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<book id="index" lang="en">
<bookinfo>
<title>Free Culture</title>
<primary>Pogue, David</primary>
</indexterm>
<para>
-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:
+<emphasis role="bold">At the end</emphasis> 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>
culture deem fundamental.
</para>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
+<indexterm><primary>Stevens, Ted</primary></indexterm>
<para>
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
<!-- PAGE BREAK 16 -->
<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
+<indexterm id='idxairtraffic' class='startofrange'>
+ <primary>air traffic, land ownership vs.</primary>
+</indexterm>
+<indexterm id='idxlandownership' class='startofrange'>
+ <primary>land ownership, air traffic and</primary>
+</indexterm>
+<indexterm id='idxproprigtair' class='startofrange'>
+ <primary>property rights</primary>
+ <secondary>air traffic vs.</secondary>
+</indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
On December 17, 1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
Or at least, this is how things happen when there's no one powerful
on the other side of the change. The Causbys were just farmers. And
<quote>common sense</quote>—would prevail. Their <quote>private interest</quote> would not be
allowed to defeat an obvious public gain.
</para>
+<indexterm startref='idxproprigtair' class='endofrange'/>
+<indexterm startref='idxlandownership' class='endofrange'/>
+<indexterm startref='idxairtraffic' class='endofrange'/>
+<indexterm id='idxarmstrongedwin' class='startofrange'>
+ <primary>Armstrong, Edwin Howard</primary>
+</indexterm>
<para>
-Edwin Howard Armstrong is one of America's forgotten inventor
+<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of America's forgotten inventor
geniuses. He came to the great American inventor scene just after the
titans Thomas Edison and Alexander Graham Bell. But his work in
the area of radio technology was perhaps the most important of any
now broke, in 1954 Armstrong wrote a short note to his wife and then
stepped out of a thirteenth-story window to his death.
</para>
+<indexterm startref='idxarmstrongedwin' class='endofrange'/>
<para>
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
And thus, when geeks and technologists defend their Armstrong or
Wright brothers technology, most of us are simply unsympathetic.
York: Perennial, 2000).
</para></footnote>
</para>
+<indexterm><primary>Superman comics</primary></indexterm>
<para>
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi are
and noticing split infinitives are the things that <quote>literate</quote> people know
about.
</para>
+<indexterm><primary>advertising</primary></indexterm>
<para>
Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
in those elections. The cycle of these elections has become totally
professionalized and routinized. Most of us think this is democracy.
</para>
+<indexterm><primary>Tocqueville, Alexis de</primary></indexterm>
<para>
But democracy has never just been about elections. Democracy
means rule by the people, but rule means something more than mere
is having an effect.
<indexterm><primary>Dean, Howard</primary></indexterm>
</para>
+<indexterm><primary>Thurmond, Strom</primary></indexterm>
<para>
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
fired for keeping a personal Web log, published under a pseudonym,
that dealt with some of the issues and people he was covering.</quote>)
<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Olafson, Steve</primary></indexterm>
</para></footnote>
But it is clear that we are still in transition. <quote>A
<indexterm id="idxbrownjohnseely" class='startofrange'>
<primary>Brown, John Seely</primary>
</indexterm>
+<indexterm id='idxadvertising1' class='startofrange'>
+ <primary>advertising</primary>
+</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
His work, as his Web site describes it, is <quote>human learning and … the
lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence.</quote>
</para>
+<indexterm startref='idxadvertising1' class='endofrange'/>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
Brown is talking about what Elizabeth Daley, Stephanie Barish, and
created or posted, and the vast majority of which had nothing to do
with music.
</para>
+<indexterm><primary>statutory damages</primary></indexterm>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore <quote>willfully</quote> violated copyright laws. They
$12,000 from summer jobs and other employment. They demanded
$12,000 to dismiss the case.
</para>
+<indexterm><primary>Oppenheimer, Matt</primary></indexterm>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
refused. They wanted him to agree to an injunction that would
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
+<indexterm>
+<primary>artists</primary>
+<secondary>recording industry payments to</secondary>
+</indexterm>
<para>
The recording industry insists this is a matter of law and morality.
Let's put the law aside for a moment and think about the morality.
Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
the Propertization of Copyright</quote> (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
-Working Paper No. 159. </para></footnote>
+Working Paper No. 159.
+<indexterm><primary>broadcast flag</primary></indexterm>
+</para></footnote>
<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Sousa, John Philip</primary></indexterm>
<para>
The innovators who developed the technology to record other
people's works were <quote>sponging upon the toil, the work, the talent, and
</section>
<section id="radio">
<title>Radio</title>
+<indexterm id='idxartistspayments1' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
Radio was also born of piracy.
</para>
the choice for him or her, the law gives the radio station the right
to take something for nothing.
</para>
+<indexterm startref='idxartistspayments1' class='endofrange'/>
</section>
<section id="cabletv">
<title>Cable TV</title>
</para>
<section id="piracy-i">
<title>Piracy I</title>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
should be respected. And under the laws of these nations, this piracy
is wrong.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Alternatively, we could try to excuse this piracy by noting that in
any case, it does no harm to the industry. The Chinese who get access
technology of a time, then it is wrong to take property without the
permission of a property owner. That is exactly what <quote>property</quote> means.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Finally, we could try to excuse this piracy with the argument that the
piracy actually helps the copyright owner. When the Chinese <quote>steal</quote>
legitimate rights of creators while protecting innovation. Sometimes
this has meant more rights for creators. Sometimes less.
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
So, as we've seen, when <quote>mechanical reproduction</quote> threatened the
interests of composers, Congress balanced the rights of composers
eliminate the opportunity for free riding in the sense I've described. See
Lessig, <citetitle>Future</citetitle>, 71. See also Picker, <quote>From Edison to the Broadcast Flag,</quote>
<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 293–96.
+<indexterm><primary>broadcast flag</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
<indexterm><primary>Henry V</primary></indexterm>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
<para>
William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
was first published in 1597. It was the eleventh major play that
the author the exclusive right to copy, the exclusive right to
distribute, the exclusive right to perform, and so on.
</para>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
<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
right to print—no less, of course, but also no more.
</para>
<indexterm><primary>Henry VIII, King of England</primary></indexterm>
+<indexterm><primary>Statute of Monopolies (1656)</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
They had had a long and ugly experience with <quote>exclusive rights,</quote>
Donaldson's. A number of actions were successful against the <quote>pirates,</quote>
the most important early victory being <citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>.
</para>
+<indexterm><primary>Taylor, Robert</primary></indexterm>
<para>
Millar was a bookseller who in 1729 had purchased the rights to James
Thomson's poem <quote>The Seasons.</quote> Millar complied with the requirements of
shot in the film. They take a dim view of <quote>fair use,</quote> and a claim of
<quote>fair use</quote> can grind the application process to a halt.
</para></listitem>
-<listitem><para>
+<listitem>
+<indexterm><primary><citetitle>Star Wars</citetitle></primary></indexterm>
+<para>
<!-- 2. -->
I probably never should have asked Matt Groening in the first
place. But I knew (at least from folklore) that Fox had a history of
<chapter label="8" id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm id='idxalbenalex1' class='startofrange'>
+ <primary>Alben, Alex</primary>
+</indexterm>
<para>
In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
was an innovative company founded by Microsoft cofounder Paul Allen to
popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm id='idxartistsretrospective' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>retrospective compilations on</secondary>
+</indexterm>
<para>
Alben had a special interest in new technology. He was intrigued by
the emerging market for CD-ROM technology—not to distribute
Eastwood, with clips from his films and interviews with figures
important to his career.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
At that time, Eastwood had made more than fifty films, as an actor and
as a director. Alben began with a series of interviews with Eastwood,
made. Most of his career was spent at Warner Brothers, and so it was
relatively easy to get permission for that content.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Then Alben and his team decided to include actual film clips. <quote>Our
goal was that we were going to have a clip from every one of
one had ever tried to do this in the context of an artistic look at an
actor's career.</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben brought the idea to Michael Slade, the CEO of Starwave.
Slade asked, <quote>Well, what will it take?</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben replied, <quote>Well, we're going to have to clear rights from
everyone who appears in these films, and the music and everything
<primary>artists</primary>
<secondary>publicity rights on images of</secondary>
</indexterm>
+<indexterm><primary>Alben, Alex</primary></indexterm>
</para></footnote>
</para>
<para>
started calling people.
</para>
</blockquote>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Sutherland, Donald</primary></indexterm>
<para>
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
It was one <emphasis>year</emphasis> later—<quote>and even then we
weren't sure whether we were totally in the clear.</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben is proud of his work. The project was the first of its kind and
the only time he knew of that a team had undertaken such a massive
And no doubt, the product itself was exceptionally good. Eastwood
loved it, and it sold very well.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<indexterm><primary>Drucker, Peter</primary></indexterm>
<para>
But I pressed Alben about how weird it seems that it would have to
money,</quote> then it becomes difficult to put one of these things together.
</para>
</blockquote>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben worked for a big company. His company was backed by some of the
richest investors in the world. He therefore had authority and access
that the average Web designer would not have. So if it took him a
year, how long would it take someone else? And how much creativity is
never made just because the costs of clearing the rights are so high?
+</para>
+<indexterm startref='idxartistsretrospective' class='endofrange'/>
+<para>
These costs are the burdens of a kind of regulation. Put on a
Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
regulationminimizing Republican should look at the rights and ask,
<quote>Does this still make sense?</quote>
</para>
+<indexterm startref='idxalbenalex1' class='endofrange'/>
<para>
I've seen the flash of recognition when people get this point, but only
a few times. The first was at a conference of federal judges in California.
were just violated in this room?</quote>
</para>
<indexterm><primary>Boies, David</primary></indexterm>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
For of course, the two brilliantly talented creators who made this
film hadn't done what Alben did. They hadn't spent a year clearing the
find just about any image you want; in another second, you can have it
planted in your presentation.
</para>
+<indexterm><primary>Camp Chaos</primary></indexterm>
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
biting political commentary. A site called Camp Chaos has produced
some of the most biting criticism of the record industry that there is
through the mixing of Flash! and music.
-<indexterm><primary>Camp Chaos</primary></indexterm>
</para>
<para>
All of these creations are technically illegal. Even if the creators
</chapter>
<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
+<indexterm id='idxarchivesdigital1' class='startofrange'>
+ <primary>archives, digital</primary>
+</indexterm>
<para>
In April 1996, millions of <quote>bots</quote>—computer codes designed to
<quote>spider,</quote> or automatically search the Internet and copy content—began
enter a Web page, and see all of its copies going back to 1996, as
well as when those pages changed.
</para>
+<indexterm id='idxorwellgeorge' class='startofrange'>
+ <primary>Orwell, George</primary>
+</indexterm>
<para>
This is the thing about the Internet that Orwell would have
appreciated. In the dystopia described in <citetitle>1984</citetitle>, old newspapers were
but the content could easily be different. The Internet is Orwell's
library—constantly updated, without any reliable memory.
</para>
+<indexterm startref='idxorwellgeorge' class='endofrange'/>
<para>
Until the Way Back Machine, at least. With the Way Back Machine, and
the Internet Archive underlying it, you can see what the Internet
Carnegie of the Internet. By December of 2002, the archive had over 10
billion pages, and it was growing at about a billion pages a month.
</para>
+<indexterm><primary>Vanderbilt University</primary></indexterm>
<para>
The Way Back Machine is the largest archive of human knowledge in
human history. At the end of 2002, it held <quote>two hundred and thirty
Anyone could see how news reports from around the world covered the
events of that day.
</para>
+<indexterm><primary>Movie Archive</primary></indexterm>
+<indexterm>
+ <primary>archive.org</primary>
+ <seealso>Internet Archive</seealso>
+</indexterm>
<para>
Kahle had the same idea with film. Working with Rick Prelinger, whose
archive of film includes close to 45,000 <quote>ephemeral films</quote> (meaning
that instructed children how to save themselves in the middle of
nuclear attack? Go to archive.org, and you can download the film in a
few minutes—for free.
-<indexterm><primary>Movie Archive</primary></indexterm>
</para>
<para>
Here again, Kahle is providing access to a part of our culture that we
Kahle describes,
</para>
<blockquote>
+<indexterm>
+ <primary>books</primary>
+ <secondary>total number of</secondary>
+</indexterm>
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
someone's <quote>property.</quote> And the law of property restricts the freedoms
that Kahle and others would exercise.
</para>
+<indexterm startref='idxarchivesdigital1' class='endofrange'/>
<!-- PAGE BREAK 127 -->
</chapter>
<chapter label="10" id="property-i">
an ex ante rule. It is imposed by the state.
<indexterm><primary>Madonna</primary></indexterm>
</para>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
Norms are a different kind of constraint. They, too, punish an
individual for violating a rule. But the punishment of a norm is
state. The mark of the difference is not the severity of the rule, but
the source of the enforcement.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The market is a third type of constraint. Its constraint is effected
through conditions: You can do X if you pay Y; you'll be paid M if you
contract law, the market imposes a simultaneous constraint upon how an
individual or group might behave.
</para>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
Finally, and for the moment, perhaps, most mysteriously,
<quote>architecture</quote>—the physical world as one finds it—is a
<indexterm id="idxdrivespeed" class='startofrange'>
<primary>driving speed, constraints on</primary>
</indexterm>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
So, for example, consider the <quote>freedom</quote> to drive a car at a high
speed. That freedom is in part restricted by laws: speed limits that
<title>Law has a special role in affecting the three.</title>
<graphic fileref="images/1361.png"></graphic>
</figure>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
These constraints can thus change, and they can be changed. To
understand the effective protection of liberty or protection of
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>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
</para></footnote>
</para>
<section id="hollywood">
<title>Copyright's regulation before the Internet.</title>
<graphic fileref="images/1331.png"></graphic>
</figure>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
<!-- PAGE BREAK 136 -->
There is balance between law, norms, market, and architecture. The law
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
</para>
+<indexterm><primary>steel industry</primary></indexterm>
<para>
This mixed strategy is just what copyright needed—if it was to
preserve the particular balance that existed before the change induced
Brown describes it, its <quote>architecture of revenue.</quote>
</para>
<indexterm><primary>railroad industry</primary></indexterm>
+<indexterm><primary>advertising</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
reinforce commercial television? (Maybe by limiting them to function
only once a second, or to switch to only ten channels within an hour?)
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
+<indexterm><primary>Gates, Bill</primary></indexterm>
<para>
The obvious answer to these obviously rhetorical questions is no.
In a free society, with a free market, supported by free enterprise and
competitors with new ideas will not succeed. It is a world of stasis and
increasingly concentrated stagnation. It is the Soviet Union under
Brezhnev.
-<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<para>
Thus, while it is understandable for industries threatened with new
important and valuable and probably saved lives, possibly millions.
</para>
<indexterm><primary>Carson, Rachel</primary></indexterm>
+<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
<para>
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.
-<indexterm><primary>Carson, Rachel</primary></indexterm>
-<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
</para>
<para>
No one set out to destroy the environment. Paul Müller certainly did
when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
</para>
+<indexterm><primary>Boyle, James</primary></indexterm>
<para>
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an <quote>environmentalism</quote> for
presumptively regulated, then the protections of fair use are not
enough.
</para>
+<indexterm id='idxadvertising2' class='startofrange'>
+ <primary>advertising</primary>
+</indexterm>
<para>
The case of Video Pipeline is a good example. Video Pipeline was
in the business of making <quote>trailer</quote> advertisements for movies available
not allowed to show clips of the films as a way of selling them without
Disney's permission.
</para>
+<indexterm startref='idxadvertising2' class='endofrange'/>
<para>
Now, you might think this is a close case, and I think the courts
would consider it a close case. My point here is to map the change
control. The technology expands the scope of effective control,
because the technology builds a copy into every transaction.
</para>
+<indexterm><primary>Barnes & Noble</primary></indexterm>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
depend fundamentally upon the press to help inform Americans about
these issues.
</para>
+<indexterm id='idxadvertising3' class='startofrange'>
+ <primary>advertising</primary>
+</indexterm>
<para>
Beginning in 1998, the Office of National Drug Control Policy launched
a media campaign as part of the <quote>war on drugs.</quote> The campaign produced
<indexterm><primary>NBC</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
<indexterm><primary>WRC</primary></indexterm>
+<indexterm><primary>advertising</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>
+<indexterm startref='idxadvertising3' class='endofrange'/>
</section>
<section id="together">
<title>Together</title>
free, and for almost 180 years our country consistently protected a
vibrant and rich free culture.
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
We achieved that free culture because our law respected important
limits on the scope of the interests protected by <quote>property.</quote> The very
of control in the name of property still resonate; the uncritical
rejection of <quote>piracy</quote> still has play.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 193 -->
There will be many consequences of continuing this war. I want to
than the fine for a doctor's negligently butchering a patient?
<indexterm><primary>Worldcom</primary></indexterm>
</para>
+<indexterm><primary>art, underground</primary></indexterm>
<para>
The consequence of this legal uncertainty, tied to these extremely
high penalties, is that an extraordinary amount of creativity will
<quote>free culture.</quote> The point is the same, even if the interests
affecting culture are more fundamental.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The charge I've been making about the regulation of culture is the
same charge free marketers make about regulating markets. Everyone, of
unlimited liability, we will have much less vibrant innovation and
much less creativity.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The point is directly parallel to the crunchy-lefty point about fair
use. Whatever the <quote>real</quote> law is, realism about the effect of law in
the Internet less efficient. If the Internet enables <quote>piracy,</quote> then,
this response says, we should break the kneecaps of the Internet.
</para>
+<indexterm><primary>broadcast flag</primary></indexterm>
<para>
The examples of this form of legislation are many. At the urging of
the content industry, some in Congress have threatened legislation that
implemented by Congress. I won't catalog all of those responses
here.<footnote><para>
<!-- f11. -->
+<indexterm><primary>Tauzin, Billy</primary></indexterm>
For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
<indexterm><primary>Hollings, Fritz</primary></indexterm>
+<indexterm><primary>broadcast flag</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>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
<!-- PAGE BREAK 204 -->
of users worldwide. According to some estimates, more than eighty
million users worldwide have tuned in to this new form of radio.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 205 -->
question we should ask is, what copyright rules would govern Internet
radio?
</para>
+<indexterm id='idxartistspayments2' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
But here the power of the lobbyists is reversed. Internet radio is a
new industry. The recording artists, on the other hand, have a very
A regular radio station broadcasting the same content would pay no
equivalent fee.
</para>
+<indexterm startref='idxartistspayments2' class='endofrange'/>
<para>
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio
economic consequences from Internet radio that would justify these
differences? Was the motive to protect artists against piracy?
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<indexterm><primary>Real Networks</primary></indexterm>
+<indexterm id='idxalbenalex2' class='startofrange'>
+ <primary>Alben, Alex</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
high, you're going to drive the small webcasters out of
business. …</quote>
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
And the RIAA experts said, <quote>Well, we don't really model this as an
industry with thousands of webcasters, <emphasis>we think it should be
added.)
</para>
</blockquote>
+<indexterm startref='idxalbenalex2' class='endofrange'/>
<para>
Translation: The aim is to use the law to eliminate competition, so
that this platform of potentially immense competition, which would
if Congress extends the term again). By contrast, in the same period,
more than 1 million patents will pass into the public domain.
</para>
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
<para>
<!-- PAGE BREAK 222 -->
Sonny Bono, who, his widow, Mary Bono, says, believed that
<quote>copyrights should be forever.</quote><footnote><para>
<!-- f2. -->
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
The full text is: <quote>Sonny [Bono] wanted the term of copyright
protection to last forever. I am informed by staff that such a change
would violate the Constitution. I invite all of you to work with me to
remaining
9,873. What would you have to do?
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
Well, first, you'd have to determine which of the 9,873 books were
still under copyright. That requires going to a library (these data are
consequence
for other creative works is much more dire.
</para>
-<indexterm><primary>Agee, Michael</primary></indexterm>
+<indexterm id='idxageemichael' class='startofrange'>
+ <primary>Agee, Michael</primary>
+</indexterm>
<indexterm><primary>Hal Roach Studios</primary></indexterm>
<indexterm><primary>Laurel and Hardy Films</primary></indexterm>
<para>
films, Agee argued, the film will not be restored and distributed until
the copyright expires.
</para>
+<indexterm startref='idxageemichael' class='endofrange'/>
<para>
But by the time the copyright for these films expires, the film will
have expired. These films were produced on nitrate-based stock, and
<para>
But this situation has now changed.
</para>
+<indexterm id='idxarchivesdigital2' class='startofrange'>
+ <primary>archives, digital</primary>
+</indexterm>
<para>
One crucially important consequence of the emergence of digital
technologies is to enable the archive that Brewster Kahle dreams of.
particular bit of that culture or not—then we can't count on the
commercial market to do our library work for us.
</para>
+<indexterm startref='idxarchivesdigital2' class='endofrange'/>
<para>
I would be the first to agree that it should do as much as it can: We
should rely upon the market as much as possible to spread and enable
important cases or cases that raise issues specific to the circuit as a
whole, where the court will sit <quote>en banc</quote> to hear the case.
</para>
+<indexterm><primary>Tatel, David</primary></indexterm>
<para>
The Court of Appeals rejected our request to hear the case en banc.
This time, Judge Sentelle was joined by the most liberal member of the
for this case. Early on, as I said, I set the strategy.
</para>
<indexterm><primary>Rehnquist, William H.</primary></indexterm>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
The Supreme Court was divided into two important camps. One camp we
called <quote>the Conservatives.</quote> The other we called <quote>the Rest.</quote> The
power. This was a case about enumerated powers, I said, and whether
those enumerated powers had any limit.
</para>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
Justice O'Connor stopped me within one minute of my opening.
The history was bothering her.
into the Copyright Clause.
</para>
</blockquote>
+<indexterm><primary>Olson, Theodore B.</primary></indexterm>
<para>
Things went better for us when the government gave its argument;
for now the Court picked up on the core of our claim. As Justice Scalia
depression gives way to anger. My anger came quickly, but it didn't cure
the depression. This anger was of two sorts.
</para>
+<indexterm><primary>originalism</primary></indexterm>
<para>
It was first anger with the five <quote>Conservatives.</quote> It would have been
one thing for them to have explained why the principle of <citetitle>Lopez</citetitle> didn't
</part>
<chapter label="15" id="c-conclusion">
<title>CONCLUSION</title>
+<indexterm id="idxantiretroviraldrugs" class='startofrange'>
+ <primary>antiretroviral drugs</primary>
+</indexterm>
+<indexterm id="idxhivaidstherapies" class='startofrange'>
+ <primary>HIV/AIDS therapies</primary>
+</indexterm>
+<indexterm id="idxafricahivmed" class='startofrange'>
+ <primary>Africa, medications for HIV patients in</primary>
+</indexterm>
<para>
There are more than 35 million people with the AIDS virus
worldwide. Twenty-five million of them live in sub-Saharan Africa.
extremism. A certain property fundamentalism, having no connection to
our tradition, now reigns in this culture—bizarrely, and with
consequences more grave to the spread of ideas and culture than almost
-any other single policy decision that we as a democracy will make. A
-simple idea blinds us, and under the cover of darkness, much happens
+any other single policy decision that we as a democracy will make.
+</para>
+<indexterm startref="idxafricahivmed" class='endofrange'/>
+<indexterm startref="idxhivaidstherapies" class='endofrange'/>
+<indexterm startref="idxantiretroviraldrugs" class='endofrange'/>
+<para>
+A simple idea blinds us, and under the cover of darkness, much happens
that most of us would reject if any of us looked. So uncritically do
we accept the idea of property in ideas that we don't even notice how
monstrous it is to deny ideas to a people who are dying without
produce the <quote>perfect storm</quote> for free culture.
</para>
<indexterm><primary>Reagan, Ronald</primary></indexterm>
+<indexterm id='idxbiomedicalresearch' class='startofrange'>
+ <primary>biomedical research</primary>
+</indexterm>
+<indexterm><primary>Wellcome Trust</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>IBM</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
+<indexterm startref='idxbiomedicalresearch' class='endofrange'/>
<para>
The aim of the meeting was to consider this wide range of projects
from one common perspective: that none of these projects relied upon
been part of our tradition for most of our history—free culture.
</para>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
+<indexterm><primary>Safire, William</primary></indexterm>
+<indexterm><primary>Turner, Ted</primary></indexterm>
<para>
If this is crazy, then let there be more crazies. Soon. There are
moments of hope in this struggle. And moments that surprise. When the
for Peace organized to oppose this change in FCC policy. An
astonishing 700,000 letters were sent to the FCC, demanding more
hearings and a different result.
-<indexterm><primary>Turner, Ted</primary></indexterm>
-<indexterm><primary>Safire, William</primary></indexterm>
</para>
<para>
This activism did not stop the FCC, but soon after, a broad coalition
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm><primary>Creative Commons</primary></indexterm>
<indexterm><primary>Gil, Gilberto</primary></indexterm>
+<indexterm><primary>BBC</primary></indexterm>
+<indexterm><primary>Brazil, free culture in</primary></indexterm>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
that it will build a <quote>Creative Archive,</quote> from which British citizens can
it, then the freedom to change and share software would be
fundamentally weakened.
</para>
+<indexterm><primary>Torvalds, Linus</primary></indexterm>
<para>
Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
The same strategy could be applied to culture, as a response to the
increasing control effected through law and technology.
</para>
+<indexterm><primary>Stanford University</primary></indexterm>
<para>
Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
</section>
<section id="freefairuse">
<title>3. Free Use Vs. Fair Use</title>
+<indexterm><primary>land ownership, air traffic and</primary></indexterm>
+<indexterm>
+ <primary>property rights</primary>
+ <secondary>air traffic vs.</secondary>
+</indexterm>
<para>
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
machines. That's what this general requirement of permission does to
the creative process. Smothers it.
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
This was the point that Alben made when describing the making of the
Clint Eastwood CD. While it makes sense to require negotiation for
Internet. Imagine the Internet as ubiquitous as the best cell-phone
service, where with the flip of a device, you are connected.
</para>
+<indexterm><primary>cell phones, music streamed over</primary></indexterm>
<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,
floated by Harvard law professor William Fisher.<footnote>
<para>
<!-- f9. -->
+<indexterm id='idxartistspayments3' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
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
<indexterm><primary>Fisher, William</primary></indexterm>
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
+<indexterm startref='idxartistspayments3' class='endofrange'/>
</para></footnote>
Fisher suggests a very clever way around the current impasse of the
Internet. Under his plan, all content capable of digital transmission
controlling access.
<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
Fisher would balk at the idea of allowing the system to lapse. His aim
is not just to ensure that artists are paid, but also to ensure that
there will be a great deal of competition to offer and sell music
on-line.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
This competition has already occurred against the background of <quote>free</quote>
music from p2p systems. As the sellers of cable television have known
what the law will too often do if too much of our culture is left to
its review.
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
<para>
Think about the amazing things your kid could do or make with digital
technology—the film, the music, the Web page, the blog. Or think
projects / text-free-culture-lessig.git / blobdiff