X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/2c9c248797b38d6774d0bb783cc4d4e44ee5f1cb..f00ce58f655dd2f5d45a419fd7cb8ce8c2eedc5a:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index faa4e5d..e3c59c8 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -67,10 +67,10 @@ - + - + Creative Commons, Some rights reserved @@ -135,10 +135,9 @@ Appeals. 2003063276 - - - + + You can buy a copy of this book by clicking on one of the links below: @@ -148,9 +147,11 @@ You can buy a copy of this book by clicking on one of the links below: Penguin + - + + ALSO BY LAWRENCE LESSIG @@ -160,13 +161,17 @@ The Future of Ideas: The Fate of the Commons in a Connected World Code: And Other Laws of Cyberspace - + + + THE PENGUIN PRESS, NEW YORK - + + + FREE CULTURE @@ -180,8 +185,9 @@ AND CONTROL CREATIVITY LAWRENCE LESSIG - + + THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New York @@ -255,12 +261,15 @@ this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and -the above publisher of this book. The scanning, uploading, and -distribution of this book via the Internet or via any other means -without the permission of the publisher is illegal and punishable by -law. Please purchase only authorized electronic editions and do not -participate in or encourage electronic piracy of copyrighted -materials. Your support of the author's rights is appreciated. +the above publisher of this book. + + +The scanning, uploading, and distribution of this book via the +Internet or via any other means without the permission of the +publisher is illegal and punishable by law. Please purchase only +authorized electronic editions and do not participate in or encourage +electronic piracy of copyrighted materials. Your support of the +author's rights is appreciated. @@ -486,7 +495,7 @@ book is written. - + INTRODUCTION On December 17, 1903, on a windy North Carolina beach for just @@ -1258,7 +1267,7 @@ context the current battles about behavior labeled "piracy." - + CHAPTER ONE: Creators In 1928, a cartoon character was born. An early Mickey Mouse @@ -1712,7 +1721,7 @@ free culture. It is becoming much less so. - + CHAPTER TWO: "Mere Copyists" photography @@ -2155,7 +2164,7 @@ for me something that reflects that." Not by giving a kid a video camera and … saying, "Let's go have fun with the video camera and make a little movie." But instead, really help you take these elements that you understand, that are your language, and construct meaning -about the topic. … +about the topic.… That empowers enormously. And then what happens, of @@ -2581,7 +2590,7 @@ 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 @@ -2796,7 +2805,7 @@ wrong message. And he wants to correct the record." - + CHAPTER FOUR: "Pirates" If "piracy" means using the creative property of others without @@ -3193,6 +3202,7 @@ give away. Anello, Douglas Burdick, Quentin +Hyde, Rosel H. Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the practice as a kind of @@ -3203,6 +3213,7 @@ Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel H. Hyde, chairman of the Federal Communications Commission). +Hyde, Rosel H. There may have been a "public interest" in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association @@ -3241,6 +3252,7 @@ United Artists Television, Inc.). +Heston, Charlton These were "free-ride[rs]," Screen Actor's Guild president Charlton Heston said, who were "depriving actors of @@ -3248,7 +3260,9 @@ compensation." Copyright Law Revision—CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). - +Heston, Charlton + + But again, there was another side to the debate. As Assistant Attorney @@ -3310,7 +3324,7 @@ last. Every generation—until now. - + CHAPTER FIVE: "Piracy" There is piracy of copyrighted material. Lots of it. This piracy comes @@ -4162,8 +4176,7 @@ enough, this "taking" notwithstanding. If we put these cases together, a pattern is clear: - -Pattern of Court and Congress response + @@ -4200,7 +4213,7 @@ together, a pattern is clear: -
+ In each case throughout our history, a new technology changed the @@ -4387,8 +4400,9 @@ from the implications that the copyright warriors would have us draw. - + CHAPTER SIX: Founders +Henry V William Shakespeare wrote Romeo and Juliet in 1595. The play was first published in 1597. It was the eleventh major play that @@ -4531,41 +4545,35 @@ distribute, the exclusive right to perform, and so on. So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the -term was that no one could reprint Shakespeare's work without the - permission -of the Shakespeare estate. It would not have controlled - anything, -for example, about how the work could be performed, whether +term was that no one could reprint Shakespeare's work without the +permission of the Shakespeare estate. It would not have controlled +anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be -allowed to make his films. The "copy-right" was only an exclusive right -to print—no less, of course, but also no more. +allowed to make his films. The "copy-right" was only an exclusive +right to print—no less, of course, but also no more. +Henry VIII, King of England Even that limited right was viewed with skepticism by the British. -They had had a long and ugly experience with "exclusive rights," - especially -"exclusive rights" granted by the Crown. The English had fought -a civil war in part about the Crown's practice of handing out - monopolies—especially -monopolies for works that already existed. King Henry -VIII granted a patent to print the Bible and a monopoly to Darcy to -print playing cards. The English Parliament began to fight back -against this power of the Crown. In 1656, it passed the Statute of - Monopolies, -limiting monopolies to patents for new inventions. And by -1710, Parliament was eager to deal with the growing monopoly in -publishing. - - -Thus the "copy-right," when viewed as a monopoly right, was - naturally -viewed as a right that should be limited. (However convincing -the claim that "it's my property, and I should have it forever," try +They had had a long and ugly experience with "exclusive rights," +especially "exclusive rights" granted by the Crown. The English had +fought a civil war in part about the Crown's practice of handing out +monopolies—especially monopolies for works that already +existed. King Henry VIII granted a patent to print the Bible and a +monopoly to Darcy to print playing cards. The English Parliament began +to fight back against this power of the Crown. In 1656, it passed the +Statute of Monopolies, limiting monopolies to patents for new +inventions. And by 1710, Parliament was eager to deal with the growing +monopoly in publishing. + + +Thus the "copy-right," when viewed as a monopoly right, was naturally +viewed as a right that should be limited. (However convincing the +claim that "it's my property, and I should have it forever," try sounding convincing when uttering, "It's my monopoly, and I should -have it forever.") The state would protect the exclusive right, but only -so long as it benefited society. The British saw the harms from - specialinterest -favors; they passed a law to stop them. +have it forever.") The state would protect the exclusive right, but +only so long as it benefited society. The British saw the harms from +specialinterest favors; they passed a law to stop them. Second, about booksellers. It wasn't just that the copyright was a @@ -4888,7 +4896,7 @@ protected. - + CHAPTER SEVEN: Recorders Jon Else is a filmmaker. He is best known for his documentaries and @@ -5085,7 +5093,7 @@ not. - + CHAPTER EIGHT: Transformers Allen, Paul Alben, Alex @@ -5442,7 +5450,7 @@ curse, reserved for the few. - + CHAPTER NINE: Collectors In April 1996, millions of "bots"—computer codes designed to @@ -5554,6 +5562,7 @@ Barbara Walters you could get access to [the archives], but if you are just a graduate student?" As Kahle put it,
+Quayle, Dan Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician @@ -5771,7 +5780,7 @@ that Kahle and others would exercise. - + CHAPTER TEN: "Property" Jack Valenti has been the president of the Motion Picture Association @@ -8303,8 +8312,7 @@ combine these two distinctions and draw a clear map of the changes that copyright law has undergone. In 1790, the law looked like this: - -Law status in 1790 + @@ -8326,7 +8334,7 @@ that copyright law has undergone. In 1790, the law looked like this: -
+ The act of publishing a map, chart, and book was regulated by @@ -8341,8 +8349,7 @@ noncommercial work was also free. By the end of the nineteenth century, the law had changed to this: - -Law status at the end of ninetheenth centory + @@ -8364,7 +8371,7 @@ By the end of the nineteenth century, the law had changed to this: -
+ Derivative works were now regulated by copyright law—if @@ -8380,8 +8387,7 @@ expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this: - -Law status in 1975 + @@ -8403,7 +8409,7 @@ we could say the law began to look like this: -
+ The law was interpreted to reach noncommercial copying through, say, @@ -8413,8 +8419,7 @@ technologies, especially in the context of a digital network, means that the law now looks like this: - -Law status now + @@ -8436,7 +8441,7 @@ that the law now looks like this: -
+ Every realm is governed by copyright law, whereas before most @@ -8528,7 +8533,7 @@ lawyer. PUZZLES - + CHAPTER ELEVEN: Chimera chimeras @@ -8808,7 +8813,7 @@ and will kill opportunities that could be extraordinarily valuable. - + CHAPTER TWELVE: Harms To fight "piracy," to protect "property," the content industry has @@ -9187,6 +9192,7 @@ such a view of the law will cost you and your firm dearly. Hummer, John Barry, Hank +Hummer Winblad This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the @@ -9420,6 +9426,7 @@ Digital Media in a Post-Napster World," 27 June 2003, 33–34, available at link #44. Berman, Howard L. +Hollings, Fritz But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. @@ -9665,6 +9672,7 @@ economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? Alben, Alex +Real Networks In a rare bit of candor, one RIAA expert admitted what seemed obvious to everyone at the time. As Alex Alben, vice president for Public @@ -9680,12 +9688,11 @@ the same period of time. And so the attorneys representing the webcasters asked the RIAA, … "How do you come up with a -rate that's so much higher? Why is it worth more than radio? - Because -here we have hundreds of thousands of webcasters who -want to pay, and that should establish the market rate, and if you -set the rate so high, you're going to drive the small webcasters out -of business. …" +rate that's so much higher? Why is it worth more than radio? Because +here we have hundreds of thousands of webcasters who want to pay, and +that should establish the market rate, and if you set the rate so +high, you're going to drive the small webcasters out of +business. …" And the RIAA experts said, "Well, we don't really model this as an @@ -10186,8 +10193,11 @@ success will require. - + CHAPTER THIRTEEN: Eldred + + Hawthorne, Nathaniel + In 1995, a father was frustrated that his daughters didn't seem to like Hawthorne. No doubt there was more than one such father, but at @@ -10227,6 +10237,7 @@ animated cartoons, sometimes successfully (Cinderella), s (The Hunchback of Notre Dame, Treasure Planet). These are all commercial publications of public domain works. + The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally @@ -10511,6 +10522,7 @@ 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. +Rehnquist, William H. The Supreme Court, under Chief Justice Rehnquist's command, changed that in United States v. Lopez. The government had @@ -10738,6 +10750,7 @@ digitized, and hence will simply rot away on shelves. But the for other creative works is much more dire. Agee, Michael +Hal Roach Studios Laurel and Hardy Films Consider the story of Michael Agee, chairman of Hal Roach Studios, @@ -11168,6 +11181,7 @@ Law Libraries, and the National Writers Union. American Association of Law Libraries National Writers Union +Hal Roach Studios But two briefs captured the policy argument best. One made the argument I've already described: A brief by Hal Roach Studios argued @@ -11205,6 +11219,8 @@ Kathleen Sullivan, who had argued many cases in the Court, and who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. Fried, Charles +Morrison, Alan +Public Citizen Fried was a special victory for our side. Every other former solicitor @@ -11281,15 +11297,16 @@ favorites, through copyright, with who has the right to speak. Between February and October, there was little I did beyond preparing for this case. Early on, as I said, I set the strategy. +Rehnquist, William H. -The Supreme Court was divided into two important camps. One -camp we called "the Conservatives." The other we called "the Rest." -The Conservatives included Chief Justice Rehnquist, Justice O'Connor, +The Supreme Court was divided into two important camps. One 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 -an enumerated power had to be interpreted to assure that Congress's -powers had limits. +five who had supported the Lopez/Morrison line +of cases that said that an enumerated power had to be interpreted to +assure that Congress's powers had limits. Breyer, Stephen @@ -11333,28 +11350,28 @@ had consistently argued for limits in the context of intellectual property generally. We were fairly confident he would recognize limits here. -This analysis of "the Rest" showed most clearly where our focus -had to be: on the Conservatives. To win this case, we had to crack open -these five and get at least a majority to go our way. Thus, the single - overriding -argument that animated our claim rested on the Conservatives' -most important jurisprudential innovation—the argument that Judge -Sentelle had relied upon in the Court of Appeals, that Congress's power -must be interpreted so that its enumerated powers have limits. +This analysis of "the Rest" showed most clearly where our focus had to +be: on the Conservatives. To win this case, we had to crack open these +five and get at least a majority to go our way. Thus, the single +overriding argument that animated our claim rested on the +Conservatives' most important jurisprudential innovation—the +argument that Judge Sentelle had relied upon in the Court of Appeals, +that Congress's power 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 - 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. +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 @@ -11838,7 +11855,7 @@ 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 @@ -12230,7 +12247,7 @@ controlled by this dead (and often unfindable) hand of the past. - + CONCLUSION There are more than 35 million people with the AIDS virus @@ -12955,7 +12972,7 @@ potential is ever to be realized. - + AFTERWORD @@ -13399,6 +13416,7 @@ well. Free for All (Wayner) Wayner, Peter +Public Enemy These are examples of using the Commons to better spread proprietary content. I believe that is a wonderful and common use of the @@ -14187,7 +14205,7 @@ debate by about a decade. See link #85. Fisher, William Netanel, Neil Weinstock -Promises to Keep +Promises to Keep (Fisher) Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission @@ -14213,7 +14231,7 @@ facilitate free exchange of content, supported through a taxation system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access. -Promises to Keep +Promises to Keep (Fisher) Fisher would balk at the idea of allowing the system to lapse. His aim @@ -14228,6 +14246,7 @@ uses. A system that simply charges for access would not greatly burden semiotic democracy if there were few limitations on what one was allowed to do with the content itself. +Real Networks No doubt it would be difficult to calculate the proper measure of "harm" to an industry. But the difficulty of making that calculation @@ -14452,7 +14471,7 @@ keep your lawyers away. - + NOTES Throughout this text, there are references to links on the World Wide @@ -14469,7 +14488,7 @@ the material. - + ACKNOWLEDGMENTS This book is the product of a long and as yet unsuccessful struggle that