-
-Before our films can be broadcast, the network requires that we buy Errors
-and Omissions insurance. The carriers require a detailed "visual cue sheet"
-listing the source and licensing status of each shot in the film. They take
-a dim view of "fair use," and a claim of "fair use" can grind the
-application process to a halt.
-</p></li><li class="listitem"><p>
-
-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 <em class="citetitle">Simpsons</em> usage, just as George
-Lucas had a very high profile litigating <em class="citetitle">Star Wars</em>
-usage. So I decided to play by the book, thinking that we would be granted
-free or cheap license to four seconds of <em class="citetitle">Simpsons</em>. 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. <a class="indexterm" name="id2758624"></a>
-</p></li><li class="listitem"><p>
-
-
-
-I did, in fact, speak with one of your colleagues at Stanford Law School
-. . . who confirmed that it was fair use. He also confirmed that Fox would
-"depose and litigate you to within an inch of your life," regardless of the
-merits of my claim. He made clear that it would boil down to who had the
-bigger legal department and the deeper pockets, me or them.
-
-</p></li><li class="listitem"><p>
-
-
-The question of fair use usually comes up at the end of the project, when we
-are up against a release deadline and out of money.
-</p></li></ol></div></blockquote></div><p>
-In theory, fair use means you need no permission. The theory therefore
-supports free culture and insulates against a permission culture. But in
-practice, fair use functions very differently. The fuzzy lines of the law,
-tied to the extraordinary liability if lines are crossed, means that the
-effective fair use for many types of creators is slight. The law has the
-right aim; practice has defeated the aim.
-</p><p>
-This practice shows just how far the law has come from its
-eighteenth-century roots. The law was born as a shield to protect
-publishers' profits against the unfair competition of a pirate. It has
-matured into a sword that interferes with any use, transformative or not.
-</p></div><div class="sect1" title="Kapittel åtte: Omformere"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="transformers"></a>Kapittel åtte: Omformere</h2></div></div></div><a class="indexterm" name="id2758689"></a><a class="indexterm" name="id2758695"></a><p>
-In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an
-innovative company founded by Microsoft cofounder Paul Allen to develop
-digital entertainment. Long before the Internet became popular, Starwave
-began investing in new technology for delivering entertainment in
-anticipation of the power of networks.
-</p><a class="indexterm" name="id2758710"></a><p>
-Alben had a special interest in new technology. He was intrigued by the
-emerging market for CD-ROM technology—not to distribute film, but to
-do things with film that otherwise would be very difficult. In 1993, he
-launched an initiative to develop a product to build retrospectives on the
-work of particular actors. The first actor chosen was Clint Eastwood. The
-idea was to showcase all of the work of Eastwood, with clips from his films
-and interviews with figures important to his career.
-</p><a class="indexterm" name="id2758718"></a><p>
-At that time, Eastwood had made more than fifty films, as an actor and as a
-director. Alben began with a series of interviews with Eastwood, asking him
-about his career. Because Starwave produced those interviews, it was free to
-include them on the CD.
-</p><p>
-
-
-That alone would not have made a very interesting product, so Starwave
-wanted to add content from the movies in Eastwood's career: posters,
-scripts, and other material relating to the films Eastwood made. Most of his
-career was spent at Warner Brothers, and so it was relatively easy to get
-permission for that content.
-</p><a class="indexterm" name="id2758752"></a><p>
-Then Alben and his team decided to include actual film clips. "Our goal was
-that we were going to have a clip from every one of Eastwood's films," Alben
-told me. It was here that the problem arose. "No one had ever really done
-this before," Alben explained. "No one had ever tried to do this in the
-context of an artistic look at an actor's career."
-</p><a class="indexterm" name="id2758768"></a><p>
-Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked,
-"Well, what will it take?"
-</p><a class="indexterm" name="id2758779"></a><p>
-Alben replied, "Well, we're going to have to clear rights from everyone who
-appears in these films, and the music and everything else that we want to
-use in these film clips." Slade said, "Great! Go for it."<sup>[<a name="id2758791" href="#ftn.id2758791" class="footnote">113</a>]</sup>
-</p><p>
-The problem was that neither Alben nor Slade had any idea what clearing
-those rights would mean. Every actor in each of the films could have a claim
-to royalties for the reuse of that film. But CD- ROMs had not been specified
-in the contracts for the actors, so there was no clear way to know just what
-Starwave was to do.
-</p><p>
-I asked Alben how he dealt with the problem. With an obvious pride in his
-resourcefulness that obscured the obvious bizarreness of his tale, Alben
-recounted just what they did:
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-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 <em class="citetitle">Dirty
-Harry</em>. 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.
-</p><p>
-
-
-We decided that it would be fair if we offered them the dayplayer rate for
-the right to reuse that performance. We're talking about a clip of less than
-a minute, but to reuse that performance in the CD-ROM the rate at the time
-was about $600. So we had to identify the people—some of them were
-hard to identify because in Eastwood movies you can't tell who's the guy
-crashing through the glass—is it the actor or is it the stuntman? And
-then we just, we put together a team, my assistant and some others, and we
-just started calling people.
-</p></blockquote></div><a class="indexterm" name="id2758852"></a><p>
-Some actors were glad to help—Donald Sutherland, for example, followed
-up himself to be sure that the rights had been cleared. Others were
-dumbfounded at their good fortune. Alben would ask, "Hey, can I pay you $600
-or maybe if you were in two films, you know, $1,200?" And they would say,
-"Are you for real? Hey, I'd love to get $1,200." And some of course were a
-bit difficult (estranged ex-wives, in particular). But eventually, Alben and
-his team had cleared the rights to this retrospective CD-ROM on Clint
-Eastwood's career.
-</p><p>
-It was one <span class="emphasis"><em>year</em></span> later—"and even then we weren't
-sure whether we were totally in the clear."
-</p><a class="indexterm" name="id2758890"></a><p>
-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 project for
-the purpose of releasing a retrospective.
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-Everyone thought it would be too hard. Everyone just threw up their hands
-and said, "Oh, my gosh, a film, it's so many copyrights, there's the music,
-there's the screenplay, there's the director, there's the actors." But we
-just broke it down. We just put it into its constituent parts and said,
-"Okay, there's this many actors, this many directors, . . . this many
-musicians," and we just went at it very systematically and cleared the
-rights.
-</p></blockquote></div><p>
-
-
-
-And no doubt, the product itself was exceptionally good. Eastwood loved it,
-and it sold very well.
-</p><a class="indexterm" name="id2758924"></a><a class="indexterm" name="id2758930"></a><p>
-But I pressed Alben about how weird it seems that it would have to take a
-year's work simply to clear rights. No doubt Alben had done this
-efficiently, but as Peter Drucker has famously quipped, "There is nothing so
-useless as doing efficiently that which should not be done at
-all."<sup>[<a name="id2758943" href="#ftn.id2758943" class="footnote">114</a>]</sup> Did it make sense, I asked Alben,
-that this is the way a new work has to be made?
-</p><p>
-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 you would have to
-go clear rights for these kinds of clips?
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-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 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 compensated for that.
-</p></blockquote></div><p>
-Or at least, is this <span class="emphasis"><em>how</em></span> 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?
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-
-Absolutely. I think that if there were some fair-licensing
-mechanism—where you weren't subject to hold-ups and you weren't
-subject to estranged former spouses—you'd see a lot more of this work,
-because it wouldn't be so daunting to try to put together a retrospective of
-someone's career and meaningfully illustrate it with lots of media from that
-person's career. You'd build in a cost as the producer of one of these
-things. You'd build in a cost of paying X dollars to the talent that
-performed. But it would be a known cost. That's the thing that trips
-everybody up and makes this kind of product hard to get off the ground. If
-you knew I have a hundred minutes of film in this product and it's going to
-cost me X, then you build your budget around it, and you can get investments
-and everything else that you need to produce it. But if you say, "Oh, I want
-a hundred minutes of something and I have no idea what it's going to cost
-me, and a certain number of people are going to hold me up for money," then
-it becomes difficult to put one of these things together.
-</p></blockquote></div><a class="indexterm" name="id2759032"></a><p>
-Alben worked for a big company. His company was backed by some of the
-richest investors in the world. He therefore had authority and access that
-the average Web designer would not have. So if it took him a year, how long
-would it take someone else? And how much creativity is never made just
-because the costs of clearing the rights are so high? These costs are the
-burdens of a kind of regulation. Put on a Republican hat for a moment, and
-get angry for a bit. The government defines the scope of these rights, and
-the scope defined determines how much it's going to cost to negotiate
-them. (Remember the idea that land runs to the heavens, and imagine the
-pilot purchasing flythrough rights as he negotiates to fly from Los Angeles
-to San Francisco.) These rights might well have once made sense; but as
-circumstances change, they make no sense at all. Or at least, a
-well-trained, regulationminimizing Republican should look at the rights and
-ask, "Does this still make sense?"
-</p><p>
-
-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.
-The judges were gathered to discuss the emerging topic of cyber-law. I was
-asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an
-L.A. firm, introduced the panel with a video that he and a friend, Robert
-Fairbank, had produced.
-</p><p>
-Videoen var en glimrende sammenstilling av filmer fra hver periode i det
-tjuende århundret, rammet inn rundt idéen om en episode i TV-serien
-<em class="citetitle">60 Minutes</em>. Utførelsen var perfekt, ned til seksti
-minutter stoppeklokken. Dommerne elsket enhver minutt av den.
-</p><a class="indexterm" name="id2759085"></a><p>
-Da lysene kom på, kikket jeg over til min medpaneldeltager, David Nimmer,
-kanskje den ledende opphavsrettakademiker og utøver i nasjonen. Han hadde en
-forbauset uttrykk i ansiktet sitt, mens han tittet ut over rommet med over
-250 godt underholdte dommere. Med en en illevarslende tone, begynte han sin
-tale med et spørsmål: "Vet dere hvor mange føderale lover som nettopp brutt
-i dette rommet?"
-</p><a class="indexterm" name="id2759105"></a><p>
-For of course, the two brilliantly talented creators who made this film
-hadn't done what Alben did. They hadn't spent a year clearing the rights to
-these clips; technically, what they had done violated the law. Of course,
-it wasn't as if they or anyone were going to be prosecuted for this
-violation (the presence of 250 judges and a gaggle of federal marshals
-notwithstanding). But Nimmer was making an important point: A year before
-anyone would have heard of the word Napster, and two years before another
-member of our panel, David Boies, would defend Napster before the Ninth
-Circuit Court of Appeals, Nimmer was trying to get the judges to see that
-the law would not be friendly to the capacities that this technology would
-enable. Technology means you can now do amazing things easily; but you
-couldn't easily do them legally.
-</p><p>
-We live in a "cut and paste" culture enabled by technology. Anyone building
-a presentation knows the extraordinary freedom that the cut and paste
-architecture of the Internet created—in a second you can find just
-about any image you want; in another second, you can have it planted in your
-presentation.
-</p><p>
-But presentations are just a tiny beginning. Using the Internet and its
-archives, musicians are able to string together mixes of sound never before
-imagined; filmmakers are able to build movies out of clips on computers
-around the world. An extraordinary site in Sweden takes images of
-politicians and blends them with music to create biting political
-commentary. A site called Camp Chaos has produced some of the most biting
-criticism of the record industry that there is through the mixing of Flash!
-and music. <a class="indexterm" name="id2759146"></a>
-</p><p>
-All of these creations are technically illegal. Even if the creators wanted
-to be "legal," the cost of complying with the law is impossibly
-high. Therefore, for the law-abiding sorts, a wealth of creativity is never
-made. And for that part that is made, if it doesn't follow the clearance
-rules, it doesn't get released.
-</p><p>
-To some, these stories suggest a solution: Let's alter the mix of rights so
-that people are free to build upon our culture. Free to add or mix as they
-see fit. We could even make this change without necessarily requiring that
-the "free" use be free as in "free beer." Instead, the system could simply
-make it easy for follow-on creators to compensate artists without requiring
-an army of lawyers to come along: a rule, for example, that says "the
-royalty owed the copyright owner of an unregistered work for the derivative
-reuse of his work will be a flat 1 percent of net revenues, to be held in
-escrow for the copyright owner." Under this rule, the copyright owner could
-benefit from some royalty, but he would not have the benefit of a full
-property right (meaning the right to name his own price) unless he registers
-the work.
-</p><p>
-Who could possibly object to this? And what reason would there be for
-objecting? We're talking about work that is not now being made; which if
-made, under this plan, would produce new income for artists. What reason
-would anyone have to oppose it?
-</p><p>
-
-In February 2003, DreamWorks studios announced an agreement with Mike Myers,
-the comic genius of <em class="citetitle">Saturday Night Live</em> and Austin
-Powers. According to the announcement, Myers and Dream-Works would work
-together to form a "unique filmmaking pact." Under the agreement, DreamWorks
-"will acquire the rights to existing motion picture hits and classics, write
-new storylines and—with the use of stateof-the-art digital
-technology—insert Myers and other actors into the film, thereby
-creating an entirely new piece of entertainment."
-</p><p>
-The announcement called this "film sampling." As Myers explained, "Film
-Sampling is an exciting way to put an original spin on existing films and
-allow audiences to see old movies in a new light. Rap artists have been
-doing this for years with music and now we are able to take that same
-concept and apply it to film." Steven Spielberg is quoted as saying, "If
-anyone can create a way to bring old films to new audiences, it is Mike."
-</p><p>
-Spielberg is right. Film sampling by Myers will be brilliant. But if you
-don't think about it, you might miss the truly astonishing point about this
-announcement. As the vast majority of our film heritage remains under
-copyright, the real meaning of the DreamWorks announcement is just this: It
-is Mike Myers and only Mike Myers who is free to sample. Any general freedom
-to build upon the film archive of our culture, a freedom in other contexts
-presumed for us all, is now a privilege reserved for the funny and
-famous—and presumably rich.
-</p><p>
-This privilege becomes reserved for two sorts of reasons. The first
-continues the story of the last chapter: the vagueness of "fair use." Much
-of "sampling" should be considered "fair use." But few would rely upon so
-weak a doctrine to create. That leads to the second reason that the
-privilege is reserved for the few: The costs of negotiating the legal rights
-for the creative reuse of content are astronomically high. These costs
-mirror the costs with fair use: You either pay a lawyer to defend your fair
-use rights or pay a lawyer to track down permissions so you don't have to
-rely upon fair use rights. Either way, the creative process is a process of
-paying lawyers—again a privilege, or perhaps a curse, reserved for the
-few.
-</p></div><div class="sect1" title="Kapittel ni: Samlere"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="collectors"></a>Kapittel ni: Samlere</h2></div></div></div><p>
-In April 1996, millions of "bots"—computer codes designed to "spider,"
-or automatically search the Internet and copy content—began running
-across the Net. Page by page, these bots copied Internet-based information
-onto a small set of computers located in a basement in San Francisco's
-Presidio. Once the bots finished the whole of the Internet, they started
-again. Over and over again, once every two months, these bits of code took
-copies of the Internet and stored them.
-</p><p>
-By October 2001, the bots had collected more than five years of copies. And
-at a small announcement in Berkeley, California, the archive that these
-copies created, the Internet Archive, was opened to the world. Using a
-technology called "the Way Back Machine," you could enter a Web page, and
-see all of its copies going back to 1996, as well as when those pages
-changed.
-</p><p>
-This is the thing about the Internet that Orwell would have appreciated. In
-the dystopia described in <em class="citetitle">1984</em>, 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.
-</p><p>
-
-
-Thousands of workers constantly reedited the past, meaning there was no way
-ever to know whether the story you were reading today was the story that was
-printed on the date published on the paper.
-</p><p>
-It's the same with the Internet. If you go to a Web page today, there's no
-way for you to know whether the content you are reading is the same as the
-content you read before. The page may seem the same, but the content could
-easily be different. The Internet is Orwell's library—constantly
-updated, without any reliable memory.
-</p><p>
-Until the Way Back Machine, at least. With the Way Back Machine, and the
-Internet Archive underlying it, you can see what the Internet was. You have
-the power to see what you remember. More importantly, perhaps, you also have
-the power to find what you don't remember and what others might prefer you
-forget.<sup>[<a name="id2759318" href="#ftn.id2759318" class="footnote">115</a>]</sup>
-</p><p>
-We take it for granted that we can go back to see what we remember
-reading. Think about newspapers. If you wanted to study the reaction of your
-hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's
-water cannon in 1963, you could go to your public library and look at the
-newspapers. Those papers probably exist on microfiche. If you're lucky, they
-exist in paper, too. Either way, you are free, using a library, to go back
-and remember—not just what it is convenient to remember, but remember
-something close to the truth.
-</p><p>
-It is said that those who fail to remember history are doomed to repeat
-it. That's not quite correct. We <span class="emphasis"><em>all</em></span> 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.
-</p><p>
-
-The Internet was an exception to this presumption. Until the Internet
-Archive, there was no way to go back. The Internet was the quintessentially
-transitory medium. And yet, as it becomes more important in forming and
-reforming society, it becomes more and more important to maintain in some
-historical form. It's just bizarre to think that we have scads of archives
-of newspapers from tiny towns around the world, yet there is but one copy of
-the Internet—the one kept by the Internet Archive.
-</p><p>
-Brewster Kahle is the founder of the Internet Archive. He was a very
-successful Internet entrepreneur after he was a successful computer
-researcher. In the 1990s, Kahle decided he had had enough business
-success. It was time to become a different kind of success. So he launched
-a series of projects designed to archive human knowledge. The Internet
-Archive was just the first of the projects of this Andrew Carnegie of the
-Internet. By December of 2002, the archive had over 10 billion pages, and it
-was growing at about a billion pages a month.
-</p><p>
-The Way Back Machine is the largest archive of human knowledge in human
-history. At the end of 2002, it held "two hundred and thirty terabytes of
-material"—and was "ten times larger than the Library of Congress." And
-this was just the first of the archives that Kahle set out to build. In
-addition to the Internet Archive, Kahle has been constructing the Television
-Archive. Television, it turns out, is even more ephemeral than the
-Internet. While much of twentieth-century culture was constructed through
-television, only a tiny proportion of that culture is available for anyone
-to see today. Three hours of news are recorded each evening by Vanderbilt
-University—thanks to a specific exemption in the copyright law. That
-content is indexed, and is available to scholars for a very low fee. "But
-other than that, [television] is almost unavailable," Kahle told me. "If you
-were Barbara Walters you could get access to [the archives], but if you are
-just a graduate student?" As Kahle put it,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-
-Do you remember when Dan Quayle was interacting with Murphy Brown? Remember
-that back and forth surreal experience of a politician interacting with a
-fictional television character? If you were a graduate student wanting to
-study that, and you wanted to get those original back and forth exchanges
-between the two, the <em class="citetitle">60 Minutes</em> episode that came out
-after it . . . it would be almost impossible. . . . Those materials are
-almost unfindable. . . .
-</p></blockquote></div><p>
-Why is that? Why is it that the part of our culture that is recorded in
-newspapers remains perpetually accessible, while the part that is recorded
-on videotape is not? How is it that we've created a world where researchers
-trying to understand the effect of media on nineteenthcentury America will
-have an easier time than researchers trying to understand the effect of
-media on twentieth-century America?
-</p><p>
-In part, this is because of the law. Early in American copyright law,
-copyright owners were required to deposit copies of their work in
-libraries. These copies were intended both to facilitate the spread of
-knowledge and to assure that a copy of the work would be around once the
-copyright expired, so that others might access and copy the work.
-</p><p>
-These rules applied to film as well. But in 1915, the Library of Congress
-made an exception for film. Film could be copyrighted so long as such
-deposits were made. But the filmmaker was then allowed to borrow back the
-deposits—for an unlimited time at no cost. In 1915 alone, there were
-more than 5,475 films deposited and "borrowed back." Thus, when the
-copyrights to films expire, there is no copy held by any library. The copy
-exists—if it exists at all—in the library archive of the film
-company.<sup>[<a name="id2759382" href="#ftn.id2759382" class="footnote">116</a>]</sup>
-</p><p>
-The same is generally true about television. Television broadcasts were
-originally not copyrighted—there was no way to capture the broadcasts,
-so there was no fear of "theft." But as technology enabled capturing,
-broadcasters relied increasingly upon the law. The law required they make a
-copy of each broadcast for the work to be "copyrighted." But those copies
-were simply kept by the broadcasters. No library had any right to them; the
-government didn't demand them. The content of this part of American culture
-is practically invisible to anyone who would look.
-</p><p>
-
-Kahle was eager to correct this. Before September 11, 2001, he and his
-allies had started capturing television. They selected twenty stations from
-around the world and hit the Record button. After September 11, Kahle,
-working with dozens of others, selected twenty stations from around the
-world and, beginning October 11, 2001, made their coverage during the week
-of September 11 available free on-line. Anyone could see how news reports
-from around the world covered the events of that day.
-</p><p>
-Kahle had the same idea with film. Working with Rick Prelinger, whose
-archive of film includes close to 45,000 "ephemeral films" (meaning films
-other than Hollywood movies, films that were never copyrighted), Kahle
-established the Movie Archive. Prelinger let Kahle digitize 1,300 films in
-this archive and post those films on the Internet to be downloaded for
-free. Prelinger's is a for-profit company. It sells copies of these films as
-stock footage. What he has discovered is that after he made a significant
-chunk available for free, his stock footage sales went up
-dramatically. People could easily find the material they wanted to use. Some
-downloaded that material and made films on their own. Others purchased
-copies to enable other films to be made. Either way, the archive enabled
-access to this important part of our culture. Want to see a copy of the
-"Duck and Cover" film that instructed children how to save themselves in the
-middle of nuclear attack? Go to archive.org, and you can download the film
-in a few minutes—for free. <a class="indexterm" name="id2759489"></a>
-</p><p>
-Here again, Kahle is providing access to a part of our culture that we
-otherwise could not get easily, if at all. It is yet another part of what
-defines the twentieth century that we have lost to history. The law doesn't
-require these copies to be kept by anyone, or to be deposited in an archive
-by anyone. Therefore, there is no simple way to find them.
-</p><p>
-The key here is access, not price. Kahle wants to enable free access to this
-content, but he also wants to enable others to sell access to it. His aim is
-to ensure competition in access to this important part of our culture. Not
-during the commercial life of a bit of creative property, but during a
-second life that all creative property has—a noncommercial life.
-</p><p>
-
-For here is an idea that we should more clearly recognize. Every bit of
-creative property goes through different "lives." In its first life, if the
-creator is lucky, the content is sold. In such cases the commercial market
-is successful for the creator. The vast majority of creative property
-doesn't enjoy such success, but some clearly does. For that content,
-commercial life is extremely important. Without this commercial market,
-there would be, many argue, much less creativity.
-</p><p>
-After the commercial life of creative property has ended, our tradition has
-always supported a second life as well. A newspaper delivers the news every
-day to the doorsteps of America. The very next day, it is used to wrap fish
-or to fill boxes with fragile gifts or to build an archive of knowledge
-about our history. In this second life, the content can continue to inform
-even if that information is no longer sold.
-</p><p>
-The same has always been true about books. A book goes out of print very
-quickly (the average today is after about a year<sup>[<a name="id2759588" href="#ftn.id2759588" class="footnote">117</a>]</sup>). After it is out of print, it can be sold in used book stores
-without the copyright owner getting anything and stored in libraries, where
-many get to read the book, also for free. Used book stores and libraries are
-thus the second life of a book. That second life is extremely important to
-the spread and stability of culture.
-</p><p>
-Yet increasingly, any assumption about a stable second life for creative
-property does not hold true with the most important components of popular
-culture in the twentieth and twenty-first centuries. For
-these—television, movies, music, radio, the Internet—there is no
-guarantee of a second life. For these sorts of culture, it is as if we've
-replaced libraries with Barnes & Noble superstores. With this culture,
-what's accessible is nothing but what a certain limited market demands.
-Beyond that, culture disappears.
-</p><p>
-
-For most of the twentieth century, it was economics that made this so. It
-would have been insanely expensive to collect and make accessible all
-television and film and music: The cost of analog copies is extraordinarily
-high. So even though the law in principle would have restricted the ability
-of a Brewster Kahle to copy culture generally, the real restriction was
-economics. The market made it impossibly difficult to do anything about this
-ephemeral culture; the law had little practical effect.
-</p><p>
-Perhaps the single most important feature of the digital revolution is that
-for the first time since the Library of Alexandria, it is feasible to
-imagine constructing archives that hold all culture produced or distributed
-publicly. Technology makes it possible to imagine an archive of all books
-published, and increasingly makes it possible to imagine an archive of all
-moving images and sound.
-</p><p>
-The scale of this potential archive is something we've never imagined
-before. The Brewster Kahles of our history have dreamed about it; but we are
-for the first time at a point where that dream is possible. As Kahle
-describes,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-It looks like there's about two to three million recordings of music.
-Ever. There are about a hundred thousand theatrical releases of movies,
-. . . and about one to two million movies [distributed] during the twentieth
-century. There are about twenty-six million different titles of books. All
-of these would fit on computers that would fit in this room and be able to
-be afforded by a small company. So we're at a turning point in our
-history. Universal access is the goal. And the opportunity of leading a
-different life, based on this, is . . . thrilling. It could be one of the
-things humankind would be most proud of. Up there with the Library of
-Alexandria, putting a man on the moon, and the invention of the printing
-press.
-</p></blockquote></div><p>
-
-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. <span class="emphasis"><em>When</em></span> 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; 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
-<span class="emphasis"><em>for</em></span> our past. The technology of digital arts could make
-the dream of the Library of Alexandria real again.
-</p><p>
-Technologists have thus removed the economic costs of building such an
-archive. But lawyers' costs remain. For as much as we might like to call
-these "archives," as warm as the idea of a "library" might seem, the
-"content" that is collected in these digital spaces is also someone's
-"property." And the law of property restricts the freedoms that Kahle and
-others would exercise.
-</p></div><div class="sect1" title='Kapittel ti: "Eiendom"'><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="property-i"></a>Kapittel ti: "Eiendom"</h2></div></div></div><p>
-Jack Valenti has been the president of the Motion Picture Association of
-America since 1966. He first came to Washington, D.C., with Lyndon Johnson's
-administration—literally. The famous picture of Johnson's swearing-in
-on Air Force One after the assassination of President Kennedy has Valenti in
-the background. In his almost forty years of running the MPAA, Valenti has
-established himself as perhaps the most prominent and effective lobbyist in
-Washington. <a class="indexterm" name="id2759710"></a>
-</p><p>
-The MPAA is the American branch of the international Motion Picture
-Association. It was formed in 1922 as a trade association whose goal was to
-defend American movies against increasing domestic criticism. The
-organization now represents not only filmmakers but producers and
-distributors of entertainment for television, video, and cable. Its board is
-made up of the chairmen and presidents of the seven major producers and
-distributors of motion picture and television programs in the United States:
-Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth
-Century Fox, Universal Studios, and Warner Brothers. <a class="indexterm" name="id2759768"></a> <a class="indexterm" name="id2759773"></a>
-<a class="indexterm" name="id2759779"></a> <a class="indexterm" name="id2759785"></a> <a class="indexterm" name="id2759792"></a> <a class="indexterm" name="id2759798"></a> <a class="indexterm" name="id2759804"></a>
-</p><p>
-
-
-Valenti is only the third president of the MPAA. No president before him has
-had as much influence over that organization, or over Washington. As a
-Texan, Valenti has mastered the single most important political skill of a
-Southerner—the ability to appear simple and slow while hiding a
-lightning-fast intellect. To this day, Valenti plays the simple, humble
-man. But this Harvard MBA, and author of four books, who finished high
-school at the age of fifteen and flew more than fifty combat missions in
-World War II, is no Mr. Smith. When Valenti went to Washington, he mastered
-the city in a quintessentially Washingtonian way.
-</p><p>
-In defending artistic liberty and the freedom of speech that our culture
-depends upon, the MPAA has done important good. In crafting the MPAA rating
-system, it has probably avoided a great deal of speech-regulating harm. But
-there is an aspect to the organization's mission that is both the most
-radical and the most important. This is the organization's effort,
-epitomized in Valenti's every act, to redefine the meaning of "creative
-property."
-</p><p>
-In 1982, Valenti's testimony to Congress captured the strategy perfectly:
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-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: <span class="emphasis"><em>Creative property owners must be
-accorded the same rights and protection resident in all other property
-owners in the nation</em></span>. 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.<sup>[<a name="id2759871" href="#ftn.id2759871" class="footnote">118</a>]</sup>
-</p></blockquote></div><p>
-
-The strategy of this rhetoric, like the strategy of most of Valenti's
-rhetoric, is brilliant and simple and brilliant because simple. The "central
-theme" to which "reasonable men and women" will return is this: "Creative
-property owners must be accorded the same rights and protections resident in
-all other property owners in the nation." There are no second-class
-citizens, Valenti might have continued. There should be no second-class
-property owners.
-</p><p>
-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 <span class="emphasis"><em>anyone</em></span> 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 <span class="emphasis"><em>no</em></span>
-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.
-</p><p>
-While "creative property" is certainly "property" in a nerdy and precise
-sense that lawyers are trained to understand,<sup>[<a name="id2759923" href="#ftn.id2759923" class="footnote">119</a>]</sup> it has never been the case, nor should it be, that "creative
-property owners" have been "accorded the same rights and protection resident
-in all other property owners." Indeed, if creative property owners were
-given the same rights as all other property owners, that would effect a
-radical, and radically undesirable, change in our tradition.
-</p><p>
-Valenti knows this. But he speaks for an industry that cares squat for our
-tradition and the values it represents. He speaks for an industry that is
-instead fighting to restore the tradition that the British overturned in
-1710. In the world that Valenti's changes would create, a powerful few would
-exercise powerful control over how our creative culture would develop.
-</p><p>
-
-I have two purposes in this chapter. The first is to convince you that,
-historically, Valenti's claim is absolutely wrong. The second is to convince
-you that it would be terribly wrong for us to reject our history. We have
-always treated rights in creative property differently from the rights
-resident in all other property owners. They have never been the same. And
-they should never be the same, because, however counterintuitive this may
-seem, to make them the same would be to fundamentally weaken the opportunity
-for new creators to create. Creativity depends upon the owners of
-creativity having less than perfect control.
-</p><p>
-Organizations such as the MPAA, whose board includes the most powerful of
-the old guard, have little interest, their rhetoric notwithstanding, in
-assuring that the new can displace them. No organization does. No person
-does. (Ask me about tenure, for example.) But what's good for the MPAA is
-not necessarily good for America. A society that defends the ideals of free
-culture must preserve precisely the opportunity for new creativity to
-threaten the old. To get just a hint that there is something fundamentally
-wrong in Valenti's argument, we need look no further than the United States
-Constitution itself.
-</p><p>
-The framers of our Constitution loved "property." Indeed, so strongly did
-they love property that they built into the Constitution an important
-requirement. If the government takes your property—if it condemns your
-house, or acquires a slice of land from your farm—it is required,
-under the Fifth Amendment's "Takings Clause," to pay you "just compensation"
-for that taking. The Constitution thus guarantees that property is, in a
-certain sense, sacred. It cannot <span class="emphasis"><em>ever</em></span> be taken from the
-property owner unless the government pays for the privilege.
-</p><p>
-
-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 <span class="emphasis"><em>requires</em></span>
-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 requires that you lose
-your "creative property" right without any compensation at all.
-</p><p>
-The Constitution thus on its face states that these two forms of property
-are not to be accorded the same rights. They are plainly to be treated
-differently. Valenti is therefore not just asking for a change in our
-tradition when he argues that creative-property owners should be accorded
-the same rights as every other property-right owner. He is effectively
-arguing for a change in our Constitution itself.
-</p><p>
-Arguing for a change in our Constitution is not necessarily wrong. There
-was much in our original Constitution that was plainly wrong. The
-Constitution of 1789 entrenched slavery; it left senators to be appointed
-rather than elected; it made it possible for the electoral college to
-produce a tie between the president and his own vice president (as it did in
-1800). The framers were no doubt extraordinary, but I would be the first to
-admit that they made big mistakes. We have since rejected some of those
-mistakes; no doubt there could be others that we should reject as well. So
-my argument is not simply that because Jefferson did it, we should, too.
-</p><p>
-Instead, my argument is that because Jefferson did it, we should at least
-try to understand <span class="emphasis"><em>why</em></span>. 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?
-</p><p>
-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 <span class="emphasis"><em>whether</em></span> creative property should be protected,
-but how. Not <span class="emphasis"><em>whether</em></span> we will enforce the rights the law
-gives to creative-property owners, but what the particular mix of rights
-ought to be. Not <span class="emphasis"><em>whether</em></span> artists should be paid, but
-whether institutions designed to assure that artists get paid need also
-control how culture develops.
-</p><p>
-
-
-
-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 <em class="citetitle">Code and Other Laws of
-Cyberspace</em>, 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:
-</p><div class="figure"><a name="fig-1331"></a><p class="title"><b>Figur 3.1. How four different modalities of regulation interact to support or weaken
-the right or regulation.</b></p><div class="figure-contents"><div><img src="images/1331.png" alt="How four different modalities of regulation interact to support or weaken the right or regulation."></div></div></div><br class="figure-break"><p>
-At the center of this picture is a regulated dot: the individual or group
-that is the target of regulation, or the holder of a right. (In each case
-throughout, we can describe this either as regulation or as a right. For
-simplicity's sake, I will speak only of regulations.) The ovals represent
-four ways in which the individual or group might be regulated— either
-constrained or, alternatively, enabled. Law is the most obvious constraint
-(to lawyers, at least). It constrains by threatening punishments after the
-fact if the rules set in advance are violated. So if, for example, you
-willfully infringe Madonna's copyright by copying a song from her latest CD
-and posting it on the Web, you can be punished with a $150,000 fine. The
-fine is an ex post punishment for violating an ex ante rule. It is imposed
-by the state. <a class="indexterm" name="id2759820"></a>
-</p><p>
-Norms are a different kind of constraint. They, too, punish an individual
-for violating a rule. But the punishment of a norm is imposed by a
-community, not (or not only) by the state. There may be no law against
-spitting, but that doesn't mean you won't be punished if you spit on the
-ground while standing in line at a movie. The punishment might not be harsh,
-though depending upon the community, it could easily be more harsh than many
-of the punishments imposed by the state. The mark of the difference is not
-the severity of the rule, but the source of the enforcement.
-</p><p>
-The market is a third type of constraint. Its constraint is effected through
-conditions: You can do X if you pay Y; you'll be paid M if you do N. These
-constraints are obviously not independent of law or norms—it is
-property law that defines what must be bought if it is to be taken legally;
-it is norms that say what is appropriately sold. But given a set of norms,
-and a background of property and contract law, the market imposes a
-simultaneous constraint upon how an individual or group might behave.
-</p><p>
-Finally, and for the moment, perhaps, most mysteriously,
-"architecture"—the physical world as one finds it—is a
-constraint on behavior. A fallen bridge might constrain your ability to get
-across a river. Railroad tracks might constrain the ability of a community
-to integrate its social life. As with the market, architecture does not
-effect its constraint through ex post punishments. Instead, also as with the
-market, architecture effects its constraint through simultaneous
-conditions. These conditions are imposed not by courts enforcing contracts,
-or by police punishing theft, but by nature, by "architecture." If a
-500-pound boulder blocks your way, it is the law of gravity that enforces
-this constraint. If a $500 airplane ticket stands between you and a flight
-to New York, it is the market that enforces this constraint.
-</p><p>
-
-
-
-So the first point about these four modalities of regulation is obvious:
-They interact. Restrictions imposed by one might be reinforced by
-another. Or restrictions imposed by one might be undermined by another.
-</p><p>
-The second point follows directly: If we want to understand the effective
-freedom that anyone has at a given moment to do any particular thing, we
-have to consider how these four modalities interact. Whether or not there
-are other constraints (there may well be; my claim is not about
-comprehensiveness), these four are among the most significant, and any
-regulator (whether controlling or freeing) must consider how these four in
-particular interact.
-</p><a class="indexterm" name="idxdrivespeed"></a><p>
-So, for example, consider the "freedom" to drive a car at a high speed. That
-freedom is in part restricted by laws: speed limits that say how fast you
-can drive in particular places at particular times. It is in part restricted
-by architecture: speed bumps, for example, slow most rational drivers;
-governors in buses, as another example, set the maximum rate at which the
-driver can drive. The freedom is in part restricted by the market: Fuel
-efficiency drops as speed increases, thus the price of gasoline indirectly
-constrains speed. And finally, the norms of a community may or may not
-constrain the freedom to speed. Drive at 50 mph by a school in your own
-neighborhood and you're likely to be punished by the neighbors. The same
-norm wouldn't be as effective in a different town, or at night.
-</p><p>
-
-The final point about this simple model should also be fairly clear: While
-these four modalities are analytically independent, law has a special role
-in affecting the three.<sup>[<a name="id2750885" href="#ftn.id2750885" class="footnote">120</a>]</sup> The law, in
-other words, sometimes operates to increase or decrease the constraint of a
-particular modality. Thus, the law might be used to increase taxes on
-gasoline, so as to increase the incentives to drive more slowly. The law
-might be used to mandate more speed bumps, so as to increase the difficulty
-of driving rapidly. The law might be used to fund ads that stigmatize
-reckless driving. Or the law might be used to require that other laws be
-more strict—a federal requirement that states decrease the speed
-limit, for example—so as to decrease the attractiveness of fast
-driving.
-</p><a class="indexterm" name="id2750907"></a><div class="figure"><a name="fig-1361"></a><p class="title"><b>Figur 3.2. Law has a special role in affecting the three.</b></p><div class="figure-contents"><div><img src="images/1361.png" alt="Law has a special role in affecting the three."></div></div></div><br class="figure-break"><p>
-These constraints can thus change, and they can be changed. To understand
-the effective protection of liberty or protection of property at any
-particular moment, we must track these changes over time. A restriction
-imposed by one modality might be erased by another. A freedom enabled by one
-modality might be displaced by another.<sup>[<a name="id2750952" href="#ftn.id2750952" class="footnote">121</a>]</sup>
-</p><div class="sect2" title="Hvorfor Hollywood har rett"><div class="titlepage"><div><div><h3 class="title"><a name="hollywood"></a>Hvorfor Hollywood har rett</h3></div></div></div><p>
-The most obvious point that this model reveals is just why, or just how,
-Hollywood is right. The copyright warriors have rallied Congress and the
-courts to defend copyright. This model helps us see why that rallying makes
-sense.
-</p><p>
-Let's say this is the picture of copyright's regulation before the Internet:
-</p><div class="figure"><a name="fig-1371"></a><p class="title"><b>Figur 3.3. Copyright's regulation before the Internet.</b></p><div class="figure-contents"><div><img src="images/1331.png" alt="Copyright's regulation before the Internet."></div></div></div><br class="figure-break"><p>
-
-
-There is balance between law, norms, market, and architecture. The law
-limits the ability to copy and share content, by imposing penalties on those
-who copy and share content. Those penalties are reinforced by technologies
-that make it hard to copy and share content (architecture) and expensive to
-copy and share content (market). Finally, those penalties are mitigated by
-norms we all recognize—kids, for example, taping other kids'
-records. These uses of copyrighted material may well be infringement, but
-the norms of our society (before the Internet, at least) had no problem with
-this form of infringement.
-</p><p>
-Enter the Internet, or, more precisely, technologies such as MP3s and p2p
-sharing. Now the constraint of architecture changes dramatically, as does
-the constraint of the market. And as both the market and architecture relax
-the regulation of copyright, norms pile on. The happy balance (for the
-warriors, at least) of life before the Internet becomes an effective state
-of anarchy after the Internet.
-</p><p>
-
-Thus the sense of, and justification for, the warriors' response.
-Technology has changed, the warriors say, and the effect of this change,
-when ramified through the market and norms, is that a balance of protection
-for the copyright owners' rights has been lost. This is Iraq after the fall
-of Saddam, but this time no government is justifying the looting that
-results.
-</p><div class="figure"><a name="fig-1381"></a><p class="title"><b>Figur 3.4. effective state of anarchy after the Internet.</b></p><div class="figure-contents"><div><img src="images/1381.png" alt="effective state of anarchy after the Internet."></div></div></div><br class="figure-break"><p>
-Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce Department
-(one heavily influenced by the copyright warriors) in 1995, this mix of
-regulatory modalities had already been identified and the strategy to
-respond already mapped. In response to the changes the Internet had
-effected, the White Paper argued (1) Congress should strengthen intellectual
-property law, (2) businesses should adopt innovative marketing techniques,
-(3) technologists should push to develop code to protect copyrighted
-material, and (4) educators should educate kids to better protect copyright.
-</p><p>
-
-This mixed strategy is just what copyright needed—if it was to
-preserve the particular balance that existed before the change induced by
-the Internet. And it's just what we should expect the content industry to
-push for. It is as American as apple pie to consider the happy life you have
-as an entitlement, and to look to the law to protect it if something comes
-along to change that happy life. Homeowners living in a flood plain have no
-hesitation appealing to the government to rebuild (and rebuild again) when a
-flood (architecture) wipes away their property (law). Farmers have no
-hesitation appealing to the government to bail them out when a virus
-(architecture) devastates their crop. Unions have no hesitation appealing to
-the government to bail them out when imports (market) wipe out the
-U.S. steel industry.
-</p><p>
-Thus, there's nothing wrong or surprising in the content industry's campaign
-to protect itself from the harmful consequences of a technological
-innovation. And I would be the last person to argue that the changing
-technology of the Internet has not had a profound effect on the content
-industry's way of doing business, or as John Seely Brown describes it, its
-"architecture of revenue."
-</p><p>
-But just because a particular interest asks for government support, it
-doesn't follow that support should be granted. And just because technology
-has weakened a particular way of doing business, it doesn't follow that the
-government should intervene to support that old way of doing
-business. Kodak, for example, has lost perhaps as much as 20 percent of
-their traditional film market to the emerging technologies of digital
-cameras.<sup>[<a name="id2760786" href="#ftn.id2760786" class="footnote">122</a>]</sup> 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 <span class="emphasis"><em>for the purpose of</em></span> 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?)
-</p><p>
-The obvious answer to these obviously rhetorical questions is no. In a free
-society, with a free market, supported by free enterprise and free trade,
-the government's role is not to support one way of doing business against
-others. Its role is not to pick winners and protect them against loss. If
-the government did this generally, then we would never have any progress. As
-Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software
-patents, "established companies have an interest in excluding future
-competitors."<sup>[<a name="id2760843" href="#ftn.id2760843" class="footnote">123</a>]</sup> And relative to a
-startup, established companies also have the means. (Think RCA and FM
-radio.) A world in which competitors with new ideas must fight not only the
-market but also the government is a world in which competitors with new
-ideas will not succeed. It is a world of stasis and increasingly
-concentrated stagnation. It is the Soviet Union under Brezhnev.
-<a class="indexterm" name="id2760863"></a>
-</p><p>
-Thus, while it is understandable for industries threatened with new
-technologies that change the way they do business to look to the government
-for protection, it is the special duty of policy makers to guarantee that
-that protection not become a deterrent to progress. It is the duty of policy
-makers, in other words, to assure that the changes they create, in response
-to the request of those hurt by changing technology, are changes that
-preserve the incentives and opportunities for innovation and change.
-</p><p>
-In the context of laws regulating speech—which include, obviously,
-copyright law—that duty is even stronger. When the industry
-complaining about changing technologies is asking Congress to respond in a
-way that burdens speech and creativity, policy makers should be especially
-wary of the request. It is always a bad deal for the government to get into
-the business of regulating speech markets. The risks and dangers of that
-game are precisely why our framers created the First Amendment to our
-Constitution: "Congress shall make no law . . . abridging the freedom of
-speech." So when Congress is being asked to pass laws that would "abridge"
-the freedom of speech, it should ask— carefully—whether such
-regulation is justified.
-</p><p>
-
-My argument just now, however, has nothing to do with whether the changes
-that are being pushed by the copyright warriors are "justified." My argument
-is about their effect. For before we get to the question of justification, a
-hard question that depends a great deal upon your values, we should first
-ask whether we understand the effect of the changes the content industry
-wants.
-</p><p>
-Her kommer metaforen som vil forklare argumentet.
-</p><a class="indexterm" name="idxddt"></a><p>
-In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul
-Hermann Müller won the Nobel Prize for his work demonstrating the
-insecticidal properties of DDT. By the 1950s, the insecticide was widely
-used around the world to kill disease-carrying pests. It was also used to
-increase farm production. <a class="indexterm" name="id2760940"></a>
-</p><p>
-No one doubts that killing disease-carrying pests or increasing crop
-production is a good thing. No one doubts that the work of Müller was
-important and valuable and probably saved lives, possibly millions.
-</p><a class="indexterm" name="id2760957"></a><p>
-But in 1962, Rachel Carson published <em class="citetitle">Silent Spring</em>,
-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. <a class="indexterm" name="id2760973"></a> <a class="indexterm" name="id2760980"></a>
-</p><p>
-No one set out to destroy the environment. Paul Müller certainly did not aim
-to harm any birds. But the effort to solve one set of problems produced
-another set which, in the view of some, was far worse than the problems that
-were originally attacked. Or more accurately, the problems DDT caused were
-worse than the problems it solved, at least when considering the other, more
-environmentally friendly ways to solve the problems that DDT was meant to
-solve.
-</p><p>
-
-It is to this image precisely that Duke University law professor James Boyle
-appeals when he argues that we need an "environmentalism" for
-culture.<sup>[<a name="id2761009" href="#ftn.id2761009" class="footnote">124</a>]</sup> His point, and the point I
-want to develop in the balance of this chapter, is not that the aims of
-copyright are flawed. Or that authors should not be paid for their work. Or
-that music should be given away "for free." The point is that some of the
-ways in which we might protect authors will have unintended consequences for
-the cultural environment, much like DDT had for the natural environment. And
-just as criticism of DDT is not an endorsement of malaria or an attack on
-farmers, so, too, is criticism of one particular set of regulations
-protecting copyright not an endorsement of anarchy or an attack on authors.
-It is an environment of creativity that we seek, and we should be aware of
-our actions' effects on the environment.
-</p><p>
-My argument, in the balance of this chapter, tries to map exactly this
-effect. No doubt the technology of the Internet has had a dramatic effect on
-the ability of copyright owners to protect their content. But there should
-also be little doubt that when you add together the changes in copyright law
-over time, plus the change in technology that the Internet is undergoing
-just now, the net effect of these changes will not be only that copyrighted
-work is effectively protected. Also, and generally missed, the net effect of
-this massive increase in protection will be devastating to the environment
-for creativity.
-</p><p>
-In a line: To kill a gnat, we are spraying DDT with consequences for free
-culture that will be far more devastating than that this gnat will be lost.
-</p><a class="indexterm" name="id2761053"></a></div><div class="sect2" title="Opphav"><div class="titlepage"><div><div><h3 class="title"><a name="beginnings"></a>Opphav</h3></div></div></div><p>
-America copied English copyright law. Actually, we copied and improved
-English copyright law. Our Constitution makes the purpose of "creative
-property" rights clear; its express limitations reinforce the English aim to
-avoid overly powerful publishers.
-</p><p>
-The power to establish "creative property" rights is granted to Congress in
-a way that, for our Constitution, at least, is very odd. Article I, section
-8, clause 8 of our Constitution states that:
-</p><p>
-
-Congress has the power to promote the Progress of Science and useful Arts,
-by securing for limited Times to Authors and Inventors the exclusive Right
-to their respective Writings and Discoveries. 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 <span class="emphasis"><em>to promote progress</em></span>. 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.
-</p><p>
-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.
-</p><p>
-The design of the Progress Clause reflects something about the
-Constitution's design in general. To avoid a problem, the framers built
-structure. To prevent the concentrated power of publishers, they built a
-structure that kept copyrights away from publishers and kept them short. To
-prevent the concentrated power of a church, they banned the federal
-government from establishing a church. To prevent concentrating power in the
-federal government, they built structures to reinforce the power of the
-states—including the Senate, whose members were at the time selected
-by the states, and an electoral college, also selected by the states, to
-select the president. In each case, a <span class="emphasis"><em>structure</em></span> built
-checks and balances into the constitutional frame, structured to prevent
-otherwise inevitable concentrations of power.
-</p><p>
-I doubt the framers would recognize the regulation we call "copyright"
-today. The scope of that regulation is far beyond anything they ever
-considered. To begin to understand what they did, we need to put our
-"copyright" in context: We need to see how it has changed in the 210 years
-since they first struck its design.
-</p><p>
-
-Some of these changes come from the law: some in light of changes in
-technology, and some in light of changes in technology given a particular
-concentration of market power. In terms of our model, we started here:
-</p><div class="figure"><a name="fig-1441"></a><p class="title"><b>Figur 3.5. Copyright's regulation before the Internet.</b></p><div class="figure-contents"><div><img src="images/1331.png" alt="Copyright's regulation before the Internet."></div></div></div><br class="figure-break"><p>
-Vi kommer til å ende opp her:
-</p><div class="figure"><a name="fig-1442"></a><p class="title"><b>Figur 3.6. "Opphavsrett" i dag.</b></p><div class="figure-contents"><div><img src="images/1442.png" alt='"Opphavsrett" i dag.'></div></div></div><br class="figure-break"><p>
-
-La meg forklare hvordan.
-
-</p></div><div class="sect2" title="Loven: Varighet"><div class="titlepage"><div><div><h3 class="title"><a name="lawduration"></a>Loven: Varighet</h3></div></div></div><p>
-When the first Congress enacted laws to protect creative property, it faced
-the same uncertainty about the status of creative property that the English
-had confronted in 1774. Many states had passed laws protecting creative
-property, and some believed that these laws simply supplemented common law
-rights that already protected creative authorship.<sup>[<a name="id2761213" href="#ftn.id2761213" class="footnote">125</a>]</sup> This meant that there was no guaranteed public
-domain in the United States in 1790. If copyrights were protected by the
-common law, then there was no simple way to know whether a work published in
-the United States was controlled or free. Just as in England, this lingering
-uncertainty would make it hard for publishers to rely upon a public domain
-to reprint and distribute works.
-</p><p>
-That uncertainty ended after Congress passed legislation granting
-copyrights. Because federal law overrides any contrary state law, federal
-protections for copyrighted works displaced any state law protections. Just
-as in England the Statute of Anne eventually meant that the copyrights for
-all English works expired, a federal statute meant that any state copyrights
-expired as well.
-</p><p>
-In 1790, Congress enacted the first copyright law. It created a federal
-copyright and secured that copyright for fourteen years. If the author was
-alive at the end of that fourteen years, then he could opt to renew the
-copyright for another fourteen years. If he did not renew the copyright, his
-work passed into the public domain.
-</p><p>
-Selv om det ble skapt mange verker i USA i de første 10 årene til
-republikken, så ble kun 5 prosent av verkene registrert under det føderale
-opphavsrettsregimet. Av alle verker skapt i USA både før 1790 og fra 1790
-fram til 1800, så ble 95 prosent øyeblikkelig allemannseie (public
-domain). Resten ble allemannseie etter maksimalt 20 år, og som oftest etter
-14 år.<sup>[<a name="id2761284" href="#ftn.id2761284" class="footnote">126</a>]</sup>
-</p><p>
-
-Dette fornyelsessystemet var en avgjørende del av det amerikanske systemet
-for opphavsrett. Det sikret at maksimal vernetid i opphavsretten bare ble
-gitt til verker der det var ønsket. Etter den første perioden på fjorten år,
-hvis forfatteren ikke så verdien av å fornye sin opphavsrett, var det heller
-ikke verdt det for samfunnet å håndheve opphavsretten.
-</p><p>
-Fourteen years may not seem long to us, but for the vast majority of
-copyright owners at that time, it was long enough: Only a small minority of
-them renewed their copyright after fourteen years; the balance allowed their
-work to pass into the public domain.<sup>[<a name="id2761351" href="#ftn.id2761351" class="footnote">127</a>]</sup>
-</p><p>
-Even today, this structure would make sense. Most creative work has an
-actual commercial life of just a couple of years. Most books fall out of
-print after one year.<sup>[<a name="id2761379" href="#ftn.id2761379" class="footnote">128</a>]</sup> When that
-happens, the used books are traded free of copyright regulation. Thus the
-books are no longer <span class="emphasis"><em>effectively</em></span> 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.
-</p><p>
-In the first hundred years of the Republic, the term of copyright was
-changed once. In 1831, the term was increased from a maximum of 28 years to
-a maximum of 42 by increasing the initial term of copyright from 14 years to
-28 years. In the next fifty years of the Republic, the term increased once
-again. In 1909, Congress extended the renewal term of 14 years to 28 years,
-setting a maximum term of 56 years.
-</p><p>
-Then, beginning in 1962, Congress started a practice that has defined
-copyright law since. Eleven times in the last forty years, Congress has
-extended the terms of existing copyrights; twice in those forty years,
-Congress extended the term of future copyrights. Initially, the extensions
-of existing copyrights were short, a mere one to two years. In 1976,
-Congress extended all existing copyrights by nineteen years. And in 1998,
-in the Sonny Bono Copyright Term Extension Act, Congress extended the term
-of existing and future copyrights by twenty years.
-</p><p>
-
-The effect of these extensions is simply to toll, or delay, the passing of
-works into the public domain. This latest extension means that the public
-domain will have been tolled for thirty-nine out of fifty-five years, or 70
-percent of the time since 1962. Thus, in the twenty years after the Sonny
-Bono Act, while one million patents will pass into the public domain, zero
-copyrights will pass into the public domain by virtue of the expiration of a
-copyright term.
-</p><p>
-The effect of these extensions has been exacerbated by another,
-little-noticed change in the copyright law. Remember I said that the framers
-established a two-part copyright regime, requiring a copyright owner to
-renew his copyright after an initial term. The requirement of renewal meant
-that works that no longer needed copyright protection would pass more
-quickly into the public domain. The works remaining under protection would
-be those that had some continuing commercial value.
-</p><p>
-The United States abandoned this sensible system in 1976. For all works
-created after 1978, there was only one copyright term—the maximum
-term. For "natural" authors, that term was life plus fifty years. For
-corporations, the term was seventy-five years. Then, in 1992, Congress
-abandoned the renewal requirement for all works created before 1978. All
-works still under copyright would be accorded the maximum term then
-available. After the Sonny Bono Act, that term was ninety-five years.
-</p><p>
-This change meant that American law no longer had an automatic way to assure
-that works that were no longer exploited passed into the public domain. And
-indeed, after these changes, it is unclear whether it is even possible to
-put works into the public domain. The public domain is orphaned by these
-changes in copyright law. Despite the requirement that terms be "limited,"
-we have no evidence that anything will limit them.
-</p><p>
-The effect of these changes on the average duration of copyright is
-dramatic. In 1973, more than 85 percent of copyright owners failed to renew
-their copyright. That meant that the average term of copyright in 1973 was
-just 32.2 years. Because of the elimination of the renewal requirement, the
-average term of copyright is now the maximum term. In thirty years, then,
-the average term has tripled, from 32.2 years to 95 years.<sup>[<a name="id2761475" href="#ftn.id2761475" class="footnote">129</a>]</sup>
-</p></div><div class="sect2" title="Loven: Virkeområde"><div class="titlepage"><div><div><h3 class="title"><a name="lawscope"></a>Loven: Virkeområde</h3></div></div></div><p>
-The "scope" of a copyright is the range of rights granted by the law. The
-scope of American copyright has changed dramatically. Those changes are not
-necessarily bad. But we should understand the extent of the changes if we're
-to keep this debate in context.
-</p><p>
-In 1790, that scope was very narrow. Copyright covered only "maps, charts,
-and books." That means it didn't cover, for example, music or
-architecture. More significantly, the right granted by a copyright gave the
-author the exclusive right to "publish" copyrighted works. That means
-someone else violated the copyright only if he republished the work without
-the copyright owner's permission. Finally, the right granted by a copyright
-was an exclusive right to that particular book. The right did not extend to
-what lawyers call "derivative works." It would not, therefore, interfere
-with the right of someone other than the author to translate a copyrighted
-book, or to adapt the story to a different form (such as a drama based on a
-published book).
-</p><p>
-This, too, has changed dramatically. While the contours of copyright today
-are extremely hard to describe simply, in general terms, the right covers
-practically any creative work that is reduced to a tangible form. It covers
-music as well as architecture, drama as well as computer programs. It gives
-the copyright owner of that creative work not only the exclusive right to
-"publish" the work, but also the exclusive right of control over any
-"copies" of that work. And most significant for our purposes here, the right
-gives the copyright owner control over not only his or her particular work,
-but also any "derivative work" that might grow out of the original work. In
-this way, the right covers more creative work, protects the creative work
-more broadly, and protects works that are based in a significant way on the
-initial creative work.
-</p><p>
-
-At the same time that the scope of copyright has expanded, procedural
-limitations on the right have been relaxed. I've already described the
-complete removal of the renewal requirement in 1992. In addition to the
-renewal requirement, for most of the history of American 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
-<span class="emphasis"><em>copyright</em></span>. 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.
-</p><p>
-The reason for the registration requirement was the sensible understanding
-that for most works, no copyright was required. Again, in the first ten
-years of the Republic, 95 percent of works eligible for copyright were never
-copyrighted. Thus, the rule reflected the norm: Most works apparently didn't
-need copyright, so registration narrowed the regulation of the law to the
-few that did. The same reasoning justified the requirement that a work be
-marked as copyrighted—that way it was easy to know whether a copyright
-was being claimed. The requirement that works be deposited was to assure
-that after the copyright expired, there would be a copy of the work
-somewhere so that it could be copied by others without locating the original
-author.
-</p><p>
-All of these "formalities" were abolished in the American system when we
-decided to follow European copyright law. There is no requirement that you
-register a work to get a copyright; the copyright now is automatic; the
-copyright exists whether or not you mark your work with a ©; and the
-copyright exists whether or not you actually make a copy available for
-others to copy.
-</p><p>
-Vurder et praktisk eksempel for å forstå omfanget av disse forskjellene.
-</p><p>
-If, in 1790, you wrote a book and you were one of the 5 percent who actually
-copyrighted that book, then the copyright law protected you against another
-publisher's taking your book and republishing it without your
-permission. The aim of the act was to regulate publishers so as to prevent
-that kind of unfair competition. In 1790, there were 174 publishers in the
-United States.<sup>[<a name="id2761611" href="#ftn.id2761611" class="footnote">130</a>]</sup> The Copyright Act was
-thus a tiny regulation of a tiny proportion of a tiny part of the creative
-market in the United States—publishers.
-</p><p>
-
-
-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.
-</p><p>
-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, <span class="emphasis"><em>every</em></span> 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.
-</p><p>
-That protection gives you the right (subject to a narrow range of fair use
-exceptions) to control how others copy the work, whether they copy it to
-republish it or to share an excerpt.
-</p><p>
-That much is the obvious part. Any system of copyright would control
-competing publishing. But there's a second part to the copyright of today
-that is not at all obvious. This is the protection of "derivative rights."
-If you write a book, no one can make a movie out of your book without
-permission. No one can translate it without permission. CliffsNotes can't
-make an abridgment unless permission is granted. All of these derivative
-uses of your original work are controlled by the copyright holder. The
-copyright, in other words, is now not just an exclusive right to your
-writings, but an exclusive right to your writings and a large proportion of
-the writings inspired by them.
-</p><p>
-It is this derivative right that would seem most bizarre to our framers,
-though it has become second nature to us. Initially, this expansion was
-created to deal with obvious evasions of a narrower copyright. If I write a
-book, can you change one word and then claim a copyright in a new and
-different book? Obviously that would make a joke of the copyright, so the
-law was properly expanded to include those slight modifications as well as
-the verbatim original work.
-</p><p>
-
-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 <span class="emphasis"><em>that</em></span> 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.<sup>[<a name="id2761692" href="#ftn.id2761692" class="footnote">131</a>]</sup>
-Whether or not you go that far, it seems plain that whatever wrong is
-involved is fundamentally different from the wrong of direct piracy.
-</p><p>
-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.<sup>[<a name="id2761739" href="#ftn.id2761739" class="footnote">132</a>]</sup> These two different uses of my
-creative work are treated the same.
-</p><p>
-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?
-</p><p>
-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.
-</p></div><div class="sect2" title="Lov og arkitektur: Rekkevidde"><div class="titlepage"><div><div><h3 class="title"><a name="lawreach"></a>Lov og arkitektur: Rekkevidde</h3></div></div></div><p>
-Whereas originally the law regulated only publishers, the change in
-copyright's scope means that the law today regulates publishers, users, and
-authors. It regulates them because all three are capable of making copies,
-and the core of the regulation of copyright law is copies.<sup>[<a name="id2761789" href="#ftn.id2761789" class="footnote">133</a>]</sup>
-</p><p>
-
-
-"Copies." That certainly sounds like the obvious thing for
-<span class="emphasis"><em>copy</em></span>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 <span class="emphasis"><em>obvious</em></span>
-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 <span class="emphasis"><em>not</em></span> be the trigger for
-copyright law. More precisely, they should not <span class="emphasis"><em>always</em></span>
-be the trigger for copyright law.
-</p><p>
-This is perhaps the central claim of this book, so let me take this very
-slowly so that the point is not easily missed. My claim is that the Internet
-should at least force us to rethink the conditions under which the law of
-copyright automatically applies,<sup>[<a name="id2761850" href="#ftn.id2761850" class="footnote">134</a>]</sup>
-because it is clear that the current reach of copyright was never
-contemplated, much less chosen, by the legislators who enacted copyright
-law.
-</p><p>
-We can see this point abstractly by beginning with this largely empty
-circle.
-</p><div class="figure"><a name="fig-1521"></a><p class="title"><b>Figur 3.7. Alle potensielle bruk av en bok.</b></p><div class="figure-contents"><div><img src="images/1521.png" alt="Alle potensielle bruk av en bok."></div></div></div><br class="figure-break"><p>
-
-
-Think about a book in real space, and imagine this circle to represent all
-its potential <span class="emphasis"><em>uses</em></span>. 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.
-</p><div class="figure"><a name="fig-1531"></a><p class="title"><b>Figur 3.8. Eksempler på uregulert bruk av en bok.</b></p><div class="figure-contents"><div><img src="images/1531.png" alt="Eksempler på uregulert bruk av en bok."></div></div></div><br class="figure-break"><p>
-Obviously, however, some uses of a copyrighted book are regulated by
-copyright law. Republishing the book, for example, makes a copy. It is
-therefore regulated by copyright law. Indeed, this particular use stands at
-the core of this circle of possible uses of a copyrighted work. It is the
-paradigmatic use properly regulated by copyright regulation (see first
-diagram on next page).
-</p><p>
-Finally, there is a tiny sliver of otherwise regulated copying uses that
-remain unregulated because the law considers these "fair uses."
-</p><div class="figure"><a name="fig-1541"></a><p class="title"><b>Figur 3.9. Republishing stands at the core of this circle of possible uses of a
-copyrighted work.</b></p><div class="figure-contents"><div><img src="images/1541.png" alt="Republishing stands at the core of this circle of possible uses of a copyrighted work."></div></div></div><br class="figure-break"><p>
-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.
-</p><div class="figure"><a name="fig-1542"></a><p class="title"><b>Figur 3.10. Unregulated copying considered "fair uses."</b></p><div class="figure-contents"><div><img src="images/1542.png" alt='Unregulated copying considered "fair uses."'></div></div></div><br class="figure-break"><p> </p><div class="figure"><a name="fig-1551"></a><p class="title"><b>Figur 3.11. Uses that before were presumptively unregulated are now presumptively
-regulated.</b></p><div class="figure-contents"><div><img src="images/1551.png" alt="Uses that before were presumptively unregulated are now presumptively regulated."></div></div></div><br class="figure-break"><p>
-
-
-In real space, then, the possible uses of a book are divided into three
-sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
-are nonetheless deemed "fair" regardless of the copyright owner's views.
-</p><p>
-Enter the Internet—a distributed, digital network where every use of a
-copyrighted work produces a copy.<sup>[<a name="id2761796" href="#ftn.id2761796" class="footnote">135</a>]</sup> 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.
-</p><p>
-
-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 <span class="emphasis"><em>copyright</em></span>-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
-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.
-</p><p>
-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 <span class="emphasis"><em>copyright law</em></span> 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.
-</p><p>
-There are some people who think this makes perfect sense. My aim just now is
-not to argue about whether it makes sense or not. My aim is only to make
-clear the change. Once you see this point, a few other points also become
-clear:
-</p><p>
-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.
-</p><p>
-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
-<span class="emphasis"><em>any</em></span> 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.
-</p><p>
-
-Third, this shift from category 1 to category 2 puts an extraordinary 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.
-</p><p>
-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 <span class="emphasis"><em>unregulated</em></span>. But
-when everything becomes presumptively regulated, then the protections of
-fair use are not enough.
-</p><p>
-The case of Video Pipeline is a good example. Video Pipeline was in the
-business of making "trailer" advertisements for movies available to video
-stores. The video stores displayed the trailers as a way to sell
-videos. Video Pipeline got the trailers from the film distributors, put the
-trailers on tape, and sold the tapes to the retail stores.
-</p><p>
-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.
-</p><p>
-
-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 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.
-</p><p>
-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.
-</p><p>
-Disney has the right to control its property, of course. But the video
-stores that were selling Disney's films also had some sort of right to be
-able to sell the films that they had bought from Disney. Disney's claim in
-court was that the stores were allowed to sell the films and they were
-permitted to list the titles of the films they were selling, but they were
-not allowed to show clips of the films as a way of selling them without
-Disney's permission.
-</p><p>
-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 that gives
-Disney this power. Before the Internet, Disney couldn't really control how
-people got access to their content. Once a video was in the marketplace, the
-"first-sale doctrine" would free the seller to use the video as he wished,
-including showing portions of it in order to engender sales of the entire
-movie video. But with the Internet, it becomes possible for Disney to
-centralize control over access to this content. Because each use of the
-Internet produces a copy, use on the Internet becomes subject to the
-copyright owner's control. The technology expands the scope of effective
-control, because the technology builds a copy into every transaction.
-</p><p>
-
-
-No doubt, a potential is not yet an abuse, and so the potential for control
-is not yet the abuse of control. Barnes & Noble has the right to say you
-can't touch a book in their store; property law gives them that right. But
-the market effectively protects against that abuse. If Barnes & Noble
-banned browsing, then consumers would choose other bookstores. Competition
-protects against the extremes. And it may well be (my argument so far does
-not even question this) that competition would prevent any similar danger
-when it comes to copyright. Sure, publishers exercising the rights that
-authors have assigned to them might try to regulate how many times you read
-a book, or try to stop you from sharing the book with anyone. But in a
-competitive market such as the book market, the dangers of this happening
-are quite slight.
-</p><p>
-Again, my aim so far is simply to map the changes that this changed
-architecture enables. Enabling technology to enforce the control of
-copyright means that the control of copyright is no longer defined by
-balanced policy. The control of copyright is simply what private owners
-choose. In some contexts, at least, that fact is harmless. But in some
-contexts it is a recipe for disaster.
-</p></div><div class="sect2" title="Arkitektur og lov: Makt"><div class="titlepage"><div><div><h3 class="title"><a name="lawforce"></a>Arkitektur og lov: Makt</h3></div></div></div><p>
-The disappearance of unregulated uses would be change enough, but a second
-important change brought about by the Internet magnifies its
-significance. This second change does not affect the reach of copyright
-regulation; it affects how such regulation is enforced.
-</p><p>
-In the world before digital technology, it was generally the law that
-controlled whether and how someone was regulated by copyright law. The law,
-meaning a court, meaning a judge: In the end, it was a human, trained in the
-tradition of the law and cognizant of the balances that tradition embraced,
-who said whether and how the law would restrict your freedom.
-</p><a class="indexterm" name="id2762306"></a><p>
-Det er en berømt historie om en kamp mellom Marx-brødrene (the Marx
-Brothers) og Warner Brothers. Marx-brødrene planla å lage en parodi av
-<em class="citetitle">Casablanca</em>. Warner Brothers protesterte. De skrev et
-ufint brev til Marx-brødrene og advarte dem om at det ville få seriøse
-juridiske konsekvenser hvis de gikk videre med sin plan.<sup>[<a name="id2762328" href="#ftn.id2762328" class="footnote">136</a>]</sup>
-</p><p>
-Dette fikk Marx-brødrene til å svare tilbake med samme mynt. De advarte
-Warner Brothers om at Marx-brødrene "var brødre lenge før dere var
-det".<sup>[<a name="id2762350" href="#ftn.id2762350" class="footnote">137</a>]</sup> Marx-brødrene eide derfor ordet
-<em class="citetitle">Brothers</em>, og hvis Warner Brothers insisterte på å
-forsøke å kontrollere <em class="citetitle">Casablanca</em>, så ville
-Marx-brødrene insistere på kontroll over <em class="citetitle">Brothers</em>.
-</p><p>
-Det var en absurd og hul trussel, selvfølgelig, fordi Warner Brothers, på
-samme måte som Marx-brødrene, visste at ingen domstol noensinne ville
-håndheve et slikt dumt krav. Denne ekstremismen var irrelevant for de ekte
-friheter som alle (inkludert Warner Brothers) nøt godt av.
-</p><p>
-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.
-</p><p>
-La oss se på livet til min Adobe eBook Reader.
-</p><p>
-En ebok er en bok levert i elektronisk form. En Adobe eBook er ikke en bok
-som Adobe har publisert. Adobe produserer kun programvaren som utgivere
-bruker å levere e-bøker. Den bidrar med teknologien, og utgiveren leverer
-innholdet ved hjelp av teknologien.
-</p><p>
-On the next page is a picture of an old version of my Adobe eBook Reader.
-</p><p>
-
-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:
-<em class="citetitle">Middlemarch</em>, for example, is in the public domain.
-Some of them reproduce content that is not in the public domain: My own book
-<em class="citetitle">The Future of Ideas</em> is not yet within the public
-domain. Consider <em class="citetitle">Middlemarch</em> first. If you click on
-my e-book copy of <em class="citetitle">Middlemarch</em>, you'll see a fancy
-cover, and then a button at the bottom called Permissions.
-</p><div class="figure"><a name="fig-1611"></a><p class="title"><b>Figur 3.12. Bilde av en gammel versjon av Adobe eBook Reader.</b></p><div class="figure-contents"><div><img src="images/1611.png" alt="Bilde av en gammel versjon av Adobe eBook Reader."></div></div></div><br class="figure-break"><p>
-If you click on the Permissions button, you'll see a list of the permissions
-that the publisher purports to grant with this book.
-</p><div class="figure"><a name="fig-1612"></a><p class="title"><b>Figur 3.13. List of the permissions that the publisher purports to grant.</b></p><div class="figure-contents"><div><img src="images/1612.png" alt="List of the permissions that the publisher purports to grant."></div></div></div><br class="figure-break"><p>
-
-
-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 <em class="citetitle">Middlemarch</em> read aloud through the
-computer.
-</p><p>
-Here's the e-book for another work in the public domain (including the
-translation): Aristotle's <em class="citetitle">Politics</em>.
-</p><div class="figure"><a name="fig-1621"></a><p class="title"><b>Figur 3.14. E-book of Aristotle;s "Politics"</b></p><div class="figure-contents"><div><img src="images/1621.png" alt='E-book of Aristotle;s "Politics"'></div></div></div><br class="figure-break"><p>
-According to its permissions, no printing or copying is permitted at
-all. But fortunately, you can use the Read Aloud button to hear the book.
-</p><div class="figure"><a name="fig-1622"></a><p class="title"><b>Figur 3.15. Liste med tillatelser for Aristotles "Politics".</b></p><div class="figure-contents"><div><img src="images/1622.png" alt='Liste med tillatelser for Aristotles "Politics".'></div></div></div><br class="figure-break"><p>
-Finally (and most embarrassingly), here are the permissions for the original
-e-book version of my last book, <em class="citetitle">The Future of Ideas</em>:
-</p><div class="figure"><a name="fig-1631"></a><p class="title"><b>Figur 3.16. List of the permissions for "The Future of Ideas".</b></p><div class="figure-contents"><div><img src="images/1631.png" alt='List of the permissions for "The Future of Ideas".'></div></div></div><br class="figure-break"><p>
-Ingen kopiering, ingen utskrift, og våg ikke å prøve å lytte til denne
-boken!
-</p><p>
-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.<sup>[<a name="id2762582" href="#ftn.id2762582" class="footnote">138</a>]</sup> When my
-e-book of <em class="citetitle">Middlemarch</em> 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.
-</p><p>
-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.
-</p><p>
-
-
-These are <span class="emphasis"><em>controls</em></span>, 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.
-</p><p>
-This is the future of copyright law: not so much copyright
-<span class="emphasis"><em>law</em></span> as copyright <span class="emphasis"><em>code</em></span>. 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.
-</p><p>
-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?
-</p><p>
-We've only scratched the surface of this story. Return to the Adobe eBook
-Reader.
-</p><p>
-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 <em class="citetitle">Alice's Adventures in
-Wonderland</em>. This wonderful book is in the public domain. Yet
-when you clicked on Permissions for that book, you got the following report:
-</p><div class="figure"><a name="fig-1641"></a><p class="title"><b>Figur 3.17. List of the permissions for "Alice's Adventures in Wonderland".</b></p><div class="figure-contents"><div><img src="images/1641.png" alt="List of the permissions for "Alice's Adventures in Wonderland"."></div></div></div><br class="figure-break"><p>
-
-
-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"!
-</p><p>
-The public relations nightmare attached to that final permission. For the
-text did not say that you were not permitted to use the Read Aloud button;
-it said you did not have the permission to read the book aloud. That led
-some people to think that Adobe was restricting the right of parents, for
-example, to read the book to their children, which seemed, to say the least,
-absurd.
-</p><p>
-Adobe responded quickly that it was absurd to think that it was trying to
-restrict the right to read a book aloud. Obviously it was only restricting
-the ability to use the Read Aloud button to have the book read aloud. But
-the question Adobe never did answer is this: Would Adobe thus agree that a
-consumer was free to use software to hack around the restrictions built into
-the eBook Reader? If some company (call it Elcomsoft) developed a program to
-disable the technological protection built into an Adobe eBook so that a
-blind person, say, could use a computer to read the book aloud, would Adobe
-agree that such a use of an eBook Reader was fair? Adobe didn't answer
-because the answer, however absurd it might seem, is no.
-</p><p>
-The point is not to blame Adobe. Indeed, Adobe is among the most innovative
-companies developing strategies to balance open access to content with
-incentives for companies to innovate. But Adobe's technology enables
-control, and Adobe has an incentive to defend this control. That incentive
-is understandable, yet what it creates is often crazy.
-</p><p>
-To see the point in a particularly absurd context, consider a favorite story
-of mine that makes the same point.
-</p><a class="indexterm" name="idxaibo"></a><p>
-Consider the robotic dog made by Sony named "Aibo." The Aibo learns tricks,
-cuddles, and follows you around. It eats only electricity and that doesn't
-leave that much of a mess (at least in your house).
-</p><p>
-
-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 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.
-</p><p>
-"Teach" here has a special meaning. Aibos are just cute computers. You
-teach a computer how to do something by programming it differently. So to
-say that aibopet.com was giving information about how to teach the dog to do
-new tricks is just to say that aibopet.com was giving information to users
-of the Aibo pet about how to hack their computer "dog" to make it do new
-tricks (thus, aibohack.com).
-</p><p>
-If you're not a programmer or don't know many programmers, the word
-<em class="citetitle">hack</em> 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,
-<em class="citetitle">hack</em> is a much more positive
-term. <em class="citetitle">Hack</em> 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.
-</p><p>
-Some hacks are easy. Some are unbelievably hard. Hackers as a community like
-to challenge themselves and others with increasingly difficult
-tasks. There's a certain respect that goes with the talent to hack
-well. There's a well-deserved respect that goes with the talent to hack
-ethically.
-</p><p>
-The Aibo fan was displaying a bit of both when he hacked the program and
-offered to the world a bit of code that would enable the Aibo to dance
-jazz. The dog wasn't programmed to dance jazz. It was a clever bit of
-tinkering that turned the dog into a more talented creature than Sony had
-built.
-</p><a class="indexterm" name="id2762830"></a><p>
-
-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, is it
-permissible for a dog to dance jazz in the United States? We forget that
-stories about the backcountry still flow across much of the world. So let's
-just be clear before we continue: It's not a crime anywhere (anymore) to
-dance jazz. Nor is it a crime to teach your dog 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, <span class="emphasis"><em>What possible problem could
-there be with teaching a robot dog to dance?</em></span>
-</p><p>
-Let's put the dog to sleep for a minute, and turn to a pony show— not
-literally a pony show, but rather a paper that a Princeton academic named Ed
-Felten prepared for a conference. This Princeton academic is well known and
-respected. He was hired by the government in the Microsoft case to test
-Microsoft's claims about what could and could not be done with its own
-code. In that trial, he demonstrated both his brilliance and his
-coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his
-ground. He was not about to be bullied into being silent about something he
-knew very well.
-</p><p>
-But Felten's bravery was really tested in April 2001.<sup>[<a name="id2762875" href="#ftn.id2762875" class="footnote">139</a>]</sup> He and a group of colleagues were working on a
-paper to be submitted at conference. The paper was intended to describe the
-weakness in an encryption system being developed by the Secure Digital Music
-Initiative as a technique to control the distribution of music.
-</p><p>
-The SDMI coalition had as its goal a technology to enable content owners to
-exercise much better control over their content than the Internet, as it
-originally stood, granted them. Using encryption, SDMI hoped to develop a
-standard that would allow the content owner to say "this music cannot be
-copied," and have a computer respect that command. The technology was to be
-part of a "trusted system" of control that would get content owners to trust
-the system of the Internet much more.
-</p><p>
-When SDMI thought it was close to a standard, it set up a competition. In
-exchange for providing contestants with the code to an SDMI-encrypted bit of
-content, contestants were to try to crack it and, if they did, report the
-problems to the consortium.
-</p><p>
-
-
-Felten and his team figured out the encryption system quickly. He and the
-team saw the weakness of this system as a type: Many encryption systems
-would suffer the same weakness, and Felten and his team thought it
-worthwhile to point this out to those who study encryption.
-</p><p>
-Let's review just what Felten was doing. Again, this is the United
-States. We have a principle of free speech. We have this principle not just
-because it is the law, but also because it is a really great idea. A
-strongly protected tradition of free speech is likely to encourage a wide
-range of criticism. That criticism is likely, in turn, to improve the
-systems or people or ideas criticized.
-</p><p>
-What Felten and his colleagues were doing was publishing a paper describing
-the weakness in a technology. They were not spreading free music, or
-building and deploying this technology. The paper was an academic essay,
-unintelligible to most people. But it clearly showed the weakness in the
-SDMI system, and why SDMI would not, as presently constituted, succeed.
-</p><p>
-What links these two, aibopet.com and Felten, is the letters they then
-received. Aibopet.com received a letter from Sony about the aibopet.com
-hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-Your site contains information providing the means to circumvent AIBO-ware's
-copy protection protocol constituting a violation of the anti-circumvention
-provisions of the Digital Millennium Copyright Act.
-</p></blockquote></div><p>
-And though an academic paper describing the weakness in a system of
-encryption should also be perfectly legal, Felten received a letter from an
-RIAA lawyer that read:
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-
-Any disclosure of information gained from participating in the Public
-Challenge would be outside the scope of activities permitted by the
-Agreement and could subject you and your research team to actions under the
-Digital Millennium Copyright Act ("DMCA").
-</p></blockquote></div><p>
-In both cases, this weirdly Orwellian law was invoked to control the spread
-of information. The Digital Millennium Copyright Act made spreading such
-information an offense.
-</p><p>
-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 <span class="emphasis"><em>code</em></span> to modify the original
-<span class="emphasis"><em>code</em></span> of the Internet, to reestablish some protection
-for copyright owners.
-</p><p>
-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,
-<span class="emphasis"><em>legal code</em></span> intended to buttress <span class="emphasis"><em>software
-code</em></span> which itself was intended to support the <span class="emphasis"><em>legal
-code of copyright</em></span>.
-</p><p>
-But the DMCA was not designed merely to protect copyrighted works to the
-extent copyright law protected them. Its protection, that is, did not end at
-the line that copyright law drew. The DMCA regulated devices that were
-designed to circumvent copyright protection measures. It was designed to ban
-those devices, whether or not the use of the copyrighted material made
-possible by that circumvention would have been a copyright violation.
-</p><p>
-
-Aibopet.com and Felten make the point. The Aibo hack circumvented a
-copyright protection system for the purpose of enabling the dog to dance
-jazz. That enablement no doubt involved the use of copyrighted material. But
-as aibopet.com's site was noncommercial, and the use did not enable
-subsequent copyright infringements, there's no doubt that aibopet.com's hack
-was fair use of Sony's copyrighted material. Yet fair use is not a defense
-to the DMCA. The question is not whether the use of the copyrighted material
-was a copyright violation. The question is whether a copyright protection
-system was circumvented.
-</p><p>
-The threat against Felten was more attenuated, but it followed the same line
-of reasoning. By publishing a paper describing how a copyright protection
-system could be circumvented, the RIAA lawyer suggested, Felten himself was
-distributing a circumvention technology. Thus, even though he was not
-himself infringing anyone's copyright, his academic paper was enabling
-others to infringe others' copyright.
-</p><p>
-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
-"<em class="citetitle">Mr. Rogers</em>," for example, had testified in that case
-that he wanted people to feel free to tape Mr. Rogers' Neighborhood.
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-Some public stations, as well as commercial stations, program the
-"Neighborhood" at hours when some children cannot use it. I think that it's
-a real service to families to be able to record such programs and show them
-at appropriate times. I have always felt that with the advent of all of this
-new technology that allows people to tape the "Neighborhood" off-the-air,
-and I'm speaking for the "Neighborhood" because that's what I produce, that
-they then become much more active in the programming of their family's
-television life. Very frankly, I am opposed to people being programmed by
-others. My whole approach in broadcasting has always been "You are an
-important person just the way you are. You can make healthy decisions."
-Maybe I'm going on too long, but I just feel that anything that allows a
-person to be more active in the control of his or her life, in a healthy
-way, is important.<sup>[<a name="id2763124" href="#ftn.id2763124" class="footnote">140</a>]</sup>
-</p></blockquote></div><p>
-
-
-Even though there were uses that were legal, because there were some uses
-that were illegal, the court held the companies producing the VCR
-responsible.
-</p><p>
-This led Conrad to draw the cartoon below, which we can adopt to the DMCA.
-</p><p>
-No argument I have can top this picture, but let me try to get close.
-</p><p>
-The anticircumvention provisions of the DMCA target copyright circumvention
-technologies. Circumvention technologies can be used for different
-ends. They can be used, for example, to enable massive pirating of
-copyrighted material—a bad end. Or they can be used to enable the use
-of particular copyrighted materials in ways that would be considered fair
-use—a good end.
-</p><p>
-
-A handgun can be used to shoot a police officer or a child. Most would agree
-such a use is bad. Or a handgun can be used for target practice or to
-protect against an intruder. At least some would say that such a use would
-be good. It, too, is a technology that has both good and bad uses.
-</p><div class="figure"><a name="fig-1711"></a><p class="title"><b>Figur 3.18. VCR/handgun cartoon.</b></p><div class="figure-contents"><div><img src="images/1711.png" alt="VCR/handgun cartoon."></div></div></div><br class="figure-break"><p>
-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: <span class="emphasis"><em>No one ever died from copyright
-circumvention</em></span>. 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.
-</p><p>
-The Aibo and RIAA examples demonstrate how copyright owners are changing the
-balance that copyright law grants. Using code, copyright owners restrict
-fair use; using the DMCA, they punish those who would attempt to evade the
-restrictions on fair use that they impose through code. Technology becomes a
-means by which fair use can be erased; the law of the DMCA backs up that
-erasing.
-</p><p>
-This is how <span class="emphasis"><em>code</em></span> becomes <span class="emphasis"><em>law</em></span>. 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.
-</p><p>
-There is one final aspect of the interaction between architecture and law
-that contributes to the force of copyright's regulation. This is the ease
-with which infringements of the law can be detected. For contrary to the
-rhetoric common at the birth of cyberspace that on the Internet, no one
-knows you're a dog, increasingly, given changing technologies deployed on
-the Internet, it is easy to find the dog who committed a legal wrong. The
-technologies of the Internet are open to snoops as well as sharers, and the
-snoops are increasingly good at tracking down the identity of those who
-violate the rules.
-</p><p>
-
-
-For example, imagine you were part of a <em class="citetitle">Star Trek</em> 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.<sup>[<a name="id2763264" href="#ftn.id2763264" class="footnote">141</a>]</sup>
-</p><p>
-Before the Internet, this was, in effect, a totally unregulated activity.
-No matter what happened inside your club room, you would never be interfered
-with by the copyright police. You were free in that space to do as you
-wished with this part of our culture. You were allowed to build on it as you
-wished without fear of legal control.
-</p><p>
-But if you moved your club onto the Internet, and made it generally
-available for others to join, the story would be very different. Bots
-scouring the Net for trademark and copyright infringement would quickly find
-your site. Your posting of fan fiction, depending upon the ownership of the
-series that you're depicting, could well inspire a lawyer's threat. And
-ignoring the lawyer's threat would be extremely costly indeed. The law of
-copyright is extremely efficient. The penalties are severe, and the process
-is quick.
-</p><p>
-This change in the effective force of the law is caused by a change in the
-ease with which the law can be enforced. That change too shifts the law's
-balance radically. It is as if your car transmitted the speed at which you
-traveled at every moment that you drove; that would be just one step before
-the state started issuing tickets based upon the data you transmitted. That
-is, in effect, what is happening here.
-</p></div><div class="sect2" title="Marked: Konsentrasjon"><div class="titlepage"><div><div><h3 class="title"><a name="marketconcentration"></a>Marked: Konsentrasjon</h3></div></div></div><p>
-
-So copyright's duration has increased dramatically—tripled in the past
-thirty years. And copyright's scope has increased as well—from
-regulating only publishers to now regulating just about everyone. And
-copyright's reach has changed, as every action becomes a copy and hence
-presumptively regulated. And as technologists find better ways to control
-the use of content, and as copyright is increasingly enforced through
-technology, copyright's force changes, too. Misuse is easier to find and
-easier to control. This regulation of the creative process, which began as a
-tiny regulation governing a tiny part of the market for creative work, has
-become the single most important regulator of creativity there is. It is a
-massive expansion in the scope of the government's control over innovation
-and creativity; it would be totally unrecognizable to those who gave birth
-to copyright's control.
-</p><p>
-Still, in my view, all of these changes would not matter much if it weren't
-for one more change that we must also consider. This is a change that is in
-some sense the most familiar, though its significance and scope are not well
-understood. It is the one that creates precisely the reason to be concerned
-about all the other changes I have described.
-</p><p>
-This is the change in the concentration and integration of the media. In
-the past twenty years, the nature of media ownership has undergone a radical
-alteration, caused by changes in legal rules governing the media. Before
-this change happened, the different forms of media were owned by separate
-media companies. Now, the media is increasingly owned by only a few
-companies. Indeed, after the changes that the FCC announced in June 2003,
-most expect that within a few years, we will live in a world where just
-three companies control more than percent of the media.
-</p><p>
-Det er her to sorter endringer: omfanget av konsentrasjon, og dens natur.
-</p><a class="indexterm" name="id2763367"></a><p>
-Changes in scope are the easier ones to describe. As Senator John McCain
-summarized the data produced in the FCC's review of media ownership, "five
-companies control 85 percent of our media sources."<sup>[<a name="id2763378" href="#ftn.id2763378" class="footnote">142</a>]</sup> The five recording labels of Universal Music Group,
-BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8
-percent of the U.S. music market.<sup>[<a name="id2763390" href="#ftn.id2763390" class="footnote">143</a>]</sup> The
-"five largest cable companies pipe programming to 74 percent of the cable
-subscribers nationwide."<sup>[<a name="id2763403" href="#ftn.id2763403" class="footnote">144</a>]</sup> <a class="indexterm" name="id2763414"></a>
-</p><p>
-
-The story with radio is even more dramatic. Before deregulation, the
-nation's largest radio broadcasting conglomerate owned fewer than
-seventy-five stations. Today <span class="emphasis"><em>one</em></span> 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.
-</p><p>
-Newspaper ownership is becoming more concentrated as well. Today, there are
-six hundred fewer daily newspapers in the United States than there were
-eighty years ago, and ten companies control half of the nation's
-circulation. There are twenty major newspaper publishers in the United
-States. The top ten film studios receive 99 percent of all film revenue. The
-ten largest cable companies account for 85 percent of all cable
-revenue. This is a market far from the free press the framers sought to
-protect. Indeed, it is a market that is quite well protected— by the
-market.
-</p><p>
-Concentration in size alone is one thing. The more invidious change is in
-the nature of that concentration. As author James Fallows put it in a recent
-article about Rupert Murdoch, <a class="indexterm" name="id2763446"></a>
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-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 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 through which the content reaches the
-customers. Murdoch's satellite systems now distribute News Corp. content in
-Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that
-system will serve the same function in the United States.<sup>[<a name="id2763470" href="#ftn.id2763470" class="footnote">145</a>]</sup>
-</p></blockquote></div><p>
-The pattern with Murdoch is the pattern of modern media. Not just large
-companies owning many radio stations, but a few companies owning as many
-outlets of media as possible. A picture describes this pattern better than a
-thousand words could do:
-</p><div class="figure"><a name="fig-1761"></a><p class="title"><b>Figur 3.19. Mønster for moderne mediaeierskap.</b></p><div class="figure-contents"><div><img src="images/1761.png" alt="Mønster for moderne mediaeierskap."></div></div></div><br class="figure-break"><p>
-
-
-Does this concentration matter? Will it affect what is made, or what is
-distributed? Or is it merely a more efficient way to produce and distribute
-content?
-</p><p>
-My view was that concentration wouldn't matter. I thought it was nothing
-more than a more efficient financial structure. But now, after reading and
-listening to a barrage of creators try to convince me to the contrary, I am
-beginning to change my mind.
-</p><p>
-Here's a representative story that begins to suggest how this integration
-may matter.
-</p><a class="indexterm" name="id2763540"></a><a class="indexterm" name="id2763546"></a><a class="indexterm" name="id2763553"></a><p>
-In 1969, Norman Lear created a pilot for <em class="citetitle">All in the
-Family</em>. 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. We wanted less edgy, not more.
-</p><p>
-Rather than comply, Lear simply took the show elsewhere. CBS was happy to
-have the series; ABC could not stop Lear from walking. The copyrights that
-Lear held assured an independence from network control.<sup>[<a name="id2763576" href="#ftn.id2763576" class="footnote">146</a>]</sup>
-</p><p>
-
-
-
-The network did not control those copyrights because the law forbade the
-networks from controlling the content they syndicated. The law required a
-separation between the networks and the content producers; that separation
-would guarantee Lear freedom. And as late as 1992, because of these rules,
-the vast majority of prime time television—75 percent of it—was
-"independent" of the networks.
-</p><p>
-In 1994, the FCC abandoned the rules that required this independence. After
-that change, the networks quickly changed the balance. In 1985, there were
-twenty-five independent television production studios; in 2002, only five
-independent television studios remained. "In 1992, only 15 percent of new
-series were produced for a network by a company it controlled. Last year,
-the percentage of shows produced by controlled companies more than
-quintupled to 77 percent." "In 1992, 16 new series were produced
-independently of conglomerate control, last year there was one."<sup>[<a name="id2763606" href="#ftn.id2763606" class="footnote">147</a>]</sup> In 2002, 75 percent of prime time television was
-owned by the networks that ran it. "In the ten-year period between 1992 and
-2002, the number of prime time television hours per week produced by network
-studios increased over 200%, whereas the number of prime time television
-hours per week produced by independent studios decreased 63%."<sup>[<a name="id2763650" href="#ftn.id2763650" class="footnote">148</a>]</sup>
-</p><a class="indexterm" name="id2763657"></a><p>
-Today, another Norman Lear with another <em class="citetitle">All in the
-Family</em> 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.
-</p><p>
-While the number of channels has increased dramatically, the ownership of
-those channels has narrowed to an ever smaller and smaller few. As Barry
-Diller said to Bill Moyers, <a class="indexterm" name="id2763679"></a>
-<a class="indexterm" name="id2763685"></a>
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-Well, if you have companies that produce, that finance, that air on their
-channel and then distribute worldwide everything that goes through their
-controlled distribution system, then what you get is fewer and fewer actual
-voices participating in the process. [We u]sed to have dozens and dozens of
-thriving independent production companies producing television programs. Now
-you have less than a handful.<sup>[<a name="id2763704" href="#ftn.id2763704" class="footnote">149</a>]</sup>
-</p></blockquote></div><p>
-This narrowing has an effect on what is produced. The product of such large
-and concentrated networks is increasingly homogenous. Increasingly
-safe. Increasingly sterile. The product of news shows from networks like
-this is increasingly tailored to the message the network wants to
-convey. This is not the communist party, though from the inside, it must
-feel a bit like the communist party. No one can question without risk of
-consequence—not necessarily banishment to Siberia, but punishment
-nonetheless. Independent, critical, different views are quashed. This is not
-the environment for a democracy.
-</p><a class="indexterm" name="id2763738"></a><p>
-Economics itself offers a parallel that explains why this integration
-affects creativity. Clay Christensen has written about the "Innovator's
-Dilemma": the fact that large traditional firms find it rational to ignore
-new, breakthrough technologies that compete with their core business. The
-same analysis could help explain why large, traditional media companies
-would find it rational to ignore new cultural trends.<sup>[<a name="id2763755" href="#ftn.id2763755" class="footnote">150</a>]</sup> Lumbering giants not only don't, but should not,
-sprint. Yet if the field is only open to the giants, there will be far too
-little sprinting. <a class="indexterm" name="id2763784"></a>
-</p><p>
-I don't think we know enough about the economics of the media market to say
-with certainty what concentration and integration will do. The efficiencies
-are important, and the effect on culture is hard to measure.
-</p><p>
-But there is a quintessentially obvious example that does strongly suggest
-the concern.
-</p><p>
-In addition to the copyright wars, we're in the middle of the drug
-wars. Government policy is strongly directed against the drug cartels;
-criminal and civil courts are filled with the consequences of this battle.
-</p><p>
-
-Let me hereby disqualify myself from any possible appointment to any
-position in government by saying I believe this war is a profound mistake. I
-am not pro drugs. Indeed, I come from a family once wrecked by
-drugs—though the drugs that wrecked my family were all quite legal. I
-believe this war is a profound mistake because the collateral damage from it
-is so great as to make waging the war insane. When you add together the
-burdens on the criminal justice system, the desperation of generations of
-kids whose only real economic opportunities are as drug warriors, the
-queering of constitutional protections because of the constant surveillance
-this war requires, and, most profoundly, the total destruction of the legal
-systems of many South American nations because of the power of the local
-drug cartels, I find it impossible to believe that the marginal benefit in
-reduced drug consumption by Americans could possibly outweigh these costs.
-</p><p>
-You may not be convinced. That's fine. We live in a democracy, and it is
-through votes that we are to choose policy. But to do that, we depend
-fundamentally upon the press to help inform Americans about these issues.
-</p><p>
-Beginning in 1998, the Office of National Drug Control Policy launched a
-media campaign as part of the "war on drugs." The campaign produced scores
-of short film clips about issues related to illegal drugs. In one series
-(the Nick and Norm series) two men are in a bar, discussing the idea of
-legalizing drugs as a way to avoid some of the collateral damage from the
-war. One advances an argument in favor of drug legalization. The other
-responds in a powerful and effective way against the argument of the
-first. In the end, the first guy changes his mind (hey, it's
-television). The plug at the end is a damning attack on the pro-legalization
-campaign.
-</p><p>
-Fair enough. It's a good ad. Not terribly misleading. It delivers its
-message well. It's a fair and reasonable message.
-</p><p>
-But let's say you think it is a wrong message, and you'd like to run a
-countercommercial. Say you want to run a series of ads that try to
-demonstrate the extraordinary collateral harm that comes from the drug
-war. Can you do it?
-</p><p>
-
-Well, obviously, these ads cost lots of money. Assume you raise the
-money. Assume a group of concerned citizens donates all the money in the
-world to help you get your message out. Can you be sure your message will be
-heard then?
-</p><p>
-No. You cannot. Television stations have a general policy of avoiding
-"controversial" ads. Ads sponsored by the government are deemed
-uncontroversial; ads disagreeing with the government are controversial.
-This selectivity might be thought inconsistent with the First Amendment, but
-the Supreme Court has held that stations have the right to choose what they
-run. Thus, the major channels of commercial media will refuse one side of a
-crucial debate the opportunity to present its case. And the courts will
-defend the rights of the stations to be this biased.<sup>[<a name="id2763898" href="#ftn.id2763898" class="footnote">151</a>]</sup>
-</p><p>
-I'd be happy to defend the networks' rights, as well—if we lived in a
-media market that was truly diverse. But concentration in the media throws
-that condition into doubt. If a handful of companies control access to the
-media, and that handful of companies gets to decide which political
-positions it will allow to be promoted on its channels, then in an obvious
-and important way, concentration matters. You might like the positions the
-handful of companies selects. But you should not like a world in which a
-mere few get to decide which issues the rest of us get to know about.
-</p></div><div class="sect2" title="Sammen"><div class="titlepage"><div><div><h3 class="title"><a name="together"></a>Sammen</h3></div></div></div><p>
-There is something innocent and obvious about the claim of the copyright
-warriors that the government should "protect my property." In the abstract,
-it is obviously true and, ordinarily, totally harmless. No sane sort who is
-not an anarchist could disagree.
-</p><p>
-
-But when we see how dramatically this "property" has changed— when we
-recognize how it might now interact with both technology and markets to mean
-that the effective constraint on the liberty to cultivate our culture is
-dramatically different—the claim begins to seem less innocent and
-obvious. Given (1) the power of technology to supplement the law's control,
-and (2) the power of concentrated markets to weaken the opportunity for
-dissent, if strictly enforcing the massively expanded "property" rights
-granted by copyright fundamentally changes the freedom within this culture
-to cultivate and build upon our past, then we have to ask whether this
-property should be redefined.
-</p><p>
-Not starkly. Or absolutely. My point is not that we should abolish copyright
-or go back to the eighteenth century. That would be a total mistake,
-disastrous for the most important creative enterprises within our culture
-today.
-</p><p>
-But there is a space between zero and one, Internet culture
-notwithstanding. And these massive shifts in the effective power of
-copyright regulation, tied to increased concentration of the content
-industry and resting in the hands of technology that will increasingly
-enable control over the use of culture, should drive us to consider whether
-another adjustment is called for. Not an adjustment that increases
-copyright's power. Not an adjustment that increases its term. Rather, an
-adjustment to restore the balance that has traditionally defined copyright's
-regulation—a weakening of that regulation, to strengthen creativity.
-</p><p>
-Copyright law has not been a rock of Gibraltar. It's not a set of constant
-commitments that, for some mysterious reason, teenagers and geeks now
-flout. Instead, copyright power has grown dramatically in a short period of
-time, as the technologies of distribution and creation have changed and as
-lobbyists have pushed for more control by copyright holders. Changes in the
-past in response to changes in technology suggest that we may well need
-similar changes in the future. And these changes have to be
-<span class="emphasis"><em>reductions</em></span> in the scope of copyright, in response to
-the extraordinary increase in control that technology and the market enable.
-</p><p>
-
-For the single point that is lost in this war on pirates is a point that we
-see only after surveying the range of these changes. When you add together
-the effect of changing law, concentrated markets, and changing technology,
-together they produce an astonishing conclusion: <span class="emphasis"><em>Never in our
-history have fewer had a legal right to control more of the development of
-our culture than now</em></span>.
-</p><p>
-Not when copyrights were perpetual, for when copyrights were perpetual, they
-affected only that precise creative work. Not when only publishers had the
-tools to publish, for the market then was much more diverse. Not when there
-were only three television networks, for even then, newspapers, film
-studios, radio stations, and publishers were independent of the
-networks. <span class="emphasis"><em>Never</em></span> 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.<sup>[<a name="id2764082" href="#ftn.id2764082" class="footnote">152</a>]</sup>
-</p><p>
-This has been a long chapter. Its point can now be briefly stated.
-</p><p>
-At the start of this book, I distinguished between commercial and
-noncommercial culture. In the course of this chapter, I have distinguished
-between copying a work and transforming it. We can now combine these two
-distinctions and draw a clear map of the changes that copyright law has
-undergone. In 1790, the law looked like this:
-</p><div class="table"><a name="t2"></a><p class="title"><b>Tabell 3.1. </b></p><div class="table-contents"><table summary="" border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="char"> </th><th align="char">Publiser</th><th align="char">TRANSFORM</th></tr></thead><tbody><tr><td align="char">Kommersiell</td><td align="char">©</td><td align="char">Fri</td></tr><tr><td align="char">Ikke-kommersiell</td><td align="char">Fri</td><td align="char">Fri</td></tr></tbody></table></div></div><br class="table-break"><p>
-
-The act of publishing a map, chart, and book was regulated by copyright
-law. Nothing else was. Transformations were free. And as copyright attached
-only with registration, and only those who intended to benefit commercially
-would register, copying through publishing of noncommercial work was also
-free.
-</p><p>
-By the end of the nineteenth century, the law had changed to this:
-</p><div class="table"><a name="t3"></a><p class="title"><b>Tabell 3.2. </b></p><div class="table-contents"><table summary="" border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="char"> </th><th align="char">Publiser</th><th align="char">TRANSFORM</th></tr></thead><tbody><tr><td align="char">Kommersiell</td><td align="char">©</td><td align="char">©</td></tr><tr><td align="char">Ikke-kommersiell</td><td align="char">Fri</td><td align="char">Fri</td></tr></tbody></table></div></div><br class="table-break"><p>
-Derivative works were now regulated by copyright law—if published,
-which again, given the economics of publishing at the time, means if offered
-commercially. But noncommercial publishing and transformation were still
-essentially free.
-</p><p>
-In 1909 the law changed to regulate copies, not publishing, and after this
-change, the scope of the law was tied to technology. As the technology of
-copying became more prevalent, the reach of the law expanded. Thus by 1975,
-as photocopying machines became more common, we could say the law began to
-look like this:
-</p><div class="table"><a name="t4"></a><p class="title"><b>Tabell 3.3. </b></p><div class="table-contents"><table summary="" border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="char"> </th><th align="char">Kopier</th><th align="char">TRANSFORM</th></tr></thead><tbody><tr><td align="char">Kommersiell</td><td align="char">©</td><td align="char">©</td></tr><tr><td align="char">Ikke-kommersiell</td><td align="char">©/Fri</td><td align="char">Fri</td></tr></tbody></table></div></div><br class="table-break"><p>
-The law was interpreted to reach noncommercial copying through, say, copy
-machines, but still much of copying outside of the commercial market
-remained free. But the consequence of the emergence of digital technologies,
-especially in the context of a digital network, means that the law now looks
-like this:
-</p><div class="table"><a name="t5"></a><p class="title"><b>Tabell 3.4. </b></p><div class="table-contents"><table summary="" border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="char"> </th><th align="char">Kopier</th><th align="char">TRANSFORM</th></tr></thead><tbody><tr><td align="char">Kommersiell</td><td align="char">©</td><td align="char">©</td></tr><tr><td align="char">Ikke-kommersiell</td><td align="char">©</td><td align="char">©</td></tr></tbody></table></div></div><br class="table-break"><p>
-
-Every realm is governed by copyright law, whereas before most creativity was
-not. The law now regulates the full range of creativity— commercial or
-not, transformative or not—with the same rules designed to regulate
-commercial publishers.
-</p><p>
-Obviously, copyright law is not the enemy. The enemy is regulation that does
-no good. So the question that we should be asking just now is whether
-extending the regulations of copyright law into each of these domains
-actually does any good.
-</p><p>
-I have no doubt that it does good in regulating commercial copying. But I
-also have no doubt that it does more harm than good when regulating (as it
-regulates just now) noncommercial copying and, especially, noncommercial
-transformation. And increasingly, for the reasons sketched especially in
-chapters 7 and 8, one might well wonder whether it does more harm than good
-for commercial transformation. More commercial transformative work would be
-created if derivative rights were more sharply restricted.
-</p><p>
-The issue is therefore not simply whether copyright is property. Of course
-copyright is a kind of "property," and of course, as with any property, the
-state ought to protect it. But first impressions notwithstanding,
-historically, this property right (as with all property rights<sup>[<a name="id2764427" href="#ftn.id2764427" class="footnote">153</a>]</sup>) 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 <span class="emphasis"><em>at all</em></span> 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.
-</p><p>
-
-We achieved that free culture because our law respected important limits on
-the scope of the interests protected by "property." The very birth of
-"copyright" as a statutory right recognized those limits, by granting
-copyright owners protection for a limited time only (the story of chapter
-6). The tradition of "fair use" is animated by a similar concern that is
-increasingly under strain as the costs of exercising any fair use right
-become unavoidably high (the story of chapter 7). Adding statutory rights
-where markets might stifle innovation is another familiar limit on the
-property right that copyright is (chapter 8). And granting archives and
-libraries a broad freedom to collect, claims of property notwithstanding, is
-a crucial part of guaranteeing the soul of a culture (chapter 9). Free
-cultures, like free markets, are built with property. But the nature of the
-property that builds a free culture is very different from the extremist
-vision that dominates the debate today.
-</p><p>
-Free culture is increasingly the casualty in this war on piracy. In response
-to a real, if not yet quantified, threat that the technologies of the
-Internet present to twentieth-century business models for producing and
-distributing culture, the law and technology are being transformed in a way
-that will undermine our tradition of free culture. The property right that
-is copyright is no longer the balanced right that it was, or was intended to
-be. The property right that is copyright has become unbalanced, tilted
-toward an extreme. The opportunity to create and transform becomes weakened
-in a world in which creation requires permission and creativity must check
-with a lawyer.
-</p></div></div><div class="footnotes"><br><hr width="100" align="left"><div class="footnote"><p><sup>[<a name="ftn.id2757278" href="#id2757278" class="para">96</a>] </sup>
-
-
-Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
-<em class="citetitle">The Writings of Thomas Jefferson</em>, vol. 6 (Andrew
-A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333–34.
-</p></div><div class="footnote"><p><sup>[<a name="ftn.id2757323" href="#id2757323" class="para">97</a>] </sup>
-
-
-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," <em class="citetitle">Arizona Law
-Review</em> 45 (2003): 373, 429 n. 241.
-</p></div><div class="footnote"><p><sup>[<a name="ftn.id2757398" href="#id2757398" class="para">98</a>] </sup>
-
-
-Jacob Tonson er vanligvis husket for sin omgang med 1700-tallets litterære
-storheter, spesielt John Dryden, og for hans kjekke"ferdige versjoner" av
-klassiske verk. I tillegg til <em class="citetitle">Romeo og Julie</em>, utga
-han en utrolig rekke liste av verk som ennå er hjertet av den engelske
-kanon, inkludert de samlede verk av Shakespeare, Ben Jonson, John Milton, og
-John Dryden. Se Keith Walker: "Jacob Tonson, Bookseller,"
-<em class="citetitle">American Scholar</em> 61:3 (1992): 424-31.
-</p></div><div class="footnote"><p><sup>[<a name="ftn.id2757428" href="#id2757428" class="para">99</a>] </sup>
projects / text-free-culture-lessig.git / blobdiff