-</p></div><div class="sect1" title='Kapittel to: "Kun etter-apere"'><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="mere-copyists"></a>Kapittel to: "Kun etter-apere"</h2></div></div></div><a class="indexterm" name="id2753016"></a><p>
-In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call "photographs." Appropriately enough, they were
-called "daguerreotypes." The process was complicated and expensive, and the
-field was thus limited to professionals and a few zealous and wealthy
-amateurs. (There was even an American Daguerre Association that helped
-regulate the industry, as do all such associations, by keeping competition
-down so as to keep prices up.)
-</p><p>
-Yet despite high prices, the demand for daguerreotypes was strong. This
-pushed inventors to find simpler and cheaper ways to make "automatic
-pictures." William Talbot soon discovered a process for making "negatives."
-But because the negatives were glass, and had to be kept wet, the process
-still remained expensive and cumbersome. In the 1870s, dry plates were
-developed, making it easier to separate the taking of a picture from its
-developing. These were still plates of glass, and thus it was still not a
-process within reach of most amateurs.
-</p><a class="indexterm" name="idxeastmangeorge"></a><p>
-
-The technological change that made mass photography possible didn't happen
-until 1888, and was the creation of a single man. George Eastman, himself an
-amateur photographer, was frustrated by the technology of photographs made
-with plates. In a flash of insight (so to speak), Eastman saw that if the
-film could be made to be flexible, it could be held on a single
-spindle. That roll could then be sent to a developer, driving the costs of
-photography down substantially. By lowering the costs, Eastman expected he
-could dramatically broaden the population of photographers.
-</p><p>
-Eastman developed flexible, emulsion-coated paper film and placed rolls of
-it in small, simple cameras: the Kodak. The device was marketed on the basis
-of its simplicity. "You press the button and we do the rest."<sup>[<a name="id2753088" href="#ftn.id2753088" class="footnote">26</a>]</sup> As he described in <em class="citetitle">The Kodak
-Primer</em>:
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-The principle of the Kodak system is the separation of the work that any
-person whomsoever can do in making a photograph, from the work that only an
-expert can do. . . . We furnish anybody, man, woman or child, who has
-sufficient intelligence to point a box straight and press a button, with an
-instrument which altogether removes from the practice of photography the
-necessity for exceptional facilities or, in fact, any special knowledge of
-the art. It can be employed without preliminary study, without a darkroom
-and without chemicals.<sup>[<a name="id2753117" href="#ftn.id2753117" class="footnote">27</a>]</sup>
-</p></blockquote></div><p>
-For $25, anyone could make pictures. The camera came preloaded with film,
-and when it had been used, the camera was returned to an Eastman factory,
-where the film was developed. Over time, of course, the cost of the camera
-and the ease with which it could be used both improved. Roll film thus
-became the basis for the explosive growth of popular photography. Eastman's
-camera first went on sale in 1888; one year later, Kodak was printing more
-than six thousand negatives a day. From 1888 through 1909, while industrial
-production was rising by 4.7 percent, photographic equipment and material
-sales increased by percent.<sup>[<a name="id2753150" href="#ftn.id2753150" class="footnote">28</a>]</sup> Eastman
-Kodak's sales during the same period experienced an average annual increase
-of over 17 percent.<sup>[<a name="id2753158" href="#ftn.id2753158" class="footnote">29</a>]</sup>
-</p><a class="indexterm" name="id2753167"></a><p>
-
-
-The real significance of Eastman's invention, however, was not economic. It
-was social. Professional photography gave individuals a glimpse of places
-they would never otherwise see. Amateur photography gave them the ability to
-record their own lives in a way they had never been able to do before. As
-author Brian Coe notes, "For the first time the snapshot album provided the
-man on the street with a permanent record of his family and its
-activities. . . . For the first time in history there exists an authentic
-visual record of the appearance and activities of the common man made
-without [literary] interpretation or bias."<sup>[<a name="id2753186" href="#ftn.id2753186" class="footnote">30</a>]</sup>
-</p><p>
-In this way, the Kodak camera and film were technologies of expression. The
-pencil or paintbrush was also a technology of expression, of course. But it
-took years of training before they could be deployed by amateurs in any
-useful or effective way. With the Kodak, expression was possible much sooner
-and more simply. The barrier to expression was lowered. Snobs would sneer at
-its "quality"; professionals would discount it as irrelevant. But watch a
-child study how best to frame a picture and you get a sense of the
-experience of creativity that the Kodak enabled. Democratic tools gave
-ordinary people a way to express themselves more easily than any tools could
-have before.
-</p><p>
-What was required for this technology to flourish? Obviously, Eastman's
-genius was an important part. But also important was the legal environment
-within which Eastman's invention grew. For early in the history of
-photography, there was a series of judicial decisions that could well have
-changed the course of photography substantially. Courts were asked whether
-the photographer, amateur or professional, required permission before he
-could capture and print whatever image he wanted. Their answer was
-no.<sup>[<a name="id2753232" href="#ftn.id2753232" class="footnote">31</a>]</sup>
-</p><p>
-
-The arguments in favor of requiring permission will sound surprisingly
-familiar. The photographer was "taking" something from the person or
-building whose photograph he shot—pirating something of value. Some
-even thought he was taking the target's soul. Just as Disney was not free to
-take the pencils that his animators used to draw Mickey, so, too, should
-these photographers not be free to take images that they thought valuable.
-</p><a class="indexterm" name="id2753265"></a><p>
-On the other side was an argument that should be familiar, as well. Sure,
-there may be something of value being used. But citizens should have the
-right to capture at least those images that stand in public view. (Louis
-Brandeis, who would become a Supreme Court Justice, thought the rule should
-be different for images from private spaces.<sup>[<a name="id2753288" href="#ftn.id2753288" class="footnote">32</a>]</sup>) It may be that this means that the photographer gets something for
-nothing. Just as Disney could take inspiration from <em class="citetitle">Steamboat
-Bill, Jr</em>. or the Brothers Grimm, the photographer should be free
-to capture an image without compensating the source.
-</p><p>
-Fortunately for Mr. Eastman, and for photography in general, these early
-decisions went in favor of the pirates. In general, no permission would be
-required before an image could be captured and shared with others. Instead,
-permission was presumed. Freedom was the default. (The law would eventually
-craft an exception for famous people: commercial photographers who snap
-pictures of famous people for commercial purposes have more restrictions
-than the rest of us. But in the ordinary case, the image can be captured
-without clearing the rights to do the capturing.<sup>[<a name="id2753332" href="#ftn.id2753332" class="footnote">33</a>]</sup>)
-</p><p>
-We can only speculate about how photography would have developed had the law
-gone the other way. If the presumption had been against the photographer,
-then the photographer would have had to demonstrate permission. Perhaps
-Eastman Kodak would have had to demonstrate permission, too, before it
-developed the film upon which images were captured. After all, if permission
-were not granted, then Eastman Kodak would be benefiting from the "theft"
-committed by the photographer. Just as Napster benefited from the copyright
-infringements committed by Napster users, Kodak would be benefiting from the
-"image-right" infringement of its photographers. We could imagine the law
-then requiring that some form of permission be demonstrated before a company
-developed pictures. We could imagine a system developing to demonstrate that
-permission.
-</p><p>
-
-
-
-But though we could imagine this system of permission, it would be very hard
-to see how photography could have flourished as it did if the requirement
-for permission had been built into the rules that govern it. Photography
-would have existed. It would have grown in importance over
-time. Professionals would have continued to use the technology as they
-did—since professionals could have more easily borne the burdens of
-the permission system. But the spread of photography to ordinary people
-would not have occurred. Nothing like that growth would have been
-realized. And certainly, nothing like that growth in a democratic technology
-of expression would have been realized. If you drive through San
-Francisco's Presidio, you might see two gaudy yellow school buses painted
-over with colorful and striking images, and the logo "Just Think!" in place
-of the name of a school. But there's little that's "just" cerebral in the
-projects that these busses enable. These buses are filled with technologies
-that teach kids to tinker with film. Not the film of Eastman. Not even the
-film of your VCR. Rather the "film" of digital cameras. Just Think! is a
-project that enables kids to make films, as a way to understand and critique
-the filmed culture that they find all around them. Each year, these busses
-travel to more than thirty schools and enable three hundred to five hundred
-children to learn something about media by doing something with media. By
-doing, they think. By tinkering, they learn.
-</p><a class="indexterm" name="id2753379"></a><p>
-These buses are not cheap, but the technology they carry is increasingly
-so. The cost of a high-quality digital video system has fallen
-dramatically. As one analyst puts it, "Five years ago, a good real-time
-digital video editing system cost $25,000. Today you can get professional
-quality for $595."<sup>[<a name="id2753422" href="#ftn.id2753422" class="footnote">34</a>]</sup> These buses are
-filled with technology that would have cost hundreds of thousands just ten
-years ago. And it is now feasible to imagine not just buses like this, but
-classrooms across the country where kids are learning more and more of
-something teachers call "media literacy."
-</p><p>
-
-"Media literacy," as Dave Yanofsky, the executive director of Just Think!,
-puts it, "is the ability . . . to understand, analyze, and deconstruct media
-images. Its aim is to make [kids] literate about the way media works, the
-way it's constructed, the way it's delivered, and the way people access it."
-<a class="indexterm" name="id2753451"></a>
-</p><p>
-This may seem like an odd way to think about "literacy." For most people,
-literacy is about reading and writing. Faulkner and Hemingway and noticing
-split infinitives are the things that "literate" people know about.
-</p><p>
-Maybe. But in a world where children see on average 390 hours of television
-commercials per year, or between 20,000 and 45,000 commercials
-generally,<sup>[<a name="id2753472" href="#ftn.id2753472" class="footnote">35</a>]</sup> it is increasingly important
-to understand the "grammar" of media. For just as there is a grammar for the
-written word, so, too, is there one for media. And just as kids learn how to
-write by writing lots of terrible prose, kids learn how to write media by
-constructing lots of (at least at first) terrible media.
-</p><p>
-A growing field of academics and activists sees this form of literacy as
-crucial to the next generation of culture. For though anyone who has written
-understands how difficult writing is—how difficult it is to sequence
-the story, to keep a reader's attention, to craft language to be
-understandable—few of us have any real sense of how difficult media
-is. Or more fundamentally, few of us have a sense of how media works, how it
-holds an audience or leads it through a story, how it triggers emotion or
-builds suspense.
-</p><p>
-It took filmmaking a generation before it could do these things well. But
-even then, the knowledge was in the filming, not in writing about the
-film. The skill came from experiencing the making of a film, not from
-reading a book about it. One learns to write by writing and then reflecting
-upon what one has written. One learns to write with images by making them
-and then reflecting upon what one has created.
-</p><a class="indexterm" name="id2753516"></a><p>
-This grammar has changed as media has changed. When it was just film, as
-Elizabeth Daley, executive director of the University of Southern
-California's Annenberg Center for Communication and dean of the USC School
-of Cinema-Television, explained to me, the grammar was about "the placement
-of objects, color, . . . rhythm, pacing, and texture."<sup>[<a name="id2753530" href="#ftn.id2753530" class="footnote">36</a>]</sup> But as computers open up an interactive space where
-a story is "played" as well as experienced, that grammar changes. The simple
-control of narrative is lost, and so other techniques are necessary. Author
-Michael Crichton had mastered the narrative of science fiction. But when he
-tried to design a computer game based on one of his works, it was a new
-craft he had to learn. How to lead people through a game without their
-feeling they have been led was not obvious, even to a wildly successful
-author.<sup>[<a name="id2753562" href="#ftn.id2753562" class="footnote">37</a>]</sup>
-</p><a class="indexterm" name="id2753584"></a><p>
-This skill is precisely the craft a filmmaker learns. As Daley describes,
-"people are very surprised about how they are led through a film. [I]t is
-perfectly constructed to keep you from seeing it, so you have no idea. If a
-filmmaker succeeds you do not know how you were led." If you know you were
-led through a film, the film has failed.
-</p><p>
-Yet the push for an expanded literacy—one that goes beyond text to
-include audio and visual elements—is not about making better film
-directors. The aim is not to improve the profession of filmmaking at all.
-Instead, as Daley explained,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-From my perspective, probably the most important digital divide is not
-access to a box. It's the ability to be empowered with the language that
-that box works in. Otherwise only a very few people can write with this
-language, and all the rest of us are reduced to being read-only.
-</p></blockquote></div><p>
-"Read-only." Passive recipients of culture produced elsewhere. Couch
-potatoes. Consumers. This is the world of media from the twentieth century.
-</p><p>
-The twenty-first century could be different. This is the crucial point: It
-could be both read and write. Or at least reading and better understanding
-the craft of writing. Or best, reading and understanding the tools that
-enable the writing to lead or mislead. The aim of any literacy, and this
-literacy in particular, is to "empower people to choose the appropriate
-language for what they need to create or express."<sup>[<a name="id2753634" href="#ftn.id2753634" class="footnote">38</a>]</sup> It is to enable students "to communicate in the
-language of the twenty-first century."<sup>[<a name="id2753652" href="#ftn.id2753652" class="footnote">39</a>]</sup>
-</p><a class="indexterm" name="id2753659"></a><p>
-As with any language, this language comes more easily to some than to
-others. It doesn't necessarily come more easily to those who excel in
-written language. Daley and Stephanie Barish, director of the Institute for
-Multimedia Literacy at the Annenberg Center, describe one particularly
-poignant example of a project they ran in a high school. The high school
-was a very poor inner-city Los Angeles school. In all the traditional
-measures of success, this school was a failure. But Daley and Barish ran a
-program that gave kids an opportunity to use film to express meaning about
-something the students know something about—gun violence.
-</p><p>
-The class was held on Friday afternoons, and it created a relatively new
-problem for the school. While the challenge in most classes was getting the
-kids to come, the challenge in this class was keeping them away. The "kids
-were showing up at 6 A.M. and leaving at 5 at night," said Barish. They were
-working harder than in any other class to do what education should be
-about—learning how to express themselves.
-</p><p>
-Using whatever "free web stuff they could find," and relatively simple tools
-to enable the kids to mix "image, sound, and text," Barish said this class
-produced a series of projects that showed something about gun violence that
-few would otherwise understand. This was an issue close to the lives of
-these students. The project "gave them a tool and empowered them to be able
-to both understand it and talk about it," Barish explained. That tool
-succeeded in creating expression—far more successfully and powerfully
-than could have been created using only text. "If you had said to these
-students, `you have to do it in text,' they would've just thrown their hands
-up and gone and done something else," Barish described, in part, no doubt,
-because expressing themselves in text is not something these students can do
-well. Yet neither is text a form in which <span class="emphasis"><em>these</em></span> ideas
-can be expressed well. The power of this message depended upon its
-connection to this form of expression.
-</p><p>
-
-
-
-"But isn't education about teaching kids to write?" I asked. In part, of
-course, it is. But why are we teaching kids to write? Education, Daley
-explained, is about giving students a way of "constructing meaning." To say
-that that means just writing is like saying teaching writing is only about
-teaching kids how to spell. Text is one part—and increasingly, not the
-most powerful part—of constructing meaning. As Daley explained in the
-most moving part of our interview,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-What you want is to give these students ways of constructing meaning. If all
-you give them is text, they're not going to do it. Because they can't. You
-know, you've got Johnny who can look at a video, he can play a video game,
-he can do graffiti all over your walls, he can take your car apart, and he
-can do all sorts of other things. He just can't read your text. So Johnny
-comes to school and you say, "Johnny, you're illiterate. Nothing you can do
-matters." Well, Johnny then has two choices: He can dismiss you or he [can]
-dismiss himself. If his ego is healthy at all, he's going to dismiss
-you. [But i]nstead, if you say, "Well, with all these things that you can
-do, let's talk about this issue. Play for me music that you think reflects
-that, or show me images that you think reflect that, or draw for me
-something that reflects that." Not by giving a kid a video camera and
-. . . saying, "Let's go have fun with the video camera and make a little
-movie." But instead, really help you take these elements that you
-understand, that are your language, and construct meaning about the
-topic. . . .
-</p><p>
-That empowers enormously. And then what happens, of course, is eventually,
-as it has happened in all these classes, they bump up against the fact, "I
-need to explain this and I really need to write something." And as one of
-the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8
-times, till they got it right.
-</p><p>
-
-Because they needed to. There was a reason for doing it. They needed to say
-something, as opposed to just jumping through your hoops. They actually
-needed to use a language that they didn't speak very well. But they had come
-to understand that they had a lot of power with this language."
-</p></blockquote></div><p>
-When two planes crashed into the World Trade Center, another into the
-Pentagon, and a fourth into a Pennsylvania field, all media around the world
-shifted to this news. Every moment of just about every day for that week,
-and for weeks after, television in particular, and media generally, retold
-the story of the events we had just witnessed. The telling was a retelling,
-because we had seen the events that were described. The genius of this awful
-act of terrorism was that the delayed second attack was perfectly timed to
-assure that the whole world would be watching.
-</p><p>
-These retellings had an increasingly familiar feel. There was music scored
-for the intermissions, and fancy graphics that flashed across the
-screen. There was a formula to interviews. There was "balance," and
-seriousness. This was news choreographed in the way we have increasingly
-come to expect it, "news as entertainment," even if the entertainment is
-tragedy.
-</p><a class="indexterm" name="id2753813"></a><a class="indexterm" name="id2753818"></a><p>
-But in addition to this produced news about the "tragedy of September 11,"
-those of us tied to the Internet came to see a very different production as
-well. The Internet was filled with accounts of the same events. Yet these
-Internet accounts had a very different flavor. Some people constructed photo
-pages that captured images from around the world and presented them as slide
-shows with text. Some offered open letters. There were sound
-recordings. There was anger and frustration. There were attempts to provide
-context. There was, in short, an extraordinary worldwide barn raising, in
-the sense Mike Godwin uses the term in his book <em class="citetitle">Cyber
-Rights</em>, around a news event that had captured the attention of
-the world. There was ABC and CBS, but there was also the Internet.
-</p><p>
-
-I don't mean simply to praise the Internet—though I do think the
-people who supported this form of speech should be praised. I mean instead
-to point to a significance in this form of speech. For like a Kodak, the
-Internet enables people to capture images. And like in a movie by a student
-on the "Just Think!" bus, the visual images could be mixed with sound or
-text.
-</p><p>
-But unlike any technology for simply capturing images, the Internet allows
-these creations to be shared with an extraordinary number of people,
-practically instantaneously. This is something new in our
-tradition—not just that culture can be captured mechanically, and
-obviously not just that events are commented upon critically, but that this
-mix of captured images, sound, and commentary can be widely spread
-practically instantaneously.
-</p><p>
-September 11 was not an aberration. It was a beginning. Around the same
-time, a form of communication that has grown dramatically was just beginning
-to come into public consciousness: the Web-log, or blog. The blog is a kind
-of public diary, and within some cultures, such as in Japan, it functions
-very much like a diary. In those cultures, it records private facts in a
-public way—it's a kind of electronic <em class="citetitle">Jerry
-Springer</em>, available anywhere in the world.
-</p><p>
-But in the United States, blogs have taken on a very different character.
-There are some who use the space simply to talk about their private
-life. But there are many who use the space to engage in public
-discourse. Discussing matters of public import, criticizing others who are
-mistaken in their views, criticizing politicians about the decisions they
-make, offering solutions to problems we all see: blogs create the sense of a
-virtual public meeting, but one in which we don't all hope to be there at
-the same time and in which conversations are not necessarily linked. The
-best of the blog entries are relatively short; they point directly to words
-used by others, criticizing with or adding to them. They are arguably the
-most important form of unchoreographed public discourse that we have.
-</p><p>
-
-That's a strong statement. Yet it says as much about our democracy as it
-does about blogs. This is the part of America that is most difficult for
-those of us who love America to accept: Our democracy has atrophied. Of
-course we have elections, and most of the time the courts allow those
-elections to count. A relatively small number of people vote in those
-elections. The cycle of these elections has become totally professionalized
-and routinized. Most of us think this is democracy.
-</p><p>
-But democracy has never just been about elections. Democracy means rule by
-the people, but rule means something more than mere elections. In our
-tradition, it also means control through reasoned discourse. This was the
-idea that captured the imagination of Alexis de Tocqueville, the
-nineteenth-century French lawyer who wrote the most important account of
-early "Democracy in America." It wasn't popular elections that fascinated
-him—it was the jury, an institution that gave ordinary people the
-right to choose life or death for other citizens. And most fascinating for
-him was that the jury didn't just vote about the outcome they would
-impose. They deliberated. Members argued about the "right" result; they
-tried to persuade each other of the "right" result, and in criminal cases at
-least, they had to agree upon a unanimous result for the process to come to
-an end.<sup>[<a name="id2753860" href="#ftn.id2753860" class="footnote">40</a>]</sup>
-</p><p>
-Yet even this institution flags in American life today. And in its place,
-there is no systematic effort to enable citizen deliberation. Some are
-pushing to create just such an institution.<sup>[<a name="id2753946" href="#ftn.id2753946" class="footnote">41</a>]</sup> And in some towns in New England, something close to deliberation
-remains. But for most of us for most of the time, there is no time or place
-for "democratic deliberation" to occur.
-</p><p>
-More bizarrely, there is generally not even permission for it to occur. We,
-the most powerful democracy in the world, have developed a strong norm
-against talking about politics. It's fine to talk about politics with people
-you agree with. But it is rude to argue about politics with people you
-disagree with. Political discourse becomes isolated, and isolated discourse
-becomes more extreme.<sup>[<a name="id2753977" href="#ftn.id2753977" class="footnote">42</a>]</sup> We say what our
-friends want to hear, and hear very little beyond what our friends say.
-</p><p>
-
-Enter the blog. The blog's very architecture solves one part of this
-problem. People post when they want to post, and people read when they want
-to read. The most difficult time is synchronous time. Technologies that
-enable asynchronous communication, such as e-mail, increase the opportunity
-for communication. Blogs allow for public discourse without the public ever
-needing to gather in a single public place.
-</p><p>
-But beyond architecture, blogs also have solved the problem of
-norms. There's no norm (yet) in blog space not to talk about politics.
-Indeed, the space is filled with political speech, on both the right and the
-left. Some of the most popular sites are conservative or libertarian, but
-there are many of all political stripes. And even blogs that are not
-political cover political issues when the occasion merits.
-</p><p>
-The significance of these blogs is tiny now, though not so tiny. The name
-Howard Dean may well have faded from the 2004 presidential race but for
-blogs. Yet even if the number of readers is small, the reading is having an
-effect. <a class="indexterm" name="id2754020"></a>
-</p><p>
-One direct effect is on stories that had a different life cycle in the
-mainstream media. The Trent Lott affair is an example. When Lott "misspoke"
-at a party for Senator Strom Thurmond, essentially praising Thurmond's
-segregationist policies, he calculated correctly that this story would
-disappear from the mainstream press within forty-eight hours. It did. But he
-didn't calculate its life cycle in blog space. The bloggers kept researching
-the story. Over time, more and more instances of the same "misspeaking"
-emerged. Finally, the story broke back into the mainstream press. In the
-end, Lott was forced to resign as senate majority leader.<sup>[<a name="id2754040" href="#ftn.id2754040" class="footnote">43</a>]</sup> <a class="indexterm" name="id2754048"></a>
-</p><p>
-This different cycle is possible because the same commercial pressures don't
-exist with blogs as with other ventures. Television and newspapers are
-commercial entities. They must work to keep attention. If they lose
-readers, they lose revenue. Like sharks, they must move on.
-</p><p>
-But bloggers don't have a similar constraint. They can obsess, they can
-focus, they can get serious. If a particular blogger writes a particularly
-interesting story, more and more people link to that story. And as the
-number of links to a particular story increases, it rises in the ranks of
-stories. People read what is popular; what is popular has been selected by a
-very democratic process of peer-generated rankings.
-</p><a class="indexterm" name="idxwinerdave"></a><p>
-
-There's a second way, as well, in which blogs have a different cycle from
-the mainstream press. As Dave Winer, one of the fathers of this movement and
-a software author for many decades, told me, another difference is the
-absence of a financial "conflict of interest." "I think you have to take the
-conflict of interest" out of journalism, Winer told me. "An amateur
-journalist simply doesn't have a conflict of interest, or the conflict of
-interest is so easily disclosed that you know you can sort of get it out of
-the way."
-</p><a class="indexterm" name="id2754100"></a><p>
-These conflicts become more important as media becomes more concentrated
-(more on this below). A concentrated media can hide more from the public
-than an unconcentrated media can—as CNN admitted it did after the Iraq
-war because it was afraid of the consequences to its own
-employees.<sup>[<a name="id2753920" href="#ftn.id2753920" class="footnote">44</a>]</sup> It also needs to sustain a
-more coherent account. (In the middle of the Iraq war, I read a post on the
-Internet from someone who was at that time listening to a satellite uplink
-with a reporter in Iraq. The New York headquarters was telling the reporter
-over and over that her account of the war was too bleak: She needed to offer
-a more optimistic story. When she told New York that wasn't warranted, they
-told her <span class="emphasis"><em>that</em></span> they were writing "the story.")
-</p><p> Blog space gives amateurs a way to enter the debate—"amateur" not in
-the sense of inexperienced, but in the sense of an Olympic athlete, meaning
-not paid by anyone to give their reports. It allows for a much broader range
-of input into a story, as reporting on the Columbia disaster revealed, when
-hundreds from across the southwest United States turned to the Internet to
-retell what they had seen.<sup>[<a name="id2754135" href="#ftn.id2754135" class="footnote">45</a>]</sup> And it
-drives readers to read across the range of accounts and "triangulate," as
-Winer puts it, the truth. Blogs, Winer says, are "communicating directly
-with our constituency, and the middle man is out of it"—with all the
-benefits, and costs, that might entail.
-</p><p>
-
-Winer is optimistic about the future of journalism infected with
-blogs. "It's going to become an essential skill," Winer predicts, for public
-figures and increasingly for private figures as well. It's not clear that
-"journalism" is happy about this—some journalists have been told to
-curtail their blogging.<sup>[<a name="id2754166" href="#ftn.id2754166" class="footnote">46</a>]</sup> But it is clear
-that we are still in transition. "A lot of what we are doing now is warm-up
-exercises," Winer told me. There is a lot that must mature before this
-space has its mature effect. And as the inclusion of content in this space
-is the least infringing use of the Internet (meaning infringing on
-copyright), Winer said, "we will be the last thing that gets shut down."
-</p><p>
-This speech affects democracy. Winer thinks that happens because "you don't
-have to work for somebody who controls, [for] a gatekeeper." That is
-true. But it affects democracy in another way as well. As more and more
-citizens express what they think, and defend it in writing, that will change
-the way people understand public issues. It is easy to be wrong and
-misguided in your head. It is harder when the product of your mind can be
-criticized by others. Of course, it is a rare human who admits that he has
-been persuaded that he is wrong. But it is even rarer for a human to ignore
-when he has been proven wrong. The writing of ideas, arguments, and
-criticism improves democracy. Today there are probably a couple of million
-blogs where such writing happens. When there are ten million, there will be
-something extraordinary to report.
-</p><a class="indexterm" name="id2754246"></a><a class="indexterm" name="idxbrownjohnseely"></a><p>
-John Seely Brown is the chief scientist of the Xerox Corporation. His work,
-as his Web site describes it, is "human learning and . . . the creation of
-knowledge ecologies for creating . . . innovation."
-</p><p>
-Brown thus looks at these technologies of digital creativity a bit
-differently from the perspectives I've sketched so far. I'm sure he would be
-excited about any technology that might improve democracy. But his real
-excitement comes from how these technologies affect learning.
-</p><p>
-
-As Brown believes, we learn by tinkering. When "a lot of us grew up," he
-explains, that tinkering was done "on motorcycle engines, lawnmower engines,
-automobiles, radios, and so on." But digital technologies enable a different
-kind of tinkering—with abstract ideas though in concrete form. The
-kids at Just Think! not only think about how a commercial portrays a
-politician; using digital technology, they can take the commercial apart and
-manipulate it, tinker with it to see how it does what it does. Digital
-technologies launch a kind of bricolage, or "free collage," as Brown calls
-it. Many get to add to or transform the tinkering of many others.
-</p><p>
-The best large-scale example of this kind of tinkering so far is free
-software or open-source software (FS/OSS). FS/OSS is software whose source
-code is shared. Anyone can download the technology that makes a FS/OSS
-program run. And anyone eager to learn how a particular bit of FS/OSS
-technology works can tinker with the code.
-</p><p>
-This opportunity creates a "completely new kind of learning platform," as
-Brown describes. "As soon as you start doing that, you . . . unleash a free
-collage on the community, so that other people can start looking at your
-code, tinkering with it, trying it out, seeing if they can improve it." Each
-effort is a kind of apprenticeship. "Open source becomes a major
-apprenticeship platform."
-</p><p>
-In this process, "the concrete things you tinker with are abstract. They
-are code." Kids are "shifting to the ability to tinker in the abstract, and
-this tinkering is no longer an isolated activity that you're doing in your
-garage. You are tinkering with a community platform. . . . You are
-tinkering with other people's stuff. The more you tinker the more you
-improve." The more you improve, the more you learn.
-</p><p>
-This same thing happens with content, too. And it happens in the same
-collaborative way when that content is part of the Web. As Brown puts it,
-"the Web [is] the first medium that truly honors multiple forms of
-intelligence." Earlier technologies, such as the typewriter or word
-processors, helped amplify text. But the Web amplifies much more than
-text. "The Web . . . says if you are musical, if you are artistic, if you
-are visual, if you are interested in film . . . [then] there is a lot you
-can start to do on this medium. [It] can now amplify and honor these
-multiple forms of intelligence."
-</p><a class="indexterm" name="id2754340"></a><p>
-
-Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just
-Think! teach: that this tinkering with culture teaches as well as
-creates. It develops talents differently, and it builds a different kind of
-recognition.
-</p><p>
-Yet the freedom to tinker with these objects is not guaranteed. Indeed, as
-we'll see through the course of this book, that freedom is increasingly
-highly contested. While there's no doubt that your father had the right to
-tinker with the car engine, there's great doubt that your child will have
-the right to tinker with the images she finds all around. The law and,
-increasingly, technology interfere with a freedom that technology, and
-curiosity, would otherwise ensure.
-</p><p>
-These restrictions have become the focus of researchers and scholars.
-Professor Ed Felten of Princeton (whom we'll see more of in chapter 10) has
-developed a powerful argument in favor of the "right to tinker" as it
-applies to computer science and to knowledge in general.<sup>[<a name="id2754373" href="#ftn.id2754373" class="footnote">47</a>]</sup> But Brown's concern is earlier, or younger, or more
-fundamental. It is about the learning that kids can do, or can't do, because
-of the law.
-</p><p>
-"This is where education in the twenty-first century is going," Brown
-explains. We need to "understand how kids who grow up digital think and want
-to learn."
-</p><p>
-"Yet," as Brown continued, and as the balance of this book will evince, "we
-are building a legal system that completely suppresses the natural
-tendencies of today's digital kids. . . . We're building an architecture
-that unleashes 60 percent of the brain [and] a legal system that closes down
-that part of the brain."
-</p><a class="indexterm" name="id2754404"></a><p>
-We're building a technology that takes the magic of Kodak, mixes moving
-images and sound, and adds a space for commentary and an opportunity to
-spread that creativity everywhere. But we're building the law to close down
-that technology.
-</p><p>
-"No way to run a culture," as Brewster Kahle, whom we'll meet in chapter 9,
-quipped to me in a rare moment of despondence.
-</p></div><div class="sect1" title="Kapittel tre: Kataloger"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="catalogs"></a>Kapittel tre: Kataloger</h2></div></div></div><p>
-Høsten 2001, ble Jesse Jordan fra Oceanside, New York, innrullert som
-førsteårsstudent ved Rensselaer Polytechnic Institute, i Troy, New York.
-Hans studieprogram ved RPI var informasjonsteknologi. Selv om han ikke var
-en programmerer, bestemte Jesse seg i oktober å begynne å fikle med en
-søkemotorteknologi som var tilgjengelig på RPI-nettverket.
-</p><p>
-RPI is one of America's foremost technological research institutions. It
-offers degrees in fields ranging from architecture and engineering to
-information sciences. More than 65 percent of its five thousand
-undergraduates finished in the top 10 percent of their high school
-class. The school is thus a perfect mix of talent and experience to imagine
-and then build, a generation for the network age.
-</p><p>
-RPI's computer network links students, faculty, and administration to one
-another. It also links RPI to the Internet. Not everything available on the
-RPI network is available on the Internet. But the network is designed to
-enable students to get access to the Internet, as well as more intimate
-access to other members of the RPI community.
-</p><p>
-
-Search engines are a measure of a network's intimacy. Google brought the
-Internet much closer to all of us by fantastically improving the quality of
-search on the network. Specialty search engines can do this even better. The
-idea of "intranet" search engines, search engines that search within the
-network of a particular institution, is to provide users of that institution
-with better access to material from that institution. Businesses do this
-all the time, enabling employees to have access to material that people
-outside the business can't get. Universities do it as well.
-</p><p>
-These engines are enabled by the network technology itself. Microsoft, for
-example, has a network file system that makes it very easy for search
-engines tuned to that network to query the system for information about the
-publicly (within that network) available content. Jesse's search engine was
-built to take advantage of this technology. It used Microsoft's network file
-system to build an index of all the files available within the RPI network.
-</p><p>
-Jesse's wasn't the first search engine built for the RPI network. Indeed,
-his engine was a simple modification of engines that others had built. His
-single most important improvement over those engines was to fix a bug within
-the Microsoft file-sharing system that could cause a user's computer to
-crash. With the engines that existed before, if you tried to access a file
-through a Windows browser that was on a computer that was off-line, your
-computer could crash. Jesse modified the system a bit to fix that problem,
-by adding a button that a user could click to see if the machine holding the
-file was still on-line.
-</p><p>
-Jesse's engine went on-line in late October. Over the following six months,
-he continued to tweak it to improve its functionality. By March, the system
-was functioning quite well. Jesse had more than one million files in his
-directory, including every type of content that might be on users'
-computers.
-</p><p>
-
-Thus the index his search engine produced included pictures, which students
-could use to put on their own Web sites; copies of notes or research; copies
-of information pamphlets; movie clips that students might have created;
-university brochures—basically anything that users of the RPI network
-made available in a public folder of their computer.
-</p><p>
-But the index also included music files. In fact, one quarter of the files
-that Jesse's search engine listed were music files. But that means, of
-course, that three quarters were not, and—so that this point is
-absolutely clear—Jesse did nothing to induce people to put music files
-in their public folders. He did nothing to target the search engine to these
-files. He was a kid tinkering with a Google-like technology at a university
-where he was studying information science, and hence, tinkering was the
-aim. Unlike Google, or Microsoft, for that matter, he made no money from
-this tinkering; he was not connected to any business that would make any
-money from this experiment. He was a kid tinkering with technology in an
-environment where tinkering with technology was precisely what he was
-supposed to do.
-</p><p>
-On April 3, 2003, Jesse was contacted by the dean of students at RPI. The
-dean informed Jesse that the Recording Industry Association of America, the
-RIAA, would be filing a lawsuit against him and three other students whom he
-didn't even know, two of them at other universities. A few hours later,
-Jesse was served with papers from the suit. As he read these papers and
-watched the news reports about them, he was increasingly astonished.
-</p><p>
-"It was absurd," he told me. "I don't think I did anything wrong. . . . I
-don't think there's anything wrong with the search engine that I ran or
-. . . what I had done to it. I mean, I hadn't modified it in any way that
-promoted or enhanced the work of pirates. I just modified the search engine
-in a way that would make it easier to use"—again, a <span class="emphasis"><em>search
-engine</em></span>, which Jesse had not himself built, using the Windows
-filesharing system, which Jesse had not himself built, to enable members of
-the RPI community to get access to content, which Jesse had not himself
-created or posted, and the vast majority of which had nothing to do with
-music.
-</p><p>
-
-But the RIAA branded Jesse a pirate. They claimed he operated a network and
-had therefore "willfully" violated copyright laws. They demanded that he pay
-them the damages for his wrong. For cases of "willful infringement," the
-Copyright Act specifies something lawyers call "statutory damages." These
-damages permit a copyright owner to claim $150,000 per infringement. As the
-RIAA alleged more than one hundred specific copyright infringements, they
-therefore demanded that Jesse pay them at least $15,000,000.
-</p><p>
-Similar lawsuits were brought against three other students: one other
-student at RPI, one at Michigan Technical University, and one at
-Princeton. Their situations were similar to Jesse's. Though each case was
-different in detail, the bottom line in each was exactly the same: huge
-demands for "damages" that the RIAA claimed it was entitled to. If you
-added up the claims, these four lawsuits were asking courts in the United
-States to award the plaintiffs close to $100
-<span class="emphasis"><em>billion</em></span>—six times the <span class="emphasis"><em>total</em></span>
-profit of the film industry in 2001.<sup>[<a name="id2754605" href="#ftn.id2754605" class="footnote">48</a>]</sup>
-</p><p>
-Jesse called his parents. They were supportive but a bit frightened. An
-uncle was a lawyer. He began negotiations with the RIAA. They demanded to
-know how much money Jesse had. Jesse had saved $12,000 from summer jobs and
-other employment. They demanded $12,000 to dismiss the case.
-</p><p>
-The RIAA wanted Jesse to admit to doing something wrong. He refused. They
-wanted him to agree to an injunction that would essentially make it
-impossible for him to work in many fields of technology for the rest of his
-life. He refused. They made him understand that this process of being sued
-was not going to be pleasant. (As Jesse's father recounted to me, the chief
-lawyer on the case, Matt Oppenheimer, told Jesse, "You don't want to pay
-another visit to a dentist like me.") And throughout, the RIAA insisted it
-would not settle the case until it took every penny Jesse had saved.
-</p><p>
-
-Jesse's family was outraged at these claims. They wanted to fight. But
-Jesse's uncle worked to educate the family about the nature of the American
-legal system. Jesse could fight the RIAA. He might even win. But the cost of
-fighting a lawsuit like this, Jesse was told, would be at least $250,000. If
-he won, he would not recover that money. If he won, he would have a piece of
-paper saying he had won, and a piece of paper saying he and his family were
-bankrupt.
-</p><p>
-Så Jesse hadde et mafia-lignende valg: $250,000 og en sjanse til å vinne,
-eller $12.000 og et forlik.
-</p><p>
-The recording industry insists this is a matter of law and morality. Let's
-put the law aside for a moment and think about the morality. Where is the
-morality in a lawsuit like this? What is the virtue in scapegoatism? The
-RIAA is an extraordinarily powerful lobby. The president of the RIAA is
-reported to make more than $1 million a year. Artists, on the other hand,
-are not well paid. The average recording artist makes $45,900.<sup>[<a name="id2754670" href="#ftn.id2754670" class="footnote">49</a>]</sup> There are plenty of ways for the RIAA to affect and
-direct policy. So where is the morality in taking money from a student for
-running a search engine?<sup>[<a name="id2754685" href="#ftn.id2754685" class="footnote">50</a>]</sup>
-</p><p>
-23. juni overførte Jesse alle sine oppsparte midler til advokaten som jobbet
-for RIA. Saken mot ham ble trukket. Og med dette, ble unggutten som hadde
-fiklet med en datamaskin og blitt saksøkt for 15 millioner dollar en
-aktivist:
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-I was definitely not an activist [before]. I never really meant to be an
-activist. . . . [But] I've been pushed into this. In no way did I ever
-foresee anything like this, but I think it's just completely absurd what the
-RIAA has done.
-</p></blockquote></div><p>
-Jesse's parents betray a certain pride in their reluctant activist. As his
-father told me, Jesse "considers himself very conservative, and so do
-I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
-pick on him. But he wants to let people know that they're sending the wrong
-message. And he wants to correct the record."
-</p></div><div class="sect1" title='Kapittel fire: "Pirater"'><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="pirates"></a>Kapittel fire: "Pirater"</h2></div></div></div><p>
-If "piracy" means using the creative property of others without their
-permission—if "if value, then right" is true—then the history of
-the content industry is a history of piracy. Every important sector of "big
-media" today—film, records, radio, and cable TV—was born of a
-kind of piracy so defined. The consistent story is how last generation's
-pirates join this generation's country club—until now.
-</p><div class="sect2" title="Film"><div class="titlepage"><div><div><h3 class="title"><a name="film"></a>Film</h3></div></div></div><p>
-
-The film industry of Hollywood was built by fleeing pirates.<sup>[<a name="id2754762" href="#ftn.id2754762" class="footnote">51</a>]</sup> Creators and directors migrated from the East Coast
-to California in the early twentieth century in part to escape controls that
-patents granted the inventor of filmmaking, Thomas Edison. These controls
-were exercised through a monopoly "trust," the Motion Pictures Patents
-Company, and were based on Thomas Edison's creative property—patents.
-Edison formed the MPPC to exercise the rights this creative property gave
-him, and the MPPC was serious about the control it demanded.
-</p><p>
-As one commentator tells one part of the story,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-A January 1909 deadline was set for all companies to comply with the
-license. By February, unlicensed outlaws, who referred to themselves as
-independents protested the trust and carried on business without submitting
-to the Edison monopoly. In the summer of 1909 the independent movement was
-in full-swing, with producers and theater owners using illegal equipment and
-imported film stock to create their own underground market.
-</p><p>
-With the country experiencing a tremendous expansion in the number of
-nickelodeons, the Patents Company reacted to the independent movement by
-forming a strong-arm subsidiary known as the General Film Company to block
-the entry of non-licensed independents. With coercive tactics that have
-become legendary, General Film confiscated unlicensed equipment,
-discontinued product supply to theaters which showed unlicensed films, and
-effectively monopolized distribution with the acquisition of all U.S. film
-exchanges, except for the one owned by the independent William Fox who
-defied the Trust even after his license was revoked.<sup>[<a name="id2754820" href="#ftn.id2754820" class="footnote">52</a>]</sup> <a class="indexterm" name="id2754846"></a> <a class="indexterm" name="id2754852"></a>
-</p></blockquote></div><p>
-The Napsters of those days, the "independents," were companies like Fox. And
-no less than today, these independents were vigorously resisted. "Shooting
-was disrupted by machinery stolen, and `accidents' resulting in loss of
-negatives, equipment, buildings and sometimes life and limb frequently
-occurred."<sup>[<a name="id2754873" href="#ftn.id2754873" class="footnote">53</a>]</sup> That led the independents to
-flee the East Coast. California was remote enough from Edison's reach that
-filmmakers there could pirate his inventions without fear of the law. And
-the leaders of Hollywood filmmaking, Fox most prominently, did just that.
-</p><p>
-
-Of course, California grew quickly, and the effective enforcement of federal
-law eventually spread west. But because patents grant the patent holder a
-truly "limited" monopoly (just seventeen years at that time), by the time
-enough federal marshals appeared, the patents had expired. A new industry
-had been born, in part from the piracy of Edison's creative property.
-</p></div><div class="sect2" title="Innspilt musikk"><div class="titlepage"><div><div><h3 class="title"><a name="recordedmusic"></a>Innspilt musikk</h3></div></div></div><p>
-Plateindustrien ble født av en annen type piratvirksomhet, dog for å forstå
-hvordan krever at en setter seg inn i detaljer om hvordan loven regulerer
-musikk.
-</p><p>
-At the time that Edison and Henri Fourneaux invented machines for
-reproducing music (Edison the phonograph, Fourneaux the player piano), the
-law gave composers the exclusive right to control copies of their music and
-the exclusive right to control public performances of their music. In other
-words, in 1900, if I wanted a copy of Phil Russel's 1899 hit "Happy Mose,"
-the law said I would have to pay for the right to get a copy of the musical
-score, and I would also have to pay for the right to perform it publicly.
-</p><a class="indexterm" name="id2754936"></a><p>
-But what if I wanted to record "Happy Mose," using Edison's phonograph or
-Fourneaux's player piano? Here the law stumbled. It was clear enough that I
-would have to buy any copy of the musical score that I performed in making
-this recording. And it was clear enough that I would have to pay for any
-public performance of the work I was recording. But it wasn't totally clear
-that I would have to pay for a "public performance" if I recorded the song
-in my own house (even today, you don't owe the Beatles anything if you sing
-their songs in the shower), or if I recorded the song from memory (copies in
-your brain are not—yet— regulated by copyright law). So if I
-simply sang the song into a recording device in the privacy of my own home,
-it wasn't clear that I owed the composer anything. And more importantly, it
-wasn't clear whether I owed the composer anything if I then made copies of
-those recordings. Because of this gap in the law, then, I could effectively
-pirate someone else's song without paying its composer anything.
-</p><p>
-
-The composers (and publishers) were none too happy about this capacity to
-pirate. As South Dakota senator Alfred Kittredge put it,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-Imagine the injustice of the thing. A composer writes a song or an opera. A
-publisher buys at great expense the rights to the same and copyrights
-it. Along come the phonographic companies and companies who cut music rolls
-and deliberately steal the work of the brain of the composer and publisher
-without any regard for [their] rights.<sup>[<a name="id2754982" href="#ftn.id2754982" class="footnote">54</a>]</sup>
-</p></blockquote></div><p>
-The innovators who developed the technology to record other people's works
-were "sponging upon the toil, the work, the talent, and genius of American
-composers,"<sup>[<a name="id2755005" href="#ftn.id2755005" class="footnote">55</a>]</sup> and the "music publishing
-industry" was thereby "at the complete mercy of this one
-pirate."<sup>[<a name="id2755016" href="#ftn.id2755016" class="footnote">56</a>]</sup> As John Philip Sousa put it,
-in as direct a way as possible, "When they make money out of my pieces, I
-want a share of it."<sup>[<a name="id2755027" href="#ftn.id2755027" class="footnote">57</a>]</sup>
-</p><p>
-These arguments have familiar echoes in the wars of our day. So, too, do the
-arguments on the other side. The innovators who developed the player piano
-argued that "it is perfectly demonstrable that the introduction of automatic
-music players has not deprived any composer of anything he had before their
-introduction." Rather, the machines increased the sales of sheet
-music.<sup>[<a name="id2755044" href="#ftn.id2755044" class="footnote">58</a>]</sup> In any case, the innovators
-argued, the job of Congress was "to consider first the interest of [the
-public], whom they represent, and whose servants they are." "All talk about
-`theft,'" the general counsel of the American Graphophone Company wrote, "is
-the merest claptrap, for there exists no property in ideas musical, literary
-or artistic, except as defined by statute."<sup>[<a name="id2755050" href="#ftn.id2755050" class="footnote">59</a>]</sup>
-</p><p>
-
-The law soon resolved this battle in favor of the composer
-<span class="emphasis"><em>and</em></span> the recording artist. Congress amended the law to
-make sure that composers would be paid for the "mechanical reproductions" of
-their music. But rather than simply granting the composer complete control
-over the right to make mechanical reproductions, Congress gave recording
-artists a right to record the music, at a price set by Congress, once the
-composer allowed it to be recorded once. This is the part of copyright law
-that makes cover songs possible. Once a composer authorizes a recording of
-his song, others are free to record the same song, so long as they pay the
-original composer a fee set by the law.
-</p><p>
-American law ordinarily calls this a "compulsory license," but I will refer
-to it as a "statutory license." A statutory license is a license whose key
-terms are set by law. After Congress's amendment of the Copyright Act in
-1909, record companies were free to distribute copies of recordings so long
-as they paid the composer (or copyright holder) the fee set by the statute.
-</p><p>
-This is an exception within the law of copyright. When John Grisham writes a
-novel, a publisher is free to publish that novel only if Grisham gives the
-publisher permission. Grisham, in turn, is free to charge whatever he wants
-for that permission. The price to publish Grisham is thus set by Grisham,
-and copyright law ordinarily says you have no permission to use Grisham's
-work except with permission of Grisham. <a class="indexterm" name="id2755110"></a>
-</p><p>
-But the law governing recordings gives recording artists less. And thus, in
-effect, the law <span class="emphasis"><em>subsidizes</em></span> the recording industry
-through a kind of piracy—by giving recording artists a weaker right
-than it otherwise gives creative authors. The Beatles have less control over
-their creative work than Grisham does. And the beneficiaries of this less
-control are the recording industry and the public. The recording industry
-gets something of value for less than it otherwise would pay; the public
-gets access to a much wider range of musical creativity. Indeed, Congress
-was quite explicit about its reasons for granting this right. Its fear was
-the monopoly power of rights holders, and that that power would stifle
-follow-on creativity.<sup>[<a name="id2754786" href="#ftn.id2754786" class="footnote">60</a>]</sup> <a class="indexterm" name="id2755161"></a>
-</p><p>
-While the recording industry has been quite coy about this recently,
-historically it has been quite a supporter of the statutory license for
-records. As a 1967 report from the House Committee on the Judiciary relates,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-the record producers argued vigorously that the compulsory license system
-must be retained. They asserted that the record industry is a
-half-billion-dollar business of great economic importance in the United
-States and throughout the world; records today are the principal means of
-disseminating music, and this creates special problems, since performers
-need unhampered access to musical material on nondiscriminatory
-terms. Historically, the record producers pointed out, there were no
-recording rights before 1909 and the 1909 statute adopted the compulsory
-license as a deliberate anti-monopoly condition on the grant of these
-rights. They argue that the result has been an outpouring of recorded music,
-with the public being given lower prices, improved quality, and a greater
-choice.<sup>[<a name="id2755193" href="#ftn.id2755193" class="footnote">61</a>]</sup>
-</p></blockquote></div><p>
-By limiting the rights musicians have, by partially pirating their creative
-work, the record producers, and the public, benefit.
-</p></div><div class="sect2" title="Radio"><div class="titlepage"><div><div><h3 class="title"><a name="radio"></a>Radio</h3></div></div></div><p>
-Radio was also born of piracy.
-</p><p>
-When a radio station plays a record on the air, that constitutes a "public
-performance" of the composer's work.<sup>[<a name="id2755230" href="#ftn.id2755230" class="footnote">62</a>]</sup> As
-I described above, the law gives the composer (or copyright holder) an
-exclusive right to public performances of his work. The radio station thus
-owes the composer money for that performance.
-</p><p>
-
-But when the radio station plays a record, it is not only performing a copy
-of the <span class="emphasis"><em>composer's</em></span> work. The radio station is also
-performing a copy of the <span class="emphasis"><em>recording artist's</em></span> work. It's
-one thing to have "Happy Birthday" sung on the radio by the local children's
-choir; it's quite another to have it sung by the Rolling Stones or Lyle
-Lovett. The recording artist is adding to the value of the composition
-performed on the radio station. And if the law were perfectly consistent,
-the radio station would have to pay the recording artist for his work, just
-as it pays the composer of the music for his work. <a class="indexterm" name="id2755296"></a>
-
-
-</p><p>
-But it doesn't. Under the law governing radio performances, the radio
-station does not have to pay the recording artist. The radio station need
-only pay the composer. The radio station thus gets a bit of something for
-nothing. It gets to perform the recording artist's work for free, even if it
-must pay the composer something for the privilege of playing the song.
-</p><a class="indexterm" name="idxmadonna"></a><p>
-This difference can be huge. Imagine you compose a piece of music. Imagine
-it is your first. You own the exclusive right to authorize public
-performances of that music. So if Madonna wants to sing your song in public,
-she has to get your permission.
-</p><p>
-Imagine she does sing your song, and imagine she likes it a lot. She then
-decides to make a recording of your song, and it becomes a top hit. Under
-our law, every time a radio station plays your song, you get some money. But
-Madonna gets nothing, save the indirect effect on the sale of her CDs. The
-public performance of her recording is not a "protected" right. The radio
-station thus gets to <span class="emphasis"><em>pirate</em></span> the value of Madonna's work
-without paying her anything.
-</p><a class="indexterm" name="id2755347"></a><p>
-No doubt, one might argue that, on balance, the recording artists
-benefit. On average, the promotion they get is worth more than the
-performance rights they give up. Maybe. But even if so, the law ordinarily
-gives the creator the right to make this choice. By making the choice for
-him or her, the law gives the radio station the right to take something for
-nothing.
-</p></div><div class="sect2" title="Kabel-TV"><div class="titlepage"><div><div><h3 class="title"><a name="cabletv"></a>Kabel-TV</h3></div></div></div><p>
-
-Cable TV was also born of a kind of piracy.
-</p><p>
-
-When cable entrepreneurs first started wiring communities with cable
-television in 1948, most refused to pay broadcasters for the content that
-they echoed to their customers. Even when the cable companies started
-selling access to television broadcasts, they refused to pay for what they
-sold. Cable companies were thus Napsterizing broadcasters' content, but more
-egregiously than anything Napster ever did— Napster never charged for
-the content it enabled others to give away.
-</p><a class="indexterm" name="id2755381"></a><a class="indexterm" name="id2755397"></a><p>
-Broadcasters and copyright owners were quick to attack this theft. Rosel
-Hyde, chairman of the FCC, viewed the practice as a kind of "unfair and
-potentially destructive competition."<sup>[<a name="id2755409" href="#ftn.id2755409" class="footnote">63</a>]</sup>
-There may have been a "public interest" in spreading the reach of cable TV,
-but as Douglas Anello, general counsel to the National Association of
-Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
-interest dictate that you use somebody else's property?"<sup>[<a name="id2755425" href="#ftn.id2755425" class="footnote">64</a>]</sup> As another broadcaster put it,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-The extraordinary thing about the CATV business is that it is the only
-business I know of where the product that is being sold is not paid
-for.<sup>[<a name="id2755442" href="#ftn.id2755442" class="footnote">65</a>]</sup>
-</p></blockquote></div><p>
-Again, the demand of the copyright holders seemed reasonable enough:
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-All we are asking for is a very simple thing, that people who now take our
-property for nothing pay for it. We are trying to stop piracy and I don't
-think there is any lesser word to describe it. I think there are harsher
-words which would fit it.<sup>[<a name="id2755466" href="#ftn.id2755466" class="footnote">66</a>]</sup>
-</p></blockquote></div><p>
-Disse var "gratispassasjerer", sa presidenten Charlton Heston i Screen
-Actor's Guild, som "tok lønna fra skuespillerne"<sup>[<a name="id2755484" href="#ftn.id2755484" class="footnote">67</a>]</sup>
-</p><p>
-Men igjen, det er en annen side i debatten. Som assisterende justisminister
-Edwin Zimmerman sa det,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-Our point here is that unlike the problem of whether you have any copyright
-protection at all, the problem here is whether copyright holders who are
-already compensated, who already have a monopoly, should be permitted to
-extend that monopoly. . . . The question here is how much compensation they
-should have and how far back they should carry their right to
-compensation.<sup>[<a name="id2755510" href="#ftn.id2755510" class="footnote">68</a>]</sup> <a class="indexterm" name="id2755529"></a>
-</p></blockquote></div><p>
-Opphavsrettinnehaverne tok kabelselskapene til retten. Høyesterett fant to
-ganger at kabelselskaper ikke skyldte opphavsrettinnehaverne noen ting.
-</p><p>
-It took Congress almost thirty years before it resolved the question of
-whether cable companies had to pay for the content they "pirated." In the
-end, Congress resolved this question in the same way that it resolved the
-question about record players and player pianos. Yes, cable companies would
-have to pay for the content that they broadcast; but the price they would
-have to pay was not set by the copyright owner. The price was set by law,
-so that the broadcasters couldn't exercise veto power over the emerging
-technologies of cable. Cable companies thus built their empire in part upon
-a "piracy" of the value created by broadcasters' content.
-</p><p>
-These separate stories sing a common theme. If "piracy" means using value
-from someone else's creative property without permission from that
-creator—as it is increasingly described today<sup>[<a name="id2755516" href="#ftn.id2755516" class="footnote">69</a>]</sup> — then <span class="emphasis"><em>every</em></span> industry
-affected by copyright today is the product and beneficiary of a certain kind
-of piracy. Film, records, radio, cable TV. . . . The list is long and could
-well be expanded. Every generation welcomes the pirates from the last. Every
-generation—until now.
-</p></div></div><div class="sect1" title='Kapittel fem: "Piratvirksomhet"'><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="piracy"></a>Kapittel fem: "Piratvirksomhet"</h2></div></div></div><p>
-There is piracy of copyrighted material. Lots of it. This piracy comes in
-many forms. The most significant is commercial piracy, the unauthorized
-taking of other people's content within a commercial context. Despite the
-many justifications that are offered in its defense, this taking is
-wrong. No one should condone it, and the law should stop it.
-</p><p>
-
-But as well as copy-shop piracy, there is another kind of "taking" that is
-more directly related to the Internet. That taking, too, seems wrong to
-many, and it is wrong much of the time. Before we paint this taking
-"piracy," however, we should understand its nature a bit more. For the harm
-of this taking is significantly more ambiguous than outright copying, and
-the law should account for that ambiguity, as it has so often done in the
-past.
-
-</p><div class="sect2" title="Piracy I"><div class="titlepage"><div><div><h3 class="title"><a name="piracy-i"></a>Piracy I</h3></div></div></div><p>
-All across the world, but especially in Asia and Eastern Europe, there are
-businesses that do nothing but take others people's copyrighted content,
-copy it, and sell it—all without the permission of a copyright
-owner. The recording industry estimates that it loses about $4.6 billion
-every year to physical piracy<sup>[<a name="id2755593" href="#ftn.id2755593" class="footnote">70</a>]</sup> (that
-works out to one in three CDs sold worldwide). The MPAA estimates that it
-loses $3 billion annually worldwide to piracy.
-</p><p>
-This is piracy plain and simple. Nothing in the argument of this book, nor
-in the argument that most people make when talking about the subject of this
-book, should draw into doubt this simple point: This piracy is wrong.
-</p><p>
-Which is not to say that excuses and justifications couldn't be made for
-it. We could, for example, remind ourselves that for the first one hundred
-years of the American Republic, America did not honor foreign copyrights. We
-were born, in this sense, a pirate nation. It might therefore seem
-hypocritical for us to insist so strongly that other developing nations
-treat as wrong what we, for the first hundred years of our existence,
-treated as right.
-</p><p>
-That excuse isn't terribly strong. Technically, our law did not ban the
-taking of foreign works. It explicitly limited itself to American
-works. Thus the American publishers who published foreign works without the
-permission of foreign authors were not violating any rule. The copy shops
-in Asia, by contrast, are violating Asian law. Asian law does protect
-foreign copyrights, and the actions of the copy shops violate that law. So
-the wrong of piracy that they engage in is not just a moral wrong, but a
-legal wrong, and not just an internationally legal wrong, but a locally
-legal wrong as well.
-</p><p>
-
-True, these local rules have, in effect, been imposed upon these
-countries. No country can be part of the world economy and choose not to
-protect copyright internationally. We may have been born a pirate nation,
-but we will not allow any other nation to have a similar childhood.
-</p><p>
-If a country is to be treated as a sovereign, however, then its laws are its
-laws regardless of their source. The international law under which these
-nations live gives them some opportunities to escape the burden of
-intellectual property law.<sup>[<a name="id2755724" href="#ftn.id2755724" class="footnote">71</a>]</sup> In my view,
-more developing nations should take advantage of that opportunity, but when
-they don't, then their laws should be respected. And under the laws of these
-nations, this piracy is wrong.
-</p><p>
-Alternatively, we could try to excuse this piracy by noting that in any
-case, it does no harm to the industry. The Chinese who get access to
-American CDs at 50 cents a copy are not people who would have bought those
-American CDs at $15 a copy. So no one really has any less money than they
-otherwise would have had.<sup>[<a name="id2755783" href="#ftn.id2755783" class="footnote">72</a>]</sup>
-</p><p>
-This is often true (though I have friends who have purchased many thousands
-of pirated DVDs who certainly have enough money to pay for the content they
-have taken), and it does mitigate to some degree the harm caused by such
-taking. Extremists in this debate love to say, "You wouldn't go into Barnes
-& Noble and take a book off of the shelf without paying; why should it
-be any different with on-line music?" The difference is, of course, that
-when you take a book from Barnes & Noble, it has one less book to
-sell. By contrast, when you take an MP3 from a computer network, there is
-not one less CD that can be sold. The physics of piracy of the intangible
-are different from the physics of piracy of the tangible.
-</p><p>
-
-This argument is still very weak. However, although copyright is a property
-right of a very special sort, it <span class="emphasis"><em>is</em></span> a property
-right. Like all property rights, the copyright gives the owner the right to
-decide the terms under which content is shared. If the copyright owner
-doesn't want to sell, she doesn't have to. There are exceptions: important
-statutory licenses that apply to copyrighted content regardless of the wish
-of the copyright owner. Those licenses give people the right to "take"
-copyrighted content whether or not the copyright owner wants to sell. But
-where the law does not give people the right to take content, it is wrong to
-take that content even if the wrong does no harm. If we have a property
-system, and that system is properly balanced to the technology of a time,
-then it is wrong to take property without the permission of a property
-owner. That is exactly what "property" means.
-</p><p>
-Finally, we could try to excuse this piracy with the argument that the
-piracy actually helps the copyright owner. When the Chinese "steal" Windows,
-that makes the Chinese dependent on Microsoft. Microsoft loses the value of
-the software that was taken. But it gains users who are used to life in the
-Microsoft world. Over time, as the nation grows more wealthy, more and more
-people will buy software rather than steal it. And hence over time, because
-that buying will benefit Microsoft, Microsoft benefits from the piracy. If
-instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux
-operating system, then these Chinese users would not eventually be buying
-Microsoft. Without piracy, then, Microsoft would lose. <a class="indexterm" name="id2755878"></a>
-</p><p>
-This argument, too, is somewhat true. The addiction strategy is a good
-one. Many businesses practice it. Some thrive because of it. Law students,
-for example, are given free access to the two largest legal databases. The
-companies marketing both hope the students will become so used to their
-service that they will want to use it and not the other when they become
-lawyers (and must pay high subscription fees).
-</p><p>
-Still, the argument is not terribly persuasive. We don't give the alcoholic
-a defense when he steals his first beer, merely because that will make it
-more likely that he will buy the next three. Instead, we ordinarily allow
-businesses to decide for themselves when it is best to give their product
-away. If Microsoft fears the competition of GNU/Linux, then Microsoft can
-give its product away, as it did, for example, with Internet Explorer to
-fight Netscape. A property right means giving the property owner the right
-to say who gets access to what—at least ordinarily. And if the law
-properly balances the rights of the copyright owner with the rights of
-access, then violating the law is still wrong.
-</p><p>
-
-
-Thus, while I understand the pull of these justifications for piracy, and I
-certainly see the motivation, in my view, in the end, these efforts at
-justifying commercial piracy simply don't cut it. This kind of piracy is
-rampant and just plain wrong. It doesn't transform the content it steals; it
-doesn't transform the market it competes in. It merely gives someone access
-to something that the law says he should not have. Nothing has changed to
-draw that law into doubt. This form of piracy is flat out wrong.
-</p><p>
-But as the examples from the four chapters that introduced this part
-suggest, even if some piracy is plainly wrong, not all "piracy" is. Or at
-least, not all "piracy" is wrong if that term is understood in the way it is
-increasingly used today. Many kinds of "piracy" are useful and productive,
-to produce either new content or new ways of doing business. Neither our
-tradition nor any tradition has ever banned all "piracy" in that sense of
-the term.
-</p><p>
-This doesn't mean that there are no questions raised by the latest piracy
-concern, peer-to-peer file sharing. But it does mean that we need to
-understand the harm in peer-to-peer sharing a bit more before we condemn it
-to the gallows with the charge of piracy.
-</p><p>
-For (1) like the original Hollywood, p2p sharing escapes an overly
-controlling industry; and (2) like the original recording industry, it
-simply exploits a new way to distribute content; but (3) unlike cable TV, no
-one is selling the content that is shared on p2p services.
-</p><p>
-These differences distinguish p2p sharing from true piracy. They should push
-us to find a way to protect artists while enabling this sharing to survive.
-</p></div><div class="sect2" title="Piracy II"><div class="titlepage"><div><div><h3 class="title"><a name="piracy-ii"></a>Piracy II</h3></div></div></div><p>
-
-The key to the "piracy" that the law aims to quash is a use that "rob[s] the
-author of [his] profit."<sup>[<a name="id2755973" href="#ftn.id2755973" class="footnote">73</a>]</sup> This means we
-must determine whether and how much p2p sharing harms before we know how
-strongly the law should seek to either prevent it or find an alternative to
-assure the author of his profit.
-</p><p>
-Peer-to-peer sharing was made famous by Napster. But the inventors of the
-Napster technology had not made any major technological innovations. Like
-every great advance in innovation on the Internet (and, arguably, off the
-Internet as well<sup>[<a name="id2755996" href="#ftn.id2755996" class="footnote">74</a>]</sup>), Shawn Fanning and
-crew had simply put together components that had been developed
-independently. <a class="indexterm" name="id2756026"></a>
-</p><p>
-The result was spontaneous combustion. Launched in July 1999, Napster
-amassed over 10 million users within nine months. After eighteen months,
-there were close to 80 million registered users of the system.<sup>[<a name="id2756039" href="#ftn.id2756039" class="footnote">75</a>]</sup> Courts quickly shut Napster down, but other
-services emerged to take its place. (Kazaa is currently the most popular p2p
-service. It boasts over 100 million members.) These services' systems are
-different architecturally, though not very different in function: Each
-enables users to make content available to any number of other users. With a
-p2p system, you can share your favorite songs with your best friend—
-or your 20,000 best friends.
-</p><p>
-According to a number of estimates, a huge proportion of Americans have
-tasted file-sharing technology. A study by Ipsos-Insight in September 2002
-estimated that 60 million Americans had downloaded music—28 percent of
-Americans older than 12.<sup>[<a name="id2756074" href="#ftn.id2756074" class="footnote">76</a>]</sup> A survey by
-the NPD group quoted in <em class="citetitle">The New York Times</em> estimated
-that 43 million citizens used file-sharing networks to exchange content in
-May 2003.<sup>[<a name="id2756103" href="#ftn.id2756103" class="footnote">77</a>]</sup> The vast majority of these
-are not kids. Whatever the actual figure, a massive quantity of content is
-being "taken" on these networks. The ease and inexpensiveness of
-file-sharing networks have inspired millions to enjoy music in a way that
-they hadn't before.
-</p><p>
-Some of this enjoying involves copyright infringement. Some of it does
-not. And even among the part that is technically copyright infringement,
-calculating the actual harm to copyright owners is more complicated than one
-might think. So consider—a bit more carefully than the polarized
-voices around this debate usually do—the kinds of sharing that file
-sharing enables, and the kinds of harm it entails.
-</p><p>
-
-
-Fildelerne deler ulike typer innhold. Vi kan derel disse ulike typene inn i
-fire typer.
-</p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><p>
-
-There are some who use sharing networks as substitutes for purchasing
-content. Thus, when a new Madonna CD is released, rather than buying the CD,
-these users simply take it. We might quibble about whether everyone who
-takes it would actually have bought it if sharing didn't make it available
-for free. Most probably wouldn't have, but clearly there are some who
-would. The latter are the target of category A: users who download instead
-of purchasing. <a class="indexterm" name="id2756164"></a>
-</p></li><li class="listitem"><p>
-
-
-There are some who use sharing networks to sample music before purchasing
-it. Thus, a friend sends another friend an MP3 of an artist he's not heard
-of. The other friend then buys CDs by that artist. This is a kind of
-targeted advertising, quite likely to succeed. If the friend recommending
-the album gains nothing from a bad recommendation, then one could expect
-that the recommendations will actually be quite good. The net effect of this
-sharing could increase the quantity of music purchased.
-</p></li><li class="listitem"><p>
-
-
-There are many who use sharing networks to get access to copyrighted content
-that is no longer sold or that they would not have purchased because the
-transaction costs off the Net are too high. This use of sharing networks is
-among the most rewarding for many. Songs that were part of your childhood
-but have long vanished from the marketplace magically appear again on the
-network. (One friend told me that when she discovered Napster, she spent a
-solid weekend "recalling" old songs. She was astonished at the range and mix
-of content that was available.) For content not sold, this is still
-technically a violation of copyright, though because the copyright owner is
-not selling the content anymore, the economic harm is zero—the same
-harm that occurs when I sell my collection of 1960s 45-rpm records to a
-local collector.
-</p></li><li class="listitem"><p>
-
-
-
-
-Finally, there are many who use sharing networks to get access to content
-that is not copyrighted or that the copyright owner wants to give away.
-</p></li></ol></div><p>
-Hvordan balanserer disse ulike delingstypene?
-</p><p>
-Let's start with some simple but important points. From the perspective of
-the law, only type D sharing is clearly legal. From the perspective of
-economics, only type A sharing is clearly harmful.<sup>[<a name="id2756233" href="#ftn.id2756233" class="footnote">78</a>]</sup> Type B sharing is illegal but plainly
-beneficial. Type C sharing is illegal, yet good for society (since more
-exposure to music is good) and harmless to the artist (since the work is
-not otherwise available). So how sharing matters on balance is a hard
-question to answer—and certainly much more difficult than the current
-rhetoric around the issue suggests.
-</p><p>
-Whether on balance sharing is harmful depends importantly on how harmful
-type A sharing is. Just as Edison complained about Hollywood, composers
-complained about piano rolls, recording artists complained about radio, and
-broadcasters complained about cable TV, the music industry complains that
-type A sharing is a kind of "theft" that is "devastating" the industry.
-</p><p>
-While the numbers do suggest that sharing is harmful, how harmful is harder
-to reckon. It has long been the recording industry's practice to blame
-technology for any drop in sales. The history of cassette recording is a
-good example. As a study by Cap Gemini Ernst & Young put it, "Rather
-than exploiting this new, popular technology, the labels fought
-it."<sup>[<a name="id2756277" href="#ftn.id2756277" class="footnote">79</a>]</sup> The labels claimed that every
-album taped was an album unsold, and when record sales fell by 11.4 percent
-in 1981, the industry claimed that its point was proved. Technology was the
-problem, and banning or regulating technology was the answer.
-</p><p>
-Yet soon thereafter, and before Congress was given an opportunity to enact
-regulation, MTV was launched, and the industry had a record turnaround. "In
-the end," Cap Gemini concludes, "the `crisis' . . . was not the fault of the
-tapers—who did not [stop after MTV came into being]—but had to a
-large extent resulted from stagnation in musical innovation at the major
-labels."<sup>[<a name="id2756324" href="#ftn.id2756324" class="footnote">80</a>]</sup>
-</p><p>
-But just because the industry was wrong before does not mean it is wrong
-today. To evaluate the real threat that p2p sharing presents to the industry
-in particular, and society in general—or at least the society that
-inherits the tradition that gave us the film industry, the record industry,
-the radio industry, cable TV, and the VCR—the question is not simply
-whether type A sharing is harmful. The question is also
-<span class="emphasis"><em>how</em></span> harmful type A sharing is, and how beneficial the
-other types of sharing are.
-</p><p>
-We start to answer this question by focusing on the net harm, from the
-standpoint of the industry as a whole, that sharing networks cause. The
-"net harm" to the industry as a whole is the amount by which type A sharing
-exceeds type B. If the record companies sold more records through sampling
-than they lost through substitution, then sharing networks would actually
-benefit music companies on balance. They would therefore have little
-<span class="emphasis"><em>static</em></span> reason to resist them.
-
-</p><p>
-Could that be true? Could the industry as a whole be gaining because of file
-sharing? Odd as that might sound, the data about CD sales actually suggest
-it might be close.
-</p><p>
-In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882
-million to 803 million units; revenues fell 6.7 percent.<sup>[<a name="id2756380" href="#ftn.id2756380" class="footnote">81</a>]</sup> This confirms a trend over the past few years. The
-RIAA blames Internet piracy for the trend, though there are many other
-causes that could account for this drop. SoundScan, for example, reports a
-more than 20 percent drop in the number of CDs released since 1999. That no
-doubt accounts for some of the decrease in sales. Rising prices could
-account for at least some of the loss. "From 1999 to 2001, the average price
-of a CD rose 7.2 percent, from $13.04 to $14.19."<sup>[<a name="id2756424" href="#ftn.id2756424" class="footnote">82</a>]</sup> Competition from other forms of media could also
-account for some of the decline. As Jane Black of
-<em class="citetitle">BusinessWeek</em> notes, "The soundtrack to the film
-<em class="citetitle">High Fidelity</em> has a list price of $18.98. You could
-get the whole movie [on DVD] for $19.99."<sup>[<a name="id2756457" href="#ftn.id2756457" class="footnote">83</a>]</sup>
-</p><p>
-
-
-
-But let's assume the RIAA is right, and all of the decline in CD sales is
-because of Internet sharing. Here's the rub: In the same period that the
-RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1
-billion CDs were downloaded for free. Thus, although 2.6 times the total
-number of CDs sold were downloaded for free, sales revenue fell by just 6.7
-percent.
-</p><p>
-There are too many different things happening at the same time to explain
-these numbers definitively, but one conclusion is unavoidable: The recording
-industry constantly asks, "What's the difference between downloading a song
-and stealing a CD?"—but their own numbers reveal the difference. If I
-steal a CD, then there is one less CD to sell. Every taking is a lost
-sale. But on the basis of the numbers the RIAA provides, it is absolutely
-clear that the same is not true of downloads. If every download were a lost
-sale—if every use of Kazaa "rob[bed] the author of [his]
-profit"—then the industry would have suffered a 100 percent drop in
-sales last year, not a 7 percent drop. If 2.6 times the number of CDs sold
-were downloaded for free, and yet sales revenue dropped by just 6.7 percent,
-then there is a huge difference between "downloading a song and stealing a
-CD."
-</p><p>
-These are the harms—alleged and perhaps exaggerated but, let's assume,
-real. What of the benefits? File sharing may impose costs on the recording
-industry. What value does it produce in addition to these costs?
-</p><p>
-One benefit is type C sharing—making available content that is
-technically still under copyright but is no longer commercially available.
-This is not a small category of content. There are millions of tracks that
-are no longer commercially available.<sup>[<a name="id2756480" href="#ftn.id2756480" class="footnote">84</a>]</sup>
-And while it's conceivable that some of this content is not available
-because the artist producing the content doesn't want it to be made
-available, the vast majority of it is unavailable solely because the
-publisher or the distributor has decided it no longer makes economic sense
-<span class="emphasis"><em>to the company</em></span> to make it available.
-</p><p>
-In real space—long before the Internet—the market had a simple
-response to this problem: used book and record stores. There are thousands
-of used book and used record stores in America today.<sup>[<a name="id2756537" href="#ftn.id2756537" class="footnote">85</a>]</sup> These stores buy content from owners, then sell the
-content they buy. And under American copyright law, when they buy and sell
-this content, <span class="emphasis"><em>even if the content is still under
-copyright</em></span>, the copyright owner doesn't get a dime. Used book and
-record stores are commercial entities; their owners make money from the
-content they sell; but as with cable companies before statutory licensing,
-they don't have to pay the copyright owner for the content they sell.
-</p><a class="indexterm" name="id2756584"></a><p>
-Type C sharing, then, is very much like used book stores or used record
-stores. It is different, of course, because the person making the content
-available isn't making money from making the content available. It is also
-different, of course, because in real space, when I sell a record, I don't
-have it anymore, while in cyberspace, when someone shares my 1949 recording
-of Bernstein's "Two Love Songs," I still have it. That difference would
-matter economically if the owner of the copyright were selling the record in
-competition to my sharing. But we're talking about the class of content that
-is not currently commercially available. The Internet is making it
-available, through cooperative sharing, without competing with the market.
-</p><p>
-It may well be, all things considered, that it would be better if the
-copyright owner got something from this trade. But just because it may well
-be better, it doesn't follow that it would be good to ban used book
-stores. Or put differently, if you think that type C sharing should be
-stopped, do you think that libraries and used book stores should be shut as
-well?
-</p><p>
-
-Finally, and perhaps most importantly, file-sharing networks enable type D
-sharing to occur—the sharing of content that copyright owners want to
-have shared or for which there is no continuing copyright. This sharing
-clearly benefits authors and society. Science fiction author Cory Doctorow,
-for example, released his first novel, <em class="citetitle">Down and Out in the Magic
-Kingdom</em>, both free on-line and in bookstores on the same
-day. His (and his publisher's) thinking was that the on-line distribution
-would be a great advertisement for the "real" book. People would read part
-on-line, and then decide whether they liked the book or not. If they liked
-it, they would be more likely to buy it. Doctorow's content is type D
-content. If sharing networks enable his work to be spread, then both he and
-society are better off. (Actually, much better off: It is a great book!)
-</p><p>
-Likewise for work in the public domain: This sharing benefits society with
-no legal harm to authors at all. If efforts to solve the problem of type A
-sharing destroy the opportunity for type D sharing, then we lose something
-important in order to protect type A content.
-</p><p>
-The point throughout is this: While the recording industry understandably
-says, "This is how much we've lost," we must also ask, "How much has society
-gained from p2p sharing? What are the efficiencies? What is the content that
-otherwise would be unavailable?"
-</p><p>
-For unlike the piracy I described in the first section of this chapter, much
-of the "piracy" that file sharing enables is plainly legal and good. And
-like the piracy I described in chapter 4, much of this piracy is motivated
-by a new way of spreading content caused by changes in the technology of
-distribution. Thus, consistent with the tradition that gave us Hollywood,
-radio, the recording industry, and cable TV, the question we should be
-asking about file sharing is how best to preserve its benefits while
-minimizing (to the extent possible) the wrongful harm it causes artists. The
-question is one of balance. The law should seek that balance, and that
-balance will be found only with time.
-</p><p>
-Men er ikke krigen bare en krig mot ulovlig deling? Er ikke angrepsmålet
-bare det du kaller type A-deling?
-</p><p>
-You would think. And we should hope. But so far, it is not. The effect of
-the war purportedly on type A sharing alone has been felt far beyond that
-one class of sharing. That much is obvious from the Napster case
-itself. When Napster told the district court that it had developed a
-technology to block the transfer of 99.4 percent of identified infringing
-material, the district court told counsel for Napster 99.4 percent was not
-good enough. Napster had to push the infringements "down to
-zero."<sup>[<a name="id2756687" href="#ftn.id2756687" class="footnote">86</a>]</sup>
-</p><p>
-If 99.4 percent is not good enough, then this is a war on file-sharing
-technologies, not a war on copyright infringement. There is no way to assure
-that a p2p system is used 100 percent of the time in compliance with the
-law, any more than there is a way to assure that 100 percent of VCRs or 100
-percent of Xerox machines or 100 percent of handguns are used in compliance
-with the law. Zero tolerance means zero p2p. The court's ruling means that
-we as a society must lose the benefits of p2p, even for the totally legal
-and beneficial uses they serve, simply to assure that there are zero
-copyright infringements caused by p2p.
-</p><p>
-Zero tolerance has not been our history. It has not produced the content
-industry that we know today. The history of American law has been a process
-of balance. As new technologies changed the way content was distributed, the
-law adjusted, after some time, to the new technology. In this adjustment,
-the law sought to ensure the legitimate rights of creators while protecting
-innovation. Sometimes this has meant more rights for creators. Sometimes
-less.
-</p><p>
-So, as we've seen, when "mechanical reproduction" threatened the interests
-of composers, Congress balanced the rights of composers against the
-interests of the recording industry. It granted rights to composers, but
-also to the recording artists: Composers were to be paid, but at a price set
-by Congress. But when radio started broadcasting the recordings made by
-these recording artists, and they complained to Congress that their
-"creative property" was not being respected (since the radio station did not
-have to pay them for the creativity it broadcast), Congress rejected their
-claim. An indirect benefit was enough.
-</p><p>
-Cable TV followed the pattern of record albums. When the courts rejected the
-claim that cable broadcasters had to pay for the content they rebroadcast,
-Congress responded by giving broadcasters a right to compensation, but at a
-level set by the law. It likewise gave cable companies the right to the
-content, so long as they paid the statutory price.
-</p><p>
-
-
-
-This compromise, like the compromise affecting records and player pianos,
-served two important goals—indeed, the two central goals of any
-copyright legislation. First, the law assured that new innovators would have
-the freedom to develop new ways to deliver content. Second, the law assured
-that copyright holders would be paid for the content that was
-distributed. One fear was that if Congress simply required cable TV to pay
-copyright holders whatever they demanded for their content, then copyright
-holders associated with broadcasters would use their power to stifle this
-new technology, cable. But if Congress had permitted cable to use
-broadcasters' content for free, then it would have unfairly subsidized
-cable. Thus Congress chose a path that would assure
-<span class="emphasis"><em>compensation</em></span> without giving the past (broadcasters)
-control over the future (cable).
-</p><a class="indexterm" name="id2756784"></a><p>
-In the same year that Congress struck this balance, two major producers and
-distributors of film content filed a lawsuit against another technology, the
-video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had
-produced, the Betamax. Disney's and Universal's claim against Sony was
-relatively simple: Sony produced a device, Disney and Universal claimed,
-that enabled consumers to engage in copyright infringement. Because the
-device that Sony built had a "record" button, the device could be used to
-record copyrighted movies and shows. Sony was therefore benefiting from the
-copyright infringement of its customers. It should therefore, Disney and
-Universal claimed, be partially liable for that infringement.
-</p><p>
-
-There was something to Disney's and Universal's claim. Sony did decide to
-design its machine to make it very simple to record television shows. It
-could have built the machine to block or inhibit any direct copying from a
-television broadcast. Or possibly, it could have built the machine to copy
-only if there were a special "copy me" signal on the line. It was clear that
-there were many television shows that did not grant anyone permission to
-copy. Indeed, if anyone had asked, no doubt the majority of shows would not
-have authorized copying. And in the face of this obvious preference, Sony
-could have designed its system to minimize the opportunity for copyright
-infringement. It did not, and for that, Disney and Universal wanted to hold
-it responsible for the architecture it chose.
-</p><p>
-MPAA president Jack Valenti became the studios' most vocal champion. Valenti
-called VCRs "tapeworms." He warned, "When there are 20, 30, 40 million of
-these VCRs in the land, we will be invaded by millions of `tapeworms,'
-eating away at the very heart and essence of the most precious asset the
-copyright owner has, his copyright."<sup>[<a name="id2756832" href="#ftn.id2756832" class="footnote">87</a>]</sup>
-"One does not have to be trained in sophisticated marketing and creative
-judgment," he told Congress, "to understand the devastation on the
-after-theater marketplace caused by the hundreds of millions of tapings that
-will adversely impact on the future of the creative community in this
-country. It is simply a question of basic economics and plain common
-sense."<sup>[<a name="id2756849" href="#ftn.id2756849" class="footnote">88</a>]</sup> Indeed, as surveys would later
-show, percent of VCR owners had movie libraries of ten videos or
-more<sup>[<a name="id2756859" href="#ftn.id2756859" class="footnote">89</a>]</sup> — a use the Court would
-later hold was not "fair." By "allowing VCR owners to copy freely by the
-means of an exemption from copyright infringementwithout creating a
-mechanism to compensate copyrightowners," Valenti testified, Congress would
-"take from the owners the very essence of their property: the exclusive
-right to control who may use their work, that is, who may copy it and
-thereby profit from its reproduction."<sup>[<a name="id2756767" href="#ftn.id2756767" class="footnote">90</a>]</sup>
-</p><p>
-It took eight years for this case to be resolved by the Supreme Court. In
-the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in
-its jurisdiction—leading Judge Alex Kozinski, who sits on that court,
-refers to it as the "Hollywood Circuit"—held that Sony would be liable
-for the copyright infringement made possible by its machines. Under the
-Ninth Circuit's rule, this totally familiar technology—which Jack
-Valenti had called "the Boston Strangler of the American film industry"
-(worse yet, it was a <span class="emphasis"><em>Japanese</em></span> Boston Strangler of the
-American film industry)—was an illegal technology.<sup>[<a name="id2756893" href="#ftn.id2756893" class="footnote">91</a>]</sup>
-</p><p>
-
-But the Supreme Court reversed the decision of the Ninth Circuit. And in
-its reversal, the Court clearly articulated its understanding of when and
-whether courts should intervene in such disputes. As the Court wrote,
-</p><div class="blockquote"><blockquote class="blockquote"><p>
-Sound policy, as well as history, supports our consistent deference to
-Congress when major technological innovations alter the market for
-copyrighted materials. Congress has the constitutional authority and the
-institutional ability to accommodate fully the varied permutations of
-competing interests that are inevitably implicated by such new
-technology.<sup>[<a name="id2756938" href="#ftn.id2756938" class="footnote">92</a>]</sup>
-</p></blockquote></div><p>
-Congress was asked to respond to the Supreme Court's decision. But as with
-the plea of recording artists about radio broadcasts, Congress ignored the
-request. Congress was convinced that American film got enough, this "taking"
-notwithstanding. If we put these cases together, a pattern is clear:
-</p><div class="table"><a name="t1"></a><p class="title"><b>Tabell 2.1. Tabell</b></p><div class="table-contents"><table summary="Tabell" border="1"><colgroup><col><col><col><col></colgroup><thead><tr><th align="char">CASE</th><th align="char">WHOSE VALUE WAS "PIRATED"</th><th align="char">RESPONSE OF THE COURTS</th><th align="char">RESPONSE OF CONGRESS</th></tr></thead><tbody><tr><td align="char">Innspillinger</td><td align="char">Komponister</td><td align="char">Ingen beskyttelse</td><td align="char">Statutory license</td></tr><tr><td align="char">Radio</td><td align="char">Innspillingsartister</td><td align="char">N/A</td><td align="char">Ingenting</td></tr><tr><td align="char">Kabel-TV</td><td align="char">Kringkastere</td><td align="char">Ingen beskyttelse</td><td align="char">Statutory license</td></tr><tr><td align="char">VCR</td><td align="char">Filmskapere</td><td align="char">Ingen beskyttelse</td><td align="char">Ingenting</td></tr></tbody></table></div></div><br class="table-break"><p>
-In each case throughout our history, a new technology changed the way
-content was distributed.<sup>[<a name="id2757067" href="#ftn.id2757067" class="footnote">93</a>]</sup> In each case,
-throughout our history, that change meant that someone got a "free ride" on
-someone else's work.
-</p><p>
-
-In <span class="emphasis"><em>none</em></span> of these cases did either the courts or
-Congress eliminate all free riding. In <span class="emphasis"><em>none</em></span> of these
-cases did the courts or Congress insist that the law should assure that the
-copyright holder get all the value that his copyright created. In every
-case, the copyright owners complained of "piracy." In every case, Congress
-acted to recognize some of the legitimacy in the behavior of the "pirates."
-In each case, Congress allowed some new technology to benefit from content
-made before. It balanced the interests at stake.
-
-</p><p>
-When you think across these examples, and the other examples that make up
-the first four chapters of this section, this balance makes sense. Was Walt
-Disney a pirate? Would doujinshi be better if creators had to ask
-permission? Should tools that enable others to capture and spread images as
-a way to cultivate or criticize our culture be better regulated? Is it
-really right that building a search engine should expose you to $15 million
-in damages? Would it have been better if Edison had controlled film? Should
-every cover band have to hire a lawyer to get permission to record a song?
-</p><p>
-We could answer yes to each of these questions, but our tradition has
-answered no. In our tradition, as the Supreme Court has stated, copyright
-"has never accorded the copyright owner complete control over all possible
-uses of his work."<sup>[<a name="id2757155" href="#ftn.id2757155" class="footnote">94</a>]</sup> Instead, the
-particular uses that the law regulates have been defined by balancing the
-good that comes from granting an exclusive right against the burdens such an
-exclusive right creates. And this balancing has historically been done
-<span class="emphasis"><em>after</em></span> a technology has matured, or settled into the mix
-of technologies that facilitate the distribution of content.
-</p><p>
-We should be doing the same thing today. The technology of the Internet is
-changing quickly. The way people connect to the Internet (wires
-vs. wireless) is changing very quickly. No doubt the network should not
-become a tool for "stealing" from artists. But neither should the law become
-a tool to entrench one particular way in which artists (or more accurately,
-distributors) get paid. As I describe in some detail in the last chapter of
-this book, we should be securing income to artists while we allow the market
-to secure the most efficient way to promote and distribute content. This
-will require changes in the law, at least in the interim. These changes
-should be designed to balance the protection of the law against the strong
-public interest that innovation continue.
-</p><p>
-
-
-This is especially true when a new technology enables a vastly superior mode
-of distribution. And this p2p has done. P2p technologies can be ideally
-efficient in moving content across a widely diverse network. Left to
-develop, they could make the network vastly more efficient. Yet these
-"potential public benefits," as John Schwartz writes in <em class="citetitle">The New
-York Times</em>, "could be delayed in the P2P fight."<sup>[<a name="id2757206" href="#ftn.id2757206" class="footnote">95</a>]</sup> Yet when anyone begins to talk about "balance," the
-copyright warriors raise a different argument. "All this hand waving about
-balance and incentives," they say, "misses a fundamental point. Our
-content," the warriors insist, "is our <span class="emphasis"><em>property</em></span>. Why
-should we wait for Congress to `rebalance' our property rights? Do you have
-to wait before calling the police when your car has been stolen? And why
-should Congress deliberate at all about the merits of this theft? Do we ask
-whether the car thief had a good use for the car before we arrest him?"
-</p><p>
-"It is <span class="emphasis"><em>our property</em></span>," the warriors insist. "And it
-should be protected just as any other property is protected."
-</p></div></div><div class="footnotes"><br><hr width="100" align="left"><div class="footnote"><p><sup>[<a name="ftn.id2751872" href="#id2751872" class="para">15</a>] </sup>
-
-
-<em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98
-Eng. Rep. 1274 (1777) (Mansfield).
-</p></div><div class="footnote"><p><sup>[<a name="ftn.id2751999" href="#id2751999" class="para">16</a>] </sup>
-
-
-Se Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language in the
-Pepsi Generation," <em class="citetitle">Notre Dame Law Review</em> 65 (1990):
-397.
-</p></div><div class="footnote"><p><sup>[<a name="ftn.id2752019" href="#id2752019" class="para">17</a>] </sup>
-
-Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay Up,"
-<em class="citetitle">Wall Street Journal</em>, 21. august 1996, tilgjengelig
-fra <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #3</a>; Jonathan
-Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
-Speech, No One Wins," <em class="citetitle">Boston Globe</em>, 24. november
-2002. <a class="indexterm" name="id2752037"></a>
-</p></div><div class="footnote"><p><sup>[<a name="ftn.id2752111" href="#id2752111" class="para">18</a>] </sup>
-
-I <em class="citetitle">The Rise of the Creative Class</em> (New York: Basic
-Books, 2002), dokumenterer Richard Florida en endring i arbeidsstokken mot
-kreativitetsarbeide. Hans tekst omhandler derimot ikke direkte de juridiske
-vilkår som kreativiteten blir muliggjort eller hindret under. Jeg er helt
-klart enig med ham i viktigheten og betydningen av denne endringen, men jeg
-tror også at vilkårene som disse endringene blir aktivert under er mye
-vanskeligere. <a class="indexterm" name="id2752166"></a>
-</p></div><div class="footnote"><p><sup>[<a name="ftn.id2752278" href="#id2752278" class="para">19</a>] </sup>
projects / text-free-culture-lessig.git / blobdiff