change the law—and to add pressure to that
- request,
-in 1998, the USTR listed South Africa for possible trade sanctions.
+However, the United States government opposed the bill. Indeed, more
+than opposed. As the International Intellectual Property Association
+characterized it, "The U.S. government pressured South Africa …
+not to permit compulsory licensing or parallel
+imports."<footnote><para>
+<!-- f3. -->
+International Intellectual Property Institute (IIPI), <citetitle>Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization</citetitle> (Washington, D.C., 2000), 14, available at
+<ulink url="http://free-culture.cc/notes/">link #56</ulink>. For a
+firsthand account of the struggle over South Africa, see Hearing
+Before the Subcommittee on Criminal Justice, Drug Policy, and Human
+Resources, House Committee on Government Reform, H. Rep., 1st sess.,
+Ser. No. 106-126 (22 July 1999), 150–57 (statement of James
+Love).
+</para></footnote>
+Through the Office of the United States Trade Representative, the
+government asked South Africa to change the law—and to add
+pressure to that request, in 1998, the USTR listed South Africa for
+possible trade sanctions.
<!-- PAGE BREAK 266 -->
-That same year, more than forty pharmaceutical companies
- began
-proceedings in the South African courts to challenge the
- government's
-actions. The United States was then joined by other governments
-from the EU. Their claim, and the claim of the pharmaceutical
- companies,
-was that South Africa was violating its obligations under
- international
-law by discriminating against a particular kind of patent—
-pharmaceutical patents. The demand of these governments, with the
-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>
+That same year, more than forty pharmaceutical companies began
+proceedings in the South African courts to challenge the government's
+actions. The United States was then joined by other governments from
+the EU. Their claim, and the claim of the pharmaceutical companies,
+was that South Africa was violating its obligations under
+international law by discriminating against a particular kind of
+patent— pharmaceutical patents. The demand of these governments,
+with the 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
+International Intellectual Property Institute (IIPI), <citetitle>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>
+Organization</citetitle> (Washington, D.C., 2000), 15. </para></footnote>
</para>
<para>
We should place the intervention by the United States in context. No
about the sanctity of property.<footnote><para>
<!-- f5. -->
See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
-Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24
+Needs at Odds with Firms' Profit Motive," <citetitle>San Francisco Chronicle</citetitle>, 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
+Medicines," <citetitle>Foreign Policy in Focus</citetitle> 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.
+Intellectual Property Rights and Compassion, a Synopsis," <citetitle>Widener Law
+Symposium Journal</citetitle> (Spring 2001): 175.
<!-- PAGE BREAK 333 -->
</para></footnote>
It was because "intellectual property" would be violated that these
noticed. Powerful lobbies, complex issues, and MTV attention spans
produce the "perfect storm" for free culture.
</para>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
<para>
In August 2003, a fight broke out in the United States about a
decision by the World Intellectual Property Organization to cancel a
meeting.<footnote><para>
-<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," Washington Post,
+<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," <citetitle>Washington Post</citetitle>,
August 2003, E1, available at
<ulink url="http://free-culture.cc/notes/">link #59</ulink>; William New, "Global Group's
-Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology
-Daily, 19 August 2003, available at
+Shift on `Open Source' Meeting Spurs Stir," <citetitle>National Journal's Technology
+Daily</citetitle>, 19 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #60</ulink>; William New, "U.S. Official
-Opposes `Open Source' Talks at WIPO," National Journal's Technology
-Daily, 19 August 2003, available at
+Opposes `Open Source' Talks at WIPO," <citetitle>National Journal's Technology
+Daily</citetitle>, 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
Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
included the Global Positioning System, which Ronald Reagan set free
in the early 1980s. And it included "open source and free software."
+<indexterm><primary>academic journals</primary></indexterm>
+<indexterm><primary>IBM</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
<para>
principal opposition is to "free software" licensed under a "copyleft"
license, meaning a license that requires the licensee to adopt the
same terms on any derivative work. See Bradford L. Smith, "The Future
-of Software: Enabling the Marketplace to Decide," Government Policy
-Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint
+of Software: Enabling the Marketplace to Decide," <citetitle>Government Policy
+Toward Open Source Software</citetitle> (Washington, D.C.: AEI-Brookings Joint
Center for Regulatory Studies, American Enterprise Institute for
Public Policy Research, 2002), 69, available at
<ulink url="http://free-culture.cc/notes/">link #62</ulink>. See also
-Craig Mundie, Microsoft senior vice president, The Commercial Software
-Model, discussion at New York University Stern School of Business (3
+Craig Mundie, Microsoft senior vice president, <citetitle>The Commercial Software
+Model</citetitle>, discussion at New York University Stern School of Business (3
May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
+<indexterm><primary>IBM</primary></indexterm>
+<indexterm><primary>"copyleft" licenses</primary></indexterm>
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
More important for our purposes, to support "open source and free
understandable that it would use its lobbyists to get the United
States government to oppose it, as well. And indeed, that is just what
was reported to have happened. According to Jonathan Krim of the
-Washington Post, Microsoft's lobbyists succeeded in getting the United
+<citetitle>Washington Post</citetitle>, Microsoft's lobbyists succeeded in getting the United
States government to veto the meeting.<footnote><para>
<!-- f9. -->
Krim, "The Quiet War over Open-Source," available at <ulink
url="http://free-culture.cc/notes/">link #64</ulink>.
</para></footnote>
And without U.S. backing, the meeting was canceled.
+<indexterm><primary>Krim, Jonathan</primary></indexterm>
</para>
<para>
I don't blame Microsoft for doing what it can to advance its own
Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
rights are held by individuals and corporations. They get to decide
-what to do with those rights because, again, they are their rights. If
-they want to "waive" or "disclaim" their rights, that is, within our
-tradition, totally appropriate. When Bill Gates gives away more than
-$20 billion to do good in the world, that is not inconsistent with the
-objectives of the property system. That is, on the contrary, just what
-a property system is supposed to be about: giving individuals the
-right to decide what to do with their property.
+what to do with those rights because, again, they are
+<emphasis>their</emphasis> rights. If they want to "waive" or
+"disclaim" their rights, that is, within our tradition, totally
+appropriate. When Bill Gates gives away more than $20 billion to do
+good in the world, that is not inconsistent with the objectives of the
+property system. That is, on the contrary, just what a property system
+is supposed to be about: giving individuals the right to decide what
+to do with <emphasis>their</emphasis> property.
<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<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.
+See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, 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
-feudal. The trend is toward the feudal.
+choice now is whether that information society will be
+<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is
+toward the feudal.
</para>
<para>
When this battle broke, I blogged it. A spirited debate within the
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
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," <citetitle>New York Daily News</citetitle>, 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,
+Defendants," <citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean,
+"Schoolgirl Settles with RIAA," <citetitle>Wired News</citetitle>, 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,"
+Jon Wiederhorn, "Eminem Gets Sued … by a Little Old Lady,"
mtv.com, 17 September 2003, available at
<ulink url="http://free-culture.cc/notes/">link #68</ulink>.
</para></footnote>
</para>
</chapter>
-<chapter id="c-afterword">
+<chapter label="16" id="c-afterword">
<title>AFTERWORD</title>
<para>
</para>
<!-- PAGE BREAK 281 -->
-<sect1 id="usnow">
+<section id="usnow">
<title>US, NOW</title>
<para>
Common sense is with the copyright warriors because the debate so far
before.
</para>
-<sect2 id="examples">
+<section id="examples">
<title>Rebuilding Freedoms Previously Presumed: Examples</title>
<para>
If you step back from the battle I've been describing here, you will
<!-- PAGE BREAK 283 -->
<para>
Well, if we think in terms of the modalities I described in chapter
-10, your privacy was assured because of an inefficient architecture
-for gathering data and hence a market constraint (cost) on anyone who
+<xref xrefstyle="select: labelnumber" linkend="property-i"/>, your
+privacy was assured because of an inefficient architecture for
+gathering data and hence a market constraint (cost) on anyone who
wanted to gather that data. If you were a suspected spy for North
Korea, working for the CIA, no doubt your privacy would not be
assured. But that's because the CIA would (we hope) find it valuable
and the function of cookies on the Net, it is easier to collect the
data than not. The friction has disappeared, and hence any "privacy"
protected by the friction disappears, too.
+<indexterm><primary>cookies, Internet</primary></indexterm>
</para>
<para>
Amazon, of course, is not the problem. But we might begin to worry
<!-- 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
+Architecture of Privacy (What Larry Doesn't Get)," <citetitle>Stanford Technology
+Law Review</citetitle> 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
+also Jeffrey Rosen, <citetitle>The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age</citetitle> (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
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.
+<indexterm><primary>IBM</primary></indexterm>
</para>
<indexterm><primary>Stallman, Richard</primary></indexterm>
<para>
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
+<indexterm><primary>GNU/Linux operating system</primary></indexterm>
+<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
Stallman's technique was to use copyright law to build a world of
with the story of this book. This is the shift in the way academic and
scientific journals are produced.
</para>
+<indexterm id="idxacademocjournals" class='startofrange'>
+ <primary>academic journals</primary>
+</indexterm>
<para>
As digital technologies develop, it is becoming obvious to many that
printing thousands of copies of journals every month and sending them
presumptively a good—especially when it helps spread knowledge
and science.
</para>
+<indexterm startref="idxacademocjournals" class='endofrange'/>
-</sect2>
-<sect2 id="oneidea">
+</section>
+<section id="oneidea">
<title>Rebuilding Free Culture: One Idea</title>
<indexterm id="idxcc" class='startofrange'>
<primary>Creative Commons</primary>
<para>
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
+<emphasis>reasonable</emphasis> 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>
+<emphasis>Simple</emphasis>—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
<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
+example, is a science fiction author. His first novel, <citetitle>Down and Out in
+the Magic Kingdom</citetitle>, 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>
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.
+strategy of releasing Cory's book free on-line will probably
+<emphasis>increase</emphasis> sales of Cory's book.
</para>
<para>
Indeed, the experience of his publisher clearly supports that
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,
+who wrote a book about the free software movement titled <citetitle>Free for All</citetitle>,
made an electronic version of his book free on-line under a Creative
Commons license after the book went out of print. He then monitored
used book store prices for the book. As predicted, as the number of
downloads increased, the used book price for his book increased, as
well.
-</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>
+<indexterm><primary>Free for All (Wayner)</primary></indexterm>
+<indexterm><primary>Wayner, Peter</primary></indexterm>
+</para>
+<indexterm><primary>Public Enemy</primary></indexterm>
+<indexterm><primary>rap music</primary></indexterm>
+<para>
+These are examples of using the Commons to better spread proprietary
+content. I believe that is a wonderful and common use of the
+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
+<emphasis>legal</emphasis> 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
+<citetitle>Willful Infringement: A Report from the Front Lines of the Real
+Culture Wars</citetitle> (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.
+<indexterm><primary>Leaphart, Walter</primary></indexterm>
</para>
<para>
Finally, there are many who mark their content with a Creative Commons
<indexterm startref="idxcc" class='endofrange'/>
<!-- PAGE BREAK 292 -->
-</sect2>
-</sect1>
-<sect1 id="themsoon">
+</section>
+</section>
+<section id="themsoon">
<title>THEM, SOON</title>
<para>
We will not reclaim a free culture by individual action alone. It will
to our end.
</para>
-<sect2 id="formalities">
+<section id="formalities">
<title>1. More Formalities</title>
<para>
If you buy a house, you have to record the sale in a deed. If you buy land
Why?
</para>
<para>
-As I suggested in chapter 10, the motivation to abolish formalities
-was a good one. In the world before digital technologies, formalities
+As I suggested in chapter <xref xrefstyle="select: labelnumber"
+linkend="property-i"/>, the motivation to abolish formalities was a
+good one. In the world before digital technologies, formalities
imposed a burden on copyright holders without much benefit. Thus, it
was progress when the law relaxed the formal requirements that a
copyright owner must bear to protect and secure his work. Those
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.
+past. And thus, the <emphasis>lack</emphasis> of formalities forces
+many into silence where they otherwise could speak.
</para>
<para>
The law should therefore change this requirement<footnote><para>
<!-- PAGE BREAK 294 -->
-<sect3 id="registration">
+<section id="registration">
<title>REGISTRATION AND RENEWAL</title>
<para>
Under the old system, a copyright owner had to file a registration
of registrations that would facilitate the licensing of content.
</para>
-</sect3>
-<sect3 id="marking">
+</section>
+<section id="marking">
<title>MARKING</title>
<para>
It used to be that the failure to include a copyright notice on a
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
+<emphasis>solely</emphasis> 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
</para>
<!-- PAGE BREAK 297 -->
-</sect3>
-</sect2>
-<sect2 id="shortterms">
+</section>
+</section>
+<section id="shortterms">
<title>2. Shorter Terms</title>
<para>
The term of copyright has gone from fourteen years to ninety-five
natural authors.
</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>
+In <citetitle>The Future of Ideas</citetitle>, 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
+<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, the proposals became even more
+radical. <citetitle>The Economist</citetitle> endorsed a proposal for a fourteen-year
+copyright term.<footnote><para>
+
<!-- f3. -->
-"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
+"A Radical Rethink," <citetitle>Economist</citetitle>, 366:8308 (25 January 2003): 15,
available at
<ulink url="http://free-culture.cc/notes/">link #74</ulink>.
</para></footnote>
<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>
+<emphasis>Keep it short:</emphasis> 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
-navigate.
+<emphasis>Keep it simple:</emphasis> 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>
+<emphasis>Keep it alive:</emphasis> 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),
</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>
+<emphasis>Keep it prospective:</emphasis> 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
-that is much shorter than the current term. Until 1976, the average
-term was just 32.2 years. We should be aiming for the same.
+These changes together should produce an <emphasis>average</emphasis>
+copyright term that is much shorter than the current term. Until 1976,
+the average term was just 32.2 years. We should be aiming for the
+same.
</para>
<para>
No doubt the extremists will call these ideas "radical." (After all, I
<!-- PAGE BREAK 299 -->
-</sect2>
-<sect2 id="freefairuse">
+</section>
+<section id="freefairuse">
<title>3. Free Use Vs. Fair Use</title>
<para>
As I observed at the beginning of this book, property law originally
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
+Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (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.
+<indexterm><primary>Kaplan, Benjamin</primary></indexterm>
</para>
<blockquote>
<para>
Consider each limitation in turn.
</para>
<para>
-Term: If Congress wants to grant a derivative right, then that right
-should be for a much shorter term. It makes sense to protect John
+<emphasis>Term:</emphasis> If Congress wants to grant a derivative
+right, then that right should be for a much shorter term. It makes
+sense to protect John
<!-- PAGE BREAK 300 -->
Grisham's right to sell the movie rights to his latest novel (or at least
<indexterm><primary>Grisham, John</primary></indexterm>
</para>
<para>
-Scope: Likewise should the scope of derivative rights be narrowed.
-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.
+<emphasis>Scope:</emphasis> Likewise should the scope of derivative
+rights be narrowed. 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.
</para>
<para>
This was the point that Alben made when describing the making of the
Paul Goldstein.<footnote>
<para>
<!-- f7. -->
-Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
-Jukebox (Stanford: Stanford University Press, 2003), 187–216.
+Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the Celestial
+Jukebox</citetitle> (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
a great deal of culture to others to cultivate. And under a statutory
rights regime, that reuse would earn artists more income.
</para>
-</sect2>
+</section>
-<sect2 id="liberatemusic">
+<section id="liberatemusic">
<title>4. Liberate the Music—Again</title>
<para>
The battle that got this whole war going was about music, so it
work, and to a performing artist to control copies of her performance.
</para>
<para>
-File-sharing networks complicate this model by enabling the
-spread of content for which the performer has not been paid. But of
-course, that's not all the file-sharing networks do. As I described in
-chapter 5, they enable four different kinds of sharing:
+File-sharing networks complicate this model by enabling the spread of
+content for which the performer has not been paid. But of course,
+that's not all the file-sharing networks do. As I described in chapter
+<xref xrefstyle="select: labelnumber" linkend="piracy"/>, they enable
+four different kinds of sharing:
</para>
<orderedlist numeration="upperalpha">
<listitem><para>
significantly weakened.
</para>
<para>
-As I said in chapter 5, the actual harm caused by sharing is
+As I said in chapter <xref xrefstyle="select: labelnumber"
+linkend="piracy"/>, the actual harm caused by sharing is
controversial. For the purposes of this chapter, however, I assume
the harm is real. I assume, in other words, that type A sharing is
significantly greater than type B, and is the dominant use of sharing
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
+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 <emphasis>extremely</emphasis>
+easy to connect to services that give access to content, it will be
+<emphasis>easier</emphasis> to connect to services that give you
+access to content than it will be to download and store content
+<emphasis>on the many devices you will have for playing
+content</emphasis>. 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
The idea would be a modification of a proposal that has been
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:
-Technology, Law, and the Future of Entertainment (forthcoming) (Stanford:
-Stanford University Press, 2004), ch. 6, available at
+<!-- f9. -->
+William Fisher, <citetitle>Digital Music: Problems and Possibilities</citetitle> (last
+revised: 10 October 2000), available at
+<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William
+Fisher, <citetitle>Promises to Keep: Technology, Law, and the Future of
+Entertainment</citetitle> (forthcoming) (Stanford: Stanford University Press,
+2004), ch. 6, available at
<ulink url="http://free-culture.cc/notes/">link #78</ulink>. Professor
Netanel has proposed a related idea that would exempt noncommercial
sharing from the reach of copyright and would establish compensation
to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
Noncommercial Use Levy to Allow Free P2P File Sharing," available at
<ulink url="http://free-culture.cc/notes/">link #79</ulink>. For other proposals, see Lawrence Lessig, "Who's Holding Back
-Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
+Broadband?" <citetitle>Washington Post</citetitle>, 8 January 2002, A17; Philip S. Corwin on
behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
Chairman of the Senate Foreign Relations Committee, 26 February 2002,
available at
-<ulink url="http://free-culture.cc/notes/">link #80</ulink>; Serguei Osokine, A Quick Case for Intellectual Property
-Use Fee (IPUF), 3 March 2002, available at
+<ulink url="http://free-culture.cc/notes/">link #80</ulink>; Serguei Osokine, <citetitle>A Quick Case for Intellectual Property
+Use Fee (IPUF)</citetitle>, 3 March 2002, available at
<ulink url="http://free-culture.cc/notes/">link #81</ulink>; Jefferson Graham,
-"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
+"Kazaa, Verizon Propose to Pay Artists Directly," <citetitle>USA Today</citetitle>, 13 May
2002, available at
<ulink url="http://free-culture.cc/notes/">link #82</ulink>; Steven M. Cherry, "Getting Copyright Right,"
IEEE Spectrum Online, 1 July 2002, available at
popular. As is typical with Stallman, his proposal predates the current
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>
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<indexterm><primary>Promises to Keep (Fisher)</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
<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
+<citetitle>Promises to Keep</citetitle>. 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
system, then it can be continued. If this form of protection is no
longer necessary, then the system could lapse into the old system of
controlling access.
+<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para>
<para>
Fisher would balk at the idea of allowing the system to lapse. His aim
semiotic democracy if there were few limitations on what one was
allowed to do with the content itself.
</para>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
No doubt it would be difficult to calculate the proper measure of
"harm" to an industry. But the difficulty of making that calculation
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,
+technology that is 95 percent secure and produces a market of size <citetitle>x</citetitle>,
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
+market of five times <citetitle>x</citetitle>? 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
should be on how to make sure the artists are paid, while protecting
the space for innovation and creativity that the Internet is.
</para>
-</sect2>
+</section>
-<sect2 id="firelawyers">
+<section id="firelawyers">
<title>5. Fire Lots of Lawyers</title>
<para>
I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
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.
+Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, 1069–70.
</para></footnote>
</para>
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
+J. Liebowitz, <citetitle>Rethinking the Network Economy: The True Forces That
+Drive the Digital Marketplace</citetitle> (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
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.
+<citetitle>Rethinking</citetitle>, 174–76.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
They see a system that has been around for hundreds of years, and they
keep your lawyers away.
</para>
<!-- PAGE BREAK 312 -->
-</sect2>
-</sect1>
+</section>
+</section>
</chapter>
-<chapter id="c-notes">
+<chapter label="17" id="c-notes">
<title>NOTES</title>
<para>
Throughout this text, there are references to links on the World Wide
disappeared, you will be redirected to an appropriate reference for
the material.
</para>
-<!-- PAGE BREAK 336 -->
+<!--PAGE BREAK 336-->
</chapter>
-<chapter id="c-acknowledgments">
+<chapter label="18" id="c-acknowledgments">
<title>ACKNOWLEDGMENTS</title>
<para>
This book is the product of a long and as yet unsuccessful struggle that
work helped launch a movement, the free culture movement, and it is
to him that this book is dedicated.
</para>
+<indexterm><primary>Rose, Mark</primary></indexterm>
<para>
I received guidance in various places from friends and academics,
including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
its culture. I am thankful to her, and to the many in Japan who helped
me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
-<!-- PAGE BREAK 337 -->
+<!--PAGE BREAK 337-->
Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
and the Tokyo University Business Law Center, for giving me the
chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
battles, and who has always been right. This slow learner is, as ever,
grateful for her perpetual patience and love.
</para>
-<!-- PAGE BREAK 338 -->
+<!--PAGE BREAK 338-->
</chapter>
+<index></index>
</book>
projects / text-free-culture-lessig.git / blobdiff