<biblioid class="libraryofcongress">2003063276</biblioid>
</bookinfo>
-<!-- PAGE BREAK 1 -->
+<!--PAGE BREAK 1-->
<dedication id="salespoints">
<title></title>
<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.
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 -->
+<!--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.
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
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
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
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.
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>
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 <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.
+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.
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.")
+told her that <emphasis>they</emphasis> 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
</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.
(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
<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
<para>
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
-<!-- PAGE BREAK 77 -->
+<beginpage pagenum="77"/>
not to protect copyright internationally. We may have been born a
pirate nation, but we will not allow any other nation to have a
similar childhood.
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: <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
-proposition for developing countries. Additionally, patent rights may
-lead to higher prices for staple industries such as
-agriculture. Critics of TRIPS question the disparity between burdens
-imposed upon developing countries and benefits conferred to
-industrialized nations. TRIPS does permit governments to use patents
-for public, noncommercial uses without first obtaining the patent
-holder's permission. Developing nations may be able to use this to
-gain the benefits of foreign patents at lower prices. This is a
-promising strategy for developing nations within the TRIPS framework.
+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 proposition for developing
+countries. Additionally, patent rights may lead to higher prices for
+staple industries such as agriculture. Critics of TRIPS question the
+disparity between burdens imposed upon developing countries and
+benefits conferred to industrialized nations. TRIPS does permit
+governments to use patents for public, noncommercial uses without
+first obtaining the patent holder's permission. Developing nations may
+be able to use this to gain the benefits of foreign patents at lower
+prices. This is a promising strategy for developing nations within the
+TRIPS framework.
+<indexterm><primary>agricultural patents</primary></indexterm>
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote> In my view, more developing nations should take
advantage of that opportunity, but when they don't, then their laws
<!-- f8 -->
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 -->
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 <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, <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., <citetitle>John R. Commons: Selected Essays</citetitle> (London:
+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,
+<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.,
+<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 <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
-of these groups might face.
+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 of these groups might face.
+<indexterm><primary>Americans with Disabilities Act (1990)</primary></indexterm>
<indexterm><primary>Commons, John R.</primary></indexterm>
</para></footnote>
</para>
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
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.
</para>
Wonderland".</title>
<graphic fileref="images/1641.png"></graphic>
</figure>
+<beginpage pagenum="164"/>
<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"!
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
The Aibo is expensive and popular. Fans from around the world
have set up clubs to trade stories. One fan in particular set up a Web
site to enable information about the Aibo dog to be shared. This fan set
-<!-- PAGE BREAK 165 -->
+<beginpage pagenum="165"/>
up aibopet.com (and aibohack.com, but that resolves to the same site),
and on that site he provided information about how to teach an Aibo
to do tricks in addition to the ones Sony had taught it.
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 <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.
+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,
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
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
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
the VCR</citetitle> (New York: W. W. Norton, 1987), 270–71.
+<indexterm><primary>Rogers, Fred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
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
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><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
</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
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
<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
disappeared, you will be redirected to an appropriate reference for
the material.
</para>
-<!-- PAGE BREAK 336 -->
+<!--PAGE BREAK 336-->
</chapter>
<chapter label="18" id="c-acknowledgments">
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>
projects / text-free-culture-lessig.git / blobdiff