X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/37f59859aa607930760eaabe7f54fe01e248d412..14912d06b00bde50ddb77515a06dc4353ffab8e8:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 1feb176..f22ac2c 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -2078,6 +2078,8 @@ realized. +digital cameras +Just Think! If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses @@ -2094,6 +2096,9 @@ schools and enable three hundred to five hundred children to learn something about media by doing something with media. By doing, they think. By tinkering, they learn. +educationin media literacy +media literacy +expression, technologies ofmedia literacy and These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -2120,6 +2125,7 @@ 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. + This may seem like an odd way to think about literacy. For most people, literacy is about reading and writing. Faulkner and Hemingway @@ -2163,8 +2169,8 @@ from reading a book about it. One learns to write by writing and then reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. -Crichton, Michael Daley, Elizabeth +Crichton, Michael This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern @@ -2285,6 +2291,7 @@ can do well. Yet neither is text a form in which this message depended upon its connection to this form of expression. +Daley, Elizabeth @@ -2317,6 +2324,7 @@ make a little movie. But instead, really help you take these elements that you understand, that are your language, and construct meaning about the topic.… +Barish, Stephanie That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they @@ -2335,6 +2343,10 @@ had a lot of power with this language. + + + + September 11, 2001, terrorist attacks of World Trade Center news coverage @@ -3249,6 +3261,10 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 American Graphophone Company player pianos sheet music +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawstatutory licenses in +recording industrystatutory license system in These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the @@ -3274,6 +3290,7 @@ memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). +cover songs The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the @@ -3289,6 +3306,8 @@ copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. +compulsory license +statutory licenses American law ordinarily calls this a compulsory license, but I will refer to it as a statutory license. A statutory license is a license @@ -3297,7 +3316,7 @@ Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. -Grisham, John +Grisham, John This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if @@ -3308,6 +3327,7 @@ have no permission to use Grisham's work except with permission of Grisham. +Beatles But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording @@ -3329,8 +3349,10 @@ sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). -Beatles + + + While the recording industry has been quite coy about this recently, historically it has been quite a supporter of the statutory license for @@ -3360,6 +3382,10 @@ March 1967). I am grateful to Glenn Brown for drawing my attention to this report. + + + + By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit. @@ -3367,7 +3393,8 @@ creative work, the record producers, and the public, benefit.
Radio -artistsrecording industry payments to +recording industryradio broadcast and +artistsrecording industry payments to Radio was also born of piracy. @@ -3431,6 +3458,7 @@ the sale of her CDs. The public performance of her recording is not a pirate the value of Madonna's work without paying her anything. + No doubt, one might argue that, on balance, the recording artists @@ -3440,7 +3468,7 @@ ordinarily gives the creator the right to make this choice. By making the choice for him or her, the law gives the radio station the right to take something for nothing. - +
Cable TV @@ -4718,8 +4746,7 @@ from the implications that the copyright warriors would have us draw. CHAPTER SIX: Founders booksEnglish copyright law developed for -copyright l -awdevelopment of +copyright lawdevelopment of copyright lawEnglish England, copyright laws developed in United Kingdomhistory of copyright law in @@ -5036,9 +5063,6 @@ Statute of Anne copyright had expired. This, they argued, was the only way to protect authors. -Donaldson, Alexander -Patterson, Raymond -Scottish publishers This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary @@ -5055,6 +5079,9 @@ Vaidhyanathan, 37–48. The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. +Donaldson, Alexander +Patterson, Raymond +Scottish publishers The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander @@ -5064,6 +5091,8 @@ For a compelling account, see David Saunders, Authorship and Copyrigh (London: Routledge, 1992), 62–69. +Statute of Anne (1710) +Conger Boswell, James Erskine, Andrew @@ -5086,6 +5115,7 @@ of contemporary Scottish poems with Donaldson. Ibid., 93. +common law When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold @@ -5101,6 +5131,8 @@ His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection. + +Millar v. Taylor The London booksellers quickly brought suit to block piracy like Donaldson's. A number of actions were successful against the pirates, @@ -5108,6 +5140,8 @@ the most important early victory being Millar v. +Thomson, James +copyrightin perpetuity Seasons, The (Thomson) Taylor, Robert @@ -5135,6 +5169,10 @@ reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them. + + + +British Parliament Considered as a matter of abstract justice—reasoning as if justice were just a matter of logical deduction from first @@ -5150,11 +5188,16 @@ believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. +Donaldson, Alexander +Scottish publishers The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. +Thomson, James Beckett, Thomas +House of Lords +Supreme Court, U.S.House of Lords vs. Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included @@ -5169,6 +5212,8 @@ the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before. + + Donaldson v. Beckett common law @@ -5181,6 +5226,7 @@ publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected. + The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the law lords, @@ -5188,6 +5234,7 @@ members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted. + copyrightin perpetuity public domainEnglish legal establishment of @@ -5215,6 +5262,8 @@ over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint. + + @@ -5233,6 +5282,7 @@ and illuminations. Rose, 97. + In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The Morning Chronicle @@ -5292,13 +5342,17 @@ protected. - CHAPTER SEVEN: Recorders +copyright lawfair use and +documentary film +Else, Jon +fair usein documentary film +filmsfair use of copyrighted material in Jon Else is a filmmaker. He is best known for his documentaries and has been very successful in spreading @@ -5311,6 +5365,8 @@ Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today. +Wagner, Richard +San Francisco Opera In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. @@ -5318,8 +5374,8 @@ Stagehands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage. -San Francisco Opera +Simpsons, The During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set. @@ -5329,6 +5385,8 @@ and the opera company played Wagner, was The Simpsons. As it, this touch of cartoon helped capture the flavor of what was special about the scene. + +filmsmultiple copyrights associated with Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. @@ -5336,7 +5394,8 @@ For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless fair use or some other privilege applies. -Gracie Films +Gracie Films +Groening, Matt Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-halfsecond image @@ -5344,7 +5403,7 @@ on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program. -Gracie Films +Fox (film company) Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. @@ -5352,6 +5411,7 @@ Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox. + Then, as Else told me, two things happened. First we discovered … that Matt Groening doesn't own his own creation—or at @@ -5360,7 +5420,9 @@ And second, Fox wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of … entirely unsolicited Simpsons which was in the corner of the shot. -Herrera, Rebecca + + +Herrera, Rebecca Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He @@ -5369,6 +5431,7 @@ asking for your educational rate on this. That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. +Wagner, Richard I wanted to make sure I had my facts straight, he told me. Yes, you have your facts straight, she said. It would cost $10,000 to use the @@ -5381,6 +5444,7 @@ if you quote me, I'll turn you over to our attorneys. As an assistant to Herrera told Else later on, They don't give a shit. They just want the money. + San Francisco Opera Day After Trinity, The @@ -5391,6 +5455,8 @@ very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before. +Fox (film company) +Groening, Matt There's no doubt that someone, whether Matt Groening or Fox, owns the copyright to The Simpsons. That copyright is their property. To use @@ -5425,11 +5491,14 @@ Else's use of just 4.5 seconds of an indirect shot of a SimpsonsThe Simpsons—and fair use does not require the permission of anyone. + + So I asked Else why he didn't just rely upon fair use. Here's his reply:
+fair uselegal intimidation tactics against The Simpsons fiasco was for me a great lesson in the gulf between what lawyers find irrelevant in some abstract sense, and what is crushingly @@ -5439,7 +5508,9 @@ fair use in an absolute legal sense. But I couldn't rely on the concept in any concrete way. Here's why: - + +Errors and Omissions insurance + Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed @@ -5448,8 +5519,10 @@ shot in the film. They take a dim view of fair use, and a claim o fair use can grind the application process to a halt. -Star Wars +Fox (film company) +Groening, Matt Lucas, George +Star Wars I probably never should have asked Matt Groening in the first @@ -5471,7 +5544,9 @@ life, regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them. - + + + The question of fair use usually comes up at the end of the @@ -5480,6 +5555,7 @@ money.
+ In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But @@ -5495,6 +5571,12 @@ publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not. + + + + + + @@ -8066,7 +8148,7 @@ following report: Wonderland. - + 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 @@ -9768,10 +9850,12 @@ think there's little in this story to worry you. But there's an aspect of this story that is not lefty in any sense. Indeed, it is an aspect that could be written by the most extreme promarket ideologue. And if you're one of these sorts (and a special -one at that, 188 pages into a book like this), then you can see this -other aspect by substituting free market every place I've spoken of -free culture. The point is the same, even if the interests -affecting culture are more fundamental. +one at that, pages into a book like this), then you +can see this other aspect by substituting free market +every place I've spoken of free culture. The point is +the same, even if the interests affecting culture are more +fundamental. The charge I've been making about the regulation of culture is the @@ -9925,7 +10009,7 @@ such a view of the law will cost you and your firm dearly. This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of -its development, its cofounder ( John Hummer), and general partner +its development, its cofounder (John Hummer), and general partner (Hank Barry). See Joseph Menn, Universal, EMI Sue Napster Investor, Los Angeles @@ -10977,6 +11061,7 @@ success will require. CHAPTER THIRTEEN: Eldred +Eldred, Eric Hawthorne, Nathaniel In 1995, a father was frustrated @@ -10987,6 +11072,8 @@ Hampshire, decided to put Hawthorne on the Web. An electronic version, Eldred thought, with links to pictures and explanatory text, would make this nineteenth-century author's work come alive. +librariesof public-domain literature +public domainlibrary of works derived from It didn't work—at least for his daughters. They didn't find Hawthorne any more interesting than before. But Eldred's experiment @@ -11007,6 +11094,7 @@ accessible to the twentieth century, Eldred transformed Hawthorne, and many others, into a form more accessible—technically accessible—today. +Scarlet Letter, The (Hawthorne) Eldred's freedom to do this with Hawthorne's work grew from the same source as Disney's. Hawthorne's Scarlet Letter had passed into the @@ -11050,6 +11138,13 @@ world before the Internet were extremely few. Yet one would think it at least as important to protect the Eldreds of the world as to protect noncommercial pornographers. +Congress, U.S.copyright terms extended by +copyrightduration of +copyright lawterm extensions in +Frost, Robert +New Hampshire (Frost) +patentsin public domain +patentsfuture patents vs. future copyrights in As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of poems New Hampshire was slated to @@ -11064,8 +11159,12 @@ would pass into the public domain until that year (and not even then, if Congress extends the term again). By contrast, in the same period, more than 1 million patents will pass into the public domain. + + Bono, Mary Bono, Sonny +copyrightin perpetuity +Sonny Bono Copyright Term Extension Act (CTEA) (1998) @@ -11084,8 +11183,12 @@ you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress, 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). - + +copyright lawfelony punishment for infringement of +NET (No Electronic Theft) Act (1998) +No Electronic Theft (NET) Act (1998) +peer-to-peer (p2p) file sharingfelony punishments for Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he @@ -11095,6 +11198,11 @@ of publishing would make Eldred a felon—whether or not anyone complained. This was a dangerous strategy for a disabled programmer to undertake. + +Congress, U.S.constitutional powers of +Constitution, U.S.Progress Clause of +Progress Clause +Lessig, LawrenceEldred case involvement of It was here that I became involved in Eldred's battle. I was a constitutional @@ -11112,6 +11220,7 @@ by securing for limited Times to Authors … exclusive Right to their … Writings. … + As I've described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause @@ -11122,6 +11231,9 @@ specific—to promote … Progress—through means t are also specific— by securing exclusive Rights (i.e., copyrights) for limited Times. + + + Jaszi, Peter In the past forty years, Congress has gotten into the practice of @@ -11134,6 +11246,9 @@ 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. + + +Lessig, LawrenceEldred case involvement of As an academic, my first response was to hit the books. I remember sitting late at the office, scouring on-line databases for any serious @@ -11279,6 +11394,9 @@ constitutional requirement that terms be limited. If they could extend it once, they would extend it again and again and again. + + + It was also my judgment that this Supreme Court would not allow Congress to extend existing terms. As anyone close to @@ -11584,7 +11702,7 @@ For most of the history of film, the costs of restoring film were very high; digital technology has lowered these costs substantially. While it cost more than $10,000 to restore a ninety-minute black-and-white film in 1993, it can now cost as little as $100 to digitize one hour of -mm film. +8 mm film. Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, Eldred v. Ashcroft, 537 @@ -11770,7 +11888,7 @@ market is not doing the job, then we should allow nonmarket forces the freedom to fill the gaps. As one researcher calculated for American culture, 94 percent of the films, books, and music produced between -and 1946 is not commercially available. However much you love the +1923 and 1946 is not commercially available. However much you love the commercial market, if access is a value, then 6 percent is a failure to provide that value. @@ -13402,11 +13520,13 @@ intellectual property. Examples include the Internet and the World Wide Web, both of which were developed on the basis of protocols in the public domain. It included an emerging trend to support open academic journals, including the Public Library of Science project -that I describe in the Afterword. It included a project to develop -single nucleotide polymorphisms (SNPs), which are thought to have -great significance in biomedical research. (That nonprofit project -comprised a consortium of the Wellcome Trust and pharmaceutical and -technological companies, including Amersham Biosciences, AstraZeneca, +that I describe in chapter +. It +included a project to develop single nucleotide polymorphisms (SNPs), +which are thought to have great significance in biomedical +research. (That nonprofit project comprised a consortium of the +Wellcome Trust and pharmaceutical and technological companies, +including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It