X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/51d63fee8d77ed7615c482f284e0f3b4928fbcf1..1c42423c80bba6e2af12b19cbc084bf823987b9c:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index a61bce2..886b3e3 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -1,27 +1,29 @@ + by Petter Reinholdtsen 2012-2015 with input from Martin Borg. --> - ]> + Free Culture "freeculture" - HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN - CULTURE AND CONTROL CREATIVITY + How big media uses technology and the law to lock down + culture and control creativity + + 2015-10-15 - 2004-03-25 + 1 Version 2004-02-10 @@ -30,6 +32,20 @@ Lawrence Lessig + - + - - 1-59420-006-8 + 978-82-8067-010-6 2003063276 + http://free-culture.cc/ + - - - - -You can buy a copy of this book by clicking on one of the links below: - - -Amazon -B&N -Penguin - - - - - - -ALSO BY LAWRENCE LESSIG - - -The Future of Ideas: The Fate of the Commons in a Connected World - - -Code: And Other Laws of Cyberspace - + +Also by Lawrence Lessig + + + + + +The USA is lesterland: The nature of congressional corruption (2014) + + +Republic, lost: How money corrupts Congress - and a plan to stop it (2011) + + +Remix: Making art and commerce thrive in the hybrid economy (2008) + + +Code: Version 2.0 (2006) + + +The Future of Ideas: The Fate of the Commons in a Connected World (2001) + + +Code: And Other Laws of Cyberspace (1999) + + - - -THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New -York, New York - - -Copyright © Lawrence Lessig. All rights reserved. - - -Excerpt from an editorial titled The Coming of Copyright Perpetuity, -The New York Times, January 16, 2003. Copyright -© 2003 by The New York Times Co. Reprinted with permission. - - -Cartoon in by Paul Conrad, copyright Tribune -Media Services, Inc. All rights reserved. Reprinted with permission. - - -Diagram in courtesy of the office of FCC -Commissioner, Michael J. Copps. - - -Library of Congress Cataloging-in-Publication Data - - -Lessig, Lawrence. -Free culture : how big media uses technology and the law to lock down -culture and control creativity / Lawrence Lessig. - - -p. cm. - - -Includes index. - - -ISBN 1-59420-006-8 (hardcover) - - - -1. Intellectual property—United States. 2. Mass media—United States. - - -3. Technological innovations—United States. 4. Art—United States. I. Title. - - -KF2979.L47 - - -343.7309'9—dc22 - - -This book is printed on acid-free paper. - - -Printed in the United States of America - - -1 3 5 7 9 10 8 6 4 - - -Designed by Marysarah Quinn - - - -&translationblock; - - - -Without limiting the rights under copyright reserved above, no part of -this publication may be reproduced, stored in or introduced into a -retrieval system, or transmitted, in any form or by any means -(electronic, mechanical, photocopying, recording or otherwise), -without the prior written permission of both the copyright owner and -the above publisher of this book. - - -The scanning, uploading, and distribution of this book via the -Internet or via any other means without the permission of the -publisher is illegal and punishable by law. Please purchase only -authorized electronic editions and do not participate in or encourage -electronic piracy of copyrighted materials. Your support of the -author's rights is appreciated. - - - - + + + -To Eric Eldred—whose work first drew me to this cause, and for whom +To Eric Eldred — whose work first drew me to this cause, and for whom it continues still. + @@ -321,8 +256,9 @@ c INDEX -PREFACE +Preface Pogue, David +Code (Lessig) At the end of his review of my first book, Code: And Other Laws of Cyberspace, David @@ -475,8 +411,8 @@ book is written. - -INTRODUCTION + +Introduction Wright brothers On December 17, 1903, on a windy North Carolina beach for just @@ -822,6 +758,7 @@ has introduced. Barlow, Joel +culturefree culture culturecommercial vs. noncommercial Webster, Noah @@ -861,8 +798,8 @@ State copyright law historically protected not just the commercial interest in publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis -D. Brandeis, The Right to Privacy, Harvard Law Review 4 (1890): 193, -198–200. +D. Brandeis, The Right to Privacy, Harvard +Law Review 4 (1890): 193, 198–200. Brandeis, Louis D. This is also, of course, an important part of creativity and culture, @@ -1000,9 +937,9 @@ independent. We have built a kind of cultural nobility; those within the noble class live easily; those outside it don't. But it is nobility of any form that is alien to our tradition. - + -The story that follows is about this war. Is it not about the +The story that follows is about this war. It is not about the centrality of technology to ordinary life. I don't believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group, for neither do I believe in a devil, corporate or @@ -1132,7 +1069,7 @@ to which most of us remain oblivious. -<quote>PIRACY</quote> +<quote>Piracy</quote> copyright lawEnglish @@ -1207,6 +1144,7 @@ piracy. ASCAP Dreyfuss, Rochelle Girl Scouts +creative propertyintellectual property rights creative propertyif value, then right theory of if value, then right theory @@ -1243,6 +1181,7 @@ creative property. It has never taken hold within our law. copyright lawon republishing vs. transformation of original work +creativityinnovation creativitylegal restrictions on Instead, in our tradition, intellectual property is an instrument. It @@ -1315,7 +1254,7 @@ context the current battles about behavior labeled piracy. -CHAPTER ONE: Creators +Chapter One: Creators animated cartoons cartoon films filmsanimated @@ -1491,6 +1430,7 @@ culture around us and makes it something different. +copyrightcopyright law copyrightduration of public domaindefined public domaintraditional term for conversion to @@ -1636,7 +1576,7 @@ flourish. As American graphic novelist Judd Winick said to me, The early days of comics in America are very much like what's going on in Japan now. … American comics were born out of copying each -other. … That's how [the artists] learn to draw—by going into comic +other. … That's how [the artists] learn to draw — by going into comic books and not tracing them, but looking at them and copying them and building from them. @@ -1732,8 +1672,8 @@ The term intellectual property is of relatively recent or Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), 293 n. 26. The term accurately -describes a set of property rights—copyright, patents, -trademark, and trade-secret—but the nature of those rights is +describes a set of property rights — copyright, patents, +trademark, and trade-secret — but the nature of those rights is very different. A large, diverse society cannot survive without property; a large, @@ -1844,7 +1784,7 @@ free culture. It is becoming much less so. -CHAPTER TWO: <quote>Mere Copyists</quote> +Chapter Two: <quote>Mere Copyists</quote> Daguerre, Louis camera technology photography @@ -2078,6 +2018,8 @@ realized. +digital cameras +Just Think! If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses @@ -2094,6 +2036,9 @@ schools and enable three hundred to five hundred children to learn something about media by doing something with media. By doing, they think. By tinkering, they learn. +educationin media literacy +media literacy +expression, technologies ofmedia literacy and These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -2120,6 +2065,7 @@ deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it. + This may seem like an odd way to think about literacy. For most people, literacy is about reading and writing. Faulkner and Hemingway @@ -2163,8 +2109,8 @@ from reading a book about it. One learns to write by writing and then reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. -Crichton, Michael Daley, Elizabeth +Crichton, Michael This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern @@ -2276,8 +2222,8 @@ close to the lives of these students. The project gave them a tool and empowered them to be able to both understand it and talk about it, Barish explained. That tool succeeded in creating expression—far more successfully and powerfully than could have -been created using only text. If you had said to these students, `you -have to do it in text,' they would've just thrown their hands up and +been created using only text. If you had said to these students, you +have to do it in text, they would've just thrown their hands up and gone and done something else, Barish described, in part, no doubt, because expressing themselves in text is not something these students can do well. Yet neither is text a form in which @@ -2285,6 +2231,7 @@ can do well. Yet neither is text a form in which this message depended upon its connection to this form of expression. +Daley, Elizabeth @@ -2317,6 +2264,7 @@ make a little movie. But instead, really help you take these elements that you understand, that are your language, and construct meaning about the topic.… +Barish, Stephanie That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they @@ -2332,9 +2280,11 @@ your hoops. They actually needed to use a language that they didn't speak very well. But they had come to understand that they had a lot of power with this language. - + + + + September 11, 2001, terrorist attacks of World Trade Center news coverage @@ -2360,6 +2310,9 @@ entertainment is tragedy. ABC CBS +Cyber Rights (Godwin) +Godwin, Mike +Internetnews events on But in addition to this produced news about the tragedy of September 11, those of us tied to the Internet came to see a very different @@ -2407,6 +2360,7 @@ 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 @@ -2539,8 +2493,8 @@ more instances of the same misspeaking emerged. Finally, the stor broke back into the mainstream press. In the end, Lott was forced to resign as senate majority leader. -Noah Shachtman, With Incessant Postings, a Pundit Stirs the Pot, New -York Times, 16 January 2003, G5. +Noah Shachtman, With Incessant Postings, a Pundit Stirs the +Pot, New York Times, 16 January 2003, G5. mediacommercial imperatives of @@ -2780,13 +2734,14 @@ natural tendencies of today's digital kids. … We're building an architecture that unleashes 60 percent of the brain [and] a legal system that closes down that part of the brain. - We're building a technology that takes the magic of Kodak, mixes moving images and sound, and adds a space for commentary and an opportunity to spread that creativity everywhere. But we're building the law to close down that technology. +Kahle, Brewster + No way to run a culture, as Brewster Kahle, whom we'll meet in chapter , @@ -2795,7 +2750,7 @@ quipped to me in a rare moment of despondence. -CHAPTER THREE: Catalogs +Chapter Three: Catalogs Jordan, Jesse RPIRensselaer Polytechnic Institute (RPI) Rensselaer Polytechnic Institute (RPI) @@ -2839,7 +2794,6 @@ 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 @@ -3054,7 +3008,7 @@ wrong message. And he wants to correct the record. -CHAPTER FOUR: <quote>Pirates</quote> +Chapter Four: <quote>Pirates</quote> piracyin development of content industry if value, then right theory @@ -3070,6 +3024,9 @@ now.
Film +Hollywood film industryfilm industry +Hollywood film industry +patentson film technology The film industry of Hollywood was built by fleeing pirates. @@ -3132,11 +3089,12 @@ Working Paper No. 159. -The Napsters of those days, the independents, were companies like -Fox. And no less than today, these independents were vigorously -resisted. Shooting was disrupted by machinery stolen, and -`accidents' resulting in loss of negatives, equipment, buildings and -sometimes life and limb frequently occurred. +The Napsters of those days, the independents, were +companies like Fox. And no less than today, these independents were +vigorously resisted. Shooting was disrupted by machinery +stolen, and accidents resulting in loss of negatives, +equipment, buildings and sometimes life and limb frequently +occurred. Marc Wanamaker, The First Studios, The Silents Majority, archived at link #12. @@ -3147,6 +3105,7 @@ filmmakers there could pirate his inventions without fear of the law. And the leaders of Hollywood filmmaking, Fox most prominently, did just that. + Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the @@ -3157,6 +3116,7 @@ time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edison's creative property. +
Recorded Music @@ -3197,6 +3157,8 @@ then, I could effectively pirate someone else's song without paying its composer anything. +Kittredge, Alfred +music publishing The composers (and publishers) were none too happy about @@ -3214,7 +3176,7 @@ composer and publisher without any regard for [their] rights. To Amend and Consolidate the Acts Respecting Copyright: Hearings on -S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th +S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in Legislative History of the Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South @@ -3223,6 +3185,7 @@ Hackensack, N.J.: Rothman Reprints, 1976). + Sousa, John Philip The innovators who developed the technology to record other @@ -3246,9 +3209,14 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). + American Graphophone Company player pianos sheet music +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawstatutory licenses in +recording industrystatutory license system in These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the @@ -3264,7 +3232,7 @@ Perforating Company of New York). In any case, the innovators argued, the job of Congress was to consider first the interest of [the public], whom they represent, and whose servants they are. All talk about -`theft,' the general counsel of the American Graphophone Company +theft, the general counsel of the American Graphophone Company wrote, is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute. @@ -3274,6 +3242,7 @@ memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). +cover songs The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the @@ -3289,6 +3258,8 @@ copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. +compulsory license +statutory licenses American law ordinarily calls this a compulsory license, but I will refer to it as a statutory license. A statutory license is a license @@ -3297,7 +3268,7 @@ Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. -Grisham, John +Grisham, John This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if @@ -3308,6 +3279,7 @@ have no permission to use Grisham's work except with permission of Grisham. +Beatles But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording @@ -3324,13 +3296,15 @@ creativity. Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and -H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st +H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). -Beatles + + + While the recording industry has been quite coy about this recently, historically it has been quite a supporter of the statutory license for @@ -3360,6 +3334,10 @@ March 1967). I am grateful to Glenn Brown for drawing my attention to this report. + + + + By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit. @@ -3367,7 +3345,8 @@ creative work, the record producers, and the public, benefit.
Radio -artistsrecording industry payments to +recording industryradio broadcast and +artistsrecording industry payments to Radio was also born of piracy. @@ -3391,6 +3370,7 @@ As I described above, the law gives the composer (or copyright holder) an exclusive right to public performances of his work. The radio station thus owes the composer money for that performance. +radiomusic recordings played on But when the radio station plays a record, it is not only performing a copy of the composer's work. The radio station is @@ -3431,6 +3411,8 @@ the sale of her CDs. The public performance of her recording is not a pirate the value of Madonna's work without paying her anything. + + No doubt, one might argue that, on balance, the recording artists @@ -3440,7 +3422,7 @@ ordinarily gives the creator the right to make this choice. By making the choice for him or her, the law gives the radio station the right to take something for nothing. - +
Cable TV @@ -3586,7 +3568,7 @@ last. Every generation—until now.
-CHAPTER FIVE: <quote>Piracy</quote> +Chapter Five: <quote>Piracy</quote> There is piracy of copyrighted material. Lots of it. This piracy comes in many forms. The most @@ -3739,6 +3721,7 @@ permission of a property owner. That is exactly what property mea Asia, commercial piracy in piracyin Asia +open-source softwarefree software/open-source software (FS/OSS) free software/open-source software (FS/OSS) GNU/Linux operating system Linux operating system @@ -3837,9 +3820,11 @@ 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 +Fanning, Shawn +innovationcreativity +innovation +Napster 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 @@ -3860,6 +3845,9 @@ Christensen's ideas, see Lawrence Lessig, Future, 89&ndas put together components that had been developed independently. +Kazaa +Napsternumber of registrations on +Napsterreplacement of The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the @@ -3880,6 +3868,7 @@ users to make content available to any number of other users. With a p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends. + According to a number of estimates, a huge proportion of Americans have tasted file-sharing technology. A study by Ipsos-Insight in @@ -3913,6 +3902,8 @@ carefully than the polarized voices around this debate usually do—the kinds of sharing that file sharing enables, and the kinds of harm it entails. +peer-to-peer (p2p) file sharingfour types of +Napsterrange of content on File sharers share different kinds of content. We can divide these @@ -3966,6 +3957,7 @@ to content that is not copyrighted or that the copyright owner wants to give away. + How do these different types of sharing balance out? @@ -4003,6 +3995,7 @@ cassette recording is a good example. As a study by Cap Gemini Ernst technology, the labels fought it. cassette recording +DAT (digital audio tape) 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 @@ -4022,10 +4015,11 @@ 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 -turnaround. In the end, Cap Gemini concludes, the `crisis' … was -not the fault of the tapers—who did not [stop after MTV came into +Yet soon thereafter, and before Congress was given an opportunity to +enact regulation, MTV was launched, and the industry had a record +turnaround. In the end, Cap Gemini concludes, +the crisis … was not the fault of the +tapers—who did not [stop after MTV came into being]—but had to a large extent resulted from stagnation in musical innovation at the major labels. @@ -4158,6 +4152,7 @@ publisher or the distributor has decided it no longer makes economic sense to the company to make it available. booksresales of +used record sales In real space—long before the Internet—the market had a simple @@ -4186,8 +4181,9 @@ money from the content they sell; but as with cable companies before statutory licensing, they don't have to pay the copyright owner for the content they sell. -Bernstein, Leonard booksout of print +Bernstein, Leonard +Internetbooks on Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because the person making @@ -4210,6 +4206,8 @@ stopped, do you think that libraries and used book stores should be shut as well? booksfree on-line releases of +Doctorow, Cory +Down and Out in the Magic Kingdom (Doctorow) Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur—the sharing of content that copyright owners @@ -4241,6 +4239,7 @@ understandably says, This is how much we've lost, we must also as efficiencies? What is the content that otherwise would be unavailable? + For unlike the piracy I described in the first section of this chapter, much of the piracy that file sharing enables is plainly @@ -4259,15 +4258,17 @@ found only with time. But isn't the war just a war against illegal sharing? Isn't the target just what you call type A sharing? +copyright infringement lawsuitszero tolerance in +Napsterinfringing material blocked by +peer-to-peer (p2p) file sharinginfringement protections in -You would think. And we should hope. But so far, it is not. The - effect +You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing alone has been felt far -beyond that one class of sharing. That much is obvious from the - Napster -case itself. When Napster told the district court that it had - developed -a technology to block the transfer of 99.4 percent of identified +beyond that one class of sharing. That much is obvious from the +Napster case itself. When Napster told the district court that it had +developed a technology to block the transfer of 99.4 percent of +identified + infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements @@ -4283,6 +4284,8 @@ account of the litigation and its toll on Napster, see Joseph Menn, York: Crown Business, 2003), 269–82. + + If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement. There is no way to @@ -4294,6 +4297,7 @@ The court's ruling means that we as a society must lose the benefits of p2p, even for the totally legal and beneficial uses they serve, simply to assure that there are zero copyright infringements caused by p2p. + Zero tolerance has not been our history. It has not produced the content industry that we know today. The history of American law has @@ -4337,6 +4341,7 @@ companies the right to the content, so long as they paid the statutory price. +copyright lawtwo central goals of @@ -4358,8 +4363,9 @@ Congress chose a path that would assure -Betamax +Betamax cassette recordingVCRs +SonyBetamax technology developed by In the same year that Congress struck this balance, two major producers and distributors of film content filed a lawsuit against @@ -4391,13 +4397,14 @@ for the architecture it chose. Congress, U.S.on copyright laws Congress, U.S.on VCR technology +Valenti, Jackon VCR technology MPAA president Jack Valenti became the studios' most vocal -champion. Valenti called VCRs tapeworms. He warned, When there are -20, 30, 40 million of these VCRs in the land, we will be invaded by -millions of `tapeworms,' eating away at the very heart and essence of -the most precious asset the copyright owner has, his -copyright. +champion. Valenti called VCRs tapeworms. He warned, +When there are 20, 30, 40 million of these VCRs in the land, we +will be invaded by millions of tapeworms, eating away +at the very heart and essence of the most precious asset the copyright +owner has, his copyright. Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st @@ -4431,6 +4438,8 @@ Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti). + + It took eight years for this case to be resolved by the Supreme Court. In the interim, the Ninth Circuit Court of Appeals, which @@ -4449,6 +4458,7 @@ technology. Kozinski, Alex + But the Supreme Court reversed the decision of the Ninth Circuit. @@ -4524,6 +4534,7 @@ together, a pattern is clear: In each case throughout our history, a new technology changed the way content was distributed. +DAT (digital audio tape) These are the most important instances in our history, but there are other cases as well. The technology of digital audio tape (DAT), for example, @@ -4620,10 +4631,11 @@ 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? +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 @@ -4635,7 +4647,7 @@ is protected. -<quote>PROPERTY</quote> +<quote>Property</quote> @@ -4716,8 +4728,12 @@ from the implications that the copyright warriors would have us draw. -CHAPTER SIX: Founders +Chapter Six: Founders booksEnglish copyright law developed for +copyright lawdevelopment of +copyright lawEnglish +England, copyright laws developed in +United Kingdomhistory of copyright law in Branagh, Kenneth Henry V Shakespeare, William @@ -4766,7 +4782,9 @@ 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 +British Parliament +copyrightduration of +copyrightrenewability of Statute of Anne (1710) Now, there's something puzzling about the year 1774 to anyone who @@ -4787,6 +4805,8 @@ Tonson's control in 1774? +lawcommon vs. positive +positive law Licensing Act (1662) The reason is that the English hadn't yet agreed on what a copyright @@ -4799,6 +4819,8 @@ published. But after it expired, there was no positive law that said that the publishers, or Stationers, had an exclusive right to print books. + +common law There was no positive law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to @@ -4811,6 +4833,11 @@ background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law. + +Conger +British Parliament +Scottish publishers +Statute of Anne (1710) This question was important to the publishers, or booksellers, as they were called, because there was growing competition from foreign @@ -4823,6 +4850,7 @@ to again give them exclusive control over publishing. That demand ultimately resulted in the Statute of Anne. +copyrightas narrow monopoly right The Statute of Anne granted the author or proprietor of a book an exclusive right to print that book. In an important limitation, @@ -4832,12 +4860,16 @@ copyright expired, and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed. + Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right at all? + +Shakespeare, William +Romeo and Juliet (Shakespeare) For the booksellers, and the authors whom they represented, had a very strong claim. Take Romeo and Juliet as an example: That play @@ -4856,6 +4888,7 @@ about the notion of copyright that existed at the time of the Statute of Anne. Second, we have to see something important about booksellers. +copyrightusage restrictions attached to First, about copyright. In the last three hundred years, we have come to apply the concept of copyright ever more broadly. But in 1710, it @@ -4872,6 +4905,7 @@ the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on. Branagh, Kenneth +Shakespeare, William So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the @@ -4883,6 +4917,7 @@ allowed to make his films. The copy-right was only an exclusive right to print—no less, of course, but also no more. Henry VIII, King of England +monopoly, copyright as Statute of Monopolies (1656) Even that limited right was viewed with skepticism by the British. @@ -4906,7 +4941,10 @@ 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 +Milton, John +booksellers, English +Conger +copyrightduration of 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. @@ -4927,6 +4965,8 @@ Philip Wittenberg, The Protection and Marketing of Literary Property (New York: J. Messner, Inc., 1937), 31. +Enlightenment +knowledge, freedom of Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment @@ -4935,6 +4975,7 @@ generally. The idea that knowledge should be free was a hallmark of the time, and these powerful commercial interests were interfering with that idea. +British Parliament To balance this power, Parliament decided to increase competition among booksellers, and the simplest way to do that was to spread the @@ -4947,6 +4988,9 @@ to fight the power of the booksellers. The limitation on terms was an indirect way to assure competition among publishers, and thus the construction and spread of culture. +Statute of Anne (1710) + +copyrightin perpetuity When 1731 (1710 + 21) came along, however, the booksellers were getting anxious. They saw the consequences of more competition, and @@ -4982,6 +5026,11 @@ al., 8, Eldred v. Ashcroft, 537 U. + + +common law +lawcommon vs. positive +positive law Having failed in Parliament, the publishers turned to the courts in a series of cases. Their argument was simple and direct: The Statute of @@ -4997,7 +5046,7 @@ 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 @@ -5014,6 +5063,9 @@ Vaidhyanathan, 37–48. The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. +Donaldson, Alexander +Patterson, Raymond +Scottish publishers The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander @@ -5023,6 +5075,8 @@ For a compelling account, see David Saunders, Authorship and Copyrigh (London: Routledge, 1992), 62–69. +Statute of Anne (1710) +Conger Boswell, James Erskine, Andrew @@ -5045,6 +5099,7 @@ of contemporary Scottish poems with Donaldson. Ibid., 93. +common law When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold @@ -5060,11 +5115,17 @@ His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection. + +Millar v. Taylor The London booksellers quickly brought suit to block piracy like Donaldson's. A number of actions were successful against the pirates, the most important early victory being Millar v. Taylor. + + +Thomson, James +copyrightin perpetuity Seasons, The (Thomson) Taylor, Robert @@ -5092,6 +5153,10 @@ reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them. + + + +British Parliament Considered as a matter of abstract justice—reasoning as if justice were just a matter of logical deduction from first @@ -5107,11 +5172,16 @@ believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. +Donaldson, Alexander +Scottish publishers The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. +Thomson, James Beckett, Thomas +House of Lords +Supreme Court, U.S.House of Lords vs. Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included @@ -5126,6 +5196,10 @@ the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before. + + +Donaldson v. Beckett +common law As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of attention throughout Britain. Donaldson's lawyers @@ -5136,6 +5210,7 @@ publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected. + The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the law lords, @@ -5143,6 +5218,9 @@ members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted. + +copyrightin perpetuity +public domainEnglish legal establishment of The reports about the law lords' votes are mixed. On some counts, it looks as if perpetual copyright prevailed. But there is no ambiguity @@ -5153,6 +5231,11 @@ Whatever one's understanding of the common law, now a copyright was fixed for a limited time, after which the work protected by copyright passed into the public domain. +Bacon, Francis +Bunyan, John +Johnson, Samuel +Milton, John +Shakespeare, William The public domain. Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in @@ -5162,12 +5245,13 @@ born. For the first time in Anglo-American history, the legal control over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint. -Bacon, Francis -Bunyan, John -Johnson, Samuel -Milton, John -Shakespeare, William + + + + + +Scottish publishers It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, @@ -5182,6 +5266,7 @@ and illuminations. Rose, 97. + In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The Morning Chronicle @@ -5202,6 +5287,8 @@ Ibid. +House of Lords +free cultureEnglish legal establishment of Ruined is a bit of an exaggeration. But it is not an exaggeration to @@ -5224,19 +5311,32 @@ 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. - + +British Parliament 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 +Chapter Seven: Recorders +copyright lawfair use and +documentary film +Else, Jon +fair usein documentary film +filmsfair use of copyrighted material in Jon Else is a filmmaker. He is best known for his documentaries and has been very successful in spreading @@ -5249,6 +5349,8 @@ Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today. +Wagner, Richard +San Francisco Opera In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. @@ -5256,8 +5358,8 @@ Stagehands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage. -San Francisco Opera +Simpsons, The During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set. @@ -5267,6 +5369,8 @@ and the opera company played Wagner, was The Simpsons. As it, this touch of cartoon helped capture the flavor of what was special about the scene. + +filmsmultiple copyrights associated with Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. @@ -5274,7 +5378,8 @@ For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless fair use or some other privilege applies. -Gracie Films +Gracie Films +Groening, Matt Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-halfsecond image @@ -5282,7 +5387,7 @@ on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program. -Gracie Films +Fox (film company) Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. @@ -5290,6 +5395,7 @@ Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox. + Then, as Else told me, two things happened. First we discovered … that Matt Groening doesn't own his own creation—or at @@ -5298,7 +5404,7 @@ 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 +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 @@ -5307,6 +5413,7 @@ asking for your educational rate on this. That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. +Wagner, Richard I wanted to make sure I had my facts straight, he told me. Yes, you have your facts straight, she said. It would cost $10,000 to use the @@ -5319,6 +5426,7 @@ if you quote me, I'll turn you over to our attorneys. As an assistant to Herrera told Else later on, They don't give a shit. They just want the money. + San Francisco Opera Day After Trinity, The @@ -5363,11 +5471,14 @@ Else's use of just 4.5 seconds of an indirect shot of a SimpsonsThe Simpsons—and fair use does not require the permission of anyone. + + So I asked Else why he didn't just rely upon fair use. Here's his reply:
+fair uselegal intimidation tactics against The Simpsons fiasco was for me a great lesson in the gulf between what lawyers find irrelevant in some abstract sense, and what is crushingly @@ -5377,7 +5488,9 @@ fair use in an absolute legal sense. But I couldn't rely on the concept in any concrete way. Here's why: - + +Errors and Omissions insurance + Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed @@ -5386,8 +5499,10 @@ shot in the film. They take a dim view of fair use, and a claim o fair use can grind the application process to a halt. -Star Wars +Fox (film company) +Groening, Matt Lucas, George +Star Wars I probably never should have asked Matt Groening in the first @@ -5409,7 +5524,9 @@ life, regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them. - + + + The question of fair use usually comes up at the end of the @@ -5418,6 +5535,7 @@ money.
+ In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But @@ -5433,10 +5551,16 @@ publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not. + + + + + + -CHAPTER EIGHT: Transformers +Chapter Eight: Transformers Allen, Paul Alben, Alex Microsoft @@ -5682,9 +5806,12 @@ room of over 250 well-entertained judges. Taking an ominous tone, he began his talk with a question: Do you know how many federal laws were just violated in this room? -Boies, David -Alben, Alex +Alben, Alex +Boies, David +Court of AppealsNinth Circuit +Ninth Circuit Court of Appeals +Napster For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the rights to these clips; technically, what they had done violated the @@ -5794,7 +5921,7 @@ curse, reserved for the few. -CHAPTER NINE: Collectors +Chapter Nine: Collectors archives, digital bots @@ -5848,6 +5975,7 @@ perhaps, you also have the power to find what you don't remember and what others might prefer you forget. Iraq war +Kahle, Brewster 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, @@ -5888,6 +6016,7 @@ think that we have scads of archives of newspapers from tiny towns around the world, yet there is but one copy of the Internet—the one kept by the Internet Archive. +Kahle, Brewster Brewster Kahle is the founder of the Internet Archive. He was a very successful Internet entrepreneur after he was a successful computer @@ -5968,7 +6097,7 @@ all—in the library archive of the film company. Doug Herrick, Toward a National Film Collection: Motion Pictures at the Library of Congress, Film Library Quarterly 13 nos. 2–3 (1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film -Preservation in the United States ( Jefferson, N.C.: McFarland & +Preservation in the United States (Jefferson, N.C.: McFarland & Co., 1992), 36. @@ -6116,6 +6245,10 @@ Kahle describes,
bookstotal number of +filmstotal number of +music recordingspeer-to-peer (p2p) file sharing +music recordingsrecording industry +music recordingstotal 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 @@ -6155,12 +6288,14 @@ someone's property. And the law of property restricts the freedom that Kahle and others would exercise. + -CHAPTER TEN: <quote>Property</quote> +Chapter Ten: <quote>Property</quote> Johnson, Lyndon Kennedy, John F. +Valenti, Jackbackground of Jack Valenti has been the president of the Motion Picture Association of America since 1966. He first came @@ -6172,10 +6307,10 @@ 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 +Sony Pictures Entertainment Universal Pictures Warner Brothers @@ -6259,6 +6394,7 @@ have no reasonable connection to our actual legal tradition, even if the subtle pull of his Texan charm has slowly redefined that tradition, at least in Washington. + While creative property is certainly property in a nerdy and precise sense that lawyers are trained to understand, @@ -6385,6 +6521,12 @@ ought to be. Not whether artists should be paid, but whether institutions designed to assure that artists get paid need also control how culture develops. +Code (Lessig) +Lessig, Lawrence +free culturefour modalities of constraint on +regulationfour modalities of +copyright lawas ex post regulation modality +lawas constraint modality @@ -6397,9 +6539,10 @@ how four different modalities of regulation interact to support or weaken the right or regulation. I represented it with this diagram:
-How four different modalities of regulation interact to support or weaken the right or regulation. - + +
+Madonna At the center of this picture is a regulated dot: the individual or group that is the target of regulation, or the holder of a right. (In @@ -6429,7 +6572,7 @@ could easily be more harsh than many of the punishments imposed by the state. The mark of the difference is not the severity of the rule, but the source of the enforcement. -market constraints +market constraints The market is a third type of constraint. Its constraint is effected through conditions: You can do X if you pay Y; you'll be paid M if you @@ -6456,6 +6599,10 @@ blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint. + + + +lawas constraint modality @@ -6473,10 +6620,11 @@ 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 architecture, constraint effected through market constraints norms, regulatory influence of +driving speed, constraints on +speeding, constraints on So, for example, consider the freedom to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that @@ -6504,6 +6652,7 @@ other three is more timidly expressed. See Lawrence Lessig, Code: An Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95; Lawrence Lessig, The New Chicago School, Journal of Legal Studies, June 1998. +Code (Lessig) The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality. Thus, the law might be used @@ -6517,11 +6666,12 @@ strict—a federal requirement that states decrease the speed limit, for example—so as to decrease the attractiveness of fast driving. - - + +
-Law has a special role in affecting the three. - + + +
architecture, constraint effected through @@ -6566,10 +6716,13 @@ effective liberty that each of these groups might face. Commons, John R. architecture, constraint effected through market constraints +Code (Lessig) +
Why Hollywood Is Right +copyrightfour regulatory modalities on The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress @@ -6581,11 +6734,13 @@ Let's say this is the picture of copyright's regulation before the Internet:
-Copyright's regulation before the Internet. - + + +
-market constraints -norms, regulatory influence of +architecture, constraint effected through +lawas constraint modality +norms, regulatory influence of There is balance between law, norms, market, and architecture. The law @@ -6599,6 +6754,10 @@ uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement. +Internetcopyright regulatory balance lost with +peer-to-peer (p2p) file sharingregulatory balance lost in +market constraints +MP3s Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, @@ -6607,6 +6766,9 @@ architecture relax the regulation of copyright, norms pile on. The happy balance (for the warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet. + + +technologyestablished industries threatened by changes in Thus the sense of, and justification for, the warriors' response. Technology has changed, the warriors say, and the effect of this @@ -6618,9 +6780,12 @@ after the fall of Saddam, but this time no government is justifying the looting that results.
-effective state of anarchy after the Internet. - + + +
+Commerce, U.S. Department of +regulationas establishment protectionism Neither this analysis nor the conclusions that follow are new to the warriors. Indeed, in a White Paper prepared by the Commerce @@ -6633,6 +6798,9 @@ innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright. + + +farming steel industry This mixed strategy is just what copyright needed—if it was to @@ -6651,6 +6819,9 @@ to bail them out when a virus (architecture) devastates their crop. Unions have no hesitation appealing to the government to bail them out when imports (market) wipe out the U.S. steel industry. + + +Brown, John Seely Thus, there's nothing wrong or surprising in the content industry's campaign to protect itself from the harmful consequences of a @@ -6659,9 +6830,14 @@ the changing technology of the Internet has not had a profound effect on the content industry's way of doing business, or as John Seely Brown describes it, its architecture of revenue. -railroad industry advertising +televisionadvertising on +commercials camera technology +digital cameras +Kodak cameras +railroad industry +remote channel changers But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because @@ -6686,14 +6862,19 @@ railroads. Does anyone think we should ban trucks from roads for the purpose of protecting the railroads? Closer to the subject of this book, remote channel changers have weakened the stickiness of television advertising (if a boring -commercial comes on the TV, the remote makes it easy to surf ), and it +commercial comes on the TV, the remote makes it easy to surf), and it may well be that this change has weakened the television advertising market. But does anyone believe we should regulate remotes to reinforce commercial television? (Maybe by limiting them to function only once a second, or to switch to only ten channels within an hour?) +free market, technological changes in Brezhnev, Leonid +FM radio +radioFM spectrum of Gates, Bill +market competition +RCA The obvious answer to these obviously rhetorical questions is no. In a free society, with a free market, supported by free enterprise and @@ -6725,6 +6906,9 @@ changes they create, in response to the request of those hurt by changing technology, are changes that preserve the incentives and opportunities for innovation and change. +Constitution, U.S.First Amendment to +First Amendment +speech, freedom ofconstitutional guarantee of In the context of laws regulating speech—which include, obviously, copyright law—that duty is even stronger. When the @@ -6739,6 +6923,8 @@ Congress is being asked to pass laws that would abridge the freed of speech, it should ask— carefully—whether such regulation is justified. + + My argument just now, however, has nothing to do with whether @@ -6751,8 +6937,10 @@ effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. +Müller, Paul Hermann DDT -Müller, Paul Hermann +insecticide, environmental consequences of +farming In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul Hermann Müller won the Nobel Prize for his work @@ -6766,7 +6954,8 @@ production is a good thing. No one doubts that the work of Müller was important and valuable and probably saved lives, possibly millions. Carson, Rachel -Silent Sprint (Carson) +Silent Spring (Carson) +environmentalism But in 1962, Rachel Carson published Silent Spring, which argued that DDT, whatever its primary benefits, was also having unintended @@ -6782,7 +6971,9 @@ problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve. + Boyle, James +copyright lawinnovative freedom balanced with fair compensation in It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an environmentalism for @@ -6804,6 +6995,7 @@ protecting copyright not an endorsement of anarchy or an attack on authors. It is an environment of creativity that we seek, and we should be aware of our actions' effects on the environment. + My argument, in the balance of this chapter, tries to map exactly this effect. No doubt the technology of the Internet has had a dramatic @@ -6815,32 +7007,48 @@ not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity. + In a line: To kill a gnat, we are spraying DDT with consequences for free culture that will be far more devastating than that this gnat will be lost. + +
Beginnings +Constitution, U.S.on creative property +Constitution, U.S.copyright purpose established in +Constitution, U.S.Progress Clause of +copyrightconstitutional purpose of +copyrightduration of +creative propertyconstitutional tradition on +Progress Clause +copyrightduration of America copied English copyright law. Actually, we copied and improved English copyright law. Our Constitution makes the purpose of creative property rights clear; its express limitations reinforce the English aim to avoid overly powerful publishers. +Congress, U.S.in constitutional Progress Clause The power to establish creative property rights is granted to Congress in a way that, for our Constitution, at least, is very odd. Article I, section 8, clause 8 of our Constitution states that: +
Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. + +
+ We can call this the Progress Clause, for notice what this clause does not say. It does not say Congress has the power to grant creative property rights. It says that Congress has the power @@ -6848,6 +7056,9 @@ does not say. It does not say Congress has the power to grant purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors. + +copyright lawas protection of creators +copyright lawhistory of American The Progress Clause expressly limits the term of copyrights. As we saw in chapter , @@ -6858,6 +7069,9 @@ followed the English for a similar purpose. Indeed, unlike the English, the framers reinforced that objective, by requiring that copyrights extend to Authors only. +Senate, U.S. +Constitution, U.S.structural checks and balances of +electoral college The design of the Progress Clause reflects something about the Constitution's design in general. To avoid a problem, the framers @@ -6873,6 +7087,8 @@ case, a structure built checks and balances into the constitutional frame, structured to prevent otherwise inevitable concentrations of power. + + I doubt the framers would recognize the regulation we call copyright today. The scope of that regulation is far beyond anything they ever @@ -6880,6 +7096,10 @@ considered. To begin to understand what they did, we need to put our copyright in context: We need to see how it has changed in the 210 years since they first struck its design. + + + +copyrightfour regulatory modalities on Some of these changes come from the law: some in light of changes in technology, and some in light of changes in technology given a @@ -6888,15 +7108,15 @@ particular concentration of market power. In terms of our model, we started here:
-Copyright's regulation before the Internet. - + +
We will end here:
-<quote>Copyright</quote> today. - + +
Let me explain how. @@ -6905,6 +7125,11 @@ Let me explain how.
Law: Duration +copyrightduration of +Congress, U.S.on copyright laws +Copyright Act (1790) +creative propertycommon law protections of +public domainbalance of U.S. content in When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that @@ -6914,12 +7139,13 @@ supplemented common law rights that already protected creative authorship. -William W. Crosskey, Politics and the Constitution in the History of -the United States (London: Cambridge University Press, 1953), vol. 1, -485–86: extinguish[ing], by plain implication of `the supreme -Law of the Land,' the perpetual rights which authors had, or -were supposed by some to have, under the Common Law -(emphasis added). +William W. Crosskey, Politics and the Constitution in the +History of the United States (London: Cambridge University +Press, 1953), vol. 1, 485–86: extinguish[ing], by plain +implication of the supreme Law of the Land, +the perpetual rights which authors had, or were supposed by +some to have, under the Common Law (emphasis +added). Crosskey, William W. This meant that there was no guaranteed public domain in the United @@ -6930,6 +7156,7 @@ uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works. Statute of Anne (1710) +lawfederal vs. state That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, @@ -6938,6 +7165,7 @@ protections. Just as in England the Statute of Anne eventually meant that the copyrights for all English works expired, a federal statute meant that any state copyrights expired as well. +copyrightrenewability of In 1790, Congress enacted the first copyright law. It created a federal copyright and secured that copyright for fourteen years. If @@ -6945,6 +7173,7 @@ the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain. + While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually @@ -6969,6 +7198,8 @@ copyright was short. The initial term of copyright was fourteen years, with the option of renewal for an additional fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124. + + This system of renewal was a crucial part of the American system of copyright. It assured that the maximum terms of copyright would be @@ -6995,8 +7226,9 @@ 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 +booksout of print Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall @@ -7009,6 +7241,9 @@ copyright. The only practical commercial use of the books at that time is to sell the books as used books; that use—because it does not involve publication—is effectively free. +Congress, U.S.on copyright laws +Congress, U.S.copyright terms extended by +copyright lawterm extensions in In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 @@ -7017,6 +7252,9 @@ from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. +CTEASonny Bono Copyright Term Extension Act (CTEA) (1998) +Sonny Bono Copyright Term Extension Act (CTEA) (1998) +public domainfuture patents vs. future copyrights in Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress @@ -7027,6 +7265,7 @@ In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years. +patentsin public domain The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the @@ -7038,6 +7277,7 @@ after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term. + The effect of these extensions has been exacerbated by another, little-noticed change in the copyright law. Remember I said that the @@ -7048,6 +7288,9 @@ would pass more quickly into the public domain. The works remaining under protection would be those that had some continuing commercial value. +Sonny Bono Copyright Term Extension Act (CTEA) (1998) +copyrightof natural authors vs. corporations +corporationscopyright terms for The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term—the @@ -7067,6 +7310,8 @@ is orphaned by these changes in copyright law. Despite the requirement that terms be limited, we have no evidence that anything will limit them. + + The effect of these changes on the average duration of copyright is dramatic. In 1973, more than 85 percent of copyright owners failed to @@ -7082,16 +7327,24 @@ more than thirty-two years, and averaged thirty years. See Landes and Posner, Indefinitely Renewable Copyright, loc. cit. + + + + +
Law: Scope +copyrightscope of The scope of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. +copyright lawon republishing vs. transformation of original work +derivative workshistorical shift in copyright coverage of In 1790, that scope was very narrow. Copyright covered only maps, charts, and books. That means it didn't cover, for example, music or @@ -7120,6 +7373,9 @@ way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work. +copyrightmarking of +formalities +copyright lawregistration requirement of At the same time that the scope of copyright has expanded, procedural limitations on the right have been relaxed. I've already described the @@ -7134,6 +7390,7 @@ of the history of American copyright law, there was a requirement that works be deposited with the government before a copyright could be secured. + The reason for the registration requirement was the sensible understanding that for most works, no copyright was required. Again, @@ -7148,6 +7405,7 @@ that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author. +copyright lawEuropean All of these formalities were abolished in the American system when we decided to follow European copyright law. There is no requirement @@ -7156,10 +7414,14 @@ automatic; the copyright exists whether or not you mark your work with a ©; and the copyright exists whether or not you actually make a copy available for others to copy. + + + Consider a practical example to understand the scope of these differences. +Copyright Act (1790) If, in 1790, you wrote a book and you were one of the 5 percent who actually copyrighted that book, then the copyright law protected you @@ -7178,6 +7440,9 @@ The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in the United States—publishers. +copyright lawon republishing vs. transformation of original work +derivative workspiracy vs. +piracyderivative work vs. The act left other creators totally unregulated. If I copied your poem @@ -7188,6 +7453,7 @@ those activities were regulated by the original copyright act. These creative activities remained free, while the activities of publishers were restrained. + Today the story is very different: If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, @@ -7216,6 +7482,7 @@ copyright holder. The copyright, in other words, is now not just an right to your writings, but an exclusive right to your writings and a large proportion of the writings inspired by them. + It is this derivative right that would seem most bizarre to our framers, though it has become second nature to us. Initially, this @@ -7265,6 +7532,7 @@ pp. 53–59). These two different uses of my creative work are treated the same. + Disney, Walt Mickey Mouse @@ -7281,9 +7549,13 @@ derivative right is unjustified. My aim just now is much narrower: simply to make clear that this expansion is a significant change from the rights originally granted. + +
Law and Architecture: Reach +copyright lawcopies as core issue of +copyright lawscope of Whereas originally the law regulated only publishers, the change in copyright's scope means that the law today regulates publishers, users, @@ -7300,6 +7572,8 @@ existing law (which regulates copies; 17 United States 102) is that if there is a copy, there is a right. +Valenti, Jackon creative property rights +creative propertyother property rights vs. Copies. That certainly sounds like the obvious thing for @@ -7314,6 +7588,7 @@ copies should not be the trigger for copyright law. More precisely, they should not always be the trigger for copyright law. + This is perhaps the central claim of this book, so let me take this very slowly so that the point is not easily missed. My claim is that the @@ -7330,13 +7605,15 @@ because it is clear that the 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 empty circle.
-All potential uses of a book. - + +
booksthree types of uses of copyright lawcopies as core issue of @@ -7359,28 +7636,32 @@ it up, those acts are not regulated by copyright law, because those acts do not make a copy.
-Examples of unregulated uses of a book. - + +
Obviously, however, some uses of a copyrighted book are regulated by copyright law. Republishing the book, for example, makes a copy. It is therefore regulated by copyright law. Indeed, this particular use stands 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). +paradigmatic use properly regulated by copyright regulation (see +diagram in figure ). +
+ + +
+fair use +copyright lawfair use and Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these fair uses. -
-Republishing stands at the core of this circle of possible uses of a copyrighted work. - -
+Constitution, U.S.First Amendment to +First Amendment These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain @@ -7392,14 +7673,10 @@ but the law denies the owner any exclusive right over such fair uses
-Unregulated copying considered <quote>fair uses.</quote> - -
- -
-Uses that before were presumptively unregulated are now presumptively regulated. - + +
+copyrightusage restrictions attached to In real space, then, the possible uses of a book are divided into three @@ -7407,7 +7684,9 @@ 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 +bookson Internet +Internetbooks on +fair useInternet burdens on Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. @@ -7429,6 +7708,8 @@ would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift. + + So let's be very specific to make this general point clear. Before the Internet, if you purchased a book and read it ten times, there would @@ -7441,7 +7722,7 @@ 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 +e-books derivative workstechnological developments and But the same book as an e-book is effectively governed by a different @@ -7455,6 +7736,10 @@ then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner's wish. +
+ + +
There are some people who think this makes perfect sense. My aim just now is not to argue about whether it makes sense or not. My aim @@ -7482,6 +7767,9 @@ troubling the expansion with respect to copying a particular work, it is extraordinarily troubling with respect to transformative uses of creative work. +fair useInternet burdens on +copyright lawfair use and +derivative worksfair use vs. Third, this shift from category 1 to category 2 puts an extraordinary @@ -7511,7 +7799,16 @@ 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 + + + + + + + +Video Pipeline +advertising +film industrytrailer advertisements of The case of Video Pipeline is a good example. Video Pipeline was in the business of making trailer advertisements for movies available @@ -7529,6 +7826,10 @@ technique by giving on-line stores the same ability to enable before you buy the book, so, too, you would be able to sample a bit from the movie on-line before you bought it. +Disney, Inc. +copyright lawfair use and +copyright lawcopies as core issue of +fair uselegal intimidation tactics against In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet @@ -7544,6 +7845,11 @@ distribution immediately. Video Pipeline thought it was within their lawsuit to ask the court to declare that these rights were in fact their rights. + + +copyrightusage restrictions attached to +copyright infringement lawsuitswillful infringement findings in +willful infringement Disney countersued—for $100 million in damages. Those damages were predicated upon a claim that Video Pipeline had willfully @@ -7563,7 +7869,7 @@ permitted to list the titles of the films they were selling, but they were not allowed to show clips of the films as a way of selling them without Disney's permission. - +first-sale doctrine Now, you might think this is a close case, and I think the courts would consider it a close case. My point here is to map the change @@ -7578,8 +7884,15 @@ copy, use on the Internet becomes subject to the copyright owner's control. The technology expands the scope of effective control, because the technology builds a copy into every transaction. + + + + + + Barnes & Noble browsing +market competition No doubt, a potential is not yet an abuse, and so the potential for @@ -7613,6 +7926,8 @@ second important change brought about by the Internet magnifies its significance. This second change does not affect the reach of copyright regulation; it affects how such regulation is enforced. +copyright lawtechnology as automatic enforcer of +technologycopyright enforcement controlled by In the world before digital technology, it was generally the law that controlled whether and how someone was regulated by copyright law. @@ -7657,7 +7972,8 @@ 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 +bookson Internet +Internetbooks on 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 @@ -7682,9 +7998,14 @@ software that publishers use to deliver e-books. It provides the technology, and the publisher delivers the content by using the technology. +
+ + +
-On the next page is a picture of an old version of my Adobe eBook -Reader. +In figure + +is a picture of an old version of my Adobe eBook Reader. As you can see, I have a small collection of e-books within this @@ -7699,17 +8020,13 @@ copy of Middlemarch, you'll see a fancy cover, and then a button at the bottom called Permissions. -
-Picture of an old version of Adobe eBook Reader - -
If you click on the Permissions button, you'll see a list of the permissions that the publisher purports to grant with this book.
-List of the permissions that the publisher purports to grant. - + +
@@ -7727,8 +8044,8 @@ Here's the e-book for another work in the public domain (including the translation): Aristotle's Politics.
-E-book of Aristotle;s <quote>Politics</quote> - + +
According to its permissions, no printing or copying is permitted @@ -7736,8 +8053,8 @@ at all. But fortunately, you can use the Read Aloud button to hear the book.
-List of the permissions for Aristotle;s <quote>Politics</quote>. - + +
Future of Ideas, The (Lessig) Lessig, Lawrence @@ -7748,8 +8065,8 @@ Ideas:
-List of the permissions for <quote>The Future of Ideas</quote>. - + +
No copying, no printing, and don't you dare try to listen to this book! @@ -7769,6 +8086,7 @@ times. But that obligation (and the limits for creating that obligation) would come from the contract, not from copyright law, and the obligations of contract would not necessarily pass to anyone who subsequently acquired the book. +contracts When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten @@ -7833,11 +8151,10 @@ domain. Yet when you clicked on Permissions for that book, you got the following report:
-List of the permissions for <quote>Alice's Adventures in -Wonderland</quote>. - + +
- + Here was a public domain children's book that you were not allowed to copy, not allowed to lend, not allowed to give, and, as the @@ -7875,7 +8192,8 @@ control. That incentive is understandable, yet what it creates is often crazy. - + + To see the point in a particularly absurd context, consider a favorite story of mine that makes the same point. @@ -8158,13 +8476,21 @@ some uses that were illegal, the court held the companies producing the VCR responsible. -This led Conrad to draw the cartoon below, which we can adopt to -the DMCA. +This led Conrad to draw the cartoon in figure +, which we can adopt to the +DMCA. Conrad, Paul No argument I have can top this picture, but let me try to get close. +
+— On which item have the courts ruled that manufacturers and +retailers be held responsible for having supplied the +equipment? + +
The anticircumvention provisions of the DMCA target copyright circumvention technologies. Circumvention technologies can be used for @@ -8182,10 +8508,6 @@ 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. -
-VCR/handgun cartoon. - -
Conrad, Paul The obvious point of Conrad's cartoon is the weirdness of a world @@ -8307,7 +8629,7 @@ media. Before this change happened, the different forms of media were owned by separate media companies. Now, the media is increasingly owned by only a few companies. Indeed, after the changes that the FCC announced in June 2003, most expect that within a few years, we will -live in a world where just three companies control more than percent +live in a world where just three companies control more than 85 percent of the media. @@ -8342,6 +8664,7 @@ Molly Ivins, Media Consolidation Must Be Stopped, Char 31 May 2003. +radioownership consolidation in The story with radio is even more dramatic. Before deregulation, the nation's largest radio broadcasting conglomerate owned fewer than @@ -8354,6 +8677,7 @@ market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues. cable television +newspapersownership consolidation of Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than @@ -8365,11 +8689,11 @@ of all cable revenue. This is a market far from the free press the framers sought to protect. Indeed, it is a market that is quite well protected— by the market. +Fallows, James Concentration in size alone is one thing. The more invidious change is in the nature of that concentration. As author James Fallows put it in a recent article about Rupert Murdoch, -Fallows, James
@@ -8390,6 +8714,8 @@ James Fallows, The Age of Murdoch, Atlantic Monthly
+ + The pattern with Murdoch is the pattern of modern media. Not just large companies owning many radio stations, but a few companies @@ -8397,8 +8723,8 @@ 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. - + +
@@ -8512,6 +8838,7 @@ Moyers, 25 April 2003, edited transcript available at
+democracymedia concentration and This narrowing has an effect on what is produced. The product of such large and concentrated networks is increasingly homogenous. @@ -8564,6 +8891,7 @@ In addition to the copyright wars, we're in the middle of the drug wars. Government policy is strongly directed against the drug cartels; criminal and civil courts are filled with the consequences of this battle. +criminal justice system Let me hereby disqualify myself from any possible appointment to any position in government by saying I believe this war is a profound @@ -8590,6 +8918,9 @@ depend fundamentally upon the press to help inform Americans about these issues. advertising +commercials +televisionadvertising on +Nick and Norm anti-drug campaign Beginning in 1998, the Office of National Drug Control Policy launched a media campaign as part of the war on drugs. The campaign produced @@ -8619,6 +8950,10 @@ money. Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then? +Constitution, U.S.First Amendment to +First Amendment +Supreme Court, U.S.on television advertising bans +televisioncontroversy avoided by No. You cannot. Television stations have a general policy of avoiding controversial ads. Ads sponsored by the government are deemed @@ -8630,6 +8965,13 @@ commercial media will refuse one side of a crucial debate the opportunity to present its case. And the courts will defend the rights of the stations to be this biased. +ABC +Comcast +Marijuana Policy Project +NBC +WJOA +WRC +advertising The Marijuana Policy Project, in February 2003, sought to place ads that directly responded to the Nick and Norm series on stations within the Washington, D.C., area. Comcast rejected the ads as against @@ -8638,31 +8980,29 @@ without reviewing them. The local ABC affiliate, WJOA, originally agreed to run the ads and accepted payment to do so, but later decided not to run the ads and returned the collected fees. Interview with Neal Levine, 15 October 2003. These restrictions are, of course, not -limited to drug policy. See, for example, Nat Ives, On the Issue of -an Iraq War, Advocacy Ads Meet with Rejection from TV Networks, New -York Times, 13 March 2003, C4. Outside of election-related air time -there is very little that the FCC or the courts are willing to do to -even the playing field. For a general overview, see Rhonda Brown, Ad -Hoc Access: The Regulation of Editorial Advertising on Television and -Radio, Yale Law and Policy Review 6 (1988): 449–79, and for a -more recent summary of the stance of the FCC and the courts, see -Radio-Television News Directors Association v. FCC, 184 F. 3d 872 +limited to drug policy. See, for example, Nat Ives, On the +Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV +Networks, New York Times, 13 March +2003, C4. Outside of election-related air time there is very little +that the FCC or the courts are willing to do to even the playing +field. For a general overview, see Rhonda Brown, Ad Hoc Access: +The Regulation of Editorial Advertising on Television and +Radio, Yale Law and Policy Review 6 +(1988): 449–79, and for a more recent summary of the stance of +the FCC and the courts, see Radio-Television News Directors +Association v. FCC, 184 F. 3d 872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as the networks. In a recent example from San Francisco, the San Francisco transit authority rejected an ad that criticized its Muni -diesel buses. Phillip Matier and Andrew Ross, Antidiesel Group Fuming -After Muni Rejects Ad, SFGate.com, 16 June 2003, available at -link #32. The ground -was that the criticism was too controversial. -ABC -Comcast -Marijuana Policy Project -NBC -WJOA -WRC -advertising +diesel buses. Phillip Matier and Andrew Ross, Antidiesel Group +Fuming After Muni Rejects Ad, SFGate.com, 16 June 2003, +available at link +#32. The ground was that the criticism was too +controversial. + + I'd be happy to defend the networks' rights, as well—if we lived in a media market that was truly diverse. But concentration in the @@ -8864,7 +9204,7 @@ we could say the law began to look like this: Noncommercial - ©/Free + © / Free Free @@ -8936,13 +9276,13 @@ property, the state ought to protect it. But first impressions notwithstanding, historically, this property right (as with all property rights +legal realist movement It was the single most important contribution of the legal realist movement to demonstrate that all property rights are always crafted to balance public and private interests. See Thomas C. Grey, The Disintegration of Property, in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, eds. (New York: New York University Press, 1980). -legal realist movement ) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to @@ -8959,19 +9299,23 @@ We achieved that free culture because our law respected important limits on the scope of the interests protected by property. The very birth of copyright as a statutory right recognized those limits, by granting copyright owners protection for a limited time only (the -story of chapter 6). The tradition of fair use is animated by a -similar concern that is increasingly under strain as the costs of -exercising any fair use right become unavoidably high (the story of -chapter 7). Adding +story of chapter ). The tradition of fair use is +animated by a similar concern that is increasingly under strain as the +costs of exercising any fair use right become unavoidably high (the +story of chapter ). Adding statutory rights where markets might stifle innovation is another -familiar limit on the property right that copyright is (chapter -8). And granting archives and libraries a broad freedom to collect, -claims of property notwithstanding, is a crucial part of guaranteeing -the soul of a culture (chapter 9). Free cultures, like free markets, -are built with property. But the nature of the property that builds a -free culture is very different from the extremist vision that -dominates the debate today. +familiar limit on the property right that copyright is (chapter ). And +granting archives and libraries a broad freedom to collect, claims of +property notwithstanding, is a crucial part of guaranteeing the soul +of a culture (chapter ). Free cultures, like free markets, are built +with property. But the nature of the property that builds a free +culture is very different from the extremist vision that dominates the +debate today. Free culture is increasingly the casualty in this war on piracy. In @@ -8991,11 +9335,11 @@ lawyer. -PUZZLES +Puzzles -CHAPTER ELEVEN: Chimera +Chapter Eleven: Chimera chimeras Wells, H. G. Country of the Blind, The (Wells) @@ -9023,10 +9367,10 @@ sight to the villagers. They don't understand. He tells them they are blind. They don't have the word blind. They think he's just thick. Indeed, as they increasingly notice the things he can't do (hear the sound of grass being stepped on, for example), they increasingly try -to control him. He, in turn, becomes increasingly frustrated. `You -don't understand,' he cried, in a voice that was meant to be great and -resolute, and which broke. `You are blind and I can see. Leave me -alone!' +to control him. He, in turn, becomes increasingly frustrated. You +don't understand, he cried, in a voice that was meant to be great and +resolute, and which broke. You are blind and I can see. Leave me +alone! @@ -9274,7 +9618,7 @@ and will kill opportunities that could be extraordinarily valuable. -CHAPTER TWELVE: Harms +Chapter Twelve: Harms To fight piracy, to protect property, the content industry has launched a @@ -9329,6 +9673,8 @@ statement. You could write a poem to express your love, or you could weave together a string—a mash-up— of songs from your favorite artists in a collage and make it available on the Net. +democracydigital sharing within +Kodak cameras This digital capturing and sharing is in part an extension of the capturing and sharing that has always been integral to our culture, @@ -9361,7 +9707,7 @@ 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 +WorldCom copyright infringement lawsuitsexaggerated claims of copyright infringement lawsuitsin recording industry doctors malpractice claims against @@ -9372,11 +9718,12 @@ examples of extreme penalties for vague infringements continue to proliferate. It is impossible to get a clear sense of what's allowed and what's not, and at the same time, the penalties for crossing the line are astonishingly harsh. The four students who were threatened -by the RIAA ( Jesse Jordan of chapter 3 was just one) were threatened -with a $98 billion lawsuit for building search engines that permitted -songs to be copied. Yet World-Com—which defrauded investors of -$11 billion, resulting in a loss to investors in market capitalization -of over $200 billion—received a fine of a mere $750 +by the RIAA (Jesse Jordan of chapter was just one) were threatened with a +$98 billion lawsuit for building search engines that permitted songs +to be copied. Yet World-Com—which defrauded investors of $11 +billion, resulting in a loss to investors in market capitalization of +over $200 billion—received a fine of a mere $750 million. See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom @@ -9384,22 +9731,24 @@ See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldComMCI Wins U.S. District Court Approval for SEC Settlement (7 July 2003), available at link #37. -Worldcom +WorldCom And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering. - The bill, modeled after California's tort reform model, was passed in the + +The bill, modeled after California's tort reform model, was passed in the House of Representatives but defeated in a Senate vote in July 2003. For -an overview, see Tanya Albert, Measure Stalls in Senate: `We'll Be Back,' +an overview, see Tanya Albert, Measure Stalls in Senate: We'll Be Back, Say Tort Reformers, amednews.com, 28 July 2003, available at link #38, and Senate Turns Back Malpractice Caps, CBSNews.com, 9 July 2003, available at link #39. President Bush has continued to urge tort reform in recent months. +tort reform Bush, George W. Can common sense recognize the absurdity in a world where @@ -9539,10 +9888,12 @@ think there's little in this story to worry you. But there's an aspect of this story that is not lefty in any sense. Indeed, it is an aspect that could be written by the most extreme promarket ideologue. And if you're one of these sorts (and a special -one at that, 188 pages into a book like this), then you can see this -other aspect by substituting free market every place I've spoken of -free culture. The point is the same, even if the interests -affecting culture are more fundamental. +one at that, pages into a book like this), then you +can see this other aspect by substituting free market +every place I've spoken of free culture. The point is +the same, even if the interests affecting culture are more +fundamental. The charge I've been making about the regulation of culture is the @@ -9696,7 +10047,7 @@ such a view of the law will cost you and your firm dearly. This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of -its development, its cofounder ( John Hummer), and general partner +its development, its cofounder (John Hummer), and general partner (Hank Barry). See Joseph Menn, Universal, EMI Sue Napster Investor, Los Angeles @@ -9750,6 +10101,10 @@ that will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly hard if that company is constantly threatened by litigation. +market constraints +permission culturetransaction cost of +regulationoutsize penalties of +technologylegal murkiness on @@ -9766,7 +10121,6 @@ innovation. If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity. -market constraints The point is directly parallel to the crunchy-lefty point about fair use. Whatever the real law is, realism about the effect of law in @@ -9777,7 +10131,7 @@ creativity generally. Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to -produce an overregulatedregulated market. +produce an overregulated-regulated market. The building of a permission culture, rather than a free culture, is @@ -9798,6 +10152,8 @@ 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 @@ -9887,7 +10243,8 @@ N.Y.: Prometheus Books, 2001). Digital Copyright (Litman) Litman, Jessica -overall this history of copyright is not bad. As chapter 10 details, +overall this history of copyright is not bad. As chapter + details, when new technologies have come along, Congress has struck a balance to assure that the new is protected from the old. Compulsory, or statutory, licenses have been one part of that strategy. Free use (as @@ -9925,6 +10282,9 @@ implemented by Congress. I won't catalog all of those responses here. Tauzin, Billy +Berman, Howard L. +Hollings, Fritz +broadcast flag For example, in July 2002, Representative Howard Berman introduced the Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize copyright holders from liability for damage done to computers when the @@ -9939,15 +10299,14 @@ technology in all digital media devices. See GartnerG2, Copyright and Digital Media in a Post-Napster World, 27 June 2003, 33–34, available at link #44. -Berman, Howard L. -Hollings, Fritz -broadcast flag But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. artistsrecording industry payments to Kennedy, John F. +Monroe, Marilyn +radiomusic recordings played on @@ -9972,6 +10331,7 @@ than with the power of radio stations: Their lobbyists were quite good at stopping any efforts to get Congress to require compensation to the recording artists. + Enter Internet radio. Like regular radio, Internet radio is a technology to stream content from a broadcaster to a listener. The @@ -10583,7 +10943,7 @@ Jesse Jordan. See Frank Ahrens, RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants, Washington Post, 10 September 2003, E1; Chris Cobbs, Worried Parents -Pull Plug on File `Stealing'; With the Music Industry Cracking Down on +Pull Plug on File Stealing; With the Music Industry Cracking Down on File Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued, Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham, Recording Industry Sues Parents, USA Today, 15 September @@ -10593,6 +10953,7 @@ Brianna a Criminal? Toronto Star, 18 September 20 +Napsterrecording industry tracking users of Even this understates the espionage that is being waged by the RIAA. A report from CNN late last summer described a strategy the @@ -10623,7 +10984,7 @@ See Jeff Adler, Cambridge: On Campus, Pirates Are Not Penitent, Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, Four Students Sued over Music Sites; Industry Group Targets File Sharing at Colleges, Washington Post, 4 April 2003, E1; Elizabeth Armstrong, -Students `Rip, Mix, Burn' at Their Own Risk, Christian Science +Students Rip, Mix, Burn at Their Own Risk, Christian Science Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, Music Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over; Lawsuit Possible, Chicago Tribune, 16 July 2003, 1C; Beth Cox, RIAA @@ -10653,6 +11014,7 @@ have already learned, our presumptions about innocence disappear in the middle of wars of prohibition. This war is no different. Says von Lohmann, +
So when we're talking about numbers like forty to sixty million @@ -10688,7 +11050,7 @@ effort through our democracy to change our law? -BALANCES +Balances @@ -10747,7 +11109,8 @@ success will require. -CHAPTER THIRTEEN: Eldred +Chapter Thirteen: Eldred +Eldred, Eric Hawthorne, Nathaniel In 1995, a father was frustrated @@ -10758,6 +11121,8 @@ Hampshire, decided to put Hawthorne on the Web. An electronic version, Eldred thought, with links to pictures and explanatory text, would make this nineteenth-century author's work come alive. +librariesof public-domain literature +public domainlibrary of works derived from It didn't work—at least for his daughters. They didn't find Hawthorne any more interesting than before. But Eldred's experiment @@ -10778,6 +11143,7 @@ accessible to the twentieth century, Eldred transformed Hawthorne, and many others, into a form more accessible—technically accessible—today. +Scarlet Letter, The (Hawthorne) Eldred's freedom to do this with Hawthorne's work grew from the same source as Disney's. Hawthorne's Scarlet Letter had passed into the @@ -10821,6 +11187,13 @@ world before the Internet were extremely few. Yet one would think it at least as important to protect the Eldreds of the world as to protect noncommercial pornographers. +Congress, U.S.copyright terms extended by +copyrightduration of +copyright lawterm extensions in +Frost, Robert +New Hampshire (Frost) +patentsin public domain +patentsfuture patents vs. future copyrights in As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of poems New Hampshire was slated to @@ -10835,8 +11208,12 @@ would pass into the public domain until that year (and not even then, if Congress extends the term again). By contrast, in the same period, more than 1 million patents will pass into the public domain. + + Bono, Mary Bono, Sonny +copyrightin perpetuity +Sonny Bono Copyright Term Extension Act (CTEA) (1998) @@ -10847,6 +11224,7 @@ Sonny Bono, who, his widow, Mary Bono, says, believed that Bono, Mary Bono, Sonny +Valenti, Jackperpetual copyright term proposed by The full text is: Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to @@ -10855,8 +11233,12 @@ you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress, 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). - + +copyright lawfelony punishment for infringement of +NET (No Electronic Theft) Act (1998) +No Electronic Theft (NET) Act (1998) +peer-to-peer (p2p) file sharingfelony punishments for Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he @@ -10866,6 +11248,11 @@ of publishing would make Eldred a felon—whether or not anyone complained. This was a dangerous strategy for a disabled programmer to undertake. + +Congress, U.S.constitutional powers of +Constitution, U.S.Progress Clause of +Progress Clause +Lessig, LawrenceEldred case involvement of It was here that I became involved in Eldred's battle. I was a constitutional @@ -10883,6 +11270,7 @@ by securing for limited Times to Authors … exclusive Right to their … Writings. …
+ As I've described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause @@ -10893,6 +11281,9 @@ specific—to promote … Progress—through means t are also specific— by securing exclusive Rights (i.e., copyrights) for limited Times. + + + Jaszi, Peter In the past forty years, Congress has gotten into the practice of @@ -10905,6 +11296,9 @@ Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids—perpetual terms on the installment plan, as Professor Peter Jaszi so nicely put it. + + +Lessig, LawrenceEldred case involvement of As an academic, my first response was to hit the books. I remember sitting late at the office, scouring on-line databases for any serious @@ -10974,7 +11368,7 @@ much is it worth? Well, the adviser says, if you're confident that you will continue to get at least $100,000 a year from these copyrights, and you use the -`discount rate' that we use to evaluate estate investments (6 percent), +discount rate that we use to evaluate estate investments (6 percent), then this law would be worth $1,146,000 to the estate. @@ -10990,7 +11384,7 @@ would assure that the bill was passed? Absolutely, the adviser responds. It is worth it to you to contribute -up to the `present value' of the income you expect from these +up to the present value of the income you expect from these copyrights. Which for us means over $1,000,000. @@ -11050,6 +11444,9 @@ constitutional requirement that terms be limited. If they could extend it once, they would extend it again and again and again. + + + It was also my judgment that this Supreme Court would not allow Congress to extend existing terms. As anyone close to @@ -11063,6 +11460,9 @@ Supreme Court's decision in 1995 to strike down a law that banned the possession of guns near schools. +commerce, interstate +Congress, U.S.constitutional powers of +interstate commerce Since 1937, the Supreme Court had interpreted Congress's granted powers very broadly; so, while the Constitution grants Congress the @@ -11081,6 +11481,7 @@ commerce. A Constitution designed to limit Congress's power was instead interpreted to impose no limit. Rehnquist, William H. +United States v. Lopez The Supreme Court, under Chief Justice Rehnquist's command, changed that in United States v. Lopez. The government had @@ -11105,8 +11506,11 @@ Congress's power. The decision in Lopez was reaffirmed fi later in United States v. Morrison. United States v. Morrison, 529 U.S. 598 (2000). +United States v. Morrison + + If a principle were at work here, then it should apply to the Progress Clause as much as the Commerce Clause. @@ -11131,6 +11535,9 @@ limit. Thus, the same principle applied to the power to grant copyrights should entail that Congress is not allowed to extend the term of existing copyrights. + +Congress, U.S.Supreme Court restraint on +United States v. Lopez If, that is, the principle announced in Lopez stood for a principle. Many believed the decision in Lopez stood for @@ -11144,6 +11551,7 @@ 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 @@ -11195,6 +11603,8 @@ have created the perfect storm for the public domain. Copyrights have 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 @@ -11222,6 +11632,7 @@ of Petitioners, Eldred v. Ashcroft +Kahle, Brewster Think practically about the consequence of this extension—practically, @@ -11355,7 +11766,7 @@ For most of the history of film, the costs of restoring film were very high; digital technology has lowered these costs substantially. While it cost more than $10,000 to restore a ninety-minute black-and-white film in 1993, it can now cost as little as $100 to digitize one hour of -mm film. +8 mm film. Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, Eldred v. Ashcroft, 537 @@ -11479,6 +11890,7 @@ would not have interfered with anything. But this situation has now changed. +Kahle, Brewster archives, digital One crucially important consequence of the emergence of digital @@ -11520,6 +11932,7 @@ Brewster Kahle, then they will lower the costs for Random House, too. So won't Random House do as well as Brewster Kahle in spreading culture widely? + Maybe. Someday. But there is absolutely no evidence to suggest that publishers would be as complete as libraries. If Barnes & Noble @@ -11541,12 +11954,12 @@ market is not doing the job, then we should allow nonmarket forces the freedom to fill the gaps. As one researcher calculated for American culture, 94 percent of the films, books, and music produced between -and 1946 is not commercially available. However much you love the +1923 and 1946 is not commercially available. However much you love the commercial market, if access is a value, then 6 percent is a failure to provide that value. -Jason Schultz, The Myth of the 1976 Copyright `Chaos' Theory, 20 -December 2002, available at +Jason Schultz, The Myth of the 1976 Copyright +Chaos Theory, 20 December 2002, available at link #54. @@ -11595,11 +12008,12 @@ most liberal judges in the D.C. Circuit believed Congress had overstepped its bounds. -It was here that most expected Eldred v. Ashcroft would die, for the -Supreme Court rarely reviews any decision by a court of appeals. (It -hears about one hundred cases a year, out of more than five thousand -appeals.) And it practically never reviews a decision that upholds a -statute when no other court has yet reviewed the statute. +It was here that most expected Eldred +v. Ashcroft would die, for the Supreme Court +rarely reviews any decision by a court of appeals. (It hears about one +hundred cases a year, out of more than five thousand appeals.) And it +practically never reviews a decision that upholds a statute when no +other court has yet reviewed the statute. But in February 2002, the Supreme Court surprised the world by @@ -11625,6 +12039,7 @@ retell this story to myself, I can never escape believing that my own mistake lost it. Steward, Geoffrey +Jones, Day, Reavis and Pogue (Jones Day) The mistake was made early, though it became obvious only at the very end. Our case had been supported @@ -11649,6 +12064,7 @@ Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, they would never vote against the most powerful media companies in the world. + I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. Of course I still @@ -11730,7 +12146,7 @@ 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 -Software Foundation (home of the GNU project that made GNU/ Linux +Software Foundation (home of the GNU project that made GNU/Linux possible). They included a powerful brief about the costs of uncertainty by Intel. There were two law professors' briefs, one by copyright scholars and one by First Amendment scholars. There was an @@ -11774,6 +12190,7 @@ to describe special-interest legislation gone wild. Morrison, Alan Public Citizen Reagan, Ronald +Jones, Day, Reavis and Pogue (Jones Day) 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 @@ -11870,8 +12287,17 @@ favorites, through copyright, with who has the right to speak. was little I did beyond preparing for this case. Early on, as I said, I set the strategy. +Kennedy, Anthony +O'Connor, Sandra Day Rehnquist, William H. O'Connor, Sandra Day +Thomas, Clarence +United States v. Lopez +United States v. Morrison +Scalia, Antonin +Congress, U.S.Supreme Court restraint on +Supreme Court, U.S.congressional actions restrained by +Supreme Court, U.S.factions of The Supreme Court was divided into two important camps. One camp we called the Conservatives. The other we called the Rest. The @@ -11916,6 +12342,7 @@ 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 @@ -11935,6 +12362,13 @@ argument that Judge Sentelle had relied upon in the Court of Appeals, that Congress's power must be interpreted so that its enumerated powers have limits. +United States v. Lopez +commerce, interstate +interstate commerce +Congress, U.S.in constitutional Progress Clause +Progress Clause +Congress, U.S.copyright terms extended by +Constitution, U.S.Progress Clause of This then was the core of our strategy—a strategy for which I am responsible. We would get the Court to see that just as with the @@ -11957,6 +12391,7 @@ 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 certainly agreed that Congress had extended existing terms in 1831 @@ -12002,6 +12437,7 @@ this central idea. Ayer, Don Reagan, Ronald Fried, Charles +Jones, Day, Reavis and Pogue (Jones Day) One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor @@ -12120,6 +12556,7 @@ number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss. +United States v. Lopez The second came from the Chief, for whom the whole case had been crafted. For the Chief Justice had crafted the Lopez ruling, @@ -12216,6 +12653,7 @@ money in the world against reasoning. And here was the last naïve law professor, scouring the pages, looking for reasoning. +United States v. Lopez I first scoured the opinion, looking for how the Court would distinguish the principle in this case from the principle in @@ -12248,6 +12686,7 @@ talk about the two together. There was therefore no principle that followed from the Lopez case: In that context, Congress's power would be limited, but in this context it would not. + Yet by what right did they get to choose which of the framers' values they would respect? By what right did they—the silent @@ -12284,6 +12723,7 @@ way, the point was clear: If the Constitution said a term had to be limited, and the existing term was so long as to be effectively unlimited, then it was unconstitutional. +United States v. Lopez These two justices understood all the arguments we had made. But because neither believed in the Lopez case, neither was willing to push @@ -12311,6 +12751,7 @@ light of the structure of the Constitution. That method had produced Lopez and many other originalist rulings. Where was their originalism now? + Here, they had joined an opinion that never once tried to explain what the framers had meant by crafting the Progress Clause as they @@ -12427,14 +12868,15 @@ in a time of such fruitful creative ferment. The best responses were in the cartoons. There was a gaggle of hilarious images—of Mickey in jail and the like. The best, from -my view of the case, was Ruben Bolling's, reproduced on the next page -(). The powerful and wealthy line is a bit -unfair. But the punch in the face felt exactly like that. +my view of the case, was Ruben Bolling's, reproduced in figure +. The powerful +and wealthy line is a bit unfair. But the punch in the face +felt exactly like that. Bolling, Ruben -
-Tom the Dancing Bug cartoon - +
+ + Bolling, Ruben
@@ -12449,7 +12891,7 @@ better lawyer would have made them see differently. -CHAPTER FOURTEEN: Eldred II +Chapter Fourteen: Eldred II The day Eldred was decided, fate would have it that I @@ -12495,6 +12937,8 @@ Congress allows for those works where its worth is at least $1. But for everything else, let the content go. Forbes, Steve +Democratic Party +Republican Party The reaction to this idea was amazingly strong. Steve Forbes endorsed it in an editorial. I received an avalanche of e-mail and letters @@ -12713,6 +13157,7 @@ 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. +Valenti, JackEldred Act opposed by But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA general counsel came to the congresswoman's office to give @@ -12844,8 +13289,8 @@ controlled by this dead (and often unfindable) hand of the past. - -CONCLUSION + +Conclusion Africa, medications for HIV patients in AIDS medications antiretroviral drugs @@ -13158,10 +13603,10 @@ 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 -Shift on `Open Source' Meeting Spurs Stir, National Journal's Technology +Shift on Open Source Meeting Spurs Stir, National Journal's Technology Daily, 19 August 2003, available at link #60; William New, U.S. Official -Opposes `Open Source' Talks at WIPO, National Journal's Technology +Opposes Open Source Talks at WIPO, National Journal's Technology Daily, 19 August 2003, available at link #61. @@ -13173,11 +13618,13 @@ intellectual property. Examples include the Internet and the World Wide Web, both of which were developed on the basis of protocols in the public domain. It included an emerging trend to support open academic journals, including the Public Library of Science project -that I describe in the Afterword. It included a project to develop -single nucleotide polymorphisms (SNPs), which are thought to have -great significance in biomedical research. (That nonprofit project -comprised a consortium of the Wellcome Trust and pharmaceutical and -technological companies, including Amersham Biosciences, AstraZeneca, +that I describe in chapter +. It +included a project to develop single nucleotide polymorphisms (SNPs), +which are thought to have great significance in biomedical +research. (That nonprofit project comprised a consortium of the +Wellcome Trust and pharmaceutical and technological companies, +including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It @@ -13334,6 +13781,7 @@ its lobbying efforts. Boland, Lois +Patent and Trademark Office, U.S. What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting @@ -13391,7 +13839,7 @@ 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. -Boland, Lois +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 @@ -13465,7 +13913,7 @@ 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 @@ -13499,6 +13947,7 @@ 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. @@ -13647,8 +14096,9 @@ potential is ever to be realized. - -AFTERWORD + +Afterword +copyrightvoluntary reform efforts on @@ -13669,6 +14119,8 @@ authors, musicians, filmmakers, scientists—all to tell this story in their own words, and to tell their neighbors why this battle is so important. +RCA + Once this movement has its effect in the streets, it has some hope of having an effect in Washington. We are still a democracy. What people @@ -13679,7 +14131,8 @@ sketch changes that Congress could make to better secure a free culture.
-US, NOW +Us, now +copyrightvoluntary reform efforts on Common sense is with the copyright warriors because the debate so far has been framed at the @@ -14124,9 +14577,10 @@ downloads increased, the used book price for his book increased, as well. +Leaphart, Walter Public Enemy + rap music -Leaphart, Walter These are examples of using the Commons to better spread proprietary content. I believe that is a wonderful and common use of the @@ -14196,7 +14650,7 @@ creativity to spread more easily.
-THEM, SOON +Them, soon We will not reclaim a free culture by individual action alone. It will also take important reforms of @@ -14278,7 +14732,7 @@ developed by others.
-REGISTRATION AND RENEWAL +Registration and renewal Under the old system, a copyright owner had to file a registration with the Copyright Office to register or renew a copyright. When @@ -14301,6 +14755,9 @@ doesn't follow that the government must actually administer the role. Instead, we should be creating incentives for private parties to serve the public, subject to standards that the government sets. +domain names +Internetdomain name registration on +Web sites, domain name registration of In the context of registration, one obvious model is the Internet. There are at least 32 million Web sites registered around the world. @@ -14327,7 +14784,7 @@ of registrations that would facilitate the licensing of content.
-MARKING +Marking It used to be that the failure to include a copyright notice on a creative work meant that the copyright was forfeited. That was a harsh @@ -14956,6 +15413,8 @@ controlling access. artistsrecording industry payments to +semiotic democracy +democracysemiotic 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 @@ -15205,29 +15664,30 @@ keep your lawyers away.
- -NOTES + +Notes Throughout this text, there are references to links on the World Wide Web. As anyone who has tried to use the Web knows, these links can be highly unstable. I have tried to remedy the instability by redirecting readers to the original source through the Web site associated with this book. For each link below, you can go to -http://free-culture.cc/notes and locate the original source by -clicking on the number after the # sign. If the original link remains -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. + +and locate the original source by clicking on the number after the # +sign. If the original link remains alive, you will be redirected to +that link. If the original link has disappeared, you will be +redirected to an appropriate reference for the material. - + + - -ACKNOWLEDGMENTS + +Acknowledgments This book is the product of a long and as yet unsuccessful struggle that began when I read of Eric Eldred's war to keep books free. Eldred's @@ -15297,5 +15757,168 @@ grateful for her perpetual patience and love. + + + + + + + + + +Free culture: How big media uses technology and the law to lock down +culture and control creativity / Lawrence Lessig. + + +Copyright © 2004 Lawrence Lessig. Some rights reserved. + + + + + + + +Published in 2015. First published 2004 by The Penguin Press. + + + +This English and Norwegian BokmÃ¥l edition was published by Petter +Reinholdtsen with help from many volunteers. + + + +Typeset with +dblatex using the +font Crimson Text. + + + +Excerpt from an editorial titled The Coming of Copyright +Perpetuity, The New York Times, January +16, 2003. Copyright © 2003 by The New York Times Co. Reprinted +with permission. + + +Cartoon in figure + by +Paul Conrad, copyright Tribune Media Services, Inc. All rights +reserved. Reprinted with permission. + + +Diagram in figure + +courtesy of the office of FCC Commissioner, Michael J. Copps. + + + +Cover created by Petter Reinholdtsen using inkscape. + + + +The quotes on the cover came from +. + + + +Portrait on the cover was created 2013 by ActuaLitté and licensed +under a Creative Commons Attribution-ShareAlike 2.0 license. It was +downloaded from +. + + + +Classifications: + + + +(Dewey) +306.4, +306.40973, +306.46, +341.7582, +343.7309/9 + + + +(UDK) 347.78 + + + +(US Library of Congress) KF2979.L47 2004 + + + +(ACM CRCS) K.4.1 + + + +Printing was sponsed by NUUG Foundation, +. + + + +Includes index. + + + + + +The Docbook source is available from +. +Please report any issues with the book there. + + + + + + + +This book is licensed under a Creative Commons license. This license +permits non-commercial use of this work, so long as attribution is +given. For more information about the license visit +. + + + +This book is a proof reading draft. Please visit the github URL above +to get the latest version. + + + + + + + + Format / MIME-type + ISBN + + + + + US Trade edition from lulu.com + 978-82-690182-0-2 + + + application/pdf + 978-82-690182-1-9 + + + application/epub+zip + 978-82-690182-2-6 + + + application/x-mobipocket-ebook + 978-82-690182-3-3 + + + + + + +