@@ -302,27 +362,27 @@ 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.
Pogue was skeptical of the core argument of the book—that
-software, or "code," functioned as a kind of law—and his review
+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
+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.
+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
-
+
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
+on-line have fundamentally affected people who aren't online. There
is no switch that will insulate us from the Internet's effect.
@@ -335,13 +395,13 @@ important.
That tradition is the way our culture gets made. As I explain in the
-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
+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
+), 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
@@ -349,13 +409,13 @@ 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
+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"
-on the Left or "you" on the Right, but we who have no stake in the
+If we understood this change, I believe we would resist it. Not we
+on the Left or you on the Right, but we who have no stake in the
particular industries of culture that defined the twentieth century.
Whether you are on the Left or the Right, if you are in this sense
disinterested, then the story I tell here will trouble you. For the
@@ -368,9 +428,9 @@ We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
would relax limits on media concentration, an extraordinary coalition
generated more than 700,000 letters to the FCC opposing the change.
-As William Safire described marching "uncomfortably alongside CodePink
+As William Safire described marching uncomfortably alongside CodePink
Women for Peace and the National Rifle Association, between liberal
-Olympia Snowe and conservative Ted Stevens," he formulated perhaps
+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
@@ -382,7 +442,7 @@ 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
@@ -401,7 +461,7 @@ 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
are insights Stallman described decades ago. One could thus well argue
-that this work is "merely" derivative.
+that this work is merely derivative.
I accept that criticism, if indeed it is a criticism. The work of a
@@ -413,7 +473,7 @@ like Stallman, I believe those are values of our past that will need
to be defended in our future. A free culture has been our past, but it
will only be our future if we change the path we are on right now.
-
+
Like Stallman's arguments for free software, an argument for free
culture stumbles on a confusion that is hard to avoid, and even harder
to understand. A free culture is not a culture without property; it is not
@@ -436,7 +496,7 @@ book is written.
-
+INTRODUCTION
On December 17, 1903, on a windy North Carolina beach for just
@@ -450,7 +510,7 @@ flight, and a gaggle of innovators began to build upon it.
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."
+and all the space above, to an indefinite extent, upwards.
St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
@@ -477,8 +537,8 @@ because of low-flying military aircraft (the terrified chickens apparently
flew into the barn walls and died), the Causbys filed a lawsuit saying
that the government was trespassing on their land. The airplanes,
of course, never touched the surface of the Causbys' land. But if, as
-Blackstone, Kent, and Coke had said, their land reached to "an indefinite
-extent, upwards," then the government was trespassing on their
+Blackstone, Kent, and Coke had said, their land reached to an indefinite
+extent, upwards, then the government was trespassing on their
property, and the Causbys wanted it to stop.
Causby, Thomas Lee
@@ -487,9 +547,9 @@ property, and the Causbys wanted it to stop.
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
heavens, then Congress's declaration could well have been an unconstitutional
-"taking" of property without compensation. The Court acknowledged
-that "it is ancient doctrine that common law ownership of
-the land extended to the periphery of the universe." But Justice Douglas
+taking of property without compensation. The Court acknowledged
+that it is ancient doctrine that common law ownership of
+the land extended to the periphery of the universe. But Justice Douglas
had no patience for ancient doctrine. In a single paragraph, hundreds of
years of property law were erased. As he wrote for the Court,
@@ -505,11 +565,11 @@ interest, and transfer into private ownership that to which only
the public has a just claim.
United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
-that there could be a "taking" if the government's use of its land
+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)
+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
+Authorship,Stanford Law Review 48 (1996): 1293, 1333. See also Paul
Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984),
1112–13.
Causby, Thomas Lee
@@ -518,15 +578,15 @@ Goldstein, Real Property (Mineola, N.Y.: Foundation Press
-"Common sense revolts at the idea."
+Common sense revolts at the idea.
This is how the law usually works. Not often this abruptly or
impatiently, but eventually, this is how it works. It was Douglas's style not to
dither. Other justices would have blathered on for pages to reach the
-
-conclusion that Douglas holds in a single line: "Common sense revolts
-at the idea." But whether it takes pages or a few words, it is the special
+
+conclusion that Douglas holds in a single line: Common sense revolts
+at the idea. But whether it takes pages or a few words, it is the special
genius of a common law system, as ours is, that the law adjusts to the
technologies of the time. And as it adjusts, it changes. Ideas that were
as solid as rock in one age crumble in another.
@@ -542,13 +602,13 @@ themselves into walls), the Causbys of the world would find it very
hard to unite and stop the idea, and the technology, that the Wright
brothers had birthed. The Wright brothers spat airplanes into the
technological meme pool; the idea then spread like a virus in a chicken
-coop; farmers like the Causbys found themselves surrounded by "what
-seemed reasonable" given the technology that the Wrights had produced.
+coop; farmers like the Causbys found themselves surrounded by what
+seemed reasonable given the technology that the Wrights had produced.
They could stand on their farms, dead chickens in hand, and
shake their fists at these newfangled technologies all they wanted.
They could call their representatives or even file a lawsuit. But in the
-end, the force of what seems "obvious" to everyone else—the power of
-"common sense"—would prevail. Their "private interest" would not be
+end, the force of what seems obvious to everyone else—the power of
+common sense—would prevail. Their private interest would not be
allowed to defeat an obvious public gain.
@@ -585,8 +645,8 @@ until the radio locked on a broadcast that he had arranged from
seventeen miles away. The radio fell totally silent, as if dead, and
then with a clarity no one else in that room had ever heard from an
electrical device, it produced the sound of an announcer's voice:
-"This is amateur station W2AG at Yonkers, New York, operating on
-frequency modulation at two and a half meters."
+This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters.
The audience was hearing something no one had thought possible:
@@ -594,12 +654,12 @@ The audience was hearing something no one had thought possible:
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was crumpled
+sounded like a glass of water being poured. … A paper was crumpled
and torn; it sounded like paper and not like a crackling forest
-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."
+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
(Philadelphia: J. B. Lipincott Company, 1956), 209.
@@ -612,13 +672,13 @@ was working for RCA. RCA was the dominant player in the then dominant
AM radio market. By 1935, there were a thousand radio stations across
the United States, but the stations in large cities were all owned by
a handful of networks.
-
+
RCA's president, David Sarnoff, a friend of Armstrong's, was eager
that Armstrong discover a way to remove static from AM radio. So
Sarnoff was quite excited when Armstrong told him he had a device
-that removed static from "radio." But when Armstrong demonstrated
+that removed static from radio. But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
Sarnoff, David
@@ -627,8 +687,8 @@ his invention, Sarnoff was not pleased.
I thought Armstrong would invent some kind of a filter to remove
static from our AM radio. I didn't think he'd start a
revolution— start up a whole damn new industry to compete with
-RCA. See "Saints: The Heroes and Geniuses of the
-Electronic Era," First Electronic Church of America, at
+RCA. See Saints: The Heroes and Geniuses of the
+Electronic Era, First Electronic Church of America, at
www.webstationone.com/fecha, available at
link #1.
@@ -647,8 +707,8 @@ described,
The forces for FM, largely engineering, could not overcome the weight
of strategy devised by the sales, patent, and legal offices to subdue
this threat to corporate position. For FM, if allowed to develop
-unrestrained, posed . . . a complete reordering of radio power
-. . . and the eventual overthrow of the carefully restricted AM system
+unrestrained, posed … a complete reordering of radio power
+… and the eventual overthrow of the carefully restricted AM system
on which RCA had grown to power.Lessing, 226.
@@ -711,7 +771,7 @@ the government to protect it. The rhetoric of this protection is of
course always public spirited; the reality is something
different. Ideas that were as solid as rock in one age, but that, left
to themselves, would crumble in
-
+
another, are sustained through this subtle corruption of our political
process. RCA had what the Causbys did not: the power to stifle the
effect of technological change.
@@ -723,8 +783,8 @@ has become part of ordinary American life. According to the Pew
Internet and American Life Project, 58 percent of Americans had access
to the Internet in 2002, up from 49 percent two years
before.
-Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at
-Internet Access and the Digital Divide," Pew Internet and American
+Amanda Lenhart, The Ever-Shifting Internet Population: A New Look at
+Internet Access and the Digital Divide, Pew Internet and American
Life Project, 15 April 2003: 6, available at
link #2.
@@ -754,14 +814,16 @@ has introduced.
We can glimpse a sense of this change by distinguishing between
commercial and noncommercial culture, and by mapping the law's
-regulation of each. By "commercial culture" I mean that part of our
+regulation of each. By commercial culture I mean that part of our
culture that is produced and sold or produced to be sold. By
-"noncommercial culture" I mean all the rest. When old men sat around
+noncommercial culture I mean all the rest. When old men sat around
parks or on
street corners telling stories that kids and others consumed, that was
-noncommercial culture. When Noah Webster published his "Reader," or
+noncommercial culture. When Noah Webster published his Reader, or
Joel Barlow his poetry, that was commercial culture.
+Barlow, Joel
+Webster, Noah
At the beginning of our history, and for just about the whole of our
@@ -769,7 +831,7 @@ tradition, noncommercial culture was essentially unregulated. Of
course, if your stories were lewd, or if your song disturbed the
peace, then the law might intervene. But the law was never directly
concerned with the creation or spread of this form of culture, and it
-left this culture "free." The ordinary ways in which ordinary
+left this culture free. The ordinary ways in which ordinary
individuals shared and transformed their culture—telling
stories, reenacting scenes from plays or TV, participating in fan
clubs, sharing music, making tapes—were left alone by the law.
@@ -787,7 +849,7 @@ State copyright law historically protected not just the commercial interest in
publication, but also a privacy interest. By granting authors the exclusive
right to first publication, state copyright law gave authors the power to
control the spread of facts about them. See Samuel D. Warren and Louis
-D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193,
+D. Brandeis, The Right to Privacy, Harvard Law Review 4 (1890): 193,
198–200.
Brandeis, Louis D.
@@ -860,13 +922,13 @@ remakes them.
It doesn't seem this way to many. The battles over copyright and the
Internet seem remote to most. To the few who follow them, they seem
-mainly about a much simpler brace of questions—whether "piracy" will
-be permitted, and whether "property" will be protected. The "war" that
+mainly about a much simpler brace of questions—whether piracy will
+be permitted, and whether property will be protected. The war that
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
+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.
—has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
@@ -877,14 +939,14 @@ against it.
If those really were the choices, then I would be with Jack Valenti
and the content industry. I, too, am a believer in property, and
especially in the importance of what Mr. Valenti nicely calls
-"creative property." I believe that "piracy" is wrong, and that the
-law, properly tuned, should punish "piracy," whether on or off the
+creative property. I believe that piracy is wrong, and that the
+law, properly tuned, should punish piracy, whether on or off the
Internet.
But those simple beliefs mask a much more fundamental question
and a much more dramatic change. My fear is that unless we come to see
-this change, the war to rid the world of Internet "pirates" will also rid our
+this change, the war to rid the world of Internet pirates will also rid our
culture of values that have been integral to our tradition from the start.
@@ -894,7 +956,7 @@ 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
+Neil W. Netanel, Copyright and a Democratic Civil Society,Yale Law
Journal 106 (1996): 283.
Netanel, Neil Weinstock
@@ -917,7 +979,7 @@ 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,
+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
@@ -935,17 +997,17 @@ come to understand the source of this war. We must resolve it soon.
Causby, Thomas LeeCausby, Tinie
-Like the Causbys' battle, this war is, in part, about "property." The
+Like the Causbys' battle, this war is, in part, about property. The
property of this war is not as tangible as the Causbys', and no
innocent chicken has yet to lose its life. Yet the ideas surrounding
-this "property" are as obvious to most as the Causbys' claim about the
+this property are as obvious to most as the Causbys' claim about the
sacredness of their farm was to them. We are the Causbys. Most of us
take for granted the extraordinarily powerful claims that the owners
-of "intellectual property" now assert. Most of us, like the Causbys,
+of intellectual property now assert. Most of us, like the Causbys,
treat these claims as obvious. And hence we, like the Causbys, object
when a new technology interferes with this property. It is as plain to
us as it was to them that the new technologies of the Internet are
-"trespassing" upon legitimate claims of "property." It is as plain to
+trespassing upon legitimate claims of property. It is as plain to
us as it was to them that the law should intervene to stop this
trespass.
@@ -957,7 +1019,7 @@ Wright brothers technology, most of us are simply unsympathetic.
Common sense does not revolt. Unlike in the case of the unlucky
Causbys, common sense is on the side of the property owners in this
war. Unlike
-
+
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
@@ -966,7 +1028,7 @@ 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
+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.
@@ -1001,15 +1063,15 @@ view?
I don't mean to be mysterious. My own views are resolved. I believe it
was right for common sense to revolt against the extremism of the
Causbys. I believe it would be right for common sense to revolt
-against the extreme claims made today on behalf of "intellectual
-property." What the law demands today is increasingly as silly as a
+against the extreme claims made today on behalf of intellectual
+property. What the law demands today is increasingly as silly as a
sheriff arresting an airplane for trespass. But the consequences of
this silliness will be much more profound.
-The struggle that rages just now centers on two ideas: "piracy" and
-"property." My aim in this book's next two parts is to explore these two
+The struggle that rages just now centers on two ideas: piracy and
+property. My aim in this book's next two parts is to explore these two
ideas.
@@ -1023,10 +1085,10 @@ 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
+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
+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.
@@ -1042,7 +1104,7 @@ to which most of us remain oblivious.
-"PIRACY"
+<quote>PIRACY</quote>
@@ -1050,8 +1112,8 @@ to which most of us remain oblivious.
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
+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,
@@ -1067,7 +1129,7 @@ of them for his own use.
-Today we are in the middle of another "war" against "piracy." The
+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
@@ -1080,21 +1142,21 @@ 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."
+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,
+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
+There's no doubt that piracy is wrong, and that pirates should be
punished. But before we summon the executioners, we should put this
-notion of "piracy" in some context. For as the concept is increasingly
+notion of piracy in some context. For as the concept is increasingly
used, at its core is an extraordinary idea that is almost certainly wrong.
@@ -1113,33 +1175,33 @@ piracy.
Dreyfuss, Rochelle
This view runs deep within the current debates. It is what NYU law
-professor Rochelle Dreyfuss criticizes as the "if value, then right"
+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.
+See Rochelle Dreyfuss, Expressive Genericity: Trademarks as Language
+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
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
+Lisa Bannon, The Birds May Sing, but Campers Can't Unless They Pay
+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.
+Zittrain, Calling Off the Copyright War: In Battle of Property vs. Free
+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.
+There was value (the songs) so there must have been a
+right—even against the Girl Scouts.
ASCAP
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
-of law protecting creative property. But the "if value, then right"
+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.
@@ -1166,12 +1228,13 @@ Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
Florida, Richard
+Rise of the Creative Class, The (Florida)
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
commercial creators but effectively that of anyone. Although that
expansion would not matter much if copyright law regulated only
-"copying," when the law regulates as broadly and obscurely as it does,
+copying, when the law regulates as broadly and obscurely as it does,
the extension matters a lot. The burden of this law now vastly
outweighs any original benefit—certainly as it affects
noncommercial creativity, and increasingly as it affects commercial
@@ -1183,17 +1246,20 @@ commercial and noncommercial creativity, the law burdens this
creativity with insanely complex and vague rules and with the threat
of obscenely severe penalties. We may
-be seeing, as Richard Florida writes, the "Rise of the Creative Class."
+be seeing, as Richard Florida writes, the Rise of the Creative
+Class.
-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
-certainly agree with him about the importance and significance of this
-change, but I also believe the conditions under which it will be
-enabled are much more tenuous.
+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 certainly agree with him about the importance
+and significance of this change, but I also believe the conditions
+under which it will be enabled are much more tenuous.
+
Florida, Richard
+Rise of the Creative Class, The (Florida)
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
@@ -1201,13 +1267,16 @@ this creative class.
These burdens make no sense in our tradition. We should begin by
understanding that tradition a bit more and by placing in their proper
-context the current battles about behavior labeled "piracy."
+context the current battles about behavior labeled piracy.
-
+CHAPTER ONE: Creators
+
+ animated cartoons
+
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.
@@ -1252,8 +1321,8 @@ Cartoons (New York: Penguin Books, 1987), 34–35.
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."
+talents, Ub Iwerks, put it more strongly: I have never been so thrilled
+in my life. Nothing since has ever equaled it.Iwerks, Ub
@@ -1289,26 +1358,26 @@ 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
-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
+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
-Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill,"
+Steamboat Bill, Jr., itself inspired by the song Steamboat Bill,
that we get Steamboat Willie, and then from Steamboat Willie, Mickey
Mouse.
-This "borrowing" was nothing unique, either for Disney or for the
+This borrowing was nothing unique, either for Disney or for the
industry. Disney was always parroting the feature-length mainstream
films of his day.
-He was also a fan of the public domain. See Chris Sprigman, "The Mouse
-that Ate the Public Domain," Findlaw, 5 March 2002, at
+He was also a fan of the public domain. See Chris Sprigman, The Mouse
+that Ate the Public Domain, Findlaw, 5 March 2002, at
link #5.
So did many others. Early cartoons are filled with
@@ -1352,13 +1421,14 @@ creativity from the culture around him, mixed that creativity with his
own extraordinary talent, and then burned that mix into the soul of
his culture. Rip, mix, and burn.
+
This is a kind of creativity. It is a creativity that we should
remember and celebrate. There are some who would say that there is no
creativity except this kind. We don't need to go that far to recognize
-its importance. We could call this "Disney creativity," though that
-would be a bit misleading. It is, more precisely, "Walt Disney
-creativity"—a form of expression and genius that builds upon the
+its importance. We could call this Disney creativity, though that
+would be a bit misleading. It is, more precisely, Walt Disney
+creativity—a form of expression and genius that builds upon the
culture around us and makes it something different.
In 1928, the culture that Disney was free to draw upon was
@@ -1368,7 +1438,7 @@ thirty years—for that minority of creative work that was in fact
copyrighted.
Until 1976, copyright law granted an author the possibility of two terms: an
-initial term and a renewal term. I have calculated the "average" term by
+initial term and a renewal term. I have calculated the average term by
determining
the weighted average of total registrations for any particular year,
and the proportion renewing. Thus, if 100 copyrights are registered in year
@@ -1379,15 +1449,15 @@ Web site associated with this book, available at
link #6.
That means that for thirty years, on average, the authors or
-copyright holders of a creative work had an "exclusive right" to control
+copyright holders of a creative work had an exclusive right to control
certain uses of the work. To use this copyrighted work in limited ways
required the permission of the copyright owner.
At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
-permission and, hence, no lawyers. The public domain is a "lawyer-free
-zone." Thus, most of the content from the nineteenth century was free
+permission and, hence, no lawyers. The public domain is a lawyer-free
+zone. Thus, most of the content from the nineteenth century was free
for Disney to use and build upon in 1928. It was free for
anyone— whether connected or not, whether rich or not, whether
approved or not—to use and build upon.
@@ -1406,7 +1476,7 @@ permission. Yet today, the public domain is presumptive only for
content from before the Great Depression.
-Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+Of course, Walt Disney had no monopoly on Walt Disney creativity.
Nor does America. The norm of free culture has, until recently, and
except within totalitarian nations, been broadly exploited and quite
universal.
@@ -1424,8 +1494,8 @@ extraordinary system of public transportation.
Americans tend to look down upon this form of culture. That's an
unattractive characteristic of ours. We're likely to misunderstand
much about manga, because few of us have ever read anything close to
-the stories that these "graphic novels" tell. For the Japanese, manga
-cover every aspect of social life. For us, comics are "men in tights."
+the stories that these graphic novels tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are men in tights.
And anyway, it's not as if the New York subways are filled with
readers of Joyce or even Hemingway. People of different cultures
distract themselves in different ways, the Japanese in this
@@ -1446,14 +1516,14 @@ 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
keep the character in character but change its look slightly. There is no
-formula for what makes the doujinshi sufficiently "different." But they
+formula for what makes the doujinshi sufficiently different. But they
must be different if they are to be considered true doujinshi. Indeed,
there are committees that review doujinshi for inclusion within shows
and reject any copycat comic that is merely a copy.
These copycat comics are not a tiny part of the manga market. They are
-huge. More than 33,000 "circles" of creators from across Japan produce
+huge. More than 33,000 circles of creators from across Japan produce
these bits of Walt Disney creativity. More than 450,000 Japanese come
together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
@@ -1467,11 +1537,11 @@ The most puzzling feature of the doujinshi market, for those trained
in the law, at least, is that it is allowed to exist at all. Under
Japanese copyright law, which in this respect (on paper) mirrors
American copyright law, the doujinshi market is an illegal
-one. Doujinshi are plainly "derivative works." There is no general
+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
+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.
@@ -1482,12 +1552,12 @@ work without the original copyright owner's permission.
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
+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
+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"
+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
@@ -1497,10 +1567,10 @@ York: Perennial, 2000).
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi are
-allowed. Speaking of Superman, Winick told me, "there are these rules
-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."
+allowed. Speaking of Superman, Winick told me, there are these rules
+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.
@@ -1512,14 +1582,14 @@ technical violations because they spur the manga market to be more
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
+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
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
individual self-interest and decide not to press their legal
-rights. This is essentially a prisoner's dilemma solved."
+rights. This is essentially a prisoner's dilemma solved.
@@ -1530,15 +1600,15 @@ doujinshi are permitted rather than banned, but that doesn't explain
why individual copyright owners don't sue nonetheless. If the law has
no general exception for doujinshi, and indeed in some cases
individual manga artists have sued doujinshi artists, why is there not
-a more general pattern of blocking this "free taking" by the doujinshi
+a more general pattern of blocking this free taking by the doujinshi
culture?
I spent four wonderful months in Japan, and I asked this question
as often as I could. Perhaps the best account in the end was offered by
-a friend from a major Japanese law firm. "We don't have enough
-lawyers," he told me one afternoon. There "just aren't enough resources
-to prosecute cases like this."
+a friend from a major Japanese law firm. We don't have enough
+lawyers, he told me one afternoon. There just aren't enough resources
+to prosecute cases like this.
This is a theme to which we will return: that regulation by law is a
@@ -1559,16 +1629,16 @@ first start thinking about these issues, then just about now you should
be puzzled about something you hadn't thought through before.
-We live in a world that celebrates "property." I am one of those
+We live in a world that celebrates property. I am one of those
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."
+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,
+describes a set of property rights—copyright, patents,
trademark, and trade-secret—but the nature of those rights is
very different.
Vaidhyanathan, Siva
@@ -1579,8 +1649,8 @@ property.
But it takes just a second's reflection to realize that there is
-plenty of value out there that "property" doesn't capture. I don't
-mean "money can't buy you love," but rather, value that is plainly
+plenty of value out there that property doesn't capture. I don't
+mean money can't buy you love, but rather, value that is plainly
part of a process of production, including commercial as well as
noncommercial production. If Disney animators had stolen a set of
pencils to draw Steamboat Willie, we'd have no hesitation in
@@ -1588,7 +1658,7 @@ condemning that taking as wrong— even though trivial, even if
unnoticed. Yet there was nothing wrong, at least under the law of the
day, with Disney's taking from Buster Keaton or from the Brothers
Grimm. There was nothing wrong with the taking from Keaton because
-Disney's use would have been considered "fair." There was nothing
+Disney's use would have been considered fair. There was nothing
wrong with the taking from the Grimms because the Grimms' work was in
the public domain.
@@ -1611,16 +1681,16 @@ form, whether large or small.
Yet there is an obvious reluctance, even among Japanese lawyers, to
-say that the copycat comic artists are "stealing." This form of Walt
+say that the copycat comic artists are stealing. This form of Walt
Disney creativity is seen as fair and right, even if lawyers in
particular find it hard to say why.
It's the same with a thousand examples that appear everywhere once you
begin to look. Scientists build upon the work of other scientists
-without asking or paying for the privilege. ("Excuse me, Professor
+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
+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
@@ -1643,7 +1713,7 @@ 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?"
+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
@@ -1660,15 +1730,15 @@ free culture. It is becoming much less so.
-
-CHAPTER TWO: "Mere Copyists"
+
+CHAPTER TWO: <quote>Mere Copyists</quote>photography
In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call "photographs." Appropriately enough, they
-were called "daguerreotypes." The process was complicated and
+producing what we would call photographs. Appropriately enough, they
+were called daguerreotypes. The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
Association that helped regulate the industry, as do all such
@@ -1678,8 +1748,8 @@ associations, by keeping competition down so as to keep prices up.)
Yet despite high prices, the demand for daguerreotypes was strong.
This pushed inventors to find simpler and cheaper ways to make
-"automatic pictures." William Talbot soon discovered a process for
-making "negatives." But because the negatives were glass, and had to
+automatic pictures. William Talbot soon discovered a process for
+making negatives. But because the negatives were glass, and had to
be kept wet, the process still remained expensive and cumbersome. In
the 1870s, dry plates were developed, making it easier to separate the
taking of a picture from its developing. These were still plates of
@@ -1705,17 +1775,18 @@ population of photographers.
Eastman developed flexible, emulsion-coated paper film and placed
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."
+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:
+Kodak Primer, The (Eastman)
The principle of the Kodak system is the separation of the work that
any person whomsoever can do in making a photograph, from the work
-that only an expert can do. . . . We furnish anybody, man, woman or
+that only an expert can do. … We furnish anybody, man, woman or
child, who has sufficient intelligence to point a box straight and
press a button, with an instrument which altogether removes from the
practice of photography the necessity for exceptional facilities or,
@@ -1739,7 +1810,7 @@ improved. Roll film thus became the basis for the explosive growth of
popular photography. Eastman's camera first went on sale in 1888; one
year later, Kodak was printing more than six thousand negatives a day.
From 1888 through 1909, while industrial production was rising by 4.7
-percent, photographic equipment and material sales increased by
+percent, photographic equipment and material sales increased by 11
percent.
Jenkins, 177.
@@ -1757,12 +1828,12 @@ The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had
-never been able to do before. As author Brian Coe notes, "For the
+never been able to do before. As author Brian Coe notes, For the
first time the snapshot album provided the man on the street with a
-permanent record of his family and its activities. . . . For the first
+permanent record of his family and its activities. … For the first
time in history there exists an authentic visual record of the
appearance and activities of the common man made without [literary]
-interpretation or bias."
+interpretation or bias.
Coe, 58.
@@ -1773,7 +1844,7 @@ expression. The pencil or paintbrush was also a technology of
expression, of course. But it took years of training before they could
be deployed by amateurs in any useful or effective way. With the
Kodak, expression was possible much sooner and more simply. The
-barrier to expression was lowered. Snobs would sneer at its "quality";
+barrier to expression was lowered. Snobs would sneer at its quality;
professionals would discount it as irrelevant. But watch a child study
how best to frame a picture and you get a sense of the experience of
creativity that the Kodak enabled. Democratic tools gave ordinary
@@ -1799,7 +1870,7 @@ Dist. Ct. 1894).
The arguments in favor of requiring permission will sound surprisingly
-familiar. The photographer was "taking" something from the person or
+familiar. The photographer was taking something from the person or
building whose photograph he shot—pirating something of
value. Some even thought he was taking the target's soul. Just as
Disney was not free to take the pencils that his animators used to
@@ -1817,7 +1888,7 @@ have the right to capture at least those images that stand in public view.
the rule should be different for images from private spaces.
-Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
+Samuel D. Warren and Louis D. Brandeis, The Right to Privacy,Harvard Law Review 4 (1890): 193.
Brandeis, Louis D.Warren, Samuel D.
@@ -1837,8 +1908,8 @@ 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
+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).
@@ -1851,10 +1922,10 @@ photographer, then the photographer would have had to demonstrate
permission. Perhaps Eastman Kodak would have had to demonstrate
permission, too, before it developed the film upon which images were
captured. After all, if permission were not granted, then Eastman
-Kodak would be benefiting from the "theft" committed by the
+Kodak would be benefiting from the theft committed by the
photographer. Just as Napster benefited from the copyright
infringements committed by Napster users, Kodak would be benefiting
-from the "image-right" infringement of its photographers. We could
+from the image-right infringement of its photographers. We could
imagine the law then requiring that some form of permission be
demonstrated before a company developed pictures. We could imagine a
system developing to demonstrate that permission.
@@ -1874,11 +1945,11 @@ that growth would have been realized. And certainly, nothing like that
growth in a democratic technology of expression would have been
realized. If you drive through San Francisco's Presidio, you might
see two gaudy yellow school buses painted over with colorful and
-striking images, and the logo "Just Think!" in place of the name of a
-school. But there's little that's "just" cerebral in the projects that
+striking images, and the logo Just Think! in place of the name of a
+school. But there's little that's just cerebral in the projects that
these busses enable. These buses are filled with technologies that
teach kids to tinker with film. Not the film of Eastman. Not even the
-film of your VCR. Rather the "film" of digital cameras. Just Think!
+film of your VCR. Rather the film of digital cameras. Just Think!
is a project that enables kids to make films, as a way to understand
and critique the filmed culture that they find all around them. Each
year, these busses travel to more than thirty schools and enable three
@@ -1891,33 +1962,33 @@ learn.
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
-fallen dramatically. As one analyst puts it, "Five years ago, a good
+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."
+professional quality for $595.
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
-Software You Need to Create Digital Multimedia Presentations,"
+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."
+learning more and more of something teachers call media literacy.
-"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
+Media literacy, as Dave Yanofsky, the executive director of Just
+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."
+the way people access it.Yanofsky, Dave
-This may seem like an odd way to think about "literacy." For most
+This may seem like an odd way to think about literacy. For most
people, literacy is about reading and writing. Faulkner and Hemingway
-and noticing split infinitives are the things that "literate" people know
+and noticing split infinitives are the things that literate people know
about.
@@ -1926,10 +1997,10 @@ television commercials per year, or between 20,000 and 45,000
commercials generally,
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.
+Lawrence Erlbaum Associates, 1990); Findings on Family and TV
+Study,Denver Post, 25 May 1997, B6.
-it is increasingly important to understand the "grammar" of media. For
+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
@@ -1961,8 +2032,8 @@ California's Annenberg Center for Communication and dean of the
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
-texture."
+about the placement of objects, color, … rhythm, pacing, and
+texture.
Interview with Elizabeth Daley and Stephanie Barish, 13 December
@@ -1971,7 +2042,7 @@ Interview with Elizabeth Daley and Stephanie Barish, 13 December
Daley, Elizabeth
But as computers open up an interactive space where a story is
-"played" as well as experienced, that grammar changes. The simple
+played as well as experienced, that grammar changes. The simple
control of narrative is lost, and so other techniques are necessary. Author
Michael Crichton had mastered the narrative of science fiction.
But when he tried to design a computer game based on one of his
@@ -1979,9 +2050,9 @@ works, it was a new craft he had to learn. How to lead people through
a game without their feeling they have been led was not obvious, even
to a wildly successful author.
-See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
+See Scott Steinberg, Crichton Gets Medieval on PCs, E!online, 4
November 2000, available at
-link #8; "Timeline," 22 November 2000,
+link #8; Timeline, 22 November 2000,
available at
link #9.
@@ -1989,10 +2060,10 @@ available at
computer games
This skill is precisely the craft a filmmaker learns. As Daley
-describes, "people are very surprised about how they are led through a
+describes, people are very surprised about how they are led through a
film. [I]t is perfectly constructed to keep you from seeing it, so you
have no idea. If a filmmaker succeeds you do not know how you were
-led." If you know you were led through a film, the film has failed.
+led. If you know you were led through a film, the film has failed.
Yet the push for an expanded literacy—one that goes beyond text
@@ -2010,7 +2081,7 @@ being read-only.
-"Read-only." Passive recipients of culture produced elsewhere.
+Read-only. Passive recipients of culture produced elsewhere.
Couch potatoes. Consumers. This is the world of media from the
twentieth century.
@@ -2021,15 +2092,15 @@ 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
+and this literacy in particular, is to empower people to choose the
appropriate language for what they need to create or
-express."
+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.
@@ -2051,22 +2122,22 @@ students know something about—gun violence.
The class was held on Friday afternoons, and it created a relatively
new problem for the school. While the challenge in most classes was
getting the kids to come, the challenge in this class was keeping them
-away. The "kids were showing up at 6 A.M. and leaving at 5 at night,"
+away. The kids were showing up at 6 A.M. and leaving at 5 at night,
said Barish. They were working harder than in any other class to do
what education should be about—learning how to express themselves.
-Using whatever "free web stuff they could find," and relatively simple
-tools to enable the kids to mix "image, sound, and text," Barish said
+Using whatever free web stuff they could find, and relatively simple
+tools to enable the kids to mix image, sound, and text, Barish said
this class produced a series of projects that showed something about
gun violence that few would otherwise understand. This was an issue
-close to the lives of these students. The project "gave them a tool
+close to the lives of these students. The project gave them a tool
and empowered them to be able to both understand it and talk about
-it," Barish explained. That tool succeeded in creating
+it, Barish explained. That tool succeeded in creating
expression—far more successfully and powerfully than could have
-been created using only text. "If you had said to these students, `you
+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,
+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
@@ -2075,10 +2146,10 @@ this message depended upon its connection to this form of expression.
-"But isn't education about teaching kids to write?" I asked. In part,
+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
+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
@@ -2092,23 +2163,23 @@ Because they can't. You know, you've got Johnny who can look at a
video, he can play a video game, he can do graffiti all over your
walls, he can take your car apart, and he can do all sorts of other
things. He just can't read your text. So Johnny comes to school and
-you say, "Johnny, you're illiterate. Nothing you can do matters."
+you say, Johnny, you're illiterate. Nothing you can do matters.
Well, Johnny then has two choices: He can dismiss you or he [can]
dismiss himself. If his ego is healthy at all, he's going to dismiss
-you. [But i]nstead, if you say, "Well, with all these things that you
+you. [But i]nstead, if you say, Well, with all these things that you
can do, let's talk about this issue. Play for me music that you think
reflects that, or show me images that you think reflect that, or draw
-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
+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
course, is eventually, as it has happened in all these classes, they
-bump up against the fact, "I need to explain this and I really need
-to write something." And as one of the teachers told Stephanie,
+bump up against the fact, I need to explain this and I really need
+to write something. And as one of the teachers told Stephanie,
they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
@@ -2117,8 +2188,10 @@ needed to say something, as opposed to just jumping through
your hoops. They actually needed to use a language that they
didn't speak very well. But they had come to understand that they
-had a lot of power with this language."
+had a lot of power with this language.
+
When two planes crashed into the World Trade Center, another into the
@@ -2134,16 +2207,16 @@ world would be watching.
These retellings had an increasingly familiar feel. There was music
scored for the intermissions, and fancy graphics that flashed across
-the screen. There was a formula to interviews. There was "balance,"
+the screen. There was a formula to interviews. There was balance,
and seriousness. This was news choreographed in the way we have
-increasingly come to expect it, "news as entertainment," even if the
+increasingly come to expect it, news as entertainment, even if the
entertainment is tragedy.
ABCCBS
-But in addition to this produced news about the "tragedy of September
-11," those of us tied to the Internet came to see a very different
+But in addition to this produced news about the tragedy of September
+11, those of us tied to the Internet came to see a very different
production as well. The Internet was filled with accounts of the same
events. Yet these Internet accounts had a very different flavor. Some
people constructed photo pages that captured images from around the
@@ -2162,7 +2235,7 @@ instead to point to a significance in this form of speech. For like a
Kodak, the Internet enables people to capture images. And like in a
movie
-by a student on the "Just Think!" bus, the visual images could be mixed
+by a student on the Just Think! bus, the visual images could be mixed
with sound or text.
@@ -2214,13 +2287,13 @@ means rule by the people, but rule means something more than mere
elections. In our tradition, it also means control through reasoned
discourse. This was the idea that captured the imagination of Alexis
de Tocqueville, the nineteenth-century French lawyer who wrote the
-most important account of early "Democracy in America." It wasn't
+most important account of early Democracy in America. It wasn't
popular elections that fascinated him—it was the jury, an
institution that gave ordinary people the right to choose life or
death for other citizens. And most fascinating for him was that the
jury didn't just vote about the outcome they would impose. They
-deliberated. Members argued about the "right" result; they tried to
-persuade each other of the "right" result, and in criminal cases at
+deliberated. Members argued about the right result; they tried to
+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.
@@ -2233,12 +2306,12 @@ 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
+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.
+place for democratic deliberation to occur.
More bizarrely, there is generally not even permission for it to
@@ -2282,16 +2355,16 @@ is having an effect.
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
+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
+Noah Shachtman, With Incessant Postings, a Pundit Stirs the Pot, New
York Times, 16 January 2003, G5.
Lott, Trent
@@ -2320,11 +2393,11 @@ There's a second way, as well, in which blogs have a different cycle
from the mainstream press. As Dave Winer, one of the fathers of this
movement and a software author for many decades, told me, another
-difference is the absence of a financial "conflict of interest." "I think you
-have to take the conflict of interest" out of journalism, Winer told me.
-"An amateur journalist simply doesn't have a conflict of interest, or the
+difference is the absence of a financial conflict of interest.I think you
+have to take the conflict of interest out of journalism, Winer told me.
+An amateur journalist simply doesn't have a conflict of interest, or the
conflict of interest is so easily disclosed that you know you can sort of
-get it out of the way."
+get it out of the way.CNN
@@ -2342,57 +2415,57 @@ 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.")
+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
+debate—amateur not in the sense of inexperienced, but in the
sense of an Olympic athlete, meaning not paid by anyone to give their
reports. It allows for a much broader range of input into a story, as
reporting on the Columbia disaster revealed, when hundreds from across
the southwest United States turned to the Internet to retell what they
had seen.
-John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
-Information Online," New York Times, 2 February 2003, A28; Staci
-D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
+John Schwartz, Loss of the Shuttle: The Internet; A Wealth of
+Information Online,New York Times, 2 February 2003, A28; Staci
+D. Kramer, Shuttle Disaster Coverage Mixed, but Strong Overall,
Online Journalism Review, 2 February 2003, available at
link #10.
And it drives readers to read across the range of accounts and
-"triangulate," as Winer puts it, the truth. Blogs, Winer says, are
-"communicating directly with our constituency, and the middle man is
-out of it"—with all the benefits, and costs, that might entail.
+triangulate, as Winer puts it, the truth. Blogs, Winer says, are
+communicating directly with our constituency, and the middle man is
+out of it—with all the benefits, and costs, that might entail.
Winer is optimistic about the future of journalism infected
-with blogs. "It's going to become an essential skill," Winer predicts,
+with blogs. It's going to become an essential skill, Winer predicts,
for public figures and increasingly for private figures as well. It's
-not clear that "journalism" is happy about this—some journalists
+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
fired for keeping a personal Web log, published under a pseudonym,
-that dealt with some of the issues and people he was covering.")
+that dealt with some of the issues and people he was covering.)
CNN
-But it is clear that we are still in transition. "A
+But it is clear that we are still in transition. A
-lot of what we are doing now is warm-up exercises," Winer told me.
+lot of what we are doing now is warm-up exercises, Winer told me.
There is a lot that must mature before this space has its mature effect.
And as the inclusion of content in this space is the least infringing use
-of the Internet (meaning infringing on copyright), Winer said, "we will
-be the last thing that gets shut down."
+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."
+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
@@ -2411,8 +2484,8 @@ extraordinary to report.
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."
+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
@@ -2422,16 +2495,16 @@ 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
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
+or free collage, as Brown calls it. Many get to add to or transform
the tinkering of many others.
@@ -2442,32 +2515,32 @@ 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,"
-as Brown describes. "As soon as you start doing that, you . . .
+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."
+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
+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
+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
+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
+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."
+these multiple forms of intelligence.Barish, Stephanie
@@ -2491,28 +2564,28 @@ freedom that technology, and curiosity, would otherwise ensure.
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter
)
-has developed a powerful argument in favor of the "right to
-tinker" as it applies to computer science and to knowledge in
+has developed a powerful argument in favor of the right to
+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
+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.
But Brown's concern is earlier, or younger, or more fundamental. It is
about the learning that kids can do, or can't do, because of the law.
-"This is where education in the twenty-first century is going," Brown
-explains. We need to "understand how kids who grow up digital think
-and want to learn."
+This is where education in the twenty-first century is going, Brown
+explains. We need to understand how kids who grow up digital think
+and want to learn.
-"Yet," as Brown continued, and as the balance of this book will
-evince, "we are building a legal system that completely suppresses the
-natural tendencies of today's digital kids. . . . We're building an
+Yet, as Brown continued, and as the balance of this book will
+evince, we are building a legal system that completely suppresses the
+natural tendencies of today's digital kids. … We're building an
architecture that unleashes 60 percent of the brain [and] a legal
-system that closes down that part of the brain."
+system that closes down that part of the brain.
@@ -2522,14 +2595,18 @@ opportunity to spread that creativity everywhere. But we're building
the law to close down that technology.
-"No way to run a culture," as Brewster Kahle, whom we'll meet in
+No way to run a culture, as Brewster Kahle, whom we'll meet in
chapter ,
quipped to me in a rare moment of despondence.
-
+CHAPTER THREE: Catalogs
+RPIRensselaer Polytechnic Institute (RPI)
+
+ Rensselaer Polytechnic Institute (RPI)
+
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
@@ -2557,7 +2634,7 @@ Search engines are a measure of a network's intimacy. Google
brought the Internet much closer to all of us by fantastically
improving the quality of search on the network. Specialty search
-engines can do this even better. The idea of "intranet" search
+engines can do this even better. The idea of intranet search
engines, search engines that search within the network of a particular
institution, is to provide users of that institution with better
access to material from that institution. Businesses do this all the
@@ -2626,12 +2703,12 @@ the suit. As he read these papers and watched the news reports about
them, he was increasingly astonished.
-"It was absurd," he told me. "I don't think I did anything
-wrong. . . . I don't think there's anything wrong with the search
-engine that I ran or . . . what I had done to it. I mean, I hadn't
+It was absurd, he told me. I don't think I did anything
+wrong. … I don't think there's anything wrong with the search
+engine that I ran or … what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of
pirates. I just modified the search engine in a way that would make it
-easier to use"—again, a search engine,
+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
@@ -2640,11 +2717,11 @@ with music.
But the RIAA branded Jesse a pirate. They claimed he operated a
-network and had therefore "willfully" violated copyright laws. They
+network and had therefore willfully violated copyright laws. They
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
+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.
@@ -2654,7 +2731,7 @@ 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.
+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
@@ -2662,11 +2739,12 @@ the United States to award the plaintiffs close to $100
2001.
-Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
-Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
+Tim Goral, Recording Industry Goes After Campus P-2-P Networks:
+Suit Alleges $97.8 Billion in Damages,Professional Media Group LCC 6
(2003): 5, available at 2003 WL 55179443.
+
Jesse called his parents. They were supportive but a bit frightened.
An uncle was a lawyer. He began negotiations with the RIAA. They
@@ -2681,8 +2759,8 @@ essentially make it impossible for him to work in many fields of
technology for the rest of his life. He refused. They made him
understand that this process of being sued was not going to be
pleasant. (As Jesse's father recounted to me, the chief lawyer on the
-case, Matt Oppenheimer, told Jesse, "You don't want to pay another
-visit to a dentist like me.") And throughout, the RIAA insisted it
+case, Matt Oppenheimer, told Jesse, You don't want to pay another
+visit to a dentist like me.) And throughout, the RIAA insisted it
would not settle the case until it took every penny Jesse had saved.
@@ -2716,7 +2794,7 @@ 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,"
+Douglas Lichtman makes a related point in KaZaA and Punishment,Wall Street Journal, 10 September 2003, A24.
@@ -2729,27 +2807,27 @@ activist:
I was definitely not an activist [before]. I never really meant to be
-an activist. . . . [But] I've been pushed into this. In no way did I
+an activist. … [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
absurd what the RIAA has done.
Jesse's parents betray a certain pride in their reluctant activist. As
-his father told me, Jesse "considers himself very conservative, and so do
-I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
+his father told me, Jesse considers himself very conservative, and so do
+I. … He's not a tree hugger. … I think it's bizarre that they would
pick on him. But he wants to let people know that they're sending the
-wrong message. And he wants to correct the record."
+wrong message. And he wants to correct the record.
-
-CHAPTER FOUR: "Pirates"
+
+CHAPTER FOUR: <quote>Pirates</quote>
-If "piracy" means using the creative property of others without
-their permission—if "if value, then right" is true—then the history of
+If piracy means using the creative property of others without
+their permission—if if value, then right is true—then the history of
the content industry is a history of piracy. Every important sector of
-"big media" today—film, records, radio, and cable TV—was born of a
+big media today—film, records, radio, and cable TV—was born of a
kind of piracy so defined. The consistent story is how last generation's
pirates join this generation's country club—until now.
@@ -2760,13 +2838,13 @@ 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,
-which details Edison's "adventures" with copyright and patent.
+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
granted the inventor of filmmaking, Thomas Edison. These controls were
-exercised through a monopoly "trust," the Motion Pictures Patents
+exercised through a monopoly trust, the Motion Pictures Patents
Company, and were based on Thomas Edison's creative
property—patents. Edison formed the MPPC to exercise the rights
this creative property
@@ -2800,27 +2878,28 @@ license was revoked.
J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
-posted at "The Edison Movie Monopoly: The Motion Picture Patents
-Company vs. the Independent Outlaws," available at
+posted at The Edison Movie Monopoly: The Motion Picture Patents
+Company vs. the Independent Outlaws, available at
link #11. For a
discussion of the economic motive behind both these limits and the
-limits imposed by Victor on phonographs, see Randal C. Picker, "From
+limits imposed by Victor on phonographs, see Randal C. Picker, From
Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
-the Propertization of Copyright" (September 2002), University of
+the Propertization of Copyright (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159.
+Fox, WilliamGeneral Film CompanyPicker, Randal C.
-The Napsters of those days, the "independents," were companies like
+The Napsters of those days, the independents, were companies like
Fox. And no less than today, these independents were vigorously
-resisted. "Shooting was disrupted by machinery stolen, and
+resisted. Shooting was disrupted by machinery stolen, and
`accidents' resulting in loss of negatives, equipment, buildings and
-sometimes life and limb frequently occurred."
+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
@@ -2832,7 +2911,7 @@ did just that.
Of course, California grew quickly, and the effective enforcement
of federal law eventually spread west. But because patents grant the
-patent holder a truly "limited" monopoly (just seventeen years at that
+patent holder a truly limited monopoly (just seventeen years at that
time), by the time enough federal marshals appeared, the patents had
@@ -2846,25 +2925,29 @@ Edison's creative property.
The record industry was born of another kind of piracy, though to see
how requires a bit of detail about the way the law regulates music.
+
+ Fourneaux, Henri
+
+Russel, Phil
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
piano), the law gave composers the exclusive right to control copies of
their music and the exclusive right to control public performances of
their music. In other words, in 1900, if I wanted a copy of Phil Russel's
-1899 hit "Happy Mose," the law said I would have to pay for the right
+1899 hit Happy Mose, the law said I would have to pay for the right
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
Beatles
-But what if I wanted to record "Happy Mose," using Edison's phonograph
+But what if I wanted to record Happy Mose, using Edison's phonograph
or Fourneaux's player piano? Here the law stumbled. It was clear
enough that I would have to buy any copy of the musical score that I
performed in making this recording. And it was clear enough that I
would have to pay for any public performance of the work I was
recording. But it wasn't totally clear that I would have to pay for a
-"public performance" if I recorded the song in my own house (even
+public performance if I recorded the song in my own house (even
today, you don't owe the Beatles anything if you sing their songs in
the shower), or if I recorded the song from memory (copies in your
brain are not—yet— regulated by copyright law). So if I
@@ -2875,11 +2958,13 @@ then made copies of those recordings. Because of this gap in the law,
then, I could effectively pirate someone else's song without paying
its composer anything.
+
The composers (and publishers) were none too happy about
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
+Kittredge, Alfred
@@ -2896,26 +2981,27 @@ Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
of South Dakota, chairman), reprinted in Legislative History of the
Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
+Kittredge, Alfred
The innovators who developed the technology to record other
-people's works were "sponging upon the toil, the work, the talent, and
-genius of American composers,"
+people's works were sponging upon the toil, the work, the talent, and
+genius of American composers,
To Amend and Consolidate the Acts Respecting Copyright, 223
(statement of Nathan Burkan, attorney for the Music Publishers Association).
-and the "music publishing industry"
-was thereby "at the complete mercy of this one pirate."
+and the music publishing industry
+was thereby at the complete mercy of this one pirate.
To Amend and Consolidate the Acts Respecting Copyright, 226
(statement of Nathan Burkan, attorney for the Music Publishers Association).
As John Philip
-Sousa put it, in as direct a way as possible, "When they make money
-out of my pieces, I want a share of it."
+Sousa put it, in as direct a way as possible, When they make money
+out of my pieces, I want a share of it.
To Amend and Consolidate the Acts Respecting Copyright, 23
(statement of John Philip Sousa, composer).
@@ -2924,9 +3010,9 @@ To Amend and Consolidate the Acts Respecting Copyright, 23
These arguments have familiar echoes in the wars of our day. So, too,
do the arguments on the other side. The innovators who developed the
-player piano argued that "it is perfectly demonstrable that the
+player piano argued that it is perfectly demonstrable that the
introduction of automatic music players has not deprived any composer
-of anything he had before their introduction." Rather, the machines
+of anything he had before their introduction. Rather, the machines
increased the sales of sheet music.
@@ -2934,23 +3020,24 @@ 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
+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."
+statute.
To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
+American Graphophone Company
The law soon resolved this battle in favor of the composer
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
+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
@@ -2962,8 +3049,8 @@ 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
+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)
@@ -3043,17 +3130,17 @@ 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.
+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
+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
+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.
+Copyright,University of Chicago Law Review 70 (2003): 281.
Hand, LearnedPicker, Randal C.
@@ -3065,7 +3152,7 @@ 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
+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
@@ -3099,7 +3186,7 @@ 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
the sale of her CDs. The public performance of her recording is not a
-"protected" right. The radio station thus gets to
+protected right. The radio station thus gets to
pirate the value of Madonna's work without paying
her anything.
@@ -3132,21 +3219,23 @@ give away.
Anello, DouglasBurdick, 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
-"unfair and potentially destructive competition."
+unfair and potentially destructive competition.
Copyright Law Revision—CATV: Hearing on S. 1006 Before the
Subcommittee on Patents, Trademarks, and Copyrights of the Senate
Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
(statement of Rosel H. Hyde, chairman of the Federal Communications
Commission).
+Hyde, Rosel H.
-There may have been a "public interest" in spreading the reach of cable
+There may have been a public interest in spreading the reach of cable
TV, but as Douglas Anello, general counsel to the National Association
-of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
-interest dictate that you use somebody else's property?"
+of Broadcasters, asked Senator Quentin Burdick during testimony, Does public
+interest dictate that you use somebody else's property?
Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
general counsel of the National Association of Broadcasters).
@@ -3180,14 +3269,17 @@ United Artists Television, Inc.).
+Heston, Charlton
-These were "free-ride[rs]," Screen Actor's Guild president Charlton
-Heston said, who were "depriving actors of
-compensation."
+These were free-ride[rs], Screen Actor's Guild president Charlton
+Heston said, who were depriving actors of
+compensation.
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
-
+Heston, Charlton
+
+
But again, there was another side to the debate. As Assistant Attorney
@@ -3198,7 +3290,7 @@ General Edwin Zimmerman put it,
Our point here is that unlike the problem of whether you have any
copyright protection at all, the problem here is whether copyright
holders who are already compensated, who already have a monopoly,
-should be permitted to extend that monopoly. . . . The
+should be permitted to extend that monopoly. … The
question here is how much compensation they should have and
@@ -3217,18 +3309,18 @@ Court held that the cable companies owed the copyright owners nothing.
It took Congress almost thirty years before it resolved the question
-of whether cable companies had to pay for the content they "pirated."
+of whether cable companies had to pay for the content they pirated.
In the end, Congress resolved this question in the same way that it
resolved the question about record players and player pianos. Yes,
cable companies would have to pay for the content that they broadcast;
but the price they would have to pay was not set by the copyright
owner. The price was set by law, so that the broadcasters couldn't
exercise veto power over the emerging technologies of cable. Cable
-companies thus built their empire in part upon a "piracy" of the value
+companies thus built their empire in part upon a piracy of the value
created by broadcasters' content.
-These separate stories sing a common theme. If "piracy" means
+These separate stories sing a common theme. If piracy means
using value from someone else's creative property without permission
from that creator—as it is increasingly described
today
@@ -3236,21 +3328,21 @@ today
See, for example, National Music Publisher's Association, The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
Information, available at
-link #13. "The
+link #13. The
threat of piracy—the use of someone else's creative work without
-permission or compensation—has grown with the Internet."
+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
+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"
+
+CHAPTER FIVE: <quote>Piracy</quote>
There is piracy of copyrighted material. Lots of it. This piracy comes
in many forms. The most significant is commercial piracy, the
@@ -3260,10 +3352,10 @@ defense, this taking is wrong. No one should condone it, and the law
should stop it.
-But as well as copy-shop piracy, there is another kind of "taking"
+But as well as copy-shop piracy, there is another kind of taking
that is more directly related to the Internet. That taking, too, seems
wrong to many, and it is wrong much of the time. Before we paint this
-taking "piracy," however, we should understand its nature a bit more.
+taking piracy, however, we should understand its nature a bit more.
For the harm of this taking is significantly more ambiguous than
outright copying, and the law should account for that ambiguity, as it
has so often done in the past.
@@ -3281,7 +3373,7 @@ 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
+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
@@ -3316,7 +3408,7 @@ legal wrong, but a locally legal wrong as well.
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
-
+
not to protect copyright internationally. We may have been born a
pirate nation, but we will not allow any other nation to have a
similar childhood.
@@ -3327,20 +3419,22 @@ 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,
-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
-proposition for developing countries. Additionally, patent rights may
-lead to higher prices for staple industries such as
-agriculture. Critics of TRIPS question the disparity between burdens
-imposed upon developing countries and benefits conferred to
-industrialized nations. TRIPS does permit governments to use patents
-for public, noncommercial uses without first obtaining the patent
-holder's permission. Developing nations may be able to use this to
-gain the benefits of foreign patents at lower prices. This is a
-promising strategy for developing nations within the TRIPS framework.
+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 proposition for developing
+countries. Additionally, patent rights may lead to higher prices for
+staple industries such as agriculture. Critics of TRIPS question the
+disparity between burdens imposed upon developing countries and
+benefits conferred to industrialized nations. TRIPS does permit
+governments to use patents for public, noncommercial uses without
+first obtaining the patent holder's permission. Developing nations may
+be able to use this to gain the benefits of foreign patents at lower
+prices. This is a promising strategy for developing nations within the
+TRIPS framework.
+agricultural patentsDrahos, Peter In my view, more developing nations should take
advantage of that opportunity, but when they don't, then their laws
@@ -3356,11 +3450,11 @@ 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
+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.
+pirating were not an option. Ibid., 149.
Liebowitz, Stan
@@ -3369,8 +3463,8 @@ This is often true (though I have friends who have purchased many
thousands of pirated DVDs who certainly have enough money to pay
for the content they have taken), and it does mitigate to some degree
the harm caused by such taking. Extremists in this debate love to say,
-"You wouldn't go into Barnes & Noble and take a book off of the shelf
-without paying; why should it be any different with on-line music?"
+You wouldn't go into Barnes & Noble and take a book off of the shelf
+without paying; why should it be any different with on-line music?
The difference is, of course, that when you take a book from Barnes &
Noble, it has one less book to sell. By contrast, when you take an MP3
from a computer network, there is not one less CD that can be sold.
@@ -3385,7 +3479,7 @@ 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
+give people the right to take copyrighted content whether or not the
copyright owner wants to sell. But
@@ -3393,11 +3487,11 @@ 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.
+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"
+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
@@ -3436,6 +3530,8 @@ what—at least ordinarily. And if the law properly balances the
rights of the copyright owner with the rights of access, then
violating the law is still wrong.
GNU/Linux operating system
+Internet Explorer
+NetscapeLinux operating system
@@ -3451,12 +3547,12 @@ is flat out wrong.
But as the examples from the four chapters that introduced this part
-suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
-at least, not all "piracy" is wrong if that term is understood in the
-way it is increasingly used today. Many kinds of "piracy" are useful
+suggest, even if some piracy is plainly wrong, not all piracy is. Or
+at least, not all piracy is wrong if that term is understood in the
+way it is increasingly used today. Many kinds of piracy are useful
and productive, to produce either new content or new ways of doing
business. Neither our tradition nor any tradition has ever banned all
-"piracy" in that sense of the term.
+piracy in that sense of the term.
This doesn't mean that there are no questions raised by the latest
@@ -3479,8 +3575,8 @@ 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."
+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).
@@ -3516,12 +3612,12 @@ 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
@@ -3547,11 +3643,11 @@ 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
+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
+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.
@@ -3600,7 +3696,7 @@ 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
+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
@@ -3640,23 +3736,23 @@ 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.
+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."
+& 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,
+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
@@ -3671,11 +3767,11 @@ regulating technology was the answer.
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+turnaround. In the end, Cap Gemini concludes, the `crisis' … was
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."
+innovation at the major labels.
U.S. Congress, Copyright and Home Copying, 4.
@@ -3693,7 +3789,7 @@ 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.
-The "net harm" to the industry as a whole is the amount by which type
+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
@@ -3717,35 +3813,35 @@ available at
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
+#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)."
+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
could account for this drop. SoundScan, for example, reports a more
than 20 percent drop in the number of CDs released since 1999. That no
doubt accounts for some of the decrease in sales. Rising prices could
-account for at least some of the loss. "From 1999 to 2001, the average
-price of a CD rose 7.2 percent, from $13.04 to $14.19."
+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.
-Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
+Jane Black, Big Music's Broken Record, BusinessWeek online, 13
February 2003, available at
link #17.
Black, Jane
Competition from other forms of media could also account for some of
-the decline. As Jane Black of BusinessWeek notes, "The
+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."
+$19.99.
Ibid.
@@ -3763,17 +3859,17 @@ 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
+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."
+a huge difference between downloading a song and stealing a CD.
These are the harms—alleged and perhaps exaggerated but, let's
@@ -3814,8 +3910,8 @@ an increase of 20 percent since 1993. See Book Hunter Press, The Quie
Revolution: The Expansion of the Used Book Market (2002), available at
link #19. Used records accounted for $260 million in sales in 2002. See
National
-Association of Recording Merchandisers, "2002 Annual Survey
- Results,"
+Association of Recording Merchandisers, 2002 Annual Survey
+ Results,
available at
link #20.
@@ -3835,7 +3931,7 @@ record stores. It is different, of course, because the person making
the content available isn't making money from making the content
available. It is also different, of course, because in real space,
when I sell a record, I don't have it anymore, while in cyberspace,
-when someone shares my 1949 recording of Bernstein's "Two Love Songs,"
+when someone shares my 1949 recording of Bernstein's Two Love Songs,
I still have it. That difference would matter economically if the
owner of the copyright were selling the record in competition to my
sharing. But we're talking about the class of content that is not
@@ -3860,7 +3956,7 @@ 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
-would be a great advertisement for the "real" book. People would read
+would be a great advertisement for the real book. People would read
part on-line, and then decide whether they liked the book or not. If
they liked it, they would be more likely to buy it. Doctorow's content is
type D content. If sharing networks enable his work to be spread, then
@@ -3875,14 +3971,14 @@ lose something important in order to protect type A content.
The point throughout is this: While the recording industry
-understandably says, "This is how much we've lost," we must also ask,
-"How much has society gained from p2p sharing? What are the
+understandably says, This is how much we've lost, we must also ask,
+How much has society gained from p2p sharing? What are the
efficiencies? What is the content that otherwise would be
-unavailable?"
+unavailable?
For unlike the piracy I described in the first section of this
-chapter, much of the "piracy" that file sharing enables is plainly
+chapter, much of the piracy that file sharing enables is plainly
legal and good. And like the piracy I described in chapter
, much of
this piracy is motivated by a new way of spreading content caused by
@@ -3895,8 +3991,8 @@ balance. The law should seek that balance, and that balance will be
found only with time.
-"But isn't the war just a war against illegal sharing? Isn't the target
-just what you call type A sharing?"
+But isn't the war just a war against illegal sharing? Isn't the target
+just what you call type A sharing?
You would think. And we should hope. But so far, it is not. The
@@ -3910,7 +4006,7 @@ a technology to block the transfer of 99.4 percent of identified
infringing material, the district court told counsel for Napster 99.4
percent was not good enough. Napster had to push the infringements
-"down to zero."
+down to zero.
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
@@ -3943,13 +4039,13 @@ 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
+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
+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.
@@ -3989,7 +4085,7 @@ them today, VCRs) that Sony had produced, the Betamax. Disney's and
Universal's claim against Sony was relatively simple: Sony produced a
device, Disney and Universal claimed, that enabled consumers to engage
in copyright infringement. Because the device that Sony built had a
-"record" button, the device could be used to record copyrighted movies
+record button, the device could be used to record copyrighted movies
and shows. Sony was therefore benefiting from the copyright
infringement of its customers. It should therefore, Disney and
Universal claimed, be partially liable for that infringement.
@@ -3999,7 +4095,7 @@ There was something to Disney's and Universal's claim. Sony did
decide to design its machine to make it very simple to record television
shows. It could have built the machine to block or inhibit any direct
copying from a television broadcast. Or possibly, it could have built the
-machine to copy only if there were a special "copy me" signal on the
+machine to copy only if there were a special copy me signal on the
line. It was clear that there were many television shows that did not
grant anyone permission to copy. Indeed, if anyone had asked, no
doubt the majority of shows would not have authorized copying. And
@@ -4011,23 +4107,23 @@ for the architecture it chose.
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "When there are
+champion. Valenti called VCRs tapeworms. He warned, When there are
20, 30, 40 million of these VCRs in the land, we will be invaded by
millions of `tapeworms,' eating away at the very heart and essence of
the most precious asset the copyright owner has, his
-copyright."
+copyright.
Copyright Infringements (Audio and Video Recorders): Hearing on
S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
Picture Association of America, Inc.).
-"One does not have to be trained in sophisticated marketing and
-creative judgment," he told Congress, "to understand the devastation
+One does not have to be trained in sophisticated marketing and
+creative judgment, he told Congress, to understand the devastation
on the after-theater marketplace caused by the hundreds of millions of
tapings that will adversely impact on the future of the creative
community in this country. It is simply a question of basic economics
-and plain common sense."
+and plain common sense.
Copyright Infringements (Audio and Video Recorders), 475.
@@ -4037,13 +4133,13 @@ percent of VCR owners had movie libraries of ten videos or moreUniversal 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
-"allowing VCR owners to copy freely by the means of an exemption from
+— a use the Court would later hold was not fair. By
+allowing VCR owners to copy freely by the means of an exemption from
copyright infringementwithout creating a mechanism to compensate
-copyrightowners," Valenti testified, Congress would "take from the
+copyrightowners, Valenti testified, Congress would take from the
owners the very essence of their property: the exclusive right to
control who may use their work, that is, who may copy it and thereby
-profit from its reproduction."
+profit from its reproduction.
Copyright Infringements (Audio and Video Recorders), 485 (testimony
of Jack Valenti).
@@ -4053,11 +4149,11 @@ 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
+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
+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.
@@ -4065,6 +4161,7 @@ technology.Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
1981).
+Kozinski, Alex
But the Supreme Court reversed the decision of the Ninth Circuit.
@@ -4094,17 +4191,16 @@ by such new technology.
Congress was asked to respond to the Supreme Court's decision. But as
with the plea of recording artists about radio broadcasts, Congress
ignored the request. Congress was convinced that American film got
-enough, this "taking" notwithstanding. If we put these cases
+enough, this taking notwithstanding. If we put these cases
together, a pattern is clear:
-
-Pattern of Court and Congress response
+CASE
- WHOSE VALUE WAS "PIRATED"
+ WHOSE VALUE WAS PIRATEDRESPONSE OF THE COURTSRESPONSE OF CONGRESS
@@ -4136,7 +4232,7 @@ together, a pattern is clear:
-
-By the above decision . . . near 200,000 pounds worth of what was
+By the above decision … near 200,000 pounds worth of what was
honestly purchased at public sale, and which was yesterday thought
property is now reduced to nothing. The Booksellers of London and
Westminster, many of whom sold estates and houses to purchase
@@ -4795,7 +4889,7 @@ Ibid.
-"Ruined" is a bit of an exaggeration. But it is not an exaggeration to
+Ruined is a bit of an exaggeration. But it is not an exaggeration to
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
@@ -4823,7 +4917,7 @@ protected.
-
+CHAPTER SEVEN: Recorders
Jon Else is a filmmaker. He is best known for his documentaries and
@@ -4860,7 +4954,7 @@ Years later, when he finally got funding to complete the film, Else
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.
+unless fair use or some other privilege applies.
Else called Simpsons creator Matt Groening's office to get permission.
@@ -4879,32 +4973,32 @@ Else said. He was just confirming the permission with Fox.
Gracie Films
-Then, as Else told me, "two things happened. First we discovered
-. . . that Matt Groening doesn't own his own creation—or at
-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."
+Then, as Else told me, two things happened. First we discovered
+… that Matt Groening doesn't own his own creation—or at
+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.
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
-explained to her, "There must be some mistake here. . . . We're
-asking for your educational rate on this." That was the educational
+explained to her, There must be some mistake here. … We're
+asking for your educational rate on this. That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
-"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
+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
about
-Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And
-if you quote me, I'll turn you over to our attorneys." As an assistant
-to Herrera told Else later on, "They don't give a shit. They just want
-the money."
+Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, And
+if you quote me, I'll turn you over to our attorneys. As an assistant
+to Herrera told Else later on, They don't give a shit. They just want
+the money.
Else didn't have the money to buy the right to replay what was playing
@@ -4928,22 +5022,22 @@ 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
+episodes, rent a movie theater, and charge for tickets to come see My
+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.
But when lawyers hear this story about Jon Else and Fox, their first
-thought is "fair use."
+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
+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
Law School, 5 August 2003.
Else's use of just 4.5 seconds of an indirect shot of a Simpsons
@@ -4952,15 +5046,15 @@ not require the permission of anyone.
-So I asked Else why he didn't just rely upon "fair use." Here's his reply:
+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
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
-fair use" in an absolute legal sense. But I couldn't rely on the
+broadcast documentaries. I never had any doubt that it was clearly
+fair use in an absolute legal sense. But I couldn't rely on the
concept in any concrete way. Here's why:
@@ -4968,9 +5062,9 @@ concept in any concrete way. Here's why:
Before our films can be broadcast, the network requires that we buy
Errors and Omissions insurance. The carriers require a detailed
-"visual cue sheet" listing the source and licensing status of each
-shot in the film. They take a dim view of "fair use," and a claim of
-"fair use" can grind the application process to a halt.
+visual cue sheet listing the source and licensing status of each
+shot in the film. They take a dim view of fair use, and a claim of
+fair use can grind the application process to a halt.
@@ -4988,9 +5082,9 @@ principle.
I did, in fact, speak with one of your colleagues at Stanford Law
-School . . . who confirmed that it was fair use. He also confirmed
-that Fox would "depose and litigate you to within an inch of your
-life," regardless of the merits of my claim. He made clear that it
+School … who confirmed that it was fair use. He also confirmed
+that Fox would depose and litigate you to within an inch of your
+life, regardless of the merits of my claim. He made clear that it
would boil down to who had the bigger legal department and the deeper
pockets, me or them.
@@ -5020,7 +5114,7 @@ not.
-
+CHAPTER EIGHT: TransformersAllen, PaulAlben, Alex
@@ -5059,30 +5153,30 @@ relatively easy to get permission for that content.
Alben, Alex
-Then Alben and his team decided to include actual film clips. "Our
+Then Alben and his team decided to include actual film clips. Our
goal was that we were going to have a clip from every one of
-Eastwood's films," Alben told me. It was here that the problem
-arose. "No one had ever really done this before," Alben explained. "No
+Eastwood's films, Alben told me. It was here that the problem
+arose. No one had ever really done this before, Alben explained. No
one had ever tried to do this in the context of an artistic look at an
-actor's career."
+actor's career.Alben, Alex
Alben brought the idea to Michael Slade, the CEO of Starwave.
-Slade asked, "Well, what will it take?"
+Slade asked, Well, what will it take?Alben, Alex
-Alben replied, "Well, we're going to have to clear rights from
+Alben replied, Well, we're going to have to clear rights from
everyone who appears in these films, and the music and everything
-else that we want to use in these film clips." Slade said, "Great! Go
-for it."
+else that we want to use in these film clips. Slade said, Great! Go
+for it.
Technically, the rights that Alben had to clear were mainly those of
publicity—rights an artist has to control the commercial
-exploitation of his image. But these rights, too, burden "Rip, Mix,
-Burn" creativity, as this chapter evinces.
+exploitation of his image. But these rights, too, burden Rip, Mix,
+Burn creativity, as this chapter evinces.
artistspublicity rights on images of
@@ -5105,7 +5199,7 @@ 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
+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.
@@ -5128,16 +5222,16 @@ started calling people.
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
Others were dumbfounded at their good fortune. Alben would ask,
-"Hey, can I pay you $600 or maybe if you were in two films, you
-know, $1,200?" And they would say, "Are you for real? Hey, I'd love
-to get $1,200." And some of course were a bit difficult (estranged
+Hey, can I pay you $600 or maybe if you were in two films, you
+know, $1,200? And they would say, Are you for real? Hey, I'd love
+to get $1,200. And some of course were a bit difficult (estranged
ex-wives, in particular). But eventually, Alben and his team had
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
@@ -5148,11 +5242,11 @@ project for the purpose of releasing a retrospective.
Everyone thought it would be too hard. Everyone just threw up their
-hands and said, "Oh, my gosh, a film, it's so many copyrights, there's
+hands and said, Oh, my gosh, a film, it's so many copyrights, there's
the music, there's the screenplay, there's the director, there's the
-actors." But we just broke it down. We just put it into its
-constituent parts and said, "Okay, there's this many actors, this many
-directors, . . . this many musicians," and we just went at it very
+actors. But we just broke it down. We just put it into its
+constituent parts and said, Okay, there's this many actors, this many
+directors, … this many musicians, and we just went at it very
systematically and cleared the rights.
@@ -5167,9 +5261,9 @@ loved it, and it sold very well.
But I pressed Alben about how weird it seems that it would have to
take a year's work simply to clear rights. No doubt Alben had done
-this efficiently, but as Peter Drucker has famously quipped, "There is
+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."
+at all.
U.S. Department of Commerce Office of Acquisition Management, Seven
Steps to Performance-Based Services Acquisition, available at
@@ -5179,8 +5273,8 @@ Did it make sense, I asked Alben, that this is the way a new work
has to be made?
-For, as he acknowledged, "very few . . . have the time and resources,
-and the will to do this," and thus, very few such works would ever be
+For, as he acknowledged, very few … have the time and resources,
+and the will to do this, and thus, very few such works would ever be
made. Does it make sense, I asked him, from the standpoint of what
anybody really thought they were ever giving rights for originally, that
you would have to go clear rights for these kinds of clips?
@@ -5188,9 +5282,9 @@ you would have to go clear rights for these kinds of clips?
I don't think so. When an actor renders a performance in a movie,
-he or she gets paid very well. . . . And then when 30 seconds of
+he or she gets paid very well. … And then when 30 seconds of
that performance is used in a new product that is a retrospective
-of somebody's career, I don't think that that person . . . should be
+of somebody's career, I don't think that that person … should be
compensated for that.
@@ -5219,10 +5313,10 @@ cost. That's the thing that trips everybody up and makes this kind of
product hard to get off the ground. If you knew I have a hundred
minutes of film in this product and it's going to cost me X, then you
build your budget around it, and you can get investments and
-everything else that you need to produce it. But if you say, "Oh, I
+everything else that you need to produce it. But if you say, Oh, I
want a hundred minutes of something and I have no idea what it's going
to cost me, and a certain number of people are going to hold me up for
-money," then it becomes difficult to put one of these things together.
+money, then it becomes difficult to put one of these things together.
Alben, Alex
@@ -5241,7 +5335,7 @@ rights as he negotiates to fly from Los Angeles to San Francisco.)
These rights might well have once made sense; but as circumstances
change, they make no sense at all. Or at least, a well-trained,
regulationminimizing Republican should look at the rights and ask,
-"Does this still make sense?"
+Does this still make sense?
I've seen the flash of recognition when people get this point, but only
@@ -5265,8 +5359,8 @@ When the lights came up, I looked over to my copanelist, David
Nimmer, perhaps the leading copyright scholar and practitioner in the
nation. He had an astonished look on his face, as he peered across the
room of over 250 well-entertained judges. Taking an ominous tone, he
-began his talk with a question: "Do you know how many federal laws
-were just violated in this room?"
+began his talk with a question: Do you know how many federal laws
+were just violated in this room?Boies, David
@@ -5285,7 +5379,7 @@ enable. Technology means you can now do amazing things easily; but you
couldn't easily do them legally.
-We live in a "cut and paste" culture enabled by technology. Anyone
+We live in a cut and paste culture enabled by technology. Anyone
building a presentation knows the extraordinary freedom that the cut
and paste architecture of the Internet created—in a second you can
find just about any image you want; in another second, you can have it
@@ -5305,7 +5399,7 @@ through the mixing of Flash! and music.
All of these creations are technically illegal. Even if the creators
-wanted to be "legal," the cost of complying with the law is impossibly
+wanted to be legal, the cost of complying with the law is impossibly
high. Therefore, for the law-abiding sorts, a wealth of creativity is
never made. And for that part that is made, if it doesn't follow the
clearance rules, it doesn't get released.
@@ -5314,13 +5408,13 @@ clearance rules, it doesn't get released.
To some, these stories suggest a solution: Let's alter the mix of
rights so that people are free to build upon our culture. Free to add
or mix as they see fit. We could even make this change without
-necessarily requiring that the "free" use be free as in "free beer."
+necessarily requiring that the free use be free as in free beer.
Instead, the system could simply make it easy for follow-on creators
to compensate artists without requiring an army of lawyers to come
-along: a rule, for example, that says "the royalty owed the copyright
+along: a rule, for example, that says the royalty owed the copyright
owner of an unregistered work for the derivative reuse of his work
will be a flat 1 percent of net revenues, to be held in escrow for the
-copyright owner." Under this rule, the copyright owner could benefit
+copyright owner. Under this rule, the copyright owner could benefit
from some royalty, but he would not have the benefit of a full
property right (meaning the right to name his own price) unless he
registers the work.
@@ -5336,21 +5430,21 @@ In February 2003, DreamWorks studios announced an agreement with Mike
Myers, the comic genius of Saturday Night Live and
Austin Powers. According to the announcement, Myers and Dream-Works
-would work together to form a "unique filmmaking pact." Under the
-agreement, DreamWorks "will acquire the rights to existing motion
+would work together to form a unique filmmaking pact. Under the
+agreement, DreamWorks will acquire the rights to existing motion
picture hits and classics, write new storylines and—with the use
of stateof-the-art digital technology—insert Myers and other
actors into the film, thereby creating an entirely new piece of
-entertainment."
+entertainment.
-The announcement called this "film sampling." As Myers explained,
-"Film Sampling is an exciting way to put an original spin on existing
+The announcement called this film sampling. As Myers explained,
+Film Sampling is an exciting way to put an original spin on existing
films and allow audiences to see old movies in a new light. Rap
artists have been doing this for years with music and now we are able
-to take that same concept and apply it to film." Steven Spielberg is
-quoted as saying, "If anyone can create a way to bring old films to
-new audiences, it is Mike."
+to take that same concept and apply it to film. Steven Spielberg is
+quoted as saying, If anyone can create a way to bring old films to
+new audiences, it is Mike.
Spielberg is right. Film sampling by Myers will be brilliant. But if
@@ -5364,8 +5458,8 @@ privilege reserved for the funny and famous—and presumably rich.
This privilege becomes reserved for two sorts of reasons. The first
-continues the story of the last chapter: the vagueness of "fair use."
-Much of "sampling" should be considered "fair use." But few would
+continues the story of the last chapter: the vagueness of fair use.
+Much of sampling should be considered fair use. But few would
rely upon so weak a doctrine to create. That leads to the second reason
that the privilege is reserved for the few: The costs of negotiating the
legal rights for the creative reuse of content are astronomically high.
@@ -5377,11 +5471,11 @@ curse, reserved for the few.
-
+CHAPTER NINE: Collectors
-In April 1996, millions of "bots"—computer codes designed to
-"spider," or automatically search the Internet and copy content—began
+In April 1996, millions of bots—computer codes designed to
+spider, or automatically search the Internet and copy content—began
running across the Net. Page by page, these bots copied Internet-based
information onto a small set of computers located in a basement in San
Francisco's Presidio. Once the bots finished the whole of the Internet,
@@ -5392,7 +5486,7 @@ bits of code took copies of the Internet and stored them.
By October 2001, the bots had collected more than five years of
copies. And at a small announcement in Berkeley, California, the
archive that these copies created, the Internet Archive, was opened to
-the world. Using a technology called "the Way Back Machine," you could
+the world. Using a technology called the Way Back Machine, you could
enter a Web page, and see all of its copies going back to 1996, as
well as when those pages changed.
@@ -5425,9 +5519,9 @@ what others might prefer you forget.
The temptations remain, however. Brewster Kahle reports that the White
House changes its own press releases without notice. A May 13, 2003,
-press release stated, "Combat Operations in Iraq Have Ended." That was
-later changed, without notice, to "Major Combat Operations in Iraq
-Have Ended." E-mail from Brewster Kahle, 1 December 2003.
+press release stated, Combat Operations in Iraq Have Ended. That was
+later changed, without notice, to Major Combat Operations in Iraq
+Have Ended. E-mail from Brewster Kahle, 1 December 2003.
@@ -5473,9 +5567,9 @@ billion pages, and it was growing at about a billion pages a month.
The Way Back Machine is the largest archive of human knowledge in
-human history. At the end of 2002, it held "two hundred and thirty
-terabytes of material"—and was "ten times larger than the
-Library of Congress." And this was just the first of the archives that
+human history. At the end of 2002, it held two hundred and thirty
+terabytes of material—and was ten times larger than the
+Library of Congress. And this was just the first of the archives that
Kahle set out to build. In addition to the Internet Archive, Kahle has
been constructing the Television Archive. Television, it turns out, is
even more ephemeral than the Internet. While much of twentieth-century
@@ -5483,12 +5577,13 @@ culture was constructed through television, only a tiny proportion of
that culture is available for anyone to see today. Three hours of news
are recorded each evening by Vanderbilt University—thanks to a
specific exemption in the copyright law. That content is indexed, and
-is available to scholars for a very low fee. "But other than that,
-[television] is almost unavailable," Kahle told me. "If you were
+is available to scholars for a very low fee. But other than that,
+[television] is almost unavailable, Kahle told me. If you were
Barbara Walters you could get access to [the archives], but if you are
-just a graduate student?" As Kahle put it,
+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
@@ -5497,8 +5592,8 @@ graduate student wanting to study that, and you wanted to get those
original back and forth exchanges between the two, the
-60 Minutes episode that came out after it . . . it would be almost
-impossible. . . . Those materials are almost unfindable. . . .
+60 Minutes episode that came out after it … it would be almost
+impossible. … Those materials are almost unfindable. …
@@ -5522,13 +5617,13 @@ These rules applied to film as well. But in 1915, the Library
of Congress made an exception for film. Film could be copyrighted so
long as such deposits were made. But the filmmaker was then allowed to
borrow back the deposits—for an unlimited time at no cost. In
-1915 alone, there were more than 5,475 films deposited and "borrowed
-back." Thus, when the copyrights to films expire, there is no copy
+1915 alone, there were more than 5,475 films deposited and borrowed
+back. Thus, when the copyrights to films expire, there is no copy
held by any library. The copy exists—if it exists at
all—in the library archive of the film company.
-Doug Herrick, "Toward a National Film Collection: Motion Pictures at
-the Library of Congress," Film Library Quarterly 13 nos. 2–3
+Doug Herrick, Toward a National Film Collection: Motion Pictures at
+the Library of Congress,Film Library Quarterly 13 nos. 2–3
(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film
Preservation in the United States ( Jefferson, N.C.: McFarland &
Co., 1992), 36.
@@ -5537,10 +5632,10 @@ Co., 1992), 36.
The same is generally true about television. Television broadcasts
were originally not copyrighted—there was no way to capture the
-broadcasts, so there was no fear of "theft." But as technology enabled
+broadcasts, so there was no fear of theft. But as technology enabled
capturing, broadcasters relied increasingly upon the law. The law
required they make a copy of each broadcast for the work to be
-"copyrighted." But those copies were simply kept by the
+copyrighted. But those copies were simply kept by the
broadcasters. No library had any right to them; the government didn't
demand them. The content of this part of American culture is
practically invisible to anyone who would look.
@@ -5558,7 +5653,7 @@ events of that day.
Kahle had the same idea with film. Working with Rick Prelinger, whose
-archive of film includes close to 45,000 "ephemeral films" (meaning
+archive of film includes close to 45,000 ephemeral films (meaning
films other than Hollywood movies, films that were never copyrighted),
Kahle established the Movie Archive. Prelinger let Kahle digitize
1,300 films in this archive and post those films on the Internet to be
@@ -5569,7 +5664,7 @@ footage sales went up dramatically. People could easily find the
material they wanted to use. Some downloaded that material and made
films on their own. Others purchased copies to enable other films to
be made. Either way, the archive enabled access to this important
-part of our culture. Want to see a copy of the "Duck and Cover" film
+part of our culture. Want to see a copy of the Duck and Cover film
that instructed children how to save themselves in the middle of
nuclear attack? Go to archive.org, and you can download the film in a
few minutes—for free.
@@ -5593,7 +5688,7 @@ has—a noncommercial life.
For here is an idea that we should more clearly recognize. Every bit
-of creative property goes through different "lives." In its first
+of creative property goes through different lives. In its first
life, if the
@@ -5616,11 +5711,11 @@ longer sold.
The same has always been true about books. A book goes out of print
very quickly (the average today is after about a year
-Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
-Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune,
+Dave Barns, Fledgling Career in Antique Books: Woodstock Landlord,
+Bar Owner Starts a New Chapter by Adopting Business,Chicago Tribune,
5 September 1997, at Metro Lake 1L. Of books published between 1927
and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
-"The First Sale Doctrine in the Era of Digital Networks," Boston
+The First Sale Doctrine in the Era of Digital Networks,Boston
College Law Review 44 (2003): 593 n. 51.
). After
it is out of print, it can be sold in used book stores without the
@@ -5670,13 +5765,13 @@ Kahle describes,
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
-movies, . . . and about one to two million movies [distributed] during
+movies, … and about one to two million movies [distributed] during
the twentieth century. There are about twenty-six million different
titles of books. All of these would fit on computers that would fit in
this room and be able to be afforded by a small company. So we're at
a turning point in our history. Universal access is the goal. And the
opportunity of leading a different life, based on this, is
-. . . thrilling. It could be one of the things humankind would be most
+… thrilling. It could be one of the things humankind would be most
proud of. Up there with the Library of Alexandria, putting a man on
the moon, and the invention of the printing press.
@@ -5699,15 +5794,15 @@ arts could make the dream of the Library of Alexandria real again.
Technologists have thus removed the economic costs of building such an
archive. But lawyers' costs remain. For as much as we might like to
-call these "archives," as warm as the idea of a "library" might seem,
-the "content" that is collected in these digital spaces is also
-someone's "property." And the law of property restricts the freedoms
+call these archives, as warm as the idea of a library might seem,
+the content that is collected in these digital spaces is also
+someone's property. And the law of property restricts the freedoms
that Kahle and others would exercise.
-
-CHAPTER TEN: "Property"
+
+CHAPTER TEN: <quote>Property</quote>
Jack Valenti has been the president of the Motion Picture Association
of America since 1966. He first came to Washington, D.C., with Lyndon
@@ -5717,6 +5812,7 @@ President Kennedy has Valenti in the background. In his almost forty
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
Johnson, Lyndon
+Kennedy, John F.
The MPAA is the American branch of the international Motion Picture
@@ -5757,7 +5853,7 @@ the MPAA rating system, it has probably avoided a great deal of
speech-regulating harm. But there is an aspect to the organization's
mission that is both the most radical and the most important. This is
the organization's effort, epitomized in Valenti's every act, to
-redefine the meaning of "creative property."
+redefine the meaning of creative property.
In 1982, Valenti's testimony to Congress captured the strategy
@@ -5786,11 +5882,11 @@ Valenti).
The strategy of this rhetoric, like the strategy of most of Valenti's
rhetoric, is brilliant and simple and brilliant because simple. The
-"central theme" to which "reasonable men and women" will return is
+central theme to which reasonable men and women will return is
this:
-"Creative property owners must be accorded the same rights and
-protections resident in all other property owners in the nation."
+Creative property owners must be accorded the same rights and
+protections resident in all other property owners in the nation.
There are no second-class citizens, Valenti might have
continued. There should be no second-class property owners.
@@ -5801,25 +5897,25 @@ use elections to pick presidents. But in fact, there is no more
extreme a claim made by anyone who is serious in
this debate than this claim of Valenti's. Jack Valenti, however sweet
and however brilliant, is perhaps the nation's foremost extremist when
-it comes to the nature and scope of "creative property." His views
+it comes to the nature and scope of creative property. His views
have no reasonable connection to our actual legal
tradition, even if the subtle pull of his Texan charm has slowly
redefined that tradition, at least in Washington.
-While "creative property" is certainly "property" in a nerdy and
+While creative property is certainly property in a nerdy and
precise sense that lawyers are trained to understand,
-Lawyers speak of "property" not as an absolute thing, but as a bundle
+Lawyers speak of property not as an absolute thing, but as a bundle
of rights that are sometimes associated with a particular
-object. Thus, my "property right" to my car gives me the right to
+object. Thus, my property right to my car gives me the right to
exclusive use, but not the right to drive at 150 miles an hour. For
-the best effort to connect the ordinary meaning of "property" to
-"lawyer talk," see Bruce Ackerman, Private Property and the
+the best effort to connect the ordinary meaning of property to
+lawyer talk, see Bruce Ackerman, Private Property and the
Constitution (New Haven: Yale University Press, 1977), 26–27.
it has never been the case, nor should it be, that
-"creative property owners" have been "accorded the same rights and
-protection resident in all other property owners." Indeed, if creative
+creative property owners have been accorded the same rights and
+protection resident in all other property owners. Indeed, if creative
property owners were given the same rights as all other property
owners, that would effect a radical, and radically undesirable, change
in our tradition.
@@ -5860,29 +5956,29 @@ Valenti's argument, we need look no further than the United States
Constitution itself.
-The framers of our Constitution loved "property." Indeed, so strongly
+The framers of our Constitution loved property. Indeed, so strongly
did they love property that they built into the Constitution an
important requirement. If the government takes your property—if
it condemns your house, or acquires a slice of land from your
-farm—it is required, under the Fifth Amendment's "Takings
-Clause," to pay you "just compensation" for that taking. The
+farm—it is required, under the Fifth Amendment's Takings
+Clause, to pay you just compensation for that taking. The
Constitution thus guarantees that property is, in a certain sense,
sacred. It cannot ever be taken from the property
owner unless the government pays for the privilege.
Yet the very same Constitution speaks very differently about what
-Valenti calls "creative property." In the clause granting Congress the
-power to create "creative property," the Constitution
-requires that after a "limited time," Congress
-take back the rights that it has granted and set the "creative
-property" free to the public domain. Yet when Congress does this, when
-the expiration of a copyright term "takes" your copyright and turns it
+Valenti calls creative property. In the clause granting Congress the
+power to create creative property, the Constitution
+requires that after a limited time, Congress
+take back the rights that it has granted and set the creative
+property free to the public domain. Yet when Congress does this, when
+the expiration of a copyright term takes your copyright and turns it
over to the public domain, Congress does not have any obligation to
-pay "just compensation" for this "taking." Instead, the same
+pay just compensation for this taking. Instead, the same
Constitution that requires compensation for your land
-requires that you lose your "creative property" right without any
+requires that you lose your creative property right without any
compensation at all.
@@ -5916,7 +6012,7 @@ domain?
To answer this question, we need to get some perspective on the
-history of these "creative property" rights, and the control that they
+history of these creative property rights, and the control that they
enabled. Once we see clearly how differently these rights have been
defined, we will be in a better position to ask the question that
should be at the core of this war: Not whether
@@ -5982,7 +6078,7 @@ individual or group might behave.
Finally, and for the moment, perhaps, most mysteriously,
-"architecture"—the physical world as one finds it—is a
+architecture—the physical world as one finds it—is a
constraint on behavior. A fallen bridge might constrain your ability
to get across a river. Railroad tracks might constrain the ability of
a community to integrate its social life. As with the market,
@@ -5990,7 +6086,7 @@ architecture does not effect its constraint through ex post
punishments. Instead, also as with the market, architecture effects
its constraint through simultaneous conditions. These conditions are
imposed not by courts enforcing contracts, or by police punishing
-theft, but by nature, by "architecture." If a 500-pound boulder
+theft, but by nature, by architecture. If a 500-pound boulder
blocks your way, it is the law of gravity that enforces this
constraint. If a $500 airplane ticket stands between you and a flight
to New York, it is the market that enforces this constraint.
@@ -6016,7 +6112,7 @@ must consider how these four in particular interact.
driving speed, constraints on
-So, for example, consider the "freedom" to drive a car at a high
+So, for example, consider the freedom to drive a car at a high
speed. That freedom is in part restricted by laws: speed limits that
say how fast you can drive in particular places at particular
times. It is in part restricted by architecture: speed bumps, for
@@ -6040,7 +6136,7 @@ do. Law's only distinction is that it alone speaks as if it has a
right self-consciously to change the other three. The right of the
other three is more timidly expressed. See Lawrence Lessig, Code: And
Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95;
-Lawrence Lessig, "The New Chicago School," Journal of Legal Studies,
+Lawrence Lessig, The New Chicago School,Journal of Legal Studies,
June 1998.
The law, in other words, sometimes operates to increase or decrease
@@ -6070,7 +6166,7 @@ another. A freedom enabled by one modality might be displaced by
another.
-Some people object to this way of talking about "liberty." They object
+Some people object to this way of talking about liberty. They object
because their focus when considering the constraints that exist at any
particular moment are constraints imposed exclusively by the
government. For instance, if a storm destroys a bridge, these people
@@ -6081,23 +6177,25 @@ is to confuse the stuff of politics with the vagaries of ordinary
life. I don't mean to deny the value in this narrower view, which
depends upon the context of the inquiry. I do, however, mean to argue
against any insistence that this narrower view is the only proper view
-of liberty. As I argued in Code, we come from a long tradition of
-political thought with a broader focus than the narrow question of
-what the government did when. John Stuart Mill defended freedom of
-speech, for example, from the tyranny of narrow minds, not from the
-fear of government prosecution; John Stuart Mill, On Liberty (Indiana:
-Hackett Publishing Co., 1978), 19. John R. Commons famously defended
-the economic freedom of labor from constraints imposed by the market;
-John R. Commons, "The Right to Work," in Malcom Rutherford and Warren
-J. Samuels, eds., John R. Commons: Selected Essays (London:
+of liberty. As I argued in Code, we come from a
+long tradition of political thought with a broader focus than the
+narrow question of what the government did when. John Stuart Mill
+defended freedom of speech, for example, from the tyranny of narrow
+minds, not from the fear of government prosecution; John Stuart Mill,
+On Liberty (Indiana: Hackett Publishing Co.,
+1978), 19. John R. Commons famously defended the economic freedom of
+labor from constraints imposed by the market; John R. Commons, The
+Right to Work, in Malcom Rutherford and Warren J. Samuels, eds.,
+John R. Commons: Selected Essays (London:
Routledge: 1997), 62. The Americans with Disabilities Act increases
the liberty of people with physical disabilities by changing the
architecture of certain public places, thereby making access to those
-places easier; 42 United States Code, section 12101 (2000). Each of
-these interventions to change existing conditions changes the liberty
-of a particular group. The effect of those interventions should be
-accounted for in order to understand the effective liberty that each
-of these groups might face.
+places easier; 42 United States Code, section
+12101 (2000). Each of these interventions to change existing
+conditions changes the liberty of a particular group. The effect of
+those interventions should be accounted for in order to understand the
+effective liberty that each of these groups might face.
+Americans with Disabilities Act (1990)Commons, John R.
@@ -6154,7 +6252,7 @@ looting that results.
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce
+warriors. Indeed, in a White Paper prepared by the Commerce
Department (one heavily influenced by the copyright warriors) in 1995,
this mix of regulatory modalities had already been identified and the
strategy to respond already mapped. In response to the changes the
@@ -6187,8 +6285,9 @@ campaign to protect itself from the harmful consequences of a
technological innovation. And I would be the last person to argue that
the changing technology of the Internet has not had a profound effect
on the content industry's way of doing business, or as John Seely
-Brown describes it, its "architecture of revenue."
+Brown describes it, its architecture of revenue.
+railroad industry
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
@@ -6198,11 +6297,11 @@ doing business. Kodak, for example, has lost perhaps as much as 20
percent of their traditional film market to the emerging technologies
of digital cameras.
-See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+See Geoffrey Smith, Film vs. Digital: Can Kodak Build a Bridge?
BusinessWeek online, 2 August 1999, available at
link #23. For a more
recent analysis of Kodak's place in the market, see Chana
-R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6
+R. Schoenberger, Can Kodak Make Up for Lost Moments? Forbes.com, 6
October 2003, available at
link #24.
@@ -6212,7 +6311,7 @@ support Kodak? Highways have weakened the freight business for
railroads. Does anyone think we should ban trucks from roads
for the purpose of protecting the railroads?
Closer to the subject of this book, remote channel changers have
-weakened the "stickiness" of television advertising (if a boring
+weakened the stickiness of television advertising (if a boring
commercial comes on the TV, the remote makes it easy to surf ), and it
may well be that this change has weakened the television advertising
market. But does anyone believe we should regulate remotes to
@@ -6227,8 +6326,8 @@ free trade, the government's role is not to support one way of doing
business against others. Its role is not to pick winners and protect
them against loss. If the government did this generally, then we would
never have any progress. As Microsoft chairman Bill Gates wrote in
-1991, in a memo criticizing software patents, "established companies
-have an interest in excluding future competitors."
+1991, in a memo criticizing software patents, established companies
+have an interest in excluding future competitors.
Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71.
@@ -6259,9 +6358,9 @@ respond in a way that burdens speech and creativity, policy makers
should be especially wary of the request. It is always a bad deal for
the government to get into the business of regulating speech
markets. The risks and dangers of that game are precisely why our
-framers created the First Amendment to our Constitution: "Congress
-shall make no law . . . abridging the freedom of speech." So when
-Congress is being asked to pass laws that would "abridge" the freedom
+framers created the First Amendment to our Constitution: Congress
+shall make no law … abridging the freedom of speech. So when
+Congress is being asked to pass laws that would abridge the freedom
of speech, it should ask— carefully—whether such
regulation is justified.
@@ -6269,7 +6368,7 @@ regulation is justified.
My argument just now, however, has nothing to do with whether
the changes that are being pushed by the copyright warriors are
-"justified." My argument is about their effect. For before we get to
+justified. My argument is about their effect. For before we get to
the question of justification, a hard question that depends a great
deal upon your values, we should first ask whether we understand the
effect of the changes the content industry wants.
@@ -6313,16 +6412,16 @@ solve the problems that DDT was meant to solve.
It is to this image precisely that Duke University law professor James
-Boyle appeals when he argues that we need an "environmentalism" for
+Boyle appeals when he argues that we need an environmentalism for
culture.
-See, for example, James Boyle, "A Politics of Intellectual Property:
-Environmentalism for the Net?" Duke Law Journal 47 (1997): 87.
+See, for example, James Boyle, A Politics of Intellectual Property:
+Environmentalism for the Net?Duke Law Journal 47 (1997): 87.
His point, and the point I want to develop in the balance of this
chapter, is not that the aims of copyright are flawed. Or that authors
should not be paid for their work. Or that music should be given away
-"for free." The point is that some of the ways in which we might
+for free. The point is that some of the ways in which we might
protect authors will have unintended consequences for the cultural
environment, much like DDT had for the natural environment. And just
@@ -6354,12 +6453,12 @@ be lost.
Beginnings
America copied English copyright law. Actually, we copied and improved
-English copyright law. Our Constitution makes the purpose of "creative
-property" rights clear; its express limitations reinforce the English
+English copyright law. Our Constitution makes the purpose of creative
+property rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
-The power to establish "creative property" rights is granted to
+The power to establish creative property rights is granted to
Congress in a way that, for our Constitution, at least, is very
odd. Article I, section 8, clause 8 of our Constitution states that:
@@ -6369,9 +6468,9 @@ useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries.
-We can call this the "Progress Clause," for notice what this clause
+We can call this the Progress Clause, for notice what this clause
does not say. It does not say Congress has the power to grant
-"creative property rights." It says that Congress has the power
+creative property rights. It says that Congress has the power
to promote progress. The grant of power is its
purpose, and its purpose is a public one, not the purpose of enriching
publishers, nor even primarily the purpose of rewarding authors.
@@ -6384,7 +6483,7 @@ would not exercise disproportionate control over culture by exercising
disproportionate control over publishing. We can assume the framers
followed the English for a similar purpose. Indeed, unlike the
English, the framers reinforced that objective, by requiring that
-copyrights extend "to Authors" only.
+copyrights extend to Authors only.
The design of the Progress Clause reflects something about the
@@ -6402,10 +6501,10 @@ the constitutional frame, structured to prevent otherwise inevitable
concentrations of power.
-I doubt the framers would recognize the regulation we call "copyright"
+I doubt the framers would recognize the regulation we call copyright
today. The scope of that regulation is far beyond anything they ever
considered. To begin to understand what they did, we need to put our
-"copyright" in context: We need to see how it has changed in the 210
+copyright in context: We need to see how it has changed in the 210
years since they first struck its design.
@@ -6423,7 +6522,7 @@ started here:
We will end here:
-"Copyright" today.
+<quote>Copyright</quote> today.
@@ -6444,9 +6543,9 @@ authorship.
William W. Crosskey, Politics and the Constitution in the History of
the United States (London: Cambridge University Press, 1953), vol. 1,
-485–86: "extinguish[ing], by plain implication of `the supreme
+485–86: extinguish[ing], by plain implication of `the supreme
Law of the Land,' the perpetual rights which authors had, or
-were supposed by some to have, under the Common Law"
+were supposed by some to have, under the Common Law
(emphasis added).
Crosskey, William W.
@@ -6515,10 +6614,10 @@ domain.
Few copyright holders ever chose to renew their copyrights. For
instance, of the 25,006 copyrights registered in 1883, only 894 were
renewed in 1910. For a year-by-year analysis of copyright renewal
-rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright,"
+rates, see Barbara A. Ringer, Study No. 31: Renewal of Copyright,Studies on Copyright, vol. 1 (New York: Practicing Law Institute,
1963), 618. For a more recent and comprehensive analysis, see William
-M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright,"
+M. Landes and Richard A. Posner, Indefinitely Renewable Copyright,University of Chicago Law Review 70 (2003): 471, 498–501, and
accompanying figures.
@@ -6576,7 +6675,7 @@ value.
The United States abandoned this sensible system in 1976. For
all works created after 1978, there was only one copyright term—the
-maximum term. For "natural" authors, that term was life plus fifty
+maximum term. For natural authors, that term was life plus fifty
years. For corporations, the term was seventy-five years. Then, in 1992,
Congress abandoned the renewal requirement for all works created
before 1978. All works still under copyright would be accorded the
@@ -6589,7 +6688,7 @@ assure that works that were no longer exploited passed into the public
domain. And indeed, after these changes, it is unclear whether it is
even possible to put works into the public domain. The public domain
is orphaned by these changes in copyright law. Despite the requirement
-that terms be "limited," we have no evidence that anything will limit
+that terms be limited, we have no evidence that anything will limit
them.
@@ -6604,7 +6703,7 @@ years.
These statistics are understated. Between the years 1910 and 1962 (the
first year the renewal term was extended), the average term was never
more than thirty-two years, and averaged thirty years. See Landes and
-Posner, "Indefinitely Renewable Copyright," loc. cit.
+Posner, Indefinitely Renewable Copyright, loc. cit.
@@ -6612,20 +6711,20 @@ Posner, "Indefinitely Renewable Copyright," loc. cit.
Law: Scope
-The "scope" of a copyright is the range of rights granted by the law.
+The scope of a copyright is the range of rights granted by the law.
The scope of American copyright has changed dramatically. Those
changes are not necessarily bad. But we should understand the extent
of the changes if we're to keep this debate in context.
-In 1790, that scope was very narrow. Copyright covered only "maps,
-charts, and books." That means it didn't cover, for example, music or
+In 1790, that scope was very narrow. Copyright covered only maps,
+charts, and books. That means it didn't cover, for example, music or
architecture. More significantly, the right granted by a copyright gave
-the author the exclusive right to "publish" copyrighted works. That
+the author the exclusive right to publish copyrighted works. That
means someone else violated the copyright only if he republished the
work without the copyright owner's permission. Finally, the right granted
by a copyright was an exclusive right to that particular book. The right
-did not extend to what lawyers call "derivative works." It would not,
+did not extend to what lawyers call derivative works. It would not,
therefore, interfere with the right of someone other than the author to
translate a copyrighted book, or to adapt the story to a different form
(such as a drama based on a published book).
@@ -6636,11 +6735,11 @@ today are extremely hard to describe simply, in general terms, the
right covers practically any creative work that is reduced to a
tangible form. It covers music as well as architecture, drama as well
as computer programs. It gives the copyright owner of that creative
-work not only the exclusive right to "publish" the work, but also the
-exclusive right of control over any "copies" of that work. And most
+work not only the exclusive right to publish the work, but also the
+exclusive right of control over any copies of that work. And most
significant for our purposes here, the right gives the copyright owner
control over not only his or her particular work, but also any
-"derivative work" that might grow out of the original work. In this
+derivative work that might grow out of the original work. In this
way, the right covers more creative work, protects the creative work
more broadly, and protects works that are based in a significant way
on the initial creative work.
@@ -6674,7 +6773,7 @@ somewhere so that it could be copied by others without locating the
original author.
-All of these "formalities" were abolished in the American system when
+All of these formalities were abolished in the American system when
we decided to follow European copyright law. There is no requirement
that you register a work to get a copyright; the copyright now is
automatic; the copyright exists whether or not you mark your work with
@@ -6693,8 +6792,8 @@ without your permission. The aim of the act was to regulate publishers
so as to prevent that kind of unfair competition. In 1790, there were
174 publishers in the United States.
-See Thomas Bender and David Sampliner, "Poets, Pirates, and the
-Creation of American Literature," 29 New York University Journal of
+See Thomas Bender and David Sampliner, Poets, Pirates, and the
+Creation of American Literature, 29 New York University Journal of
International Law and Politics 255 (1997), and James Gilraeth, ed.,
Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
@@ -6731,8 +6830,8 @@ copy it to republish it or to share an excerpt.
That much is the obvious part. Any system of copyright would
control
competing publishing. But there's a second part to the copyright of
-today that is not at all obvious. This is the protection of "derivative
-rights." If you write a book, no one can make a movie out of your
+today that is not at all obvious. This is the protection of derivative
+rights. If you write a book, no one can make a movie out of your
book without permission. No one can translate it without permission.
CliffsNotes can't make an abridgment unless permission is granted. All
of these derivative uses of your original work are controlled by the
@@ -6764,8 +6863,8 @@ is a different wrong. Some view transformation as no wrong at
all—they believe that our law, as the framers penned it, should
not protect derivative rights at all.
-Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August
-2003, available at
+Jonathan Zittrain, The Copyright Cage,Legal
+Affairs, July/August 2003, available at
link #26.
Zittrain, Jonathan
@@ -6781,29 +6880,28 @@ of my book.
Professor Rubenfeld has presented a powerful constitutional argument
about the difference that copyright law should draw (from the
-perspective of the First Amendment) between mere "copies" and
-derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
-Copyright's Constitutionality," Yale Law Journal 112 (2002):
-1–60 (see especially pp. 53–59).
+perspective of the First Amendment) between mere copies and
+derivative works. See Jed Rubenfeld, The Freedom of Imagination:
+Copyright's Constitutionality,Yale Law
+Journal 112 (2002): 1–60 (see especially
+pp. 53–59).
+Rubenfeld, Jeb
-These two different uses of my creative work are
-treated the same.
+These two different uses of my creative work are treated the same.
-This again may seem right to you. If I wrote a book, then why
-should you be able to write a movie that takes my story and makes
-money from it without paying me or crediting me? Or if Disney
- creates
-a creature called "Mickey Mouse," why should you be able to make
-Mickey Mouse toys and be the one to trade on the value that Disney
-originally created?
+This again may seem right to you. If I wrote a book, then why should
+you be able to write a movie that takes my story and makes money from
+it without paying me or crediting me? Or if Disney creates a creature
+called Mickey Mouse, why should you be able to make Mickey Mouse
+toys and be the one to trade on the value that Disney originally
+created?
These are good arguments, and, in general, my point is not that the
-derivative right is unjustified. My aim just now is much narrower:
- simply
-to make clear that this expansion is a significant change from the
-rights originally granted.
+derivative right is unjustified. My aim just now is much narrower:
+simply to make clear that this expansion is a significant change from
+the rights originally granted.
@@ -6815,21 +6913,21 @@ and authors. It regulates them because all three are capable of making
copies, and the core of the regulation of copyright law is copies.
This is a simplification of the law, but not much of one. The law
-certainly regulates more than "copies"—a public performance of a
+certainly regulates more than copies—a public performance of a
copyrighted song, for example, is regulated even though performance
per se doesn't make a copy; 17 United States Code, section
-106(4). And it certainly sometimes doesn't regulate a "copy"; 17
+106(4). And it certainly sometimes doesn't regulate a copy; 17
United States Code, section 112(a). But the presumption under the
-existing law (which regulates "copies;" 17 United States Code, section
+existing law (which regulates copies; 17 United States Code, section
102) is that if there is a copy, there is a right.
-"Copies." That certainly sounds like the obvious thing for
+Copies. That certainly sounds like the obvious thing for
copyright law to regulate. But as with Jack
-Valenti's argument at the start of this chapter, that "creative
-property" deserves the "same rights" as all other property, it is the
+Valenti's argument at the start of this chapter, that creative
+property deserves the same rights as all other property, it is the
obvious that we need to be most careful
about. For while it may be obvious that in the world before the
Internet, copies were the obvious trigger for copyright law, upon
@@ -6844,11 +6942,11 @@ very slowly so that the point is not easily missed. My claim is that the
Internet should at least force us to rethink the conditions under which
the law of copyright automatically applies,
-Thus, my argument is not that in each place that copyright law extends,
-we should repeal it. It is instead that we should have a good argument for
-its extending where it does, and should not determine its reach on the
- basis
-of arbitrary and automatic changes caused by technology.
+Thus, my argument is not that in each place that copyright law
+extends, we should repeal it. It is instead that we should have a good
+argument for its extending where it does, and should not determine its
+reach on the basis of arbitrary and automatic changes caused by
+technology.
because it is clear that the
current reach of copyright was never contemplated, much less chosen,
@@ -6890,7 +6988,7 @@ diagram on next page).
Finally, there is a tiny sliver of otherwise regulated copying uses
-that remain unregulated because the law considers these "fair uses."
+that remain unregulated because the law considers these fair uses.
@@ -6898,18 +6996,17 @@ that remain unregulated because the law considers these "fair uses."
-These are uses that themselves involve copying, but which the law treats
-as unregulated because public policy demands that they remain
- unregulated.
-You are free to quote from this book, even in a review that
-is quite negative, without my permission, even though that quoting
-makes a copy. That copy would ordinarily give the copyright owner the
-exclusive right to say whether the copy is allowed or not, but the law
-denies the owner any exclusive right over such "fair uses" for public
-policy (and possibly First Amendment) reasons.
+These are uses that themselves involve copying, but which the law
+treats as unregulated because public policy demands that they remain
+unregulated. You are free to quote from this book, even in a review
+that is quite negative, without my permission, even though that
+quoting makes a copy. That copy would ordinarily give the copyright
+owner the exclusive right to say whether the copy is allowed or not,
+but the law denies the owner any exclusive right over such fair uses
+for public policy (and possibly First Amendment) reasons.
-Unregulated copying considered "fair uses."
+Unregulated copying considered <quote>fair uses.</quote>
@@ -6921,31 +7018,28 @@ policy (and possibly First Amendment) reasons.
In real space, then, the possible uses of a book are divided into three
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
-are nonetheless deemed "fair" regardless of the copyright owner's views.
+are nonetheless deemed fair regardless of the copyright owner's views.
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.
-I don't mean "nature" in the sense that it couldn't be different, but rather that
-its present instantiation entails a copy. Optical networks need not make
-copies of content they transmit, and a digital network could be designed to
-delete anything it copies so that the same number of copies remain.
-
-And because of this single,
-arbitrary feature of the design of a digital network, the scope of
- category
-1 changes dramatically. Uses that before were presumptively
- unregulated
-are now presumptively regulated. No longer is there a set of
-presumptively unregulated uses that define a freedom associated with a
-copyrighted work. Instead, each use is now subject to the copyright,
-because each use also makes a copy—category 1 gets sucked into
- category
-2. And those who would defend the unregulated uses of
- copyrighted
-work must look exclusively to category 3, fair uses, to bear the
-burden of this shift.
+I don't mean nature in the sense that it couldn't be different, but
+rather that its present instantiation entails a copy. Optical networks
+need not make copies of content they transmit, and a digital network
+could be designed to delete anything it copies so that the same number
+of copies remain.
+
+And because of this single, arbitrary feature of the design of a
+digital network, the scope of category 1 changes dramatically. Uses
+that before were presumptively unregulated are now presumptively
+regulated. No longer is there a set of presumptively unregulated uses
+that define a freedom associated with a copyrighted work. Instead,
+each use is now subject to the copyright, because each use also makes
+a copy—category 1 gets sucked into category 2. And those who
+would defend the unregulated uses of copyrighted work must look
+exclusively to category 3, fair uses, to bear the burden of this
+shift.
So let's be very specific to make this general point clear. Before the
@@ -6955,10 +7049,9 @@ the copyright owner could make to control that use of her
book. Copyright law would have nothing to say about whether you read
the book once, ten times, or every
-night before you went to bed. None of those instances of use—reading—
-could be regulated by copyright law because none of those uses
- produced
-a copy.
+night before you went to bed. None of those instances of
+use—reading— could be regulated by copyright law because
+none of those uses produced a copy.
But the same book as an e-book is effectively governed by a different
@@ -6991,7 +7084,7 @@ Second, this shift is especially troubling in the context of
transformative uses of creative content. Again, we can all understand
the wrong in commercial piracy. But the law now purports to regulate
any transformation you make of creative work
-using a machine. "Copy and paste" and "cut and paste" become
+using a machine. Copy and paste and cut and paste become
crimes. Tinkering with a story and releasing it to others exposes the
tinkerer to at least a requirement of justification. However
troubling the expansion with respect to copying a particular work, it
@@ -7002,16 +7095,15 @@ creative work.
Third, this shift from category 1 to category 2 puts an extraordinary
-burden on category 3 ("fair use") that fair use never before had to bear.
-If a copyright owner now tried to control how many times I could read
-a book on-line, the natural response would be to argue that this is a
-violation of my fair use rights. But there has never been any litigation
-about whether I have a fair use right to read, because before the
- Internet,
-reading did not trigger the application of copyright law and hence
-the need for a fair use defense. The right to read was effectively
- protected
-before because reading was not regulated.
+burden on category 3 (fair use) that fair use never before had to
+bear. If a copyright owner now tried to control how many times I
+could read a book on-line, the natural response would be to argue that
+this is a violation of my fair use rights. But there has never been
+any litigation about whether I have a fair use right to read, because
+before the Internet, reading did not trigger the application of
+copyright law and hence the need for a fair use defense. The right to
+read was effectively protected before because reading was not
+regulated.
This point about fair use is totally ignored, even by advocates for
@@ -7025,51 +7117,44 @@ enough.
The case of Video Pipeline is a good example. Video Pipeline was
-in the business of making "trailer" advertisements for movies available
+in the business of making trailer advertisements for movies available
to video stores. The video stores displayed the trailers as a way to sell
videos. Video Pipeline got the trailers from the film distributors, put
the trailers on tape, and sold the tapes to the retail stores.
-The company did this for about fifteen years. Then, in 1997, it
- began
-to think about the Internet as another way to distribute these
- previews.
-The idea was to expand their "selling by sampling" technique by
-giving on-line stores the same ability to enable "browsing." Just as in a
-bookstore you can read a few pages of a book before you buy the book,
-so, too, you would be able to sample a bit from the movie on-line
- before
-you bought it.
+The company did this for about fifteen years. Then, in 1997, it began
+to think about the Internet as another way to distribute these
+previews. The idea was to expand their selling by sampling
+technique by giving on-line stores the same ability to enable
+browsing. Just as in a bookstore you can read a few pages of a book
+before you buy the book, so, too, you would be able to sample a bit
+from the movie on-line before you bought it.
-In 1998, Video Pipeline informed Disney and other film
- distributors
+In 1998, Video Pipeline informed Disney and other film distributors
that it intended to distribute the trailers through the Internet
(rather than sending the tapes) to distributors of their videos. Two
years later, Disney told Video Pipeline to stop. The owner of Video
Pipeline asked Disney to talk about the matter—he had built a
- business
-on distributing this content as a way to help sell Disney films; he
-had customers who depended upon his delivering this content. Disney
-would agree to talk only if Video Pipeline stopped the distribution
- immediately.
-Video Pipeline thought it was within their "fair use" rights
-to distribute the clips as they had. So they filed a lawsuit to ask the
-court to declare that these rights were in fact their rights.
+business on distributing this content as a way to help sell Disney
+films; he had customers who depended upon his delivering this
+content. Disney would agree to talk only if Video Pipeline stopped the
+distribution immediately. Video Pipeline thought it was within their
+fair use rights to distribute the clips as they had. So they filed a
+lawsuit to ask the court to declare that these rights were in fact
+their rights.
Disney countersued—for $100 million in damages. Those damages
-were predicated upon a claim that Video Pipeline had "willfully
- infringed"
-on Disney's copyright. When a court makes a finding of
- willful
-infringement, it can award damages not on the basis of the actual
-harm to the copyright owner, but on the basis of an amount set in the
-statute. Because Video Pipeline had distributed seven hundred clips of
-Disney movies to enable video stores to sell copies of those movies,
-Disney was now suing Video Pipeline for $100 million.
+were predicated upon a claim that Video Pipeline had willfully
+infringed on Disney's copyright. When a court makes a finding of
+willful infringement, it can award damages not on the basis of the
+actual harm to the copyright owner, but on the basis of an amount set
+in the statute. Because Video Pipeline had distributed seven hundred
+clips of Disney movies to enable video stores to sell copies of those
+movies, Disney was now suing Video Pipeline for $100 million.
Disney has the right to control its property, of course. But the video
@@ -7085,7 +7170,7 @@ Now, you might think this is a close case, and I think the courts
would consider it a close case. My point here is to map the change
that gives Disney this power. Before the Internet, Disney couldn't
really control how people got access to their content. Once a video
-was in the marketplace, the "first-sale doctrine" would free the
+was in the marketplace, the first-sale doctrine would free the
seller to use the video as he wished, including showing portions of it
in order to engender sales of the entire movie video. But with the
Internet, it becomes possible for Disney to centralize control over
@@ -7151,14 +7236,14 @@ wrote a nasty letter to the Marxes, warning them that there would be
serious legal consequences if they went forward with their
plan.
-See David Lange, "Recognizing the Public Domain," Law and
+See David Lange, Recognizing the Public Domain,Law and
Contemporary Problems 44 (1981): 172–73.
This led the Marx Brothers to respond in kind. They warned
-Warner Brothers that the Marx Brothers "were brothers long before
-you were."
+Warner Brothers that the Marx Brothers were brothers long before
+you were.
Ibid. See also Vaidhyanathan, Copyrights and
Copywrongs, 1–3.
@@ -7246,7 +7331,7 @@ translation): Aristotle's Politics.
Politics, (Aristotle)
-E-book of Aristotle;s "Politics"
+E-book of Aristotle;s <quote>Politics</quote>
@@ -7255,7 +7340,7 @@ at all. But fortunately, you can use the Read Aloud button to hear
the book.
-List of the permissions for Aristotle;s "Politics".
+List of the permissions for Aristotle;s <quote>Politics</quote>.
@@ -7265,7 +7350,7 @@ Ideas:
-List of the permissions for "The Future of Ideas".
+List of the permissions for <quote>The Future of Ideas</quote>.
@@ -7273,7 +7358,7 @@ No copying, no printing, and don't you dare try to listen to this book!
Now, the Adobe eBook Reader calls these controls
-"permissions"— as if the publisher has the power to control how
+permissions— as if the publisher has the power to control how
you use these works. For works under copyright, the copyright owner
certainly does have the power—up to the limits of the copyright
law. But for work not under copyright, there is no such copyright
@@ -7295,9 +7380,9 @@ control that the law would enable.
The control comes instead from the code—from the technology
-within which the e-book "lives." Though the e-book says that these are
-permissions, they are not the sort of "permissions" that most of us
-deal with. When a teenager gets "permission" to stay out till
+within which the e-book lives. Though the e-book says that these are
+permissions, they are not the sort of permissions that most of us
+deal with. When a teenager gets permission to stay out till
midnight, she knows (unless she's Cinderella) that she can stay out
till 2 A.M., but will suffer a punishment if she's caught. But when
the Adobe eBook Reader says I have the permission to make ten copies
@@ -7314,7 +7399,7 @@ won't read aloud.
These are controls, not permissions. Imagine a
world where the Marx Brothers sold word processing software that, when
-you tried to type "Warner Brothers," erased "Brothers" from the
+you tried to type Warner Brothers, erased Brothers from the
sentence.
Marx Brothers
@@ -7348,15 +7433,15 @@ following report:
Alice's Adventures in Wonderland (Carroll)
-List of the permissions for "Alice's Adventures in
-Wonderland".
+List of the permissions for <quote>Alice's Adventures in
+Wonderland</quote>.
+
-
Here was a public domain children's book that you were not allowed to
copy, not allowed to lend, not allowed to give, and, as the
-"permissions" indicated, not allowed to "read aloud"!
+permissions indicated, not allowed to read aloud!
The public relations nightmare attached to that final permission.
@@ -7392,11 +7477,18 @@ often crazy.
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
-
+Aibo robotic dog
+
+ robotic dog
+
+
+ Sony
+ Aibo robotic dog produced by
+
-Consider the robotic dog made by Sony named "Aibo." The Aibo
+Consider the robotic dog made by Sony named Aibo. The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
and that doesn't leave that much of a mess (at least in your house).
@@ -7404,30 +7496,32 @@ and that doesn't leave that much of a mess (at least in your house).
The Aibo is expensive and popular. Fans from around the world
have set up clubs to trade stories. One fan in particular set up a Web
site to enable information about the Aibo dog to be shared. This fan set
-
+
up aibopet.com (and aibohack.com, but that resolves to the same site),
and on that site he provided information about how to teach an Aibo
to do tricks in addition to the ones Sony had taught it.
-"Teach" here has a special meaning. Aibos are just cute computers.
+Teach here has a special meaning. Aibos are just cute computers.
You teach a computer how to do something by programming it
differently. So to say that aibopet.com was giving information about
how to teach the dog to do new tricks is just to say that aibopet.com
was giving information to users of the Aibo pet about how to hack
-their computer "dog" to make it do new tricks (thus, aibohack.com).
+their computer dog to make it do new tricks (thus, aibohack.com).
-If you're not a programmer or don't know many programmers, the
-word hack has a particularly unfriendly connotation. Nonprogrammers
-hack bushes or weeds. Nonprogrammers in horror movies do even
-worse. But to programmers, or coders, as I call them, hack is a much
-more positive term. Hack just means code that enables the program to
-do something it wasn't originally intended or enabled to do. If you buy
-a new printer for an old computer, you might find the old computer
-doesn't run, or "drive," the printer. If you discovered that, you'd later be
-happy to discover a hack on the Net by someone who has written a
-driver to enable the computer to drive the printer you just bought.
+If you're not a programmer or don't know many programmers, the word
+hack has a particularly unfriendly
+connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
+horror movies do even worse. But to programmers, or coders, as I call
+them, hack is a much more positive
+term. Hack just means code that enables the
+program to do something it wasn't originally intended or enabled to
+do. If you buy a new printer for an old computer, you might find the
+old computer doesn't run, or drive, the printer. If you discovered
+that, you'd later be happy to discover a hack on the Net by someone
+who has written a driver to enable the computer to drive the printer
+you just bought.
Some hacks are easy. Some are unbelievably hard. Hackers as a
@@ -7443,7 +7537,9 @@ dance jazz. The dog wasn't programmed to dance jazz. It was a clever
bit of tinkering that turned the dog into a more talented creature
than Sony had built.
-
+
+
+
I've told this story in many contexts, both inside and outside the
United States. Once I was asked by a puzzled member of the audience,
@@ -7474,15 +7570,15 @@ into being silent about something he knew very well.
But Felten's bravery was really tested in April 2001.
-See Pamela Samuelson, "Anticircumvention Rules: Threat to Science,"
-Science 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
-the Techies Who Teach a Robot Dog New Tricks," American Prospect,
-January 2002; "Court Dismisses Computer Scientists' Challenge to
-DMCA," Intellectual Property Litigation Reporter, 11 December 2001; Bill
-Holland, "Copyright Act Raising Free-Speech Concerns," Billboard,
-May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com,
-April 2001; Electronic Frontier Foundation, "Frequently Asked
-Questions about Felten and USENIX v. RIAA Legal Case," available at
+See Pamela Samuelson, Anticircumvention Rules: Threat to Science,
+Science 293 (2001): 2028; Brendan I. Koerner, Play Dead: Sony Muzzles
+the Techies Who Teach a Robot Dog New Tricks,American Prospect,
+January 2002; Court Dismisses Computer Scientists' Challenge to
+DMCA,Intellectual Property Litigation Reporter, 11 December 2001; Bill
+Holland, Copyright Act Raising Free-Speech Concerns,Billboard,
+May 2001; Janelle Brown, Is the RIAA Running Scared? Salon.com,
+April 2001; Electronic Frontier Foundation, Frequently Asked
+Questions about Felten and USENIX v. RIAA Legal Case, available at
link #27.
Electronic Frontier Foundation
@@ -7496,8 +7592,8 @@ The SDMI coalition had as its goal a technology to enable content
owners to exercise much better control over their content than the
Internet, as it originally stood, granted them. Using encryption, SDMI
hoped to develop a standard that would allow the content owner to say
-"this music cannot be copied," and have a computer respect that
-command. The technology was to be part of a "trusted system" of
+this music cannot be copied, and have a computer respect that
+command. The technology was to be part of a trusted system of
control that would get content owners to trust the system of the
Internet much more.
@@ -7530,6 +7626,16 @@ academic essay, unintelligible to most people. But it clearly showed the
weakness in the SDMI system, and why SDMI would not, as presently
constituted, succeed.
+
+ Aibo robotic dog
+
+
+ robotic dog
+
+
+ Sony
+ Aibo robotic dog produced by
+
What links these two, aibopet.com and Felten, is the letters they
then received. Aibopet.com received a letter from Sony about the
@@ -7543,6 +7649,9 @@ AIBO-ware's copy protection protocol constituting a violation of the
anti-circumvention provisions of the Digital Millennium Copyright Act.
+
+
+
And though an academic paper describing the weakness in a system
of encryption should also be perfectly legal, Felten received a letter
@@ -7554,7 +7663,7 @@ Any disclosure of information gained from participating in the
Public Challenge would be outside the scope of activities permitted by
the Agreement and could subject you and your research team to actions
-under the Digital Millennium Copyright Act ("DMCA").
+under the Digital Millennium Copyright Act (DMCA).
@@ -7589,6 +7698,12 @@ measures. It was designed to ban those devices, whether or not the use
of the copyrighted material made possible by that circumvention would
have been a copyright violation.
+Aibo robotic dog
+robotic dog
+
+ Sony
+ Aibo robotic dog produced by
+
Aibopet.com and Felten make the point. The Aibo hack circumvented a
copyright protection system for the purpose of enabling the dog to
@@ -7609,29 +7724,31 @@ suggested, Felten himself was distributing a circumvention technology.
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
+Rogers, Fred
The bizarreness of these arguments is captured in a cartoon drawn in
1981 by Paul Conrad. At that time, a court in California had held that
the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology
-that were legal: Fred Rogers, aka "Mr. Rogers," for example, had
-testified in that case that he wanted people to feel free to tape
-Mr. Rogers' Neighborhood.
+that were legal: Fred Rogers, aka Mr. Rogers,
+for example, had testified in that case that he wanted people to feel
+free to tape Mr. Rogers' Neighborhood.
+Conrad, Paul
Some public stations, as well as commercial stations, program the
-"Neighborhood" at hours when some children cannot use it. I think that
+Neighborhood at hours when some children cannot use it. I think that
it's a real service to families to be able to record such programs and
show them at appropriate times. I have always felt that with the
advent of all of this new technology that allows people to tape the
-"Neighborhood" off-the-air, and I'm speaking for the "Neighborhood"
+Neighborhood off-the-air, and I'm speaking for the Neighborhood
because that's what I produce, that they then become much more active
in the programming of their family's television life. Very frankly, I
am opposed to people being programmed by others. My whole approach in
-broadcasting has always been "You are an important person just the way
-you are. You can make healthy decisions." Maybe I'm going on too long,
+broadcasting has always been You are an important person just the way
+you are. You can make healthy decisions. Maybe I'm going on too long,
but I just feel that anything that allows a person to be more active
in the control of his or her life, in a healthy way, is
important.
@@ -7640,6 +7757,7 @@ important.
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of
the VCR (New York: W. W. Norton, 1987), 270–71.
+Rogers, Fred
@@ -7652,6 +7770,7 @@ the VCR responsible.
This led Conrad to draw the cartoon below, which we can adopt to
the DMCA.
+Conrad, Paul
No argument I have can top this picture, but let me try to get close.
@@ -7683,7 +7802,14 @@ circumvention technologies) are illegal. Flash: No one ever
died from copyright circumvention. Yet the law bans circumvention
technologies absolutely, despite the potential that they might do some
good, but permits guns, despite the obvious and tragic harm they do.
+Conrad, Paul
+Aibo robotic dog
+robotic dog
+
+ Sony
+ Aibo robotic dog produced by
+
The Aibo and RIAA examples demonstrate how copyright owners are
changing the balance that copyright law grants. Using code, copyright
@@ -7724,8 +7850,8 @@ fiction about the show. One person would play Spock, another, Captain
Kirk. The characters would begin with a plot from a real story, then
simply continue it.
-For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions,
-Copyright, Fan Fiction, and a New Common Law," Loyola of Los Angeles
+For an early and prescient analysis, see Rebecca Tushnet, Legal Fictions,
+Copyright, Fan Fiction, and a New Common Law,Loyola of Los Angeles
Entertainment Law Journal 17 (1997): 651.
@@ -7797,11 +7923,10 @@ of the media.
These changes are of two sorts: the scope of concentration, and its
nature.
-BMG
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
-ownership, "five companies control 85 percent of our media sources."
+ownership, five companies control 85 percent of our media sources.
FCC Oversight: Hearing Before the Senate Commerce, Science and
Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
@@ -7810,16 +7935,20 @@ The five recording labels of Universal Music Group, BMG, Sony Music
Entertainment, Warner Music Group, and EMI control 84.8 percent of the
U.S. music market.
-Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
-Slide," New York Times, 23 December 2002.
+Lynette Holloway, Despite a Marketing Blitz, CD Sales Continue to
+Slide,New York Times, 23 December 2002.
-The "five largest cable companies pipe
-programming to 74 percent of the cable subscribers nationwide."
+The five largest cable companies pipe
+programming to 74 percent of the cable subscribers nationwide.
-Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
+Molly Ivins, Media Consolidation Must Be Stopped,Charleston Gazette,
31 May 2003.
+BMG
+EMIMcCain, John
+Universal Music Group
+Warner Music Group
The story with radio is even more dramatic. Before deregulation,
@@ -7853,7 +7982,7 @@ put it in a recent article about Rupert Murdoch,
Murdoch's companies now constitute a production system
unmatched in its integration. They supply content—Fox movies
-. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus
+… Fox TV shows … Fox-controlled sports broadcasts, plus
newspapers and books. They sell the content to the public and to
advertisers—in newspapers, on the broadcast network, on the
cable channels. And they operate the physical distribution system
@@ -7862,7 +7991,7 @@ 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
@@ -7910,10 +8039,9 @@ was happy to have the series; ABC could not stop Lear from walking.
The copyrights that Lear held assured an independence from network
control.
-Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
-Forum, "Entertainment Economics: The Movie Industry," St. Louis,
- Missouri,
-3 April 2003 (transcript of prepared remarks available at
+Leonard Hill, The Axis of Access, remarks before Weidenbaum Center
+Forum, Entertainment Economics: The Movie Industry, St. Louis,
+Missouri, 3 April 2003 (transcript of prepared remarks available at
link #28;
for the Lear story, not included in the prepared remarks, see
link #29).
@@ -7927,19 +8055,19 @@ 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
+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,
+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
+controlled companies more than quintupled to 77 percent.In 1992, 16
new series were produced independently of conglomerate control, last
-year there was one."
+year there was one.
NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
Ownership Before the Senate Commerce Committee, 108th Cong., 1st
@@ -7951,11 +8079,11 @@ 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
+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%."
+63%.
Ibid.
@@ -7985,7 +8113,7 @@ 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.
@@ -8006,8 +8134,8 @@ democracy.
Clark, Kim B.
Economics itself offers a parallel that explains why this integration
-affects creativity. Clay Christensen has written about the "Innovator's
-Dilemma": the fact that large traditional firms find it rational to ignore
+affects creativity. Clay Christensen has written about the Innovator's
+Dilemma: the fact that large traditional firms find it rational to ignore
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.
@@ -8016,8 +8144,8 @@ 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):
+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
@@ -8070,7 +8198,7 @@ these issues.
Beginning in 1998, the Office of National Drug Control Policy launched
-a media campaign as part of the "war on drugs." The campaign produced
+a media campaign as part of the war on drugs. The campaign produced
scores of short film clips about issues related to illegal drugs. In
one series (the Nick and Norm series) two men are in a bar, discussing
the idea of legalizing drugs as a way to avoid some of the collateral
@@ -8099,7 +8227,7 @@ message will be heard then?
No. You cannot. Television stations have a general policy of avoiding
-"controversial" ads. Ads sponsored by the government are deemed
+controversial ads. Ads sponsored by the government are deemed
uncontroversial; ads disagreeing with the government are
controversial. This selectivity might be thought inconsistent with
the First Amendment, but the Supreme Court has held that stations have
@@ -8110,28 +8238,28 @@ rights of the stations to be this biased.
The Marijuana Policy Project, in February 2003, sought to place ads
that directly responded to the Nick and Norm series on stations within
-the Washington, D.C., area. Comcast rejected the ads as "against
-[their] policy." The local NBC affiliate, WRC, rejected the ads
+the Washington, D.C., area. Comcast rejected the ads as against
+[their] policy. The local NBC affiliate, WRC, rejected the ads
without reviewing them. The local ABC affiliate, WJOA, originally
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
+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
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
+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
(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
-diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming
-After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
+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."
+was that the criticism was too controversial.ABCComcastMarijuana Policy Project
@@ -8156,12 +8284,12 @@ decide which issues the rest of us get to know about.
Together
There is something innocent and obvious about the claim of the
-copyright warriors that the government should "protect my property."
+copyright warriors that the government should protect my property.
In the abstract, it is obviously true and, ordinarily, totally
harmless. No sane sort who is not an anarchist could disagree.
-But when we see how dramatically this "property" has changed—
+But when we see how dramatically this property has changed—
when we recognize how it might now interact with both technology and
markets to mean that the effective constraint on the liberty to
cultivate our culture is dramatically different—the claim begins
@@ -8171,7 +8299,7 @@ to seem
less innocent and obvious. Given (1) the power of technology to
supplement the law's control, and (2) the power of concentrated
markets to weaken the opportunity for dissent, if strictly enforcing
-the massively expanded "property" rights granted by copyright
+the massively expanded property rights granted by copyright
fundamentally changes the freedom within this culture to cultivate and
build upon our past, then we have to ask whether this property should
be redefined.
@@ -8231,7 +8359,7 @@ 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
+Siva Vaidhyanathan captures a similar point in his four surrenders of
copyright law in the digital age. See Vaidhyanathan, 159–60.
Vaidhyanathan, Siva
@@ -8247,8 +8375,7 @@ 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
+
@@ -8270,7 +8397,7 @@ that copyright law has undergone. In 1790, the law looked like this:
-
+
The act of publishing a map, chart, and book was regulated by
@@ -8285,8 +8412,7 @@ 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
+
@@ -8308,7 +8434,7 @@ By the end of the nineteenth century, the law had changed to this:
-
+
Derivative works were now regulated by copyright law—if
@@ -8324,8 +8450,7 @@ expanded. Thus by 1975, as photocopying machines became more common,
we could say the law began to look like this:
-
-Law status in 1975
+
@@ -8347,7 +8472,7 @@ we could say the law began to look like this:
-
+
The law was interpreted to reach noncommercial copying through, say,
@@ -8357,8 +8482,7 @@ technologies, especially in the context of a digital network, means
that the law now looks like this:
-
-Law status now
+
@@ -8380,7 +8504,7 @@ that the law now looks like this:
-
+
Every realm is governed by copyright law, whereas before most
@@ -8410,22 +8534,23 @@ if derivative rights were more sharply restricted.
The issue is therefore not simply whether copyright is property. Of
-course copyright is a kind of "property," and of course, as with any
+course copyright is a kind of property, and of course, as with any
property, the state ought to protect it. But first impressions
notwithstanding, historically, this property right (as with all
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
+balance public and private interests. See Thomas C. Grey, The
+Disintegration of Property, in Nomos XXII: Property, J. Roland
Pennock and John W. Chapman, eds. (New York: New York University
Press, 1980).
+legal realist movement)
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"
+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
@@ -8433,10 +8558,10 @@ vibrant and rich free culture.
We achieved that free culture because our law respected important
-limits on the scope of the interests protected by "property." The very
-birth of "copyright" as a statutory right recognized those limits, by
+limits on the scope of the interests protected by property. The very
+birth of copyright as a statutory right recognized those limits, by
granting copyright owners protection for a limited time only (the
-story of chapter 6). The tradition of "fair use" is animated by a
+story of chapter 6). The tradition of fair use is animated by a
similar concern that is increasingly under strain as the costs of
exercising any fair use right become unavoidably high (the story of
chapter 7). Adding
@@ -8471,7 +8596,7 @@ lawyer.
PUZZLES
-
+CHAPTER ELEVEN: Chimerachimeras
@@ -8480,7 +8605,7 @@ lawyer.
Wells, H. G.
- "Country of the Blind, The" (Wells)
+ Country of the Blind, The (Wells)
@@ -8488,75 +8613,75 @@ In a well-known short story by H. G. Wells, a mountain climber
named Nunez trips (literally, down an ice slope) into an unknown and
isolated valley in the Peruvian Andes.
-H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
+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
York: Oxford University Press, 1996).
-The valley is extraordinarily beautiful, with "sweet water, pasture,
+The valley is extraordinarily beautiful, with sweet water, pasture,
an even climate, slopes of rich brown soil with tangles of a shrub
-that bore an excellent fruit." But the villagers are all blind. Nunez
-takes this as an opportunity. "In the Country of the Blind," he tells
-himself, "the One-Eyed Man is King." So he resolves to live with the
+that bore an excellent fruit. But the villagers are all blind. Nunez
+takes this as an opportunity. In the Country of the Blind, he tells
+himself, the One-Eyed Man is King. So he resolves to live with the
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
+to control him. He, in turn, becomes increasingly frustrated. `You
don't understand,' he cried, in a voice that was meant to be great and
resolute, and which broke. `You are blind and I can see. Leave me
-alone!'"
+alone!'
The villagers don't leave him alone. Nor do they see (so to speak) the
virtue of his special power. Not even the ultimate target of his
-affection, a young woman who to him seems "the most beautiful thing in
-the whole of creation," understands the beauty of sight. Nunez's
-description of what he sees "seemed to her the most poetical of
+affection, a young woman who to him seems the most beautiful thing in
+the whole of creation, understands the beauty of sight. Nunez's
+description of what he sees seemed to her the most poetical of
fancies, and she listened to his description of the stars and the
mountains and her own sweet white-lit beauty as though it was a guilty
-indulgence." "She did not believe," Wells tells us, and "she could
-only half understand, but she was mysteriously delighted."
+indulgence.She did not believe, Wells tells us, and she could
+only half understand, but she was mysteriously delighted.
-When Nunez announces his desire to marry his "mysteriously delighted"
-love, the father and the village object. "You see, my dear," her
-father instructs, "he's an idiot. He has delusions. He can't do
-anything right." They take Nunez to the village doctor.
+When Nunez announces his desire to marry his mysteriously delighted
+love, the father and the village object. You see, my dear, her
+father instructs, he's an idiot. He has delusions. He can't do
+anything right. They take Nunez to the village doctor.
-After a careful examination, the doctor gives his opinion. "His brain
-is affected," he reports.
+After a careful examination, the doctor gives his opinion. His brain
+is affected, he reports.
-"What affects it?" the father asks. "Those queer things that are
-called the eyes . . . are diseased . . . in such a way as to affect
-his brain."
+What affects it? the father asks. Those queer things that are
+called the eyes … are diseased … in such a way as to affect
+his brain.
-The doctor continues: "I think I may say with reasonable certainty
+The doctor continues: I think I may say with reasonable certainty
that in order to cure him completely, all that we need to do is a
simple and easy surgical operation—namely, to remove these
-irritant bodies [the eyes]."
+irritant bodies [the eyes].
-"Thank Heaven for science!" says the father to the doctor. They inform
+Thank Heaven for science! says the father to the doctor. They inform
Nunez of this condition necessary for him to be allowed his bride.
(You'll have to read the original to learn what happens in the end. I
believe in free culture, but never in giving away the end of a story.)
It sometimes happens that the eggs of twins fuse in the mother's
-womb. That fusion produces a "chimera." A chimera is a single creature
+womb. That fusion produces a chimera. A chimera is a single creature
with two sets of DNA. The DNA in the blood, for example, might be
different from the DNA of the skin. This possibility is an underused
-plot for murder mysteries. "But the DNA shows with 100 percent
+plot for murder mysteries. But the DNA shows with 100 percent
certainty that she was not the person whose blood was at the
-scene. . . ."
+scene. …
@@ -8566,17 +8691,17 @@ impossible. A single person can't have two sets of DNA. The very idea
of DNA is that it is the code of an individual. Yet in fact, not only
can two individuals have the same set of DNA (identical twins), but
one person can have two different sets of DNA (a chimera). Our
-understanding of a "person" should reflect this reality.
+understanding of a person should reflect this reality.
The more I work to understand the current struggle over copyright and
culture, which I've sometimes called unfairly, and sometimes not
-unfairly enough, "the copyright wars," the more I think we're dealing
-with a chimera. For example, in the battle over the question "What is
-p2p file sharing?" both sides have it right, and both sides have it
-wrong. One side says, "File sharing is just like two kids taping each
+unfairly enough, the copyright wars, the more I think we're dealing
+with a chimera. For example, in the battle over the question What is
+p2p file sharing? both sides have it right, and both sides have it
+wrong. One side says, File sharing is just like two kids taping each
others' records—the sort of thing we've been doing for the last
-thirty years without any question at all." That's true, at least in
+thirty years without any question at all. That's true, at least in
part. When I tell my best friend to try out a new CD that I've bought,
but rather than just send the CD, I point him to my p2p server, that
is, in all relevant respects, just like what every executive in every
@@ -8586,15 +8711,15 @@ recording company no doubt did as a kid: sharing music.
But the description is also false in part. For when my p2p server is
on a p2p network through which anyone can get access to my music, then
sure, my friends can get access, but it stretches the meaning of
-"friends" beyond recognition to say "my ten thousand best friends" can
+friends beyond recognition to say my ten thousand best friends can
get access. Whether or not sharing my music with my best friend is
-what "we have always been allowed to do," we have not always been
-allowed to share music with "our ten thousand best friends."
+what we have always been allowed to do, we have not always been
+allowed to share music with our ten thousand best friends.
-Likewise, when the other side says, "File sharing is just like walking
+Likewise, when the other side says, File sharing is just like walking
into a Tower Records and taking a CD off the shelf and walking out
-with it," that's true, at least in part. If, after Lyle Lovett
+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.
@@ -8631,14 +8756,14 @@ 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,
+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
+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
@@ -8651,14 +8776,15 @@ 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,
+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
+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.
+Conyers, John, Jr.Berman, Howard L.
@@ -8692,7 +8818,7 @@ 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
+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
@@ -8709,12 +8835,11 @@ eMusic opposes music piracy. We are a distributor of copyrighted
material, and we want to protect those rights.
-But building a technology fortress that locks in the clout of
-the major labels is by no means the only way to protect copyright
-interests, nor is it necessarily the best. It is simply too early to
- answer
-that question. Market forces operating naturally may very
-well produce a totally different industry model.
+But building a technology fortress that locks in the clout of the
+major labels is by no means the only way to protect copyright
+interests, nor is it necessarily the best. It is simply too early to
+answer that question. Market forces operating naturally may very well
+produce a totally different industry model.
This is a critical point. The choices that industry sectors make
@@ -8739,7 +8864,7 @@ Congressional Testimony File.
In April 2001, eMusic.com was purchased by Vivendi Universal,
-one of "the major labels." Its position on these matters has now
+one of the major labels. Its position on these matters has now
changed.
Vivendi Universal
@@ -8751,37 +8876,34 @@ and will kill opportunities that could be extraordinarily valuable.
-
+CHAPTER TWELVE: Harms
-
-To fight "piracy," to protect "property," the content industry has
-launched a war. Lobbying and lots of campaign contributions have
-now brought the government into this war. As with any war, this one
-will have both direct and collateral damage. As with any war of
- prohibition,
-these damages will be suffered most by our own people.
+To fight piracy, to protect property, the content industry has
+launched a war. Lobbying and lots of campaign contributions have now
+brought the government into this war. As with any war, this one will
+have both direct and collateral damage. As with any war of
+prohibition, these damages will be suffered most by our own people.
My aim so far has been to describe the consequences of this war, in
-particular, the consequences for "free culture." But my aim now is to
- extend
-this description of consequences into an argument. Is this war
- justified?
+particular, the consequences for free culture. But my aim now is to
+extend this description of consequences into an argument. Is this war
+justified?
In my view, it is not. There is no good reason why this time, for the
first time, the law should defend the old against the new, just when the
-power of the property called "intellectual property" is at its greatest in
+power of the property called intellectual property is at its greatest in
our history.
Causby, Thomas LeeCausby, Tinie
-Yet "common sense" does not see it this way. Common sense is still on
+Yet common sense does not see it this way. Common sense is still on
the side of the Causbys and the content industry. The extreme claims
of control in the name of property still resonate; the uncritical
-rejection of "piracy" still has play.
+rejection of piracy still has play.
@@ -8809,11 +8931,11 @@ weave together a string—a mash-up— of songs from your
favorite artists in a collage and make it available on the Net.
-This digital "capturing and sharing" is in part an extension of the
+This digital capturing and sharing is in part an extension of the
capturing and sharing that has always been integral to our culture,
and in part it is something new. It is continuous with the Kodak, but
it explodes the boundaries of Kodak-like technologies. The technology
-of digital "capturing and sharing" promises a world of extraordinarily
+of digital capturing and sharing promises a world of extraordinarily
diverse creativity that can be easily and broadly shared. And as that
creativity is applied to democracy, it will enable a broad range of
citizens to use technology to express and criticize and contribute to
@@ -8855,8 +8977,8 @@ million.
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
+the settlement, see MCI press release, MCI Wins U.S. District Court
+Approval for SEC Settlement (7 July 2003), available at
link #37.
Worldcom
@@ -8867,10 +8989,10 @@ suffering.
The bill, modeled after California's tort reform model, was passed in the
House of Representatives but defeated in a Senate vote in July 2003. For
-an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
-Say Tort Reformers," amednews.com, 28 July 2003, available at
+an overview, see Tanya Albert, Measure Stalls in Senate: `We'll Be Back,'
+Say Tort Reformers, amednews.com, 28 July 2003, available at
link #38,
-and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003,
+and Senate Turns Back Malpractice Caps, CBSNews.com, 9 July 2003,
available at
link #39. President Bush has continued to urge tort reform in
recent months.
@@ -8886,7 +9008,7 @@ 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
+Disneys pirates. We make it impossible for businesses to rely upon a
public domain, because the boundaries of the public domain are
designed to
@@ -8897,16 +9019,16 @@ 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
+fraught. Already, exhibits of illegal art tour the United
States.
-See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July
+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.
- In what does their "illegality" consist?
+ In what does their illegality consist?
In the act of mixing the culture around us with an expression that is
critical or reflective.
@@ -8956,13 +9078,13 @@ tradition that prides itself on the rule of law.
Judges and lawyers can tell themselves that fair use provides adequate
-"breathing room" between regulation by the law and the access the law
+breathing room between regulation by the law and the access the law
should allow. But it is a measure of how out of touch our legal system
has become that anyone actually believes this. The rules that
publishers impose upon writers, the rules that film distributors
impose upon filmmakers, the rules that newspapers impose upon
journalists— these are the real laws governing creativity. And
-these rules have little relationship to the "law" with which judges
+these rules have little relationship to the law with which judges
comfort themselves.
@@ -8972,7 +9094,7 @@ dollars to even defend against a copyright infringement claim, and
which would never return to the wrongfully accused defendant anything
of the costs she suffered to defend her right to speak—in that
world, the astonishingly broad regulations that pass under the name
-"copyright" silence speech and creativity. And in that world, it takes
+copyright silence speech and creativity. And in that world, it takes
a studied blindness for people to continue to believe they live in a
culture that is free.
@@ -8984,11 +9106,11 @@ As Jed Horovitz, the businessman behind Video Pipeline, said to me,
We're losing [creative] opportunities right and left. Creative people
are being forced not to express themselves. Thoughts are not being
expressed. And while a lot of stuff may [still] be created, it still
-won't get distributed. Even if the stuff gets made . . . you're not
+won't get distributed. Even if the stuff gets made … you're not
going to get it distributed in the mainstream media unless
-you've got a little note from a lawyer saying, "This has been
-cleared." You're not even going to get it on PBS without that kind of
+you've got a little note from a lawyer saying, This has been
+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.
@@ -9008,8 +9130,8 @@ But there's an aspect of this story that is not lefty in any sense.
Indeed, it is an aspect that could be written by the most extreme
promarket ideologue. And if you're one of these sorts (and a special
one at that, 188 pages into a book like this), then you can see this
-other aspect by substituting "free market" every place I've spoken of
-"free culture." The point is the same, even if the interests
+other aspect by substituting free market every place I've spoken of
+free culture. The point is the same, even if the interests
affecting culture are more fundamental.
@@ -9037,13 +9159,14 @@ only if they have the sign-off from last generation's dominant
industries. That lesson has been taught through a series of cases
that were designed and executed to teach venture capitalists a
lesson. That lesson—what former Napster CEO Hank Barry calls a
-"nuclear pall" that has fallen over the Valley—has been learned.
+nuclear pall that has fallen over the Valley—has been learned.
Consider one example to make the point, a story whose beginning
I told in The Future of Ideas and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
+Roberts, Michael
In 1997, Michael Roberts launched a company called MP3.com. MP3.com
was keen to remake the music business. Their goal was not just to
@@ -9133,6 +9256,7 @@ such a view of the law will cost you and your firm dearly.
Hummer, JohnBarry, 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
@@ -9140,12 +9264,12 @@ 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
+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
+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
+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
@@ -9157,8 +9281,11 @@ 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:
+afraid of technologies that touch content. In an article in
+Business 2.0, Rafe Needleman describes a
+discussion with BMW:
+EMI
+Universal Music Group
BMW
@@ -9169,10 +9296,10 @@ engineers in Germany had rigged a new vehicle to play MP3s via
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
forward for release stateside. Even today, no new cars are sold in the
-United States with bona fide MP3 players. . . .
+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.
@@ -9181,8 +9308,8 @@ to Dr. Mohammad Al-Ubaydli for this example.
-This is the world of the mafia—filled with "your money or your
-life" offers, governed in the end not by courts but by the threats
+This is the world of the mafia—filled with your money or your
+life offers, governed in the end not by courts but by the threats
that the law empowers copyright holders to exercise. It is a system
that will obviously and necessarily stifle new innovation. It is hard
enough to start a company. It is impossibly hard if that company is
@@ -9192,22 +9319,21 @@ constantly threatened by litigation.
The point is not that businesses should have a right to start illegal
-enterprises. The point is the definition of "illegal." The law is a mess of
-uncertainty. We have no good way to know how it should apply to new
-technologies. Yet by reversing our tradition of judicial deference, and
-by embracing the astonishingly high penalties that copyright law
- imposes,
-that uncertainty now yields a reality which is far more
- conservative
-than is right. If the law imposed the death penalty for parking
-tickets, we'd not only have fewer parking tickets, we'd also have much
-less driving. The same principle applies to innovation. If innovation is
-constantly checked by this uncertain and unlimited liability, we will
-have much less vibrant innovation and much less creativity.
+enterprises. The point is the definition of illegal. The law is a
+mess of uncertainty. We have no good way to know how it should apply
+to new technologies. Yet by reversing our tradition of judicial
+deference, and by embracing the astonishingly high penalties that
+copyright law imposes, that uncertainty now yields a reality which is
+far more conservative than is right. If the law imposed the death
+penalty for parking tickets, we'd not only have fewer parking tickets,
+we'd also have much less driving. The same principle applies to
+innovation. If innovation is constantly checked by this uncertain and
+unlimited liability, we will 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
+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
@@ -9243,10 +9369,10 @@ 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
+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,
+the Internet less efficient. If the Internet enables piracy, then,
this response says, we should break the kneecaps of the Internet.
@@ -9254,53 +9380,49 @@ The examples of this form of legislation are many. At the urging of
the content industry, some in Congress have threatened legislation that
would require computers to determine whether the content they access
is protected or not, and to disable the spread of protected content.
- "Copyright and Digital Media in a Post-Napster World," GartnerG2 and
+ Copyright and Digital Media in a Post-Napster World, GartnerG2 and
the Berkman Center for Internet and Society at Harvard Law School
(2003), 33–35, available at
link #44.
-
- Congress
-has already launched proceedings to explore a mandatory
- "broadcast
-flag" that would be required on any device capable of transmitting
-digital video (i.e., a computer), and that would disable the copying of
-any content that is marked with a broadcast flag. Other members of
-Congress have proposed immunizing content providers from liability
-for technology they might deploy that would hunt down copyright
- violators
-and disable their machines.
- GartnerG2, 26–27.
+Congress has already launched proceedings to explore a mandatory
+broadcast flag that would be required on any device capable of
+transmitting digital video (i.e., a computer), and that would disable
+the copying of any content that is marked with a broadcast flag. Other
+members of Congress have proposed immunizing content providers from
+liability for technology they might deploy that would hunt down
+copyright violators and disable their machines.
+
+GartnerG2, 26–27.
-
In one sense, these solutions seem sensible. If the problem is the
-code, why not regulate the code to remove the problem. But any
- regulation
-of technical infrastructure will always be tuned to the particular
-technology of the day. It will impose significant burdens and costs on
-
+code, why not regulate the code to remove the problem. But any
+regulation of technical infrastructure will always be tuned to the
+particular technology of the day. It will impose significant burdens
+and costs on
the technology, but will likely be eclipsed by advances around exactly
those requirements.
In March 2002, a broad coalition of technology companies, led by
-Intel, tried to get Congress to see the harm that such legislation would
-impose.
- See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
+Intel, tried to get Congress to see the harm that such legislation
+would impose.
+
+See David McGuire, Tech Execs Square Off Over Piracy, Newsbytes,
February 2002 (Entertainment).
- Their argument was obviously not that copyright should not
-be protected. Instead, they argued, any protection should not do more
+Their argument was obviously not that copyright should not be
+protected. Instead, they argued, any protection should not do more
harm than good.
+Intel
-There is one more obvious way in which this war has harmed
- innovation—again,
-a story that will be quite familiar to the free market
-crowd.
+There is one more obvious way in which this war has harmed
+innovation—again, a story that will be quite familiar to the
+free market crowd.
Copyright may be property, but like all property, it is also a form
@@ -9319,11 +9441,11 @@ Jessica Litman, Digital Copyright (Amherst,
N.Y.: Prometheus Books, 2001).
Litman, Jessica
- overall this history of copyright
-is not bad. As chapter 10 details, when new technologies have come
-along, Congress has struck a balance to assure that the new is protected
-from the old. Compulsory, or statutory, licenses have been one part of
-that strategy. Free use (as in the case of the VCR) has been another.
+overall this history of copyright is not bad. As chapter 10 details,
+when new technologies have come along, Congress has struck a balance
+to assure that the new is protected from the old. Compulsory, or
+statutory, licenses have been one part of that strategy. Free use (as
+in the case of the VCR) has been another.
But that pattern of deference to new technologies has now changed
@@ -9359,15 +9481,16 @@ 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
+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,
+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.
+Hollings, Fritz
But there is one example that captures the flavor of them all. This is
the story of the demise of Internet radio.
@@ -9377,13 +9500,14 @@ the story of the demise of Internet radio.
As I described in chapter , when a radio station plays a song, the recording
-artist doesn't get paid for that "radio performance" unless he or she
+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
+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
+copyright owners of Happy Birthday would get some money, whereas
Marilyn Monroe would not.
+Kennedy, John F.
The reasoning behind this balance struck by Congress makes some
@@ -9400,7 +9524,7 @@ 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
+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.
@@ -9435,7 +9559,7 @@ 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
+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
@@ -9452,8 +9576,8 @@ 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"
+underestimated the power of vested interests, habits, customs and
+legislation
Ibid., 229.
@@ -9477,7 +9601,7 @@ 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
+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.
@@ -9500,13 +9624,13 @@ in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
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
+C. Picker, Copyright as Entry Policy: The Case of Digital
+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."
+interests, that could have been done in a media-neutral way.CARP (Copyright Arbitration Royalty Panel)Picker, Randal C.
@@ -9591,7 +9715,7 @@ date and time that the user logged out (in the user's time zone);
time zone where the signal was received (user);
-Unique User identifier;
+unique user identifier;
the country in which the user received the transmissions.
@@ -9612,6 +9736,7 @@ 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
@@ -9624,21 +9749,20 @@ some testimony about what they thought a willing buyer would
pay to a willing seller, and it was much higher. It was ten times
higher than what radio stations pay to perform the same songs for
the same period of time. And so the attorneys representing the
-webcasters asked the RIAA, . . . "How do you come up with a
+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
+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
+high rate and it's a stable, predictable market. (Emphasis
added.)
@@ -9670,7 +9794,7 @@ 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
Americans downloaded music in May 2002.
- Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
+ Mike Graziano and Lee Rainie, The Music Downloading Deluge, Pew
Internet and American Life Project (24 April 2001), available at
link #46.
The Pew Internet and American Life Project reported that 37 million
@@ -9704,7 +9828,7 @@ sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
was.
-Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
+Alex Pham, The Labels Strike Back: N.Y. Girl Settles RIAA Case,Los
Angeles Times, 10 September 2003, Business.
As these scapegoats discovered, it will always cost more to defend
@@ -9726,8 +9850,8 @@ consumption was up to 70 percent of the preprohibition
level. Americans were drinking just about as much, but now, a vast
number were criminals.
-Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
-Prohibition," American Economic Review 81, no. 2 (1991): 242.
+Jeffrey A. Miron and Jeffrey Zwiebel, Alcohol Consumption During
+Prohibition,American Economic Review 81, no. 2 (1991): 242.
We have
@@ -9744,11 +9868,11 @@ majority of Americans violate the law every day. We run such a complex
tax system that a majority of cash businesses regularly
cheat.
-See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
-Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+See James Andreoni, Brian Erard, and Jonathon Feinstein, Tax
+Compliance,Journal of Economic Literature 36 (1998): 818 (survey of
compliance literature).
-We pride ourselves on our "free society," but an endless array of
+We pride ourselves on our free society, but an endless array of
ordinary behavior is regulated within our society. And as a result, a
huge proportion of Americans regularly violate at least some law.
alcohol prohibition
@@ -9756,7 +9880,7 @@ huge proportion of Americans regularly violate at least some law.
This state of affairs is not without consequence. It is a particularly
salient issue for teachers like me, whose job it is to teach law
-students about the importance of "ethics." As my colleague Charlie
+students about the importance of ethics. As my colleague Charlie
Nesson told a class at Stanford, each year law schools admit thousands
of students who have illegally downloaded music, illegally consumed
alcohol and sometimes drugs, illegally worked without paying taxes,
@@ -9767,8 +9891,9 @@ keep client funds separate, or honor a demand to disclose a document
that will mean that your case is over. Generations of
Americans—more significantly in some parts of America than in
others, but still, everywhere in America today—can't live their
-lives both normally and legally, since "normally" entails a certain
+lives both normally and legally, since normally entails a certain
degree of illegality.
+law schools
The response to this general illegality is either to enforce the law
@@ -9801,8 +9926,8 @@ or not; I want to catch and incarcerate the rapist. But I do care
whether my students respect the law. And I do care if the rules of law
sow increasing disrespect because of the extreme of regulation they
impose. Twenty million Americans have come of age since the Internet
-introduced this different idea of "sharing." We need to be able to
-call these twenty million Americans "citizens," not "felons."
+introduced this different idea of sharing. We need to be able to
+call these twenty million Americans citizens, not felons.
When at least forty-three million citizens download content from the
@@ -9827,21 +9952,21 @@ copyright infringement for me to sell all my classical records at a
used
-record store and buy jazz records to replace them. That "use" of the
+record store and buy jazz records to replace them. That use of the
recordings is free.
But as the MP3 craze has demonstrated, there is another use of
phonograph records that is effectively free. Because these recordings
-were made without copy-protection technologies, I am "free" to copy,
-or "rip," music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that "freedom" was a
-right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+were made without copy-protection technologies, I am free to copy,
+or rip, music from my records onto a computer hard disk. Indeed,
+Apple Corporation went so far as to suggest that freedom was a
+right: In a series of commercials, Apple endorsed the Rip, Mix, Burn
capacities of digital technologies.
Adromeda
-This "use" of my records is certainly valuable. I have begun a large
+This use of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
them in one archive. Then, using Apple's iTunes, or a wonderful
program called Andromeda, we can build different play lists of our
@@ -9872,8 +9997,8 @@ these protection technologies would effectively destroy the archiving
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
-plastic or were part of a massively complex "digital rights
-management" system.
+plastic or were part of a massively complex digital rights
+management system.
If the only way to assure that artists get paid were the elimination
@@ -9921,28 +10046,28 @@ tradition as deep and important as our tradition of free culture.
There's one more aspect to this corruption that is particularly
important to civil liberties, and follows directly from any war of
prohibition. As Electronic Frontier Foundation attorney Fred von
-Lohmann describes, this is the "collateral damage" that "arises
+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
+criminals. This is the collateral damage to civil liberties
generally.
Electronic Frontier Foundation
-"If you can treat someone as a putative lawbreaker," von Lohmann
+If you can treat someone as a putative lawbreaker, von Lohmann
explains,
von Lohmann, Fred
then all of a sudden a lot of basic civil liberty protections
-evaporate to one degree or another. . . . If you're a copyright
+evaporate to one degree or another. … If you're a copyright
infringer, how can you hope to have any privacy rights? If you're a
copyright infringer, how can you hope to be secure against seizures of
your computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh, well,
-but that person's a criminal, a lawbreaker." Well, what this campaign
+access? … Our sensibilities change as soon as we think, Oh, well,
+but that person's a criminal, a lawbreaker. Well, what this campaign
against file sharing has done is turn a remarkable percentage of the
-American Internet-using population into "lawbreakers."
+American Internet-using population into lawbreakers.
@@ -9969,16 +10094,16 @@ the family could be liable for $2 million in damages. That didn't stop
the RIAA from suing a number of these families, just as they had sued
Jesse Jordan.
-See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
-Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
-Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+See Frank Ahrens, RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,
+Washington Post, 10 September 2003, E1; Chris Cobbs, Worried Parents
Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
File Swapping, Parents are Yanking Software from Home PCs to Avoid
-Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
-Graham, "Recording Industry Sues Parents," USA Today, 15 September
-2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
-Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
-Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
+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.
@@ -9987,13 +10112,13 @@ Even this understates the espionage that is being waged by the
RIAA. A report from CNN late last summer described a strategy the
RIAA had adopted to track Napster users.
-See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
-Some Methods Used," CNN.com, available at
+See Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used, CNN.com, available at
link #47.
Using a sophisticated hashing algorithm, the RIAA took what is in
effect a fingerprint of every song in the Napster catalog. Any copy of
-one of those MP3s will have the same "fingerprint."
+one of those MP3s will have the same fingerprint.
So imagine the following not-implausible scenario: Imagine a
@@ -10002,26 +10127,26 @@ like the cassettes you used to make as a kid. You don't know, and
neither does your daughter, where these songs came from. But she
copies these songs onto her computer. She then takes her computer to
college and connects it to a college network, and if the college
-network is "cooperating" with the RIAA's espionage, and she hasn't
+network is cooperating with the RIAA's espionage, and she hasn't
properly protected her content from the network (do you know how to do
that yourself ?), then the RIAA will be able to identify your daughter
-as a "criminal." And under the rules that universities are beginning
+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
+See Jeff Adler, Cambridge: On Campus, Pirates Are Not Penitent,
+Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, Four
Students Sued over Music Sites; Industry Group Targets File Sharing at
-Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
-"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
-Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+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
+#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.
@@ -10032,7 +10157,7 @@ a lawyer for her (at $300 per hour, if you're lucky), and she can
plead that she didn't know anything about the source of the songs or
that they came from Napster. And it may well be that the university
believes her. But the university might not believe her. It might treat
-this "contraband" as presumptive of guilt. And as any number of
+this contraband as presumptive of guilt. And as any number of
college students
@@ -10056,17 +10181,17 @@ people use drugs, and I think that's the closest analog, [but] many
have noted that the war against drugs has eroded all of our civil
liberties because it's treated so many Americans as criminals. Well, I
think it's fair to say that file sharing is an order of magnitude
-larger number of Americans than drug use. . . . If forty to sixty
+larger number of Americans than drug use. … If forty to sixty
million Americans have become lawbreakers, then we're really on a
slippery slope to lose a lot of civil liberties for all forty to sixty
million of them.
-When forty to sixty million Americans are considered "criminals" under
+When forty to sixty million Americans are considered criminals under
the law, and when the law could achieve the same objective—
securing rights to authors—without these millions being
-considered "criminals," who is the villain? Americans or the law?
+considered criminals, who is the villain? Americans or the law?
Which is American, a constant war on our own people or a concerted
effort through our democracy to change our law?
@@ -10132,8 +10257,11 @@ 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
@@ -10173,13 +10301,14 @@ 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
thousands of others. Hundreds of thousands from across the world have
discovered this platform of expression and now use it to share works
that are, by law, free for the taking. This has produced what we might
-call the "noncommercial publishing industry," which before the
+call the noncommercial publishing industry, which before the
Internet was limited to people with large egos or with political or
social causes. But with the Internet, it includes a wide range of
individuals and groups dedicated to spreading culture
@@ -10221,15 +10350,15 @@ more than 1 million patents will pass into the public domain.
This was the Sonny Bono Copyright Term Extension Act
(CTEA), enacted in memory of the congressman and former musician
Sonny Bono, who, his widow, Mary Bono, says, believed that
-"copyrights should be forever."
+copyrights should be forever.
-The full text is: "Sonny [Bono] wanted the term of copyright
+The full text is: Sonny [Bono] wanted the term of copyright
protection to last forever. I am informed by staff that such a change
would violate the Constitution. I invite all of you to work with me to
strengthen our copyright laws in all of the ways available to us. As
you know, there is also Jack Valenti's proposal for a term to last
forever less one day. Perhaps the Committee may look at that next
-Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
+Congress, 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
@@ -10254,31 +10383,31 @@ different. As you know, the Constitution says,
-Congress has the power to promote the Progress of Science . . .
-by securing for limited Times to Authors . . . exclusive Right to
-their . . . Writings. . . .
+Congress has the power to promote the Progress of Science …
+by securing for limited Times to Authors … exclusive Right to
+their … Writings. …
As I've described, this clause is unique within the power-granting
clause of Article I, section 8 of our Constitution. Every other clause
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."
+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 securingexclusive 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
about this was, if Congress has the power to extend existing terms,
-then the Constitution's requirement that terms be "limited" will have
+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.
+what the Constitution plainly forbids—perpetual terms on the
+installment plan, as Professor Peter Jaszi so nicely put it.
Jaszi, Peter
@@ -10294,8 +10423,8 @@ 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
+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
@@ -10319,55 +10448,55 @@ Your financial adviser comes to your board meeting with a very grim
report:
-"Next year," the adviser announces, "our copyrights in works A, B,
+Next year, the adviser announces, our copyrights in works A, B,
and C will expire. That means that after next year, we will no longer be
receiving the annual royalty check of $100,000 from the publishers of
-those works.
+those works.
-"There's a proposal in Congress, however," she continues, "that
+There's a proposal in Congress, however, she continues, that
could change this. A few congressmen are floating a bill to extend the
terms of copyright by twenty years. That bill would be extraordinarily
-valuable to us. So we should hope this bill passes."
+valuable to us. So we should hope this bill passes.
-"Hope?" a fellow board member says. "Can't we be doing something
-about it?"
+Hope? a fellow board member says. Can't we be doing something
+about it?
-"Well, obviously, yes," the adviser responds. "We could contribute
+Well, obviously, yes, the adviser responds. We could contribute
to the campaigns of a number of representatives to try to assure that
-they support the bill."
+they support the bill.
You hate politics. You hate contributing to campaigns. So you want
-to know whether this disgusting practice is worth it. "How much
-would we get if this extension were passed?" you ask the adviser. "How
-much is it worth?"
+to know whether this disgusting practice is worth it. How much
+would we get if this extension were passed? you ask the adviser. How
+much is it worth?
-"Well," the adviser says, "if you're confident that you will continue
+Well, the adviser says, if you're confident that you will continue
to get at least $100,000 a year from these copyrights, and you use the
`discount rate' that we use to evaluate estate investments (6 percent),
-then this law would be worth $1,146,000 to the estate."
+then this law would be worth $1,146,000 to the estate.
You're a bit shocked by the number, but you quickly come to the
correct conclusion:
-"So you're saying it would be worth it for us to pay more than
+So you're saying it would be worth it for us to pay more than
$1,000,000 in campaign contributions if we were confident those
contributions
-would assure that the bill was passed?"
+would assure that the bill was passed?
-"Absolutely," the adviser responds. "It is worth it to you to
+Absolutely, the adviser responds. It is worth it to you to
contribute
up to the `present value' of the income you expect from these
-copyrights. Which for us means over $1,000,000."
+copyrights. Which for us means over $1,000,000.
You quickly get the point—you as the member of the board and, I
@@ -10388,27 +10517,27 @@ the world to buy further extensions of copyright.
In the lobbying that led to the passage of the Sonny Bono
Copyright
-Term Extension Act, this "theory" about incentives was proved
+Term Extension Act, this theory about incentives was proved
real. Ten of the thirteen original sponsors of the act in the House
received the maximum contribution from Disney's political action
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,"
+ 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.
The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
than $200,000 in campaign contributions.
- See Nick Brown, "Fair Use No More?: Copyright in the Information
-Age," available at
+ See Nick Brown, Fair Use No More?: Copyright in the Information
+Age, available at
link #49.
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,"
+Alan K. Ota, Disney in Washington: The Mouse That Roars,Congressional Quarterly This Week, 8 August 1990, available at
link #50.
@@ -10423,7 +10552,7 @@ was central to my thinking. In my view, a pragmatic court committed
to interpreting and applying the Constitution of our framers would see
that if Congress has the power to extend existing terms, then there
would be no effective constitutional requirement that terms be
- "limited."
+ limited.
If they could extend it once, they would extend it again and again
and again.
@@ -10443,9 +10572,9 @@ guns near schools.
Since 1937, the Supreme Court had interpreted Congress's granted
powers very broadly; so, while the Constitution grants Congress the
-power to regulate only "commerce among the several states" (aka
- "interstate
-commerce"), the Supreme Court had interpreted that power to
+power to regulate only commerce among the several states (aka
+ interstate
+commerce), the Supreme Court had interpreted that power to
include the power to regulate any activity that merely affected
interstate
commerce.
@@ -10457,6 +10586,7 @@ 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
@@ -10471,7 +10601,7 @@ 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).
@@ -10495,13 +10625,13 @@ 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.
+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
+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
@@ -10514,7 +10644,7 @@ 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
+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
@@ -10542,7 +10672,7 @@ 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."
+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
@@ -10569,7 +10699,7 @@ bought to extend them again.
It is valuable copyrights that are responsible for terms being
extended.
-Mickey Mouse and "Rhapsody in Blue." These works are too
+Mickey Mouse and Rhapsody in Blue. These works are too
valuable for copyright owners to ignore. But the real harm to our
society
from copyright extensions is not that Mickey Mouse remains
@@ -10637,9 +10767,9 @@ 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
@@ -10684,6 +10814,8 @@ 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,
which owns the copyrights for the Laurel and Hardy films. Agee is a
@@ -10692,14 +10824,14 @@ made between 1921 and 1951. Only one of these films, The Lucky DogRoach has sold about 60,000
videocassettes and 50,000 DVDs of the duo's silent
-films."
+films.
-See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
-Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+See David G. Savage, High Court Scene of Showdown on Copyright Law,
+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
@@ -10755,8 +10887,8 @@ 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
-copyright owner when she shows up?" Sure, if you want to commit a
+But can't you just restore the film, distribute it, and then pay the
+copyright owner when she shows up? Sure, if you want to commit a
felony. And even if you're not worried about committing a felony, when
she does show up, she'll have the right to sue you for all the profits you
have made. So, if you're successful, you can be fairly confident you'll be
@@ -10789,8 +10921,8 @@ fraction has continuing commercial value. For that tiny fraction, the
copyright is a crucially important legal device. For that tiny fraction,
the copyright creates incentives to produce and distribute the
creative
-work. For that tiny fraction, the copyright acts as an "engine of
-free expression."
+work. For that tiny fraction, the copyright acts as an engine of
+free expression.
But even for that tiny fraction, the actual time during which the
@@ -10886,17 +11018,17 @@ 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
+You may well ask, But if digital technologies lower the costs for
Brewster Kahle, then they will lower the costs for Random House, too.
So won't Random House do as well as Brewster Kahle in spreading
-culture widely?"
+culture widely?
Maybe. Someday. But there is absolutely no evidence to suggest that
publishers would be as complete as libraries. If Barnes & Noble
offered to lend books from its stores for a low price, would that
eliminate the need for libraries? Only if you think that the only role
-of a library is to serve what "the market" would demand. But if you
+of a library is to serve what the market would demand. But if you
think the role of a library is bigger than this—if you think its
role is to archive culture, whether there's a demand for any
particular bit of that culture or not—then we can't count on the
@@ -10915,7 +11047,7 @@ and 1946 is not commercially available. However much you love the
commercial market, if access is a value, then 6 percent is a failure
to provide that value.
-Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+Jason Schultz, The Myth of the 1976 Copyright `Chaos' Theory, 20
December 2002, available at
link #54.
@@ -10926,7 +11058,7 @@ In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
district court in Washington, D.C., asking the court to declare the
Sonny Bono Copyright Term Extension Act unconstitutional. The two
central claims that we made were (1) that extending existing terms
-violated the Constitution's "limited Times" requirement, and (2) that
+violated the Constitution's limited Times requirement, and (2) that
extending terms by another twenty years violated the First Amendment.
@@ -10938,12 +11070,12 @@ judges on that court. That dissent gave our claims life.
Judge David Sentelle said the CTEA violated the requirement that
-copyrights be for "limited Times" only. His argument was as elegant as
+copyrights be for limited Times only. His argument was as elegant as
it was simple: If Congress can extend existing terms, then there is no
-"stopping point" to Congress's power under the Copyright Clause. The
+stopping point to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are "limited." Thus, Judge Sentelle argued, the court had
-to interpret the term "limited Times" to give it meaning. And the best
+terms that are limited. Thus, Judge Sentelle argued, the court had
+to interpret the term limited Times to give it meaning. And the best
interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
@@ -10951,7 +11083,7 @@ power to extend existing terms.
We asked the Court of Appeals for the D.C. Circuit as a whole to
hear the case. Cases are ordinarily heard in panels of three, except for
important cases or cases that raise issues specific to the circuit as a
-whole, where the court will sit "en banc" to hear the case.
+whole, where the court will sit en banc to hear the case.
The Court of Appeals rejected our request to hear the case en banc.
@@ -11011,18 +11143,18 @@ There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
quite involved. Bromberg and Ayer in particular had a common view
about how this case would be won: We would only win, they repeatedly
-told me, if we could make the issue seem "important" to the Supreme
+told me, if we could make the issue seem important to the Supreme
Court. It had to seem as if dramatic harm were being done to free
-speech and free culture; otherwise, they would never vote against "the
-most powerful media companies in the world."
+speech and free culture; otherwise, they would never vote against the
+most powerful media companies in the world.
I hate this view of the law. Of course I thought the Sonny Bono Act
was a dramatic harm to free speech and free culture. Of course I still
think it is. But the idea that the Supreme Court decides the law based
on how important they believe the issues are is just wrong. It might be
-"right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be
-that way." As I believed that any faithful interpretation of what the
+right as in true, I thought, but it is wrong as in it just shouldn't be
+that way. As I believed that any faithful interpretation of what the
framers of our Constitution did would yield the conclusion that the
CTEA was unconstitutional, and as I believed that any faithful
interpretation
@@ -11070,10 +11202,10 @@ 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
+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
+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.
@@ -11101,6 +11233,7 @@ exhaustive and uncontroverted brief by the world's experts in the
history of the Progress Clause. And of course, there was a new brief
by Eagle Forum, repeating and strengthening its arguments.
GNU/Linux operating system
+IntelLinux operating systemEagle Forum
@@ -11112,6 +11245,7 @@ Law Libraries, and the National Writers Union.
American Association of Law LibrariesNational 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
@@ -11132,7 +11266,7 @@ the list of Nobel winners demonstrates, spanned the political
spectrum. Their conclusions were powerful: There was no plausible
claim that extending the terms of existing copyrights would do
anything to increase incentives to create. Such extensions were
-nothing more than "rent-seeking"—the fancy term economists use
+nothing more than rent-seeking—the fancy term economists use
to describe special-interest legislation gone wild.
@@ -11149,6 +11283,9 @@ Kathleen Sullivan, who had argued many cases in the Court, and
who had advised us early on about a First Amendment strategy; and
finally, former solicitor general Charles Fried.
Fried, Charles
+Morrison, Alan
+Public Citizen
+Reagan, Ronald
Fried was a special victory for our side. Every other former solicitor
@@ -11165,7 +11302,7 @@ confidence in our argument.
The government, in defending the statute, had its collection of
-friends, as well. Significantly, however, none of these "friends" included
+friends, as well. Significantly, however, none of these friends included
historians or economists. The briefs on the other side of the case were
written exclusively by major media companies, congressmen, and
copyright holders.
@@ -11184,19 +11321,19 @@ Dr. Seuss's representatives, for example, argued that it was
better for the Dr. Seuss estate to control what happened to
Dr. Seuss's work— better than allowing it to fall into the
public domain—because if this creativity were in the public
-domain, then people could use it to "glorify drugs or to create
-pornography."
+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
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,
+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.
+Dinitia Smith, Immortal Words, Immortal Royalties? Even Mickey
+Mouse Joins the Fray,New York Times, 28 March 1998, B7.
That's
@@ -11209,9 +11346,9 @@ This argument made clear a theme that is rarely noticed in this
debate. When Congress decides to extend the term of existing
copyrights, Congress is making a choice about which speakers it will
favor. Famous and beloved copyright owners, such as the Gershwin
-estate and Dr. Seuss, come to Congress and say, "Give us twenty years
+estate and Dr. Seuss, come to Congress and say, Give us twenty years
to control the speech about these icons of American culture. We'll do
-better with them than anyone else." Congress of course likes to reward
+better with them than anyone else. Congress of course likes to reward
the popular and famous by giving them what they want. But when
Congress gives people an exclusive right to speak in a certain way,
that's just what the First Amendment is traditionally meant to block.
@@ -11225,15 +11362,16 @@ 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
@@ -11277,28 +11415,28 @@ 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.
+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
@@ -11309,13 +11447,13 @@ should not now say that practice is unconstitutional.
There was some truth to the government's claim, but not much. We
-certainly agreed that Congress had extended existing terms in
+certainly agreed that Congress had extended existing terms in 1831
and in 1909. And of course, in 1962, Congress began extending
existing
terms regularly—eleven times in forty years.
-But this "consistency" should be kept in perspective. Congress
+But this consistency should be kept in perspective. Congress
extended
existing terms once in the first hundred years of the Republic.
It then extended existing terms once again in the next fifty. Those rare
@@ -11331,10 +11469,10 @@ There was no reason it couldn't intervene here.
Oral argument was scheduled for the first week in October. I
arrived
in D.C. two weeks before the argument. During those two
-weeks, I was repeatedly "mooted" by lawyers who had volunteered to
+weeks, I was repeatedly mooted by lawyers who had volunteered to
-help in the case. Such "moots" are basically practice rounds, where
+help in the case. Such moots are basically practice rounds, where
wannabe justices fire questions at wannabe winners.
@@ -11348,6 +11486,7 @@ were an effective practice; I found ways to take every question back to
this central idea.
Ayer, Don
+Reagan, Ronald
One moot was before the lawyers at Jones Day. Don Ayer was the
skeptic. He had served in the Reagan Justice Department with Solicitor
@@ -11356,11 +11495,11 @@ 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
+I'm just afraid that unless they really see the harm, they won't be
willing to upset this practice that the government says has been a
consistent practice for two hundred years. You have to make them see
the harm—passionately get them to see the harm. For if they
-don't see that, then we haven't any chance of winning."
+don't see that, then we haven't any chance of winning.Ayer, Don
@@ -11414,8 +11553,8 @@ practice that began with the very first act.
-She was quite willing to concede "that this flies directly in the face
-of what the framers had in mind." But my response again and again
+She was quite willing to concede that this flies directly in the face
+of what the framers had in mind. But my response again and again
was to emphasize limits on Congress's power.
@@ -11620,7 +11759,7 @@ said that under the current term, a copyright gave an author 99.8
percent of the value of a perpetual term. Breyer said we were wrong,
that the actual number was 99.9997 percent of a perpetual term. Either
way, the point was clear: If the Constitution said a term had to be
-"limited," and the existing term was so long as to be effectively
+limited, and the existing term was so long as to be effectively
unlimited, then it was unconstitutional.
@@ -11636,17 +11775,17 @@ depression gives way to anger. My anger came quickly, but it didn't cure
the depression. This anger was of two sorts.
-It was first anger with the five "Conservatives." It would have been
+It was first anger with the five Conservatives. It would have been
one thing for them to have explained why the principle of Lopez didn't
apply in this case. That wouldn't have been a very convincing
argument, I don't believe, having read it made by others, and having
tried to make it myself. But it at least would have been an act of
integrity. These justices in particular have repeatedly said that the
-proper mode of interpreting the Constitution is "originalism"—to
+proper mode of interpreting the Constitution is originalism—to
first understand the framers' text, interpreted in their context, in
light of the structure of the Constitution. That method had produced
-Lopez and many other "originalist" rulings. Where was their
-"originalism" now?
+Lopez and many other originalist rulings. Where was their
+originalism now?
Here, they had joined an opinion that never once tried to explain
@@ -11724,7 +11863,7 @@ have persuaded.
And even if I couldn't, then that doesn't excuse what happened in
January. For at the start of this case, one of America's leading
intellectual property professors stated publicly that my bringing this
-case was a mistake. "The Court is not ready," Peter Jaszi said; this
+case was a mistake. The Court is not ready, Peter Jaszi said; this
issue should not be raised until it is.
Jaszi, Peter
@@ -11761,23 +11900,28 @@ in a time of such fruitful creative ferment.
The best responses were in the cartoons. There was a gaggle of
hilarious images—of Mickey in jail and the like. The best, from
-my view of the case, was Ruben Bolling's, reproduced on the next
-page. The "powerful and wealthy" line is a bit unfair. But the punch
-in the face felt exactly like that.
+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
+
+Tom the Dancing Bug cartoon
+
+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
-"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
+quote from The New York Times. That grand experiment we call the
+public domain is over? When I can make light of it, I think, Honey,
+I shrunk the Constitution. But I can rarely make light of it. We had
in our Constitution a commitment to free culture. In the case that I
fathered, the Supreme Court effectively renounced that commitment. A
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
@@ -11794,9 +11938,9 @@ It was an act of contrition. During the whole of the flight from San
Francisco to Washington, I had heard over and over again in my head
the same advice from Don Ayer: You need to make them see why it is
important. And alternating with that command was the question of
-Justice Kennedy: "For all these years the act has impeded progress in
+Justice Kennedy: For all these years the act has impeded progress in
science and the useful arts. I just don't see any empirical evidence for
-that." And so, having failed in the argument of constitutional principle,
+that. And so, having failed in the argument of constitutional principle,
finally, I turned to an argument of politics.
@@ -11814,8 +11958,8 @@ he said early on, it won't get passed unless it has another name.
Or another two names. For depending upon your perspective, this
-is either the "Public Domain Enhancement Act" or the "Copyright
-Term Deregulation Act." Either way, the essence of the idea is clear
+is either the Public Domain Enhancement Act or the Copyright
+Term Deregulation Act. Either way, the essence of the idea is clear
and obvious: Remove copyright where it is doing nothing except
blocking access and the spread of knowledge. Leave it for as long as
Congress allows for those works where its worth is at least $1. But for
@@ -11858,9 +12002,9 @@ Until the 1908 Berlin Act of the Berne Convention, national copyright
legislation sometimes made protection depend upon compliance with
formalities such as registration, deposit, and affixation of notice of
the author's claim of copyright. However, starting with the 1908 act,
-every text of the Convention has provided that "the enjoyment and the
-exercise" of rights guaranteed by the Convention "shall not be subject
-to any formality." The prohibition against formalities is presently
+every text of the Convention has provided that the enjoyment and the
+exercise of rights guaranteed by the Convention shall not be subject
+to any formality. The prohibition against formalities is presently
embodied in Article 5(2) of the Paris Text of the Berne
Convention. Many countries continue to impose some form of deposit or
registration requirement, albeit not as a condition of
@@ -11872,7 +12016,7 @@ of Authors where the author's true name can be filed in the case of
anonymous or pseudonymous works. Paul Goldstein, International
Intellectual Property Law, Cases and Materials (New York: Foundation
Press, 2001), 153–54.
-The Europeans are said to view copyright as a "natural right." Natural
+The Europeans are said to view copyright as a natural right. Natural
rights don't need forms to exist. Traditions, like the Anglo-American
tradition that required copyright owners to follow form if their
rights were to be protected, did not, the Europeans thought, properly
@@ -11883,7 +12027,7 @@ creativity, not upon the special favor of the government.
That's great rhetoric. It sounds wonderfully romantic. But it is
absurd copyright policy. It is absurd especially for authors, because
a world without formalities harms the creator. The ability to spread
-"Walt Disney creativity" is destroyed when there is no simple way to
+Walt Disney creativity is destroyed when there is no simple way to
know what's protected and what's not.
Berne Convention (1908)
@@ -11920,7 +12064,7 @@ a moral claim as well. There was no reason that creative property
should be a second-class form of property. If a carpenter builds a
table, his rights over the table don't depend upon filing a form with
-the government. He has a property right over the table "naturally,"
+the government. He has a property right over the table naturally,
and he can assert that right against anyone who would steal the table,
whether or not he has informed the government of his ownership of the
table.
@@ -11968,9 +12112,9 @@ a world without formalities. Complex, expensive,
This was the understanding of the problem with the Sonny Bono
Act that we tried to demonstrate to the Court. This was the part it
-didn't "get." Because we live in a system without formalities, there is no
+didn't get. Because we live in a system without formalities, there is no
way easily to build upon or use culture from our past. If copyright
-terms were, as Justice Story said they would be, "short," then this
+terms were, as Justice Story said they would be, short, then this
wouldn't matter much. For fourteen years, under the framers' system, a
work would be presumptively controlled. After fourteen years, it would
be presumptively uncontrolled.
@@ -12033,8 +12177,8 @@ One representative, Zoe Lofgren of California, went so far as to get
the bill drafted. The draft solved any problem with international
law. It imposed the simplest requirement upon copyright owners
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
+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
@@ -12047,9 +12191,9 @@ Act. The reasons are embarrassingly thin. More importantly, their
thinness shows something clear about what this debate is really about.
-The MPAA argued first that Congress had "firmly rejected the central
-concept in the proposed bill"—that copyrights be renewed. That
-was true, but irrelevant, as Congress's "firm rejection" had occurred
+The MPAA argued first that Congress had firmly rejected the central
+concept in the proposed bill—that copyrights be renewed. That
+was true, but irrelevant, as Congress's firm rejection had occurred
long before the Internet made subsequent uses much more likely.
Second, they argued that the proposal would harm poor copyright
@@ -12059,7 +12203,7 @@ term would encourage restoration work. Maybe in the case of the small
percentage of work covered by copyright law that is still commercially
valuable, but again this was irrelevant, as the proposal would not cut
off the extended term unless the $1 fee was not paid. Fourth, the MPAA
-argued that the bill would impose "enormous" costs, since a
+argued that the bill would impose enormous costs, since a
registration system is not free. True enough, but those costs are
certainly less than the costs of clearing the rights for a copyright
whose owner is not known. Fifth, they worried about the risks if the
@@ -12111,9 +12255,10 @@ Act, then, finally, there is an example that lays bare the naked
selfinterest driving this war. This act would free an extraordinary
range of content that is otherwise unused. It wouldn't interfere with
any copyright owner's desire to exercise continued control over his
-content. It would simply liberate what Kevin Kelly calls the "Dark
-Content" that fills archives around the world. So when the warriors
+content. It would simply liberate what Kevin Kelly calls the Dark
+Content that fills archives around the world. So when the warriors
oppose a change like this, we should ask one simple question:
+Kelly, Kevin
What does this industry really want?
@@ -12132,7 +12277,7 @@ 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
+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.
@@ -12158,18 +12303,27 @@ block the progress of others.
All this seems to follow easily from this untroubled acceptance of the
-"property" in intellectual property. Common sense supports it, and so
+property in intellectual property. Common sense supports it, and so
long as it does, the assaults will rain down upon the technologies of
-the Internet. The consequence will be an increasing "permission
-society." The past can be cultivated only if you can identify the
+the Internet. The consequence will be an increasing permission
+society. The past can be cultivated only if you can identify the
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
+
+ antiretroviral drugs
+
+
+ HIV/AIDS therapies
+
+
+ Africa, medications for HIV patients in
+
There are more than 35 million people with the AIDS virus
worldwide. Twenty-five million of them live in sub-Saharan Africa.
@@ -12193,8 +12347,8 @@ African nation can afford the drugs for the vast majority of its
population:
$15,000 is thirty times the per capita gross national product of
Zimbabwe. At these prices, the drugs are totally unavailable.
- Commission on Intellectual Property Rights, "Final Report: Integrating
-Intellectual Property Rights and Development Policy" (London, 2002),
+ Commission on Intellectual Property Rights, Final Report: Integrating
+Intellectual Property Rights and Development Policy (London, 2002),
available at
link #55. According to a World Health Organization press
release
@@ -12234,7 +12388,7 @@ In 1997, South Africa tried one tack. It passed a law to allow the
importation of patented medicines that had been produced or sold in
another nation's market with the consent of the patent owner. For
example, if the drug was sold in India, it could be imported into
-Africa from India. This is called "parallel importation," and it is
+Africa from India. This is called parallel importation, and it is
generally permitted under international trade law and is specifically
permitted within the European Union.
@@ -12248,9 +12402,9 @@ Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
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 . . .
+characterized it, The U.S. government pressured South Africa …
not to permit compulsory licensing or parallel
-imports."
+imports.
International Intellectual Property Institute (IIPI), Patent
Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
@@ -12318,24 +12472,24 @@ 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
+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
+(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
+Medicines,Foreign Policy in Focus 4:23 (August 1999), available at
link #58
-(describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical
+(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
+Intellectual Property Rights and Compassion, a Synopsis,Widener Law
Symposium Journal (Spring 2001): 175.
-It was because "intellectual property" would be violated that these
+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
+importance of intellectual property that led these government actors
to intervene against the South African response to AIDS.
@@ -12343,7 +12497,7 @@ 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
+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?
@@ -12367,17 +12521,17 @@ problems of technology. They could be overcome.
A different problem, however, could not be overcome. This is the
fear of the grandstanding politician who would call the presidents of
-the drug companies before a Senate or House hearing, and ask, "How
+the drug companies before a Senate or House hearing, and ask, How
is it you can sell this HIV drug in Africa for only $1 a pill, but the same
-drug would cost an American $1,500?" Because there is no "sound
-bite" answer to that question, its effect would be to induce regulation
+drug would cost an American $1,500? Because there is no sound
+bite answer to that question, its effect would be to induce regulation
of prices in America. The drug companies thus avoid this spiral by
avoiding the first step. They reinforce the idea that property should be
sacred. They adopt a rational strategy in an irrational context, with the
unintended consequence that perhaps millions die. And that rational
strategy thus becomes framed in terms of this ideal—the sanctity of an
-idea called "intellectual property."
+idea called intellectual property.
So when the common sense of your child confronts you, what will
@@ -12403,8 +12557,13 @@ 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
+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
@@ -12422,32 +12581,33 @@ So far, common sense sleeps. There is no revolt. Common sense
does not yet see what there could be to revolt about. The extremism
that now dominates this debate fits with ideas that seem natural, and
that fit is reinforced by the RCAs of our day. They wage a frantic war
-to fight "piracy," and devastate a culture for creativity. They defend
-the idea of "creative property," while transforming real creators into
+to fight piracy, and devastate a culture for creativity. They defend
+the idea of creative property, while transforming real creators into
modern-day sharecroppers. They are insulted by the idea that rights
should be balanced, even though each of the major players in this
content war was itself a beneficiary of a more balanced ideal. The
hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
noticed. Powerful lobbies, complex issues, and MTV attention spans
-produce the "perfect storm" for free culture.
+produce the perfect storm for free culture.
+Reagan, Ronald
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
+link #59; William New, Global Group's
+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
+link #60; William New, U.S. Official
+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
+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
@@ -12462,8 +12622,9 @@ 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."
+in the early 1980s. And it included open source and free software.academic journals
+IBMPLoS (Public Library of Science)
@@ -12498,7 +12659,7 @@ 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
+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
@@ -12511,19 +12672,19 @@ 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.
+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
+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.
+rather than proprietary software, for their own internal uses.
I don't mean to enter that debate here. It is important only to
@@ -12531,19 +12692,19 @@ 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,
+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"
+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
+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
@@ -12553,12 +12714,14 @@ Model, discussion at New York University Stern School of Business (3
May 2001), available at
link #63.
+IBM
+copyleft licensesGNU/Linux operating systemLinux operating system
-More important for our purposes, to support "open source and free
-software" is not to oppose copyright. "Open source and free software"
+More important for our purposes, to support open source and free
+software is not to oppose copyright. Open source and free software
is not software in the public domain. Instead, like Microsoft's
software, the copyright owners of free and open source software insist
quite strongly that the terms of their software license be respected
@@ -12583,10 +12746,11 @@ was reported to have happened. According to Jonathan Krim of the
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 The Quiet War over Open-Source, available at link #64.
And without U.S. backing, the meeting was canceled.
+Krim, Jonathan
I don't blame Microsoft for doing what it can to advance its own
@@ -12600,11 +12764,11 @@ its lobbying efforts.
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
director of international relations for the U.S. Patent and Trademark
-Office, explained that "open-source software runs counter to the
-mission of WIPO, which is to promote intellectual-property rights."
-She is quoted as saying, "To hold a meeting which has as its purpose
+Office, explained that open-source software runs counter to the
+mission of WIPO, which is to promote intellectual-property rights.
+She is quoted as saying, To hold a meeting which has as its purpose
to disclaim or waive such rights seems to us to be contrary to the
-goals of WIPO."
+goals of WIPO.
These statements are astonishing on a number of levels.
@@ -12613,15 +12777,15 @@ These statements are astonishing on a number of levels.
First, they are just flat wrong. As I described, most open source and
free software relies fundamentally upon the intellectual property
-right called "copyright". Without it, restrictions imposed by those
-licenses wouldn't work. Thus, to say it "runs counter" to the mission
+right called copyright. Without it, restrictions imposed by those
+licenses wouldn't work. Thus, to say it runs counter to the mission
of promoting intellectual property rights reveals an extraordinary gap
in understanding—the sort of mistake that is excusable in a
first-year law student, but an embarrassment from a high government
official dealing with intellectual property issues.
-Second, who ever said that WIPO's exclusive aim was to "promote"
+Second, who ever said that WIPO's exclusive aim was to promote
intellectual property maximally? As I had been scolded at the
preparatory conference of WSIS, WIPO is to consider not only how best
to protect intellectual property, but also what the best balance of
@@ -12638,8 +12802,8 @@ Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
rights are held by individuals and corporations. They get to decide
what to do with those rights because, again, they are
-their rights. If they want to "waive" or
-"disclaim" their rights, that is, within our tradition, totally
+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
@@ -12649,19 +12813,19 @@ to do with their property.
When Ms. Boland says that there is something wrong with a meeting
-"which has as its purpose to disclaim or waive such rights," she's
+which has as its purpose to disclaim or waive such rights, she's
saying that WIPO has an interest in interfering with the choices of
the individuals who own intellectual property rights. That somehow,
-WIPO's objective should be to stop an individual from "waiving" or
-"disclaiming" an intellectual property right. That the interest of
+WIPO's objective should be to stop an individual from waiving or
+disclaiming an intellectual property right. That the interest of
WIPO is not just that intellectual property rights be maximized, but
that they also should be exercised in the most extreme and restrictive
way possible.
There is a history of just such a property system that is well known
-in the Anglo-American tradition. It is called "feudalism." Under
+in the Anglo-American tradition. It is called feudalism. Under
feudalism, not only was property held by a relatively small number of
individuals and entities. And not only were the rights that ran with
that property powerful and extensive. But the feudal system had a
@@ -12694,9 +12858,9 @@ that was particularly depressing for me. An anonymous poster wrote,
George, you misunderstand Lessig: He's only talking about the world as
-it should be ("the goal of WIPO, and the goal of any government,
+it should be (the goal of WIPO, and the goal of any government,
should be to promote the right balance of intellectual property rights,
-not simply to promote intellectual property rights"), not as it is. If
+not simply to promote intellectual property rights), not as it is. If
we were talking about the world as it is, then of course Boland didn't
say anything wrong. But in the world
@@ -12717,10 +12881,10 @@ whether our government should speak the truth or not.)
Obviously, however, the poster was not supporting that idea. Instead,
the poster was ridiculing the very idea that in the real world, the
-"goal" of a government should be "to promote the right balance" of
+goal of a government should be to promote the right balance of
intellectual property. That was obviously silly to him. And it
-obviously betrayed, he believed, my own silly utopianism. "Typical for
-an academic," the poster might well have continued.
+obviously betrayed, he believed, my own silly utopianism. Typical for
+an academic, the poster might well have continued.
I understand criticism of academic utopianism. I think utopianism is
@@ -12730,7 +12894,7 @@ our own country's history).
But when it has become silly to suppose that the role of our
-government should be to "seek balance," then count me with the silly,
+government should be to seek balance, then count me with the silly,
for that means that this has become quite serious indeed. If it should
be obvious to everyone that the government does not seek balance, that
the government is simply the tool of the most powerful lobbyists, that
@@ -12791,16 +12955,16 @@ form—that makes their bigness bad.
It is therefore significant that so many would rally to demand
competition and increased diversity. Still, if the rally is understood
as being about bigness alone, it is not terribly surprising. We
-Americans have a long history of fighting "big," wisely or not. That
-we could be motivated to fight "big" again is not something new.
+Americans have a long history of fighting big, wisely or not. That
+we could be motivated to fight big again is not something new.
It would be something new, and something very important, if an equal
number could be rallied to fight the increasing extremism built within
-the idea of "intellectual property." Not because balance is alien to
+the idea of intellectual property. Not because balance is alien to
our tradition; indeed, as I've argued, balance is our tradition. But
because the muscle to think critically about the scope of anything
-called "property" is not well exercised within this tradition anymore.
+called property is not well exercised within this tradition anymore.
If we were Achilles, this would be our heel. This would be the place
@@ -12811,42 +12975,42 @@ of our tragedy.
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.
-John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September
+John Borland, RIAA Sues 261 File Swappers, CNET News.com, September
2003, available at
link #65; Paul
-R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
+R. La Monica, Music Industry Sues Swappers, CNN/Money, 8 September
2003, available at
link #66; Soni
-Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
-N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9
-September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
+Sangha and Phyllis Furman with Robert Gearty, Sued for a Song,
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,New York Daily News, 9
+September 2003, 3; Frank Ahrens, RIAA's Lawsuits Meet Surprised
Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
-Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
+Defendants,Washington Post, 10 September 2003, E1; Katie Dean,
+Schoolgirl Settles with RIAA,Wired News, 10 September 2003,
available at
link #67.
-Eminem has just been sued for "sampling" someone else's
+Eminem has just been sued for sampling someone else's
music.
-Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+Jon Wiederhorn, Eminem Gets Sued … by a Little Old Lady,
mtv.com, 17 September 2003, available at
link #68.
-The story about Bob Dylan "stealing" from a Japanese author has just
+The story about Bob Dylan stealing from a Japanese author has just
finished making the rounds.
-Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
-Dylan Songs," Kansascity.com, 9 July 2003, available at
+Kenji Hall, Associated Press, Japanese Book May Be Inspiration for
+Dylan Songs, Kansascity.com, 9 July 2003, available at
link #69.
An insider from Hollywood—who insists he must remain
-anonymous—reports "an amazing conversation with these studio
+anonymous—reports an amazing conversation with these studio
guys. They've got extraordinary [old] content that they'd love to use
but can't because they can't begin to clear the rights. They've got
scores of kids who could do amazing things with the content, but it
-would take scores of lawyers to clean it first." Congressmen are
+would take scores of lawyers to clean it first. Congressmen are
talking about deputizing computer viruses to bring down computers
thought to violate the law. Universities are threatening expulsion for
kids who use a computer to share content.
@@ -12857,9 +13021,9 @@ kids who use a computer to share content.
Gil, Gilberto
Yet on the other side of the Atlantic, the BBC has just announced
-that it will build a "Creative Archive," from which British citizens can
+that it will build a Creative Archive, from which British citizens can
download BBC content, and rip, mix, and burn it.
- "BBC Plans to Open Up Its Archive to the Public," BBC press release,
+ BBC Plans to Open Up Its Archive to the Public, BBC press release,
24 August 2003, available at
link #70.
@@ -12868,7 +13032,7 @@ of Brazilian music, has joined with Creative Commons to release
content and free licenses in that Latin American
country.
-"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003,
+Creative Commons and Brazil, Creative Commons Weblog, 6 August 2003,
available at
link #71.
@@ -12889,7 +13053,7 @@ potential is ever to be realized.
-
+AFTERWORD
@@ -12931,23 +13095,23 @@ that really is the choice, then the warriors should win.
The mistake here is the error of the excluded middle. There are
extremes in this debate, but the extremes are not all that there
-is. There are those who believe in maximal copyright—"All Rights
-Reserved"— and those who reject copyright—"No Rights
-Reserved." The "All Rights Reserved" sorts believe that you should ask
-permission before you "use" a copyrighted work in any way. The "No
-Rights Reserved" sorts believe you should be able to do with content
+is. There are those who believe in maximal copyright—All Rights
+Reserved— and those who reject copyright—No Rights
+Reserved. The All Rights Reserved sorts believe that you should ask
+permission before you use a copyrighted work in any way. The No
+Rights Reserved sorts believe you should be able to do with content
as you wish, regardless of whether you have permission or not.
When the Internet was first born, its initial architecture effectively
-tilted in the "no rights reserved" direction. Content could be copied
+tilted in the no rights reserved direction. Content could be copied
perfectly and cheaply; rights could not easily be controlled. Thus,
regardless of anyone's desire, the effective regime of copyright under
the
-original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
+original design of the Internet was no rights reserved. Content was
+taken regardless of the rights. Any rights were effectively
unprotected.
@@ -12956,18 +13120,18 @@ equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
design, copyright holders have been able to change the essential
character of the environment of the original Internet. If the original
-architecture made the effective default "no rights reserved," the
-future architecture will make the effective default "all rights
-reserved." The architecture and law that surround the Internet's
+architecture made the effective default no rights reserved, the
+future architecture will make the effective default all rights
+reserved. The architecture and law that surround the Internet's
design will increasingly produce an environment where all use of
-content requires permission. The "cut and paste" world that defines
-the Internet today will become a "get permission to cut and paste"
+content requires permission. The cut and paste world that defines
+the Internet today will become a get permission to cut and paste
world that is a creator's nightmare.
What's needed is a way to say something in the middle—neither
-"all rights reserved" nor "no rights reserved" but "some rights
-reserved"— and thus a way to respect copyrights but enable
+all rights reserved nor no rights reserved but some rights
+reserved— and thus a way to respect copyrights but enable
creators to free content as they see fit. In other words, we need a
way to restore a set of freedoms that we could just take for granted
before.
@@ -12982,7 +13146,7 @@ privacy. Before the Internet, most of us didn't have to worry much
about data about our lives that we broadcast to the world. If you
walked into a bookstore and browsed through some of the works of Karl
Marx, you didn't need to worry about explaining your browsing habits
-to your neighbors or boss. The "privacy" of your browsing habits was
+to your neighbors or boss. The privacy of your browsing habits was
assured.
@@ -13001,7 +13165,7 @@ enough to spend the thousands required to track you. But for most of
us (again, we can hope), spying doesn't pay. The highly inefficient
architecture of real space means we all enjoy a fairly robust amount
of privacy. That privacy is guaranteed to us by friction. Not by law
-(there is no law protecting "privacy" in public places), and in many
+(there is no law protecting privacy in public places), and in many
places, not by norms (snooping and gossip are just fun), but instead,
by the costs that friction imposes on anyone who would want to spy.
@@ -13011,15 +13175,16 @@ Enter the Internet, where the cost of tracking browsing in particular
has become quite tiny. If you're a customer at Amazon, then as you
browse the pages, Amazon collects the data about what you've looked
at. You know this because at the side of the page, there's a list of
-"recently viewed" pages. Now, because of the architecture of the Net
+recently viewed pages. Now, because of the architecture of the Net
and the function of cookies on the Net, it is easier to collect the
-data than not. The friction has disappeared, and hence any "privacy"
+data than not. The friction has disappeared, and hence any privacy
protected by the friction disappears, too.
+cookies, Internet
Amazon, of course, is not the problem. But we might begin to worry
about libraries. If you're one of those crazy lefties who thinks that
-people should have the "right" to browse in a library without the
+people should have the right to browse in a library without the
government knowing which books you look at (I'm one of those lefties,
too), then this change in the technology of monitoring might concern
you. If it becomes simple to gather and sort who does what in
@@ -13027,14 +13192,14 @@ electronic spaces, then the friction-induced privacy of yesterday
disappears.
-It is this reality that explains the push of many to define "privacy"
+It is this reality that explains the push of many to define privacy
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
friction did.
-See, for example, Marc Rotenberg, "Fair Information Practices and the
-Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+See, for example, Marc Rotenberg, Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get),Stanford Technology
Law Review 1 (2001): par. 6–18, available at
link #72
@@ -13057,6 +13222,7 @@ commercially, the software—both the source code and the
binaries— was free. You couldn't run a program written for a
Data General machine on an IBM machine, so Data General and IBM didn't
care much about controlling their software.
+IBMStallman, Richard
@@ -13100,7 +13266,7 @@ fundamentally weakened.
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"
+was the birth of the GNU project, into which Linus Torvalds's Linux
kernel was added to produce the GNU/Linux operating system.
GNU/Linux operating systemLinux operating system
@@ -13242,7 +13408,7 @@ machine-readable tags—constitute a Creative Commons license. A
Creative Commons license constitutes a grant of freedom to anyone who
accesses the license, and more importantly, an expression of the ideal
that the person associated with the license believes in something
-different than the "All" or "No" extremes. Content is marked with the
+different than the All or No extremes. Content is marked with the
CC mark, which does not mean that copyright is waived, but that
certain freedoms are given.
@@ -13252,8 +13418,8 @@ precise contours depend upon the choices the creator makes. The
creator can choose a license that permits any use, so long as
attribution is given. She can choose a license that permits only
noncommercial use. She can choose a license that permits any use so
-long as the same freedoms are given to other uses ("share and share
-alike"). Or any use so long as no derivative use is made. Or any use
+long as the same freedoms are given to other uses (share and share
+alike). Or any use so long as no derivative use is made. Or any use
at all within developing nations. Or any sampling use, so long as full
copies are not made. Or lastly, any educational use.
@@ -13276,13 +13442,13 @@ many is that we are not interested only in talking about a public
domain or in getting legislators to help build a public domain. Our
aim is to build a movement of consumers and producers
-of content ("content conducers," as attorney Mia Garlick calls them)
+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
+The aim is not to fight the All Rights Reserved sorts. The aim is to
complement them. The problems that the law creates for us as a culture
are produced by insane and unintended consequences of laws written
centuries ago, applied to a technology that only Jefferson could have
@@ -13328,12 +13494,16 @@ Commons license after the book went out of print. He then monitored
used book store prices for the book. As predicted, as the number of
downloads increased, the used book price for his book increased, as
well.
+Free for All (Wayner)
+Wayner, Peter
+Public Enemy
+rap music
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
+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
@@ -13341,11 +13511,10 @@ 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"
+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
Hittelman, a Fiat Lucre production, available at
@@ -13353,17 +13522,18 @@ Hittelman, a Fiat Lucre production, available at
),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
+Leaphart, Walter
Finally, there are many who mark their content with a Creative Commons
license just because they want to express to others the importance of
balance in this debate. If you just go along with the system as it is,
-you are effectively saying you believe in the "All Rights Reserved"
+you are effectively saying you believe in the All Rights Reserved
model. Good for you, but many do not. Many believe that however
appropriate that rule is for Hollywood and freaks, it is not an
appropriate description of how most creators view the rights
associated with their content. The Creative Commons license expresses
-this notion of "Some Rights Reserved," and gives many the chance to
+this notion of Some Rights Reserved, and gives many the chance to
say it to others.
@@ -13432,7 +13602,7 @@ protected.
In contrast, under current copyright law, you automatically get a
copyright, regardless of whether you comply with any formality. You
don't have to register. You don't even have to mark your content. The
-default is control, and "formalities" are banished.
+default is control, and formalities are banished.
Why?
@@ -13569,8 +13739,8 @@ There would be a complication with derivative works that I have not
solved here. In my view, the law of derivatives creates a more complicated
system than is justified by the marginal incentive it creates.
-The meaning of an unmarked work would therefore be "use unless someone
-complains." If someone does complain, then the obligation would be to
+The meaning of an unmarked work would therefore be use unless someone
+complains. If someone does complain, then the obligation would be to
stop using the work in any new
work from then on though no penalty would attach for existing uses.
@@ -13637,7 +13807,7 @@ radical. The Economist endorsed a proposal for a fourteen
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.
@@ -13663,13 +13833,13 @@ 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
+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.
+lawyer-free zone makes the complexities of fair use and
+idea/expression less necessary to navigate.
@@ -13716,9 +13886,9 @@ 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
-call them "extremists.") But again, the term I recommended was longer
-than the term under Richard Nixon. How "radical" can it be to ask for
+No doubt the extremists will call these ideas radical. (After all, I
+call them extremists.) But again, the term I recommended was longer
+than the term under Richard Nixon. How radical can it be to ask for
a more generous copyright law than Richard Nixon presided over?
@@ -13736,13 +13906,13 @@ challenge. It made no sense anymore to grant that much control, given
the emergence of that new technology.
-Our Constitution gives Congress the power to give authors "exclusive
-right" to "their writings." Congress has given authors an exclusive
-right to "their writings" plus any derivative writings (made by
+Our Constitution gives Congress the power to give authors exclusive
+right to their writings. Congress has given authors an exclusive
+right to their writings plus any derivative writings (made by
others) that are sufficiently close to the author's original
work. Thus, if I write a book, and you base a movie on that book, I
have the power to deny you the right to release that movie, even
-though that movie is not "my writing."
+though that movie is not my writing.
Congress granted the beginnings of this right in 1870, when it
@@ -13755,6 +13925,7 @@ University Press, 1967), 32.
The courts have expanded it slowly through judicial interpretation
ever since. This expansion has been commented upon by one of the law's
greatest judges, Judge Benjamin Kaplan.
+Kaplan, Benjamin
@@ -13791,7 +13962,7 @@ after the creative work is done.
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
+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
@@ -13959,10 +14130,10 @@ is. Content services will compete with content sharing, even if the
services charge money for the content they give access to. Already
cell-phone services in Japan offer music (for a fee) streamed over
cell phones (enhanced with plugs for headphones). The Japanese are
-paying for this content even though "free" content is available in the
+paying for this content even though free content is available in the
form of MP3s across the Web.
-See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
+See, for example, Music Media Watch, The J@pan Inc. Newsletter, 3
April 2002, available at
link #76.
@@ -13970,11 +14141,11 @@ April 2002, available at
This point about the future is meant to suggest a perspective on the
-present: It is emphatically temporary. The "problem" with file
+present: It is emphatically temporary. The problem with file
sharing—to the extent there is a real problem—is a problem
that will increasingly disappear as it becomes easier to connect to
the Internet. And thus it is an extraordinary mistake for policy
-makers today to be "solving" this problem in light of a technology
+makers today to be solving this problem in light of a technology
that will be gone tomorrow. The question should not be how to
regulate the Internet to eliminate file sharing (the Net will evolve
that problem away). The question instead should be how to assure that
@@ -13985,10 +14156,10 @@ this transition between twentieth-century models for doing business
and twenty-first-century technologies.
-The answer begins with recognizing that there are different "problems"
+The answer begins with recognizing that there are different problems
here to solve. Let's start with type D content—uncopyrighted
content or copyrighted content that the artist wants shared. The
-"problem" with this content is to make sure that the technology that
+problem with this content is to make sure that the technology that
would enable this kind of sharing is not rendered illegal. You can
think of it this way: Pay phones are used to deliver ransom demands,
no doubt. But there are many who need to use pay phones who have
@@ -13996,7 +14167,7 @@ nothing to do with ransoms. It would be wrong to ban pay phones in
order to eliminate kidnapping.
-Type C content raises a different "problem." This is content that was,
+Type C content raises a different problem. This is content that was,
at one time, published and is no longer available. It may be
unavailable because the artist is no longer valuable enough for the
record label he signed with to carry his work. Or it may be
@@ -14011,14 +14182,14 @@ stores. But libraries and used book stores don't pay the copyright
owner when someone reads or buys an out-of-print book. That makes
total sense, of course, since any other system would be so burdensome
as to eliminate the possibility of used book stores' existing. But
-from the author's perspective, this "sharing" of his content without
+from the author's perspective, this sharing of his content without
his being compensated is less than ideal.
The model of used book stores suggests that the law could simply deem
out-of-print music fair game. If the publisher does not make copies of
the music available for sale, then commercial and noncommercial
-providers would be free, under this rule, to "share" that content,
+providers would be free, under this rule, to share that content,
even though the sharing involved making a copy. The copy here would be
incidental to the trade; in a context where commercial publishing has
ended, trading music should be as free as trading books.
@@ -14090,22 +14261,22 @@ Entertainment (forthcoming) (Stanford: Stanford University Press,
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
+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
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 #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,"
+link #82; Steven M. Cherry, Getting Copyright Right,
IEEE Spectrum Online, 1 July 2002, available at
link #83; Declan
-McCullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August
+McCullagh, Verizon's Copyright Campaign, CNET News.com, 27 August
2002, available at
link #84.
Fisher's proposal is very similar to Richard Stallman's proposal for
@@ -14114,8 +14285,9 @@ proportionally, though more popular artists would get more than the less
popular. As is typical with Stallman, his proposal predates the current
debate by about a decade. See
link #85.
-Netanel, Neil WeinstockFisher, William
+Netanel, Neil Weinstock
+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
@@ -14141,11 +14313,12 @@ 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 (Fisher)
Fisher would balk at the idea of allowing the system to lapse. His aim
is not just to ensure that artists are paid, but also to ensure that
-the system supports the widest range of "semiotic democracy"
+the system supports the widest range of semiotic democracy
possible. But the aims of semiotic democracy would be satisfied if the
other changes I described were accomplished—in particular, the
limits on derivative
@@ -14155,13 +14328,14 @@ 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
+harm to an industry. But the difficulty of making that calculation
would be outweighed by the benefit of facilitating innovation. This
background system to compensate would also not need to interfere with
innovative proposals such as Apple's MusicStore. As experts predicted
-when Apple launched the MusicStore, it could beat "free" by being
+when Apple launched the MusicStore, it could beat free by being
easier than free is. This has proven correct: Apple has sold millions
of songs at even the very high price of 99 cents a song. (At 99 cents,
the cost is the equivalent of a per-song CD price, though the labels
@@ -14171,16 +14345,16 @@ there will be a great deal of competition to offer and sell music
on-line.
-This competition has already occurred against the background of "free"
+This competition has already occurred against the background of free
music from p2p systems. As the sellers of cable television have known
for thirty years, and the sellers of bottled water for much more than
-that, there is nothing impossible at all about "competing with free."
+that, there is nothing impossible at all about competing with free.
Indeed, if anything, the competition spurs the competitors to offer
new and better products. This is precisely what the competitive market
was to be about. Thus in Singapore, though piracy is rampant, movie
-theaters are often luxurious—with "first class" seats, and meals
+theaters are often luxurious—with first class seats, and meals
served while you watch a movie—as they struggle and succeed in
-finding ways to compete with "free."
+finding ways to compete with free.
This regime of competition, with a backstop to assure that artists
@@ -14225,9 +14399,9 @@ sharing, to the extent actual harm is demonstrated.
-But what if "piracy" doesn't disappear? What if there is a competitive
+But what if piracy doesn't disappear? What if there is a competitive
market providing content at a low cost, but a significant number of
-consumers continue to "take" content for nothing? Should the law do
+consumers continue to take content for nothing? Should the law do
something then?
@@ -14273,7 +14447,7 @@ strong view queers the law.
The evidence of this bending is compelling. I'm attacked as a
-"radical" by many within the profession, yet the positions that I am
+radical by many within the profession, yet the positions that I am
advocating are precisely the positions of some of the most moderate
and significant figures in the history of this branch of the
law. Many, for example, thought crazy the challenge that we brought to
@@ -14281,7 +14455,7 @@ the Copyright Term Extension Act. Yet just thirty years ago, the
dominant scholar and practitioner in the field of copyright, Melville
Nimmer, thought it obvious.
-Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
+Lawrence Lessig, Copyright's First Amendment (Melville B. Nimmer
Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
@@ -14306,7 +14480,7 @@ 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
original view but expressing skepticism) with Stan J. Liebowitz,
-"Will MP3s Annihilate the Record Industry?" working paper, June 2003,
+Will MP3s Annihilate the Record Industry? working paper, June 2003,
available at
link #86.
Liebowitz's careful analysis is extremely valuable in estimating the
@@ -14367,11 +14541,11 @@ regulate culture only where that regulation does good. Yet lawyers
rarely test their power, or the power they promote, against this
-simple pragmatic question: "Will it do good?" When challenged about
-the expanding reach of the law, the lawyer answers, "Why not?"
+simple pragmatic question: Will it do good? When challenged about
+the expanding reach of the law, the lawyer answers, Why not?
-We should ask, "Why?" Show me why your regulation of culture is
+We should ask, Why? Show me why your regulation of culture is
needed. Show me how it does good. And until you can show me both,
keep your lawyers away.
@@ -14379,7 +14553,7 @@ keep your lawyers away.
-
+NOTES
Throughout this text, there are references to links on the World Wide
@@ -14393,10 +14567,10 @@ alive, you will be redirected to that link. If the original link has
disappeared, you will be redirected to an appropriate reference for
the material.
-
+
-
+ACKNOWLEDGMENTS
This book is the product of a long and as yet unsuccessful struggle that
@@ -14404,6 +14578,7 @@ began when I read of Eric Eldred's war to keep books free. Eldred's
work helped launch a movement, the free culture movement, and it is
to him that this book is dedicated.
+Rose, Mark
I received guidance in various places from friends and academics,
including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
@@ -14422,7 +14597,7 @@ Yuko Noguchi helped me to understand the laws of Japan as well as
its culture. I am thankful to her, and to the many in Japan who helped
me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
-
+
Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
and the Tokyo University Business Law Center, for giving me the
chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
@@ -14443,7 +14618,7 @@ K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
-Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
+Wasserman, Miljenko Williams, Wink, Roger Wood, Ximmbo da Jazz,
and Richard Yanco. (I apologize if I have missed anyone; with
computers come glitches, and a crash of my e-mail system meant I lost
a bunch of great replies.)
@@ -14463,7 +14638,7 @@ insisted that there would be unending happiness away from these
battles, and who has always been right. This slow learner is, as ever,
grateful for her perpetual patience and love.
-
+