@@ -295,7 +295,7 @@ Unlike actual law, Internet software has no capacity to punish. It
doesn't affect people who aren't online (and only a tiny minority
of the world population is). And if you don't like the Internet's
system, you can always flip off the modem.
-David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
+David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
@@ -305,22 +305,26 @@ software, or "code," functioned as a kind of law—and his review
suggested the happy thought that if life in cyberspace got bad, we
could always "drizzle, drazzle, druzzle, drome"-like simply flip a
switch and be back home. Turn off the modem, unplug the computer, and
-any troubles that exist in that space wouldn't "affect" us anymore.
+any troubles that exist in that space wouldn't
+"affect" us anymore.
Pogue might have been right in 1999—I'm skeptical, but maybe.
-But even if he was right then, the point is not right now: Free Culture
-is about the troubles the Internet causes even after the modem is turned
+But even if he was right then, the point is not right now:
+Free Culture is about the troubles the Internet
+causes even after the modem is turned
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 Internet to a part of
-our tradition that is much more fundamental, and, as hard as this is for
-a geek-wanna-be to admit, much more important.
+But unlike Code, the argument here is not much
+about the Internet itself. It is instead about the consequence of the
+Internet to a part of our tradition that is much more fundamental,
+and, as hard as this is for a geek-wanna-be to admit, much more
+important.
That tradition is the way our culture gets made. As I explain in the
@@ -328,18 +332,19 @@ pages that follow, we come from a tradition of "free culture"—not
"free" as in "free beer" (to borrow a phrase from the founder of the
free software movement
-Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002).
-), but "free" as in "free speech," "free markets," "free
-trade," "free enterprise," "free will," and "free elections." A free
-culture supports and protects creators and innovators. It does this
-directly by granting intellectual property rights. But it does so
+Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002).
+), but "free" as in "free speech," "free markets,"
+"free trade," "free enterprise," "free will," and "free elections." A
+free culture supports and protects creators and innovators. It does
+this directly by granting intellectual property rights. But it does so
indirectly by limiting the reach of those rights, to guarantee that
-follow-on creators and innovators remain as free as possible from the
-control of the past. A free culture is not a culture without property,
-just as a free market is not a market in which everything is free. The
-opposite of a free culture is a "permission culture"—a culture in
-which creators get to create only with the permission of the powerful,
-or of creators from the past.
+follow-on creators and innovators remain as free as
+possible from the control of the past. A free culture is
+not a culture without property, just as a free market is not a market
+in which everything is free. The opposite of a free culture is a
+"permission culture"—a culture in which creators get to create
+only with the permission of the powerful, or of creators from the
+past.
If we understood this change, I believe we would resist it. Not "we"
@@ -361,6 +366,7 @@ 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
@@ -369,12 +375,13 @@ power—political, corporate, media, cultural—should be anathema to
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy. William Safire,
-"The Great Media Gulp," New York Times, 22 May 2003.
+"The Great Media Gulp," New York Times, 22 May 2003.
+Safire, William
-This idea is an element of the argument of Free Culture, though my
+This idea is an element of the argument of Free Culture, though my
focus is not just on the concentration of power produced by
concentrations in ownership, but more importantly, if because less
visibly, on the concentration of power produced by a radical change in
@@ -384,8 +391,8 @@ you—whether or not you care about the Internet, and whether you're on
Safire's left or on his right. The inspiration for the title and for
much of the argument of this book comes from the work of Richard
Stallman and the Free Software Foundation. Indeed, as I reread
-Stallman's own work, especially the essays in Free Software, Free
-Society, I realize that all of the theoretical insights I develop here
+Stallman's own work, especially the essays in Free Software, Free
+Society, I realize that all of the theoretical insights I develop here
are insights Stallman described decades ago. One could thus well argue
that this work is "merely" derivative.
@@ -418,7 +425,7 @@ fear about our culture today. It is against that extremism that this
book is written.
-
+
@@ -437,7 +444,7 @@ At the time the Wright brothers invented the airplane, American
law held that a property owner presumptively owned not just the surface
of his land, but all the land below, down to the center of the earth,
and all the space above, to "an indefinite extent, upwards."
-St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
+St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
For many
@@ -495,8 +502,8 @@ that there could be a "taking" if the government's use of its land
effectively destroyed the value of the Causbys' land. This example was
suggested to me by Keith Aoki's wonderful piece, "(Intellectual)
Property and Sovereignty: Notes Toward a Cultural Geography of
-Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul
-Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984),
+Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul
+Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984),
1112–13.
Causby, Thomas LeeCausby, Tinie
@@ -549,6 +556,9 @@ how the world of radio worked, and on at least three occasions,
Armstrong invented profoundly important technologies that advanced our
understanding of radio.
+Bell, Alexander Graham
+Edison, Thomas
+Faraday, Michael
On the day after Christmas, 1933, four patents were issued to Armstrong
@@ -583,7 +593,7 @@ fire. . . . Sousa marches were played from records and a piano solo
and guitar number were performed. . . . The music was projected with a
live-ness rarely if ever heard before from a radio "music
box."
-Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
(Philadelphia: J. B. Lipincott Company, 1956), 209.
@@ -603,6 +613,7 @@ 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
@@ -622,6 +633,7 @@ 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
@@ -780,7 +792,7 @@ part, a controlled part, balanced with the free.
This rough divide between the free and the controlled has now
been erased.
-See Jessica Litman, Digital Copyright (New York: Prometheus Books,
+See Jessica Litman, Digital Copyright (New York: Prometheus Books,
2001), ch. 13.
The Internet has set the stage for this erasure and, pushed by big
@@ -846,8 +858,8 @@ has been waged against the technologies of the Internet—what
Motion Picture Association of America (MPAA) president Jack Valenti
calls his "own terrorist war"
Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates
-Use New Tools to Turn the Net into an Illicit Video Club," New York
-Times, 17 January 2002.
+Use New Tools to Turn the Net into an Illicit Video Club," New York
+Times, 17 January 2002.
—has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
war, most think that we need only decide whether we're for property or
@@ -874,8 +886,8 @@ past, and protected creators and innovators from either state or private
control. The First Amendment protected creators against state control.
And as Professor Neil Netanel powerfully argues,
-Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
-Journal 106 (1996): 283.
+Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
+Journal 106 (1996): 283.
Netanel, Neil Weinstock
copyright law, properly balanced, protected creators against private
@@ -894,27 +906,23 @@ independent. We have built a kind of cultural nobility; those within
the noble class live easily; those outside it don't. But it is
nobility of any form that is alien to our tradition.
-
+
-The story that follows is about this war. Is it not about the
- "centrality
-of technology" to ordinary life. I don't believe in gods, digital or
-otherwise. Nor is it an effort to demonize any individual or group, for
-neither do I believe in a devil, corporate or otherwise. It is not a
- morality
-tale. Nor is it a call to jihad against an industry.
+The story that follows is about this war. Is it not about the
+"centrality of technology" to ordinary life. I don't believe in gods,
+digital or otherwise. Nor is it an effort to demonize any individual
+or group, for neither do I believe in a devil, corporate or
+otherwise. It is not a morality tale. Nor is it a call to jihad
+against an industry.
-It is instead an effort to understand a hopelessly destructive war
- inspired
-by the technologies of the Internet but reaching far beyond its
-code. And by understanding this battle, it is an effort to map peace.
-There is no good reason for the current struggle around Internet
- technologies
-to continue. There will be great harm to our tradition and
-culture if it is allowed to continue unchecked. We must come to
- understand
-the source of this war. We must resolve it soon.
+It is instead an effort to understand a hopelessly destructive war
+inspired by the technologies of the Internet but reaching far beyond
+its code. And by understanding this battle, it is an effort to map
+peace. There is no good reason for the current struggle around
+Internet technologies to continue. There will be great harm to our
+tradition and culture if it is allowed to continue unchecked. We must
+come to understand the source of this war. We must resolve it soon.
Causby, Thomas LeeCausby, Tinie
@@ -946,23 +954,20 @@ the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
-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 importantly, its power to disable critical thought by policy
-makers and citizens. There has never been a time in our history when
-more of our "culture" was as "owned" as it is now. And yet there has
-never been a time when the concentration of power to control the uses
-of culture has been as unquestioningly accepted as it is now.
+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
+importantly, its power to disable critical thought by policy makers
+and citizens. There has never been a time in our history when more of
+our "culture" was as "owned" as it is now. And yet there has never
+been a time when the concentration of power to control the
+uses of culture has been as unquestioningly
+accepted as it is now.
-The puzzle is, Why?
-Is it because we have come to understand a truth about the value
-and importance of absolute property over ideas and culture? Is it
- because
-we have discovered that our tradition of rejecting such an
- absolute
-claim was wrong?
+The puzzle is, Why? Is it because we have come to understand a truth
+about the value and importance of absolute property over ideas and
+culture? Is it because we have discovered that our tradition of
+rejecting such an absolute claim was wrong?
Or is it because the idea of absolute property over ideas and culture
@@ -976,12 +981,11 @@ radical shift away from our tradition of free culture yet another example
of a political system captured by a few powerful special interests?
-Does common sense lead to the extremes on this question because
-common sense actually believes in these extremes? Or does common
-sense stand silent in the face of these extremes because, as with
- Armstrong
-versus RCA, the more powerful side has ensured that it has the
-more powerful view?
+Does common sense lead to the extremes on this question because common
+sense actually believes in these extremes? Or does common sense stand
+silent in the face of these extremes because, as with Armstrong versus
+RCA, the more powerful side has ensured that it has the more powerful
+view?
Causby, Thomas LeeCausby, Tinie
@@ -1002,25 +1006,22 @@ ideas.
My method is not the usual method of an academic. I don't want to
-plunge you into a complex argument, buttressed with references to
- obscure
-French theorists—however natural that is for the weird sort we
-academics have become. Instead I begin in each part with a collection
-of stories that set a context within which these apparently simple ideas
-can be more fully understood.
+plunge you into a complex argument, buttressed with references to
+obscure French theorists—however natural that is for the weird
+sort we academics have become. Instead I begin in each part with a
+collection of stories that set a context within which these apparently
+simple ideas can be more fully understood.
The two sections set up the core claim of this book: that while the
-Internet has indeed produced something fantastic and new, our
- government,
-pushed by big media to respond to this "something new," is
+Internet has indeed produced something fantastic and new, our
+government, pushed by big media to respond to this "something new," is
destroying something very old. Rather than understanding the changes
the Internet might permit, and rather than taking time to let "common
-sense" resolve how best to respond, we are allowing those most
- threatened
-by the changes to use their power to change the law—and more
-importantly, to use their power to change something fundamental about
-who we have always been.
+sense" resolve how best to respond, we are allowing those most
+threatened by the changes to use their power to change the
+law—and more importantly, to use their power to change something
+fundamental about who we have always been.
We allow this, I believe, not because it is right, and not because
@@ -1032,16 +1033,18 @@ to which most of us remain oblivious.
-
+"PIRACY"
-
+
+
+ Mansfield, William Murray, Lord
+
-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
+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
English copyright law to include sheet music,
@@ -1050,37 +1053,35 @@ A person may use the copy by playing it, but he has no right to
rob the author of the profit, by multiplying copies and disposing
of them for his own use.
-Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+
Today we are in the middle of another "war" against "piracy." The
-Internet has provoked this war. The Internet makes possible the
- efficient
-spread of content. Peer-to-peer (p2p) file sharing is among the
-most efficient of the efficient technologies the Internet enables. Using
-distributed intelligence, p2p systems facilitate the easy spread of
- content
-in a way unimagined a generation ago.
+Internet has provoked this war. The Internet makes possible the
+efficient spread of content. Peer-to-peer (p2p) file sharing is among
+the most efficient of the efficient technologies the Internet
+enables. Using distributed intelligence, p2p systems facilitate the
+easy spread of content in a way unimagined a generation ago.
This efficiency does not respect the traditional lines of copyright.
The network doesn't discriminate between the sharing of copyrighted
-and uncopyrighted content. Thus has there been a vast amount of
- 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."
+and uncopyrighted content. Thus has there been a vast amount of
+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 "piracy."
-A generation of Americans, the warriors warn, is being raised to
- believe
-that "property" should be "free." Forget tattoos, never mind body
-piercing—our kids are becoming thieves!
+The warriors have turned to the courts, to the legislatures, and
+increasingly to technology to defend their "property" against this
+"piracy." A generation of Americans, the warriors warn, is being
+raised to believe that "property" should be "free." Forget tattoos,
+never mind body piercing—our kids are becoming
+thieves!
There's no doubt that "piracy" is wrong, and that pirates should be
@@ -1108,7 +1109,7 @@ professor Rochelle Dreyfuss criticizes as the "if value, then right"
theory of creative property
See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
-in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
+in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
@@ -1116,10 +1117,11 @@ organization, ASCAP, to sue the Girl Scouts for failing to pay for the
songs that girls sang around Girl Scout campfires.
Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
-Up," Wall Street Journal, 21 August 1996, available at
+Up," Wall Street Journal, 21 August 1996, available at
link #3; Jonathan
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
-Speech, No One Wins," Boston Globe, 24 November 2002.
+Speech, No One Wins," Boston Globe, 24 November 2002.
+Zittrain, Jonathan
There was "value" (the songs) so there must have been a
"right"—even against the Girl Scouts.
@@ -1129,10 +1131,9 @@ There was "value" (the songs) so there must have been a
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
-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.
+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.
Instead, in our tradition, intellectual property is an instrument. It
@@ -1177,7 +1178,7 @@ of obscenely severe penalties. We may
be seeing, as Richard Florida writes, the "Rise of the Creative Class."
-In The Rise of the Creative Class (New York: Basic Books, 2002),
+In The Rise of the Creative Class (New York: Basic Books, 2002),
Richard Florida documents a shift in the nature of labor toward a
labor of creativity. His work, however, doesn't directly address the
legal conditions under which that creativity is enabled or stifled. I
@@ -1194,20 +1195,21 @@ These burdens make no sense in our tradition. We should begin by
understanding that tradition a bit more and by placing in their proper
context the current battles about behavior labeled "piracy."
+
-
+CHAPTER ONE: Creators
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.
+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
+distributed cartoon synchronized with sound, Steamboat Willie brought
to life the character that would become Mickey Mouse.
Synchronized sound had been introduced to film a year earlier in the
-movie The Jazz Singer. That success led Walt Disney to copy the
+movie The Jazz Singer. That success led Walt Disney to copy the
technique and mix sound with cartoons. No one knew whether it would
work or, if it did work, whether it would win an audience. But when
Disney ran a test in the summer of 1928, the results were unambiguous.
@@ -1229,16 +1231,14 @@ bammed tin pans and blew slide whistles on the beat. The
synchronization was pretty close.
-The effect on our little audience was nothing less than
- electric.
-They responded almost instinctively to this union of sound
-and motion. I thought they were kidding me. So they put me in
-the audience and ran the action again. It was terrible, but it was
-wonderful! And it was something new!
+The effect on our little audience was nothing less than electric.
+They responded almost instinctively to this union of sound and
+motion. I thought they were kidding me. So they put me in the audience
+and ran the action again. It was terrible, but it was wonderful! And
+it was something new!
-Leonard Maltin, Of Mice and Magic: A History of American Animated
- Cartoons
-(New York: Penguin Books, 1987), 34–35.
+Leonard Maltin, Of Mice and Magic: A History of American Animated
+Cartoons (New York: Penguin Books, 1987), 34–35.
@@ -1246,6 +1246,7 @@ Leonard Maltin, Of Mice and Magic: A History of American Animated
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
@@ -1257,21 +1258,22 @@ match. And quite often, Disney's great genius, his spark of
creativity, was built upon the work of others.
-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 cartoon) genius created his last independently produced silent film.
-That genius was Buster Keaton. The film was 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
+cartoon) genius created his last independently produced silent film.
+That genius was Buster Keaton. The film was Steamboat Bill, Jr.
-Keaton was born into a vaudeville family in 1895. In the era of
-silent film, he had mastered using broad physical comedy as a way to
-spark uncontrollable laughter from his audience. Steamboat Bill, 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.
+Keaton was born into a vaudeville family in 1895. In the era of silent
+film, he had mastered using broad physical comedy as a way to spark
+uncontrollable laughter from his audience. Steamboat Bill,
+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.
-Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
+Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat
+Willie.
The coincidence of titles is not coincidental. Steamboat Willie is a
direct cartoon parody of Steamboat Bill,
@@ -1279,15 +1281,15 @@ direct cartoon parody of Steamboat Bill,
I am grateful to David Gerstein and his careful history, described at
link #4.
According to Dave Smith of the Disney Archives, Disney paid royalties to
-use the music for five songs in Steamboat Willie: "Steamboat Bill," "The
+use the music for five songs in Steamboat Willie: "Steamboat Bill," "The
Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1"
(Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the
Straw," was already in the public domain. Letter from David Smith to
Harry Surden, 10 July 2003, on file with author.
and both are built upon a common song as a source. It is not just from
-the invention of synchronized sound in The Jazz Singer that we get
-Steamboat Willie. It is also from Buster Keaton's invention of
+the invention of synchronized sound in The Jazz Singer that we
+get Steamboat Willie. It is also from Buster Keaton's invention of
Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill,"
that we get Steamboat Willie, and then from Steamboat Willie, Mickey
Mouse.
@@ -1327,18 +1329,20 @@ light. Without removing the elements of fear and danger altogether, he
made funny what was dark and injected a genuine emotion of compassion
where before there was fear. And not just with the work of the
Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
-work of others is astonishing when set together: Snow White (1937),
-Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of
-the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin
-Hood (1952), Peter Pan (1953), Lady and the Tramp
+work of others is astonishing when set together: Snow White
+(1937), Fantasia (1940), Pinocchio (1940), Dumbo
+(1941), Bambi (1942), Song of the South (1946),
+Cinderella (1950), Alice in Wonderland (1951), Robin
+Hood (1952), Peter Pan (1953), Lady and the Tramp
-(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
-The Sword in the Stone (1963), and The Jungle Book (1967)—not to
-mention a recent example that we should perhaps quickly forget,
-Treasure Planet (2003). In all of these cases, Disney (or Disney,
-Inc.) ripped 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.
+(1955), Mulan (1998), Sleeping Beauty (1959), 101
+Dalmatians (1961), The Sword in the Stone (1963), and
+The Jungle Book (1967)—not to mention a recent example
+that we should perhaps quickly forget, Treasure Planet
+(2003). In all of these cases, Disney (or Disney, Inc.) ripped
+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
@@ -1401,7 +1405,7 @@ universal.
Consider, for example, a form of creativity that seems strange to many
-Americans but that is inescapable within Japanese culture: manga, or
+Americans but that is inescapable within Japanese culture: manga, or
comics. The Japanese are fanatics about comics. Some 40 percent of
publications are comics, and 30 percent of publication revenue derives
from comics. They are everywhere in Japanese society, at every
@@ -1425,10 +1429,11 @@ variant on manga that from a lawyer's perspective is quite odd, but
from a Disney perspective is quite familiar.
-This is the phenomenon of doujinshi. Doujinshi are also comics, but
+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
-doujinshi. It is not doujinshi if it is just a copy; the artist must make a
-contribution to the art he copies, by transforming it either subtly or
+doujinshi. It is not doujinshi if it is just a
+copy; the artist must make a contribution to the art he copies, by
+transforming it either subtly or
significantly. A doujinshi comic can thus take a mainstream comic and
develop it differently—with a different story line. Or the comic can
@@ -1457,25 +1462,27 @@ American copyright law, the doujinshi market is an illegal
one. Doujinshi are plainly "derivative works." There is no general
practice by doujinshi artists of securing the permission of the manga
creators. Instead, the practice is simply to take and modify the
-creations of others, as Walt Disney did with Steamboat Bill, Jr. Under
-both Japanese and American law, that "taking" without 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.
-
+creations of others, as Walt Disney did with Steamboat Bill,
+Jr. Under both Japanese and American law, that "taking" without
+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
+
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
flourish. As American graphic novelist Judd Winick said to me, "The
early days of comics in America are very much like what's going on
in Japan now. . . . American comics were born out of copying each
-
other. . . . That's how [the artists] learn to draw—by going into comic
books and not tracing them, but looking at them and copying them"
and building from them.
-For an excellent history, see Scott McCloud, Reinventing Comics (New
+For an excellent history, see Scott McCloud, Reinventing Comics (New
York: Perennial, 2000).
@@ -1487,6 +1494,7 @@ and you have to stick to them." There are things Superman "cannot"
do. "As a creator, it's frustrating having to stick to some parameters
which are fifty years old."
+
The norm in Japan mitigates this legal difficulty. Some say it is
precisely the benefit accruing to the Japanese manga market that
@@ -1497,8 +1505,8 @@ wealthy and productive. Everyone would be worse off if doujinshi were
banned, so the law does not ban doujinshi.
See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
-Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
-Review 55 (2002): 155, 182. "[T]here might be a collective economic
+Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
+Review 55 (2002): 155, 182. "[T]here might be a collective economic
rationality that would lead manga and anime artists to forgo bringing
legal actions for infringement. One hypothesis is that all manga
artists may be better off collectively if they set aside their
@@ -1548,19 +1556,18 @@ 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."
-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 (New York:
-Random House, 2001), 293 n. 26. The term accurately describes a set of
-"property" rights—copyright, patents, trademark, and trade-secret—but the
-nature of those rights is very different.
-
-A large, diverse society cannot survive without
- property;
-a large, diverse, and modern society cannot flourish without
-intellectual property.
+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
+(New York: Random House, 2001), 293 n. 26. The term accurately
+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.
But it takes just a second's reflection to realize that there is
@@ -1607,12 +1614,12 @@ without asking or paying for the privilege. ("Excuse me, Professor
Einstein, but may I have permission to use your theory of relativity
to show that you were wrong about quantum physics?") Acting companies
perform adaptations of the works of Shakespeare without securing
-permission from anyone. (Does anyone believe Shakespeare would be
-better spread within our culture if there were a central Shakespeare
-rights clearinghouse that all productions of Shakespeare must appeal
-to first?) And Hollywood goes through cycles with a certain kind of
-movie: five asteroid films in the late 1990s; two volcano disaster
-films in 1997.
+permission from anyone. (Does anyone believe
+Shakespeare would be better spread within our culture if there were a
+central Shakespeare rights clearinghouse that all productions of
+Shakespeare must appeal to first?) And Hollywood goes through cycles
+with a certain kind of movie: five asteroid films in the late 1990s;
+two volcano disaster films in 1997.
Creators here and everywhere are always and at all times building
@@ -1626,15 +1633,16 @@ 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 question instead is "How
-free is this culture?" How much, and how broadly, is the culture free
-for others to take and build upon? Is that freedom limited to party
-members? To members of the royal family? To the top ten corporations
-on the New York Stock Exchange? Or is that freedom spread broadly? To
-artists generally, whether affiliated with the Met or not? To
-musicians generally, whether white or not? To filmmakers generally,
-whether affiliated with a studio or not?
+The hard question is therefore not whether a
+culture is free. All cultures are free to some degree. The hard
+question instead is "How free is this culture?"
+How much, and how broadly, is the culture free for others to take and
+build upon? Is that freedom limited to party members? To members of
+the royal family? To the top ten corporations on the New York Stock
+Exchange? Or is that freedom spread broadly? To artists generally,
+whether affiliated with the Met or not? To musicians generally,
+whether white or not? To filmmakers generally, whether affiliated with
+a studio or not?
Free cultures are cultures that leave a great deal open for others to
@@ -1643,8 +1651,8 @@ free culture. It is becoming much less so.
-
-
+
+CHAPTER TWO: "Mere Copyists"Daguerre, Louis
@@ -1667,6 +1675,9 @@ 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.
+
+ Eastman, George
+
The technological change that made mass photography possible
didn't happen until 1888, and was the creation of a single man. George
@@ -1685,8 +1696,8 @@ rolls of it in small, simple cameras: the Kodak. The device was
marketed on the basis of its simplicity. "You press the button and we
do the rest."
-Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
- As he described in The Kodak Primer:
+Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
+ As he described in The Kodak Primer:
@@ -1701,7 +1712,7 @@ preliminary study, without a darkroom and without
chemicals.
-Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
+Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
Coe, Brian
@@ -1767,7 +1778,11 @@ Courts were asked whether the photographer, amateur or professional,
required permission before he could capture and print whatever image
he wanted. Their answer was no.
-For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E.
+For illustrative cases, see, for example, Pavesich
+v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905);
+Foster-Milburn Co. v. Chinn, 123090 S.W. 364, 366
+(Ky. 1909); Corliss v. Walker, 64 F. 280 (Mass.
+Dist. Ct. 1894).
@@ -1791,12 +1806,12 @@ the rule should be different for images from private spaces.
Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
-Harvard Law Review 4 (1890): 193.
+Harvard Law Review 4 (1890): 193.
Brandeis, Louis D.Warren, Samuel D.) It may be that this means that the photographer
gets something for nothing. Just as Disney could take inspiration from
-Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
+Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
@@ -1810,10 +1825,10 @@ for commercial purposes have more restrictions than the rest of
us. But in the ordinary case, the image can be captured without
clearing the rights to do the capturing.
-See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
-Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
-Review 48 (1960) 398–407; White v. Samsung Electronics America,
-Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
+See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
+Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
+Review 48 (1960) 398–407; White v. Samsung Electronics America,
+Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
(1993).
)
@@ -1859,6 +1874,7 @@ hundred to five hundred children to learn something about media by
doing something with media. By doing, they think. By tinkering, they
learn.
+
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
@@ -1866,17 +1882,15 @@ fallen dramatically. As one analyst puts it, "Five years ago, a good
real-time digital video editing system cost $25,000. Today you can get
professional quality for $595."
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
- Software
-You Need to Create Digital Multimedia Presentations," cadalyst,
-February 2002, available at
+H. Edward Goldberg, "Essential Presentation Tools: Hardware and
+Software You Need to Create Digital Multimedia Presentations,"
+cadalyst, February 2002, available at
link #7.
-These buses are filled with technology that
-would have cost hundreds of thousands just ten years ago. And it is
-now feasible to imagine not just buses like this, but classrooms across
-the country where kids are learning more and more of something
-teachers call "media literacy."
+These buses are filled with technology that would have cost hundreds
+of thousands just ten years ago. And it is now feasible to imagine not
+just buses like this, but classrooms across the country where kids are
+learning more and more of something teachers call "media literacy."
@@ -1885,6 +1899,7 @@ 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
@@ -1897,27 +1912,25 @@ Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
commercials generally,
-Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
+Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
-Study," Denver Post, 25 May 1997, B6.
+Study," Denver Post, 25 May 1997, B6.
-it is increasingly important to understand the
-"grammar" of media. For just as there is a grammar for the written
-word, so, too, is there one for media. And just as kids learn how to write
-by writing lots of terrible prose, kids learn how to write media by
- constructing
-lots of (at least at first) terrible media.
+it is increasingly important to understand the "grammar" of media. For
+just as there is a grammar for the written word, so, too, is there one
+for media. And just as kids learn how to write by writing lots of
+terrible prose, kids learn how to write media by constructing lots of
+(at least at first) terrible media.
A growing field of academics and activists sees this form of literacy
-as crucial to the next generation of culture. For though anyone who has
-written understands how difficult writing is—how difficult it is to
- sequence
-the story, to keep a reader's attention, to craft language to be
-understandable—few of us have any real sense of how difficult media
-is. Or more fundamentally, few of us have a sense of how media works,
-how it holds an audience or leads it through a story, how it triggers
-emotion or builds suspense.
+as crucial to the next generation of culture. For though anyone who
+has written understands how difficult writing is—how difficult
+it is to sequence the story, to keep a reader's attention, to craft
+language to be understandable—few of us have any real sense of
+how difficult media is. Or more fundamentally, few of us have a sense
+of how media works, how it holds an audience or leads it through a
+story, how it triggers emotion or builds suspense.
It took filmmaking a generation before it could do these things well.
@@ -1989,21 +2002,21 @@ Couch potatoes. Consumers. This is the world of media from the
twentieth century.
-The twenty-first century could be different. This is the crucial point:
-It could be both read and write. Or at least reading and better
- understanding
-the craft of writing. Or best, reading and understanding the
-tools that enable the writing to lead or mislead. The aim of any literacy,
+The twenty-first century could be different. This is the crucial
+point: It could be both read and write. Or at least reading and better
+understanding the craft of writing. Or best, reading and understanding
+the tools that enable the writing to lead or mislead. The aim of any
+literacy,
-and this literacy in particular, is to "empower people to choose the
- appropriate
-language for what they need to create or express."
+and this literacy in particular, is to "empower people to choose the
+appropriate language for what they need to create or
+express."
Interview with Daley and Barish.
Barish, Stephanie
- It is to enable
-students "to communicate in the language of the twenty-first century."
+ It is to enable students "to communicate in the
+language of the twenty-first century."
Ibid.
@@ -2042,23 +2055,21 @@ been created using only text. "If you had said to these students, `you
have to do it in text,' they would've just thrown their hands up and
gone and done something else," Barish described, in part, no doubt,
because expressing themselves in text is not something these students
-can do well. Yet neither is text a form in which these ideas can be
-expressed well. The power of this message depended upon its connection
-to this form of expression.
+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.
"But isn't education about teaching kids to write?" I asked. In part,
-of course, it is. But why are we teaching kids to write? Education,
- Daley
-explained, is about giving students a way of "constructing
- meaning."
-To say that that means just writing is like saying teaching writing
-is only about teaching kids how to spell. Text is one part—and
- increasingly,
-not the most powerful part—of constructing meaning. As Daley
-explained in the most moving part of our interview,
+of course, it is. But why are we teaching kids to write? Education,
+Daley explained, is about giving students a way of "constructing
+meaning." To say that that means just writing is like saying teaching
+writing is only about teaching kids how to spell. Text is one
+part—and increasingly, not the most powerful part—of
+constructing meaning. As Daley explained in the most moving part of
+our interview,
@@ -2127,7 +2138,7 @@ world and presented them as slide shows with text. Some offered open
letters. There were sound recordings. There was anger and frustration.
There were attempts to provide context. There was, in short, an
extraordinary worldwide barn raising, in the sense Mike Godwin uses
-the term in his book Cyber Rights, around a news event that had
+the term in his book Cyber Rights, around a news event that had
captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
@@ -2151,13 +2162,13 @@ that this mix of captured images, sound, and commentary can be widely
spread practically instantaneously.
-September 11 was not an aberration. It was a beginning. Around
-the same time, a form of communication that has grown dramatically
-was just beginning to come into public consciousness: the Web-log, or
-blog. The blog is a kind of public diary, and within some cultures, such
-as in Japan, it functions very much like a diary. In those cultures, it
-records private facts in a public way—it's a kind of electronic Jerry
-Springer, available anywhere in the world.
+September 11 was not an aberration. It was a beginning. Around the
+same time, a form of communication that has grown dramatically was
+just beginning to come into public consciousness: the Web-log, or
+blog. The blog is a kind of public diary, and within some cultures,
+such as in Japan, it functions very much like a diary. In those
+cultures, it records private facts in a public way—it's a kind
+of electronic Jerry Springer, available anywhere in the world.
But in the United States, blogs have taken on a very different
@@ -2200,8 +2211,8 @@ persuade each other of the "right" result, and in criminal cases at
least, they had to agree upon a unanimous result for the process to
come to an end.
-See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans.
-Henry Reeve (New York: Bantam Books, 2000), ch. 16.
+See, for example, Alexis de Tocqueville, Democracy in America,
+bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
@@ -2209,37 +2220,31 @@ Yet even this institution flags in American life today. And in its
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.
-Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
- Political
-Philosophy 10 (2) (2002): 129.
-
-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.
-
-
-More bizarrely, there is generally not even permission for it to
- occur.
-We, the most powerful democracy in the world, have developed a
-strong norm against talking about politics. It's fine to talk about
- politics
-with people you agree with. But it is rude to argue about politics
-with people you disagree with. Political discourse becomes isolated,
-and isolated discourse becomes more extreme.
+Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
+Political Philosophy 10 (2) (2002): 129.
+
+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.
+
+
+More bizarrely, there is generally not even permission for it to
+occur. We, the most powerful democracy in the world, have developed a
+strong norm against talking about politics. It's fine to talk about
+politics with people you agree with. But it is rude to argue about
+politics with people you disagree with. Political discourse becomes
+isolated, and isolated discourse becomes more extreme.
-Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
+Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
65–80, 175, 182, 183, 192.
- We say what our
-friends want to hear, and hear very little beyond what our friends say.
+ We say what our friends want to hear, and hear very
+little beyond what our friends say.
Enter the blog. The blog's very architecture solves one part of this
-problem. People post when they want to post, and people read when
-they want to read. The most difficult time is synchronous time.
- Technologies
-that enable asynchronous communication, such as e-mail,
+problem. People post when they want to post, and people read when they
+want to read. The most difficult time is synchronous time.
+Technologies that enable asynchronous communication, such as e-mail,
increase the opportunity for communication. Blogs allow for public
@@ -2256,28 +2261,27 @@ political cover political issues when the occasion merits.
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
+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
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
-"misspoke" at a party for Senator Strom Thurmond, essentially
- praising
+"misspoke" at a party for Senator Strom Thurmond, essentially praising
Thurmond's segregationist policies, he calculated correctly that this
story would disappear from the mainstream press within forty-eight
-hours. It did. But he didn't calculate its life cycle in blog space. The
-bloggers kept researching the story. Over time, more and more
- instances
-of the same "misspeaking" emerged. Finally, the story broke
-back into the mainstream press. In the end, Lott was forced to resign
-as senate majority leader.
+hours. It did. But he didn't calculate its life cycle in blog
+space. The bloggers kept researching the story. Over time, more and
+more instances of the same "misspeaking" emerged. Finally, the story
+broke back into the mainstream press. In the end, Lott was forced to
+resign as senate majority leader.
Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
York Times, 16 January 2003, G5.
+Lott, Trent
This different cycle is possible because the same commercial pressures
@@ -2295,6 +2299,9 @@ 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
+
There's a second way, as well, in which blogs have a different cycle
@@ -2316,13 +2323,13 @@ its own employees.
Telephone interview with David Winer, 16 April 2003.
-It also needs to sustain a more coherent
-account. (In the middle of the Iraq war, I read a post on the Internet
-from someone who was at that time listening to a satellite uplink with
-a reporter in Iraq. The New York headquarters was telling the reporter
-over and over that her account of the war was too bleak: She needed to
-offer a more optimistic story. When she told New York that wasn't
-warranted, they told her that they were writing "the story.")
+It also needs to sustain a more coherent account. (In the middle of
+the Iraq war, I read a post on the Internet from someone who was at
+that time listening to a satellite uplink with a reporter in Iraq. The
+New York headquarters was telling the reporter over and over that her
+account of the war was too bleak: She needed to offer a more
+optimistic story. When she told New York that wasn't warranted, they
+told her that they were writing "the story.")
Blog space gives amateurs a way to enter the
debate—"amateur" not in the sense of inexperienced, but in the
@@ -2333,7 +2340,7 @@ 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
+Information Online," New York Times, 2 February 2003, A28; Staci
D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
Online Journalism Review, 2 February 2003, available at
link #10.
@@ -2351,12 +2358,12 @@ not clear that "journalism" is happy about this—some journalists
have been told to curtail their blogging.
-See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
-York Times, 29 September 2003, C4. ("Not all news organizations have
+See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
+York Times, 29 September 2003, C4. ("Not all news organizations have
been as accepting of employees who blog. Kevin Sites, a CNN
correspondent in Iraq who started a blog about his reporting of the
war on March 9, stopped posting 12 days later at his bosses'
-request. Last year Steve Olafson, a Houston Chronicle reporter, was
+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
@@ -2371,97 +2378,92 @@ 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."
-That is true. But it affects democracy in another way as well.
-As more and more citizens express what they think, and defend it in
-writing, that will change the way people understand public issues. It is
-easy to be wrong and misguided in your head. It is harder when the
-product of your mind can be criticized by others. Of course, it is a rare
-human who admits that he has been persuaded that he is wrong. But it
-is even rarer for a human to ignore when he has been proven wrong.
+This speech affects democracy. Winer thinks that happens because "you
+don't have to work for somebody who controls, [for] a gatekeeper."
+That is true. But it affects democracy in another way as well. As
+more and more citizens express what they think, and defend it in
+writing, that will change the way people understand public issues. It
+is easy to be wrong and misguided in your head. It is harder when the
+product of your mind can be criticized by others. Of course, it is a
+rare human who admits that he has been persuaded that he is wrong. But
+it is even rarer for a human to ignore when he has been proven wrong.
The writing of ideas, arguments, and criticism improves democracy.
Today there are probably a couple of million blogs where such writing
-happens. When there are ten million, there will be something
- extraordinary
-to report.
+happens. When there are ten million, there will be something
+extraordinary to report.
+
+
+ Brown, John Seely
+
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
- differently
-from the perspectives I've sketched so far. I'm sure he would be
-excited about any technology that might improve democracy. But his
-real excitement comes from how these technologies affect learning.
+Brown thus looks at these technologies of digital creativity a bit
+differently from the perspectives I've sketched so far. I'm sure he
+would be excited about any technology that might improve
+democracy. But his real excitement comes from how these technologies
+affect learning.
-As Brown believes, we learn by tinkering. When "a lot of us grew
-up," he explains, that tinkering was done "on motorcycle engines,
- lawnmower
-engines, automobiles, radios, and so on." But digital
- technologies
+As Brown believes, we learn by tinkering. When "a lot of us grew up,"
+he explains, that tinkering was done "on motorcycle engines, lawnmower
+engines, automobiles, radios, and so on." But digital technologies
enable a different kind of tinkering—with abstract ideas though
-in concrete form. The kids at Just Think! not only think about how
-a commercial portrays a politician; using digital technology, they can
+in concrete form. The kids at Just Think! not only think about how a
+commercial portrays a politician; using digital technology, they can
take the commercial apart and manipulate it, tinker with it to see how
-it does what it does. Digital technologies launch a kind of bricolage, or
-"free collage," as Brown calls it. Many get to add to or transform the
-tinkering of many others.
+it does what it does. Digital technologies launch a kind of bricolage,
+or "free collage," as Brown calls it. Many get to add to or transform
+the tinkering of many others.
The best large-scale example of this kind of tinkering so far is free
software or open-source software (FS/OSS). FS/OSS is software whose
-source code is shared. Anyone can download the technology that makes
-a FS/OSS program run. And anyone eager to learn how a particular bit
-of FS/OSS technology works can tinker with the code.
+source code is shared. Anyone can download the technology that makes a
+FS/OSS program run. And anyone eager to learn how a particular bit of
+FS/OSS technology works can tinker with the code.
-This opportunity creates a "completely new kind of learning
- platform,"
+This opportunity creates a "completely new kind of learning platform,"
as Brown describes. "As soon as you start doing that, you . . .
-unleash a free collage on the community, so that other people can start
-looking at your code, tinkering with it, trying it out, seeing if they can
-improve it." Each effort is a kind of apprenticeship. "Open source
- becomes
-a major apprenticeship platform."
+unleash a free collage on the community, so that other people can
+start looking at your code, tinkering with it, trying it out, seeing
+if they can improve it." Each effort is a kind of
+apprenticeship. "Open source becomes a major apprenticeship platform."
In this process, "the concrete things you tinker with are abstract.
-They are code." Kids are "shifting to the ability to tinker in the
- abstract,
-and this tinkering is no longer an isolated activity that you're
- doing
-in your garage. You are tinkering with a community platform. . . .
-You are tinkering with other people's stuff. The more you tinker the
-more you improve." The more you improve, the more you learn.
-
-
-This same thing happens with content, too. And it happens in the
-same collaborative way when that content is part of the Web. As
-Brown puts it, "the Web [is] the first medium that truly honors
- multiple
-forms of intelligence." Earlier technologies, such as the typewriter
-or word processors, helped amplify text. But the Web amplifies much
-more than text. "The Web . . . says if you are musical, if you are
- artistic,
-if you are visual, if you are interested in film . . . [then] there is a lot
-you can start to do on this medium. [It] can now amplify and honor
+They are code." Kids are "shifting to the ability to tinker in the
+abstract, and this tinkering is no longer an isolated activity that
+you're doing in your garage. You are tinkering with a community
+platform. . . . You are tinkering with other people's stuff. The more
+you tinker the more you improve." The more you improve, the more you
+learn.
+
+
+This same thing happens with content, too. And it happens in the same
+collaborative way when that content is part of the Web. As Brown puts
+it, "the Web [is] the first medium that truly honors multiple forms of
+intelligence." Earlier technologies, such as the typewriter or word
+processors, helped amplify text. But the Web amplifies much more than
+text. "The Web . . . says if you are musical, if you are artistic, if
+you are visual, if you are interested in film . . . [then] there is a
+lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
Barish, Stephanie
-Brown is talking about what Elizabeth Daley, Stephanie Barish,
-and Just Think! teach: that this tinkering with culture teaches as well
+Brown is talking about what Elizabeth Daley, Stephanie Barish, and
+Just Think! teach: that this tinkering with culture teaches as well
-as creates. It develops talents differently, and it builds a different kind
-of recognition.
+as creates. It develops talents differently, and it builds a different
+kind of recognition.
Yet the freedom to tinker with these objects is not guaranteed.
@@ -2480,8 +2482,8 @@ tinker" as it applies to computer science and to knowledge in
general.
See, for example, Edward Felten and Andrew Appel, "Technological Access
-Control Interferes with Noninfringing Scholarship," Communications
-of the Association for Computer Machinery 43 (2000): 9.
+Control Interferes with Noninfringing Scholarship," Communications
+of the Association for Computer Machinery 43 (2000): 9.
But Brown's concern is earlier, or younger, or more fundamental. It is
about the learning that kids can do, or can't do, because of the law.
@@ -2498,6 +2500,7 @@ 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
@@ -2509,8 +2512,8 @@ the law to close down that technology.
chapter 9, quipped to me in a rare moment of despondence.
-
-
+
+CHAPTER THREE: Catalogs
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
@@ -2575,10 +2578,9 @@ 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 research; copies of information pamphlets; movie clips that
- students
+Thus the index his search engine produced included pictures, which
+students could use to put on their own Web sites; copies of notes or
+research; copies of information pamphlets; movie clips that students
might have created; university brochures—basically anything that
users of the RPI network made available in a public folder of their
@@ -2614,36 +2616,39 @@ wrong. . . . I don't think there's anything wrong with the search
engine that I ran or . . . what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of
pirates. I just modified the search engine in a way that would make it
-easier to use"—again, a search engine, which Jesse had not
-himself built, using the Windows filesharing system, which Jesse had
-not himself built, to enable members of the RPI community to get
-access to content, which Jesse had not himself created or posted, and
-the vast majority of which had nothing to do with music.
+easier to use"—again, a search engine,
+which Jesse had not himself built, using the Windows filesharing
+system, which Jesse had not himself built, to enable members of the
+RPI community to get access to content, which Jesse had not himself
+created or posted, and the vast majority of which had nothing to do
+with music.
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore "willfully" violated copyright laws. They
- demanded
-that he pay them the damages for his wrong. For cases of
+demanded that he pay them the damages for his wrong. For cases of
"willful infringement," the Copyright Act specifies something lawyers
call "statutory damages." These damages permit a copyright owner to
claim $150,000 per infringement. As the RIAA alleged more than one
-hundred specific copyright infringements, they therefore demanded
-that Jesse pay them at least $15,000,000.
+hundred specific copyright infringements, they therefore demanded that
+Jesse pay them at least $15,000,000.
-Similar lawsuits were brought against three other students: one
-other student at RPI, one at Michigan Technical University, and one at
+Similar lawsuits were brought against three other students: one other
+student at RPI, one at Michigan Technical University, and one at
Princeton. Their situations were similar to Jesse's. Though each case
was different in detail, the bottom line in each was exactly the same:
huge demands for "damages" that the RIAA claimed it was entitled to.
If you added up the claims, these four lawsuits were asking courts in
-the United States to award the plaintiffs close to $100 billion—six
-times the total profit of the film industry in 2001.
+the United States to award the plaintiffs close to $100
+billion—six times the
+total profit of the film industry in
+2001.
+
Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
-Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
+Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
(2003): 5, available at 2003 WL 55179443.
@@ -2690,14 +2695,14 @@ artist makes $45,900.
Occupational Employment Survey, U.S. Dept. of Labor (2001)
(27–2042—Musicians and Singers). See also National Endowment for
-the Arts, More Than One in a Blue Moon (2000).
+the Arts, More Than One in a Blue Moon (2000).
There are plenty of ways for the RIAA to affect
and direct policy. So where is the morality in taking money from a
student for running a search engine?
Douglas Lichtman makes a related point in "KaZaA and Punishment,"
-Wall Street Journal, 10 September 2003, A24.
+Wall Street Journal, 10 September 2003, A24.
@@ -2722,8 +2727,8 @@ 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: "Pirates"
If "piracy" means using the creative property of others without
@@ -2733,14 +2738,15 @@ the content industry is a history of piracy. Every important sector of
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.
I am grateful to Peter DiMauro for pointing me to this extraordinary
-history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
+history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
which details Edison's "adventures" with copyright and patent.
+Vaidhyanathan, Siva
Creators and directors migrated from the East Coast to California in
the early twentieth century in part to escape controls that patents
@@ -2777,8 +2783,8 @@ acquisition of all U.S. film exchanges, except for the one owned by
the independent William Fox who defied the Trust even after his
license was revoked.
-J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
-Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
+J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
+Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
posted at "The Edison Movie Monopoly: The Motion Picture Patents
Company vs. the Independent Outlaws," available at
link #11. For a
@@ -2788,6 +2794,8 @@ Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159.
+General Film Company
+Picker, Randal C.
@@ -2797,7 +2805,7 @@ resisted. "Shooting was disrupted by machinery stolen, and
`accidents' resulting in loss of negatives, equipment, buildings and
sometimes life and limb frequently occurred."
-Marc Wanamaker, "The First Studios," The Silents Majority, archived at
+Marc Wanamaker, "The First Studios," The Silents Majority, archived at
link #12.
That led the independents to flee the East
@@ -2816,8 +2824,8 @@ time), by the time enough federal marshals appeared, the patents had
expired. A new industry had been born, in part from the piracy of
Edison's creative property.
-
-
+
+Recorded Music
The record industry was born of another kind of piracy, though to see
@@ -2870,8 +2878,8 @@ rights.
To Amend and Consolidate the Acts Respecting Copyright: Hearings on
S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th
Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
-of South Dakota, chairman), reprinted in Legislative History of the
-Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
+of South Dakota, chairman), reprinted in Legislative History of the
+Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
@@ -2906,79 +2914,78 @@ introduction of automatic music players has not deprived any composer
of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.
+
To Amend and Consolidate the Acts Respecting Copyright, 283–84
-(statement of Albert Walker, representative of the Auto-Music
- Perforating
-Company of New York).
- In any case, the innovators
-argued, the job of Congress was "to consider first the interest of [the
-public], whom they represent, and whose servants they are." "All talk
-about `theft,'" the general counsel of the American Graphophone
-Company wrote, "is the merest claptrap, for there exists no property in
-ideas musical, literary or artistic, except as defined by statute."
+(statement of Albert Walker, representative of the Auto-Music
+Perforating Company of New York).
+ In any case, the innovators argued, the job of
+Congress was "to consider first the interest of [the public], whom
+they represent, and whose servants they are." "All talk about
+`theft,'" the general counsel of the American Graphophone Company
+wrote, "is the merest claptrap, for there exists no property in ideas
+musical, literary or artistic, except as defined by
+statute."
-To Amend and Consolidate the Acts Respecting Copyright, 376
- (prepared
-memorandum of Philip Mauro, general patent counsel of the
- American
+To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
+memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
-The law soon resolved this battle in favor of the composer and
-the recording artist. Congress amended the law to make sure that
-composers would be paid for the "mechanical reproductions" of their
-music. But rather than simply granting the composer complete
- control
-over the right to make mechanical reproductions, Congress gave
-recording artists a right to record the music, at a price set by Congress,
-once the composer allowed it to be recorded once. This is the part of
+The law soon resolved this battle in favor of the composer
+and the recording artist. Congress amended the
+law to make sure that composers would be paid for the "mechanical
+reproductions" of their music. But rather than simply granting the
+composer complete control over the right to make mechanical
+reproductions, Congress gave recording artists a right to record the
+music, at a price set by Congress, once the composer allowed it to be
+recorded once. This is the part of
-copyright law that makes cover songs possible. Once a composer
- authorizes
-a recording of his song, others are free to record the same
+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.
American law ordinarily calls this a "compulsory license," but I will
-refer to it as a "statutory license." A statutory license is a license whose
-key terms are set by law. After Congress's amendment of the Copyright
-Act in 1909, record companies were free to distribute copies of
- recordings
-so long as they paid the composer (or copyright holder) the fee set
-by the statute.
+refer to it as a "statutory license." A statutory license is a license
+whose key terms are set by law. After Congress's amendment of the
+Copyright Act in 1909, record companies were free to distribute copies
+of recordings so long as they paid the composer (or copyright holder)
+the fee set by the statute.
This is an exception within the law of copyright. When John Grisham
-writes a novel, a publisher is free to publish that novel only if Grisham
-gives the publisher permission. Grisham, in turn, is free to charge
- whatever
-he wants for that permission. The price to publish Grisham is
-thus set by Grisham, and copyright law ordinarily says you have no
-permission to use Grisham's work except with permission of Grisham.
+writes a novel, a publisher is free to publish that novel only if
+Grisham gives the publisher permission. Grisham, in turn, is free to
+charge whatever he wants for that permission. The price to publish
+Grisham is thus set by Grisham, and copyright law ordinarily says you
+have no permission to use Grisham's work except with permission of
+Grisham.
+Grisham, John
-Beatles
But the law governing recordings gives recording artists less. And
-thus, in effect, the law subsidizes the recording industry through a kind
-of piracy—by giving recording artists a weaker right than it otherwise
-gives creative authors. The Beatles have less control over their creative
-work than Grisham does. And the beneficiaries of this less control are
-the recording industry and the public. The recording industry gets
-something of value for less than it otherwise would pay; the public gets
-access to a much wider range of musical creativity. Indeed, Congress
-was quite explicit about its reasons for granting this right. Its fear was
-the monopoly power of rights holders, and that that power would
- stifle
-follow-on creativity.
+thus, in effect, the law subsidizes the recording
+industry through a kind of piracy—by giving recording artists a
+weaker right than it otherwise gives creative authors. The Beatles
+have less control over their creative work than Grisham does. And the
+beneficiaries of this less control are the recording industry and the
+public. The recording industry gets something of value for less than
+it otherwise would pay; the public gets access to a much wider range
+of musical creativity. Indeed, Congress was quite explicit about its
+reasons for granting this right. Its fear was the monopoly power of
+rights holders, and that that power would stifle follow-on
+creativity.
+
Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st
sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
-in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and
+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,
@@ -2991,21 +2998,17 @@ relates,
the record producers argued vigorously that the compulsory
license system must be retained. They asserted that the record
- industry
-is a half-billion-dollar business of great economic
- importance
-in the United States and throughout the world; records
-today are the principal means of disseminating music, and this
-creates special problems, since performers need unhampered
- access
-to musical material on nondiscriminatory terms. Historically,
-the record producers pointed out, there were no recording rights
-before 1909 and the 1909 statute adopted the compulsory license
-as a deliberate anti-monopoly condition on the grant of these
-rights. They argue that the result has been an outpouring of
-recorded music, with the public being given lower prices,
- improved
-quality, and a greater choice.
+industry is a half-billion-dollar business of great economic
+importance in the United States and throughout the world; records
+today are the principal means of disseminating music, and this creates
+special problems, since performers need unhampered access to musical
+material on nondiscriminatory terms. Historically, the record
+producers pointed out, there were no recording rights before 1909 and
+the 1909 statute adopted the compulsory license as a deliberate
+anti-monopoly condition on the grant of these rights. They argue that
+the result has been an outpouring of recorded music, with the public
+being given lower prices, improved quality, and a greater
+choice.
Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
@@ -3014,12 +3017,11 @@ this report.
-By limiting the rights musicians have, by partially pirating their
- creative
-work, the record producers, and the public, benefit.
+By limiting the rights musicians have, by partially pirating their
+creative work, the record producers, and the public, benefit.
-
-
+
+Radio
Radio was also born of piracy.
@@ -3028,53 +3030,50 @@ Radio was also born of piracy.
When a radio station plays a record on the air, that constitutes a
"public performance" of the composer's work.
-See 17 United States Code, sections 106 and 110. At the beginning, record
-companies printed "Not Licensed for Radio Broadcast" and other
- messages
-purporting to restrict the ability to play a record on a radio station.
-Judge Learned Hand rejected the argument that a warning attached to a
-record might restrict the rights of the radio station. See RCA
- Manufacturing
-Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C.
-Picker, "From Edison to the Broadcast Flag: Mechanisms of Consent and
-Refusal and the Propertization of Copyright," University of Chicago Law
-Review 70 (2003): 281.
-
-As I described above,
-the law gives the composer (or copyright holder) an exclusive right to
-public performances of his work. The radio station thus owes the
- composer
-money for that performance.
-
-
-But when the radio station plays a record, it is not only performing
-a copy of the composer's work. The radio station is also performing a
-copy of the recording artist's work. It's one thing to have "Happy
- Birthday"
-sung on the radio by the local children's choir; it's quite another to
-have it sung by the Rolling Stones or Lyle Lovett. The recording artist
-is adding to the value of the composition performed on the radio
- station.
-And if the law were perfectly consistent, the radio station would
-have to pay the recording artist for his work, just as it pays the
- composer
-of the music for his work.
+See 17 United States Code, sections 106 and 110. At the beginning,
+record companies printed "Not Licensed for Radio Broadcast" and other
+messages purporting to restrict the ability to play a record on a
+radio station. Judge Learned Hand rejected the argument that a
+warning attached to a record might restrict the rights of the radio
+station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86 (2nd
+Cir. 1940). See also Randal C. Picker, "From Edison to the Broadcast
+Flag: Mechanisms of Consent and Refusal and the Propertization of
+Copyright," University of Chicago Law Review 70 (2003): 281.
+Hand, Learned
+Picker, Randal C.
+
+As I described above, the law gives the composer (or copyright holder)
+an exclusive right to public performances of his work. The radio
+station thus owes the composer money for that performance.
+
+
+But when the radio station plays a record, it is not only performing a
+copy of the composer's work. The radio station is
+also performing a copy of the recording artist's
+work. It's one thing to have "Happy Birthday" sung on the radio by the
+local children's choir; it's quite another to have it sung by the
+Rolling Stones or Lyle Lovett. The recording artist is adding to the
+value of the composition performed on the radio station. And if the
+law were perfectly consistent, the radio station would have to pay the
+recording artist for his work, just as it pays the composer of the
+music for his work.
+Lovett, Lyle
-But it doesn't. Under the law governing radio performances, the
- radio
+But it doesn't. Under the law governing radio performances, the radio
station does not have to pay the recording artist. The radio station
-need only pay the composer. The radio station thus gets a bit of
- something
-for nothing. It gets to perform the recording artist's work for
-free, even if it must pay the composer something for the privilege of
-playing the song.
+need only pay the composer. The radio station thus gets a bit of
+something for nothing. It gets to perform the recording artist's work
+for free, even if it must pay the composer something for the privilege
+of playing the song.
+
+ Madonna
+
-This difference can be huge. Imagine you compose a piece of
- music.
+This difference can be huge. Imagine you compose a piece of music.
Imagine it is your first. You own the exclusive right to authorize
public performances of that music. So if Madonna wants to sing your
song in public, she has to get your permission.
@@ -3082,23 +3081,24 @@ song in public, she has to get your permission.
Imagine she does sing your song, and imagine she likes it a lot. She
then decides to make a recording of your song, and it becomes a top
-hit. Under our law, every time a radio station plays your song, you get
-some money. But Madonna gets nothing, save the indirect effect on
+hit. Under our law, every time a radio station plays your song, you
+get some money. But Madonna gets nothing, save the indirect effect on
the sale of her CDs. The public performance of her recording is not a
-"protected" right. The radio station thus gets to pirate the value of
-Madonna's work without paying her anything.
+"protected" right. The radio station thus gets to
+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
-performance rights they give up. Maybe. But even if so, the law
- ordinarily
-gives the creator the right to make this choice. By making the
-choice for him or her, the law gives the radio station the right to take
-something for nothing.
-
-
-
+performance rights they give up. Maybe. But even if so, the law
+ordinarily gives the creator the right to make this choice. By making
+the choice for him or her, the law gives the radio station the right
+to take something for nothing.
+
+
+Cable TV
@@ -3191,7 +3191,9 @@ how far back they should carry their right to compensation.
Copyright Law Revision—CATV, 216 (statement of Edwin M.
Zimmerman, acting assistant attorney general).
+Zimmerman, Edwin
+Zimmerman, Edwin
@@ -3216,23 +3218,23 @@ 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
+See, for example, National Music Publisher's Association, The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
-Information, available at
+Information, available at
link #13. "The
threat of piracy—the use of someone else's creative work without
permission or compensation—has grown with the Internet."
-— then every industry affected by copyright today is the product
-and beneficiary of a certain kind of piracy. Film, records, radio,
-cable TV. . . . The list is long and could well be expanded. Every
-generation welcomes the pirates from the last. Every
-generation—until now.
+— then every industry affected by copyright
+today is the product and beneficiary of a certain kind of
+piracy. Film, records, radio, cable TV. . . . The list is long and
+could well be expanded. Every generation welcomes the pirates from the
+last. Every generation—until now.
-
-
-
+
+
+CHAPTER FIVE: "Piracy"
There is piracy of copyrighted material. Lots of it. This piracy comes
@@ -3252,7 +3254,7 @@ outright copying, and the law should account for that ambiguity, as it
has so often done in the past.
-
+Piracy I
All across the world, but especially in Asia and Eastern Europe, there
@@ -3261,15 +3263,14 @@ content, copy it, and sell it—all without the permission of a copyright
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy
-See IFPI (International Federation of the Phonographic Industry), The
-Recording Industry Commercial Piracy Report 2003, July 2003, available at
-
-link #14. See also Ben Hunt, "Companies Warned on Music Piracy Risk,"
-Financial Times, 14 February 2003, 11.
+See IFPI (International Federation of the Phonographic Industry), The
+Recording Industry Commercial Piracy Report 2003, July 2003, available
+at link #14. See
+also Ben Hunt, "Companies Warned on Music Piracy Risk," Financial
+Times, 14 February 2003, 11.
-(that works out to one in three CDs sold
-worldwide). The MPAA estimates that it loses $3 billion annually
-worldwide to piracy.
+(that works out to one in three CDs sold worldwide). The MPAA
+estimates that it loses $3 billion annually worldwide to piracy.
This is piracy plain and simple. Nothing in the argument of this
@@ -3280,34 +3281,30 @@ This piracy is wrong.
Which is not to say that excuses and justifications couldn't be made
for it. We could, for example, remind ourselves that for the first one
-hundred years of the American Republic, America did not honor
- foreign
+hundred years of the American Republic, America did not honor foreign
copyrights. We were born, in this sense, a pirate nation. It might
-therefore seem hypocritical for us to insist so strongly that other
- developing
-nations treat as wrong what we, for the first hundred years of our
-existence, treated as right.
+therefore seem hypocritical for us to insist so strongly that other
+developing nations treat as wrong what we, for the first hundred years
+of our existence, treated as right.
That excuse isn't terribly strong. Technically, our law did not ban
the taking of foreign works. It explicitly limited itself to American
works. Thus the American publishers who published foreign works
without the permission of foreign authors were not violating any rule.
-The copy shops in Asia, by contrast, are violating Asian law. Asian law
-does protect foreign copyrights, and the actions of the copy shops
- violate
-that law. So the wrong of piracy that they engage in is not just a
-moral wrong, but a legal wrong, and not just an internationally legal
-wrong, but a locally legal wrong as well.
+The copy shops in Asia, by contrast, are violating Asian law. Asian
+law does protect foreign copyrights, and the actions of the copy shops
+violate that law. So the wrong of piracy that they engage in is not
+just a moral wrong, but a legal wrong, and not just an internationally
+legal wrong, but a locally legal wrong as well.
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.
+pirate nation, but we will not allow any other nation to have a
+similar childhood.
If a country is to be treated as a sovereign, however, then its laws are
@@ -3315,8 +3312,8 @@ its laws regardless of their source. The international law under which
these nations live gives them some opportunities to escape the burden
of intellectual property law.
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
+Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
209. The Trade-Related Aspects of Intellectual Property Rights
(TRIPS) agreement obligates member nations to create administrative
and enforcement mechanisms for intellectual property rights, a costly
@@ -3343,12 +3340,13 @@ bought those American CDs at $15 a copy. So no one really has any
less money than they otherwise would have had.
For an analysis of the economic impact of copying technology, see Stan
-Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
-144–90. "In some instances . . . the impact of piracy on the copyright holder's
-ability to appropriate the value of the work will be negligible. One obvious
- instance
-is the case where the individual engaging in pirating would not have
-purchased an original even if pirating were not an option." Ibid., 149.
+Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
+144–90. "In some instances . . . the impact of piracy on the
+copyright holder's ability to appropriate the value of the work will
+be negligible. One obvious instance is the case where the individual
+engaging in pirating would not have purchased an original even if
+pirating were not an option." Ibid., 149.
+Liebowitz, Stan
@@ -3366,66 +3364,62 @@ 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 property right. Like all
- property
-rights, the copyright gives the owner the right to decide the terms
-under which content is shared. If the copyright owner doesn't want to
-sell, she doesn't have to. There are exceptions: important statutory
- licenses
-that apply to copyrighted content regardless of the wish of the
-copyright owner. Those licenses give people the right to "take"
- copyrighted
-content whether or not the copyright owner wants to sell. But
+property right of a very special sort, it is a
+property right. Like all property rights, the copyright gives the
+owner the right to decide the terms under which content is shared. If
+the copyright owner doesn't want to sell, she doesn't have to. There
+are exceptions: important statutory licenses that apply to copyrighted
+content regardless of the wish of the copyright owner. Those licenses
+give people the right to "take" copyrighted content whether or not the
+copyright owner wants to sell. But
where the law does not give people the right to take content, it is
wrong to take that content even if the wrong does no harm. If we have
-a property system, and that system is properly balanced to the
- technology
-of a time, then it is wrong to take property without the permission
-of a property owner. That is exactly what "property" means.
-
-
-Finally, we could try to excuse this piracy with the argument that
-the piracy actually helps the copyright owner. When the Chinese
-"steal" Windows, that makes the Chinese dependent on Microsoft.
-Microsoft loses the value of the software that was taken. But it gains
-users who are used to life in the Microsoft world. Over time, as the
- nation
-grows more wealthy, more and more people will buy software
-rather than steal it. And hence over time, because that buying will
- benefit
+a property system, and that system is properly balanced to the
+technology of a time, then it is wrong to take property without the
+permission of a property owner. That is exactly what "property" means.
+
+
+Finally, we could try to excuse this piracy with the argument that the
+piracy actually helps the copyright owner. When the Chinese "steal"
+Windows, that makes the Chinese dependent on Microsoft. Microsoft
+loses the value of the software that was taken. But it gains users who
+are used to life in the Microsoft world. Over time, as the nation
+grows more wealthy, more and more people will buy software rather than
+steal it. And hence over time, because that buying will benefit
Microsoft, Microsoft benefits from the piracy. If instead of pirating
Microsoft Windows, the Chinese used the free GNU/Linux operating
-system, then these Chinese users would not eventually be buying
- Microsoft.
-Without piracy, then, Microsoft would lose.
+system, then these Chinese users would not eventually be buying
+Microsoft. Without piracy, then, Microsoft would lose.
+Linux operating system
+
+Microsoft
+Windows operating system of
+
+Windows
-This argument, too, is somewhat true. The addiction strategy is a
-good one. Many businesses practice it. Some thrive because of it. Law
+This argument, too, is somewhat true. The addiction strategy is a good
+one. Many businesses practice it. Some thrive because of it. Law
students, for example, are given free access to the two largest legal
-databases. The companies marketing both hope the students will
- become
+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).
-Still, the argument is not terribly persuasive. We don't give the
- alcoholic
-a defense when he steals his first beer, merely because that will
-make it more likely that he will buy the next three. Instead, we
- ordinarily
-allow businesses to decide for themselves when it is best to give
-their product away. If Microsoft fears the competition of GNU/Linux,
-then Microsoft can give its product away, as it did, for example, with
-Internet Explorer to fight Netscape. A property right means
- giving
-the property owner the right to say who gets access to what—at
-least ordinarily. And if the law properly balances the rights of the
- copyright
-owner with the rights of access, then violating the law is still
-wrong.
+Still, the argument is not terribly persuasive. We don't give the
+alcoholic a defense when he steals his first beer, merely because that
+will make it more likely that he will buy the next three. Instead, we
+ordinarily allow businesses to decide for themselves when it is best
+to give their product away. If Microsoft fears the competition of
+GNU/Linux, then Microsoft can give its product away, as it did, for
+example, with Internet Explorer to fight Netscape. A property right
+means giving the property owner the right to say who gets access to
+what—at least ordinarily. And if the law properly balances the
+rights of the copyright owner with the rights of access, then
+violating the law is still wrong.
+Linux operating system
@@ -3461,18 +3455,17 @@ TV, no one is selling the content that is shared on p2p services.
These differences distinguish p2p sharing from true piracy. They
-should push us to find a way to protect artists while enabling this
- sharing
-to survive.
+should push us to find a way to protect artists while enabling this
+sharing to survive.
-
-
+
+Piracy II
The key to the "piracy" that the law aims to quash is a use that "rob[s]
the author of [his] profit."
-Bach v. Longman, 98 Eng. Rep. 1274 (1777).
+Bach v. Longman, 98 Eng. Rep. 1274 (1777).
This means we must determine whether
and how much p2p sharing harms before we know how strongly the
@@ -3481,24 +3474,24 @@ law should seek to either prevent it or find an alternative to assure the
author of his profit.
-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
+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
-See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
-National Bestseller That Changed the Way We Do Business (New York:
+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
-that give rise to and dominate a product area are frequently unable to come
-up with the most creative, paradigm-shifting uses for their own products.
-This job usually falls to outside innovators, who reassemble existing
- technology
-in inventive ways. For a discussion of Christensen's ideas, see
-Lawrence Lessig, Future, 89–92, 139.
+that give rise to and dominate a product area are frequently unable to
+come up with the most creative, paradigm-shifting uses for their own
+products. This job usually falls to outside innovators, who
+reassemble existing technology in inventive ways. For a discussion of
+Christensen's ideas, see Lawrence Lessig, Future, 89–92, 139.
+
+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,
@@ -3506,14 +3499,12 @@ Napster amassed over 10 million users within nine months. After
eighteen months, there were close to 80 million registered users of the
system.
-See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare,"
-San Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
-New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
-Secures New Financing," San Francisco Chronicle, 23 May 2003, C1;
- "Napster's
-Wake-Up Call," Economist, 24 June 2000, 23; John Naughton,
- "Hollywood
-at War with the Internet" (London) Times, 26 July 2002, 18.
+See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," San
+Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
+New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
+Secures New Financing," San Francisco Chronicle, 23 May 2003, C1;
+"Napster's Wake-Up Call," Economist, 24 June 2000, 23; John Naughton,
+"Hollywood at War with the Internet" (London) Times, 26 July 2002, 18.
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
@@ -3524,39 +3515,37 @@ p2p system, you can share your favorite songs with your best friend—
or your 20,000 best friends.
-According to a number of estimates, a huge proportion of
- Americans
+According to a number of estimates, a huge proportion of Americans
have tasted file-sharing technology. A study by Ipsos-Insight in
September 2002 estimated that 60 million Americans had downloaded
music—28 percent of Americans older than 12.
+
-See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
+See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
(September 2002), reporting that 28 percent of Americans aged twelve
and older have downloaded music off of the Internet and 30 percent have
listened to digital music files stored on their computers.
-A survey by the NPD
-group quoted in The New York Times estimated that 43 million citizens
-used file-sharing networks to exchange content in May 2003.
+A survey by the NPD group quoted in The New York Times
+estimated that 43 million citizens used file-sharing networks to
+exchange content in May 2003.
-Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
-York Times, 6 June 2003, A1.
+Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
+York Times, 6 June 2003, A1.
-The vast
-majority of these are not kids. Whatever the actual figure, a massive
-quantity of content is being "taken" on these networks. The ease and
-inexpensiveness of file-sharing networks have inspired millions to
- enjoy
-music in a way that they hadn't before.
+The vast majority of these are not kids. Whatever the actual figure, a
+massive quantity of content is being "taken" on these networks. The
+ease and inexpensiveness of file-sharing networks have inspired
+millions to enjoy music in a way that they hadn't before.
-Some of this enjoying involves copyright infringement. Some of it
-does not. And even among the part that is technically copyright
- infringement,
-calculating the actual harm to copyright owners is more
-complicated than one might think. So consider—a bit more carefully
-than the polarized voices around this debate usually do—the kinds of
-sharing that file sharing enables, and the kinds of harm it entails.
+Some of this enjoying involves copyright infringement. Some of it does
+not. And even among the part that is technically copyright
+infringement, calculating the actual harm to copyright owners is more
+complicated than one might think. So consider—a bit more
+carefully than the polarized voices around this debate usually
+do—the kinds of sharing that file sharing enables, and the kinds
+of harm it entails.
@@ -3566,48 +3555,40 @@ different kinds into four types.
-There are some who use sharing networks as substitutes for
- purchasing
-content. Thus, when a new Madonna CD is released,
-rather than buying the CD, these users simply take it. We might
-quibble about whether everyone who takes it would actually
-have bought it if sharing didn't make it available for free. Most
-probably wouldn't have, but clearly there are some who would.
-The latter are the target of category A: users who download
- instead
-of purchasing.
+There are some who use sharing networks as substitutes for purchasing
+content. Thus, when a new Madonna CD is released, rather than buying
+the CD, these users simply take it. We might quibble about whether
+everyone who takes it would actually have bought it if sharing didn't
+make it available for free. Most probably wouldn't have, but clearly
+there are some who would. The latter are the target of category A:
+users who download instead of purchasing.
+Madonna
There are some who use sharing networks to sample music before
-purchasing it. Thus, a friend sends another friend an MP3 of an
-artist he's not heard of. The other friend then buys CDs by that
-artist. This is a kind of targeted advertising, quite likely to
- succeed.
-If the friend recommending the album gains nothing from
-a bad recommendation, then one could expect that the
- recommendations
-will actually be quite good. The net effect of this
-sharing could increase the quantity of music purchased.
+purchasing it. Thus, a friend sends another friend an MP3 of an artist
+he's not heard of. The other friend then buys CDs by that artist. This
+is a kind of targeted advertising, quite likely to succeed. If the
+friend recommending the album gains nothing from a bad recommendation,
+then one could expect that the recommendations will actually be quite
+good. The net effect of this sharing could increase the quantity of
+music purchased.
-There are many who use sharing networks to get access to
- copyrighted
-content that is no longer sold or that they would not
-have purchased because the transaction costs off the Net are too
-high. This use of sharing networks is among the most
- rewarding
-for many. Songs that were part of your childhood but have
-long vanished from the marketplace magically appear again on
-the network. (One friend told me that when she discovered
-Napster, she spent a solid weekend "recalling" old songs. She
-was astonished at the range and mix of content that was
- available.)
-For content not sold, this is still technically a violation of
-copyright, though because the copyright owner is not selling the
-content anymore, the economic harm is zero—the same harm
-that occurs when I sell my collection of 1960s 45-rpm records to
+There are many who use sharing networks to get access to copyrighted
+content that is no longer sold or that they would not have purchased
+because the transaction costs off the Net are too high. This use of
+sharing networks is among the most rewarding for many. Songs that were
+part of your childhood but have long vanished from the marketplace
+magically appear again on the network. (One friend told me that when
+she discovered Napster, she spent a solid weekend "recalling" old
+songs. She was astonished at the range and mix of content that was
+available.) For content not sold, this is still technically a
+violation of copyright, though because the copyright owner is not
+selling the content anymore, the economic harm is zero—the same
+harm that occurs when I sell my collection of 1960s 45-rpm records to
a local collector.
@@ -3622,60 +3603,53 @@ wants to give away.
How do these different types of sharing balance out?
-Let's start with some simple but important points. From the
- perspective
-of the law, only type D sharing is clearly legal. From the
-perspective of economics, only type A sharing is clearly harmful.
+Let's start with some simple but important points. From the
+perspective of the law, only type D sharing is clearly legal. From the
+perspective of economics, only type A sharing is clearly
+harmful.
-See Liebowitz, Rethinking the Network Economy,148–49.
-
-Type B sharing is illegal but plainly beneficial. Type C sharing is
- illegal,
-yet good for society (since more exposure to music is good) and
-harmless to the artist (since the work is not otherwise available). So
-how sharing matters on balance is a hard question to answer—and
- certainly
-much more difficult than the current rhetoric around the issue
-suggests.
-
-
-Whether on balance sharing is harmful depends importantly on
-how harmful type A sharing is. Just as Edison complained about
- Hollywood,
-composers complained about piano rolls, recording artists
-complained about radio, and broadcasters complained about cable TV,
-the music industry complains that type A sharing is a kind of "theft"
-that is "devastating" the industry.
-
-
-While the numbers do suggest that sharing is harmful, how
- harmful
-is harder to reckon. It has long been the recording industry's
- practice
-to blame technology for any drop in sales. The history of cassette
-recording is a good example. As a study by Cap Gemini Ernst &
-Young put it, "Rather than exploiting this new, popular technology, the
-labels fought it."
+See Liebowitz, Rethinking the Network Economy, 148–49.
+Liebowitz, Stan
+
+Type B sharing is illegal but plainly beneficial. Type C sharing is
+illegal, yet good for society (since more exposure to music is good)
+and harmless to the artist (since the work is not otherwise
+available). So how sharing matters on balance is a hard question to
+answer—and certainly much more difficult than the current
+rhetoric around the issue suggests.
+
+
+Whether on balance sharing is harmful depends importantly on how
+harmful type A sharing is. Just as Edison complained about Hollywood,
+composers complained about piano rolls, recording artists complained
+about radio, and broadcasters complained about cable TV, the music
+industry complains that type A sharing is a kind of "theft" that is
+"devastating" the industry.
+
+
+While the numbers do suggest that sharing is harmful, how
+harmful is harder to reckon. It has long been the recording industry's
+practice to blame technology for any drop in sales. The history of
+cassette recording is a good example. As a study by Cap Gemini Ernst
+& Young put it, "Rather than exploiting this new, popular
+technology, the labels fought it."
-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 practice of cassette taping in the
-1970s, including an advertising campaign featuring a cassette-shape skull
-and the caption "Home taping is killing music."
-At the time digital audio tape became a threat, the Office of Technical
-Assessment conducted a survey of consumer behavior. In 1988, 40 percent
-of consumers older than ten had taped music to a cassette format. U.S.
-Congress, Office of Technology Assessment, Copyright and Home Copying:
-Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
-Government Printing Office, October 1989), 145–56.
-
-The labels claimed that every album taped was an
-album unsold, and when record sales fell by 11.4 percent in 1981, the
-industry claimed that its point was proved. Technology was the
- problem,
-and banning or regulating technology was the answer.
+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
+practice of cassette taping in the 1970s, including an advertising
+campaign featuring a cassette-shape skull and the caption "Home taping
+is killing music." At the time digital audio tape became a threat,
+the Office of Technical Assessment conducted a survey of consumer
+behavior. In 1988, 40 percent of consumers older than ten had taped
+music to a cassette format. U.S. Congress, Office of Technology
+Assessment, Copyright and Home Copying: Technology Challenges the Law,
+OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office,
+October 1989), 145–56.
+The labels claimed that every album taped was an album unsold, and
+when record sales fell by 11.4 percent in 1981, the industry claimed
+that its point was proved. Technology was the problem, and banning or
+regulating technology was the answer.
Yet soon thereafter, and before Congress was given an opportunity
@@ -3686,7 +3660,7 @@ not the fault of the tapers—who did not [stop after MTV came into
being]—but had to a large extent resulted from stagnation in musical
innovation at the major labels."
-U.S. Congress, Copyright and Home Copying, 4.
+U.S. Congress, Copyright and Home Copying, 4.
@@ -3696,49 +3670,50 @@ the industry in particular, and society in general—or at least
the society that inherits the tradition that gave us the film
industry, the record industry, the radio industry, cable TV, and the
VCR—the question is not simply whether type A sharing is
-harmful. The question is also how harmful type A sharing is, and how
-beneficial the other types of sharing are.
+harmful. The question is also how harmful type A
+sharing is, and how beneficial the other types of sharing are.
-We start to answer this question by focusing on the net harm, from
-the standpoint of the industry as a whole, that sharing networks cause.
+We start to answer this question by focusing on the net harm, from the
+standpoint of the industry as a whole, that sharing networks cause.
The "net harm" to the industry as a whole is the amount by which type
A sharing exceeds type B. If the record companies sold more records
through sampling than they lost through substitution, then sharing
-networks would actually benefit music companies on balance. They
-would therefore have little static reason to resist them.
+networks would actually benefit music companies on balance. They would
+therefore have little static reason to resist
+them.
+
-Could that be true? Could the industry as a whole be gaining
- because
-of file sharing? Odd as that might sound, the data about CD
-sales actually suggest it might be close.
+Could that be true? Could the industry as a whole be gaining because
+of file sharing? Odd as that might sound, the data about CD sales
+actually suggest it might be close.
-In 2002, the RIAA reported that CD sales had fallen by 8.9
- percent,
-from 882 million to 803 million units; revenues fell 6.7 percent.
+In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
+from 882 million to 803 million units; revenues fell 6.7
+percent.
-See Recording Industry Association of America, 2002 Yearend Statistics,
+See Recording Industry Association of America, 2002 Yearend Statistics,
available at
-link #15. A later report indicates even greater losses. See
-Recording Industry Association of America, Some Facts About Music Piracy,
-25 June 2003, available at
-link #16: "In the past four years, unit shipments
-of recorded music have fallen by 26 percent from 1.16 billion units in
-to 860 million units in 2002 in the United States (based on units shipped).
-In terms of sales, revenues are down 14 percent, from $14.6 billion in
-to $12.6 billion last year (based on U.S. dollar value of shipments). The
- music
+link #15. A later
+report indicates even greater losses. See Recording Industry
+Association of America, Some Facts About Music Piracy, 25 June 2003,
+available at link
+#16: "In the past four years, unit shipments of recorded music
+have fallen by 26 percent from 1.16 billion units in to 860 million
+units in 2002 in the United States (based on units shipped). In terms
+of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
+billion last year (based on U.S. dollar value of shipments). The music
industry worldwide has gone from a $39 billion industry in 2000 down
-to a $32 billion industry in 2002 (based on U.S. dollar value of shipments)."
+to a $32 billion industry in 2002 (based on U.S. dollar value of
+shipments)."
-This confirms a trend over the past few years. The RIAA blames
- Internet
-piracy for the trend, though there are many other causes that
+This confirms a trend over the past few years. The RIAA blames
+Internet piracy for the trend, though there are many other causes that
could account for this drop. SoundScan, for example, reports a more
-than 20 percent drop in the number of CDs released since 1999. That
-no doubt accounts for some of the decrease in sales. Rising prices could
+than 20 percent drop in the number of CDs released since 1999. That no
+doubt accounts for some of the decrease in sales. Rising prices could
account for at least some of the loss. "From 1999 to 2001, the average
price of a CD rose 7.2 percent, from $13.04 to $14.19."
@@ -3749,10 +3724,11 @@ February 2003, available at
Black, Jane
-Competition from other forms of media could also account for some of the
-decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film
-High Fidelity has a list price of $18.98. You could get the whole movie
-[on DVD] for $19.99."
+Competition from other forms of media could also account for some of
+the decline. As Jane Black of BusinessWeek notes, "The
+soundtrack to the film High Fidelity has a list price of
+$18.98. You could get the whole movie [on DVD] for
+$19.99."
Ibid.
@@ -3760,75 +3736,65 @@ Ibid.
-But let's assume the RIAA is right, and all of the decline in CD
-sales is because of Internet sharing. Here's the rub: In the same period
+But let's assume the RIAA is right, and all of the decline in CD sales
+is because of Internet sharing. Here's the rub: In the same period
that the RIAA estimates that 803 million CDs were sold, the RIAA
-estimates that 2.1 billion CDs were downloaded for free. Thus,
- although
-2.6 times the total number of CDs sold were downloaded for
+estimates that 2.1 billion CDs were downloaded for free. Thus,
+although 2.6 times the total number of CDs sold were downloaded for
free, sales revenue fell by just 6.7 percent.
There are too many different things happening at the same time to
explain these numbers definitively, but one conclusion is unavoidable:
-The recording industry constantly asks, "What's the difference
- between
-downloading a song and stealing a CD?"—but their own
- numbers
+The recording industry constantly asks, "What's the difference between
+downloading a song and stealing a CD?"—but their own numbers
reveal the difference. If I steal a CD, then there is one less CD to
sell. Every taking is a lost sale. But on the basis of the numbers the
RIAA provides, it is absolutely clear that the same is not true of
-downloads. If every download were a lost sale—if every use of Kazaa
-"rob[bed] the author of [his] profit"—then the industry would have
-suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6
-times the number of CDs sold were downloaded for free, and yet sales
-revenue dropped by just 6.7 percent, then there is a huge difference
- between
-"downloading a song and stealing a CD."
+downloads. If every download were a lost sale—if every use of
+Kazaa "rob[bed] the author of [his] profit"—then the industry
+would have suffered a 100 percent drop in sales last year, not a 7
+percent drop. If 2.6 times the number of CDs sold were downloaded for
+free, and yet sales revenue dropped by just 6.7 percent, then there is
+a huge difference between "downloading a song and stealing a CD."
-These are the harms—alleged and perhaps exaggerated but, let's
- assume,
-real. What of the benefits? File sharing may impose costs on the
-recording industry. What value does it produce in addition to these
-costs?
+These are the harms—alleged and perhaps exaggerated but, let's
+assume, real. What of the benefits? File sharing may impose costs on
+the recording industry. What value does it produce in addition to
+these costs?
-One benefit is type C sharing—making available content that is
-technically still under copyright but is no longer commercially
- available.
-This is not a small category of content. There are millions of
-tracks that are no longer commercially available.
+One benefit is type C sharing—making available content that
+is technically still under copyright but is no longer commercially
+available. This is not a small category of content. There are
+millions of tracks that are no longer commercially
+available.
-By one estimate, 75 percent of the music released by the major labels is no
-longer in print. See Online Entertainment and Copyright Law—Coming
-Soon to a Digital Device Near You: Hearing Before the Senate
- Committee
-on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared
- statement
-of the Future of Music Coalition), available at
-link #18.
-
-And while it's
- conceivable
-that some of this content is not available because the artist
-producing the content doesn't want it to be made available, the vast
-majority of it is unavailable solely because the publisher or the
- distributor
-has decided it no longer makes economic sense to the company to
-make it available.
+By one estimate, 75 percent of the music released by the major labels
+is no longer in print. See Online Entertainment and Copyright
+Law—Coming Soon to a Digital Device Near You: Hearing Before the
+Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
+2001) (prepared statement of the Future of Music Coalition), available
+at link #18.
+
+And while it's conceivable that some of this content is not available
+because the artist producing the content doesn't want it to be made
+available, the vast majority of it is unavailable solely because the
+publisher or the distributor has decided it no longer makes economic
+sense to the company to make it available.
In real space—long before the Internet—the market had a simple
-response to this problem: used book and record stores. There are
- thousands
-of used book and used record stores in America today.
+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
+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
@@ -3836,15 +3802,14 @@ Association of Recording Merchandisers, "2002 Annual Survey
available at
link #20.
-These
-stores buy content from owners, then sell the content they buy. And
-under American copyright law, when they buy and sell this content,
-even if the content is still under copyright, the copyright owner doesn't get
-a dime. Used book and record stores are commercial entities; their
-owners make money from the content they sell; but as with cable
- companies
-before statutory licensing, they don't have to pay the copyright
-owner for the content they sell.
+These stores buy content from owners, then sell the content they
+buy. And under American copyright law, when they buy and sell this
+content, even if the content is still under
+copyright, the copyright owner doesn't get a dime. Used
+book and record stores are commercial entities; their owners make
+money from the content they sell; but as with cable companies before
+statutory licensing, they don't have to pay the copyright owner for
+the content they sell.
Bernstein, Leonard
@@ -3873,8 +3838,8 @@ Finally, and perhaps most importantly, file-sharing networks enable
type D sharing to occur—the sharing of content that copyright owners
want to have shared or for which there is no continuing copyright. This
sharing clearly benefits authors and society. Science fiction author
-Cory Doctorow, for example, released his first novel, Down and Out in
-the Magic Kingdom, both free on-line and in bookstores on the same
+Cory Doctorow, for example, released his first novel, Down and Out in
+the Magic Kingdom, both free on-line and in bookstores on the same
day. His (and his publisher's) thinking was that the on-line distribution
@@ -3932,10 +3897,11 @@ percent was not good enough. Napster had to push the infringements
See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
MHP, available at
-link #21. For an account of the litigation and its toll on
-Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn
- Fanning's
-Napster (New York: Crown Business, 2003), 269–82.
+
+link #21. For an
+account of the litigation and its toll on Napster, see Joseph Menn,
+All the Rave: The Rise and Fall of Shawn Fanning's Napster (New
+York: Crown Business, 2003), 269–82.
@@ -3952,55 +3918,49 @@ assure that there are zero copyright infringements caused by p2p.
Zero tolerance has not been our history. It has not produced the
content industry that we know today. The history of American law has
-been a process of balance. As new technologies changed the way
- content
-was distributed, the law adjusted, after some time, to the new
- technology.
-In this adjustment, the law sought to ensure the legitimate rights
-of creators while protecting innovation. Sometimes this has meant
-more rights for creators. Sometimes less.
+been a process of balance. As new technologies changed the way content
+was distributed, the law adjusted, after some time, to the new
+technology. In this adjustment, the law sought to ensure the
+legitimate rights of creators while protecting innovation. Sometimes
+this has meant more rights for creators. Sometimes less.
So, as we've seen, when "mechanical reproduction" threatened the
interests of composers, Congress balanced the rights of composers
-against the interests of the recording industry. It granted rights to
- composers,
-but also to the recording artists: Composers were to be paid, but
-at a price set by Congress. But when radio started broadcasting the
-recordings made by these recording artists, and they complained to
-Congress that their "creative property" was not being respected (since
-the radio station did not have to pay them for the creativity it
- broadcast),
-Congress rejected their claim. An indirect benefit was enough.
+against the interests of the recording industry. It granted rights to
+composers, but also to the recording artists: Composers were to be
+paid, but at a price set by Congress. But when radio started
+broadcasting the recordings made by these recording artists, and they
+complained to Congress that their "creative property" was not being
+respected (since the radio station did not have to pay them for the
+creativity it broadcast), Congress rejected their claim. An indirect
+benefit was enough.
Cable TV followed the pattern of record albums. When the courts
rejected the claim that cable broadcasters had to pay for the content
they rebroadcast, Congress responded by giving broadcasters a right to
-compensation, but at a level set by the law. It likewise gave cable
- companies
-the right to the content, so long as they paid the statutory price.
+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.
This compromise, like the compromise affecting records and player
-pianos, served two important goals—indeed, the two central goals of
-any copyright legislation. First, the law assured that new innovators
-would have the freedom to develop new ways to deliver content.
- Second,
-the law assured that copyright holders would be paid for the
- content
-that was distributed. One fear was that if Congress simply
-required cable TV to pay copyright holders whatever they demanded
-for their content, then copyright holders associated with broadcasters
-would use their power to stifle this new technology, cable. But if
- Congress
-had permitted cable to use broadcasters' content for free, then it
-would have unfairly subsidized cable. Thus Congress chose a path that
-would assure compensation without giving the past (broadcasters)
- control
-over the future (cable).
+pianos, served two important goals—indeed, the two central goals
+of any copyright legislation. First, the law assured that new
+innovators would have the freedom to develop new ways to deliver
+content. Second, the law assured that copyright holders would be paid
+for the content that was distributed. One fear was that if Congress
+simply required cable TV to pay copyright holders whatever they
+demanded for their content, then copyright holders associated with
+broadcasters would use their power to stifle this new technology,
+cable. But if Congress had permitted cable to use broadcasters'
+content for free, then it would have unfairly subsidized cable. Thus
+Congress chose a path that would assure
+compensation without giving the past
+(broadcasters) control over the future (cable).
Betamax
@@ -4056,7 +4016,7 @@ Copyright Infringements (Audio and Video Recorders), 475.
Indeed, as surveys would later show,
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,
+Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429,
(C.D. Cal., 1979).
— a use the Court would later hold was not "fair." By
@@ -4074,16 +4034,17 @@ of Jack Valenti).
It took eight years for this case to be resolved by the Supreme
Court. In the interim, the Ninth Circuit Court of Appeals, which
-includes Hollywood in its jurisdiction—leading Judge Alex Kozinski,
-who sits on that court, refers to it as the "Hollywood Circuit"—held
-that Sony would be liable for the copyright infringement made possible
-by its machines. Under the Ninth Circuit's rule, this totally familiar
-technology—which Jack Valenti had called "the Boston Strangler of the
-American film industry" (worse yet, it was a Japanese Boston Strangler
-of the American film industry)—was an illegal
+includes Hollywood in its jurisdiction—leading Judge Alex
+Kozinski, who sits on that court, refers to it as the "Hollywood
+Circuit"—held that Sony would be liable for the copyright
+infringement made possible by its machines. Under the Ninth Circuit's
+rule, this totally familiar technology—which Jack Valenti had
+called "the Boston Strangler of the American film industry" (worse
+yet, it was a Japanese Boston Strangler of the
+American film industry)—was an illegal
technology.
-Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
+Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
1981).
@@ -4107,17 +4068,16 @@ varied permutations of competing interests that are inevitably
implicated
by such new technology.
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
+Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
-Congress was asked to respond to the Supreme Court's decision.
-But as with the plea of recording artists about radio broadcasts,
- Congress
-ignored the request. Congress was convinced that American film
-got enough, this "taking" notwithstanding.
-If we put these cases together, a pattern is clear:
+Congress was asked to respond to the Supreme Court's decision. But as
+with the plea of recording artists about radio broadcasts, Congress
+ignored the request. Congress was convinced that American film got
+enough, this "taking" notwithstanding. If we put these cases
+together, a pattern is clear:
@@ -4834,18 +4780,19 @@ Ibid.
say that the change was profound. The decision of the House of Lords
meant that the booksellers could no longer control how culture in
England would grow and develop. Culture in England was thereafter
-free. Not in the sense that copyrights would not be respected, for of
-course, for a limited time after a work was published, the bookseller
-had an exclusive right to control the publication of that book. And
-not in the sense that books could be stolen, for even after a
-copyright expired, you still had to buy the book from someone. But
-free in the sense that the culture and its growth would no longer be
-controlled by a small group of publishers. As every free market does,
-this free market of free culture would grow as the consumers and
-producers chose. English culture would develop as the many English
-readers chose to let it develop— chose in the books they bought
-and wrote; chose in the memes they repeated and endorsed. Chose in a
-competitive context, not a context in which the choices about what
+free. Not in the sense that copyrights would not
+be respected, for of course, for a limited time after a work was
+published, the bookseller had an exclusive right to control the
+publication of that book. And not in the sense that books could be
+stolen, for even after a copyright expired, you still had to buy the
+book from someone. But free in the sense that the
+culture and its growth would no longer be controlled by a small group
+of publishers. As every free market does, this free market of free
+culture would grow as the consumers and producers chose. English
+culture would develop as the many English readers chose to let it
+develop— chose in the books they bought and wrote; chose in the
+memes they repeated and endorsed. Chose in a competitive
+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.
@@ -4856,8 +4803,8 @@ world where the Parliament is more pliant, free culture would be less
protected.
-
-
+
+CHAPTER SEVEN: Recorders
Jon Else is a filmmaker. He is best known for his documentaries and
@@ -4878,29 +4825,31 @@ 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
During one of the performances, Else was shooting some stagehands
playing checkers. In one corner of the room was a television set.
Playing on the television set, while the stagehands played checkers
-and the opera company played Wagner, was The Simpsons. As Else judged
+and the opera company played Wagner, was The Simpsons. As Else judged
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
Years later, when he finally got funding to complete the film, Else
-attempted to clear the rights for those few seconds of The Simpsons.
+attempted to clear the rights for those few seconds of The Simpsons.
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.
-Else called Simpsons creator Matt Groening's office to get permission.
+Else called Simpsons creator Matt Groening's office to get permission.
Groening approved the shot. The shot was a four-and-a-halfsecond image
on a tiny television set in the corner of the room. How could it hurt?
Groening was happy to have it in the film, but he told Else to contact
Gracie Films, the company that produces the program.
+Gracie Films
Gracie Films was okay with it, too, but they, like Groening, wanted
@@ -4908,6 +4857,7 @@ 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
@@ -4915,7 +4865,7 @@ Then, as Else told me, "two things happened. First we discovered
least that someone [at Fox] believes he doesn't own his own creation."
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."
+Simpsons which was in the corner of the shot."
Else was certain there was a mistake. He worked his way up to someone
@@ -4928,7 +4878,7 @@ confirm what he had been told.
"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
-clip of The Simpsons in the corner of a shot in a documentary film
+clip of The Simpsons in the corner of a shot in a documentary film
about
@@ -4943,24 +4893,26 @@ on the television backstage at the San Francisco Opera. To reproduce
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.
+The Day After Trinity, from ten years before.
+San Francisco Opera
+Day After Trinity, The
There's no doubt that someone, whether Matt Groening or Fox, owns the
-copyright to The Simpsons. That copyright is their property. To use
+copyright to The Simpsons. That copyright is their property. To use
that copyrighted material thus sometimes requires the permission of
the copyright owner. If the use that Else wanted to make of the
-Simpsons copyright were one of the uses restricted by the law, then he
+Simpsons copyright were one of the uses restricted by the law, then he
would need to get the permission of the copyright owner before he
could use the work in that way. And in a free market, it is the owner
of the copyright who gets to set the price for any use that the law
says the owner gets to control.
-For example, "public performance" is a use of The Simpsons that the
+For example, "public performance" is a use of The Simpsons that the
copyright owner gets to control. If you take a selection of favorite
episodes, rent a movie theater, and charge for tickets to come see "My
-Favorite Simpsons," then you need to get permission from the copyright
+Favorite Simpsons," then you need to get permission from the copyright
owner. And the copyright owner (rightly, in my view) can charge
whatever she wants—$10 or $1,000,000. That's her right, as set
by the law.
@@ -4972,11 +4924,11 @@ thought is "fair use."
For an excellent argument that such use is "fair use," but that
lawyers don't permit recognition that it is "fair use," see Richard
A. Posner with William F. Patry, "Fair Use and Statutory Reform in the
-Wake of Eldred " (draft on file with author), University of Chicago
+Wake of Eldred" (draft on file with author), University of Chicago
Law School, 5 August 2003.
-Else's use of just 4.5 seconds of an indirect shot of a Simpsons
-episode is clearly a fair use of The Simpsons—and fair use does
+Else's use of just 4.5 seconds of an indirect shot of a Simpsons
+episode is clearly a fair use of The Simpsons—and fair use does
not require the permission of anyone.
@@ -4985,7 +4937,7 @@ So I asked Else why he didn't just rely upon "fair use." Here's his reply:
-The Simpsons fiasco was for me a great lesson in the gulf between what
+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
relevant in practice to those of us actually trying to make and
broadcast documentaries. I never had any doubt that it was "clearly
@@ -5005,13 +4957,14 @@ shot in the film. They take a dim view of "fair use," and a claim of
I probably never should have asked Matt Groening in the first
place. But I knew (at least from folklore) that Fox had a history of
-tracking down and stopping unlicensed Simpsons usage, just as George
-Lucas had a very high profile litigating Star Wars usage. So I decided
+tracking down and stopping unlicensed Simpsons usage, just as George
+Lucas had a very high profile litigating Star Wars usage. So I decided
to play by the book, thinking that we would be granted free or cheap
-license to four seconds of Simpsons. As a documentary producer working
+license to four seconds of Simpsons. As a documentary producer working
to exhaustion on a shoestring, the last thing I wanted was to risk
legal trouble, even nuisance legal trouble, and even to defend a
principle.
+Lucas, George
@@ -5047,8 +5000,8 @@ matured into a sword that interferes with any use, transformative or
not.
-
-
+
+CHAPTER EIGHT: TransformersAllen, PaulAlben, Alex
@@ -5133,8 +5086,8 @@ tale, Alben recounted just what they did:
So we very mechanically went about looking up the film clips. We made
some artistic decisions about what film clips to include—of
-course we were going to use the "Make my day" clip from Dirty
-Harry. But you then need to get the guy on the ground who's wiggling
+course we were going to use the "Make my day" clip from Dirty
+Harry. But you then need to get the guy on the ground who's wiggling
under the gun and you need to get his permission. And then you have
to decide what you are going to pay him.
@@ -5164,8 +5117,8 @@ cleared the rights to this retrospective CD-ROM on Clint Eastwood's
career.
-It was one year later—"and even then we weren't sure whether we
-were totally in the clear."
+It was one year later—"and even then we
+weren't sure whether we were totally in the clear."
Alben, Alex
@@ -5199,8 +5152,8 @@ this efficiently, but as Peter Drucker has famously quipped, "There is
nothing so useless as doing efficiently that which should not be done
at all."
-U.S. Department of Commerce Office of Acquisition Management, Seven
-Steps to Performance-Based Services Acquisition, available at
+U.S. Department of Commerce Office of Acquisition Management, Seven
+Steps to Performance-Based Services Acquisition, available at
link #22.
Did it make sense, I asked Alben, that this is the way a new work
@@ -5223,13 +5176,14 @@ compensated for that.
-Or at least, is this how the artist should be compensated? Would it
-make sense, I asked, for there to be some kind of statutory license
-that someone could pay and be free to make derivative use of clips
-like this? Did it really make sense that a follow-on creator would
-have to track down every artist, actor, director, musician, and get
-explicit permission from each? Wouldn't a lot more be created if the
-legal part of the creative process could be made to be more clean?
+Or at least, is this how the artist should be
+compensated? Would it make sense, I asked, for there to be some kind
+of statutory license that someone could pay and be free to make
+derivative use of clips like this? Did it really make sense that a
+follow-on creator would have to track down every artist, actor,
+director, musician, and get explicit permission from each? Wouldn't a
+lot more be created if the legal part of the creative process could be
+made to be more clean?
@@ -5282,7 +5236,7 @@ friend, Robert Fairbank, had produced.
The video was a brilliant collage of film from every period in the
-twentieth century, all framed around the idea of a 60 Minutes episode.
+twentieth century, all framed around the idea of a 60 Minutes episode.
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
@@ -5328,6 +5282,7 @@ takes images of politicians and blends them with music to create
biting political commentary. A site called Camp Chaos has produced
some of the most biting criticism of the record industry that there is
through the mixing of Flash! and music.
+Camp Chaos
All of these creations are technically illegal. Even if the creators
@@ -5359,7 +5314,7 @@ 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
+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
@@ -5402,8 +5357,8 @@ process is a process of paying lawyers—again a privilege, or perhaps a
curse, reserved for the few.
-
@@ -7857,8 +7823,9 @@ systems now distribute News Corp. content in Europe and Asia; if
Murdoch becomes DirecTV's largest single owner, that system will serve
the same function in the United States.
-James Fallows, "The Age of Murdoch," Atlantic Monthly (September
+James Fallows, "The Age of Murdoch," Atlantic Monthly (September
2003): 89.
+Fallows, James
@@ -7892,7 +7859,7 @@ integration may matter.
ABCAll in the Family
-In 1969, Norman Lear created a pilot for All in the Family. He took
+In 1969, Norman Lear created a pilot for All in the Family. He took
the pilot to ABC. The network didn't like it. It was too edgy, they told
Lear. Make it again. Lear made a second pilot, more edgy than the
first. ABC was exasperated. You're missing the point, they told Lear.
@@ -7916,61 +7883,57 @@ for the Lear story, not included in the prepared remarks, see
-The network did not control those copyrights because the law
- forbade
-the networks from controlling the content they syndicated. The
-law required a separation between the networks and the content
- producers;
-that separation would guarantee Lear freedom. And as late as
-1992, because of these rules, the vast majority of prime time
- television—75
-percent of it—was "independent" of the networks.
-
-
-In 1994, the FCC abandoned the rules that required this
- independence.
-After that change, the networks quickly changed the balance.
-In 1985, there were twenty-five independent television production
- studios;
-in 2002, only five independent television studios remained. "In
-1992, only 15 percent of new series were produced for a network by a
-company it controlled. Last year, the percentage of shows produced by
-controlled companies more than quintupled to 77 percent." "In 1992,
-16 new series were produced independently of conglomerate control,
-last year there was one."
+The network did not control those copyrights because the law forbade
+the networks from controlling the content they syndicated. The law
+required a separation between the networks and the content producers;
+that separation would guarantee Lear freedom. And as late as 1992,
+because of these rules, the vast majority of prime time
+television—75 percent of it—was "independent" of the
+networks.
+
+
+In 1994, the FCC abandoned the rules that required this independence.
+After that change, the networks quickly changed the balance. In 1985,
+there were twenty-five independent television production studios; in
+2002, only five independent television studios remained. "In 1992,
+only 15 percent of new series were produced for a network by a company
+it controlled. Last year, the percentage of shows produced by
+controlled companies more than quintupled to 77 percent." "In 1992, 16
+new series were produced independently of conglomerate control, last
+year there was one."
-NewsCorp./DirecTV Merger and Media Consolidation: Hearings on
-Media Ownership Before the Senate Commerce Committee, 108th
-Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of
- Consumers
-Union and the Consumer Federation of America), available at
-link #30. Kimmelman quotes Victoria Riskin, president of Writers Guild of
-America, West, in her Remarks at FCC En Banc Hearing, Richmond,
-Virginia, 27 February 2003.
-
-In 2002, 75 percent of prime time television
-was owned by the networks that ran it. "In the ten-year period between
-1992 and 2002, the number of prime time television hours per week
-produced by network studios increased over 200%, whereas the
- number
-of prime time television hours per week produced by independent
-studios decreased 63%."
+NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
+Ownership Before the Senate Commerce Committee, 108th Cong., 1st
+sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
+and the Consumer Federation of America), available at
+link #30. Kimmelman
+quotes Victoria Riskin, president of Writers Guild of America, West,
+in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
+2003.
+
+In 2002, 75 percent of prime time television was owned by the networks
+that ran it. "In the ten-year period between 1992 and 2002, the number
+of prime time television hours per week produced by network studios
+increased over 200%, whereas the number of prime time television hours
+per week produced by independent studios decreased
+63%."
Ibid.
All in the Family
-Today, another Norman Lear with another All in the Family would
+Today, another Norman Lear with another All in the Family would
find that he had the choice either to make the show less edgy or to be
fired: The content of any show developed for a network is increasingly
owned by the network.
-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,
+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
@@ -7979,29 +7942,27 @@ their channel and then distribute worldwide everything that goes
through their controlled distribution system, then what you get is
fewer and fewer actual voices participating in the process. [We
-u]sed to have dozens and dozens of thriving independent
- production
-companies producing television programs. Now you have less
-than a handful.
+u]sed to have dozens and dozens of thriving independent production
+companies producing television programs. Now you have less than a
+handful.
-"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
+"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
Moyers, 25 April 2003, edited transcript available at
link #31.
-This narrowing has an effect on what is produced. The product of
-such large and concentrated networks is increasingly homogenous.
- Increasingly
-safe. Increasingly sterile. The product of news shows from
-networks like this is increasingly tailored to the message the network
-wants to convey. This is not the communist party, though from the
- inside,
-it must feel a bit like the communist party. No one can question
-without risk of consequence—not necessarily banishment to Siberia,
-but punishment nonetheless. Independent, critical, different views are
-quashed. This is not the environment for a democracy.
+This narrowing has an effect on what is produced. The product of such
+large and concentrated networks is increasingly homogenous.
+Increasingly safe. Increasingly sterile. The product of news shows
+from networks like this is increasingly tailored to the message the
+network wants to convey. This is not the communist party, though from
+the inside, it must feel a bit like the communist party. No one can
+question without risk of consequence—not necessarily banishment
+to Siberia, but punishment nonetheless. Independent, critical,
+different views are quashed. This is not the environment for a
+democracy.
Clark, Kim B.
@@ -8012,21 +7973,21 @@ new, breakthrough technologies that compete with their core business.
The same analysis could help explain why large, traditional media
companies would find it rational to ignore new cultural trends.
-Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
- National
-Bestseller that Changed the Way We Do Business (Cambridge: Harvard
-Business School Press, 1997). Christensen acknowledges that the idea was
-first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of
-Design Hierarchies and Market Concepts in Technological Evolution,"
-Research Policy 14 (1985): 235–51. For a more recent study, see Richard
-Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are
-Built to Last Underperform the Market—and How to Successfully Transform
-Them (New York: Currency/Doubleday, 2001).
-
+Clayton M. Christensen, The Innovator's Dilemma: The
+Revolutionary National Bestseller that Changed the Way We Do Business
+(Cambridge: Harvard Business School Press, 1997). Christensen
+acknowledges that the idea was first suggested by Dean Kim Clark. See
+Kim B. Clark, "The Interaction of Design Hierarchies and Market
+Concepts in Technological Evolution," Research Policy 14 (1985):
+235–51. For a more recent study, see Richard Foster and Sarah
+Kaplan, Creative Destruction: Why Companies That Are Built to Last
+Underperform the Market—and How to Successfully Transform Them
+(New York: Currency/Doubleday, 2001).
Lumbering giants not only don't, but should not, sprint. Yet if the
field is only open to the giants, there will be far too little
sprinting.
+Christensen, Clayton M.
I don't think we know enough about the economics of the media
@@ -8117,14 +8078,14 @@ agreed to run the ads and accepted payment to do so, but later decided
not to run the ads and returned the collected fees. Interview with
Neal Levine, 15 October 2003. These restrictions are, of course, not
limited to drug policy. See, for example, Nat Ives, "On the Issue of
-an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," New
-York Times, 13 March 2003, C4. Outside of election-related air time
+an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," New
+York Times, 13 March 2003, C4. Outside of election-related air time
there is very little that the FCC or the courts are willing to do to
even the playing field. For a general overview, see Rhonda Brown, "Ad
Hoc Access: The Regulation of Editorial Advertising on Television and
-Radio," Yale Law and Policy Review 6 (1988): 449–79, and for a
+Radio," Yale Law and Policy Review 6 (1988): 449–79, and for a
more recent summary of the stance of the FCC and the courts, see
-Radio-Television News Directors Association v. FCC, 184 F. 3d 872
+Radio-Television News Directors Association v. FCC, 184 F. 3d 872
(D.C. Cir. 1999). Municipal authorities exercise the same authority as
the networks. In a recent example from San Francisco, the San
Francisco transit authority rejected an ad that criticized its Muni
@@ -8132,6 +8093,9 @@ diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming
After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
link #32. The ground
was that the criticism was "too controversial."
+Comcast
+Marijuana Policy Project
+WJOA
@@ -8145,8 +8109,8 @@ matters. You might like the positions the handful of companies
selects. But you should not like a world in which a mere few get to
decide which issues the rest of us get to know about.
-
-
+
+Together
There is something innocent and obvious about the claim of the
@@ -8196,9 +8160,9 @@ short period of time, as the technologies of distribution and creation
have changed and as lobbyists have pushed for more control by
copyright holders. Changes in the past in response to changes in
technology suggest that we may well need similar changes in the
-future. And these changes have to be reductions in the scope of
-copyright, in response to the extraordinary increase in control that
-technology and the market enable.
+future. And these changes have to be reductions
+in the scope of copyright, in response to the extraordinary increase
+in control that technology and the market enable.
For the single point that is lost in this war on pirates is a point that
@@ -8206,25 +8170,28 @@ we see only after surveying the range of these changes. When you add
together the effect of changing law, concentrated markets, and
changing technology, together they produce an astonishing conclusion:
-Never in our history have fewer had a legal right to control more of
-the development of our culture than now.
+Never in our history have fewer had a legal right to control
+more of the development of our culture than now.
- Not when copyrights were perpetual, for when copyrights were
+
+Not when copyrights were perpetual, for when copyrights were
perpetual, they affected only that precise creative work. Not when
only publishers had the tools to publish, for the market then was much
more diverse. Not when there were only three television networks, for
even then, newspapers, film studios, radio stations, and publishers
-were independent of the networks. Never has copyright protected such a
-wide range of rights, against as broad a range of actors, for a term
-that was remotely as long. This form of regulation—a tiny
-regulation of a tiny part of the creative energy of a nation at the
-founding—is now a massive regulation of the overall creative
-process. Law plus technology plus the market now interact to turn this
-historically benign regulation into the most significant regulation of
-culture that our free society has known.
+were independent of the networks. Never has
+copyright protected such a wide range of rights, against as broad a
+range of actors, for a term that was remotely as long. This form of
+regulation—a tiny regulation of a tiny part of the creative
+energy of a nation at the founding—is now a massive regulation
+of the overall creative process. Law plus technology plus the market
+now interact to turn this historically benign regulation into the most
+significant regulation of culture that our free society has
+known.
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
copyright law in the digital age. See Vaidhyanathan, 159–60.
+Vaidhyanathan, Siva
@@ -8341,12 +8308,11 @@ we could say the law began to look like this:
-The law was interpreted to reach noncommercial copying through,
-say, copy machines, but still much of copying outside of the
- commercial
-market remained free. But the consequence of the emergence of
-digital technologies, especially in the context of a digital network,
-means that the law now looks like this:
+The law was interpreted to reach noncommercial copying through, say,
+copy machines, but still much of copying outside of the commercial
+market remained free. But the consequence of the emergence of digital
+technologies, especially in the context of a digital network, means
+that the law now looks like this:
@@ -8408,7 +8374,7 @@ property rights
It was the single most important contribution of the legal realist
movement to demonstrate that all property rights are always crafted to
balance public and private interests. See Thomas C. Grey, "The
-Disintegration of Property," in Nomos XXII: Property, J. Roland
+Disintegration of Property," in Nomos XXII: Property, J. Roland
Pennock and John W. Chapman, eds. (New York: New York University
Press, 1980).
)
@@ -8416,10 +8382,10 @@ has been crafted to balance the important need to give authors and
artists incentives with the equally important need to assure access to
creative work. This balance has always been struck in light of new
technologies. And for almost half of our tradition, the "copyright"
-did not control at all the freedom of others to build upon or
-transform a creative work. American culture was born free, and for
-almost 180 years our country consistently protected a vibrant and rich
-free culture.
+did not control at all the freedom of others to
+build upon or transform a creative work. American culture was born
+free, and for almost 180 years our country consistently protected a
+vibrant and rich free culture.
We achieved that free culture because our law respected important
@@ -8454,14 +8420,14 @@ which creation requires permission and creativity must check with a
lawyer.
-
-
+
-
+
+PUZZLES
-
+
-
+CHAPTER ELEVEN: Chimerachimeras
@@ -8479,7 +8445,7 @@ 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
+The Country of the Blind and Other Stories, Michael Sherborne, ed. (New
York: Oxford University Press, 1996).
The valley is extraordinarily beautiful, with "sweet water, pasture,
@@ -8492,7 +8458,7 @@ villagers to explore life as a king.
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
-"blind." They don't have the word blind. They think he's just thick.
+"blind." They don't have the word blind. They think he's just thick.
Indeed, as they increasingly notice the things he can't do (hear the
sound of grass being stepped on, for example), they increasingly try
to control him. He, in turn, becomes increasingly frustrated. "`You
@@ -8588,6 +8554,7 @@ with it," that's true, at least in part. If, after Lyle Lovett
(finally) releases a new album, rather than buying it, I go to Kazaa
and find a free copy to take, that is very much like stealing a copy
from Tower.
+Lovett, Lyle
@@ -8617,38 +8584,38 @@ we can get universities to monitor all computer traffic to make sure
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.
- 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, available
-at
-link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
-(D-Calif.) have introduced a bill that would treat unauthorized on-line
-copying as a felony offense with punishments ranging as high as five years
-imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy,"
-Los Angeles Times, 17 July 2003, available at
-link #34. Civil penalties are
-currently set at $150,000 per copied song. For a recent (and unsuccessful)
-legal challenge to the RIAA's demand that an ISP reveal the identity of a
-user accused of sharing more than 600 songs through a family computer,
-see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F.
-Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as
-high as $90 million. Such astronomical figures furnish the RIAA with a
-powerful arsenal in its prosecution of file sharers. Settlements ranging
-from $12,000 to $17,500 for four students accused of heavy file sharing on
-university networks must have seemed a mere pittance next to the $98
- billion
-the RIAA could seek should the matter proceed to court. See
- Elizabeth
-Young, "Downloading Could Lead to Fines," redandblack.com,
-August 2003, available at
-link #35. For an example of the RIAA's
- targeting
-of student file sharing, and of the subpoenas issued to universities to
-reveal student file-sharer identities, see James Collins, "RIAA Steps Up
-Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003,
-D3, available at
+
+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,
+available at
+link
+#33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized
+on-line copying as a felony offense with punishments ranging as high
+as five years imprisonment; see Jon Healey, "House Bill Aims to Up
+Stakes on Piracy," Los Angeles Times, 17 July 2003, available at
+link #34. Civil
+penalties are currently set at $150,000 per copied song. For a recent
+(and unsuccessful) legal challenge to the RIAA's demand that an ISP
+reveal the identity of a user accused of sharing more than 600 songs
+through a family computer, see RIAA v. Verizon Internet Services (In
+re. Verizon Internet Services), 240 F. Supp. 2d 24
+(D.D.C. 2003). Such a user could face liability ranging as high as $90
+million. Such astronomical figures furnish the RIAA with a powerful
+arsenal in its prosecution of file sharers. Settlements ranging from
+$12,000 to $17,500 for four students accused of heavy file sharing on
+university networks must have seemed a mere pittance next to the $98
+billion the RIAA could seek should the matter proceed to court. See
+Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com,
+August 2003, available at
+link #35. For an
+example of the RIAA's targeting of student file sharing, and of the
+subpoenas issued to universities to reveal student file-sharer
+identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
+Name Students," Boston Globe, 8 August 2003, D3, available at
link #36.
+Berman, Howard L.
@@ -8664,37 +8631,33 @@ gossip: regulated, if at all, by social norms but not by law.
Either response is possible. I think either would be a mistake.
Rather than embrace one of these two extremes, we should embrace
something that recognizes the truth in both. And while I end this book
-with a sketch of a system that does just that, my aim in the next chapter
-is to show just how awful it would be for us to adopt the zero-tolerance
-extreme. I believe either extreme would be worse than a reasonable
- alternative.
-But I believe the zero-tolerance solution would be the worse
-of the two extremes.
+with a sketch of a system that does just that, my aim in the next
+chapter is to show just how awful it would be for us to adopt the
+zero-tolerance extreme. I believe either extreme
+would be worse than a reasonable alternative. But I believe the
+zero-tolerance solution would be the worse of the two extremes.
Yet zero tolerance is increasingly our government's policy. In the
-middle of the chaos that the Internet has created, an extraordinary land
-grab is occurring. The law and technology are being shifted to give
- content
-holders a kind of control over our culture that they have never had
-before. And in this extremism, many an opportunity for new
- innovation
-and new creativity will be lost.
+middle of the chaos that the Internet has created, an extraordinary
+land grab is occurring. The law and technology are being shifted to
+give content holders a kind of control over our culture that they have
+never had before. And in this extremism, many an opportunity for new
+innovation and new creativity will be lost.
I'm not talking about the opportunities for kids to "steal" music. My
focus instead is the commercial and cultural innovation that this war
will also kill. We have never seen the power to innovate spread so
-broadly among our citizens, and we have just begun to see the
- innovation
-that this power will unleash. Yet the Internet has already seen the
-passing of one cycle of innovation around technologies to distribute
-content. The law is responsible for this passing. As the vice president
-for global public policy at one of these new innovators, eMusic.com,
-put it when criticizing the DMCA's added protection for copyrighted
-material,
+broadly among our citizens, and we have just begun to see the
+innovation that this power will unleash. Yet the Internet has already
+seen the passing of one cycle of innovation around technologies to
+distribute content. The law is responsible for this passing. As the
+vice president for global public policy at one of these new
+innovators, eMusic.com, put it when criticizing the DMCA's added
+protection for copyrighted material,
@@ -8719,17 +8682,14 @@ which they will be able to access digital media and the equipment
that they will require to do so. Poor choices made this early in the
game will retard the growth of this market, hurting everyone's
interests.
- WIPO and the DMCA One Year Later: Assessing Consumer Access to
-Digital Entertainment on the Internet and Other Media: Hearing Before
-the Subcommittee on Telecommunications, Trade, and Consumer
- Protection,
-House Committee on Commerce, 106th Cong. 29 (1999) (statement
-of Peter Harter, vice president, Global Public Policy and Standards,
- EMusic.com),
-available in LEXIS, Federal Document Clearing House
- Congressional
-Testimony File.
-
+
+WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
+Entertainment on the Internet and Other Media: Hearing Before the
+Subcommittee on Telecommunications, Trade, and Consumer Protection,
+House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
+Harter, vice president, Global Public Policy and Standards,
+EMusic.com), available in LEXIS, Federal Document Clearing House
+Congressional Testimony File.
@@ -8737,16 +8697,17 @@ Testimony File.
In April 2001, eMusic.com was purchased by Vivendi Universal,
one of "the major labels." Its position on these matters has now
changed.
+Vivendi Universal
Reversing our tradition of tolerance now will not merely quash
-piracy. It will sacrifice values that are important to this culture, and will
-kill opportunities that could be extraordinarily valuable.
+piracy. It will sacrifice values that are important to this culture,
+and will kill opportunities that could be extraordinarily valuable.
-
-
+
+CHAPTER TWELVE: Harms
@@ -8786,7 +8747,7 @@ confident the third is unintended. I'm less sure about the first two. The
first two protect modern RCAs, but there is no Howard Armstrong in
the wings to fight today's monopolists of culture.
-
+Constraining Creators
In the next ten years we will see an explosion of digital
@@ -8848,11 +8809,12 @@ $11 billion, resulting in a loss to investors in market capitalization
of over $200 billion—received a fine of a mere $750
million.
-See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
+See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
(Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of
the settlement, see MCI press release, "MCI Wins U.S. District Court
Approval for SEC Settlement" (7 July 2003), available at
link #37.
+Worldcom
And under legislation being pushed in Congress right now, a doctor who
negligently removes the wrong leg in an operation would be liable for
@@ -8870,34 +8832,33 @@ available at
recent months.
Bush, George W.
- Can common sense recognize the absurdity in a world where
+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
The consequence of this legal uncertainty, tied to these extremely
-high penalties, is that an extraordinary amount of creativity will either
-never be exercised, or never be exercised in the open. We drive this
- creative
-process underground by branding the modern-day Walt Disneys
-"pirates." We make it impossible for businesses to rely upon a public
-domain, because the boundaries of the public domain are designed to
+high penalties, is that an extraordinary amount of creativity will
+either never be exercised, or never be exercised in the open. We drive
+this creative process underground by branding the modern-day Walt
+Disneys "pirates." We make it impossible for businesses to rely upon a
+public domain, because the boundaries of the public domain are
+designed to
-be unclear. It never pays to do anything except pay for the right to
- create,
-and hence only those who can pay are allowed to create. As was the
-case in the Soviet Union, though for very different reasons, we will
- begin
-to see a world of underground art—not because the message is
- necessarily
-political, or because the subject is controversial, but because the
-very act of creating the art is legally fraught. Already, exhibits of
- "illegal
-art" tour the United States.
- See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003,
- available
-at
+be unclear. It never pays to do anything except pay for the right
+to create, and hence only those who can pay are allowed to create. As
+was the case in the Soviet Union, though for very different reasons,
+we will begin to see a world of underground art—not because the
+message is necessarily political, or because the subject is
+controversial, but because the very act of creating the art is legally
+fraught. Already, exhibits of "illegal art" tour the United
+States.
+
+
+See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July
+2003, available at
link #40. For an overview of the exhibition, see
link #41.
@@ -8984,8 +8945,8 @@ cleared." You're not even going to get it on PBS without that kind of
permission. That's the point at which they control it.
-
-
+
+Constraining Innovators
The story of the last section was a crunchy-lefty
@@ -9032,7 +8993,7 @@ lesson. That lesson—what former Napster CEO Hank Barry calls a
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
+I told in The Future of Ideas and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
@@ -9049,6 +9010,7 @@ 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.
@@ -9083,6 +9045,9 @@ 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
+
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
@@ -9117,6 +9082,7 @@ industry directs its guns against them. It is also you. So those of
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
+Hummer, JohnBarry, Hank
@@ -9125,28 +9091,26 @@ 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
(Hank Barry).
- See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles
-Times, 23 April 2003. For a parallel argument about the effects on
- innovation
-in the distribution of music, see Janelle Brown, "The Music
- Revolution
-Will Not Be Digitized," Salon.com, 1 June 2001, available at
-link #42.
-See also Jon Healey, "Online Music Services Besieged," Los Angeles
-Times, 28 May 2001.
-
- The claim here, as well, was that the VC should have
-recognized the right of the content industry to control how the
- industry
-should develop. They should be held personally liable for funding a
-company whose business turned out to be beyond the law. Here again,
-the aim of the lawsuit is transparent: Any VC now recognizes that if
-you fund a company whose business is not approved of by the dinosaurs,
-you are at risk not just in the marketplace, but in the courtroom as well.
-Your investment buys you not only a company, it also buys you a lawsuit.
-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:
+
+See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles
+Times, 23 April 2003. For a parallel argument about the effects on
+innovation in the distribution of music, see Janelle Brown, "The Music
+Revolution Will Not Be Digitized," Salon.com, 1 June 2001, available
+at link #42.
+See also Jon Healey, "Online Music Services Besieged," Los Angeles
+Times, 28 May 2001.
+
+The claim here, as well, was that the VC should have recognized the
+right of the content industry to control how the industry should
+develop. They should be held personally liable for funding a company
+whose business turned out to be beyond the law. Here again, the aim of
+the lawsuit is transparent: Any VC now recognizes that if you fund a
+company whose business is not approved of by the dinosaurs, you are at
+risk not just in the marketplace, but in the courtroom as well. Your
+investment buys you not only a company, it also buys you a lawsuit.
+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:
BMW
@@ -9160,7 +9124,7 @@ forward for release stateside. Even today, no new cars are sold in the
United States with bona fide MP3 players. . . .
-Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
2003, available at
link #43. I am grateful
to Dr. Mohammad Al-Ubaydli for this example.
@@ -9195,57 +9159,47 @@ have much less vibrant innovation and much less creativity.
The point is directly parallel to the crunchy-lefty point about fair
-use. Whatever the "real" law is, realism about the effect of law in both
-contexts is the same. This wildly punitive system of regulation will
- systematically
-stifle creativity and innovation. It will protect some
- industries
-and some creators, but it will harm industry and creativity
-generally. Free market and free culture depend upon vibrant
- competition.
-Yet the effect of the law today is to stifle just this kind of
- competition.
-The effect is to produce an overregulated culture, just as the effect
-of too much control in the market is to produce an
- overregulatedregulated
-market.
+use. Whatever the "real" law is, realism about the effect of law in
+both contexts is the same. This wildly punitive system of regulation
+will systematically stifle creativity and innovation. It will protect
+some industries and some creators, but it will harm industry and
+creativity generally. Free market and free culture depend upon vibrant
+competition. Yet the effect of the law today is to stifle just this
+kind of competition. The effect is to produce an overregulated
+culture, just as the effect of too much control in the market is to
+produce an overregulatedregulated market.
The building of a permission culture, rather than a free culture, is
-the first important way in which the changes I have described will
- burden
-innovation. A permission culture means a lawyer's culture—a
- culture
-in which the ability to create requires a call to your lawyer. Again,
-I am not antilawyer, at least when they're kept in their proper place. I
-am certainly not antilaw. But our profession has lost the sense of its
-limits. And leaders in our profession have lost an appreciation of the
-high costs that our profession imposes upon others. The inefficiency of
-the law is an embarrassment to our tradition. And while I believe our
-profession should therefore do everything it can to make the law more
-efficient, it should at least do everything it can to limit the reach of the
+the first important way in which the changes I have described will
+burden innovation. A permission culture means a lawyer's
+culture—a culture in which the ability to create requires a call
+to your lawyer. Again, I am not antilawyer, at least when they're kept
+in their proper place. I am certainly not antilaw. But our profession
+has lost the sense of its limits. And leaders in our profession have
+lost an appreciation of the high costs that our profession imposes
+upon others. The inefficiency of the law is an embarrassment to our
+tradition. And while I believe our profession should therefore do
+everything it can to make the law more efficient, it should at least
+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.
-
-
-The motivation for this response is obvious. The Internet enables
-the efficient spread of content. That efficiency is a feature of the
- Internet's
-design. But from the perspective of the content industry, this
- feature
-is a "bug." The efficient spread of content means that content
-distributors have a harder time controlling the distribution of content.
-One obvious response to this efficiency is thus to make the Internet
-less efficient. If the Internet enables "piracy," then, this response says,
-we should break the kneecaps of the Internet.
+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.
+
+
+The motivation for this response is obvious. The Internet enables the
+efficient spread of content. That efficiency is a feature of the
+Internet's design. But from the perspective of the content industry,
+this feature is a "bug." The efficient spread of content means that
+content distributors have a harder time controlling the distribution
+of content. One obvious response to this efficiency is thus to make
+the Internet less efficient. If the Internet enables "piracy," then,
+this response says, we should break the kneecaps of the Internet.
The examples of this form of legislation are many. At the urging of
@@ -9309,8 +9263,8 @@ wrong, it is regulation the powerful use to defeat competitors.
As I described in chapter 10, despite this feature of copyright as
regulation, and subject to important qualifications outlined by Jessica
-Litman in her book Digital Copyright,
- Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books,
+Litman in her book Digital Copyright,
+ Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books,
2001).
overall this history of copyright
@@ -9328,140 +9282,129 @@ that will have the effect of smothering the new to benefit the old.
The response by the courts has been fairly universal.
- 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 reasoned that
-makers of a portable MP3 player were not liable for contributory
- copyright
-infringement for a device that is unable to record or redistribute
- music
-(a device whose only copying function is to render portable a music file
-already stored on a user's hard drive).
-At the district court level, the only exception is found in
- Metro-Goldwyn-Mayer
-Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D.
-Cal., 2003), where the court found the link between the distributor and
-any given user's conduct too attenuated to make the distributor liable for
-contributory or vicarious infringement liability.
-
- It has been
-mirrored in the responses threatened and actually implemented by
-Congress. I won't catalog all of those responses here.
- For example, in July 2002, Representative Howard Berman introduced the
+
+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
+reasoned that makers of a portable MP3 player were not liable for
+contributory copyright infringement for a device that is unable to
+record or redistribute music (a device whose only copying function is
+to render portable a music file already stored on a user's hard
+drive). At the district court level, the only exception is found in
+Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d
+1029 (C.D. Cal., 2003), where the court found the link between the
+distributor and any given user's conduct too attenuated to make the
+distributor liable for contributory or vicarious infringement
+liability.
+
+It has been mirrored in the responses threatened and actually
+implemented by Congress. I won't catalog all of those responses
+here.
+
+For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
-copyright holders use technology to stop copyright infringement. In
- August
-2002, Representative Billy Tauzin introduced a bill to mandate that
-technologies capable of rebroadcasting digital copies of films broadcast on
-TV (i.e., computers) respect a "broadcast flag" that would disable copying
-of that content. And in March of the same year, Senator Fritz Hollings
-introduced the Consumer Broadband and Digital Television Promotion
-Act, which mandated copyright protection technology in all digital media
-devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster
-World," 27 June 2003, 33–34, available at
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a "broadcast flag" that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, which mandated copyright protection
+technology in all digital media devices. See GartnerG2, "Copyright and
+Digital Media in a Post-Napster World," 27 June 2003, 33–34,
+available at
link #44.
+Berman, Howard L.
- But there is one
-example that captures the flavor of them all. This is the story of the
- demise
-of Internet radio.
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless he
-or she is also the composer. So, for example if Marilyn Monroe had
+recording artist doesn't get paid for that "radio performance" unless
+he or she is also the composer. So, for example if Marilyn Monroe had
recorded a version of "Happy Birthday"—to memorialize her famous
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
+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.
The reasoning behind this balance struck by Congress makes some
sense. The justification was that radio was a kind of advertising. The
-recording artist thus benefited because by playing her music, the radio
-station was making it more likely that her records would be purchased.
-Thus, the recording artist got something, even if only indirectly.
- Probably
-this reasoning had less to do with the result than with the power
-of radio stations: Their lobbyists were quite good at stopping any
- efforts
-to get Congress to require compensation to the recording artists.
-
-
-Enter Internet radio. Like regular radio, Internet radio is a
- technology
-to stream content from a broadcaster to a listener. The broadcast
-travels across the Internet, not across the ether of radio spectrum.
-Thus, I can "tune in" to an Internet radio station in Berlin while sitting
-in San Francisco, even though there's no way for me to tune in to a
- regular
-radio station much beyond the San Francisco metropolitan area.
+recording artist thus benefited because by playing her music, the
+radio station was making it more likely that her records would be
+purchased. Thus, the recording artist got something, even if only
+indirectly. Probably this reasoning had less to do with the result
+than with the power of radio stations: Their lobbyists were quite good
+at stopping any efforts to get Congress to require compensation to the
+recording artists.
+
+
+Enter Internet radio. Like regular radio, Internet radio is a
+technology to stream content from a broadcaster to a listener. The
+broadcast travels across the Internet, not across the ether of radio
+spectrum. Thus, I can "tune in" to an Internet radio station in
+Berlin while sitting in San Francisco, even though there's no way for
+me to tune in to a regular radio station much beyond the San Francisco
+metropolitan area.
This feature of the architecture of Internet radio means that there
-are potentially an unlimited number of radio stations that a user could
-tune in to using her computer, whereas under the existing architecture
-for broadcast radio, there is an obvious limit to the number of
- broadcasters
-and clear broadcast frequencies. Internet radio could therefore
-be more competitive than regular radio; it could provide a wider range
-of selections. And because the potential audience for Internet radio is
-the whole world, niche stations could easily develop and market their
-content to a relatively large number of users worldwide. According to
-some estimates, more than eighty million users worldwide have tuned
-in to this new form of radio.
+are potentially an unlimited number of radio stations that a user
+could tune in to using her computer, whereas under the existing
+architecture for broadcast radio, there is an obvious limit to the
+number of broadcasters and clear broadcast frequencies. Internet radio
+could therefore be more competitive than regular radio; it could
+provide a wider range of selections. And because the potential
+audience for Internet radio is the whole world, niche stations could
+easily develop and market their content to a relatively large number
+of users worldwide. According to some estimates, more than eighty
+million users worldwide have tuned in to this new form of radio.
-Internet radio is thus to radio what FM was to AM. It is an
- improvement
-potentially vastly more significant than the FM
- improvement
-over AM, since not only is the technology better, so, too, is the
-competition. Indeed, there is a direct parallel between the fight to
- establish
-FM radio and the fight to protect Internet radio. As one author
-describes Howard Armstrong's struggle to enable FM radio,
+Internet radio is thus to radio what FM was to AM. It is an
+improvement potentially vastly more significant than the FM
+improvement over AM, since not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
An almost unlimited number of FM stations was possible in the
-shortwaves, thus ending the unnatural restrictions imposed on
- radio
-in the crowded longwaves. If FM were freely developed, the
-number of stations would be limited only by economics and
- competition
-rather than by technical restrictions. . . . Armstrong
-likened the situation that had grown up in radio to that following
-the invention of the printing press, when governments and ruling
-interests attempted to control this new instrument of mass
- communications
-by imposing restrictive licenses on it. This tyranny
-was broken only when it became possible for men freely to
- acquire
-printing presses and freely to run them. FM in this sense
-was as great an invention as the printing presses, for it gave radio
-the opportunity to strike off its shackles.
- Lessing, 239.
+shortwaves, thus ending the unnatural restrictions imposed on radio in
+the crowded longwaves. If FM were freely developed, the number of
+stations would be limited only by economics and competition rather
+than by technical restrictions. . . . Armstrong likened the situation
+that had grown up in radio to that following the invention of the
+printing press, when governments and ruling interests attempted to
+control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it
+became possible for men freely to acquire printing presses and freely
+to run them. FM in this sense was as great an invention as the
+printing presses, for it gave radio the opportunity to strike off its
+shackles.
+
+Lessing, 239.
-This potential for FM radio was never realized—not because
- Armstrong
-was wrong about the technology, but because he underestimated
-the power of "vested interests, habits, customs and legislation"
- Ibid., 229.
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of "vested interests, habits, customs and
+legislation"
+
+Ibid., 229.
-to
- retard
-the growth of this competing technology.
+to retard the growth of this competing technology.
Now the very same claim could be made about Internet radio. For
@@ -9476,16 +9419,15 @@ 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
-powerful lobby, the RIAA. Thus when Congress considered the
- phenomenon
-of Internet radio in 1995, the lobbyists had primed Congress
-to adopt a different rule for Internet radio than the rule that applies to
-terrestrial radio. While terrestrial radio does not have to pay our
- hypothetical
-Marilyn Monroe when it plays her hypothetical recording of
-"Happy Birthday" on the air, Internet radio does. Not only is the law not
-neutral toward Internet radio—the law actually burdens Internet radio
-more than it burdens terrestrial radio.
+powerful lobby, the RIAA. Thus when Congress considered the phenomenon
+of Internet radio in 1995, the lobbyists had primed Congress to adopt
+a different rule for Internet radio than the rule that applies to
+terrestrial radio. While terrestrial radio does not have to pay our
+hypothetical Marilyn Monroe when it plays her hypothetical recording
+of "Happy Birthday" on the air, Internet radio
+does. Not only is the law not neutral toward Internet
+radio—the law actually burdens Internet radio more than it
+burdens terrestrial radio.
This financial burden is not slight. As Harvard law professor
@@ -9506,21 +9448,23 @@ DTRA 1 and 2, available at
link #45.
For an excellent analysis making a similar point, see Randal
C. Picker, "Copyright as Entry Policy: The Case of Digital
-Distribution," Antitrust Bulletin (Summer/Fall 2002): 461: "This was
+Distribution," Antitrust Bulletin (Summer/Fall 2002): 461: "This was
not confusion, these are just old-fashioned entry barriers. Analog
radio stations are protected from digital entrants, reducing entry in
radio and diversity. Yes, this is done in the name of getting
royalties to copyright holders, but, absent the play of powerful
interests, that could have been done in a media-neutral way."
CARP (Copyright Arbitration Royalty Panel)
+Picker, Randal C.
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 station)
-would have to collect the following data from every listening transaction:
+proposed, an Internet radio station (but not a terrestrial radio
+station) would have to collect the following data from every
+listening transaction:
@@ -9606,8 +9550,8 @@ The Librarian of Congress eventually suspended these reporting
requirements, pending further study. And he also changed the original
rates set by the arbitration panel charged with setting rates. But the
basic difference between Internet radio and terrestrial radio remains:
-Internet radio has to pay a type of copyright fee that terrestrial radio
-does not.
+Internet radio has to pay a type of copyright fee
+that terrestrial radio does not.
Why? What justifies this difference? Was there any study of the
@@ -9638,10 +9582,11 @@ set the rate so high, you're going to drive the small webcasters out
of business. . . ."
-And the RIAA experts said, "Well, we don't really model this
-as an industry with thousands of webcasters, we think it should be
+And the RIAA experts said, "Well, we don't really model this as an
+industry with thousands of webcasters, we think it should be
an industry with, you know, five or seven big players who can pay a
-high rate and it's a stable, predictable market." (Emphasis added.)
+high rate and it's a stable, predictable market." (Emphasis
+added.)
@@ -9653,8 +9598,8 @@ 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
Overregulation stifles creativity. It smothers innovation. It gives
@@ -9670,7 +9615,7 @@ corrupts citizens and weakens the rule of law.
The war that is being waged today is a war of prohibition. As with
every war of prohibition, it is targeted against the behavior of a very
-large number of citizens. According to The New York Times, 43 million
+large number of citizens. According to The New York Times, 43 million
Americans downloaded music in May 2002.
Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
Internet and American Life Project (24 April 2001), available at
@@ -9706,8 +9651,8 @@ sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
was.
-Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
-Angeles Times, 10 September 2003, Business.
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
+Angeles Times, 10 September 2003, Business.
As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
@@ -9729,7 +9674,7 @@ level. Americans were drinking just about as much, but now, a vast
number were criminals.
Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
-Prohibition," American Economic Review 81, no. 2 (1991): 242.
+Prohibition," American Economic Review 81, no. 2 (1991): 242.
We have
@@ -9747,7 +9692,7 @@ tax system that a majority of cash businesses regularly
cheat.
See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
-Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
compliance literature).
We pride ourselves on our "free society," but an endless array of
@@ -9926,10 +9871,12 @@ 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
"If you can treat someone as a putative lawbreaker," von Lohmann
explains,
+von Lohmann, Fred
@@ -9970,14 +9917,14 @@ Jesse Jordan.
See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
-Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
File Swapping, Parents are Yanking Software from Home PCs to Avoid
-Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
-Graham, "Recording Industry Sues Parents," USA Today, 15 September
+Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," USA Today, 15 September
2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
-Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
-Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
+Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
@@ -10008,19 +9955,19 @@ as a "criminal." And under the rules that universities are beginning
to deploy,
See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
-Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
Students Sued over Music Sites; Industry Group Targets File Sharing at
-Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
-"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
-Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
+Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
-Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
-Trains Antipiracy Guns on Universities," Internet News, 30 January
+Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," Internet News, 30 January
2003, available at link
#48; Benny Evangelista, "Download Warning 101: Freshman
Orientation This Fall to Include Record Industry Warnings Against File
-Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
-Are Weapons at Universities," USA Today, 26 September 2000, 3D.
+Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," USA Today, 26 September 2000, 3D.
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
@@ -10038,6 +9985,7 @@ 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
@@ -10070,11 +10018,12 @@ effort through our democracy to change our law?
-
-
+
-
+
+BALANCES
+
@@ -10126,9 +10075,10 @@ brace of efforts, so far failed, to find a way to refocus this
debate. We must understand these failures if we're to understand what
success will require.
+
-
+CHAPTER THIRTEEN: Eldred
In 1995, a father was frustrated that his daughters didn't seem to
@@ -10159,14 +10109,14 @@ accessible—today.
Eldred's freedom to do this with Hawthorne's work grew from the same
-source as Disney's. Hawthorne's Scarlet Letter had passed into the
+source as Disney's. Hawthorne's Scarlet Letter had passed into the
public domain in 1907. It was free for anyone to take without the
permission of the Hawthorne estate or anyone else. Some, such as Dover
Press and Penguin Classics, take works from the public domain and
produce printed editions, which they sell in bookstores across the
country. Others, such as Disney, take these stories and turn them into
-animated cartoons, sometimes successfully (Cinderella), sometimes not
-(The Hunchback of Notre Dame, Treasure Planet). These are all
+animated cartoons, sometimes successfully (Cinderella), sometimes not
+(The Hunchback of Notre Dame, Treasure Planet). These are all
commercial publications of public domain works.
@@ -10199,7 +10149,7 @@ protect noncommercial pornographers.
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
-collection of poems New Hampshire was slated to pass into the public
+collection of poems New Hampshire was slated to pass into the public
domain. Eldred wanted to post that collection in his free public
library. But Congress got in the way. As I described in chapter 10,
in 1998, for the eleventh time in forty years, Congress extended the
@@ -10259,57 +10209,52 @@ As I've described, this clause is unique within the power-granting
clause of Article I, section 8 of our Constitution. Every other clause
granting power to Congress simply says Congress has the power to do
something—for example, to regulate "commerce among the several
-states" or "declare War." But here, the "something" is something quite
- specific—to
-"promote . . . Progress"—through means that are also specific—
-by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times."
+states" or "declare War." But here, the "something" is something quite
+specific—to "promote . . . Progress"—through means that
+are also specific— by "securing" "exclusive Rights" (i.e.,
+copyrights) "for limited Times."
-In the past forty years, Congress has gotten into the practice of
- extending
-existing terms of copyright protection. What puzzled me
+In the past forty years, Congress has gotten into the practice of
+extending existing terms of copyright protection. What puzzled me
about this was, if Congress has the power to extend existing terms,
then the Constitution's requirement that terms be "limited" will have
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.
+Congress has the power to extend its term, then Congress can achieve
+what the Constitution plainly forbids—perpetual terms "on the
+installment plan," as Professor Peter Jaszi so nicely put it.
+Jaszi, Peter
As an academic, my first response was to hit the books. I remember
-sitting late at the office, scouring on-line databases for any serious
- consideration
-of the question. No one had ever challenged Congress's
+sitting late at the office, scouring on-line databases for any serious
+consideration of the question. No one had ever challenged Congress's
practice of extending existing terms. That failure may in part be why
-Congress seemed so untroubled in its habit. That, and the fact that the
-practice had become so lucrative for Congress. Congress knows that
+Congress seemed so untroubled in its habit. That, and the fact that
+the practice had become so lucrative for Congress. Congress knows that
copyright owners will be willing to pay a great deal of money to see
-their copyright terms extended. And so Congress is quite happy to
-keep this gravy train going.
+their copyright terms extended. And so Congress is quite happy to keep
+this gravy train going.
For this is the core of the corruption in our present system of
-government. "Corruption" not in the sense that representatives are bribed.
-Rather, "corruption" in the sense that the system induces the
- beneficiaries
-of Congress's acts to raise and give money to Congress to induce
-it to act. There's only so much time; there's only so much Congress can
-do. Why not limit its actions to those things it must do—and those
-things that pay? Extending copyright terms pays.
+government. "Corruption" not in the sense that representatives are
+bribed. Rather, "corruption" in the sense that the system induces the
+beneficiaries of Congress's acts to raise and give money to Congress
+to induce it to act. There's only so much time; there's only so much
+Congress can do. Why not limit its actions to those things it must
+do—and those things that pay? Extending copyright terms pays.
If that's not obvious to you, consider the following: Say you're one
of the very few lucky copyright owners whose copyright continues to
make money one hundred years after it was created. The Estate of
-Robert Frost is a good example. Frost died in 1963. His poetry
- continues
-to be extraordinarily valuable. Thus the Robert Frost estate
- benefits
-greatly from any extension of copyright, since no publisher would
-pay the estate any money if the poems Frost wrote could be published
-by anyone for free.
+Robert Frost is a good example. Frost died in 1963. His poetry
+continues to be extraordinarily valuable. Thus the Robert Frost estate
+benefits greatly from any extension of copyright, since no publisher
+would pay the estate any money if the poems Frost wrote could be
+published by anyone for free.
So imagine the Robert Frost estate is earning $100,000 a year from
@@ -10381,8 +10326,7 @@ are about to expire, there is a massive amount of lobbying to get
the copyright term extended.
-Thus a congressional perpetual motion machine: So long as
- legislation
+Thus a congressional perpetual motion machine: So long as legislation
can be bought (albeit indirectly), there will be all the incentive in
the world to buy further extensions of copyright.
@@ -10396,7 +10340,7 @@ committee; in the Senate, eight of the twelve sponsors received
contributions.
Associated Press, "Disney Lobbying for Copyright Extension No Mickey
Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,"
-Chicago Tribune, 17 October 1998, 22.
+Chicago Tribune, 17 October 1998, 22.
The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
@@ -10408,9 +10352,9 @@ Age," available at
Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the
cycle.
- Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
- Congressional
-Quarterly This Week, 8 August 1990, available at
+
+Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
+Congressional Quarterly This Week, 8 August 1990, available at
link #50.
@@ -10429,13 +10373,13 @@ 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 the Supreme
-Court's work knows, this Court has increasingly restricted the power
-of Congress when it has viewed Congress's actions as exceeding the
-power granted to it by the Constitution. Among constitutional
- scholars,
-the most famous example of this trend was the Supreme Court's
+It was also my judgment that this Supreme Court
+would not allow Congress to extend existing terms. As anyone close to
+the Supreme Court's work knows, this Court has increasingly restricted
+the power of Congress when it has viewed Congress's actions as
+exceeding the power granted to it by the Constitution. Among
+constitutional scholars, the most famous example of this trend was the
+Supreme Court's
decision in 1995 to strike down a law that banned the possession of
@@ -10452,98 +10396,91 @@ include the power to regulate any activity that merely affected
commerce.
-As the economy grew, this standard increasingly meant that there
-was no limit to Congress's power to regulate, since just about every
- activity,
-when considered on a national scale, affects interstate commerce.
-A Constitution designed to limit Congress's power was instead
- interpreted
-to impose no limit.
+As the economy grew, this standard increasingly meant that there was
+no limit to Congress's power to regulate, since just about every
+activity, when considered on a national scale, affects interstate
+commerce. A Constitution designed to limit Congress's power was
+instead interpreted to impose no limit.
-The Supreme Court, under Chief Justice Rehnquist's command,
-changed that in United States v. Lopez. The government had argued
-that possessing guns near schools affected interstate commerce. Guns
-near schools increase crime, crime lowers property values, and so on. In
-the oral argument, the Chief Justice asked the government whether
-there was any activity that would not affect interstate commerce under
-the reasoning the government advanced. The government said there
-was not; if Congress says an activity affects interstate commerce, then
-that activity affects interstate commerce. The Supreme Court, the
- government
-said, was not in the position to second-guess Congress.
+The Supreme Court, under Chief Justice Rehnquist's command, changed
+that in United States v. Lopez. The government had
+argued that possessing guns near schools affected interstate
+commerce. Guns near schools increase crime, crime lowers property
+values, and so on. In the oral argument, the Chief Justice asked the
+government whether there was any activity that would not affect
+interstate commerce under the reasoning the government advanced. The
+government said there was not; if Congress says an activity affects
+interstate commerce, then that activity affects interstate
+commerce. The Supreme Court, the government said, was not in the
+position to second-guess Congress.
-"We pause to consider the implications of the government's
- arguments,"
+"We pause to consider the implications of the government's arguments,"
the Chief Justice wrote.
- United States v. Lopez, 514 U.S. 549, 564 (1995).
+ United States v. Lopez, 514 U.S. 549, 564 (1995).
- If anything Congress says is interstate
-commerce must therefore be considered interstate commerce, then
-there would be no limit to Congress's power. The decision in Lopez was
-reaffirmed five years later in United States v. Morrison.
- United States v. Morrison, 529 U.S. 598 (2000).
+If anything Congress says is interstate commerce must therefore be
+considered interstate commerce, then there would be no limit to
+Congress's power. The decision in Lopez was reaffirmed five years
+later in United States v. Morrison.
+
+United States v. Morrison, 529 U.S. 598 (2000).
-
If a principle were at work here, then it should apply to the Progress
Clause as much as the Commerce Clause.
- If it is a principle about enumerated powers, then the principle carries
-from one enumerated power to another. The animating point in the
- context
-of the Commerce Clause was that the interpretation offered by the
-government would allow the government unending power to regulate
-commerce—the limitation to interstate commerce notwithstanding. The
-same point is true in the context of the Copyright Clause. Here, too, the
-government's interpretation would allow the government unending power
-to regulate copyrights—the limitation to "limited times" notwithstanding.
-
- And if it is applied to the
-Progress Clause, the principle should yield the conclusion that
- Congress
+
+If it is a principle about enumerated powers, then the principle
+carries from one enumerated power to another. The animating point in
+the context of the Commerce Clause was that the interpretation offered
+by the government would allow the government unending power to
+regulate commerce—the limitation to interstate commerce
+notwithstanding. The same point is true in the context of the
+Copyright Clause. Here, too, the government's interpretation would
+allow the government unending power to regulate copyrights—the
+limitation to "limited times" notwithstanding.
+
+And if it is applied to the Progress Clause, the principle should
+yield the conclusion that Congress
-can't extend an existing term. If Congress could extend an
- existing
-term, then there would be no "stopping point" to Congress's power
-over terms, though the Constitution expressly states that there is such
-a limit. Thus, the same principle applied to the power to grant
- copyrights
-should entail that Congress is not allowed to extend the term of
-existing copyrights.
-
-
-If, that is, the principle announced in Lopez stood for a principle.
-Many believed the decision in Lopez stood for politics—a conservative
-Supreme Court, which believed in states' rights, using its power over
-Congress to advance its own personal political preferences. But I
- rejected
-that view of the Supreme Court's decision. Indeed, shortly after
-the decision, I wrote an article demonstrating the "fidelity" in such an
-interpretation of the Constitution. The idea that the Supreme Court
-decides cases based upon 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.
-
-
-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 work and when Walt
-Disney created Mickey Mouse, the maximum copyright term was just
-fifty-six years. Because of interim changes, Frost and Disney had
- already
-enjoyed a seventy-five-year monopoly for their work. They had
-gotten the benefit of the bargain that the Constitution envisions: In
-exchange for a monopoly protected for fifty-six years, they created new
-work. But now these entities were using their power—expressed
-through the power of lobbyists' money—to 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.
+can't extend an existing term. If Congress could extend an existing
+term, then there would be no "stopping point" to Congress's power over
+terms, though the Constitution expressly states that there is such a
+limit. Thus, the same principle applied to the power to grant
+copyrights should entail that Congress is not allowed to extend the
+term of existing copyrights.
+
+
+If, that is, the principle announced in Lopez
+stood for a principle. Many believed the decision in Lopez stood for
+politics—a conservative Supreme Court, which believed in states'
+rights, using its power over Congress to advance its own personal
+political preferences. But I rejected that view of the Supreme Court's
+decision. Indeed, shortly after the decision, I wrote an article
+demonstrating the "fidelity" in such an interpretation of the
+Constitution. The idea that the Supreme Court decides cases based upon
+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.
+
+
+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
+work and when Walt Disney created Mickey Mouse, the maximum copyright
+term was just fifty-six years. Because of interim changes, Frost and
+Disney had already enjoyed a seventy-five-year monopoly for their
+work. They had gotten the benefit of the bargain that the Constitution
+envisions: In exchange for a monopoly protected for fifty-six years,
+they created new work. But now these entities were using their
+power—expressed through the power of lobbyists' money—to
+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.
Some people view the public domain with contempt. In their brief
@@ -10551,14 +10488,15 @@ Some people view the public domain with contempt. In their brief
before the Supreme Court, the Nashville Songwriters Association
wrote that the public domain is nothing more than "legal piracy."
- Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S.
-186 (2003) (No. 01-618), n.10, available at
-link #51.
+
+Brief of the Nashville Songwriters Association, Eldred
+v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), n.10, available
+at link #51.
- 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.
+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.
As we've seen, our constitutional system requires limits on
@@ -10597,7 +10535,7 @@ extended the terms of copyright generally.
The figure of 2 percent is an extrapolation from the study by the
Congressional
Research Service, in light of the estimated renewal ranges. See Brief
-of Petitioners, Eldred v. Ashcroft, 7, available at
+of Petitioners, Eldred v. Ashcroft, 7, available at
link #52.
@@ -10643,19 +10581,18 @@ of such records—especially since the person who registered is
not necessarily the current owner. And we're just talking about 1930!
-"But there isn't a list of who owns property generally," the
- apologists
-for the system respond. "Why should there be a list of copyright
-owners?"
+"But there isn't a list of who owns property generally," the
+apologists for the system respond. "Why should there be a list of
+copyright owners?"
-Well, actually, if you think about it, there are plenty of lists of who
-owns what property. Think about deeds on houses, or titles to cars.
-And where there isn't a list, the code of real space is pretty good at
- suggesting
-who the owner of a bit of property is. (A swing set in your
-backyard is probably yours.) So formally or informally, we have a pretty
-good way to know who owns what tangible property.
+Well, actually, if you think about it, there are
+plenty of lists of who owns what property. Think about deeds on
+houses, or titles to cars. And where there isn't a list, the code of
+real space is pretty good at suggesting who the owner of a bit of
+property is. (A swing set in your backyard is probably yours.) So
+formally or informally, we have a pretty good way to know who owns
+what tangible property.
So: You walk down a street and see a house. You can know who
@@ -10695,7 +10632,7 @@ for other creative works is much more dire.
Consider the story of Michael Agee, chairman of Hal Roach Studios,
which owns the copyrights for the Laurel and Hardy films. Agee is a
direct beneficiary of the Bono Act. The Laurel and Hardy films were
-made between 1921 and 1951. Only one of these films, The Lucky Dog, is
+made between 1921 and 1951. Only one of these films, The Lucky Dog, is
currently out of copyright. But for the CTEA, films made after 1923
would have begun entering the public domain. Because Agee controls the
exclusive rights for these popular films, he makes a great deal of
@@ -10704,11 +10641,12 @@ videocassettes and 50,000 DVDs of the duo's silent
films."
See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
-Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
-Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
+Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
+Lucky Dog, The
Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
@@ -10734,11 +10672,12 @@ 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.
- Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
- Supporting
-the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-
-618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by
-the Internet Archive, Eldred v. Ashcroft, available at
+
+Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
+Supporting the Petitoners, Eldred v. Ashcroft, 537
+U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
+filed on behalf of Petitioners by the Internet Archive, Eldred
+v. Ashcroft, available at
link #53.
@@ -10752,13 +10691,12 @@ And to secure the rights for a film that is under copyright, you need to
locate the copyright owner.
-Or more accurately, owners. As we've seen, there isn't only a single
-copyright associated with a film; there are many. There isn't a single
-person whom you can contact about those copyrights; there are as
-many as can hold the rights, which turns out to be an extremely large
-number. Thus the costs of clearing the rights to these films is
- exceptionally
-high.
+Or more accurately, owners. As we've seen, there
+isn't only a single copyright associated with a film; there are
+many. There isn't a single person whom you can contact about those
+copyrights; there are as many as can hold the rights, which turns out
+to be an extremely large number. Thus the costs of clearing the rights
+to these films is exceptionally high.
"But can't you just restore the film, distribute it, and then pay the
@@ -10831,12 +10769,13 @@ this context do no good.
Yet, for most of our history, they also did little harm. For most of
our history, when a work ended its commercial life, there was no
-copyright-related use that would be inhibited by an exclusive right.
-When a book went out of print, you could not buy it from a publisher.
-But you could still buy it from a used book store, and when a used
-book store sells it, in America, at least, there is no need to pay the
-copyright owner anything. Thus, the ordinary use of a book after its
-commercial life ended was a use that was independent of copyright law.
+copyright-related use that would be inhibited by
+an exclusive right. When a book went out of print, you could not buy
+it from a publisher. But you could still buy it from a used book
+store, and when a used book store sells it, in America, at least,
+there is no need to pay the copyright owner anything. Thus, the
+ordinary use of a book after its commercial life ended was a use that
+was independent of copyright law.
The same was effectively true of film. Because the costs of restoring
@@ -10883,12 +10822,12 @@ written for a radically different context.
Here is the core of the harm that comes from extending terms: Now that
technology enables us to rebuild the library of Alexandria, the law
gets in the way. And it doesn't get in the way for any useful
-copyright purpose, for the purpose of copyright is to enable the
-commercial market that spreads culture. No, we are talking about
-culture after it has lived its commercial life. In this context,
-copyright is serving no purpose at all related to the spread of
-knowledge. In this context, copyright is not an engine of free
-expression. Copyright is a brake.
+copyright purpose, for the purpose of copyright
+is to enable the commercial market that spreads culture. No, we are
+talking about culture after it has lived its commercial life. In this
+context, copyright is serving no purpose at all
+related to the spread of knowledge. In this context, copyright is not
+an engine of free expression. Copyright is a brake.
You may well ask, "But if digital technologies lower the costs for
@@ -11057,42 +10996,41 @@ There was one way, however, in which I felt politics would matter
and in which I thought a response was appropriate. I was convinced
that the Court would not hear our arguments if it thought these were
just the arguments of a group of lefty loons. This Supreme Court was
-not about to launch into a new field of judicial review if it seemed that
-this field of review was simply the preference of a small political
- minority.
-Although my focus in the case was not to demonstrate how bad the
-Sonny Bono Act was but to demonstrate that it was unconstitutional,
-my hope was to make this argument against a background of briefs that
-covered the full range of political views. To show that this claim against
-the CTEA was grounded in law and not politics, then, we tried to
-gather the widest range of credible critics—credible not because they
+not about to launch into a new field of judicial review if it seemed
+that this field of review was simply the preference of a small
+political minority. Although my focus in the case was not to
+demonstrate how bad the Sonny Bono Act was but to demonstrate that it
+was unconstitutional, my hope was to make this argument against a
+background of briefs that covered the full range of political
+views. To show that this claim against the CTEA was grounded in
+law and not politics, then, we tried to gather
+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.
-The first step happened all by itself. Phyllis Schlafly's organization,
-Eagle Forum, had been an opponent of the CTEA from the very
- beginning.
-Mrs. Schlafly viewed the CTEA as a sellout by Congress. In
-November 1998, she wrote a stinging editorial attacking the
- Republican
-Congress for allowing the law to pass. As she wrote, "Do you
-sometimes wonder why bills that create a financial windfall to narrow
-special interests slide easily through the intricate legislative process,
-while bills that benefit the general public seem 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.
-
-
-In the Court of Appeals, Eagle Forum was eager to file a brief
- supporting
-our position. Their brief made the argument that became the
+The first step happened all by itself. Phyllis Schlafly's
+organization, Eagle Forum, had been an opponent of the CTEA from the
+very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
+Congress. In November 1998, she wrote a stinging editorial attacking
+the Republican Congress for allowing the law to pass. As she wrote,
+"Do you sometimes wonder why bills that create a financial windfall to
+narrow special interests slide easily through the intricate
+legislative process, while bills that benefit the general public seem
+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
+supporting our position. Their brief made the argument that became the
core claim in the Supreme Court: If Congress can extend the term of
-existing copyrights, there is no limit to Congress's power to set terms.
-That strong conservative argument persuaded a strong conservative
-judge, Judge Sentelle.
+existing copyrights, there is no limit to Congress's power to set
+terms. That strong conservative argument persuaded a strong
+conservative judge, Judge Sentelle.
In the Supreme Court, the briefs on our side were about as diverse as
@@ -11106,6 +11044,8 @@ 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.
+Linux operating system
+Eagle Forum
Those briefs framed a legal argument. Then to support the legal
@@ -11149,6 +11089,7 @@ 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
Fried was a special victory for our side. Every other former solicitor
@@ -11161,6 +11102,7 @@ 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
@@ -11186,22 +11128,22 @@ public domain—because if this creativity were in the public
domain, then people could use it to "glorify drugs or to create
pornography."
-Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
+Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
U.S. (2003) (No. 01-618), 19.
-That was also the motive of
-the Gershwin estate, which defended its "protection" of the work of
-George Gershwin. They refuse, for example, to license Porgy and Bess
-to anyone who refuses to use African Americans in the cast.
+That was also the motive of the Gershwin estate, which defended its
+"protection" of the work of George Gershwin. They refuse, for example,
+to license Porgy and Bess to anyone who refuses to use African
+Americans in the cast.
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
-Mouse Joins the Fray," New York Times, 28 March 1998, B7.
+Mouse Joins the Fray," New York Times, 28 March 1998, B7.
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
@@ -11230,7 +11172,7 @@ camp we called "the Conservatives." The other we called "the Rest."
The Conservatives included Chief Justice Rehnquist, Justice O'Connor,
Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
been the most consistent in limiting Congress's power. They were the
-five who had supported the Lopez/Morrison line of cases that said that
+five who had supported the Lopez/Morrison line of cases that said that
an enumerated power had to be interpreted to assure that Congress's
powers had limits.
@@ -11287,25 +11229,24 @@ must be interpreted so that its enumerated powers have limits.
This then was the core of our strategy—a strategy for which I am
-responsible. We would get the Court to see that just as with the Lopez
+responsible. We would get the Court to see that just as with the
+Lopez
-case, under the government's argument here, Congress would always
-have unlimited power to extend existing terms. If anything was plain
-about Congress's power under the Progress Clause, it was that this
-power was supposed to be "limited." Our aim would be to get the
-Court to reconcile Eldred with Lopez: If Congress's power to regulate
-commerce was limited, then so, too, must Congress's power to regulate
-copyright be limited.
+case, under the government's argument here, Congress would always have
+unlimited power to extend existing terms. If anything was plain about
+Congress's power under the Progress Clause, it was that this power was
+supposed to be "limited." Our aim would be to get the Court to
+reconcile Eldred with Lopez: If Congress's power to
+regulate commerce 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
@@ -11353,6 +11294,7 @@ 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
@@ -11450,8 +11392,7 @@ I answered,
mr. lessig: Justice, we are not making an empirical claim at all.
Nothing in our Copyright Clause claim hangs upon the empirical
assertion about impeding progress. Our only argument is this is a
-structural limit necessary to assure that what would be an
- effectively
+structural limit necessary to assure that what would be an effectively
perpetual term not be permitted under the copyright laws.
@@ -11464,14 +11405,13 @@ here was the place Don Ayer's advice should have mattered. This was a
softball; my answer was a swing and a miss.
-The second came from the Chief, for whom the whole case had
-been crafted. For the Chief Justice had crafted the Lopez ruling, and we
-hoped that he would see this case as its second cousin.
+The second came from the Chief, for whom the whole case had been
+crafted. For the Chief Justice had crafted the Lopez ruling,
+and we hoped that he would see this case as its second cousin.
-It was clear a second into his question that he wasn't at all
- sympathetic.
-To him, we were a bunch of anarchists. As he asked:
+It was clear a second into his question that he wasn't at all
+sympathetic. To him, we were a bunch of anarchists. As he asked:
@@ -11496,26 +11436,25 @@ asked Solicitor General Olson,
-justice scalia: You say that the functional equivalent of an
- unlimited
-time would be a violation [of the Constitution], but that's
-precisely the argument that's being made by petitioners here, that
-a limited time which is extendable is the functional equivalent of
-an unlimited time.
+justice scalia: You say that the functional equivalent of an unlimited
+time would be a violation [of the Constitution], but that's precisely
+the argument that's being made by petitioners here, that a limited
+time which is extendable is the functional equivalent of an unlimited
+time.
When Olson was finished, it was my turn to give a closing rebuttal.
Olson's flailing had revived my anger. But my anger still was directed
to the academic, not the practical. The government was arguing as if
-this were the first case ever to consider limits on Congress's Copyright
-and Patent Clause power. Ever the professor and not the advocate, I
-closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause—
-indeed, the very first case striking a law of Congress as exceeding a
- specific
-enumerated power was based upon the Copyright and Patent
-Clause. All true. But it wasn't going to move the Court to my side.
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+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
@@ -11526,23 +11465,19 @@ answered differently. But one way of thinking about this case left me
optimistic.
-The government had been asked over and over again, what is the
-limit? Over and over again, it had answered there is no limit. This
-was precisely the answer I wanted the Court to hear. For I could not
-imagine how the Court could understand that the government
- believed
-Congress's power was unlimited under the terms of the
- Copyright
-Clause, and sustain the government's argument. The solicitor
-general had made my argument for me. No matter how often I tried,
-I could not understand how the Court could find that Congress's
-power under the Commerce Clause was limited, but under the
- Copyright
-Clause, unlimited. In those rare moments when I let myself
- believe
-that we may have prevailed, it was because I felt this Court—in
-particular, the Conservatives—would feel itself constrained by the rule
-of law that it had established elsewhere.
+The government had been asked over and over again, what is the limit?
+Over and over again, it had answered there is no limit. This was
+precisely the answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+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
@@ -11557,43 +11492,41 @@ phone off the hook, posted an announcement to our blog, and sat
down to see where I had been wrong in my reasoning.
-My reasoning. Here was a case that pitted all the money in the
-world against reasoning. And here was the last naïve law professor,
-scouring the pages, looking for reasoning.
+My reasoning. Here was a case that pitted all the
+money in the world against reasoning. And here
+was the last naïve law professor, scouring the pages, looking for
+reasoning.
-I first scoured the opinion, looking for how the Court would
- distinguish
-the principle in this case from the principle in Lopez. The
- argument
-was nowhere to be found. The case was not even cited. The
-argument that was the core argument of our case did not even appear
-in the Court's opinion.
+I first scoured the opinion, looking for how the Court would
+distinguish the principle in this case from the principle in
+Lopez. The argument was nowhere to be found. The case was not even
+cited. The argument that was the core argument of our case did not
+even appear in the Court's opinion.
Justice Ginsburg simply ignored the enumerated powers argument.
-Consistent with her view that Congress's power was not limited
- generally,
-she had found Congress's power not limited here.
+Consistent with her view that Congress's power was not limited
+generally, she had found Congress's power not limited here.
Her opinion was perfectly reasonable—for her, and for Justice
-Souter. Neither believes in Lopez. It would be too much to expect them
+Souter. Neither believes in Lopez. It would be too much to expect them
to write an opinion that recognized, much less explained, the doctrine
they had worked so hard to defeat.
But as I realized what had happened, I couldn't quite believe what I
was reading. I had said there was no way this Court could reconcile
-limited powers with the Commerce Clause and unlimited powers with
-the Progress Clause. It had never even occurred to me that they could
-reconcile the two simply by not addressing the argument. There was no
-inconsistency because they would not talk about the two together.
-There was therefore no principle that followed from the Lopez case: In
-that context, Congress's power would be limited, but in this context it
-would not.
+limited powers with the Commerce Clause and unlimited powers with the
+Progress Clause. It had never even occurred to me that they could
+reconcile the two simply by not addressing the
+argument. There was no inconsistency because they would not
+talk about the two together. There was therefore no principle that
+followed from the Lopez case: In that context, Congress's power would
+be limited, but in this context it would not.
Yet by what right did they get to choose which of the framers' values
@@ -11633,10 +11566,10 @@ unlimited, then it was unconstitutional.
These two justices understood all the arguments we had made. But
-because neither believed in the Lopez case, neither was willing to push
+because neither believed in the Lopez case, neither was willing to push
it as a reason to reject this extension. The case was decided without
anyone having addressed the argument that we had carried from Judge
-Sentelle. It was Hamlet without the Prince.
+Sentelle. It was Hamlet without the Prince.
Defeat brings depression. They say it is a sign of health when
@@ -11645,7 +11578,7 @@ the depression. This anger was of two sorts.
It was first anger with the five "Conservatives." It would have been
-one thing for them to have explained why the principle of Lopez didn't
+one thing for them to have explained why the principle of Lopez didn't
apply in this case. That wouldn't have been a very convincing
argument, I don't believe, having read it made by others, and having
tried to make it myself. But it at least would have been an act of
@@ -11653,7 +11586,7 @@ integrity. These justices in particular have repeatedly said that the
proper mode of interpreting the Constitution is "originalism"—to
first understand the framers' text, interpreted in their context, in
light of the structure of the Constitution. That method had produced
-Lopez and many other "originalist" rulings. Where was their
+Lopez and many other "originalist" rulings. Where was their
"originalism" now?
@@ -11713,6 +11646,7 @@ should decide the issue.
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
@@ -11733,6 +11667,7 @@ 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
@@ -11752,7 +11687,7 @@ the decision was praised, it was praised by papers that had been
skeptical of the Court's activism in other cases. Deference was a good
thing, even if it left standing a silly law. But where the decision
was attacked, it was attacked because it left standing a silly and
-harmful law. The New York Times wrote in its editorial,
+harmful law. The New York Times wrote in its editorial,
@@ -11770,10 +11705,11 @@ hilarious images—of Mickey in jail and the like. The best, from
my view of the case, was Ruben Bolling's, reproduced on the next
page. The "powerful and wealthy" line is a bit unfair. But the punch
in the face felt exactly like that.
+Bolling, Ruben
The image that will always stick in my head is that evoked by the
-quote from The New York Times. That "grand experiment" we call the
+quote from The New York Times. That "grand experiment" we call the
"public domain" is over? When I can make light of it, I think, "Honey,
I shrunk the Constitution." But I can rarely make light of it. We had
in our Constitution a commitment to free culture. In the case that I
@@ -11781,12 +11717,12 @@ fathered, the Supreme Court effectively renounced that commitment. A
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
+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
@@ -11805,7 +11741,7 @@ that." And so, having failed in the argument of constitutional principle,
finally, I turned to an argument of politics.
-The New York Times published the piece. In it, I proposed a simple
+The New York Times published the piece. In it, I proposed a simple
fix: Fifty years after a work has been published, the copyright owner
would be required to register the work and pay a small fee. If he paid
@@ -11873,8 +11809,8 @@ works in national repositories, principally the National Museum.
Copies of books published in the United Kingdom must be deposited in
the British Library. The German Copyright Act provides for a Registrar
of Authors where the author's true name can be filed in the case of
-anonymous or pseudonymous works. Paul Goldstein, International
-Intellectual Property Law, Cases and Materials (New York: Foundation
+anonymous or pseudonymous works. Paul Goldstein, International
+Intellectual Property Law, Cases and Materials (New York: Foundation
Press, 2001), 153–54.
The Europeans are said to view copyright as a "natural right." Natural
rights don't need forms to exist. Traditions, like the Anglo-American
@@ -11898,8 +11834,8 @@ Convention in 1908, to require copyright terms of life plus fifty
years, as well as the abolition of copyright formalities. The
formalities were hated because the stories of inadvertent loss were
increasingly common. It was as if a Charles Dickens character ran all
-copyright offices, and the failure to dot an i or cross a t resulted
-in the loss of widows' only income.
+copyright offices, and the failure to dot an i or cross a
+t resulted in the loss of widows' only income.
These complaints were real and sensible. And the strictness of the
@@ -11965,8 +11901,9 @@ with confidence unless there is some simple way to authenticate who is
the author and what rights he has. Simple transactions are destroyed in
-a world without formalities. Complex, expensive, lawyer transactions
-take their place.
+a world without formalities. Complex, expensive,
+lawyer transactions take their place.
+Lovett, Lyle
This was the understanding of the problem with the Sonny Bono
@@ -11985,7 +11922,7 @@ a huge and obvious burden on the creative process. If the only way a
library can offer an Internet exhibit about the New Deal is to hire a
lawyer to clear the rights to every image and sound, then the
copyright system is burdening creativity in a way that has never been
-seen before because there are no formalities.
+seen before because there are no formalities.
The Eldred Act was designed to respond to exactly this problem. If
@@ -12014,15 +11951,15 @@ doubt because they are terribly funded) in enabling simple and cheap
registrations. Any real solution to the problem of formalities must
-address the real problem of governments standing at the core of any
-system of formalities. In this book, I offer such a solution. That
-solution essentially remakes the Copyright Office. For now, assume it
-was Amazon that ran the registration system. Assume it was one-click
-registration. The Eldred Act would propose a simple, one-click
-registration fifty years after a work was published. Based upon
-historical data, that system would move up to 98 percent of commercial
-work, commercial work that no longer had a commercial life, into the
-public domain within fifty years. What do you think?
+address the real problem of governments standing
+at the core of any system of formalities. In this book, I offer such a
+solution. That solution essentially remakes the Copyright Office. For
+now, assume it was Amazon that ran the registration system. Assume it
+was one-click registration. The Eldred Act would propose a simple,
+one-click registration fifty years after a work was published. Based
+upon historical data, that system would move up to 98 percent of
+commercial work, commercial work that no longer had a commercial life,
+into the public domain within fifty years. What do you think?
Forbes, Steve
@@ -12039,6 +11976,7 @@ 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
@@ -12123,19 +12061,21 @@ What does this industry really want?
With very little effort, the warriors could protect their content. So
the effort to block something like the Eldred Act is not really about
-protecting their content. The effort to block the Eldred Act is an effort
-to assure that nothing more passes into the public domain. It is another
-step to assure that the public domain will never compete, that there
-will be no use of content that is not commercially controlled, and that
-there will be no commercial use of content that doesn't require their
-permission first.
+protecting their content. The effort to block the
+Eldred Act is an effort to assure that nothing more passes into the
+public domain. It is another step to assure that the public domain
+will never compete, that there will be no use of content that is not
+commercially controlled, and that there will be no commercial use of
+content that doesn't require their permission
+first.
The opposition to the Eldred Act reveals how extreme the other side
is. The most powerful and sexy and well loved of lobbies really has as
its aim not the protection of "property" but the rejection of a
-tradition. Their aim is not simply to protect what is theirs. Their
-aim is to assure that all there is is what is theirs.
+tradition. Their aim is not simply to protect what is
+theirs. Their aim is to assure that all there is is what is
+theirs.
It is not hard to understand why the warriors take this view. It is not
@@ -12166,10 +12106,11 @@ owner and gain permission to build upon his work. The future will be
controlled by this dead (and often unfindable) hand of the past.
-
-
+
+CONCLUSION
+
There are more than 35 million people with the AIDS virus
worldwide. Twenty-five million of them live in sub-Saharan Africa.
@@ -12239,66 +12180,60 @@ generally permitted under international trade law and is specifically
permitted within the European Union.
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
+Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
Braithwaite, JohnDrahos, Peter
-However, the United States government opposed the bill. Indeed,
-more than opposed. As the International Intellectual Property
- Association
+However, the United States government opposed the bill. Indeed, more
+than opposed. As the International Intellectual Property Association
characterized it, "The U.S. government pressured South Africa . . .
-not to permit compulsory licensing or parallel imports."
- International Intellectual Property Institute (IIPI), Patent Protection and
-Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report
- Prepared
-for the World Intellectual Property Organization (Washington, D.C.,
-2000), 14, available at
-link #56. For a firsthand account of the struggle over
-South Africa, see Hearing Before the Subcommittee on Criminal Justice,
-Drug Policy, and Human Resources, House Committee on Government
-Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150–57
-(statement of James Love).
-
- Through the
-Office of the United States Trade Representative, the government
-asked South Africa to change the law—and to add pressure to that
- request,
-in 1998, the USTR listed South Africa for possible trade sanctions.
+not to permit compulsory licensing or parallel
+imports."
+
+International Intellectual Property Institute (IIPI), Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization (Washington, D.C., 2000), 14, available at
+link #56. For a
+firsthand account of the struggle over South Africa, see Hearing
+Before the Subcommittee on Criminal Justice, Drug Policy, and Human
+Resources, House Committee on Government Reform, H. Rep., 1st sess.,
+Ser. No. 106-126 (22 July 1999), 150–57 (statement of James
+Love).
+
+Through the Office of the United States Trade Representative, the
+government asked South Africa to change the law—and to add
+pressure to that request, in 1998, the USTR listed South Africa for
+possible trade sanctions.
-That same year, more than forty pharmaceutical companies
- began
-proceedings in the South African courts to challenge the
- government's
-actions. The United States was then joined by other governments
-from the EU. Their claim, and the claim of the pharmaceutical
- companies,
-was that South Africa was violating its obligations under
- international
-law by discriminating against a particular kind of patent—
-pharmaceutical patents. The demand of these governments, with the
-United States in the lead, was that South Africa respect these patents
-as it respects any other patent, regardless of any effect on the treatment
-of AIDS within South Africa.
- International Intellectual Property Institute (IIPI), Patent 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 have access to drugs. Poverty and the total absence of an effective
+That same year, more than forty pharmaceutical companies began
+proceedings in the South African courts to challenge the government's
+actions. The United States was then joined by other governments from
+the EU. Their claim, and the claim of the pharmaceutical companies,
+was that South Africa was violating its obligations under
+international law by discriminating against a particular kind of
+patent— pharmaceutical patents. The demand of these governments,
+with the United States in the lead, was that South Africa respect
+these patents as it respects any other patent, regardless of any
+effect on the treatment of AIDS within South Africa.
+
+International Intellectual Property Institute (IIPI), Patent
+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
+have access to drugs. Poverty and the total absence of an effective
health care infrastructure matter more. But whether patents are the
-most important reason or not, the price of drugs has an effect on their
-demand, and patents affect price. And so, whether massive or
- marginal,
-there was an effect from our government's intervention to stop
-the flow of medications into Africa.
+most important reason or not, the price of drugs has an effect on
+their demand, and patents affect price. And so, whether massive or
+marginal, there was an effect from our government's intervention to
+stop the flow of medications into Africa.
By stopping the flow of HIV treatment into Africa, the United
@@ -12318,45 +12253,41 @@ parallel import of these drugs would not substantially increase the sales
by U.S. companies.
-Instead, the argument in favor of restricting this flow of
- information,
-which was needed to save the lives of millions, was an argument
+Instead, the argument in favor of restricting this flow of
+information, which was needed to save the lives of millions, was an
+argument
about the sanctity of property.
- See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
-Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24
-May 1999, A1, available at
-link #57 ("compulsory licenses and gray
- markets
-pose a threat to the entire system of intellectual property protection");
-Robert Weissman, "AIDS and Developing Countries: Democratizing
- Access
-to Essential Medicines," Foreign Policy in Focus 4:23 (August 1999),
-available at
-link #58 (describing U.S. policy); John A. Harrelson, "TRIPS,
-Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper
-Balance Between Intellectual Property Rights and Compassion, a
- Synopsis,"
-Widener Law Symposium Journal (Spring 2001): 175.
+
+See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
+Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24
+May 1999, A1, available at
+link #57
+("compulsory licenses and gray markets pose a threat to the entire
+system of intellectual property protection"); Robert Weissman, "AIDS
+and Developing Countries: Democratizing Access to Essential
+Medicines," Foreign Policy in Focus 4:23 (August 1999), available at
+link #58
+(describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical
+Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
+Intellectual Property Rights and Compassion, a Synopsis," Widener Law
+Symposium Journal (Spring 2001): 175.
- It was because "intellectual property"
-would be violated that these 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.
+It was because "intellectual property" would be violated that these
+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
-let this happen? How could we allow a policy to be pursued whose
- direct
-cost would be to speed the death of 15 to 30 million Africans, and
-whose only real benefit would be to uphold the "sanctity" of an 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?
+let this happen? How could we allow a policy to be pursued whose
+direct cost would be to speed the death of 15 to 30 million Africans,
+and whose only real benefit would be to uphold the "sanctity" of an
+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?
Some blame the drug companies. I don't. They are corporations.
@@ -12368,12 +12299,11 @@ a corruption the drug companies are certainly not responsible for.
The corruption is our own politicians' failure of integrity. For the
-drug companies would love—they say, and I believe them—to sell their
-drugs as cheaply as they can to countries in Africa and 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.
+drug companies would love—they say, and I believe them—to
+sell their drugs as cheaply as they can to countries in Africa and
+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.
A different problem, however, could not be overcome. This is the
@@ -12397,31 +12327,31 @@ against what we have done, how will we justify what we have done?
What is the argument?
-A sensible patent policy could endorse and strongly support the
-patent system without having to reach everyone everywhere in exactly
-the same way. Just as a sensible copyright policy could endorse and
-strongly support a copyright system without having to regulate the
-spread of culture perfectly and forever, a sensible patent policy could
-endorse and strongly support a patent system without having to block
-the spread of drugs to a country not rich enough to afford market
-prices 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.
+A sensible patent policy could endorse and strongly support the patent
+system without having to reach everyone everywhere in exactly the same
+way. Just as a sensible copyright policy could endorse and strongly
+support a copyright system without having to regulate the spread of
+culture perfectly and forever, a sensible patent policy could endorse
+and strongly support a patent system without having to block the
+spread of drugs to a country not rich enough to afford market prices
+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
- extremism.
-A certain property fundamentalism, having no connection to 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
+critical eye that helps us see the difference between truth and
+extremism. A certain property fundamentalism, having no connection to
+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
ability, as a people, to develop our culture democratically. Blindness
becomes our common sense. And the challenge for anyone who would
@@ -12446,39 +12376,35 @@ produce the "perfect storm" for free culture.
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,
+ Jonathan Krim, "The Quiet War over Open-Source," Washington Post,
August 2003, E1, available at
link #59; William New, "Global Group's
-Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology
-Daily, 19 August 2003, available at
+Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology
+Daily, 19 August 2003, available at
link #60; William New, "U.S. Official
-Opposes `Open Source' Talks at WIPO," National Journal's Technology
-Daily, 19 August 2003, available at
+Opposes `Open Source' Talks at WIPO," National Journal's Technology
+Daily, 19 August 2003, available at
link #61.
- At the request of a wide range of interests, WIPO had
- decided
-to hold a meeting to discuss "open and collaborative projects to
-create public goods." These are projects that have been successful in
-producing public goods without relying exclusively upon a proprietary
-use of 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
+At the request of a wide range of interests, WIPO had decided to hold
+a meeting to discuss "open and collaborative projects to create public
+goods." These are projects that have been successful in producing
+public goods without relying exclusively upon a proprietary use of
+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
+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."
+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."
+PLoS (Public Library of Science)
The aim of the meeting was to consider this wide range of projects
@@ -12492,95 +12418,82 @@ 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
meeting.
-The projects within its scope included both commercial and
- noncommercial
-work. They primarily involved science, but from many
- perspectives.
-And WIPO was an ideal venue for this discussion, since
+The projects within its scope included both commercial and
+noncommercial work. They primarily involved science, but from many
+perspectives. And WIPO was an ideal venue for this discussion, since
WIPO is the preeminent international body dealing with intellectual
property issues.
Indeed, I was once publicly scolded for not recognizing this fact
about WIPO. In February 2003, I delivered a keynote address to a
-preparatory conference for the World Summit on the Information
- Society
-(WSIS). At a press conference before the address, I was asked
-what I would say. I responded that I would be talking a little about the
+preparatory conference for the World Summit on the Information Society
+(WSIS). At a press conference before the address, I was asked what I
+would say. I responded that I would be talking a little about the
importance of balance in intellectual property for the development of
-an information society. The moderator for the event then promptly
- interrupted
-to inform me and the assembled reporters that no question
+an information society. The moderator for the event then promptly
+interrupted to inform me and the assembled reporters that no question
about intellectual property would be discussed by WSIS, since those
questions were the exclusive domain of WIPO. In the talk that I had
-prepared, I had actually made the issue of intellectual property
- relatively
-minor. But after this astonishing statement, I made intellectual
-property the sole focus of my talk. There was no way to talk about an
-"Information Society" unless one also talked about the range of
- information
-and culture that would be free. My talk did not make my
- immoderate
-moderator very happy. And she was no doubt correct that the
-scope of intellectual property protections was ordinarily the stuff of
+prepared, I had actually made the issue of intellectual property
+relatively minor. But after this astonishing statement, I made
+intellectual property the sole focus of my talk. There was no way to
+talk about an "Information Society" unless one also talked about the
+range of information and culture that would be free. My talk did not
+make my immoderate moderator very happy. And she was no doubt correct
+that the scope of intellectual property protections was ordinarily the
+stuff of
WIPO. But in my view, there couldn't be too much of a conversation
about how much intellectual property is needed, since in my view, the
very idea of balance in intellectual property had been lost.
-So whether or not WSIS can discuss balance in intellectual
- property,
-I 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.
-
-
-But there is one project within that list that is highly controversial,
-at least among lobbyists. That project is "open source and free
- software."
-Microsoft in particular is wary of discussion of the subject. From
-its perspective, a conference to discuss open source and free software
-would be like a conference to discuss Apple's operating system. Both
-open source and free software compete with 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.
-
-
-I don't mean to enter that debate here. It is important only to make
-clear that the distinction is not between commercial and
- noncommercial
-software. There are many important companies that depend
- fundamentally
-upon open source and free software, IBM being the most
+So whether or not WSIS can discuss balance in intellectual property, I
+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.
+
+
+But there is one project within that list that is highly
+controversial, at least among lobbyists. That project is "open source
+and free software." Microsoft in particular is wary of discussion of
+the subject. From its perspective, a conference to discuss open source
+and free software would be like a conference to discuss Apple's
+operating system. Both open source and free software compete with
+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.
+
+
+I don't mean to enter that debate here. It is important only to
+make clear that the distinction is not between commercial and
+noncommercial software. There are many important companies that depend
+fundamentally upon open source and free software, IBM being the most
prominent. IBM is increasingly shifting its focus to the GNU/Linux
-operating system, the most famous bit of "free software"—and IBM is
-emphatically a commercial entity. Thus, to support "open source and
-free software" is not to oppose commercial entities. It is, instead, to
-support a mode of software development that is different from
- Microsoft's.
- Microsoft's position about free and open source software is more
- sophisticated.
-As it has repeatedly asserted, it has no problem with "open source"
-software or software in the public domain. Microsoft's principal
- opposition
-is to "free software" licensed under a "copyleft" license, meaning a
- license
-that requires the licensee to adopt the same terms on any derivative
-work. See Bradford L. Smith, "The Future of Software: Enabling the
- Marketplace
-to Decide," Government Policy Toward Open Source Software
-(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies,
-American Enterprise Institute for Public Policy Research, 2002), 69,
-available at
-link #62. See also Craig Mundie, Microsoft senior vice
- president,
-The Commercial Software Model, discussion at New York University
-Stern School of Business (3 May 2001), available at
+operating system, the most famous bit of "free software"—and IBM
+is emphatically a commercial entity. Thus, to support "open source and
+free software" is not to oppose commercial entities. It is, instead,
+to support a mode of software development that is different from
+Microsoft's.
+
+Microsoft's position about free and open source software is more
+sophisticated. As it has repeatedly asserted, it has no problem with
+"open source" software or software in the public domain. Microsoft's
+principal opposition is to "free software" licensed under a "copyleft"
+license, meaning a license that requires the licensee to adopt the
+same terms on any derivative work. See Bradford L. Smith, "The Future
+of Software: Enabling the Marketplace to Decide," Government Policy
+Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint
+Center for Regulatory Studies, American Enterprise Institute for
+Public Policy Research, 2002), 69, available at
+link #62. See also
+Craig Mundie, Microsoft senior vice president, The Commercial Software
+Model, discussion at New York University Stern School of Business (3
+May 2001), available at
link #63.
+Linux operating system
More important for our purposes, to support "open source and free
@@ -12606,7 +12519,7 @@ developer, Microsoft would oppose this WIPO meeting, and
understandable that it would use its lobbyists to get the United
States government to oppose it, as well. And indeed, that is just what
was reported to have happened. According to Jonathan Krim of the
-Washington Post, Microsoft's lobbyists succeeded in getting the United
+Washington Post, Microsoft's lobbyists succeeded in getting the United
States government to veto the meeting.
Krim, "The Quiet War over Open-Source," available at their rights. If they want to "waive" or
+"disclaim" their rights, that is, within our tradition, totally
+appropriate. When Bill Gates gives away more than $20 billion to do
+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
When Ms. Boland says that there is something wrong with a meeting
@@ -12701,12 +12616,13 @@ that control.
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.
-See Drahos with Braithwaite, Information Feudalism, 210–20.
+See Drahos with Braithwaite, Information Feudalism, 210–20.
Drahos, Peter
We will have an information society. That much is certain. Our only
-choice now is whether that information society will be free or
-feudal. The trend is toward the feudal.
+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
@@ -12782,6 +12698,8 @@ 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.
+Turner, Ted
+Safire, William
This activism did not stop the FCC, but soon after, a broad coalition
@@ -12839,11 +12757,11 @@ R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
2003, available at
link #66; Soni
Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
-N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
-Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
+Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
+"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
available at
link #67.
@@ -12909,9 +12827,12 @@ potential is ever to be realized.
-
-
+
+
+
+AFTERWORD
+
@@ -12941,7 +12862,7 @@ 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
@@ -12994,7 +12915,7 @@ way to restore a set of freedoms that we could just take for granted
before.
-
+Rebuilding Freedoms Previously Presumed: Examples
If you step back from the battle I've been describing here, you will
@@ -13054,13 +12975,13 @@ friction did.
See, for example, Marc Rotenberg, "Fair Information Practices and the
-Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
-Law Review 1 (2001): par. 6–18, available at
+Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+Law Review 1 (2001): par. 6–18, available at
link #72
(describing examples in which technology defines privacy policy). See
-also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
-in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
+also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
between technology and privacy).
And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
@@ -13122,6 +13043,7 @@ Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
+Linux operating system
Stallman's technique was to use copyright law to build a world of
@@ -13209,6 +13131,7 @@ 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
@@ -13220,8 +13143,8 @@ presumptively a good—especially when it helps spread knowledge
and science.
-
-
+
+Rebuilding Free Culture: One IdeaCreative Commons
@@ -13233,22 +13156,23 @@ increasing control effected through law and technology.
Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
-Stanford University. Its aim is to build a layer of reasonable
-copyright on top of the extremes that now reign. It does this by
-making it easy for people to build upon other people's work, by making
-it simple for creators to express the freedom for others to take and
-build upon their work. Simple tags, tied to human-readable
-descriptions, tied to bulletproof licenses, make this possible.
-
-
-Simple—which means without a middleman, or without a lawyer. By
-developing a free set of licenses that people can attach to their
-content, Creative Commons aims to mark a range of content that can
-easily, and reliably, be built upon. These tags are then linked to
-machine-readable versions of the license that enable computers
-automatically to identify content that can easily be shared. These
-three expressions together—a legal license, a human-readable
-description, and
+Stanford University. Its aim is to build a layer of
+reasonable copyright on top of the extremes that
+now reign. It does this by making it easy for people to build upon
+other people's work, by making it simple for creators to express the
+freedom for others to take and build upon their work. Simple tags,
+tied to human-readable descriptions, tied to bulletproof licenses,
+make this possible.
+
+
+Simple—which means without a middleman, or
+without a lawyer. By developing a free set of licenses that people
+can attach to their content, Creative Commons aims to mark a range of
+content that can easily, and reliably, be built upon. These tags are
+then linked to machine-readable versions of the license that enable
+computers automatically to identify content that can easily be
+shared. These three expressions together—a legal license, a
+human-readable description, and
machine-readable tags—constitute a Creative Commons license. A
Creative Commons license constitutes a grant of freedom to anyone who
@@ -13291,6 +13215,7 @@ aim is to build a movement of consumers and producers
of content ("content conducers," as attorney Mia Garlick calls them)
who help build the public domain and, by their work, demonstrate the
importance of the public domain to other creativity.
+Garlick, Mia
The aim is not to fight the "All Rights Reserved" sorts. The aim is to
@@ -13307,8 +13232,8 @@ to begin to build those rules.
Why would creators participate in giving up total control? Some
participate to better spread their content. Cory Doctorow, for
-example, is a science fiction author. His first novel, Down and Out in
-the Magic Kingdom, was released on-line and for free, under a Creative
+example, is a science fiction author. His first novel, Down and Out in
+the Magic Kingdom, was released on-line and for free, under a Creative
Commons license, on the same day that it went on sale in bookstores.
@@ -13320,8 +13245,8 @@ available for free on the Internet. Some part of (1) will download
Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
will download Cory's book, like it, and then decide to buy it. Call
them (2)-goods. If there are more (2)-goods than bad-(1)s, the
-strategy of releasing Cory's book free on-line will probably increase
-sales of Cory's book.
+strategy of releasing Cory's book free on-line will probably
+increase sales of Cory's book.
Indeed, the experience of his publisher clearly supports that
@@ -13333,7 +13258,7 @@ was a total success.
The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
-who wrote a book about the free software movement titled Free for All,
+who wrote a book about the free software movement titled Free for All,
made an electronic version of his book free on-line under a Creative
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
@@ -13341,23 +13266,24 @@ downloads increased, the used book price for his book increased, as
well.
-These are examples of using the Commons to better spread
-proprietary content. I believe that is a wonderful and common use of
-the Commons. There are others who use Creative Commons licenses for
-other reasons. Many who use the "sampling license" do so because
-anything else would be hypocritical. The sampling license says that
-others are free, for commercial or noncommercial purposes, to sample
-content from the licensed work; they are just not free to make full
-copies of the licensed work available to others. This is consistent
-with their own art—they, too, sample from others. Because the
-legal costs of sampling are so high (Walter Leaphart, manager of the
-rap group Public Enemy, which was born sampling the music of others,
-has stated that he does not "allow" Public Enemy to sample anymore,
-because the legal costs are so high
+These are examples of using the Commons to better spread proprietary
+content. I believe that is a wonderful and common use of the
+Commons. There are others who use Creative Commons licenses for other
+reasons. Many who use the "sampling license" do so because anything
+else would be hypocritical. The sampling license says that others are
+free, for commercial or noncommercial purposes, to sample content from
+the licensed work; they are just not free to make full copies of the
+licensed work available to others. This is consistent with their own
+art—they, too, sample from others. Because the
+legal costs of sampling are so high (Walter
+Leaphart, manager of the rap group Public Enemy, which was born
+sampling the music of others, has stated that he does not "allow"
+Public Enemy to sample anymore, because the legal costs are so
+high
-Willful Infringement: A Report from the Front Lines of the Real
-Culture Wars (2003), produced by Jed Horovitz, directed by Greg
+Willful Infringement: A Report from the Front Lines of the Real
+Culture Wars (2003), produced by Jed Horovitz, directed by Greg
Hittelman, a Fiat Lucre production, available at
link #72.
),
@@ -13406,9 +13332,9 @@ creativity to spread more easily.
-
-
-
+
+
+THEM, SOON
We will not reclaim a free culture by individual action alone. It will
@@ -13424,7 +13350,7 @@ is a step, not an end. But any of these steps would carry us a long way
to our end.
-
+1. More Formalities
If you buy a house, you have to record the sale in a deed. If you buy land
@@ -13464,8 +13390,8 @@ creative work of others. There are no records, there is no system to
trace— there is no simple way to know how to get permission. Yet
given the massive increase in the scope of copyright's rule, getting
permission is a necessary step for any work that builds upon our
-past. And thus, the lack of formalities forces many into silence where
-they otherwise could speak.
+past. And thus, the lack of formalities forces
+many into silence where they otherwise could speak.
The law should therefore change this requirement
@@ -13489,7 +13415,7 @@ developed by others.
-
+REGISTRATION AND RENEWAL
Under the old system, a copyright owner had to file a registration
@@ -13537,8 +13463,8 @@ formality—while producing a database
of registrations that would facilitate the licensing of content.
-
-
+
+MARKING
It used to be that the failure to include a copyright notice on a
@@ -13598,11 +13524,12 @@ For example, if a recording industry association devises a method for
marking CDs, it would propose that to the Copyright Office. The
Copyright Office would hold a hearing, at which other proposals could
be made. The Copyright Office would then select the proposal that it
-judged preferable, and it would base that choice solely upon the
-consideration of which method could best be integrated into the
-registration and renewal system. We would not count on the government
-to innovate; but we would count on the government to keep the product
-of innovation in line with its other important functions.
+judged preferable, and it would base that choice
+solely upon the consideration of which method
+could best be integrated into the registration and renewal system. We
+would not count on the government to innovate; but we would count on
+the government to keep the product of innovation in line with its
+other important functions.
Finally, marking content clearly would simplify registration
@@ -13627,9 +13554,9 @@ that assertion at the appropriate time.
-
-
-
+
+
+2. Shorter Terms
The term of copyright has gone from fourteen years to ninety-five
@@ -13637,14 +13564,15 @@ years for corporate authors, and life of the author plus seventy years for
natural authors.
-In The Future of Ideas, I proposed a seventy-five-year term, granted
-in five-year increments with a requirement of renewal every five
-years. That seemed radical enough at the time. But after we lost
-Eldred v. Ashcroft, the proposals became even more radical. The
-Economist endorsed a proposal for a fourteen-year copyright
-term.
+In The Future of Ideas, I proposed a seventy-five-year term,
+granted in five-year increments with a requirement of renewal every
+five years. That seemed radical enough at the time. But after we lost
+Eldred v. Ashcroft, the proposals became even more
+radical. The Economist endorsed a proposal for a fourteen-year
+copyright term.
+
-"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
+"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
available at
link #74.
@@ -13659,33 +13587,35 @@ terms.
-Keep it short: The term should be as long as necessary to give
-incentives to create, but no longer. If it were tied to very strong
-protections for authors (so authors were able to reclaim rights from
-publishers), rights to the same work (not derivative works) might be
-extended further. The key is not to tie the work up with legal
-regulations when it no longer benefits an author.
+Keep it short: The term should be as long as
+necessary to give incentives to create, but no longer. If it were tied
+to very strong protections for authors (so authors were able to
+reclaim rights from publishers), rights to the same work (not
+derivative works) might be extended further. The key is not to tie the
+work up with legal regulations when it no longer benefits an author.
+
-Keep it simple: The line between the public domain and protected
-content must be kept clear. Lawyers like the fuzziness of "fair use,"
-and the distinction between "ideas" and "expression." That kind of
-law gives them lots of work. But our framers had a simpler idea in
-mind: protected versus unprotected. The value of short terms is that
-there is little need to build exceptions into copyright when the term
-itself is kept short. A clear and active "lawyer-free zone" makes the
-complexities of "fair use" and "idea/expression" less necessary to
-navigate.
+Keep it simple: The line between the public
+domain and protected content must be kept clear. Lawyers like the
+fuzziness of "fair use," and the distinction between "ideas" and
+"expression." That kind of law gives them lots of work. But our
+framers had a simpler idea in mind: protected versus unprotected. The
+value of short terms is that there is little need to build exceptions
+into copyright when the term itself is kept short. A clear and active
+"lawyer-free zone" makes the complexities of "fair use" and
+"idea/expression" less necessary to navigate.
-Keep it alive: Copyright should have to be renewed. Especially if the
-maximum term is long, the copyright owner should be required to signal
-periodically that he wants the protection continued. This need not be
-an onerous burden, but there is no reason this monopoly protection has
-to be granted for free. On average, it takes ninety minutes for a
-veteran to apply for a pension.
+Keep it alive: Copyright should have to be
+renewed. Especially if the maximum term is long, the copyright owner
+should be required to signal periodically that he wants the protection
+continued. This need not be an onerous burden, but there is no reason
+this monopoly protection has to be granted for free. On average, it
+takes ninety minutes for a veteran to apply for a
+pension.
Department of Veterans Affairs, Veteran's Application for Compensation
and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
@@ -13695,27 +13625,30 @@ 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
-Keep it prospective: Whatever the term of copyright should be, the
-clearest lesson that economists teach is that a term once given should
-not be extended. It might have been a mistake in 1923 for the law to
-offer authors only a fifty-six-year term. I don't think so, but it's
-possible. If it was a mistake, then the consequence was that we got
-fewer authors to create in 1923 than we otherwise would have. But we
-can't correct that mistake today by increasing the term. No matter
-what we do today, we will not increase the number of authors who wrote
-in 1923. Of course, we can increase the reward that those who write
-now get (or alternatively, increase the copyright burden that smothers
-many works that are today invisible). But increasing their reward will
-not increase their creativity in 1923. What's not done is not done,
-and there's nothing we can do about that now.
+Keep it prospective: Whatever the term of
+copyright should be, the clearest lesson that economists teach is that
+a term once given should not be extended. It might have been a mistake
+in 1923 for the law to offer authors only a fifty-six-year term. I
+don't think so, but it's possible. If it was a mistake, then the
+consequence was that we got fewer authors to create in 1923 than we
+otherwise would have. But we can't correct that mistake today by
+increasing the term. No matter what we do today, we will not increase
+the number of authors who wrote in 1923. Of course, we can increase
+the reward that those who write now get (or alternatively, increase
+the copyright burden that smothers many works that are today
+invisible). But increasing their reward will not increase their
+creativity in 1923. What's not done is not done, and there's nothing
+we can do about that now.
-These changes together should produce an average copyright term
-that is much shorter than the current term. Until 1976, the average
-term was just 32.2 years. We should be aiming for the same.
+These changes together should produce an average
+copyright term that is much shorter than the current term. Until 1976,
+the average term was just 32.2 years. We should be aiming for the
+same.
No doubt the extremists will call these ideas "radical." (After all, I
@@ -13726,8 +13659,8 @@ a more generous copyright law than Richard Nixon presided over?
-
-
+
+3. Free Use Vs. Fair Use
As I observed at the beginning of this book, property law originally
@@ -13751,7 +13684,7 @@ Congress granted the beginnings of this right in 1870, when it
expanded the exclusive right of copyright to include a right to
control translations and dramatizations of a work.
-Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
+Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
University Press, 1967), 32.
The courts have expanded it slowly through judicial interpretation
@@ -13776,8 +13709,9 @@ a copyright runs. And they don't make sense as an amorphous grant.
Consider each limitation in turn.
-Term: If Congress wants to grant a derivative right, then that right
-should be for a much shorter term. It makes sense to protect John
+Term: If Congress wants to grant a derivative
+right, then that right should be for a much shorter term. It makes
+sense to protect John
Grisham's right to sell the movie rights to his latest novel (or at least
@@ -13785,18 +13719,20 @@ I'm willing to assume it does); but it does not make sense for that right
to run for the same term as the underlying copyright. The derivative
right could be important in inducing creativity; it is not important long
after the creative work is done.
+Grisham, John
-Scope: Likewise should the scope of derivative rights be narrowed.
-Again, there are some cases in which derivative rights are important.
-Those should be specified. But the law should draw clear lines around
-regulated and unregulated uses of copyrighted material. When all
-"reuse" of creative material was within the control of businesses,
-perhaps it made sense to require lawyers to negotiate the lines. It no
-longer makes sense for lawyers to negotiate the lines. Think about all
-the creative possibilities that digital technologies enable; now
-imagine pouring molasses into the machines. That's what this general
-requirement of permission does to the creative process. Smothers it.
+Scope: Likewise should the scope of derivative
+rights be narrowed. Again, there are some cases in which derivative
+rights are important. Those should be specified. But the law should
+draw clear lines around regulated and unregulated uses of copyrighted
+material. When all "reuse" of creative material was within the control
+of businesses, perhaps it made sense to require lawyers to negotiate
+the lines. It no longer makes sense for lawyers to negotiate the
+lines. Think about all the creative possibilities that digital
+technologies enable; now imagine pouring molasses into the
+machines. That's what this general requirement of permission does to
+the creative process. Smothers it.
This was the point that Alben made when describing the making of the
@@ -13813,8 +13749,8 @@ protected. This is the reverse of the recommendation of my colleague
Paul Goldstein.
-Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
-Jukebox (Stanford: Stanford University Press, 2003), 187–216.
+Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
+Jukebox (Stanford: Stanford University Press, 2003), 187–216.
Goldstein, Paul
His view is that the law should be written so that
@@ -13835,9 +13771,9 @@ certain statutory conditions. Either way, the effect would be to free
a great deal of culture to others to cultivate. And under a statutory
rights regime, that reuse would earn artists more income.
-
+
-
+4. Liberate the Music—Again
The battle that got this whole war going was about music, so it
@@ -13941,15 +13877,16 @@ Internet. Imagine the Internet as ubiquitous as the best cell-phone
service, where with the flip of a device, you are connected.
-In that world, it will be extremely easy to connect to services
-that give you access to content on the fly—such as Internet
-radio, content that is streamed to the user when the user
-demands. Here, then, is the critical point: When it is extremely easy
-to connect to services that give access to content, it will be easier
-to connect to services that give you access to content than it will be
-to download and store content on the many devices you will have for
-playing content. It will be easier, in other words, to subscribe than
-it will be to be a database manager, as everyone in the
+In that world, it will be extremely easy to connect to services that
+give you access to content on the fly—such as Internet radio,
+content that is streamed to the user when the user demands. Here,
+then, is the critical point: When it is extremely
+easy to connect to services that give access to content, it will be
+easier to connect to services that give you
+access to content than it will be to download and store content
+on the many devices you will have for playing
+content. It will be easier, in other words, to subscribe
+than it will be to be a database manager, as everyone in the
download-sharing world of Napster-like technologies essentially
is. Content services will compete with content sharing, even if the
services charge money for the content they give access to. Already
@@ -14076,25 +14013,27 @@ way to compensate those who are harmed.
The idea would be a modification of a proposal that has been
floated by Harvard law professor William Fisher.
- William Fisher, Digital Music: Problems and Possibilities (last revised:
-10 October 2000), available at
-link #77; William Fisher, Promises to Keep:
-Technology, Law, and the Future of Entertainment (forthcoming) (Stanford:
-Stanford University Press, 2004), ch. 6, available at
+
+William Fisher, Digital Music: Problems and Possibilities (last
+revised: 10 October 2000), available at
+link #77; William
+Fisher, Promises to Keep: Technology, Law, and the Future of
+Entertainment (forthcoming) (Stanford: Stanford University Press,
+2004), ch. 6, available at
link #78. Professor
Netanel has proposed a related idea that would exempt noncommercial
sharing from the reach of copyright and would establish compensation
to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
Noncommercial Use Levy to Allow Free P2P File Sharing," available at
link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back
-Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
+Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
Chairman of the Senate Foreign Relations Committee, 26 February 2002,
available at
-link #80; Serguei Osokine, A Quick Case for Intellectual Property
-Use Fee (IPUF), 3 March 2002, available at
+link #80; Serguei Osokine, A Quick Case for Intellectual Property
+Use Fee (IPUF), 3 March 2002, available at
link #81; Jefferson Graham,
-"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
+"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
2002, available at
link #82; Steven M. Cherry, "Getting Copyright Right,"
IEEE Spectrum Online, 1 July 2002, available at
@@ -14124,7 +14063,7 @@ tax.
Fisher's proposal is careful and comprehensive. It raises a million
questions, most of which he answers well in his upcoming book,
-Promises to Keep. The modification that I would make is relatively
+Promises to Keep. The modification that I would make is relatively
simple: Fisher imagines his proposal replacing the existing copyright
system. I imagine it complementing the existing system. The aim of
the proposal would be to facilitate compensation to the extent that
@@ -14229,9 +14168,9 @@ Yes, it should. But, again, what it should do depends upon how the
facts develop. These changes may not eliminate type A sharing. But the
real issue is not whether it eliminates sharing in the abstract. The
real issue is its effect on the market. Is it better (a) to have a
-technology that is 95 percent secure and produces a market of size x,
+technology that is 95 percent secure and produces a market of size x,
or (b) to have a technology that is 50 percent secure but produces a
-market of five times x? Less secure might produce more unauthorized
+market of five times x? Less secure might produce more unauthorized
sharing, but it is likely to also produce a much bigger market in
authorized sharing. The most important thing is to assure artists'
compensation without breaking the Internet. Once that's assured, then
@@ -14247,9 +14186,9 @@ be on finding ways to break the Internet. Our focus until we're there
should be on how to make sure the artists are paid, while protecting
the space for innovation and creativity that the Internet is.
-
+
-
+5. Fire Lots of Lawyers
I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
@@ -14276,7 +14215,7 @@ dominant scholar and practitioner in the field of copyright, Melville
Nimmer, thought it obvious.
Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
-Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
+Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
@@ -14297,8 +14236,8 @@ leading him to question his own publicly stated
position—twice. He initially predicted that downloading would
substantially harm the industry. He then revised his view in light of
the data, and he has since revised his view again. Compare Stan
-J. Liebowitz, Rethinking the Network Economy: The True Forces That
-Drive the Digital Marketplace (New York: Amacom, 2002), (reviewing his
+J. Liebowitz, Rethinking the Network Economy: The True Forces That
+Drive the Digital Marketplace (New York: Amacom, 2002), (reviewing his
original view but expressing skepticism) with Stan J. Liebowitz,
"Will MP3s Annihilate the Record Industry?" working paper, June 2003,
available at
@@ -14306,7 +14245,8 @@ available at
Liebowitz's careful analysis is extremely valuable in estimating the
effect of file-sharing technology. In my view, however, he
underestimates the costs of the legal system. See, for example,
-Rethinking, 174–76.
+Rethinking, 174–76.
+Liebowitz, Stan
They see a system that has been around for hundreds of years, and they
assume it works the way their elementary school civics class taught
@@ -14369,9 +14309,11 @@ needed. Show me how it does good. And until you can show me both,
keep your lawyers away.
-
-
-
+
+
+
+
+
NOTES