X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/0911adea533198ee47d0112dd53bb0af2548913c..a2ae5f74bcdb93e5aba36d356880f108ef8026d1:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index ec35ed8..6f0f1a7 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -100,13 +100,16 @@ THE PENGUIN PRESS FREE CULTURE -HOW BIG MEDIA USES TECHNOLOGY AND THE + + + HOW BIG MEDIA USES TECHNOLOGY AND -LAW TO LOCK DOWN CULTURE AND CONTROL THE LAW TO LOCK DOWN CULTURE -CREATIVITY AND CONTROL CREATIVITY -LAWRENCE LESSIG + + + +LAWRENCE LESSIG @@ -139,6 +142,10 @@ culture and control creativity / Lawrence Lessig. Designed by Marysarah Quinn + +&translationblock; + + Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a @@ -159,8 +166,6 @@ To Eric Eldred—whose work first drew me to this cause, and for whom it continues still. -&translationblock; -
Creative Commons, Some rights reserved @@ -300,6 +305,7 @@ disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental. +CodePink Women in Peace We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC considered changes in media ownership rules that @@ -832,27 +838,27 @@ These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. -And as Professor Neil Netanel powerfully argues, +And as Professor Neil Netanel powerfully argues, +Netanel, Neil Weinstock + Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law Journal 106 (1996): 283. -copyright law, - properly -balanced, protected creators against private control. Our tradition -was thus neither Soviet nor the tradition of patrons. It instead carved out -a wide berth within which creators could cultivate and extend our culture. +copyright law, properly balanced, protected creators against private +control. Our tradition was thus neither Soviet nor the tradition of +patrons. It instead carved out a wide berth within which creators +could cultivate and extend our culture. Yet the law's response to the Internet, when tied to changes in the -technology of the Internet itself, has massively increased the effective -regulation of creativity in America. To build upon or critique the - culture -around us one must ask, Oliver Twist–like, for permission first. -Permission is, of course, often granted—but it is not often granted to -the critical or the independent. We have built a kind of cultural - nobility; -those within the noble class live easily; those outside it don't. But it -is nobility of any form that is alien to our tradition. +technology of the Internet itself, has massively increased the +effective regulation of creativity in America. To build upon or +critique the culture around us one must ask, Oliver Twist–like, +for permission first. Permission is, of course, often +granted—but it is not often granted to the critical or the +independent. We have built a kind of cultural nobility; those within +the noble class live easily; those outside it don't. But it is +nobility of any form that is alien to our tradition. @@ -1110,6 +1116,7 @@ entities could bear the burden of the law—even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. +Florida, Richard But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of @@ -1127,7 +1134,9 @@ commercial and noncommercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may -be seeing, as Richard Florida writes, the "Rise of the Creative Class." +be seeing, as Richard Florida writes, the "Rise of the Creative Class." +Florida, Richard + In The Rise of the Creative Class (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of labor toward a @@ -1225,8 +1234,7 @@ genre. Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The coincidence of titles is not coincidental. Steamboat Willie is a - direct -cartoon parody of Steamboat Bill, +direct cartoon parody of Steamboat Bill, I am grateful to David Gerstein and his careful history, described at link #4. @@ -1237,13 +1245,12 @@ Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1" Straw," was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author. -and both are built upon a - common -song as a source. It is not just from the invention of synchronized -sound in The Jazz Singer that we get Steamboat Willie. It is also from -Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the -song "Steamboat Bill," that we get Steamboat Willie, and then from -Steamboat Willie, Mickey Mouse. +and both are built upon a common song as a source. It is not just from +the invention of synchronized sound in The Jazz Singer that we get +Steamboat Willie. It is also from Buster Keaton's invention of +Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill," +that we get Steamboat Willie, and then from Steamboat Willie, Mickey +Mouse. This "borrowing" was nothing unique, either for Disney or for the @@ -1888,7 +1895,9 @@ 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." + texture." +Barish, Stephanie + Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. @@ -1911,19 +1920,17 @@ available at computer games -This skill is precisely the craft a filmmaker learns. As Daley - describes, -"people are very surprised about how they are led through a +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. -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, +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,
@@ -1948,7 +1955,9 @@ 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." +language for what they need to create or express." +Barish, Stephanie + Interview with Daley and Barish. It is to enable @@ -1957,19 +1966,18 @@ students "to communicate in the language of the twenty-first century." Ibid. +Barish, Stephanie -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. +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. The class was held on Friday afternoons, and it created a relatively @@ -1980,22 +1988,21 @@ said Barish. They were working harder than in any other class to do what education should be about—learning how to express themselves. -Using whatever "free web stuff they could find," and relatively - simple +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 these ideas can be expressed well. The power of -this message depended upon its connection to this form of expression. +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 these ideas can be +expressed well. The power of this message depended upon its connection +to this form of expression. @@ -2231,21 +2238,20 @@ York Times, 16 January 2003, G5. -This different cycle is possible because the same commercial - pressures +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. +If they lose readers, they lose revenue. Like sharks, they must move +on. 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. +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. There's a second way, as well, in which blogs have a different cycle @@ -2258,68 +2264,60 @@ have to take the conflict of interest" out of journalism, Winer told me. conflict of interest is so easily disclosed that you know you can sort of get it out of the way." +CNN 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. +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. Telephone interview with David Winer, 16 April 2003. -It also needs to sustain a more - coherent -account. (In the middle of the Iraq war, I read a post on the -Internet from someone who was at that time listening to a satellite - uplink -with a reporter in Iraq. The New York headquarters was telling the -reporter over and over that her account of the war was too bleak: She -needed to offer a more optimistic story. When she told New York that -wasn't warranted, they told her that they were writing "the story.") - - -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. +It also needs to sustain a more coherent +account. (In the middle of the Iraq war, I read a post on the Internet +from someone who was at that time listening to a satellite uplink with +a reporter in Iraq. The New York headquarters was telling the reporter +over and over that her account of the war was too bleak: She needed to +offer a more optimistic story. When she told New York that wasn't +warranted, they told her that they were writing "the story.") + + 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. -John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of - Information -Online," New York Times, 2 February 2003, A28; Staci D. Kramer, -"Shuttle Disaster Coverage Mixed, but Strong Overall," Online - Journalism -Review, 2 February 2003, available at +John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of +Information Online," New York Times, 2 February 2003, A28; Staci +D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall," +Online Journalism Review, 2 February 2003, available at link #10. -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. +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. -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. +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. +CNN + See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New York Times, 29 September 2003, C4. ("Not all news organizations have -been as accepting of employees who blog. Kevin Sites, a CNN - correspondent -in Iraq who started a blog about his reporting of the war on March 9, -stopped posting 12 days later at his bosses' request. Last year Steve - Olafson, -a Houston Chronicle reporter, was fired for keeping a personal Web log, -published under a pseudonym, that dealt with some of the issues and -people he was covering.") +been as accepting of employees who blog. Kevin Sites, a CNN +correspondent in Iraq who started a blog about his reporting of the +war on March 9, stopped posting 12 days later at his bosses' +request. Last year Steve Olafson, a Houston Chronicle reporter, was +fired for keeping a personal Web log, published under a pseudonym, +that dealt with some of the issues and people he was covering.") But it is clear that we are still in transition. "A @@ -2414,6 +2412,7 @@ 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." +Barish, Stephanie Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think! teach: that this tinkering with culture teaches as well @@ -2423,26 +2422,22 @@ as creates. It develops talents differently, and it builds a different kind of recognition. -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. +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. -These restrictions have become the focus of researchers and - scholars. -Professor Ed Felten of Princeton (whom we'll see more of in - chapter +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. +tinker" as it applies to computer science and to knowledge in +general. -See, for example, Edward Felten and Andrew Appel, "Technological - Access +See, for example, Edward Felten and Andrew Appel, "Technological Access Control Interferes with Noninfringing Scholarship," Communications of the Association for Computer Machinery 43 (2000): 9. @@ -2450,18 +2445,16 @@ 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. -"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." +"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." "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." +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." We're building a technology that takes the magic of Kodak, mixes @@ -2478,69 +2471,59 @@ chapter 9, quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs -In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled -as a freshman at Rensselaer Polytechnic Institute, in Troy, New York. -His major at RPI was information technology. Though he is not a - programmer, -in October Jesse decided to begin to tinker with search - engine -technology that was available on the RPI network. +In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as +a freshman at Rensselaer Polytechnic Institute, in Troy, New York. +His major at RPI was information technology. Though he is not a +programmer, in October Jesse decided to begin to tinker with search +engine technology that was available on the RPI network. -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. +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. -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. +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. 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. - - -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. - - -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. +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. + + +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. + + +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. Jesse's engine went on-line in late October. Over the following six @@ -2561,45 +2544,39 @@ computer. 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. +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. 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. - - -"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 -search engine, which Jesse had not himself built, using the Windows - filesharing -system, which Jesse had not himself built, to enable members -of the RPI community to get access to content, which Jesse had not -himself created or posted, and the vast majority of which had nothing -to do with music. +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. + + +"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 search engine, which Jesse had not +himself built, using the Windows filesharing system, which Jesse had +not himself built, to enable members of the RPI community to get +access to content, which Jesse had not himself created or posted, and +the vast majority of which had nothing to do with music. But the RIAA branded Jesse a pirate. They claimed he operated a @@ -2637,15 +2614,14 @@ $12,000 to dismiss the case. 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. +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. Jesse's family was outraged at these claims. They wanted to fight. @@ -2658,8 +2634,7 @@ won, he would have a piece of paper saying he had won, and a piece of paper saying he and his family were bankrupt. -So Jesse faced a mafia-like choice: $250,000 and a chance at - winning, +So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. @@ -2677,8 +2652,7 @@ the Arts, More Than One in a Blue Moon (2000). 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? +student for running a search engine? Douglas Lichtman makes a related point in "KaZaA and Punishment," Wall Street Journal, 10 September 2003, A24. @@ -2695,8 +2669,7 @@ activist: 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. +absurd what the RIAA has done.
@@ -2711,7 +2684,6 @@ wrong message. And he wants to correct the record." CHAPTER FOUR: "Pirates" - 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 @@ -2725,19 +2697,16 @@ pirates join this generation's country club—until now. The film industry of Hollywood was built by fleeing pirates. I am grateful to Peter DiMauro for pointing me to this extraordinary - history. -See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, +history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, which details Edison's "adventures" with copyright and patent. -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 +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. @@ -2755,52 +2724,45 @@ with producers and theater owners using illegal equipment and imported film stock to create their own underground market. -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. +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. J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion Picture Producers (Cobblestone Entertainment, 2000) and expanded texts posted at "The Edison Movie Monopoly: The Motion Picture Patents Company vs. the Independent Outlaws," available at -link #11. For a - discussion -of the economic motive behind both these limits and the limits -imposed by Victor on phonographs, see Randal C. Picker, "From Edison -to the Broadcast Flag: Mechanisms of Consent and Refusal and the - Propertization -of Copyright" (September 2002), University of Chicago Law -School, James M. Olin Program in Law and Economics, Working Paper -No. 159. - +link #11. For a +discussion of the economic motive behind both these limits and the +limits imposed by Victor on phonographs, see Randal C. Picker, "From +Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and +the Propertization of Copyright" (September 2002), University of +Chicago Law School, James M. Olin Program in Law and Economics, +Working Paper No. 159. 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." +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." Marc Wanamaker, "The First Studios," The Silents Majority, archived at - link #12. -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. +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. Of course, California grew quickly, and the effective enforcement @@ -2809,9 +2771,8 @@ 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. +expired. A new industry had been born, in part from the piracy of +Edison's creative property. @@ -2859,18 +2820,17 @@ put it, 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. +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. To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th -Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of -South Dakota, chairman), reprinted in Legislative History of the -Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South - Hackensack, -N.J.: Rothman Reprints, 1976). +Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, +of South Dakota, chairman), reprinted in Legislative History of the +Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South +Hackensack, N.J.: Rothman Reprints, 1976). @@ -2880,34 +2840,28 @@ people's works were "sponging upon the toil, the work, the talent, and genius of American composers," To Amend and Consolidate the Acts Respecting Copyright, 223 - (statement -of Nathan Burkan, attorney for the Music Publishers Association). +(statement of Nathan Burkan, attorney for the Music Publishers Association). and the "music publishing industry" was thereby "at the complete mercy of this one pirate." To Amend and Consolidate the Acts Respecting Copyright, 226 - (statement -of Nathan Burkan, attorney for the Music Publishers Association). +(statement of Nathan Burkan, attorney for the Music Publishers Association). 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." To Amend and Consolidate the Acts Respecting Copyright, 23 - (statement -of John Philip Sousa, composer). +(statement of John Philip Sousa, composer). -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 +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. To Amend and Consolidate the Acts Respecting Copyright, 283–84 @@ -3011,12 +2965,10 @@ recorded music, with the public being given lower prices, improved quality, and a greater choice. -Copyright Law Revision: Report to Accompany H.R. 2512, House - Committee -on the Judiciary, 90th Cong., 1st sess., House Document no. 83, -(8 March 1967). I am grateful to Glenn Brown for drawing my attention -to this report. - +Copyright Law Revision: Report to Accompany H.R. 2512, House Committee +on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8 +March 1967). I am grateful to Glenn Brown for drawing my attention to +this report. @@ -3111,28 +3063,28 @@ something for nothing. Cable TV was also born of a kind of piracy. -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 +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. +broadcasters' content, but more egregiously than anything Napster ever +did— Napster never charged for the content it enabled others to +give away. Anello, Douglas +Burdick, Quentin 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." -Copyright Law Revision—CATV: Hearing on S. 1006 Before the Subcommittee -on Patents, Trademarks, and Copyrights of the Senate Committee -on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of -Rosel H. Hyde, chairman of the Federal Communications Commission). +Copyright Law Revision—CATV: Hearing on S. 1006 Before the +Subcommittee on Patents, Trademarks, and Copyrights of the Senate +Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) +(statement of Rosel H. Hyde, chairman of the Federal Communications +Commission). There may have been a "public interest" in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association @@ -3156,8 +3108,7 @@ general counsel of the Association of Maximum Service Telecasters, Inc.). -Again, the demand of the copyright holders seemed reasonable -enough: +Again, the demand of the copyright holders seemed reasonable enough:
@@ -3173,61 +3124,55 @@ United Artists Television, Inc.).
-These were "free-ride[rs]," Screen Actor's Guild president - Charlton -Heston said, who were "depriving actors of compensation." +These were "free-ride[rs]," Screen Actor's Guild president Charlton +Heston said, who were "depriving actors of +compensation." Copyright Law Revision—CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). -But again, there was another side to the debate. As Assistant - Attorney +But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it,
-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 +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. -Copyright Law Revision—CATV, 216 (statement of Edwin M. - Zimmerman, -acting assistant attorney general). +Copyright Law Revision—CATV, 216 (statement of Edwin M. +Zimmerman, acting assistant attorney general).
-Copyright owners took the cable companies to court. Twice the -Supreme Court held that the cable companies owed the copyright -owners nothing. +Copyright owners took the cable companies to court. Twice the Supreme +Court held that the cable companies owed the copyright owners nothing. 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. - - -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 +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. + + +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 See, for example, National Music Publisher's Association, The Engine of Free Expression: Copyright on the Internet—The Myth of Free @@ -3248,23 +3193,21 @@ generation—until now. CHAPTER FIVE: "Piracy" - -There is piracy of copyrighted material. Lots of it. This piracy -comes in many forms. The most significant is commercial piracy, the +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. +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. 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. +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. @@ -3501,7 +3444,7 @@ of the Napster technology had not made any major technological Like every great advance in innovation on the Internet (and, arguably, off the Internet as well - + See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (New York: HarperBusiness, 2000). Professor Christensen examines why companies @@ -3754,19 +3697,20 @@ 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." +price of a CD rose 7.2 percent, from $13.04 to $14.19." +Black, Jane + Jane Black, "Big Music's Broken Record," BusinessWeek online, 13 - February -2003, available at +February 2003, available at link #17. - -Competition -from other forms of media could also account for some of the decline. -As Jane Black of BusinessWeek notes, "The soundtrack to the film High -Fidelity has a list price of $18.98. You could get the whole movie [on -DVD] for $19.99." - + + +Competition from other forms of media could also account for some of the +decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film +High Fidelity has a list price of $18.98. You could get the whole movie +[on DVD] for $19.99." + Ibid. @@ -4015,21 +3959,19 @@ would assure compensation without giving the past (broadcasters) control over the future (cable). +Betamax -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. +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. There was something to Disney's and Universal's claim. Sony did @@ -4042,31 +3984,27 @@ 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 +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. 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." +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." Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture Association of America, Inc.). -"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 +"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." @@ -4773,6 +4711,7 @@ Crown coveted to the free culture that we inherited. The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. +Beckett, Thomas Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included @@ -5104,6 +5043,7 @@ into a sword that interferes with any use, transformative or not. CHAPTER EIGHT: Transformers Allen, Paul +Alben, Alex In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative company founded by Microsoft cofounder Paul Allen to @@ -5111,22 +5051,21 @@ develop digital entertainment. Long before the Internet became popular, Starwave began investing in new technology for delivering entertainment in anticipation of the power of networks. +Alben, Alex Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology—not to distribute -film, but to do things with film that otherwise would be very difficult. -In 1993, he launched an initiative to develop a product to build - retrospectives -on the work of particular actors. The first actor chosen was -Clint Eastwood. The idea was to showcase all of the work of - Eastwood, -with clips from his films and interviews with figures important -to his career. - - -At that time, Eastwood had made more than fifty films, as an actor -and as a director. Alben began with a series of interviews with - Eastwood, +film, but to do things with film that otherwise would be very +difficult. In 1993, he launched an initiative to develop a product to +build retrospectives on the work of particular actors. The first actor +chosen was Clint Eastwood. The idea was to showcase all of the work of +Eastwood, with clips from his films and interviews with figures +important to his career. + +Alben, Alex + +At that time, Eastwood had made more than fifty films, as an actor and +as a director. Alben began with a series of interviews with Eastwood, asking him about his career. Because Starwave produced those interviews, it was free to include them on the CD. @@ -5138,31 +5077,36 @@ posters, scripts, and other material relating to the films Eastwood made. Most of his career was spent at Warner Brothers, and so it was relatively easy to get permission for that content. +Alben, Alex Then Alben and his team decided to include actual film clips. "Our -goal was that we were going to have a clip from every one of - Eastwood's -films," Alben told me. It was here that the problem arose. "No -one had ever really done this before," Alben explained. "No one had -ever tried to do this in the context of an artistic look at an actor's -career." +goal was that we were going to have a clip from every one of +Eastwood's films," Alben told me. It was here that the problem +arose. "No one had ever really done this before," Alben explained. "No +one had ever tried to do this in the context of an artistic look at an +actor's career." +Alben, Alex Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, "Well, what will it take?" +Alben, Alex Alben replied, "Well, we're going to have to clear rights from everyone who appears in these films, and the music and everything else that we want to use in these film clips." Slade said, "Great! Go -for it." +for it." + +artists +publicity rights on images of + + -Technically, the rights that Alben had to clear were mainly those of - publicity—rights -an artist has to control the commercial exploitation of his - image. -But these rights, too, burden "Rip, Mix, Burn" creativity, as this chapter -evinces. +Technically, the rights that Alben had to clear were mainly those of +publicity—rights an artist has to control the commercial +exploitation of his image. But these rights, too, burden "Rip, Mix, +Burn" creativity, as this chapter evinces. @@ -5179,15 +5123,12 @@ tale, Alben recounted just what they did:
-So we very mechanically went about looking up the film clips. -We made some artistic decisions about what film clips to - include—of -course we were going to use the "Make my day" clip -from Dirty Harry. But you then need to get the guy on the ground -who's wiggling under the gun and you need to get his - permission. -And then you have to decide what you are going to pay -him. +So we very mechanically went about looking up the film clips. We made +some artistic decisions about what film clips to include—of +course we were going to use the "Make my day" clip from Dirty +Harry. But you then need to get the guy on the ground who's wiggling +under the gun and you need to get his permission. And then you have +to decide what you are going to pay him. @@ -5203,6 +5144,7 @@ And then we just, we put together a team, my assistant and some others, and we just started calling people.
+Alben, Alex Some actors were glad to help—Donald Sutherland, for example, followed up himself to be sure that the rights had been cleared. @@ -5218,6 +5160,7 @@ career. It was one year later—"and even then we weren't sure whether we were totally in the clear." +Alben, Alex Alben is proud of his work. The project was the first of its kind and the only time he knew of that a team had undertaken such a massive @@ -5225,14 +5168,13 @@ project for the purpose of releasing a retrospective.
-Everyone thought it would be too hard. Everyone just threw up -their hands and said, "Oh, my gosh, a film, it's so many - copyrights, -there's the music, there's the screenplay, there's the director, -there's the actors." But we just broke it down. We just put it into -its constituent parts and said, "Okay, there's this many actors, this -many directors, . . . this many musicians," and we just went at it -very systematically and cleared the rights. +Everyone thought it would be too hard. Everyone just threw up their +hands and said, "Oh, my gosh, a film, it's so many copyrights, there's +the music, there's the screenplay, there's the director, there's the +actors." But we just broke it down. We just put it into its +constituent parts and said, "Okay, there's this many actors, this many +directors, . . . this many musicians," and we just went at it very +systematically and cleared the rights.
@@ -5241,13 +5183,13 @@ very systematically and cleared the rights. And no doubt, the product itself was exceptionally good. Eastwood loved it, and it sold very well. +Alben, Alex But I pressed Alben about how weird it seems that it would have to -take a year's work simply to clear rights. No doubt Alben had done this -efficiently, but as Peter Drucker has famously quipped, "There is - nothing -so useless as doing efficiently that which should not be done at -all." +take a year's work simply to clear rights. No doubt Alben had done +this efficiently, but as Peter Drucker has famously quipped, "There is +nothing so useless as doing efficiently that which should not be done +at all." U.S. Department of Commerce Office of Acquisition Management, Seven Steps to Performance-Based Services Acquisition, available at @@ -5307,25 +5249,23 @@ going to hold me up for money," then it becomes difficult to put one of these things together. - -Alben worked for a big company. His company was backed by some -of the richest investors in the world. He therefore had authority and -access that the average Web designer would not have. So if it took him -a year, how long would it take someone else? And how much creativity -is never made just because the costs of clearing the rights are so high? -These costs are the burdens of a kind of regulation. Put on a - Republican -hat for a moment, and get angry for a bit. The government +Alben, Alex + +Alben worked for a big company. His company was backed by some of the +richest investors in the world. He therefore had authority and access +that the average Web designer would not have. So if it took him a +year, how long would it take someone else? And how much creativity is +never made just because the costs of clearing the rights are so high? +These costs are the burdens of a kind of regulation. Put on a +Republican hat for a moment, and get angry for a bit. The government defines the scope of these rights, and the scope defined determines -how much it's going to cost to negotiate them. (Remember the idea -that land runs to the heavens, and imagine the pilot purchasing - flythrough +how much it's going to cost to negotiate them. (Remember the idea that +land runs to the heavens, and imagine the pilot purchasing flythrough rights as he negotiates to fly from Los Angeles to San Francisco.) These rights might well have once made sense; but as circumstances -change, they make no sense at all. Or at least, a well-trained, - regulationminimizing -Republican should look at the rights and ask, "Does this -still make sense?" +change, they make no sense at all. Or at least, a well-trained, +regulationminimizing Republican should look at the rights and ask, +"Does this still make sense?" I've seen the flash of recognition when people get this point, but only @@ -5343,6 +5283,7 @@ twentieth century, all framed around the idea of a 60 Minutes episode. The execution was perfect, down to the sixty-minute stopwatch. The judges loved every minute of it. +Nimmer, David When the lights came up, I looked over to my copanelist, David Nimmer, perhaps the leading copyright scholar and practitioner in the @@ -5351,22 +5292,21 @@ room of over 250 well-entertained judges. Taking an ominous tone, he began his talk with a question: "Do you know how many federal laws were just violated in this room?" +Boies, David For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the -rights to these clips; technically, what they had done violated the law. -Of course, it wasn't as if they or anyone were going to be prosecuted for -this violation (the presence of 250 judges and a gaggle of federal - marshals -notwithstanding). But Nimmer was making an important point: -A year before anyone would have heard of the word Napster, and two -years before another member of our panel, David Boies, would defend -Napster before the Ninth Circuit Court of Appeals, Nimmer was - trying -to get the judges to see that the law would not be friendly to the -capacities that this technology would enable. Technology means you -can now do amazing things easily; but you couldn't easily do them -legally. +rights to these clips; technically, what they had done violated the +law. Of course, it wasn't as if they or anyone were going to be +prosecuted for this violation (the presence of 250 judges and a gaggle +of federal marshals notwithstanding). But Nimmer was making an +important point: A year before anyone would have heard of the word +Napster, and two years before another member of our panel, David +Boies, would defend Napster before the Ninth Circuit Court of Appeals, +Nimmer was trying to get the judges to see that the law would not be +friendly to the capacities that this technology would +enable. Technology means you can now do amazing things easily; but you +couldn't easily do them legally. We live in a "cut and paste" culture enabled by technology. Anyone @@ -5378,14 +5318,13 @@ planted in your presentation. But presentations are just a tiny beginning. Using the Internet and -its archives, musicians are able to string together mixes of sound never -before imagined; filmmakers are able to build movies out of clips on -computers around the world. An extraordinary site in Sweden takes -images of politicians and blends them with music to create biting - political -commentary. A site called Camp Chaos has produced some of -the most biting criticism of the record industry that there is through -the mixing of Flash! and music. +its archives, musicians are able to string together mixes of sound +never before imagined; filmmakers are able to build movies out of +clips on computers around the world. An extraordinary site in Sweden +takes images of politicians and blends them with music to create +biting political commentary. A site called Camp Chaos has produced +some of the most biting criticism of the record industry that there is +through the mixing of Flash! and music. All of these creations are technically illegal. Even if the creators @@ -5395,21 +5334,19 @@ never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released. -To some, these stories suggest a solution: Let's alter the mix of -rights so that people are free to build upon our culture. Free to add or -mix as they see fit. We could even make this change without - necessarily -requiring that the "free" use be free as in "free beer." Instead, the - system -could simply make it easy for follow-on creators to compensate -artists without requiring an army of lawyers to come along: a rule, for -example, that says "the royalty owed the copyright owner of an - unregistered -work for the derivative reuse of his work will be a flat 1 percent -of net revenues, to be held in escrow for the copyright owner." Under -this rule, the copyright owner could benefit from some royalty, but he -would not have the benefit of a full property right (meaning the right -to name his own price) unless he registers the work. +To some, these stories suggest a solution: Let's alter the mix of +rights so that people are free to build upon our culture. Free to add +or mix as they see fit. We could even make this change without +necessarily requiring that the "free" use be free as in "free beer." +Instead, the system could simply make it easy for follow-on creators +to compensate artists without requiring an army of lawyers to come +along: a rule, for example, that says "the royalty owed the copyright +owner of an unregistered work for the derivative reuse of his work +will be a flat 1 percent of net revenues, to be held in escrow for the +copyright owner." Under this rule, the copyright owner could benefit +from some royalty, but he would not have the benefit of a full +property right (meaning the right to name his own price) unless he +registers the work. Who could possibly object to this? And what reason would there be @@ -5418,37 +5355,32 @@ which if made, under this plan, would produce new income for artists. What reason would anyone have to oppose it? -In February 2003, DreamWorks studios announced an - agreement -with Mike Myers, the comic genius of Saturday Night Live and +In February 2003, DreamWorks studios announced an agreement with Mike +Myers, the comic genius of Saturday Night Live and -Austin Powers. According to the announcement, Myers and - Dream-Works -would work together to form a "unique filmmaking pact." Under -the agreement, DreamWorks "will acquire the rights to existing motion -picture hits and classics, write new storylines and—with the use of - stateof-the-art -digital technology—insert Myers and other actors into the -film, thereby creating an entirely new piece of entertainment." - - -The announcement called this "film sampling." As Myers - explained, -"Film Sampling is an exciting way to put an original spin on -existing films and allow audiences to see old movies in a new light. Rap +Austin Powers. According to the announcement, Myers and Dream-Works +would work together to form a "unique filmmaking pact." Under the +agreement, DreamWorks "will acquire the rights to existing motion +picture hits and classics, write new storylines and—with the use +of stateof-the-art digital technology—insert Myers and other +actors into the film, thereby creating an entirely new piece of +entertainment." + + +The announcement called this "film sampling." As Myers explained, +"Film Sampling is an exciting way to put an original spin on existing +films and allow audiences to see old movies in a new light. Rap artists have been doing this for years with music and now we are able to take that same concept and apply it to film." Steven Spielberg is -quoted as saying, "If anyone can create a way to bring old films to new -audiences, it is Mike." +quoted as saying, "If anyone can create a way to bring old films to +new audiences, it is Mike." Spielberg is right. Film sampling by Myers will be brilliant. But if you don't think about it, you might miss the truly astonishing point -about this announcement. As the vast majority of our film heritage - remains -under copyright, the real meaning of the DreamWorks - announcement -is just this: It is Mike Myers and only Mike Myers who is +about this announcement. As the vast majority of our film heritage +remains under copyright, the real meaning of the DreamWorks +announcement is just this: It is Mike Myers and only Mike Myers who is free to sample. Any general freedom to build upon the film archive of our culture, a freedom in other contexts presumed for us all, is now a privilege reserved for the funny and famous—and presumably rich. @@ -5636,7 +5568,7 @@ alone, there were more than 5,475 films deposited and "borrowed back." Thus, when the copyrights to films expire, there is no copy held by any library. The copy exists—if it exists at all—in the library archive of the film company. - + Doug Herrick, "Toward a National Film Collection: Motion Pictures at the Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5; Anthony @@ -6206,53 +6138,50 @@ understand the effective protection of liberty or protection of property at any particular moment, we must track these changes over time. A restriction imposed by one modality might be erased by another. A freedom enabled by one modality might be displaced by -another. - -Some people object to this way of talking about "liberty." They object - because -their focus when considering the constraints that exist at any - particular -moment are constraints imposed exclusively by the government. For -instance, if a storm destroys a bridge, these people think it is meaningless -to say that one's liberty has been restrained. A bridge has washed out, and -it's harder to get from one place to another. To talk about this as a loss of -freedom, they say, is to confuse the stuff of politics with the vagaries of - ordinary -life. -I don't mean to deny the value in this narrower view, which depends -upon the context of the inquiry. I do, however, mean to argue against any -insistence that this narrower view is the only proper view of liberty. As I -argued in Code, we come from a long tradition of political thought with a -broader focus than the narrow question of what the government did when. -John Stuart Mill defended freedom of speech, for example, from the -tyranny of narrow minds, not from the fear of government prosecution; -John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. -John R. Commons famously defended the economic freedom of labor -from constraints imposed by the market; John R. Commons, "The Right -to Work," in Malcom Rutherford and Warren J. Samuels, eds., John R. -Commons: Selected Essays (London: Routledge: 1997), 62. The Americans -with Disabilities Act increases the liberty of people with physical - disabilities -by changing the architecture of certain public places, thereby making -access to those places easier; 42 United States Code, section 12101 (2000). -Each of these interventions to change existing conditions changes the -liberty of a particular group. The effect of those interventions should be -accounted for in order to understand the effective liberty that each of these -groups might face. - +another. +Commons, John R. + + +Some people object to this way of talking about "liberty." They object +because their focus when considering the constraints that exist at any +particular moment are constraints imposed exclusively by the +government. For instance, if a storm destroys a bridge, these people +think it is meaningless to say that one's liberty has been +restrained. A bridge has washed out, and it's harder to get from one +place to another. To talk about this as a loss of freedom, they say, +is to confuse the stuff of politics with the vagaries of ordinary +life. I don't mean to deny the value in this narrower view, which +depends upon the context of the inquiry. I do, however, mean to argue +against any insistence that this narrower view is the only proper view +of liberty. As I argued in Code, we come from a long tradition of +political thought with a broader focus than the narrow question of +what the government did when. John Stuart Mill defended freedom of +speech, for example, from the tyranny of narrow minds, not from the +fear of government prosecution; John Stuart Mill, On Liberty (Indiana: +Hackett Publishing Co., 1978), 19. John R. Commons famously defended +the economic freedom of labor from constraints imposed by the market; +John R. Commons, "The Right to Work," in Malcom Rutherford and Warren +J. Samuels, eds., John R. Commons: Selected Essays (London: +Routledge: 1997), 62. The Americans with Disabilities Act increases +the liberty of people with physical disabilities by changing the +architecture of certain public places, thereby making access to those +places easier; 42 United States Code, section 12101 (2000). Each of +these interventions to change existing conditions changes the liberty +of a particular group. The effect of those interventions should be +accounted for in order to understand the effective liberty that each +of these groups might face. Why Hollywood Is Right - The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress and the courts to defend copyright. This model helps us see why that rallying makes sense. -Let's say this is the picture of copyright's regulation before the - Internet: +Let's say this is the picture of copyright's regulation before the +Internet:
Copyright's regulation before the Internet. @@ -6260,35 +6189,31 @@ Let's say this is the picture of copyright's regulation before the
-There is balance between law, norms, market, and architecture. The -law limits the ability to copy and share content, by imposing penalties -on those who copy and share content. Those penalties are reinforced by -technologies that make it hard to copy and share content (architecture) -and expensive to copy and share content (market). Finally, those - penalties -are mitigated by norms we all recognize—kids, for example, taping -other kids' records. These uses of copyrighted material may well be - infringement, -but the norms of our society (before the Internet, at least) -had no problem with this form of infringement. - - -Enter the Internet, or, more precisely, technologies such as MP3s -and p2p sharing. Now the constraint of architecture changes - dramatically, +There is balance between law, norms, market, and architecture. The law +limits the ability to copy and share content, by imposing penalties on +those who copy and share content. Those penalties are reinforced by +technologies that make it hard to copy and share content +(architecture) and expensive to copy and share content +(market). Finally, those penalties are mitigated by norms we all +recognize—kids, for example, taping other kids' records. These +uses of copyrighted material may well be infringement, but the norms +of our society (before the Internet, at least) had no problem with +this form of infringement. + + +Enter the Internet, or, more precisely, technologies such as MP3s and +p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The -happy balance (for the warriors, at least) of life before the Internet - becomes -an effective state of anarchy after the Internet. +happy balance (for the warriors, at least) of life before the Internet +becomes an effective state of anarchy after the Internet. -Thus the sense of, and justification for, the warriors' response. - Technology -has changed, the warriors say, and the effect of this change, -when ramified through the market and norms, is that a balance of - protection -for the copyright owners' rights has been lost. This is Iraq +Thus the sense of, and justification for, the warriors' response. +Technology has changed, the warriors say, and the effect of this +change, when ramified through the market and norms, is that a balance +of protection for the copyright owners' rights has been lost. This is +Iraq after the fall of Saddam, but this time no government is justifying the looting that results. @@ -6299,84 +6224,70 @@ looting that results.
Neither this analysis nor the conclusions that follow are new to the -warriors. Indeed, in a "White Paper" prepared by the Commerce - Department -(one heavily influenced by the copyright warriors) in 1995, +warriors. Indeed, in a "White Paper" prepared by the Commerce +Department (one heavily influenced by the copyright warriors) in 1995, this mix of regulatory modalities had already been identified and the -strategy to respond already mapped. In response to the changes the - Internet -had effected, the White Paper argued (1) Congress should -strengthen intellectual property law, (2) businesses should adopt - innovative -marketing techniques, (3) technologists should push to develop -code to protect copyrighted material, and (4) educators should educate -kids to better protect copyright. - - -This mixed strategy is just what copyright needed—if it was to - preserve -the particular balance that existed before the change induced by -the Internet. And it's just what we should expect the content industry -to push for. It is as American as apple pie to consider the happy life -you have as an entitlement, and to look to the law to protect it if - something -comes along to change that happy life. Homeowners living in a +strategy to respond already mapped. In response to the changes the +Internet had effected, the White Paper argued (1) Congress should +strengthen intellectual property law, (2) businesses should adopt +innovative marketing techniques, (3) technologists should push to +develop code to protect copyrighted material, and (4) educators should +educate kids to better protect copyright. + + +This mixed strategy is just what copyright needed—if it was to +preserve the particular balance that existed before the change induced +by the Internet. And it's just what we should expect the content +industry to push for. It is as American as apple pie to consider the +happy life you have as an entitlement, and to look to the law to +protect it if something comes along to change that happy +life. Homeowners living in a flood plain have no hesitation appealing to the government to rebuild -(and rebuild again) when a flood (architecture) wipes away their - property -(law). Farmers have no hesitation appealing to the government to -bail them out when a virus (architecture) devastates their crop. Unions -have no hesitation appealing to the government to bail them out when -imports (market) wipe out the U.S. steel industry. +(and rebuild again) when a flood (architecture) wipes away their +property (law). Farmers have no hesitation appealing to the government +to bail them out when a virus (architecture) devastates their +crop. Unions have no hesitation appealing to the government to bail +them out when imports (market) wipe out the U.S. steel industry. Thus, there's nothing wrong or surprising in the content industry's -campaign to protect itself from the harmful consequences of a - technological -innovation. And I would be the last person to argue that the -changing technology of the Internet has not had a profound effect on the -content industry's way of doing business, or as John Seely Brown - describes -it, its "architecture of revenue." +campaign to protect itself from the harmful consequences of a +technological innovation. And I would be the last person to argue that +the changing technology of the Internet has not had a profound effect +on the content industry's way of doing business, or as John Seely +Brown describes it, its "architecture of revenue." -But just because a particular interest asks for government support, -it doesn't follow that support should be granted. And just because - technology -has weakened a particular way of doing business, it doesn't - follow -that the government should intervene to support that old way of +But just because a particular interest asks for government support, it +doesn't follow that support should be granted. And just because +technology has weakened a particular way of doing business, it doesn't +follow that the government should intervene to support that old way of doing business. Kodak, for example, has lost perhaps as much as 20 percent of their traditional film market to the emerging technologies of digital cameras. -See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?" - BusinessWeek -online, 2 August 1999, available at -link #23. For a more recent -analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can -Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003, - available -at +See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?" +BusinessWeek online, 2 August 1999, available at +link #23. For a more +recent analysis of Kodak's place in the market, see Chana +R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6 +October 2003, available at link #24. -Does anyone believe the government should ban -digital cameras just to support Kodak? Highways have weakened the -freight business for railroads. Does anyone think we should ban trucks -from roads for the purpose of protecting the railroads? Closer to the - subject -of this book, remote channel changers have weakened the - "stickiness" -of television advertising (if a boring commercial comes on the -TV, the remote makes it easy to surf ), and it may well be that this -change has weakened the television advertising market. But does - anyone -believe we should regulate remotes to reinforce commercial - television? -(Maybe by limiting them to function only once a second, or to -switch to only ten channels within an hour?) + +Does anyone believe the government should ban digital cameras just to +support Kodak? Highways have weakened the freight business for +railroads. Does anyone think we should ban trucks from roads for the +purpose of protecting the railroads? Closer to the subject of this +book, remote channel changers have weakened the "stickiness" of +television advertising (if a boring commercial comes on the TV, the +remote makes it easy to surf ), and it may well be that this change +has weakened the television advertising market. But does anyone +believe we should regulate remotes to reinforce commercial television? +(Maybe by limiting them to function only once a second, or to switch +to only ten channels within an hour?) The obvious answer to these obviously rhetorical questions is no. @@ -6401,42 +6312,36 @@ Brezhnev. Thus, while it is understandable for industries threatened with new -technologies that change the way they do business to look to the - government -for protection, it is the special duty of policy makers to - guarantee -that that protection not become a deterrent to progress. It is the -duty of policy makers, in other words, to assure that the changes they -create, in response to the request of those hurt by changing technology, -are changes that preserve the incentives and opportunities for - innovation -and change. - - -In the context of laws regulating speech—which include, obviously, -copyright law—that duty is even stronger. When the industry - complaining -about changing technologies is asking Congress to respond in -a way that burdens speech and creativity, policy makers should be - especially -wary of the request. It is always a bad deal for the government -to get into the business of regulating speech markets. The risks and -dangers of that game are precisely why our framers created the First -Amendment to our Constitution: "Congress shall make no law . . . -abridging the freedom of speech." So when Congress is being asked to -pass laws that would "abridge" the freedom of speech, it should ask— -carefully—whether such regulation is justified. +technologies that change the way they do business to look to the +government for protection, it is the special duty of policy makers to +guarantee that that protection not become a deterrent to progress. It +is the duty of policy makers, in other words, to assure that the +changes they create, in response to the request of those hurt by +changing technology, are changes that preserve the incentives and +opportunities for innovation and change. + + +In the context of laws regulating speech—which include, +obviously, copyright law—that duty is even stronger. When the +industry complaining about changing technologies is asking Congress to +respond in a way that burdens speech and creativity, policy makers +should be especially wary of the request. It is always a bad deal for +the government to get into the business of regulating speech +markets. The risks and dangers of that game are precisely why our +framers created the First Amendment to our Constitution: "Congress +shall make no law . . . abridging the freedom of speech." So when +Congress is being asked to pass laws that would "abridge" the freedom +of speech, it should ask— carefully—whether such +regulation is justified. My argument just now, however, has nothing to do with whether the changes that are being pushed by the copyright warriors are - "justified." -My argument is about their effect. For before we get to the - question -of justification, a hard question that depends a great deal upon -your values, we should first ask whether we understand the effect of the -changes the content industry wants. +"justified." My argument is about their effect. For before we get to +the question of justification, a hard question that depends a great +deal upon your values, we should first ask whether we understand the +effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. @@ -6454,46 +6359,40 @@ production is a good thing. No one doubts that the work of M important and valuable and probably saved lives, possibly millions. -But in 1962, Rachel Carson published Silent Spring, which argued -that DDT, whatever its primary benefits, was also having unintended -environmental consequences. Birds were losing the ability to - reproduce. -Whole chains of the ecology were being destroyed. +But in 1962, Rachel Carson published Silent Spring, which argued that +DDT, whatever its primary benefits, was also having unintended +environmental consequences. Birds were losing the ability to +reproduce. Whole chains of the ecology were being destroyed. -No one set out to destroy the environment. Paul Müller certainly -did not aim to harm any birds. But the effort to solve one set of - problems -produced another set which, in the view of some, was far worse -than the problems that were originally attacked. Or more accurately, -the problems DDT caused were worse than the problems it solved, at -least when considering the other, more environmentally friendly ways -to solve the problems that DDT was meant to solve. +No one set out to destroy the environment. Paul Müller certainly did +not aim to harm any birds. But the effort to solve one set of problems +produced another set which, in the view of some, was far worse than +the problems that were originally attacked. Or more accurately, the +problems DDT caused were worse than the problems it solved, at least +when considering the other, more environmentally friendly ways to +solve the problems that DDT was meant to solve. It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an "environmentalism" for culture. -See, for example, James Boyle, "A Politics of Intellectual Property: - Environmentalism -for the Net?" Duke Law Journal 47 (1997): 87. - -His point, and the point I want to develop in the balance of -this chapter, is not that the aims of copyright are flawed. Or that - authors -should not be paid for their work. Or that music should be given -away "for free." The point is that some of the ways in which we might -protect authors will have unintended consequences for the cultural - environment, -much like DDT had for the natural environment. And just +See, for example, James Boyle, "A Politics of Intellectual Property: +Environmentalism for the Net?" Duke Law Journal 47 (1997): 87. + +His point, and the point I want to develop in the balance of this +chapter, is not that the aims of copyright are flawed. Or that authors +should not be paid for their work. Or that music should be given away +"for free." The point is that some of the ways in which we might +protect authors will have unintended consequences for the cultural +environment, much like DDT had for the natural environment. And just as criticism of DDT is not an endorsement of malaria or an attack on -farmers, so, too, is criticism of one particular set of regulations - protecting -copyright not an endorsement of anarchy or an attack on authors. -It is an environment of creativity that we seek, and we should be aware -of our actions' effects on the environment. +farmers, so, too, is criticism of one particular set of regulations +protecting copyright not an endorsement of anarchy or an attack on +authors. It is an environment of creativity that we seek, and we +should be aware of our actions' effects on the environment. My argument, in the balance of this chapter, tries to map exactly @@ -6515,18 +6414,15 @@ be lost. Beginnings -America copied English copyright law. Actually, we copied and - improved -English copyright law. Our Constitution makes the purpose of -"creative property" rights clear; its express limitations reinforce the - English +America copied English copyright law. Actually, we copied and improved +English copyright law. Our Constitution makes the purpose of "creative +property" rights clear; its express limitations reinforce the English aim to avoid overly powerful publishers. -The power to establish "creative property" rights is granted to - Congress -in a way that, for our Constitution, at least, is very odd. Article I, -section 8, clause 8 of our Constitution states that: +The power to establish "creative property" rights is granted to +Congress in a way that, for our Constitution, at least, is very +odd. Article I, section 8, clause 8 of our Constitution states that: Congress has the power to promote the Progress of Science and @@ -6534,48 +6430,43 @@ useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. -We can call this the "Progress Clause," for notice what this clause does -not say. It does not say Congress has the power to grant "creative - property -rights." It says that Congress has the power to promote progress. The -grant of power is its purpose, and its purpose is a public one, not the -purpose of enriching publishers, nor even primarily the purpose of - rewarding -authors. +We can call this the "Progress Clause," for notice what this clause +does not say. It does not say Congress has the power to grant +"creative property rights." It says that Congress has the power to +promote progress. The grant of power is its purpose, and its purpose +is a public one, not the purpose of enriching publishers, nor even +primarily the purpose of rewarding authors. -The Progress Clause expressly limits the term of copyrights. As we -saw in chapter 6, the English limited the term of copyright so as to - assure -that a few would not exercise disproportionate control over culture -by exercising disproportionate control over publishing. We can assume -the framers followed the English for a similar purpose. Indeed, unlike -the English, the framers reinforced that objective, by requiring that -copyrights extend "to Authors" only. +The Progress Clause expressly limits the term of copyrights. As we saw +in chapter 6, the English limited the term of copyright so as to +assure that a few would not exercise disproportionate control over +culture by exercising disproportionate control over publishing. We can +assume the framers followed the English for a similar purpose. Indeed, +unlike the English, the framers reinforced that objective, by +requiring that copyrights extend "to Authors" only. The design of the Progress Clause reflects something about the -Constitution's design in general. To avoid a problem, the framers built -structure. To prevent the concentrated power of publishers, they built -a structure that kept copyrights away from publishers and kept them -short. To prevent the concentrated power of a church, they banned the -federal government from establishing a church. To prevent - concentrating -power in the federal government, they built structures to reinforce -the power of the states—including the Senate, whose members were -at the time selected by the states, and an electoral college, also selected -by the states, to select the president. In each case, a structure built -checks and balances into the constitutional frame, structured to - prevent -otherwise inevitable concentrations of power. - - -I doubt the framers would recognize the regulation we call - "copyright" -today. The scope of that regulation is far beyond anything they -ever considered. To begin to understand what they did, we need to put -our "copyright" in context: We need to see how it has changed in the -210 years since they first struck its design. +Constitution's design in general. To avoid a problem, the framers +built structure. To prevent the concentrated power of publishers, they +built a structure that kept copyrights away from publishers and kept +them short. To prevent the concentrated power of a church, they banned +the federal government from establishing a church. To prevent +concentrating power in the federal government, they built structures +to reinforce the power of the states—including the Senate, whose +members were at the time selected by the states, and an electoral +college, also selected by the states, to select the president. In each +case, a structure built checks and balances into the constitutional +frame, structured to prevent otherwise inevitable concentrations of +power. + + +I doubt the framers would recognize the regulation we call "copyright" +today. The scope of that regulation is far beyond anything they ever +considered. To begin to understand what they did, we need to put our +"copyright" in context: We need to see how it has changed in the 210 +years since they first struck its design. Some of these changes come from the law: some in light of changes @@ -6650,7 +6541,7 @@ in the United States both before 1790 and from 1790 through 1800, 95 percent immediately passed into the public domain; the balance would pass into the pubic domain within twenty-eight years at most, and more likely within fourteen years. - + Although 13,000 titles were published in the United States from 1790 to 1799, only 556 copyright registrations were filed; John Tebbel, A History of Book Publishing in the United States, vol. 1, The Creation @@ -7959,6 +7850,7 @@ of the media. These changes are of two sorts: the scope of concentration, and its nature. +BMG Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media @@ -7966,8 +7858,8 @@ ownership, "five companies control 85 percent of our media sources."

FCC Oversight: Hearing Before the Senate Commerce, Science and Transportation Committee, 108th Cong., 1st sess. (22 May 2003) -(statement of Senator John McCain). The five -recording labels of Universal Music Group, BMG, Sony Music +(statement of Senator John McCain). +The five recording labels of Universal Music Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8 percent of the U.S. music market. @@ -9217,6 +9109,7 @@ perspectives are constantly attuned to the ways in which regulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow. +Barry, Hank This is the single most dramatic effect of the shift in regulatory @@ -9316,6 +9209,8 @@ industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly. +Hummer, John +Barry, Hank This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the @@ -9346,31 +9241,32 @@ are afraid of technologies that touch content. In an article in Business 2.0, Rafe Needleman describes a discussion with BMW:

+BMW I asked why, with all the storage capacity and computer power in the car, there was no way to play MP3 files. I was told that BMW engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this - forward -for release stateside. Even today, no new cars are sold in the -United States with bona fide MP3 players. . . . - Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June +forward for release stateside. Even today, no new cars are sold in the +United States with bona fide MP3 players. . . . +Needleman, Rafe + + +Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June 2003, available at -link #43. I am grateful to Dr. Mohammad Al-Ubaydli -for this example. +link #43. I am grateful +to Dr. Mohammad Al-Ubaydli for this example.
This is the world of the mafia—filled with "your money or your -life" offers, governed in the end not by courts but by the threats that the -law empowers copyright holders to exercise. It is a system that will - obviously -and necessarily stifle new innovation. It is hard enough to start -a company. It is impossibly hard if that company is constantly - threatened -by litigation. +life" offers, governed in the end not by courts but by the threats +that the law empowers copyright holders to exercise. It is a system +that will obviously and necessarily stifle new innovation. It is hard +enough to start a company. It is impossibly hard if that company is +constantly threatened by litigation. @@ -9685,8 +9581,7 @@ more than it burdens terrestrial radio. This financial burden is not slight. As Harvard law professor -William Fisher estimates, if an Internet radio station distributed - adfree +William Fisher estimates, if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be over $1 million a year. @@ -9810,9 +9705,9 @@ Why? What justifies this difference? Was there any study of the economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? +Alben, Alex -In a rare bit of candor, one RIAA expert admitted what seemed - obvious +In a rare bit of candor, one RIAA expert admitted what seemed obvious to everyone at the time. As Alex Alben, vice president for Public Policy at Real Networks, told me, @@ -9901,11 +9796,11 @@ RIAA's suits against individual users. In September 2003, the RIAA sued 261 individuals—including a twelve-year-old girl living in public housing and a seventy-year-old man who had no idea what file sharing was. - Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los + +Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los Angeles Times, 10 September 2003, Business. - As these scapegoats discovered, it will always cost more to - defend +As these scapegoats discovered, it will always cost more to defend against these suits than it would cost to simply settle. (The twelve year old, for example, like Jesse Jordan, paid her life savings of $2,000 to settle the case.) Our law is an awful system for defending rights. It @@ -9915,75 +9810,68 @@ they oppose. Wars of prohibition are nothing new in America. This one is just -something more extreme than anything we've seen before. We - experimented -with alcohol prohibition, at a time when the per capita - consumption -of alcohol was 1.5 gallons per capita per year. The war against -drinking initially reduced that consumption to just 30 percent of its -preprohibition levels, but by the end of prohibition, consumption was -up to 70 percent of the preprohibition level. Americans were drinking -just about as much, but now, a vast number were criminals. - Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During - Prohibition," -American Economic Review 81, no. 2 (1991): 242. - - We have - +something more extreme than anything we've seen before. We +experimented with alcohol prohibition, at a time when the per capita +consumption of alcohol was 1.5 gallons per capita per year. The war +against drinking initially reduced that consumption to just 30 percent +of its preprohibition levels, but by the end of prohibition, +consumption was up to 70 percent of the preprohibition +level. Americans were drinking just about as much, but now, a vast +number were criminals. + +Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During +Prohibition," American Economic Review 81, no. 2 (1991): 242. + +We have -launched a war on drugs aimed at reducing the consumption of - regulated +launched a war on drugs aimed at reducing the consumption of regulated narcotics that 7 percent (or 16 million) Americans now use. - National Drug Control Policy: Hearing Before the House Government + +National Drug Control Policy: Hearing Before the House Government Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John P. Walters, director of National Drug Control Policy). - -That is a drop from the high (so to speak) in 1979 of 14 percent of the -population. We regulate automobiles to the point where the vast - majority -of Americans violate the law every day. We run such a complex -tax system that a majority of cash businesses regularly cheat. - See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax - Compliance," -Journal of Economic Literature 36 (1998): 818 (survey of compliance -literature). +That is a drop from the high (so to speak) in 1979 of 14 percent of +the population. We regulate automobiles to the point where the vast +majority of Americans violate the law every day. We run such a complex +tax system that a majority of cash businesses regularly +cheat. + +See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax +Compliance," Journal of Economic Literature 36 (1998): 818 (survey of +compliance literature). - We -pride ourselves on our "free society," but an endless array of ordinary -behavior is regulated within our society. And as a result, a huge - proportion -of Americans regularly violate at least some law. +We pride ourselves on our "free society," but an endless array of +ordinary behavior is regulated within our society. And as a result, a +huge proportion of Americans regularly violate at least some law. This state of affairs is not without consequence. It is a particularly -salient issue for teachers like me, whose job it is to teach law students -about the importance of "ethics." As my colleague Charlie Nesson told -a class at Stanford, each year law schools admit thousands of students -who have illegally downloaded music, illegally consumed alcohol and -sometimes drugs, illegally worked without paying taxes, illegally driven -cars. These are kids for whom behaving illegally is increasingly the -norm. And then we, as law professors, are supposed to teach them how -to behave ethically—how to say no to bribes, or keep client funds - separate, -or honor a demand to disclose a document that will mean that -your case is over. Generations of Americans—more significantly in -some parts of America than in others, but still, everywhere in America -today—can't live their lives both normally and legally, since "normally" -entails a certain degree of illegality. +salient issue for teachers like me, whose job it is to teach law +students about the importance of "ethics." As my colleague Charlie +Nesson told a class at Stanford, each year law schools admit thousands +of students who have illegally downloaded music, illegally consumed +alcohol and sometimes drugs, illegally worked without paying taxes, +illegally driven cars. These are kids for whom behaving illegally is +increasingly the norm. And then we, as law professors, are supposed to +teach them how to behave ethically—how to say no to bribes, or +keep client funds separate, or honor a demand to disclose a document +that will mean that your case is over. Generations of +Americans—more significantly in some parts of America than in +others, but still, everywhere in America today—can't live their +lives both normally and legally, since "normally" entails a certain +degree of illegality. The response to this general illegality is either to enforce the law -more severely or to change the law. We, as a society, have to learn how -to make that choice more rationally. Whether a law makes sense - depends, -in part, at least, upon whether the costs of the law, both - intended -and collateral, outweigh the benefits. If the costs, intended and -collateral, do outweigh the benefits, then the law ought to be changed. -Alternatively, if the costs of the existing system are much greater than -the costs of an alternative, then we have a good reason to consider the -alternative. +more severely or to change the law. We, as a society, have to learn +how to make that choice more rationally. Whether a law makes sense +depends, in part, at least, upon whether the costs of the law, both +intended and collateral, outweigh the benefits. If the costs, intended +and collateral, do outweigh the benefits, then the law ought to be +changed. Alternatively, if the costs of the existing system are much +greater than the costs of an alternative, then we have a good reason +to consider the alternative. @@ -9995,45 +9883,40 @@ that wouldn't make any sense, since murder is wrong every day of the week. A society is right to ban murder always and everywhere. -My point is instead one that democracies understood for - generations, -but that we recently have learned to forget. The rule of law -depends upon people obeying the law. The more often, and more - repeatedly, -we as citizens experience violating the law, the less we respect -the law. Obviously, in most cases, the important issue is the law, not -respect for the law. I don't care whether the rapist respects the law or -not; I want to catch and incarcerate the rapist. But I do care whether -my students respect the law. And I do care if the rules of law sow - increasing -disrespect because of the extreme of regulation they impose. -Twenty million Americans have come of age since the Internet - introduced -this different idea of "sharing." We need to be able to call these -twenty million Americans "citizens," not "felons." - - -When at least forty-three million citizens download content from -the Internet, and when they use tools to combine that content in ways -unauthorized by copyright holders, the first question we should be - asking -is not how best to involve the FBI. The first question should be -whether this particular prohibition is really necessary in order to achieve -the proper ends that copyright law serves. Is there another way to -assure that artists get paid without transforming forty-three million -Americans into felons? Does it make sense if there are other ways to -assure that artists get paid without transforming America into a nation -of felons? +My point is instead one that democracies understood for generations, +but that we recently have learned to forget. The rule of law depends +upon people obeying the law. The more often, and more repeatedly, we +as citizens experience violating the law, the less we respect the +law. Obviously, in most cases, the important issue is the law, not +respect for the law. I don't care whether the rapist respects the law +or not; I want to catch and incarcerate the rapist. But I do care +whether my students respect the law. And I do care if the rules of law +sow increasing disrespect because of the extreme of regulation they +impose. Twenty million Americans have come of age since the Internet +introduced this different idea of "sharing." We need to be able to +call these twenty million Americans "citizens," not "felons." + + +When at least forty-three million citizens download content from the +Internet, and when they use tools to combine that content in ways +unauthorized by copyright holders, the first question we should be +asking is not how best to involve the FBI. The first question should +be whether this particular prohibition is really necessary in order to +achieve the proper ends that copyright law serves. Is there another +way to assure that artists get paid without transforming forty-three +million Americans into felons? Does it make sense if there are other +ways to assure that artists get paid without transforming America into +a nation of felons? This abstract point can be made more clear with a particular example. -We all own CDs. Many of us still own phonograph records. These -pieces of plastic encode music that in a certain sense we have bought. -The law protects our right to buy and sell that plastic: It is not a - copyright -infringement for me to sell all my classical records at a used +We all own CDs. Many of us still own phonograph records. These pieces +of plastic encode music that in a certain sense we have bought. The +law protects our right to buy and sell that plastic: It is not a +copyright infringement for me to sell all my classical records at a +used record store and buy jazz records to replace them. That "use" of the @@ -10105,39 +9988,35 @@ not be between property and piracy; the choice would be between different property systems and the freedoms each allowed. -I believe there is a way to assure that artists are paid without - turning -forty-three million Americans into felons. But the salient feature -of this alternative is that it would lead to a very different market for -producing and distributing creativity. The dominant few, who today -control the vast majority of the distribution of content in the world, -would no longer exercise this extreme of control. Rather, they would go -the way of the horse-drawn buggy. - - -Except that this generation's buggy manufacturers have already -saddled Congress, and are riding the law to protect themselves against -this new form of competition. For them the choice is between - fortythree +I believe there is a way to assure that artists are paid without +turning forty-three million Americans into felons. But the salient +feature of this alternative is that it would lead to a very different +market for producing and distributing creativity. The dominant few, +who today control the vast majority of the distribution of content in +the world, would no longer exercise this extreme of control. Rather, +they would go the way of the horse-drawn buggy. + + +Except that this generation's buggy manufacturers have already saddled +Congress, and are riding the law to protect themselves against this +new form of competition. For them the choice is between fortythree million Americans as criminals and their own survival. -It is understandable why they choose as they do. It is not - understandable -why we as a democracy continue to choose as we do. Jack +It is understandable why they choose as they do. It is not +understandable why we as a democracy continue to choose as we do. Jack -Valenti is charming; but not so charming as to justify giving up a - tradition -as deep and important as our tradition of free culture. -There's one more aspect to this corruption that is particularly - important -to civil liberties, and follows directly from any war of - prohibition. -As Electronic Frontier Foundation attorney Fred von Lohmann -describes, this is the "collateral damage" that "arises whenever you turn -a very large percentage of the population into criminals." This is the -collateral damage to civil liberties generally. + +Valenti is charming; but not so charming as to justify giving up a +tradition as deep and important as our tradition of free culture. +There's one more aspect to this corruption that is particularly +important to civil liberties, and follows directly from any war of +prohibition. As Electronic Frontier Foundation attorney Fred von +Lohmann describes, this is the "collateral damage" that "arises +whenever you turn a very large percentage of the population into +criminals." This is the collateral damage to civil liberties +generally. "If you can treat someone as a putative lawbreaker," von Lohmann @@ -10145,18 +10024,15 @@ explains,
-then all of a sudden a lot of basic civil liberty protections - evaporate -to one degree or another. . . . If you're a copyright infringer, -how can you hope to have any privacy rights? If you're a copyright -infringer, how can you hope to be secure against seizures of your -computer? How can you hope to continue to receive Internet -access? . . . Our sensibilities change as soon as we think, "Oh, -well, but that person's a criminal, a lawbreaker." Well, what this -campaign against file sharing has done is turn a remarkable - percentage -of the American Internet-using population into - "lawbreakers." +then all of a sudden a lot of basic civil liberty protections +evaporate to one degree or another. . . . If you're a copyright +infringer, how can you hope to have any privacy rights? If you're a +copyright infringer, how can you hope to be secure against seizures of +your computer? How can you hope to continue to receive Internet +access? . . . Our sensibilities change as soon as we think, "Oh, well, +but that person's a criminal, a lawbreaker." Well, what this campaign +against file sharing has done is turn a remarkable percentage of the +American Internet-using population into "lawbreakers."
@@ -10165,37 +10041,34 @@ into criminals is that it becomes trivial, as a matter of due process, to effectively erase much of the privacy most would presume. -Users of the Internet began to see this generally in 2003 as the -RIAA launched its campaign to force Internet service providers to turn -over the names of customers who the RIAA believed were violating -copyright law. Verizon fought that demand and lost. With a simple - request -to a judge, and without any notice to the customer at all, the -identity of an Internet user is revealed. +Users of the Internet began to see this generally in 2003 as the RIAA +launched its campaign to force Internet service providers to turn over +the names of customers who the RIAA believed were violating copyright +law. Verizon fought that demand and lost. With a simple request to a +judge, and without any notice to the customer at all, the identity of +an Internet user is revealed. - -The RIAA then expanded this campaign, by announcing a general -strategy to sue individual users of the Internet who are alleged to have +The RIAA then expanded this campaign, by announcing a general strategy +to sue individual users of the Internet who are alleged to have downloaded copyrighted music from file-sharing systems. But as we've -seen, the potential damages from these suits are astronomical: If a - family's -computer is used to download a single CD's worth of music, the -family could be liable for $2 million in damages. That didn't stop the -RIAA from suing a number of these families, just as they had sued +seen, the potential damages from these suits are astronomical: If a +family's computer is used to download a single CD's worth of music, +the family could be liable for $2 million in damages. That didn't stop +the RIAA from suing a number of these families, just as they had sued Jesse Jordan. - See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single -Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," - Washington -Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents Pull -Plug on File `Stealing'; With the Music Industry Cracking Down on File -Swapping, Parents are Yanking Software from Home PCs to Avoid Being -Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham, -"Recording Industry Sues Parents," USA Today, 15 September 2003, 4D; -John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either," -New York Times, 25 September 2003, C1; Margo Varadi, "Is Brianna a -Criminal?" Toronto Star, 18 September 2003, P7. + +See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single +Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," +Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents +Pull Plug on File `Stealing'; With the Music Industry Cracking Down on +File Swapping, Parents are Yanking Software from Home PCs to Avoid +Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson +Graham, "Recording Industry Sues Parents," USA Today, 15 September +2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop +Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is +Brianna a Criminal?" Toronto Star, 18 September 2003, P7. @@ -10203,58 +10076,54 @@ Criminal?" Toronto Star, 18 September 2003, P7. Even this understates the espionage that is being waged by the RIAA. A report from CNN late last summer described a strategy the RIAA had adopted to track Napster users. - See "Revealed: How RIAA Tracks Downloaders: Music Industry - Discloses -Some Methods Used," CNN.com, available at + +See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses +Some Methods Used," CNN.com, available at link #47. - Using a sophisticated -hashing algorithm, the RIAA took what is in effect a fingerprint of -every song in the Napster catalog. Any copy of one of those MP3s will -have the same "fingerprint." - - -So imagine the following not-implausible scenario: Imagine a -friend gives a CD to your daughter—a collection of songs just like the -cassettes you used to make as a kid. You don't know, and neither does -your daughter, where these songs came from. But she copies these -songs onto her computer. She then takes her computer to college and -connects it to a college network, and if the college network is - "cooperating" -with the RIAA's espionage, and she hasn't properly protected -her content from the network (do you know how to do that yourself ?), -then the RIAA will be able to identify your daughter as a "criminal." -And under the rules that universities are beginning to deploy, - See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," Boston -Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued -over Music Sites; Industry Group Targets File Sharing at Colleges," - Washington -Post, 4 April 2003, E1; Elizabeth Armstrong, "Students `Rip, Mix, -Burn' at Their Own Risk," Christian Science Monitor, 2 September 2003, -20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to - Loyola; -Two Students Names Are Handed Over; Lawsuit Possible," Chicago -Tribune, 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on -Universities," Internet News, 30 January 2003, available at -link #48; Benny -Evangelista, "Download Warning 101: Freshman Orientation This Fall to -Include Record Industry Warnings Against File Sharing," San Francisco -Chronicle, 11 August 2003, E11; "Raid, Letters Are Weapons at - Universities," -USA Today, 26 September 2000, 3D. - - your -daughter can lose the right to use the university's computer network. -She can, in some cases, be expelled. +Using a sophisticated hashing algorithm, the RIAA took what is in +effect a fingerprint of every song in the Napster catalog. Any copy of +one of those MP3s will have the same "fingerprint." + + +So imagine the following not-implausible scenario: Imagine a +friend gives a CD to your daughter—a collection of songs just +like the cassettes you used to make as a kid. You don't know, and +neither does your daughter, where these songs came from. But she +copies these songs onto her computer. She then takes her computer to +college and connects it to a college network, and if the college +network is "cooperating" with the RIAA's espionage, and she hasn't +properly protected her content from the network (do you know how to do +that yourself ?), then the RIAA will be able to identify your daughter +as a "criminal." And under the rules that universities are beginning +to deploy, + +See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," +Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four +Students Sued over Music Sites; Industry Group Targets File Sharing at +Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong, +"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science +Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music +Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over; +Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA +Trains Antipiracy Guns on Universities," Internet News, 30 January +2003, available at link +#48; Benny Evangelista, "Download Warning 101: Freshman +Orientation This Fall to Include Record Industry Warnings Against File +Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters +Are Weapons at Universities," USA Today, 26 September 2000, 3D. + +your daughter can lose the right to use the university's computer +network. She can, in some cases, be expelled. Now, of course, she'll have the right to defend herself. You can hire -a lawyer for her (at $300 per hour, if you're lucky), and she can plead -that she didn't know anything about the source of the songs or that -they came from Napster. And it may well be that the university believes -her. But the university might not believe her. It might treat this - "contraband" -as presumptive of guilt. And as any number of college students +a lawyer for her (at $300 per hour, if you're lucky), and she can +plead that she didn't know anything about the source of the songs or +that they came from Napster. And it may well be that the university +believes her. But the university might not believe her. It might treat +this "contraband" as presumptive of guilt. And as any number of +college students have already learned, our presumptions about innocence disappear in @@ -10266,33 +10135,29 @@ Says von Lohmann, So when we're talking about numbers like forty to sixty million Americans that are essentially copyright infringers, you create a situation where the civil liberties of those people are very much in -peril in a general matter. [I don't] think [there is any] analog -where you could randomly choose any person off the street and be -confident that they were committing an unlawful act that could -put them on the hook for potential felony liability or hundreds of -millions of dollars of civil liability. Certainly we all speed, but -speeding isn't the kind of an act for which we routinely forfeit -civil liberties. Some people use drugs, and I think that's the - closest -analog, [but] many have noted that the war against drugs has -eroded all of our civil liberties because it's treated so many - Americans -as criminals. Well, I think it's fair to say that file sharing -is an order of magnitude larger number of Americans than drug -use. . . . If forty to sixty million Americans have become - lawbreakers, -then we're really on a slippery slope to lose a lot of civil -liberties for all forty to sixty million of them. +peril in a general matter. [I don't] think [there is any] analog where +you could randomly choose any person off the street and be confident +that they were committing an unlawful act that could put them on the +hook for potential felony liability or hundreds of millions of dollars +of civil liability. Certainly we all speed, but speeding isn't the +kind of an act for which we routinely forfeit civil liberties. Some +people use drugs, and I think that's the closest analog, [but] many +have noted that the war against drugs has eroded all of our civil +liberties because it's treated so many Americans as criminals. Well, I +think it's fair to say that file sharing is an order of magnitude +larger number of Americans than drug use. . . . If forty to sixty +million Americans have become lawbreakers, then we're really on a +slippery slope to lose a lot of civil liberties for all forty to sixty +million of them. -When forty to sixty million Americans are considered "criminals" -under the law, and when the law could achieve the same objective— -securing rights to authors—without these millions being considered -"criminals," who is the villain? Americans or the law? Which is - American, -a constant war on our own people or a concerted effort through -our democracy to change our law? +When forty to sixty million Americans are considered "criminals" under +the law, and when the law could achieve the same objective— +securing rights to authors—without these millions being +considered "criminals," who is the villain? Americans or the law? +Which is American, a constant war on our own people or a concerted +effort through our democracy to change our law? @@ -10311,75 +10176,65 @@ filled with gasoline. Obviously, gasoline won't put the fire out. As you ponder the mess, someone else comes along. In a panic, she -grabs the bucket. Before you have a chance to tell her to stop—or - before -she understands just why she should stop—the bucket is in the air. -The gasoline is about to hit the blazing car. And the fire that gasoline -will ignite is about to ignite everything around. +grabs the bucket. Before you have a chance to tell her to +stop—or before she understands just why she should +stop—the bucket is in the air. The gasoline is about to hit the +blazing car. And the fire that gasoline will ignite is about to ignite +everything around. -A war about copyright rages all around—and we're all focusing on the -wrong thing. No doubt, current technologies threaten existing - businesses. -No doubt they may threaten artists. But technologies change. -The industry and technologists have plenty of ways to use technology -to protect themselves against the current threats of the Internet. This -is a fire that if let alone would burn itself out. +A war about copyright rages all around—and we're all focusing on +the wrong thing. No doubt, current technologies threaten existing +businesses. No doubt they may threaten artists. But technologies +change. The industry and technologists have plenty of ways to use +technology to protect themselves against the current threats of the +Internet. This is a fire that if let alone would burn itself out. Yet policy makers are not willing to leave this fire to itself. Primed -with plenty of lobbyists' money, they are keen to intervene to eliminate -the problem they perceive. But the problem they perceive is not the real -threat this culture faces. For while we watch this small fire in the - corner, -there is a massive change in the way culture is made that is - happening -all around. +with plenty of lobbyists' money, they are keen to intervene to +eliminate the problem they perceive. But the problem they perceive is +not the real threat this culture faces. For while we watch this small +fire in the corner, there is a massive change in the way culture is +made that is happening all around. -Somehow we have to find a way to turn attention to this more - important -and fundamental issue. Somehow we have to find a way to -avoid pouring gasoline onto this fire. +Somehow we have to find a way to turn attention to this more important +and fundamental issue. Somehow we have to find a way to avoid pouring +gasoline onto this fire. -We have not found that way yet. Instead, we seem trapped in a - simpler, -binary view. However much many people push to frame this - debate -more broadly, it is the simple, binary view that remains. We -rubberneck to look at the fire when we should be keeping our eyes on -the road. +We have not found that way yet. Instead, we seem trapped in a simpler, +binary view. However much many people push to frame this debate more +broadly, it is the simple, binary view that remains. We rubberneck to +look at the fire when we should be keeping our eyes on the road. This challenge has been my life these last few years. It has also been -my failure. In the two chapters that follow, I describe one small brace -of efforts, so far failed, to find a way to refocus this debate. We must -understand these failures if we're to understand what success will - require. +my failure. In the two chapters that follow, I describe one small +brace of efforts, so far failed, to find a way to refocus this +debate. We must understand these failures if we're to understand what +success will require. CHAPTER THIRTEEN: Eldred - -In 1995, a father was frustrated that his daughters didn't seem to like -Hawthorne. No doubt there was more than one such father, but at least -one did something about it. Eric Eldred, a retired computer - programmer -living in New Hampshire, decided to put Hawthorne on the +In 1995, a father was frustrated that his daughters didn't seem to +like Hawthorne. No doubt there was more than one such father, but at +least one did something about it. Eric Eldred, a retired computer +programmer living in New Hampshire, decided to put Hawthorne on the Web. An electronic version, Eldred thought, with links to pictures and explanatory text, would make this nineteenth-century author's work come alive. -It didn't work—at least for his daughters. They didn't find - Hawthorne -any more interesting than before. But Eldred's experiment gave -birth to a hobby, and his hobby begat a cause: Eldred would build a -library of public domain works by scanning these works and making +It didn't work—at least for his daughters. They didn't find +Hawthorne any more interesting than before. But Eldred's experiment +gave birth to a hobby, and his hobby begat a cause: Eldred would build +a library of public domain works by scanning these works and making them available for free. @@ -10389,55 +10244,49 @@ across the world who can't get access to printed versions of these works. Instead, Eldred was producing derivative works from these public domain works. Just as Disney turned Grimm into stories more -accessible to the twentieth century, Eldred transformed Hawthorne, -and many others, into a form more accessible—technically - accessible—today. +accessible to the twentieth century, Eldred transformed Hawthorne, and +many others, into a form more accessible—technically +accessible—today. -Eldred's freedom to do this with Hawthorne's work grew from the -same source as Disney's. Hawthorne's Scarlet Letter had passed into the -public domain in 1907. It was free for anyone to take without the - permission -of the Hawthorne estate or anyone else. Some, such as Dover +Eldred's freedom to do this with Hawthorne's work grew from the same +source as Disney's. Hawthorne's Scarlet Letter had passed into the +public domain in 1907. It was free for anyone to take without the +permission of the Hawthorne estate or anyone else. Some, such as Dover Press and Penguin Classics, take works from the public domain and produce printed editions, which they sell in bookstores across the country. Others, such as Disney, take these stories and turn them into animated cartoons, sometimes successfully (Cinderella), sometimes not -(The Hunchback of Notre Dame, Treasure Planet). These are all - commercial -publications of public domain works. - - -The Internet created the possibility of noncommercial publications -of public domain works. Eldred's is just one example. There are - literally -thousands of others. Hundreds of thousands from across the world -have discovered this platform of expression and now use it to share -works that are, by law, free for the taking. This has produced what we -might call the "noncommercial publishing industry," which before the -Internet was limited to people with large egos or with political or - social -causes. But with the Internet, it includes a wide range of - individuals -and groups dedicated to spreading culture generally. - There's a parallel here with pornography that is a bit hard to describe, but -it's a strong one. One phenomenon that the Internet created was a world -of noncommercial pornographers—people who were distributing porn -but were not making money directly or indirectly from that distribution. -Such a class didn't exist before the Internet came into being because the -costs of distributing porn were so high. Yet this new class of distributors -got special attention in the Supreme Court, when the Court struck down -the Communications Decency Act of 1996. It was partly because of the -burden on noncommercial speakers that the statute was found to exceed -Congress's power. The same point could have been made about - noncommercial +(The Hunchback of Notre Dame, Treasure Planet). These are all +commercial publications of public domain works. + + +The Internet created the possibility of noncommercial publications of +public domain works. Eldred's is just one example. There are literally +thousands of others. Hundreds of thousands from across the world have +discovered this platform of expression and now use it to share works +that are, by law, free for the taking. This has produced what we might +call the "noncommercial publishing industry," which before the +Internet was limited to people with large egos or with political or +social causes. But with the Internet, it includes a wide range of +individuals and groups dedicated to spreading culture +generally. + +There's a parallel here with pornography that is a bit hard to +describe, but it's a strong one. One phenomenon that the Internet +created was a world of noncommercial pornographers—people who +were distributing porn but were not making money directly or +indirectly from that distribution. Such a class didn't exist before +the Internet came into being because the costs of distributing porn +were so high. Yet this new class of distributors got special attention +in the Supreme Court, when the Court struck down the Communications +Decency Act of 1996. It was partly because of the burden on +noncommercial speakers that the statute was found to exceed Congress's +power. The same point could have been made about noncommercial publishers after the advent of the Internet. The Eric Eldreds of the -world before the Internet were extremely few. Yet one would think it at -least as important to protect the Eldreds of the world as to protect - noncommercial -pornographers. - - +world before the Internet were extremely few. Yet one would think it +at least as important to protect the Eldreds of the world as to +protect noncommercial pornographers. As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's @@ -11075,18 +10924,19 @@ Yet, for most of our history, they also did little harm. For most of our history, when a work ended its commercial life, there was no copyright-related use that would be inhibited by an exclusive right. When a book went out of print, you could not buy it from a publisher. -But you could still buy it from a used book store, and when a used book -store sells it, in America, at least, there is no need to pay the copyright -owner anything. Thus, the ordinary use of a book after its commercial -life ended was a use that was independent of copyright law. +But you could still buy it from a used book store, and when a used +book store sells it, in America, at least, there is no need to pay the +copyright owner anything. Thus, the ordinary use of a book after its +commercial life ended was a use that was independent of copyright law. The same was effectively true of film. Because the costs of restoring -a film—the real economic costs, not the lawyer costs—were so high, it -was never at all feasible to preserve or restore film. Like the remains of -a great dinner, when it's over, it's over. Once a film passed out of its -commercial life, it may have been archived for a bit, but that was the -end of its life so long as the market didn't have more to offer. +a film—the real economic costs, not the lawyer costs—were +so high, it was never at all feasible to preserve or restore +film. Like the remains of a great dinner, when it's over, it's +over. Once a film passed out of its commercial life, it may have been +archived for a bit, but that was the end of its life so long as the +market didn't have more to offer. In other words, though copyright has been relatively short for most @@ -11102,41 +10952,34 @@ One crucially important consequence of the emergence of digital technologies is to enable the archive that Brewster Kahle dreams of. Digital technologies now make it possible to preserve and give access to all sorts of knowledge. Once a book goes out of print, we can now -imagine digitizing it and making it available to everyone, forever. Once -a film goes out of distribution, we could digitize it and make it - available -to everyone, forever. Digital technologies give new life to - copyrighted -material after it passes out of its commercial life. It is now -possible to preserve and assure universal access to this knowledge and -culture, whereas before it was not. +imagine digitizing it and making it available to everyone, +forever. Once a film goes out of distribution, we could digitize it +and make it available to everyone, forever. Digital technologies give +new life to copyrighted material after it passes out of its commercial +life. It is now possible to preserve and assure universal access to +this knowledge and culture, whereas before it was not. -And now copyright law does get in the way. Every step of - producing -this digital archive of our culture infringes on the exclusive right of -copyright. To digitize a book is to copy it. To do that requires - permission -of the copyright owner. The same with music, film, or any other -aspect of our culture protected by copyright. The effort to make these -things available to history, or to researchers, or to those who just want -to explore, is now inhibited by a set of rules that were written for a - radically -different context. - - -Here is the core of the harm that comes from extending terms: -Now that technology enables us to rebuild the library of Alexandria, -the law gets in the way. And it doesn't get in the way for any useful -copyright purpose, for the purpose of copyright is to enable the - commercial -market that spreads culture. No, we are talking about culture -after it has lived its commercial life. In this context, copyright is - serving -no purpose at all related to the spread of knowledge. In this - context, -copyright is not an engine of free expression. Copyright is a brake. +And now copyright law does get in the way. Every step of producing +this digital archive of our culture infringes on the exclusive right +of copyright. To digitize a book is to copy it. To do that requires +permission of the copyright owner. The same with music, film, or any +other aspect of our culture protected by copyright. The effort to make +these things available to history, or to researchers, or to those who +just want to explore, is now inhibited by a set of rules that were +written for a radically different context. + + +Here is the core of the harm that comes from extending terms: Now that +technology enables us to rebuild the library of Alexandria, the law +gets in the way. And it doesn't get in the way for any useful +copyright purpose, for the purpose of copyright is to enable the +commercial market that spreads culture. No, we are talking about +culture after it has lived its commercial life. In this context, +copyright is serving no purpose at all related to the spread of +knowledge. In this context, copyright is not an engine of free +expression. Copyright is a brake. You may well ask, "But if digital technologies lower the costs for @@ -11145,18 +10988,15 @@ So won't Random House do as well as Brewster Kahle in spreading culture widely?" -Maybe. Someday. But there is absolutely no evidence to suggest -that publishers would be as complete as libraries. If Barnes & Noble -offered to lend books from its stores for a low price, would that - eliminate -the need for libraries? Only if you think that the only role of a - library -is to serve what "the market" would demand. But if you think the -role of a library is bigger than this—if you think its role is to archive -culture, whether there's a demand for any particular bit of that culture -or not—then we can't count on the commercial market to do our - library -work for us. +Maybe. Someday. But there is absolutely no evidence to suggest that +publishers would be as complete as libraries. If Barnes & Noble +offered to lend books from its stores for a low price, would that +eliminate the need for libraries? Only if you think that the only role +of a library is to serve what "the market" would demand. But if you +think the role of a library is bigger than this—if you think its +role is to archive culture, whether there's a demand for any +particular bit of that culture or not—then we can't count on the +commercial market to do our library work for us. I would be the first to agree that it should do as much as it can: We @@ -11165,36 +11005,30 @@ culture. My message is absolutely not antimarket. But where we see the market is not doing the job, then we should allow nonmarket forces the -freedom to fill the gaps. As one researcher calculated for American - culture, -94 percent of the films, books, and music produced between +freedom to fill the gaps. As one researcher calculated for American +culture, 94 percent of the films, books, and music produced between and 1946 is not commercially available. However much you love the -commercial market, if access is a value, then 6 percent is a failure to -provide that value. - Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20 - December -2002, available at +commercial market, if access is a value, then 6 percent is a failure +to provide that value. + +Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20 +December 2002, available at link #54. -In January 1999, we filed a lawsuit on Eric Eldred's behalf in - federal +In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal district court in Washington, D.C., asking the court to declare the Sonny Bono Copyright Term Extension Act unconstitutional. The two -central claims that we made were (1) that extending existing terms - violated -the Constitution's "limited Times" requirement, and (2) that - extending -terms by another twenty years violated the First Amendment. +central claims that we made were (1) that extending existing terms +violated the Constitution's "limited Times" requirement, and (2) that +extending terms by another twenty years violated the First Amendment. -The district court dismissed our claims without even hearing an - argument. -A panel of the Court of Appeals for the D.C. Circuit also - dismissed -our claims, though after hearing an extensive argument. But +The district court dismissed our claims without even hearing an +argument. A panel of the Court of Appeals for the D.C. Circuit also +dismissed our claims, though after hearing an extensive argument. But that decision at least had a dissent, by one of the most conservative judges on that court. That dissent gave our claims life. @@ -11204,10 +11038,9 @@ copyrights be for "limited Times" only. His argument was as elegant as it was simple: If Congress can extend existing terms, then there is no "stopping point" to Congress's power under the Copyright Clause. The power to extend existing terms means Congress is not required to grant -terms that are "limited." Thus, Judge Sentelle argued, the court had to -interpret the term "limited Times" to give it meaning. And the best - interpretation, -Judge Sentelle argued, would be to deny Congress the +terms that are "limited." Thus, Judge Sentelle argued, the court had +to interpret the term "limited Times" to give it meaning. And the best +interpretation, Judge Sentelle argued, would be to deny Congress the power to extend existing terms. @@ -11222,9 +11055,8 @@ This time, Judge Sentelle was joined by the most liberal member of the D.C. Circuit, Judge David Tatel. Both the most conservative and the -most liberal judges in the D.C. Circuit believed Congress had - overstepped -its bounds. +most liberal judges in the D.C. Circuit believed Congress had +overstepped its bounds. It was here that most expected Eldred v. Ashcroft would die, for the @@ -11240,16 +11072,14 @@ was set for October of 2002. The summer would be spent writing briefs and preparing for argument. -It is over a year later as I write these words. It is still astonishingly -hard. If you know anything at all about this story, you know that we -lost the appeal. And if you know something more than just the - minimum, -you probably think there was no way this case could have been -won. After our defeat, I received literally thousands of missives by -well-wishers and supporters, thanking me for my work on behalf of -this noble but doomed cause. And none from this pile was more - significant -to me than the e-mail from my client, Eric Eldred. +It is over a year later as I write these words. It is still +astonishingly hard. If you know anything at all about this story, you +know that we lost the appeal. And if you know something more than just +the minimum, you probably think there was no way this case could have +been won. After our defeat, I received literally thousands of missives +by well-wishers and supporters, thanking me for my work on behalf of +this noble but doomed cause. And none from this pile was more +significant to me than the e-mail from my client, Eric Eldred. But my client and these friends were wrong. This case could have @@ -11257,19 +11087,21 @@ been won. It should have been won. And no matter how hard I try to retell this story to myself, I can never escape believing that my own mistake lost it. +Steward, Geoffrey -The mistake was made early, though it became obvious only at the -very end. Our case had been supported from the very beginning by an - extraordinary -lawyer, Geoffrey Stewart, and by the law firm he had moved -to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat +The mistake was made early, though it became obvious only at the very +end. Our case had been supported from the very beginning by an +extraordinary lawyer, Geoffrey Stewart, and by the law firm he had +moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of +heat from its copyright-protectionist clients for supporting us. They - ignored -this pressure (something that few law firms today would ever +ignored this pressure (something that few law firms today would ever do), and throughout the case, they gave it everything they could. Ayer, Don +Bromberg, Dan +Steward, Geoffrey There were three key lawyers on the case from Jones Day. Geoff Stewart was the first, but then Dan Bromberg and Don Ayer became @@ -11493,40 +11325,38 @@ five who had supported the Lopez/Morrison line of cases that said that an enumerated power had to be interpreted to assure that Congress's powers had limits. +Breyer, Stephen The Rest were the four Justices who had strongly opposed limits on -Congress's power. These four—Justice Stevens, Justice Souter, Justice -Ginsburg, and Justice Breyer—had repeatedly argued that the - Constitution +Congress's power. These four—Justice Stevens, Justice Souter, +Justice Ginsburg, and Justice Breyer—had repeatedly argued that +the Constitution -gives Congress broad discretion to decide how best to - implement -its powers. In case after case, these justices had argued that the -Court's role should be one of deference. Though the votes of these four +gives Congress broad discretion to decide how best to implement its +powers. In case after case, these justices had argued that the Court's +role should be one of deference. Though the votes of these four justices were the votes that I personally had most consistently agreed with, they were also the votes that we were least likely to get. In particular, the least likely was Justice Ginsburg's. In addition to her general view about deference to Congress (except where issues of -gender are involved), she had been particularly deferential in the - context -of intellectual property protections. She and her daughter (an - excellent -and well-known intellectual property scholar) were cut from +gender are involved), she had been particularly deferential in the +context of intellectual property protections. She and her daughter (an +excellent and well-known intellectual property scholar) were cut from the same intellectual property cloth. We expected she would agree with -the writings of her daughter: that Congress had the power in this - context -to do as it wished, even if what Congress wished made little sense. +the writings of her daughter: that Congress had the power in this +context to do as it wished, even if what Congress wished made little +sense. +Breyer, Stephen -Close behind Justice Ginsburg were two justices whom we also -viewed as unlikely allies, though possible surprises. Justice Souter -strongly favored deference to Congress, as did Justice Breyer. But both -were also very sensitive to free speech concerns. And as we strongly - believed, -there was a very important free speech argument against these -retrospective extensions. +Close behind Justice Ginsburg were two justices whom we also viewed as +unlikely allies, though possible surprises. Justice Souter strongly +favored deference to Congress, as did Justice Breyer. But both were +also very sensitive to free speech concerns. And as we strongly +believed, there was a very important free speech argument against +these retrospective extensions. The only vote we could be confident about was that of Justice @@ -11857,45 +11687,40 @@ that context, Congress's power would be limited, but in this context it would not. -Yet by what right did they get to choose which of the framers' - values -they would respect? By what right did they—the silent five—get to -select the part of the Constitution they would enforce based on the - values -they thought important? We were right back to the argument that -I said I hated at the start: I had failed to convince them that the issue -here was important, and I had failed to recognize that however much I -might hate a system in which the Court gets to pick the constitutional -values that it will respect, that is the system we have. +Yet by what right did they get to choose which of the framers' values +they would respect? By what right did they—the silent +five—get to select the part of the Constitution they would +enforce based on the values they thought important? We were right back +to the argument that I said I hated at the start: I had failed to +convince them that the issue here was important, and I had failed to +recognize that however much I might hate a system in which the Court +gets to pick the constitutional values that it will respect, that is +the system we have. +Breyer, Stephen Justices Breyer and Stevens wrote very strong dissents. Stevens's -opinion was crafted internal to the law: He argued that the tradition of -intellectual property law should not support this unjustified extension -of terms. He based his argument on a parallel analysis that had - governed -in the context of patents (so had we). But the rest of the Court -discounted the parallel—without explaining how the very same words -in the Progress Clause could come to mean totally different things - depending -upon whether the words were about patents or copyrights. -The Court let Justice Stevens's charge go unanswered. +opinion was crafted internal to the law: He argued that the tradition +of intellectual property law should not support this unjustified +extension of terms. He based his argument on a parallel analysis that +had governed in the context of patents (so had we). But the rest of +the Court discounted the parallel—without explaining how the +very same words in the Progress Clause could come to mean totally +different things depending upon whether the words were about patents +or copyrights. The Court let Justice Stevens's charge go unanswered. +Breyer, Stephen - -Justice Breyer's opinion, perhaps the best opinion he has ever - written, -was external to the Constitution. He argued that the term of - copyrights -has become so long as to be effectively unlimited. We had said -that under the current term, a copyright gave an author 99.8 percent of -the value of a perpetual term. Breyer said we were wrong, that the - actual -number was 99.9997 percent of a perpetual term. Either way, the -point was clear: If the Constitution said a term had to be "limited," and -the existing term was so long as to be effectively unlimited, then it was -unconstitutional. +Justice Breyer's opinion, perhaps the best opinion he has ever +written, was external to the Constitution. He argued that the term of +copyrights has become so long as to be effectively unlimited. We had +said that under the current term, a copyright gave an author 99.8 +percent of the value of a perpetual term. Breyer said we were wrong, +that the actual number was 99.9997 percent of a perpetual term. Either +way, the point was clear: If the Constitution said a term had to be +"limited," and the existing term was so long as to be effectively +unlimited, then it was unconstitutional. These two justices understood all the arguments we had made. But @@ -11912,15 +11737,15 @@ the depression. This anger was of two sorts. It was first anger with the five "Conservatives." It would have been one thing for them to have explained why the principle of Lopez didn't -apply in this case. That wouldn't have been a very convincing - argument, -I don't believe, having read it made by others, and having tried -to make it myself. But it at least would have been an act of integrity. -These justices in particular have repeatedly said that the proper mode -of interpreting the Constitution is "originalism"—to first understand -the framers' text, interpreted in their context, in light of the structure -of the Constitution. That method had produced Lopez and many other -"originalist" rulings. Where was their "originalism" now? +apply in this case. That wouldn't have been a very convincing +argument, I don't believe, having read it made by others, and having +tried to make it myself. But it at least would have been an act of +integrity. These justices in particular have repeatedly said that the +proper mode of interpreting the Constitution is "originalism"—to +first understand the framers' text, interpreted in their context, in +light of the structure of the Constitution. That method had produced +Lopez and many other "originalist" rulings. Where was their +"originalism" now? Here, they had joined an opinion that never once tried to explain @@ -11931,12 +11756,11 @@ structure of that clause would affect the interpretation of Congress's power. And they joined an opinion that didn't even try to explain why this grant of power could be unlimited, whereas the Commerce Clause -would be limited. In short, they had joined an opinion that did not - apply -to, and was inconsistent with, their own method for interpreting -the Constitution. This opinion may well have yielded a result that they -liked. It did not produce a reason that was consistent with their own -principles. +would be limited. In short, they had joined an opinion that did not +apply to, and was inconsistent with, their own method for interpreting +the Constitution. This opinion may well have yielded a result that +they liked. It did not produce a reason that was consistent with their +own principles. My anger with the Conservatives quickly yielded to anger with @@ -11958,25 +11782,22 @@ to waste my time showing it should also follow in popularity. As I read back over the transcript from that argument in October, I -can see a hundred places where the answers could have taken the - conversation -in different directions, where the truth about the harm that -this unchecked power will cause could have been made clear to this -Court. Justice Kennedy in good faith wanted to be shown. I, idiotically, -corrected his question. Justice Souter in good faith wanted to be shown -the First Amendment harms. I, like a math teacher, reframed the - question -to make the logical point. I had shown them how they could strike -this law of Congress if they wanted to. There were a hundred places -where I could have helped them want to, yet my stubbornness, my - refusal -to give in, stopped me. I have stood before hundreds of audiences -trying to persuade; I have used passion in that effort to persuade; but I +can see a hundred places where the answers could have taken the +conversation in different directions, where the truth about the harm +that this unchecked power will cause could have been made clear to +this Court. Justice Kennedy in good faith wanted to be shown. I, +idiotically, corrected his question. Justice Souter in good faith +wanted to be shown the First Amendment harms. I, like a math teacher, +reframed the question to make the logical point. I had shown them how +they could strike this law of Congress if they wanted to. There were a +hundred places where I could have helped them want to, yet my +stubbornness, my refusal to give in, stopped me. I have stood before +hundreds of audiences trying to persuade; I have used passion in that +effort to persuade; but I refused to stand before this audience and try to persuade with the - passion -I had used elsewhere. It was not the basis on which a court should -decide the issue. +passion I had used elsewhere. It was not the basis on which a court +should decide the issue. Ayer, Don @@ -11999,11 +11820,10 @@ have persuaded. And even if I couldn't, then that doesn't excuse what happened in -January. For at the start of this case, one of America's leading - intellectual -property professors stated publicly that my bringing this case was -a mistake. "The Court is not ready," Peter Jaszi said; this issue should -not be raised until it is. +January. For at the start of this case, one of America's leading +intellectual property professors stated publicly that my bringing this +case was a mistake. "The Court is not ready," Peter Jaszi said; this +issue should not be raised until it is. After the argument and after the decision, Peter said to me, and @@ -12019,41 +11839,36 @@ No one, at least in the press, tried to say that extending the term of copyright was a good idea. We had won that battle over ideas. Where -the decision was praised, it was praised by papers that had been - skeptical -of the Court's activism in other cases. Deference was a good thing, -even if it left standing a silly law. But where the decision was attacked, -it was attacked because it left standing a silly and harmful law. The New -York Times wrote in its editorial, +the decision was praised, it was praised by papers that had been +skeptical of the Court's activism in other cases. Deference was a good +thing, even if it left standing a silly law. But where the decision +was attacked, it was attacked because it left standing a silly and +harmful law. The New York Times wrote in its editorial,
In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of -copyright perpetuity. The public domain has been a grand - experiment, -one that should not be allowed to die. The ability to draw -freely on the entire creative output of humanity is one of the - reasons -we live in a time of such fruitful creative ferment. +copyright perpetuity. The public domain has been a grand experiment, +one that should not be allowed to die. The ability to draw freely on +the entire creative output of humanity is one of the reasons we live +in a time of such fruitful creative ferment.
-The best responses were in the cartoons. There was a gaggle of - hilarious -images—of Mickey in jail and the like. The best, from my view -of the case, was Ruben Bolling's, reproduced on the next page. The -"powerful and wealthy" line is a bit unfair. But the punch in the face felt -exactly like that. +The best responses were in the cartoons. There was a gaggle of +hilarious images—of Mickey in jail and the like. The best, from +my view of the case, was Ruben Bolling's, reproduced on the next +page. The "powerful and wealthy" line is a bit unfair. But the punch +in the face felt exactly like that. The image that will always stick in my head is that evoked by the quote from The New York Times. That "grand experiment" we call the "public domain" is over? When I can make light of it, I think, "Honey, -I shrunk the Constitution." But I can rarely make light of it. We had in -our Constitution a commitment to free culture. In the case that I - fathered, -the Supreme Court effectively renounced that commitment. A +I shrunk the Constitution." But I can rarely make light of it. We had +in our Constitution a commitment to free culture. In the case that I +fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently. @@ -12102,100 +11917,88 @@ blocking access and the spread of knowledge. Leave it for as long as Congress allows for those works where its worth is at least $1. But for everything else, let the content go. +Forbes, Steve -The reaction to this idea was amazingly strong. Steve Forbes - endorsed +The reaction to this idea was amazingly strong. Steve Forbes endorsed it in an editorial. I received an avalanche of e-mail and letters -expressing support. When you focus the issue on lost creativity, people -can see the copyright system makes no sense. As a good Republican -might say, here government regulation is simply getting in the way of -innovation and creativity. And as a good Democrat might say, here the -government is blocking access and the spread of knowledge for no -good reason. Indeed, there is no real difference between Democrats -and Republicans on this issue. Anyone can recognize the stupid harm -of the present system. - - -Indeed, many recognized the obvious benefit of the registration - requirement. -For one of the hardest things about the current system for -people who want to license content is that there is no obvious place to -look for the current copyright owners. Since registration is not - required, -since marking content is not required, since no formality at all -is required, it is often impossibly hard to locate copyright owners to ask -permission to use or license their work. This system would lower these -costs, by establishing at least one registry where copyright owners -could be identified. - +expressing support. When you focus the issue on lost creativity, +people can see the copyright system makes no sense. As a good +Republican might say, here government regulation is simply getting in +the way of innovation and creativity. And as a good Democrat might +say, here the government is blocking access and the spread of +knowledge for no good reason. Indeed, there is no real difference +between Democrats and Republicans on this issue. Anyone can recognize +the stupid harm of the present system. + + +Indeed, many recognized the obvious benefit of the registration +requirement. For one of the hardest things about the current system +for people who want to license content is that there is no obvious +place to look for the current copyright owners. Since registration is +not required, since marking content is not required, since no +formality at all is required, it is often impossibly hard to locate +copyright owners to ask permission to use or license their work. This +system would lower these costs, by establishing at least one registry +where copyright owners could be identified. + +Berlin Act (1908) +Berne Convention (1908) As I described in chapter 10, formalities in copyright law were - removed -in 1976, when Congress followed the Europeans by - abandoning +removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. - Until the 1908 Berlin Act of the Berne Convention, national copyright -legislation sometimes made protection depend upon compliance with - formalities -such as registration, deposit, and affixation of notice of the - author's -claim of copyright. However, starting with the 1908 act, every text -of the Convention has provided that "the enjoyment and the exercise" of -rights guaranteed by the Convention "shall not be subject to any - formality." -The prohibition against formalities is presently embodied in Article -5(2) of the Paris Text of the Berne Convention. Many countries continue -to impose some form of deposit or registration requirement, albeit not as -a condition of copyright. French law, for example, requires the deposit of -copies of works in national repositories, principally the National Museum. + +Until the 1908 Berlin Act of the Berne Convention, national copyright +legislation sometimes made protection depend upon compliance with +formalities such as registration, deposit, and affixation of notice of +the author's claim of copyright. However, starting with the 1908 act, +every text of the Convention has provided that "the enjoyment and the +exercise" of rights guaranteed by the Convention "shall not be subject +to any formality." The prohibition against formalities is presently +embodied in Article 5(2) of the Paris Text of the Berne +Convention. Many countries continue to impose some form of deposit or +registration requirement, albeit not as a condition of +copyright. French law, for example, requires the deposit of copies of +works in national repositories, principally the National Museum. Copies of books published in the United Kingdom must be deposited in the British Library. The German Copyright Act provides for a Registrar -of Authors where the author's true name can be filed in the case of - anonymous -or pseudonymous works. Paul Goldstein, International Intellectual -Property Law, Cases and Materials (New York: Foundation Press, 2001), -153–54. - - The - Europeans -are said to view copyright as a "natural right." Natural rights -don't need forms to exist. Traditions, like the Anglo-American - tradition -that required copyright owners to follow form if their rights were -to be protected, did not, the Europeans thought, properly respect the -dignity of the author. My right as a creator turns on my creativity, not -upon the special favor of the government. - - -That's great rhetoric. It sounds wonderfully romantic. But it is - absurd -copyright policy. It is absurd especially for authors, because a -world without formalities harms the creator. The ability to spread +of Authors where the author's true name can be filed in the case of +anonymous or pseudonymous works. Paul Goldstein, International +Intellectual Property Law, Cases and Materials (New York: Foundation +Press, 2001), 153–54. +The Europeans are said to view copyright as a "natural right." Natural +rights don't need forms to exist. Traditions, like the Anglo-American +tradition that required copyright owners to follow form if their +rights were to be protected, did not, the Europeans thought, properly +respect the dignity of the author. My right as a creator turns on my +creativity, not upon the special favor of the government. + + +That's great rhetoric. It sounds wonderfully romantic. But it is +absurd copyright policy. It is absurd especially for authors, because +a world without formalities harms the creator. The ability to spread "Walt Disney creativity" is destroyed when there is no simple way to know what's protected and what's not. +Berne Convention (1908) -The fight against formalities achieved its first real victory in Berlin -in 1908. International copyright lawyers amended the Berne - Convention -in 1908, to require copyright terms of life plus fifty years, as well as -the abolition of copyright formalities. The formalities were hated - because -the stories of inadvertent loss were increasingly common. It was -as if a Charles Dickens character ran all copyright offices, and the - failure -to dot an i or cross a t resulted in the loss of widows' only income. +The fight against formalities achieved its first real victory in +Berlin in 1908. International copyright lawyers amended the Berne +Convention in 1908, to require copyright terms of life plus fifty +years, as well as the abolition of copyright formalities. The +formalities were hated because the stories of inadvertent loss were +increasingly common. It was as if a Charles Dickens character ran all +copyright offices, and the failure to dot an i or cross a t resulted +in the loss of widows' only income. These complaints were real and sensible. And the strictness of the -formalities, especially in the United States, was absurd. The law should -always have ways of forgiving innocent mistakes. There is no reason -copyright law couldn't, as well. Rather than abandoning formalities - totally, -the response in Berlin should have been to embrace a more - equitable -system of registration. +formalities, especially in the United States, was absurd. The law +should always have ways of forgiving innocent mistakes. There is no +reason copyright law couldn't, as well. Rather than abandoning +formalities totally, the response in Berlin should have been to +embrace a more equitable system of registration. Even that would have been resisted, however, because registration @@ -12210,40 +12013,37 @@ In addition to the practical complaint of authors in 1908, there was a moral claim as well. There was no reason that creative property -should be a second-class form of property. If a carpenter builds a table, -his rights over the table don't depend upon filing a form with the - government. -He has a property right over the table "naturally," and he can -assert that right against anyone who would steal the table, whether or -not he has informed the government of his ownership of the table. +should be a second-class form of property. If a carpenter builds a +table, his rights over the table don't depend upon filing a form with +the government. He has a property right over the table "naturally," +and he can assert that right against anyone who would steal the table, +whether or not he has informed the government of his ownership of the +table. -This argument is correct, but its implications are misleading. For -the argument in favor of formalities does not depend upon creative -property being second-class property. The argument in favor of - formalities -turns upon the special problems that creative property - presents. -The law of formalities responds to the special physics of creative -property, to assure that it can be efficiently and fairly spread. +This argument is correct, but its implications are misleading. For the +argument in favor of formalities does not depend upon creative +property being second-class property. The argument in favor of +formalities turns upon the special problems that creative property +presents. The law of formalities responds to the special physics of +creative property, to assure that it can be efficiently and fairly +spread. No one thinks, for example, that land is second-class property just -because you have to register a deed with a court if your sale of land is -to be effective. And few would think a car is second-class property just -because you must register the car with the state and tag it with a - license. -In both of those cases, everyone sees that there is an important -reason to secure registration—both because it makes the markets more -efficient and because it better secures the rights of the owner. Without -a registration system for land, landowners would perpetually have to -guard their property. With registration, they can simply point the - police -to a deed. Without a registration system for cars, auto theft would -be much easier. With a registration system, the thief has a high burden -to sell a stolen car. A slight burden is placed on the property owner, but -those burdens produce a much better system of protection for property -generally. +because you have to register a deed with a court if your sale of land +is to be effective. And few would think a car is second-class property +just because you must register the car with the state and tag it with +a license. In both of those cases, everyone sees that there is an +important reason to secure registration—both because it makes +the markets more efficient and because it better secures the rights of +the owner. Without a registration system for land, landowners would +perpetually have to guard their property. With registration, they can +simply point the police to a deed. Without a registration system for +cars, auto theft would be much easier. With a registration system, the +thief has a high burden to sell a stolen car. A slight burden is +placed on the property owner, but those burdens produce a much better +system of protection for property generally. It is similarly special physics that makes formalities important in @@ -12270,15 +12070,13 @@ work would be presumptively controlled. After fourteen years, it would be presumptively uncontrolled. -But now that copyrights can be just about a century long, the - inability -to know what is protected and what is not protected becomes a -huge and obvious burden on the creative process. If the only way a - library -can offer an Internet exhibit about the New Deal is to hire a -lawyer to clear the rights to every image and sound, then the copyright -system is burdening creativity in a way that has never been seen before -because there are no formalities. +But now that copyrights can be just about a century long, the +inability to know what is protected and what is not protected becomes +a huge and obvious burden on the creative process. If the only way a +library can offer an Internet exhibit about the New Deal is to hire a +lawyer to clear the rights to every image and sound, then the +copyright system is burdening creativity in a way that has never been +seen before because there are no formalities. The Eldred Act was designed to respond to exactly this problem. If @@ -12295,10 +12093,10 @@ domain where anyone can copy it, or build archives with it, or create a movie based on it. It should become free if it is not worth $1 to you. -Some worry about the burden on authors. Won't the burden of - registering -the work mean that the $1 is really misleading? Isn't the hassle -worth more than $1? Isn't that the real problem with registration? +Some worry about the burden on authors. Won't the burden of +registering the work mean that the $1 is really misleading? Isn't the +hassle worth more than $1? Isn't that the real problem with +registration? It is. The hassle is terrible. The system that exists now is awful. I @@ -12317,6 +12115,7 @@ historical data, that system would move up to 98 percent of commercial work, commercial work that no longer had a commercial life, into the public domain within fifty years. What do you think? +Forbes, Steve When Steve Forbes endorsed the idea, some in Washington began to pay attention. Many people contacted me pointing to representatives who @@ -13058,68 +12857,58 @@ something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history—free culture. +CodePink Women in Peace -If this is crazy, then let there be more crazies. Soon. -There are moments of hope in this struggle. And moments that -surprise. When the FCC was considering relaxing ownership rules, -which would thereby further increase the concentration in media - ownership, -an extraordinary bipartisan coalition formed to fight this -change. For perhaps the first time in history, interests as diverse as the -NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and -CodePink Women for Peace organized to oppose this change in FCC -policy. An astonishing 700,000 letters were sent to the FCC, - demanding -more hearings and a different result. +If this is crazy, then let there be more crazies. Soon. There are +moments of hope in this struggle. And moments that surprise. When the +FCC was considering relaxing ownership rules, which would thereby +further increase the concentration in media ownership, an +extraordinary bipartisan coalition formed to fight this change. For +perhaps the first time in history, interests as diverse as the NRA, +the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women +for Peace organized to oppose this change in FCC policy. An +astonishing 700,000 letters were sent to the FCC, demanding more +hearings and a different result. -This activism did not stop the FCC, but soon after, a broad - coalition -in the Senate voted to reverse the FCC decision. The hostile - hearings -leading up to that vote revealed just how powerful this movement -had become. There was no substantial support for the FCC's decision, -and there was broad and sustained support for fighting further - concentration -in the media. +This activism did not stop the FCC, but soon after, a broad coalition +in the Senate voted to reverse the FCC decision. The hostile hearings +leading up to that vote revealed just how powerful this movement had +become. There was no substantial support for the FCC's decision, and +there was broad and sustained support for fighting further +concentration in the media. But even this movement misses an important piece of the puzzle. Largeness as such is not bad. Freedom is not threatened just because -some become very rich, or because there are only a handful of big - players. -The poor quality of Big Macs or Quarter Pounders does not mean -that you can't get a good hamburger from somewhere else. +some become very rich, or because there are only a handful of big +players. The poor quality of Big Macs or Quarter Pounders does not +mean that you can't get a good hamburger from somewhere else. -The danger in media concentration comes not from the - concentration, +The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the -change in copyright, produces. It is not just that there are a few - powerful -companies that control an ever expanding slice of the media. It -is that this concentration can call upon an equally bloated range of -rights—property rights of a historically extreme form—that makes -their bigness bad. +change in copyright, produces. It is not just that there are a few +powerful companies that control an ever expanding slice of the +media. It is that this concentration can call upon an equally bloated +range of rights—property rights of a historically extreme +form—that makes their bigness bad. -It is therefore significant that so many would rally to demand - competition -and increased diversity. Still, if the rally is understood as being -about bigness alone, it is not terribly surprising. We Americans have a -long history of fighting "big," wisely or not. That we could be - motivated -to fight "big" again is not something new. +It is therefore significant that so many would rally to demand +competition and increased diversity. Still, if the rally is understood +as being about bigness alone, it is not terribly surprising. We +Americans have a long history of fighting "big," wisely or not. That +we could be motivated to fight "big" again is not something new. -It would be something new, and something very important, if an -equal number could be rallied to fight the increasing extremism built -within the idea of "intellectual property." Not because balance is alien -to our tradition; indeed, as I've argued, balance is our tradition. But - because -the muscle to think critically about the scope of anything called -"property" is not well exercised within this tradition anymore. +It would be something new, and something very important, if an equal +number could be rallied to fight the increasing extremism built within +the idea of "intellectual property." Not because balance is alien to +our tradition; indeed, as I've argued, balance is our tradition. But +because the muscle to think critically about the scope of anything +called "property" is not well exercised within this tradition anymore. If we were Achilles, this would be our heel. This would be the place @@ -13128,49 +12917,46 @@ of our tragedy. As I write these final words, the news is filled with stories about the RIAA lawsuits against almost three hundred individuals. - John Borland, "RIAA Sues 261 File Swappers," CNET News.com, -September 2003, available at -link #65; Paul R. La Monica, "Music - Industry -Sues Swappers," CNN/Money, 8 September 2003, available at -link #66; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a -Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily -News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet - Surprised + +John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September +2003, available at +link #65; Paul +R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September +2003, available at +link #66; Soni +Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song, +N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9 +September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," Washington Post, 10 September 2003, E1; Katie Dean, -"Schoolgirl Settles with RIAA," Wired News, 10 September 2003, - available -at +"Schoolgirl Settles with RIAA," Wired News, 10 September 2003, +available at link #67. - - Eminem -has just been sued for "sampling" someone else's music. - Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com, -17 September 2003, available at +Eminem has just been sued for "sampling" someone else's +music. + +Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," +mtv.com, 17 September 2003, available at link #68. - The -story about Bob Dylan "stealing" from a Japanese author has just - finished -making the rounds. - Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for - Dylan -Songs," Kansascity.com, 9 July 2003, available at +The story about Bob Dylan "stealing" from a Japanese author has just +finished making the rounds. + +Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for +Dylan Songs," Kansascity.com, 9 July 2003, available at link #69. - An insider from Hollywood—who insists -he must remain anonymous—reports "an amazing conversation with -these studio guys. They've got extraordinary [old] content that they'd -love to use but can't because they can't begin to clear the rights. They've -got scores of kids who could do amazing things with the content, but -it would take scores of lawyers to clean it first." Congressmen are - talking -about deputizing computer viruses to bring down computers thought -to violate the law. Universities are threatening expulsion for kids who -use a computer to share content. +An insider from Hollywood—who insists he must remain +anonymous—reports "an amazing conversation with these studio +guys. They've got extraordinary [old] content that they'd love to use +but can't because they can't begin to clear the rights. They've got +scores of kids who could do amazing things with the content, but it +would take scores of lawyers to clean it first." Congressmen are +talking about deputizing computer viruses to bring down computers +thought to violate the law. Universities are threatening expulsion for +kids who use a computer to share content. Yet on the other side of the Atlantic, the BBC has just announced @@ -13180,10 +12966,11 @@ download BBC content, and rip, mix, and burn it. 24 August 2003, available at link #70. - And in Brazil, the -culture minister, Gilberto Gil, himself a folk hero of Brazilian music, -has joined with Creative Commons to release content and free licenses -in that Latin American country. +Gil, Gilberto +And in Brazil, the culture minister, Gilberto Gil, himself a folk hero +of Brazilian music, has joined with Creative Commons to release +content and free licenses in that Latin American +country. "Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003, available at link #71. @@ -13210,10 +12997,9 @@ potential is ever to be realized. -At least some who have read this far will agree with me that - something -must be done to change where we are heading. The balance of -this book maps what might be done. +At least some who have read this far will agree with me that something +must be done to change where we are heading. The balance of this book +maps what might be done. I divide this map into two parts: that which anyone can do now, @@ -13222,12 +13008,11 @@ that we can draw from the history of remaking common sense, it is that it requires remaking how many people think about the very same issue. -That means this movement must begin in the streets. It must - recruit -a significant number of parents, teachers, librarians, creators, - authors, -musicians, filmmakers, scientists—all to tell this story in their -own words, and to tell their neighbors why this battle is so important. +That means this movement must begin in the streets. It must recruit a +significant number of parents, teachers, librarians, creators, +authors, musicians, filmmakers, scientists—all to tell this +story in their own words, and to tell their neighbors why this battle +is so important. Once this movement has its effect in the streets, it has some hope of @@ -13241,52 +13026,46 @@ sketch changes that Congress could make to better secure a free culture. US, NOW -Common sense is with the copyright warriors because the debate so -far has been framed at the extremes—as a grand either/or: either - property -or anarchy, either total control or artists won't be paid. If that - really -is the choice, then the warriors should win. +Common sense is with the copyright warriors because the debate so far +has been framed at the extremes—as a grand either/or: either +property or anarchy, either total control or artists won't be paid. If +that really is the choice, then the warriors should win. -The mistake here is the error of the excluded middle. There are - extremes -in this debate, but the extremes are not all that there is. There -are those who believe in maximal copyright—"All Rights Reserved"— -and those who reject copyright—"No Rights Reserved." The "All -Rights Reserved" sorts believe that you should ask permission before -you "use" a copyrighted work in any way. The "No Rights Reserved" -sorts believe you should be able to do with content as you wish, - regardless -of whether you have permission or not. +The mistake here is the error of the excluded middle. There are +extremes in this debate, but the extremes are not all that there +is. There are those who believe in maximal copyright—"All Rights +Reserved"— and those who reject copyright—"No Rights +Reserved." The "All Rights Reserved" sorts believe that you should ask +permission before you "use" a copyrighted work in any way. The "No +Rights Reserved" sorts believe you should be able to do with content +as you wish, regardless of whether you have permission or not. When the Internet was first born, its initial architecture effectively tilted in the "no rights reserved" direction. Content could be copied -perfectly and cheaply; rights could not easily be controlled. Thus, - regardless -of anyone's desire, the effective regime of copyright under the +perfectly and cheaply; rights could not easily be controlled. Thus, +regardless of anyone's desire, the effective regime of copyright under +the original design of the Internet was "no rights reserved." Content was -"taken" regardless of the rights. Any rights were effectively - unprotected. +"taken" regardless of the rights. Any rights were effectively +unprotected. This initial character produced a reaction (opposite, but not quite equal) by copyright owners. That reaction has been the topic of this book. Through legislation, litigation, and changes to the network's -design, copyright holders have been able to change the essential - character -of the environment of the original Internet. If the original - architecture -made the effective default "no rights reserved," the future -architecture will make the effective default "all rights reserved." The - architecture -and law that surround the Internet's design will increasingly -produce an environment where all use of content requires permission. -The "cut and paste" world that defines the Internet today will become -a "get permission to cut and paste" world that is a creator's nightmare. +design, copyright holders have been able to change the essential +character of the environment of the original Internet. If the original +architecture made the effective default "no rights reserved," the +future architecture will make the effective default "all rights +reserved." The architecture and law that surround the Internet's +design will increasingly produce an environment where all use of +content requires permission. The "cut and paste" world that defines +the Internet today will become a "get permission to cut and paste" +world that is a creator's nightmare. What's needed is a way to say something in the middle—neither "all @@ -13300,14 +13079,14 @@ that we could just take for granted before. Rebuilding Freedoms Previously Presumed: Examples -If you step back from the battle I've been describing here, you will - recognize -this problem from other contexts. Think about privacy. Before -the Internet, most of us didn't have to worry much about data about -our lives that we broadcast to the world. If you walked into a bookstore -and browsed through some of the works of Karl Marx, you didn't need -to worry about explaining your browsing habits to your neighbors or -boss. The "privacy" of your browsing habits was assured. +If you step back from the battle I've been describing here, you will +recognize this problem from other contexts. Think about +privacy. Before the Internet, most of us didn't have to worry much +about data about our lives that we broadcast to the world. If you +walked into a bookstore and browsed through some of the works of Karl +Marx, you didn't need to worry about explaining your browsing habits +to your neighbors or boss. The "privacy" of your browsing habits was +assured. What made it assured? @@ -13315,21 +13094,18 @@ What made it assured? Well, if we think in terms of the modalities I described in chapter -10, your privacy was assured because of an inefficient architecture for -gathering data and hence a market constraint (cost) on anyone who -wanted to gather that data. If you were a suspected spy for North - Korea, -working for the CIA, no doubt your privacy would not be assured. -But that's because the CIA would (we hope) find it valuable enough to -spend the thousands required to track you. But for most of us (again, -we can hope), spying doesn't pay. The highly inefficient architecture of -real space means we all enjoy a fairly robust amount of privacy. That -privacy is guaranteed to us by friction. Not by law (there is no law - protecting -"privacy" in public places), and in many places, not by norms -(snooping and gossip are just fun), but instead, by the costs that - friction -imposes on anyone who would want to spy. +10, your privacy was assured because of an inefficient architecture +for gathering data and hence a market constraint (cost) on anyone who +wanted to gather that data. If you were a suspected spy for North +Korea, working for the CIA, no doubt your privacy would not be +assured. But that's because the CIA would (we hope) find it valuable +enough to spend the thousands required to track you. But for most of +us (again, we can hope), spying doesn't pay. The highly inefficient +architecture of real space means we all enjoy a fairly robust amount +of privacy. That privacy is guaranteed to us by friction. Not by law +(there is no law protecting "privacy" in public places), and in many +places, not by norms (snooping and gossip are just fun), but instead, +by the costs that friction imposes on anyone who would want to spy. Amazon @@ -13356,99 +13132,89 @@ disappears. It is this reality that explains the push of many to define "privacy" on the Internet. It is the recognition that technology can remove what friction before gave us that leads many to push for laws to do what - friction -did. - See, for example, Marc Rotenberg, "Fair Information Practices and the - Architecture -of Privacy (What Larry Doesn't Get)," Stanford Technology Law -Review 1 (2001): par. 6–18, available at -link #72 (describing examples in -which technology defines privacy policy). See also Jeffrey Rosen, The Naked -Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: - Random -House, 2004) (mapping tradeoffs between technology and privacy). - - And whether you're in favor of those laws or not, it is the - pattern +friction did. + + +See, for example, Marc Rotenberg, "Fair Information Practices and the +Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology +Law Review 1 (2001): par. 6–18, available at + +link #72 +(describing examples in which technology defines privacy policy). See +also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom +in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs +between technology and privacy). +And whether you're in favor of those laws or not, it is the pattern that is important here. We must take affirmative steps to secure a -kind of freedom that was passively provided before. A change in - technology -now forces those who believe in privacy to affirmatively act -where, before, privacy was given by default. +kind of freedom that was passively provided before. A change in +technology now forces those who believe in privacy to affirmatively +act where, before, privacy was given by default. A similar story could be told about the birth of the free software movement. When computers with software were first made available -commercially, the software—both the source code and the binaries— -was free. You couldn't run a program written for a Data General - machine -on an IBM machine, so Data General and IBM didn't care much -about controlling their software. +commercially, the software—both the source code and the +binaries— was free. You couldn't run a program written for a +Data General machine on an IBM machine, so Data General and IBM didn't +care much about controlling their software. +Stallman, Richard -That was the world Richard Stallman was born into, and while he -was a researcher at MIT, he grew to love the community that - developed -when one was free to explore and tinker with the software that -ran on machines. Being a smart sort himself, and a talented - programmer, -Stallman grew to depend upon the freedom to add to or modify -other people's work. - - -In an academic setting, at least, that's not a terribly radical idea. In -a math department, anyone would be free to tinker with a proof that -someone offered. If you thought you had a better way to prove a - theorem, -you could take what someone else did and change it. In a classics -department, if you believed a colleague's translation of a recently - discovered -text was flawed, you were free to improve it. Thus, to Stallman, -it seemed obvious that you should be free to tinker with and improve -the code that ran a machine. This, too, was knowledge. Why shouldn't -it be open for criticism like anything else? +That was the world Richard Stallman was born into, and while he was a +researcher at MIT, he grew to love the community that developed when +one was free to explore and tinker with the software that ran on +machines. Being a smart sort himself, and a talented programmer, +Stallman grew to depend upon the freedom to add to or modify other +people's work. + + +In an academic setting, at least, that's not a terribly radical +idea. In a math department, anyone would be free to tinker with a +proof that someone offered. If you thought you had a better way to +prove a theorem, you could take what someone else did and change +it. In a classics department, if you believed a colleague's +translation of a recently discovered text was flawed, you were free to +improve it. Thus, to Stallman, it seemed obvious that you should be +free to tinker with and improve the code that ran a machine. This, +too, was knowledge. Why shouldn't it be open for criticism like +anything else? No one answered that question. Instead, the architecture of revenue -for computing changed. As it became possible to import programs -from one system to another, it became economically attractive (at least -in the view of some) to hide the code of your program. So, too, as - companies -started selling peripherals for mainframe systems. If I could just -take your printer driver and copy it, then that would make it easier for -me to sell a printer to the market than it was for you. +for computing changed. As it became possible to import programs from +one system to another, it became economically attractive (at least in +the view of some) to hide the code of your program. So, too, as +companies started selling peripherals for mainframe systems. If I +could just take your printer driver and copy it, then that would make +it easier for me to sell a printer to the market than it was for you. Thus, the practice of proprietary code began to spread, and by the early 1980s, Stallman found himself surrounded by proprietary code. -The world of free software had been erased by a change in the - economics -of computing. And as he believed, if he did nothing about it, -then the freedom to change and share software would be - fundamentally -weakened. +The world of free software had been erased by a change in the +economics of computing. And as he believed, if he did nothing about +it, then the freedom to change and share software would be +fundamentally weakened. -Therefore, in 1984, Stallman began a project to build a free - operating +Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds's "Linux" kernel was added to produce the GNU/Linux operating system. Stallman's technique was to use copyright law to build a world of -software that must be kept free. Software licensed under the Free - Software -Foundation's GPL cannot be modified and distributed unless the -source code for that software is made available as well. Thus, anyone -building upon GPL'd software would have to make their buildings free -as well. This would assure, Stallman believed, that an ecology of code -would develop that remained free for others to build upon. His - fundamental -goal was freedom; innovative creative code was a byproduct. +software that must be kept free. Software licensed under the Free +Software Foundation's GPL cannot be modified and distributed unless +the source code for that software is made available as well. Thus, +anyone building upon GPL'd software would have to make their buildings +free as well. This would assure, Stallman believed, that an ecology of +code would develop that remained free for others to build upon. His +fundamental goal was freedom; innovative creative code was a +byproduct. Stallman was thus doing for software what privacy advocates now @@ -13552,37 +13318,32 @@ The same strategy could be applied to culture, as a response to the control effected through law and technology. -Enter the Creative Commons. The Creative Commons is a - nonprofit +Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at -Stanford University. Its aim is to build a layer of reasonable copyright -on top of the extremes that now reign. It does this by making it easy for -people to build upon other people's work, by making it simple for - creators -to express the freedom for others to take and build upon their -work. Simple tags, tied to human-readable descriptions, tied to - bulletproof -licenses, make this possible. - - -Simple—which means without a middleman, or without a lawyer. -By developing a free set of licenses that people can attach to their -content, Creative Commons aims to mark a range of content that -can easily, and reliably, be built upon. These tags are then linked to -machine-readable versions of the license that enable computers - automatically -to identify content that can easily be shared. These three - expressions -together—a legal license, a human-readable description, and +Stanford University. Its aim is to build a layer of reasonable +copyright on top of the extremes that now reign. It does this by +making it easy for people to build upon other people's work, by making +it simple for creators to express the freedom for others to take and +build upon their work. Simple tags, tied to human-readable +descriptions, tied to bulletproof licenses, make this possible. + + +Simple—which means without a middleman, or without a lawyer. By +developing a free set of licenses that people can attach to their +content, Creative Commons aims to mark a range of content that can +easily, and reliably, be built upon. These tags are then linked to +machine-readable versions of the license that enable computers +automatically to identify content that can easily be shared. These +three expressions together—a legal license, a human-readable +description, and machine-readable tags—constitute a Creative Commons license. A -Creative Commons license constitutes a grant of freedom to anyone -who accesses the license, and more importantly, an expression of the -ideal that the person associated with the license believes in something +Creative Commons license constitutes a grant of freedom to anyone who +accesses the license, and more importantly, an expression of the ideal +that the person associated with the license believes in something different than the "All" or "No" extremes. Content is marked with the -CC mark, which does not mean that copyright is waived, but that - certain -freedoms are given. +CC mark, which does not mean that copyright is waived, but that +certain freedoms are given. These freedoms are beyond the freedoms promised by fair use. Their @@ -13948,28 +13709,23 @@ Copyright Office's role to that of approving standards for marking content that have been crafted elsewhere. -For example, if a recording industry association devises a method -for marking CDs, it would propose that to the Copyright Office. The +For example, if a recording industry association devises a method for +marking CDs, it would propose that to the Copyright Office. The Copyright Office would hold a hearing, at which other proposals could be made. The Copyright Office would then select the proposal that it -judged preferable, and it would base that choice solely upon the - consideration -of which method could best be integrated into the registration -and renewal system. We would not count on the government to - innovate; -but we would count on the government to keep the product of - innovation -in line with its other important functions. +judged preferable, and it would base that choice solely upon the +consideration of which method could best be integrated into the +registration and renewal system. We would not count on the government +to innovate; but we would count on the government to keep the product +of innovation in line with its other important functions. -Finally, marking content clearly would simplify registration - requirements. -If photographs were marked by author and year, there -would be little reason not to allow a photographer to reregister, for - example, -all photographs taken in a particular year in one quick step. The -aim of the formality is not to burden the creator; the system itself -should be kept as simple as possible. +Finally, marking content clearly would simplify registration +requirements. If photographs were marked by author and year, there +would be little reason not to allow a photographer to reregister, for +example, all photographs taken in a particular year in one quick +step. The aim of the formality is not to burden the creator; the +system itself should be kept as simple as possible. The objective of formalities is to make things clear. The existing @@ -14178,75 +13934,66 @@ molasses into the machines. That's what this general requirement of permission does to the creative process. Smothers it. -This was the point that Alben made when describing the making of -the Clint Eastwood CD. While it makes sense to require negotiation -for foreseeable derivative rights—turning a book into a movie, or a -poem into a musical score—it doesn't make sense to require - negotiation -for the unforeseeable. Here, a statutory right would make much -more sense. +This was the point that Alben made when describing the making of the +Clint Eastwood CD. While it makes sense to require negotiation for +foreseeable derivative rights—turning a book into a movie, or a +poem into a musical score—it doesn't make sense to require +negotiation for the unforeseeable. Here, a statutory right would make +much more sense. -In each of these cases, the law should mark the uses that are - protected, -and the presumption should be that other uses are not - protected. -This is the reverse of the recommendation of my colleague Paul -Goldstein. - Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial - Jukebox -(Stanford: Stanford University Press, 2003), 187–216. +In each of these cases, the law should mark the uses that are +protected, and the presumption should be that other uses are not +protected. This is the reverse of the recommendation of my colleague +Paul Goldstein. +Goldstein, Paul + + +Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial +Jukebox (Stanford: Stanford University Press, 2003), 187–216. - His view is that the law should be written so that expanded -protections follow expanded uses. +His view is that the law should be written so that +expanded protections follow expanded uses. -Goldstein's analysis would make perfect sense if the cost of the - legal +Goldstein's analysis would make perfect sense if the cost of the legal system were small. But as we are currently seeing in the context of -the Internet, the uncertainty about the scope of protection, and the - incentives -to protect existing architectures of revenue, combined with a -strong copyright, weaken the process of innovation. +the Internet, the uncertainty about the scope of protection, and the +incentives to protect existing architectures of revenue, combined with +a strong copyright, weaken the process of innovation. The law could remedy this problem either by removing protection beyond the part explicitly drawn or by granting reuse rights upon - certain -statutory conditions. Either way, the effect would be to free a great -deal of culture to others to cultivate. And under a statutory rights -regime, that reuse would earn artists more income. +certain statutory conditions. Either way, the effect would be to free +a great deal of culture to others to cultivate. And under a statutory +rights regime, that reuse would earn artists more income. 4. Liberate the Music—Again -The battle that got this whole war going was about music, so it wouldn't -be fair to end this book without addressing the issue that is, to most -people, most pressing—music. There is no other policy issue that - better -teaches the lessons of this book than the battles around the sharing -of music. +The battle that got this whole war going was about music, so it +wouldn't be fair to end this book without addressing the issue that +is, to most people, most pressing—music. There is no other +policy issue that better teaches the lessons of this book than the +battles around the sharing of music. -The appeal of file-sharing music was the crack cocaine of the - Internet's -growth. It drove demand for access to the Internet more - powerfully -than any other single application. It was the Internet's killer -app—possibly in two senses of that word. It no doubt was the - application -that drove demand for bandwidth. It may well be the application -that drives demand for regulations that in the end kill innovation on -the network. - - -The aim of copyright, with respect to content in general and music -in particular, is to create the incentives for music to be composed, - performed, -and, most importantly, spread. The law does this by giving +The appeal of file-sharing music was the crack cocaine of the +Internet's growth. It drove demand for access to the Internet more +powerfully than any other single application. It was the Internet's +killer app—possibly in two senses of that word. It no doubt was +the application that drove demand for bandwidth. It may well be the +application that drives demand for regulations that in the end kill +innovation on the network. + + +The aim of copyright, with respect to content in general and music in +particular, is to create the incentives for music to be composed, +performed, and, most importantly, spread. The law does this by giving an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance. @@ -14270,17 +14017,15 @@ on the way to purchasing CDs. -There are many who are using file-sharing networks to get - access -to content that is no longer sold but is still under copyright -or that would have been too cumbersome to buy off the Net. +There are many who are using file-sharing networks to get access to +content that is no longer sold but is still under copyright or that +would have been too cumbersome to buy off the Net. -There are many who are using file-sharing networks to get - access -to content that is not copyrighted or to get access that the -copyright owner plainly endorses. +There are many who are using file-sharing networks to get access to +content that is not copyrighted or to get access that the copyright +owner plainly endorses. @@ -14292,11 +14037,11 @@ effect of sharing is actually not very harmful, the need for regulation is significantly weakened. -As I said in chapter 5, the actual harm caused by sharing is - controversial. -For the purposes of this chapter, however, I assume the harm is -real. I assume, in other words, that type A sharing is significantly -greater than type B, and is the dominant use of sharing networks. +As I said in chapter 5, the actual harm caused by sharing is +controversial. For the purposes of this chapter, however, I assume +the harm is real. I assume, in other words, that type A sharing is +significantly greater than type B, and is the dominant use of sharing +networks. Nonetheless, there is a crucial fact about the current technological @@ -14304,17 +14049,16 @@ context that we must keep in mind if we are to understand how the law should respond. -Today, file sharing is addictive. In ten years, it won't be. It is addictive -today because it is the easiest way to gain access to a broad range of - content. -It won't be the easiest way to get access to a broad range of content -in ten years. Today, access to the Internet is cumbersome and slow—we -in the United States are lucky to have broadband service at 1.5 MBs, and -very rarely do we get service at that speed both up and down. Although -wireless access is growing, most of us still get access across wires. Most -only gain access through a machine with a keyboard. The idea of the - always -on, always connected Internet is mainly just an idea. +Today, file sharing is addictive. In ten years, it won't be. It is +addictive today because it is the easiest way to gain access to a +broad range of content. It won't be the easiest way to get access to +a broad range of content in ten years. Today, access to the Internet +is cumbersome and slow—we in the United States are lucky to have +broadband service at 1.5 MBs, and very rarely do we get service at +that speed both up and down. Although wireless access is growing, most +of us still get access across wires. Most only gain access through a +machine with a keyboard. The idea of the always on, always connected +Internet is mainly just an idea. But it will become a reality, and that means the way we get access to @@ -14322,38 +14066,35 @@ the Internet today is a technology in transition. Policy makers should not make policy on the basis of technology in transition. They should make policy on the basis of where the technology is going. The - question -should not be, how should the law regulate sharing in this world? -The question should be, what law will we require when the network -becomes the network it is clearly becoming? That network is one in -which every machine with electricity is essentially on the Net; where -everywhere you are—except maybe the desert or the Rockies—you can -instantaneously be connected to the Internet. Imagine the Internet as -ubiquitous as the best cell-phone service, where with the flip of a - device, -you are connected. - - -In that world, it will be extremely easy to connect to services that -give you access to content on the fly—such as Internet radio, content -that is streamed to the user when the user demands. Here, then, is the -critical point: When it is extremely easy to connect to services that give -access to content, it will be easier to connect to services that give you -access to content than it will be to download and store content on the -many devices you will have for playing content. It will be easier, in other -words, to subscribe than it will be to be a database manager, as - everyone -in the download-sharing world of Napster-like technologies - essentially -is. Content services will compete with content sharing, even if -the services charge money for the content they give access to. Already -cell-phone services in Japan offer music (for a fee) streamed over cell -phones (enhanced with plugs for headphones). The Japanese are - paying -for this content even though "free" content is available in the form -of MP3s across the Web. - See, for example, "Music Media Watch," The J@pan Inc. Newsletter, -3 April 2002, available at +question should not be, how should the law regulate sharing in this +world? The question should be, what law will we require when the +network becomes the network it is clearly becoming? That network is +one in which every machine with electricity is essentially on the Net; +where everywhere you are—except maybe the desert or the +Rockies—you can instantaneously be connected to the +Internet. Imagine the Internet as ubiquitous as the best cell-phone +service, where with the flip of a device, you are connected. + + +In that world, it will be extremely easy to connect to services +that give you access to content on the fly—such as Internet +radio, content that is streamed to the user when the user +demands. Here, then, is the critical point: When it is extremely easy +to connect to services that give access to content, it will be easier +to connect to services that give you access to content than it will be +to download and store content on the many devices you will have for +playing content. It will be easier, in other words, to subscribe than +it will be to be a database manager, as everyone in the +download-sharing world of Napster-like technologies essentially +is. Content services will compete with content sharing, even if the +services charge money for the content they give access to. Already +cell-phone services in Japan offer music (for a fee) streamed over +cell phones (enhanced with plugs for headphones). The Japanese are +paying for this content even though "free" content is available in the +form of MP3s across the Web. + +See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3 +April 2002, available at link #76. @@ -14405,14 +14146,13 @@ from the author's perspective, this "sharing" of his content without his being compensated is less than ideal. -The model of used book stores suggests that the law could simply -deem out-of-print music fair game. If the publisher does not make -copies of the music available for sale, then commercial and - noncommercial +The model of used book stores suggests that the law could simply deem +out-of-print music fair game. If the publisher does not make copies of +the music available for sale, then commercial and noncommercial providers would be free, under this rule, to "share" that content, -even though the sharing involved making a copy. The copy here would -be incidental to the trade; in a context where commercial publishing -has ended, trading music should be as free as trading books. +even though the sharing involved making a copy. The copy here would be +incidental to the trade; in a context where commercial publishing has +ended, trading music should be as free as trading books. @@ -14469,7 +14209,10 @@ way to compensate those who are harmed. The idea would be a modification of a proposal that has been -floated by Harvard law professor William Fisher. +floated by Harvard law professor William Fisher. +Netanel, Neil Weinstock +Fisher, William + William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William Fisher, Promises to Keep: @@ -14788,15 +14531,16 @@ keep your lawyers away. NOTES -Throughout this text, there are references to links on the World Wide Web. As -anyone who has tried to use the Web knows, these links can be highly unstable. I -have tried to remedy the instability by redirecting readers to the original source -through the Web site associated with this book. For each link below, you can go to -http://free-culture.cc/notes and locate the original source by clicking on the -number after the # sign. If the original link remains alive, you will be redirected to -that link. If the original link has disappeared, you will be redirected to an - appropriate -reference for the material. +Throughout this text, there are references to links on the World Wide +Web. As anyone who has tried to use the Web knows, these links can be +highly unstable. I have tried to remedy the instability by redirecting +readers to the original source through the Web site associated with +this book. For each link below, you can go to +http://free-culture.cc/notes and locate the original source by +clicking on the number after the # sign. If the original link remains +alive, you will be redirected to that link. If the original link has +disappeared, you will be redirected to an appropriate reference for +the material. @@ -14811,17 +14555,16 @@ to him that this book is dedicated. I received guidance in various places from friends and academics, -including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard -Posner, Mark Rose, and Kathleen Sullivan. And I received correction -and guidance from many amazing students at Stanford Law School -and Stanford University. They included Andrew B. Coan, John Eden, -James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert - Hallman, -Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, -Alina Ng, and Erica Platt. I am particularly grateful to Catherine -Crump and Harry Surden, who helped direct their research, and to -Laura Lynch, who brilliantly managed the army that they assembled, -and provided her own critical eye on much of this. +including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, +Mark Rose, and Kathleen Sullivan. And I received correction and +guidance from many amazing students at Stanford Law School and +Stanford University. They included Andrew B. Coan, John Eden, James +P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman, +Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and +Erica Platt. I am particularly grateful to Catherine Crump and Harry +Surden, who helped direct their research, and to Laura Lynch, who +brilliantly managed the army that they assembled, and provided her own +critical eye on much of this. Yuko Noguchi helped me to understand the laws of Japan as well as @@ -14835,41 +14578,39 @@ chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was there. -These are the traditional sorts of help that academics regularly -draw upon. But in addition to them, the Internet has made it possible -to receive advice and correction from many whom I have never even -met. Among those who have responded with extremely helpful advice -to requests on my blog about the book are Dr. Mohammad Al-Ubaydli, -David Gerstein, and Peter DiMauro, as well as a long list of those who -had specific ideas about ways to develop my argument. They included -Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob -Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy -Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James - Lindenschmidt, -K. L. Mann, Mark Manning, Nora McCauley, Jeffrey -McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D. -Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, -Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, -Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger -Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have -missed anyone; with computers come glitches, and a crash of my -e-mail system meant I lost a bunch of great replies.) - - -Richard Stallman and Michael Carroll each read the whole book -in draft, and each provided extremely helpful correction and advice. -Michael helped me to see more clearly the significance of the - regulation -of derivitive works. And Richard corrected an embarrassingly large -number of errors. While my work is in part inspired by Stallman's, he -does not agree with me in important places throughout this book. - - -Finally, and forever, I am thankful to Bettina, who has always - insisted -that there would be unending happiness away from these battles, -and who has always been right. This slow learner is, as ever, grateful for -her perpetual patience and love. +These are the traditional sorts of help that academics regularly draw +upon. But in addition to them, the Internet has made it possible to +receive advice and correction from many whom I have never even +met. Among those who have responded with extremely helpful advice to +requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David +Gerstein, and Peter DiMauro, as well as a long list of those who had +specific ideas about ways to develop my argument. They included +Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine, +Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger, +Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt, +K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan +McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir +Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, +Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt +Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz," +and Richard Yanco. (I apologize if I have missed anyone; with +computers come glitches, and a crash of my e-mail system meant I lost +a bunch of great replies.) + + +Richard Stallman and Michael Carroll each read the whole book in +draft, and each provided extremely helpful correction and advice. +Michael helped me to see more clearly the significance of the +regulation of derivitive works. And Richard corrected an +embarrassingly large number of errors. While my work is in part +inspired by Stallman's, he does not agree with me in important places +throughout this book. + + +Finally, and forever, I am thankful to Bettina, who has always +insisted that there would be unending happiness away from these +battles, and who has always been right. This slow learner is, as ever, +grateful for her perpetual patience and love.