X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/12e26db6ac29b960985b46d6778f73afa4acc05b..6cb4db55ccabad46cb4c3120059398686e4c898c:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 9ecaadc..fc52639 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -176,11 +176,11 @@ Excerpt from an editorial titled The Coming of Copyright Perpetuity, -Cartoon in by Paul Conrad, copyright Tribune +Cartoon in by Paul Conrad, copyright Tribune Media Services, Inc. All rights reserved. Reprinted with permission. -Diagram in courtesy of the office of FCC +Diagram in courtesy of the office of FCC Commissioner, Michael J. Copps. @@ -322,7 +322,7 @@ c INDEX PREFACE -Pogue, David +Pogue, David At the end of his review of my first book, Code: And Other Laws of Cyberspace, David @@ -358,7 +358,7 @@ off. It is an argument about how the battles that now rage regarding life on-line have fundamentally affected people who aren't online. There is no switch that will insulate us from the Internet's effect. - + But unlike Code, the argument here is not much about the Internet itself. It is instead about the consequence of the @@ -395,7 +395,7 @@ 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. -power, concentration of +power, concentration of CodePink Women in Peace Safire, William Stevens, Ted @@ -432,7 +432,7 @@ altering the way our culture gets made; that change should worry you—whether or not you care about the Internet, and whether you're on Safire's left or on his right. - + The inspiration for the title and for much of the argument of this book comes from the work of Richard @@ -486,9 +486,9 @@ and its importance widely understood. Almost immediately, there was an explosion of interest in this newfound technology of manned flight, and a gaggle of innovators began to build upon it. -air traffic, land ownership vs. -land ownership, air traffic and -property rightsair traffic vs. +air traffic, land ownership vs. +land ownership, air traffic and +property rightsair traffic vs. At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface @@ -527,6 +527,8 @@ property, and the Causbys wanted it to stop. Causby, Thomas Lee Causby, Tinie +Douglas, William O. +Supreme Court, U.S.on airspace vs. land rights The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the @@ -564,6 +566,7 @@ Goldstein, Real Property (Mineola, N.Y.: Foundation Press Common sense revolts at the idea. + This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It was Douglas's style not to @@ -596,13 +599,15 @@ end, the force of what seems obvious to everyone else—the p common sense—would prevail. Their private interest would not be allowed to defeat an obvious public gain. - - - -Armstrong, Edwin Howard + + + + +Armstrong, Edwin Howard Bell, Alexander Graham Edison, Thomas Faraday, Michael +radioFM spectrum of Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He came to the great American @@ -654,6 +659,8 @@ Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong +RCA +mediaownership concentration in As our own common sense tells us, Armstrong had discovered a vastly superior radio technology. But at the time of his invention, Armstrong @@ -663,13 +670,13 @@ the United States, but the stations in large cities were all owned by a handful of networks. +Sarnoff, David RCA's president, David Sarnoff, a friend of Armstrong's, was eager that Armstrong discover a way to remove static from AM radio. So Sarnoff was quite excited when Armstrong told him he had a device that removed static from radio. But when Armstrong demonstrated his invention, Sarnoff was not pleased. -Sarnoff, David
@@ -684,14 +691,15 @@ www.webstationone.com/fecha, available at
-Lessing, Lawrence +FM radio +Sarnoff, David Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author described, -Sarnoff, David +Lessing, Lawrence
The forces for FM, largely engineering, could not overcome the weight @@ -703,6 +711,7 @@ on which RCA had grown to power.Lessing, 226.
+FCCon FM radio RCA at first kept the technology in house, insisting that further tests were needed. When, after two years of testing, Armstrong grew @@ -727,7 +736,7 @@ Lessing, 256. - + AT&T To make room in the spectrum for RCA's latest gamble, television, @@ -739,6 +748,8 @@ FM relaying stations would mean radio stations would have to buy wired links from AT&T.) The spread of FM radio was thus choked, at least temporarily. + + Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's patents. After incorporating FM technology into the @@ -751,7 +762,8 @@ would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of a thirteenth-story window to his death. - + + This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From @@ -768,6 +780,9 @@ another, are sustained through this subtle corruption of our political process. RCA had what the Causbys did not: the power to stifle the effect of technological change. + + +Internetdevelopment of There's no single inventor of the Internet. Nor is there any good date upon which to mark its birth. Yet in a very short time, the Internet @@ -803,6 +818,10 @@ old as the Republic itself. Most, if they recognized this change, would reject it. Yet most don't even see the change that the Internet has introduced. + +Barlow, Joel +culturecommercial vs. noncommercial +Webster, Noah We can glimpse a sense of this change by distinguishing between commercial and noncommercial culture, and by mapping the law's @@ -814,8 +833,6 @@ parks or on street corners telling stories that kids and others consumed, that was noncommercial culture. When Noah Webster published his Reader, or Joel Barlow his poetry, that was commercial culture. -Barlow, Joel -Webster, Noah At the beginning of our history, and for just about the whole of our @@ -828,6 +845,7 @@ individuals shared and transformed their culture—telling stories, reenacting scenes from plays or TV, participating in fan clubs, sharing music, making tapes—were left alone by the law. +Copyright infringement lawsuitscommercial creativity as primary purpose of The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the incentives of creators by @@ -871,6 +889,7 @@ been undone. The consequence is that we are less and less a free culture, more and more a permission culture. +protection of artists vs. business interests This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its @@ -884,6 +903,7 @@ shared have united to induce lawmakers to use the law to protect them. It is the story of RCA and Armstrong; it is the dream of the Causbys. + For the Internet has unleashed an extraordinary possibility for many to participate in the process of building and cultivating a culture @@ -912,6 +932,7 @@ more efficient, more vibrant technology for building culture. They are succeeding in their plan to remake the Internet before the Internet remakes them. + Valenti, Jack on creative property rights It doesn't seem this way to many. The battles over copyright and the @@ -944,6 +965,10 @@ and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet pirates will also rid our culture of values that have been integral to our tradition from the start. +Constitution, U.S.First Amendment to +Copyright lawas protection of creators +First Amendment +Netanel, Neil Weinstock 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 @@ -991,6 +1016,7 @@ come to understand the source of this war. We must resolve it soon. Causby, Thomas Lee Causby, Tinie +intellectual property rights Like the Causbys' battle, this war is, in part, about property. The property of this war is not as tangible as the Causbys', and no @@ -1066,6 +1092,7 @@ sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound. + The struggle that rages just now centers on two ideas: piracy and property. My aim in this book's next two parts is to explore these two @@ -1104,7 +1131,10 @@ to which most of us remain oblivious. <quote>PIRACY</quote> -Mansfield, William Murray, Lord +Copyright lawEnglish +Mansfield, William Murray, Lord +music publishing +sheet music Since the inception of the law regulating creative property, there has been a war against piracy. The precise contours of this concept, @@ -1121,8 +1151,10 @@ of them for his own use. Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). - + +Internet efficient content distribution on +peer-to-peer (p2p) file sharingefficiency of Today we are in the middle of another war against piracy. The Internet has provoked this war. The Internet makes possible the @@ -1140,6 +1172,7 @@ sharing of copyrighted content. That sharing in turn has excited the war, as copyright owners fear the sharing will rob the author of the profit. + The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their property against this @@ -1170,7 +1203,8 @@ piracy. ASCAP Dreyfuss, Rochelle Girl Scouts -if value, then right theory +creative propertyif value, then right theory of +if value, then right theory This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the if value, then right @@ -1194,6 +1228,7 @@ Speech, No One Wins, Boston Globe, 24 November 20 There was value (the songs) so there must have been a right—even against the Girl Scouts. + This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system @@ -1202,7 +1237,9 @@ of law protecting creative property. But the if value, then right theory of creative property has never been America's theory of creative property. It has never taken hold within our law. - + +copyright lawon republishing vs. transformation of original work +creativitylegal restrictions on Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains @@ -1217,6 +1254,7 @@ work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. + Before the technologies of the Internet, this conflation didn't matter all that much. The technologies of publishing were expensive; that @@ -1225,6 +1263,7 @@ 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. +copyright lawcreativity impeded by Florida, Richard Rise of the Creative Class, The (Florida) @@ -1262,6 +1301,7 @@ under which it will be enabled are much more tenuous. Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. + These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper @@ -1272,8 +1312,11 @@ context the current battles about behavior labeled piracy. CHAPTER ONE: Creators -animated cartoons +animated cartoons cartoon films +filmsanimated +Steamboat Willie +Mickey Mouse In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent flop called Plane Crazy. @@ -1281,6 +1324,7 @@ In November, in New York City's Colony Theater, in the first widely distributed cartoon synchronized with sound, Steamboat Willie brought to life the character that would become Mickey Mouse. +Disney, Walt Synchronized sound had been introduced to film a year earlier in the movie The Jazz Singer. That success led Walt Disney to copy the @@ -1316,11 +1360,11 @@ Cartoons (New York: Penguin Books, 1987), 34–35. +Iwerks, Ub Disney's then partner, and one of animation's most extraordinary talents, Ub Iwerks, put it more strongly: I have never been so thrilled in my life. Nothing since has ever equaled it. -Iwerks, Ub Disney had created something very new, based upon something relatively @@ -1331,6 +1375,9 @@ Disney's invention that set the standard that others struggled to match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others. + +Keaton, Buster +Steamboat Bill, Jr. This much is familiar. What you might not know is that 1928 also marks another important transition. In that year, a comic (as opposed to @@ -1345,6 +1392,8 @@ Jr. was a classic of this form, famous among film buffs for its incredible stunts. The film was classic Keaton—wildly popular and among the best of its genre. +derivative workspiracy vs. +piracyderivative work vs. Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. @@ -1368,6 +1417,12 @@ Steamboat Bill, Jr., itself inspired by the song Steamboat Bill, that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse. + + + + +creativityby transforming previous works +Disney, Inc. This borrowing was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream @@ -1387,6 +1442,7 @@ were built upon a base that was borrowed. Disney added to the work of others before him, creating something new out of something just barely old. +Grimm fairy tales Sometimes this borrowing was slight. Sometimes it was significant. Think about the fairy tales of the Brothers Grimm. If you're as @@ -1418,7 +1474,7 @@ creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn. - + This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would say that there is no @@ -1428,6 +1484,12 @@ would be a bit misleading. It is, more precisely, Walt Disney creativity—a form of expression and genius that builds upon the culture around us and makes it something different. + + + +copyrightduration of +public domaindefined +public domaintraditional term for conversion to In 1928, the culture that Disney was free to draw upon was relatively fresh. The public domain in 1928 was not very old and was therefore quite vibrant. The average term of copyright was just around @@ -1459,6 +1521,8 @@ for Disney to use and build upon in 1928. It was free for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon. + + This is the ways things always were—until quite recently. For most of our history, the public domain was just over the horizon. From @@ -1473,12 +1537,22 @@ permission. Yet today, the public domain is presumptive only for content from before the Great Depression. + + + + +Disney, Walt Of course, Walt Disney had no monopoly on Walt Disney creativity. Nor does America. The norm of free culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal. +comics, Japanese +derivative workspiracy vs. +Japanese comics +manga +piracyderivative work vs. Consider, for example, a form of creativity that seems strange to many Americans but that is inescapable within Japanese culture: manga, or @@ -1504,6 +1578,8 @@ But my purpose here is not to understand manga. It is to describe a variant on manga that from a lawyer's perspective is quite odd, but from a Disney perspective is quite familiar. +creativityby transforming previous works +doujinshi comics This is the phenomenon of doujinshi. Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of @@ -1519,6 +1595,7 @@ must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy. +Disney, Walt These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 circles of creators from across Japan produce @@ -1530,6 +1607,8 @@ competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law. +copyright lawJapanese +Steamboat Bill, Jr. The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under @@ -1544,7 +1623,8 @@ the permission of the original copyright owner is illegal. It is an infringement of the original copyright to make a copy or a derivative work without the original copyright owner's permission. -Winick, Judd + +Winick, Judd Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga @@ -1560,6 +1640,7 @@ For an excellent history, see Scott McCloud, Reinventing Comics + Superman comics American comics now are quite different, Winick explains, in part @@ -1569,7 +1650,10 @@ and you have to stick to them. There are things Superman cannotAs a creator, it's frustrating having to stick to some parameters which are fifty years old. - + +copyright lawJapanese +comics, Japanese +Mehra, Salil The norm in Japan mitigates this legal difficulty. Some say it is precisely the benefit accruing to the Japanese manga market that @@ -1589,6 +1673,9 @@ individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved. + + + The problem with this story, however, as Mehra plainly acknowledges, is that the mechanism producing this laissez faire response is not @@ -1600,6 +1687,8 @@ individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this free taking by the doujinshi culture? + + I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by @@ -1619,6 +1708,7 @@ uncompensated sharing? Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help their clients or hurt them? + Let's pause for a moment. @@ -1633,6 +1723,7 @@ celebrants. I believe in the value of property in general, and I also believe in the value of that weird form of property that lawyers call intellectual property. +Vaidhyanathan, Siva The term intellectual property is of relatively recent origin. See Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas @@ -1640,12 +1731,14 @@ University Press, 2001). See also Lawrence Lessig, The Future of Idea describes a set of property rights—copyright, patents, trademark, and trade-secret—but the nature of those rights is very different. -Vaidhyanathan, Siva A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without intellectual property. +Disney, Walt +Grimm fairy tales +Keaton, Buster But it takes just a second's reflection to realize that there is plenty of value out there that property doesn't capture. I don't @@ -1661,6 +1754,7 @@ Disney's use would have been considered fair. There was nothing wrong with the taking from the Grimms because the Grimms' work was in the public domain. +free culturederivative works based on Thus, even though the things that Disney took—or more generally, the things taken by anyone exercising Walt Disney creativity—are @@ -1670,6 +1764,12 @@ valuable, our tradition does not treat those takings as wrong. Some things remain free for the taking within a free culture, and that freedom is good. + +copyright lawJapanese +comics, Japanese +doujinshi comics +Japanese comics +manga The same with the doujinshi culture. If a doujinshi artist broke into a publisher's office and ran off with a thousand copies of his latest @@ -1678,12 +1778,20 @@ saying the artist was wrong. In addition to having trespassed, he would have stolen something of value. The law bans that stealing in whatever form, whether large or small. + Yet there is an obvious reluctance, even among Japanese lawyers, to say that the copycat comic artists are stealing. This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard to say why. + + + + + + +Shakespeare, William It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the work of other scientists @@ -1709,6 +1817,7 @@ every society has left a certain bit of its culture free for the taking—fr societies more fully than unfree, perhaps, but all societies to some degree. + The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard @@ -1726,13 +1835,14 @@ Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so. + CHAPTER TWO: <quote>Mere Copyists</quote> camera technology -photography +photography Daguerre, Louis In 1839, Louis Daguerre invented @@ -1744,6 +1854,7 @@ zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) +Talbot, William Yet despite high prices, the demand for daguerreotypes was strong. This pushed inventors to find simpler and cheaper ways to make @@ -1754,9 +1865,8 @@ the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. -Talbot, William -Eastman, George +Eastman, George The technological change that made mass photography possible didn't happen until 1888, and was the creation of a single man. George @@ -1769,6 +1879,7 @@ a developer, driving the costs of photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the population of photographers. +Kodak Primer, The (Eastman) Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was @@ -1777,7 +1888,6 @@ do the rest. Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112. As he described in The Kodak Primer: -Kodak Primer, The (Eastman)
@@ -1866,6 +1976,7 @@ v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Dist. Ct. 1894). +Disney, Walt The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was taking something from the person or @@ -1895,6 +2006,7 @@ gets something for nothing. Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source. + images, ownership of Fortunately for Mr. Eastman, and for photography in general, these @@ -1980,6 +2092,7 @@ of thousands just ten years ago. And it is now feasible to imagine not just buses like this, but classrooms across the country where kids are learning more and more of something teachers call media literacy. +Yanofsky, Dave Media literacy, as Dave Yanofsky, the executive director of Just @@ -1987,7 +2100,6 @@ Think!, puts it, is the ability … to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it. -Yanofsky, Dave This may seem like an odd way to think about literacy. For most @@ -2398,7 +2510,7 @@ 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. -Winer, Dave +Winer, Dave There's a second way, as well, in which blogs have a different cycle @@ -2495,7 +2607,7 @@ extraordinary to report. -Brown, John Seely +Brown, John Seely advertising John Seely Brown is the chief @@ -2621,7 +2733,7 @@ quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs RPIRensselaer Polytechnic Institute (RPI) -Rensselaer Polytechnic Institute (RPI) +Rensselaer Polytechnic Institute (RPI) In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer @@ -2861,10 +2973,10 @@ now. The film industry of Hollywood was built by fleeing pirates. +Vaidhyanathan, Siva I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, which details Edison's adventures with copyright and patent. -Vaidhyanathan, Siva Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents @@ -2889,6 +3001,9 @@ summer of 1909 the independent movement was in full-swing, with producers and theater owners using illegal equipment and imported film stock to create their own underground market. +Fox, William +General Film Company +Picker, Randal C. With the country experiencing a tremendous expansion in the number of nickelodeons, the Patents Company reacted to the independent movement @@ -2914,9 +3029,6 @@ Chicago Law School, James M. Olin Program in Law and Economics, Working Paper No. 159. broadcast flag -Fox, William -General Film Company -Picker, Randal C.
@@ -3033,6 +3145,9 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). +American Graphophone Company +player pianos +sheet music 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 @@ -3057,7 +3172,6 @@ To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). -American Graphophone Company The law soon resolved this battle in favor of the composer @@ -3437,7 +3551,7 @@ legal wrong, but a locally legal wrong as well. True, these local rules have, in effect, been imposed upon these countries. No country can be part of the world economy and choose - + not to protect copyright internationally. We may have been born a pirate nation, but we will not allow any other nation to have a similar childhood. @@ -3521,6 +3635,14 @@ technology of a time, then it is wrong to take property without the permission of a property owner. That is exactly what property means. Asia, commercial piracy in +piracyin Asia +free software/open-source software (FS/OSS) +GNU/Linux operating system +Linux operating system +Microsoftcompetitive strategies of +Windows +Microsoftinternational software piracy of +MicrosoftWindows operating system of Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner. When the Chinese steal @@ -3533,11 +3655,8 @@ Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose. -GNU/Linux operating system -Linux operating system -MicrosoftWindows operating system of -Windows +lawdatabases of case reports in This argument, too, is somewhat true. The addiction strategy is a good one. Many businesses practice it. Some thrive because of it. Law @@ -3546,6 +3665,10 @@ databases. The companies marketing both hope the students will become so used to their service that they will want to use it and not the other when they become lawyers (and must pay high subscription fees). +Netscape +Internet Explorer +GNU/Linux operating system +Linux operating system Still, the argument is not terribly persuasive. We don't give the alcoholic a defense when he steals his first beer, merely because that @@ -3558,10 +3681,6 @@ means giving the property owner the right to say who gets access to what—at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong. -GNU/Linux operating system -Internet Explorer -Netscape -Linux operating system @@ -3616,6 +3735,7 @@ law should seek to either prevent it or find an alternative to assure the author of his profit. innovation +Fanning, Shawn Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological @@ -3635,7 +3755,6 @@ Christensen's ideas, see Lawrence Lessig, Future, 89&ndas Christensen, Clayton M. ), Shawn Fanning and crew had simply put together components that had been developed independently. -Fanning, Shawn The result was spontaneous combustion. Launched in July 1999, @@ -3697,7 +3816,9 @@ File sharers share different kinds of content. We can divide these different kinds into four types. - + +Madonna + There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna CD is released, rather than buying @@ -3706,7 +3827,6 @@ everyone who takes it would actually have bought it if sharing didn't make it available for free. Most probably wouldn't have, but clearly there are some who would. The latter are the target of category A: users who download instead of purchasing. -Madonna @@ -3797,6 +3917,7 @@ when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer. +MTV Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record @@ -4312,6 +4433,7 @@ technology to benefit from content made before. It balanced the interests at stake. +Disney, Walt When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes @@ -4527,13 +4649,14 @@ fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one additional years. +Vaidhyanathan, Siva As Siva Vaidhyanathan nicely argues, it is erroneous to call this a copyright law. See Vaidhyanathan, Copyrights and Copywrongs, 40. -Vaidhyanathan, Siva Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? +Licensing Act (1662) The reason is that the English hadn't yet agreed on what a copyright was—indeed, no one had. At the time the English passed the @@ -4544,7 +4667,6 @@ as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said that the publishers, or Stationers, had an exclusive right to print books. -Licensing Act (1662) There was no positive law, but that didn't mean @@ -4743,6 +4865,7 @@ they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors. +Patterson, Raymond This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary @@ -4750,10 +4873,11 @@ chutzpah. Until then, as law professor Raymond Patterson has put it, The publishers … had as much concern for authors as a cattle rancher has for cattle. +Patterson, Raymond +Vaidhyanathan, Siva Lyman Ray Patterson, Free Speech, Copyright, and Fair Use, Vanderbilt Law Review 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37–48. -Vaidhyanathan, Siva The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. @@ -4767,6 +4891,8 @@ For a compelling account, see David Saunders, Authorship and Copyrigh (London: Routledge, 1992), 62–69. +Boswell, James +Erskine, Andrew Donaldson was an outsider to the London Conger. He began his career in Edinburgh in 1750. The focus of his business was inexpensive @@ -4786,8 +4912,6 @@ of contemporary Scottish poems with Donaldson. Ibid., 93. -Boswell, James -Erskine, Andrew When the London booksellers tried to shut down Donaldson's shop in @@ -4796,6 +4920,7 @@ inexpensive editions of the most popular English books, in defiance of the supposed common law right of Literary Property. +Patterson, Raymond Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting Borwell). @@ -4808,6 +4933,7 @@ The London booksellers quickly brought suit to block piracy like Donaldson's. A number of actions were successful against the pirates, the most important early victory being Millar v. Taylor. +Seasons, The (Thomson) Taylor, Robert Millar was a bookseller who in 1729 had purchased the rights to James @@ -4822,7 +4948,7 @@ Exploding the Myth of Common Law Copyright, Wayne Law Review< (1983): 1152. -Mansfield, William Murray, Lord +Mansfield, William Murray, Lord Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever @@ -4848,7 +4974,7 @@ a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the 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. @@ -5016,21 +5142,21 @@ For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless fair use or some other privilege applies. +Gracie Films Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-halfsecond image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program. -Gracie Films +Gracie Films Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox. -Gracie Films Then, as Else told me, two things happened. First we discovered @@ -5061,6 +5187,8 @@ if you quote me, I'll turn you over to our attorneys. As an assistant to Herrera told Else later on, They don't give a shit. They just want the money. +San Francisco Opera +Day After Trinity, The Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera. To reproduce @@ -5068,8 +5196,6 @@ this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before. -San Francisco Opera -Day After Trinity, The There's no doubt that someone, whether Matt Groening or Fox, owns the @@ -5129,6 +5255,7 @@ shot in the film. They take a dim view of fair use, and a claim o Star Wars +Lucas, George I probably never should have asked Matt Groening in the first @@ -5140,7 +5267,6 @@ license to four seconds of Simpsons. As a documentary pro to exhaustion on a shoestring, the last thing I wanted was to risk legal trouble, even nuisance legal trouble, and even to defend a principle. -Lucas, George @@ -5870,6 +5996,7 @@ proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press. +Disney, Walt Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of @@ -5910,6 +6037,13 @@ Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. +Disney, Inc. +Sony Pictures Entertainment +MGM +Paramount Pictures +Twentieth Century Fox +Universal Pictures +Warner Brothers The MPAA is the American branch of the international Motion Picture Association. It was formed in 1922 as a trade association whose goal @@ -5921,13 +6055,6 @@ producers and distributors of motion picture and television programs in the United States: Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, Universal Studios, and Warner Brothers. -Disney, Inc. -Sony Pictures Entertainment -MGM -Paramount Pictures -Twentieth Century Fox -Universal Pictures -Warner Brothers @@ -6488,13 +6615,13 @@ effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. DDT +Müller, Paul Hermann In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul Hermann Müller won the Nobel Prize for his work demonstrating the insecticidal properties of DDT. By the 1950s, the insecticide was widely used around the world to kill disease-carrying pests. It was also used to increase farm production. -Müller, Paul Hermann No one doubts that killing disease-carrying pests or increasing crop @@ -7000,6 +7127,8 @@ pp. 53–59). These two different uses of my creative work are treated the same. +Disney, Walt +Mickey Mouse This again may seem right to you. If I wrote a book, then why should you be able to write a movie that takes my story and makes money from @@ -7361,9 +7490,9 @@ This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers were brothers long before you were. +Vaidhyanathan, Siva Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. -Vaidhyanathan, Siva The Marx Brothers therefore owned the word brothers, and if Warner Brothers insisted on @@ -7439,11 +7568,11 @@ print ten pages from the book every ten days. Lastly, I have the permission to use the Read Aloud button to hear Middlemarch read aloud through the computer. +Aristotle +Politics, (Aristotle) Here's the e-book for another work in the public domain (including the translation): Aristotle's Politics. -Aristotle -Politics, (Aristotle)
E-book of Aristotle;s <quote>Politics</quote> @@ -7510,13 +7639,13 @@ aloud—it's not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won't read aloud. +Marx Brothers These are controls, not permissions. Imagine a world where the Marx Brothers sold word processing software that, when you tried to type Warner Brothers, erased Brothers from the sentence. -Marx Brothers This is the future of copyright law: not so much copyright @@ -7538,6 +7667,7 @@ to defeat these protections as well? We've only scratched the surface of this story. Return to the Adobe eBook Reader. +Alice's Adventures in Wonderland (Carroll) Early in the life of the Adobe eBook Reader, Adobe suffered a public relations nightmare. Among the books that you could download for free @@ -7545,7 +7675,6 @@ on the Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful book is in the public domain. Yet when you clicked on Permissions for that book, you got the following report: -Alice's Adventures in Wonderland (Carroll)
List of the permissions for <quote>Alice's Adventures in @@ -7605,7 +7734,7 @@ and that doesn't leave that much of a mess (at least in your house). The Aibo is expensive and popular. Fans from around the world have set up clubs to trade stories. One fan in particular set up a Web site to enable information about the Aibo dog to be shared. This fan set -<beginpage pagenum="165"/> +<!-- PAGE BREAK 165--> up aibopet.com (and aibohack.com, but that resolves to the same site), and on that site he provided information about how to teach an Aibo to do tricks in addition to the ones Sony had taught it. @@ -7666,6 +7795,7 @@ completely legal activity. One imagines that the owner of aibopet.com thought, <emphasis>What possible problem could there be with teaching a robot dog to dance?</emphasis> </para> +<indexterm><primary>Microsoft</primary><secondary>government case against</secondary></indexterm> <para> Let's put the dog to sleep for a minute, and turn to a pony show— not literally a pony show, but rather a paper that a Princeton academic @@ -7894,7 +8024,7 @@ practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses. </para> -<figure id="fig-1711"> +<figure id="fig-1711-vcr-handgun-cartoonfig"> <title>VCR/handgun cartoon.
@@ -8027,6 +8157,11 @@ These changes are of two sorts: the scope of concentration, and its nature. cable television +BMG +EMI +McCain, John +Universal Music Group +Warner Music Group Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media @@ -8048,11 +8183,6 @@ programming to 74 percent of the cable subscribers nationwide. Molly Ivins, Media Consolidation Must Be Stopped, Charleston Gazette, 31 May 2003. -BMG -EMI -McCain, John -Universal Music Group -Warner Music Group The story with radio is even more dramatic. Before deregulation, @@ -8108,7 +8238,7 @@ just large companies owning many radio stations, but a few companies owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do: -
+
Pattern of modern media ownership.
@@ -8200,12 +8330,12 @@ find that he had the choice either to make the show less edgy or to be fired: The content of any show developed for a network is increasingly owned by the network. +Diller, Barry +Moyers, Bill While the number of channels has increased dramatically, the ownership of those channels has narrowed to an ever smaller and smaller few. As Barry Diller said to Bill Moyers, -Diller, Barry -Moyers, Bill
@@ -8467,9 +8597,9 @@ now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has known. +Vaidhyanathan, Siva Siva Vaidhyanathan captures a similar point in his four surrenders of copyright law in the digital age. See Vaidhyanathan, 159–60. -Vaidhyanathan, Siva @@ -9073,6 +9203,7 @@ on remote topics of science or culture. There is a vast amount of creative work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. +Worldcom That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to @@ -9112,7 +9243,6 @@ recent months. Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient? -Worldcom art, underground @@ -9372,6 +9502,8 @@ such a view of the law will cost you and your firm dearly. Hummer, John Barry, Hank Hummer Winblad +EMI +Universal Music Group This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the @@ -9399,8 +9531,6 @@ So extreme has the environment become that even car manufacturers are afraid of technologies that touch content. In an article in Business 2.0, Rafe Needleman describes a discussion with BMW: -EMI -Universal Music Group
BMW @@ -9528,6 +9658,7 @@ and costs on the technology, but will likely be eclipsed by advances around exactly those requirements. +Intel In March 2002, a broad coalition of technology companies, led by Intel, tried to get Congress to see the harm that such legislation @@ -9539,7 +9670,6 @@ February 2002 (Entertainment). Their argument was obviously not that copyright should not be protected. Instead, they argued, any protection should not do more harm than good. -Intel There is one more obvious way in @@ -9553,6 +9683,7 @@ When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. cassette recordingVCRs +VCRs As I described in chapter , despite this feature of copyright as @@ -9622,6 +9753,7 @@ But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. artistsrecording industry payments to +Kennedy, John F. @@ -9634,7 +9766,6 @@ performance before President Kennedy at Madison Square Garden— then whenever that recording was played on the radio, the current copyright owners of Happy Birthday would get some money, whereas Marilyn Monroe would not. -Kennedy, John F. The reasoning behind this balance struck by Congress makes some @@ -9971,6 +10102,7 @@ is an embarrassment to our tradition. And the consequence of our law as it is, is that those with the power can use the law to quash any rights they oppose. +alcohol prohibition Wars of prohibition are nothing new in America. This one is just something more extreme than anything we've seen before. We @@ -10007,8 +10139,8 @@ 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. -alcohol prohibition +law schools 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 @@ -10025,7 +10157,6 @@ 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. -law schools The response to this general illegality is either to enforce the law @@ -10189,10 +10320,10 @@ Foundation attorney Fred von Lohmann describes, this is the a very large percentage of the population into criminals. This is the collateral damage to civil liberties generally. +von Lohmann, Fred If you can treat someone as a putative lawbreaker, von Lohmann explains, -von Lohmann, Fred
@@ -10289,6 +10420,7 @@ your daughter can lose the right to use the university's computer network. She can, in some cases, be expelled. +von Lohmann, Fred 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 @@ -10302,7 +10434,6 @@ college students have already learned, our presumptions about innocence disappear in the middle of wars of prohibition. This war is no different. Says von Lohmann, -von Lohmann, Fred
@@ -10416,6 +10547,8 @@ 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. +Disney, Walt +Grimm fairy tales Eldred's library was not simply a copy of certain public domain works, though even a copy would have been of great value to people @@ -10439,7 +10572,8 @@ animated cartoons, sometimes successfully (Cinderella), s (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 @@ -10540,6 +10674,7 @@ specific—to promote … Progress—through means t are also specific— by securing exclusive Rights (i.e., copyrights) for limited Times. +Jaszi, Peter In the past forty years, Congress has gotten into the practice of extending existing terms of copyright protection. What puzzled me @@ -10550,7 +10685,6 @@ no practical effect. If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids—perpetual terms on the installment plan, as Professor Peter Jaszi so nicely put it. -Jaszi, Peter As an academic, my first response was to hit the books. I remember @@ -10791,6 +10925,10 @@ its politics struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians. +Constitution, U.S.copyright purpose established in +copyrightconstitutional purpose of +copyrightduration of +Disney, Walt Now let's pause for a moment to make sure we understand what the argument in @@ -10809,6 +10947,7 @@ get another twenty-year dollop of monopoly. That twenty-year dollop would be taken from the public domain. Eric Eldred was fighting a piracy that affects us all. +Nashville Songwriters Association Some people view the public domain with contempt. In their brief @@ -10824,7 +10963,6 @@ But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter. -Nashville Songwriters Association As we've seen, our constitutional system requires limits on @@ -10956,6 +11094,7 @@ for other creative works is much more dire. Agee, Michael Hal Roach Studios Laurel and Hardy Films +Lucky Dog, The Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns the copyrights for the Laurel and Hardy films. Agee is a @@ -10973,8 +11112,6 @@ See David G. Savage, High Court Scene of Showdown on Copyright Law, Orlando Sentinel Tribune, 9 October 2002. - -Lucky Dog, The Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in @@ -11341,6 +11478,8 @@ the widest range of credible critics—credible not because they were rich and famous, but because they, in the aggregate, demonstrated that this law was unconstitutional regardless of one's politics. +Eagle Forum +Schlafly, Phyllis The first step happened all by itself. Phyllis Schlafly's organization, Eagle Forum, had been an opponent of the CTEA from the @@ -11354,8 +11493,6 @@ to get bogged down? The answer, as the editorial documented, was the power of money. Schlafly enumerated Disney's contributions to the key players on the committees. It was money, not justice, that gave Mickey Mouse twenty more years in Disney's control, Schlafly argued. -Eagle Forum -Schlafly, Phyllis In the Court of Appeals, Eagle Forum was eager to file a brief @@ -11365,6 +11502,10 @@ existing copyrights, there is no limit to Congress's power to set terms. That strong conservative argument persuaded a strong conservative judge, Judge Sentelle. +GNU/Linux operating system +Intel +Linux operating system +Eagle Forum In the Supreme Court, the briefs on our side were about as diverse as it gets. They included an extraordinary historical brief by the Free @@ -11377,18 +11518,14 @@ copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments. -GNU/Linux operating system -Intel -Linux operating system -Eagle Forum +American Association of Law Libraries +National Writers Union Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union. -American Association of Law Libraries -National Writers Union Hal Roach Studios @@ -11414,6 +11551,10 @@ anything to increase incentives to create. Such extensions were nothing more than rent-seeking—the fancy term economists use to describe special-interest legislation gone wild. +Fried, Charles +Morrison, Alan +Public Citizen +Reagan, Ronald The same effort at balance was reflected in the legal team we gathered to write our briefs in the case. The Jones Day lawyers had been with @@ -11427,11 +11568,8 @@ Kathleen Sullivan, who had argued many cases in the Court, and who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. -Fried, Charles -Morrison, Alan -Public Citizen -Reagan, Ronald +Fried, Charles Fried was a special victory for our side. Every other former solicitor general was hired by the other side to defend Congress's power to give @@ -11443,7 +11581,6 @@ limited Congress's power in the context of the Commerce Clause. And while he had argued many positions in the Supreme Court that I personally disagreed with, his joining the cause was a vote of confidence in our argument. -Fried, Charles The government, in defending the statute, had its collection of @@ -11461,6 +11598,7 @@ that the copyright holders would defend the idea that they should continue to have the right to control who did what with content they wanted to control. +Gershwin, George Dr. Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to @@ -11484,7 +11622,6 @@ That's their view of how this part of American culture should be controlled, and they wanted this law to help them effect that control. -Gershwin, George This argument made clear a theme that is rarely noticed in this @@ -11641,12 +11778,12 @@ this central idea. Ayer, Don Reagan, Ronald +Fried, Charles One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor General Charles Fried. He had argued many cases before the Supreme Court. And in his review of the moot, he let his concern speak: -Fried, Charles I'm just afraid that unless they really see the harm, they won't be @@ -12004,11 +12141,11 @@ passion I had used elsewhere. It was not the basis on which a court should decide the issue. Ayer, Don +Fried, Charles Would it have been different if I had argued it differently? Would it have been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan? -Fried, Charles My friends huddled around me to insist it would not. The Court @@ -12023,13 +12160,13 @@ little reason to resist doing right. I can't help but think that if I had stepped down from this pretty picture of dispassionate justice, I could have persuaded. +Jaszi, Peter 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. -Jaszi, Peter After the argument and after the decision, Peter said to me, and @@ -12343,6 +12480,7 @@ me pointing to representatives who might be willing to introduce the Eldred Act. And I had a few who directly suggested that they might be willing to take the first step. +Lofgren, Zoe One representative, Zoe Lofgren of California, went so far as to get the bill drafted. The draft solved any problem with international @@ -12351,7 +12489,6 @@ possible. In May 2003, it looked as if the bill would be introduced. On May 16, I posted on the Eldred Act blog, we are close. There was a general reaction in the blog community that something good might happen here. -Lofgren, Zoe But at this stage, the lobbyists began to intervene. Jack Valenti and @@ -12755,9 +12892,13 @@ hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans produce the perfect storm for free culture. +public domainpublic projects in +single nucleotied polymorphisms (SNPs) +Wellcome Trust +World Wide Web +Global Positioning System Reagan, Ronald biomedical research -Wellcome Trust In August 2003, a fight broke out in the United States about a decision by the World Intellectual @@ -12855,6 +12996,10 @@ Microsoft's software. And internationally, many governments have begun to explore requirements that they use open source or free software, rather than proprietary software, for their own internal uses. +copyleft licenses +GNU/Linux operating system +Linux operating system +IBM I don't mean to enter that debate here. It is important only to make clear that the distinction is not between commercial and @@ -12883,11 +13028,9 @@ Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. -IBM -copyleft licenses -GNU/Linux operating system -Linux operating system +General Public License (GPL) +GPL (General Public License) More important for our purposes, to support open source and free software is not to oppose copyright. Open source and free software @@ -12906,6 +13049,8 @@ software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does. +Krim, Jonathan +MicrosoftWIPO meeting opposed by It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and @@ -12919,7 +13064,6 @@ Krim, The Quiet War over Open-Source, available at link #64. And without U.S. backing, the meeting was canceled. -Krim, Jonathan I don't blame Microsoft for doing what it can to advance its own @@ -13193,10 +13337,11 @@ kids who use a computer to share content. Causby, Thomas Lee Causby, Tinie -Creative Commons -Gil, Gilberto BBC Brazil, free culture in +Creative Commons +Gil, Gilberto +United Kingdompublic creative archive in Yet on the other side of the Atlantic, the BBC has just announced that it will build a Creative Archive, from which British citizens can @@ -13350,6 +13495,7 @@ 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 +cookies, Internet Enter the Internet, where the cost of tracking browsing in particular has become quite tiny. If you're a customer at Amazon, then as you @@ -13359,7 +13505,6 @@ at. You know this because at the side of the page, there's a list of and the function of cookies on the Net, it is easier to collect the data than not. The friction has disappeared, and hence any privacy protected by the friction disappears, too. -cookies, Internet Amazon, of course, is not the problem. But we might begin to worry @@ -13613,6 +13758,7 @@ upon. Voluntary choice of individuals and creators will make this content available. And that content will in turn enable us to rebuild a public domain. +Garlick, Mia This is just one project among many within the Creative Commons. And of course, Creative Commons is not the only organization pursuing such @@ -13624,7 +13770,6 @@ aim is to build a movement of consumers and producers of content (content conducers, as attorney Mia Garlick calls them) who help build the public domain and, by their work, demonstrate the importance of the public domain to other creativity. -Garlick, Mia The aim is not to fight the All Rights Reserved sorts. The aim is to @@ -14024,7 +14169,9 @@ into copyright when the term itself is kept short. A clear and active idea/expression less necessary to navigate. - + +veterans' pensions + Keep it alive: Copyright should have to be renewed. Especially if the maximum term is long, the copyright owner @@ -14042,7 +14189,6 @@ available at If we make veterans suffer that burden, I don't see why we couldn't require authors to spend ten minutes every fifty years to file a single form. -veterans' pensions @@ -14098,6 +14244,7 @@ work. Thus, if I write a book, and you base a movie on that book, I have the power to deny you the right to release that movie, even though that movie is not my writing. +Kaplan, Benjamin Congress granted the beginnings of this right in 1870, when it expanded the exclusive right of copyright to include a right to @@ -14109,7 +14256,6 @@ University Press, 1967), 32. The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law's greatest judges, Judge Benjamin Kaplan. -Kaplan, Benjamin
@@ -14252,6 +14398,7 @@ owner plainly endorses. cassette recordingVCRs +VCRs Any reform of the law needs to keep these different uses in focus. It must avoid burdening type D even if it aims to eliminate type A. The @@ -14436,6 +14583,7 @@ the Internet, or the p2p technologies that are currently harming content providers on the Internet, we should find a relatively simple way to compensate those who are harmed. +Promises to Keep (Fisher) The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher. @@ -14490,7 +14638,6 @@ distributed. On the basis of those numbers, then (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax. -Promises to Keep (Fisher) Fisher's proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, @@ -14506,6 +14653,7 @@ system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access. + artistsrecording industry payments to Fisher would balk at the idea of allowing the system to lapse. His aim @@ -14742,7 +14890,7 @@ permission produces. Again, this is the reality of Brezhnev's Russia. The law should regulate in certain areas of culture—but it should regulate culture only where that regulation does good. Yet lawyers - + rarely test their power, or the power they promote, against this simple pragmatic question: Will it do good? When challenged about the expanding reach of the law, the lawyer answers, Why not? @@ -14772,6 +14920,7 @@ the material. +