X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/51d63fee8d77ed7615c482f284e0f3b4928fbcf1..3ac8f2d07e2a4b7bc740d90fb073b95af358d708:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index a61bce2..3bc949d 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -4718,6 +4718,10 @@ from the implications that the copyright warriors would have us draw. 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 +4770,9 @@ 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 +4793,8 @@ 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 +4807,8 @@ 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 +4821,11 @@ 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 +4838,7 @@ 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 +4848,16 @@ 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 +4876,7 @@ 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 +4893,7 @@ 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 +4905,7 @@ 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 +4929,10 @@ 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 +4953,8 @@ 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 +4963,7 @@ 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 +4976,9 @@ 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 +5014,11 @@ 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 +5034,7 @@ 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 +5051,9 @@ 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 +5063,8 @@ 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 +5087,7 @@ 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 +5103,17 @@ 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 +5141,10 @@ 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 +5160,16 @@ 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 +5184,10 @@ 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 +5198,7 @@ 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 +5206,9 @@ 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 +5219,11 @@ 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 +5233,13 @@ 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 +5254,7 @@ 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 +5275,8 @@ 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 +5299,32 @@ 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 +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 +5337,8 @@ 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 +5346,8 @@ 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 +5357,8 @@ 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 +5366,8 @@ 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 +5375,7 @@ 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 +5383,7 @@ 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 +5392,9 @@ And second, Fox wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of … entirely unsolicited Simpsons which was in the corner of the shot. -Herrera, Rebecca + + +Herrera, Rebecca Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He @@ -5307,6 +5403,7 @@ 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 +5416,7 @@ 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 @@ -5329,6 +5427,8 @@ very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before. +Fox (film company) +Groening, Matt There's no doubt that someone, whether Matt Groening or Fox, owns the copyright to The Simpsons. That copyright is their property. To use @@ -5363,11 +5463,14 @@ 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 +5480,9 @@ 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 +5491,10 @@ 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 +5516,9 @@ 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 +5527,7 @@ money.
+ In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But @@ -5433,6 +5543,12 @@ publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not. + + + + + + @@ -6385,6 +6501,10 @@ 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. +free culturefour modalities of constraint on +regulationfour modalities of +copyright lawas ex post regulation modality +lawas constraint modality @@ -6400,6 +6520,7 @@ 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 +6550,7 @@ 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 +6577,10 @@ 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 +6598,11 @@ 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 @@ -6517,8 +6643,8 @@ 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. @@ -6568,8 +6694,10 @@ effective liberty that each of these groups might face. market constraints +
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 @@ -6584,8 +6712,9 @@ 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 +6728,10 @@ 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 +6740,9 @@ 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 @@ -6621,6 +6757,8 @@ 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 +6771,9 @@ 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 +6792,9 @@ 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 +6803,14 @@ 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 @@ -6692,8 +6841,13 @@ 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 +6879,9 @@ 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 +6896,8 @@ 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 +6910,10 @@ 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 +6927,8 @@ 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 +6944,9 @@ 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 +6968,7 @@ 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 @@ -6815,21 +6980,33 @@ 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 @@ -6848,6 +7025,9 @@ 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 +7038,9 @@ 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 +7056,8 @@ 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 +7065,10 @@ 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 @@ -6905,6 +7094,11 @@ 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 @@ -6930,6 +7124,7 @@ 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 +7133,7 @@ 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 +7141,7 @@ 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 +7166,8 @@ 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 +7194,9 @@ 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 +7209,9 @@ 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 +7220,8 @@ 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. +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 +7232,7 @@ 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 +7244,7 @@ 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 +7255,9 @@ 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 +7277,8 @@ 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 +7294,24 @@ 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 +7340,9 @@ 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 +7357,7 @@ 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 +7372,7 @@ 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 +7381,14 @@ 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 +7407,9 @@ 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 +7420,7 @@ 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 +7449,7 @@ 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 +7499,7 @@ pp. 53–59). These two different uses of my creative work are treated the same. + Disney, Walt Mickey Mouse @@ -7281,9 +7516,13 @@ 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 +7539,8 @@ 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 +7555,7 @@ 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 @@ -7330,6 +7572,8 @@ 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. @@ -7372,6 +7616,8 @@ diagram on next page). +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. @@ -7381,6 +7627,8 @@ 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 @@ -7400,6 +7648,7 @@ for public policy (and possibly First Amendment) reasons. 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 +7656,9 @@ 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 +7680,8 @@ 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 +7694,7 @@ 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 @@ -7482,6 +7735,9 @@ 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 +7767,16 @@ 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 +7794,10 @@ 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 +7813,11 @@ 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 +7837,7 @@ 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 +7852,15 @@ 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 +7894,8 @@ 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 +7940,7 @@ like the Marx Brothers, knew that no court would ever enforce such a silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. -bookson Internet +bookson Internet On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a @@ -7875,7 +8158,7 @@ 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.