X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/1f62204bc009ef663db7ad5835e7ef0435a82aaa..b58eaee3bcd471c2ea3760adc88a8526e2215ba3:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 200dd43..26e5c11 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -160,116 +160,8 @@ Code: And Other Laws of Cyberspace - - - -THE PENGUIN PRESS, NEW YORK - - - - - -FREE CULTURE - - - -HOW BIG MEDIA USES TECHNOLOGY AND -THE LAW TO LOCK DOWN CULTURE -AND CONTROL CREATIVITY - - - -LAWRENCE LESSIG - - - - -THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New -York, New York - - -Copyright © Lawrence Lessig. All rights reserved. - - -Excerpt from an editorial titled The Coming of Copyright Perpetuity, -The New York Times, January 16, 2003. Copyright -© 2003 by The New York Times Co. Reprinted with permission. - - -Cartoon in by Paul Conrad, copyright Tribune -Media Services, Inc. All rights reserved. Reprinted with permission. - - -Diagram in courtesy of the office of FCC -Commissioner, Michael J. Copps. - - -Library of Congress Cataloging-in-Publication Data - - -Lessig, Lawrence. -Free culture : how big media uses technology and the law to lock down -culture and control creativity / Lawrence Lessig. - - -p. cm. - - -Includes index. - - -ISBN 1-59420-006-8 (hardcover) - - - -1. Intellectual property—United States. 2. Mass media—United States. - - -3. Technological innovations—United States. 4. Art—United States. I. Title. - - -KF2979.L47 - - -343.7309'9—dc22 - - -This book is printed on acid-free paper. - - -Printed in the United States of America - - -1 3 5 7 9 10 8 6 4 - - -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 -retrieval system, or transmitted, in any form or by any means -(electronic, mechanical, photocopying, recording or otherwise), -without the prior written permission of both the copyright owner and -the above publisher of this book. - - -The scanning, uploading, and distribution of this book via the -Internet or via any other means without the permission of the -publisher is illegal and punishable by law. Please purchase only -authorized electronic editions and do not participate in or encourage -electronic piracy of copyrighted materials. Your support of the -author's rights is appreciated. - - - @@ -344,9 +236,7 @@ c INDEX PREFACE - - Pogue, David - +Pogue, David At the end of his review of my first book, Code: And Other Laws of Cyberspace, David @@ -382,7 +272,7 @@ 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 @@ -419,7 +309,9 @@ 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 CodePink Women in Peace +Safire, William Stevens, Ted We saw a glimpse of this bipartisan outrage in the early summer of @@ -431,7 +323,6 @@ Women for Peace and the National Rifle Association, between liberal Olympia Snowe and conservative Ted Stevens, he formulated perhaps most simply just what was at stake: the concentration of power. And as he asked, -Safire, William
@@ -453,7 +344,11 @@ visibly, on the concentration of power produced by a radical change in the effective scope of the law. The law is changing; that change is 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 +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 Stallman and the Free Software Foundation. Indeed, as I reread Stallman's own work, especially the essays in Free Software, Free @@ -496,25 +391,18 @@ book is written. INTRODUCTION - - air traffic, land ownership vs. - - - land ownership, air traffic and - - - property rights - air traffic vs. - -Wright brothers +Wright brothers -On December 17, 1903, on a windy North Carolina beach for just +On December 17, 1903, on a windy North Carolina beach for just shy of one hundred seconds, the Wright brothers demonstrated that a heavier-than-air, self-propelled vehicle could fly. The moment was electric 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. At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface @@ -528,6 +416,7 @@ years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass? + Then came airplanes, and for the first time, this principle of American law—deep within the foundations of our tradition, and acknowledged @@ -552,6 +441,8 @@ 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 @@ -589,6 +480,7 @@ 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 @@ -621,27 +513,27 @@ 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 - - -Edwin Howard Armstrong is one of America's forgotten inventor -geniuses. He came to the great American inventor scene just after the -titans Thomas Edison and Alexander Graham Bell. But his work in -the area of radio technology was perhaps the most important of any -single inventor in the first fifty years of radio. He was better educated -than Michael Faraday, who as a bookbinder's apprentice had discovered -electric induction in 1831. But he had the same intuition about -how the world of radio worked, and on at least three occasions, -Armstrong invented profoundly important technologies that advanced our -understanding of radio. - + + + + +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 +inventor scene just after the titans Thomas Edison and Alexander +Graham Bell. But his work in the area of radio technology was perhaps +the most important of any single inventor in the first fifty years of +radio. He was better educated than Michael Faraday, who as a +bookbinder's apprentice had discovered electric induction in 1831. But +he had the same intuition about how the world of radio worked, and on +at least three occasions, Armstrong invented profoundly important +technologies that advanced our understanding of radio. + On the day after Christmas, 1933, four patents were issued to Armstrong @@ -681,6 +573,8 @@ 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 @@ -690,13 +584,13 @@ 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
@@ -711,13 +605,15 @@ www.webstationone.com/fecha, available at
+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 @@ -729,6 +625,7 @@ 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 @@ -753,6 +650,7 @@ Lessing, 256. + AT&T To make room in the spectrum for RCA's latest gamble, television, @@ -764,6 +662,8 @@ 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 @@ -776,7 +676,10 @@ 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. - + + +Causby, Thomas Lee +Causby, Tinie This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From @@ -793,8 +696,11 @@ 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 +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 has become part of ordinary American life. According to the Pew Internet and American Life Project, 58 percent of Americans had access @@ -828,6 +734,10 @@ 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 @@ -839,8 +749,6 @@ 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 @@ -853,6 +761,7 @@ 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 @@ -875,6 +784,8 @@ and it has become an increasingly important part in America. But in no sense was it dominant within our tradition. It was instead just one part, a controlled part, balanced with the free. +free culture permission culture vs. +permission culture free culture vs. This rough divide between the free and the controlled has now been erased. @@ -894,6 +805,9 @@ been undone. The consequence is that we are less and less a free culture, more and more a permission culture. +Causby, Thomas Lee +Causby, Tinie +protection of artists vs. business interests This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its @@ -907,6 +821,7 @@ 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 @@ -935,6 +850,8 @@ 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 @@ -966,6 +883,10 @@ 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 @@ -1013,8 +934,9 @@ 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 +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 innocent chicken has yet to lose its life. Yet the ideas surrounding this property are as obvious to most as the Causbys' claim about the @@ -1041,6 +963,7 @@ war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side. +power, concentration of My hope is to push this common sense along. I have become increasingly amazed by the power of this idea of intellectual property and, more @@ -1087,8 +1010,9 @@ 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 +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 ideas. @@ -1125,11 +1049,12 @@ 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 +Since the inception of the law regulating creative property, there has been a war against piracy. The precise contours of this concept, piracy, are hard to sketch, but the animating injustice is easy to capture. As Lord Mansfield wrote in a case that extended the reach of @@ -1144,8 +1069,10 @@ 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 @@ -1163,6 +1090,7 @@ 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 @@ -1190,7 +1118,11 @@ from someone else without permission is wrong. It is a form of piracy. +ASCAP Dreyfuss, Rochelle +Girl Scouts +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 @@ -1214,7 +1146,7 @@ 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. -ASCAP + This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system @@ -1223,6 +1155,9 @@ 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 @@ -1237,6 +1172,7 @@ 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 @@ -1245,6 +1181,7 @@ 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) @@ -1282,6 +1219,7 @@ 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 @@ -1292,16 +1230,19 @@ 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 +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. 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 @@ -1337,11 +1278,11 @@ 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 @@ -1352,6 +1293,9 @@ 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 @@ -1366,6 +1310,8 @@ 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. @@ -1389,6 +1335,12 @@ 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 @@ -1408,6 +1360,7 @@ 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 @@ -1439,7 +1392,7 @@ 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 @@ -1449,6 +1402,12 @@ 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 @@ -1480,6 +1439,8 @@ 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 @@ -1493,12 +1454,23 @@ to now be free for the next Walt Disney to build upon without 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. +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 @@ -1524,6 +1496,8 @@ 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 @@ -1539,6 +1513,7 @@ 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 @@ -1550,6 +1525,8 @@ 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 @@ -1564,9 +1541,8 @@ 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 @@ -1582,6 +1558,7 @@ For an excellent history, see Scott McCloud, Reinventing Comics + Superman comics American comics now are quite different, Winick explains, in part @@ -1591,7 +1568,10 @@ 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 @@ -1611,6 +1591,9 @@ 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 @@ -1622,6 +1605,8 @@ 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 @@ -1640,7 +1625,10 @@ Japanese gain something important if they could end this practice of 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. + + + +Let's pause for a moment. If you're like I was a decade ago, or like most people are when they @@ -1653,6 +1641,7 @@ 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 @@ -1660,12 +1649,14 @@ 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 @@ -1681,6 +1672,7 @@ 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 @@ -1690,6 +1682,12 @@ 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 @@ -1698,12 +1696,20 @@ 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 @@ -1729,6 +1735,7 @@ 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 @@ -1746,24 +1753,26 @@ 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> - - photography - +Daguerre, Louis +camera technology +photography -In 1839, Louis Daguerre invented the first practical technology for -producing what we would call photographs. Appropriately enough, they -were called daguerreotypes. The process was complicated and +In 1839, Louis Daguerre invented +the first practical technology for producing what we would call +photographs. Appropriately enough, they were called +daguerreotypes. The process was complicated and expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) -Daguerre, Louis +Talbot, William Yet despite high prices, the demand for daguerreotypes was strong. This pushed inventors to find simpler and cheaper ways to make @@ -1774,11 +1783,8 @@ 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 @@ -1791,6 +1797,8 @@ a developer, driving the costs of photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the population of photographers. +Kodak cameras +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 @@ -1799,7 +1807,6 @@ 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)
@@ -1814,12 +1821,13 @@ preliminary study, without a darkroom and without chemicals. +Coe, Brian Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. -Coe, Brian
+ For $25, anyone could make pictures. The camera came preloaded with film, and when it had been used, the camera was returned to an @@ -1857,6 +1865,8 @@ interpretation or bias. Coe, 58. +democracyin technologies of expression +expression, technologies ofdemocratic In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a technology of @@ -1870,6 +1880,8 @@ creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before. + +permissionsphotography exempted from What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also important was the @@ -1887,6 +1899,9 @@ v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Dist. Ct. 1894). + +Disney, Walt +images, ownership of The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was taking something from the person or @@ -1899,6 +1914,8 @@ Mickey, so, too, should these photographers not be free to take images that they thought valuable. Brandeis, Louis D. +Steamboat Bill, Jr. +camera technology On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should @@ -1916,6 +1933,7 @@ 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. + Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no @@ -1934,6 +1952,8 @@ Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). ) +Kodak cameras +Napster We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the @@ -1949,6 +1969,10 @@ imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission. + +camera technology +democracyin technologies of expression +expression, technologies ofdemocratic @@ -1962,22 +1986,33 @@ easily borne the burdens of the permission system. But the spread of photography to ordinary people would not have occurred. Nothing like that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been -realized. If you drive through San Francisco's Presidio, you might -see two gaudy yellow school buses painted over with colorful and -striking images, and the logo Just Think! in place of the name of a -school. But there's little that's just cerebral in the projects that -these busses enable. These buses are filled with technologies that -teach kids to tinker with film. Not the film of Eastman. Not even the -film of your VCR. Rather the film of digital cameras. Just Think! -is a project that enables kids to make films, as a way to understand -and critique the filmed culture that they find all around them. Each -year, these busses travel to more than thirty schools and enable three -hundred to five hundred children to learn something about media by -doing something with media. By doing, they think. By tinkering, they -learn. - - - +realized. + + + + + +digital cameras +Just Think! + +If you drive through San +Francisco's Presidio, you might see two gaudy yellow school buses +painted over with colorful and striking images, and the logo +Just Think! in place of the name of a school. But +there's little that's just cerebral in the projects +that these busses enable. These buses are filled with technologies +that teach kids to tinker with film. Not the film of Eastman. Not even +the film of your VCR. Rather the film of digital +cameras. Just Think! is a project that enables kids to make films, as +a way to understand and critique the filmed culture that they find all +around them. Each year, these busses travel to more than thirty +schools and enable three hundred to five hundred children to learn +something about media by doing something with media. By doing, they +think. By tinkering, they learn. + +educationin media literacy +media literacy +expression, technologies ofmedia literacy and These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -1995,6 +2030,7 @@ 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 @@ -2002,8 +2038,8 @@ 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 people, literacy is about reading and writing. Faulkner and Hemingway @@ -2011,6 +2047,8 @@ and noticing split infinitives are the things that literate peopl about. advertising +commercials +televisionadvertising on Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 @@ -2036,6 +2074,7 @@ how difficult media is. Or more fundamentally, few of us have a sense of how media works, how it holds an audience or leads it through a story, how it triggers emotion or builds suspense. + It took filmmaking a generation before it could do these things well. But even then, the knowledge was in the filming, not in writing about @@ -2044,6 +2083,7 @@ from reading a book about it. One learns to write by writing and then reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. +Daley, Elizabeth Crichton, Michael This grammar has changed as media has changed. When it was just film, @@ -2125,7 +2165,7 @@ language of the twenty-first century. Ibid. -Barish, Stephanie +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 @@ -2138,6 +2178,7 @@ 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 new problem for the school. While the challenge in most classes was @@ -2163,6 +2204,8 @@ 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. + +Daley, Elizabeth @@ -2195,6 +2238,7 @@ make a little movie. But instead, really help you take these elements that you understand, that are your language, and construct meaning about the topic.… +Barish, Stephanie That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they @@ -2213,17 +2257,24 @@ had a lot of power with this language. + + + + +September 11, 2001, terrorist attacks of World Trade Center +news coverage -When two planes crashed into the World Trade Center, another into the -Pentagon, and a fourth into a Pennsylvania field, all media around the -world shifted to this news. Every moment of just about every day for -that week, and for weeks after, television in particular, and media -generally, retold the story of the events we had just witnessed. The -telling was a retelling, because we had seen the events that were -described. The genius of this awful act of terrorism was that the -delayed second attack was perfectly timed to assure that the whole -world would be watching. +When two planes crashed into the +World Trade Center, another into the Pentagon, and a fourth into a +Pennsylvania field, all media around the world shifted to this +news. Every moment of just about every day for that week, and for +weeks after, television in particular, and media generally, retold the +story of the events we had just witnessed. The telling was a +retelling, because we had seen the events that were described. The +genius of this awful act of terrorism was that the delayed second +attack was perfectly timed to assure that the whole world would be +watching. These retellings had an increasingly familiar feel. There was music @@ -2249,6 +2300,7 @@ the term in his book Cyber Rights, around a news event th captured the attention of the world. There was ABC and CBS, but there was also the Internet. + I don't mean simply to praise the Internet—though I do think the people who supported this form of speech should be praised. I mean @@ -2268,6 +2320,10 @@ and obviously not just that events are commented upon critically, but that this mix of captured images, sound, and commentary can be widely spread practically instantaneously. +September 11, 2001, terrorist attacks of +blogs (Web-logs) +Internetblogs on +Web-logs (blogs) September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that has grown dramatically was @@ -2277,6 +2333,8 @@ such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way—it's a kind of electronic Jerry Springer, available anywhere in the world. +political discourse +Internetpublic discourse conducted on But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about @@ -2291,6 +2349,9 @@ are relatively short; they point directly to words used by others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public discourse that we have. +democracyin technologies of expression +elections +expression, technologies ofdemocratic That's a strong statement. Yet it says as much about our democracy as it does about blogs. This is the part of America that is most @@ -2302,7 +2363,12 @@ people vote in those elections. The cycle of these elections has become totally professionalized and routinized. Most of us think this is democracy. + + + Tocqueville, Alexis de +democracypublic discourse in +jury system But democracy has never just been about elections. Democracy means rule by the people, but rule means something more than mere @@ -2323,6 +2389,7 @@ See, for example, Alexis de Tocqueville, Democracy in America + Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some @@ -2335,6 +2402,7 @@ And in some towns in New England, something close to deliberation remains. But for most of us for most of the time, there is no time or place for democratic deliberation to occur. +political discourse More bizarrely, there is generally not even permission for it to occur. We, the most powerful democracy in the world, have developed a @@ -2348,6 +2416,13 @@ Cass Sunstein, Republic.com (Princeton: Princeton Univers We say what our friends want to hear, and hear very little beyond what our friends say. +blogs (Web-logs) +e-mail +Internetblogs on +Web-logs (blogs) + + + Enter the blog. The blog's very architecture solves one part of this problem. People post when they want to post, and people read when they @@ -2367,14 +2442,17 @@ the left. Some of the most popular sites are conservative or libertarian, but there are many of all political stripes. And even blogs that are not political cover political issues when the occasion merits. +Dean, Howard The significance of these blogs is tiny now, though not so tiny. The name Howard Dean may well have faded from the 2004 presidential race but for blogs. Yet even if the number of readers is small, the reading is having an effect. -Dean, Howard +Lott, Trent Thurmond, Strom +mediablog pressure on +Internetnews events on One direct effect is on stories that had a different life cycle in the mainstream media. The Trent Lott affair is an example. When Lott @@ -2390,8 +2468,8 @@ resign as senate majority leader. Noah Shachtman, With Incessant Postings, a Pundit Stirs the Pot, New York Times, 16 January 2003, G5. -Lott, Trent +mediacommercial imperatives of This different cycle is possible because the same commercial pressures don't exist with blogs as with other ventures. Television and @@ -2399,6 +2477,8 @@ newspapers are commercial entities. They must work to keep attention. If they lose readers, they lose revenue. Like sharks, they must move on. + +Internetpeer-generated rankings 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 @@ -2408,9 +2488,9 @@ 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 - + +journalism +Winer, Dave There's a second way, as well, in which blogs have a different cycle @@ -2423,6 +2503,9 @@ conflict of interest is so easily disclosed that you know you can sort of get it out of the way. CNN +mediacommercial imperatives of +Iraq war +mediaownership concentration in These conflicts become more important as media becomes more concentrated (more on this below). A concentrated media can hide more @@ -2440,13 +2523,15 @@ 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. + + +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 @@ -2467,6 +2552,10 @@ not clear that journalism is happy about this—some journali have been told to curtail their blogging. +CNN +Iraq war +Olafson, Steve +blogs (Web-logs) 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 @@ -2475,8 +2564,6 @@ 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.) -CNN -Olafson, Steve But it is clear that we are still in transition. A @@ -2487,6 +2574,7 @@ And as the inclusion of content in this space is the least infringing use of the Internet (meaning infringing on copyright), Winer said, we will be the last thing that gets shut down. + This speech affects democracy. Winer thinks that happens because you don't have to work for somebody who controls, [for] a gatekeeper. @@ -2502,17 +2590,20 @@ Today there are probably a couple of million blogs where such writing happens. When there are ten million, there will be something extraordinary to report. - - - Brown, John Seely - - - advertising - + + + + + + + +Brown, John Seely +advertising -John Seely Brown is the chief scientist of the Xerox Corporation. -His work, as his Web site describes it, is human learning and … the -creation of knowledge ecologies for creating … innovation. +John Seely Brown is the chief +scientist of the Xerox Corporation. His work, as his Web site +describes it, is human learning and … the creation of +knowledge ecologies for creating … innovation. Brown thus looks at these technologies of digital creativity a bit @@ -2615,7 +2706,7 @@ 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 moving images and sound, and adds a space for commentary and an @@ -2631,16 +2722,20 @@ quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs +Jordan, Jesse RPIRensselaer Polytechnic Institute (RPI) - - Rensselaer Polytechnic Institute (RPI) - +Rensselaer Polytechnic Institute (RPI) +Rensselaer Polytechnic Institute (RPI)computer network search engine of +search engines +university computer networks, p2p sharing on +Internetsearch engines used on -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. @@ -2657,6 +2752,7 @@ 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. +Google Search engines are a measure of a network's intimacy. Google @@ -2669,6 +2765,9 @@ 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. + +Jordan, Jesse +Microsoftnetwork file system of These engines are enabled by the network technology itself. Microsoft, for example, has a network file system that makes it very @@ -2678,6 +2777,7 @@ 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 @@ -2690,6 +2790,7 @@ 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 months, he continued to tweak it to improve its functionality. By @@ -2697,6 +2798,7 @@ March, the system was functioning quite well. Jesse had more than one million files in his directory, including every type of content that might be on users' computers. + Thus the index his search engine produced included pictures, which students could use to put on their own Web sites; copies of notes or @@ -2706,6 +2808,8 @@ might have created; university brochures—basically anything that users of the RPI network made available in a public folder of their computer. +Google +educationtinkering as means of 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 @@ -2721,6 +2825,11 @@ this experiment. He was a kid tinkering with technology in an environment where tinkering with technology was precisely what he was supposed to do. +copyright infringement lawsuitsin recording industry +copyright infringement lawsuitsagainst student file sharing +recording industrycopyright infringement lawsuits of +Recording Industry Association of America (RIAA)copyright infringement lawsuits filed by + On April 3, 2003, Jesse was contacted by the dean of students at RPI. The dean informed Jesse that the Recording Industry Association @@ -2743,7 +2852,12 @@ 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. + +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsstatutory damages of +copyright infringement lawsuitsindividual defendants intimidated by statutory damages +Recording Industry Association of America (RIAA)intimidation tactics of But the RIAA branded Jesse a pirate. They claimed he operated a network and had therefore willfully violated copyright laws. They @@ -2755,8 +2869,8 @@ claim $150,000 per infringement. As the RIAA alleged more than one hundred specific copyright infringements, they therefore demanded that Jesse pay them at least $15,000,000. -Princeton University Michigan Technical University +Princeton University Similar lawsuits were brought against three other students: one other student at RPI, one at Michigan Technical University, and one at @@ -2775,7 +2889,7 @@ Suit Alleges $97.8 Billion in Damages, Professional Media Gro (2003): 5, available at 2003 WL 55179443. - + Jesse called his parents. They were supportive but a bit frightened. An uncle was a lawyer. He began negotiations with the RIAA. They @@ -2795,6 +2909,7 @@ 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. +legal system, attorney costs in Jesse's family was outraged at these claims. They wanted to fight. But Jesse's uncle worked to educate the family about the nature of the @@ -2809,10 +2924,9 @@ paper saying he and his family were bankrupt. So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. - -artists -recording industry payments to - +artistsrecording industry payments to +recording industryartist remuneration in +Recording Industry Association of America (RIAA)lobbying power of The recording industry insists this is a matter of law and morality. Let's put the law aside for a moment and think about the morality. @@ -2834,6 +2948,8 @@ Douglas Lichtman makes a related point in KaZaA and Punishment, Wall Street Journal, 10 September 2003, A24. + + On June 23, Jesse wired his savings to the lawyer working for the RIAA. The case against him was then dismissed. And with this, this @@ -2855,27 +2971,38 @@ I. … He's not a tree hugger. … I think it's bizarre that they wo pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record. + + + + + + CHAPTER FOUR: <quote>Pirates</quote> - -If piracy means using the creative property of others without -their permission—if if value, then right is true—then the history of -the content industry is a history of piracy. Every important sector of -big media today—film, records, radio, and cable TV—was born of a -kind of piracy so defined. The consistent story is how last generation's -pirates join this generation's country club—until now. +piracyin development of content industry +if value, then right theory + +If piracy means +using the creative property of others without their +permission—if if value, then right is +true—then the history of the content industry is a history of +piracy. Every important sector of big media +today—film, records, radio, and cable TV—was born of a +kind of piracy so defined. The consistent story is how last +generation's pirates join this generation's country club—until +now.
Film 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 @@ -2900,6 +3027,9 @@ 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 @@ -2925,9 +3055,6 @@ 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. @@ -2959,13 +3086,12 @@ Edison's creative property.
Recorded Music +copyright lawon music recordings The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. - - Fourneaux, Henri - +Fourneaux, Henri Russel, Phil At the time that Edison and Henri Fourneaux invented machines @@ -2996,7 +3122,7 @@ then made copies of those recordings. Because of this gap in the law, then, I could effectively pirate someone else's song without paying its composer anything. - + The composers (and publishers) were none too happy about @@ -3046,6 +3172,13 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). +American Graphophone Company +player pianos +sheet music +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawstatutory licenses in +recording industrystatutory license system in 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 @@ -3070,8 +3203,8 @@ 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 +cover songs The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the @@ -3087,6 +3220,8 @@ copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. +compulsory license +statutory licenses American law ordinarily calls this a compulsory license, but I will refer to it as a statutory license. A statutory license is a license @@ -3095,6 +3230,7 @@ Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. +Grisham, John This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if @@ -3103,8 +3239,9 @@ charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham's work except with permission of Grisham. -Grisham, John + +Beatles But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording @@ -3126,8 +3263,10 @@ sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). -Beatles + + + While the recording industry has been quite coy about this recently, historically it has been quite a supporter of the statutory license for @@ -3157,6 +3296,10 @@ March 1967). I am grateful to Glenn Brown for drawing my attention to this report. + + + + By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit. @@ -3164,10 +3307,8 @@ creative work, the record producers, and the public, benefit.
Radio - - artists - recording industry payments to - +recording industryradio broadcast and +artistsrecording industry payments to Radio was also born of piracy. @@ -3214,9 +3355,7 @@ something for nothing. It gets to perform the recording artist's work for free, even if it must pay the composer something for the privilege of playing the song. - - Madonna - +Madonna This difference can be huge. Imagine you compose a piece of music. Imagine it is your first. You own the exclusive right to authorize @@ -3233,7 +3372,8 @@ the sale of her CDs. The public performance of her recording is not a pirate the value of Madonna's work without paying her anything. - + + No doubt, one might argue that, on balance, the recording artists benefit. On average, the promotion they get is worth more than the @@ -3242,12 +3382,12 @@ ordinarily gives the creator the right to make this choice. By making the choice for him or her, the law gives the radio station the right to take something for nothing. - +
Cable TV +cable television - Cable TV was also born of a kind of piracy. @@ -3363,11 +3503,13 @@ 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 +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 @@ -3388,12 +3530,12 @@ last. Every generation—until now. CHAPTER FIVE: <quote>Piracy</quote> -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. +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. But as well as copy-shop piracy, there is another kind of taking @@ -3408,6 +3550,7 @@ has so often done in the past.
Piracy I Asia, commercial piracy in +CDsforeign piracy of All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people's copyrighted @@ -3453,7 +3596,7 @@ 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. @@ -3517,6 +3660,7 @@ from a computer network, there is not one less CD that can be sold. The physics of piracy of the intangible are different from the physics of piracy of the tangible. + This argument is still very weak. However, although copyright is a property right of a very special sort, it is a @@ -3536,6 +3680,14 @@ 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 @@ -3548,14 +3700,8 @@ 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 - -Microsoft -Windows 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 @@ -3564,6 +3710,10 @@ 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 @@ -3576,10 +3726,6 @@ 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 @@ -3633,12 +3779,15 @@ and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit. +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 innovations. Like every great advance in innovation on the Internet (and, arguably, off the Internet as well +innovation 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 @@ -3651,7 +3800,6 @@ 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, @@ -3713,7 +3861,9 @@ 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 @@ -3722,7 +3872,6 @@ 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 @@ -3786,6 +3935,7 @@ about radio, and broadcasters complained about cable TV, the music industry complains that type A sharing is a kind of theft that is devastating the industry. +cassette recordingVCRs While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the recording industry's @@ -3794,6 +3944,7 @@ cassette recording is a good example. As a study by Cap Gemini Ernst & Young put it, Rather than exploiting this new, popular technology, the labels fought it. +cassette recording See Cap Gemini Ernst & Young, Technology Evolution and the Music Industry's Business Model Crisis (2003), 3. This report describes the music industry's effort to stigmatize the budding @@ -3811,6 +3962,7 @@ 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 @@ -3823,6 +3975,7 @@ innovation at the major labels. U.S. Congress, Copyright and Home Copying, 4. + But just because the industry was wrong before does not mean it is wrong today. To evaluate the real threat that p2p sharing presents to @@ -3844,6 +3997,7 @@ therefore have little static reason to resist them. +CDssales levels of Could that be true? Could the industry as a whole be gaining because of file sharing? Odd as that might sound, the data about CD sales @@ -3918,6 +4072,7 @@ percent drop. If 2.6 times the number of CDs sold were downloaded for free, and yet sales revenue dropped by just 6.7 percent, then there is a huge difference between downloading a song and stealing a CD. + These are the harms—alleged and perhaps exaggerated but, let's assume, real. What of the benefits? File sharing may impose costs on @@ -3944,6 +4099,7 @@ available, the vast majority of it is unavailable solely because the publisher or the distributor has decided it no longer makes economic sense to the company to make it available. +booksresales of In real space—long before the Internet—the market had a simple @@ -3951,15 +4107,16 @@ response to this problem: used book and record stores. There are thousands of used book and used record stores in America today. -While there are not good estimates of the number of used record stores in -existence, in 2002, there were 7,198 used book dealers in the United States, -an increase of 20 percent since 1993. See Book Hunter Press, The Quiet -Revolution: The Expansion of the Used Book Market (2002), available at -link #19. Used records accounted for $260 million in sales in 2002. See - National -Association of Recording Merchandisers, 2002 Annual Survey - Results, -available at +booksresales of +While there are not good estimates of the number of used record stores +in existence, in 2002, there were 7,198 used book dealers in the +United States, an increase of 20 percent since 1993. See Book Hunter +Press, The Quiet Revolution: The Expansion of the Used Book +Market (2002), available at +link #19. Used +records accounted for $260 million in sales in 2002. See National +Association of Recording Merchandisers, 2002 Annual Survey +Results, available at link #20. These stores buy content from owners, then sell the content they @@ -3972,6 +4129,7 @@ statutory licensing, they don't have to pay the copyright owner for the content they sell. Bernstein, Leonard +booksout of print Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because the person making @@ -3993,6 +4151,7 @@ stores. Or put differently, if you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well? +booksfree on-line releases of Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur—the sharing of content that copyright owners @@ -4010,6 +4169,7 @@ type D content. If sharing networks enable his work to be spread, then both he and society are better off. (Actually, much better off: It is a great book!) + Likewise for work in the public domain: This sharing benefits society with no legal harm to authors at all. If efforts to solve the problem @@ -4085,10 +4245,18 @@ technology. In this adjustment, the law sought to ensure the legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less. - - artists - recording industry payments to - +artistsrecording industry payments to +composers, copyright protections of +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawon music recordings +copyright lawstatutory licenses in +radiomusic recordings played on +recording industryartist remuneration in +recording industrycopyright protections in +recording industryradio broadcast and +statutory licenses +composer's rights vs. producers' rights in So, as we've seen, when mechanical reproduction threatened the interests of composers, Congress balanced the rights of composers @@ -4101,6 +4269,7 @@ respected (since the radio station did not have to pay them for the creativity it broadcast), Congress rejected their claim. An indirect benefit was enough. +cable television Cable TV followed the pattern of record albums. When the courts rejected the claim that cable broadcasters had to pay for the content @@ -4109,6 +4278,7 @@ compensation, but at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the statutory price. + @@ -4127,7 +4297,11 @@ Congress chose a path that would assure compensation without giving the past (broadcasters) control over the future (cable). + + + Betamax +cassette recordingVCRs In the same year that Congress struck this balance, two major producers and distributors of film content filed a lawsuit against @@ -4141,6 +4315,7 @@ 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 decide to design its machine to make it very simple to record television @@ -4156,6 +4331,8 @@ 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. +Congress, U.S.on copyright laws +Congress, U.S.on VCR technology MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs tapeworms. He warned, When there are @@ -4178,7 +4355,7 @@ and plain common sense. Copyright Infringements (Audio and Video Recorders), 475. -Indeed, as surveys would later show, +Indeed, as surveys would later show, 45 percent of VCR owners had movie libraries of ten videos or more Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, @@ -4186,8 +4363,8 @@ percent of VCR owners had movie libraries of ten videos or more — a use the Court would later hold was not fair. By allowing VCR owners to copy freely by the means of an exemption from -copyright infringementwithout creating a mechanism to compensate -copyrightowners, Valenti testified, Congress would take from the +copyright infringement without creating a mechanism to compensate +copyright owners, Valenti testified, Congress would take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby profit from its reproduction. @@ -4238,6 +4415,7 @@ by such new technology. + Congress was asked to respond to the Supreme Court's decision. But as with the plea of recording artists about radio broadcasts, Congress @@ -4247,7 +4425,7 @@ together, a pattern is clear: - + CASE @@ -4284,7 +4462,7 @@ together, a pattern is clear: - + In each case throughout our history, a new technology changed the way content was distributed. @@ -4318,6 +4496,7 @@ 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 @@ -4330,6 +4509,7 @@ to $15 million in damages? Would it have been better if Edison had controlled film? Should every cover band have to hire a lawyer to get permission to record a song? +Supreme Court, U.S.on balance of interests in copyright law We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the Supreme Court has stated, @@ -4374,15 +4554,18 @@ fight. John Schwartz, New Economy: The Attack on Peer-to-Peer Software Echoes Past Efforts, New York Times, 22 September 2003, C3. -Yet when anyone begins to talk about balance, the copyright warriors -raise a different argument. All this hand waving about balance and -incentives, they say, misses a fundamental point. Our content, the -warriors insist, is our property. Why should we -wait for Congress to `rebalance' our property rights? Do you have to -wait before calling the police when your car has been stolen? And why -should Congress deliberate at all about the merits of this theft? Do -we ask whether the car thief had a good use for the car before we -arrest him? + + +Yet when anyone begins to talk +about balance, the copyright warriors raise a different +argument. All this hand waving about balance and +incentives, they say, misses a fundamental point. Our +content, the warriors insist, is our +property. Why should we wait for Congress to +`rebalance' our property rights? Do you have to wait before calling +the police when your car has been stolen? And why should Congress +deliberate at all about the merits of this theft? Do we ask whether +the car thief had a good use for the car before we arrest him? It is our property, the warriors @@ -4399,11 +4582,11 @@ is protected. -The copyright warriors are right: A copyright is a kind of -property. It can be owned and sold, and the law protects against its -theft. Ordinarily, the copyright owner gets to hold out for any price he -wants. Markets reckon the supply and demand that partially determine -the price she can get. +The copyright warriors are right: A +copyright is a kind of property. It can be owned and sold, and the law +protects against its theft. Ordinarily, the copyright owner gets to +hold out for any price he wants. Markets reckon the supply and demand +that partially determine the price she can get. But in ordinary language, to call a copyright a property right is a @@ -4417,6 +4600,7 @@ table in the backyard—by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing I am taking then? +Jefferson, Thomas The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The point instead is that @@ -4436,6 +4620,7 @@ Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in Ellery Bergh, eds., 1903), 330, 333–34. +property rightsintangibility of The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that @@ -4474,24 +4659,36 @@ from the implications that the copyright warriors would have us draw. CHAPTER SIX: Founders -Henry V +booksEnglish copyright law developed for +copyright lawdevelopment of +copyright lawEnglish +England, copyright laws developed in +United Kingdomhistory of copyright law in Branagh, Kenneth - -William Shakespeare wrote Romeo and Juliet in 1595. The play -was first published in 1597. It was the eleventh major play that -Shakespeare had written. He would continue to write plays through -1613, and the plays that he wrote have continued to define -Anglo-American culture ever since. So deeply have the works of a -sixteenth-century writer seeped into our culture that we often don't -even recognize their source. I once overheard someone commenting on -Kenneth Branagh's adaptation of Henry V: I liked it, but Shakespeare -is so full of clichés. - +Henry V +Shakespeare, William +Romeo and Juliet (Shakespeare) + +William Shakespeare wrote +Romeo and Juliet in 1595. The play was first +published in 1597. It was the eleventh major play that Shakespeare had +written. He would continue to write plays through 1613, and the plays +that he wrote have continued to define Anglo-American culture ever +since. So deeply have the works of a sixteenth-century writer seeped +into our culture that we often don't even recognize their source. I +once overheard someone commenting on Kenneth Branagh's adaptation of +Henry V: I liked it, but Shakespeare is so full of +clichés. + +Conger +Tonson, Jacob In 1774, almost 180 years after Romeo and Juliet was written, the copy-right for the work was still thought by many to be the exclusive right of a single London publisher, Jacob Tonson. +Jonson, Ben +Dryden, John Jacob Tonson is typically remembered for his associations with prominent eighteenth-century literary figures, especially John Dryden, and for his handsome definitive editions of classic works. In addition to Romeo and @@ -4515,6 +4712,10 @@ one else could publish copies of a book to which they held the copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated. +British Parliament +copyrightduration of +copyrightrenewability of +Statute of Anne (1710) Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the @@ -4525,13 +4726,18 @@ 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? + + +lawcommon vs. positive +positive law +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 @@ -4542,8 +4748,9 @@ 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) + +common law There was no positive law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to @@ -4556,6 +4763,11 @@ background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law. + +Conger +British Parliament +Scottish publishers +Statute of Anne (1710) This question was important to the publishers, or booksellers, as they were called, because there was growing competition from foreign @@ -4568,6 +4780,7 @@ to again give them exclusive control over publishing. That demand ultimately resulted in the Statute of Anne. +copyrightas narrow monopoly right The Statute of Anne granted the author or proprietor of a book an exclusive right to print that book. In an important limitation, @@ -4577,12 +4790,16 @@ copyright expired, and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed. + Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right at all? + +Shakespeare, William +Romeo and Juliet (Shakespeare) For the booksellers, and the authors whom they represented, had a very strong claim. Take Romeo and Juliet as an example: That play @@ -4594,12 +4811,14 @@ why is it that the law would ever allow someone else to come along and take Shakespeare's play without his, or his estate's, permission? What reason is there to allow someone else to steal Shakespeare's work? +Statute of Anne (1710) The answer comes in two parts. We first need to see something special about the notion of copyright that existed at the time of the Statute of Anne. Second, we have to see something important about booksellers. +copyrightusage restrictions attached to First, about copyright. In the last three hundred years, we have come to apply the concept of copyright ever more broadly. But in 1710, it @@ -4616,6 +4835,7 @@ the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on. Branagh, Kenneth +Shakespeare, William So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the @@ -4627,6 +4847,7 @@ allowed to make his films. The copy-right was only an exclusive right to print—no less, of course, but also no more. Henry VIII, King of England +monopoly, copyright as Statute of Monopolies (1656) Even that limited right was viewed with skepticism by the British. @@ -4650,6 +4871,10 @@ have it forever.) The state would protect the exclusive right, but only so long as it benefited society. The British saw the harms from specialinterest favors; they passed a law to stop them. +Milton, John +booksellers, English +Conger +copyrightduration of Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers. @@ -4670,6 +4895,8 @@ Philip Wittenberg, The Protection and Marketing of Literary Property (New York: J. Messner, Inc., 1937), 31. +Enlightenment +knowledge, freedom of Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment @@ -4678,6 +4905,7 @@ generally. The idea that knowledge should be free was a hallmark of the time, and these powerful commercial interests were interfering with that idea. +British Parliament To balance this power, Parliament decided to increase competition among booksellers, and the simplest way to do that was to spread the @@ -4690,6 +4918,9 @@ to fight the power of the booksellers. The limitation on terms was an indirect way to assure competition among publishers, and thus the construction and spread of culture. +Statute of Anne (1710) + +copyrightin perpetuity When 1731 (1710 + 21) came along, however, the booksellers were getting anxious. They saw the consequences of more competition, and @@ -4725,6 +4956,11 @@ al., 8, Eldred v. Ashcroft, 537 U. + + +common law +lawcommon vs. positive +positive law Having failed in Parliament, the publishers turned to the courts in a series of cases. Their argument was simple and direct: The Statute of @@ -4740,6 +4976,7 @@ 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. + This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary @@ -4747,14 +4984,18 @@ 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. +Donaldson, Alexander +Patterson, Raymond +Scottish publishers The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander @@ -4764,6 +5005,10 @@ For a compelling account, see David Saunders, Authorship and Copyrigh (London: Routledge, 1992), 62–69. +Statute of Anne (1710) +Conger +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 @@ -4783,9 +5028,8 @@ of contemporary Scottish poems with Donaldson. Ibid., 93. -Boswell, James -Erskine, Andrew +common law When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold @@ -4793,6 +5037,7 @@ 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). @@ -4800,11 +5045,18 @@ His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection. + +Millar v. Taylor 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. + + +Thomson, James +copyrightin perpetuity +Seasons, The (Thomson) Taylor, Robert Millar was a bookseller who in 1729 had purchased the rights to James @@ -4819,9 +5071,7 @@ 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 @@ -4833,6 +5083,10 @@ reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them. + + + +British Parliament Considered as a matter of abstract justice—reasoning as if justice were just a matter of logical deduction from first @@ -4847,12 +5101,17 @@ 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. - + +Donaldson, Alexander +Scottish publishers 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. +Thomson, James Beckett, Thomas +House of Lords +Supreme Court, U.S.House of Lords vs. 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 @@ -4867,6 +5126,10 @@ the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before. + + +Donaldson v. Beckett +common law As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of attention throughout Britain. Donaldson's lawyers @@ -4877,6 +5140,7 @@ publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected. + The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the law lords, @@ -4884,6 +5148,9 @@ members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted. + +copyrightin perpetuity +public domainEnglish legal establishment of The reports about the law lords' votes are mixed. On some counts, it looks as if perpetual copyright prevailed. But there is no ambiguity @@ -4894,6 +5161,11 @@ Whatever one's understanding of the common law, now a copyright was fixed for a limited time, after which the work protected by copyright passed into the public domain. +Bacon, Francis +Bunyan, John +Johnson, Samuel +Milton, John +Shakespeare, William The public domain. Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in @@ -4903,12 +5175,13 @@ born. For the first time in Anglo-American history, the legal control over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint. -Bacon, Francis -Bunyan, John -Johnson, Samuel -Milton, John -Shakespeare, William + + + + + +Scottish publishers It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, @@ -4923,6 +5196,7 @@ and illuminations. Rose, 97. + In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The Morning Chronicle @@ -4943,6 +5217,8 @@ Ibid. +House of Lords +free cultureEnglish legal establishment of Ruined is a bit of an exaggeration. But it is not an exaggeration to @@ -4965,28 +5241,46 @@ context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many. + +British Parliament At least, this was the rule in a world where the Parliament is antimonopoly, resistant to the protectionist pleas of publishers. In a world where the Parliament is more pliant, free culture would be less protected. + + + + + + + + + CHAPTER SEVEN: Recorders +copyright lawfair use and +documentary film +Else, Jon +fair usein documentary film +filmsfair use of copyrighted material in -Jon Else is a filmmaker. He is best known for his documentaries and -has been very successful in spreading his art. He is also a teacher, and -as a teacher myself, I envy the loyalty and admiration that his students -feel for him. (I met, by accident, two of his students at a dinner party. -He was their god.) +Jon Else is a filmmaker. He is best +known for his documentaries and has been very successful in spreading +his art. He is also a teacher, and as a teacher myself, I envy the +loyalty and admiration that his students feel for him. (I met, by +accident, two of his students at a dinner party. He was their god.) Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today. +Wagner, Richard +San Francisco Opera In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. @@ -4994,8 +5288,8 @@ Stagehands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage. -San Francisco Opera +Simpsons, The During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set. @@ -5005,6 +5299,8 @@ and the opera company played Wagner, was The Simpsons. As it, this touch of cartoon helped capture the flavor of what was special about the scene. + +filmsmultiple copyrights associated with Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. @@ -5012,22 +5308,24 @@ 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 +Groening, Matt 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 +Fox (film company) 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 … that Matt Groening doesn't own his own creation—or at @@ -5036,6 +5334,9 @@ And second, Fox wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of … entirely unsolicited Simpsons which was in the corner of the shot. + + +Herrera, Rebecca Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He @@ -5044,6 +5345,7 @@ asking for your educational rate on this. That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. +Wagner, Richard I wanted to make sure I had my facts straight, he told me. Yes, you have your facts straight, she said. It would cost $10,000 to use the @@ -5056,6 +5358,9 @@ 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 @@ -5063,9 +5368,9 @@ 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 +Fox (film company) +Groening, Matt There's no doubt that someone, whether Matt Groening or Fox, owns the copyright to The Simpsons. That copyright is their property. To use @@ -5100,11 +5405,14 @@ Else's use of just 4.5 seconds of an indirect shot of a SimpsonsThe Simpsons—and fair use does not require the permission of anyone. + + So I asked Else why he didn't just rely upon fair use. Here's his reply:
+fair uselegal intimidation tactics against The Simpsons fiasco was for me a great lesson in the gulf between what lawyers find irrelevant in some abstract sense, and what is crushingly @@ -5114,7 +5422,9 @@ fair use in an absolute legal sense. But I couldn't rely on the concept in any concrete way. Here's why: - + +Errors and Omissions insurance + Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed @@ -5123,6 +5433,9 @@ shot in the film. They take a dim view of fair use, and a claim o fair use can grind the application process to a halt. +Fox (film company) +Groening, Matt +Lucas, George Star Wars @@ -5135,7 +5448,6 @@ 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 @@ -5146,7 +5458,9 @@ life, regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them. - + + + The question of fair use usually comes up at the end of the @@ -5155,6 +5469,7 @@ money.
+ In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But @@ -5170,26 +5485,29 @@ publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not. + + + + + + CHAPTER EIGHT: Transformers Allen, Paul - - Alben, Alex - +Alben, Alex Microsoft -In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave -was an innovative company founded by Microsoft cofounder Paul Allen to -develop digital entertainment. Long before the Internet became -popular, Starwave began investing in new technology for delivering -entertainment in anticipation of the power of networks. +In 1993, Alex Alben was a lawyer +working at Starwave, Inc. Starwave was an innovative company founded +by Microsoft cofounder Paul Allen to develop digital +entertainment. Long before the Internet became popular, Starwave began +investing in new technology for delivering entertainment in +anticipation of the power of networks. - - artists - retrospective compilations on - +artistsretrospective compilations on +CD-ROMs, film clips used in Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology—not to distribute @@ -5237,10 +5555,7 @@ 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. - -artists -publicity rights on images of - +artistspublicity rights on images of Alben, Alex @@ -5385,6 +5700,7 @@ 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 @@ -5489,8 +5805,9 @@ 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 @@ -5536,18 +5853,20 @@ curse, reserved for the few. CHAPTER NINE: Collectors - - archives, digital - +archives, digital +bots -In April 1996, millions of bots—computer codes designed to -spider, or automatically search the Internet and copy content—began -running across the Net. Page by page, these bots copied Internet-based -information onto a small set of computers located in a basement in San -Francisco's Presidio. Once the bots finished the whole of the Internet, -they started again. Over and over again, once every two months, these -bits of code took copies of the Internet and stored them. +In April 1996, millions of +bots—computer codes designed to +spider, or automatically search the Internet and copy +content—began running across the Net. Page by page, these bots +copied Internet-based information onto a small set of computers +located in a basement in San Francisco's Presidio. Once the bots +finished the whole of the Internet, they started again. Over and over +again, once every two months, these bits of code took copies of the +Internet and stored them. +Way Back Machine By October 2001, the bots had collected more than five years of copies. And at a small announcement in Berkeley, California, the @@ -5556,9 +5875,7 @@ the world. Using a technology called the Way Back Machine, you co enter a Web page, and see all of its copies going back to 1996, as well as when those pages changed. - - Orwell, George - +Orwell, George This is the thing about the Internet that Orwell would have appreciated. In the dystopia described in 1984, old newspapers were @@ -5580,6 +5897,7 @@ but the content could easily be different. The Internet is Orwell's library—constantly updated, without any reliable memory. +Way Back Machine Until the Way Back Machine, at least. With the Way Back Machine, and the Internet Archive underlying it, you can see what the Internet @@ -5587,6 +5905,7 @@ was. You have the power to see what you remember. More importantly, perhaps, you also have the power to find what you don't remember and what others might prefer you forget. +Iraq war White House press releases The temptations remain, however. Brewster Kahle reports that the White House changes its own press releases without notice. A May 13, 2003, @@ -5595,16 +5914,17 @@ later changed, without notice, to Major Combat Operations in Iraq Have Ended. E-mail from Brewster Kahle, 1 December 2003. +history, records of -We take it for granted that we can go back to see what we remember -reading. Think about newspapers. If you wanted to study the reaction -of your hometown newspaper to the race riots in Watts in 1965, or to -Bull Connor's water cannon in 1963, you could go to your public -library and look at the newspapers. Those papers probably exist on -microfiche. If you're lucky, they exist in paper, too. Either way, you -are free, using a library, to go back and remember—not just what -it is convenient to remember, but remember something close to the -truth. +We take it for granted that we can +go back to see what we remember reading. Think about newspapers. If +you wanted to study the reaction of your hometown newspaper to the +race riots in Watts in 1965, or to Bull Connor's water cannon in 1963, +you could go to your public library and look at the newspapers. Those +papers probably exist on microfiche. If you're lucky, they exist in +paper, too. Either way, you are free, using a library, to go back and +remember—not just what it is convenient to remember, but +remember something close to the truth. It is said that those who fail to remember history are doomed to @@ -5636,7 +5956,12 @@ Internet Archive was just the first of the projects of this Andrew Carnegie of the Internet. By December of 2002, the archive had over 10 billion pages, and it was growing at about a billion pages a month. +Library of Congress +Television Archive Vanderbilt University +Way Back Machine +librariesarchival function of +news coverage The Way Back Machine is the largest archive of human knowledge in human history. At the end of 2002, it held two hundred and thirty @@ -5656,6 +5981,7 @@ just a graduate student? As Kahle put it,
Quayle, Dan +60 Minutes Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician @@ -5668,6 +5994,7 @@ original back and forth exchanges between the two, the impossible. … Those materials are almost unfindable. …
+newspapersarchives of Why is that? Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is @@ -5684,6 +6011,8 @@ of knowledge and to assure that a copy of the work would be around once the copyright expired, so that others might access and copy the work. +Library of Congress +filmsarchive of These rules applied to film as well. But in 1915, the Library of Congress made an exception for film. Film could be copyrighted so @@ -5712,6 +6041,7 @@ broadcasters. No library had any right to them; the government didn't demand them. The content of this part of American culture is practically invisible to anyone who would look. +September 11, 2001, terrorist attacks of Kahle was eager to correct this. Before September 11, 2001, he and @@ -5724,10 +6054,13 @@ Anyone could see how news reports from around the world covered the events of that day. Movie Archive - - archive.org - Internet Archive - +archive.orgInternet Archive + +filmsarchive of +Internet Archive +Duck and Cover film +ephemeral films +Prelinger, Rick Kahle had the same idea with film. Working with Rick Prelinger, whose archive of film includes close to 45,000 ephemeral films (meaning @@ -5783,10 +6116,12 @@ build an archive of knowledge about our history. In this second life, the content can continue to inform even if that information is no longer sold. +booksout of print The same has always been true about books. A book goes out of print very quickly (the average today is after about a year +booksout of print Dave Barns, Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business, Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 @@ -5812,12 +6147,12 @@ what a certain limited market demands. Beyond that, culture disappears. -For most of the twentieth century, it was economics that made this -so. It would have been insanely expensive to collect and make -accessible all television and film and music: The cost of analog -copies is extraordinarily high. So even though the law in principle -would have restricted the ability of a Brewster Kahle to copy culture -generally, the +For most of the twentieth century, +it was economics that made this so. It would have been insanely +expensive to collect and make accessible all television and film and +music: The cost of analog copies is extraordinarily high. So even +though the law in principle would have restricted the ability of a +Brewster Kahle to copy culture generally, the real restriction was economics. The market made it impossibly difficult to do anything about this ephemeral culture; the law had @@ -5838,10 +6173,7 @@ we are for the first time at a point where that dream is possible. As Kahle describes,
- - books - total number of - +bookstotal number of It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of @@ -5856,6 +6188,7 @@ 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 @@ -5884,17 +6217,25 @@ that Kahle and others would exercise. CHAPTER TEN: <quote>Property</quote> - -Jack Valenti has been the president of the Motion Picture Association -of America since 1966. He first came to Washington, D.C., with Lyndon -Johnson's administration—literally. The famous picture of -Johnson's swearing-in on Air Force One after the assassination of -President Kennedy has Valenti in the background. In his almost forty -years of running the MPAA, Valenti has established himself as perhaps -the most prominent and effective lobbyist in Washington. Johnson, Lyndon Kennedy, John F. + +Jack Valenti has been the president +of the Motion Picture Association of America since 1966. He first came +to Washington, D.C., with Lyndon Johnson's +administration—literally. The famous picture of Johnson's +swearing-in on Air Force One after the assassination of President +Kennedy has Valenti in the background. In his almost forty years of +running the MPAA, Valenti has established himself as perhaps the most +prominent and effective lobbyist in Washington. +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 @@ -5906,13 +6247,6 @@ 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 @@ -6031,10 +6365,12 @@ notwithstanding, in assuring that the new can displace them. No organization does. No person does. (Ask me about tenure, for example.) But what's good for the MPAA is not necessarily good for America. A society that defends the ideals of free culture must preserve -precisely the opportunity for new creativity to threaten the old. To -get just a hint that there is something fundamentally wrong in -Valenti's argument, we need look no further than the United States -Constitution itself. +precisely the opportunity for new creativity to threaten the old. + + +To get just a hint that there is +something fundamentally wrong in Valenti's argument, we need look no +further than the United States Constitution itself. The framers of our Constitution loved property. Indeed, so strongly @@ -6071,6 +6407,7 @@ should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself. +Jefferson, Thomas Arguing for a change in our Constitution is not necessarily wrong. There was much in our original Constitution that was plainly wrong. @@ -6091,6 +6428,8 @@ creative property be given the same rights as all other property? Why did they require that for creative property there must be a public domain? + + To answer this question, we need to get some perspective on the history of these creative property rights, and the control that they @@ -6104,6 +6443,10 @@ ought to be. Not whether artists should be paid, but whether institutions designed to assure that artists get paid need also control how culture develops. +free culturefour modalities of constraint on +regulationfour modalities of +copyright lawas ex post regulation modality +lawas constraint modality @@ -6119,6 +6462,7 @@ weaken the right or regulation. I represented it with this diagram: How four different modalities of regulation interact to support or weaken the right or regulation. +Madonna At the center of this picture is a regulated dot: the individual or group that is the target of regulation, or the holder of a right. (In @@ -6148,7 +6492,7 @@ could easily be more harsh than many of the punishments imposed by the state. The mark of the difference is not the severity of the rule, but the source of the enforcement. -market constraints +market constraints The market is a third type of constraint. Its constraint is effected through conditions: You can do X if you pay Y; you'll be paid M if you @@ -6175,6 +6519,10 @@ blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint. + + + +lawas constraint modality @@ -6192,12 +6540,11 @@ be; my claim is not about comprehensiveness), these four are among the most significant, and any regulator (whether controlling or freeing) must consider how these four in particular interact. - - driving speed, constraints on - architecture, constraint effected through market constraints norms, regulatory influence of +driving speed, constraints on +speeding, constraints on So, for example, consider the freedom to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that @@ -6238,8 +6585,8 @@ strict—a federal requirement that states decrease the speed limit, for example—so as to decrease the attractiveness of fast driving. - - + +
Law has a special role in affecting the three. @@ -6289,8 +6636,10 @@ effective liberty that each of these groups might face. market constraints +
Why Hollywood Is Right +copyrightfour regulatory modalities on The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress @@ -6305,8 +6654,9 @@ Internet: Copyright's regulation before the Internet.
-market constraints -norms, regulatory influence of +architecture, constraint effected through +lawas constraint modality +norms, regulatory influence of There is balance between law, norms, market, and architecture. The law @@ -6320,6 +6670,10 @@ 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. +Internetcopyright regulatory balance lost with +peer-to-peer (p2p) file sharingregulatory balance lost in +market constraints +MP3s Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, @@ -6328,6 +6682,9 @@ 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. + + +technologyestablished industries threatened by changes in Thus the sense of, and justification for, the warriors' response. Technology has changed, the warriors say, and the effect of this @@ -6342,6 +6699,8 @@ looting that results. effective state of anarchy after the Internet. +Commerce, U.S. Department of +regulationas establishment protectionism Neither this analysis nor the conclusions that follow are new to the warriors. Indeed, in a White Paper prepared by the Commerce @@ -6354,6 +6713,9 @@ innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright. + + +farming steel industry This mixed strategy is just what copyright needed—if it was to @@ -6372,6 +6734,9 @@ 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. + + +Brown, John Seely Thus, there's nothing wrong or surprising in the content industry's campaign to protect itself from the harmful consequences of a @@ -6380,8 +6745,14 @@ 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. -railroad industry advertising +televisionadvertising on +commercials +camera technology +digital cameras +Kodak cameras +railroad industry +remote channel changers But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because @@ -6412,8 +6783,13 @@ 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?) +free market, technological changes in Brezhnev, Leonid +FM radio +radioFM spectrum of Gates, Bill +market competition +RCA The obvious answer to these obviously rhetorical questions is no. In a free society, with a free market, supported by free enterprise and @@ -6445,6 +6821,9 @@ 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. +Constitution, U.S.First Amendment to +First Amendment +speech, freedom ofconstitutional guarantee of In the context of laws regulating speech—which include, obviously, copyright law—that duty is even stronger. When the @@ -6459,6 +6838,8 @@ Congress is being asked to pass laws that would abridge the freed of speech, it should ask— carefully—whether such regulation is justified. + + My argument just now, however, has nothing to do with whether @@ -6471,16 +6852,16 @@ effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. - - DDT - +Müller, Paul Hermann +DDT +insecticide, environmental consequences of +farming 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 @@ -6488,7 +6869,8 @@ production is a good thing. No one doubts that the work of Müller was important and valuable and probably saved lives, possibly millions. Carson, Rachel -Silent Sprint (Carson) +Silent Spring (Carson) +environmentalism But in 1962, Rachel Carson published Silent Spring, which argued that DDT, whatever its primary benefits, was also having unintended @@ -6504,7 +6886,9 @@ 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. + Boyle, James +copyright lawinnovative freedom balanced with fair compensation in It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an environmentalism for @@ -6526,6 +6910,7 @@ 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 this effect. No doubt the technology of the Internet has had a dramatic @@ -6537,21 +6922,33 @@ not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity. + In a line: To kill a gnat, we are spraying DDT with consequences for free culture that will be far more devastating than that this gnat will be lost. - + + +
Beginnings +Constitution, U.S.on creative property +Constitution, U.S.copyright purpose established in +Constitution, U.S.Progress Clause of +copyrightconstitutional purpose of +copyrightduration of +creative propertyconstitutional tradition on +Progress Clause +copyrightduration of 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. +Congress, U.S.in constitutional Progress Clause The power to establish creative property rights is granted to Congress in a way that, for our Constitution, at least, is very @@ -6570,6 +6967,9 @@ does not say. It does not say Congress has the power to grant purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors. + +copyright lawas protection of creators +copyright lawhistory of American The Progress Clause expressly limits the term of copyrights. As we saw in chapter , @@ -6580,6 +6980,9 @@ followed the English for a similar purpose. Indeed, unlike the English, the framers reinforced that objective, by requiring that copyrights extend to Authors only. +Senate, U.S. +Constitution, U.S.structural checks and balances of +electoral college The design of the Progress Clause reflects something about the Constitution's design in general. To avoid a problem, the framers @@ -6595,6 +6998,8 @@ 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 @@ -6602,6 +7007,10 @@ 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. + + + +copyrightfour regulatory modalities on Some of these changes come from the law: some in light of changes in technology, and some in light of changes in technology given a @@ -6627,6 +7036,11 @@ Let me explain how.
Law: Duration +copyrightduration of +Congress, U.S.on copyright laws +Copyright Act (1790) +creative propertycommon law protections of +public domainbalance of U.S. content in When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that @@ -6651,6 +7065,8 @@ States was controlled or free. Just as in England, this lingering uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works. +Statute of Anne (1710) +lawfederal vs. state That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, @@ -6659,6 +7075,7 @@ protections. Just as in England the Statute of Anne eventually meant that the copyrights for all English works expired, a federal statute meant that any state copyrights expired as well. +copyrightrenewability of In 1790, Congress enacted the first copyright law. It created a federal copyright and secured that copyright for fourteen years. If @@ -6666,6 +7083,7 @@ the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain. + While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually @@ -6690,6 +7108,8 @@ copyright was short. The initial term of copyright was fourteen years, with the option of renewal for an additional fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124. + + This system of renewal was a crucial part of the American system of copyright. It assured that the maximum terms of copyright would be @@ -6716,6 +7136,9 @@ M. Landes and Richard A. Posner, Indefinitely Renewable Copyright,University of Chicago Law Review 70 (2003): 471, 498–501, and accompanying figures. + +booksresales of +booksout of print Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall @@ -6728,6 +7151,9 @@ copyright. The only practical commercial use of the books at that time is to sell the books as used books; that use—because it does not involve publication—is effectively free. +Congress, U.S.on copyright laws +Congress, U.S.copyright terms extended by +copyright lawterm extensions in In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 @@ -6736,6 +7162,8 @@ from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. +Sonny Bono Copyright Term Extension Act (CTEA) (1998) +public domainfuture patents vs. future copyrights in Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress @@ -6746,6 +7174,7 @@ In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years. +patentsin public domain The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the @@ -6757,6 +7186,7 @@ after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term. + The effect of these extensions has been exacerbated by another, little-noticed change in the copyright law. Remember I said that the @@ -6767,6 +7197,9 @@ would pass more quickly into the public domain. The works remaining under protection would be those that had some continuing commercial value. +Sonny Bono Copyright Term Extension Act (CTEA) (1998) +copyrightof natural authors vs. corporations +corporationscopyright terms for The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term—the @@ -6786,6 +7219,8 @@ is orphaned by these changes in copyright law. Despite the requirement that terms be limited, we have no evidence that anything will limit them. + + The effect of these changes on the average duration of copyright is dramatic. In 1973, more than 85 percent of copyright owners failed to @@ -6801,16 +7236,24 @@ more than thirty-two years, and averaged thirty years. See Landes and Posner, Indefinitely Renewable Copyright, loc. cit. + + + + +
Law: Scope +copyrightscope of The scope of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. +copyright lawon republishing vs. transformation of original work +derivative workshistorical shift in copyright coverage of In 1790, that scope was very narrow. Copyright covered only maps, charts, and books. That means it didn't cover, for example, music or @@ -6839,6 +7282,9 @@ way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work. +copyrightmarking of +formalities +copyright lawregistration requirement of At the same time that the scope of copyright has expanded, procedural limitations on the right have been relaxed. I've already described the @@ -6853,6 +7299,7 @@ of the history of American copyright law, there was a requirement that works be deposited with the government before a copyright could be secured. + The reason for the registration requirement was the sensible understanding that for most works, no copyright was required. Again, @@ -6867,6 +7314,7 @@ that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author. +copyright lawEuropean All of these formalities were abolished in the American system when we decided to follow European copyright law. There is no requirement @@ -6875,10 +7323,14 @@ automatic; the copyright exists whether or not you mark your work with a ©; and the copyright exists whether or not you actually make a copy available for others to copy. + + + Consider a practical example to understand the scope of these differences. +Copyright Act (1790) If, in 1790, you wrote a book and you were one of the 5 percent who actually copyrighted that book, then the copyright law protected you @@ -6897,6 +7349,9 @@ The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in the United States—publishers. +copyright lawon republishing vs. transformation of original work +derivative workspiracy vs. +piracyderivative work vs. The act left other creators totally unregulated. If I copied your poem @@ -6907,6 +7362,7 @@ those activities were regulated by the original copyright act. These creative activities remained free, while the activities of publishers were restrained. + Today the story is very different: If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, @@ -6935,6 +7391,7 @@ copyright holder. The copyright, in other words, is now not just an right to your writings, but an exclusive right to your writings and a large proportion of the writings inspired by them. + It is this derivative right that would seem most bizarre to our framers, though it has become second nature to us. Initially, this @@ -6984,6 +7441,9 @@ 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 @@ -6998,9 +7458,13 @@ derivative right is unjustified. My aim just now is much narrower: simply to make clear that this expansion is a significant change from the rights originally granted. + +
Law and Architecture: Reach +copyright lawcopies as core issue of +copyright lawscope of Whereas originally the law regulated only publishers, the change in copyright's scope means that the law today regulates publishers, users, @@ -7017,6 +7481,8 @@ existing law (which regulates copies; 17 United States 102) is that if there is a copy, there is a right. +Valenti, Jackon creative property rights +creative propertyother property rights vs. Copies. That certainly sounds like the obvious thing for @@ -7031,6 +7497,7 @@ copies should not be the trigger for copyright law. More precisely, they should not always be the trigger for copyright law. + This is perhaps the central claim of this book, so let me take this very slowly so that the point is not easily missed. My claim is that the @@ -7047,14 +7514,22 @@ because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law. + + -We can see this point abstractly by beginning with this largely +We can see this point abstractly by beginning with this largely empty circle.
All potential uses of a book.
+booksthree types of uses of +copyright lawcopies as core issue of +Internetcopyright applicability altered by technology of +technologycopyright intent altered by +derivative workspiracy vs. +piracyderivative work vs. Think about a book in real space, and imagine this circle to represent @@ -7081,6 +7556,10 @@ at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation (see first diagram on next page). + + +fair use +copyright lawfair use and Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these fair uses. @@ -7090,6 +7569,8 @@ that remain unregulated because the law considers these fair uses.Republishing stands at the core of this circle of possible uses of a copyrighted work. +Constitution, U.S.First Amendment to +First Amendment These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain @@ -7109,12 +7590,17 @@ for public policy (and possibly First Amendment) reasons. Uses that before were presumptively unregulated are now presumptively regulated. +copyrightusage restrictions attached to In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed fair regardless of the copyright owner's views. + +bookson Internet +Internetbooks on +fair useInternet burdens on Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. @@ -7136,6 +7622,8 @@ would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift. + + So let's be very specific to make this general point clear. Before the Internet, if you purchased a book and read it ten times, there would @@ -7148,6 +7636,8 @@ night before you went to bed. None of those instances of use—reading— could be regulated by copyright law because none of those uses produced a copy. +e-books +derivative workstechnological developments and But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book @@ -7174,6 +7664,7 @@ evidence at all that policy makers had this idea in mind when they allowed our policy here to shift. Unregulated uses were an important part of free culture before the Internet. +copyright lawon republishing vs. transformation of original work Second, this shift is especially troubling in the context of transformative uses of creative content. Again, we can all understand @@ -7186,6 +7677,9 @@ troubling the expansion with respect to copying a particular work, it is extraordinarily troubling with respect to transformative uses of creative work. +fair useInternet burdens on +copyright lawfair use and +derivative worksfair use vs. Third, this shift from category 1 to category 2 puts an extraordinary @@ -7200,6 +7694,11 @@ copyright law and hence the need for a fair use defense. The right to read was effectively protected before because reading was not regulated. + + + + + This point about fair use is totally ignored, even by advocates for free culture. We have been cornered into arguing that our rights @@ -7210,9 +7709,16 @@ grounded in fair use makes sense when the vast majority of uses are presumptively regulated, then the protections of fair use are not enough. - - advertising - + + + + + + + +Video Pipeline +advertising +film industrytrailer advertisements of The case of Video Pipeline is a good example. Video Pipeline was in the business of making trailer advertisements for movies available @@ -7220,6 +7726,7 @@ to video stores. The video stores displayed the trailers as a way to sell videos. Video Pipeline got the trailers from the film distributors, put the trailers on tape, and sold the tapes to the retail stores. +browsing The company did this for about fifteen years. Then, in 1997, it began to think about the Internet as another way to distribute these @@ -7229,6 +7736,10 @@ technique by giving on-line stores the same ability to enable before you buy the book, so, too, you would be able to sample a bit from the movie on-line before you bought it. +Disney, Inc. +copyright lawfair use and +copyright lawcopies as core issue of +fair uselegal intimidation tactics against In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet @@ -7244,6 +7755,11 @@ distribution immediately. Video Pipeline thought it was within their lawsuit to ask the court to declare that these rights were in fact their rights. + + +copyrightusage restrictions attached to +copyright infringement lawsuitswillful infringement findings in +willful infringement Disney countersued—for $100 million in damages. Those damages were predicated upon a claim that Video Pipeline had willfully @@ -7263,7 +7779,7 @@ permitted to list the titles of the films they were selling, but they were not allowed to show clips of the films as a way of selling them without Disney's permission. - +first-sale doctrine Now, you might think this is a close case, and I think the courts would consider it a close case. My point here is to map the change @@ -7278,7 +7794,15 @@ copy, use on the Internet becomes subject to the copyright owner's control. The technology expands the scope of effective control, because the technology builds a copy into every transaction. + + + + + + Barnes & Noble +browsing +market competition No doubt, a potential is not yet an abuse, and so the potential for @@ -7312,6 +7836,8 @@ second important change brought about by the Internet magnifies its significance. This second change does not affect the reach of copyright regulation; it affects how such regulation is enforced. +copyright lawtechnology as automatic enforcer of +technologycopyright enforcement controlled by In the world before digital technology, it was generally the law that controlled whether and how someone was regulated by copyright law. @@ -7321,12 +7847,8 @@ tradition embraced, who said whether and how the law would restrict your freedom. Casablanca - - Marx Brothers - - - Warner Brothers - +Marx Brothers +Warner Brothers There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of @@ -7345,9 +7867,9 @@ 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 @@ -7360,6 +7882,7 @@ like the Marx Brothers, knew that no court would ever enforce such a silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. +bookson Internet On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a @@ -7370,12 +7893,10 @@ problem with code regulations is that, unlike law, code has no shame. Code would not get the humor of the Marx Brothers. The consequence of that is not at all funny. - - + + - - Adobe eBook Reader - +Adobe eBook Reader Consider the life of my Adobe eBook Reader. @@ -7424,11 +7945,11 @@ 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> @@ -7443,6 +7964,8 @@ the book. List of the permissions for Aristotle;s <quote>Politics</quote>.
+Future of Ideas, The (Lessig) +Lessig, Lawrence Finally (and most embarrassingly), here are the permissions for the original e-book version of my last book, The Future of @@ -7495,13 +8018,14 @@ 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 +Warner 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 @@ -7523,6 +8047,8 @@ 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) +public domaine-book restrictions on Early in the life of the Adobe eBook Reader, Adobe suffered a public relations nightmare. Among the books that you could download for free @@ -7530,14 +8056,13 @@ 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 Wonderland</quote>.
- + Here was a public domain children's book that you were not allowed to copy, not allowed to lend, not allowed to give, and, as the @@ -7564,6 +8089,8 @@ could use a computer to read the book aloud, would Adobe agree that such a use of an eBook Reader was fair? Adobe didn't answer because the answer, however absurd it might seem, is no. + + The point is not to blame Adobe. Indeed, Adobe is among the most innovative companies developing strategies to balance open access to @@ -7572,21 +8099,15 @@ technology enables control, and Adobe has an incentive to defend this control. That incentive is understandable, yet what it creates is often crazy. - + + To see the point in a particularly absurd context, consider a favorite story of mine that makes the same point. - - Aibo robotic dog - - - robotic dog - - - Sony - Aibo robotic dog produced by - +Aibo robotic dog +robotic dog +SonyAibo robotic dog produced by Consider the robotic dog made by Sony named Aibo. The Aibo learns tricks, cuddles, and follows you around. It eats only electricity @@ -7596,7 +8117,7 @@ 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 - + 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. @@ -7609,6 +8130,7 @@ how to teach the dog to do new tricks is just to say that aibopet.com was giving information to users of the Aibo pet about how to hack their computer dog to make it do new tricks (thus, aibohack.com). +hacks If you're not a programmer or don't know many programmers, the word hack has a particularly unfriendly @@ -7637,9 +8159,9 @@ dance jazz. The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that turned the dog into a more talented creature than Sony had built. - - - + + + I've told this story in many contexts, both inside and outside the United States. Once I was asked by a puzzled member of the audience, @@ -7656,6 +8178,7 @@ completely legal activity. One imagines that the owner of aibopet.com thought, What possible problem could there be with teaching a robot dog to dance? +Microsoftgovernment case against 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 @@ -7726,16 +8249,9 @@ academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed. - - Aibo robotic dog - - - robotic dog - - - Sony - Aibo robotic dog produced by - +Aibo robotic dog +robotic dog +SonyAibo robotic dog produced by What links these two, aibopet.com and Felten, is the letters they then received. Aibopet.com received a letter from Sony about the @@ -7749,9 +8265,9 @@ AIBO-ware's copy protection protocol constituting a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act. - - - + + + And though an academic paper describing the weakness in a system of encryption should also be perfectly legal, Felten received a letter @@ -7800,10 +8316,7 @@ have been a copyright violation. Aibo robotic dog robotic dog - - Sony - Aibo robotic dog produced by - +SonyAibo robotic dog produced by Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright protection system for the purpose of enabling the dog to @@ -7825,6 +8338,7 @@ Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright. Rogers, Fred +cassette recordingVCRs The bizarreness of these arguments is captured in a cartoon drawn in 1981 by Paul Conrad. At that time, a court in California had held that @@ -7853,6 +8367,7 @@ but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important. +cassette recordingVCRs Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the VCR. See James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of @@ -7883,6 +8398,7 @@ pirating of copyrighted material—a bad end. Or they can be used to enable the use of particular copyrighted materials in ways that would be considered fair use—a good end. +handguns A handgun can be used to shoot a police officer or a child. Most @@ -7891,10 +8407,11 @@ 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. -
+
VCR/handgun cartoon.
+Conrad, Paul The obvious point of Conrad's cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and @@ -7902,14 +8419,12 @@ circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do. -Conrad, Paul + + Aibo robotic dog robotic dog - - Sony - Aibo robotic dog produced by - +SonyAibo robotic dog produced by The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright @@ -7962,6 +8477,7 @@ never be interfered with by the copyright police. You were free in that space to do as you wished with this part of our culture. You were allowed to build on it as you wished without fear of legal control. +bots But if you moved your club onto the Internet, and made it generally available for others to join, the story would be very different. Bots @@ -8023,6 +8539,12 @@ of the media. 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 @@ -8044,11 +8566,6 @@ 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, @@ -8061,6 +8578,7 @@ markets, the two largest broadcasters control 74 percent of that market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues. +cable television Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than @@ -8103,7 +8621,7 @@ 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.
@@ -8195,12 +8713,12 @@ 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
@@ -8296,9 +8814,7 @@ is through votes that we are to choose policy. But to do that, we depend fundamentally upon the press to help inform Americans about these issues. - - advertising - +advertising Beginning in 1998, the Office of National Drug Control Policy launched a media campaign as part of the war on drugs. The campaign produced @@ -8464,13 +8980,14 @@ 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 -This has been a long chapter. Its point can now be briefly stated. +This has been a long chapter. Its +point can now be briefly stated. At the start of this book, I distinguished between commercial and @@ -8481,7 +8998,7 @@ that copyright law has undergone. In 1790, the law looked like this: - + @@ -8518,7 +9035,7 @@ By the end of the nineteenth century, the law had changed to this: - + @@ -8556,7 +9073,7 @@ we could say the law began to look like this: - + @@ -8588,7 +9105,7 @@ that the law now looks like this: - + @@ -8704,20 +9221,15 @@ lawyer. CHAPTER ELEVEN: Chimera - - chimeras - - - Wells, H. G. - - - Country of the Blind, The (Wells) - - - -In a well-known short story by H. G. Wells, a mountain climber -named Nunez trips (literally, down an ice slope) into an unknown and -isolated valley in the Peruvian Andes. +chimeras +Wells, H. G. +Country of the Blind, The (Wells) + + +In a well-known short story by +H. G. Wells, a mountain climber named Nunez trips (literally, down an +ice slope) into an unknown and isolated valley in the Peruvian +Andes. H. G. Wells, The Country of the Blind (1904, 1911). See H. G. Wells, The Country of the Blind and Other Stories, Michael Sherborne, ed. (New @@ -8779,18 +9291,21 @@ irritant bodies [the eyes]. Nunez of this condition necessary for him to be allowed his bride. (You'll have to read the original to learn what happens in the end. I believe in free culture, but never in giving away the end of a story.) -It sometimes happens that the eggs of twins fuse in the mother's -womb. That fusion produces a chimera. A chimera is a single creature -with two sets of DNA. The DNA in the blood, for example, might be -different from the DNA of the skin. This possibility is an underused + + +It sometimes happens that the eggs +of twins fuse in the mother's womb. That fusion produces a +chimera. A chimera is a single creature with two sets +of DNA. The DNA in the blood, for example, might be different from the +DNA of the skin. This possibility is an underused plot for murder mysteries. But the DNA shows with 100 percent certainty that she was not the person whose blood was at the scene. … - - + + Before I had read about chimeras, I would have said they were impossible. A single person can't have two sets of DNA. The very idea @@ -8860,6 +9375,7 @@ that no computer is used to commit this crime. These responses might be extreme, but each of them has either been proposed or actually implemented. +ISPs (Internet service providers), user identities revealed by For an excellent summary, see the report prepared by GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School, Copyright and Digital Media in a Post-Napster World, 27 June 2003, @@ -8895,7 +9411,7 @@ Name Students, Boston Globe, 8 August 2003, D3, a - + Alternatively, we could respond to file sharing the way many kids act as though we've responded. We could totally legalize it. Let there be @@ -8985,11 +9501,12 @@ and will kill opportunities that could be extraordinarily valuable. CHAPTER TWELVE: Harms -To fight piracy, to protect property, the content industry has -launched a war. Lobbying and lots of campaign contributions have now -brought the government into this war. As with any war, this one will -have both direct and collateral damage. As with any war of -prohibition, these damages will be suffered most by our own people. +To fight piracy, to +protect property, the content industry has launched a +war. Lobbying and lots of campaign contributions have now brought the +government into this war. As with any war, this one will have both +direct and collateral damage. As with any war of prohibition, these +damages will be suffered most by our own people. My aim so far has been to describe the consequences of this war, in @@ -9069,6 +9586,11 @@ 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 +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsin recording industry +doctors malpractice claims against +Jordan, Jesse That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to @@ -9108,7 +9630,6 @@ 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 @@ -9140,6 +9661,7 @@ See Danit Lidor, Artists Just Wanna Be Free, Wired +ISPs (Internet service providers), user identities revealed by Part of the reason for this fear of illegality has to do with the changing law. I described that change in detail in chapter @@ -9152,6 +9674,7 @@ content. It is as if your cassette tape player transmitted a list of the songs that you played in the privacy of your own home that anyone could tune into for whatever reason they chose. +images, ownership of Never in our history has a painter had to worry about whether his painting infringed on someone else's work; but the modern-day @@ -9225,6 +9748,9 @@ permission. That's the point at which they control it.
Constraining Innovators +copyright lawinnovation hampered by +innovationindustry establishment opposed to +regulationas establishment protectionism The story of the last section was a crunchy-lefty story—creativity quashed, artists who can't speak, yada yada @@ -9233,16 +9759,18 @@ weird art out there, and enough expression that is critical of what seems to be just about everything. And if you think that, you might think there's little in this story to worry you. +market constraints But there's an aspect of this story that is not lefty in any sense. Indeed, it is an aspect that could be written by the most extreme promarket ideologue. And if you're one of these sorts (and a special -one at that, 188 pages into a book like this), then you can see this -other aspect by substituting free market every place I've spoken of -free culture. The point is the same, even if the interests -affecting culture are more fundamental. +one at that, pages into a book like this), then you +can see this other aspect by substituting free market +every place I've spoken of free culture. The point is +the same, even if the interests affecting culture are more +fundamental. -market constraints The charge I've been making about the regulation of culture is the same charge free marketers make about regulating markets. Everyone, of @@ -9256,7 +9784,9 @@ 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 +venture capitalists This is the single most dramatic effect of the shift in regulatory @@ -9270,11 +9800,15 @@ that were designed and executed to teach venture capitalists a lesson. That lesson—what former Napster CEO Hank Barry calls a nuclear pall that has fallen over the Valley—has been learned. +Future of Ideas, The (Lessig) +Lessig, Lawrence Consider one example to make the point, a story whose beginning I told in The Future of Ideas and which has progressed in a way that even I (pessimist extraordinaire) would never have predicted. +MP3.com +my.mp3.com Roberts, Michael In 1997, Michael Roberts launched a company called MP3.com. MP3.com @@ -9284,13 +9818,14 @@ facilitate new ways to create content. Unlike the major labels, MP3.com offered creators a venue to distribute their creativity, without demanding an exclusive engagement from the creators. +Lovett, Lyle +CDspreference data on To make this system work, however, MP3.com needed a reliable way to recommend music to its users. The idea behind this alternative was to leverage the revealed preferences of music listeners to recommend new artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And so on. -Lovett, Lyle This idea required a simple way to gather data about user preferences. @@ -9313,6 +9848,7 @@ my.mp3.com service was to give users access to their own content, and as a by-product, by seeing the content they already owned, to discover the kind of content the users liked. + To make this system function, however, MP3.com needed to copy 50,000 CDs to a server. (In principle, it could have been the user who @@ -9325,9 +9861,13 @@ had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought. - - Vivendi Universal - +Vivendi Universal +copyright infringement lawsuitsdistribution technology targeted in +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsin recording industry +recording industrycopyright infringement lawsuits of +Recording Industry Association of America (RIAA)copyright infringement lawsuits filed by +regulationoutsize penalties of Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled @@ -9351,6 +9891,7 @@ illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded. + The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in @@ -9362,15 +9903,27 @@ 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. - + + + +Barry, Hank +copyright infringement lawsuitsdistribution technology targeted in +BMW +cars, MP3 sound systems in +EMI Hummer, John Barry, Hank Hummer Winblad +MP3 players +Napsterventure capital for +Needleman, Rafe +Universal Music Group +venture capitalists This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of -its development, its cofounder ( John Hummer), and general partner +its development, its cofounder (John Hummer), and general partner (Hank Barry). See Joseph Menn, Universal, EMI Sue Napster Investor, Los Angeles @@ -9393,11 +9946,8 @@ 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 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 @@ -9416,6 +9966,9 @@ 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 @@ -9470,10 +10023,14 @@ do everything it can to limit the reach of the law where the law is not doing any good. The transaction costs buried within a permission culture are enough to bury a wide range of creativity. Someone needs to do a lot of justifying to justify that -result. The uncertainty of the law is one burden on innovation. There -is a second burden that operates more directly. This is the effort by -many in the content industry to use the law to directly regulate the -technology of the Internet so that it better protects their content. +result. + + +The uncertainty of the law is one +burden on innovation. There is a second burden that operates more +directly. This is the effort by many in the content industry to use +the law to directly regulate the technology of the Internet so that it +better protects their content. The motivation for this response is obvious. The Internet enables the @@ -9517,6 +10074,7 @@ 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 @@ -9528,12 +10086,11 @@ 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 which this war has harmed -innovation—again, a story that will be quite familiar to the -free market crowd. +There is one more obvious way in +which this war has harmed innovation—again, a story that will be +quite familiar to the free market crowd. Copyright may be property, but like all property, it is also a form @@ -9541,6 +10098,10 @@ of regulation. It is a regulation that benefits some and harms others. When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. +cassette recordingVCRs +VCRs +statutory licenses +copyright lawstatutory licenses in As I described in chapter , despite this feature of copyright as @@ -9550,6 +10111,7 @@ Copyright, Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001). +Digital Copyright (Litman) Litman, Jessica overall this history of copyright is not bad. As chapter 10 details, @@ -9565,9 +10127,12 @@ the claims of a new technology and the legitimate rights of content creators, both the courts and Congress have imposed legal restrictions that will have the effect of smothering the new to benefit the old. +Internetradio on +radioon Internet The response by the courts has been fairly universal. +Grokster, Ltd. The only circuit court exception is found in Recording Industry Association of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit @@ -9608,10 +10173,8 @@ available at But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. - - artists - recording industry payments to - +artistsrecording industry payments to +Kennedy, John F. @@ -9624,7 +10187,6 @@ 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 @@ -9709,10 +10271,15 @@ those imposed by the law. Copyright law is one such law. So the first question we should ask is, what copyright rules would govern Internet radio? - - artists - recording industry payments to - +artistsrecording industry payments to +Congress, U.S.on copyright laws +Congress, U.S.on radio +Congress, U.S.on recording industry +recording industryartist remuneration in +recording industryradio broadcast and +recording industryInternet radio hampered by +Recording Industry Association of America (RIAA)on Internet radio fees +Recording Industry Association of America (RIAA)lobbying power of But here the power of the lobbyists is reversed. Internet radio is a new industry. The recording artists, on the other hand, have a very @@ -9759,7 +10326,11 @@ interests, that could have been done in a media-neutral way. A regular radio station broadcasting the same content would pay no equivalent fee. - + + + + + The burden is not financial only. Under the original rules that were proposed, an Internet radio station (but not a terrestrial radio @@ -9844,7 +10415,7 @@ unique user identifier; the country in which the user received the transmissions. - +Library of Congress The Librarian of Congress eventually suspended these reporting requirements, pending further study. And he also changed the original @@ -9859,9 +10430,10 @@ economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? Real Networks - - Alben, Alex - +Alben, Alex +Recording Industry Association of America (RIAA)on Internet radio fees +artistsrecording industry payments to +recording industryartist remuneration in 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 @@ -9883,10 +10455,7 @@ that should establish the market rate, and if you set the rate so high, you're going to drive the small webcasters out of business. … - - artists - recording industry payments to - +artistsrecording industry payments to And the RIAA experts said, Well, we don't really model this as an industry with thousands of webcasters, we think it should be @@ -9896,6 +10465,9 @@ added.) + + + Translation: The aim is to use the law to eliminate competition, so that this platform of potentially immense competition, which would @@ -9905,6 +10477,12 @@ or the left, who should endorse this use of the law. And yet there is practically no one, on either the right or the left, who is doing anything effective to prevent it. + + + + + +
Corrupting Citizens @@ -9969,6 +10547,7 @@ 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 @@ -10005,8 +10584,8 @@ 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 @@ -10023,7 +10602,6 @@ 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 @@ -10094,7 +10672,8 @@ Apple Corporation went so far as to suggest that freedom was a right: In a series of commercials, Apple endorsed the Rip, Mix, Burn capacities of digital technologies. -Adromeda +Andromeda +CDsmix technology and This use of my records is certainly valuable. I have begun a large process at home of ripping all of my and my wife's CDs, and storing @@ -10130,6 +10709,7 @@ the world where we either listened to music by manipulating pieces of plastic or were part of a massively complex digital rights management system. + If the only way to assure that artists get paid were the elimination of the ability to freely move content, then these technologies to @@ -10173,19 +10753,22 @@ 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. + Electronic Frontier Foundation +ISPs (Internet service providers), user identities revealed by + +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. +von Lohmann, Fred If you can treat someone as a putative lawbreaker, von Lohmann explains, -von Lohmann, Fred
@@ -10281,6 +10864,8 @@ Are Weapons at Universities, USA Today, 26 Septem 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 @@ -10294,7 +10879,6 @@ 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
@@ -10336,10 +10920,11 @@ effort through our democracy to change our law? -So here's the picture: You're standing at the side of the road. Your -car is on fire. You are angry and upset because in part you helped start -the fire. Now you don't know how to put it out. Next to you is a bucket, -filled with gasoline. Obviously, gasoline won't put the fire out. +So here's the picture: You're +standing at the side of the road. Your car is on fire. You are angry +and upset because in part you helped start the fire. Now you don't +know how to put it out. Next to you is a bucket, filled with +gasoline. Obviously, gasoline won't put the fire out. As you ponder the mess, someone else comes along. In a panic, she @@ -10350,12 +10935,13 @@ 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. @@ -10389,18 +10975,19 @@ success will require. CHAPTER THIRTEEN: Eldred - - Hawthorne, Nathaniel - +Eldred, Eric +Hawthorne, Nathaniel -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. +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. +librariesof public-domain literature +public domainlibrary of works derived from It didn't work—at least for his daughters. They didn't find Hawthorne any more interesting than before. But Eldred's experiment @@ -10408,6 +10995,8 @@ 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 @@ -10419,6 +11008,7 @@ accessible to the twentieth century, Eldred transformed Hawthorne, and many others, into a form more accessible—technically accessible—today. +Scarlet Letter, The (Hawthorne) 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 @@ -10431,7 +11021,8 @@ 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 @@ -10444,6 +11035,7 @@ social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally. +pornography 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 @@ -10460,6 +11052,13 @@ 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. +Congress, U.S.copyright terms extended by +copyrightduration of +copyright lawterm extensions in +Frost, Robert +New Hampshire (Frost) +patentsin public domain +patentsfuture patents vs. future copyrights in As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of poems New Hampshire was slated to @@ -10474,8 +11073,12 @@ would pass into the public domain until that year (and not even then, if Congress extends the term again). By contrast, in the same period, more than 1 million patents will pass into the public domain. + + Bono, Mary Bono, Sonny +copyrightin perpetuity +Sonny Bono Copyright Term Extension Act (CTEA) (1998) @@ -10494,8 +11097,12 @@ you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress, 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). - + +copyright lawfelony punishment for infringement of +NET (No Electronic Theft) Act (1998) +No Electronic Theft (NET) Act (1998) +peer-to-peer (p2p) file sharingfelony punishments for Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he @@ -10505,6 +11112,11 @@ of publishing would make Eldred a felon—whether or not anyone complained. This was a dangerous strategy for a disabled programmer to undertake. + +Congress, U.S.constitutional powers of +Constitution, U.S.Progress Clause of +Progress Clause +Lessig, LawrenceEldred case involvement of It was here that I became involved in Eldred's battle. I was a constitutional @@ -10522,6 +11134,7 @@ by securing for limited Times to Authors … exclusive Right to their … Writings. …
+ As I've described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause @@ -10532,6 +11145,10 @@ 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 @@ -10542,8 +11159,10 @@ 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 + + +Lessig, LawrenceEldred case involvement of As an academic, my first response was to hit the books. I remember sitting late at the office, scouring on-line databases for any serious @@ -10678,18 +11297,20 @@ Alan K. Ota, Disney in Washington: The Mouse That Roars, -Constitutional law is not oblivious to the obvious. Or at least, -it need not be. So when I was considering Eldred's complaint, this - reality -about the never-ending incentives to increase the copyright term -was central to my thinking. In my view, a pragmatic court committed -to interpreting and applying the Constitution of our framers would see -that if Congress has the power to extend existing terms, then there -would be no effective constitutional requirement that terms be - limited. -If they could extend it once, they would extend it again and again -and again. +Constitutional law is not oblivious +to the obvious. Or at least, it need not be. So when I was considering +Eldred's complaint, this reality about the never-ending incentives to +increase the copyright term was central to my thinking. In my view, a +pragmatic court committed to interpreting and applying the +Constitution of our framers would see that if Congress has the power +to extend existing terms, then there would be no effective +constitutional requirement that terms be limited. If +they could extend it once, they would extend it again and again and +again. + + + It was also my judgment that this Supreme Court would not allow Congress to extend existing terms. As anyone close to @@ -10784,9 +11405,14 @@ 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 Eldred was not about. By insisting on the +Now let's pause for a moment to +make sure we understand what the argument in +Eldred was not about. By insisting on the Constitution's limits to copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious sense, he was fighting a kind of piracy—piracy of the public domain. When Robert Frost wrote his @@ -10801,6 +11427,7 @@ 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 @@ -10816,7 +11443,6 @@ 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 @@ -10831,18 +11457,15 @@ not expired, and will not expire, so long as Congress is free to be bought to extend them again. -It is valuable copyrights that are responsible for terms being - extended. -Mickey Mouse and Rhapsody in Blue. These works are too -valuable for copyright owners to ignore. But the real harm to our - society -from copyright extensions is not that Mickey Mouse remains - Disney's. -Forget Mickey Mouse. Forget Robert Frost. Forget all the works -from the 1920s and 1930s that have continuing commercial value. The -real harm of term extension comes not from these famous works. The -real harm is to the works that are not famous, not commercially - exploited, +It is valuable copyrights that are +responsible for terms being extended. Mickey Mouse and +Rhapsody in Blue. These works are too valuable for +copyright owners to ignore. But the real harm to our society from +copyright extensions is not that Mickey Mouse remains Disney's. +Forget Mickey Mouse. Forget Robert Frost. Forget all the works from +the 1920s and 1930s that have continuing commercial value. The real +harm of term extension comes not from these famous works. The real +harm is to the works that are not famous, not commercially exploited, and no longer available as a result. @@ -10948,11 +11571,10 @@ digitized, and hence will simply rot away on shelves. But the consequence for other creative works is much more dire. - - Agee, Michael - +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 @@ -10970,8 +11592,6 @@ 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 @@ -10996,7 +11616,7 @@ For most of the history of film, the costs of restoring film were very high; digital technology has lowered these costs substantially. While it cost more than $10,000 to restore a ninety-minute black-and-white film in 1993, it can now cost as little as $100 to digitize one hour of -mm film. +8 mm film. Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, Eldred v. Ashcroft, 537 @@ -11054,13 +11674,12 @@ in which they are now stored will be filled with nothing more than dust. -Of all the creative work produced by humans anywhere, a tiny -fraction has continuing commercial value. For that tiny fraction, the -copyright is a crucially important legal device. For that tiny fraction, -the copyright creates incentives to produce and distribute the - creative -work. For that tiny fraction, the copyright acts as an engine of -free expression. +Of all the creative work produced +by humans anywhere, a tiny fraction has continuing commercial +value. For that tiny fraction, the copyright is a crucially important +legal device. For that tiny fraction, the copyright creates incentives +to produce and distribute the creative work. For that tiny fraction, +the copyright acts as an engine of free expression. But even for that tiny fraction, the actual time during which the @@ -11121,9 +11740,7 @@ would not have interfered with anything. But this situation has now changed. - - archives, digital - +archives, digital One crucially important consequence of the emergence of digital technologies is to enable the archive that Brewster Kahle dreams of. @@ -11185,7 +11802,7 @@ 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 -and 1946 is not commercially available. However much you love the +1923 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. @@ -11196,12 +11813,13 @@ December 2002, available at -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. +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. The district court dismissed our claims without even hearing an @@ -11251,14 +11869,15 @@ 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 @@ -11268,11 +11887,11 @@ 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 @@ -11339,6 +11958,8 @@ 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 @@ -11352,8 +11973,6 @@ 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 @@ -11363,6 +11982,10 @@ 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 @@ -11375,18 +11998,14 @@ 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 @@ -11412,6 +12031,10 @@ 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 @@ -11425,11 +12048,10 @@ 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 +Congress, U.S.constitutional powers of +Constitution, U.S.Commerce Clause of 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 @@ -11441,7 +12063,6 @@ 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 @@ -11459,6 +12080,9 @@ 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 +Porgy and Bess +pornography Dr. Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to @@ -11482,7 +12106,6 @@ 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 @@ -11502,8 +12125,11 @@ mean that there was no limit to the power of Congress to extend copyrights—extensions that would further concentrate the market; it would also mean that there was no limit to Congress's power to play favorites, through copyright, with who has the right to speak. -Between February and October, there was little I did beyond preparing -for this case. Early on, as I said, I set the strategy. + + +Between February and October, there +was little I did beyond preparing for this case. Early on, as I said, +I set the strategy. Rehnquist, William H. O'Connor, Sandra Day @@ -11518,6 +12144,7 @@ of cases that said that an enumerated power had to be interpreted to assure that Congress's powers had limits. Breyer, Stephen +Ginsburg, Ruth Bader The Rest were the four Justices who had strongly opposed limits on Congress's power. These four—Justice Stevens, Justice Souter, @@ -11550,6 +12177,7 @@ 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 Stevens. History will record Justice Stevens as one of the greatest @@ -11583,11 +12211,12 @@ was limited, then so, too, must Congress's power to regulate copyright be limited. -The argument on the government's side came down to this: Congress has -done it before. It should be allowed to do it again. The government -claimed that from the very beginning, Congress has been extending the -term of existing copyrights. So, the government argued, the Court -should not now say that practice is unconstitutional. +The argument on the government's +side came down to this: Congress has done it before. It should be +allowed to do it again. The government claimed that from the very +beginning, Congress has been extending the term of existing +copyrights. So, the government argued, the Court should not now say +that practice is unconstitutional. There was some truth to the government's claim, but not much. We @@ -11610,10 +12239,12 @@ was no reason to expect that cycle would end. This Court had not hesitated to intervene where Congress was in a similar cycle of extension. There was no reason it couldn't intervene here. -Oral argument was scheduled for the first week in October. I - arrived -in D.C. two weeks before the argument. During those two -weeks, I was repeatedly mooted by lawyers who had volunteered to + + +Oral argument was scheduled for the +first week in October. I arrived in D.C. two weeks before the +argument. During those two weeks, I was repeatedly +mooted by lawyers who had volunteered to help in the case. Such moots are basically practice rounds, where @@ -11631,12 +12262,12 @@ 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 @@ -11655,9 +12286,12 @@ does the right thing—not because of politics but because it is right. As I listened to Ayer's plea for passion in pressing politics, I understood his point, and I rejected it. Our argument was right. That was enough. Let the politicians learn to see that it was also good. -The night before the argument, a line of people began to form -in front of the Supreme Court. The case had become a focus of the -press and of the movement to free culture. Hundreds stood in line + + +The night before the argument, a +line of people began to form in front of the Supreme Court. The case +had become a focus of the press and of the movement to free +culture. Hundreds stood in line for the chance to see the proceedings. Scores spent the night on the @@ -11801,8 +12435,9 @@ Copyright and Patent Clause. All true. But it wasn't going to move the Court to my side. -As I left the court that day, I knew there were a hundred points I -wished I could remake. There were a hundred questions I wished I had +As I left the court that day, I +knew there were a hundred points I wished I could remake. There were a +hundred questions I wished I had answered differently. But one way of thinking about this case left me @@ -11824,11 +12459,12 @@ the Conservatives—would feel itself constrained by the rule of law that it had established elsewhere. -The morning of January 15, 2003, I was five minutes late to the office -and missed the 7:00 A.M. call from the Supreme Court clerk. Listening to -the message, I could tell in an instant that she had bad news to report.The -Supreme Court had affirmed the decision of the Court of Appeals. Seven -justices had voted in the majority. There were two dissents. +The morning of January 15, 2003, I +was five minutes late to the office and missed the 7:00 A.M. call from +the Supreme Court clerk. Listening to the message, I could tell in an +instant that she had bad news to report.The Supreme Court had affirmed +the decision of the Court of Appeals. Seven justices had voted in the +majority. There were two dissents. A few seconds later, the opinions arrived by e-mail. I took the @@ -11848,6 +12484,7 @@ distinguish the principle in this case from the principle in cited. The argument that was the core argument of our case did not even appear in the Court's opinion. +Ginsburg, Ruth Bader @@ -11916,9 +12553,10 @@ anyone having addressed the argument that we had carried from Judge Sentelle. It was Hamlet without the Prince. -Defeat brings depression. They say it is a sign of health when -depression gives way to anger. My anger came quickly, but it didn't cure -the depression. This anger was of two sorts. +Defeat brings depression. They say +it is a sign of health when depression gives way to anger. My anger +came quickly, but it didn't cure the depression. This anger was of two +sorts. originalism @@ -11987,11 +12625,11 @@ 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 @@ -12006,13 +12644,13 @@ 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 @@ -12022,10 +12660,13 @@ here again Peter was right. Either I was not ready to argue this case in a way that would do some good or they were not ready to hear this case in a way that would do some good. Either way, the decision to bring this case—a decision I had made four years before—was wrong. -While the reaction to the Sonny Bono Act itself was almost -unanimously negative, the reaction to the Court's decision was mixed. -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 + + +While the reaction to the Sonny +Bono Act itself was almost unanimously negative, the reaction to the +Court's decision was mixed. 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 @@ -12071,13 +12712,15 @@ better lawyer would have made them see differently. CHAPTER FOURTEEN: Eldred II -The day Eldred was decided, fate would have it that I was to travel to -Washington, D.C. (The day the rehearing petition in Eldred was -denied—meaning the case was really finally over—fate would -have it that I was giving a speech to technologists at Disney World.) -This was a particularly long flight to my least favorite city. The -drive into the city from Dulles was delayed because of traffic, so I -opened up my computer and wrote an op-ed piece. +The day +Eldred was decided, fate would have it that I +was to travel to Washington, D.C. (The day the rehearing petition in +Eldred was denied—meaning the case was +really finally over—fate would have it that I was giving a +speech to technologists at Disney World.) This was a particularly +long flight to my least favorite city. The drive into the city from +Dulles was delayed because of traffic, so I opened up my computer and +wrote an op-ed piece. Ayer, Don @@ -12145,6 +12788,7 @@ linkend="property-i"/>, formalities in copyright law were removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. +German copyright law 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 @@ -12314,11 +12958,13 @@ 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 -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. +When Steve Forbes endorsed the +idea, some in Washington began to pay attention. Many people contacted +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 @@ -12327,7 +12973,6 @@ 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 @@ -12367,14 +13012,14 @@ or not—a controversial claim in any case—unless they know about a copyright, they're not likely to. -At the beginning of this book, I told two stories about the law -reacting to changes in technology. In the one, common sense prevailed. -In the other, common sense was delayed. The difference between the two -stories was the power of the opposition—the power of the side -that fought to defend the status quo. In both cases, a new technology -threatened old interests. But in only one case did those interest's -have the power to protect themselves against this new competitive -threat. +At the beginning of this book, I +told two stories about the law reacting to changes in technology. In +the one, common sense prevailed. In the other, common sense was +delayed. The difference between the two stories was the power of the +opposition—the power of the side that fought to defend the +status quo. In both cases, a new technology threatened old +interests. But in only one case did those interest's have the power to +protect themselves against this new competitive threat. I used these two cases as a way to frame the war that this book has @@ -12396,6 +13041,7 @@ possible still to understand why the law favors Hollywood: Most people don't recognize the reasons for limiting copyright terms; it is thus still possible to see good faith within the resistance. +Kelly, Kevin But when the copyright owners oppose a proposal such as the Eldred Act, then, finally, there is an example that lays bare the naked @@ -12405,7 +13051,6 @@ any copyright owner's desire to exercise continued control over his content. It would simply liberate what Kevin Kelly calls the Dark Content that fills archives around the world. So when the warriors oppose a change like this, we should ask one simple question: -Kelly, Kevin What does this industry really want? @@ -12462,21 +13107,18 @@ controlled by this dead (and often unfindable) hand of the past. CONCLUSION - - antiretroviral drugs - - - HIV/AIDS therapies - - - Africa, medications for HIV patients in - - -There are more than 35 million people with the AIDS virus -worldwide. Twenty-five million of them live in sub-Saharan Africa. -Seventeen million have already died. Seventeen million Africans -is proportional percentage-wise to seven million Americans. More -importantly, it is seventeen million Africans. +Africa, medications for HIV patients in +AIDS medications +antiretroviral drugs +developing countries, foreign patent costs in +drugspharmaceutical +HIV/AIDS therapies + +There are more than 35 million +people with the AIDS virus worldwide. Twenty-five million of them live +in sub-Saharan Africa. Seventeen million have already died. Seventeen +million Africans is proportional percentage-wise to seven million +Americans. More importantly, it is seventeen million Africans. There is no cure for AIDS, but there are drugs to slow its @@ -12503,6 +13145,8 @@ issued 9 July 2002, only 230,000 of the 6 million who need drugs in the developing world receive them—and half of them are in Brazil. +patentson pharmaceuticals +pharmaceutical patents These prices are not high because the ingredients of the drugs are @@ -12530,6 +13174,9 @@ African leaders began to recognize the devastation that AIDS was bringing, they started looking for ways to import HIV treatments at costs significantly below the market price. +international law +parallel importation +South Africa, Republic of, pharmaceutical imports by In 1997, South Africa tried one tack. It passed a law to allow the importation of patented medicines that had been produced or sold in @@ -12546,6 +13193,7 @@ Owns the Knowledge Economy? (New York: The New Press, 2003), 37. Drahos, Peter +United States Trade Representative (USTR) However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association @@ -12585,6 +13233,7 @@ Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization (Washington, D.C., 2000), 15. + We should place the intervention by the United States in context. No doubt patents are not the most important reason that Africans don't @@ -12639,6 +13288,7 @@ drugs should not flow into Africa. It was a principle about the importance of intellectual property that led these government actors to intervene against the South African response to AIDS. + Now just step back for a moment. There will be a time thirty years from now when our children look back at us and ask, how could we have @@ -12649,6 +13299,7 @@ idea? What possible justification could there ever be for a policy that results in so many deaths? What exactly is the insanity that would allow so many to die for such an abstraction? +corporationsin pharmaceutical industry Some blame the drug companies. I don't. They are corporations. Their managers are ordered by law to make money for the corporation. @@ -12665,6 +13316,7 @@ elsewhere. There are issues they'd have to resolve to make sure the drugs didn't get back into the United States, but those are mere problems of technology. They could be overcome. +intellectual property rightsof drug patents A different problem, however, could not be overcome. This is the fear of the grandstanding politician who would call the presidents of @@ -12680,6 +13332,13 @@ unintended consequence that perhaps millions die. And that rational strategy thus becomes framed in terms of this ideal—the sanctity of an idea called intellectual property. + + + + + + + So when the common sense of your child confronts you, what will you say? When the common sense of a generation finally revolts @@ -12698,6 +13357,9 @@ in any case. A sensible policy, in other words, could be a balanced policy. For most of our history, both copyright and patent policies were balanced in just this sense. + + + But we as a culture have lost this sense of balance. We have lost the critical eye that helps us see the difference between truth and @@ -12706,17 +13368,15 @@ our tradition, now reigns in this culture—bizarrely, and with consequences more grave to the spread of ideas and culture than almost any other single policy decision that we as a democracy will make. - - - - -A simple idea blinds us, and under the cover of darkness, much happens -that most of us would reject if any of us looked. So uncritically do -we accept the idea of property in ideas that we don't even notice how -monstrous it is to deny ideas to a people who are dying without -them. So uncritically do we accept the idea of property in culture -that we don't even question when the control of that property removes -our + + +A simple idea blinds us, and under +the cover of darkness, much happens that most of us would reject if +any of us looked. So uncritically do we accept the idea of property in +ideas that we don't even notice how monstrous it is to deny ideas to a +people who are dying without them. So uncritically do we accept the +idea of property in culture that we don't even question when the +control of that property removes our ability, as a people, to develop our culture democratically. Blindness becomes our common sense. And the challenge for anyone who would @@ -12737,15 +13397,25 @@ 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. -Reagan, Ronald - - biomedical research - +academic journals +biomedical research +intellectual property rightsinternational organization on issues of +Internetdevelopment of +IBM +PLoS (Public Library of Science) +Public Library of Science (PLoS) +public domainpublic projects in +single nucleotied polymorphisms (SNPs) Wellcome Trust +World Intellectual Property Organization (WIPO) +World Wide Web +Global Positioning System +Reagan, Ronald +biomedical research -In August 2003, a fight broke out in the United States about a -decision by the World Intellectual Property Organization to cancel a -meeting. +In August 2003, a fight broke out +in the United States about a decision by the World Intellectual +Property Organization to cancel a meeting. Jonathan Krim, The Quiet War over Open-Source, Washington Post, August 2003, E1, available at link #59; William New, Global Group's @@ -12764,19 +13434,18 @@ intellectual property. Examples include the Internet and the World Wide Web, both of which were developed on the basis of protocols in the public domain. It included an emerging trend to support open academic journals, including the Public Library of Science project -that I describe in the Afterword. It included a project to develop -single nucleotide polymorphisms (SNPs), which are thought to have -great significance in biomedical research. (That nonprofit project -comprised a consortium of the Wellcome Trust and pharmaceutical and -technological companies, including Amersham Biosciences, AstraZeneca, +that I describe in chapter +. It +included a project to develop single nucleotide polymorphisms (SNPs), +which are thought to have great significance in biomedical +research. (That nonprofit project comprised a consortium of the +Wellcome Trust and pharmaceutical and technological companies, +including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free in the early 1980s. And it included open source and free software. -academic journals -IBM -PLoS (Public Library of Science) @@ -12786,6 +13455,7 @@ intellectual property extremism. Instead, in all of them, intellectual property was balanced by agreements to keep access open or to impose limitations on the way in which proprietary claims might be used. +Lessig, Lawrencein international debate on intellectual property From the perspective of this book, then, the conference was ideal. I should disclose that I was one of the people who asked WIPO for the @@ -12797,6 +13467,7 @@ perspectives. And WIPO was an ideal venue for this discussion, since WIPO is the preeminent international body dealing with intellectual property issues. +World Summit on the Information Society (WSIS) Indeed, I was once publicly scolded for not recognizing this fact about WIPO. In February 2003, I delivered a keynote address to a @@ -12827,6 +13498,12 @@ had thought it was taken for granted that WIPO could and should. And thus the meeting about open and collaborative projects to create public goods seemed perfectly appropriate within the WIPO agenda. + + + +free software/open-source software (FS/OSS) +Apple Corporation +Microsofton free software But there is one project within that list that is highly controversial, at least among lobbyists. That project is open source @@ -12838,6 +13515,10 @@ 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 @@ -12866,11 +13547,10 @@ 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 @@ -12889,6 +13569,10 @@ 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. +intellectual property rightsinternational organization on issues of +World Intellectual Property Organization (WIPO) +Krim, Jonathan +MicrosoftWIPO meeting opposed by It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and @@ -12902,7 +13586,6 @@ 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 @@ -12912,6 +13595,8 @@ its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts. + +Boland, Lois What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting @@ -12922,9 +13607,11 @@ She is quoted as saying, To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO. + These statements are astonishing on a number of levels. + First, they are just flat wrong. As I described, most open source and @@ -12936,6 +13623,10 @@ in understanding—the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues. +World Summit on the Information Society (WSIS) +drugspharmaceutical +generic drugs +patentson pharmaceuticals Second, who ever said that WIPO's exclusive aim was to promote intellectual property maximally? As I had been scolded at the @@ -12949,6 +13640,7 @@ based on drugs whose patent has expired) contrary to the WIPO mission? Does the public domain weaken intellectual property? Would it have been better if the protocols of the Internet had been patented? +Gates, Bill Third, even if one believed that the purpose of WIPO was to maximize intellectual property rights, in our tradition, intellectual property @@ -12961,8 +13653,8 @@ good in the world, that is not inconsistent with the objectives of the property system. That is, on the contrary, just what a property system is supposed to be about: giving individuals the right to decide what to do with their property. -Gates, Bill +Boland, Lois When Ms. Boland says that there is something wrong with a meeting which has as its purpose to disclaim or waive such rights, she's @@ -12975,6 +13667,8 @@ WIPO is not just that intellectual property rights be maximized, but that they also should be exercised in the most extreme and restrictive way possible. +feudal system +property rightsfeudal system of There is a history of just such a property system that is well known in the Anglo-American tradition. It is called feudalism. Under @@ -13001,6 +13695,8 @@ choice now is whether that information society will be free or feudal. The trend is toward the feudal. + + When this battle broke, I blogged it. A spirited debate within the comment section ensued. Ms. Boland had a number of supporters who @@ -13008,6 +13704,8 @@ tried to show why her comments made sense. But there was one comment that was particularly depressing for me. An anonymous poster wrote,
+ + George, you misunderstand Lessig: He's only talking about the world as it should be (the goal of WIPO, and the goal of any government, @@ -13030,6 +13728,7 @@ mistake. I have no illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about whether our government should speak the truth or not.) + Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the @@ -13063,20 +13762,22 @@ 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. + +If this is crazy, then let there be more crazies. Soon. + CodePink Women in Peace Safire, William Turner, Ted -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. +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 @@ -13124,8 +13825,9 @@ of our tragedy. Dylan, Bob -As I write these final words, the news is filled with stories about -the RIAA lawsuits against almost three hundred individuals. +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 @@ -13169,10 +13871,11 @@ 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 @@ -13212,9 +13915,9 @@ 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, @@ -13241,10 +13944,11 @@ 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 @@ -13256,6 +13960,8 @@ permission before you use a copyrighted work in any way. The sorts believe you should be able to do with content as you wish, regardless of whether you have permission or not. +Internetdevelopment of +Internetinitial free character of When the Internet was first born, its initial architecture effectively tilted in the no rights reserved direction. Content could be copied @@ -13282,6 +13988,8 @@ content requires permission. The cut and paste world that define 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 rights reserved nor no rights reserved but some rights @@ -13290,9 +13998,11 @@ creators to free content as they see fit. In other words, we need a way to restore a set of freedoms that we could just take for granted before. -
Rebuilding Freedoms Previously Presumed: Examples +free culturerestoration efforts on previous aspects of +browsing +privacy rights If you step back from the battle I've been describing here, you will recognize this problem from other contexts. Think about @@ -13323,7 +14033,9 @@ of privacy. That privacy is guaranteed to us by friction. Not by law 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 +Amazon +cookies, Internet +Internetprivacy protection on 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 @@ -13333,8 +14045,8 @@ 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 +librariesprivacy rights in use of Amazon, of course, is not the problem. But we might begin to worry about libraries. If you're one of those crazy lefties who thinks that @@ -13345,6 +14057,8 @@ you. If it becomes simple to gather and sort who does what in electronic spaces, then the friction-induced privacy of yesterday 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 @@ -13369,6 +14083,11 @@ 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. + + +Data General +IBM +free software/open-source software (FS/OSS) A similar story could be told about the birth of the free software movement. When computers with software were first made available @@ -13376,9 +14095,8 @@ 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. -IBM -Stallman, Richard +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 @@ -13399,6 +14117,7 @@ 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? +proprietary code No one answered that question. Instead, the architecture of revenue for computing changed. As it became possible to import programs from @@ -13417,6 +14136,7 @@ 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. + Torvalds, Linus Therefore, in 1984, Stallman began a project to build a free operating @@ -13445,14 +14165,19 @@ that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed. + + +academic journals +scientific journals Finally, consider a very recent example that more directly resonates with the story of this book. This is the shift in the way academic and scientific journals are produced. - - academic journals - +Lexis and Westlaw +lawdatabases of case reports in +librariesjournals in +Supreme Court, U.S.access to opinions of As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13469,6 +14194,8 @@ and Westlaw are also free to charge users for the privilege of gaining access to that Supreme Court opinion through their respective services. +public domainaccess fees for material in +public domainlicense system for rebuilding of There's nothing wrong in general with this, and indeed, the ability to charge for access to even public domain materials is a good incentive @@ -13478,11 +14205,14 @@ to flourish. And if there's nothing wrong with selling the public domain, then there could be nothing wrong, in principle, with selling access to material that is not in the public domain. + + But what if the only way to get access to social and scientific data was through proprietary services? What if no one had the ability to browse this data except by paying for a subscription? +librariesjournals in As many are beginning to notice, this is increasingly the reality with scientific journals. When these journals were distributed in paper @@ -13503,6 +14233,8 @@ public libraries begin to disappear. Thus, as with privacy and with software, a changing technology and market shrink a freedom taken for granted before. +PLoS (Public Library of Science) +Public Library of Science (PLoS) This shrinking freedom has led many to take affirmative steps to restore the freedom that has been lost. The Public Library of Science @@ -13515,8 +14247,8 @@ then deposited in a public, electronic archive and made permanently available for free. PLoS also sells a print version of its work, but the copyright for the print journal does not inhibit the right of anyone to redistribute the work for free. -PLoS (Public Library of Science) + This is one of many such efforts to restore a freedom taken for granted before, but now threatened by changing technology and markets. @@ -13526,14 +14258,13 @@ distribution of content. But competition in our tradition is presumptively a good—especially when it helps spread knowledge and science. - - + + +
Rebuilding Free Culture: One Idea - - Creative Commons - +Creative Commons The same strategy could be applied to culture, as a response to the increasing control effected through law and technology. @@ -13590,6 +14321,7 @@ 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 @@ -13601,8 +14333,8 @@ 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 +Jefferson, Thomas The aim is not to fight the All Rights Reserved sorts. The aim is to complement them. The problems that the law creates for us as a culture @@ -13615,6 +14347,7 @@ freedoms, expressed in ways so that humans without lawyers can use them—are needed. Creative Commons gives people a way effectively to begin to build those rules. +booksfree on-line releases of Why would creators participate in giving up total control? Some participate to better spread their content. Cory Doctorow, for @@ -13640,6 +14373,8 @@ conclusion. The book's first printing was exhausted months before the publisher had expected. This first novel of a science fiction author was a total success. +Free for All (Wayner) +Wayner, Peter The idea that free content might increase the value of nonfree content was confirmed by the experience of another author. Peter Wayner, @@ -13650,11 +14385,11 @@ Commons license after the book went out of print. He then monitored used book store prices for the book. As predicted, as the number of downloads increased, the used book price for his book increased, as well. -Free for All (Wayner) -Wayner, Peter + Public Enemy rap music +Leaphart, Walter These are examples of using the Commons to better spread proprietary content. I believe that is a wonderful and common use of the @@ -13678,7 +14413,6 @@ Hittelman, a Fiat Lucre production, available at ), these artists release into the creative environment content that others can build upon, so that their form of creativity might grow. -Leaphart, Walter Finally, there are many who mark their content with a Creative Commons @@ -13719,19 +14453,19 @@ make it easier for authors and creators to exercise their rights more flexibly and cheaply. That difference, we believe, will enable creativity to spread more easily. - - + +
THEM, SOON -We will not reclaim a free culture by individual action alone. It will -also take important reforms of laws. We have a long way to go before -the politicians will listen to these ideas and implement these reforms. -But that also means that we have time to build awareness around the -changes that we need. +We will not reclaim a free culture +by individual action alone. It will also take important reforms of +laws. We have a long way to go before the politicians will listen to +these ideas and implement these reforms. But that also means that we +have time to build awareness around the changes that we need. In this chapter, I outline five kinds of changes: four that are general, @@ -13910,6 +14644,7 @@ evolve. The best way to ensure that the system evolves is to limit the Copyright Office's role to that of approving standards for marking content that have been crafted elsewhere. +CDscopyright marking of For example, if a recording industry association devises a method for marking CDs, it would propose that to the Copyright Office. The @@ -13998,7 +14733,9 @@ 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 @@ -14016,7 +14753,6 @@ 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 @@ -14054,10 +14790,7 @@ a more generous copyright law than Richard Nixon presided over?
3. Free Use Vs. Fair Use land ownership, air traffic and - - property rights - air traffic vs. - +property rightsair traffic vs. As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the @@ -14075,6 +14808,7 @@ 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 @@ -14086,7 +14820,6 @@ 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
@@ -14228,6 +14961,8 @@ content that is not copyrighted or to get access that the copyright 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 @@ -14338,6 +15073,8 @@ unavailable because the work is forgotten. Either way, the aim of the law should be to facilitate the access to this content, ideally in a way that returns something to the artist. +booksout of print +booksresales of Again, the model here is the used book store. Once a book goes out of print, it may still be available in libraries and used book @@ -14410,15 +15147,13 @@ 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. - - artists - recording industry payments to - +artistsrecording industry payments to William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William @@ -14467,7 +15202,6 @@ 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, @@ -14483,10 +15217,8 @@ 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. - - artists - recording industry payments to - + +artistsrecording industry payments to Fisher would balk at the idea of allowing the system to lapse. His aim is not just to ensure that artists are paid, but also to ensure that @@ -14500,7 +15232,10 @@ uses. A system that simply charges for access would not greatly burden semiotic democracy if there were few limitations on what one was allowed to do with the content itself. +Apple Corporation +MusicStore Real Networks +CDsprices of No doubt it would be difficult to calculate the proper measure of harm to an industry. But the difficulty of making that calculation @@ -14516,7 +15251,11 @@ Real Networks, offering music at just 79 cents a song. And no doubt there will be a great deal of competition to offer and sell music on-line. +cable television +televisioncable vs. broadcast Asia, commercial piracy in +piracyin Asia +film industryluxury theatres vs. video piracy in This competition has already occurred against the background of free music from p2p systems. As the sellers of cable television have known @@ -14618,6 +15357,8 @@ client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law. +Nimmer, Melville +Sonny Bono Copyright Term Extension Act (CTEA) (1998)Supreme Court challenge of The evidence of this bending is compelling. I'm attacked as a radical by many within the profession, yet the positions that I am @@ -14713,7 +15454,7 @@ 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? @@ -14741,6 +15482,10 @@ 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. + + + + @@ -14816,4 +15561,89 @@ grateful for her perpetual patience and love. + + +THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New +York, New York + + +Copyright © Lawrence Lessig. All rights reserved. + + +Excerpt from an editorial titled The Coming of Copyright Perpetuity, +The New York Times, January 16, 2003. Copyright +© 2003 by The New York Times Co. Reprinted with permission. + + +Cartoon in by Paul Conrad, copyright Tribune +Media Services, Inc. All rights reserved. Reprinted with permission. + + +Diagram in courtesy of the office of FCC +Commissioner, Michael J. Copps. + + +Library of Congress Cataloging-in-Publication Data + + +Lessig, Lawrence. +Free culture : how big media uses technology and the law to lock down +culture and control creativity / Lawrence Lessig. + + +p. cm. + + +Includes index. + + +ISBN 1-59420-006-8 (hardcover) + + + +1. Intellectual property—United States. 2. Mass media—United States. + + +3. Technological innovations—United States. 4. Art—United States. I. Title. + + +KF2979.L47 + + +343.7309'9—dc22 + + +This book is printed on acid-free paper. + + +Printed in the United States of America + + +1 3 5 7 9 10 8 6 4 + + +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 +retrieval system, or transmitted, in any form or by any means +(electronic, mechanical, photocopying, recording or otherwise), +without the prior written permission of both the copyright owner and +the above publisher of this book. + + +The scanning, uploading, and distribution of this book via the +Internet or via any other means without the permission of the +publisher is illegal and punishable by law. Please purchase only +authorized electronic editions and do not participate in or encourage +electronic piracy of copyrighted materials. Your support of the +author's rights is appreciated. + +