X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/48e95f8eea94007fa50d6e5a98509772d3a9b137..a50220b356a2bc863d97da8fbc51be7094a8e846:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index e315e17..884842f 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -176,11 +176,11 @@ Excerpt from an editorial titled The Coming of Copyright Perpetuity, -Cartoon in by Paul Conrad, copyright Tribune +Cartoon in by Paul Conrad, copyright Tribune Media Services, Inc. All rights reserved. Reprinted with permission. -Diagram in courtesy of the office of FCC +Diagram in courtesy of the office of FCC Commissioner, Michael J. Copps. @@ -322,9 +322,7 @@ c INDEX PREFACE - - Pogue, David - +Pogue, David At the end of his review of my first book, Code: And Other Laws of Cyberspace, David @@ -360,7 +358,7 @@ off. It is an argument about how the battles that now rage regarding life on-line have fundamentally affected people who aren't online. There is no switch that will insulate us from the Internet's effect. - + But unlike Code, the argument here is not much about the Internet itself. It is instead about the consequence of the @@ -397,7 +395,9 @@ disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental. +power, concentration of CodePink Women in Peace +Safire, William Stevens, Ted We saw a glimpse of this bipartisan outrage in the early summer of @@ -409,7 +409,6 @@ Women for Peace and the National Rifle Association, between liberal Olympia Snowe and conservative Ted Stevens, he formulated perhaps most simply just what was at stake: the concentration of power. And as he asked, -Safire, William
@@ -431,7 +430,11 @@ visibly, on the concentration of power produced by a radical change in the effective scope of the law. The law is changing; that change is altering the way our culture gets made; that change should worry you—whether or not you care about the Internet, and whether you're on -Safire's left or on his right. The inspiration for the title and for +Safire's left or on his right. + + + +The inspiration for the title and for much of the argument of this book comes from the work of Richard Stallman and the Free Software Foundation. Indeed, as I reread Stallman's own work, especially the essays in Free Software, Free @@ -474,25 +477,18 @@ book is written. INTRODUCTION - - air traffic, land ownership vs. - - - land ownership, air traffic and - - - property rights - air traffic vs. - -Wright brothers +Wright brothers -On December 17, 1903, on a windy North Carolina beach for just +On December 17, 1903, on a windy North Carolina beach for just shy of one hundred seconds, the Wright brothers demonstrated that a heavier-than-air, self-propelled vehicle could fly. The moment was electric and its importance widely understood. Almost immediately, there was an explosion of interest in this newfound technology of manned flight, and a gaggle of innovators began to build upon it. +air traffic, land ownership vs. +land ownership, air traffic and +property rightsair traffic vs. At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface @@ -506,6 +502,7 @@ years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass? + Then came airplanes, and for the first time, this principle of American law—deep within the foundations of our tradition, and acknowledged @@ -530,6 +527,8 @@ property, and the Causbys wanted it to stop. Causby, Thomas Lee Causby, Tinie +Douglas, William O. +Supreme Court, U.S.on airspace vs. land rights The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the @@ -567,6 +566,7 @@ Goldstein, Real Property (Mineola, N.Y.: Foundation Press Common sense revolts at the idea. + This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It was Douglas's style not to @@ -599,27 +599,27 @@ end, the force of what seems obvious to everyone else—the p common sense—would prevail. Their private interest would not be allowed to defeat an obvious public gain. - - - - - Armstrong, Edwin Howard - - -Edwin Howard Armstrong is one of America's forgotten inventor -geniuses. He came to the great American inventor scene just after the -titans Thomas Edison and Alexander Graham Bell. But his work in -the area of radio technology was perhaps the most important of any -single inventor in the first fifty years of radio. He was better educated -than Michael Faraday, who as a bookbinder's apprentice had discovered -electric induction in 1831. But he had the same intuition about -how the world of radio worked, and on at least three occasions, -Armstrong invented profoundly important technologies that advanced our -understanding of radio. - + + + + +Armstrong, Edwin Howard Bell, Alexander Graham Edison, Thomas Faraday, Michael +radioFM spectrum of + +Edwin Howard Armstrong is one of +America's forgotten inventor geniuses. He came to the great American +inventor scene just after the titans Thomas Edison and Alexander +Graham Bell. But his work in the area of radio technology was perhaps +the most important of any single inventor in the first fifty years of +radio. He was better educated than Michael Faraday, who as a +bookbinder's apprentice had discovered electric induction in 1831. But +he had the same intuition about how the world of radio worked, and on +at least three occasions, Armstrong invented profoundly important +technologies that advanced our understanding of radio. + On the day after Christmas, 1933, four patents were issued to Armstrong @@ -659,6 +659,8 @@ Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+RCA +mediaownership concentration in As our own common sense tells us, Armstrong had discovered a vastly superior radio technology. But at the time of his invention, Armstrong @@ -668,13 +670,13 @@ the United States, but the stations in large cities were all owned by a handful of networks. +Sarnoff, David RCA's president, David Sarnoff, a friend of Armstrong's, was eager that Armstrong discover a way to remove static from AM radio. So Sarnoff was quite excited when Armstrong told him he had a device that removed static from radio. But when Armstrong demonstrated his invention, Sarnoff was not pleased. -Sarnoff, David
@@ -689,16 +691,15 @@ www.webstationone.com/fecha, available at
- - Lessing, Lawrence - +FM radio +Sarnoff, David Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author described, -Sarnoff, David +Lessing, Lawrence
The forces for FM, largely engineering, could not overcome the weight @@ -710,6 +711,7 @@ on which RCA had grown to power.Lessing, 226.
+FCCon FM radio RCA at first kept the technology in house, insisting that further tests were needed. When, after two years of testing, Armstrong grew @@ -734,7 +736,7 @@ Lessing, 256. - + AT&T To make room in the spectrum for RCA's latest gamble, television, @@ -746,6 +748,8 @@ FM relaying stations would mean radio stations would have to buy wired links from AT&T.) The spread of FM radio was thus choked, at least temporarily. + + Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's patents. After incorporating FM technology into the @@ -758,7 +762,8 @@ would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of a thirteenth-story window to his death. - + + This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From @@ -775,8 +780,11 @@ another, are sustained through this subtle corruption of our political process. RCA had what the Causbys did not: the power to stifle the effect of technological change. + + +Internetdevelopment of -There's no single inventor of the Internet. Nor is there any good date +There's no single inventor of the Internet. Nor is there any good date upon which to mark its birth. Yet in a very short time, the Internet has become part of ordinary American life. According to the Pew Internet and American Life Project, 58 percent of Americans had access @@ -810,6 +818,10 @@ old as the Republic itself. Most, if they recognized this change, would reject it. Yet most don't even see the change that the Internet has introduced. + +Barlow, Joel +culturecommercial vs. noncommercial +Webster, Noah We can glimpse a sense of this change by distinguishing between commercial and noncommercial culture, and by mapping the law's @@ -821,8 +833,6 @@ parks or on street corners telling stories that kids and others consumed, that was noncommercial culture. When Noah Webster published his Reader, or Joel Barlow his poetry, that was commercial culture. -Barlow, Joel -Webster, Noah At the beginning of our history, and for just about the whole of our @@ -835,6 +845,7 @@ individuals shared and transformed their culture—telling stories, reenacting scenes from plays or TV, participating in fan clubs, sharing music, making tapes—were left alone by the law. +Copyright infringement lawsuitscommercial creativity as primary purpose of The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the incentives of creators by @@ -857,6 +868,8 @@ and it has become an increasingly important part in America. But in no sense was it dominant within our tradition. It was instead just one part, a controlled part, balanced with the free. +free culture permission culture vs. +permission culture free culture vs. This rough divide between the free and the controlled has now been erased. @@ -876,6 +889,7 @@ been undone. The consequence is that we are less and less a free culture, more and more a permission culture. +protection of artists vs. business interests This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its @@ -889,6 +903,7 @@ shared have united to induce lawmakers to use the law to protect them. It is the story of RCA and Armstrong; it is the dream of the Causbys. + For the Internet has unleashed an extraordinary possibility for many to participate in the process of building and cultivating a culture @@ -917,6 +932,8 @@ more efficient, more vibrant technology for building culture. They are succeeding in their plan to remake the Internet before the Internet remakes them. + +Valenti, Jack on creative property rights It doesn't seem this way to many. The battles over copyright and the @@ -948,6 +965,10 @@ and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet pirates will also rid our culture of values that have been integral to our tradition from the start. +Constitution, U.S.First Amendment to +copyright lawas protection of creators +First Amendment +Netanel, Neil Weinstock These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their @@ -995,8 +1016,9 @@ come to understand the source of this war. We must resolve it soon. Causby, Thomas Lee Causby, Tinie +intellectual property rights -Like the Causbys' battle, this war is, in part, about property. The +Like the Causbys' battle, this war is, in part, about property. The property of this war is not as tangible as the Causbys', and no innocent chicken has yet to lose its life. Yet the ideas surrounding this property are as obvious to most as the Causbys' claim about the @@ -1023,6 +1045,7 @@ war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side. +power, concentration of My hope is to push this common sense along. I have become increasingly amazed by the power of this idea of intellectual property and, more @@ -1069,8 +1092,9 @@ sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound. + -The struggle that rages just now centers on two ideas: piracy and +The struggle that rages just now centers on two ideas: piracy and property. My aim in this book's next two parts is to explore these two ideas. @@ -1107,11 +1131,12 @@ to which most of us remain oblivious. <quote>PIRACY</quote> - - Mansfield, William Murray, Lord - +copyright lawEnglish +Mansfield, William Murray, Lord +music publishing +sheet music -Since the inception of the law regulating creative property, there has +Since the inception of the law regulating creative property, there has been a war against piracy. The precise contours of this concept, piracy, are hard to sketch, but the animating injustice is easy to capture. As Lord Mansfield wrote in a case that extended the reach of @@ -1126,8 +1151,10 @@ of them for his own use. Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). - + +Internet efficient content distribution on +peer-to-peer (p2p) file sharingefficiency of Today we are in the middle of another war against piracy. The Internet has provoked this war. The Internet makes possible the @@ -1145,6 +1172,7 @@ sharing of copyrighted content. That sharing in turn has excited the war, as copyright owners fear the sharing will rob the author of the profit. + The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their property against this @@ -1172,7 +1200,11 @@ from someone else without permission is wrong. It is a form of piracy. +ASCAP Dreyfuss, Rochelle +Girl Scouts +creative propertyif value, then right theory of +if value, then right theory This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the if value, then right @@ -1196,7 +1228,7 @@ Speech, No One Wins, Boston Globe, 24 November 20 There was value (the songs) so there must have been a right—even against the Girl Scouts. -ASCAP + This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system @@ -1205,6 +1237,9 @@ of law protecting creative property. But the if value, then right theory of creative property has never been America's theory of creative property. It has never taken hold within our law. + +copyright lawon republishing vs. transformation of original work +creativitylegal restrictions on Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains @@ -1219,6 +1254,7 @@ work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. + Before the technologies of the Internet, this conflation didn't matter all that much. The technologies of publishing were expensive; that @@ -1227,6 +1263,7 @@ entities could bear the burden of the law—even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. +copyright lawcreativity impeded by Florida, Richard Rise of the Creative Class, The (Florida) @@ -1264,6 +1301,7 @@ under which it will be enabled are much more tenuous. Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. + These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper @@ -1274,16 +1312,19 @@ context the current battles about behavior labeled piracy. CHAPTER ONE: Creators - - animated cartoons - +animated cartoons +cartoon films +filmsanimated +Steamboat Willie +Mickey Mouse -In 1928, a cartoon character was born. An early Mickey Mouse +In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent flop called Plane Crazy. In November, in New York City's Colony Theater, in the first widely distributed cartoon synchronized with sound, Steamboat Willie brought to life the character that would become Mickey Mouse. +Disney, Walt Synchronized sound had been introduced to film a year earlier in the movie The Jazz Singer. That success led Walt Disney to copy the @@ -1319,11 +1360,11 @@ Cartoons (New York: Penguin Books, 1987), 34–35. +Iwerks, Ub Disney's then partner, and one of animation's most extraordinary talents, Ub Iwerks, put it more strongly: I have never been so thrilled in my life. Nothing since has ever equaled it. -Iwerks, Ub Disney had created something very new, based upon something relatively @@ -1334,6 +1375,9 @@ Disney's invention that set the standard that others struggled to match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others. + +Keaton, Buster +Steamboat Bill, Jr. This much is familiar. What you might not know is that 1928 also marks another important transition. In that year, a comic (as opposed to @@ -1348,6 +1392,8 @@ Jr. was a classic of this form, famous among film buffs for its incredible stunts. The film was classic Keaton—wildly popular and among the best of its genre. +derivative workspiracy vs. +piracyderivative work vs. Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. @@ -1371,6 +1417,12 @@ Steamboat Bill, Jr., itself inspired by the song Steamboat Bill, that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse. + + + + +creativityby transforming previous works +Disney, Inc. This borrowing was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream @@ -1390,6 +1442,7 @@ were built upon a base that was borrowed. Disney added to the work of others before him, creating something new out of something just barely old. +Grimm fairy tales Sometimes this borrowing was slight. Sometimes it was significant. Think about the fairy tales of the Brothers Grimm. If you're as @@ -1421,7 +1474,7 @@ creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn. - + This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would say that there is no @@ -1431,6 +1484,12 @@ would be a bit misleading. It is, more precisely, Walt Disney creativity—a form of expression and genius that builds upon the culture around us and makes it something different. + + + +copyrightduration of +public domaindefined +public domaintraditional term for conversion to In 1928, the culture that Disney was free to draw upon was relatively fresh. The public domain in 1928 was not very old and was therefore quite vibrant. The average term of copyright was just around @@ -1462,6 +1521,8 @@ for Disney to use and build upon in 1928. It was free for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon. + + This is the ways things always were—until quite recently. For most of our history, the public domain was just over the horizon. From @@ -1475,12 +1536,23 @@ to now be free for the next Walt Disney to build upon without permission. Yet today, the public domain is presumptive only for content from before the Great Depression. + + + + + +Disney, Walt -Of course, Walt Disney had no monopoly on Walt Disney creativity. +Of course, Walt Disney had no monopoly on Walt Disney creativity. Nor does America. The norm of free culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal. +comics, Japanese +derivative workspiracy vs. +Japanese comics +manga +piracyderivative work vs. Consider, for example, a form of creativity that seems strange to many Americans but that is inescapable within Japanese culture: manga, or @@ -1506,6 +1578,8 @@ But my purpose here is not to understand manga. It is to describe a variant on manga that from a lawyer's perspective is quite odd, but from a Disney perspective is quite familiar. +creativityby transforming previous works +doujinshi comics This is the phenomenon of doujinshi. Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of @@ -1521,6 +1595,7 @@ must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy. +Disney, Walt These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 circles of creators from across Japan produce @@ -1532,6 +1607,8 @@ competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law. +copyright lawJapanese +Steamboat Bill, Jr. The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under @@ -1546,9 +1623,8 @@ the permission of the original copyright owner is illegal. It is an infringement of the original copyright to make a copy or a derivative work without the original copyright owner's permission. - - Winick, Judd - + +Winick, Judd Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga @@ -1564,6 +1640,7 @@ For an excellent history, see Scott McCloud, Reinventing Comics + Superman comics American comics now are quite different, Winick explains, in part @@ -1573,7 +1650,10 @@ and you have to stick to them. There are things Superman cannotAs a creator, it's frustrating having to stick to some parameters which are fifty years old. - + +copyright lawJapanese +comics, Japanese +Mehra, Salil The norm in Japan mitigates this legal difficulty. Some say it is precisely the benefit accruing to the Japanese manga market that @@ -1593,6 +1673,9 @@ individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved. + + + The problem with this story, however, as Mehra plainly acknowledges, is that the mechanism producing this laissez faire response is not @@ -1604,6 +1687,8 @@ individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this free taking by the doujinshi culture? + + I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by @@ -1622,7 +1707,10 @@ Japanese gain something important if they could end this practice of uncompensated sharing? Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help their clients or hurt them? -Let's pause for a moment. + + + +Let's pause for a moment. If you're like I was a decade ago, or like most people are when they @@ -1635,6 +1723,7 @@ celebrants. I believe in the value of property in general, and I also believe in the value of that weird form of property that lawyers call intellectual property. +Vaidhyanathan, Siva The term intellectual property is of relatively recent origin. See Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas @@ -1642,12 +1731,14 @@ University Press, 2001). See also Lawrence Lessig, The Future of Idea describes a set of property rights—copyright, patents, trademark, and trade-secret—but the nature of those rights is very different. -Vaidhyanathan, Siva A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without intellectual property. +Disney, Walt +Grimm fairy tales +Keaton, Buster But it takes just a second's reflection to realize that there is plenty of value out there that property doesn't capture. I don't @@ -1663,6 +1754,7 @@ Disney's use would have been considered fair. There was nothing wrong with the taking from the Grimms because the Grimms' work was in the public domain. +free culturederivative works based on Thus, even though the things that Disney took—or more generally, the things taken by anyone exercising Walt Disney creativity—are @@ -1672,6 +1764,12 @@ valuable, our tradition does not treat those takings as wrong. Some things remain free for the taking within a free culture, and that freedom is good. + +copyright lawJapanese +comics, Japanese +doujinshi comics +Japanese comics +manga The same with the doujinshi culture. If a doujinshi artist broke into a publisher's office and ran off with a thousand copies of his latest @@ -1680,12 +1778,20 @@ saying the artist was wrong. In addition to having trespassed, he would have stolen something of value. The law bans that stealing in whatever form, whether large or small. + Yet there is an obvious reluctance, even among Japanese lawyers, to say that the copycat comic artists are stealing. This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard to say why. + + + + + + +Shakespeare, William It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the work of other scientists @@ -1711,6 +1817,7 @@ every society has left a certain bit of its culture free for the taking—fr societies more fully than unfree, perhaps, but all societies to some degree. + The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard @@ -1728,24 +1835,26 @@ Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so. + CHAPTER TWO: <quote>Mere Copyists</quote> - - photography - +Daguerre, Louis +camera technology +photography -In 1839, Louis Daguerre invented the first practical technology for -producing what we would call photographs. Appropriately enough, they -were called daguerreotypes. The process was complicated and +In 1839, Louis Daguerre invented +the first practical technology for producing what we would call +photographs. Appropriately enough, they were called +daguerreotypes. The process was complicated and expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) -Daguerre, Louis +Talbot, William Yet despite high prices, the demand for daguerreotypes was strong. This pushed inventors to find simpler and cheaper ways to make @@ -1756,11 +1865,8 @@ the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. -Talbot, William - - Eastman, George - +Eastman, George The technological change that made mass photography possible didn't happen until 1888, and was the creation of a single man. George @@ -1773,6 +1879,8 @@ a developer, driving the costs of photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the population of photographers. +Kodak cameras +Kodak Primer, The (Eastman) Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was @@ -1781,7 +1889,6 @@ do the rest. Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112. As he described in The Kodak Primer: -Kodak Primer, The (Eastman)
@@ -1796,12 +1903,13 @@ preliminary study, without a darkroom and without chemicals. +Coe, Brian Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. -Coe, Brian
+ For $25, anyone could make pictures. The camera came preloaded with film, and when it had been used, the camera was returned to an @@ -1839,6 +1947,8 @@ interpretation or bias. Coe, 58. +democracyin technologies of expression +expression, technologies ofdemocratic In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a technology of @@ -1852,6 +1962,8 @@ creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before. + +permissionsphotography exempted from What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also important was the @@ -1869,6 +1981,9 @@ v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Dist. Ct. 1894). + +Disney, Walt +images, ownership of The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was taking something from the person or @@ -1881,6 +1996,8 @@ Mickey, so, too, should these photographers not be free to take images that they thought valuable. Brandeis, Louis D. +Steamboat Bill, Jr. +camera technology On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should @@ -1898,6 +2015,7 @@ gets something for nothing. Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source. + Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no @@ -1916,6 +2034,8 @@ Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). ) +Kodak cameras +Napster We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the @@ -1931,6 +2051,10 @@ imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission. + +camera technology +democracyin technologies of expression +expression, technologies ofdemocratic @@ -1944,22 +2068,28 @@ easily borne the burdens of the permission system. But the spread of photography to ordinary people would not have occurred. Nothing like that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been -realized. If you drive through San Francisco's Presidio, you might -see two gaudy yellow school buses painted over with colorful and -striking images, and the logo Just Think! in place of the name of a -school. But there's little that's just cerebral in the projects that -these busses enable. These buses are filled with technologies that -teach kids to tinker with film. Not the film of Eastman. Not even the -film of your VCR. Rather the film of digital cameras. Just Think! -is a project that enables kids to make films, as a way to understand -and critique the filmed culture that they find all around them. Each -year, these busses travel to more than thirty schools and enable three -hundred to five hundred children to learn something about media by -doing something with media. By doing, they think. By tinkering, they -learn. +realized. + + + + + + +If you drive through San +Francisco's Presidio, you might see two gaudy yellow school buses +painted over with colorful and striking images, and the logo +Just Think! in place of the name of a school. But +there's little that's just cerebral in the projects +that these busses enable. These buses are filled with technologies +that teach kids to tinker with film. Not the film of Eastman. Not even +the film of your VCR. Rather the film of digital +cameras. Just Think! is a project that enables kids to make films, as +a way to understand and critique the filmed culture that they find all +around them. Each year, these busses travel to more than thirty +schools and enable three hundred to five hundred children to learn +something about media by doing something with media. By doing, they +think. By tinkering, they learn. - - These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -1977,6 +2107,7 @@ of thousands just ten years ago. And it is now feasible to imagine not just buses like this, but classrooms across the country where kids are learning more and more of something teachers call media literacy. +Yanofsky, Dave Media literacy, as Dave Yanofsky, the executive director of Just @@ -1984,7 +2115,6 @@ Think!, puts it, is the ability … to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it. -Yanofsky, Dave This may seem like an odd way to think about literacy. For most @@ -1993,6 +2123,8 @@ and noticing split infinitives are the things that literate peopl about. advertising +commercials +televisionadvertising on Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 @@ -2018,6 +2150,7 @@ how difficult media is. Or more fundamentally, few of us have a sense of how media works, how it holds an audience or leads it through a story, how it triggers emotion or builds suspense. + It took filmmaking a generation before it could do these things well. But even then, the knowledge was in the filming, not in writing about @@ -2027,6 +2160,7 @@ 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 This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern @@ -2107,7 +2241,7 @@ language of the twenty-first century. Ibid. -Barish, Stephanie +Barish, Stephanie As with any language, this language comes more easily to some than to others. It doesn't necessarily come more easily to those who excel in @@ -2120,6 +2254,7 @@ failure. But Daley and Barish ran a program that gave kids an opportunity to use film to express meaning about something the students know something about—gun violence. + The class was held on Friday afternoons, and it created a relatively new problem for the school. While the challenge in most classes was @@ -2145,6 +2280,7 @@ can do well. Yet neither is text a form in which these ideas can be expressed well. The power of this message depended upon its connection to this form of expression. + @@ -2195,17 +2331,20 @@ had a lot of power with this language. +September 11, 2001, terrorist attacks of World Trade Center +news coverage -When two planes crashed into the World Trade Center, another into the -Pentagon, and a fourth into a Pennsylvania field, all media around the -world shifted to this news. Every moment of just about every day for -that week, and for weeks after, television in particular, and media -generally, retold the story of the events we had just witnessed. The -telling was a retelling, because we had seen the events that were -described. The genius of this awful act of terrorism was that the -delayed second attack was perfectly timed to assure that the whole -world would be watching. +When two planes crashed into the +World Trade Center, another into the Pentagon, and a fourth into a +Pennsylvania field, all media around the world shifted to this +news. Every moment of just about every day for that week, and for +weeks after, television in particular, and media generally, retold the +story of the events we had just witnessed. The telling was a +retelling, because we had seen the events that were described. The +genius of this awful act of terrorism was that the delayed second +attack was perfectly timed to assure that the whole world would be +watching. These retellings had an increasingly familiar feel. There was music @@ -2231,6 +2370,7 @@ the term in his book Cyber Rights, around a news event th captured the attention of the world. There was ABC and CBS, but there was also the Internet. + I don't mean simply to praise the Internet—though I do think the people who supported this form of speech should be praised. I mean @@ -2250,6 +2390,10 @@ and obviously not just that events are commented upon critically, but that this mix of captured images, sound, and commentary can be widely spread practically instantaneously. +September 11, 2001, terrorist attacks of +blogs (Web-logs) +Internetblogs on +Web-logs (blogs) September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that has grown dramatically was @@ -2259,6 +2403,8 @@ such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way—it's a kind of electronic Jerry Springer, available anywhere in the world. +political discourse +Internetpublic discourse conducted on But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about @@ -2273,6 +2419,9 @@ are relatively short; they point directly to words used by others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public discourse that we have. +democracyin technologies of expression +elections +expression, technologies ofdemocratic That's a strong statement. Yet it says as much about our democracy as it does about blogs. This is the part of America that is most @@ -2284,7 +2433,12 @@ people vote in those elections. The cycle of these elections has become totally professionalized and routinized. Most of us think this is democracy. + + + Tocqueville, Alexis de +democracypublic discourse in +jury system But democracy has never just been about elections. Democracy means rule by the people, but rule means something more than mere @@ -2305,6 +2459,7 @@ See, for example, Alexis de Tocqueville, Democracy in America + Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some @@ -2317,6 +2472,7 @@ And in some towns in New England, something close to deliberation remains. But for most of us for most of the time, there is no time or place for democratic deliberation to occur. +political discourse More bizarrely, there is generally not even permission for it to occur. We, the most powerful democracy in the world, have developed a @@ -2330,6 +2486,13 @@ Cass Sunstein, Republic.com (Princeton: Princeton Univers We say what our friends want to hear, and hear very little beyond what our friends say. +blogs (Web-logs) +e-mail +Internetblogs on +Web-logs (blogs) + + + Enter the blog. The blog's very architecture solves one part of this problem. People post when they want to post, and people read when they @@ -2349,14 +2512,17 @@ the left. Some of the most popular sites are conservative or libertarian, but there are many of all political stripes. And even blogs that are not political cover political issues when the occasion merits. +Dean, Howard The significance of these blogs is tiny now, though not so tiny. The name Howard Dean may well have faded from the 2004 presidential race but for blogs. Yet even if the number of readers is small, the reading is having an effect. -Dean, Howard +Lott, Trent Thurmond, Strom +mediablog pressure on +Internetnews events on One direct effect is on stories that had a different life cycle in the mainstream media. The Trent Lott affair is an example. When Lott @@ -2372,8 +2538,8 @@ resign as senate majority leader. Noah Shachtman, With Incessant Postings, a Pundit Stirs the Pot, New York Times, 16 January 2003, G5. -Lott, Trent +mediacommercial imperatives of This different cycle is possible because the same commercial pressures don't exist with blogs as with other ventures. Television and @@ -2381,6 +2547,8 @@ newspapers are commercial entities. They must work to keep attention. If they lose readers, they lose revenue. Like sharks, they must move on. + +Internetpeer-generated rankings on But bloggers don't have a similar constraint. They can obsess, they can focus, they can get serious. If a particular blogger writes a @@ -2390,9 +2558,9 @@ rises in the ranks of stories. People read what is popular; what is popular has been selected by a very democratic process of peer-generated rankings. - - Winer, Dave - + +journalism +Winer, Dave There's a second way, as well, in which blogs have a different cycle @@ -2405,6 +2573,9 @@ conflict of interest is so easily disclosed that you know you can sort of get it out of the way. CNN +mediacommercial imperatives of +Iraq war +mediaownership concentration in These conflicts become more important as media becomes more concentrated (more on this below). A concentrated media can hide more @@ -2422,13 +2593,15 @@ account of the war was too bleak: She needed to offer a more optimistic story. When she told New York that wasn't warranted, they told her that they were writing the story.) - Blog space gives amateurs a way to enter the -debate—amateur not in the sense of inexperienced, but in the -sense of an Olympic athlete, meaning not paid by anyone to give their -reports. It allows for a much broader range of input into a story, as -reporting on the Columbia disaster revealed, when hundreds from across -the southwest United States turned to the Internet to retell what they -had seen. + + +Blog space gives amateurs a way to enter the +debate—amateur not in the sense of inexperienced, +but in the sense of an Olympic athlete, meaning not paid by anyone to +give their reports. It allows for a much broader range of input into a +story, as reporting on the Columbia disaster revealed, when hundreds +from across the southwest United States turned to the Internet to +retell what they had seen. John Schwartz, Loss of the Shuttle: The Internet; A Wealth of Information Online, New York Times, 2 February 2003, A28; Staci @@ -2449,6 +2622,10 @@ not clear that journalism is happy about this—some journali have been told to curtail their blogging. +CNN +Iraq war +Olafson, Steve +blogs (Web-logs) See Michael Falcone, Does an Editor's Pencil Ruin a Web Log? New York Times, 29 September 2003, C4. (Not all news organizations have been as accepting of employees who blog. Kevin Sites, a CNN @@ -2457,8 +2634,6 @@ war on March 9, stopped posting 12 days later at his bosses' request. Last year Steve Olafson, a Houston Chronicle reporter, was fired for keeping a personal Web log, published under a pseudonym, that dealt with some of the issues and people he was covering.) -CNN -Olafson, Steve But it is clear that we are still in transition. A @@ -2469,6 +2644,7 @@ And as the inclusion of content in this space is the least infringing use of the Internet (meaning infringing on copyright), Winer said, we will be the last thing that gets shut down. + This speech affects democracy. Winer thinks that happens because you don't have to work for somebody who controls, [for] a gatekeeper. @@ -2484,17 +2660,20 @@ Today there are probably a couple of million blogs where such writing happens. When there are ten million, there will be something extraordinary to report. - - - Brown, John Seely - - - advertising - + + + + + + + +Brown, John Seely +advertising -John Seely Brown is the chief scientist of the Xerox Corporation. -His work, as his Web site describes it, is human learning and … the -creation of knowledge ecologies for creating … innovation. +John Seely Brown is the chief +scientist of the Xerox Corporation. His work, as his Web site +describes it, is human learning and … the creation of +knowledge ecologies for creating … innovation. Brown thus looks at these technologies of digital creativity a bit @@ -2614,15 +2793,17 @@ quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs RPIRensselaer Polytechnic Institute (RPI) - - Rensselaer Polytechnic Institute (RPI) - +Rensselaer Polytechnic Institute (RPI) +search engines +university computer networks, p2p sharing on +Internetsearch engines used on -In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as -a freshman at Rensselaer Polytechnic Institute, in Troy, New York. -His major at RPI was information technology. Though he is not a -programmer, in October Jesse decided to begin to tinker with search -engine technology that was available on the RPI network. +In the fall of 2002, Jesse Jordan +of Oceanside, New York, enrolled as a freshman at Rensselaer +Polytechnic Institute, in Troy, New York. His major at RPI was +information technology. Though he is not a programmer, in October +Jesse decided to begin to tinker with search engine technology that +was available on the RPI network. RPI is one of America's foremost technological research institutions. @@ -2639,6 +2820,7 @@ available on the RPI network is available on the Internet. But the network is designed to enable students to get access to the Internet, as well as more intimate access to other members of the RPI community. +Google Search engines are a measure of a network's intimacy. Google @@ -2651,6 +2833,9 @@ access to material from that institution. Businesses do this all the time, enabling employees to have access to material that people outside the business can't get. Universities do it as well. + +Jordan, Jesse +Microsoftnetwork file system of These engines are enabled by the network technology itself. Microsoft, for example, has a network file system that makes it very @@ -2660,6 +2845,7 @@ content. Jesse's search engine was built to take advantage of this technology. It used Microsoft's network file system to build an index of all the files available within the RPI network. + Jesse's wasn't the first search engine built for the RPI network. Indeed, his engine was a simple modification of engines that others @@ -2672,6 +2858,7 @@ modified the system a bit to fix that problem, by adding a button that a user could click to see if the machine holding the file was still on-line. + Jesse's engine went on-line in late October. Over the following six months, he continued to tweak it to improve its functionality. By @@ -2679,6 +2866,7 @@ March, the system was functioning quite well. Jesse had more than one million files in his directory, including every type of content that might be on users' computers. + Thus the index his search engine produced included pictures, which students could use to put on their own Web sites; copies of notes or @@ -2688,6 +2876,8 @@ might have created; university brochures—basically anything that users of the RPI network made available in a public folder of their computer. +Google +educationtinkering as means of But the index also included music files. In fact, one quarter of the files that Jesse's search engine listed were music files. But that @@ -2725,6 +2915,7 @@ RPI community to get access to content, which Jesse had not himself created or posted, and the vast majority of which had nothing to do with music. + statutory damages But the RIAA branded Jesse a pirate. They claimed he operated a @@ -2791,10 +2982,7 @@ paper saying he and his family were bankrupt. So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. - -artists -recording industry payments to - +artistsrecording industry payments to The recording industry insists this is a matter of law and morality. Let's put the law aside for a moment and think about the morality. @@ -2837,27 +3025,32 @@ I. … He's not a tree hugger. … I think it's bizarre that they wo pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record. + CHAPTER FOUR: <quote>Pirates</quote> - -If piracy means using the creative property of others without -their permission—if if value, then right is true—then the history of -the content industry is a history of piracy. Every important sector of -big media today—film, records, radio, and cable TV—was born of a -kind of piracy so defined. The consistent story is how last generation's -pirates join this generation's country club—until now. +if value, then right theory + +If piracy means +using the creative property of others without their +permission—if if value, then right is +true—then the history of the content industry is a history of +piracy. Every important sector of big media +today—film, records, radio, and cable TV—was born of a +kind of piracy so defined. The consistent story is how last +generation's pirates join this generation's country club—until +now.
Film The film industry of Hollywood was built by fleeing pirates. +Vaidhyanathan, Siva I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, which details Edison's adventures with copyright and patent. -Vaidhyanathan, Siva Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents @@ -2882,6 +3075,9 @@ summer of 1909 the independent movement was in full-swing, with producers and theater owners using illegal equipment and imported film stock to create their own underground market. +Fox, William +General Film Company +Picker, Randal C. With the country experiencing a tremendous expansion in the number of nickelodeons, the Patents Company reacted to the independent movement @@ -2907,9 +3103,6 @@ Chicago Law School, James M. Olin Program in Law and Economics, Working Paper No. 159. broadcast flag -Fox, William -General Film Company -Picker, Randal C. @@ -2941,13 +3134,12 @@ Edison's creative property.
Recorded Music +copyright lawon music recordings The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. - - Fourneaux, Henri - +Fourneaux, Henri Russel, Phil At the time that Edison and Henri Fourneaux invented machines @@ -3028,6 +3220,9 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). +American Graphophone Company +player pianos +sheet music 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 @@ -3052,7 +3247,6 @@ 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 @@ -3077,6 +3271,7 @@ Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. +Grisham, John This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if @@ -3085,8 +3280,8 @@ charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham's work except with permission of Grisham. -Grisham, John + But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording @@ -3146,10 +3341,7 @@ creative work, the record producers, and the public, benefit.
Radio - - artists - recording industry payments to - +artistsrecording industry payments to Radio was also born of piracy. @@ -3196,9 +3388,7 @@ something for nothing. It gets to perform the recording artist's work for free, even if it must pay the composer something for the privilege of playing the song. - - Madonna - +Madonna This difference can be huge. Imagine you compose a piece of music. Imagine it is your first. You own the exclusive right to authorize @@ -3228,8 +3418,8 @@ to take something for nothing.
Cable TV +cable television - Cable TV was also born of a kind of piracy. @@ -3345,11 +3535,12 @@ exercise veto power over the emerging technologies of cable. Cable companies thus built their empire in part upon a piracy of the value created by broadcasters' content. + -These separate stories sing a common theme. If piracy means -using value from someone else's creative property without permission -from that creator—as it is increasingly described -today +These separate stories sing a +common theme. If piracy means using value from someone +else's creative property without permission from that creator—as +it is increasingly described today See, for example, National Music Publisher's Association, The Engine of Free Expression: Copyright on the Internet—The Myth of Free @@ -3370,12 +3561,12 @@ last. Every generation—until now. CHAPTER FIVE: <quote>Piracy</quote> -There is piracy of copyrighted material. Lots of it. This piracy comes -in many forms. The most significant is commercial piracy, the -unauthorized taking of other people's content within a commercial -context. Despite the many justifications that are offered in its -defense, this taking is wrong. No one should condone it, and the law -should stop it. +There is piracy of copyrighted +material. Lots of it. This piracy comes in many forms. The most +significant is commercial piracy, the unauthorized taking of other +people's content within a commercial context. Despite the many +justifications that are offered in its defense, this taking is +wrong. No one should condone it, and the law should stop it. But as well as copy-shop piracy, there is another kind of taking @@ -3390,6 +3581,7 @@ has so often done in the past.
Piracy I Asia, commercial piracy in +CDsforeign piracy of All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people's copyrighted @@ -3435,7 +3627,7 @@ 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. @@ -3499,6 +3691,7 @@ from a computer network, there is not one less CD that can be sold. The physics of piracy of the intangible are different from the physics of piracy of the tangible. + This argument is still very weak. However, although copyright is a property right of a very special sort, it is a @@ -3518,6 +3711,14 @@ technology of a time, then it is wrong to take property without the permission of a property owner. That is exactly what property means. Asia, commercial piracy in +piracyin Asia +free software/open-source software (FS/OSS) +GNU/Linux operating system +Linux operating system +Microsoftcompetitive strategies of +Windows +Microsoftinternational software piracy of +MicrosoftWindows operating system of Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner. When the Chinese steal @@ -3530,14 +3731,8 @@ Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose. -GNU/Linux operating system -Linux operating system - -Microsoft -Windows operating system of - -Windows +lawdatabases of case reports in This argument, too, is somewhat true. The addiction strategy is a good one. Many businesses practice it. Some thrive because of it. Law @@ -3546,6 +3741,10 @@ databases. The companies marketing both hope the students will become so used to their service that they will want to use it and not the other when they become lawyers (and must pay high subscription fees). +Netscape +Internet Explorer +GNU/Linux operating system +Linux operating system Still, the argument is not terribly persuasive. We don't give the alcoholic a defense when he steals his first beer, merely because that @@ -3558,10 +3757,6 @@ means giving the property owner the right to say who gets access to what—at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong. -GNU/Linux operating system -Internet Explorer -Netscape -Linux operating system @@ -3615,12 +3810,15 @@ and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit. +innovation +Fanning, Shawn Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet (and, arguably, off the Internet as well +innovation See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (New York: HarperBusiness, 2000). Professor Christensen examines why companies @@ -3633,7 +3831,6 @@ Christensen's ideas, see Lawrence Lessig, Future, 89&ndas Christensen, Clayton M. ), Shawn Fanning and crew had simply put together components that had been developed independently. -Fanning, Shawn The result was spontaneous combustion. Launched in July 1999, @@ -3695,7 +3892,9 @@ File sharers share different kinds of content. We can divide these different kinds into four types. - + +Madonna + There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna CD is released, rather than buying @@ -3704,7 +3903,6 @@ everyone who takes it would actually have bought it if sharing didn't make it available for free. Most probably wouldn't have, but clearly there are some who would. The latter are the target of category A: users who download instead of purchasing. -Madonna @@ -3768,6 +3966,7 @@ about radio, and broadcasters complained about cable TV, the music industry complains that type A sharing is a kind of theft that is devastating the industry. +cassette recordingVCRs While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the recording industry's @@ -3776,6 +3975,7 @@ cassette recording is a good example. As a study by Cap Gemini Ernst & Young put it, Rather than exploiting this new, popular technology, the labels fought it. +cassette recording See Cap Gemini Ernst & Young, Technology Evolution and the Music Industry's Business Model Crisis (2003), 3. This report describes the music industry's effort to stigmatize the budding @@ -3793,6 +3993,7 @@ when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer. +MTV Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record @@ -3805,6 +4006,7 @@ innovation at the major labels. U.S. Congress, Copyright and Home Copying, 4. + But just because the industry was wrong before does not mean it is wrong today. To evaluate the real threat that p2p sharing presents to @@ -3826,6 +4028,7 @@ therefore have little static reason to resist them. +CDssales levels of Could that be true? Could the industry as a whole be gaining because of file sharing? Odd as that might sound, the data about CD sales @@ -3900,6 +4103,7 @@ percent drop. If 2.6 times the number of CDs sold were downloaded for free, and yet sales revenue dropped by just 6.7 percent, then there is a huge difference between downloading a song and stealing a CD. + These are the harms—alleged and perhaps exaggerated but, let's assume, real. What of the benefits? File sharing may impose costs on @@ -3926,6 +4130,7 @@ available, the vast majority of it is unavailable solely because the publisher or the distributor has decided it no longer makes economic sense to the company to make it available. +booksresales of In real space—long before the Internet—the market had a simple @@ -3933,15 +4138,16 @@ response to this problem: used book and record stores. There are thousands of used book and used record stores in America today. -While there are not good estimates of the number of used record stores in -existence, in 2002, there were 7,198 used book dealers in the United States, -an increase of 20 percent since 1993. See Book Hunter Press, The Quiet -Revolution: The Expansion of the Used Book Market (2002), available at -link #19. Used records accounted for $260 million in sales in 2002. See - National -Association of Recording Merchandisers, 2002 Annual Survey - Results, -available at +booksresales of +While there are not good estimates of the number of used record stores +in existence, in 2002, there were 7,198 used book dealers in the +United States, an increase of 20 percent since 1993. See Book Hunter +Press, The Quiet Revolution: The Expansion of the Used Book +Market (2002), available at +link #19. Used +records accounted for $260 million in sales in 2002. See National +Association of Recording Merchandisers, 2002 Annual Survey +Results, available at link #20. These stores buy content from owners, then sell the content they @@ -3954,6 +4160,7 @@ statutory licensing, they don't have to pay the copyright owner for the content they sell. Bernstein, Leonard +booksout of print Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because the person making @@ -3975,6 +4182,7 @@ stores. Or put differently, if you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well? +booksfree on-line releases of Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur—the sharing of content that copyright owners @@ -3992,6 +4200,7 @@ type D content. If sharing networks enable his work to be spread, then both he and society are better off. (Actually, much better off: It is a great book!) + Likewise for work in the public domain: This sharing benefits society with no legal harm to authors at all. If efforts to solve the problem @@ -4067,10 +4276,18 @@ technology. In this adjustment, the law sought to ensure the legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less. - - artists - recording industry payments to - +artistsrecording industry payments to +composers, copyright protections of +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawon music recordings +copyright lawstatutory licenses in +radiomusic recordings played on +recording industryartist remuneration in +recording industrycopyright protections in +recording industryradio broadcast and +statutory licenses +composer's rights vs. producers' rights in So, as we've seen, when mechanical reproduction threatened the interests of composers, Congress balanced the rights of composers @@ -4083,6 +4300,7 @@ respected (since the radio station did not have to pay them for the creativity it broadcast), Congress rejected their claim. An indirect benefit was enough. +cable television Cable TV followed the pattern of record albums. When the courts rejected the claim that cable broadcasters had to pay for the content @@ -4091,6 +4309,7 @@ compensation, but at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the statutory price. + @@ -4109,7 +4328,11 @@ Congress chose a path that would assure compensation without giving the past (broadcasters) control over the future (cable). + + + Betamax +cassette recordingVCRs In the same year that Congress struck this balance, two major producers and distributors of film content filed a lawsuit against @@ -4123,6 +4346,7 @@ and shows. Sony was therefore benefiting from the copyright infringement of its customers. It should therefore, Disney and Universal claimed, be partially liable for that infringement. + There was something to Disney's and Universal's claim. Sony did decide to design its machine to make it very simple to record television @@ -4138,6 +4362,8 @@ system to minimize the opportunity for copyright infringement. It did not, and for that, Disney and Universal wanted to hold it responsible for the architecture it chose. +Congress, U.S.on copyright laws +Congress, U.S.on VCR technology MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs tapeworms. He warned, When there are @@ -4160,7 +4386,7 @@ and plain common sense. Copyright Infringements (Audio and Video Recorders), 475. -Indeed, as surveys would later show, +Indeed, as surveys would later show, 45 percent of VCR owners had movie libraries of ten videos or more Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, @@ -4168,8 +4394,8 @@ percent of VCR owners had movie libraries of ten videos or more — a use the Court would later hold was not fair. By allowing VCR owners to copy freely by the means of an exemption from -copyright infringementwithout creating a mechanism to compensate -copyrightowners, Valenti testified, Congress would take from the +copyright infringement without creating a mechanism to compensate +copyright owners, Valenti testified, Congress would take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby profit from its reproduction. @@ -4220,6 +4446,7 @@ by such new technology. + Congress was asked to respond to the Supreme Court's decision. But as with the plea of recording artists about radio broadcasts, Congress @@ -4229,7 +4456,7 @@ together, a pattern is clear: - + CASE @@ -4266,7 +4493,7 @@ together, a pattern is clear: - + In each case throughout our history, a new technology changed the way content was distributed. @@ -4300,6 +4527,7 @@ technology to benefit from content made before. It balanced the interests at stake. +Disney, Walt When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes @@ -4312,6 +4540,7 @@ to $15 million in damages? Would it have been better if Edison had controlled film? Should every cover band have to hire a lawyer to get permission to record a song? +Supreme Court, U.S.on balance of interests in copyright law We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the Supreme Court has stated, @@ -4356,15 +4585,18 @@ fight. John Schwartz, New Economy: The Attack on Peer-to-Peer Software Echoes Past Efforts, New York Times, 22 September 2003, C3. -Yet when anyone begins to talk about balance, the copyright warriors -raise a different argument. All this hand waving about balance and -incentives, they say, misses a fundamental point. Our content, the -warriors insist, is our property. Why should we -wait for Congress to `rebalance' our property rights? Do you have to -wait before calling the police when your car has been stolen? And why -should Congress deliberate at all about the merits of this theft? Do -we ask whether the car thief had a good use for the car before we -arrest him? + + +Yet when anyone begins to talk +about balance, the copyright warriors raise a different +argument. All this hand waving about balance and +incentives, they say, misses a fundamental point. Our +content, the warriors insist, is our +property. Why should we wait for Congress to +`rebalance' our property rights? Do you have to wait before calling +the police when your car has been stolen? And why should Congress +deliberate at all about the merits of this theft? Do we ask whether +the car thief had a good use for the car before we arrest him? It is our property, the warriors @@ -4381,11 +4613,11 @@ is protected. -The copyright warriors are right: A copyright is a kind of -property. It can be owned and sold, and the law protects against its -theft. Ordinarily, the copyright owner gets to hold out for any price he -wants. Markets reckon the supply and demand that partially determine -the price she can get. +The copyright warriors are right: A +copyright is a kind of property. It can be owned and sold, and the law +protects against its theft. Ordinarily, the copyright owner gets to +hold out for any price he wants. Markets reckon the supply and demand +that partially determine the price she can get. But in ordinary language, to call a copyright a property right is a @@ -4399,6 +4631,7 @@ table in the backyard—by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing I am taking then? +Jefferson, Thomas The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The point instead is that @@ -4418,6 +4651,7 @@ Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in Ellery Bergh, eds., 1903), 330, 333–34. +property rightsintangibility of The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that @@ -4456,19 +4690,25 @@ from the implications that the copyright warriors would have us draw. CHAPTER SIX: Founders -Henry V +booksEnglish copyright law developed for Branagh, Kenneth - -William Shakespeare wrote Romeo and Juliet in 1595. The play -was first published in 1597. It was the eleventh major play that -Shakespeare had written. He would continue to write plays through -1613, and the plays that he wrote have continued to define -Anglo-American culture ever since. So deeply have the works of a -sixteenth-century writer seeped into our culture that we often don't -even recognize their source. I once overheard someone commenting on -Kenneth Branagh's adaptation of Henry V: I liked it, but Shakespeare -is so full of clichés. - +Henry V +Shakespeare, William +Romeo and Juliet (Shakespeare) + +William Shakespeare wrote +Romeo and Juliet in 1595. The play was first +published in 1597. It was the eleventh major play that Shakespeare had +written. He would continue to write plays through 1613, and the plays +that he wrote have continued to define Anglo-American culture ever +since. So deeply have the works of a sixteenth-century writer seeped +into our culture that we often don't even recognize their source. I +once overheard someone commenting on Kenneth Branagh's adaptation of +Henry V: I liked it, but Shakespeare is so full of +clichés. + +Conger +Tonson, Jacob In 1774, almost 180 years after Romeo and Juliet was written, the copy-right for the work was still thought by many to be the exclusive @@ -4499,6 +4739,8 @@ one else could publish copies of a book to which they held the copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated. +British Parliament +Statute of Anne (1710) Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the @@ -4509,13 +4751,16 @@ fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one additional years. +Vaidhyanathan, Siva As Siva Vaidhyanathan nicely argues, it is erroneous to call this a copyright law. See Vaidhyanathan, Copyrights and Copywrongs, 40. -Vaidhyanathan, Siva Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? + + +Licensing Act (1662) The reason is that the English hadn't yet agreed on what a copyright was—indeed, no one had. At the time the English passed the @@ -4526,7 +4771,6 @@ as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said that the publishers, or Stationers, had an exclusive right to print books. -Licensing Act (1662) There was no positive law, but that didn't mean @@ -4578,6 +4822,7 @@ why is it that the law would ever allow someone else to come along and take Shakespeare's play without his, or his estate's, permission? What reason is there to allow someone else to steal Shakespeare's work? +Statute of Anne (1710) The answer comes in two parts. We first need to see something special about the notion of copyright that existed at the time of the @@ -4634,6 +4879,7 @@ have it forever.) The state would protect the exclusive right, but only so long as it benefited society. The British saw the harms from specialinterest favors; they passed a law to stop them. +booksellers, English Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers. @@ -4724,6 +4970,7 @@ they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors. +Patterson, Raymond This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary @@ -4731,10 +4978,11 @@ chutzpah. Until then, as law professor Raymond Patterson has put it, The publishers … had as much concern for authors as a cattle rancher has for cattle. +Patterson, Raymond +Vaidhyanathan, Siva Lyman Ray Patterson, Free Speech, Copyright, and Fair Use, Vanderbilt Law Review 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37–48. -Vaidhyanathan, Siva The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. @@ -4748,6 +4996,8 @@ For a compelling account, see David Saunders, Authorship and Copyrigh (London: Routledge, 1992), 62–69. +Boswell, James +Erskine, Andrew Donaldson was an outsider to the London Conger. He began his career in Edinburgh in 1750. The focus of his business was inexpensive @@ -4767,8 +5017,6 @@ of contemporary Scottish poems with Donaldson. Ibid., 93. -Boswell, James -Erskine, Andrew When the London booksellers tried to shut down Donaldson's shop in @@ -4777,6 +5025,7 @@ inexpensive editions of the most popular English books, in defiance of the supposed common law right of Literary Property. +Patterson, Raymond Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting Borwell). @@ -4789,6 +5038,7 @@ The London booksellers quickly brought suit to block piracy like Donaldson's. A number of actions were successful against the pirates, the most important early victory being Millar v. Taylor. +Seasons, The (Thomson) Taylor, Robert Millar was a bookseller who in 1729 had purchased the rights to James @@ -4803,9 +5053,7 @@ Exploding the Myth of Common Law Copyright, Wayne Law Review< (1983): 1152. - - Mansfield, William Murray, Lord - +Mansfield, William Murray, Lord Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever @@ -4831,7 +5079,7 @@ a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. - + 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. @@ -4949,22 +5197,25 @@ context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many. + At least, this was the rule in a world where the Parliament is antimonopoly, resistant to the protectionist pleas of publishers. In a world where the Parliament is more pliant, free culture would be less protected. + + CHAPTER SEVEN: Recorders -Jon Else is a filmmaker. He is best known for his documentaries and -has been very successful in spreading his art. He is also a teacher, and -as a teacher myself, I envy the loyalty and admiration that his students -feel for him. (I met, by accident, two of his students at a dinner party. -He was their god.) +Jon Else is a filmmaker. He is best +known for his documentaries and has been very successful in spreading +his art. He is also a teacher, and as a teacher myself, I envy the +loyalty and admiration that his students feel for him. (I met, by +accident, two of his students at a dinner party. He was their god.) Else worked on a documentary that I was involved in. At a break, @@ -4996,21 +5247,21 @@ 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 Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-halfsecond image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program. -Gracie Films +Gracie Films Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox. -Gracie Films Then, as Else told me, two things happened. First we discovered @@ -5020,6 +5271,7 @@ And second, Fox wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of … entirely unsolicited Simpsons which was in the corner of the shot. +Herrera, Rebecca Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He @@ -5040,6 +5292,8 @@ if you quote me, I'll turn you over to our attorneys. As an assistant to Herrera told Else later on, They don't give a shit. They just want the money. +San Francisco Opera +Day After Trinity, The Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera. To reproduce @@ -5047,8 +5301,6 @@ this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before. -San Francisco Opera -Day After Trinity, The There's no doubt that someone, whether Matt Groening or Fox, owns the @@ -5108,6 +5360,7 @@ shot in the film. They take a dim view of fair use, and a claim o Star Wars +Lucas, George I probably never should have asked Matt Groening in the first @@ -5119,7 +5372,6 @@ license to four seconds of Simpsons. As a documentary pro to exhaustion on a shoestring, the last thing I wanted was to risk legal trouble, even nuisance legal trouble, and even to defend a principle. -Lucas, George @@ -5159,21 +5411,18 @@ not. CHAPTER EIGHT: Transformers Allen, Paul - - Alben, Alex - +Alben, Alex Microsoft -In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave -was an innovative company founded by Microsoft cofounder Paul Allen to -develop digital entertainment. Long before the Internet became -popular, Starwave began investing in new technology for delivering -entertainment in anticipation of the power of networks. +In 1993, Alex Alben was a lawyer +working at Starwave, Inc. Starwave was an innovative company founded +by Microsoft cofounder Paul Allen to develop digital +entertainment. Long before the Internet became popular, Starwave began +investing in new technology for delivering entertainment in +anticipation of the power of networks. - - artists - retrospective compilations on - +artistsretrospective compilations on +CD-ROMs, film clips used in Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology—not to distribute @@ -5221,10 +5470,7 @@ Technically, the rights that Alben had to clear were mainly those of publicity—rights an artist has to control the commercial exploitation of his image. But these rights, too, burden Rip, Mix, Burn creativity, as this chapter evinces. - -artists -publicity rights on images of - +artistspublicity rights on images of Alben, Alex @@ -5369,6 +5615,7 @@ that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high? + These costs are the burdens of a kind of regulation. Put on a @@ -5473,8 +5720,9 @@ which if made, under this plan, would produce new income for artists. What reason would anyone have to oppose it? -In February 2003, DreamWorks studios announced an agreement with Mike -Myers, the comic genius of Saturday Night Live and +In February 2003, DreamWorks +studios announced an agreement with Mike Myers, the comic genius of +Saturday Night Live and Austin Powers. According to the announcement, Myers and Dream-Works would work together to form a unique filmmaking pact. Under the @@ -5520,18 +5768,20 @@ curse, reserved for the few. CHAPTER NINE: Collectors - - archives, digital - +archives, digital +bots -In April 1996, millions of bots—computer codes designed to -spider, or automatically search the Internet and copy content—began -running across the Net. Page by page, these bots copied Internet-based -information onto a small set of computers located in a basement in San -Francisco's Presidio. Once the bots finished the whole of the Internet, -they started again. Over and over again, once every two months, these -bits of code took copies of the Internet and stored them. +In April 1996, millions of +bots—computer codes designed to +spider, or automatically search the Internet and copy +content—began running across the Net. Page by page, these bots +copied Internet-based information onto a small set of computers +located in a basement in San Francisco's Presidio. Once the bots +finished the whole of the Internet, they started again. Over and over +again, once every two months, these bits of code took copies of the +Internet and stored them. +Way Back Machine By October 2001, the bots had collected more than five years of copies. And at a small announcement in Berkeley, California, the @@ -5540,9 +5790,7 @@ the world. Using a technology called the Way Back Machine, you co enter a Web page, and see all of its copies going back to 1996, as well as when those pages changed. - - Orwell, George - +Orwell, George This is the thing about the Internet that Orwell would have appreciated. In the dystopia described in 1984, old newspapers were @@ -5564,6 +5812,7 @@ but the content could easily be different. The Internet is Orwell's library—constantly updated, without any reliable memory. +Way Back Machine Until the Way Back Machine, at least. With the Way Back Machine, and the Internet Archive underlying it, you can see what the Internet @@ -5571,6 +5820,7 @@ was. You have the power to see what you remember. More importantly, perhaps, you also have the power to find what you don't remember and what others might prefer you forget. +Iraq war White House press releases The temptations remain, however. Brewster Kahle reports that the White House changes its own press releases without notice. A May 13, 2003, @@ -5579,16 +5829,17 @@ later changed, without notice, to Major Combat Operations in Iraq Have Ended. E-mail from Brewster Kahle, 1 December 2003. +history, records of -We take it for granted that we can go back to see what we remember -reading. Think about newspapers. If you wanted to study the reaction -of your hometown newspaper to the race riots in Watts in 1965, or to -Bull Connor's water cannon in 1963, you could go to your public -library and look at the newspapers. Those papers probably exist on -microfiche. If you're lucky, they exist in paper, too. Either way, you -are free, using a library, to go back and remember—not just what -it is convenient to remember, but remember something close to the -truth. +We take it for granted that we can +go back to see what we remember reading. Think about newspapers. If +you wanted to study the reaction of your hometown newspaper to the +race riots in Watts in 1965, or to Bull Connor's water cannon in 1963, +you could go to your public library and look at the newspapers. Those +papers probably exist on microfiche. If you're lucky, they exist in +paper, too. Either way, you are free, using a library, to go back and +remember—not just what it is convenient to remember, but +remember something close to the truth. It is said that those who fail to remember history are doomed to @@ -5620,7 +5871,12 @@ Internet Archive was just the first of the projects of this Andrew Carnegie of the Internet. By December of 2002, the archive had over 10 billion pages, and it was growing at about a billion pages a month. +Library of Congress +Television Archive Vanderbilt University +Way Back Machine +librariesarchival function of +news coverage The Way Back Machine is the largest archive of human knowledge in human history. At the end of 2002, it held two hundred and thirty @@ -5640,6 +5896,7 @@ just a graduate student? As Kahle put it,
Quayle, Dan +60 Minutes Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician @@ -5652,6 +5909,7 @@ original back and forth exchanges between the two, the impossible. … Those materials are almost unfindable. …
+newspapersarchives of Why is that? Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is @@ -5668,6 +5926,8 @@ of knowledge and to assure that a copy of the work would be around once the copyright expired, so that others might access and copy the work. +Library of Congress +filmsarchive of These rules applied to film as well. But in 1915, the Library of Congress made an exception for film. Film could be copyrighted so @@ -5696,6 +5956,7 @@ broadcasters. No library had any right to them; the government didn't demand them. The content of this part of American culture is practically invisible to anyone who would look. +September 11, 2001, terrorist attacks of Kahle was eager to correct this. Before September 11, 2001, he and @@ -5708,10 +5969,13 @@ Anyone could see how news reports from around the world covered the events of that day. Movie Archive - - archive.org - Internet Archive - +archive.orgInternet Archive + +filmsarchive of +Internet Archive +Duck and Cover film +ephemeral films +Prelinger, Rick Kahle had the same idea with film. Working with Rick Prelinger, whose archive of film includes close to 45,000 ephemeral films (meaning @@ -5767,10 +6031,12 @@ build an archive of knowledge about our history. In this second life, the content can continue to inform even if that information is no longer sold. +booksout of print The same has always been true about books. A book goes out of print very quickly (the average today is after about a year +booksout of print Dave Barns, Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business, Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 @@ -5796,12 +6062,12 @@ what a certain limited market demands. Beyond that, culture disappears. -For most of the twentieth century, it was economics that made this -so. It would have been insanely expensive to collect and make -accessible all television and film and music: The cost of analog -copies is extraordinarily high. So even though the law in principle -would have restricted the ability of a Brewster Kahle to copy culture -generally, the +For most of the twentieth century, +it was economics that made this so. It would have been insanely +expensive to collect and make accessible all television and film and +music: The cost of analog copies is extraordinarily high. So even +though the law in principle would have restricted the ability of a +Brewster Kahle to copy culture generally, the real restriction was economics. The market made it impossibly difficult to do anything about this ephemeral culture; the law had @@ -5822,10 +6088,7 @@ we are for the first time at a point where that dream is possible. As Kahle describes,
- - books - total number of - +bookstotal number of It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of @@ -5840,6 +6103,7 @@ proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press.
+Disney, Walt Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of @@ -5868,17 +6132,25 @@ that Kahle and others would exercise. CHAPTER TEN: <quote>Property</quote> - -Jack Valenti has been the president of the Motion Picture Association -of America since 1966. He first came to Washington, D.C., with Lyndon -Johnson's administration—literally. The famous picture of -Johnson's swearing-in on Air Force One after the assassination of -President Kennedy has Valenti in the background. In his almost forty -years of running the MPAA, Valenti has established himself as perhaps -the most prominent and effective lobbyist in Washington. Johnson, Lyndon Kennedy, John F. + +Jack Valenti has been the president +of the Motion Picture Association of America since 1966. He first came +to Washington, D.C., with Lyndon Johnson's +administration—literally. The famous picture of Johnson's +swearing-in on Air Force One after the assassination of President +Kennedy has Valenti in the background. In his almost forty years of +running the MPAA, Valenti has established himself as perhaps the most +prominent and effective lobbyist in Washington. +Disney, Inc. +Sony Pictures Entertainment +MGM +Paramount Pictures +Twentieth Century Fox +Universal Pictures +Warner Brothers The MPAA is the American branch of the international Motion Picture Association. It was formed in 1922 as a trade association whose goal @@ -5890,13 +6162,6 @@ producers and distributors of motion picture and television programs in the United States: Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, Universal Studios, and Warner Brothers. -Disney, Inc. -Sony Pictures Entertainment -MGM -Paramount Pictures -Twentieth Century Fox -Universal Pictures -Warner Brothers @@ -6015,10 +6280,12 @@ notwithstanding, in assuring that the new can displace them. No organization does. No person does. (Ask me about tenure, for example.) But what's good for the MPAA is not necessarily good for America. A society that defends the ideals of free culture must preserve -precisely the opportunity for new creativity to threaten the old. To -get just a hint that there is something fundamentally wrong in -Valenti's argument, we need look no further than the United States -Constitution itself. +precisely the opportunity for new creativity to threaten the old. + + +To get just a hint that there is +something fundamentally wrong in Valenti's argument, we need look no +further than the United States Constitution itself. The framers of our Constitution loved property. Indeed, so strongly @@ -6055,6 +6322,7 @@ should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself. +Jefferson, Thomas Arguing for a change in our Constitution is not necessarily wrong. There was much in our original Constitution that was plainly wrong. @@ -6075,6 +6343,8 @@ creative property be given the same rights as all other property? Why did they require that for creative property there must be a public domain? + + To answer this question, we need to get some perspective on the history of these creative property rights, and the control that they @@ -6176,9 +6446,7 @@ be; my claim is not about comprehensiveness), these four are among the most significant, and any regulator (whether controlling or freeing) must consider how these four in particular interact. - - driving speed, constraints on - +driving speed, constraints on architecture, constraint effected through market constraints norms, regulatory influence of @@ -6366,6 +6634,7 @@ Brown describes it, its architecture of revenue. railroad industry advertising +camera technology But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because @@ -6455,16 +6724,14 @@ effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. - - DDT - +DDT +Müller, Paul Hermann In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul Hermann Müller won the Nobel Prize for his work demonstrating the insecticidal properties of DDT. By the 1950s, the insecticide was widely used around the world to kill disease-carrying pests. It was also used to increase farm production. -Müller, Paul Hermann No one doubts that killing disease-carrying pests or increasing crop @@ -6635,6 +6902,7 @@ States was controlled or free. Just as in England, this lingering uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works. +Statute of Anne (1710) That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, @@ -6700,6 +6968,8 @@ M. Landes and Richard A. Posner, Indefinitely Renewable Copyright,University of Chicago Law Review 70 (2003): 471, 498–501, and accompanying figures. +booksout of print +booksresales of Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall @@ -6968,6 +7238,8 @@ pp. 53–59). These two different uses of my creative work are treated the same. +Disney, Walt +Mickey Mouse This again may seem right to you. If I wrote a book, then why should you be able to write a movie that takes my story and makes money from @@ -7032,13 +7304,19 @@ current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law. -We can see this point abstractly by beginning with this largely +We can see this point abstractly by beginning with this largely empty circle.
All potential uses of a book.
+booksthree types of uses of +copyright lawcopies as core issue of +Internetcopyright applicability altered by technology of +technologycopyright intent altered by +derivative workspiracy vs. +piracyderivative work vs. Think about a book in real space, and imagine this circle to represent @@ -7065,6 +7343,8 @@ at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation (see first diagram on next page). + + Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these fair uses. @@ -7099,6 +7379,8 @@ In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed fair regardless of the copyright owner's views. + +bookson Internet Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. @@ -7132,6 +7414,8 @@ night before you went to bed. None of those instances of use—reading— could be regulated by copyright law because none of those uses produced a copy. +bookson Internet +derivative workstechnological developments and But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book @@ -7158,6 +7442,7 @@ evidence at all that policy makers had this idea in mind when they allowed our policy here to shift. Unregulated uses were an important part of free culture before the Internet. +copyright lawon republishing vs. transformation of original work Second, this shift is especially troubling in the context of transformative uses of creative content. Again, we can all understand @@ -7184,6 +7469,11 @@ copyright law and hence the need for a fair use defense. The right to read was effectively protected before because reading was not regulated. + + + + + This point about fair use is totally ignored, even by advocates for free culture. We have been cornered into arguing that our rights @@ -7194,9 +7484,7 @@ grounded in fair use makes sense when the vast majority of uses are presumptively regulated, then the protections of fair use are not enough. - - advertising - +advertising The case of Video Pipeline is a good example. Video Pipeline was in the business of making trailer advertisements for movies available @@ -7204,6 +7492,7 @@ to video stores. The video stores displayed the trailers as a way to sell videos. Video Pipeline got the trailers from the film distributors, put the trailers on tape, and sold the tapes to the retail stores. +browsing The company did this for about fifteen years. Then, in 1997, it began to think about the Internet as another way to distribute these @@ -7263,6 +7552,7 @@ control. The technology expands the scope of effective control, because the technology builds a copy into every transaction. Barnes & Noble +browsing No doubt, a potential is not yet an abuse, and so the potential for @@ -7305,12 +7595,8 @@ tradition embraced, who said whether and how the law would restrict your freedom. Casablanca - - Marx Brothers - - - Warner Brothers - +Marx Brothers +Warner Brothers There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of @@ -7329,9 +7615,9 @@ This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers were brothers long before you were. +Vaidhyanathan, Siva Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. -Vaidhyanathan, Siva The Marx Brothers therefore owned the word brothers, and if Warner Brothers insisted on @@ -7344,6 +7630,7 @@ like the Marx Brothers, knew that no court would ever enforce such a silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. +bookson Internet On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a @@ -7357,9 +7644,7 @@ consequence of that is not at all funny. - - Adobe eBook Reader - +Adobe eBook Reader Consider the life of my Adobe eBook Reader. @@ -7408,11 +7693,11 @@ print ten pages from the book every ten days. Lastly, I have the permission to use the Read Aloud button to hear Middlemarch read aloud through the computer. +Aristotle +Politics, (Aristotle) Here's the e-book for another work in the public domain (including the translation): Aristotle's Politics. -Aristotle -Politics, (Aristotle)
E-book of Aristotle;s <quote>Politics</quote> @@ -7427,6 +7712,8 @@ the book. List of the permissions for Aristotle;s <quote>Politics</quote>.
+Future of Ideas, The (Lessig) +Lessig, Lawrence Finally (and most embarrassingly), here are the permissions for the original e-book version of my last book, The Future of @@ -7479,13 +7766,14 @@ aloud—it's not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won't read aloud. +Marx Brothers +Warner Brothers These are controls, not permissions. Imagine a world where the Marx Brothers sold word processing software that, when you tried to type Warner Brothers, erased Brothers from the sentence. -Marx Brothers This is the future of copyright law: not so much copyright @@ -7507,6 +7795,8 @@ to defeat these protections as well? We've only scratched the surface of this story. Return to the Adobe eBook Reader. +Alice's Adventures in Wonderland (Carroll) +public domaine-book restrictions on Early in the life of the Adobe eBook Reader, Adobe suffered a public relations nightmare. Among the books that you could download for free @@ -7514,7 +7804,6 @@ on the Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful book is in the public domain. Yet when you clicked on Permissions for that book, you got the following report: -Alice's Adventures in Wonderland (Carroll)
List of the permissions for <quote>Alice's Adventures in @@ -7548,6 +7837,8 @@ could use a computer to read the book aloud, would Adobe agree that such a use of an eBook Reader was fair? Adobe didn't answer because the answer, however absurd it might seem, is no. </para> +<indexterm startref='idxalicesadventuresinwonderlandcarroll' class='endofrange'/> +<indexterm startref='idxpublicdomainebookrestrictionson2' class='endofrange'/> <para> The point is not to blame Adobe. Indeed, Adobe is among the most innovative companies developing strategies to balance open access to @@ -7557,20 +7848,14 @@ control. That incentive is understandable, yet what it creates is often crazy. </para> <indexterm startref="idxadobeebookreader" class='endofrange'/> +<indexterm startref='idxbooksoninternet' class='endofrange'/> <para> To see the point in a particularly absurd context, consider a favorite story of mine that makes the same point. </para> -<indexterm id="idxaibo1" class='startofrange'> - <primary>Aibo robotic dog</primary> -</indexterm> -<indexterm id="idxroboticdog1" class='startofrange'> - <primary>robotic dog</primary> -</indexterm> -<indexterm id="idxsonyaibo1" class='startofrange'> - <primary>Sony</primary> - <secondary>Aibo robotic dog produced by</secondary> -</indexterm> +<indexterm id="idxaibo1" class='startofrange'><primary>Aibo robotic dog</primary></indexterm> +<indexterm id="idxroboticdog1" class='startofrange'><primary>robotic dog</primary></indexterm> +<indexterm id="idxsonyaibo1" class='startofrange'><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm> <para> Consider the robotic dog made by Sony named <quote>Aibo.</quote> The Aibo learns tricks, cuddles, and follows you around. It eats only electricity @@ -7580,7 +7865,7 @@ and that doesn't leave that much of a mess (at least in your house). The Aibo is expensive and popular. Fans from around the world have set up clubs to trade stories. One fan in particular set up a Web site to enable information about the Aibo dog to be shared. This fan set -<beginpage pagenum="165"/> +<!-- PAGE BREAK 165--> 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. @@ -7593,6 +7878,7 @@ how to teach the dog to do new tricks is just to say that aibopet.com was giving information to users of the Aibo pet about how to hack their computer <quote>dog</quote> to make it do new tricks (thus, aibohack.com). </para> +<indexterm><primary>hacks</primary></indexterm> <para> If you're not a programmer or don't know many programmers, the word <citetitle>hack</citetitle> has a particularly unfriendly @@ -7640,6 +7926,7 @@ completely legal activity. One imagines that the owner of aibopet.com thought, <emphasis>What possible problem could there be with teaching a robot dog to dance?</emphasis> </para> +<indexterm><primary>Microsoft</primary><secondary>government case against</secondary></indexterm> <para> Let's put the dog to sleep for a minute, and turn to a pony show— not literally a pony show, but rather a paper that a Princeton academic @@ -7710,16 +7997,9 @@ academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed. </para> -<indexterm id="idxaibo2" class='startofrange'> - <primary>Aibo robotic dog</primary> -</indexterm> -<indexterm id="idxroboticdog2" class='startofrange'> - <primary>robotic dog</primary> -</indexterm> -<indexterm id="idxsonyaibo2" class='startofrange'> - <primary>Sony</primary> - <secondary>Aibo robotic dog produced by</secondary> -</indexterm> +<indexterm id="idxaibo2" class='startofrange'><primary>Aibo robotic dog</primary></indexterm> +<indexterm id="idxroboticdog2" class='startofrange'><primary>robotic dog</primary></indexterm> +<indexterm id="idxsonyaibo2" class='startofrange'><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm> <para> What links these two, aibopet.com and Felten, is the letters they then received. Aibopet.com received a letter from Sony about the @@ -7784,10 +8064,7 @@ have been a copyright violation. </para> <indexterm><primary>Aibo robotic dog</primary></indexterm> <indexterm><primary>robotic dog</primary></indexterm> -<indexterm> - <primary>Sony</primary> - <secondary>Aibo robotic dog produced by</secondary> -</indexterm> +<indexterm><primary>Sony</primary><secondary>Aibo robotic dog produced by</secondary></indexterm> <para> Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright protection system for the purpose of enabling the dog to @@ -7809,6 +8086,7 @@ Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright. </para> <indexterm><primary>Rogers, Fred</primary></indexterm> +<indexterm id='idxcassettevcrs2' class='startofrange'><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm> <para> 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 @@ -7837,6 +8115,7 @@ but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important.<footnote><para> <!-- f23 --> +<indexterm><primary>cassette recording</primary><secondary>VCRs</secondary></indexterm> <citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the VCR. See James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of @@ -7867,6 +8146,7 @@ pirating of copyrighted material—a bad end. Or they can be used to enable the use of particular copyrighted materials in ways that would be considered fair use—a good end. </para> +<indexterm id='idxhandguns' class='startofrange'><primary>handguns</primary></indexterm> <para> A handgun can be used to shoot a police officer or a child. Most <!-- PAGE BREAK 171 --> @@ -7875,10 +8155,11 @@ practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses. </para> -<figure id="fig-1711"> +<figure id="fig-1711-vcr-handgun-cartoonfig"> <title>VCR/handgun cartoon.
+Conrad, Paul The obvious point of Conrad's cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and @@ -7886,14 +8167,12 @@ circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do. -Conrad, Paul + + Aibo robotic dog robotic dog - - Sony - Aibo robotic dog produced by - +SonyAibo robotic dog produced by The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright @@ -7946,6 +8225,7 @@ never be interfered with by the copyright police. You were free in that space to do as you wished with this part of our culture. You were allowed to build on it as you wished without fear of legal control. +bots But if you moved your club onto the Internet, and made it generally available for others to join, the story would be very different. Bots @@ -8007,6 +8287,12 @@ of the media. These changes are of two sorts: the scope of concentration, and its nature. +cable television +BMG +EMI +McCain, John +Universal Music Group +Warner Music Group Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media @@ -8028,11 +8314,6 @@ programming to 74 percent of the cable subscribers nationwide. Molly Ivins, Media Consolidation Must Be Stopped, Charleston Gazette, 31 May 2003. -BMG -EMI -McCain, John -Universal Music Group -Warner Music Group The story with radio is even more dramatic. Before deregulation, @@ -8045,6 +8326,7 @@ markets, the two largest broadcasters control 74 percent of that market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues. +cable television Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than @@ -8087,7 +8369,7 @@ just large companies owning many radio stations, but a few companies owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do: -
+
Pattern of modern media ownership.
@@ -8179,12 +8461,12 @@ find that he had the choice either to make the show less edgy or to be fired: The content of any show developed for a network is increasingly owned by the network. +Diller, Barry +Moyers, Bill While the number of channels has increased dramatically, the ownership of those channels has narrowed to an ever smaller and smaller few. As Barry Diller said to Bill Moyers, -Diller, Barry -Moyers, Bill
@@ -8280,9 +8562,7 @@ is through votes that we are to choose policy. But to do that, we depend fundamentally upon the press to help inform Americans about these issues. - - advertising - +advertising Beginning in 1998, the Office of National Drug Control Policy launched a media campaign as part of the war on drugs. The campaign produced @@ -8448,13 +8728,14 @@ now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has known. +Vaidhyanathan, Siva Siva Vaidhyanathan captures a similar point in his four surrenders of copyright law in the digital age. See Vaidhyanathan, 159–60. -Vaidhyanathan, Siva -This has been a long chapter. Its point can now be briefly stated. +This has been a long chapter. Its +point can now be briefly stated. At the start of this book, I distinguished between commercial and @@ -8465,7 +8746,7 @@ that copyright law has undergone. In 1790, the law looked like this: - + @@ -8502,7 +8783,7 @@ By the end of the nineteenth century, the law had changed to this: - + @@ -8540,7 +8821,7 @@ we could say the law began to look like this: - + @@ -8572,7 +8853,7 @@ that the law now looks like this: - + @@ -8688,20 +8969,15 @@ lawyer. CHAPTER ELEVEN: Chimera - - chimeras - - - Wells, H. G. - - - Country of the Blind, The (Wells) - - - -In a well-known short story by H. G. Wells, a mountain climber -named Nunez trips (literally, down an ice slope) into an unknown and -isolated valley in the Peruvian Andes. +chimeras +Wells, H. G. +Country of the Blind, The (Wells) + + +In a well-known short story by +H. G. Wells, a mountain climber named Nunez trips (literally, down an +ice slope) into an unknown and isolated valley in the Peruvian +Andes. H. G. Wells, The Country of the Blind (1904, 1911). See H. G. Wells, The Country of the Blind and Other Stories, Michael Sherborne, ed. (New @@ -8763,10 +9039,13 @@ irritant bodies [the eyes]. Nunez of this condition necessary for him to be allowed his bride. (You'll have to read the original to learn what happens in the end. I believe in free culture, but never in giving away the end of a story.) -It sometimes happens that the eggs of twins fuse in the mother's -womb. That fusion produces a chimera. A chimera is a single creature -with two sets of DNA. The DNA in the blood, for example, might be -different from the DNA of the skin. This possibility is an underused + + +It sometimes happens that the eggs +of twins fuse in the mother's womb. That fusion produces a +chimera. A chimera is a single creature with two sets +of DNA. The DNA in the blood, for example, might be different from the +DNA of the skin. This possibility is an underused plot for murder mysteries. But the DNA shows with 100 percent @@ -8970,11 +9249,12 @@ and will kill opportunities that could be extraordinarily valuable. CHAPTER TWELVE: Harms -To fight piracy, to protect property, the content industry has -launched a war. Lobbying and lots of campaign contributions have now -brought the government into this war. As with any war, this one will -have both direct and collateral damage. As with any war of -prohibition, these damages will be suffered most by our own people. +To fight piracy, to +protect property, the content industry has launched a +war. Lobbying and lots of campaign contributions have now brought the +government into this war. As with any war, this one will have both +direct and collateral damage. As with any war of prohibition, these +damages will be suffered most by our own people. My aim so far has been to describe the consequences of this war, in @@ -9054,6 +9334,7 @@ on remote topics of science or culture. There is a vast amount of creative work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. +Worldcom That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to @@ -9093,7 +9374,6 @@ recent months. Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient? -Worldcom art, underground @@ -9138,6 +9418,7 @@ content. It is as if your cassette tape player transmitted a list of the songs that you played in the privacy of your own home that anyone could tune into for whatever reason they chose. +images, ownership of Never in our history has a painter had to worry about whether his painting infringed on someone else's work; but the modern-day @@ -9270,13 +9551,14 @@ facilitate new ways to create content. Unlike the major labels, MP3.com offered creators a venue to distribute their creativity, without demanding an exclusive engagement from the creators. +Lovett, Lyle +CDspreference data on To make this system work, however, MP3.com needed a reliable way to recommend music to its users. The idea behind this alternative was to leverage the revealed preferences of music listeners to recommend new artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And so on. -Lovett, Lyle This idea required a simple way to gather data about user preferences. @@ -9299,6 +9581,7 @@ my.mp3.com service was to give users access to their own content, and as a by-product, by seeing the content they already owned, to discover the kind of content the users liked. + To make this system function, however, MP3.com needed to copy 50,000 CDs to a server. (In principle, it could have been the user who @@ -9311,9 +9594,7 @@ had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought. - - Vivendi Universal - +Vivendi Universal Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled @@ -9352,6 +9633,8 @@ such a view of the law will cost you and your firm dearly. Hummer, John Barry, Hank Hummer Winblad +EMI +Universal Music Group This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the @@ -9379,11 +9662,10 @@ So extreme has the environment become that even car manufacturers are afraid of technologies that touch content. In an article in Business 2.0, Rafe Needleman describes a discussion with BMW: -EMI -Universal Music Group
BMW +cars, MP3 sound system in I asked why, with all the storage capacity and computer power in the car, there was no way to play MP3 files. I was told that BMW @@ -9456,10 +9738,14 @@ do everything it can to limit the reach of the law where the law is not doing any good. The transaction costs buried within a permission culture are enough to bury a wide range of creativity. Someone needs to do a lot of justifying to justify that -result. The uncertainty of the law is one burden on innovation. There -is a second burden that operates more directly. This is the effort by -many in the content industry to use the law to directly regulate the -technology of the Internet so that it better protects their content. +result. + + +The uncertainty of the law is one +burden on innovation. There is a second burden that operates more +directly. This is the effort by many in the content industry to use +the law to directly regulate the technology of the Internet so that it +better protects their content. The motivation for this response is obvious. The Internet enables the @@ -9503,6 +9789,7 @@ and costs on the technology, but will likely be eclipsed by advances around exactly those requirements. +Intel In March 2002, a broad coalition of technology companies, led by Intel, tried to get Congress to see the harm that such legislation @@ -9514,12 +9801,11 @@ February 2002 (Entertainment). Their argument was obviously not that copyright should not be protected. Instead, they argued, any protection should not do more harm than good. -Intel -There is one more obvious way in which this war has harmed -innovation—again, a story that will be quite familiar to the -free market crowd. +There is one more obvious way in +which this war has harmed innovation—again, a story that will be +quite familiar to the free market crowd. Copyright may be property, but like all property, it is also a form @@ -9527,6 +9813,8 @@ of regulation. It is a regulation that benefits some and harms others. When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. +cassette recordingVCRs +VCRs As I described in chapter , despite this feature of copyright as @@ -9554,6 +9842,7 @@ that will have the effect of smothering the new to benefit the old. The response by the courts has been fairly universal. +Grokster, Ltd. The only circuit court exception is found in Recording Industry Association of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit @@ -9594,10 +9883,8 @@ available at But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. - - artists - recording industry payments to - +artistsrecording industry payments to +Kennedy, John F. @@ -9610,7 +9897,6 @@ performance before President Kennedy at Madison Square Garden— then whenever that recording was played on the radio, the current copyright owners of Happy Birthday would get some money, whereas Marilyn Monroe would not. -Kennedy, John F. The reasoning behind this balance struck by Congress makes some @@ -9695,10 +9981,7 @@ those imposed by the law. Copyright law is one such law. So the first question we should ask is, what copyright rules would govern Internet radio? - - artists - recording industry payments to - +artistsrecording industry payments to But here the power of the lobbyists is reversed. Internet radio is a new industry. The recording artists, on the other hand, have a very @@ -9845,9 +10128,7 @@ economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? Real Networks - - Alben, Alex - +Alben, Alex 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 @@ -9869,10 +10150,7 @@ that should establish the market rate, and if you set the rate so high, you're going to drive the small webcasters out of business. … - - artists - recording industry payments to - +artistsrecording industry payments to And the RIAA experts said, Well, we don't really model this as an industry with thousands of webcasters, we think it should be @@ -9955,6 +10233,7 @@ is an embarrassment to our tradition. And the consequence of our law as it is, is that those with the power can use the law to quash any rights they oppose. +alcohol prohibition Wars of prohibition are nothing new in America. This one is just something more extreme than anything we've seen before. We @@ -9991,8 +10270,8 @@ compliance literature). We pride ourselves on our free society, but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law. -alcohol prohibition +law schools This state of affairs is not without consequence. It is a particularly salient issue for teachers like me, whose job it is to teach law @@ -10009,7 +10288,6 @@ Americans—more significantly in some parts of America than in others, but still, everywhere in America today—can't live their lives both normally and legally, since normally entails a certain degree of illegality. -law schools The response to this general illegality is either to enforce the law @@ -10080,7 +10358,8 @@ Apple Corporation went so far as to suggest that freedom was a right: In a series of commercials, Apple endorsed the Rip, Mix, Burn capacities of digital technologies. -Adromeda +Andromeda +CDsmix technology and This use of my records is certainly valuable. I have begun a large process at home of ripping all of my and my wife's CDs, and storing @@ -10116,6 +10395,7 @@ the world where we either listened to music by manipulating pieces of plastic or were part of a massively complex digital rights management system. + If the only way to assure that artists get paid were the elimination of the ability to freely move content, then these technologies to @@ -10161,11 +10441,9 @@ Valenti is charming; but not so charming as to justify giving up a tradition as deep and important as our tradition of free culture. Electronic Frontier Foundation - - ISPs (Internet service providers), user identities revealed by - +ISPs (Internet service providers), user identities revealed by -There's one more aspect to this +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 @@ -10173,10 +10451,10 @@ Foundation attorney Fred von Lohmann describes, this is the a very large percentage of the population into criminals. This is the collateral damage to civil liberties generally. +von Lohmann, Fred If you can treat someone as a putative lawbreaker, von Lohmann explains, -von Lohmann, Fred
@@ -10273,6 +10551,7 @@ your daughter can lose the right to use the university's computer network. She can, in some cases, be expelled. +von Lohmann, Fred Now, of course, she'll have the right to defend herself. You can hire a lawyer for her (at $300 per hour, if you're lucky), and she can @@ -10286,7 +10565,6 @@ college students have already learned, our presumptions about innocence disappear in the middle of wars of prohibition. This war is no different. Says von Lohmann, -von Lohmann, Fred
@@ -10328,10 +10606,11 @@ effort through our democracy to change our law? -So here's the picture: You're standing at the side of the road. Your -car is on fire. You are angry and upset because in part you helped start -the fire. Now you don't know how to put it out. Next to you is a bucket, -filled with gasoline. Obviously, gasoline won't put the fire out. +So here's the picture: You're +standing at the side of the road. Your car is on fire. You are angry +and upset because in part you helped start the fire. Now you don't +know how to put it out. Next to you is a bucket, filled with +gasoline. Obviously, gasoline won't put the fire out. As you ponder the mess, someone else comes along. In a panic, she @@ -10342,12 +10621,13 @@ blazing car. And the fire that gasoline will ignite is about to ignite everything around. -A war about copyright rages all around—and we're all focusing on -the wrong thing. No doubt, current technologies threaten existing -businesses. No doubt they may threaten artists. But technologies -change. The industry and technologists have plenty of ways to use -technology to protect themselves against the current threats of the -Internet. This is a fire that if let alone would burn itself out. +A war about copyright rages all +around—and we're all focusing on the wrong thing. No doubt, +current technologies threaten existing businesses. No doubt they may +threaten artists. But technologies change. The industry and +technologists have plenty of ways to use technology to protect +themselves against the current threats of the Internet. This is a fire +that if let alone would burn itself out. @@ -10381,17 +10661,15 @@ success will require. CHAPTER THIRTEEN: Eldred - - Hawthorne, Nathaniel - +Hawthorne, Nathaniel -In 1995, a father was frustrated that his daughters didn't seem to -like Hawthorne. No doubt there was more than one such father, but at -least one did something about it. Eric Eldred, a retired computer -programmer living in New Hampshire, decided to put Hawthorne on the -Web. An electronic version, Eldred thought, with links to pictures and -explanatory text, would make this nineteenth-century author's work -come alive. +In 1995, a father was frustrated +that his daughters didn't seem to like Hawthorne. No doubt there was +more than one such father, but at least one did something about +it. Eric Eldred, a retired computer programmer living in New +Hampshire, decided to put Hawthorne on the Web. An electronic version, +Eldred thought, with links to pictures and explanatory text, would +make this nineteenth-century author's work come alive. It didn't work—at least for his daughters. They didn't find @@ -10400,6 +10678,8 @@ gave birth to a hobby, and his hobby begat a cause: Eldred would build a library of public domain works by scanning these works and making them available for free. +Disney, Walt +Grimm fairy tales Eldred's library was not simply a copy of certain public domain works, though even a copy would have been of great value to people @@ -10423,7 +10703,8 @@ animated cartoons, sometimes successfully (Cinderella), s (The Hunchback of Notre Dame, Treasure Planet). These are all commercial publications of public domain works. - + + The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally @@ -10436,6 +10717,7 @@ social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally. +pornography There's a parallel here with pornography that is a bit hard to describe, but it's a strong one. One phenomenon that the Internet created was a world of noncommercial pornographers—people who @@ -10524,6 +10806,7 @@ specific—to promote … Progress—through means t are also specific— by securing exclusive Rights (i.e., copyrights) for limited Times. +Jaszi, Peter In the past forty years, Congress has gotten into the practice of extending existing terms of copyright protection. What puzzled me @@ -10534,7 +10817,6 @@ no practical effect. If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids—perpetual terms on the installment plan, as Professor Peter Jaszi so nicely put it. -Jaszi, Peter As an academic, my first response was to hit the books. I remember @@ -10670,17 +10952,16 @@ Alan K. Ota, Disney in Washington: The Mouse That Roars, -Constitutional law is not oblivious to the obvious. Or at least, -it need not be. So when I was considering Eldred's complaint, this - reality -about the never-ending incentives to increase the copyright term -was central to my thinking. In my view, a pragmatic court committed -to interpreting and applying the Constitution of our framers would see -that if Congress has the power to extend existing terms, then there -would be no effective constitutional requirement that terms be - limited. -If they could extend it once, they would extend it again and again -and again. +Constitutional law is not oblivious +to the obvious. Or at least, it need not be. So when I was considering +Eldred's complaint, this reality about the never-ending incentives to +increase the copyright term was central to my thinking. In my view, a +pragmatic court committed to interpreting and applying the +Constitution of our framers would see that if Congress has the power +to extend existing terms, then there would be no effective +constitutional requirement that terms be limited. If +they could extend it once, they would extend it again and again and +again. It was also my judgment that this Supreme Court @@ -10776,9 +11057,14 @@ its politics struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians. +Constitution, U.S.copyright purpose established in +copyrightconstitutional purpose of +copyrightduration of +Disney, Walt -Now let's pause for a moment to make sure we understand what the -argument in Eldred was not about. By insisting on the +Now let's pause for a moment to +make sure we understand what the argument in +Eldred was not about. By insisting on the Constitution's limits to copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious sense, he was fighting a kind of piracy—piracy of the public domain. When Robert Frost wrote his @@ -10793,6 +11079,7 @@ get another twenty-year dollop of monopoly. That twenty-year dollop would be taken from the public domain. Eric Eldred was fighting a piracy that affects us all. +Nashville Songwriters Association Some people view the public domain with contempt. In their brief @@ -10808,7 +11095,6 @@ But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter. -Nashville Songwriters Association As we've seen, our constitutional system requires limits on @@ -10823,18 +11109,15 @@ not expired, and will not expire, so long as Congress is free to be bought to extend them again. -It is valuable copyrights that are responsible for terms being - extended. -Mickey Mouse and Rhapsody in Blue. These works are too -valuable for copyright owners to ignore. But the real harm to our - society -from copyright extensions is not that Mickey Mouse remains - Disney's. -Forget Mickey Mouse. Forget Robert Frost. Forget all the works -from the 1920s and 1930s that have continuing commercial value. The -real harm of term extension comes not from these famous works. The -real harm is to the works that are not famous, not commercially - exploited, +It is valuable copyrights that are +responsible for terms being extended. Mickey Mouse and +Rhapsody in Blue. These works are too valuable for +copyright owners to ignore. But the real harm to our society from +copyright extensions is not that Mickey Mouse remains Disney's. +Forget Mickey Mouse. Forget Robert Frost. Forget all the works from +the 1920s and 1930s that have continuing commercial value. The real +harm of term extension comes not from these famous works. The real +harm is to the works that are not famous, not commercially exploited, and no longer available as a result. @@ -10940,11 +11223,10 @@ digitized, and hence will simply rot away on shelves. But the consequence for other creative works is much more dire. - - Agee, Michael - +Agee, Michael Hal Roach Studios Laurel and Hardy Films +Lucky Dog, The Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns the copyrights for the Laurel and Hardy films. Agee is a @@ -10962,8 +11244,6 @@ See David G. Savage, High Court Scene of Showdown on Copyright Law, Orlando Sentinel Tribune, 9 October 2002. - -Lucky Dog, The Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in @@ -11046,13 +11326,12 @@ in which they are now stored will be filled with nothing more than dust. -Of all the creative work produced by humans anywhere, a tiny -fraction has continuing commercial value. For that tiny fraction, the -copyright is a crucially important legal device. For that tiny fraction, -the copyright creates incentives to produce and distribute the - creative -work. For that tiny fraction, the copyright acts as an engine of -free expression. +Of all the creative work produced +by humans anywhere, a tiny fraction has continuing commercial +value. For that tiny fraction, the copyright is a crucially important +legal device. For that tiny fraction, the copyright creates incentives +to produce and distribute the creative work. For that tiny fraction, +the copyright acts as an engine of free expression. But even for that tiny fraction, the actual time during which the @@ -11113,9 +11392,7 @@ would not have interfered with anything. But this situation has now changed. - - archives, digital - +archives, digital One crucially important consequence of the emergence of digital technologies is to enable the archive that Brewster Kahle dreams of. @@ -11188,12 +11465,13 @@ December 2002, available at -In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal -district court in Washington, D.C., asking the court to declare the -Sonny Bono Copyright Term Extension Act unconstitutional. The two -central claims that we made were (1) that extending existing terms -violated the Constitution's limited Times requirement, and (2) that -extending terms by another twenty years violated the First Amendment. +In January 1999, we filed a lawsuit +on Eric Eldred's behalf in federal district court in Washington, D.C., +asking the court to declare the Sonny Bono Copyright Term Extension +Act unconstitutional. The two central claims that we made were (1) +that extending existing terms violated the Constitution's +limited Times requirement, and (2) that extending terms +by another twenty years violated the First Amendment. The district court dismissed our claims without even hearing an @@ -11243,14 +11521,15 @@ was set for October of 2002. The summer would be spent writing briefs and preparing for argument. -It is over a year later as I write these words. It is still -astonishingly hard. If you know anything at all about this story, you -know that we lost the appeal. And if you know something more than just -the minimum, you probably think there was no way this case could have -been won. After our defeat, I received literally thousands of missives -by well-wishers and supporters, thanking me for my work on behalf of -this noble but doomed cause. And none from this pile was more -significant to me than the e-mail from my client, Eric Eldred. +It is over a year later as I write +these words. It is still astonishingly hard. If you know anything at +all about this story, you know that we lost the appeal. And if you +know something more than just the minimum, you probably think there +was no way this case could have been won. After our defeat, I received +literally thousands of missives by well-wishers and supporters, +thanking me for my work on behalf of this noble but doomed cause. And +none from this pile was more significant to me than the e-mail from my +client, Eric Eldred. But my client and these friends were wrong. This case could have @@ -11260,11 +11539,11 @@ mistake lost it. Steward, Geoffrey -The mistake was made early, though it became obvious only at the very -end. Our case had been supported from the very beginning by an -extraordinary lawyer, Geoffrey Stewart, and by the law firm he had -moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of -heat +The mistake was made early, though +it became obvious only at the very end. Our case had been supported +from the very beginning by an extraordinary lawyer, Geoffrey Stewart, +and by the law firm he had moved to, Jones, Day, Reavis and +Pogue. Jones Day took a great deal of heat from its copyright-protectionist clients for supporting us. They ignored this pressure (something that few law firms today would ever @@ -11331,6 +11610,8 @@ the widest range of credible critics—credible not because they were rich and famous, but because they, in the aggregate, demonstrated that this law was unconstitutional regardless of one's politics. +Eagle Forum +Schlafly, Phyllis The first step happened all by itself. Phyllis Schlafly's organization, Eagle Forum, had been an opponent of the CTEA from the @@ -11344,8 +11625,6 @@ to get bogged down? The answer, as the editorial documented, was the power of money. Schlafly enumerated Disney's contributions to the key players on the committees. It was money, not justice, that gave Mickey Mouse twenty more years in Disney's control, Schlafly argued. -Eagle Forum -Schlafly, Phyllis In the Court of Appeals, Eagle Forum was eager to file a brief @@ -11355,6 +11634,10 @@ existing copyrights, there is no limit to Congress's power to set terms. That strong conservative argument persuaded a strong conservative judge, Judge Sentelle. +GNU/Linux operating system +Intel +Linux operating system +Eagle Forum In the Supreme Court, the briefs on our side were about as diverse as it gets. They included an extraordinary historical brief by the Free @@ -11367,18 +11650,14 @@ copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments. -GNU/Linux operating system -Intel -Linux operating system -Eagle Forum +American Association of Law Libraries +National Writers Union Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union. -American Association of Law Libraries -National Writers Union Hal Roach Studios @@ -11404,6 +11683,10 @@ anything to increase incentives to create. Such extensions were nothing more than rent-seeking—the fancy term economists use to describe special-interest legislation gone wild. +Fried, Charles +Morrison, Alan +Public Citizen +Reagan, Ronald The same effort at balance was reflected in the legal team we gathered to write our briefs in the case. The Jones Day lawyers had been with @@ -11417,11 +11700,10 @@ Kathleen Sullivan, who had argued many cases in the Court, and who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. -Fried, Charles -Morrison, Alan -Public Citizen -Reagan, Ronald +Fried, Charles +Congress, U.S.constitutional powers of +Constitution, U.S.Commerce Clause of Fried was a special victory for our side. Every other former solicitor general was hired by the other side to defend Congress's power to give @@ -11433,7 +11715,6 @@ limited Congress's power in the context of the Commerce Clause. And while he had argued many positions in the Supreme Court that I personally disagreed with, his joining the cause was a vote of confidence in our argument. -Fried, Charles The government, in defending the statute, had its collection of @@ -11451,6 +11732,9 @@ that the copyright holders would defend the idea that they should continue to have the right to control who did what with content they wanted to control. +Gershwin, George +Porgy and Bess +pornography Dr. Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to @@ -11474,7 +11758,6 @@ That's their view of how this part of American culture should be controlled, and they wanted this law to help them effect that control. -Gershwin, George This argument made clear a theme that is rarely noticed in this @@ -11494,8 +11777,11 @@ mean that there was no limit to the power of Congress to extend copyrights—extensions that would further concentrate the market; it would also mean that there was no limit to Congress's power to play favorites, through copyright, with who has the right to speak. -Between February and October, there was little I did beyond preparing -for this case. Early on, as I said, I set the strategy. + + +Between February and October, there +was little I did beyond preparing for this case. Early on, as I said, +I set the strategy. Rehnquist, William H. O'Connor, Sandra Day @@ -11510,6 +11796,7 @@ of cases that said that an enumerated power had to be interpreted to assure that Congress's powers had limits. Breyer, Stephen +Ginsburg, Ruth Bader The Rest were the four Justices who had strongly opposed limits on Congress's power. These four—Justice Stevens, Justice Souter, @@ -11542,6 +11829,7 @@ also very sensitive to free speech concerns. And as we strongly believed, there was a very important free speech argument against these retrospective extensions. + The only vote we could be confident about was that of Justice Stevens. History will record Justice Stevens as one of the greatest @@ -11575,11 +11863,12 @@ was limited, then so, too, must Congress's power to regulate copyright be limited. -The argument on the government's side came down to this: Congress has -done it before. It should be allowed to do it again. The government -claimed that from the very beginning, Congress has been extending the -term of existing copyrights. So, the government argued, the Court -should not now say that practice is unconstitutional. +The argument on the government's +side came down to this: Congress has done it before. It should be +allowed to do it again. The government claimed that from the very +beginning, Congress has been extending the term of existing +copyrights. So, the government argued, the Court should not now say +that practice is unconstitutional. There was some truth to the government's claim, but not much. We @@ -11602,10 +11891,12 @@ was no reason to expect that cycle would end. This Court had not hesitated to intervene where Congress was in a similar cycle of extension. There was no reason it couldn't intervene here. -Oral argument was scheduled for the first week in October. I - arrived -in D.C. two weeks before the argument. During those two -weeks, I was repeatedly mooted by lawyers who had volunteered to + + +Oral argument was scheduled for the +first week in October. I arrived in D.C. two weeks before the +argument. During those two weeks, I was repeatedly +mooted by lawyers who had volunteered to help in the case. Such moots are basically practice rounds, where @@ -11623,12 +11914,12 @@ this central idea. Ayer, Don Reagan, Ronald +Fried, Charles One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor General Charles Fried. He had argued many cases before the Supreme Court. And in his review of the moot, he let his concern speak: -Fried, Charles I'm just afraid that unless they really see the harm, they won't be @@ -11647,9 +11938,12 @@ does the right thing—not because of politics but because it is right. As I listened to Ayer's plea for passion in pressing politics, I understood his point, and I rejected it. Our argument was right. That was enough. Let the politicians learn to see that it was also good. -The night before the argument, a line of people began to form -in front of the Supreme Court. The case had become a focus of the -press and of the movement to free culture. Hundreds stood in line + + +The night before the argument, a +line of people began to form in front of the Supreme Court. The case +had become a focus of the press and of the movement to free +culture. Hundreds stood in line for the chance to see the proceedings. Scores spent the night on the @@ -11793,8 +12087,9 @@ Copyright and Patent Clause. All true. But it wasn't going to move the Court to my side. -As I left the court that day, I knew there were a hundred points I -wished I could remake. There were a hundred questions I wished I had +As I left the court that day, I +knew there were a hundred points I wished I could remake. There were a +hundred questions I wished I had answered differently. But one way of thinking about this case left me @@ -11816,11 +12111,12 @@ the Conservatives—would feel itself constrained by the rule of law that it had established elsewhere. -The morning of January 15, 2003, I was five minutes late to the office -and missed the 7:00 A.M. call from the Supreme Court clerk. Listening to -the message, I could tell in an instant that she had bad news to report.The -Supreme Court had affirmed the decision of the Court of Appeals. Seven -justices had voted in the majority. There were two dissents. +The morning of January 15, 2003, I +was five minutes late to the office and missed the 7:00 A.M. call from +the Supreme Court clerk. Listening to the message, I could tell in an +instant that she had bad news to report.The Supreme Court had affirmed +the decision of the Court of Appeals. Seven justices had voted in the +majority. There were two dissents. A few seconds later, the opinions arrived by e-mail. I took the @@ -11840,6 +12136,7 @@ distinguish the principle in this case from the principle in cited. The argument that was the core argument of our case did not even appear in the Court's opinion. +Ginsburg, Ruth Bader @@ -11908,9 +12205,10 @@ anyone having addressed the argument that we had carried from Judge Sentelle. It was Hamlet without the Prince. -Defeat brings depression. They say it is a sign of health when -depression gives way to anger. My anger came quickly, but it didn't cure -the depression. This anger was of two sorts. +Defeat brings depression. They say +it is a sign of health when depression gives way to anger. My anger +came quickly, but it didn't cure the depression. This anger was of two +sorts. originalism @@ -11979,11 +12277,11 @@ passion I had used elsewhere. It was not the basis on which a court should decide the issue. Ayer, Don +Fried, Charles Would it have been different if I had argued it differently? Would it have been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan? -Fried, Charles My friends huddled around me to insist it would not. The Court @@ -11998,13 +12296,13 @@ little reason to resist doing right. I can't help but think that if I had stepped down from this pretty picture of dispassionate justice, I could have persuaded. +Jaszi, Peter And even if I couldn't, then that doesn't excuse what happened in January. For at the start of this case, one of America's leading intellectual property professors stated publicly that my bringing this case was a mistake. The Court is not ready, Peter Jaszi said; this issue should not be raised until it is. -Jaszi, Peter After the argument and after the decision, Peter said to me, and @@ -12014,10 +12312,13 @@ here again Peter was right. Either I was not ready to argue this case in a way that would do some good or they were not ready to hear this case in a way that would do some good. Either way, the decision to bring this case—a decision I had made four years before—was wrong. -While the reaction to the Sonny Bono Act itself was almost -unanimously negative, the reaction to the Court's decision was mixed. -No one, at least in the press, tried to say that extending the term of -copyright was a good idea. We had won that battle over ideas. Where + + +While the reaction to the Sonny +Bono Act itself was almost unanimously negative, the reaction to the +Court's decision was mixed. No one, at least in the press, tried to +say that extending the term of copyright was a good idea. We had won +that battle over ideas. Where the decision was praised, it was praised by papers that had been @@ -12063,13 +12364,15 @@ better lawyer would have made them see differently. CHAPTER FOURTEEN: Eldred II -The day Eldred was decided, fate would have it that I was to travel to -Washington, D.C. (The day the rehearing petition in Eldred was -denied—meaning the case was really finally over—fate would -have it that I was giving a speech to technologists at Disney World.) -This was a particularly long flight to my least favorite city. The -drive into the city from Dulles was delayed because of traffic, so I -opened up my computer and wrote an op-ed piece. +The day +Eldred was decided, fate would have it that I +was to travel to Washington, D.C. (The day the rehearing petition in +Eldred was denied—meaning the case was +really finally over—fate would have it that I was giving a +speech to technologists at Disney World.) This was a particularly +long flight to my least favorite city. The drive into the city from +Dulles was delayed because of traffic, so I opened up my computer and +wrote an op-ed piece. Ayer, Don @@ -12137,6 +12440,7 @@ linkend="property-i"/>, formalities in copyright law were removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. +German copyright law Until the 1908 Berlin Act of the Berne Convention, national copyright legislation sometimes made protection depend upon compliance with formalities such as registration, deposit, and affixation of notice of @@ -12306,11 +12610,13 @@ into the public domain within fifty years. What do you think? Forbes, Steve -When Steve Forbes endorsed the idea, some in Washington began to pay -attention. Many people contacted me pointing to representatives who -might be willing to introduce the Eldred Act. And I had a few who -directly suggested that they might be willing to take the first step. +When Steve Forbes endorsed the +idea, some in Washington began to pay attention. Many people contacted +me pointing to representatives who might be willing to introduce the +Eldred Act. And I had a few who directly suggested that they might be +willing to take the first step. +Lofgren, Zoe One representative, Zoe Lofgren of California, went so far as to get the bill drafted. The draft solved any problem with international @@ -12319,7 +12625,6 @@ possible. In May 2003, it looked as if the bill would be introduced. On May 16, I posted on the Eldred Act blog, we are close. There was a general reaction in the blog community that something good might happen here. -Lofgren, Zoe But at this stage, the lobbyists began to intervene. Jack Valenti and @@ -12359,14 +12664,14 @@ or not—a controversial claim in any case—unless they know about a copyright, they're not likely to. -At the beginning of this book, I told two stories about the law -reacting to changes in technology. In the one, common sense prevailed. -In the other, common sense was delayed. The difference between the two -stories was the power of the opposition—the power of the side -that fought to defend the status quo. In both cases, a new technology -threatened old interests. But in only one case did those interest's -have the power to protect themselves against this new competitive -threat. +At the beginning of this book, I +told two stories about the law reacting to changes in technology. In +the one, common sense prevailed. In the other, common sense was +delayed. The difference between the two stories was the power of the +opposition—the power of the side that fought to defend the +status quo. In both cases, a new technology threatened old +interests. But in only one case did those interest's have the power to +protect themselves against this new competitive threat. I used these two cases as a way to frame the war that this book has @@ -12454,21 +12759,15 @@ controlled by this dead (and often unfindable) hand of the past. CONCLUSION - - antiretroviral drugs - - - HIV/AIDS therapies - - - Africa, medications for HIV patients in - - -There are more than 35 million people with the AIDS virus -worldwide. Twenty-five million of them live in sub-Saharan Africa. -Seventeen million have already died. Seventeen million Africans -is proportional percentage-wise to seven million Americans. More -importantly, it is seventeen million Africans. +antiretroviral drugs +HIV/AIDS therapies +Africa, medications for HIV patients in + +There are more than 35 million +people with the AIDS virus worldwide. Twenty-five million of them live +in sub-Saharan Africa. Seventeen million have already died. Seventeen +million Africans is proportional percentage-wise to seven million +Americans. More importantly, it is seventeen million Africans. There is no cure for AIDS, but there are drugs to slow its @@ -12702,13 +13001,13 @@ any other single policy decision that we as a democracy will make. -A simple idea blinds us, and under the cover of darkness, much happens -that most of us would reject if any of us looked. So uncritically do -we accept the idea of property in ideas that we don't even notice how -monstrous it is to deny ideas to a people who are dying without -them. So uncritically do we accept the idea of property in culture -that we don't even question when the control of that property removes -our +A simple idea blinds us, and under +the cover of darkness, much happens that most of us would reject if +any of us looked. So uncritically do we accept the idea of property in +ideas that we don't even notice how monstrous it is to deny ideas to a +people who are dying without them. So uncritically do we accept the +idea of property in culture that we don't even question when the +control of that property removes our ability, as a people, to develop our culture democratically. Blindness becomes our common sense. And the challenge for anyone who would @@ -12729,15 +13028,17 @@ hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans produce the perfect storm for free culture. -Reagan, Ronald - - biomedical research - +public domainpublic projects in +single nucleotied polymorphisms (SNPs) Wellcome Trust +World Wide Web +Global Positioning System +Reagan, Ronald +biomedical research -In August 2003, a fight broke out in the United States about a -decision by the World Intellectual Property Organization to cancel a -meeting. +In August 2003, a fight broke out +in the United States about a decision by the World Intellectual +Property Organization to cancel a meeting. Jonathan Krim, The Quiet War over Open-Source, Washington Post, August 2003, E1, available at link #59; William New, Global Group's @@ -12789,6 +13090,7 @@ perspectives. And WIPO was an ideal venue for this discussion, since WIPO is the preeminent international body dealing with intellectual property issues. +World Summit on the Information Society (WSIS) Indeed, I was once publicly scolded for not recognizing this fact about WIPO. In February 2003, I delivered a keynote address to a @@ -12819,6 +13121,8 @@ 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. + +Apple Corporation But there is one project within that list that is highly controversial, at least among lobbyists. That project is open source @@ -12830,6 +13134,10 @@ Microsoft's software. And internationally, many governments have begun to explore requirements that they use open source or free software, rather than proprietary software, for their own internal uses. +copyleft licenses +GNU/Linux operating system +Linux operating system +IBM I don't mean to enter that debate here. It is important only to make clear that the distinction is not between commercial and @@ -12858,11 +13166,9 @@ Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. -IBM -copyleft licenses -GNU/Linux operating system -Linux operating system +General Public License (GPL) +GPL (General Public License) More important for our purposes, to support open source and free software is not to oppose copyright. Open source and free software @@ -12881,6 +13187,8 @@ software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does. +Krim, Jonathan +MicrosoftWIPO meeting opposed by It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and @@ -12894,7 +13202,6 @@ Krim, The Quiet War over Open-Source, available at link #64. And without U.S. backing, the meeting was canceled. -Krim, Jonathan I don't blame Microsoft for doing what it can to advance its own @@ -12904,6 +13211,7 @@ its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts. +Boland, Lois What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting @@ -12928,6 +13236,10 @@ in understanding—the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues. +World Summit on the Information Society (WSIS) +drugspharmaceutical +generic drugs +patentson pharmaceuticals Second, who ever said that WIPO's exclusive aim was to promote intellectual property maximally? As I had been scolded at the @@ -12941,6 +13253,7 @@ based on drugs whose patent has expired) contrary to the WIPO mission? Does the public domain weaken intellectual property? Would it have been better if the protocols of the Internet had been patented? +Gates, Bill Third, even if one believed that the purpose of WIPO was to maximize intellectual property rights, in our tradition, intellectual property @@ -12953,8 +13266,8 @@ good in the world, that is not inconsistent with the objectives of the property system. That is, on the contrary, just what a property system is supposed to be about: giving individuals the right to decide what to do with their property. -Gates, Bill +Boland, Lois When Ms. Boland says that there is something wrong with a meeting which has as its purpose to disclaim or waive such rights, she's @@ -13022,6 +13335,7 @@ mistake. I have no illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about whether our government should speak the truth or not.) + Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the @@ -13055,20 +13369,22 @@ something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history—free culture. + +If this is crazy, then let there be more crazies. Soon. + CodePink Women in Peace Safire, William Turner, Ted -If this is crazy, then let there be more crazies. Soon. There are -moments of hope in this struggle. And moments that surprise. When the -FCC was considering relaxing ownership rules, which would thereby -further increase the concentration in media ownership, an -extraordinary bipartisan coalition formed to fight this change. For -perhaps the first time in history, interests as diverse as the NRA, -the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women -for Peace organized to oppose this change in FCC policy. An -astonishing 700,000 letters were sent to the FCC, demanding more -hearings and a different result. +There are moments of hope in this +struggle. And moments that surprise. When the FCC was considering +relaxing ownership rules, which would thereby further increase the +concentration in media ownership, an extraordinary bipartisan +coalition formed to fight this change. For perhaps the first time in +history, interests as diverse as the NRA, the ACLU, Moveon.org, +William Safire, Ted Turner, and CodePink Women for Peace organized to +oppose this change in FCC policy. An astonishing 700,000 letters were +sent to the FCC, demanding more hearings and a different result. This activism did not stop the FCC, but soon after, a broad coalition @@ -13116,8 +13432,9 @@ of our tragedy. Dylan, Bob -As I write these final words, the news is filled with stories about -the RIAA lawsuits against almost three hundred individuals. +As I write these final words, the +news is filled with stories about the RIAA lawsuits against almost +three hundred individuals. John Borland, RIAA Sues 261 File Swappers, CNET News.com, September 2003, available at @@ -13161,10 +13478,11 @@ kids who use a computer to share content. Causby, Thomas Lee Causby, Tinie -Creative Commons -Gil, Gilberto BBC Brazil, free culture in +Creative Commons +Gil, Gilberto +United Kingdompublic creative archive in Yet on the other side of the Atlantic, the BBC has just announced that it will build a Creative Archive, from which British citizens can @@ -13204,9 +13522,9 @@ potential is ever to be realized. -At least some who have read this far will agree with me that something -must be done to change where we are heading. The balance of this book -maps what might be done. +At least some who have read this +far will agree with me that something must be done to change where we +are heading. The balance of this book maps what might be done. I divide this map into two parts: that which anyone can do now, @@ -13233,10 +13551,11 @@ sketch changes that Congress could make to better secure a free culture.
US, NOW -Common sense is with the copyright warriors because the debate so far -has been framed at the extremes—as a grand either/or: either -property or anarchy, either total control or artists won't be paid. If -that really is the choice, then the warriors should win. +Common sense is with the copyright +warriors because the debate so far has been framed at the +extremes—as a grand either/or: either property or anarchy, +either total control or artists won't be paid. If that really is the +choice, then the warriors should win. The mistake here is the error of the excluded middle. There are @@ -13285,6 +13604,7 @@ before.
Rebuilding Freedoms Previously Presumed: Examples +browsing If you step back from the battle I've been describing here, you will recognize this problem from other contexts. Think about @@ -13316,6 +13636,7 @@ places, not by norms (snooping and gossip are just fun), but instead, by the costs that friction imposes on anyone who would want to spy. Amazon +cookies, Internet 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 @@ -13325,7 +13646,6 @@ at. You know this because at the side of the page, there's a list of and the function of cookies on the Net, it is easier to collect the data than not. The friction has disappeared, and hence any privacy protected by the friction disappears, too. -cookies, Internet Amazon, of course, is not the problem. But we might begin to worry @@ -13337,6 +13657,7 @@ you. If it becomes simple to gather and sort who does what in electronic spaces, then the friction-induced privacy of yesterday disappears. + It is this reality that explains the push of many to define privacy on the Internet. It is the recognition that technology can remove what @@ -13442,9 +13763,7 @@ Finally, consider a very recent example that more directly resonates with the story of this book. This is the shift in the way academic and scientific journals are produced. - - academic journals - +academic journals As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13523,9 +13842,7 @@ and science.
Rebuilding Free Culture: One Idea - - Creative Commons - +Creative Commons The same strategy could be applied to culture, as a response to the increasing control effected through law and technology. @@ -13582,6 +13899,7 @@ upon. Voluntary choice of individuals and creators will make this content available. And that content will in turn enable us to rebuild a public domain. +Garlick, Mia This is just one project among many within the Creative Commons. And of course, Creative Commons is not the only organization pursuing such @@ -13593,8 +13911,8 @@ aim is to build a movement of consumers and producers of content (content conducers, as attorney Mia Garlick calls them) who help build the public domain and, by their work, demonstrate the importance of the public domain to other creativity. -Garlick, Mia +Jefferson, Thomas The aim is not to fight the All Rights Reserved sorts. The aim is to complement them. The problems that the law creates for us as a culture @@ -13607,6 +13925,7 @@ freedoms, expressed in ways so that humans without lawyers can use them—are needed. Creative Commons gives people a way effectively to begin to build those rules. +booksfree on-line releases of Why would creators participate in giving up total control? Some participate to better spread their content. Cory Doctorow, for @@ -13632,6 +13951,8 @@ conclusion. The book's first printing was exhausted months before the publisher had expected. This first novel of a science fiction author was a total success. +Free for All (Wayner) +Wayner, Peter The idea that free content might increase the value of nonfree content was confirmed by the experience of another author. Peter Wayner, @@ -13642,9 +13963,8 @@ Commons license after the book went out of print. He then monitored used book store prices for the book. As predicted, as the number of downloads increased, the used book price for his book increased, as well. -Free for All (Wayner) -Wayner, Peter + Public Enemy rap music Leaphart, Walter @@ -13719,11 +14039,11 @@ creativity to spread more easily.
THEM, SOON -We will not reclaim a free culture by individual action alone. It will -also take important reforms of laws. We have a long way to go before -the politicians will listen to these ideas and implement these reforms. -But that also means that we have time to build awareness around the -changes that we need. +We will not reclaim a free culture +by individual action alone. It will also take important reforms of +laws. We have a long way to go before the politicians will listen to +these ideas and implement these reforms. But that also means that we +have time to build awareness around the changes that we need. In this chapter, I outline five kinds of changes: four that are general, @@ -13902,6 +14222,7 @@ evolve. The best way to ensure that the system evolves is to limit the Copyright Office's role to that of approving standards for marking content that have been crafted elsewhere. +CDscopyright marking of For example, if a recording industry association devises a method for marking CDs, it would propose that to the Copyright Office. The @@ -13990,7 +14311,9 @@ into copyright when the term itself is kept short. A clear and active idea/expression less necessary to navigate. - + +veterans' pensions + Keep it alive: Copyright should have to be renewed. Especially if the maximum term is long, the copyright owner @@ -14008,7 +14331,6 @@ available at If we make veterans suffer that burden, I don't see why we couldn't require authors to spend ten minutes every fifty years to file a single form. -veterans' pensions @@ -14046,10 +14368,7 @@ a more generous copyright law than Richard Nixon presided over?
3. Free Use Vs. Fair Use land ownership, air traffic and - - property rights - air traffic vs. - +property rightsair traffic vs. As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the @@ -14067,6 +14386,7 @@ work. Thus, if I write a book, and you base a movie on that book, I have the power to deny you the right to release that movie, even though that movie is not my writing. +Kaplan, Benjamin Congress granted the beginnings of this right in 1870, when it expanded the exclusive right of copyright to include a right to @@ -14078,7 +14398,6 @@ University Press, 1967), 32. The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law's greatest judges, Judge Benjamin Kaplan. -Kaplan, Benjamin
@@ -14220,6 +14539,8 @@ content that is not copyrighted or to get access that the copyright owner plainly endorses. +cassette recordingVCRs +VCRs Any reform of the law needs to keep these different uses in focus. It must avoid burdening type D even if it aims to eliminate type A. The @@ -14330,6 +14651,8 @@ unavailable because the work is forgotten. Either way, the aim of the law should be to facilitate the access to this content, ideally in a way that returns something to the artist. +booksout of print +booksresales of Again, the model here is the used book store. Once a book goes out of print, it may still be available in libraries and used book @@ -14402,15 +14725,13 @@ the Internet, or the p2p technologies that are currently harming content providers on the Internet, we should find a relatively simple way to compensate those who are harmed. +Promises to Keep (Fisher) The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher. - - artists - recording industry payments to - +artistsrecording industry payments to William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William @@ -14459,7 +14780,6 @@ distributed. On the basis of those numbers, then (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax. -Promises to Keep (Fisher) Fisher's proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, @@ -14475,10 +14795,8 @@ system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access. - - artists - recording industry payments to - + +artistsrecording industry payments to Fisher would balk at the idea of allowing the system to lapse. His aim is not just to ensure that artists are paid, but also to ensure that @@ -14492,7 +14810,10 @@ uses. A system that simply charges for access would not greatly burden semiotic democracy if there were few limitations on what one was allowed to do with the content itself. +Apple Corporation +MusicStore Real Networks +CDsprices of No doubt it would be difficult to calculate the proper measure of harm to an industry. But the difficulty of making that calculation @@ -14508,7 +14829,11 @@ Real Networks, offering music at just 79 cents a song. And no doubt there will be a great deal of competition to offer and sell music on-line. +cable television +televisioncable vs. broadcast Asia, commercial piracy in +piracyin Asia +film industryluxury theatres vs. video piracy in This competition has already occurred against the background of free music from p2p systems. As the sellers of cable television have known @@ -14610,6 +14935,8 @@ client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law. +Nimmer, Melville +Sonny Bono Copyright Term Extension Act (CTEA) (1998)Supreme Court challenge of The evidence of this bending is compelling. I'm attacked as a radical by many within the profession, yet the positions that I am @@ -14705,7 +15032,7 @@ permission produces. Again, this is the reality of Brezhnev's Russia. The law should regulate in certain areas of culture—but it should regulate culture only where that regulation does good. Yet lawyers - + rarely test their power, or the power they promote, against this simple pragmatic question: Will it do good? When challenged about the expanding reach of the law, the lawyer answers, Why not? @@ -14733,6 +15060,10 @@ 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. + + + +