X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/6ab9e9f8f385a8cdfc30d8e7b6134d45851180f2..f996fa37271db00487dc83c715d97fef1e9149d6:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 18cb2a9..9addf20 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -1,21 +1,17 @@ - + + - ]> - - Free Culture @@ -36,47 +32,109 @@ - - 2004 - Lawrence Lessig - - + + + + Intellectual property—United States. + + + Mass media—United States. + + + Technological innovations—United States. + + + Art—United States. + + + + + + The Penguin Press +
New York
+ + + + 2004 + Lawrence Lessig + - -This version of Free Culture 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, -click the icon above, or visit + + + + + + + + + + Creative Commons, Some rights reserved + + + + + +This version of Free Culture 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, click the icon above, or visit http://creativecommons.org/licenses/by-nc/1.0/ - + ABOUT THE AUTHOR LAWRENCE LESSIG -(http://www.lessig.org), +(http://www.lessig.org), professor of law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons -(http://creativecommons.org). +(http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, -twice listed in BusinessWeek's "e.biz 25," and named one of Scientific -American's "50 visionaries." A graduate of the University of +twice listed in BusinessWeek's e.biz 25, and named one of Scientific +American's 50 visionaries. A graduate of the University of Pennsylvania, Cambridge University, and Yale Law School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals. - - - + + + + + + + + + 1-59420-006-8 + + 2003063276 + + + + + You can buy a copy of this book by clicking on one of the links below: @@ -86,9 +144,11 @@ You can buy a copy of this book by clicking on one of the links below: Penguin + - + + ALSO BY LAWRENCE LESSIG @@ -98,13 +158,17 @@ The Future of Ideas: The Fate of the Commons in a Connected World Code: And Other Laws of Cyberspace - + + + THE PENGUIN PRESS, NEW YORK - + + + FREE CULTURE @@ -118,8 +182,9 @@ AND CONTROL CREATIVITY LAWRENCE LESSIG - + + THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New York @@ -128,9 +193,9 @@ 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. +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 @@ -157,6 +222,7 @@ Includes index. ISBN 1-59420-006-8 (hardcover) + 1. Intellectual property—United States. 2. Mass media—United States. @@ -192,28 +258,24 @@ 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. +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 it continues still. - - -
-Creative Commons, Some rights reserved - -
- @@ -286,9 +348,10 @@ c INDEX Pogue, David -At the end of his review of my first book, Code: And Other Laws of -Cyberspace, David Pogue, a brilliant writer and author of countless -technical and computer-related texts, wrote this: +At the end of his review of my first +book, Code: And Other Laws of Cyberspace, David +Pogue, a brilliant writer and author of countless technical and +computer-related texts, wrote this:
@@ -296,44 +359,46 @@ Unlike actual law, Internet software has no capacity to punish. It doesn't affect people who aren't online (and only a tiny minority of the world population is). And if you don't like the Internet's system, you can always flip off the modem. -David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000. +David Pogue, Don't Just Chat, Do Something, New York Times, 30 January 2000.
Pogue was skeptical of the core argument of the book—that -software, or "code," functioned as a kind of law—and his review +software, or code, functioned as a kind of law—and his review suggested the happy thought that if life in cyberspace got bad, we -could always "drizzle, drazzle, druzzle, drome"-like simply flip a +could always drizzle, drazzle, druzzle, drome-like simply flip a switch and be back home. Turn off the modem, unplug the computer, and any troubles that exist in that space wouldn't -"affect" us anymore. +affect us anymore. Pogue might have been right in 1999—I'm skeptical, but maybe. -But even if he was right then, the point is not right now: Free Culture -is about the troubles the Internet causes even after the modem is turned - +But even if he was right then, the point is not right now: +Free Culture is about the troubles the Internet +causes even after the modem is turned + off. It is an argument about how the battles that now rage regarding life -on-line have fundamentally affected "people who aren't online." There +on-line have fundamentally affected people who aren't online. There is no switch that will insulate us from the Internet's effect. -But unlike Code, the argument here is not much about the Internet -itself. It is instead about the consequence of the Internet to a part of -our tradition that is much more fundamental, and, as hard as this is for -a geek-wanna-be to admit, much more important. +But unlike Code, the argument here is not much +about the Internet itself. It is instead about the consequence of the +Internet to a part of our tradition that is much more fundamental, +and, as hard as this is for a geek-wanna-be to admit, much more +important. That tradition is the way our culture gets made. As I explain in the -pages that follow, we come from a tradition of "free culture"—not -"free" as in "free beer" (to borrow a phrase from the founder of the +pages that follow, we come from a tradition of free culture—not +free as in free beer (to borrow a phrase from the founder of the free software movement -Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002). -), but "free" as in "free speech," "free markets," -"free trade," "free enterprise," "free will," and "free elections." A +Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002). +), but free as in free speech, free markets, +free trade, free enterprise, free will, and free elections. A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that @@ -341,13 +406,13 @@ follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a -"permission culture"—a culture in which creators get to create +permission culture—a culture in which creators get to create only with the permission of the powerful, or of creators from the past. -If we understood this change, I believe we would resist it. Not "we" -on the Left or "you" on the Right, but we who have no stake in the +If we understood this change, I believe we would resist it. Not we +on the Left or you on the Right, but we who have no stake in the particular industries of culture that defined the twentieth century. Whether you are on the Left or the Right, if you are in this sense disinterested, then the story I tell here will trouble you. For the @@ -360,9 +425,9 @@ We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC considered changes in media ownership rules that would relax limits on media concentration, an extraordinary coalition generated more than 700,000 letters to the FCC opposing the change. -As William Safire described marching "uncomfortably alongside CodePink +As William Safire described marching uncomfortably alongside CodePink Women for Peace and the National Rifle Association, between liberal -Olympia Snowe and conservative Ted Stevens," he formulated perhaps +Olympia Snowe and conservative Ted Stevens, he formulated perhaps most simply just what was at stake: the concentration of power. And as he asked, Safire, William @@ -374,13 +439,13 @@ power—political, corporate, media, cultural—should be anathema to conservatives. The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and the greatest expression of democracy. William Safire, -"The Great Media Gulp," New York Times, 22 May 2003. +The Great Media Gulp, New York Times, 22 May 2003. Safire, William -This idea is an element of the argument of Free Culture, though my +This idea is an element of the argument of Free Culture, though my focus is not just on the concentration of power produced by concentrations in ownership, but more importantly, if because less visibly, on the concentration of power produced by a radical change in @@ -390,10 +455,10 @@ you—whether or not you care about the Internet, and whether you're on Safire's left or on his right. The inspiration for the title and for much of the argument of this book comes from the work of Richard Stallman and the Free Software Foundation. Indeed, as I reread -Stallman's own work, especially the essays in Free Software, Free -Society, I realize that all of the theoretical insights I develop here +Stallman's own work, especially the essays in Free Software, Free +Society, I realize that all of the theoretical insights I develop here are insights Stallman described decades ago. One could thus well argue -that this work is "merely" derivative. +that this work is merely derivative. I accept that criticism, if indeed it is a criticism. The work of a @@ -405,7 +470,7 @@ like Stallman, I believe those are values of our past that will need to be defended in our future. A free culture has been our past, but it will only be our future if we change the path we are on right now. - + Like Stallman's arguments for free software, an argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not @@ -428,8 +493,19 @@ book is written. - + INTRODUCTION + + air traffic, land ownership vs. + + + land ownership, air traffic and + + + property rights + air traffic vs. + +Wright brothers On December 17, 1903, on a windy North Carolina beach for just shy of one hundred seconds, the Wright brothers demonstrated that a @@ -442,8 +518,8 @@ flight, and a gaggle of innovators began to build upon it. At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, -and all the space above, to "an indefinite extent, upwards." -St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: +and all the space above, to an indefinite extent, upwards. +St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18. For many @@ -469,8 +545,8 @@ because of low-flying military aircraft (the terrified chickens apparently flew into the barn walls and died), the Causbys filed a lawsuit saying that the government was trespassing on their land. The airplanes, of course, never touched the surface of the Causbys' land. But if, as -Blackstone, Kent, and Coke had said, their land reached to "an indefinite -extent, upwards," then the government was trespassing on their +Blackstone, Kent, and Coke had said, their land reached to an indefinite +extent, upwards, then the government was trespassing on their property, and the Causbys wanted it to stop. Causby, Thomas Lee @@ -479,9 +555,9 @@ property, and the Causbys wanted it to stop. The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the heavens, then Congress's declaration could well have been an unconstitutional -"taking" of property without compensation. The Court acknowledged -that "it is ancient doctrine that common law ownership of -the land extended to the periphery of the universe." But Justice Douglas +taking of property without compensation. The Court acknowledged +that it is ancient doctrine that common law ownership of +the land extended to the periphery of the universe. But Justice Douglas had no patience for ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the Court, @@ -497,12 +573,12 @@ interest, and transfer into private ownership that to which only the public has a just claim. United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find -that there could be a "taking" if the government's use of its land +that there could be a taking if the government's use of its land effectively destroyed the value of the Causbys' land. This example was -suggested to me by Keith Aoki's wonderful piece, "(Intellectual) +suggested to me by Keith Aoki's wonderful piece, (Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of -Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul -Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), +Authorship, Stanford Law Review 48 (1996): 1293, 1333. See also Paul +Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), 1112–13. Causby, Thomas Lee Causby, Tinie @@ -510,21 +586,22 @@ Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), -"Common sense revolts at the idea." +Common sense revolts at the idea. This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It was Douglas's style not to dither. Other justices would have blathered on for pages to reach the - -conclusion that Douglas holds in a single line: "Common sense revolts -at the idea." But whether it takes pages or a few words, it is the special + +conclusion that Douglas holds in a single line: Common sense revolts +at the idea. But whether it takes pages or a few words, it is the special genius of a common law system, as ours is, that the law adjusts to the technologies of the time. And as it adjusts, it changes. Ideas that were as solid as rock in one age crumble in another. Causby, Thomas Lee Causby, Tinie +Wright brothers Or at least, this is how things happen when there's no one powerful on the other side of the change. The Causbys were just farmers. And @@ -534,17 +611,23 @@ themselves into walls), the Causbys of the world would find it very hard to unite and stop the idea, and the technology, that the Wright brothers had birthed. The Wright brothers spat airplanes into the technological meme pool; the idea then spread like a virus in a chicken -coop; farmers like the Causbys found themselves surrounded by "what -seemed reasonable" given the technology that the Wrights had produced. +coop; farmers like the Causbys found themselves surrounded by what +seemed reasonable given the technology that the Wrights had produced. They could stand on their farms, dead chickens in hand, and shake their fists at these newfangled technologies all they wanted. They could call their representatives or even file a lawsuit. But in the -end, the force of what seems "obvious" to everyone else—the power of -"common sense"—would prevail. Their "private interest" would not be +end, the force of what seems obvious to everyone else—the power of +common sense—would prevail. Their private interest would not be allowed to defeat an obvious public gain. + + + + + Armstrong, Edwin Howard + -Edwin Howard Armstrong is one of America's forgotten inventor +Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He came to the great American inventor scene just after the titans Thomas Edison and Alexander Graham Bell. But his work in the area of radio technology was perhaps the most important of any @@ -577,8 +660,8 @@ until the radio locked on a broadcast that he had arranged from seventeen miles away. The radio fell totally silent, as if dead, and then with a clarity no one else in that room had ever heard from an electrical device, it produced the sound of an announcer's voice: -"This is amateur station W2AG at Yonkers, New York, operating on -frequency modulation at two and a half meters." +This is amateur station W2AG at Yonkers, New York, operating on +frequency modulation at two and a half meters. The audience was hearing something no one had thought possible: @@ -586,13 +669,13 @@ The audience was hearing something no one had thought possible:
A glass of water was poured before the microphone in Yonkers; it -sounded like a glass of water being poured. . . . A paper was crumpled +sounded like a glass of water being poured. … A paper was crumpled and torn; it sounded like paper and not like a crackling forest -fire. . . . Sousa marches were played from records and a piano solo -and guitar number were performed. . . . The music was projected with a -live-ness rarely if ever heard before from a radio "music -box." -Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong +fire. … Sousa marches were played from records and a piano solo +and guitar number were performed. … The music was projected with a +live-ness rarely if ever heard before from a radio music +box. +Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209. @@ -604,13 +687,13 @@ was working for RCA. RCA was the dominant player in the then dominant AM radio market. By 1935, there were a thousand radio stations across the United States, but the stations in large cities were all owned by a handful of networks. - + RCA's president, David Sarnoff, a friend of Armstrong's, was eager that Armstrong discover a way to remove static from AM radio. So Sarnoff was quite excited when Armstrong told him he had a device -that removed static from "radio." But when Armstrong demonstrated +that removed static from radio. But when Armstrong demonstrated his invention, Sarnoff was not pleased. Sarnoff, David @@ -619,8 +702,8 @@ his invention, Sarnoff was not pleased. I thought Armstrong would invent some kind of a filter to remove static from our AM radio. I didn't think he'd start a revolution— start up a whole damn new industry to compete with -RCA. See "Saints: The Heroes and Geniuses of the -Electronic Era," First Electronic Church of America, at +RCA. See Saints: The Heroes and Geniuses of the +Electronic Era, First Electronic Church of America, at www.webstationone.com/fecha, available at link #1. @@ -639,8 +722,8 @@ described, The forces for FM, largely engineering, could not overcome the weight of strategy devised by the sales, patent, and legal offices to subdue this threat to corporate position. For FM, if allowed to develop -unrestrained, posed . . . a complete reordering of radio power -. . . and the eventual overthrow of the carefully restricted AM system +unrestrained, posed … a complete reordering of radio power +… and the eventual overthrow of the carefully restricted AM system on which RCA had grown to power.Lessing, 226. @@ -692,6 +775,7 @@ would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of a thirteenth-story window to his death. + This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From @@ -703,7 +787,7 @@ the government to protect it. The rhetoric of this protection is of course always public spirited; the reality is something different. Ideas that were as solid as rock in one age, but that, left to themselves, would crumble in - + another, are sustained through this subtle corruption of our political process. RCA had what the Causbys did not: the power to stifle the effect of technological change. @@ -715,8 +799,8 @@ has become part of ordinary American life. According to the Pew Internet and American Life Project, 58 percent of Americans had access to the Internet in 2002, up from 49 percent two years before. -Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at -Internet Access and the Digital Divide," Pew Internet and American +Amanda Lenhart, The Ever-Shifting Internet Population: A New Look at +Internet Access and the Digital Divide, Pew Internet and American Life Project, 15 April 2003: 6, available at link #2. @@ -746,14 +830,16 @@ has introduced. We can glimpse a sense of this change by distinguishing between commercial and noncommercial culture, and by mapping the law's -regulation of each. By "commercial culture" I mean that part of our +regulation of each. By commercial culture I mean that part of our culture that is produced and sold or produced to be sold. By -"noncommercial culture" I mean all the rest. When old men sat around +noncommercial culture I mean all the rest. When old men sat around parks or on street corners telling stories that kids and others consumed, that was -noncommercial culture. When Noah Webster published his "Reader," or +noncommercial culture. When Noah Webster published his Reader, or Joel Barlow his poetry, that was commercial culture. +Barlow, Joel +Webster, Noah At the beginning of our history, and for just about the whole of our @@ -761,7 +847,7 @@ tradition, noncommercial culture was essentially unregulated. Of course, if your stories were lewd, or if your song disturbed the peace, then the law might intervene. But the law was never directly concerned with the creation or spread of this form of culture, and it -left this culture "free." The ordinary ways in which ordinary +left this culture free. The ordinary ways in which ordinary individuals shared and transformed their culture—telling stories, reenacting scenes from plays or TV, participating in fan clubs, sharing music, making tapes—were left alone by the law. @@ -779,7 +865,7 @@ State copyright law historically protected not just the commercial interest in publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis -D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, +D. Brandeis, The Right to Privacy, Harvard Law Review 4 (1890): 193, 198–200. Brandeis, Louis D. @@ -791,8 +877,9 @@ part, a controlled part, balanced with the free. This rough divide between the free and the controlled has now been erased. -See Jessica Litman, Digital Copyright (New York: Prometheus Books, +See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13. +Litman, Jessica The Internet has set the stage for this erasure and, pushed by big media, the law has now affected it. For the first time in our @@ -851,14 +938,14 @@ remakes them. It doesn't seem this way to many. The battles over copyright and the Internet seem remote to most. To the few who follow them, they seem -mainly about a much simpler brace of questions—whether "piracy" will -be permitted, and whether "property" will be protected. The "war" that +mainly about a much simpler brace of questions—whether piracy will +be permitted, and whether property will be protected. The war that has been waged against the technologies of the Internet—what Motion Picture Association of America (MPAA) president Jack Valenti -calls his "own terrorist war" -Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates -Use New Tools to Turn the Net into an Illicit Video Club," New York -Times, 17 January 2002. +calls his own terrorist war +Amy Harmon, Black Hawk Download: Moving Beyond Music, Pirates +Use New Tools to Turn the Net into an Illicit Video Club, New York +Times, 17 January 2002. —has been framed as a battle about the rule of law and respect for property. To know which side to take in this war, most think that we need only decide whether we're for property or @@ -868,14 +955,14 @@ against it. If those really were the choices, then I would be with Jack Valenti and the content industry. I, too, am a believer in property, and especially in the importance of what Mr. Valenti nicely calls -"creative property." I believe that "piracy" is wrong, and that the -law, properly tuned, should punish "piracy," whether on or off the +creative property. I believe that piracy is wrong, and that the +law, properly tuned, should punish piracy, whether on or off the Internet. But those simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is that unless we come to see -this change, the war to rid the world of Internet "pirates" will also rid our +this change, the war to rid the world of Internet pirates will also rid our culture of values that have been integral to our tradition from the start. @@ -885,8 +972,8 @@ past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. And as Professor Neil Netanel powerfully argues, -Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law -Journal 106 (1996): 283. +Neil W. Netanel, Copyright and a Democratic Civil Society, Yale Law +Journal 106 (1996): 283. Netanel, Neil Weinstock copyright law, properly balanced, protected creators against private @@ -908,7 +995,7 @@ nobility of any form that is alien to our tradition. The story that follows is about this war. Is it not about the -"centrality of technology" to ordinary life. I don't believe in gods, +centrality of technology to ordinary life. I don't believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group, for neither do I believe in a devil, corporate or otherwise. It is not a morality tale. Nor is it a call to jihad @@ -926,29 +1013,30 @@ come to understand the source of this war. We must resolve it soon. Causby, Thomas Lee Causby, Tinie -Like the Causbys' battle, this war is, in part, about "property." The +Like the Causbys' battle, this war is, in part, about property. The property of this war is not as tangible as the Causbys', and no innocent chicken has yet to lose its life. Yet the ideas surrounding -this "property" are as obvious to most as the Causbys' claim about the +this property are as obvious to most as the Causbys' claim about the sacredness of their farm was to them. We are the Causbys. Most of us take for granted the extraordinarily powerful claims that the owners -of "intellectual property" now assert. Most of us, like the Causbys, +of intellectual property now assert. Most of us, like the Causbys, treat these claims as obvious. And hence we, like the Causbys, object when a new technology interferes with this property. It is as plain to us as it was to them that the new technologies of the Internet are -"trespassing" upon legitimate claims of "property." It is as plain to +trespassing upon legitimate claims of property. It is as plain to us as it was to them that the law should intervene to stop this trespass. Causby, Thomas Lee Causby, Tinie +Wright brothers And thus, when geeks and technologists defend their Armstrong or Wright brothers technology, most of us are simply unsympathetic. Common sense does not revolt. Unlike in the case of the unlucky Causbys, common sense is on the side of the property owners in this war. Unlike - + the lucky Wright brothers, the Internet has not inspired a revolution on its side. @@ -957,7 +1045,7 @@ My hope is to push this common sense along. I have become increasingly amazed by the power of this idea of intellectual property and, more importantly, its power to disable critical thought by policy makers and citizens. There has never been a time in our history when more of -our "culture" was as "owned" as it is now. And yet there has never +our culture was as owned as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now. @@ -992,15 +1080,15 @@ view? I don't mean to be mysterious. My own views are resolved. I believe it was right for common sense to revolt against the extremism of the Causbys. I believe it would be right for common sense to revolt -against the extreme claims made today on behalf of "intellectual -property." What the law demands today is increasingly as silly as a +against the extreme claims made today on behalf of intellectual +property. What the law demands today is increasingly as silly as a sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound. -The struggle that rages just now centers on two ideas: "piracy" and -"property." My aim in this book's next two parts is to explore these two +The struggle that rages just now centers on two ideas: piracy and +property. My aim in this book's next two parts is to explore these two ideas. @@ -1014,10 +1102,10 @@ simple ideas can be more fully understood. The two sections set up the core claim of this book: that while the Internet has indeed produced something fantastic and new, our -government, pushed by big media to respond to this "something new," is +government, pushed by big media to respond to this something new, is destroying something very old. Rather than understanding the changes -the Internet might permit, and rather than taking time to let "common -sense" resolve how best to respond, we are allowing those most +the Internet might permit, and rather than taking time to let common +sense resolve how best to respond, we are allowing those most threatened by the changes to use their power to change the law—and more importantly, to use their power to change something fundamental about who we have always been. @@ -1032,17 +1120,17 @@ to which most of us remain oblivious. - -"PIRACY" - + +<quote>PIRACY</quote> + Mansfield, William Murray, Lord Since the inception of the law regulating creative property, there has -been a war against "piracy." The precise contours of this concept, -"piracy," are hard to sketch, but the animating injustice is easy to +been a war against piracy. The precise contours of this concept, +piracy, are hard to sketch, but the animating injustice is easy to capture. As Lord Mansfield wrote in a case that extended the reach of English copyright law to include sheet music, @@ -1052,13 +1140,13 @@ A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying copies and disposing of them for his own use. -Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). +Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
-Today we are in the middle of another "war" against "piracy." The +Today we are in the middle of another war against piracy. The Internet has provoked this war. The Internet makes possible the efficient spread of content. Peer-to-peer (p2p) file sharing is among the most efficient of the efficient technologies the Internet @@ -1071,21 +1159,21 @@ This efficiency does not respect the traditional lines of copyright. The network doesn't discriminate between the sharing of copyrighted and uncopyrighted content. Thus has there been a vast amount of sharing of copyrighted content. That sharing in turn has excited the -war, as copyright owners fear the sharing will "rob the author of the -profit." +war, as copyright owners fear the sharing will rob the author of the +profit. The warriors have turned to the courts, to the legislatures, and -increasingly to technology to defend their "property" against this -"piracy." A generation of Americans, the warriors warn, is being -raised to believe that "property" should be "free." Forget tattoos, +increasingly to technology to defend their property against this +piracy. A generation of Americans, the warriors warn, is being +raised to believe that property should be free. Forget tattoos, never mind body piercing—our kids are becoming -thieves! +thieves! -There's no doubt that "piracy" is wrong, and that pirates should be +There's no doubt that piracy is wrong, and that pirates should be punished. But before we summon the executioners, we should put this -notion of "piracy" in some context. For as the concept is increasingly +notion of piracy in some context. For as the concept is increasingly used, at its core is an extraordinary idea that is almost certainly wrong. @@ -1104,33 +1192,33 @@ piracy. Dreyfuss, Rochelle This view runs deep within the current debates. It is what NYU law -professor Rochelle Dreyfuss criticizes as the "if value, then right" +professor Rochelle Dreyfuss criticizes as the if value, then right theory of creative property -See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language -in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397. +See Rochelle Dreyfuss, Expressive Genericity: Trademarks as Language +in the Pepsi Generation, Notre Dame Law Review 65 (1990): 397. —if there is value, then someone must have a right to that value. It is the perspective that led a composers' rights organization, ASCAP, to sue the Girl Scouts for failing to pay for the songs that girls sang around Girl Scout campfires. -Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay -Up," Wall Street Journal, 21 August 1996, available at +Lisa Bannon, The Birds May Sing, but Campers Can't Unless They Pay +Up, Wall Street Journal, 21 August 1996, available at link #3; Jonathan -Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free -Speech, No One Wins," Boston Globe, 24 November 2002. +Zittrain, Calling Off the Copyright War: In Battle of Property vs. Free +Speech, No One Wins, Boston Globe, 24 November 2002. Zittrain, Jonathan -There was "value" (the songs) so there must have been a -"right"—even against the Girl Scouts. +There was value (the songs) so there must have been a +right—even against the Girl Scouts. ASCAP This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system -of law protecting creative property. But the "if value, then right" +of law protecting creative property. But the if value, then right theory of creative property has never been America's theory of creative property. It has never taken hold within our law. @@ -1157,12 +1245,13 @@ Byzantine complexity that copyright law has become. It was just one more expense of doing business. Florida, Richard +Rise of the Creative Class, The (Florida) But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of commercial creators but effectively that of anyone. Although that expansion would not matter much if copyright law regulated only -"copying," when the law regulates as broadly and obscurely as it does, +copying, when the law regulates as broadly and obscurely as it does, the extension matters a lot. The burden of this law now vastly outweighs any original benefit—certainly as it affects noncommercial creativity, and increasingly as it affects commercial @@ -1174,17 +1263,20 @@ commercial and noncommercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may -be seeing, as Richard Florida writes, the "Rise of the Creative Class." +be seeing, as Richard Florida writes, the Rise of the Creative +Class. -In The Rise of the Creative Class (New York: Basic Books, 2002), -Richard Florida documents a shift in the nature of labor toward a -labor of creativity. His work, however, doesn't directly address the -legal conditions under which that creativity is enabled or stifled. I -certainly agree with him about the importance and significance of this -change, but I also believe the conditions under which it will be -enabled are much more tenuous. +In The Rise of the Creative Class (New York: +Basic Books, 2002), Richard Florida documents a shift in the nature of +labor toward a labor of creativity. His work, however, doesn't +directly address the legal conditions under which that creativity is +enabled or stifled. I certainly agree with him about the importance +and significance of this change, but I also believe the conditions +under which it will be enabled are much more tenuous. + Florida, Richard +Rise of the Creative Class, The (Florida) Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. @@ -1192,22 +1284,26 @@ this creative class. These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper -context the current battles about behavior labeled "piracy." +context the current battles about behavior labeled piracy. + - + CHAPTER ONE: Creators + + animated cartoons + In 1928, a cartoon character was born. An early Mickey Mouse -made his debut in May of that year, in a silent flop called Plane Crazy. +made his debut in May of that year, in a silent flop called Plane Crazy. In November, in New York City's Colony Theater, in the first widely -distributed cartoon synchronized with sound, Steamboat Willie brought +distributed cartoon synchronized with sound, Steamboat Willie brought to life the character that would become Mickey Mouse. Synchronized sound had been introduced to film a year earlier in the -movie The Jazz Singer. That success led Walt Disney to copy the +movie The Jazz Singer. That success led Walt Disney to copy the technique and mix sound with cartoons. No one knew whether it would work or, if it did work, whether it would win an audience. But when Disney ran a test in the summer of 1928, the results were unambiguous. @@ -1235,15 +1331,15 @@ motion. I thought they were kidding me. So they put me in the audience and ran the action again. It was terrible, but it was wonderful! And it was something new! -Leonard Maltin, Of Mice and Magic: A History of American Animated -Cartoons (New York: Penguin Books, 1987), 34–35. +Leonard Maltin, Of Mice and Magic: A History of American Animated +Cartoons (New York: Penguin Books, 1987), 34–35. Disney's then partner, and one of animation's most extraordinary -talents, Ub Iwerks, put it more strongly: "I have never been so thrilled -in my life. Nothing since has ever equaled it." +talents, Ub Iwerks, put it more strongly: I have never been so thrilled +in my life. Nothing since has ever equaled it. Iwerks, Ub @@ -1256,21 +1352,22 @@ match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others. -This much is familiar. What you might not know is that 1928 also -marks another important transition. In that year, a comic (as opposed -to cartoon) genius created his last independently produced silent film. -That genius was Buster Keaton. The film was Steamboat Bill, Jr. +This much is familiar. What you might not know is that 1928 also marks +another important transition. In that year, a comic (as opposed to +cartoon) genius created his last independently produced silent film. +That genius was Buster Keaton. The film was Steamboat Bill, Jr. -Keaton was born into a vaudeville family in 1895. In the era of -silent film, he had mastered using broad physical comedy as a way to -spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was -a classic of this form, famous among film buffs for its incredible stunts. -The film was classic Keaton—wildly popular and among the best of its -genre. +Keaton was born into a vaudeville family in 1895. In the era of silent +film, he had mastered using broad physical comedy as a way to spark +uncontrollable laughter from his audience. Steamboat Bill, +Jr. was a classic of this form, famous among film buffs for its +incredible stunts. The film was classic Keaton—wildly popular +and among the best of its genre. -Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. +Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat +Willie. The coincidence of titles is not coincidental. Steamboat Willie is a direct cartoon parody of Steamboat Bill, @@ -1278,26 +1375,26 @@ direct cartoon parody of Steamboat Bill, I am grateful to David Gerstein and his careful history, described at link #4. According to Dave Smith of the Disney Archives, Disney paid royalties to -use the music for five songs in Steamboat Willie: "Steamboat Bill," "The -Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1" -(Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the -Straw," was already in the public domain. Letter from David Smith to +use the music for five songs in Steamboat Willie: Steamboat Bill, The +Simpleton (Delille), Mischief Makers (Carbonara), Joyful Hurry No. 1 +(Baron), and Gawky Rube (Lakay). A sixth song, The Turkey in the +Straw, was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author. and both are built upon a common song as a source. It is not just from -the invention of synchronized sound in The Jazz Singer that we get -Steamboat Willie. It is also from Buster Keaton's invention of -Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill," +the invention of synchronized sound in The Jazz Singer that we +get Steamboat Willie. It is also from Buster Keaton's invention of +Steamboat Bill, Jr., itself inspired by the song Steamboat Bill, that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse. -This "borrowing" was nothing unique, either for Disney or for the +This borrowing was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream films of his day. -He was also a fan of the public domain. See Chris Sprigman, "The Mouse -that Ate the Public Domain," Findlaw, 5 March 2002, at +He was also a fan of the public domain. See Chris Sprigman, The Mouse +that Ate the Public Domain, Findlaw, 5 March 2002, at link #5. So did many others. Early cartoons are filled with @@ -1326,26 +1423,29 @@ light. Without removing the elements of fear and danger altogether, he made funny what was dark and injected a genuine emotion of compassion where before there was fear. And not just with the work of the Brothers Grimm. Indeed, the catalog of Disney work drawing upon the -work of others is astonishing when set together: Snow White (1937), -Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of -the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin -Hood (1952), Peter Pan (1953), Lady and the Tramp +work of others is astonishing when set together: Snow White +(1937), Fantasia (1940), Pinocchio (1940), Dumbo +(1941), Bambi (1942), Song of the South (1946), +Cinderella (1950), Alice in Wonderland (1951), Robin +Hood (1952), Peter Pan (1953), Lady and the Tramp -(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), -The Sword in the Stone (1963), and The Jungle Book (1967)—not to -mention a recent example that we should perhaps quickly forget, -Treasure Planet (2003). In all of these cases, Disney (or Disney, -Inc.) ripped creativity from the culture around him, mixed that -creativity with his own extraordinary talent, and then burned that mix -into the soul of his culture. Rip, mix, and burn. +(1955), Mulan (1998), Sleeping Beauty (1959), 101 +Dalmatians (1961), The Sword in the Stone (1963), and +The Jungle Book (1967)—not to mention a recent example +that we should perhaps quickly forget, Treasure Planet +(2003). In all of these cases, Disney (or Disney, Inc.) ripped +creativity from the culture around him, mixed that creativity with his +own extraordinary talent, and then burned that mix into the soul of +his culture. Rip, mix, and burn. + This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would say that there is no creativity except this kind. We don't need to go that far to recognize -its importance. We could call this "Disney creativity," though that -would be a bit misleading. It is, more precisely, "Walt Disney -creativity"—a form of expression and genius that builds upon the +its importance. We could call this Disney creativity, though that +would be a bit misleading. It is, more precisely, Walt Disney +creativity—a form of expression and genius that builds upon the culture around us and makes it something different. In 1928, the culture that Disney was free to draw upon was @@ -1355,7 +1455,7 @@ thirty years—for that minority of creative work that was in fact copyrighted. Until 1976, copyright law granted an author the possibility of two terms: an -initial term and a renewal term. I have calculated the "average" term by +initial term and a renewal term. I have calculated the average term by determining the weighted average of total registrations for any particular year, and the proportion renewing. Thus, if 100 copyrights are registered in year @@ -1366,15 +1466,15 @@ Web site associated with this book, available at link #6. That means that for thirty years, on average, the authors or -copyright holders of a creative work had an "exclusive right" to control +copyright holders of a creative work had an exclusive right to control certain uses of the work. To use this copyrighted work in limited ways required the permission of the copyright owner. At the end of a copyright term, a work passes into the public domain. No permission is then needed to draw upon or use that work. No -permission and, hence, no lawyers. The public domain is a "lawyer-free -zone." Thus, most of the content from the nineteenth century was free +permission and, hence, no lawyers. The public domain is a lawyer-free +zone. Thus, most of the content from the nineteenth century was free for Disney to use and build upon in 1928. It was free for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon. @@ -1393,14 +1493,14 @@ permission. Yet today, the public domain is presumptive only for content from before the Great Depression. -Of course, Walt Disney had no monopoly on "Walt Disney creativity." +Of course, Walt Disney had no monopoly on Walt Disney creativity. Nor does America. The norm of free culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal. Consider, for example, a form of creativity that seems strange to many -Americans but that is inescapable within Japanese culture: manga, or +Americans but that is inescapable within Japanese culture: manga, or comics. The Japanese are fanatics about comics. Some 40 percent of publications are comics, and 30 percent of publication revenue derives from comics. They are everywhere in Japanese society, at every @@ -1411,8 +1511,8 @@ extraordinary system of public transportation. Americans tend to look down upon this form of culture. That's an unattractive characteristic of ours. We're likely to misunderstand much about manga, because few of us have ever read anything close to -the stories that these "graphic novels" tell. For the Japanese, manga -cover every aspect of social life. For us, comics are "men in tights." +the stories that these graphic novels tell. For the Japanese, manga +cover every aspect of social life. For us, comics are men in tights. And anyway, it's not as if the New York subways are filled with readers of Joyce or even Hemingway. People of different cultures distract themselves in different ways, the Japanese in this @@ -1424,22 +1524,23 @@ variant on manga that from a lawyer's perspective is quite odd, but from a Disney perspective is quite familiar. -This is the phenomenon of doujinshi. Doujinshi are also comics, but +This is the phenomenon of doujinshi. Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of -doujinshi. It is not doujinshi if it is just a copy; the artist must make a -contribution to the art he copies, by transforming it either subtly or +doujinshi. It is not doujinshi if it is just a +copy; the artist must make a contribution to the art he copies, by +transforming it either subtly or significantly. A doujinshi comic can thus take a mainstream comic and develop it differently—with a different story line. Or the comic can keep the character in character but change its look slightly. There is no -formula for what makes the doujinshi sufficiently "different." But they +formula for what makes the doujinshi sufficiently different. But they must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy. These copycat comics are not a tiny part of the manga market. They are -huge. More than 33,000 "circles" of creators from across Japan produce +huge. More than 33,000 circles of creators from across Japan produce these bits of Walt Disney creativity. More than 450,000 Japanese come together twice a year, in the largest public gathering in the country, to exchange and sell them. This market exists in parallel to the @@ -1453,14 +1554,14 @@ The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under Japanese copyright law, which in this respect (on paper) mirrors American copyright law, the doujinshi market is an illegal -one. Doujinshi are plainly "derivative works." There is no general +one. Doujinshi are plainly derivative works. There is no general practice by doujinshi artists of securing the permission of the manga creators. Instead, the practice is simply to take and modify the -creations of others, as Walt Disney did with Steamboat Bill, Jr. Under -both Japanese and American law, that "taking" without the permission -of the original copyright owner is illegal. It is an infringement of -the original copyright to make a copy or a derivative work without the -original copyright owner's permission. +creations of others, as Walt Disney did with Steamboat Bill, +Jr. Under both Japanese and American law, that taking without +the permission of the original copyright owner is illegal. It is an +infringement of the original copyright to make a copy or a derivative +work without the original copyright owner's permission. Winick, Judd @@ -1468,25 +1569,25 @@ original copyright owner's permission. Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga -flourish. As American graphic novelist Judd Winick said to me, "The +flourish. As American graphic novelist Judd Winick said to me, The early days of comics in America are very much like what's going on -in Japan now. . . . American comics were born out of copying each +in Japan now. … American comics were born out of copying each -other. . . . That's how [the artists] learn to draw—by going into comic -books and not tracing them, but looking at them and copying them" +other. … That's how [the artists] learn to draw—by going into comic +books and not tracing them, but looking at them and copying them and building from them. -For an excellent history, see Scott McCloud, Reinventing Comics (New +For an excellent history, see Scott McCloud, Reinventing Comics (New York: Perennial, 2000). American comics now are quite different, Winick explains, in part because of the legal difficulty of adapting comics the way doujinshi are -allowed. Speaking of Superman, Winick told me, "there are these rules -and you have to stick to them." There are things Superman "cannot" -do. "As a creator, it's frustrating having to stick to some parameters -which are fifty years old." +allowed. Speaking of Superman, Winick told me, there are these rules +and you have to stick to them. There are things Superman cannot +do. As a creator, it's frustrating having to stick to some parameters +which are fifty years old. @@ -1498,14 +1599,14 @@ technical violations because they spur the manga market to be more wealthy and productive. Everyone would be worse off if doujinshi were banned, so the law does not ban doujinshi. -See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain -Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law -Review 55 (2002): 155, 182. "[T]here might be a collective economic +See Salil K. Mehra, Copyright and Comics in Japan: Does Law Explain +Why All the Comics My Kid Watches Are Japanese Imports? Rutgers Law +Review 55 (2002): 155, 182. [T]here might be a collective economic rationality that would lead manga and anime artists to forgo bringing legal actions for infringement. One hypothesis is that all manga artists may be better off collectively if they set aside their individual self-interest and decide not to press their legal -rights. This is essentially a prisoner's dilemma solved." +rights. This is essentially a prisoner's dilemma solved. @@ -1516,15 +1617,15 @@ doujinshi are permitted rather than banned, but that doesn't explain why individual copyright owners don't sue nonetheless. If the law has no general exception for doujinshi, and indeed in some cases individual manga artists have sued doujinshi artists, why is there not -a more general pattern of blocking this "free taking" by the doujinshi +a more general pattern of blocking this free taking by the doujinshi culture? I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by -a friend from a major Japanese law firm. "We don't have enough -lawyers," he told me one afternoon. There "just aren't enough resources -to prosecute cases like this." +a friend from a major Japanese law firm. We don't have enough +lawyers, he told me one afternoon. There just aren't enough resources +to prosecute cases like this. This is a theme to which we will return: that regulation by law is a @@ -1545,16 +1646,16 @@ first start thinking about these issues, then just about now you should be puzzled about something you hadn't thought through before. -We live in a world that celebrates "property." I am one of those +We live in a world that celebrates property. I am one of those celebrants. I believe in the value of property in general, and I also believe in the value of that weird form of property that lawyers call -"intellectual property." +intellectual property. -The term intellectual property is of relatively recent origin. See -Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York -University Press, 2001). See also Lawrence Lessig, The Future of Ideas +The term intellectual property is of relatively recent origin. See +Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York +University Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), 293 n. 26. The term accurately -describes a set of "property" rights—copyright, patents, +describes a set of property rights—copyright, patents, trademark, and trade-secret—but the nature of those rights is very different. Vaidhyanathan, Siva @@ -1565,8 +1666,8 @@ property. But it takes just a second's reflection to realize that there is -plenty of value out there that "property" doesn't capture. I don't -mean "money can't buy you love," but rather, value that is plainly +plenty of value out there that property doesn't capture. I don't +mean money can't buy you love, but rather, value that is plainly part of a process of production, including commercial as well as noncommercial production. If Disney animators had stolen a set of pencils to draw Steamboat Willie, we'd have no hesitation in @@ -1574,7 +1675,7 @@ condemning that taking as wrong— even though trivial, even if unnoticed. Yet there was nothing wrong, at least under the law of the day, with Disney's taking from Buster Keaton or from the Brothers Grimm. There was nothing wrong with the taking from Keaton because -Disney's use would have been considered "fair." There was nothing +Disney's use would have been considered fair. There was nothing wrong with the taking from the Grimms because the Grimms' work was in the public domain. @@ -1597,23 +1698,23 @@ form, whether large or small. Yet there is an obvious reluctance, even among Japanese lawyers, to -say that the copycat comic artists are "stealing." This form of Walt +say that the copycat comic artists are stealing. This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard to say why. It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the work of other scientists -without asking or paying for the privilege. ("Excuse me, Professor +without asking or paying for the privilege. (Excuse me, Professor Einstein, but may I have permission to use your theory of relativity -to show that you were wrong about quantum physics?") Acting companies +to show that you were wrong about quantum physics?) Acting companies perform adaptations of the works of Shakespeare without securing -permission from anyone. (Does anyone believe Shakespeare would be -better spread within our culture if there were a central Shakespeare -rights clearinghouse that all productions of Shakespeare must appeal -to first?) And Hollywood goes through cycles with a certain kind of -movie: five asteroid films in the late 1990s; two volcano disaster -films in 1997. +permission from anyone. (Does anyone believe +Shakespeare would be better spread within our culture if there were a +central Shakespeare rights clearinghouse that all productions of +Shakespeare must appeal to first?) And Hollywood goes through cycles +with a certain kind of movie: five asteroid films in the late 1990s; +two volcano disaster films in 1997. Creators here and everywhere are always and at all times building @@ -1627,15 +1728,16 @@ societies more fully than unfree, perhaps, but all societies to some degree. -The hard question is therefore not whether a culture is free. All -cultures are free to some degree. The hard question instead is "How -free is this culture?" How much, and how broadly, is the culture free -for others to take and build upon? Is that freedom limited to party -members? To members of the royal family? To the top ten corporations -on the New York Stock Exchange? Or is that freedom spread broadly? To -artists generally, whether affiliated with the Met or not? To -musicians generally, whether white or not? To filmmakers generally, -whether affiliated with a studio or not? +The hard question is therefore not whether a +culture is free. All cultures are free to some degree. The hard +question instead is How free is this culture? +How much, and how broadly, is the culture free for others to take and +build upon? Is that freedom limited to party members? To members of +the royal family? To the top ten corporations on the New York Stock +Exchange? Or is that freedom spread broadly? To artists generally, +whether affiliated with the Met or not? To musicians generally, +whether white or not? To filmmakers generally, whether affiliated with +a studio or not? Free cultures are cultures that leave a great deal open for others to @@ -1644,29 +1746,33 @@ free culture. It is becoming much less so. - - -CHAPTER TWO: "Mere Copyists" -Daguerre, Louis + + +CHAPTER TWO: <quote>Mere Copyists</quote> + + photography + In 1839, Louis Daguerre invented the first practical technology for -producing what we would call "photographs." Appropriately enough, they -were called "daguerreotypes." The process was complicated and +producing what we would call photographs. Appropriately enough, they +were called daguerreotypes. The process was complicated and expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) +Daguerre, Louis Yet despite high prices, the demand for daguerreotypes was strong. This pushed inventors to find simpler and cheaper ways to make -"automatic pictures." William Talbot soon discovered a process for -making "negatives." But because the negatives were glass, and had to +automatic pictures. William Talbot soon discovered a process for +making negatives. But because the negatives were glass, and had to be kept wet, the process still remained expensive and cumbersome. In the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. +Talbot, William Eastman, George @@ -1686,17 +1792,18 @@ population of photographers. Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was -marketed on the basis of its simplicity. "You press the button and we -do the rest." +marketed on the basis of its simplicity. You press the button and we +do the rest. -Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112. - As he described in The Kodak Primer: +Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112. + As he described in The Kodak Primer: +Kodak Primer, The (Eastman)
The principle of the Kodak system is the separation of the work that any person whomsoever can do in making a photograph, from the work -that only an expert can do. . . . We furnish anybody, man, woman or +that only an expert can do. … We furnish anybody, man, woman or child, who has sufficient intelligence to point a box straight and press a button, with an instrument which altogether removes from the practice of photography the necessity for exceptional facilities or, @@ -1705,7 +1812,7 @@ preliminary study, without a darkroom and without chemicals. -Brian Coe, The Birth of Photography (New York: Taplinger Publishing, +Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. Coe, Brian @@ -1720,7 +1827,7 @@ improved. Roll film thus became the basis for the explosive growth of popular photography. Eastman's camera first went on sale in 1888; one year later, Kodak was printing more than six thousand negatives a day. From 1888 through 1909, while industrial production was rising by 4.7 -percent, photographic equipment and material sales increased by +percent, photographic equipment and material sales increased by 11 percent. Jenkins, 177. @@ -1738,12 +1845,12 @@ The real significance of Eastman's invention, however, was not economic. It was social. Professional photography gave individuals a glimpse of places they would never otherwise see. Amateur photography gave them the ability to record their own lives in a way they had -never been able to do before. As author Brian Coe notes, "For the +never been able to do before. As author Brian Coe notes, For the first time the snapshot album provided the man on the street with a -permanent record of his family and its activities. . . . For the first +permanent record of his family and its activities. … For the first time in history there exists an authentic visual record of the appearance and activities of the common man made without [literary] -interpretation or bias." +interpretation or bias. Coe, 58. @@ -1754,7 +1861,7 @@ expression. The pencil or paintbrush was also a technology of expression, of course. But it took years of training before they could be deployed by amateurs in any useful or effective way. With the Kodak, expression was possible much sooner and more simply. The -barrier to expression was lowered. Snobs would sneer at its "quality"; +barrier to expression was lowered. Snobs would sneer at its quality; professionals would discount it as irrelevant. But watch a child study how best to frame a picture and you get a sense of the experience of creativity that the Kodak enabled. Democratic tools gave ordinary @@ -1771,12 +1878,16 @@ Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no. -For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E. +For illustrative cases, see, for example, Pavesich +v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); +Foster-Milburn Co. v. Chinn, 123090 S.W. 364, 366 +(Ky. 1909); Corliss v. Walker, 64 F. 280 (Mass. +Dist. Ct. 1894). The arguments in favor of requiring permission will sound surprisingly -familiar. The photographer was "taking" something from the person or +familiar. The photographer was taking something from the person or building whose photograph he shot—pirating something of value. Some even thought he was taking the target's soul. Just as Disney was not free to take the pencils that his animators used to @@ -1794,13 +1905,13 @@ have the right to capture at least those images that stand in public view. the rule should be different for images from private spaces. -Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," -Harvard Law Review 4 (1890): 193. +Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, +Harvard Law Review 4 (1890): 193. Brandeis, Louis D. Warren, Samuel D. ) It may be that this means that the photographer gets something for nothing. Just as Disney could take inspiration from -Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be +Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source. @@ -1814,10 +1925,10 @@ for commercial purposes have more restrictions than the rest of us. But in the ordinary case, the image can be captured without clearing the rights to do the capturing. -See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary -Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law -Review 48 (1960) 398–407; White v. Samsung Electronics America, -Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 +See Melville B. Nimmer, The Right of Publicity, Law and Contemporary +Problems 19 (1954): 203; William L. Prosser, Privacy, California Law +Review 48 (1960) 398–407; White v. Samsung Electronics America, +Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). ) @@ -1828,10 +1939,10 @@ photographer, then the photographer would have had to demonstrate permission. Perhaps Eastman Kodak would have had to demonstrate permission, too, before it developed the film upon which images were captured. After all, if permission were not granted, then Eastman -Kodak would be benefiting from the "theft" committed by the +Kodak would be benefiting from the theft committed by the photographer. Just as Napster benefited from the copyright infringements committed by Napster users, Kodak would be benefiting -from the "image-right" infringement of its photographers. We could +from the image-right infringement of its photographers. We could imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission. @@ -1851,11 +1962,11 @@ that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been realized. If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses painted over with colorful and -striking images, and the logo "Just Think!" in place of the name of a -school. But there's little that's "just" cerebral in the projects that +striking images, and the logo Just Think! in place of the name of a +school. But there's little that's just cerebral in the projects that these busses enable. These buses are filled with technologies that teach kids to tinker with film. Not the film of Eastman. Not even the -film of your VCR. Rather the "film" of digital cameras. Just Think! +film of your VCR. Rather the film of digital cameras. Just Think! is a project that enables kids to make films, as a way to understand and critique the filmed culture that they find all around them. Each year, these busses travel to more than thirty schools and enable three @@ -1864,48 +1975,50 @@ doing something with media. By doing, they think. By tinkering, they learn. + These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has -fallen dramatically. As one analyst puts it, "Five years ago, a good +fallen dramatically. As one analyst puts it, Five years ago, a good real-time digital video editing system cost $25,000. Today you can get -professional quality for $595." +professional quality for $595. -H. Edward Goldberg, "Essential Presentation Tools: Hardware and -Software You Need to Create Digital Multimedia Presentations," +H. Edward Goldberg, Essential Presentation Tools: Hardware and +Software You Need to Create Digital Multimedia Presentations, cadalyst, February 2002, available at link #7. These buses are filled with technology that would have cost hundreds of thousands just ten years ago. And it is now feasible to imagine not just buses like this, but classrooms across the country where kids are -learning more and more of something teachers call "media literacy." +learning more and more of something teachers call media literacy. -"Media literacy," as Dave Yanofsky, the executive director of Just -Think!, puts it, "is the ability . . . to understand, analyze, and +Media literacy, as Dave Yanofsky, the executive director of Just +Think!, puts it, is the ability … to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and -the way people access it." +the way people access it. Yanofsky, Dave -This may seem like an odd way to think about "literacy." For most +This may seem like an odd way to think about literacy. For most people, literacy is about reading and writing. Faulkner and Hemingway -and noticing split infinitives are the things that "literate" people know +and noticing split infinitives are the things that literate people know about. +advertising Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 commercials generally, -Judith Van Evra, Television and Child Development (Hillsdale, N.J.: -Lawrence Erlbaum Associates, 1990); "Findings on Family and TV -Study," Denver Post, 25 May 1997, B6. +Judith Van Evra, Television and Child Development (Hillsdale, N.J.: +Lawrence Erlbaum Associates, 1990); Findings on Family and TV +Study, Denver Post, 25 May 1997, B6. -it is increasingly important to understand the "grammar" of media. For +it is increasingly important to understand the grammar of media. For just as there is a grammar for the written word, so, too, is there one for media. And just as kids learn how to write by writing lots of terrible prose, kids learn how to write media by constructing lots of @@ -1937,8 +2050,8 @@ California's Annenberg Center for Communication and dean of the USC School of Cinema-Television, explained to me, the grammar was -about "the placement of objects, color, . . . rhythm, pacing, and -texture." +about the placement of objects, color, … rhythm, pacing, and +texture. Interview with Elizabeth Daley and Stephanie Barish, 13 December @@ -1947,7 +2060,7 @@ Interview with Elizabeth Daley and Stephanie Barish, 13 December Daley, Elizabeth But as computers open up an interactive space where a story is -"played" as well as experienced, that grammar changes. The simple +played as well as experienced, that grammar changes. The simple control of narrative is lost, and so other techniques are necessary. Author Michael Crichton had mastered the narrative of science fiction. But when he tried to design a computer game based on one of his @@ -1955,9 +2068,9 @@ works, it was a new craft he had to learn. How to lead people through a game without their feeling they have been led was not obvious, even to a wildly successful author. -See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4 +See Scott Steinberg, Crichton Gets Medieval on PCs, E!online, 4 November 2000, available at -link #8; "Timeline," 22 November 2000, +link #8; Timeline, 22 November 2000, available at link #9. @@ -1965,10 +2078,10 @@ available at computer games This skill is precisely the craft a filmmaker learns. As Daley -describes, "people are very surprised about how they are led through a +describes, people are very surprised about how they are led through a film. [I]t is perfectly constructed to keep you from seeing it, so you have no idea. If a filmmaker succeeds you do not know how you were -led." If you know you were led through a film, the film has failed. +led. If you know you were led through a film, the film has failed. Yet the push for an expanded literacy—one that goes beyond text @@ -1986,7 +2099,7 @@ being read-only.
-"Read-only." Passive recipients of culture produced elsewhere. +Read-only. Passive recipients of culture produced elsewhere. Couch potatoes. Consumers. This is the world of media from the twentieth century. @@ -1997,15 +2110,15 @@ understanding the craft of writing. Or best, reading and understanding the tools that enable the writing to lead or mislead. The aim of any literacy, -and this literacy in particular, is to "empower people to choose the +and this literacy in particular, is to empower people to choose the appropriate language for what they need to create or -express." +express. Interview with Daley and Barish. Barish, Stephanie - It is to enable students "to communicate in the -language of the twenty-first century." + It is to enable students to communicate in the +language of the twenty-first century. Ibid. @@ -2027,34 +2140,34 @@ students know something about—gun violence. The class was held on Friday afternoons, and it created a relatively new problem for the school. While the challenge in most classes was getting the kids to come, the challenge in this class was keeping them -away. The "kids were showing up at 6 A.M. and leaving at 5 at night," +away. The kids were showing up at 6 A.M. and leaving at 5 at night, said Barish. They were working harder than in any other class to do what education should be about—learning how to express themselves. -Using whatever "free web stuff they could find," and relatively simple -tools to enable the kids to mix "image, sound, and text," Barish said +Using whatever free web stuff they could find, and relatively simple +tools to enable the kids to mix image, sound, and text, Barish said this class produced a series of projects that showed something about gun violence that few would otherwise understand. This was an issue -close to the lives of these students. The project "gave them a tool +close to the lives of these students. The project gave them a tool and empowered them to be able to both understand it and talk about -it," Barish explained. That tool succeeded in creating +it, Barish explained. That tool succeeded in creating expression—far more successfully and powerfully than could have -been created using only text. "If you had said to these students, `you +been created using only text. If you had said to these students, `you have to do it in text,' they would've just thrown their hands up and -gone and done something else," Barish described, in part, no doubt, +gone and done something else, Barish described, in part, no doubt, because expressing themselves in text is not something these students -can do well. Yet neither is text a form in which these ideas can be -expressed well. The power of this message depended upon its connection -to this form of expression. +can do well. Yet neither is text a form in which +these ideas can be expressed well. The power of +this message depended upon its connection to this form of expression. -"But isn't education about teaching kids to write?" I asked. In part, +But isn't education about teaching kids to write? I asked. In part, of course, it is. But why are we teaching kids to write? Education, -Daley explained, is about giving students a way of "constructing -meaning." To say that that means just writing is like saying teaching +Daley explained, is about giving students a way of constructing +meaning. To say that that means just writing is like saying teaching writing is only about teaching kids how to spell. Text is one part—and increasingly, not the most powerful part—of constructing meaning. As Daley explained in the most moving part of @@ -2068,23 +2181,23 @@ Because they can't. You know, you've got Johnny who can look at a video, he can play a video game, he can do graffiti all over your walls, he can take your car apart, and he can do all sorts of other things. He just can't read your text. So Johnny comes to school and -you say, "Johnny, you're illiterate. Nothing you can do matters." +you say, Johnny, you're illiterate. Nothing you can do matters. Well, Johnny then has two choices: He can dismiss you or he [can] dismiss himself. If his ego is healthy at all, he's going to dismiss -you. [But i]nstead, if you say, "Well, with all these things that you +you. [But i]nstead, if you say, Well, with all these things that you can do, let's talk about this issue. Play for me music that you think reflects that, or show me images that you think reflect that, or draw -for me something that reflects that." Not by giving a kid a video -camera and . . . saying, "Let's go have fun with the video camera and -make a little movie." But instead, really help you take these elements +for me something that reflects that. Not by giving a kid a video +camera and … saying, Let's go have fun with the video camera and +make a little movie. But instead, really help you take these elements that you understand, that are your language, and construct meaning -about the topic. . . . +about the topic.… That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they -bump up against the fact, "I need to explain this and I really need -to write something." And as one of the teachers told Stephanie, +bump up against the fact, I need to explain this and I really need +to write something. And as one of the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right. @@ -2093,8 +2206,10 @@ needed to say something, as opposed to just jumping through your hoops. They actually needed to use a language that they didn't speak very well. But they had come to understand that they -had a lot of power with this language." +had a lot of power with this language. + When two planes crashed into the World Trade Center, another into the @@ -2110,16 +2225,16 @@ world would be watching. These retellings had an increasingly familiar feel. There was music scored for the intermissions, and fancy graphics that flashed across -the screen. There was a formula to interviews. There was "balance," +the screen. There was a formula to interviews. There was balance, and seriousness. This was news choreographed in the way we have -increasingly come to expect it, "news as entertainment," even if the +increasingly come to expect it, news as entertainment, even if the entertainment is tragedy. ABC CBS -But in addition to this produced news about the "tragedy of September -11," those of us tied to the Internet came to see a very different +But in addition to this produced news about the tragedy of September +11, those of us tied to the Internet came to see a very different production as well. The Internet was filled with accounts of the same events. Yet these Internet accounts had a very different flavor. Some people constructed photo pages that captured images from around the @@ -2127,7 +2242,7 @@ world and presented them as slide shows with text. Some offered open letters. There were sound recordings. There was anger and frustration. There were attempts to provide context. There was, in short, an extraordinary worldwide barn raising, in the sense Mike Godwin uses -the term in his book Cyber Rights, around a news event that had +the term in his book Cyber Rights, around a news event that had captured the attention of the world. There was ABC and CBS, but there was also the Internet. @@ -2138,7 +2253,7 @@ instead to point to a significance in this form of speech. For like a Kodak, the Internet enables people to capture images. And like in a movie -by a student on the "Just Think!" bus, the visual images could be mixed +by a student on the Just Think! bus, the visual images could be mixed with sound or text. @@ -2151,13 +2266,13 @@ that this mix of captured images, sound, and commentary can be widely spread practically instantaneously. -September 11 was not an aberration. It was a beginning. Around -the same time, a form of communication that has grown dramatically -was just beginning to come into public consciousness: the Web-log, or -blog. The blog is a kind of public diary, and within some cultures, 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. +September 11 was not an aberration. It was a beginning. Around the +same time, a form of communication that has grown dramatically was +just beginning to come into public consciousness: the Web-log, or +blog. The blog is a kind of public diary, and within some cultures, +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. But in the United States, blogs have taken on a very different @@ -2190,18 +2305,18 @@ means rule by the people, but rule means something more than mere elections. In our tradition, it also means control through reasoned discourse. This was the idea that captured the imagination of Alexis de Tocqueville, the nineteenth-century French lawyer who wrote the -most important account of early "Democracy in America." It wasn't +most important account of early Democracy in America. It wasn't popular elections that fascinated him—it was the jury, an institution that gave ordinary people the right to choose life or death for other citizens. And most fascinating for him was that the jury didn't just vote about the outcome they would impose. They -deliberated. Members argued about the "right" result; they tried to -persuade each other of the "right" result, and in criminal cases at +deliberated. Members argued about the right result; they tried to +persuade each other of the right result, and in criminal cases at least, they had to agree upon a unanimous result for the process to come to an end. -See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans. -Henry Reeve (New York: Bantam Books, 2000), ch. 16. +See, for example, Alexis de Tocqueville, Democracy in America, +bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16. @@ -2209,12 +2324,12 @@ Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some are pushing to create just such an institution. -Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of -Political Philosophy 10 (2) (2002): 129. +Bruce Ackerman and James Fishkin, Deliberation Day, Journal of +Political Philosophy 10 (2) (2002): 129. And in some towns in New England, something close to deliberation remains. But for most of us for most of the time, there is no time or -place for "democratic deliberation" to occur. +place for democratic deliberation to occur. More bizarrely, there is generally not even permission for it to @@ -2224,7 +2339,7 @@ politics with people you agree with. But it is rude to argue about politics with people you disagree with. Political discourse becomes isolated, and isolated discourse becomes more extreme. -Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), +Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), 65–80, 175, 182, 183, 192. We say what our friends want to hear, and hear very little beyond what our friends say. @@ -2258,16 +2373,16 @@ is having an effect. One direct effect is on stories that had a different life cycle in the mainstream media. The Trent Lott affair is an example. When Lott -"misspoke" at a party for Senator Strom Thurmond, essentially praising +misspoke at a party for Senator Strom Thurmond, essentially praising Thurmond's segregationist policies, he calculated correctly that this story would disappear from the mainstream press within forty-eight hours. It did. But he didn't calculate its life cycle in blog space. The bloggers kept researching the story. Over time, more and -more instances of the same "misspeaking" emerged. Finally, the story +more instances of the same misspeaking emerged. Finally, the story broke back into the mainstream press. In the end, Lott was forced to resign as senate majority leader. -Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New +Noah Shachtman, With Incessant Postings, a Pundit Stirs the Pot, New York Times, 16 January 2003, G5. Lott, Trent @@ -2296,11 +2411,11 @@ There's a second way, as well, in which blogs have a different cycle from the mainstream press. As Dave Winer, one of the fathers of this movement and a software author for many decades, told me, another -difference is the absence of a financial "conflict of interest." "I think you -have to take the conflict of interest" out of journalism, Winer told me. -"An amateur journalist simply doesn't have a conflict of interest, or the +difference is the absence of a financial conflict of interest. I think you +have to take the conflict of interest out of journalism, Winer told me. +An amateur journalist simply doesn't have a conflict of interest, or the conflict of interest is so easily disclosed that you know you can sort of -get it out of the way." +get it out of the way. CNN @@ -2312,63 +2427,64 @@ its own employees. Telephone interview with David Winer, 16 April 2003. -It also needs to sustain a more coherent -account. (In the middle of the Iraq war, I read a post on the Internet -from someone who was at that time listening to a satellite uplink with -a reporter in Iraq. The New York headquarters was telling the reporter -over and over that her account of the war was too bleak: She needed to -offer a more optimistic story. When she told New York that wasn't -warranted, they told her that they were writing "the story.") +It also needs to sustain a more coherent account. (In the middle of +the Iraq war, I read a post on the Internet from someone who was at +that time listening to a satellite uplink with a reporter in Iraq. The +New York headquarters was telling the reporter over and over that her +account of the war was too bleak: She needed to offer a more +optimistic story. When she told New York that wasn't warranted, they +told her that they were writing the story.) Blog space gives amateurs a way to enter the -debate—"amateur" not in the sense of inexperienced, but in the +debate—amateur not in the sense of inexperienced, but in the sense of an Olympic athlete, meaning not paid by anyone to give their reports. It allows for a much broader range of input into a story, as reporting on the Columbia disaster revealed, when hundreds from across the southwest United States turned to the Internet to retell what they had seen. -John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of -Information Online," New York Times, 2 February 2003, A28; Staci -D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall," +John Schwartz, Loss of the Shuttle: The Internet; A Wealth of +Information Online, New York Times, 2 February 2003, A28; Staci +D. Kramer, Shuttle Disaster Coverage Mixed, but Strong Overall, Online Journalism Review, 2 February 2003, available at link #10. And it drives readers to read across the range of accounts and -"triangulate," as Winer puts it, the truth. Blogs, Winer says, are -"communicating directly with our constituency, and the middle man is -out of it"—with all the benefits, and costs, that might entail. +triangulate, as Winer puts it, the truth. Blogs, Winer says, are +communicating directly with our constituency, and the middle man is +out of it—with all the benefits, and costs, that might entail. Winer is optimistic about the future of journalism infected -with blogs. "It's going to become an essential skill," Winer predicts, +with blogs. It's going to become an essential skill, Winer predicts, for public figures and increasingly for private figures as well. It's -not clear that "journalism" is happy about this—some journalists +not clear that journalism is happy about this—some journalists have been told to curtail their blogging. -See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New -York Times, 29 September 2003, C4. ("Not all news organizations have +See Michael Falcone, Does an Editor's Pencil Ruin a Web Log? New +York Times, 29 September 2003, C4. (Not all news organizations have been as accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq who started a blog about his reporting of the war on March 9, stopped posting 12 days later at his bosses' -request. Last year Steve Olafson, a Houston Chronicle reporter, was +request. Last year Steve Olafson, a Houston Chronicle reporter, was fired for keeping a personal Web log, published under a pseudonym, -that dealt with some of the issues and people he was covering.") +that dealt with some of the issues and people he was covering.) CNN +Olafson, Steve -But it is clear that we are still in transition. "A +But it is clear that we are still in transition. A -lot of what we are doing now is warm-up exercises," Winer told me. +lot of what we are doing now is warm-up exercises, Winer told me. There is a lot that must mature before this space has its mature effect. And as the inclusion of content in this space is the least infringing use -of the Internet (meaning infringing on copyright), Winer said, "we will -be the last thing that gets shut down." +of the Internet (meaning infringing on copyright), Winer said, we will +be the last thing that gets shut down. -This speech affects democracy. Winer thinks that happens because "you -don't have to work for somebody who controls, [for] a gatekeeper." +This speech affects democracy. Winer thinks that happens because you +don't have to work for somebody who controls, [for] a gatekeeper. That is true. But it affects democracy in another way as well. As more and more citizens express what they think, and defend it in writing, that will change the way people understand public issues. It @@ -2385,10 +2501,13 @@ extraordinary to report. Brown, John Seely + + advertising + John Seely Brown is the chief scientist of the Xerox Corporation. -His work, as his Web site describes it, is "human learning and . . . the -creation of knowledge ecologies for creating . . . innovation." +His work, as his Web site describes it, is human learning and … the +creation of knowledge ecologies for creating … innovation. Brown thus looks at these technologies of digital creativity a bit @@ -2398,16 +2517,16 @@ democracy. But his real excitement comes from how these technologies affect learning. -As Brown believes, we learn by tinkering. When "a lot of us grew up," -he explains, that tinkering was done "on motorcycle engines, lawnmower -engines, automobiles, radios, and so on." But digital technologies +As Brown believes, we learn by tinkering. When a lot of us grew up, +he explains, that tinkering was done on motorcycle engines, lawnmower +engines, automobiles, radios, and so on. But digital technologies enable a different kind of tinkering—with abstract ideas though in concrete form. The kids at Just Think! not only think about how a commercial portrays a politician; using digital technology, they can take the commercial apart and manipulate it, tinker with it to see how it does what it does. Digital technologies launch a kind of bricolage, -or "free collage," as Brown calls it. Many get to add to or transform +or free collage, as Brown calls it. Many get to add to or transform the tinkering of many others. @@ -2418,33 +2537,34 @@ FS/OSS program run. And anyone eager to learn how a particular bit of FS/OSS technology works can tinker with the code. -This opportunity creates a "completely new kind of learning platform," -as Brown describes. "As soon as you start doing that, you . . . +This opportunity creates a completely new kind of learning platform, +as Brown describes. As soon as you start doing that, you … unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing -if they can improve it." Each effort is a kind of -apprenticeship. "Open source becomes a major apprenticeship platform." +if they can improve it. Each effort is a kind of +apprenticeship. Open source becomes a major apprenticeship platform. -In this process, "the concrete things you tinker with are abstract. -They are code." Kids are "shifting to the ability to tinker in the +In this process, the concrete things you tinker with are abstract. +They are code. Kids are shifting to the ability to tinker in the abstract, and this tinkering is no longer an isolated activity that you're doing in your garage. You are tinkering with a community -platform. . . . You are tinkering with other people's stuff. The more -you tinker the more you improve." The more you improve, the more you +platform. … You are tinkering with other people's stuff. The more +you tinker the more you improve. The more you improve, the more you learn. This same thing happens with content, too. And it happens in the same collaborative way when that content is part of the Web. As Brown puts -it, "the Web [is] the first medium that truly honors multiple forms of -intelligence." Earlier technologies, such as the typewriter or word +it, the Web [is] the first medium that truly honors multiple forms of +intelligence. Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web amplifies much more than -text. "The Web . . . says if you are musical, if you are artistic, if -you are visual, if you are interested in film . . . [then] there is a +text. The Web … says if you are musical, if you are artistic, if +you are visual, if you are interested in film … [then] there is a lot you can start to do on this medium. [It] can now amplify and honor -these multiple forms of intelligence." +these multiple forms of intelligence. + Barish, Stephanie Brown is talking about what Elizabeth Daley, Stephanie Barish, and @@ -2466,28 +2586,29 @@ freedom that technology, and curiosity, would otherwise ensure. These restrictions have become the focus of researchers and scholars. Professor Ed Felten of Princeton (whom we'll see more of in chapter -10) has developed a powerful argument in favor of the "right to -tinker" as it applies to computer science and to knowledge in +) +has developed a powerful argument in favor of the right to +tinker as it applies to computer science and to knowledge in general. -See, for example, Edward Felten and Andrew Appel, "Technological Access -Control Interferes with Noninfringing Scholarship," Communications -of the Association for Computer Machinery 43 (2000): 9. +See, for example, Edward Felten and Andrew Appel, Technological Access +Control Interferes with Noninfringing Scholarship, Communications +of the Association for Computer Machinery 43 (2000): 9. But Brown's concern is earlier, or younger, or more fundamental. It is about the learning that kids can do, or can't do, because of the law. -"This is where education in the twenty-first century is going," Brown -explains. We need to "understand how kids who grow up digital think -and want to learn." +This is where education in the twenty-first century is going, Brown +explains. We need to understand how kids who grow up digital think +and want to learn. -"Yet," as Brown continued, and as the balance of this book will -evince, "we are building a legal system that completely suppresses the -natural tendencies of today's digital kids. . . . We're building an +Yet, as Brown continued, and as the balance of this book will +evince, we are building a legal system that completely suppresses the +natural tendencies of today's digital kids. … We're building an architecture that unleashes 60 percent of the brain [and] a legal -system that closes down that part of the brain." +system that closes down that part of the brain. @@ -2497,13 +2618,18 @@ opportunity to spread that creativity everywhere. But we're building the law to close down that technology. -"No way to run a culture," as Brewster Kahle, whom we'll meet in -chapter 9, quipped to me in a rare moment of despondence. +No way to run a culture, as Brewster Kahle, whom we'll meet in +chapter , +quipped to me in a rare moment of despondence. - - + + CHAPTER THREE: Catalogs +RPIRensselaer Polytechnic Institute (RPI) + + Rensselaer Polytechnic Institute (RPI) + In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer Polytechnic Institute, in Troy, New York. @@ -2531,7 +2657,7 @@ Search engines are a measure of a network's intimacy. Google brought the Internet much closer to all of us by fantastically improving the quality of search on the network. Specialty search -engines can do this even better. The idea of "intranet" search +engines can do this even better. The idea of intranet search engines, search engines that search within the network of a particular institution, is to provide users of that institution with better access to material from that institution. Businesses do this all the @@ -2600,43 +2726,48 @@ the suit. As he read these papers and watched the news reports about them, he was increasingly astonished. -"It was absurd," he told me. "I don't think I did anything -wrong. . . . I don't think there's anything wrong with the search -engine that I ran or . . . what I had done to it. I mean, I hadn't +It was absurd, he told me. I don't think I did anything +wrong. … I don't think there's anything wrong with the search +engine that I ran or … what I had done to it. I mean, I hadn't modified it in any way that promoted or enhanced the work of pirates. I just modified the search engine in a way that would make it -easier to use"—again, a search engine, which Jesse had not -himself built, using the Windows filesharing system, which Jesse had -not himself built, to enable members of the RPI community to get -access to content, which Jesse had not himself created or posted, and -the vast majority of which had nothing to do with music. +easier to use—again, a search engine, +which Jesse had not himself built, using the Windows filesharing +system, which Jesse had not himself built, to enable members of the +RPI community to get access to content, which Jesse had not himself +created or posted, and the vast majority of which had nothing to do +with music. But the RIAA branded Jesse a pirate. They claimed he operated a -network and had therefore "willfully" violated copyright laws. They +network and had therefore willfully violated copyright laws. They demanded that he pay them the damages for his wrong. For cases of -"willful infringement," the Copyright Act specifies something lawyers -call "statutory damages." These damages permit a copyright owner to +willful infringement, the Copyright Act specifies something lawyers +call statutory damages. These damages permit a copyright owner to claim $150,000 per infringement. As the RIAA alleged more than one hundred specific copyright infringements, they therefore demanded that Jesse pay them at least $15,000,000. -Similar lawsuits were brought against three other students: one -other student at RPI, one at Michigan Technical University, and one at +Similar lawsuits were brought against three other students: one other +student at RPI, one at Michigan Technical University, and one at Princeton. Their situations were similar to Jesse's. Though each case was different in detail, the bottom line in each was exactly the same: -huge demands for "damages" that the RIAA claimed it was entitled to. +huge demands for damages that the RIAA claimed it was entitled to. If you added up the claims, these four lawsuits were asking courts in -the United States to award the plaintiffs close to $100 billion—six -times the total profit of the film industry in 2001. +the United States to award the plaintiffs close to $100 +billion—six times the +total profit of the film industry in +2001. + -Tim Goral, "Recording Industry Goes After Campus P-2-P Networks: -Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6 +Tim Goral, Recording Industry Goes After Campus P-2-P Networks: +Suit Alleges $97.8 Billion in Damages, Professional Media Group LCC 6 (2003): 5, available at 2003 WL 55179443. + Jesse called his parents. They were supportive but a bit frightened. An uncle was a lawyer. He began negotiations with the RIAA. They @@ -2644,6 +2775,7 @@ demanded to know how much money Jesse had. Jesse had saved $12,000 from summer jobs and other employment. They demanded $12,000 to dismiss the case. +Oppenheimer, Matt The RIAA wanted Jesse to admit to doing something wrong. He refused. They wanted him to agree to an injunction that would @@ -2651,8 +2783,8 @@ essentially make it impossible for him to work in many fields of technology for the rest of his life. He refused. They made him understand that this process of being sued was not going to be pleasant. (As Jesse's father recounted to me, the chief lawyer on the -case, Matt Oppenheimer, told Jesse, "You don't want to pay another -visit to a dentist like me.") And throughout, the RIAA insisted it +case, Matt Oppenheimer, told Jesse, You don't want to pay another +visit to a dentist like me.) And throughout, the RIAA insisted it would not settle the case until it took every penny Jesse had saved. @@ -2669,6 +2801,10 @@ paper saying he and his family were bankrupt. So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. + +artists +recording industry payments to + The recording industry insists this is a matter of law and morality. Let's put the law aside for a moment and think about the morality. @@ -2680,14 +2816,14 @@ artist makes $45,900. Occupational Employment Survey, U.S. Dept. of Labor (2001) (27–2042—Musicians and Singers). See also National Endowment for -the Arts, More Than One in a Blue Moon (2000). +the Arts, More Than One in a Blue Moon (2000). There are plenty of ways for the RIAA to affect and direct policy. So where is the morality in taking money from a student for running a search engine? -Douglas Lichtman makes a related point in "KaZaA and Punishment," -Wall Street Journal, 10 September 2003, A24. +Douglas Lichtman makes a related point in KaZaA and Punishment, +Wall Street Journal, 10 September 2003, A24. @@ -2699,44 +2835,44 @@ activist:
I was definitely not an activist [before]. I never really meant to be -an activist. . . . [But] I've been pushed into this. In no way did I +an activist. … [But] I've been pushed into this. In no way did I ever foresee anything like this, but I think it's just completely absurd what the RIAA has done.
Jesse's parents betray a certain pride in their reluctant activist. As -his father told me, Jesse "considers himself very conservative, and so do -I. . . . He's not a tree hugger. . . . I think it's bizarre that they would +his father told me, Jesse considers himself very conservative, and so do +I. … He's not a tree hugger. … I think it's bizarre that they would pick on him. But he wants to let people know that they're sending the -wrong message. And he wants to correct the record." +wrong message. And he wants to correct the record. - - -CHAPTER FOUR: "Pirates" + + +CHAPTER FOUR: <quote>Pirates</quote> -If "piracy" means using the creative property of others without -their permission—if "if value, then right" is true—then the history of +If piracy means using the creative property of others without +their permission—if if value, then right is true—then the history of the content industry is a history of piracy. Every important sector of -"big media" today—film, records, radio, and cable TV—was born of a +big media today—film, records, radio, and cable TV—was born of a kind of piracy so defined. The consistent story is how last generation's pirates join this generation's country club—until now. - +
Film The film industry of Hollywood was built by fleeing pirates. I am grateful to Peter DiMauro for pointing me to this extraordinary -history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, -which details Edison's "adventures" with copyright and patent. +history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, +which details Edison's adventures with copyright and patent. Vaidhyanathan, Siva Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison. These controls were -exercised through a monopoly "trust," the Motion Pictures Patents +exercised through a monopoly trust, the Motion Pictures Patents Company, and were based on Thomas Edison's creative property—patents. Edison formed the MPPC to exercise the rights this creative property @@ -2768,29 +2904,32 @@ acquisition of all U.S. film exchanges, except for the one owned by the independent William Fox who defied the Trust even after his license was revoked. -J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion -Picture Producers (Cobblestone Entertainment, 2000) and expanded texts -posted at "The Edison Movie Monopoly: The Motion Picture Patents -Company vs. the Independent Outlaws," available at +J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion +Picture Producers (Cobblestone Entertainment, 2000) and expanded texts +posted at The Edison Movie Monopoly: The Motion Picture Patents +Company vs. the Independent Outlaws, available at link #11. For a discussion of the economic motive behind both these limits and the -limits imposed by Victor on phonographs, see Randal C. Picker, "From +limits imposed by Victor on phonographs, see Randal C. Picker, From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and -the Propertization of Copyright" (September 2002), University of +the Propertization of Copyright (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics, -Working Paper No. 159. +Working Paper No. 159. +broadcast flag + +Fox, William General Film Company Picker, Randal C. -The Napsters of those days, the "independents," were companies like +The Napsters of those days, the independents, were companies like Fox. And no less than today, these independents were vigorously -resisted. "Shooting was disrupted by machinery stolen, and +resisted. Shooting was disrupted by machinery stolen, and `accidents' resulting in loss of negatives, equipment, buildings and -sometimes life and limb frequently occurred." +sometimes life and limb frequently occurred. -Marc Wanamaker, "The First Studios," The Silents Majority, archived at +Marc Wanamaker, The First Studios, The Silents Majority, archived at link #12. That led the independents to flee the East @@ -2802,39 +2941,43 @@ did just that. Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the -patent holder a truly "limited" monopoly (just seventeen years at that +patent holder a truly limited monopoly (just seventeen years at that time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edison's creative property. - - +
+
Recorded Music The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. + + Fourneaux, Henri + +Russel, Phil At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of their music and the exclusive right to control public performances of their music. In other words, in 1900, if I wanted a copy of Phil Russel's -1899 hit "Happy Mose," the law said I would have to pay for the right +1899 hit Happy Mose, the law said I would have to pay for the right to get a copy of the musical score, and I would also have to pay for the right to perform it publicly. Beatles -But what if I wanted to record "Happy Mose," using Edison's phonograph +But what if I wanted to record Happy Mose, using Edison's phonograph or Fourneaux's player piano? Here the law stumbled. It was clear enough that I would have to buy any copy of the musical score that I performed in making this recording. And it was clear enough that I would have to pay for any public performance of the work I was recording. But it wasn't totally clear that I would have to pay for a -"public performance" if I recorded the song in my own house (even +public performance if I recorded the song in my own house (even today, you don't owe the Beatles anything if you sing their songs in the shower), or if I recorded the song from memory (copies in your brain are not—yet— regulated by copyright law). So if I @@ -2845,11 +2988,13 @@ then made copies of those recordings. Because of this gap in the law, then, I could effectively pirate someone else's song without paying its composer anything. + The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it, +Kittredge, Alfred
@@ -2863,29 +3008,30 @@ rights. To Amend and Consolidate the Acts Respecting Copyright: Hearings on 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 +of South Dakota, chairman), reprinted in Legislative History of the +Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). +Kittredge, Alfred
The innovators who developed the technology to record other -people's works were "sponging upon the toil, the work, the talent, and -genius of American composers," +people's works were sponging upon the toil, the work, the talent, and +genius of American composers, To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of Nathan Burkan, attorney for the Music Publishers Association). -and the "music publishing industry" -was thereby "at the complete mercy of this one pirate." +and the music publishing industry +was thereby at the complete mercy of this one pirate. To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of Nathan Burkan, attorney for the Music Publishers Association). As John Philip -Sousa put it, in as direct a way as possible, "When they make money -out of my pieces, I want a share of it." +Sousa put it, in as direct a way as possible, When they make money +out of my pieces, I want a share of it. To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). @@ -2894,9 +3040,9 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the -player piano argued that "it is perfectly demonstrable that the +player piano argued that it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer -of anything he had before their introduction." Rather, the machines +of anything he had before their introduction. Rather, the machines increased the sales of sheet music. @@ -2904,26 +3050,28 @@ To Amend and Consolidate the Acts Respecting Copyright, 283–84 (statement of Albert Walker, representative of the Auto-Music Perforating Company of New York). In any case, the innovators argued, the job of -Congress was "to consider first the interest of [the public], whom -they represent, and whose servants they are." "All talk about -`theft,'" the general counsel of the American Graphophone Company -wrote, "is the merest claptrap, for there exists no property in ideas +Congress was to consider first the interest of [the public], whom +they represent, and whose servants they are. All talk about +`theft,' the general counsel of the American Graphophone Company +wrote, is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by -statute." +statute. To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). +American Graphophone Company -The law soon resolved this battle in favor of the composer and the -recording artist. Congress amended the law to make sure that composers -would be paid for the "mechanical reproductions" of their music. But -rather than simply granting the composer complete control over the -right to make mechanical reproductions, Congress gave recording -artists a right to record the music, at a price set by Congress, once -the composer allowed it to be recorded once. This is the part of +The law soon resolved this battle in favor of the composer +and the recording artist. Congress amended the +law to make sure that composers would be paid for the mechanical +reproductions of their music. But rather than simply granting the +composer complete control over the right to make mechanical +reproductions, Congress gave recording artists a right to record the +music, at a price set by Congress, once the composer allowed it to be +recorded once. This is the part of copyright law that makes cover songs possible. Once a composer @@ -2931,8 +3079,8 @@ authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. -American law ordinarily calls this a "compulsory license," but I will -refer to it as a "statutory license." A statutory license is a license +American law ordinarily calls this a compulsory license, but I will +refer to it as a statutory license. A statutory license is a license whose key terms are set by law. After Congress's amendment of the Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) @@ -2950,22 +3098,23 @@ Grisham. But the law governing recordings gives recording artists less. And -thus, in effect, the law subsidizes the recording industry through a -kind of piracy—by giving recording artists a weaker right than -it otherwise gives creative authors. The Beatles have less control -over their creative work than Grisham does. And the beneficiaries of -this less control are the recording industry and the public. The -recording industry gets something of value for less than it otherwise -would pay; the public gets access to a much wider range of musical -creativity. Indeed, Congress was quite explicit about its reasons for -granting this right. Its fear was the monopoly power of rights -holders, and that that power would stifle follow-on +thus, in effect, the law subsidizes the recording +industry through a kind of piracy—by giving recording artists a +weaker right than it otherwise gives creative authors. The Beatles +have less control over their creative work than Grisham does. And the +beneficiaries of this less control are the recording industry and the +public. The recording industry gets something of value for less than +it otherwise would pay; the public gets access to a much wider range +of musical creativity. Indeed, Congress was quite explicit about its +reasons for granting this right. Its fear was the monopoly power of +rights holders, and that that power would stifle follow-on 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 sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted -in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and +in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). Beatles @@ -3003,25 +3152,29 @@ this report. By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit. - - +
+
Radio + + artists + recording industry payments to + Radio was also born of piracy. When a radio station plays a record on the air, that constitutes a -"public performance" of the composer's work. +public performance of the composer's work. -See 17 United States Code, sections 106 and 110. At the beginning, -record companies printed "Not Licensed for Radio Broadcast" and other +See 17 United States Code, sections 106 and 110. At the beginning, +record companies printed Not Licensed for Radio Broadcast and other messages purporting to restrict the ability to play a record on a radio station. Judge Learned Hand rejected the argument that a warning attached to a record might restrict the rights of the radio -station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86 (2nd -Cir. 1940). See also Randal C. Picker, "From Edison to the Broadcast +station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86 (2nd +Cir. 1940). See also Randal C. Picker, From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of -Copyright," University of Chicago Law Review 70 (2003): 281. +Copyright, University of Chicago Law Review 70 (2003): 281. Hand, Learned Picker, Randal C. @@ -3031,14 +3184,15 @@ station thus owes the composer money for that performance. But when the radio station plays a record, it is not only performing a -copy of the composer's work. The radio station is also performing a -copy of the recording artist's work. It's one thing to have "Happy -Birthday" sung on the radio by the local children's choir; it's quite -another to have it sung by the Rolling Stones or Lyle Lovett. The -recording artist is adding to the value of the composition performed -on the radio station. And if the law were perfectly consistent, the -radio station would have to pay the recording artist for his work, -just as it pays the composer of the music for his work. +copy of the composer's work. The radio station is +also performing a copy of the recording artist's +work. It's one thing to have Happy Birthday sung on the radio by the +local children's choir; it's quite another to have it sung by the +Rolling Stones or Lyle Lovett. The recording artist is adding to the +value of the composition performed on the radio station. And if the +law were perfectly consistent, the radio station would have to pay the +recording artist for his work, just as it pays the composer of the +music for his work. Lovett, Lyle @@ -3063,11 +3217,12 @@ song in public, she has to get your permission. Imagine she does sing your song, and imagine she likes it a lot. She then decides to make a recording of your song, and it becomes a top -hit. Under our law, every time a radio station plays your song, you get -some money. But Madonna gets nothing, save the indirect effect on +hit. Under our law, every time a radio station plays your song, you +get some money. But Madonna gets nothing, save the indirect effect on the sale of her CDs. The public performance of her recording is not a -"protected" right. The radio station thus gets to pirate the value of -Madonna's work without paying her anything. +protected right. The radio station thus gets to +pirate the value of Madonna's work without paying +her anything. @@ -3078,8 +3233,9 @@ 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 @@ -3098,21 +3254,23 @@ give away. Anello, Douglas Burdick, Quentin +Hyde, Rosel H. Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the practice as a kind of -"unfair and potentially destructive competition." +unfair and potentially destructive competition. Copyright Law Revision—CATV: Hearing on S. 1006 Before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel H. Hyde, chairman of the Federal Communications Commission). +Hyde, Rosel H. -There may have been a "public interest" in spreading the reach of cable +There may have been a public interest in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association -of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public -interest dictate that you use somebody else's property?" +of Broadcasters, asked Senator Quentin Burdick during testimony, Does public +interest dictate that you use somebody else's property? Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, general counsel of the National Association of Broadcasters). @@ -3146,14 +3304,17 @@ United Artists Television, Inc.). +Heston, Charlton -These were "free-ride[rs]," Screen Actor's Guild president Charlton -Heston said, who were "depriving actors of -compensation." +These were free-ride[rs], Screen Actor's Guild president Charlton +Heston said, who were depriving actors of +compensation. Copyright Law Revision—CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). - +Heston, Charlton + + But again, there was another side to the debate. As Assistant Attorney @@ -3164,7 +3325,7 @@ General Edwin Zimmerman put it, Our point here is that unlike the problem of whether you have any copyright protection at all, the problem here is whether copyright holders who are already compensated, who already have a monopoly, -should be permitted to extend that monopoly. . . . The +should be permitted to extend that monopoly. … The question here is how much compensation they should have and @@ -3183,40 +3344,40 @@ Court held that the cable companies owed the copyright owners nothing. It took Congress almost thirty years before it resolved the question -of whether cable companies had to pay for the content they "pirated." +of whether cable companies had to pay for the content they pirated. In the end, Congress resolved this question in the same way that it resolved the question about record players and player pianos. Yes, cable companies would have to pay for the content that they broadcast; but the price they would have to pay was not set by the copyright owner. The price was set by law, so that the broadcasters couldn't exercise veto power over the emerging technologies of cable. Cable -companies thus built their empire in part upon a "piracy" of the value +companies thus built their empire in part upon a piracy of the value created by broadcasters' content. -These separate stories sing a common theme. If "piracy" means +These separate stories sing a common theme. If piracy means using value from someone else's creative property without permission from that creator—as it is increasingly described today -See, for example, National Music Publisher's Association, The Engine +See, for example, National Music Publisher's Association, The Engine of Free Expression: Copyright on the Internet—The Myth of Free -Information, available at -link #13. "The +Information, available at +link #13. The threat of piracy—the use of someone else's creative work without -permission or compensation—has grown with the Internet." +permission or compensation—has grown with the Internet. -— then every industry affected by copyright today is the product -and beneficiary of a certain kind of piracy. Film, records, radio, -cable TV. . . . The list is long and could well be expanded. Every -generation welcomes the pirates from the last. Every -generation—until now. +— then every industry affected by copyright +today is the product and beneficiary of a certain kind of +piracy. Film, records, radio, cable TV. … The list is long and +could well be expanded. Every generation welcomes the pirates from the +last. Every generation—until now. - - - -CHAPTER FIVE: "Piracy" +
+ + +CHAPTER FIVE: <quote>Piracy</quote> There is piracy of copyrighted material. Lots of it. This piracy comes in many forms. The most significant is commercial piracy, the @@ -3226,17 +3387,18 @@ defense, this taking is wrong. No one should condone it, and the law should stop it. -But as well as copy-shop piracy, there is another kind of "taking" +But as well as copy-shop piracy, there is another kind of taking that is more directly related to the Internet. That taking, too, seems wrong to many, and it is wrong much of the time. Before we paint this -taking "piracy," however, we should understand its nature a bit more. +taking piracy, however, we should understand its nature a bit more. For the harm of this taking is significantly more ambiguous than outright copying, and the law should account for that ambiguity, as it has so often done in the past. - +
Piracy I +Asia, commercial piracy in All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people's copyrighted @@ -3244,11 +3406,11 @@ content, copy it, and sell it—all without the permission of a copyright owner. The recording industry estimates that it loses about $4.6 billion every year to physical piracy -See IFPI (International Federation of the Phonographic Industry), The -Recording Industry Commercial Piracy Report 2003, July 2003, available +See IFPI (International Federation of the Phonographic Industry), The +Recording Industry Commercial Piracy Report 2003, July 2003, available at link #14. See -also Ben Hunt, "Companies Warned on Music Piracy Risk," Financial -Times, 14 February 2003, 11. +also Ben Hunt, Companies Warned on Music Piracy Risk, Financial +Times, 14 February 2003, 11. (that works out to one in three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually worldwide to piracy. @@ -3282,7 +3444,7 @@ legal wrong, but a locally legal wrong as well. True, these local rules have, in effect, been imposed upon these countries. No country can be part of the world economy and choose - + not to protect copyright internationally. We may have been born a pirate nation, but we will not allow any other nation to have a similar childhood. @@ -3293,26 +3455,29 @@ its laws regardless of their source. The international law under which these nations live gives them some opportunities to escape the burden of intellectual property law. -See Peter Drahos with John Braithwaite, Information Feudalism: Who -Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13, -209. The Trade-Related Aspects of Intellectual Property Rights -(TRIPS) agreement obligates member nations to create administrative -and enforcement mechanisms for intellectual property rights, a costly -proposition for developing countries. Additionally, patent rights may -lead to higher prices for staple industries such as -agriculture. Critics of TRIPS question the disparity between burdens -imposed upon developing countries and benefits conferred to -industrialized nations. TRIPS does permit governments to use patents -for public, noncommercial uses without first obtaining the patent -holder's permission. Developing nations may be able to use this to -gain the benefits of foreign patents at lower prices. This is a -promising strategy for developing nations within the TRIPS framework. +See Peter Drahos with John Braithwaite, Information Feudalism: +Who Owns the Knowledge Economy? (New York: The +New Press, 2003), 10–13, 209. The Trade-Related Aspects of +Intellectual Property Rights (TRIPS) agreement obligates member +nations to create administrative and enforcement mechanisms for +intellectual property rights, a costly proposition for developing +countries. Additionally, patent rights may lead to higher prices for +staple industries such as agriculture. Critics of TRIPS question the +disparity between burdens imposed upon developing countries and +benefits conferred to industrialized nations. TRIPS does permit +governments to use patents for public, noncommercial uses without +first obtaining the patent holder's permission. Developing nations may +be able to use this to gain the benefits of foreign patents at lower +prices. This is a promising strategy for developing nations within the +TRIPS framework. +agricultural patents Drahos, Peter In my view, more developing nations should take advantage of that opportunity, but when they don't, then their laws should be respected. And under the laws of these nations, this piracy is wrong. +Asia, commercial piracy in Alternatively, we could try to excuse this piracy by noting that in any case, it does no harm to the industry. The Chinese who get access @@ -3321,12 +3486,12 @@ bought those American CDs at $15 a copy. So no one really has any less money than they otherwise would have had. For an analysis of the economic impact of copying technology, see Stan -Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), -144–90. "In some instances . . . the impact of piracy on the +Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), +144–90. In some instances … the impact of piracy on the copyright holder's ability to appropriate the value of the work will be negligible. One obvious instance is the case where the individual engaging in pirating would not have purchased an original even if -pirating were not an option." Ibid., 149. +pirating were not an option. Ibid., 149. Liebowitz, Stan @@ -3335,8 +3500,8 @@ This is often true (though I have friends who have purchased many thousands of pirated DVDs who certainly have enough money to pay for the content they have taken), and it does mitigate to some degree the harm caused by such taking. Extremists in this debate love to say, -"You wouldn't go into Barnes & Noble and take a book off of the shelf -without paying; why should it be any different with on-line music?" +You wouldn't go into Barnes & Noble and take a book off of the shelf +without paying; why should it be any different with on-line music? The difference is, of course, that when you take a book from Barnes & Noble, it has one less book to sell. By contrast, when you take an MP3 from a computer network, there is not one less CD that can be sold. @@ -3345,13 +3510,13 @@ piracy of the tangible. This argument is still very weak. However, although copyright is a -property right of a very special sort, it is a property right. Like -all property rights, the copyright gives the owner the right to decide -the terms under which content is shared. If the copyright owner -doesn't want to sell, she doesn't have to. There are exceptions: -important statutory licenses that apply to copyrighted content -regardless of the wish of the copyright owner. Those licenses give -people the right to "take" copyrighted content whether or not the +property right of a very special sort, it is a +property right. Like all property rights, the copyright gives the +owner the right to decide the terms under which content is shared. If +the copyright owner doesn't want to sell, she doesn't have to. There +are exceptions: important statutory licenses that apply to copyrighted +content regardless of the wish of the copyright owner. Those licenses +give people the right to take copyrighted content whether or not the copyright owner wants to sell. But @@ -3359,11 +3524,12 @@ where the law does not give people the right to take content, it is wrong to take that content even if the wrong does no harm. If we have a property system, and that system is properly balanced to the technology of a time, then it is wrong to take property without the -permission of a property owner. That is exactly what "property" means. +permission of a property owner. That is exactly what property means. +Asia, commercial piracy in Finally, we could try to excuse this piracy with the argument that the -piracy actually helps the copyright owner. When the Chinese "steal" +piracy actually helps the copyright owner. When the Chinese steal Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the value of the software that was taken. But it gains users who are used to life in the Microsoft world. Over time, as the nation @@ -3373,6 +3539,12 @@ Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose. +GNU/Linux operating system +Linux operating system + +Microsoft +Windows operating system of + Windows @@ -3395,6 +3567,10 @@ means giving the property owner the right to say who gets access to what—at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong. +GNU/Linux operating system +Internet Explorer +Netscape +Linux operating system @@ -3409,12 +3585,12 @@ is flat out wrong. But as the examples from the four chapters that introduced this part -suggest, even if some piracy is plainly wrong, not all "piracy" is. Or -at least, not all "piracy" is wrong if that term is understood in the -way it is increasingly used today. Many kinds of "piracy" are useful +suggest, even if some piracy is plainly wrong, not all piracy is. Or +at least, not all piracy is wrong if that term is understood in the +way it is increasingly used today. Many kinds of piracy are useful and productive, to produce either new content or new ways of doing business. Neither our tradition nor any tradition has ever banned all -"piracy" in that sense of the term. +piracy in that sense of the term. This doesn't mean that there are no questions raised by the latest @@ -3433,14 +3609,14 @@ These differences distinguish p2p sharing from true piracy. They should push us to find a way to protect artists while enabling this sharing to survive. - - +
+
Piracy II -The key to the "piracy" that the law aims to quash is a use that "rob[s] -the author of [his] profit." +The key to the piracy that the law aims to quash is a use that rob[s] +the author of [his] profit. -Bach v. Longman, 98 Eng. Rep. 1274 (1777). +Bach v. Longman, 98 Eng. Rep. 1274 (1777). This means we must determine whether and how much p2p sharing harms before we know how strongly the @@ -3454,14 +3630,15 @@ the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet (and, arguably, off the Internet as well -See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary -National Bestseller That Changed the Way We Do Business (New York: +See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary +National Bestseller That Changed the Way We Do Business (New York: HarperBusiness, 2000). Professor Christensen examines why companies that give rise to and dominate a product area are frequently unable to come up with the most creative, paradigm-shifting uses for their own products. This job usually falls to outside innovators, who reassemble existing technology in inventive ways. For a discussion of -Christensen's ideas, see Lawrence Lessig, Future, 89–92, 139. +Christensen's ideas, see Lawrence Lessig, Future, 89–92, 139. + Christensen, Clayton M. ), Shawn Fanning and crew had simply put together components that had been developed independently. @@ -3473,12 +3650,12 @@ Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the system. -See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," San -Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide," -New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO, -Secures New Financing," San Francisco Chronicle, 23 May 2003, C1; -"Napster's Wake-Up Call," Economist, 24 June 2000, 23; John Naughton, -"Hollywood at War with the Internet" (London) Times, 26 July 2002, 18. +See Carolyn Lochhead, Silicon Valley Dream, Hollywood Nightmare, San +Francisco Chronicle, 24 September 2002, A1; Rock 'n' Roll Suicide, +New Scientist, 6 July 2002, 42; Benny Evangelista, Napster Names CEO, +Secures New Financing, San Francisco Chronicle, 23 May 2003, C1; +Napster's Wake-Up Call, Economist, 24 June 2000, 23; John Naughton, +Hollywood at War with the Internet (London) Times, 26 July 2002, 18. Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It @@ -3495,20 +3672,20 @@ September 2002 estimated that 60 million Americans had downloaded music—28 percent of Americans older than 12. -See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution +See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution (September 2002), reporting that 28 percent of Americans aged twelve and older have downloaded music off of the Internet and 30 percent have listened to digital music files stored on their computers. -A survey by the NPD group quoted in The New York Times estimated that -43 million citizens used file-sharing networks to exchange content in -May 2003. +A survey by the NPD group quoted in The New York Times +estimated that 43 million citizens used file-sharing networks to +exchange content in May 2003. -Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New -York Times, 6 June 2003, A1. +Amy Harmon, Industry Offers a Carrot in Online Music Fight, New +York Times, 6 June 2003, A1. The vast majority of these are not kids. Whatever the actual figure, a -massive quantity of content is being "taken" on these networks. The +massive quantity of content is being taken on these networks. The ease and inexpensiveness of file-sharing networks have inspired millions to enjoy music in a way that they hadn't before. @@ -3557,7 +3734,7 @@ because the transaction costs off the Net are too high. This use of sharing networks is among the most rewarding for many. Songs that were part of your childhood but have long vanished from the marketplace magically appear again on the network. (One friend told me that when -she discovered Napster, she spent a solid weekend "recalling" old +she discovered Napster, she spent a solid weekend recalling old songs. She was astonished at the range and mix of content that was available.) For content not sold, this is still technically a violation of copyright, though because the copyright owner is not @@ -3582,7 +3759,7 @@ perspective of the law, only type D sharing is clearly legal. From the perspective of economics, only type A sharing is clearly harmful. -See Liebowitz, Rethinking the Network Economy,148–49. +See Liebowitz, Rethinking the Network Economy, 148–49. Liebowitz, Stan Type B sharing is illegal but plainly beneficial. Type C sharing is @@ -3597,27 +3774,27 @@ Whether on balance sharing is harmful depends importantly on how harmful type A sharing is. Just as Edison complained about Hollywood, composers complained about piano rolls, recording artists complained about radio, and broadcasters complained about cable TV, the music -industry complains that type A sharing is a kind of "theft" that is -"devastating" the industry. +industry complains that type A sharing is a kind of theft that is +devastating the industry. While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the recording industry's practice to blame technology for any drop in sales. The history of cassette recording is a good example. As a study by Cap Gemini Ernst -& Young put it, "Rather than exploiting this new, popular -technology, the labels fought it." +& Young put it, Rather than exploiting this new, popular +technology, the labels fought it. -See Cap Gemini Ernst & Young, Technology Evolution and the -Music Industry's Business Model Crisis (2003), 3. This report +See Cap Gemini Ernst & Young, Technology Evolution and the +Music Industry's Business Model Crisis (2003), 3. This report describes the music industry's effort to stigmatize the budding practice of cassette taping in the 1970s, including an advertising -campaign featuring a cassette-shape skull and the caption "Home taping -is killing music." At the time digital audio tape became a threat, +campaign featuring a cassette-shape skull and the caption Home taping +is killing music. At the time digital audio tape became a threat, the Office of Technical Assessment conducted a survey of consumer behavior. In 1988, 40 percent of consumers older than ten had taped music to a cassette format. U.S. Congress, Office of Technology -Assessment, Copyright and Home Copying: Technology Challenges the Law, +Assessment, Copyright and Home Copying: Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October 1989), 145–56. The labels claimed that every album taped was an album unsold, and @@ -3628,13 +3805,13 @@ regulating technology was the answer. Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record -turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was +turnaround. In the end, Cap Gemini concludes, the `crisis' … was not the fault of the tapers—who did not [stop after MTV came into being]—but had to a large extent resulted from stagnation in musical -innovation at the major labels." +innovation at the major labels. -U.S. Congress, Copyright and Home Copying, 4. +U.S. Congress, Copyright and Home Copying, 4. @@ -3644,63 +3821,65 @@ the industry in particular, and society in general—or at least the society that inherits the tradition that gave us the film industry, the record industry, the radio industry, cable TV, and the VCR—the question is not simply whether type A sharing is -harmful. The question is also how harmful type A sharing is, and how -beneficial the other types of sharing are. +harmful. The question is also how harmful type A +sharing is, and how beneficial the other types of sharing are. -We start to answer this question by focusing on the net harm, from -the standpoint of the industry as a whole, that sharing networks cause. -The "net harm" to the industry as a whole is the amount by which type +We start to answer this question by focusing on the net harm, from the +standpoint of the industry as a whole, that sharing networks cause. +The net harm to the industry as a whole is the amount by which type A sharing exceeds type B. If the record companies sold more records through sampling than they lost through substitution, then sharing -networks would actually benefit music companies on balance. They -would therefore have little static reason to resist them. +networks would actually benefit music companies on balance. They would +therefore have little static reason to resist +them. + -Could that be true? Could the industry as a whole be gaining - because -of file sharing? Odd as that might sound, the data about CD -sales actually suggest it might be close. +Could that be true? Could the industry as a whole be gaining because +of file sharing? Odd as that might sound, the data about CD sales +actually suggest it might be close. -In 2002, the RIAA reported that CD sales had fallen by 8.9 - percent, -from 882 million to 803 million units; revenues fell 6.7 percent. +In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, +from 882 million to 803 million units; revenues fell 6.7 +percent. -See Recording Industry Association of America, 2002 Yearend Statistics, +See Recording Industry Association of America, 2002 Yearend Statistics, available at -link #15. A later report indicates even greater losses. See -Recording Industry Association of America, Some Facts About Music Piracy, -25 June 2003, available at -link #16: "In the past four years, unit shipments -of recorded music have fallen by 26 percent from 1.16 billion units in -to 860 million units in 2002 in the United States (based on units shipped). -In terms of sales, revenues are down 14 percent, from $14.6 billion in -to $12.6 billion last year (based on U.S. dollar value of shipments). The - music +link #15. A later +report indicates even greater losses. See Recording Industry +Association of America, Some Facts About Music Piracy, 25 June 2003, +available at link +#16: In the past four years, unit shipments of recorded music +have fallen by 26 percent from 1.16 billion units in to 860 million +units in 2002 in the United States (based on units shipped). In terms +of sales, revenues are down 14 percent, from $14.6 billion in to $12.6 +billion last year (based on U.S. dollar value of shipments). The music industry worldwide has gone from a $39 billion industry in 2000 down -to a $32 billion industry in 2002 (based on U.S. dollar value of shipments)." +to a $32 billion industry in 2002 (based on U.S. dollar value of +shipments). -This confirms a trend over the past few years. The RIAA blames - Internet -piracy for the trend, though there are many other causes that +This confirms a trend over the past few years. The RIAA blames +Internet piracy for the trend, though there are many other causes that could account for this drop. SoundScan, for example, reports a more -than 20 percent drop in the number of CDs released since 1999. That -no doubt accounts for some of the decrease in sales. Rising prices could -account for at least some of the loss. "From 1999 to 2001, the average -price of a CD rose 7.2 percent, from $13.04 to $14.19." +than 20 percent drop in the number of CDs released since 1999. That no +doubt accounts for some of the decrease in sales. Rising prices could +account for at least some of the loss. From 1999 to 2001, the average +price of a CD rose 7.2 percent, from $13.04 to $14.19. -Jane Black, "Big Music's Broken Record," BusinessWeek online, 13 +Jane Black, Big Music's Broken Record, BusinessWeek online, 13 February 2003, available at link #17. Black, Jane -Competition from other forms of media could also account for some of the -decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film -High Fidelity has a list price of $18.98. You could get the whole movie -[on DVD] for $19.99." +Competition from other forms of media could also account for some of +the decline. As Jane Black of BusinessWeek notes, The +soundtrack to the film High Fidelity has a list price of +$18.98. You could get the whole movie [on DVD] for +$19.99. Ibid. @@ -3708,91 +3887,80 @@ Ibid. -But let's assume the RIAA is right, and all of the decline in CD -sales is because of Internet sharing. Here's the rub: In the same period +But let's assume the RIAA is right, and all of the decline in CD sales +is because of Internet sharing. Here's the rub: In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA -estimates that 2.1 billion CDs were downloaded for free. Thus, - although -2.6 times the total number of CDs sold were downloaded for +estimates that 2.1 billion CDs were downloaded for free. Thus, +although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent. There are too many different things happening at the same time to explain these numbers definitively, but one conclusion is unavoidable: -The recording industry constantly asks, "What's the difference - between -downloading a song and stealing a CD?"—but their own - numbers +The recording industry constantly asks, What's the difference between +downloading a song and stealing a CD?—but their own numbers reveal the difference. If I steal a CD, then there is one less CD to sell. Every taking is a lost sale. But on the basis of the numbers the RIAA provides, it is absolutely clear that the same is not true of -downloads. If every download were a lost sale—if every use of Kazaa -"rob[bed] the author of [his] profit"—then the industry would have -suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6 -times the number of CDs sold were downloaded for free, and yet sales -revenue dropped by just 6.7 percent, then there is a huge difference - between -"downloading a song and stealing a CD." +downloads. If every download were a lost sale—if every use of +Kazaa rob[bed] the author of [his] profit—then the industry +would have suffered a 100 percent drop in sales last year, not a 7 +percent drop. If 2.6 times the number of CDs sold were downloaded for +free, and yet sales revenue dropped by just 6.7 percent, then there is +a huge difference between downloading a song and stealing a CD. -These are the harms—alleged and perhaps exaggerated but, let's - assume, -real. What of the benefits? File sharing may impose costs on the -recording industry. What value does it produce in addition to these -costs? +These are the harms—alleged and perhaps exaggerated but, let's +assume, real. What of the benefits? File sharing may impose costs on +the recording industry. What value does it produce in addition to +these costs? -One benefit is type C sharing—making available content that is -technically still under copyright but is no longer commercially - available. -This is not a small category of content. There are millions of -tracks that are no longer commercially available. +One benefit is type C sharing—making available content that +is technically still under copyright but is no longer commercially +available. This is not a small category of content. There are +millions of tracks that are no longer commercially +available. -By one estimate, 75 percent of the music released by the major labels is no -longer in print. See Online Entertainment and Copyright Law—Coming -Soon to a Digital Device Near You: Hearing Before the Senate - Committee -on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared - statement -of the Future of Music Coalition), available at -link #18. - -And while it's - conceivable -that some of this content is not available because the artist -producing the content doesn't want it to be made available, the vast -majority of it is unavailable solely because the publisher or the - distributor -has decided it no longer makes economic sense to the company to -make it available. +By one estimate, 75 percent of the music released by the major labels +is no longer in print. See Online Entertainment and Copyright +Law—Coming Soon to a Digital Device Near You: Hearing Before the +Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April +2001) (prepared statement of the Future of Music Coalition), available +at link #18. + +And while it's conceivable that some of this content is not available +because the artist producing the content doesn't want it to be made +available, the vast majority of it is unavailable solely because the +publisher or the distributor has decided it no longer makes economic +sense to the company to make it available. In real space—long before the Internet—the market had a simple -response to this problem: used book and record stores. There are - thousands -of used book and used record stores in America today. +response to this problem: used book and record stores. There are +thousands of used book and used record stores in America +today. While there are not good estimates of the number of used record stores in existence, in 2002, there were 7,198 used book dealers in the United States, -an increase of 20 percent since 1993. See Book Hunter Press, The Quiet -Revolution: The Expansion of the Used Book Market (2002), available at +an increase of 20 percent since 1993. See Book Hunter Press, The Quiet +Revolution: The Expansion of the Used Book Market (2002), available at link #19. Used records accounted for $260 million in sales in 2002. See National -Association of Recording Merchandisers, "2002 Annual Survey - Results," +Association of Recording Merchandisers, 2002 Annual Survey + Results, available at link #20. -These -stores buy content from owners, then sell the content they buy. And -under American copyright law, when they buy and sell this content, -even if the content is still under copyright, the copyright owner doesn't get -a dime. Used book and record stores are commercial entities; their -owners make 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. +These stores buy content from owners, then sell the content they +buy. And under American copyright law, when they buy and sell this +content, even if the content is still under +copyright, the copyright owner doesn't get a dime. Used +book and record stores are commercial entities; their owners make +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 @@ -3801,7 +3969,7 @@ record stores. It is different, of course, because the person making the content available isn't making money from making the content available. It is also different, of course, because in real space, when I sell a record, I don't have it anymore, while in cyberspace, -when someone shares my 1949 recording of Bernstein's "Two Love Songs," +when someone shares my 1949 recording of Bernstein's Two Love Songs, I still have it. That difference would matter economically if the owner of the copyright were selling the record in competition to my sharing. But we're talking about the class of content that is not @@ -3821,12 +3989,12 @@ Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur—the sharing of content that copyright owners want to have shared or for which there is no continuing copyright. This sharing clearly benefits authors and society. Science fiction author -Cory Doctorow, for example, released his first novel, Down and Out in -the Magic Kingdom, both free on-line and in bookstores on the same +Cory Doctorow, for example, released his first novel, Down and Out in +the Magic Kingdom, both free on-line and in bookstores on the same day. His (and his publisher's) thinking was that the on-line distribution -would be a great advertisement for the "real" book. People would read +would be a great advertisement for the real book. People would read part on-line, and then decide whether they liked the book or not. If they liked it, they would be more likely to buy it. Doctorow's content is type D content. If sharing networks enable his work to be spread, then @@ -3841,15 +4009,16 @@ lose something important in order to protect type A content. The point throughout is this: While the recording industry -understandably says, "This is how much we've lost," we must also ask, -"How much has society gained from p2p sharing? What are the +understandably says, This is how much we've lost, we must also ask, +How much has society gained from p2p sharing? What are the efficiencies? What is the content that otherwise would be -unavailable?" +unavailable? For unlike the piracy I described in the first section of this -chapter, much of the "piracy" that file sharing enables is plainly -legal and good. And like the piracy I described in chapter 4, much of +chapter, much of the piracy that file sharing enables is plainly +legal and good. And like the piracy I described in chapter +, much of this piracy is motivated by a new way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the recording industry, and @@ -3860,8 +4029,8 @@ balance. The law should seek that balance, and that balance will be found only with time. -"But isn't the war just a war against illegal sharing? Isn't the target -just what you call type A sharing?" +But isn't the war just a war against illegal sharing? Isn't the target +just what you call type A sharing? You would think. And we should hope. But so far, it is not. The @@ -3875,15 +4044,16 @@ a technology to block the transfer of 99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements -"down to zero." +down to zero. See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at -link #21. For an account of the litigation and its toll on -Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn - Fanning's -Napster (New York: Crown Business, 2003), 269–82. + +link #21. For an +account of the litigation and its toll on Napster, see Joseph Menn, +All the Rave: The Rise and Fall of Shawn Fanning's Napster (New +York: Crown Business, 2003), 269–82. @@ -3900,55 +4070,53 @@ 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 -been a process of balance. As new technologies changed the way - content -was distributed, the law adjusted, after some time, to the new - technology. -In this adjustment, the law sought to ensure the legitimate rights -of creators while protecting innovation. Sometimes this has meant -more rights for creators. Sometimes less. +been a process of balance. As new technologies changed the way content +was distributed, the law adjusted, after some time, to the new +technology. In this adjustment, the law sought to ensure the +legitimate rights of creators while protecting innovation. Sometimes +this has meant more rights for creators. Sometimes less. + + artists + recording industry payments to + -So, as we've seen, when "mechanical reproduction" threatened the +So, as we've seen, when mechanical reproduction threatened the interests of composers, Congress balanced the rights of composers -against the interests of the recording industry. It granted rights to - composers, -but also to the recording artists: Composers were to be paid, but -at a price set by Congress. But when radio started broadcasting the -recordings made by these recording artists, and they complained to -Congress that their "creative property" was not being respected (since -the radio station did not have to pay them for the creativity it - broadcast), -Congress rejected their claim. An indirect benefit was enough. +against the interests of the recording industry. It granted rights to +composers, but also to the recording artists: Composers were to be +paid, but at a price set by Congress. But when radio started +broadcasting the recordings made by these recording artists, and they +complained to Congress that their creative property was not being +respected (since the radio station did not have to pay them for the +creativity it broadcast), Congress rejected their claim. An indirect +benefit was enough. Cable TV followed the pattern of record albums. When the courts rejected the claim that cable broadcasters had to pay for the content they rebroadcast, Congress responded by giving broadcasters a right to -compensation, but at a level set by the law. It likewise gave cable - companies -the right to the content, so long as they paid the statutory price. +compensation, but at a level set by the law. It likewise gave cable +companies the right to the content, so long as they paid the statutory +price. This compromise, like the compromise affecting records and player -pianos, served two important goals—indeed, the two central goals of -any copyright legislation. First, the law assured that new innovators -would have the freedom to develop new ways to deliver content. - Second, -the law assured that copyright holders would be paid for the - content -that was distributed. One fear was that if Congress simply -required cable TV to pay copyright holders whatever they demanded -for their content, then copyright holders associated with broadcasters -would use their power to stifle this new technology, cable. But if - Congress -had permitted cable to use broadcasters' content for free, then it -would have unfairly subsidized cable. Thus Congress chose a path that -would assure compensation without giving the past (broadcasters) - control -over the future (cable). +pianos, served two important goals—indeed, the two central goals +of any copyright legislation. First, the law assured that new +innovators would have the freedom to develop new ways to deliver +content. Second, the law assured that copyright holders would be paid +for the content that was distributed. One fear was that if Congress +simply required cable TV to pay copyright holders whatever they +demanded for their content, then copyright holders associated with +broadcasters would use their power to stifle this new technology, +cable. But if Congress had permitted cable to use broadcasters' +content for free, then it would have unfairly subsidized cable. Thus +Congress chose a path that would assure +compensation without giving the past +(broadcasters) control over the future (cable). Betamax @@ -3959,7 +4127,7 @@ them today, VCRs) that Sony had produced, the Betamax. Disney's and Universal's claim against Sony was relatively simple: Sony produced a device, Disney and Universal claimed, that enabled consumers to engage in copyright infringement. Because the device that Sony built had a -"record" button, the device could be used to record copyrighted movies +record button, the device could be used to record copyrighted movies and shows. Sony was therefore benefiting from the copyright infringement of its customers. It should therefore, Disney and Universal claimed, be partially liable for that infringement. @@ -3969,7 +4137,7 @@ There was something to Disney's and Universal's claim. Sony did decide to design its machine to make it very simple to record television shows. It could have built the machine to block or inhibit any direct copying from a television broadcast. Or possibly, it could have built the -machine to copy only if there were a special "copy me" signal on the +machine to copy only if there were a special copy me signal on the line. It was clear that there were many television shows that did not grant anyone permission to copy. Indeed, if anyone had asked, no doubt the majority of shows would not have authorized copying. And @@ -3981,39 +4149,39 @@ for the architecture it chose. MPAA president Jack Valenti became the studios' most vocal -champion. Valenti called VCRs "tapeworms." He warned, "When there are +champion. Valenti called VCRs tapeworms. He warned, When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of `tapeworms,' eating away at the very heart and essence of the most precious asset the copyright owner has, his -copyright." +copyright. Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture Association of America, Inc.). -"One does not have to be trained in sophisticated marketing and -creative judgment," he told Congress, "to understand the devastation +One does not have to be trained in sophisticated marketing and +creative judgment, he told Congress, to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics -and plain common sense." +and plain common sense. Copyright Infringements (Audio and Video Recorders), 475. Indeed, as surveys would later show, percent of VCR owners had movie libraries of ten videos or more -Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, +Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, (C.D. Cal., 1979). -— a use the Court would later hold was not "fair." By -"allowing VCR owners to copy freely by the means of an exemption from +— a use the Court would later hold was not fair. By +allowing VCR owners to copy freely by the means of an exemption from copyright infringementwithout creating a mechanism to compensate -copyrightowners," Valenti testified, Congress would "take from the +copyrightowners, Valenti testified, Congress would take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby -profit from its reproduction." +profit from its reproduction. Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti). @@ -4022,18 +4190,20 @@ of Jack Valenti). It took eight years for this case to be resolved by the Supreme Court. In the interim, the Ninth Circuit Court of Appeals, which -includes Hollywood in its jurisdiction—leading Judge Alex Kozinski, -who sits on that court, refers to it as the "Hollywood Circuit"—held -that Sony would be liable for the copyright infringement made possible -by its machines. Under the Ninth Circuit's rule, this totally familiar -technology—which Jack Valenti had called "the Boston Strangler of the -American film industry" (worse yet, it was a Japanese Boston Strangler -of the American film industry)—was an illegal +includes Hollywood in its jurisdiction—leading Judge Alex +Kozinski, who sits on that court, refers to it as the Hollywood +Circuit—held that Sony would be liable for the copyright +infringement made possible by its machines. Under the Ninth Circuit's +rule, this totally familiar technology—which Jack Valenti had +called the Boston Strangler of the American film industry (worse +yet, it was a Japanese Boston Strangler of the +American film industry)—was an illegal technology. -Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir. +Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir. 1981). +Kozinski, Alex But the Supreme Court reversed the decision of the Ninth Circuit. @@ -4055,26 +4225,24 @@ varied permutations of competing interests that are inevitably implicated by such new technology. -Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984). +Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984). -Congress was asked to respond to the Supreme Court's decision. -But as with the plea of recording artists about radio broadcasts, - Congress -ignored the request. Congress was convinced that American film -got enough, this "taking" notwithstanding. -If we put these cases together, a pattern is clear: +Congress was asked to respond to the Supreme Court's decision. But as +with the plea of recording artists about radio broadcasts, Congress +ignored the request. Congress was convinced that American film got +enough, this taking notwithstanding. If we put these cases +together, a pattern is clear: - -Table + CASE - WHOSE VALUE WAS "PIRATED" + WHOSE VALUE WAS PIRATED RESPONSE OF THE COURTS RESPONSE OF CONGRESS @@ -4106,7 +4274,7 @@ If we put these cases together, a pattern is clear: -
+ In each case throughout our history, a new technology changed the @@ -4117,27 +4285,28 @@ cases as well. The technology of digital audio tape (DAT), for example, was regulated by Congress to minimize the risk of piracy. The remedy Congress imposed did burden DAT producers, by taxing tape sales and controlling the technology of DAT. See Audio Home Recording Act of -1992 (Title 17 of the United States Code), Pub. L. No. 102-563, 106 Stat. +1992 (Title 17 of the United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not eliminate the opportunity for free riding in the sense I've described. See -Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag," -University of Chicago Law Review 70 (2003): 293–96. +Lessig, Future, 71. See also Picker, From Edison to the Broadcast Flag, +University of Chicago Law Review 70 (2003): 293–96. +broadcast flag Picker, Randal C. In each case, throughout our history, -that change meant that someone got a "free ride" on someone else's +that change meant that someone got a free ride on someone else's work. -In none of these cases did either the courts or Congress eliminate all -free riding. In none of these cases did the courts or Congress insist that -the law should assure that the copyright holder get all the value that his -copyright created. In every case, the copyright owners complained of -"piracy." In every case, Congress acted to recognize some of the - legitimacy -in the behavior of the "pirates." In each case, Congress allowed -some new technology to benefit from content made before. It balanced -the interests at stake. +In none of these cases did either the courts or +Congress eliminate all free riding. In none of +these cases did the courts or Congress insist that the law should +assure that the copyright holder get all the value that his copyright +created. In every case, the copyright owners complained of piracy. +In every case, Congress acted to recognize some of the legitimacy in +the behavior of the pirates. In each case, Congress allowed some new +technology to benefit from content made before. It balanced the +interests at stake. @@ -4155,71 +4324,69 @@ permission to record a song? We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the Supreme Court has stated, -copyright "has never accorded the copyright owner complete control -over all possible uses of his work." +copyright has never accorded the copyright owner complete control +over all possible uses of his work. -Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, +Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984). -Instead, the particular uses that the -law regulates have been defined by balancing the good that comes from -granting an exclusive right against the burdens such an exclusive right -creates. And this balancing has historically been done after a - technology -has matured, or settled into the mix of technologies that facilitate -the distribution of content. +Instead, the particular uses that the law regulates have been defined +by balancing the good that comes from granting an exclusive right +against the burdens such an exclusive right creates. And this +balancing has historically been done after a +technology has matured, or settled into the mix of technologies that +facilitate the distribution of content. We should be doing the same thing today. The technology of the Internet is changing quickly. The way people connect to the Internet (wires vs. wireless) is changing very quickly. No doubt the network -should not become a tool for "stealing" from artists. But neither should -the law become a tool to entrench one particular way in which artists -(or more accurately, distributors) get paid. As I describe in some detail -in the last chapter of this book, we should be securing income to artists -while we allow the market to secure the most efficient way to promote -and distribute content. This will require changes in the law, at least -in the interim. These changes should be designed to balance the - protection -of the law against the strong public interest that innovation -continue. +should not become a tool for stealing from artists. But neither +should the law become a tool to entrench one particular way in which +artists (or more accurately, distributors) get paid. As I describe in +some detail in the last chapter of this book, we should be securing +income to artists while we allow the market to secure the most +efficient way to promote and distribute content. This will require +changes in the law, at least in the interim. These changes should be +designed to balance the protection of the law against the strong +public interest that innovation continue. -This is especially true when a new technology enables a vastly - superior -mode of distribution. And this p2p has done. P2p technologies -can be ideally efficient in moving content across a widely diverse - network. -Left to develop, they could make the network vastly more - efficient. -Yet these "potential public benefits," as John Schwartz writes in -The New York Times, "could be delayed in the P2P fight." +This is especially true when a new technology enables a vastly +superior mode of distribution. And this p2p has done. P2p technologies +can be ideally efficient in moving content across a widely diverse +network. Left to develop, they could make the network vastly more +efficient. Yet these potential public benefits, as John Schwartz +writes in The New York Times, could be delayed in the P2P +fight. -John Schwartz, "New Economy: The Attack on Peer-to-Peer Software -Echoes Past Efforts," New York Times, 22 September 2003, C3. +John Schwartz, New Economy: The Attack on Peer-to-Peer Software +Echoes Past Efforts, New York Times, 22 September 2003, C3. -Yet when anyone begins to talk about "balance," the copyright - warriors -raise a different argument. "All this hand waving about balance -and incentives," they say, "misses a fundamental point. Our content," -the warriors insist, "is our property. Why should we wait for Congress -to `rebalance' our property rights? Do you have to wait before calling -the police when your car has been stolen? And why should Congress -deliberate at all about the merits of this theft? Do we ask whether the -car thief had a good use for the car before we arrest him?" +Yet when anyone begins to talk about balance, the copyright warriors +raise a different argument. All this hand waving about balance and +incentives, they say, misses a fundamental point. Our content, the +warriors insist, is our property. Why should we +wait for Congress to `rebalance' our property rights? Do you have to +wait before calling the police when your car has been stolen? And why +should Congress deliberate at all about the merits of this theft? Do +we ask whether the car thief had a good use for the car before we +arrest him? -"It is our property," the warriors insist. "And it should be protected -just as any other property is protected." +It is our property, the warriors +insist. And it should be protected just as any other property +is protected. - - +
 - -"PROPERTY" + + +<quote>PROPERTY</quote> + @@ -4230,16 +4397,16 @@ wants. Markets reckon the supply and demand that partially determine the price she can get. -But in ordinary language, to call a copyright a "property" right is a -bit misleading, for the property of copyright is an odd kind of property. -Indeed, the very idea of property in any idea or any expression is very -odd. I understand what I am taking when I take the picnic table you -put in your backyard. I am taking a thing, the picnic table, and after I -take it, you don't have it. But what am I taking when I take the good -idea you had to put a picnic table in the backyard—by, for example, - going -to Sears, buying a table, and putting it in my backyard? What is the -thing I am taking then? +But in ordinary language, to call a copyright a property right is a +bit misleading, for the property of copyright is an odd kind of +property. Indeed, the very idea of property in any idea or any +expression is very odd. I understand what I am taking when I take the +picnic table you put in your backyard. I am taking a thing, the picnic +table, and after I take it, you don't have it. But what am I taking +when I take the good idea you had to put a picnic +table in the backyard—by, for example, going to Sears, buying a +table, and putting it in my backyard? What is the thing I am taking +then? The point is not just about the thingness of picnic tables versus @@ -4251,12 +4418,12 @@ range of exceptions—ideas released to the world are free. I don't take anything from you when I copy the way you dress—though I might seem weird if I did it every day, and especially weird if you are a woman. Instead, as Thomas Jefferson said (and as is especially true -when I copy the way someone else dresses), "He who receives an idea +when I copy the way someone else dresses), He who receives an idea from me, receives instruction himself without lessening mine; as he who -lights his taper at mine, receives light without darkening me." +lights his taper at mine, receives light without darkening me. Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in -The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert +The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333–34. @@ -4269,74 +4436,69 @@ without my permission: The law turns the intangible into property. -But how, and to what extent, and in what form—the details, in -other words—matter. To get a good sense of how this practice of - turning -the intangible into property emerged, we need to place this - "property" -in its proper context. +But how, and to what extent, and in what form—the details, +in other words—matter. To get a good sense of how this practice +of turning the intangible into property emerged, we need to place this +property in its proper context. -As the legal realists taught American law, all property rights are - intangible. -A property right is simply a right that an individual has against the -world to do or not do certain things that may or may not attach to a - physical -object. The right itself is intangible, even if the object to which it is -(metaphorically) attached is tangible. See Adam Mossoff, "What Is - Property? -Putting the Pieces Back Together," Arizona Law Review 45 (2003): -373, 429 n. 241. - - - -My strategy in doing this will be the same as my strategy in the - preceding -part. I offer four stories to help put the idea of "copyright - material -is property" in context. Where did the idea come from? What are -its limits? How does it function in practice? After these stories, the -significance of this true statement—"copyright material is property"— -will be a bit more clear, and its implications will be revealed as quite -different from the implications that the copyright warriors would have -us draw. +As the legal realists taught American law, all property rights are +intangible. A property right is simply a right that an individual has +against the world to do or not do certain things that may or may not +attach to a physical object. The right itself is intangible, even if +the object to which it is (metaphorically) attached is tangible. See +Adam Mossoff, What Is Property? Putting the Pieces Back Together, +Arizona Law Review 45 (2003): 373, 429 n. 241. + + + +My strategy in doing this will be the same as my strategy in the +preceding part. I offer four stories to help put the idea of +copyright material is property in context. Where did the idea come +from? What are its limits? How does it function in practice? After +these stories, the significance of this true +statement—copyright material is property— will be a bit +more clear, and its implications will be revealed as quite different +from the implications that the copyright warriors would have us draw. + - + CHAPTER SIX: Founders - -William Shakespeare wrote Romeo and Juliet in 1595. The play -was first published in 1597. It was the eleventh major play that - Shakespeare -had written. He would continue to write plays through 1613, -and the plays that he wrote have continued to define Anglo-American -culture ever since. So deeply have the works of a sixteenth-century writer -seeped into our culture that we often don't even recognize their source. -I once overheard someone commenting on Kenneth Branagh's - adaptation -of Henry V: "I liked it, but Shakespeare is so full of clichés." - - -In 1774, almost 180 years after Romeo and Juliet was written, the -"copy-right" for the work was still thought by many to be the exclusive +Henry V +Branagh, Kenneth + +William Shakespeare wrote Romeo and Juliet in 1595. The play +was first published in 1597. It was the eleventh major play that +Shakespeare had written. He would continue to write plays through +1613, and the plays that he wrote have continued to define +Anglo-American culture ever since. So deeply have the works of a +sixteenth-century writer seeped into our culture that we often don't +even recognize their source. I once overheard someone commenting on +Kenneth Branagh's adaptation of Henry V: I liked it, but Shakespeare +is so full of clichés. + + +In 1774, almost 180 years after Romeo and Juliet was written, the +copy-right for the work was still thought by many to be the exclusive right of a single London publisher, Jacob Tonson. Jacob Tonson is typically remembered for his associations with prominent eighteenth-century literary figures, especially John Dryden, and for his -handsome "definitive editions" of classic works. In addition to Romeo and -Juliet, he published an astonishing array of works that still remain at the +handsome definitive editions of classic works. In addition to Romeo and +Juliet, he published an astonishing array of works that still remain at the heart of the English canon, including collected works of Shakespeare, Ben -Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson, -Bookseller," American Scholar 61:3 (1992): 424–31. +Jonson, John Milton, and John Dryden. See Keith Walker, Jacob Tonson, +Bookseller, American Scholar 61:3 (1992): 424–31. Tonson was the most prominent of a small group of publishers called the Conger -Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: +Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968), 151–52. who controlled bookselling in England during the eighteenth -century. The Conger claimed a perpetual right to control the "copy" of +century. The Conger claimed a perpetual right to control the copy of books that they had acquired from authors. That perpetual right meant that no @@ -4348,49 +4510,45 @@ produce better or cheaper editions was eliminated. Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the history of copyright is 1710, the year that the British Parliament -adopted the first "copyright" act. Known as the Statute of Anne, the +adopted the first copyright act. Known as the Statute of Anne, the act stated that all published works would get a copyright term of fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one additional years. As Siva Vaidhyanathan nicely argues, it is erroneous to call this a -"copyright law." See Vaidhyanathan, Copyrights and Copywrongs, 40. +copyright law. See Vaidhyanathan, Copyrights and Copywrongs, 40. Vaidhyanathan, Siva - Under this law, Romeo and Juliet should have been + Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? -The reason is that the English hadn't yet agreed on what a "copyright" +The reason is that the English hadn't yet agreed on what a copyright was—indeed, no one had. At the time the English passed the Statute of Anne, there was no other legislation governing copyrights. The last law regulating publishers, the Licensing Act of 1662, had expired in 1695. That law gave publishers a monopoly over publishing, as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said -that the publishers, or "Stationers," had an exclusive right to print +that the publishers, or Stationers, had an exclusive right to print books. +Licensing Act (1662) + + +There was no positive law, but that didn't mean +that there was no law. The Anglo-American legal tradition looks to +both the words of legislatures and the words of judges to know the +rules that are to govern how people are to behave. We call the words +from legislatures positive law. We call the words from judges +common law. The common law sets the background against which +legislatures legislate; the legislature, ordinarily, can trump that +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. -There was no positive law, but that didn't mean that there was no -law. The Anglo-American legal tradition looks to both the words of -legislatures and the words of judges to know the rules that are to - govern -how people are to behave. We call the words from legislatures - "positive -law." We call the words from judges "common law." The common -law sets the background against which legislatures legislate; the - legislature, -ordinarily, can trump that 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. - - -This question was important to the publishers, or "booksellers," as +This question was important to the publishers, or booksellers, as they were called, because there was growing competition from foreign publishers. The Scottish, in particular, were increasingly publishing and exporting books to England. That competition reduced the profits @@ -4402,94 +4560,85 @@ to again give them exclusive control over publishing. That demand resulted in the Statute of Anne. -The Statute of Anne granted the author or "proprietor" of a book -an exclusive right to print that book. In an important limitation, - however, -and to the horror of the booksellers, the law gave the bookseller -that right for a limited term. At the end of that term, the copyright - "expired," -and the work would then be free and could be published by -anyone. Or so the legislature is thought to have believed. +The Statute of Anne granted the author or proprietor of a book an +exclusive right to print that book. In an important limitation, +however, and to the horror of the booksellers, the law gave the +bookseller that right for a limited term. At the end of that term, the +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? +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? -For the booksellers, and the authors whom they represented, had a -very strong claim. Take Romeo and Juliet as an example: That play was -written by Shakespeare. It was his genius that brought it into the +For the booksellers, and the authors whom they represented, had a very +strong claim. Take Romeo and Juliet as an example: That play +was written by Shakespeare. It was his genius that brought it into the world. He didn't take anybody's property when he created this play -(that's a controversial claim, but never mind), and by his creating this -play, he didn't make it any harder for others to craft a play. So why is it -that the law would ever allow someone else to come along and take -Shakespeare's play without his, or his estate's, permission? What - reason -is there to allow someone else to "steal" Shakespeare's work? +(that's a controversial claim, but never mind), and by his creating +this play, he didn't make it any harder for others to craft a play. So +why is it that the law would ever allow someone else to come along and +take Shakespeare's play without his, or his estate's, permission? What +reason is there to allow someone else to steal Shakespeare's work? -The answer comes in two parts. We first need to see something - special -about the notion of "copyright" that existed at the time of the +The answer comes in two parts. We first need to see something special +about the notion of copyright that existed at the time of the Statute of Anne. Second, we have to see something important about -"booksellers." - - -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 wasn't so much a concept as it was a very particular right. The -copyright was born as a very specific set of restrictions: It forbade - others -from reprinting a book. In 1710, the "copy-right" was a right to use -a particular machine to replicate a particular work. It did not go - beyond -that very narrow right. It did not control any more generally how +booksellers. + + +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 +wasn't so much a concept as it was a very particular right. The +copyright was born as a very specific set of restrictions: It forbade +others from reprinting a book. In 1710, the copy-right was a right +to use a particular machine to replicate a particular work. It did not +go beyond that very narrow right. It did not control any more +generally how -a work could be used. Today the right includes a large collection of - restrictions -on the freedom of others: It grants the author the exclusive -right to copy, the exclusive right to distribute, the exclusive right to -perform, and so on. +a work could be used. Today the right includes a +large collection of restrictions on the freedom of others: It grants +the author the exclusive right to copy, the exclusive right to +distribute, the exclusive right to perform, and so on. +Branagh, Kenneth So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the -term was that no one could reprint Shakespeare's work without the - permission -of the Shakespeare estate. It would not have controlled - anything, -for example, about how the work could be performed, whether +term was that no one could reprint Shakespeare's work without the +permission of the Shakespeare estate. It would not have controlled +anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be -allowed to make his films. The "copy-right" was only an exclusive right -to print—no less, of course, but also no more. +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 Even that limited right was viewed with skepticism by the British. -They had had a long and ugly experience with "exclusive rights," - especially -"exclusive rights" granted by the Crown. The English had fought -a civil war in part about the Crown's practice of handing out - monopolies—especially -monopolies for works that already existed. King Henry -VIII granted a patent to print the Bible and a monopoly to Darcy to -print playing cards. The English Parliament began to fight back -against this power of the Crown. In 1656, it passed the Statute of - Monopolies, -limiting monopolies to patents for new inventions. And by -1710, Parliament was eager to deal with the growing monopoly in -publishing. - - -Thus the "copy-right," when viewed as a monopoly right, was - naturally -viewed as a right that should be limited. (However convincing -the claim that "it's my property, and I should have it forever," try -sounding convincing when uttering, "It's my monopoly, and I should -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. +They had had a long and ugly experience with exclusive rights, +especially exclusive rights granted by the Crown. The English had +fought a civil war in part about the Crown's practice of handing out +monopolies—especially monopolies for works that already +existed. King Henry VIII granted a patent to print the Bible and a +monopoly to Darcy to print playing cards. The English Parliament began +to fight back against this power of the Crown. In 1656, it passed the +Statute of Monopolies, limiting monopolies to patents for new +inventions. And by 1710, Parliament was eager to deal with the growing +monopoly in publishing. + + +Thus the copy-right, when viewed as a monopoly right, was naturally +viewed as a right that should be limited. (However convincing the +claim that it's my property, and I should have it forever, try +sounding convincing when uttering, It's my monopoly, and I should +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. Second, about booksellers. It wasn't just that the copyright was a @@ -4497,26 +4646,27 @@ monopoly. It was also that it was a monopoly held by the booksellers. Booksellers sound quaint and harmless to us. They were not viewed as harmless in seventeenth-century England. Members of the Conger -were increasingly seen as monopolists of the worst kind—tools of the -Crown's repression, selling the liberty of England to guarantee - themselves -a monopoly profit. The attacks against these monopolists were -harsh: Milton described them as "old patentees and monopolizers in -the trade of book-selling"; they were "men who do not therefore labour -in an honest profession to which learning is indetted." + +were increasingly seen as monopolists of the worst +kind—tools of the Crown's repression, selling the liberty of +England to guarantee themselves a monopoly profit. The attacks against +these monopolists were harsh: Milton described them as old patentees +and monopolizers in the trade of book-selling; they were men who do +not therefore labour in an honest profession to which learning is +indetted. + -Philip Wittenberg, The Protection and Marketing of Literary Property (New -York: J. Messner, Inc., 1937), 31. +Philip Wittenberg, The Protection and Marketing of Literary +Property (New York: J. Messner, Inc., 1937), 31. -Many believed the power the booksellers exercised over the spread -of knowledge was harming that spread, just at the time the - Enlightenment +Many believed the power the booksellers exercised over the spread of +knowledge was harming that spread, just at the time the Enlightenment was teaching the importance of education and knowledge spread -generally. The idea that knowledge should be free was a hallmark of the -time, and these powerful commercial interests were interfering with -that idea. +generally. The idea that knowledge should be free was a hallmark of +the time, and these powerful commercial interests were interfering +with that idea. To balance this power, Parliament decided to increase competition @@ -4561,7 +4711,7 @@ Eighth Year of the Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et -al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618). +al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618). @@ -4572,7 +4722,7 @@ Anne gave authors certain protections through positive law, but those protections were not intended as replacements for the common law. Instead, they were intended simply to supplement the common law. Under common law, it was already wrong to take another person's -creative "property" and use it without his permission. The Statute of +creative property and use it without his permission. The Statute of Anne, the booksellers argued, didn't change that. Therefore, just because the protections of the Statute of Anne expired, that didn't mean the protections of the common law expired: Under the common law @@ -4584,11 +4734,11 @@ way to protect authors. This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary chutzpah. Until then, as law professor Raymond Patterson has put it, -"The publishers . . . had as much concern for authors as a cattle -rancher has for cattle." +The publishers … had as much concern for authors as a cattle +rancher has for cattle. -Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt -Law Review 40 (1987): 28. For a wonderfully compelling account, see +Lyman Ray Patterson, Free Speech, Copyright, and Fair Use, Vanderbilt +Law Review 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37–48. Vaidhyanathan, Siva @@ -4600,38 +4750,40 @@ The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander Donaldson. -For a compelling account, see David Saunders, Authorship and Copyright +For a compelling account, see David Saunders, Authorship and Copyright (London: Routledge, 1992), 62–69. Donaldson was an outsider to the London Conger. He began his career in Edinburgh in 1750. The focus of his business was inexpensive -reprints "of standard works whose copyright term had expired," at least +reprints of standard works whose copyright term had expired, at least under the Statute of Anne. -Mark Rose, Authors and Owners (Cambridge: Harvard University Press, +Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), 92. +Rose, Mark Donaldson's publishing house prospered -and became "something of a center for literary Scotsmen." "[A]mong -them," Professor Mark Rose writes, was "the young James Boswell +and became something of a center for literary Scotsmen. [A]mong +them, Professor Mark Rose writes, was the young James Boswell who, together with his friend Andrew Erskine, published an anthology -of contemporary Scottish poems with Donaldson." +of contemporary Scottish poems with Donaldson. Ibid., 93. +Boswell, James Erskine, Andrew When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold -inexpensive editions "of the most popular English books, in defiance +inexpensive editions of the most popular English books, in defiance of the supposed common law right of Literary -Property." +Property. -Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting +Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting Borwell). His books undercut the Conger prices by 30 to 50 percent, and he @@ -4639,20 +4791,20 @@ rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection. -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. +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. Millar was a bookseller who in 1729 had purchased the rights to James -Thomson's poem "The Seasons." Millar complied with the requirements of +Thomson's poem The Seasons. Millar complied with the requirements of the Statute of Anne, and therefore received the full protection of the statute. After the term of copyright ended, Robert Taylor began printing a competing volume. Millar sued, claiming a perpetual common law right, the Statute of Anne notwithstanding. -Howard B. Abrams, "The Historic Foundation of American Copyright Law: -Exploding the Myth of Common Law Copyright," Wayne Law Review 29 +Howard B. Abrams, The Historic Foundation of American Copyright Law: +Exploding the Myth of Common Law Copyright, Wayne Law Review 29 (1983): 1152. @@ -4664,7 +4816,7 @@ Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever protection the Statute of Anne gave booksellers, it did not, he held, extinguish any common law right. The question was whether the common -law would protect the author against subsequent "pirates." +law would protect the author against subsequent pirates. Mansfield's answer was yes: The common law would bar Taylor from reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to @@ -4698,25 +4850,25 @@ Thomas Beckett. Ibid., 1156. Donaldson then released an unauthorized edition -of Thomson's works. Beckett, on the strength of the decision in Millar, +of Thomson's works. Beckett, on the strength of the decision in Millar, got an injunction against Donaldson. Donaldson appealed the case to 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. -As few legal cases ever do, Donaldson v. Beckett drew an enormous -amount of attention throughout Britain. Donaldson's lawyers argued -that whatever rights may have existed under the common law, the Statute -of Anne terminated those rights. After passage of the Statute of Anne, -the only legal protection for an exclusive right to control 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. +As few legal cases ever do, Donaldson v. Beckett drew an +enormous amount of attention throughout Britain. Donaldson's lawyers +argued that whatever rights may have existed under the common law, the +Statute of Anne terminated those rights. After passage of the Statute +of Anne, the only legal protection for an exclusive right to control +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," +presented to the House and voted upon first by the law lords, 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. @@ -4732,14 +4884,14 @@ fixed for a limited time, after which the work protected by copyright passed into the public domain. -"The public domain." Before the case of Donaldson v. Beckett, there -was no clear idea of a public domain in England. Before 1774, there -was a strong argument that common law copyrights were perpetual. -After 1774, the public domain was 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. +The public domain. Before the case of Donaldson +v. Beckett, there was no clear idea of a public domain in +England. Before 1774, there was a strong argument that common law +copyrights were perpetual. After 1774, the public domain was +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 @@ -4749,25 +4901,25 @@ legal restraint. It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, -where most of the "pirate publishers" did their work, people -celebrated the decision in the streets. As the Edinburgh Advertiser -reported, "No private cause has so much engrossed the attention of the +where most of the pirate publishers did their work, people +celebrated the decision in the streets. As the Edinburgh Advertiser +reported, No private cause has so much engrossed the attention of the public, and none has been tried before the House of Lords in the -decision of which so many individuals were interested." "Great +decision of which so many individuals were interested. Great rejoicing in Edinburgh upon victory over literary property: bonfires -and illuminations." +and illuminations. Rose, 97. In London, however, at least among publishers, the reaction was -equally strong in the opposite direction. The Morning Chronicle +equally strong in the opposite direction. The Morning Chronicle reported:
-By the above decision . . . near 200,000 pounds worth of what was +By the above decision … near 200,000 pounds worth of what was honestly purchased at public sale, and which was yesterday thought property is now reduced to nothing. The Booksellers of London and Westminster, many of whom sold estates and houses to purchase @@ -4782,22 +4934,23 @@ Ibid.
-"Ruined" is a bit of an exaggeration. But it is not an exaggeration to +Ruined is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords meant that the booksellers could no longer control how culture in England would grow and develop. Culture in England was thereafter -free. Not in the sense that copyrights would not be respected, for of -course, for a limited time after a work was published, the bookseller -had an exclusive right to control the publication of that book. And -not in the sense that books could be stolen, for even after a -copyright expired, you still had to buy the book from someone. But -free in the sense that the culture and its growth would no longer be -controlled by a small group of publishers. As every free market does, -this free market of free culture would grow as the consumers and -producers chose. English culture would develop as the many English -readers chose to let it develop— chose in the books they bought -and wrote; chose in the memes they repeated and endorsed. Chose in a -competitive context, not a context in which the choices about what +free. Not in the sense that copyrights would not +be respected, for of course, for a limited time after a work was +published, the bookseller had an exclusive right to control the +publication of that book. And not in the sense that books could be +stolen, for even after a copyright expired, you still had to buy the +book from someone. But free in the sense that the +culture and its growth would no longer be controlled by a small group +of publishers. As every free market does, this free market of free +culture would grow as the consumers and producers chose. English +culture would develop as the many English readers chose to let it +develop— chose in the books they bought and wrote; chose in the +memes they repeated and endorsed. Chose in a competitive +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. @@ -4808,8 +4961,8 @@ world where the Parliament is more pliant, free culture would be less protected. - - + + CHAPTER SEVEN: Recorders Jon Else is a filmmaker. He is best known for his documentaries and @@ -4836,20 +4989,20 @@ stage. During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set. Playing on the television set, while the stagehands played checkers -and the opera company played Wagner, was The Simpsons. As Else judged +and the opera company played Wagner, was The Simpsons. As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene. Years later, when he finally got funding to complete the film, Else -attempted to clear the rights for those few seconds of The Simpsons. +attempted to clear the rights for those few seconds of The Simpsons. For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, -unless "fair use" or some other privilege applies. +unless fair use or some other privilege applies. -Else called Simpsons creator Matt Groening's office to get permission. +Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-halfsecond image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact @@ -4865,32 +5018,32 @@ Else said. He was just confirming the permission with Fox. Gracie Films -Then, as Else told me, "two things happened. First we discovered -. . . that Matt Groening doesn't own his own creation—or at -least that someone [at Fox] believes he doesn't own his own creation." -And second, Fox "wanted ten thousand dollars as a licensing fee for us -to use this four-point-five seconds of . . . entirely unsolicited -Simpsons which was in the corner of the shot." +Then, as Else told me, two things happened. First we discovered +… that Matt Groening doesn't own his own creation—or at +least that someone [at Fox] believes he doesn't own his own creation. +And second, Fox wanted ten thousand dollars as a licensing fee for us +to use this four-point-five seconds of … entirely unsolicited +Simpsons which was in the corner of the shot. Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He -explained to her, "There must be some mistake here. . . . We're -asking for your educational rate on this." That was the educational +explained to her, There must be some mistake here. … We're +asking for your educational rate on this. That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. -"I wanted to make sure I had my facts straight," he told me. "Yes, you -have your facts straight," she said. It would cost $10,000 to use the -clip of The Simpsons in the corner of a shot in a documentary film +I wanted to make sure I had my facts straight, he told me. Yes, you +have your facts straight, she said. It would cost $10,000 to use the +clip of The Simpsons in the corner of a shot in a documentary film about -Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And -if you quote me, I'll turn you over to our attorneys." As an assistant -to Herrera told Else later on, "They don't give a shit. They just want -the money." +Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, And +if you quote me, I'll turn you over to our attorneys. As an assistant +to Herrera told Else later on, They don't give a shit. They just want +the money. Else didn't have the money to buy the right to replay what was playing @@ -4898,55 +5051,55 @@ on the television backstage at the San Francisco Opera. To reproduce this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, -The Day After Trinity, from ten years before. +The Day After Trinity, from ten years before. San Francisco Opera Day After Trinity, The There's no doubt that someone, whether Matt Groening or Fox, owns the -copyright to The Simpsons. That copyright is their property. To use +copyright to The Simpsons. That copyright is their property. To use that copyrighted material thus sometimes requires the permission of the copyright owner. If the use that Else wanted to make of the -Simpsons copyright were one of the uses restricted by the law, then he +Simpsons copyright were one of the uses restricted by the law, then he would need to get the permission of the copyright owner before he could use the work in that way. And in a free market, it is the owner of the copyright who gets to set the price for any use that the law says the owner gets to control. -For example, "public performance" is a use of The Simpsons that the +For example, public performance is a use of The Simpsons that the copyright owner gets to control. If you take a selection of favorite -episodes, rent a movie theater, and charge for tickets to come see "My -Favorite Simpsons," then you need to get permission from the copyright +episodes, rent a movie theater, and charge for tickets to come see My +Favorite Simpsons, then you need to get permission from the copyright owner. And the copyright owner (rightly, in my view) can charge whatever she wants—$10 or $1,000,000. That's her right, as set by the law. But when lawyers hear this story about Jon Else and Fox, their first -thought is "fair use." +thought is fair use. -For an excellent argument that such use is "fair use," but that -lawyers don't permit recognition that it is "fair use," see Richard -A. Posner with William F. Patry, "Fair Use and Statutory Reform in the -Wake of Eldred " (draft on file with author), University of Chicago +For an excellent argument that such use is fair use, but that +lawyers don't permit recognition that it is fair use, see Richard +A. Posner with William F. Patry, Fair Use and Statutory Reform in the +Wake of Eldred (draft on file with author), University of Chicago Law School, 5 August 2003. -Else's use of just 4.5 seconds of an indirect shot of a Simpsons -episode is clearly a fair use of The Simpsons—and fair use does +Else's use of just 4.5 seconds of an indirect shot of a Simpsons +episode is clearly a fair use of The 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: +So I asked Else why he didn't just rely upon fair use. Here's his reply:
-The Simpsons fiasco was for me a great lesson in the gulf between what +The Simpsons fiasco was for me a great lesson in the gulf between what lawyers find irrelevant in some abstract sense, and what is crushingly relevant in practice to those of us actually trying to make and -broadcast documentaries. I never had any doubt that it was "clearly -fair use" in an absolute legal sense. But I couldn't rely on the +broadcast documentaries. I never had any doubt that it was clearly +fair use in an absolute legal sense. But I couldn't rely on the concept in any concrete way. Here's why: @@ -4954,18 +5107,18 @@ concept in any concrete way. Here's why: Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed -"visual cue sheet" listing the source and licensing status of each -shot in the film. They take a dim view of "fair use," and a claim of -"fair use" can grind the application process to a halt. +visual cue sheet listing the source and licensing status of each +shot in the film. They take a dim view of fair use, and a claim of +fair use can grind the application process to a halt. I probably never should have asked Matt Groening in the first place. But I knew (at least from folklore) that Fox had a history of -tracking down and stopping unlicensed Simpsons usage, just as George -Lucas had a very high profile litigating Star Wars usage. So I decided +tracking down and stopping unlicensed Simpsons usage, just as George +Lucas had a very high profile litigating Star Wars usage. So I decided to play by the book, thinking that we would be granted free or cheap -license to four seconds of Simpsons. As a documentary producer working +license to four seconds of Simpsons. As a documentary producer working to exhaustion on a shoestring, the last thing I wanted was to risk legal trouble, even nuisance legal trouble, and even to defend a principle. @@ -4974,9 +5127,9 @@ principle. I did, in fact, speak with one of your colleagues at Stanford Law -School . . . who confirmed that it was fair use. He also confirmed -that Fox would "depose and litigate you to within an inch of your -life," regardless of the merits of my claim. He made clear that it +School … who confirmed that it was fair use. He also confirmed +that Fox would depose and litigate you to within an inch of your +life, regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them. @@ -5005,11 +5158,13 @@ matured into a sword that interferes with any use, transformative or not. - - + + CHAPTER EIGHT: Transformers Allen, Paul -Alben, Alex + + Alben, Alex + In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative company founded by Microsoft cofounder Paul Allen to @@ -5017,7 +5172,10 @@ develop digital entertainment. Long before the Internet became popular, Starwave began investing in new technology for delivering entertainment in anticipation of the power of networks. -Alben, Alex + + artists + retrospective compilations on + Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology—not to distribute @@ -5028,7 +5186,6 @@ chosen was Clint Eastwood. The idea was to showcase all of the work of Eastwood, with clips from his films and interviews with figures important to his career. -Alben, Alex At that time, Eastwood had made more than fifty films, as an actor and as a director. Alben began with a series of interviews with Eastwood, @@ -5043,36 +5200,34 @@ posters, scripts, and other material relating to the films Eastwood made. Most of his career was spent at Warner Brothers, and so it was relatively easy to get permission for that content. -Alben, Alex -Then Alben and his team decided to include actual film clips. "Our +Then Alben and his team decided to include actual film clips. Our goal was that we were going to have a clip from every one of -Eastwood's films," Alben told me. It was here that the problem -arose. "No one had ever really done this before," Alben explained. "No +Eastwood's films, Alben told me. It was here that the problem +arose. No one had ever really done this before, Alben explained. No one had ever tried to do this in the context of an artistic look at an -actor's career." +actor's career. -Alben, Alex Alben brought the idea to Michael Slade, the CEO of Starwave. -Slade asked, "Well, what will it take?" +Slade asked, Well, what will it take? -Alben, Alex -Alben replied, "Well, we're going to have to clear rights from +Alben replied, Well, we're going to have to clear rights from everyone who appears in these films, and the music and everything -else that we want to use in these film clips." Slade said, "Great! Go -for it." +else that we want to use in these film clips. Slade said, Great! Go +for it. Technically, the rights that Alben had to clear were mainly those of publicity—rights an artist has to control the commercial -exploitation of his image. But these rights, too, burden "Rip, Mix, -Burn" creativity, as this chapter evinces. +exploitation of his image. But these rights, too, burden Rip, Mix, +Burn creativity, as this chapter evinces. artists publicity rights on images of +Alben, Alex @@ -5091,8 +5246,8 @@ tale, Alben recounted just what they did: So we very mechanically went about looking up the film clips. We made some artistic decisions about what film clips to include—of -course we were going to use the "Make my day" clip from Dirty -Harry. But you then need to get the guy on the ground who's wiggling +course we were going to use the Make my day clip from Dirty +Harry. But you then need to get the guy on the ground who's wiggling under the gun and you need to get his permission. And then you have to decide what you are going to pay him. @@ -5109,23 +5264,21 @@ we put together a team, my assistant and some others, and we just started calling people.
-Alben, Alex Some actors were glad to help—Donald Sutherland, for example, followed up himself to be sure that the rights had been cleared. Others were dumbfounded at their good fortune. Alben would ask, -"Hey, can I pay you $600 or maybe if you were in two films, you -know, $1,200?" And they would say, "Are you for real? Hey, I'd love -to get $1,200." And some of course were a bit difficult (estranged +Hey, can I pay you $600 or maybe if you were in two films, you +know, $1,200? And they would say, Are you for real? Hey, I'd love +to get $1,200. And some of course were a bit difficult (estranged ex-wives, in particular). But eventually, Alben and his team had cleared the rights to this retrospective CD-ROM on Clint Eastwood's career. -It was one year later—"and even then we weren't sure whether we -were totally in the clear." +It was one year later—and even then we +weren't sure whether we were totally in the clear. -Alben, Alex Alben is proud of his work. The project was the first of its kind and the only time he knew of that a team had undertaken such a massive @@ -5134,11 +5287,11 @@ project for the purpose of releasing a retrospective.
Everyone thought it would be too hard. Everyone just threw up their -hands and said, "Oh, my gosh, a film, it's so many copyrights, there's +hands and said, Oh, my gosh, a film, it's so many copyrights, there's the music, there's the screenplay, there's the director, there's the -actors." But we just broke it down. We just put it into its -constituent parts and said, "Okay, there's this many actors, this many -directors, . . . this many musicians," and we just went at it very +actors. But we just broke it down. We just put it into its +constituent parts and said, Okay, there's this many actors, this many +directors, … this many musicians, and we just went at it very systematically and cleared the rights.
@@ -5148,25 +5301,24 @@ systematically and cleared the rights. And no doubt, the product itself was exceptionally good. Eastwood loved it, and it sold very well. -Alben, Alex Drucker, Peter But I pressed Alben about how weird it seems that it would have to take a year's work simply to clear rights. No doubt Alben had done -this efficiently, but as Peter Drucker has famously quipped, "There is +this efficiently, but as Peter Drucker has famously quipped, There is nothing so useless as doing efficiently that which should not be done -at all." +at all. -U.S. Department of Commerce Office of Acquisition Management, Seven -Steps to Performance-Based Services Acquisition, available at +U.S. Department of Commerce Office of Acquisition Management, Seven +Steps to Performance-Based Services Acquisition, available at link #22. Did it make sense, I asked Alben, that this is the way a new work has to be made? -For, as he acknowledged, "very few . . . have the time and resources, -and the will to do this," and thus, very few such works would ever be +For, as he acknowledged, very few … have the time and resources, +and the will to do this, and thus, very few such works would ever be made. Does it make sense, I asked him, from the standpoint of what anybody really thought they were ever giving rights for originally, that you would have to go clear rights for these kinds of clips? @@ -5174,20 +5326,21 @@ you would have to go clear rights for these kinds of clips?
I don't think so. When an actor renders a performance in a movie, -he or she gets paid very well. . . . And then when 30 seconds of +he or she gets paid very well. … And then when 30 seconds of that performance is used in a new product that is a retrospective -of somebody's career, I don't think that that person . . . should be +of somebody's career, I don't think that that person … should be compensated for that.
-Or at least, is this how the artist should be compensated? Would it -make sense, I asked, for there to be some kind of statutory license -that someone could pay and be free to make derivative use of clips -like this? Did it really make sense that a follow-on creator would -have to track down every artist, actor, director, musician, and get -explicit permission from each? Wouldn't a lot more be created if the -legal part of the creative process could be made to be more clean? +Or at least, is this how the artist should be +compensated? Would it make sense, I asked, for there to be some kind +of statutory license that someone could pay and be free to make +derivative use of clips like this? Did it really make sense that a +follow-on creator would have to track down every artist, actor, +director, musician, and get explicit permission from each? Wouldn't a +lot more be created if the legal part of the creative process could be +made to be more clean?
@@ -5204,19 +5357,21 @@ cost. That's the thing that trips everybody up and makes this kind of product hard to get off the ground. If you knew I have a hundred minutes of film in this product and it's going to cost me X, then you build your budget around it, and you can get investments and -everything else that you need to produce it. But if you say, "Oh, I +everything else that you need to produce it. But if you say, Oh, I want a hundred minutes of something and I have no idea what it's going to cost me, and a certain number of people are going to hold me up for -money," then it becomes difficult to put one of these things together. +money, then it becomes difficult to put one of these things together.
-Alben, Alex Alben worked for a big company. His company was backed by some of the richest investors in the world. He therefore had authority and access that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high? + + + These costs are the burdens of a kind of regulation. Put on a Republican hat for a moment, and get angry for a bit. The government defines the scope of these rights, and the scope defined determines @@ -5226,8 +5381,9 @@ rights as he negotiates to fly from Los Angeles to San Francisco.) These rights might well have once made sense; but as circumstances change, they make no sense at all. Or at least, a well-trained, regulationminimizing Republican should look at the rights and ask, -"Does this still make sense?" +Does this still make sense? + I've seen the flash of recognition when people get this point, but only a few times. The first was at a conference of federal judges in California. @@ -5240,7 +5396,7 @@ friend, Robert Fairbank, had produced. The video was a brilliant collage of film from every period in the -twentieth century, all framed around the idea of a 60 Minutes episode. +twentieth century, all framed around the idea of a 60 Minutes episode. The execution was perfect, down to the sixty-minute stopwatch. The judges loved every minute of it. @@ -5250,10 +5406,11 @@ When the lights came up, I looked over to my copanelist, David Nimmer, perhaps the leading copyright scholar and practitioner in the nation. He had an astonished look on his face, as he peered across the room of over 250 well-entertained judges. Taking an ominous tone, he -began his talk with a question: "Do you know how many federal laws -were just violated in this room?" +began his talk with a question: Do you know how many federal laws +were just violated in this room? Boies, David +Alben, Alex 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 @@ -5270,12 +5427,13 @@ enable. Technology means you can now do amazing things easily; but you couldn't easily do them legally. -We live in a "cut and paste" culture enabled by technology. Anyone +We live in a cut and paste culture enabled by technology. Anyone building a presentation knows the extraordinary freedom that the cut and paste architecture of the Internet created—in a second you can find just about any image you want; in another second, you can have it planted in your presentation. +Camp Chaos But presentations are just a tiny beginning. Using the Internet and @@ -5286,11 +5444,10 @@ takes images of politicians and blends them with music to create biting political commentary. A site called Camp Chaos has produced some of the most biting criticism of the record industry that there is through the mixing of Flash! and music. -Camp Chaos All of these creations are technically illegal. Even if the creators -wanted to be "legal," the cost of complying with the law is impossibly +wanted to be legal, the cost of complying with the law is impossibly high. Therefore, for the law-abiding sorts, a wealth of creativity is never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released. @@ -5299,13 +5456,13 @@ clearance rules, it doesn't get released. To some, these stories suggest a solution: Let's alter the mix of rights so that people are free to build upon our culture. Free to add or mix as they see fit. We could even make this change without -necessarily requiring that the "free" use be free as in "free beer." +necessarily requiring that the free use be free as in free beer. Instead, the system could simply make it easy for follow-on creators to compensate artists without requiring an army of lawyers to come -along: a rule, for example, that says "the royalty owed the copyright +along: a rule, for example, that says the royalty owed the copyright owner of an unregistered work for the derivative reuse of his work will be a flat 1 percent of net revenues, to be held in escrow for the -copyright owner." Under this rule, the copyright owner could benefit +copyright owner. Under this rule, the copyright owner could benefit from some royalty, but he would not have the benefit of a full property right (meaning the right to name his own price) unless he registers the work. @@ -5318,24 +5475,24 @@ What reason would anyone have to oppose it? In February 2003, DreamWorks studios announced an agreement with Mike -Myers, the comic genius of Saturday Night Live and +Myers, the comic genius of Saturday Night Live and Austin Powers. According to the announcement, Myers and Dream-Works -would work together to form a "unique filmmaking pact." Under the -agreement, DreamWorks "will acquire the rights to existing motion +would work together to form a unique filmmaking pact. Under the +agreement, DreamWorks will acquire the rights to existing motion picture hits and classics, write new storylines and—with the use of stateof-the-art digital technology—insert Myers and other actors into the film, thereby creating an entirely new piece of -entertainment." +entertainment. -The announcement called this "film sampling." As Myers explained, -"Film Sampling is an exciting way to put an original spin on existing +The announcement called this film sampling. As Myers explained, +Film Sampling is an exciting way to put an original spin on existing films and allow audiences to see old movies in a new light. Rap artists have been doing this for years with music and now we are able -to take that same concept and apply it to film." Steven Spielberg is -quoted as saying, "If anyone can create a way to bring old films to -new audiences, it is Mike." +to take that same concept and apply it to film. Steven Spielberg is +quoted as saying, If anyone can create a way to bring old films to +new audiences, it is Mike. Spielberg is right. Film sampling by Myers will be brilliant. But if @@ -5349,8 +5506,8 @@ privilege reserved for the funny and famous—and presumably rich. This privilege becomes reserved for two sorts of reasons. The first -continues the story of the last chapter: the vagueness of "fair use." -Much of "sampling" should be considered "fair use." But few would +continues the story of the last chapter: the vagueness of fair use. +Much of sampling should be considered fair use. But few would rely upon so weak a doctrine to create. That leads to the second reason that the privilege is reserved for the few: The costs of negotiating the legal rights for the creative reuse of content are astronomically high. @@ -5361,12 +5518,15 @@ process is a process of paying lawyers—again a privilege, or perhaps a curse, reserved for the few. - - + + CHAPTER NINE: Collectors + + archives, digital + -In April 1996, millions of "bots"—computer codes designed to -"spider," or automatically search the Internet and copy content—began +In April 1996, millions of bots—computer codes designed to +spider, or automatically search the Internet and copy content—began running across the Net. Page by page, these bots copied Internet-based information onto a small set of computers located in a basement in San Francisco's Presidio. Once the bots finished the whole of the Internet, @@ -5377,13 +5537,16 @@ bits of code took copies of the Internet and stored them. By October 2001, the bots had collected more than five years of copies. And at a small announcement in Berkeley, California, the archive that these copies created, the Internet Archive, was opened to -the world. Using a technology called "the Way Back Machine," you could +the world. Using a technology called the Way Back Machine, you could enter a Web page, and see all of its copies going back to 1996, as well as when those pages changed. + + Orwell, George + This is the thing about the Internet that Orwell would have -appreciated. In the dystopia described in 1984, old newspapers were +appreciated. In the dystopia described in 1984, old newspapers were constantly updated to assure that the current view of the world, approved of by the government, was not contradicted by previous news reports. @@ -5401,6 +5564,7 @@ the same as the content you read before. The page may seem the same, but the content could easily be different. The Internet is Orwell's library—constantly updated, without any reliable memory. + Until the Way Back Machine, at least. With the Way Back Machine, and the Internet Archive underlying it, you can see what the Internet @@ -5410,9 +5574,9 @@ what others might prefer you forget. The temptations remain, however. Brewster Kahle reports that the White House changes its own press releases without notice. A May 13, 2003, -press release stated, "Combat Operations in Iraq Have Ended." That was -later changed, without notice, to "Major Combat Operations in Iraq -Have Ended." E-mail from Brewster Kahle, 1 December 2003. +press release stated, Combat Operations in Iraq Have Ended. That was +later changed, without notice, to Major Combat Operations in Iraq +Have Ended. E-mail from Brewster Kahle, 1 December 2003. @@ -5428,12 +5592,12 @@ truth. It is said that those who fail to remember history are doomed to -repeat it. That's not quite correct. We all forget history. The key is -whether we have a way to go back to rediscover what we forget. More -directly, the key is whether an objective past can keep us -honest. Libraries help do that, by collecting content and keeping it, -for schoolchildren, for researchers, for grandma. A free society -presumes this knowedge. +repeat it. That's not quite correct. We all +forget history. The key is whether we have a way to go back to +rediscover what we forget. More directly, the key is whether an +objective past can keep us honest. Libraries help do that, by +collecting content and keeping it, for schoolchildren, for +researchers, for grandma. A free society presumes this knowedge. The Internet was an exception to this presumption. Until the Internet @@ -5458,9 +5622,9 @@ billion pages, and it was growing at about a billion pages a month. The Way Back Machine is the largest archive of human knowledge in -human history. At the end of 2002, it held "two hundred and thirty -terabytes of material"—and was "ten times larger than the -Library of Congress." And this was just the first of the archives that +human history. At the end of 2002, it held two hundred and thirty +terabytes of material—and was ten times larger than the +Library of Congress. And this was just the first of the archives that Kahle set out to build. In addition to the Internet Archive, Kahle has been constructing the Television Archive. Television, it turns out, is even more ephemeral than the Internet. While much of twentieth-century @@ -5468,12 +5632,13 @@ culture was constructed through television, only a tiny proportion of that culture is available for anyone to see today. Three hours of news are recorded each evening by Vanderbilt University—thanks to a specific exemption in the copyright law. That content is indexed, and -is available to scholars for a very low fee. "But other than that, -[television] is almost unavailable," Kahle told me. "If you were +is available to scholars for a very low fee. But other than that, +[television] is almost unavailable, Kahle told me. If you were Barbara Walters you could get access to [the archives], but if you are -just a graduate student?" As Kahle put it, +just a graduate student? As Kahle put it,
+Quayle, Dan Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician @@ -5482,8 +5647,8 @@ graduate student wanting to study that, and you wanted to get those original back and forth exchanges between the two, the -60 Minutes episode that came out after it . . . it would be almost -impossible. . . . Those materials are almost unfindable. . . . +60 Minutes episode that came out after it … it would be almost +impossible. … Those materials are almost unfindable. …
@@ -5507,25 +5672,25 @@ These rules applied to film as well. But in 1915, the Library of Congress made an exception for film. Film could be copyrighted so long as such deposits were made. But the filmmaker was then allowed to borrow back the deposits—for an unlimited time at no cost. In -1915 alone, there were more than 5,475 films deposited and "borrowed -back." Thus, when the copyrights to films expire, there is no copy +1915 alone, there were more than 5,475 films deposited and borrowed +back. Thus, when the copyrights to films expire, there is no copy held by any library. The copy exists—if it exists at all—in the library archive of the film company. -Doug Herrick, "Toward a National Film Collection: Motion Pictures at -the Library of Congress," Film Library Quarterly 13 nos. 2–3 -(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film -Preservation in the United States ( Jefferson, N.C.: McFarland & +Doug Herrick, Toward a National Film Collection: Motion Pictures at +the Library of Congress, Film Library Quarterly 13 nos. 2–3 +(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film +Preservation in the United States ( Jefferson, N.C.: McFarland & Co., 1992), 36. The same is generally true about television. Television broadcasts were originally not copyrighted—there was no way to capture the -broadcasts, so there was no fear of "theft." But as technology enabled +broadcasts, so there was no fear of theft. But as technology enabled capturing, broadcasters relied increasingly upon the law. The law required they make a copy of each broadcast for the work to be -"copyrighted." But those copies were simply kept by the +copyrighted. But those copies were simply kept by the broadcasters. No library had any right to them; the government didn't demand them. The content of this part of American culture is practically invisible to anyone who would look. @@ -5541,9 +5706,14 @@ their coverage during the week of September 11 available free on-line. Anyone could see how news reports from around the world covered the events of that day. +Movie Archive + + archive.org + Internet Archive + Kahle had the same idea with film. Working with Rick Prelinger, whose -archive of film includes close to 45,000 "ephemeral films" (meaning +archive of film includes close to 45,000 ephemeral films (meaning films other than Hollywood movies, films that were never copyrighted), Kahle established the Movie Archive. Prelinger let Kahle digitize 1,300 films in this archive and post those films on the Internet to be @@ -5554,11 +5724,10 @@ footage sales went up dramatically. People could easily find the material they wanted to use. Some downloaded that material and made films on their own. Others purchased copies to enable other films to be made. Either way, the archive enabled access to this important -part of our culture. Want to see a copy of the "Duck and Cover" film +part of our culture. Want to see a copy of the Duck and Cover film that instructed children how to save themselves in the middle of nuclear attack? Go to archive.org, and you can download the film in a few minutes—for free. -Movie Archive Here again, Kahle is providing access to a part of our culture that we @@ -5578,7 +5747,7 @@ has—a noncommercial life. For here is an idea that we should more clearly recognize. Every bit -of creative property goes through different "lives." In its first +of creative property goes through different lives. In its first life, if the @@ -5601,12 +5770,12 @@ longer sold. The same has always been true about books. A book goes out of print very quickly (the average today is after about a year -Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord, -Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune, +Dave Barns, Fledgling Career in Antique Books: Woodstock Landlord, +Bar Owner Starts a New Chapter by Adopting Business, Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, -"The First Sale Doctrine in the Era of Digital Networks," Boston -College Law Review 44 (2003): 593 n. 51. +The First Sale Doctrine in the Era of Digital Networks, Boston +College Law Review 44 (2003): 593 n. 51. ). After it is out of print, it can be sold in used book stores without the copyright owner getting anything and stored in libraries, where many @@ -5652,16 +5821,20 @@ we are for the first time at a point where that dream is possible. As Kahle describes,
+ + books + total 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 -movies, . . . and about one to two million movies [distributed] during +movies, … and about one to two million movies [distributed] during the twentieth century. There are about twenty-six million different titles of books. All of these would fit on computers that would fit in this room and be able to be afforded by a small company. So we're at a turning point in our history. Universal access is the goal. And the opportunity of leading a different life, based on this, is -. . . thrilling. It could be one of the things humankind would be most +… thrilling. It could be one of the things humankind would be most proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press. @@ -5669,30 +5842,31 @@ the moon, and the invention of the printing press. Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of -libraries or archives could be. When the commercial life of creative -property ends, I don't know. But it does. And whenever it does, Kahle -and his archive hint at a world where this knowledge, and culture, -remains perpetually available. Some will draw upon it to understand -it; +libraries or archives could be. When the +commercial life of creative property ends, I don't know. But it +does. And whenever it does, Kahle and his archive hint at a world +where this knowledge, and culture, remains perpetually available. Some +will draw upon it to understand it; some to criticize it. Some will use it, as Walt Disney did, to re-create the past for the future. These technologies promise something that had become unimaginable for much of our past—a -future for our past. The technology of digital arts could make the -dream of the Library of Alexandria real again. +future for our past. The technology of digital +arts could make the dream of the Library of Alexandria real again. Technologists have thus removed the economic costs of building such an archive. But lawyers' costs remain. For as much as we might like to -call these "archives," as warm as the idea of a "library" might seem, -the "content" that is collected in these digital spaces is also -someone's "property." And the law of property restricts the freedoms +call these archives, as warm as the idea of a library might seem, +the content that is collected in these digital spaces is also +someone's property. And the law of property restricts the freedoms that Kahle and others would exercise. + - - -CHAPTER TEN: "Property" + + +CHAPTER TEN: <quote>Property</quote> Jack Valenti has been the president of the Motion Picture Association of America since 1966. He first came to Washington, D.C., with Lyndon @@ -5702,6 +5876,7 @@ President Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. Johnson, Lyndon +Kennedy, John F. The MPAA is the American branch of the international Motion Picture @@ -5742,7 +5917,7 @@ the MPAA rating system, it has probably avoided a great deal of speech-regulating harm. But there is an aspect to the organization's mission that is both the most radical and the most important. This is the organization's effort, epitomized in Valenti's every act, to -redefine the meaning of "creative property." +redefine the meaning of creative property. In 1982, Valenti's testimony to Congress captured the strategy @@ -5753,11 +5928,11 @@ perfectly: No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central -theme which animates this entire debate: Creative property owners must -be accorded the same rights and protection resident in all other -property owners in the nation. That is the issue. That is the -question. And that is the rostrum on which this entire hearing and the -debates to follow must rest. +theme which animates this entire debate: Creative property +owners must be accorded the same rights and protection resident in all +other property owners in the nation. That is the issue. +That is the question. And that is the rostrum on which this entire +hearing and the debates to follow must rest. Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the @@ -5771,11 +5946,11 @@ Valenti). The strategy of this rhetoric, like the strategy of most of Valenti's rhetoric, is brilliant and simple and brilliant because simple. The -"central theme" to which "reasonable men and women" will return is +central theme to which reasonable men and women will return is this: -"Creative property owners must be accorded the same rights and -protections resident in all other property owners in the nation." +Creative property owners must be accorded the same rights and +protections resident in all other property owners in the nation. There are no second-class citizens, Valenti might have continued. There should be no second-class property owners. @@ -5783,28 +5958,28 @@ continued. There should be no second-class property owners. This claim has an obvious and powerful intuitive pull. It is stated with such clarity as to make the idea as obvious as the notion that we use elections to pick presidents. But in fact, there is no more -extreme a claim made by anyone who is serious in this debate than this -claim of Valenti's. Jack Valenti, however sweet and however brilliant, -is perhaps the nation's foremost extremist when it comes to the nature -and scope of "creative property." His views 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. +extreme a claim made by anyone who is serious in +this debate than this claim of Valenti's. Jack Valenti, however sweet +and however brilliant, is perhaps the nation's foremost extremist when +it comes to the nature and scope of creative property. His views +have no reasonable connection to our actual legal +tradition, even if the subtle pull of his Texan charm has slowly +redefined that tradition, at least in Washington. -While "creative property" is certainly "property" in a nerdy and +While creative property is certainly property in a nerdy and precise sense that lawyers are trained to understand, -Lawyers speak of "property" not as an absolute thing, but as a bundle +Lawyers speak of property not as an absolute thing, but as a bundle of rights that are sometimes associated with a particular -object. Thus, my "property right" to my car gives me the right to +object. Thus, my property right to my car gives me the right to exclusive use, but not the right to drive at 150 miles an hour. For -the best effort to connect the ordinary meaning of "property" to -"lawyer talk," see Bruce Ackerman, Private Property and the -Constitution (New Haven: Yale University Press, 1977), 26–27. +the best effort to connect the ordinary meaning of property to +lawyer talk, see Bruce Ackerman, Private Property and the +Constitution (New Haven: Yale University Press, 1977), 26–27. it has never been the case, nor should it be, that -"creative property owners" have been "accorded the same rights and -protection resident in all other property owners." Indeed, if creative +creative property owners have been accorded the same rights and +protection resident in all other property owners. Indeed, if creative property owners were given the same rights as all other property owners, that would effect a radical, and radically undesirable, change in our tradition. @@ -5845,29 +6020,29 @@ Valenti's argument, we need look no further than the United States Constitution itself. -The framers of our Constitution loved "property." Indeed, so strongly +The framers of our Constitution loved property. Indeed, so strongly did they love property that they built into the Constitution an important requirement. If the government takes your property—if it condemns your house, or acquires a slice of land from your -farm—it is required, under the Fifth Amendment's "Takings -Clause," to pay you "just compensation" for that taking. The +farm—it is required, under the Fifth Amendment's Takings +Clause, to pay you just compensation for that taking. The Constitution thus guarantees that property is, in a certain sense, -sacred. It cannot ever be taken from the property owner unless the -government pays for the privilege. +sacred. It cannot ever be taken from the property +owner unless the government pays for the privilege. Yet the very same Constitution speaks very differently about what -Valenti calls "creative property." In the clause granting Congress the -power to create "creative property," the Constitution requires that -after a "limited time," Congress take back the rights that it has -granted and set the "creative property" free to the public domain. Yet -when Congress does this, when the expiration of a copyright term -"takes" your copyright and turns it over to the public domain, -Congress does not have any obligation to pay "just compensation" for -this "taking." Instead, the same Constitution that requires -compensation for your land +Valenti calls creative property. In the clause granting Congress the +power to create creative property, the Constitution +requires that after a limited time, Congress +take back the rights that it has granted and set the creative +property free to the public domain. Yet when Congress does this, when +the expiration of a copyright term takes your copyright and turns it +over to the public domain, Congress does not have any obligation to +pay just compensation for this taking. Instead, the same +Constitution that requires compensation for your land -requires that you lose your "creative property" right without any +requires that you lose your creative property right without any compensation at all. @@ -5893,30 +6068,32 @@ not simply that because Jefferson did it, we should, too. Instead, my argument is that because Jefferson did it, we should at -least try to understand why. Why did the framers, fanatical property -types that they were, reject the claim that creative property be given -the same rights as all other property? Why did they require that for -creative property there must be a public domain? +least try to understand why. Why did the framers, +fanatical property types that they were, reject the claim that +creative property be given the same rights as all other property? Why +did they require that for creative property there must be a public +domain? To answer this question, we need to get some perspective on the -history of these "creative property" rights, and the control that they +history of these creative property rights, and the control that they enabled. Once we see clearly how differently these rights have been defined, we will be in a better position to ask the question that -should be at the core of this war: Not whether creative property -should be protected, but how. Not whether we will enforce the rights -the law gives to creative-property owners, but what the particular mix -of rights 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. +should be at the core of this war: Not whether +creative property should be protected, but how. Not +whether we will enforce the rights the law gives +to creative-property owners, but what the particular mix of rights +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. To answer these questions, we need a more general way to talk about how property is protected. More precisely, we need a more general way -than the narrow language of the law allows. In Code and Other Laws of -Cyberspace, I used a simple model to capture this more general +than the narrow language of the law allows. In Code and Other Laws of +Cyberspace, I used a simple model to capture this more general perspective. For any particular right or regulation, this model asks how four different modalities of regulation interact to support or weaken the right or regulation. I represented it with this diagram: @@ -5942,6 +6119,7 @@ with a $150,000 fine. The fine is an ex post punishment for violating an ex ante rule. It is imposed by the state. Madonna +norms, regulatory influence of Norms are a different kind of constraint. They, too, punish an individual for violating a rule. But the punishment of a norm is @@ -5953,6 +6131,7 @@ 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 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 @@ -5963,9 +6142,10 @@ sold. But given a set of norms, and a background of property and contract law, the market imposes a simultaneous constraint upon how an individual or group might behave. +architecture, constraint effected through Finally, and for the moment, perhaps, most mysteriously, -"architecture"—the physical world as one finds it—is a +architecture—the physical world as one finds it—is a constraint on behavior. A fallen bridge might constrain your ability to get across a river. Railroad tracks might constrain the ability of a community to integrate its social life. As with the market, @@ -5973,7 +6153,7 @@ architecture does not effect its constraint through ex post punishments. Instead, also as with the market, architecture effects its constraint through simultaneous conditions. These conditions are imposed not by courts enforcing contracts, or by police punishing -theft, but by nature, by "architecture." If a 500-pound boulder +theft, but by nature, by architecture. If a 500-pound boulder blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint. @@ -5998,8 +6178,11 @@ must consider how these four in particular interact. driving speed, constraints on +architecture, constraint effected through +market constraints +norms, regulatory influence of -So, for example, consider the "freedom" to drive a car at a high +So, for example, consider the freedom to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that say how fast you can drive in particular places at particular times. It is in part restricted by architecture: speed bumps, for @@ -6021,9 +6204,9 @@ By describing the way law affects the other three modalities, I don't mean to suggest that the other three don't affect law. Obviously, they do. Law's only distinction is that it alone speaks as if it has a right self-consciously to change the other three. The right of the -other three is more timidly expressed. See Lawrence Lessig, Code: And -Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95; -Lawrence Lessig, "The New Chicago School," Journal of Legal Studies, +other three is more timidly expressed. See Lawrence Lessig, Code: And +Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95; +Lawrence Lessig, The New Chicago School, Journal of Legal Studies, June 1998. The law, in other words, sometimes operates to increase or decrease @@ -6044,6 +6227,7 @@ driving. Law has a special role in affecting the three. +architecture, constraint effected through These constraints can thus change, and they can be changed. To understand the effective protection of liberty or protection of @@ -6053,7 +6237,7 @@ another. A freedom enabled by one modality might be displaced by another. -Some people object to this way of talking about "liberty." They object +Some people object to this way of talking about liberty. They object because their focus when considering the constraints that exist at any particular moment are constraints imposed exclusively by the government. For instance, if a storm destroys a bridge, these people @@ -6064,27 +6248,31 @@ is to confuse the stuff of politics with the vagaries of ordinary life. I don't mean to deny the value in this narrower view, which depends upon the context of the inquiry. I do, however, mean to argue against any insistence that this narrower view is the only proper view -of liberty. As I argued in Code, we come from a long tradition of -political thought with a broader focus than the narrow question of -what the government did when. John Stuart Mill defended freedom of -speech, for example, from the tyranny of narrow minds, not from the -fear of government prosecution; John Stuart Mill, On Liberty (Indiana: -Hackett Publishing Co., 1978), 19. John R. Commons famously defended -the economic freedom of labor from constraints imposed by the market; -John R. Commons, "The Right to Work," in Malcom Rutherford and Warren -J. Samuels, eds., John R. Commons: Selected Essays (London: +of liberty. As I argued in Code, we come from a +long tradition of political thought with a broader focus than the +narrow question of what the government did when. John Stuart Mill +defended freedom of speech, for example, from the tyranny of narrow +minds, not from the fear of government prosecution; John Stuart Mill, +On Liberty (Indiana: Hackett Publishing Co., +1978), 19. John R. Commons famously defended the economic freedom of +labor from constraints imposed by the market; John R. Commons, The +Right to Work, in Malcom Rutherford and Warren J. Samuels, eds., +John R. Commons: Selected Essays (London: Routledge: 1997), 62. The Americans with Disabilities Act increases the liberty of people with physical disabilities by changing the architecture of certain public places, thereby making access to those -places easier; 42 United States Code, section 12101 (2000). Each of -these interventions to change existing conditions changes the liberty -of a particular group. The effect of those interventions should be -accounted for in order to understand the effective liberty that each -of these groups might face. +places easier; 42 United States Code, section +12101 (2000). Each of these interventions to change existing +conditions changes the liberty of a particular group. The effect of +those interventions should be accounted for in order to understand the +effective liberty that each of these groups might face. +Americans with Disabilities Act (1990) Commons, John R. +architecture, constraint effected through +market constraints - +
Why Hollywood Is Right The most obvious point that this model reveals is just why, or just @@ -6100,6 +6288,8 @@ Internet: Copyright's regulation before the Internet. +market constraints +norms, regulatory influence of There is balance between law, norms, market, and architecture. The law @@ -6137,7 +6327,7 @@ looting that results. Neither this analysis nor the conclusions that follow are new to the -warriors. Indeed, in a "White Paper" prepared by the Commerce +warriors. Indeed, in a White Paper prepared by the Commerce Department (one heavily influenced by the copyright warriors) in 1995, this mix of regulatory modalities had already been identified and the strategy to respond already mapped. In response to the changes the @@ -6170,8 +6360,10 @@ campaign to protect itself from the harmful consequences of a technological innovation. And I would be the last person to argue that the changing technology of the Internet has not had a profound effect on the content industry's way of doing business, or as John Seely -Brown describes it, its "architecture of revenue." +Brown describes it, its architecture of revenue. +railroad industry +advertising But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because @@ -6181,27 +6373,29 @@ doing business. Kodak, for example, has lost perhaps as much as 20 percent of their traditional film market to the emerging technologies of digital cameras. -See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?" +See Geoffrey Smith, Film vs. Digital: Can Kodak Build a Bridge? BusinessWeek online, 2 August 1999, available at link #23. For a more recent analysis of Kodak's place in the market, see Chana -R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6 +R. Schoenberger, Can Kodak Make Up for Lost Moments? Forbes.com, 6 October 2003, available at link #24. Does anyone believe the government should ban digital cameras just to support Kodak? Highways have weakened the freight business for -railroads. Does anyone think we should ban trucks from roads for the -purpose of protecting the railroads? Closer to the subject of this -book, remote channel changers have weakened the "stickiness" of -television advertising (if a boring 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?) - +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 +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?) + +Brezhnev, Leonid +Gates, Bill The obvious answer to these obviously rhetorical questions is no. In a free society, with a free market, supported by free enterprise and @@ -6210,10 +6404,10 @@ free trade, the government's role is not to support one way of doing business against others. Its role is not to pick winners and protect them against loss. If the government did this generally, then we would never have any progress. As Microsoft chairman Bill Gates wrote in -1991, in a memo criticizing software patents, "established companies -have an interest in excluding future competitors." +1991, in a memo criticizing software patents, established companies +have an interest in excluding future competitors. -Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71. +Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71. And relative to a startup, established companies also have the means. (Think RCA and @@ -6222,7 +6416,6 @@ not only the market but also the government is a world in which competitors with new ideas will not succeed. It is a world of stasis and increasingly concentrated stagnation. It is the Soviet Union under Brezhnev. -Gates, Bill Thus, while it is understandable for industries threatened with new @@ -6242,9 +6435,9 @@ respond in a way that burdens speech and creativity, policy makers should be especially wary of the request. It is always a bad deal for the government to get into the business of regulating speech markets. The risks and dangers of that game are precisely why our -framers created the First Amendment to our Constitution: "Congress -shall make no law . . . abridging the freedom of speech." So when -Congress is being asked to pass laws that would "abridge" the freedom +framers created the First Amendment to our Constitution: Congress +shall make no law … abridging the freedom of speech. So when +Congress is being asked to pass laws that would abridge the freedom of speech, it should ask— carefully—whether such regulation is justified. @@ -6252,7 +6445,7 @@ regulation is justified. My argument just now, however, has nothing to do with whether the changes that are being pushed by the copyright warriors are -"justified." My argument is about their effect. For before we get to +justified. My argument is about their effect. For before we get to the question of justification, a hard question that depends a great deal upon your values, we should first ask whether we understand the effect of the changes the content industry wants. @@ -6277,13 +6470,12 @@ 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) -But in 1962, Rachel Carson published Silent Spring, which argued that +But in 1962, Rachel Carson published Silent Spring, which argued that DDT, whatever its primary benefits, was also having unintended environmental consequences. Birds were losing the ability to reproduce. Whole chains of the ecology were being destroyed. -Carson, Rachel -Silent Sprint (Carson) No one set out to destroy the environment. Paul Müller certainly did @@ -6294,18 +6486,19 @@ 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 It is to this image precisely that Duke University law professor James -Boyle appeals when he argues that we need an "environmentalism" for +Boyle appeals when he argues that we need an environmentalism for culture. -See, for example, James Boyle, "A Politics of Intellectual Property: -Environmentalism for the Net?" Duke Law Journal 47 (1997): 87. +See, for example, James Boyle, A Politics of Intellectual Property: +Environmentalism for the Net? Duke Law Journal 47 (1997): 87. His point, and the point I want to develop in the balance of this chapter, is not that the aims of copyright are flawed. Or that authors should not be paid for their work. Or that music should be given away -"for free." The point is that some of the ways in which we might +for free. The point is that some of the ways in which we might protect authors will have unintended consequences for the cultural environment, much like DDT had for the natural environment. And just @@ -6332,17 +6525,17 @@ for free culture that will be far more devastating than that this gnat will be lost. - - +
+
Beginnings America copied English copyright law. Actually, we copied and improved -English copyright law. Our Constitution makes the purpose of "creative -property" rights clear; its express limitations reinforce the English +English copyright law. Our Constitution makes the purpose of creative +property rights clear; its express limitations reinforce the English aim to avoid overly powerful publishers. -The power to establish "creative property" rights is granted to +The power to establish creative property rights is granted to Congress in a way that, for our Constitution, at least, is very odd. Article I, section 8, clause 8 of our Constitution states that: @@ -6352,21 +6545,22 @@ useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. -We can call this the "Progress Clause," for notice what this clause +We can call this the Progress Clause, for notice what this clause does not say. It does not say Congress has the power to grant -"creative property rights." It says that Congress has the power to -promote progress. The grant of power is its purpose, and its purpose -is a public one, not the purpose of enriching publishers, nor even -primarily the purpose of rewarding authors. +creative property rights. It says that Congress has the power +to promote progress. The grant of power is its +purpose, and its purpose is a public one, not the purpose of enriching +publishers, nor even primarily the purpose of rewarding authors. The Progress Clause expressly limits the term of copyrights. As we saw -in chapter 6, the English limited the term of copyright so as to -assure that a few would not exercise disproportionate control over -culture by exercising disproportionate control over publishing. We can -assume the framers followed the English for a similar purpose. Indeed, -unlike the English, the framers reinforced that objective, by -requiring that copyrights extend "to Authors" only. +in chapter , +the English limited the term of copyright so as to assure that a few +would not exercise disproportionate control over culture by exercising +disproportionate control over publishing. We can assume the framers +followed the English for a similar purpose. Indeed, unlike the +English, the framers reinforced that objective, by requiring that +copyrights extend to Authors only. The design of the Progress Clause reflects something about the @@ -6379,15 +6573,15 @@ concentrating power in the federal government, they built structures to reinforce the power of the states—including the Senate, whose members were at the time selected by the states, and an electoral college, also selected by the states, to select the president. In each -case, a structure built checks and balances into the constitutional -frame, structured to prevent otherwise inevitable concentrations of -power. +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" +I doubt the framers would recognize the regulation we call copyright today. The scope of that regulation is far beyond anything they ever considered. To begin to understand what they did, we need to put our -"copyright" in context: We need to see how it has changed in the 210 +copyright in context: We need to see how it has changed in the 210 years since they first struck its design. @@ -6405,15 +6599,15 @@ started here: We will end here:
-"Copyright" today. +<quote>Copyright</quote> today.
Let me explain how. - - +
+
Law: Duration When the first Congress enacted laws to protect creative property, it @@ -6424,11 +6618,12 @@ 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 @@ -6463,12 +6658,12 @@ pass into the pubic domain within twenty-eight years at most, and more likely within fourteen years. Although 13,000 titles were published in the United States from 1790 -to 1799, only 556 copyright registrations were filed; John Tebbel, A -History of Book Publishing in the United States, vol. 1, The Creation -of an Industry, 1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 +to 1799, only 556 copyright registrations were filed; John Tebbel, A +History of Book Publishing in the United States, vol. 1, The Creation +of an Industry, 1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only twelve were copyrighted under the -1790 act; William J. Maher, Copyright Term, Retrospective Extension -and the Copyright Law of 1790 in Historical Context, 7–10 (2002), +1790 act; William J. Maher, Copyright Term, Retrospective Extension +and the Copyright Law of 1790 in Historical Context, 7–10 (2002), available at link #25. Thus, the overwhelming majority of works fell immediately into the public domain. Even those works that were @@ -6496,11 +6691,11 @@ domain. Few copyright holders ever chose to renew their copyrights. For instance, of the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For a year-by-year analysis of copyright renewal -rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright," -Studies on Copyright, vol. 1 (New York: Practicing Law Institute, +rates, see Barbara A. Ringer, Study No. 31: Renewal of Copyright, +Studies on Copyright, vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more recent and comprehensive analysis, see William -M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright," -University of Chicago Law Review 70 (2003): 471, 498–501, and +M. Landes and Richard A. Posner, Indefinitely Renewable Copyright, +University of Chicago Law Review 70 (2003): 471, 498–501, and accompanying figures. @@ -6510,10 +6705,10 @@ out of print after one year. See Ringer, ch. 9, n. 2. When that happens, the used books are traded free of copyright regulation. Thus the books are -no longer effectively controlled by 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. +no longer effectively controlled by +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. In the first hundred years of the Republic, the term of copyright was @@ -6557,7 +6752,7 @@ value. The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term—the -maximum term. For "natural" authors, that term was life plus fifty +maximum term. For natural authors, that term was life plus fifty years. For corporations, the term was seventy-five years. Then, in 1992, Congress abandoned the renewal requirement for all works created before 1978. All works still under copyright would be accorded the @@ -6570,7 +6765,7 @@ assure that works that were no longer exploited passed into the public domain. And indeed, after these changes, it is unclear whether it is even possible to put works into the public domain. The public domain is orphaned by these changes in copyright law. Despite the requirement -that terms be "limited," we have no evidence that anything will limit +that terms be limited, we have no evidence that anything will limit them. @@ -6585,28 +6780,28 @@ years. These statistics are understated. Between the years 1910 and 1962 (the first year the renewal term was extended), the average term was never more than thirty-two years, and averaged thirty years. See Landes and -Posner, "Indefinitely Renewable Copyright," loc. cit. +Posner, Indefinitely Renewable Copyright, loc. cit. - - +
+
Law: Scope -The "scope" of a copyright is the range of rights granted by the law. +The scope of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. -In 1790, that scope was very narrow. Copyright covered only "maps, -charts, and books." That means it didn't cover, for example, music or +In 1790, that scope was very narrow. Copyright covered only maps, +charts, and books. That means it didn't cover, for example, music or architecture. More significantly, the right granted by a copyright gave -the author the exclusive right to "publish" copyrighted works. That +the author the exclusive right to publish copyrighted works. That means someone else violated the copyright only if he republished the work without the copyright owner's permission. Finally, the right granted by a copyright was an exclusive right to that particular book. The right -did not extend to what lawyers call "derivative works." It would not, +did not extend to what lawyers call derivative works. It would not, therefore, interfere with the right of someone other than the author to translate a copyrighted book, or to adapt the story to a different form (such as a drama based on a published book). @@ -6617,11 +6812,11 @@ today are extremely hard to describe simply, in general terms, the right covers practically any creative work that is reduced to a tangible form. It covers music as well as architecture, drama as well as computer programs. It gives the copyright owner of that creative -work not only the exclusive right to "publish" the work, but also the -exclusive right of control over any "copies" of that work. And most +work not only the exclusive right to publish the work, but also the +exclusive right of control over any copies of that work. And most significant for our purposes here, the right gives the copyright owner control over not only his or her particular work, but also any -"derivative work" that might grow out of the original work. In this +derivative work that might grow out of the original work. In this way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work. @@ -6635,9 +6830,10 @@ to the renewal requirement, for most of the history of American copyright law, there was a requirement that a work be registered before it could receive the protection of a copyright. There was also a requirement that any copyrighted work be marked either with that -famous © or the word copyright. And for most of the history of -American copyright law, there was a requirement that works be -deposited with the government before a copyright could be secured. +famous © or the word copyright. And for most +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 @@ -6654,7 +6850,7 @@ somewhere so that it could be copied by others without locating the original author. -All of these "formalities" were abolished in the American system when +All of these formalities were abolished in the American system when we decided to follow European copyright law. There is no requirement that you register a work to get a copyright; the copyright now is automatic; the copyright exists whether or not you mark your work with @@ -6673,12 +6869,11 @@ without your permission. The aim of the act was to regulate publishers so as to prevent that kind of unfair competition. In 1790, there were 174 publishers in the United States. -See Thomas Bender and David Sampliner, "Poets, Pirates, and the - Creation -of American Literature," 29 New York University Journal of - International -Law and Politics 255 (1997), and James Gilraeth, ed., Federal -Copyright Records, 1790–1800 (U.S. G.P.O., 1987). +See Thomas Bender and David Sampliner, Poets, Pirates, and the +Creation of American Literature, 29 New York University Journal of +International Law and Politics 255 (1997), and James Gilraeth, ed., +Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987). + The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in @@ -6686,23 +6881,22 @@ the United States—publishers. -The act left other creators totally unregulated. If I copied your -poem by hand, over and over again, as a way to learn it by heart, my -act was totally unregulated by the 1790 act. If I took your novel and -made a play based upon it, or if I translated it or abridged it, none of -those activities were regulated by the original copyright act. These - creative -activities remained free, while the activities of publishers were - restrained. +The act left other creators totally unregulated. If I copied your poem +by hand, over and over again, as a way to learn it by heart, my act +was totally unregulated by the 1790 act. If I took your novel and made +a play based upon it, or if I translated it or abridged it, none of +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, -every note to your spouse, every doodle, every creative act that's - reduced -to a tangible form—all of this is automatically copyrighted. -There is no need to register or mark your work. The protection follows -the creation, not the steps you take to protect it. +every note to your spouse, every doodle, every +creative act that's reduced to a tangible form—all of this is +automatically copyrighted. There is no need to register or mark your +work. The protection follows the creation, not the steps you take to +protect it. That protection gives you the right (subject to a narrow range of @@ -6713,8 +6907,8 @@ copy it to republish it or to share an excerpt. That much is the obvious part. Any system of copyright would control competing publishing. But there's a second part to the copyright of -today that is not at all obvious. This is the protection of "derivative -rights." If you write a book, no one can make a movie out of your +today that is not at all obvious. This is the protection of derivative +rights. If you write a book, no one can make a movie out of your book without permission. No one can translate it without permission. CliffsNotes can't make an abridgment unless permission is granted. All of these derivative uses of your original work are controlled by the @@ -6735,20 +6929,19 @@ joke of the copyright, so the law was properly expanded to include those slight modifications as well as the verbatim original work. - -In preventing that joke, the law created an astonishing power within -a free culture—at least, it's astonishing when you understand that the -law applies not just to the commercial publisher but to anyone with a -computer. I understand the wrong in duplicating and selling someone -else's work. But whatever that wrong is, transforming someone else's -work is a different wrong. Some view transformation as no wrong at -all—they believe that our law, as the framers penned it, should not - protect -derivative rights at all. +In preventing that joke, the law created an astonishing power +within a free culture—at least, it's astonishing when you +understand that the law applies not just to the commercial publisher +but to anyone with a computer. I understand the wrong in duplicating +and selling someone else's work. But whatever +that wrong is, transforming someone else's work +is a different wrong. Some view transformation as no wrong at +all—they believe that our law, as the framers penned it, should +not protect derivative rights at all. -Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August -2003, available at +Jonathan Zittrain, The Copyright Cage, Legal +Affairs, July/August 2003, available at link #26. Zittrain, Jonathan @@ -6757,40 +6950,38 @@ plain that whatever wrong is involved is fundamentally different from the wrong of direct piracy. -Yet copyright law treats these two different wrongs in the same -way. I can go to court and get an injunction against your pirating my -book. I can go to court and get an injunction against your - transformative -use of my book. +Yet copyright law treats these two different wrongs in the same way. I +can go to court and get an injunction against your pirating my book. I +can go to court and get an injunction against your transformative use +of my book. Professor Rubenfeld has presented a powerful constitutional argument -about the difference that copyright law should draw (from the perspective -of the First Amendment) between mere "copies" and derivative works. See -Jed Rubenfeld, "The Freedom of Imagination: Copyright's - Constitutionality," -Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59). +about the difference that copyright law should draw (from the +perspective of the First Amendment) between mere copies and +derivative works. See Jed Rubenfeld, The Freedom of Imagination: +Copyright's Constitutionality, Yale Law +Journal 112 (2002): 1–60 (see especially +pp. 53–59). +Rubenfeld, Jeb -These two different uses of my creative work are -treated the same. +These two different uses of my creative work are treated the same. -This again may seem right to you. If I wrote a book, then why -should you be able to write a movie that takes my story and makes -money from it without paying me or crediting me? Or if Disney - creates -a creature called "Mickey Mouse," why should you be able to make -Mickey Mouse toys and be the one to trade on the value that Disney -originally created? +This again may seem right to you. If I wrote a book, then why should +you be able to write a movie that takes my story and makes money from +it without paying me or crediting me? Or if Disney creates a creature +called Mickey Mouse, why should you be able to make Mickey Mouse +toys and be the one to trade on the value that Disney originally +created? These are good arguments, and, in general, my point is not that the -derivative right is unjustified. My aim just now is much narrower: - simply -to make clear that this expansion is a significant change from the -rights originally granted. +derivative right is unjustified. My aim just now is much narrower: +simply to make clear that this expansion is a significant change from +the rights originally granted. - - +
+
Law and Architecture: Reach Whereas originally the law regulated only publishers, the change in @@ -6798,27 +6989,29 @@ copyright's scope means that the law today regulates publishers, users, and authors. It regulates them because all three are capable of making copies, and the core of the regulation of copyright law is copies. -This is a simplification of the law, but not much of one. The law certainly -regulates more than "copies"—a public performance of a copyrighted -song, for example, is regulated even though performance per se doesn't -make a copy; 17 United States Code, section 106(4). And it certainly - sometimes -doesn't regulate a "copy"; 17 United States Code, section 112(a). But -the presumption under the existing law (which regulates "copies;" 17 -United States Code, section 102) is that if there is a copy, there is a right. +This is a simplification of the law, but not much of one. The law +certainly regulates more than copies—a public performance of a +copyrighted song, for example, is regulated even though performance +per se doesn't make a copy; 17 United States Code, section +106(4). And it certainly sometimes doesn't regulate a copy; 17 +United States Code, section 112(a). But the presumption under the +existing law (which regulates copies; 17 United States Code, section +102) is that if there is a copy, there is a right. -"Copies." That certainly sounds like the obvious thing for copyright -law to regulate. But as with Jack Valenti's argument at the start of this -chapter, that "creative property" deserves the "same rights" as all other -property, it is the obvious that we need to be most careful about. For -while it may be obvious that in the world before the Internet, copies -were the obvious trigger for copyright law, upon reflection, it should be -obvious that in the world with the Internet, copies should not be the -trigger for copyright law. More precisely, they should not always be the -trigger for copyright law. +Copies. That certainly sounds like the obvious thing for +copyright law to regulate. But as with Jack +Valenti's argument at the start of this chapter, that creative +property deserves the same rights as all other property, it is the +obvious that we need to be most careful +about. For while it may be obvious that in the world before the +Internet, copies were the obvious trigger for copyright law, upon +reflection, it should be obvious that in the world with the Internet, +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 @@ -6826,11 +7019,11 @@ very slowly so that the point is not easily missed. My claim is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies, -Thus, my argument is not that in each place that copyright law extends, -we should repeal it. It is instead that we should have a good argument for -its extending where it does, and should not determine its reach on the - basis -of arbitrary and automatic changes caused by technology. +Thus, my argument is not that in each place that copyright law +extends, we should repeal it. It is instead that we should have a good +argument for its extending where it does, and should not determine its +reach on the basis of arbitrary and automatic changes caused by +technology. because it is clear that the current reach of copyright was never contemplated, much less chosen, @@ -6847,16 +7040,16 @@ empty circle. Think about a book in real space, and imagine this circle to represent -all its potential uses. Most of these uses are unregulated by -copyright law, because the uses don't create a copy. If you read a -book, that act is not regulated by copyright law. If you give someone -the book, that act is not regulated by copyright law. If you resell a -book, that act is not regulated (copyright law expressly states that -after the first sale of a book, the copyright owner can impose no -further conditions on the disposition of the book). If you sleep on -the book or use it to hold up a lamp or let your puppy chew it up, -those acts are not regulated by copyright law, because those acts do -not make a copy. +all its potential uses. Most of these uses are +unregulated by copyright law, because the uses don't create a copy. If +you read a book, that act is not regulated by copyright law. If you +give someone the book, that act is not regulated by copyright law. If +you resell a book, that act is not regulated (copyright law expressly +states that after the first sale of a book, the copyright owner can +impose no further conditions on the disposition of the book). If you +sleep on the book or use it to hold up a lamp or let your puppy chew +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. @@ -6872,7 +7065,7 @@ diagram on next page). Finally, there is a tiny sliver of otherwise regulated copying uses -that remain unregulated because the law considers these "fair uses." +that remain unregulated because the law considers these fair uses.
@@ -6880,18 +7073,17 @@ that remain unregulated because the law considers these "fair uses."
-These are uses that themselves involve copying, but which the law treats -as unregulated because public policy demands that they remain - unregulated. -You are free to quote from this book, even in a review that -is quite negative, without my permission, even though that quoting -makes a copy. That copy would ordinarily give the copyright owner the -exclusive right to say whether the copy is allowed or not, but the law -denies the owner any exclusive right over such "fair uses" for public -policy (and possibly First Amendment) reasons. +These are uses that themselves involve copying, but which the law +treats as unregulated because public policy demands that they remain +unregulated. You are free to quote from this book, even in a review +that is quite negative, without my permission, even though that +quoting makes a copy. That copy would ordinarily give the copyright +owner the exclusive right to say whether the copy is allowed or not, +but the law denies the owner any exclusive right over such fair uses +for public policy (and possibly First Amendment) reasons.
-Unregulated copying considered "fair uses." +Unregulated copying considered <quote>fair uses.</quote>
@@ -6903,58 +7095,52 @@ policy (and possibly First Amendment) reasons. In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that -are nonetheless deemed "fair" regardless of the copyright owner's views. +are nonetheless deemed fair regardless of the copyright owner's views. Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. -I don't mean "nature" in the sense that it couldn't be different, but rather that -its present instantiation entails a copy. Optical networks need not make -copies of content they transmit, and a digital network could be designed to -delete anything it copies so that the same number of copies remain. - -And because of this single, -arbitrary feature of the design of a digital network, the scope of - category -1 changes dramatically. Uses that before were presumptively - unregulated -are now presumptively regulated. No longer is there a set of -presumptively unregulated uses that define a freedom associated with a -copyrighted work. Instead, each use is now subject to the copyright, -because each use also makes a copy—category 1 gets sucked into - category -2. And those who would defend the unregulated uses of - copyrighted -work must look exclusively to category 3, fair uses, to bear the -burden of this shift. +I don't mean nature in the sense that it couldn't be different, but +rather that its present instantiation entails a copy. Optical networks +need not make copies of content they transmit, and a digital network +could be designed to delete anything it copies so that the same number +of copies remain. + +And because of this single, arbitrary feature of the design of a +digital network, the scope of category 1 changes dramatically. Uses +that before were presumptively unregulated are now presumptively +regulated. No longer is there a set of presumptively unregulated uses +that define a freedom associated with a copyrighted work. Instead, +each use is now subject to the copyright, because each use also makes +a copy—category 1 gets sucked into category 2. And those who +would defend the unregulated uses of copyrighted work must look +exclusively to category 3, fair uses, to bear the burden of this +shift. So let's be very specific to make this general point clear. Before the -Internet, if you purchased a book and read it ten times, there would be -no plausible copyright-related argument that the copyright owner could -make to control that use of her book. Copyright law would have - nothing -to say about whether you read the book once, ten times, or every +Internet, if you purchased a book and read it ten times, there would +be no plausible copyright-related argument that +the copyright owner could make to control that use of her +book. Copyright law would have nothing to say about whether you read +the book once, ten times, or every -night before you went to bed. None of those instances of use—reading— -could be regulated by copyright law because none of those uses - produced -a copy. +night before you went to bed. None of those instances of +use—reading— could be regulated by copyright law because +none of those uses produced a copy. -But the same book as an e-book is effectively governed by a - different +But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book -only once or only once a month, then copyright law would aid the - copyright -owner in exercising this degree of control, because of the - accidental -feature of copyright law that triggers its application upon there -being a copy. Now if you read the book ten times and the license says -you may read it only five times, 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. +only once or only once a month, then copyright +law would aid the copyright owner in exercising this degree +of control, because of the accidental feature of copyright law that +triggers its application upon there being a copy. Now if you read the +book ten times and the license says you may read it only five times, +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 @@ -6964,103 +7150,91 @@ points also become clear: First, making category 1 disappear is not anything any policy maker -ever intended. Congress did not think through the collapse of the - presumptively -unregulated uses of copyrighted works. There is no - evidence -at all that policy makers had this idea in mind when they allowed -our policy here to shift. Unregulated uses were an important part of -free culture before the Internet. - - -Second, this shift is especially troubling in the context of - transformative -uses of creative content. Again, we can all understand the wrong -in commercial piracy. But the law now purports to regulate any - transformation -you make of creative work using a machine. "Copy and paste" -and "cut and paste" become crimes. Tinkering with a story and - releasing -it to others exposes the tinkerer to at least a requirement of - justification. -However troubling the expansion with respect to copying a -particular work, it is extraordinarily troubling with respect to - transformative -uses of creative work. +ever intended. Congress did not think through the collapse of the +presumptively unregulated uses of copyrighted works. There is no +evidence at all that policy makers had this idea in mind when they +allowed our policy here to shift. Unregulated uses were an important +part of free culture before the Internet. + + +Second, this shift is especially troubling in the context of +transformative uses of creative content. Again, we can all understand +the wrong in commercial piracy. But the law now purports to regulate +any transformation you make of creative work +using a machine. Copy and paste and cut and paste become +crimes. Tinkering with a story and releasing it to others exposes the +tinkerer to at least a requirement of justification. However +troubling the expansion with respect to copying a particular work, it +is extraordinarily troubling with respect to transformative uses of +creative work. Third, this shift from category 1 to category 2 puts an extraordinary -burden on category 3 ("fair use") that fair use never before had to bear. -If a copyright owner now tried to control how many times I could read -a book on-line, the natural response would be to argue that this is a -violation of my fair use rights. But there has never been any litigation -about whether I have a fair use right to read, because before the - Internet, -reading did not trigger the application of copyright law and hence -the need for a fair use defense. The right to read was effectively - protected -before because reading was not regulated. +burden on category 3 (fair use) that fair use never before had to +bear. If a copyright owner now tried to control how many times I +could read a book on-line, the natural response would be to argue that +this is a violation of my fair use rights. But there has never been +any litigation about whether I have a fair use right to read, because +before the Internet, reading did not trigger the application of +copyright law and hence the need for a fair use defense. The right to +read was effectively protected before because reading was not +regulated. This point about fair use is totally ignored, even by advocates for -free culture. We have been cornered into arguing that our rights - depend -upon fair use—never even addressing the earlier question about -the expansion in effective regulation. A thin protection grounded in -fair use makes sense when the vast majority of uses are unregulated. But -when everything becomes presumptively regulated, then the - protections -of fair use are not enough. - +free culture. We have been cornered into arguing that our rights +depend upon fair use—never even addressing the earlier question +about the expansion in effective regulation. A thin protection +grounded in fair use makes sense when the vast majority of uses are +unregulated. But when everything becomes +presumptively regulated, then the protections of fair use are not +enough. + + + advertising + The case of Video Pipeline is a good example. Video Pipeline was -in the business of making "trailer" advertisements for movies available +in the business of making trailer advertisements for movies available to video stores. The video stores displayed the trailers as a way to sell videos. Video Pipeline got the trailers from the film distributors, put the trailers on tape, and sold the tapes to the retail stores. -The company did this for about fifteen years. Then, in 1997, it - began -to think about the Internet as another way to distribute these - previews. -The idea was to expand their "selling by sampling" technique by -giving on-line stores the same ability to enable "browsing." Just as in a -bookstore you can read a few pages of a book before you buy the book, -so, too, you would be able to sample a bit from the movie on-line - before -you bought it. +The company did this for about fifteen years. Then, in 1997, it began +to think about the Internet as another way to distribute these +previews. The idea was to expand their selling by sampling +technique by giving on-line stores the same ability to enable +browsing. Just as in a bookstore you can read a few pages of a book +before you buy the book, so, too, you would be able to sample a bit +from the movie on-line before you bought it. -In 1998, Video Pipeline informed Disney and other film - distributors +In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet (rather than sending the tapes) to distributors of their videos. Two years later, Disney told Video Pipeline to stop. The owner of Video Pipeline asked Disney to talk about the matter—he had built a - business -on distributing this content as a way to help sell Disney films; he -had customers who depended upon his delivering this content. Disney -would agree to talk only if Video Pipeline stopped the distribution - immediately. -Video Pipeline thought it was within their "fair use" rights -to distribute the clips as they had. So they filed a lawsuit to ask the -court to declare that these rights were in fact their rights. +business on distributing this content as a way to help sell Disney +films; he had customers who depended upon his delivering this +content. Disney would agree to talk only if Video Pipeline stopped the +distribution immediately. Video Pipeline thought it was within their +fair use rights to distribute the clips as they had. So they filed a +lawsuit to ask the court to declare that these rights were in fact +their rights. Disney countersued—for $100 million in damages. Those damages -were predicated upon a claim that Video Pipeline had "willfully - infringed" -on Disney's copyright. When a court makes a finding of - willful -infringement, it can award damages not on the basis of the actual -harm to the copyright owner, but on the basis of an amount set in the -statute. Because Video Pipeline had distributed seven hundred clips of -Disney movies to enable video stores to sell copies of those movies, -Disney was now suing Video Pipeline for $100 million. +were predicated upon a claim that Video Pipeline had willfully +infringed on Disney's copyright. When a court makes a finding of +willful infringement, it can award damages not on the basis of the +actual harm to the copyright owner, but on the basis of an amount set +in the statute. Because Video Pipeline had distributed seven hundred +clips of Disney movies to enable video stores to sell copies of those +movies, Disney was now suing Video Pipeline for $100 million. Disney has the right to control its property, of course. But the video @@ -7071,12 +7245,13 @@ 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. + Now, you might think this is a close case, and I think the courts would consider it a close case. My point here is to map the change that gives Disney this power. Before the Internet, Disney couldn't really control how people got access to their content. Once a video -was in the marketplace, the "first-sale doctrine" would free the +was in the marketplace, the first-sale doctrine would free the seller to use the video as he wished, including showing portions of it in order to engender sales of the entire movie video. But with the Internet, it becomes possible for Disney to centralize control over @@ -7085,6 +7260,7 @@ 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 No doubt, a potential is not yet an abuse, and so the potential for @@ -7109,8 +7285,8 @@ balanced policy. The control of copyright is simply what private owners choose. In some contexts, at least, that fact is harmless. But in some contexts it is a recipe for disaster. - - +
+
Architecture and Law: Force The disappearance of unregulated uses would be change enough, but a @@ -7127,29 +7303,38 @@ tradition embraced, who said whether and how the law would restrict your freedom. Casablanca + + Marx Brothers + + + Warner Brothers + There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of -Casablanca. Warner Brothers objected. They wrote a nasty letter to the -Marxes, warning them that there would be serious legal consequences -if they went forward with their plan. +Casablanca. Warner Brothers objected. They +wrote a nasty letter to the Marxes, warning them that there would be +serious legal consequences if they went forward with their +plan. -See David Lange, "Recognizing the Public Domain," Law and -Contemporary Problems 44 (1981): 172–73. +See David Lange, Recognizing the Public Domain, Law and +Contemporary Problems 44 (1981): 172–73. This led the Marx Brothers to respond in kind. They warned -Warner Brothers that the Marx Brothers "were brothers long before -you were." +Warner Brothers that the Marx Brothers were brothers long before +you were. -Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. +Ibid. See also Vaidhyanathan, Copyrights and +Copywrongs, 1–3. Vaidhyanathan, Siva -The Marx Brothers therefore owned the word brothers, -and if Warner Brothers insisted on trying to control Casablanca, then -the Marx Brothers would insist on control over brothers. +The Marx Brothers therefore owned the word +brothers, and if Warner Brothers insisted on +trying to control Casablanca, then the Marx +Brothers would insist on control over brothers. An absurd and hollow threat, of course, because Warner Brothers, @@ -7158,40 +7343,47 @@ silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. -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 machine: Increasingly, the rules of copyright law, as interpreted by -the copyright owner, get built into the technology that delivers - copyrighted -content. It is code, rather than law, that rules. And the problem -with code regulations is that, unlike law, code has no shame. Code -would not get the humor of the Marx Brothers. The consequence of -that is not at all funny. +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 +machine: Increasingly, the rules of copyright law, as interpreted by +the copyright owner, get built into the technology that delivers +copyrighted content. It is code, rather than law, that rules. And the +problem with code regulations is that, unlike law, code has no +shame. Code would not get the humor of the Marx Brothers. The +consequence of that is not at all funny. + + + + + Adobe eBook Reader + Consider the life of my Adobe eBook Reader. -An e-book is a book delivered in electronic form. An Adobe eBook -is not a book that Adobe has published; Adobe simply produces the -software that publishers use to deliver e-books. It provides the - technology, -and the publisher delivers the content by using the technology. +An e-book is a book delivered in electronic form. An Adobe eBook is +not a book that Adobe has published; Adobe simply produces the +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. -As you can see, I have a small collection of e-books within this +As you can see, I have a small collection of e-books within this e-book library. Some of these books reproduce content that is in the -public domain: Middlemarch, for example, is in the public domain. -Some of them reproduce content that is not in the public domain: My -own book The Future of Ideas is not yet within the public domain. -Consider Middlemarch first. If you click on my e-book copy of +public domain: Middlemarch, for example, is in +the public domain. Some of them reproduce content that is not in the +public domain: My own book The Future of Ideas +is not yet within the public domain. Consider +Middlemarch first. If you click on my e-book +copy of -Middlemarch, you'll see a fancy cover, and then a button at the bottom -called Permissions. +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 @@ -7207,27 +7399,21 @@ permissions that the publisher purports to grant with this book.
-According to my eBook -Reader, I have the permission -to copy to the clipboard of the -computer ten text selections -every ten days. (So far, I've -copied no text to the clipboard.) -I also have the permission to -print ten pages from the book -every ten days. Lastly, I have -the permission to use the Read -Aloud button to hear - Middlemarch -read aloud through the -computer. +According to my eBook Reader, I have the permission to copy to the +clipboard of the computer ten text selections every ten days. (So far, +I've copied no text to the clipboard.) I also have the permission to +print ten pages from the book every ten days. Lastly, I have the +permission to use the Read Aloud button to hear Middlemarch +read aloud through the computer. Here's the e-book for another work in the public domain (including the -translation): Aristotle's Politics. +translation): Aristotle's Politics. +Aristotle +Politics, (Aristotle)
-E-book of Aristotle;s "Politics" +E-book of Aristotle;s <quote>Politics</quote>
@@ -7236,106 +7422,108 @@ at all. But fortunately, you can use the Read Aloud button to hear the book.
-List of the permissions for Aristotle;s "Politics". +List of the permissions for Aristotle;s <quote>Politics</quote>.
Finally (and most embarrassingly), here are the permissions for the -original e-book version of my last book, The Future of Ideas: +original e-book version of my last book, The Future of +Ideas:
-List of the permissions for "The Future of 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! -Now, the Adobe eBook Reader calls these controls "permissions"— -as if the publisher has the power to control how you use these works. -For works under copyright, the copyright owner certainly does have -the power—up to the limits of the copyright law. But for work not - under -copyright, there is no such copyright power. +Now, the Adobe eBook Reader calls these controls +permissions— as if the publisher has the power to control how +you use these works. For works under copyright, the copyright owner +certainly does have the power—up to the limits of the copyright +law. But for work not under copyright, there is no such copyright +power. -In principle, a contract might impose a requirement on me. I might, for -example, buy a book from you that includes a contract that says I will read -it only three times, or that I promise to read it three 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. +In principle, a contract might impose a requirement on me. I might, +for example, buy a book from you that includes a contract that says I +will read it only three times, or that I promise to read it three +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. -When my e-book of -Middlemarch says I have the permission to copy only ten text selections -into the memory every ten days, what that really means is that the -eBook Reader has enabled the publisher to control how I use the book -on my computer, far beyond the control that the law would enable. +When my e-book of Middlemarch says I have the +permission to copy only ten text selections into the memory every ten +days, what that really means is that the eBook Reader has enabled the +publisher to control how I use the book on my computer, far beyond the +control that the law would enable. The control comes instead from the code—from the technology -within which the e-book "lives." Though the e-book says that these are -permissions, they are not the sort of "permissions" that most of us deal -with. When a teenager gets "permission" to stay out till midnight, she -knows (unless she's Cinderella) that she can stay out till 2 A.M., but -will suffer a punishment if she's caught. But when the Adobe eBook -Reader says I have the permission to make ten copies of the text into -the computer's memory, that means that after I've made ten copies, the -computer will not make any more. The same with the printing - restrictions: -After ten pages, the eBook Reader will not print any more pages. -It's the same with the silly restriction that says that you can't use the -Read Aloud button to read my book aloud—it's not that the company -will sue you if you do; instead, if you push the Read Aloud button with -my book, the machine simply won't read aloud. +within which the e-book lives. Though the e-book says that these are +permissions, they are not the sort of permissions that most of us +deal with. When a teenager gets permission to stay out till +midnight, she knows (unless she's Cinderella) that she can stay out +till 2 A.M., but will suffer a punishment if she's caught. But when +the Adobe eBook Reader says I have the permission to make ten copies +of the text into the computer's memory, that means that after I've +made ten copies, the computer will not make any more. The same with +the printing restrictions: After ten pages, the eBook Reader will not +print any more pages. It's the same with the silly restriction that +says that you can't use the Read Aloud button to read my book +aloud—it's not that the company will sue you if you do; instead, +if you push the Read Aloud button with my book, the machine simply +won't read aloud. -These are controls, not permissions. Imagine a world where the -Marx Brothers sold word processing software that, when you tried to -type "Warner Brothers," erased "Brothers" from the sentence. +These are controls, not permissions. Imagine a +world where the Marx Brothers sold word processing software that, when +you tried to type Warner Brothers, erased Brothers from the +sentence. +Marx Brothers -This is the future of copyright law: not so much copyright law as -copyright code. The controls over access to content will not be controls -that are ratified by courts; the controls over access to content will be -controls that are coded by programmers. And whereas the controls that -are built into the law are always to be checked by a judge, the controls -that are built into the technology have no similar built-in check. +This is the future of copyright law: not so much copyright +law as copyright code. The +controls over access to content will not be controls that are ratified +by courts; the controls over access to content will be controls that +are coded by programmers. And whereas the controls that are built into +the law are always to be checked by a judge, the controls that are +built into the technology have no similar built-in check. How significant is this? Isn't it always possible to get around the -controls built into the technology? Software used to be sold with - technologies -that limited the ability of users to copy the software, but those -were trivial protections to defeat. Why won't it be trivial to defeat these -protections as well? +controls built into the technology? Software used to be sold with +technologies that limited the ability of users to copy the software, +but those were trivial protections to defeat. Why won't it be trivial +to defeat these protections as well? We've only scratched the surface of this story. Return to the Adobe eBook Reader. -Early in the life of the Adobe eBook Reader, Adobe suffered a - public -relations nightmare. Among the books that you could download for -free on the Adobe site was a copy of Alice's Adventures in Wonderland. -This wonderful book is in the public domain. Yet when you clicked on -Permissions for that book, you got the following report: +Early in the life of the Adobe eBook Reader, Adobe suffered a public +relations nightmare. Among the books that you could download for free +on the Adobe site was a copy of Alice's Adventures in +Wonderland. This wonderful book is in the public +domain. Yet when you clicked on Permissions for that book, you got the +following report: +Alice's Adventures in Wonderland (Carroll)
-List of the permissions for "Alice's Adventures in -Wonderland". +List of the permissions for <quote>Alice's Adventures in +Wonderland</quote>.
+ - -Here was a public domain children's book that you were not - allowed -to copy, not allowed to lend, not allowed to give, and, as the - "permissions" -indicated, not allowed to "read aloud"! +Here was a public domain children's book that you were not allowed to +copy, not allowed to lend, not allowed to give, and, as the +permissions indicated, not allowed to read aloud! The public relations nightmare attached to that final permission. @@ -7366,15 +7554,23 @@ technology enables control, and Adobe has an incentive to defend this 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. - + Aibo robotic dog + + robotic dog + + + Sony + Aibo robotic dog produced by + -Consider the robotic dog made by Sony named "Aibo." The Aibo +Consider the robotic dog made by Sony named Aibo. The Aibo learns tricks, cuddles, and follows you around. It eats only electricity and that doesn't leave that much of a mess (at least in your house). @@ -7382,30 +7578,32 @@ and that doesn't leave that much of a mess (at least in your house). The Aibo is expensive and popular. Fans from around the world have set up clubs to trade stories. One fan in particular set up a Web site to enable information about the Aibo dog to be shared. This fan set - + up aibopet.com (and aibohack.com, but that resolves to the same site), and on that site he provided information about how to teach an Aibo to do tricks in addition to the ones Sony had taught it. -"Teach" here has a special meaning. Aibos are just cute computers. +Teach here has a special meaning. Aibos are just cute computers. You teach a computer how to do something by programming it differently. So to say that aibopet.com was giving information about how to teach the dog to do new tricks is just to say that aibopet.com was giving information to users of the Aibo pet about how to hack -their computer "dog" to make it do new tricks (thus, aibohack.com). +their computer dog to make it do new tricks (thus, aibohack.com). -If you're not a programmer or don't know many programmers, the -word hack has a particularly unfriendly connotation. Nonprogrammers -hack bushes or weeds. Nonprogrammers in horror movies do even -worse. But to programmers, or coders, as I call them, hack is a much -more positive term. Hack just means code that enables the program to -do something it wasn't originally intended or enabled to do. If you buy -a new printer for an old computer, you might find the old computer -doesn't run, or "drive," the printer. If you discovered that, you'd later be -happy to discover a hack on the Net by someone who has written a -driver to enable the computer to drive the printer you just bought. +If you're not a programmer or don't know many programmers, the word +hack has a particularly unfriendly +connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in +horror movies do even worse. But to programmers, or coders, as I call +them, hack is a much more positive +term. Hack just means code that enables the +program to do something it wasn't originally intended or enabled to +do. If you buy a new printer for an old computer, you might find the +old computer doesn't run, or drive, the printer. If you discovered +that, you'd later be happy to discover a hack on the Net by someone +who has written a driver to enable the computer to drive the printer +you just bought. Some hacks are easy. Some are unbelievably hard. Hackers as a @@ -7421,7 +7619,9 @@ dance jazz. The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that turned the dog into a more talented creature than Sony had built. - + + + I've told this story in many contexts, both inside and outside the United States. Once I was asked by a puzzled member of the audience, @@ -7435,8 +7635,8 @@ anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it be a crime (though we don't have a lot to go on here) to teach your robot dog to dance jazz. Dancing jazz is a completely legal activity. One imagines that the owner of aibopet.com -thought, What possible problem could there be with teaching a robot -dog to dance? +thought, What possible problem could there be with teaching +a robot dog to dance? Let's put the dog to sleep for a minute, and turn to a pony show— @@ -7452,15 +7652,15 @@ into being silent about something he knew very well. But Felten's bravery was really tested in April 2001. -See Pamela Samuelson, "Anticircumvention Rules: Threat to Science," -Science 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles -the Techies Who Teach a Robot Dog New Tricks," American Prospect, -January 2002; "Court Dismisses Computer Scientists' Challenge to -DMCA," Intellectual Property Litigation Reporter, 11 December 2001; Bill -Holland, "Copyright Act Raising Free-Speech Concerns," Billboard, -May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com, -April 2001; Electronic Frontier Foundation, "Frequently Asked -Questions about Felten and USENIX v. RIAA Legal Case," available at +See Pamela Samuelson, Anticircumvention Rules: Threat to Science, +Science 293 (2001): 2028; Brendan I. Koerner, Play Dead: Sony Muzzles +the Techies Who Teach a Robot Dog New Tricks, American Prospect, +January 2002; Court Dismisses Computer Scientists' Challenge to +DMCA, Intellectual Property Litigation Reporter, 11 December 2001; Bill +Holland, Copyright Act Raising Free-Speech Concerns, Billboard, +May 2001; Janelle Brown, Is the RIAA Running Scared? Salon.com, +April 2001; Electronic Frontier Foundation, Frequently Asked +Questions about Felten and USENIX v. RIAA Legal Case, available at link #27. Electronic Frontier Foundation @@ -7474,8 +7674,8 @@ The SDMI coalition had as its goal a technology to enable content owners to exercise much better control over their content than the Internet, as it originally stood, granted them. Using encryption, SDMI hoped to develop a standard that would allow the content owner to say -"this music cannot be copied," and have a computer respect that -command. The technology was to be part of a "trusted system" of +this music cannot be copied, and have a computer respect that +command. The technology was to be part of a trusted system of control that would get content owners to trust the system of the Internet much more. @@ -7508,6 +7708,16 @@ academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed. + + Aibo robotic dog + + + robotic dog + + + Sony + Aibo robotic dog produced by + What links these two, aibopet.com and Felten, is the letters they then received. Aibopet.com received a letter from Sony about the @@ -7521,6 +7731,9 @@ AIBO-ware's copy protection protocol constituting a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act.
+ + + And though an academic paper describing the weakness in a system of encryption should also be perfectly legal, Felten received a letter @@ -7532,7 +7745,7 @@ Any disclosure of information gained from participating in the Public Challenge would be outside the scope of activities permitted by the Agreement and could subject you and your research team to actions -under the Digital Millennium Copyright Act ("DMCA"). +under the Digital Millennium Copyright Act (DMCA). @@ -7544,16 +7757,19 @@ spreading such information an offense. The DMCA was enacted as a response to copyright owners' first fear about cyberspace. The fear was that copyright control was effectively dead; the response was to find technologies that might compensate. -These new technologies would be copyright protection technologies— -technologies to control the replication and distribution of copyrighted -material. They were designed as code to modify the original code of the -Internet, to reestablish some protection for copyright owners. +These new technologies would be copyright protection +technologies— technologies to control the replication and +distribution of copyrighted material. They were designed as +code to modify the original +code of the Internet, to reestablish some +protection for copyright owners. The DMCA was a bit of law intended to back up the protection of this code designed to protect copyrighted material. It was, we could say, -legal code intended to buttress software code which itself was -intended to support the legal code of copyright. +legal code intended to buttress +software code which itself was intended to +support the legal code of copyright. But the DMCA was not designed merely to protect copyrighted works to @@ -7564,6 +7780,12 @@ measures. It was designed to ban those devices, whether or not the use of the copyrighted material made possible by that circumvention would have been a copyright violation. +Aibo robotic dog +robotic dog + + Sony + Aibo robotic dog produced by + Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright protection system for the purpose of enabling the dog to @@ -7584,37 +7806,40 @@ suggested, Felten himself was distributing a circumvention technology. Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright. +Rogers, Fred The bizarreness of these arguments is captured in a cartoon drawn in 1981 by Paul Conrad. At that time, a court in California had held that the VCR could be banned because it was a copyright-infringing technology: It enabled consumers to copy films without the permission of the copyright owner. No doubt there were uses of the technology -that were legal: Fred Rogers, aka "Mr. Rogers," for example, had -testified in that case that he wanted people to feel free to tape -Mr. Rogers' Neighborhood. +that were legal: Fred Rogers, aka Mr. Rogers, +for example, had testified in that case that he wanted people to feel +free to tape Mr. Rogers' Neighborhood. +Conrad, Paul
Some public stations, as well as commercial stations, program the -"Neighborhood" at hours when some children cannot use it. I think that +Neighborhood at hours when some children cannot use it. I think that it's a real service to families to be able to record such programs and show them at appropriate times. I have always felt that with the advent of all of this new technology that allows people to tape the -"Neighborhood" off-the-air, and I'm speaking for the "Neighborhood" +Neighborhood off-the-air, and I'm speaking for the Neighborhood because that's what I produce, that they then become much more active in the programming of their family's television life. Very frankly, I am opposed to people being programmed by others. My whole approach in -broadcasting has always been "You are an important person just the way -you are. You can make healthy decisions." Maybe I'm going on too long, +broadcasting has always been You are an important person just the way +you are. You can make healthy decisions. Maybe I'm going on too long, but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important. -Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, +Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the VCR. See -James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of -the VCR (New York: W. W. Norton, 1987), 270–71. +James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of +the VCR (New York: W. W. Norton, 1987), 270–71. +Rogers, Fred
@@ -7627,6 +7852,7 @@ the VCR responsible. This led Conrad to draw the cartoon below, which we can adopt to the DMCA. +Conrad, Paul No argument I have can top this picture, but let me try to get close. @@ -7654,11 +7880,18 @@ and bad uses. The obvious point of Conrad's cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and -circumvention technologies) are illegal. Flash: No one ever died from -copyright circumvention. Yet the law bans circumvention technologies -absolutely, despite the potential that they might do some good, but -permits guns, despite the obvious and tragic harm they do. - +circumvention technologies) are illegal. Flash: No one ever +died from copyright circumvention. Yet the law bans circumvention +technologies absolutely, despite the potential that they might do some +good, but permits guns, despite the obvious and tragic harm they do. +Conrad, Paul + +Aibo robotic dog +robotic dog + + Sony + Aibo robotic dog produced by + The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright @@ -7668,14 +7901,16 @@ code. Technology becomes a means by which fair use can be erased; the law of the DMCA backs up that erasing. -This is how code becomes law. The controls built into the technology -of copy and access protection become rules the violation of which is also -a violation of the law. In this way, the code extends the law—increasing its -regulation, even if the subject it regulates (activities that would otherwise -plainly constitute fair use) is beyond the reach of the law. Code becomes -law; code extends the law; code thus extends the control that copyright -owners effect—at least for those copyright holders with the lawyers -who can write the nasty letters that Felten and aibopet.com received. +This is how code becomes +law. The controls built into the technology of +copy and access protection become rules the violation of which is also +a violation of the law. In this way, the code extends the +law—increasing its regulation, even if the subject it regulates +(activities that would otherwise plainly constitute fair use) is +beyond the reach of the law. Code becomes law; code extends the law; +code thus extends the control that copyright owners effect—at +least for those copyright holders with the lawyers who can write the +nasty letters that Felten and aibopet.com received. There is one final aspect of the interaction between architecture and @@ -7691,15 +7926,15 @@ tracking down the identity of those who violate the rules. -For example, imagine you were part of a Star Trek fan club. You +For example, imagine you were part of a Star Trek fan club. You gathered every month to share trivia, and maybe to enact a kind of fan fiction about the show. One person would play Spock, another, Captain Kirk. The characters would begin with a plot from a real story, then simply continue it. -For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions, -Copyright, Fan Fiction, and a New Common Law," Loyola of Los Angeles -Entertainment Law Journal 17 (1997): 651. +For an early and prescient analysis, see Rebecca Tushnet, Legal Fictions, +Copyright, Fan Fiction, and a New Common Law, Loyola of Los Angeles +Entertainment Law Journal 17 (1997): 651. @@ -7727,8 +7962,8 @@ which you traveled at every moment that you drove; that would be just one step before the state started issuing tickets based upon the data you transmitted. That is, in effect, what is happening here. - - + +
Market: Concentration So copyright's duration has increased dramatically—tripled in @@ -7770,11 +8005,10 @@ of the media. These changes are of two sorts: the scope of concentration, and its nature. -BMG Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media -ownership, "five companies control 85 percent of our media sources." +ownership, five companies control 85 percent of our media sources. FCC Oversight: Hearing Before the Senate Commerce, Science and Transportation Committee, 108th Cong., 1st sess. (22 May 2003) @@ -7783,27 +8017,31 @@ The five recording labels of Universal Music Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8 percent of the U.S. music market. -Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to -Slide," New York Times, 23 December 2002. +Lynette Holloway, Despite a Marketing Blitz, CD Sales Continue to +Slide, New York Times, 23 December 2002. -The "five largest cable companies pipe -programming to 74 percent of the cable subscribers nationwide." +The five largest cable companies pipe +programming to 74 percent of the cable subscribers nationwide. -Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette, +Molly Ivins, Media Consolidation Must Be Stopped, Charleston Gazette, 31 May 2003. +BMG +EMI McCain, John +Universal Music Group +Warner Music Group The story with radio is even more dramatic. Before deregulation, the nation's largest radio broadcasting conglomerate owned fewer than -seventy-five stations. Today one company owns more than 1,200 -stations. During that period of consolidation, the total number of -radio owners dropped by 34 percent. Today, in most markets, the two -largest broadcasters control 74 percent of that market's -revenues. Overall, just four companies control 90 percent of the -nation's radio advertising revenues. +seventy-five stations. Today one company owns +more than 1,200 stations. During that period of consolidation, the +total number of radio owners dropped by 34 percent. Today, in most +markets, the two largest broadcasters control 74 percent of that +market's revenues. Overall, just four companies control 90 percent of +the nation's radio advertising revenues. Newspaper ownership is becoming more concentrated as well. Today, @@ -7826,7 +8064,7 @@ put it in a recent article about Rupert Murdoch, Murdoch's companies now constitute a production system unmatched in its integration. They supply content—Fox movies -. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus +… Fox TV shows … Fox-controlled sports broadcasts, plus newspapers and books. They sell the content to the public and to advertisers—in newspapers, on the broadcast network, on the cable channels. And they operate the physical distribution system @@ -7835,7 +8073,7 @@ systems now distribute News Corp. content in Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that system will serve the same function in the United States. -James Fallows, "The Age of Murdoch," Atlantic Monthly (September +James Fallows, The Age of Murdoch, Atlantic Monthly (September 2003): 89. Fallows, James @@ -7871,7 +8109,7 @@ integration may matter. ABC All in the Family -In 1969, Norman Lear created a pilot for All in the Family. He took +In 1969, Norman Lear created a pilot for All in the Family. He took the pilot to ABC. The network didn't like it. It was too edgy, they told Lear. Make it again. Lear made a second pilot, more edgy than the first. ABC was exasperated. You're missing the point, they told Lear. @@ -7883,10 +8121,9 @@ was happy to have the series; ABC could not stop Lear from walking. The copyrights that Lear held assured an independence from network control. -Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center -Forum, "Entertainment Economics: The Movie Industry," St. Louis, - Missouri, -3 April 2003 (transcript of prepared remarks available at +Leonard Hill, The Axis of Access, remarks before Weidenbaum Center +Forum, Entertainment Economics: The Movie Industry, St. Louis, +Missouri, 3 April 2003 (transcript of prepared remarks available at link #28; for the Lear story, not included in the prepared remarks, see link #29). @@ -7900,19 +8137,19 @@ the networks from controlling the content they syndicated. The law required a separation between the networks and the content producers; that separation would guarantee Lear freedom. And as late as 1992, because of these rules, the vast majority of prime time -television—75 percent of it—was "independent" of the +television—75 percent of it—was independent of the networks. In 1994, the FCC abandoned the rules that required this independence. After that change, the networks quickly changed the balance. In 1985, there were twenty-five independent television production studios; in -2002, only five independent television studios remained. "In 1992, +2002, only five independent television studios remained. In 1992, only 15 percent of new series were produced for a network by a company it controlled. Last year, the percentage of shows produced by -controlled companies more than quintupled to 77 percent." "In 1992, 16 +controlled companies more than quintupled to 77 percent. In 1992, 16 new series were produced independently of conglomerate control, last -year there was one." +year there was one. NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media Ownership Before the Senate Commerce Committee, 108th Cong., 1st @@ -7924,18 +8161,18 @@ in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003. In 2002, 75 percent of prime time television was owned by the networks -that ran it. "In the ten-year period between 1992 and 2002, the number +that ran it. In the ten-year period between 1992 and 2002, the number of prime time television hours per week produced by network studios increased over 200%, whereas the number of prime time television hours per week produced by independent studios decreased -63%." +63%. Ibid. All in the Family -Today, another Norman Lear with another All in the Family would +Today, another Norman Lear with another All in the Family would find that he had the choice either to make the show less edgy or to be fired: The content of any show developed for a network is increasingly owned by the network. @@ -7958,7 +8195,7 @@ u]sed to have dozens and dozens of thriving independent production companies producing television programs. Now you have less than a handful. -"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill +Barry Diller Takes on Media Deregulation, Now with Bill Moyers, Bill Moyers, 25 April 2003, edited transcript available at link #31. @@ -7979,21 +8216,21 @@ democracy. Clark, Kim B. Economics itself offers a parallel that explains why this integration -affects creativity. Clay Christensen has written about the "Innovator's -Dilemma": the fact that large traditional firms find it rational to ignore +affects creativity. Clay Christensen has written about the Innovator's +Dilemma: the fact that large traditional firms find it rational to ignore new, breakthrough technologies that compete with their core business. The same analysis could help explain why large, traditional media companies would find it rational to ignore new cultural trends. -Clayton M. Christensen, The Innovator's Dilemma: The -Revolutionary National Bestseller that Changed the Way We Do Business +Clayton M. Christensen, The Innovator's Dilemma: The +Revolutionary National Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business School Press, 1997). Christensen acknowledges that the idea was first suggested by Dean Kim Clark. See -Kim B. Clark, "The Interaction of Design Hierarchies and Market -Concepts in Technological Evolution," Research Policy 14 (1985): +Kim B. Clark, The Interaction of Design Hierarchies and Market +Concepts in Technological Evolution, Research Policy 14 (1985): 235–51. For a more recent study, see Richard Foster and Sarah -Kaplan, Creative Destruction: Why Companies That Are Built to Last -Underperform the Market—and How to Successfully Transform Them +Kaplan, Creative Destruction: Why Companies That Are Built to Last +Underperform the Market—and How to Successfully Transform Them (New York: Currency/Doubleday, 2001). Lumbering giants not only don't, but should not, sprint. Yet if the @@ -8041,9 +8278,12 @@ is through votes that we are to choose policy. But to do that, we depend fundamentally upon the press to help inform Americans about these issues. + + advertising + Beginning in 1998, the Office of National Drug Control Policy launched -a media campaign as part of the "war on drugs." The campaign produced +a media campaign as part of the war on drugs. The campaign produced scores of short film clips about issues related to illegal drugs. In one series (the Nick and Norm series) two men are in a bar, discussing the idea of legalizing drugs as a way to avoid some of the collateral @@ -8072,7 +8312,7 @@ message will be heard then? No. You cannot. Television stations have a general policy of avoiding -"controversial" ads. Ads sponsored by the government are deemed +controversial ads. Ads sponsored by the government are deemed uncontroversial; ads disagreeing with the government are controversial. This selectivity might be thought inconsistent with the First Amendment, but the Supreme Court has held that stations have @@ -8083,31 +8323,35 @@ rights of the stations to be this biased. The Marijuana Policy Project, in February 2003, sought to place ads that directly responded to the Nick and Norm series on stations within -the Washington, D.C., area. Comcast rejected the ads as "against -[their] policy." The local NBC affiliate, WRC, rejected the ads +the Washington, D.C., area. Comcast rejected the ads as against +[their] policy. The local NBC affiliate, WRC, rejected the ads without reviewing them. The local ABC affiliate, WJOA, originally agreed to run the ads and accepted payment to do so, but later decided not to run the ads and returned the collected fees. Interview with Neal Levine, 15 October 2003. These restrictions are, of course, not -limited to drug policy. See, for example, Nat Ives, "On the Issue of -an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," New -York Times, 13 March 2003, C4. Outside of election-related air time +limited to drug policy. See, for example, Nat Ives, On the Issue of +an Iraq War, Advocacy Ads Meet with Rejection from TV Networks, New +York Times, 13 March 2003, C4. Outside of election-related air time there is very little that the FCC or the courts are willing to do to -even the playing field. For a general overview, see Rhonda Brown, "Ad +even the playing field. For a general overview, see Rhonda Brown, Ad Hoc Access: The Regulation of Editorial Advertising on Television and -Radio," Yale Law and Policy Review 6 (1988): 449–79, and for a +Radio, Yale Law and Policy Review 6 (1988): 449–79, and for a more recent summary of the stance of the FCC and the courts, see -Radio-Television News Directors Association v. FCC, 184 F. 3d 872 +Radio-Television News Directors Association v. FCC, 184 F. 3d 872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as the networks. In a recent example from San Francisco, the San Francisco transit authority rejected an ad that criticized its Muni -diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming -After Muni Rejects Ad," SFGate.com, 16 June 2003, available at +diesel buses. Phillip Matier and Andrew Ross, Antidiesel Group Fuming +After Muni Rejects Ad, SFGate.com, 16 June 2003, available at link #32. The ground -was that the criticism was "too controversial." +was that the criticism was too controversial. +ABC Comcast Marijuana Policy Project +NBC WJOA +WRC +advertising @@ -8121,17 +8365,18 @@ matters. You might like the positions the handful of companies selects. But you should not like a world in which a mere few get to decide which issues the rest of us get to know about. - - + +
+
Together There is something innocent and obvious about the claim of the -copyright warriors that the government should "protect my property." +copyright warriors that the government should protect my property. In the abstract, it is obviously true and, ordinarily, totally harmless. No sane sort who is not an anarchist could disagree. -But when we see how dramatically this "property" has changed— +But when we see how dramatically this property has changed— when we recognize how it might now interact with both technology and markets to mean that the effective constraint on the liberty to cultivate our culture is dramatically different—the claim begins @@ -8141,7 +8386,7 @@ to seem less innocent and obvious. Given (1) the power of technology to supplement the law's control, and (2) the power of concentrated markets to weaken the opportunity for dissent, if strictly enforcing -the massively expanded "property" rights granted by copyright +the massively expanded property rights granted by copyright fundamentally changes the freedom within this culture to cultivate and build upon our past, then we have to ask whether this property should be redefined. @@ -8172,9 +8417,9 @@ short period of time, as the technologies of distribution and creation have changed and as lobbyists have pushed for more control by copyright holders. Changes in the past in response to changes in technology suggest that we may well need similar changes in the -future. And these changes have to be reductions in the scope of -copyright, in response to the extraordinary increase in control that -technology and the market enable. +future. And these changes have to be reductions +in the scope of copyright, in response to the extraordinary increase +in control that technology and the market enable. For the single point that is lost in this war on pirates is a point that @@ -8182,8 +8427,8 @@ we see only after surveying the range of these changes. When you add together the effect of changing law, concentrated markets, and changing technology, together they produce an astonishing conclusion: -Never in our history have fewer had a legal right to control more of -the development of our culture than now. +Never in our history have fewer had a legal right to control +more of the development of our culture than now. Not when copyrights were perpetual, for when copyrights were @@ -8191,16 +8436,17 @@ perpetual, they affected only that precise creative work. Not when only publishers had the tools to publish, for the market then was much more diverse. Not when there were only three television networks, for even then, newspapers, film studios, radio stations, and publishers -were independent of the networks. Never has copyright protected such a -wide range of rights, against as broad a range of actors, for a term -that was remotely as long. This form of regulation—a tiny -regulation of a tiny part of the creative energy of a nation at the -founding—is now a massive regulation of the overall creative -process. Law plus technology plus the market now interact to turn this -historically benign regulation into the most significant regulation of -culture that our free society has known. +were independent of the networks. Never has +copyright protected such a wide range of rights, against as broad a +range of actors, for a term that was remotely as long. This form of +regulation—a tiny regulation of a tiny part of the creative +energy of a nation at the founding—is now a massive regulation +of the overall creative process. Law plus technology plus the market +now interact to turn this historically benign regulation into the most +significant regulation of culture that our free society has +known. -Siva Vaidhyanathan captures a similar point in his "four surrenders" of +Siva Vaidhyanathan captures a similar point in his four surrenders of copyright law in the digital age. See Vaidhyanathan, 159–60. Vaidhyanathan, Siva @@ -8216,8 +8462,7 @@ combine these two distinctions and draw a clear map of the changes that copyright law has undergone. In 1790, the law looked like this: - - + @@ -8239,7 +8484,7 @@ that copyright law has undergone. In 1790, the law looked like this: -
+ The act of publishing a map, chart, and book was regulated by @@ -8254,8 +8499,7 @@ noncommercial work was also free. By the end of the nineteenth century, the law had changed to this: - - + @@ -8277,7 +8521,7 @@ By the end of the nineteenth century, the law had changed to this: -
+ Derivative works were now regulated by copyright law—if @@ -8293,8 +8537,7 @@ expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this: - - + @@ -8316,7 +8559,7 @@ we could say the law began to look like this: -
+ The law was interpreted to reach noncommercial copying through, say, @@ -8326,8 +8569,7 @@ technologies, especially in the context of a digital network, means that the law now looks like this: - - + @@ -8349,7 +8591,7 @@ that the law now looks like this: -
+ Every realm is governed by copyright law, whereas before most @@ -8370,40 +8612,44 @@ I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the -reasons sketched especially in chapters 7 and 8, one might well wonder -whether it does more harm than good for commercial transformation. -More commercial transformative work would be created if derivative -rights were more sharply restricted. +reasons sketched especially in chapters + and +, one +might well wonder whether it does more harm than good for commercial +transformation. More commercial transformative work would be created +if derivative rights were more sharply restricted. The issue is therefore not simply whether copyright is property. Of -course copyright is a kind of "property," and of course, as with any +course copyright is a kind of property, and of course, as with any property, the state ought to protect it. But first impressions notwithstanding, historically, this property right (as with all property rights It was the single most important contribution of the legal realist movement to demonstrate that all property rights are always crafted to -balance public and private interests. See Thomas C. Grey, "The -Disintegration of Property," in Nomos XXII: Property, J. Roland +balance public and private interests. See Thomas C. Grey, The +Disintegration of Property, in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, eds. (New York: New York University Press, 1980). +legal realist movement ) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to creative work. This balance has always been struck in light of new -technologies. And for almost half of our tradition, the "copyright" -did not control at all the freedom of others to build upon or -transform a creative work. American culture was born free, and for -almost 180 years our country consistently protected a vibrant and rich -free culture. +technologies. And for almost half of our tradition, the copyright +did not control at all the freedom of others to +build upon or transform a creative work. American culture was born +free, and for almost 180 years our country consistently protected a +vibrant and rich free culture. +archives, digital We achieved that free culture because our law respected important -limits on the scope of the interests protected by "property." The very -birth of "copyright" as a statutory right recognized those limits, by +limits on the scope of the interests protected by property. The very +birth of copyright as a statutory right recognized those limits, by granting copyright owners protection for a limited time only (the -story of chapter 6). The tradition of "fair use" is animated by a +story of chapter 6). The tradition of fair use is animated by a similar concern that is increasingly under strain as the costs of exercising any fair use right become unavoidably high (the story of chapter 7). Adding @@ -8431,14 +8677,14 @@ which creation requires permission and creativity must check with a lawyer. - - +
 - + + PUZZLES - + - + CHAPTER ELEVEN: Chimera chimeras @@ -8447,7 +8693,7 @@ lawyer. Wells, H. G. - "Country of the Blind, The" (Wells) + Country of the Blind, The (Wells) @@ -8455,75 +8701,75 @@ In a well-known short story by H. G. Wells, a mountain climber named Nunez trips (literally, down an ice slope) into an unknown and isolated valley in the Peruvian Andes. -H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells, -The Country of the Blind and Other Stories, Michael Sherborne, ed. (New +H. G. Wells, The Country of the Blind (1904, 1911). See H. G. Wells, +The Country of the Blind and Other Stories, Michael Sherborne, ed. (New York: Oxford University Press, 1996). -The valley is extraordinarily beautiful, with "sweet water, pasture, +The valley is extraordinarily beautiful, with sweet water, pasture, an even climate, slopes of rich brown soil with tangles of a shrub -that bore an excellent fruit." But the villagers are all blind. Nunez -takes this as an opportunity. "In the Country of the Blind," he tells -himself, "the One-Eyed Man is King." So he resolves to live with the +that bore an excellent fruit. But the villagers are all blind. Nunez +takes this as an opportunity. In the Country of the Blind, he tells +himself, the One-Eyed Man is King. So he resolves to live with the villagers to explore life as a king. Things don't go quite as he planned. He tries to explain the idea of sight to the villagers. They don't understand. He tells them they are -"blind." They don't have the word blind. They think he's just thick. +blind. They don't have the word blind. They think he's just thick. Indeed, as they increasingly notice the things he can't do (hear the sound of grass being stepped on, for example), they increasingly try -to control him. He, in turn, becomes increasingly frustrated. "`You +to control him. He, in turn, becomes increasingly frustrated. `You don't understand,' he cried, in a voice that was meant to be great and resolute, and which broke. `You are blind and I can see. Leave me -alone!'" +alone!' The villagers don't leave him alone. Nor do they see (so to speak) the virtue of his special power. Not even the ultimate target of his -affection, a young woman who to him seems "the most beautiful thing in -the whole of creation," understands the beauty of sight. Nunez's -description of what he sees "seemed to her the most poetical of +affection, a young woman who to him seems the most beautiful thing in +the whole of creation, understands the beauty of sight. Nunez's +description of what he sees seemed to her the most poetical of fancies, and she listened to his description of the stars and the mountains and her own sweet white-lit beauty as though it was a guilty -indulgence." "She did not believe," Wells tells us, and "she could -only half understand, but she was mysteriously delighted." +indulgence. She did not believe, Wells tells us, and she could +only half understand, but she was mysteriously delighted. -When Nunez announces his desire to marry his "mysteriously delighted" -love, the father and the village object. "You see, my dear," her -father instructs, "he's an idiot. He has delusions. He can't do -anything right." They take Nunez to the village doctor. +When Nunez announces his desire to marry his mysteriously delighted +love, the father and the village object. You see, my dear, her +father instructs, he's an idiot. He has delusions. He can't do +anything right. They take Nunez to the village doctor. -After a careful examination, the doctor gives his opinion. "His brain -is affected," he reports. +After a careful examination, the doctor gives his opinion. His brain +is affected, he reports. -"What affects it?" the father asks. "Those queer things that are -called the eyes . . . are diseased . . . in such a way as to affect -his brain." +What affects it? the father asks. Those queer things that are +called the eyes … are diseased … in such a way as to affect +his brain. -The doctor continues: "I think I may say with reasonable certainty +The doctor continues: I think I may say with reasonable certainty that in order to cure him completely, all that we need to do is a simple and easy surgical operation—namely, to remove these -irritant bodies [the eyes]." +irritant bodies [the eyes]. -"Thank Heaven for science!" says the father to the doctor. They inform +Thank Heaven for science! says the father to the doctor. They inform Nunez of this condition necessary for him to be allowed his bride. (You'll have to read the original to learn what happens in the end. I believe in free culture, but never in giving away the end of a story.) It sometimes happens that the eggs of twins fuse in the mother's -womb. That fusion produces a "chimera." A chimera is a single creature +womb. That fusion produces a chimera. A chimera is a single creature with two sets of DNA. The DNA in the blood, for example, might be different from the DNA of the skin. This possibility is an underused -plot for murder mysteries. "But the DNA shows with 100 percent +plot for murder mysteries. But the DNA shows with 100 percent certainty that she was not the person whose blood was at the -scene. . . ." +scene. … @@ -8533,17 +8779,17 @@ impossible. A single person can't have two sets of DNA. The very idea of DNA is that it is the code of an individual. Yet in fact, not only can two individuals have the same set of DNA (identical twins), but one person can have two different sets of DNA (a chimera). Our -understanding of a "person" should reflect this reality. +understanding of a person should reflect this reality. The more I work to understand the current struggle over copyright and culture, which I've sometimes called unfairly, and sometimes not -unfairly enough, "the copyright wars," the more I think we're dealing -with a chimera. For example, in the battle over the question "What is -p2p file sharing?" both sides have it right, and both sides have it -wrong. One side says, "File sharing is just like two kids taping each +unfairly enough, the copyright wars, the more I think we're dealing +with a chimera. For example, in the battle over the question What is +p2p file sharing? both sides have it right, and both sides have it +wrong. One side says, File sharing is just like two kids taping each others' records—the sort of thing we've been doing for the last -thirty years without any question at all." That's true, at least in +thirty years without any question at all. That's true, at least in part. When I tell my best friend to try out a new CD that I've bought, but rather than just send the CD, I point him to my p2p server, that is, in all relevant respects, just like what every executive in every @@ -8553,15 +8799,15 @@ recording company no doubt did as a kid: sharing music. But the description is also false in part. For when my p2p server is on a p2p network through which anyone can get access to my music, then sure, my friends can get access, but it stretches the meaning of -"friends" beyond recognition to say "my ten thousand best friends" can +friends beyond recognition to say my ten thousand best friends can get access. Whether or not sharing my music with my best friend is -what "we have always been allowed to do," we have not always been -allowed to share music with "our ten thousand best friends." +what we have always been allowed to do, we have not always been +allowed to share music with our ten thousand best friends. -Likewise, when the other side says, "File sharing is just like walking +Likewise, when the other side says, File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out -with it," that's true, at least in part. If, after Lyle Lovett +with it, that's true, at least in part. If, after Lyle Lovett (finally) releases a new album, rather than buying it, I go to Kazaa and find a free copy to take, that is very much like stealing a copy from Tower. @@ -8598,34 +8844,35 @@ implemented. For an excellent summary, see the report prepared by GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School, -"Copyright and Digital Media in a Post-Napster World," 27 June 2003, +Copyright and Digital Media in a Post-Napster World, 27 June 2003, available at link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill that would treat unauthorized on-line copying as a felony offense with punishments ranging as high -as five years imprisonment; see Jon Healey, "House Bill Aims to Up -Stakes on Piracy," Los Angeles Times, 17 July 2003, available at +as five years imprisonment; see Jon Healey, House Bill Aims to Up +Stakes on Piracy, Los Angeles Times, 17 July 2003, available at link #34. Civil penalties are currently set at $150,000 per copied song. For a recent (and unsuccessful) legal challenge to the RIAA's demand that an ISP reveal the identity of a user accused of sharing more than 600 songs -through a family computer, see RIAA v. Verizon Internet Services (In -re. Verizon Internet Services), 240 F. Supp. 2d 24 +through a family computer, see RIAA v. Verizon Internet Services (In +re. Verizon Internet Services), 240 F. Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as high as $90 million. Such astronomical figures furnish the RIAA with a powerful arsenal in its prosecution of file sharers. Settlements ranging from $12,000 to $17,500 for four students accused of heavy file sharing on university networks must have seemed a mere pittance next to the $98 billion the RIAA could seek should the matter proceed to court. See -Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com, +Elizabeth Young, Downloading Could Lead to Fines, redandblack.com, August 2003, available at link #35. For an example of the RIAA's targeting of student file sharing, and of the subpoenas issued to universities to reveal student file-sharer -identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to -Name Students," Boston Globe, 8 August 2003, D3, available at +identities, see James Collins, RIAA Steps Up Bid to Force BC, MIT to +Name Students, Boston Globe, 8 August 2003, D3, available at link #36. +Conyers, John, Jr. Berman, Howard L. @@ -8644,9 +8891,9 @@ Rather than embrace one of these two extremes, we should embrace something that recognizes the truth in both. And while I end this book with a sketch of a system that does just that, my aim in the next chapter is to show just how awful it would be for us to adopt the -zero-tolerance extreme. I believe either extreme would be worse than a -reasonable alternative. But I believe the zero-tolerance solution -would be the worse of the two extremes. +zero-tolerance extreme. I believe either extreme +would be worse than a reasonable alternative. But I believe the +zero-tolerance solution would be the worse of the two extremes. @@ -8659,7 +8906,7 @@ never had before. And in this extremism, many an opportunity for new innovation and new creativity will be lost. -I'm not talking about the opportunities for kids to "steal" music. My +I'm not talking about the opportunities for kids to steal music. My focus instead is the commercial and cultural innovation that this war will also kill. We have never seen the power to innovate spread so broadly among our citizens, and we have just begun to see the @@ -8676,12 +8923,11 @@ eMusic opposes music piracy. We are a distributor of copyrighted material, and we want to protect those rights. -But building a technology fortress that locks in the clout of -the major labels is by no means the only way to protect copyright -interests, nor is it necessarily the best. It is simply too early to - answer -that question. Market forces operating naturally may very -well produce a totally different industry model. +But building a technology fortress that locks in the clout of the +major labels is by no means the only way to protect copyright +interests, nor is it necessarily the best. It is simply too early to +answer that question. Market forces operating naturally may very well +produce a totally different industry model. This is a critical point. The choices that industry sectors make @@ -8706,7 +8952,7 @@ Congressional Testimony File. In April 2001, eMusic.com was purchased by Vivendi Universal, -one of "the major labels." Its position on these matters has now +one of the major labels. Its position on these matters has now changed. Vivendi Universal @@ -8717,39 +8963,37 @@ and will kill opportunities that could be extraordinarily valuable. - - + + CHAPTER TWELVE: Harms - -To fight "piracy," to protect "property," the content industry has -launched a war. Lobbying and lots of campaign contributions have -now brought the government into this war. As with any war, this one -will have both direct and collateral damage. As with any war of - prohibition, -these damages will be suffered most by our own people. +To fight piracy, to protect property, the content industry has +launched a war. Lobbying and lots of campaign contributions have now +brought the government into this war. As with any war, this one will +have both direct and collateral damage. As with any war of +prohibition, these damages will be suffered most by our own people. My aim so far has been to describe the consequences of this war, in -particular, the consequences for "free culture." But my aim now is to - extend -this description of consequences into an argument. Is this war - justified? +particular, the consequences for free culture. But my aim now is to +extend this description of consequences into an argument. Is this war +justified? In my view, it is not. There is no good reason why this time, for the first time, the law should defend the old against the new, just when the -power of the property called "intellectual property" is at its greatest in +power of the property called intellectual property is at its greatest in our history. Causby, Thomas Lee Causby, Tinie -Yet "common sense" does not see it this way. Common sense is still on +Yet common sense does not see it this way. Common sense is still on the side of the Causbys and the content industry. The extreme claims of control in the name of property still resonate; the uncritical -rejection of "piracy" still has play. +rejection of piracy still has play. +Armstrong, Edwin Howard There will be many consequences of continuing this war. I want to @@ -8758,7 +9002,7 @@ confident the third is unintended. I'm less sure about the first two. The first two protect modern RCAs, but there is no Howard Armstrong in the wings to fight today's monopolists of culture. - +
Constraining Creators In the next ten years we will see an explosion of digital @@ -8776,11 +9020,11 @@ weave together a string—a mash-up— of songs from your favorite artists in a collage and make it available on the Net. -This digital "capturing and sharing" is in part an extension of the +This digital capturing and sharing is in part an extension of the capturing and sharing that has always been integral to our culture, and in part it is something new. It is continuous with the Kodak, but it explodes the boundaries of Kodak-like technologies. The technology -of digital "capturing and sharing" promises a world of extraordinarily +of digital capturing and sharing promises a world of extraordinarily diverse creativity that can be easily and broadly shared. And as that creativity is applied to democracy, it will enable a broad range of citizens to use technology to express and criticize and contribute to @@ -8820,10 +9064,10 @@ $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 +See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of -the settlement, see MCI press release, "MCI Wins U.S. District Court -Approval for SEC Settlement" (7 July 2003), available at +the settlement, see MCI press release, MCI Wins U.S. District Court +Approval for SEC Settlement (7 July 2003), available at link #37. Worldcom @@ -8834,10 +9078,10 @@ suffering. The bill, modeled after California's tort reform model, was passed in the House of Representatives but defeated in a Senate vote in July 2003. For -an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,' -Say Tort Reformers," amednews.com, 28 July 2003, available at +an overview, see Tanya Albert, Measure Stalls in Senate: `We'll Be Back,' +Say Tort Reformers, amednews.com, 28 July 2003, available at link #38, -and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003, +and Senate Turns Back Malpractice Caps, CBSNews.com, 9 July 2003, available at link #39. President Bush has continued to urge tort reform in recent months. @@ -8848,40 +9092,40 @@ the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient? Worldcom +art, underground The consequence of this legal uncertainty, tied to these extremely -high penalties, is that an extraordinary amount of creativity will either -never be exercised, or never be exercised in the open. We drive this - creative -process underground by branding the modern-day Walt Disneys -"pirates." We make it impossible for businesses to rely upon a public -domain, because the boundaries of the public domain are designed to +high penalties, is that an extraordinary amount of creativity will +either never be exercised, or never be exercised in the open. We drive +this creative process underground by branding the modern-day Walt +Disneys pirates. We make it impossible for businesses to rely upon a +public domain, because the boundaries of the public domain are +designed to -be unclear. It never pays to do anything except pay for the right to - create, -and hence only those who can pay are allowed to create. As was the -case in the Soviet Union, though for very different reasons, we will - begin -to see a world of underground art—not because the message is - necessarily -political, or because the subject is controversial, but because the -very act of creating the art is legally fraught. Already, exhibits of - "illegal -art" tour the United States. - See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003, - available -at +be unclear. It never pays to do anything except pay for the right +to create, and hence only those who can pay are allowed to create. As +was the case in the Soviet Union, though for very different reasons, +we will begin to see a world of underground art—not because the +message is necessarily political, or because the subject is +controversial, but because the very act of creating the art is legally +fraught. Already, exhibits of illegal art tour the United +States. + + +See Danit Lidor, Artists Just Wanna Be Free, Wired, 7 July +2003, available at link #40. For an overview of the exhibition, see link #41. - In what does their "illegality" consist? + In what does their illegality consist? In the act of mixing the culture around us with an expression that is critical or reflective. Part of the reason for this fear of illegality has to do with the -changing law. I described that change in detail in chapter 10. But an +changing law. I described that change in detail in chapter +. But an even bigger part has to do with the increasing ease with which infractions can be tracked. As users of file-sharing systems discovered in 2002, it is a trivial matter for copyright owners to get @@ -8903,10 +9147,12 @@ right to cultivate and transform them is not similarly free. Lawyers rarely see this because lawyers are rarely empirical. As I -described in chapter 7, in response to the story about documentary -filmmaker Jon Else, I have been lectured again and again by lawyers -who insist Else's use was fair use, and hence I am wrong to say that the -law regulates such a use. +described in chapter +, in +response to the story about documentary filmmaker Jon Else, I have +been lectured again and again by lawyers who insist Else's use was +fair use, and hence I am wrong to say that the law regulates such a +use. @@ -8922,13 +9168,13 @@ tradition that prides itself on the rule of law. Judges and lawyers can tell themselves that fair use provides adequate -"breathing room" between regulation by the law and the access the law +breathing room between regulation by the law and the access the law should allow. But it is a measure of how out of touch our legal system has become that anyone actually believes this. The rules that publishers impose upon writers, the rules that film distributors impose upon filmmakers, the rules that newspapers impose upon journalists— these are the real laws governing creativity. And -these rules have little relationship to the "law" with which judges +these rules have little relationship to the law with which judges comfort themselves. @@ -8938,7 +9184,7 @@ dollars to even defend against a copyright infringement claim, and which would never return to the wrongfully accused defendant anything of the costs she suffered to defend her right to speak—in that world, the astonishingly broad regulations that pass under the name -"copyright" silence speech and creativity. And in that world, it takes +copyright silence speech and creativity. And in that world, it takes a studied blindness for people to continue to believe they live in a culture that is free. @@ -8950,16 +9196,16 @@ As Jed Horovitz, the businessman behind Video Pipeline, said to me, We're losing [creative] opportunities right and left. Creative people are being forced not to express themselves. Thoughts are not being expressed. And while a lot of stuff may [still] be created, it still -won't get distributed. Even if the stuff gets made . . . you're not +won't get distributed. Even if the stuff gets made … you're not going to get it distributed in the mainstream media unless -you've got a little note from a lawyer saying, "This has been -cleared." You're not even going to get it on PBS without that kind of +you've got a little note from a lawyer saying, This has been +cleared. You're not even going to get it on PBS without that kind of permission. That's the point at which they control it. - - +
+
Constraining Innovators The story of the last section was a crunchy-lefty @@ -8974,10 +9220,11 @@ But there's an aspect of this story that is not lefty in any sense. Indeed, it is an aspect that could be written by the most extreme promarket ideologue. And if you're one of these sorts (and a special one at that, 188 pages into a book like this), then you can see this -other aspect by substituting "free market" every place I've spoken of -"free culture." The point is the same, even if the interests +other aspect by substituting free market every place I've spoken of +free culture. The point is the same, even if the interests affecting culture are more fundamental. +market constraints The charge I've been making about the regulation of culture is the same charge free marketers make about regulating markets. Everyone, of @@ -8995,20 +9242,22 @@ against the competitors of tomorrow. This is the single most dramatic effect of the shift in regulatory -strategy that I described in chapter 10. The consequence of this -massive threat of liability tied to the murky boundaries of copyright -law is that innovators who want to innovate in this space can safely -innovate only if they have the sign-off from last generation's -dominant industries. That lesson has been taught through a series of -cases that were designed and executed to teach venture capitalists a +strategy that I described in chapter . The consequence of this massive +threat of liability tied to the murky boundaries of copyright law is +that innovators who want to innovate in this space can safely innovate +only if they have the sign-off from last generation's dominant +industries. That lesson has been taught through a series of cases +that were designed and executed to teach venture capitalists a lesson. That lesson—what former Napster CEO Hank Barry calls a -"nuclear pall" that has fallen over the Valley—has been learned. +nuclear pall that has fallen over the Valley—has been learned. Consider one example to make the point, a story whose beginning -I told in The Future of Ideas and which has progressed in a way that +I told in The Future of Ideas and which has progressed in a way that even I (pessimist extraordinaire) would never have predicted. +Roberts, Michael In 1997, Michael Roberts launched a company called MP3.com. MP3.com was keen to remake the music business. Their goal was not just to @@ -9098,6 +9347,7 @@ such a view of the law will cost you and your firm dearly. Hummer, John Barry, Hank +Hummer Winblad This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the @@ -9105,13 +9355,13 @@ venture capital firm (VC) that had funded Napster at a certain stage of its development, its cofounder ( John Hummer), and general partner (Hank Barry). -See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles -Times, 23 April 2003. For a parallel argument about the effects on -innovation in the distribution of music, see Janelle Brown, "The Music -Revolution Will Not Be Digitized," Salon.com, 1 June 2001, available +See Joseph Menn, Universal, EMI Sue Napster Investor, Los Angeles +Times, 23 April 2003. For a parallel argument about the effects on +innovation in the distribution of music, see Janelle Brown, The Music +Revolution Will Not Be Digitized, Salon.com, 1 June 2001, available at link #42. -See also Jon Healey, "Online Music Services Besieged," Los Angeles -Times, 28 May 2001. +See also Jon Healey, Online Music Services Besieged, Los Angeles +Times, 28 May 2001. The claim here, as well, was that the VC should have recognized the right of the content industry to control how the industry should @@ -9122,8 +9372,11 @@ company whose business is not approved of by the dinosaurs, you are at risk not just in the marketplace, but in the courtroom as well. Your investment buys you not only a company, it also buys you a lawsuit. So extreme has the environment become that even car manufacturers are -afraid of technologies that touch content. In an article in Business -2.0, Rafe Needleman describes a discussion with BMW: +afraid of technologies that touch content. In an article in +Business 2.0, Rafe Needleman describes a +discussion with BMW: +EMI +Universal Music Group
BMW @@ -9134,10 +9387,10 @@ engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this forward for release stateside. Even today, no new cars are sold in the -United States with bona fide MP3 players. . . . +United States with bona fide MP3 players. … -Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June +Rafe Needleman, Driving in Cars with MP3s, Business 2.0, 16 June 2003, available at link #43. I am grateful to Dr. Mohammad Al-Ubaydli for this example. @@ -9146,8 +9399,8 @@ to Dr. Mohammad Al-Ubaydli for this example.
-This is the world of the mafia—filled with "your money or your -life" offers, governed in the end not by courts but by the threats +This is the world of the mafia—filled with your money or your +life offers, governed in the end not by courts but by the threats that the law empowers copyright holders to exercise. It is a system that will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly hard if that company is @@ -9157,22 +9410,22 @@ constantly threatened by litigation. The point is not that businesses should have a right to start illegal -enterprises. The point is the definition of "illegal." The law is a mess of -uncertainty. We have no good way to know how it should apply to new -technologies. Yet by reversing our tradition of judicial deference, and -by embracing the astonishingly high penalties that copyright law - imposes, -that uncertainty now yields a reality which is far more - conservative -than is right. If the law imposed the death penalty for parking -tickets, we'd not only have fewer parking tickets, we'd also have much -less driving. The same principle applies to innovation. If innovation is -constantly checked by this uncertain and unlimited liability, we will -have much less vibrant innovation and much less creativity. - +enterprises. The point is the definition of illegal. The law is a +mess of uncertainty. We have no good way to know how it should apply +to new technologies. Yet by reversing our tradition of judicial +deference, and by embracing the astonishingly high penalties that +copyright law imposes, that uncertainty now yields a reality which is +far more conservative than is right. If the law imposed the death +penalty for parking tickets, we'd not only have fewer parking tickets, +we'd also have much less driving. The same principle applies to +innovation. If innovation is constantly checked by this uncertain and +unlimited liability, we will have much less vibrant innovation and +much less creativity. + +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 +use. Whatever the real law is, realism about the effect of law in both contexts is the same. This wildly punitive system of regulation will systematically stifle creativity and innovation. It will protect some industries and some creators, but it will harm industry and @@ -9208,64 +9461,61 @@ technology of the Internet so that it better protects their content. The motivation for this response is obvious. The Internet enables the efficient spread of content. That efficiency is a feature of the Internet's design. But from the perspective of the content industry, -this feature is a "bug." The efficient spread of content means that +this feature is a bug. The efficient spread of content means that content distributors have a harder time controlling the distribution of content. One obvious response to this efficiency is thus to make -the Internet less efficient. If the Internet enables "piracy," then, +the Internet less efficient. If the Internet enables piracy, then, this response says, we should break the kneecaps of the Internet. +broadcast flag The examples of this form of legislation are many. At the urging of the content industry, some in Congress have threatened legislation that would require computers to determine whether the content they access is protected or not, and to disable the spread of protected content. - "Copyright and Digital Media in a Post-Napster World," GartnerG2 and + Copyright and Digital Media in a Post-Napster World, GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School (2003), 33–35, available at link #44. - - Congress -has already launched proceedings to explore a mandatory - "broadcast -flag" that would be required on any device capable of transmitting -digital video (i.e., a computer), and that would disable the copying of -any content that is marked with a broadcast flag. Other members of -Congress have proposed immunizing content providers from liability -for technology they might deploy that would hunt down copyright - violators -and disable their machines. - GartnerG2, 26–27. +Congress has already launched proceedings to explore a mandatory +broadcast flag that would be required on any device capable of +transmitting digital video (i.e., a computer), and that would disable +the copying of any content that is marked with a broadcast flag. Other +members of Congress have proposed immunizing content providers from +liability for technology they might deploy that would hunt down +copyright violators and disable their machines. + +GartnerG2, 26–27. - In one sense, these solutions seem sensible. If the problem is the -code, why not regulate the code to remove the problem. But any - regulation -of technical infrastructure will always be tuned to the particular -technology of the day. It will impose significant burdens and costs on - +code, why not regulate the code to remove the problem. But any +regulation of technical infrastructure will always be tuned to the +particular technology of the day. It will impose significant burdens +and costs on the technology, but will likely be eclipsed by advances around exactly those requirements. In March 2002, a broad coalition of technology companies, led by -Intel, tried to get Congress to see the harm that such legislation would -impose. - See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, +Intel, tried to get Congress to see the harm that such legislation +would impose. + +See David McGuire, Tech Execs Square Off Over Piracy, Newsbytes, February 2002 (Entertainment). - Their argument was obviously not that copyright should not -be protected. Instead, they argued, any protection should not do more +Their argument was obviously not that copyright should not be +protected. Instead, they argued, any protection should not do more harm than good. +Intel -There is one more obvious way in which this war has harmed - innovation—again, -a story that will be quite familiar to the free market -crowd. +There is one more obvious way in which this war has harmed +innovation—again, a story that will be quite familiar to the +free market crowd. Copyright may be property, but like all property, it is also a form @@ -9274,17 +9524,21 @@ When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. -As I described in chapter 10, despite this feature of copyright as -regulation, and subject to important qualifications outlined by Jessica -Litman in her book Digital Copyright, - Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, -2001). +As I described in chapter , despite this feature of copyright as +regulation, and subject to important qualifications outlined by +Jessica Litman in her book Digital +Copyright, + +Jessica Litman, Digital Copyright (Amherst, +N.Y.: Prometheus Books, 2001). +Litman, Jessica - overall this history of copyright -is not bad. As chapter 10 details, when new technologies have come -along, Congress has struck a balance to assure that the new is protected -from the old. Compulsory, or statutory, licenses have been one part of -that strategy. Free use (as in the case of the VCR) has been another. +overall this history of copyright is not bad. As chapter 10 details, +when new technologies have come along, Congress has struck a balance +to assure that the new is protected from the old. Compulsory, or +statutory, licenses have been one part of that strategy. Free use (as +in the case of the VCR) has been another. But that pattern of deference to new technologies has now changed @@ -9295,25 +9549,24 @@ that will have the effect of smothering the new to benefit the old. The response by the courts has been fairly universal. - The only circuit court exception is found in Recording Industry Association -of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th -Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that -makers of a portable MP3 player were not liable for contributory - copyright -infringement for a device that is unable to record or redistribute - music -(a device whose only copying function is to render portable a music file -already stored on a user's hard drive). -At the district court level, the only exception is found in - Metro-Goldwyn-Mayer -Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D. -Cal., 2003), where the court found the link between the distributor and -any given user's conduct too attenuated to make the distributor liable for -contributory or vicarious infringement liability. - - It has been -mirrored in the responses threatened and actually implemented by -Congress. I won't catalog all of those responses here. + +The only circuit court exception is found in Recording Industry +Association of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d +1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit +reasoned that makers of a portable MP3 player were not liable for +contributory copyright infringement for a device that is unable to +record or redistribute music (a device whose only copying function is +to render portable a music file already stored on a user's hard +drive). At the district court level, the only exception is found in +Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d +1029 (C.D. Cal., 2003), where the court found the link between the +distributor and any given user's conduct too attenuated to make the +distributor liable for contributory or vicarious infringement +liability. + +It has been mirrored in the responses threatened and actually +implemented by Congress. I won't catalog all of those responses +here. For example, in July 2002, Representative Howard Berman introduced the Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize @@ -9321,30 +9574,38 @@ copyright holders from liability for damage done to computers when the copyright holders use technology to stop copyright infringement. In August 2002, Representative Billy Tauzin introduced a bill to mandate that technologies capable of rebroadcasting digital copies of films -broadcast on TV (i.e., computers) respect a "broadcast flag" that +broadcast on TV (i.e., computers) respect a broadcast flag that would disable copying of that content. And in March of the same year, Senator Fritz Hollings introduced the Consumer Broadband and Digital Television Promotion Act, which mandated copyright protection -technology in all digital media devices. See GartnerG2, "Copyright and -Digital Media in a Post-Napster World," 27 June 2003, 33–34, +technology in all digital media devices. See GartnerG2, Copyright and +Digital Media in a Post-Napster World, 27 June 2003, 33–34, available at link #44. Berman, Howard L. +Hollings, Fritz +broadcast flag But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. + + artists + recording industry payments to + -As I described in chapter 4, when a radio station plays a song, the -recording artist doesn't get paid for that "radio performance" unless -he or she is also the composer. So, for example if Marilyn Monroe had -recorded a version of "Happy Birthday"—to memorialize her famous +As I described in chapter , when a radio station plays a song, the recording +artist doesn't get paid for that radio performance unless he or she +is also the composer. So, for example if Marilyn Monroe had recorded a +version of Happy Birthday—to memorialize her famous performance before President Kennedy at Madison Square Garden— then whenever that recording was played on the radio, the current -copyright owners of "Happy Birthday" would get some money, whereas +copyright owners of Happy Birthday would get some money, whereas Marilyn Monroe would not. +Kennedy, John F. The reasoning behind this balance struck by Congress makes some @@ -9361,7 +9622,7 @@ recording artists. Enter Internet radio. Like regular radio, Internet radio is a technology to stream content from a broadcaster to a listener. The broadcast travels across the Internet, not across the ether of radio -spectrum. Thus, I can "tune in" to an Internet radio station in +spectrum. Thus, I can tune in to an Internet radio station in Berlin while sitting in San Francisco, even though there's no way for me to tune in to a regular radio station much beyond the San Francisco metropolitan area. @@ -9379,6 +9640,7 @@ easily develop and market their content to a relatively large number of users worldwide. According to some estimates, more than eighty million users worldwide have tuned in to this new form of radio. +Armstrong, Edwin Howard @@ -9396,7 +9658,7 @@ An almost unlimited number of FM stations was possible in the shortwaves, thus ending the unnatural restrictions imposed on radio in the crowded longwaves. If FM were freely developed, the number of stations would be limited only by economics and competition rather -than by technical restrictions. . . . Armstrong likened the situation +than by technical restrictions. … Armstrong likened the situation that had grown up in radio to that following the invention of the printing press, when governments and ruling interests attempted to control this new instrument of mass communications by imposing @@ -9413,8 +9675,8 @@ Lessing, 239. This potential for FM radio was never realized—not because Armstrong was wrong about the technology, but because he -underestimated the power of "vested interests, habits, customs and -legislation" +underestimated the power of vested interests, habits, customs and +legislation Ibid., 229. @@ -9428,21 +9690,24 @@ those imposed by the law. Copyright law is one such law. So the first question we should ask is, what copyright rules would govern Internet radio? + + artists + recording industry payments to + But here the power of the lobbyists is reversed. Internet radio is a new industry. The recording artists, on the other hand, have a very -powerful lobby, the RIAA. Thus when Congress considered the - phenomenon -of Internet radio in 1995, the lobbyists had primed Congress -to adopt a different rule for Internet radio than the rule that applies to -terrestrial radio. While terrestrial radio does not have to pay our - hypothetical -Marilyn Monroe when it plays her hypothetical recording of -"Happy Birthday" on the air, Internet radio does. Not only is the law not -neutral toward Internet radio—the law actually burdens Internet radio -more than it burdens terrestrial radio. +powerful lobby, the RIAA. Thus when Congress considered the phenomenon +of Internet radio in 1995, the lobbyists had primed Congress to adopt +a different rule for Internet radio than the rule that applies to +terrestrial radio. While terrestrial radio does not have to pay our +hypothetical Marilyn Monroe when it plays her hypothetical recording +of Happy Birthday on the air, Internet radio +does. Not only is the law not neutral toward Internet +radio—the law actually burdens Internet radio more than it +burdens terrestrial radio. This financial burden is not slight. As Harvard law professor @@ -9462,23 +9727,25 @@ in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, available at link #45. For an excellent analysis making a similar point, see Randal -C. Picker, "Copyright as Entry Policy: The Case of Digital -Distribution," Antitrust Bulletin (Summer/Fall 2002): 461: "This was +C. Picker, Copyright as Entry Policy: The Case of Digital +Distribution, Antitrust Bulletin (Summer/Fall 2002): 461: This was not confusion, these are just old-fashioned entry barriers. Analog radio stations are protected from digital entrants, reducing entry in radio and diversity. Yes, this is done in the name of getting royalties to copyright holders, but, absent the play of powerful -interests, that could have been done in a media-neutral way." +interests, that could have been done in a media-neutral way. CARP (Copyright Arbitration Royalty Panel) Picker, Randal C. A regular radio station broadcasting the same content would pay no equivalent fee. + The burden is not financial only. Under the original rules that were -proposed, an Internet radio station (but not a terrestrial radio station) -would have to collect the following data from every listening transaction: +proposed, an Internet radio station (but not a terrestrial radio +station) would have to collect the following data from every +listening transaction: @@ -9552,7 +9819,7 @@ date and time that the user logged out (in the user's time zone); time zone where the signal was received (user); -Unique User identifier; +unique user identifier; the country in which the user received the transmissions. @@ -9564,15 +9831,18 @@ The Librarian of Congress eventually suspended these reporting requirements, pending further study. And he also changed the original rates set by the arbitration panel charged with setting rates. But the basic difference between Internet radio and terrestrial radio remains: -Internet radio has to pay a type of copyright fee that terrestrial radio -does not. +Internet radio has to pay a type of copyright fee +that terrestrial radio does not. Why? What justifies this difference? Was there any study of the economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? -Alben, Alex +Real Networks + + Alben, Alex + In a rare bit of candor, one RIAA expert admitted what seemed obvious to everyone at the time. As Alex Alben, vice president for Public @@ -9585,23 +9855,28 @@ some testimony about what they thought a willing buyer would pay to a willing seller, and it was much higher. It was ten times higher than what radio stations pay to perform the same songs for the same period of time. And so the attorneys representing the -webcasters asked the RIAA, . . . "How do you come up with a +webcasters asked the RIAA, … How do you come up with a -rate that's so much higher? Why is it worth more than radio? - Because -here we have hundreds of thousands of webcasters who -want to pay, and that should establish the market rate, and if you -set the rate so high, you're going to drive the small webcasters out -of business. . . ." +rate that's so much higher? Why is it worth more than radio? Because +here we have hundreds of thousands of webcasters who want to pay, and +that should establish the market rate, and if you set the rate so +high, you're going to drive the small webcasters out of +business. … + + artists + recording industry payments to + -And the RIAA experts said, "Well, we don't really model this -as an industry with thousands of webcasters, we think it should be +And the RIAA experts said, Well, we don't really model this as an +industry with thousands of webcasters, we think it should be an industry with, you know, five or seven big players who can pay a -high rate and it's a stable, predictable market." (Emphasis added.) +high rate and it's a stable, predictable market. (Emphasis +added.) + Translation: The aim is to use the law to eliminate competition, so that this platform of potentially immense competition, which would @@ -9611,8 +9886,8 @@ or the left, who should endorse this use of the law. And yet there is practically no one, on either the right or the left, who is doing anything effective to prevent it. - - +
+
Corrupting Citizens Overregulation stifles creativity. It smothers innovation. It gives @@ -9628,9 +9903,9 @@ corrupts citizens and weakens the rule of law. The war that is being waged today is a war of prohibition. As with every war of prohibition, it is targeted against the behavior of a very -large number of citizens. According to The New York Times, 43 million +large number of citizens. According to The New York Times, 43 million Americans downloaded music in May 2002. - Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew + Mike Graziano and Lee Rainie, The Music Downloading Deluge, Pew Internet and American Life Project (24 April 2001), available at link #46. The Pew Internet and American Life Project reported that 37 million @@ -9664,8 +9939,8 @@ sued 261 individuals—including a twelve-year-old girl living in public housing and a seventy-year-old man who had no idea what file sharing was. -Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los -Angeles Times, 10 September 2003, Business. +Alex Pham, The Labels Strike Back: N.Y. Girl Settles RIAA Case, Los +Angeles Times, 10 September 2003, Business. As these scapegoats discovered, it will always cost more to defend against these suits than it would cost to simply settle. (The twelve @@ -9686,8 +9961,8 @@ consumption was up to 70 percent of the preprohibition level. Americans were drinking just about as much, but now, a vast number were criminals. -Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During -Prohibition," American Economic Review 81, no. 2 (1991): 242. +Jeffrey A. Miron and Jeffrey Zwiebel, Alcohol Consumption During +Prohibition, American Economic Review 81, no. 2 (1991): 242. We have @@ -9704,18 +9979,19 @@ majority of Americans violate the law every day. We run such a complex tax system that a majority of cash businesses regularly cheat. -See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax -Compliance," Journal of Economic Literature 36 (1998): 818 (survey of +See James Andreoni, Brian Erard, and Jonathon Feinstein, Tax +Compliance, Journal of Economic Literature 36 (1998): 818 (survey of compliance literature). -We pride ourselves on our "free society," but an endless array of +We pride ourselves on our free society, but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law. +alcohol prohibition This state of affairs is not without consequence. It is a particularly salient issue for teachers like me, whose job it is to teach law -students about the importance of "ethics." As my colleague Charlie +students about the importance of ethics. As my colleague Charlie Nesson told a class at Stanford, each year law schools admit thousands of students who have illegally downloaded music, illegally consumed alcohol and sometimes drugs, illegally worked without paying taxes, @@ -9726,8 +10002,9 @@ keep client funds separate, or honor a demand to disclose a document that will mean that your case is over. Generations of Americans—more significantly in some parts of America than in others, but still, everywhere in America today—can't live their -lives both normally and legally, since "normally" entails a certain +lives both normally and legally, since normally entails a certain degree of illegality. +law schools The response to this general illegality is either to enforce the law @@ -9760,8 +10037,8 @@ or not; I want to catch and incarcerate the rapist. But I do care whether my students respect the law. And I do care if the rules of law sow increasing disrespect because of the extreme of regulation they impose. Twenty million Americans have come of age since the Internet -introduced this different idea of "sharing." We need to be able to -call these twenty million Americans "citizens," not "felons." +introduced this different idea of sharing. We need to be able to +call these twenty million Americans citizens, not felons. When at least forty-three million citizens download content from the @@ -9786,21 +10063,21 @@ copyright infringement for me to sell all my classical records at a used -record store and buy jazz records to replace them. That "use" of the +record store and buy jazz records to replace them. That use of the recordings is free. But as the MP3 craze has demonstrated, there is another use of phonograph records that is effectively free. Because these recordings -were made without copy-protection technologies, I am "free" to copy, -or "rip," music from my records onto a computer hard disk. Indeed, -Apple Corporation went so far as to suggest that "freedom" was a -right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn" +were made without copy-protection technologies, I am free to copy, +or rip, music from my records onto a computer hard disk. Indeed, +Apple Corporation went so far as to suggest that freedom was a +right: In a series of commercials, Apple endorsed the Rip, Mix, Burn capacities of digital technologies. Adromeda -This "use" of my records is certainly valuable. I have begun a large +This use of my records is certainly valuable. I have begun a large process at home of ripping all of my and my wife's CDs, and storing them in one archive. Then, using Apple's iTunes, or a wonderful program called Andromeda, we can build different play lists of our @@ -9831,8 +10108,8 @@ these protection technologies would effectively destroy the archiving use of CDs. The technology, in other words, would force us all back to the world where we either listened to music by manipulating pieces of -plastic or were part of a massively complex "digital rights -management" system. +plastic or were part of a massively complex digital rights +management system. If the only way to assure that artists get paid were the elimination @@ -9880,28 +10157,28 @@ tradition as deep and important as our tradition of free culture. There's one more aspect to this corruption that is particularly important to civil liberties, and follows directly from any war of prohibition. As Electronic Frontier Foundation attorney Fred von -Lohmann describes, this is the "collateral damage" that "arises +Lohmann describes, this is the collateral damage that arises whenever you turn a very large percentage of the population into -criminals." This is the collateral damage to civil liberties +criminals. This is the collateral damage to civil liberties generally. Electronic Frontier Foundation -"If you can treat someone as a putative lawbreaker," von Lohmann +If you can treat someone as a putative lawbreaker, von Lohmann explains, von Lohmann, Fred
then all of a sudden a lot of basic civil liberty protections -evaporate to one degree or another. . . . If you're a copyright +evaporate to one degree or another. … If you're a copyright infringer, how can you hope to have any privacy rights? If you're a copyright infringer, how can you hope to be secure against seizures of your computer? How can you hope to continue to receive Internet -access? . . . Our sensibilities change as soon as we think, "Oh, well, -but that person's a criminal, a lawbreaker." Well, what this campaign +access? … Our sensibilities change as soon as we think, Oh, well, +but that person's a criminal, a lawbreaker. Well, what this campaign against file sharing has done is turn a remarkable percentage of the -American Internet-using population into "lawbreakers." +American Internet-using population into lawbreakers.
@@ -9928,16 +10205,16 @@ the family could be liable for $2 million in damages. That didn't stop the RIAA from suing a number of these families, just as they had sued Jesse Jordan. -See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single -Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," -Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents +See Frank Ahrens, RIAA's Lawsuits Meet Surprised Targets; Single +Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants, +Washington Post, 10 September 2003, E1; Chris Cobbs, Worried Parents Pull Plug on File `Stealing'; With the Music Industry Cracking Down on File Swapping, Parents are Yanking Software from Home PCs to Avoid -Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson -Graham, "Recording Industry Sues Parents," USA Today, 15 September -2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop -Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is -Brianna a Criminal?" Toronto Star, 18 September 2003, P7. +Being Sued, Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson +Graham, Recording Industry Sues Parents, USA Today, 15 September +2003, 4D; John Schwartz, She Says She's No Music Pirate. No Snoop +Fan, Either, New York Times, 25 September 2003, C1; Margo Varadi, Is +Brianna a Criminal? Toronto Star, 18 September 2003, P7. @@ -9946,13 +10223,13 @@ Even this understates the espionage that is being waged by the RIAA. A report from CNN late last summer described a strategy the RIAA had adopted to track Napster users. -See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses -Some Methods Used," CNN.com, available at +See Revealed: How RIAA Tracks Downloaders: Music Industry Discloses +Some Methods Used, CNN.com, available at link #47. Using a sophisticated hashing algorithm, the RIAA took what is in effect a fingerprint of every song in the Napster catalog. Any copy of -one of those MP3s will have the same "fingerprint." +one of those MP3s will have the same fingerprint. So imagine the following not-implausible scenario: Imagine a @@ -9961,26 +10238,26 @@ like the cassettes you used to make as a kid. You don't know, and neither does your daughter, where these songs came from. But she copies these songs onto her computer. She then takes her computer to college and connects it to a college network, and if the college -network is "cooperating" with the RIAA's espionage, and she hasn't +network is cooperating with the RIAA's espionage, and she hasn't properly protected her content from the network (do you know how to do that yourself ?), then the RIAA will be able to identify your daughter -as a "criminal." And under the rules that universities are beginning +as a criminal. And under the rules that universities are beginning to deploy, -See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," -Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four +See Jeff Adler, Cambridge: On Campus, Pirates Are Not Penitent, +Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, Four Students Sued over Music Sites; Industry Group Targets File Sharing at -Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong, -"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science -Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music +Colleges, Washington Post, 4 April 2003, E1; Elizabeth Armstrong, +Students `Rip, Mix, Burn' at Their Own Risk, Christian Science +Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, Music Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over; -Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA -Trains Antipiracy Guns on Universities," Internet News, 30 January +Lawsuit Possible, Chicago Tribune, 16 July 2003, 1C; Beth Cox, RIAA +Trains Antipiracy Guns on Universities, Internet News, 30 January 2003, available at link -#48; Benny Evangelista, "Download Warning 101: Freshman +#48; Benny Evangelista, Download Warning 101: Freshman Orientation This Fall to Include Record Industry Warnings Against File -Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters -Are Weapons at Universities," USA Today, 26 September 2000, 3D. +Sharing, San Francisco Chronicle, 11 August 2003, E11; Raid, Letters +Are Weapons at Universities, USA Today, 26 September 2000, 3D. your daughter can lose the right to use the university's computer network. She can, in some cases, be expelled. @@ -9991,7 +10268,7 @@ a lawyer for her (at $300 per hour, if you're lucky), and she can plead that she didn't know anything about the source of the songs or that they came from Napster. And it may well be that the university believes her. But the university might not believe her. It might treat -this "contraband" as presumptive of guilt. And as any number of +this contraband as presumptive of guilt. And as any number of college students @@ -10015,27 +10292,28 @@ people use drugs, and I think that's the closest analog, [but] many have noted that the war against drugs has eroded all of our civil liberties because it's treated so many Americans as criminals. Well, I think it's fair to say that file sharing is an order of magnitude -larger number of Americans than drug use. . . . If forty to sixty +larger number of Americans than drug use. … If forty to sixty million Americans have become lawbreakers, then we're really on a slippery slope to lose a lot of civil liberties for all forty to sixty million of them. -When forty to sixty million Americans are considered "criminals" under +When forty to sixty million Americans are considered criminals under the law, and when the law could achieve the same objective— securing rights to authors—without these millions being -considered "criminals," who is the villain? Americans or the law? +considered criminals, who is the villain? Americans or the law? Which is American, a constant war on our own people or a concerted effort through our democracy to change our law? - - +
 - + + BALANCES + @@ -10087,10 +10365,14 @@ brace of efforts, so far failed, to find a way to refocus this debate. We must understand these failures if we're to understand what success will require. + - + CHAPTER THIRTEEN: Eldred + + Hawthorne, Nathaniel + In 1995, a father was frustrated that his daughters didn't seem to like Hawthorne. No doubt there was more than one such father, but at @@ -10120,23 +10402,24 @@ accessible—today. 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 +source as Disney's. Hawthorne's Scarlet Letter had passed into the public domain in 1907. It was free for anyone to take without the permission of the Hawthorne estate or anyone else. Some, such as Dover Press and Penguin Classics, take works from the public domain and produce printed editions, which they sell in bookstores across the country. Others, such as Disney, take these stories and turn them into -animated cartoons, sometimes successfully (Cinderella), sometimes not -(The Hunchback of Notre Dame, Treasure Planet). These are all +animated cartoons, sometimes successfully (Cinderella), sometimes not +(The Hunchback of Notre Dame, Treasure Planet). These are all commercial publications of public domain works. + The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally thousands of others. Hundreds of thousands from across the world have discovered this platform of expression and now use it to share works that are, by law, free for the taking. This has produced what we might -call the "noncommercial publishing industry," which before the +call the noncommercial publishing industry, which before the Internet was limited to people with large egos or with political or social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture @@ -10160,32 +10443,37 @@ protect noncommercial pornographers. As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's -collection of poems New Hampshire was slated to pass into the public -domain. Eldred wanted to post that collection in his free public -library. But Congress got in the way. As I described in chapter 10, -in 1998, for the eleventh time in forty years, Congress extended the -terms of existing copyrights—this time by twenty years. Eldred -would not be free to add any works more recent than 1923 to his -collection until 2019. Indeed, no copyrighted work 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. - +collection of poems New Hampshire was slated to +pass into the public domain. Eldred wanted to post that collection in +his free public library. But Congress got in the way. As I described +in chapter , in 1998, for the eleventh time in forty years, +Congress extended the terms of existing copyrights—this time by +twenty years. Eldred would not be free to add any works more recent +than 1923 to his collection until 2019. Indeed, no copyrighted work +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 This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in memory of the congressman and former musician Sonny Bono, who, his widow, Mary Bono, says, believed that -"copyrights should be forever." +copyrights should be forever. -The full text is: "Sonny [Bono] wanted the term of copyright +Bono, Mary +Bono, Sonny +The full text is: Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next -Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). +Congress, 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). @@ -10210,31 +10498,31 @@ different. As you know, the Constitution says,
-Congress has the power to promote the Progress of Science . . . -by securing for limited Times to Authors . . . exclusive Right to -their . . . Writings. . . . +Congress has the power to promote the Progress of Science … +by securing for limited Times to Authors … exclusive Right to +their … Writings. …
As I've described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause granting power to Congress simply says Congress has the power to do -something—for example, to regulate "commerce among the several -states" or "declare War." But here, the "something" is something quite -specific—to "promote . . . Progress"—through means that -are also specific— by "securing" "exclusive Rights" (i.e., -copyrights) "for limited Times." +something—for example, to regulate commerce among the several +states or declare War. But here, the something is something quite +specific—to promote … Progress—through means that +are also specific— by securing exclusive Rights (i.e., +copyrights) for limited Times. In the past forty years, Congress has gotten into the practice of extending existing terms of copyright protection. What puzzled me about this was, if Congress has the power to extend existing terms, -then the Constitution's requirement that terms be "limited" will have +then the Constitution's requirement that terms be limited will have no practical effect. If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve -what the Constitution plainly forbids—perpetual terms "on the -installment plan," as Professor Peter Jaszi so nicely put it. +what the Constitution plainly forbids—perpetual terms on the +installment plan, as Professor Peter Jaszi so nicely put it. Jaszi, Peter @@ -10250,8 +10538,8 @@ this gravy train going. For this is the core of the corruption in our present system of -government. "Corruption" not in the sense that representatives are -bribed. Rather, "corruption" in the sense that the system induces the +government. Corruption not in the sense that representatives are +bribed. Rather, corruption in the sense that the system induces the beneficiaries of Congress's acts to raise and give money to Congress to induce it to act. There's only so much time; there's only so much Congress can do. Why not limit its actions to those things it must @@ -10275,55 +10563,55 @@ Your financial adviser comes to your board meeting with a very grim report: -"Next year," the adviser announces, "our copyrights in works A, B, +Next year, the adviser announces, our copyrights in works A, B, and C will expire. That means that after next year, we will no longer be receiving the annual royalty check of $100,000 from the publishers of -those works. +those works. -"There's a proposal in Congress, however," she continues, "that +There's a proposal in Congress, however, she continues, that could change this. A few congressmen are floating a bill to extend the terms of copyright by twenty years. That bill would be extraordinarily -valuable to us. So we should hope this bill passes." +valuable to us. So we should hope this bill passes. -"Hope?" a fellow board member says. "Can't we be doing something -about it?" +Hope? a fellow board member says. Can't we be doing something +about it? -"Well, obviously, yes," the adviser responds. "We could contribute +Well, obviously, yes, the adviser responds. We could contribute to the campaigns of a number of representatives to try to assure that -they support the bill." +they support the bill. You hate politics. You hate contributing to campaigns. So you want -to know whether this disgusting practice is worth it. "How much -would we get if this extension were passed?" you ask the adviser. "How -much is it worth?" +to know whether this disgusting practice is worth it. How much +would we get if this extension were passed? you ask the adviser. How +much is it worth? -"Well," the adviser says, "if you're confident that you will continue +Well, the adviser says, if you're confident that you will continue to get at least $100,000 a year from these copyrights, and you use the `discount rate' that we use to evaluate estate investments (6 percent), -then this law would be worth $1,146,000 to the estate." +then this law would be worth $1,146,000 to the estate. You're a bit shocked by the number, but you quickly come to the correct conclusion: -"So you're saying it would be worth it for us to pay more than +So you're saying it would be worth it for us to pay more than $1,000,000 in campaign contributions if we were confident those contributions -would assure that the bill was passed?" +would assure that the bill was passed? -"Absolutely," the adviser responds. "It is worth it to you to +Absolutely, the adviser responds. It is worth it to you to contribute up to the `present value' of the income you expect from these -copyrights. Which for us means over $1,000,000." +copyrights. Which for us means over $1,000,000. You quickly get the point—you as the member of the board and, I @@ -10337,36 +10625,35 @@ are about to expire, there is a massive amount of lobbying to get the copyright term extended. -Thus a congressional perpetual motion machine: So long as - legislation +Thus a congressional perpetual motion machine: So long as legislation can be bought (albeit indirectly), there will be all the incentive in the world to buy further extensions of copyright. In the lobbying that led to the passage of the Sonny Bono Copyright -Term Extension Act, this "theory" about incentives was proved +Term Extension Act, this theory about incentives was proved real. Ten of the thirteen original sponsors of the act in the House received the maximum contribution from Disney's political action committee; in the Senate, eight of the twelve sponsors received contributions. - Associated Press, "Disney Lobbying for Copyright Extension No Mickey -Mouse Effort; Congress OKs Bill Granting Creators 20 More Years," -Chicago Tribune, 17 October 1998, 22. + Associated Press, Disney Lobbying for Copyright Extension No Mickey +Mouse Effort; Congress OKs Bill Granting Creators 20 More Years, +Chicago Tribune, 17 October 1998, 22. The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in the 1998 election cycle. They paid out more than $200,000 in campaign contributions. - See Nick Brown, "Fair Use No More?: Copyright in the Information -Age," available at + See Nick Brown, Fair Use No More?: Copyright in the Information +Age, available at link #49. Disney is estimated to have contributed more than $800,000 to reelection campaigns in the cycle. - Alan K. Ota, "Disney in Washington: The Mouse That Roars," - Congressional -Quarterly This Week, 8 August 1990, available at + +Alan K. Ota, Disney in Washington: The Mouse That Roars, +Congressional Quarterly This Week, 8 August 1990, available at link #50. @@ -10380,18 +10667,18 @@ was central to my thinking. In my view, a pragmatic court committed to interpreting and applying the Constitution of our framers would see that if Congress has the power to extend existing terms, then there would be no effective constitutional requirement that terms be - "limited." + limited. If they could extend it once, they would extend it again and again and again. -It was also my judgment that this Supreme Court would not allow -Congress to extend existing terms. As anyone close to the Supreme -Court's work knows, this Court has increasingly restricted the power -of Congress when it has viewed Congress's actions as exceeding the -power granted to it by the Constitution. Among constitutional - scholars, -the most famous example of this trend was the Supreme Court's +It was also my judgment that this Supreme Court +would not allow Congress to extend existing terms. As anyone close to +the Supreme Court's work knows, this Court has increasingly restricted +the power of Congress when it has viewed Congress's actions as +exceeding the power granted to it by the Constitution. Among +constitutional scholars, the most famous example of this trend was the +Supreme Court's decision in 1995 to strike down a law that banned the possession of @@ -10400,121 +10687,117 @@ guns near schools. Since 1937, the Supreme Court had interpreted Congress's granted powers very broadly; so, while the Constitution grants Congress the -power to regulate only "commerce among the several states" (aka - "interstate -commerce"), the Supreme Court had interpreted that power to +power to regulate only commerce among the several states (aka + interstate +commerce), the Supreme Court had interpreted that power to include the power to regulate any activity that merely affected interstate commerce. -As the economy grew, this standard increasingly meant that there -was no limit to Congress's power to regulate, since just about every - activity, -when considered on a national scale, affects interstate commerce. -A Constitution designed to limit Congress's power was instead - interpreted -to impose no limit. +As the economy grew, this standard increasingly meant that there was +no limit to Congress's power to regulate, since just about every +activity, when considered on a national scale, affects interstate +commerce. A Constitution designed to limit Congress's power was +instead interpreted to impose no limit. +Rehnquist, William H. -The Supreme Court, under Chief Justice Rehnquist's command, -changed that in United States v. Lopez. The government had argued -that possessing guns near schools affected interstate commerce. Guns -near schools increase crime, crime lowers property values, and so on. In -the oral argument, the Chief Justice asked the government whether -there was any activity that would not affect interstate commerce under -the reasoning the government advanced. The government said there -was not; if Congress says an activity affects interstate commerce, then -that activity affects interstate commerce. The Supreme Court, the - government -said, was not in the position to second-guess Congress. +The Supreme Court, under Chief Justice Rehnquist's command, changed +that in United States v. Lopez. The government had +argued that possessing guns near schools affected interstate +commerce. Guns near schools increase crime, crime lowers property +values, and so on. In the oral argument, the Chief Justice asked the +government whether there was any activity that would not affect +interstate commerce under the reasoning the government advanced. The +government said there was not; if Congress says an activity affects +interstate commerce, then that activity affects interstate +commerce. The Supreme Court, the government said, was not in the +position to second-guess Congress. -"We pause to consider the implications of the government's - arguments," +We pause to consider the implications of the government's arguments, the Chief Justice wrote. - United States v. Lopez, 514 U.S. 549, 564 (1995). + United States v. Lopez, 514 U.S. 549, 564 (1995). - If anything Congress says is interstate -commerce must therefore be considered interstate commerce, then -there would be no limit to Congress's power. The decision in Lopez was -reaffirmed five years later in United States v. Morrison. - United States v. Morrison, 529 U.S. 598 (2000). +If anything Congress says is interstate commerce must therefore be +considered interstate commerce, then there would be no limit to +Congress's power. The decision in Lopez was reaffirmed five years +later in United States v. Morrison. + +United States v. Morrison, 529 U.S. 598 (2000). - If a principle were at work here, then it should apply to the Progress Clause as much as the Commerce Clause. - If it is a principle about enumerated powers, then the principle carries -from one enumerated power to another. The animating point in the - context -of the Commerce Clause was that the interpretation offered by the -government would allow the government unending power to regulate -commerce—the limitation to interstate commerce notwithstanding. The -same point is true in the context of the Copyright Clause. Here, too, the -government's interpretation would allow the government unending power -to regulate copyrights—the limitation to "limited times" notwithstanding. - - And if it is applied to the -Progress Clause, the principle should yield the conclusion that - Congress + +If it is a principle about enumerated powers, then the principle +carries from one enumerated power to another. The animating point in +the context of the Commerce Clause was that the interpretation offered +by the government would allow the government unending power to +regulate commerce—the limitation to interstate commerce +notwithstanding. The same point is true in the context of the +Copyright Clause. Here, too, the government's interpretation would +allow the government unending power to regulate copyrights—the +limitation to limited times notwithstanding. + +And if it is applied to the Progress Clause, the principle should +yield the conclusion that Congress -can't extend an existing term. If Congress could extend an - existing -term, then there would be no "stopping point" to Congress's power -over terms, though the Constitution expressly states that there is such -a limit. Thus, the same principle applied to the power to grant - copyrights -should entail that Congress is not allowed to extend the term of -existing copyrights. - - -If, that is, the principle announced in Lopez stood for a principle. -Many believed the decision in Lopez stood for politics—a conservative -Supreme Court, which believed in states' rights, using its power over -Congress to advance its own personal political preferences. But I - rejected -that view of the Supreme Court's decision. Indeed, shortly after -the decision, I wrote an article demonstrating the "fidelity" in such an -interpretation of the Constitution. The idea that the Supreme Court -decides cases based upon its politics struck me as extraordinarily - boring. -I was not going to devote my life to teaching constitutional law if -these nine Justices were going to be petty politicians. - - -Now let's pause for a moment to make sure we understand what -the argument in Eldred was not about. By insisting on the - Constitution's -limits to copyright, obviously Eldred was not endorsing piracy. -Indeed, in an obvious sense, he was fighting a kind of piracy—piracy of -the public domain. When Robert Frost wrote his work and when Walt -Disney created Mickey Mouse, the maximum copyright term was just -fifty-six years. Because of interim changes, Frost and Disney had - already -enjoyed a seventy-five-year monopoly for their work. They had -gotten the benefit of the bargain that the Constitution envisions: In -exchange for a monopoly protected for fifty-six years, they created new -work. But now these entities were using their power—expressed -through the power of lobbyists' money—to get another twenty-year -dollop of monopoly. That twenty-year dollop would be taken from the -public domain. Eric Eldred was fighting a piracy that affects us all. +can't extend an existing term. If Congress could extend an existing +term, then there would be no stopping point to Congress's power over +terms, though the Constitution expressly states that there is such a +limit. Thus, the same principle applied to the power to grant +copyrights should entail that Congress is not allowed to extend the +term of existing copyrights. + + +If, that is, the principle announced in Lopez +stood for a principle. Many believed the decision in Lopez stood for +politics—a conservative Supreme Court, which believed in states' +rights, using its power over Congress to advance its own personal +political preferences. But I rejected that view of the Supreme Court's +decision. Indeed, shortly after the decision, I wrote an article +demonstrating the fidelity in such an interpretation of the +Constitution. The idea that the Supreme Court decides cases based upon +its politics struck me as extraordinarily boring. I was not going to +devote my life to teaching constitutional law if these nine Justices +were going to be petty politicians. + + +Now let's pause for a moment to make sure we understand what the +argument in Eldred was not about. By insisting on the +Constitution's limits to copyright, obviously Eldred was not endorsing +piracy. Indeed, in an obvious sense, he was fighting a kind of +piracy—piracy of the public domain. When Robert Frost wrote his +work and when Walt Disney created Mickey Mouse, the maximum copyright +term was just fifty-six years. Because of interim changes, Frost and +Disney had already enjoyed a seventy-five-year monopoly for their +work. They had gotten the benefit of the bargain that the Constitution +envisions: In exchange for a monopoly protected for fifty-six years, +they created new work. But now these entities were using their +power—expressed through the power of lobbyists' money—to +get another twenty-year dollop of monopoly. That twenty-year dollop +would be taken from the public domain. Eric Eldred was fighting a +piracy that affects us all. Some people view the public domain with contempt. In their brief before the Supreme Court, the Nashville Songwriters Association -wrote that the public domain is nothing more than "legal piracy." - Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S. -186 (2003) (No. 01-618), n.10, available at -link #51. +wrote that the public domain is nothing more than legal piracy. + +Brief of the Nashville Songwriters Association, Eldred +v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), n.10, available +at link #51. - But -it is not piracy when the law allows it; and in our constitutional system, -our law requires it. Some may not like the Constitution's requirements, -but that doesn't make the Constitution a pirate's charter. +But it is not piracy when the law allows it; and in our constitutional +system, our law requires it. Some may not like the Constitution's +requirements, but that doesn't make the Constitution a pirate's +charter. +Nashville Songwriters Association As we've seen, our constitutional system requires limits on @@ -10531,7 +10814,7 @@ bought to extend them again. It is valuable copyrights that are responsible for terms being extended. -Mickey Mouse and "Rhapsody in Blue." These works are too +Mickey Mouse and Rhapsody in Blue. These works are too valuable for copyright owners to ignore. But the real harm to our society from copyright extensions is not that Mickey Mouse remains @@ -10553,7 +10836,7 @@ extended the terms of copyright generally. The figure of 2 percent is an extrapolation from the study by the Congressional Research Service, in light of the estimated renewal ranges. See Brief -of Petitioners, Eldred v. Ashcroft, 7, available at +of Petitioners, Eldred v. Ashcroft, 7, available at link #52. @@ -10570,6 +10853,7 @@ wanted to make available to the world in your iArchive project the remaining 9,873. What would you have to do? +archives, digital Well, first, you'd have to determine which of the 9,873 books were still under copyright. That requires going to a library (these data are @@ -10599,19 +10883,18 @@ of such records—especially since the person who registered is not necessarily the current owner. And we're just talking about 1930! -"But there isn't a list of who owns property generally," the - apologists -for the system respond. "Why should there be a list of copyright -owners?" +But there isn't a list of who owns property generally, the +apologists for the system respond. Why should there be a list of +copyright owners? -Well, actually, if you think about it, there are plenty of lists of who -owns what property. Think about deeds on houses, or titles to cars. -And where there isn't a list, the code of real space is pretty good at - suggesting -who the owner of a bit of property is. (A swing set in your -backyard is probably yours.) So formally or informally, we have a pretty -good way to know who owns what tangible property. +Well, actually, if you think about it, there are +plenty of lists of who owns what property. Think about deeds on +houses, or titles to cars. And where there isn't a list, the code of +real space is pretty good at suggesting who the owner of a bit of +property is. (A swing set in your backyard is probably yours.) So +formally or informally, we have a pretty good way to know who owns +what tangible property. So: You walk down a street and see a house. You can know who @@ -10646,23 +10929,27 @@ digitized, and hence will simply rot away on shelves. But the consequence for other creative works is much more dire. -Agee, Michael + + Agee, Michael + +Hal Roach Studios +Laurel and Hardy Films Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns the copyrights for the Laurel and Hardy films. Agee is a direct beneficiary of the Bono Act. The Laurel and Hardy films were -made between 1921 and 1951. Only one of these films, The Lucky Dog, is +made between 1921 and 1951. Only one of these films, The Lucky Dog, is currently out of copyright. But for the CTEA, films made after 1923 would have begun entering the public domain. Because Agee controls the exclusive rights for these popular films, he makes a great deal of -money. According to one estimate, "Roach has sold about 60,000 +money. According to one estimate, Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo's silent -films." +films. -See David G. Savage, "High Court Scene of Showdown on Copyright Law," -Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies, +See David G. Savage, High Court Scene of Showdown on Copyright Law, +Los Angeles Times, 6 October 2002; David Streitfeld, Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking -Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002. +Down Copyright Extension, Orlando Sentinel Tribune, 9 October 2002. Lucky Dog, The @@ -10691,11 +10978,12 @@ 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. - Brief of Hal Roach Studios and Michael Agee as Amicus Curiae - Supporting -the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- -618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by -the Internet Archive, Eldred v. Ashcroft, available at + +Brief of Hal Roach Studios and Michael Agee as Amicus Curiae +Supporting the Petitoners, Eldred v. Ashcroft, 537 +U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae +filed on behalf of Petitioners by the Internet Archive, Eldred +v. Ashcroft, available at link #53. @@ -10709,17 +10997,16 @@ And to secure the rights for a film that is under copyright, you need to locate the copyright owner. -Or more accurately, owners. As we've seen, there isn't only a single -copyright associated with a film; there are many. There isn't a single -person whom you can contact about those copyrights; there are as -many as can hold the rights, which turns out to be an extremely large -number. Thus the costs of clearing the rights to these films is - exceptionally -high. +Or more accurately, owners. As we've seen, there +isn't only a single copyright associated with a film; there are +many. There isn't a single person whom you can contact about those +copyrights; there are as many as can hold the rights, which turns out +to be an extremely large number. Thus the costs of clearing the rights +to these films is exceptionally high. -"But can't you just restore the film, distribute it, and then pay the -copyright owner when she shows up?" Sure, if you want to commit a +But can't you just restore the film, distribute it, and then pay the +copyright owner when she shows up? Sure, if you want to commit a felony. And even if you're not worried about committing a felony, when she does show up, she'll have the right to sue you for all the profits you have made. So, if you're successful, you can be fairly confident you'll be @@ -10738,6 +11025,7 @@ would outweigh the legal costs. Thus, for the vast majority of old films, Agee argued, the film will not be restored and distributed until the copyright expires. + But by the time the copyright for these films expires, the film will have expired. These films were produced on nitrate-based stock, and @@ -10752,8 +11040,8 @@ fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. For that tiny fraction, the copyright creates incentives to produce and distribute the creative -work. For that tiny fraction, the copyright acts as an "engine of -free expression." +work. For that tiny fraction, the copyright acts as an engine of +free expression. But even for that tiny fraction, the actual time during which the @@ -10788,12 +11076,13 @@ this context do no good. Yet, for most of our history, they also did little harm. For most of our history, when a work ended its commercial life, there was no -copyright-related use that would be inhibited by an exclusive right. -When a book went out of print, you could not buy it from a publisher. -But you could still buy it from a used book store, and when a used -book store sells it, in America, at least, there is no need to pay the -copyright owner anything. Thus, the ordinary use of a book after its -commercial life ended was a use that was independent of copyright law. +copyright-related use that would be inhibited by +an exclusive right. When a book went out of print, you could not buy +it from a publisher. But you could still buy it from a used book +store, and when a used book store sells it, in America, at least, +there is no need to pay the copyright owner anything. Thus, the +ordinary use of a book after its commercial life ended was a use that +was independent of copyright law. The same was effectively true of film. Because the costs of restoring @@ -10813,6 +11102,9 @@ would not have interfered with anything. But this situation has now changed. + + archives, digital + One crucially important consequence of the emergence of digital technologies is to enable the archive that Brewster Kahle dreams of. @@ -10840,30 +11132,31 @@ written for a radically different context. Here is the core of the harm that comes from extending terms: Now that technology enables us to rebuild the library of Alexandria, the law gets in the way. And it doesn't get in the way for any useful -copyright purpose, for the purpose of copyright is to enable the -commercial market that spreads culture. No, we are talking about -culture after it has lived its commercial life. In this context, -copyright is serving no purpose at all related to the spread of -knowledge. In this context, copyright is not an engine of free -expression. Copyright is a brake. +copyright purpose, for the purpose of copyright +is to enable the commercial market that spreads culture. No, we are +talking about culture after it has lived its commercial life. In this +context, copyright is serving no purpose at all +related to the spread of knowledge. In this context, copyright is not +an engine of free expression. Copyright is a brake. -You may well ask, "But if digital technologies lower the costs for +You may well ask, But if digital technologies lower the costs for Brewster Kahle, then they will lower the costs for Random House, too. So won't Random House do as well as Brewster Kahle in spreading -culture widely?" +culture widely? Maybe. Someday. But there is absolutely no evidence to suggest that publishers would be as complete as libraries. If Barnes & Noble offered to lend books from its stores for a low price, would that eliminate the need for libraries? Only if you think that the only role -of a library is to serve what "the market" would demand. But if you +of a library is to serve what the market would demand. But if you think the role of a library is bigger than this—if you think its role is to archive culture, whether there's a demand for any particular bit of that culture or not—then we can't count on the commercial market to do our library work for us. + I would be the first to agree that it should do as much as it can: We should rely upon the market as much as possible to spread and enable @@ -10877,7 +11170,7 @@ and 1946 is not commercially available. However much you love the commercial market, if access is a value, then 6 percent is a failure to provide that value. -Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20 +Jason Schultz, The Myth of the 1976 Copyright `Chaos' Theory, 20 December 2002, available at link #54. @@ -10888,7 +11181,7 @@ In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal district court in Washington, D.C., asking the court to declare the Sonny Bono Copyright Term Extension Act unconstitutional. The two central claims that we made were (1) that extending existing terms -violated the Constitution's "limited Times" requirement, and (2) that +violated the Constitution's limited Times requirement, and (2) that extending terms by another twenty years violated the First Amendment. @@ -10900,12 +11193,12 @@ judges on that court. That dissent gave our claims life. Judge David Sentelle said the CTEA violated the requirement that -copyrights be for "limited Times" only. His argument was as elegant as +copyrights be for limited Times only. His argument was as elegant as it was simple: If Congress can extend existing terms, then there is no -"stopping point" to Congress's power under the Copyright Clause. The +stopping point to Congress's power under the Copyright Clause. The power to extend existing terms means Congress is not required to grant -terms that are "limited." Thus, Judge Sentelle argued, the court had -to interpret the term "limited Times" to give it meaning. And the best +terms that are limited. Thus, Judge Sentelle argued, the court had +to interpret the term limited Times to give it meaning. And the best interpretation, Judge Sentelle argued, would be to deny Congress the power to extend existing terms. @@ -10913,7 +11206,7 @@ power to extend existing terms. We asked the Court of Appeals for the D.C. Circuit as a whole to hear the case. Cases are ordinarily heard in panels of three, except for important cases or cases that raise issues specific to the circuit as a -whole, where the court will sit "en banc" to hear the case. +whole, where the court will sit en banc to hear the case. The Court of Appeals rejected our request to hear the case en banc. @@ -10973,18 +11266,18 @@ There were three key lawyers on the case from Jones Day. Geoff Stewart was the first, but then Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer in particular had a common view about how this case would be won: We would only win, they repeatedly -told me, if we could make the issue seem "important" to the Supreme +told me, if we could make the issue seem important to the Supreme Court. It had to seem as if dramatic harm were being done to free -speech and free culture; otherwise, they would never vote against "the -most powerful media companies in the world." +speech and free culture; otherwise, they would never vote against the +most powerful media companies in the world. I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. Of course I still think it is. But the idea that the Supreme Court decides the law based on how important they believe the issues are is just wrong. It might be -"right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be -that way." As I believed that any faithful interpretation of what the +right as in true, I thought, but it is wrong as in it just shouldn't be +that way. As I believed that any faithful interpretation of what the framers of our Constitution did would yield the conclusion that the CTEA was unconstitutional, and as I believed that any faithful interpretation @@ -11014,15 +11307,15 @@ There was one way, however, in which I felt politics would matter and in which I thought a response was appropriate. I was convinced that the Court would not hear our arguments if it thought these were just the arguments of a group of lefty loons. This Supreme Court was -not about to launch into a new field of judicial review if it seemed that -this field of review was simply the preference of a small political - minority. -Although my focus in the case was not to demonstrate how bad the -Sonny Bono Act was but to demonstrate that it was unconstitutional, -my hope was to make this argument against a background of briefs that -covered the full range of political views. To show that this claim against -the CTEA was grounded in law and not politics, then, we tried to -gather the widest range of credible critics—credible not because they +not about to launch into a new field of judicial review if it seemed +that this field of review was simply the preference of a small +political minority. Although my focus in the case was not to +demonstrate how bad the Sonny Bono Act was but to demonstrate that it +was unconstitutional, my hope was to make this argument against a +background of briefs that covered the full range of political +views. To show that this claim against the CTEA was grounded in +law and not politics, then, we tried to gather +the widest range of credible critics—credible not because they were rich and famous, but because they, in the aggregate, demonstrated that this law was unconstitutional regardless of one's politics. @@ -11032,10 +11325,10 @@ organization, Eagle Forum, had been an opponent of the CTEA from the very beginning. Mrs. Schlafly viewed the CTEA as a sellout by Congress. In November 1998, she wrote a stinging editorial attacking the Republican Congress for allowing the law to pass. As she wrote, -"Do you sometimes wonder why bills that create a financial windfall to +Do you sometimes wonder why bills that create a financial windfall to narrow special interests slide easily through the intricate legislative process, while bills that benefit the general public seem -to get bogged down?" The answer, as the editorial documented, was the +to get bogged down? The answer, as the editorial documented, was the power of money. Schlafly enumerated Disney's contributions to the key players on the committees. It was money, not justice, that gave Mickey Mouse twenty more years in Disney's control, Schlafly argued. @@ -11062,6 +11355,9 @@ copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments. +GNU/Linux operating system +Intel +Linux operating system Eagle Forum @@ -11069,7 +11365,10 @@ Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union. +American Association of Law Libraries +National Writers Union +Hal Roach Studios But two briefs captured the policy argument best. One made the argument I've already described: A brief by Hal Roach Studios argued @@ -11090,7 +11389,7 @@ the list of Nobel winners demonstrates, spanned the political spectrum. Their conclusions were powerful: There was no plausible claim that extending the terms of existing copyrights would do anything to increase incentives to create. Such extensions were -nothing more than "rent-seeking"—the fancy term economists use +nothing more than rent-seeking—the fancy term economists use to describe special-interest legislation gone wild. @@ -11107,6 +11406,9 @@ Kathleen Sullivan, who had argued many cases in the Court, and who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. Fried, Charles +Morrison, Alan +Public Citizen +Reagan, Ronald Fried was a special victory for our side. Every other former solicitor @@ -11123,7 +11425,7 @@ confidence in our argument. The government, in defending the statute, had its collection of -friends, as well. Significantly, however, none of these "friends" included +friends, as well. Significantly, however, none of these friends included historians or economists. The briefs on the other side of the case were written exclusively by major media companies, congressmen, and copyright holders. @@ -11142,19 +11444,19 @@ Dr. Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to Dr. Seuss's work— better than allowing it to fall into the public domain—because if this creativity were in the public -domain, then people could use it to "glorify drugs or to create -pornography." +domain, then people could use it to glorify drugs or to create +pornography. -Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 +Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. (2003) (No. 01-618), 19. That was also the motive of the Gershwin estate, which defended its -"protection" of the work of George Gershwin. They refuse, for example, -to license Porgy and Bess to anyone who refuses to use African +protection of the work of George Gershwin. They refuse, for example, +to license Porgy and Bess to anyone who refuses to use African Americans in the cast. -Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey -Mouse Joins the Fray," New York Times, 28 March 1998, B7. +Dinitia Smith, Immortal Words, Immortal Royalties? Even Mickey +Mouse Joins the Fray, New York Times, 28 March 1998, B7. That's @@ -11167,9 +11469,9 @@ This argument made clear a theme that is rarely noticed in this debate. When Congress decides to extend the term of existing copyrights, Congress is making a choice about which speakers it will favor. Famous and beloved copyright owners, such as the Gershwin -estate and Dr. Seuss, come to Congress and say, "Give us twenty years +estate and Dr. Seuss, come to Congress and say, Give us twenty years to control the speech about these icons of American culture. We'll do -better with them than anyone else." Congress of course likes to reward +better with them than anyone else. Congress of course likes to reward the popular and famous by giving them what they want. But when Congress gives people an exclusive right to speak in a certain way, that's just what the First Amendment is traditionally meant to block. @@ -11183,15 +11485,17 @@ favorites, through copyright, with who has the right to speak. Between February and October, there was little I did beyond preparing for this case. Early on, as I said, I set the strategy. +Rehnquist, William H. +O'Connor, Sandra Day -The Supreme Court was divided into two important camps. One -camp we called "the Conservatives." The other we called "the Rest." -The Conservatives included Chief Justice Rehnquist, Justice O'Connor, +The Supreme Court was divided into two important camps. One camp we +called the Conservatives. The other we called the Rest. The +Conservatives included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and Justice Thomas. These five had been the most consistent in limiting Congress's power. They were the -five who had supported the Lopez/Morrison line of cases that said that -an enumerated power had to be interpreted to assure that Congress's -powers had limits. +five who had supported the Lopez/Morrison line +of cases that said that an enumerated power had to be interpreted to +assure that Congress's powers had limits. Breyer, Stephen @@ -11235,46 +11539,45 @@ had consistently argued for limits in the context of intellectual property generally. We were fairly confident he would recognize limits here. -This analysis of "the Rest" showed most clearly where our focus -had to be: on the Conservatives. To win this case, we had to crack open -these five and get at least a majority to go our way. Thus, the single - overriding -argument that animated our claim rested on the Conservatives' -most important jurisprudential innovation—the argument that Judge -Sentelle had relied upon in the Court of Appeals, that Congress's power -must be interpreted so that its enumerated powers have limits. +This analysis of the Rest showed most clearly where our focus had to +be: on the Conservatives. To win this case, we had to crack open these +five and get at least a majority to go our way. Thus, the single +overriding argument that animated our claim rested on the +Conservatives' most important jurisprudential innovation—the +argument that Judge Sentelle had relied upon in the Court of Appeals, +that Congress's power must be interpreted so that its enumerated +powers have limits. This then was the core of our strategy—a strategy for which I am -responsible. We would get the Court to see that just as with the Lopez - +responsible. We would get the Court to see that just as with the +Lopez -case, under the government's argument here, Congress would always -have unlimited power to extend existing terms. If anything was plain -about Congress's power under the Progress Clause, it was that this -power was supposed to be "limited." Our aim would be to get the -Court to reconcile Eldred with Lopez: If Congress's power to regulate -commerce was limited, then so, too, must Congress's power to regulate -copyright be limited. +case, under the government's argument here, Congress would always have +unlimited power to extend existing terms. If anything was plain about +Congress's power under the Progress Clause, it was that this power was +supposed to be limited. Our aim would be to get the Court to +reconcile Eldred with +Lopez: If Congress's power to regulate commerce +was limited, then so, too, must Congress's power to regulate copyright +be limited. -The argument on the government's side came down to this: - Congress -has done it before. It should be allowed to do it again. The - government -claimed that from the very beginning, Congress has been -extending the term of existing copyrights. So, the government argued, -the Court should not now say that practice is unconstitutional. +The argument on the government's side came down to this: Congress has +done it before. It should be allowed to do it again. The government +claimed that from the very beginning, Congress has been extending the +term of existing copyrights. So, the government argued, the Court +should not now say that practice is unconstitutional. There was some truth to the government's claim, but not much. We -certainly agreed that Congress had extended existing terms in +certainly agreed that Congress had extended existing terms in 1831 and in 1909. And of course, in 1962, Congress began extending existing terms regularly—eleven times in forty years. -But this "consistency" should be kept in perspective. Congress +But this consistency should be kept in perspective. Congress extended existing terms once in the first hundred years of the Republic. It then extended existing terms once again in the next fifty. Those rare @@ -11290,10 +11593,10 @@ There was no reason it couldn't intervene here. Oral argument was scheduled for the first week in October. I arrived in D.C. two weeks before the argument. During those two -weeks, I was repeatedly "mooted" by lawyers who had volunteered to +weeks, I was repeatedly mooted by lawyers who had volunteered to -help in the case. Such "moots" are basically practice rounds, where +help in the case. Such moots are basically practice rounds, where wannabe justices fire questions at wannabe winners. @@ -11307,6 +11610,7 @@ were an effective practice; I found ways to take every question back to this central idea. Ayer, Don +Reagan, Ronald One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor @@ -11315,11 +11619,11 @@ Court. And in his review of the moot, he let his concern speak: Fried, Charles -"I'm just afraid that unless they really see the harm, they won't be +I'm just afraid that unless they really see the harm, they won't be willing to upset this practice that the government says has been a consistent practice for two hundred years. You have to make them see the harm—passionately get them to see the harm. For if they -don't see that, then we haven't any chance of winning." +don't see that, then we haven't any chance of winning. Ayer, Don @@ -11360,6 +11664,7 @@ where I intended to stay: on the question of the limits on Congress's power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit. +O'Connor, Sandra Day Justice O'Connor stopped me within one minute of my opening. The history was bothering her. @@ -11373,8 +11678,8 @@ practice that began with the very first act. -She was quite willing to concede "that this flies directly in the face -of what the framers had in mind." But my response again and again +She was quite willing to concede that this flies directly in the face +of what the framers had in mind. But my response again and again was to emphasize limits on Congress's power.
@@ -11410,8 +11715,7 @@ I answered, mr. lessig: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is this is a -structural limit necessary to assure that what would be an - effectively +structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.
@@ -11424,14 +11728,13 @@ here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss. -The second came from the Chief, for whom the whole case had -been crafted. For the Chief Justice had crafted the Lopez ruling, and we -hoped that he would see this case as its second cousin. +The second came from the Chief, for whom the whole case had been +crafted. For the Chief Justice had crafted the Lopez ruling, +and we hoped that he would see this case as its second cousin. -It was clear a second into his question that he wasn't at all - sympathetic. -To him, we were a bunch of anarchists. As he asked: +It was clear a second into his question that he wasn't at all +sympathetic. To him, we were a bunch of anarchists. As he asked: @@ -11449,6 +11752,7 @@ Amendment analysis or under a proper reading of the limits built into the Copyright Clause. +Olson, Theodore B. Things went better for us when the government gave its argument; for now the Court picked up on the core of our claim. As Justice Scalia @@ -11512,14 +11816,15 @@ phone off the hook, posted an announcement to our blog, and sat down to see where I had been wrong in my reasoning. -My reasoning. Here was a case that pitted all the money in the world -against reasoning. And here was the last naïve law professor, scouring -the pages, looking for reasoning. +My reasoning. Here was a case that pitted all the +money in the world against reasoning. And here +was the last naïve law professor, scouring the pages, looking for +reasoning. I first scoured the opinion, looking for how the Court would distinguish the principle in this case from the principle in -Lopez. The argument was nowhere to be found. The case was not even +Lopez. The argument was nowhere to be found. The case was not even cited. The argument that was the core argument of our case did not even appear in the Court's opinion. @@ -11532,7 +11837,7 @@ generally, she had found Congress's power not limited here. Her opinion was perfectly reasonable—for her, and for Justice -Souter. Neither believes in Lopez. It would be too much to expect them +Souter. Neither believes in Lopez. It would be too much to expect them to write an opinion that recognized, much less explained, the doctrine they had worked so hard to defeat. @@ -11541,11 +11846,11 @@ But as I realized what had happened, I couldn't quite believe what I was reading. I had said there was no way this Court could reconcile limited powers with the Commerce Clause and unlimited powers with the Progress Clause. It had never even occurred to me that they could -reconcile the two simply by not addressing the argument. There was no -inconsistency because they would not 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. +reconcile the two simply by not addressing the +argument. There was no inconsistency because they would not +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 @@ -11580,33 +11885,34 @@ said that under the current term, a copyright gave an author 99.8 percent of the value of a perpetual term. Breyer said we were wrong, that the actual number was 99.9997 percent of a perpetual term. Either way, the point was clear: If the Constitution said a term had to be -"limited," and the existing term was so long as to be effectively +limited, and the existing term was so long as to be effectively unlimited, then it was unconstitutional. These two justices understood all the arguments we had made. But -because neither believed in the Lopez case, neither was willing to push +because neither believed in the Lopez case, neither was willing to push it as a reason to reject this extension. The case was decided without anyone having addressed the argument that we had carried from Judge -Sentelle. It was Hamlet without the Prince. +Sentelle. It was Hamlet without the Prince. Defeat brings depression. They say it is a sign of health when depression gives way to anger. My anger came quickly, but it didn't cure the depression. This anger was of two sorts. +originalism -It was first anger with the five "Conservatives." It would have been -one thing for them to have explained why the principle of Lopez didn't +It was first anger with the five Conservatives. It would have been +one thing for them to have explained why the principle of Lopez didn't apply in this case. That wouldn't have been a very convincing argument, I don't believe, having read it made by others, and having tried to make it myself. But it at least would have been an act of integrity. These justices in particular have repeatedly said that the -proper mode of interpreting the Constitution is "originalism"—to +proper mode of interpreting the Constitution is originalism—to first understand the framers' text, interpreted in their context, in light of the structure of the Constitution. That method had produced -Lopez and many other "originalist" rulings. Where was their -"originalism" now? +Lopez and many other originalist rulings. Where was their +originalism now? Here, they had joined an opinion that never once tried to explain @@ -11684,7 +11990,7 @@ have persuaded. And even if I couldn't, then that doesn't excuse what happened in January. For at the start of this case, one of America's leading intellectual property professors stated publicly that my bringing this -case was a mistake. "The Court is not ready," Peter Jaszi said; this +case was a mistake. The Court is not ready, Peter Jaszi said; this issue should not be raised until it is. Jaszi, Peter @@ -11706,7 +12012,7 @@ the decision was praised, it was praised by papers that had been skeptical of the Court's activism in other cases. Deference was a good thing, even if it left standing a silly law. But where the decision was attacked, it was attacked because it left standing a silly and -harmful law. The New York Times wrote in its editorial, +harmful law. The New York Times wrote in its editorial,
@@ -11721,27 +12027,32 @@ in a time of such fruitful creative ferment. The best responses were in the cartoons. There was a gaggle of hilarious images—of Mickey in jail and the like. The best, from -my view of the case, was Ruben Bolling's, reproduced on the next -page. The "powerful and wealthy" line is a bit unfair. But the punch -in the face felt exactly like that. +my view of the case, was Ruben Bolling's, reproduced on the next page +(). The powerful and wealthy line is a bit +unfair. But the punch in the face felt exactly like that. Bolling, Ruben +
+Tom the Dancing Bug cartoon + +Bolling, Ruben +
The image that will always stick in my head is that evoked by the -quote from The New York Times. That "grand experiment" we call the -"public domain" is over? When I can make light of it, I think, "Honey, -I shrunk the Constitution." But I can rarely make light of it. We had +quote from The New York Times. That grand experiment we call the +public domain is over? When I can make light of it, I think, Honey, +I shrunk the Constitution. But I can rarely make light of it. We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently. - - + + CHAPTER FOURTEEN: Eldred II -The day Eldred was decided, fate would have it that I was to travel to -Washington, D.C. (The day the rehearing petition in Eldred was +The day Eldred was decided, fate would have it that I was to travel to +Washington, D.C. (The day the rehearing petition in Eldred was denied—meaning the case was really finally over—fate would have it that I was giving a speech to technologists at Disney World.) This was a particularly long flight to my least favorite city. The @@ -11754,13 +12065,13 @@ It was an act of contrition. During the whole of the flight from San Francisco to Washington, I had heard over and over again in my head the same advice from Don Ayer: You need to make them see why it is important. And alternating with that command was the question of -Justice Kennedy: "For all these years the act has impeded progress in +Justice Kennedy: For all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for -that." And so, having failed in the argument of constitutional principle, +that. And so, having failed in the argument of constitutional principle, finally, I turned to an argument of politics. -The New York Times published the piece. In it, I proposed a simple +The New York Times published the piece. In it, I proposed a simple fix: Fifty years after a work has been published, the copyright owner would be required to register the work and pay a small fee. If he paid @@ -11774,8 +12085,8 @@ he said early on, it won't get passed unless it has another name. Or another two names. For depending upon your perspective, this -is either the "Public Domain Enhancement Act" or the "Copyright -Term Deregulation Act." Either way, the essence of the idea is clear +is either the Public Domain Enhancement Act or the Copyright +Term Deregulation Act. Either way, the essence of the idea is clear and obvious: Remove copyright where it is doing nothing except blocking access and the spread of knowledge. Leave it for as long as Congress allows for those works where its worth is at least $1. But for @@ -11809,7 +12120,8 @@ where copyright owners could be identified. Berne Convention (1908) -As I described in chapter 10, formalities in copyright law were +As I described in chapter , formalities in copyright law were removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. @@ -11817,9 +12129,9 @@ Until the 1908 Berlin Act of the Berne Convention, national copyright legislation sometimes made protection depend upon compliance with formalities such as registration, deposit, and affixation of notice of the author's claim of copyright. However, starting with the 1908 act, -every text of the Convention has provided that "the enjoyment and the -exercise" of rights guaranteed by the Convention "shall not be subject -to any formality." The prohibition against formalities is presently +every text of the Convention has provided that the enjoyment and the +exercise of rights guaranteed by the Convention shall not be subject +to any formality. The prohibition against formalities is presently embodied in Article 5(2) of the Paris Text of the Berne Convention. Many countries continue to impose some form of deposit or registration requirement, albeit not as a condition of @@ -11828,10 +12140,10 @@ works in national repositories, principally the National Museum. Copies of books published in the United Kingdom must be deposited in the British Library. The German Copyright Act provides for a Registrar of Authors where the author's true name can be filed in the case of -anonymous or pseudonymous works. Paul Goldstein, International -Intellectual Property Law, Cases and Materials (New York: Foundation +anonymous or pseudonymous works. Paul Goldstein, International +Intellectual Property Law, Cases and Materials (New York: Foundation Press, 2001), 153–54. -The Europeans are said to view copyright as a "natural right." Natural +The Europeans are said to view copyright as a natural right. Natural rights don't need forms to exist. Traditions, like the Anglo-American tradition that required copyright owners to follow form if their rights were to be protected, did not, the Europeans thought, properly @@ -11842,7 +12154,7 @@ creativity, not upon the special favor of the government. That's great rhetoric. It sounds wonderfully romantic. But it is absurd copyright policy. It is absurd especially for authors, because a world without formalities harms the creator. The ability to spread -"Walt Disney creativity" is destroyed when there is no simple way to +Walt Disney creativity is destroyed when there is no simple way to know what's protected and what's not. Berne Convention (1908) @@ -11853,8 +12165,8 @@ Convention in 1908, to require copyright terms of life plus fifty years, as well as the abolition of copyright formalities. The formalities were hated because the stories of inadvertent loss were increasingly common. It was as if a Charles Dickens character ran all -copyright offices, and the failure to dot an i or cross a t resulted -in the loss of widows' only income. +copyright offices, and the failure to dot an i or cross a +t resulted in the loss of widows' only income. These complaints were real and sensible. And the strictness of the @@ -11879,7 +12191,7 @@ a moral claim as well. There was no reason that creative property should be a second-class form of property. If a carpenter builds a table, his rights over the table don't depend upon filing a form with -the government. He has a property right over the table "naturally," +the government. He has a property right over the table naturally, and he can assert that right against anyone who would steal the table, whether or not he has informed the government of his ownership of the table. @@ -11920,16 +12232,16 @@ with confidence unless there is some simple way to authenticate who is the author and what rights he has. Simple transactions are destroyed in -a world without formalities. Complex, expensive, lawyer transactions -take their place. +a world without formalities. Complex, expensive, +lawyer transactions take their place. Lovett, Lyle This was the understanding of the problem with the Sonny Bono Act that we tried to demonstrate to the Court. This was the part it -didn't "get." Because we live in a system without formalities, there is no +didn't get. Because we live in a system without formalities, there is no way easily to build upon or use culture from our past. If copyright -terms were, as Justice Story said they would be, "short," then this +terms were, as Justice Story said they would be, short, then this wouldn't matter much. For fourteen years, under the framers' system, a work would be presumptively controlled. After fourteen years, it would be presumptively uncontrolled. @@ -11941,7 +12253,7 @@ a huge and obvious burden on the creative process. If the only way a library can offer an Internet exhibit about the New Deal is to hire a lawyer to clear the rights to every image and sound, then the copyright system is burdening creativity in a way that has never been -seen before because there are no formalities. +seen before because there are no formalities. The Eldred Act was designed to respond to exactly this problem. If @@ -11970,15 +12282,15 @@ doubt because they are terribly funded) in enabling simple and cheap registrations. Any real solution to the problem of formalities must -address the real problem of governments standing at the core of any -system of formalities. In this book, I offer such a solution. That -solution essentially remakes the Copyright Office. For now, assume it -was Amazon that ran the registration system. Assume it was one-click -registration. The Eldred Act would propose a simple, one-click -registration fifty years after a work was published. Based upon -historical data, that system would move up to 98 percent of commercial -work, commercial work that no longer had a commercial life, into the -public domain within fifty years. What do you think? +address the real problem of governments standing +at the core of any system of formalities. In this book, I offer such a +solution. That solution essentially remakes the Copyright Office. For +now, assume it was Amazon that ran the registration system. Assume it +was one-click registration. The Eldred Act would propose a simple, +one-click registration fifty years after a work was published. Based +upon historical data, that system would move up to 98 percent of +commercial work, commercial work that no longer had a commercial life, +into the public domain within fifty years. What do you think? Forbes, Steve @@ -11992,8 +12304,8 @@ One representative, Zoe Lofgren of California, went so far as to get the bill drafted. The draft solved any problem with international law. It imposed the simplest requirement upon copyright owners possible. In May 2003, it looked as if the bill would be -introduced. On May 16, I posted on the Eldred Act blog, "we are -close." There was a general reaction in the blog community that +introduced. On May 16, I posted on the Eldred Act blog, we are +close. There was a general reaction in the blog community that something good might happen here. Lofgren, Zoe @@ -12006,9 +12318,9 @@ Act. The reasons are embarrassingly thin. More importantly, their thinness shows something clear about what this debate is really about. -The MPAA argued first that Congress had "firmly rejected the central -concept in the proposed bill"—that copyrights be renewed. That -was true, but irrelevant, as Congress's "firm rejection" had occurred +The MPAA argued first that Congress had firmly rejected the central +concept in the proposed bill—that copyrights be renewed. That +was true, but irrelevant, as Congress's firm rejection had occurred long before the Internet made subsequent uses much more likely. Second, they argued that the proposal would harm poor copyright @@ -12018,7 +12330,7 @@ term would encourage restoration work. Maybe in the case of the small percentage of work covered by copyright law that is still commercially valuable, but again this was irrelevant, as the proposal would not cut off the extended term unless the $1 fee was not paid. Fourth, the MPAA -argued that the bill would impose "enormous" costs, since a +argued that the bill would impose enormous costs, since a registration system is not free. True enough, but those costs are certainly less than the costs of clearing the rights for a copyright whose owner is not known. Fifth, they worried about the risks if the @@ -12070,9 +12382,10 @@ Act, then, finally, there is an example that lays bare the naked selfinterest driving this war. This act would free an extraordinary range of content that is otherwise unused. It wouldn't interfere with any copyright owner's desire to exercise continued control over his -content. It would simply liberate what Kevin Kelly calls the "Dark -Content" that fills archives around the world. So when the warriors +content. It would simply liberate what Kevin Kelly calls the Dark +Content that fills archives around the world. So when the warriors oppose a change like this, we should ask one simple question: +Kelly, Kevin What does this industry really want? @@ -12080,19 +12393,21 @@ What does this industry really want? With very little effort, the warriors could protect their content. So the effort to block something like the Eldred Act is not really about -protecting their content. The effort to block the Eldred Act is an effort -to assure that nothing more passes into the public domain. It is another -step to assure that the public domain will never compete, that there -will be no use of content that is not commercially controlled, and that -there will be no commercial use of content that doesn't require their -permission first. +protecting their content. The effort to block the +Eldred Act is an effort to assure that nothing more passes into the +public domain. It is another step to assure that the public domain +will never compete, that there will be no use of content that is not +commercially controlled, and that there will be no commercial use of +content that doesn't require their permission +first. The opposition to the Eldred Act reveals how extreme the other side is. The most powerful and sexy and well loved of lobbies really has as -its aim not the protection of "property" but the rejection of a -tradition. Their aim is not simply to protect what is theirs. Their -aim is to assure that all there is is what is theirs. +its aim not the protection of property but the rejection of a +tradition. Their aim is not simply to protect what is +theirs. Their aim is to assure that all there is is what is +theirs. It is not hard to understand why the warriors take this view. It is not @@ -12115,18 +12430,27 @@ block the progress of others. All this seems to follow easily from this untroubled acceptance of the -"property" in intellectual property. Common sense supports it, and so +property in intellectual property. Common sense supports it, and so long as it does, the assaults will rain down upon the technologies of -the Internet. The consequence will be an increasing "permission -society." The past can be cultivated only if you can identify the +the Internet. The consequence will be an increasing permission +society. The past can be cultivated only if you can identify the owner and gain permission to build upon his work. The future will be controlled by this dead (and often unfindable) hand of the past. - - + + CONCLUSION + + antiretroviral drugs + + + HIV/AIDS therapies + + + Africa, medications for HIV patients in + There are more than 35 million people with the AIDS virus worldwide. Twenty-five million of them live in sub-Saharan Africa. @@ -12150,8 +12474,8 @@ African nation can afford the drugs for the vast majority of its population: $15,000 is thirty times the per capita gross national product of Zimbabwe. At these prices, the drugs are totally unavailable. - Commission on Intellectual Property Rights, "Final Report: Integrating -Intellectual Property Rights and Development Policy" (London, 2002), + Commission on Intellectual Property Rights, Final Report: Integrating +Intellectual Property Rights and Development Policy (London, 2002), available at link #55. According to a World Health Organization press release @@ -12191,59 +12515,55 @@ In 1997, South Africa tried one tack. It passed a law to allow the importation of patented medicines that had been produced or sold in another nation's market with the consent of the patent owner. For example, if the drug was sold in India, it could be imported into -Africa from India. This is called "parallel importation," and it is +Africa from India. This is called parallel importation, and it is generally permitted under international trade law and is specifically permitted within the European Union. -See Peter Drahos with John Braithwaite, Information Feudalism: Who -Owns the Knowledge Economy? (New York: The New Press, 2003), 37. +See Peter Drahos with John Braithwaite, Information Feudalism: Who +Owns the Knowledge Economy? (New York: The New Press, 2003), 37. Braithwaite, John Drahos, Peter -However, the United States government opposed the bill. Indeed, -more than opposed. As the International Intellectual Property - Association -characterized it, "The U.S. government pressured South Africa . . . -not to permit compulsory licensing or parallel imports." - International Intellectual Property Institute (IIPI), Patent Protection and -Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report - Prepared -for the World Intellectual Property Organization (Washington, D.C., -2000), 14, available at -link #56. For a firsthand account of the struggle over -South Africa, see Hearing Before the Subcommittee on Criminal Justice, -Drug Policy, and Human Resources, House Committee on Government -Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150–57 -(statement of James Love). - - Through the -Office of the United States Trade Representative, the government -asked South Africa to change the law—and to add pressure to that - request, -in 1998, the USTR listed South Africa for possible trade sanctions. +However, the United States government opposed the bill. Indeed, more +than opposed. As the International Intellectual Property Association +characterized it, The U.S. government pressured South Africa … +not to permit compulsory licensing or parallel +imports. + +International Intellectual Property Institute (IIPI), Patent +Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan +Africa, a Report Prepared for the World Intellectual Property +Organization (Washington, D.C., 2000), 14, available at +link #56. For a +firsthand account of the struggle over South Africa, see Hearing +Before the Subcommittee on Criminal Justice, Drug Policy, and Human +Resources, House Committee on Government Reform, H. Rep., 1st sess., +Ser. No. 106-126 (22 July 1999), 150–57 (statement of James +Love). + +Through the Office of the United States Trade Representative, the +government asked South Africa to change the law—and to add +pressure to that request, in 1998, the USTR listed South Africa for +possible trade sanctions. -That same year, more than forty pharmaceutical companies - began -proceedings in the South African courts to challenge the - government's -actions. The United States was then joined by other governments -from the EU. Their claim, and the claim of the pharmaceutical - companies, -was that South Africa was violating its obligations under - international -law by discriminating against a particular kind of patent— -pharmaceutical patents. The demand of these governments, with the -United States in the lead, was that South Africa respect these patents -as it respects any other patent, regardless of any effect on the treatment -of AIDS within South Africa. +That same year, more than forty pharmaceutical companies began +proceedings in the South African courts to challenge the government's +actions. The United States was then joined by other governments from +the EU. Their claim, and the claim of the pharmaceutical companies, +was that South Africa was violating its obligations under +international law by discriminating against a particular kind of +patent— pharmaceutical patents. The demand of these governments, +with the United States in the lead, was that South Africa respect +these patents as it respects any other patent, regardless of any +effect on the treatment of AIDS within South Africa. -International Intellectual Property Institute (IIPI), Patent +International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property -Organization (Washington, D.C., 2000), 15. +Organization (Washington, D.C., 2000), 15. We should place the intervention by the United States in context. No @@ -12279,24 +12599,24 @@ argument about the sanctity of property. -See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's -Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24 +See Sabin Russell, New Crusade to Lower AIDS Drug Costs: Africa's +Needs at Odds with Firms' Profit Motive, San Francisco Chronicle, 24 May 1999, A1, available at link #57 -("compulsory licenses and gray markets pose a threat to the entire -system of intellectual property protection"); Robert Weissman, "AIDS +(compulsory licenses and gray markets pose a threat to the entire +system of intellectual property protection); Robert Weissman, AIDS and Developing Countries: Democratizing Access to Essential -Medicines," Foreign Policy in Focus 4:23 (August 1999), available at +Medicines, Foreign Policy in Focus 4:23 (August 1999), available at link #58 -(describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical +(describing U.S. policy); John A. Harrelson, TRIPS, Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between -Intellectual Property Rights and Compassion, a Synopsis," Widener Law -Symposium Journal (Spring 2001): 175. +Intellectual Property Rights and Compassion, a Synopsis, Widener Law +Symposium Journal (Spring 2001): 175. -It was because "intellectual property" would be violated that these +It was because intellectual property would be violated that these drugs should not flow into Africa. It was a principle about the -importance of "intellectual property" that led these government actors +importance of intellectual property that led these government actors to intervene against the South African response to AIDS. @@ -12304,7 +12624,7 @@ Now just step back for a moment. There will be a time thirty years from now when our children look back at us and ask, how could we have let this happen? How could we allow a policy to be pursued whose direct cost would be to speed the death of 15 to 30 million Africans, -and whose only real benefit would be to uphold the "sanctity" of an +and whose only real benefit would be to uphold the sanctity of an idea? What possible justification could there ever be for a policy that results in so many deaths? What exactly is the insanity that would allow so many to die for such an abstraction? @@ -12328,17 +12648,17 @@ problems of technology. They could be overcome. A different problem, however, could not be overcome. This is the fear of the grandstanding politician who would call the presidents of -the drug companies before a Senate or House hearing, and ask, "How +the drug companies before a Senate or House hearing, and ask, How is it you can sell this HIV drug in Africa for only $1 a pill, but the same -drug would cost an American $1,500?" Because there is no "sound -bite" answer to that question, its effect would be to induce regulation +drug would cost an American $1,500? Because there is no sound +bite answer to that question, its effect would be to induce regulation of prices in America. The drug companies thus avoid this spiral by avoiding the first step. They reinforce the idea that property should be sacred. They adopt a rational strategy in an irrational context, with the unintended consequence that perhaps millions die. And that rational strategy thus becomes framed in terms of this ideal—the sanctity of an -idea called "intellectual property." +idea called intellectual property. So when the common sense of your child confronts you, what will @@ -12364,8 +12684,13 @@ critical eye that helps us see the difference between truth and extremism. A certain property fundamentalism, having no connection to our tradition, now reigns in this culture—bizarrely, and with consequences more grave to the spread of ideas and culture than almost -any other single policy decision that we as a democracy will make. A -simple idea blinds us, and under the cover of darkness, much happens +any other single policy decision that we as a democracy will make. + + + + + +A simple idea blinds us, and under the cover of darkness, much happens that most of us would reject if any of us looked. So uncritically do we accept the idea of property in ideas that we don't even notice how monstrous it is to deny ideas to a people who are dying without @@ -12383,32 +12708,36 @@ So far, common sense sleeps. There is no revolt. Common sense does not yet see what there could be to revolt about. The extremism that now dominates this debate fits with ideas that seem natural, and that fit is reinforced by the RCAs of our day. They wage a frantic war -to fight "piracy," and devastate a culture for creativity. They defend -the idea of "creative property," while transforming real creators into +to fight piracy, and devastate a culture for creativity. They defend +the idea of creative property, while transforming real creators into modern-day sharecroppers. They are insulted by the idea that rights should be balanced, even though each of the major players in this content war was itself a beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans -produce the "perfect storm" for free culture. +produce the perfect storm for free culture. +Reagan, Ronald + + biomedical research + In August 2003, a fight broke out in the United States about a decision by the World Intellectual Property Organization to cancel a meeting. - Jonathan Krim, "The Quiet War over Open-Source," Washington Post, + Jonathan Krim, The Quiet War over Open-Source, Washington Post, August 2003, E1, available at -link #59; William New, "Global Group's -Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology -Daily, 19 August 2003, available at -link #60; William New, "U.S. Official -Opposes `Open Source' Talks at WIPO," National Journal's Technology -Daily, 19 August 2003, available at +link #59; William New, Global Group's +Shift on `Open Source' Meeting Spurs Stir, National Journal's Technology +Daily, 19 August 2003, available at +link #60; William New, U.S. Official +Opposes `Open Source' Talks at WIPO, National Journal's Technology +Daily, 19 August 2003, available at link #61. At the request of a wide range of interests, WIPO had decided to hold -a meeting to discuss "open and collaborative projects to create public -goods." These are projects that have been successful in producing +a meeting to discuss open and collaborative projects to create public +goods. These are projects that have been successful in producing public goods without relying exclusively upon a proprietary use of intellectual property. Examples include the Internet and the World Wide Web, both of which were developed on the basis of protocols in @@ -12423,9 +12752,12 @@ technological companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free -in the early 1980s. And it included "open source and free software." +in the early 1980s. And it included open source and free software. +academic journals +IBM PLoS (Public Library of Science) + The aim of the meeting was to consider this wide range of projects from one common perspective: that none of these projects relied upon @@ -12458,7 +12790,7 @@ questions were the exclusive domain of WIPO. In the talk that I had prepared, I had actually made the issue of intellectual property relatively minor. But after this astonishing statement, I made intellectual property the sole focus of my talk. There was no way to -talk about an "Information Society" unless one also talked about the +talk about an Information Society unless one also talked about the range of information and culture that would be free. My talk did not make my immoderate moderator very happy. And she was no doubt correct that the scope of intellectual property protections was ordinarily the @@ -12471,19 +12803,19 @@ very idea of balance in intellectual property had been lost. So whether or not WSIS can discuss balance in intellectual property, I had thought it was taken for granted that WIPO could and should. And -thus the meeting about "open and collaborative projects to create -public goods" seemed perfectly appropriate within the WIPO agenda. +thus the meeting about open and collaborative projects to create +public goods seemed perfectly appropriate within the WIPO agenda. But there is one project within that list that is highly -controversial, at least among lobbyists. That project is "open source -and free software." Microsoft in particular is wary of discussion of +controversial, at least among lobbyists. That project is open source +and free software. Microsoft in particular is wary of discussion of the subject. From its perspective, a conference to discuss open source and free software would be like a conference to discuss Apple's operating system. Both open source and free software compete with Microsoft's software. And internationally, many governments have begun to explore requirements that they use open source or free software, -rather than "proprietary software," for their own internal uses. +rather than proprietary software, for their own internal uses. I don't mean to enter that debate here. It is important only to @@ -12491,32 +12823,36 @@ make clear that the distinction is not between commercial and noncommercial software. There are many important companies that depend fundamentally upon open source and free software, IBM being the most prominent. IBM is increasingly shifting its focus to the GNU/Linux -operating system, the most famous bit of "free software"—and IBM -is emphatically a commercial entity. Thus, to support "open source and -free software" is not to oppose commercial entities. It is, instead, +operating system, the most famous bit of free software—and IBM +is emphatically a commercial entity. Thus, to support open source and +free software is not to oppose commercial entities. It is, instead, to support a mode of software development that is different from Microsoft's. Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with -"open source" software or software in the public domain. Microsoft's -principal opposition is to "free software" licensed under a "copyleft" +open source software or software in the public domain. Microsoft's +principal opposition is to free software licensed under a copyleft license, meaning a license that requires the licensee to adopt the -same terms on any derivative work. See Bradford L. Smith, "The Future -of Software: Enabling the Marketplace to Decide," Government Policy -Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint +same terms on any derivative work. See Bradford L. Smith, The Future +of Software: Enabling the Marketplace to Decide, Government Policy +Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, American Enterprise Institute for Public Policy Research, 2002), 69, available at link #62. See also -Craig Mundie, Microsoft senior vice president, The Commercial Software -Model, discussion at New York University Stern School of Business (3 +Craig Mundie, Microsoft senior vice president, The Commercial Software +Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. +IBM +copyleft licenses +GNU/Linux operating system +Linux operating system -More important for our purposes, to support "open source and free -software" is not to oppose copyright. "Open source and free software" +More important for our purposes, to support open source and free +software is not to oppose copyright. Open source and free software is not software in the public domain. Instead, like Microsoft's software, the copyright owners of free and open source software insist quite strongly that the terms of their software license be respected @@ -12538,13 +12874,14 @@ developer, Microsoft would oppose this WIPO meeting, and understandable that it would use its lobbyists to get the United States government to oppose it, as well. And indeed, that is just what was reported to have happened. According to Jonathan Krim of the -Washington Post, Microsoft's lobbyists succeeded in getting the United +Washington Post, Microsoft's lobbyists succeeded in getting the United States government to veto the meeting. -Krim, "The Quiet War over Open-Source," available at The Quiet War over Open-Source, available at link #64. And without U.S. backing, the meeting was canceled. +Krim, Jonathan I don't blame Microsoft for doing what it can to advance its own @@ -12558,11 +12895,11 @@ its lobbying efforts. What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting director of international relations for the U.S. Patent and Trademark -Office, explained that "open-source software runs counter to the -mission of WIPO, which is to promote intellectual-property rights." -She is quoted as saying, "To hold a meeting which has as its purpose +Office, explained that open-source software runs counter to the +mission of WIPO, which is to promote intellectual-property rights. +She is quoted as saying, To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the -goals of WIPO." +goals of WIPO. These statements are astonishing on a number of levels. @@ -12571,15 +12908,15 @@ These statements are astonishing on a number of levels. First, they are just flat wrong. As I described, most open source and free software relies fundamentally upon the intellectual property -right called "copyright". Without it, restrictions imposed by those -licenses wouldn't work. Thus, to say it "runs counter" to the mission +right called copyright. Without it, restrictions imposed by those +licenses wouldn't work. Thus, to say it runs counter to the mission of promoting intellectual property rights reveals an extraordinary gap in understanding—the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues. -Second, who ever said that WIPO's exclusive aim was to "promote" +Second, who ever said that WIPO's exclusive aim was to promote intellectual property maximally? As I had been scolded at the preparatory conference of WSIS, WIPO is to consider not only how best to protect intellectual property, but also what the best balance of @@ -12595,30 +12932,31 @@ been better if the protocols of the Internet had been patented? Third, even if one believed that the purpose of WIPO was to maximize intellectual property rights, in our tradition, intellectual property rights are held by individuals and corporations. They get to decide -what to do with those rights because, again, they are their rights. If -they want to "waive" or "disclaim" their rights, that is, within our -tradition, totally appropriate. When Bill Gates gives away more than -$20 billion to do good in the world, that is not inconsistent with the -objectives of the property system. That is, on the contrary, just what -a property system is supposed to be about: giving individuals the -right to decide what to do with their property. +what to do with those rights because, again, they are +their rights. If they want to waive or +disclaim their rights, that is, within our tradition, totally +appropriate. When Bill Gates gives away more than $20 billion to do +good in the world, that is not inconsistent with the objectives of the +property system. That is, on the contrary, just what a property system +is supposed to be about: giving individuals the right to decide what +to do with their property. Gates, Bill When Ms. Boland says that there is something wrong with a meeting -"which has as its purpose to disclaim or waive such rights," she's +which has as its purpose to disclaim or waive such rights, she's saying that WIPO has an interest in interfering with the choices of the individuals who own intellectual property rights. That somehow, -WIPO's objective should be to stop an individual from "waiving" or -"disclaiming" an intellectual property right. That the interest of +WIPO's objective should be to stop an individual from waiving or +disclaiming an intellectual property right. That the interest of WIPO is not just that intellectual property rights be maximized, but that they also should be exercised in the most extreme and restrictive way possible. There is a history of just such a property system that is well known -in the Anglo-American tradition. It is called "feudalism." Under +in the Anglo-American tradition. It is called feudalism. Under feudalism, not only was property held by a relatively small number of individuals and entities. And not only were the rights that ran with that property powerful and extensive. But the feudal system had a @@ -12634,12 +12972,13 @@ that control. As Peter Drahos and John Braithwaite relate, this is precisely the choice we are now making about intellectual property. -See Drahos with Braithwaite, Information Feudalism, 210–20. +See Drahos with Braithwaite, Information Feudalism, 210–20. Drahos, Peter We will have an information society. That much is certain. Our only -choice now is whether that information society will be free or -feudal. The trend is toward the feudal. +choice now is whether that information society will be +free or feudal. The trend is +toward the feudal. When this battle broke, I blogged it. A spirited debate within the @@ -12650,9 +12989,9 @@ that was particularly depressing for me. An anonymous poster wrote,
George, you misunderstand Lessig: He's only talking about the world as -it should be ("the goal of WIPO, and the goal of any government, +it should be (the goal of WIPO, and the goal of any government, should be to promote the right balance of intellectual property rights, -not simply to promote intellectual property rights"), not as it is. If +not simply to promote intellectual property rights), not as it is. If we were talking about the world as it is, then of course Boland didn't say anything wrong. But in the world @@ -12673,10 +13012,10 @@ whether our government should speak the truth or not.) Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the -"goal" of a government should be "to promote the right balance" of +goal of a government should be to promote the right balance of intellectual property. That was obviously silly to him. And it -obviously betrayed, he believed, my own silly utopianism. "Typical for -an academic," the poster might well have continued. +obviously betrayed, he believed, my own silly utopianism. Typical for +an academic, the poster might well have continued. I understand criticism of academic utopianism. I think utopianism is @@ -12686,7 +13025,7 @@ our own country's history). But when it has become silly to suppose that the role of our -government should be to "seek balance," then count me with the silly, +government should be to seek balance, then count me with the silly, for that means that this has become quite serious indeed. If it should be obvious to everyone that the government does not seek balance, that the government is simply the tool of the most powerful lobbyists, that @@ -12747,16 +13086,16 @@ form—that makes their bigness bad. It is therefore significant that so many would rally to demand competition and increased diversity. Still, if the rally is understood as being about bigness alone, it is not terribly surprising. We -Americans have a long history of fighting "big," wisely or not. That -we could be motivated to fight "big" again is not something new. +Americans have a long history of fighting big, wisely or not. That +we could be motivated to fight big again is not something new. It would be something new, and something very important, if an equal number could be rallied to fight the increasing extremism built within -the idea of "intellectual property." Not because balance is alien to +the idea of intellectual property. Not because balance is alien to our tradition; indeed, as I've argued, balance is our tradition. But because the muscle to think critically about the scope of anything -called "property" is not well exercised within this tradition anymore. +called property is not well exercised within this tradition anymore. If we were Achilles, this would be our heel. This would be the place @@ -12767,42 +13106,42 @@ of our tragedy. As I write these final words, the news is filled with stories about the RIAA lawsuits against almost three hundred individuals. -John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September +John Borland, RIAA Sues 261 File Swappers, CNET News.com, September 2003, available at link #65; Paul -R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September +R. La Monica, Music Industry Sues Swappers, CNN/Money, 8 September 2003, available at link #66; Soni -Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song, -N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9 -September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised +Sangha and Phyllis Furman with Robert Gearty, Sued for a Song, +N.Y.C. 12-Yr-Old Among 261 Cited as Sharers, New York Daily News, 9 +September 2003, 3; Frank Ahrens, RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among -Defendants," Washington Post, 10 September 2003, E1; Katie Dean, -"Schoolgirl Settles with RIAA," Wired News, 10 September 2003, +Defendants, Washington Post, 10 September 2003, E1; Katie Dean, +Schoolgirl Settles with RIAA, Wired News, 10 September 2003, available at link #67. -Eminem has just been sued for "sampling" someone else's +Eminem has just been sued for sampling someone else's music. -Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," +Jon Wiederhorn, Eminem Gets Sued … by a Little Old Lady, mtv.com, 17 September 2003, available at link #68. -The story about Bob Dylan "stealing" from a Japanese author has just +The story about Bob Dylan stealing from a Japanese author has just finished making the rounds. -Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for -Dylan Songs," Kansascity.com, 9 July 2003, available at +Kenji Hall, Associated Press, Japanese Book May Be Inspiration for +Dylan Songs, Kansascity.com, 9 July 2003, available at link #69. An insider from Hollywood—who insists he must remain -anonymous—reports "an amazing conversation with these studio +anonymous—reports an amazing conversation with these studio guys. They've got extraordinary [old] content that they'd love to use but can't because they can't begin to clear the rights. They've got scores of kids who could do amazing things with the content, but it -would take scores of lawyers to clean it first." Congressmen are +would take scores of lawyers to clean it first. Congressmen are talking about deputizing computer viruses to bring down computers thought to violate the law. Universities are threatening expulsion for kids who use a computer to share content. @@ -12811,11 +13150,13 @@ kids who use a computer to share content. Causby, Tinie Creative Commons Gil, Gilberto +BBC +Brazil, free culture in Yet on the other side of the Atlantic, the BBC has just announced -that it will build a "Creative Archive," from which British citizens can +that it will build a Creative Archive, from which British citizens can download BBC content, and rip, mix, and burn it. - "BBC Plans to Open Up Its Archive to the Public," BBC press release, + BBC Plans to Open Up Its Archive to the Public, BBC press release, 24 August 2003, available at link #70. @@ -12824,7 +13165,7 @@ of Brazilian music, has joined with Creative Commons to release content and free licenses in that Latin American country. -"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003, +Creative Commons and Brazil, Creative Commons Weblog, 6 August 2003, available at link #71. @@ -12845,7 +13186,7 @@ potential is ever to be realized. - + AFTERWORD @@ -12876,7 +13217,7 @@ sketch changes that Congress could make to better secure a free culture. - +
US, NOW Common sense is with the copyright warriors because the debate so far @@ -12887,23 +13228,23 @@ that really is the choice, then the warriors should win. The mistake here is the error of the excluded middle. There are extremes in this debate, but the extremes are not all that there -is. There are those who believe in maximal copyright—"All Rights -Reserved"— and those who reject copyright—"No Rights -Reserved." The "All Rights Reserved" sorts believe that you should ask -permission before you "use" a copyrighted work in any way. The "No -Rights Reserved" sorts believe you should be able to do with content +is. There are those who believe in maximal copyright—All Rights +Reserved— and those who reject copyright—No Rights +Reserved. The All Rights Reserved sorts believe that you should ask +permission before you use a copyrighted work in any way. The No +Rights Reserved sorts believe you should be able to do with content as you wish, regardless of whether you have permission or not. When the Internet was first born, its initial architecture effectively -tilted in the "no rights reserved" direction. Content could be copied +tilted in the no rights reserved direction. Content could be copied perfectly and cheaply; rights could not easily be controlled. Thus, regardless of anyone's desire, the effective regime of copyright under the -original design of the Internet was "no rights reserved." Content was -"taken" regardless of the rights. Any rights were effectively +original design of the Internet was no rights reserved. Content was +taken regardless of the rights. Any rights were effectively unprotected. @@ -12912,24 +13253,24 @@ equal) by copyright owners. That reaction has been the topic of this book. Through legislation, litigation, and changes to the network's design, copyright holders have been able to change the essential character of the environment of the original Internet. If the original -architecture made the effective default "no rights reserved," the -future architecture will make the effective default "all rights -reserved." The architecture and law that surround the Internet's +architecture made the effective default no rights reserved, the +future architecture will make the effective default all rights +reserved. The architecture and law that surround the Internet's design will increasingly produce an environment where all use of -content requires permission. The "cut and paste" world that defines -the Internet today will become a "get permission to cut and paste" +content requires permission. The cut and paste world that defines +the Internet today will become a get permission to cut and paste world that is a creator's nightmare. What's needed is a way to say something in the middle—neither -"all rights reserved" nor "no rights reserved" but "some rights -reserved"— and thus a way to respect copyrights but enable +all rights reserved nor no rights reserved but some rights +reserved— and thus a way to respect copyrights but enable creators to free content as they see fit. In other words, we need a way to restore a set of freedoms that we could just take for granted before. - +
Rebuilding Freedoms Previously Presumed: Examples If you step back from the battle I've been describing here, you will @@ -12938,7 +13279,7 @@ privacy. Before the Internet, most of us didn't have to worry much about data about our lives that we broadcast to the world. If you walked into a bookstore and browsed through some of the works of Karl Marx, you didn't need to worry about explaining your browsing habits -to your neighbors or boss. The "privacy" of your browsing habits was +to your neighbors or boss. The privacy of your browsing habits was assured. @@ -12947,8 +13288,9 @@ What made it assured? Well, if we think in terms of the modalities I described in chapter -10, your privacy was assured because of an inefficient architecture -for gathering data and hence a market constraint (cost) on anyone who +, your +privacy was assured because of an inefficient architecture for +gathering data and hence a market constraint (cost) on anyone who wanted to gather that data. If you were a suspected spy for North Korea, working for the CIA, no doubt your privacy would not be assured. But that's because the CIA would (we hope) find it valuable @@ -12956,7 +13298,7 @@ enough to spend the thousands required to track you. But for most of us (again, we can hope), spying doesn't pay. The highly inefficient architecture of real space means we all enjoy a fairly robust amount of privacy. That privacy is guaranteed to us by friction. Not by law -(there is no law protecting "privacy" in public places), and in many +(there is no law protecting privacy in public places), and in many places, not by norms (snooping and gossip are just fun), but instead, by the costs that friction imposes on anyone who would want to spy. @@ -12966,15 +13308,16 @@ Enter the Internet, where the cost of tracking browsing in particular has become quite tiny. If you're a customer at Amazon, then as you browse the pages, Amazon collects the data about what you've looked at. You know this because at the side of the page, there's a list of -"recently viewed" pages. Now, because of the architecture of the Net +recently viewed pages. Now, because of the architecture of the Net and the function of cookies on the Net, it is easier to collect the -data than not. The friction has disappeared, and hence any "privacy" +data than not. The friction has disappeared, and hence any privacy protected by the friction disappears, too. +cookies, Internet Amazon, of course, is not the problem. But we might begin to worry about libraries. If you're one of those crazy lefties who thinks that -people should have the "right" to browse in a library without the +people should have the right to browse in a library without the government knowing which books you look at (I'm one of those lefties, too), then this change in the technology of monitoring might concern you. If it becomes simple to gather and sort who does what in @@ -12982,20 +13325,20 @@ electronic spaces, then the friction-induced privacy of yesterday disappears. -It is this reality that explains the push of many to define "privacy" +It is this reality that explains the push of many to define privacy on the Internet. It is the recognition that technology can remove what friction before gave us that leads many to push for laws to do what friction did. -See, for example, Marc Rotenberg, "Fair Information Practices and the -Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology -Law Review 1 (2001): par. 6–18, available at +See, for example, Marc Rotenberg, Fair Information Practices and the +Architecture of Privacy (What Larry Doesn't Get), Stanford Technology +Law Review 1 (2001): par. 6–18, available at link #72 (describing examples in which technology defines privacy policy). See -also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom -in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs +also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom +in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs between technology and privacy). And whether you're in favor of those laws or not, it is the pattern that is important here. We must take affirmative steps to secure a @@ -13012,6 +13355,7 @@ commercially, the software—both the source code and the binaries— was free. You couldn't run a program written for a Data General machine on an IBM machine, so Data General and IBM didn't care much about controlling their software. +IBM Stallman, Richard @@ -13055,8 +13399,10 @@ fundamentally weakened. Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That -was the birth of the GNU project, into which Linus Torvalds's "Linux" +was the birth of the GNU project, into which Linus Torvalds's Linux kernel was added to produce the GNU/Linux operating system. +GNU/Linux operating system +Linux operating system Stallman's technique was to use copyright law to build a world of @@ -13082,6 +13428,9 @@ Finally, consider a very recent example that more directly resonates with the story of this book. This is the shift in the way academic and scientific journals are produced. + + academic journals + As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13155,9 +13504,10 @@ distribution of content. But competition in our tradition is presumptively a good—especially when it helps spread knowledge and science. + - - +
+
Rebuilding Free Culture: One Idea Creative Commons @@ -13169,28 +13519,29 @@ increasing control effected through law and technology. Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at -Stanford University. Its aim is to build a layer of reasonable -copyright on top of the extremes that now reign. It does this by -making it easy for people to build upon other people's work, by making -it simple for creators to express the freedom for others to take and -build upon their work. Simple tags, tied to human-readable -descriptions, tied to bulletproof licenses, make this possible. - - -Simple—which means without a middleman, or without a lawyer. By -developing a free set of licenses that people can attach to their -content, Creative Commons aims to mark a range of content that can -easily, and reliably, be built upon. These tags are then linked to -machine-readable versions of the license that enable computers -automatically to identify content that can easily be shared. These -three expressions together—a legal license, a human-readable -description, and +Stanford University. Its aim is to build a layer of +reasonable copyright on top of the extremes that +now reign. It does this by making it easy for people to build upon +other people's work, by making it simple for creators to express the +freedom for others to take and build upon their work. Simple tags, +tied to human-readable descriptions, tied to bulletproof licenses, +make this possible. + + +Simple—which means without a middleman, or +without a lawyer. By developing a free set of licenses that people +can attach to their content, Creative Commons aims to mark a range of +content that can easily, and reliably, be built upon. These tags are +then linked to machine-readable versions of the license that enable +computers automatically to identify content that can easily be +shared. These three expressions together—a legal license, a +human-readable description, and machine-readable tags—constitute a Creative Commons license. A Creative Commons license constitutes a grant of freedom to anyone who accesses the license, and more importantly, an expression of the ideal that the person associated with the license believes in something -different than the "All" or "No" extremes. Content is marked with the +different than the All or No extremes. Content is marked with the CC mark, which does not mean that copyright is waived, but that certain freedoms are given. @@ -13200,8 +13551,8 @@ precise contours depend upon the choices the creator makes. The creator can choose a license that permits any use, so long as attribution is given. She can choose a license that permits only noncommercial use. She can choose a license that permits any use so -long as the same freedoms are given to other uses ("share and share -alike"). Or any use so long as no derivative use is made. Or any use +long as the same freedoms are given to other uses (share and share +alike). Or any use so long as no derivative use is made. Or any use at all within developing nations. Or any sampling use, so long as full copies are not made. Or lastly, any educational use. @@ -13224,13 +13575,13 @@ many is that we are not interested only in talking about a public domain or in getting legislators to help build a public domain. Our aim is to build a movement of consumers and producers -of content ("content conducers," as attorney Mia Garlick calls them) +of content (content conducers, as attorney Mia Garlick calls them) who help build the public domain and, by their work, demonstrate the importance of the public domain to other creativity. Garlick, Mia -The aim is not to fight the "All Rights Reserved" sorts. The aim is to +The aim is not to fight the All Rights Reserved sorts. The aim is to complement them. The problems that the law creates for us as a culture are produced by insane and unintended consequences of laws written centuries ago, applied to a technology that only Jefferson could have @@ -13244,8 +13595,8 @@ to begin to build those rules. Why would creators participate in giving up total control? Some participate to better spread their content. Cory Doctorow, for -example, is a science fiction author. His first novel, Down and Out in -the Magic Kingdom, was released on-line and for free, under a Creative +example, is a science fiction author. His first novel, Down and Out in +the Magic Kingdom, was released on-line and for free, under a Creative Commons license, on the same day that it went on sale in bookstores. @@ -13257,8 +13608,8 @@ available for free on the Internet. Some part of (1) will download Cory's book instead of buying it. Call them bad-(1)s. Some part of (2) will download Cory's book, like it, and then decide to buy it. Call them (2)-goods. If there are more (2)-goods than bad-(1)s, the -strategy of releasing Cory's book free on-line will probably increase -sales of Cory's book. +strategy of releasing Cory's book free on-line will probably +increase sales of Cory's book. Indeed, the experience of his publisher clearly supports that @@ -13270,47 +13621,52 @@ was a total success. The idea that free content might increase the value of nonfree content was confirmed by the experience of another author. Peter Wayner, -who wrote a book about the free software movement titled Free for All, +who wrote a book about the free software movement titled Free for All, made an electronic version of his book free on-line under a Creative Commons license after the book went out of print. He then monitored used book store prices for the book. As predicted, as the number of downloads increased, the used book price for his book increased, as well. - - -These are examples of using the Commons to better spread -proprietary content. I believe that is a wonderful and common use of -the Commons. There are others who use Creative Commons licenses for -other reasons. Many who use the "sampling license" do so because -anything else would be hypocritical. The sampling license says that -others are free, for commercial or noncommercial purposes, to sample -content from the licensed work; they are just not free to make full -copies of the licensed work available to others. This is consistent -with their own art—they, too, sample from others. Because the -legal costs of sampling are so high (Walter Leaphart, manager of the -rap group Public Enemy, which was born sampling the music of others, -has stated that he does not "allow" Public Enemy to sample anymore, -because the legal costs are so high +Free for All (Wayner) +Wayner, Peter + +Public Enemy +rap music + +These are examples of using the Commons to better spread proprietary +content. I believe that is a wonderful and common use of the +Commons. There are others who use Creative Commons licenses for other +reasons. Many who use the sampling license do so because anything +else would be hypocritical. The sampling license says that others are +free, for commercial or noncommercial purposes, to sample content from +the licensed work; they are just not free to make full copies of the +licensed work available to others. This is consistent with their own +art—they, too, sample from others. Because the +legal costs of sampling are so high (Walter +Leaphart, manager of the rap group Public Enemy, which was born +sampling the music of others, has stated that he does not allow +Public Enemy to sample anymore, because the legal costs are so +high - -Willful Infringement: A Report from the Front Lines of the Real -Culture Wars (2003), produced by Jed Horovitz, directed by Greg +Willful Infringement: A Report from the Front Lines of the Real +Culture Wars (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre production, available at link #72. ), these artists release into the creative environment content that others can build upon, so that their form of creativity might grow. +Leaphart, Walter Finally, there are many who mark their content with a Creative Commons license just because they want to express to others the importance of balance in this debate. If you just go along with the system as it is, -you are effectively saying you believe in the "All Rights Reserved" +you are effectively saying you believe in the All Rights Reserved model. Good for you, but many do not. Many believe that however appropriate that rule is for Hollywood and freaks, it is not an appropriate description of how most creators view the rights associated with their content. The Creative Commons license expresses -this notion of "Some Rights Reserved," and gives many the chance to +this notion of Some Rights Reserved, and gives many the chance to say it to others. @@ -13343,9 +13699,9 @@ creativity to spread more easily. - - - +
+
+
THEM, SOON We will not reclaim a free culture by individual action alone. It will @@ -13361,7 +13717,7 @@ is a step, not an end. But any of these steps would carry us a long way to our end. - +
1. More Formalities If you buy a house, you have to record the sale in a deed. If you buy land @@ -13379,14 +13735,15 @@ protected. In contrast, under current copyright law, you automatically get a copyright, regardless of whether you comply with any formality. You don't have to register. You don't even have to mark your content. The -default is control, and "formalities" are banished. +default is control, and formalities are banished. Why? -As I suggested in chapter 10, the motivation to abolish formalities -was a good one. In the world before digital technologies, formalities +As I suggested in chapter , the motivation to abolish formalities was a +good one. In the world before digital technologies, formalities imposed a burden on copyright holders without much benefit. Thus, it was progress when the law relaxed the formal requirements that a copyright owner must bear to protect and secure his work. Those @@ -13401,8 +13758,8 @@ creative work of others. There are no records, there is no system to trace— there is no simple way to know how to get permission. Yet given the massive increase in the scope of copyright's rule, getting permission is a necessary step for any work that builds upon our -past. And thus, the lack of formalities forces many into silence where -they otherwise could speak. +past. And thus, the lack of formalities forces +many into silence where they otherwise could speak. The law should therefore change this requirement @@ -13426,7 +13783,7 @@ developed by others. - +
REGISTRATION AND RENEWAL Under the old system, a copyright owner had to file a registration @@ -13474,8 +13831,8 @@ formality—while producing a database of registrations that would facilitate the licensing of content. - - +
+
MARKING It used to be that the failure to include a copyright notice on a @@ -13515,8 +13872,8 @@ There would be a complication with derivative works that I have not solved here. In my view, the law of derivatives creates a more complicated system than is justified by the marginal incentive it creates. -The meaning of an unmarked work would therefore be "use unless someone -complains." If someone does complain, then the obligation would be to +The meaning of an unmarked work would therefore be use unless someone +complains. If someone does complain, then the obligation would be to stop using the work in any new work from then on though no penalty would attach for existing uses. @@ -13535,11 +13892,12 @@ For example, if a recording industry association devises a method for marking CDs, it would propose that to the Copyright Office. The Copyright Office would hold a hearing, at which other proposals could be made. The Copyright Office would then select the proposal that it -judged preferable, and it would base that choice solely upon the -consideration of which method could best be integrated into the -registration and renewal system. We would not count on the government -to innovate; but we would count on the government to keep the product -of innovation in line with its other important functions. +judged preferable, and it would base that choice +solely upon the consideration of which method +could best be integrated into the registration and renewal system. We +would not count on the government to innovate; but we would count on +the government to keep the product of innovation in line with its +other important functions. Finally, marking content clearly would simplify registration @@ -13564,9 +13922,9 @@ that assertion at the appropriate time. - - - +
+
+
2. Shorter Terms The term of copyright has gone from fourteen years to ninety-five @@ -13574,14 +13932,15 @@ years for corporate authors, and life of the author plus seventy years for natural authors. -In The Future of Ideas, I proposed a seventy-five-year term, granted -in five-year increments with a requirement of renewal every five -years. That seemed radical enough at the time. But after we lost -Eldred v. Ashcroft, the proposals became even more radical. The -Economist endorsed a proposal for a fourteen-year copyright -term. +In The Future of Ideas, I proposed a seventy-five-year term, +granted in five-year increments with a requirement of renewal every +five years. That seemed radical enough at the time. But after we lost +Eldred v. Ashcroft, the proposals became even more +radical. The Economist endorsed a proposal for a fourteen-year +copyright term. + -"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, +A Radical Rethink, Economist, 366:8308 (25 January 2003): 15, available at link #74. @@ -13596,33 +13955,35 @@ terms. -Keep it short: The term should be as long as necessary to give -incentives to create, but no longer. If it were tied to very strong -protections for authors (so authors were able to reclaim rights from -publishers), rights to the same work (not derivative works) might be -extended further. The key is not to tie the work up with legal -regulations when it no longer benefits an author. +Keep it short: The term should be as long as +necessary to give incentives to create, but no longer. If it were tied +to very strong protections for authors (so authors were able to +reclaim rights from publishers), rights to the same work (not +derivative works) might be extended further. The key is not to tie the +work up with legal regulations when it no longer benefits an author. + -Keep it simple: The line between the public domain and protected -content must be kept clear. Lawyers like the fuzziness of "fair use," -and the distinction between "ideas" and "expression." That kind of -law gives them lots of work. But our framers had a simpler idea in -mind: protected versus unprotected. The value of short terms is that -there is little need to build exceptions into copyright when the term -itself is kept short. A clear and active "lawyer-free zone" makes the -complexities of "fair use" and "idea/expression" less necessary to -navigate. +Keep it simple: The line between the public +domain and protected content must be kept clear. Lawyers like the +fuzziness of fair use, and the distinction between ideas and +expression. That kind of law gives them lots of work. But our +framers had a simpler idea in mind: protected versus unprotected. The +value of short terms is that there is little need to build exceptions +into copyright when the term itself is kept short. A clear and active +lawyer-free zone makes the complexities of fair use and +idea/expression less necessary to navigate. -Keep it alive: Copyright should have to be renewed. Especially if the -maximum term is long, the copyright owner should be required to signal -periodically that he wants the protection continued. This need not be -an onerous burden, but there is no reason this monopoly protection has -to be granted for free. On average, it takes ninety minutes for a -veteran to apply for a pension. +Keep it alive: Copyright should have to be +renewed. Especially if the maximum term is long, the copyright owner +should be required to signal periodically that he wants the protection +continued. This need not be an onerous burden, but there is no reason +this monopoly protection has to be granted for free. On average, it +takes ninety minutes for a veteran to apply for a +pension. Department of Veterans Affairs, Veteran's Application for Compensation and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), @@ -13636,37 +13997,44 @@ single form. -Keep it prospective: Whatever the term of copyright should be, the -clearest lesson that economists teach is that a term once given should -not be extended. It might have been a mistake in 1923 for the law to -offer authors only a fifty-six-year term. I don't think so, but it's -possible. If it was a mistake, then the consequence was that we got -fewer authors to create in 1923 than we otherwise would have. But we -can't correct that mistake today by increasing the term. No matter -what we do today, we will not increase the number of authors who wrote -in 1923. Of course, we can increase the reward that those who write -now get (or alternatively, increase the copyright burden that smothers -many works that are today invisible). But increasing their reward will -not increase their creativity in 1923. What's not done is not done, -and there's nothing we can do about that now. +Keep it prospective: Whatever the term of +copyright should be, the clearest lesson that economists teach is that +a term once given should not be extended. It might have been a mistake +in 1923 for the law to offer authors only a fifty-six-year term. I +don't think so, but it's possible. If it was a mistake, then the +consequence was that we got fewer authors to create in 1923 than we +otherwise would have. But we can't correct that mistake today by +increasing the term. No matter what we do today, we will not increase +the number of authors who wrote in 1923. Of course, we can increase +the reward that those who write now get (or alternatively, increase +the copyright burden that smothers many works that are today +invisible). But increasing their reward will not increase their +creativity in 1923. What's not done is not done, and there's nothing +we can do about that now. -These changes together should produce an average copyright term -that is much shorter than the current term. Until 1976, the average -term was just 32.2 years. We should be aiming for the same. +These changes together should produce an average +copyright term that is much shorter than the current term. Until 1976, +the average term was just 32.2 years. We should be aiming for the +same. -No doubt the extremists will call these ideas "radical." (After all, I -call them "extremists.") But again, the term I recommended was longer -than the term under Richard Nixon. How "radical" can it be to ask for +No doubt the extremists will call these ideas radical. (After all, I +call them extremists.) But again, the term I recommended was longer +than the term under Richard Nixon. How radical can it be to ask for a more generous copyright law than Richard Nixon presided over? - - +
+
3. Free Use Vs. Fair Use +land ownership, air traffic and + + property rights + air traffic vs. + As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the @@ -13676,25 +14044,26 @@ challenge. It made no sense anymore to grant that much control, given the emergence of that new technology. -Our Constitution gives Congress the power to give authors "exclusive -right" to "their writings." Congress has given authors an exclusive -right to "their writings" plus any derivative writings (made by +Our Constitution gives Congress the power to give authors exclusive +right to their writings. Congress has given authors an exclusive +right to their writings plus any derivative writings (made by others) that are sufficiently close to the author's original work. Thus, if I write a book, and you base a movie on that book, I have the power to deny you the right to release that movie, even -though that movie is not "my writing." +though that movie is not my writing. Congress granted the beginnings of this right in 1870, when it expanded the exclusive right of copyright to include a right to control translations and dramatizations of a work. -Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia +Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967), 32. The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law's greatest judges, Judge Benjamin Kaplan. +Kaplan, Benjamin
@@ -13714,8 +14083,9 @@ a copyright runs. And they don't make sense as an amorphous grant. Consider each limitation in turn. -Term: If Congress wants to grant a derivative right, then that right -should be for a much shorter term. It makes sense to protect John +Term: If Congress wants to grant a derivative +right, then that right should be for a much shorter term. It makes +sense to protect John Grisham's right to sell the movie rights to his latest novel (or at least @@ -13726,17 +14096,19 @@ after the creative work is done. Grisham, John -Scope: Likewise should the scope of derivative rights be narrowed. -Again, there are some cases in which derivative rights are important. -Those should be specified. But the law should draw clear lines around -regulated and unregulated uses of copyrighted material. When all -"reuse" of creative material was within the control of businesses, -perhaps it made sense to require lawyers to negotiate the lines. It no -longer makes sense for lawyers to negotiate the lines. Think about all -the creative possibilities that digital technologies enable; now -imagine pouring molasses into the machines. That's what this general -requirement of permission does to the creative process. Smothers it. +Scope: Likewise should the scope of derivative +rights be narrowed. Again, there are some cases in which derivative +rights are important. Those should be specified. But the law should +draw clear lines around regulated and unregulated uses of copyrighted +material. When all reuse of creative material was within the control +of businesses, perhaps it made sense to require lawyers to negotiate +the lines. It no longer makes sense for lawyers to negotiate the +lines. Think about all the creative possibilities that digital +technologies enable; now imagine pouring molasses into the +machines. That's what this general requirement of permission does to +the creative process. Smothers it. +Alben, Alex This was the point that Alben made when describing the making of the Clint Eastwood CD. While it makes sense to require negotiation for @@ -13752,8 +14124,8 @@ protected. This is the reverse of the recommendation of my colleague Paul Goldstein. -Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial -Jukebox (Stanford: Stanford University Press, 2003), 187–216. +Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial +Jukebox (Stanford: Stanford University Press, 2003), 187–216. Goldstein, Paul His view is that the law should be written so that @@ -13774,9 +14146,9 @@ certain statutory conditions. Either way, the effect would be to free a great deal of culture to others to cultivate. And under a statutory rights regime, that reuse would earn artists more income. - +
- +
4. Liberate the Music—Again The battle that got this whole war going was about music, so it @@ -13802,10 +14174,11 @@ an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance. -File-sharing networks complicate this model by enabling the -spread of content for which the performer has not been paid. But of -course, that's not all the file-sharing networks do. As I described in -chapter 5, they enable four different kinds of sharing: +File-sharing networks complicate this model by enabling the spread of +content for which the performer has not been paid. But of course, +that's not all the file-sharing networks do. As I described in chapter +, they enable +four different kinds of sharing: @@ -13841,7 +14214,8 @@ effect of sharing is actually not very harmful, the need for regulation is significantly weakened. -As I said in chapter 5, the actual harm caused by sharing is +As I said in chapter , the actual harm caused by sharing is controversial. For the purposes of this chapter, however, I assume the harm is real. I assume, in other words, that type A sharing is significantly greater than type B, and is the dominant use of sharing @@ -13879,25 +14253,27 @@ Rockies—you can instantaneously be connected to the Internet. Imagine the Internet as ubiquitous as the best cell-phone service, where with the flip of a device, you are connected. - -In that world, it will be extremely easy to connect to services -that give you access to content on the fly—such as Internet -radio, content that is streamed to the user when the user -demands. Here, then, is the critical point: When it is extremely easy -to connect to services that give access to content, it will be easier -to connect to services that give you access to content than it will be -to download and store content on the many devices you will have for -playing content. It will be easier, in other words, to subscribe than -it will be to be a database manager, as everyone in the +cell phones, music streamed over + +In that world, it will be extremely easy to connect to services that +give you access to content on the fly—such as Internet radio, +content that is streamed to the user when the user demands. Here, +then, is the critical point: When it is extremely +easy to connect to services that give access to content, it will be +easier to connect to services that give you +access to content than it will be to download and store content +on the many devices you will have for playing +content. It will be easier, in other words, to subscribe +than it will be to be a database manager, as everyone in the download-sharing world of Napster-like technologies essentially is. Content services will compete with content sharing, even if the services charge money for the content they give access to. Already cell-phone services in Japan offer music (for a fee) streamed over cell phones (enhanced with plugs for headphones). The Japanese are -paying for this content even though "free" content is available in the +paying for this content even though free content is available in the form of MP3s across the Web. -See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3 +See, for example, Music Media Watch, The J@pan Inc. Newsletter, 3 April 2002, available at link #76. @@ -13905,11 +14281,11 @@ April 2002, available at This point about the future is meant to suggest a perspective on the -present: It is emphatically temporary. The "problem" with file +present: It is emphatically temporary. The problem with file sharing—to the extent there is a real problem—is a problem that will increasingly disappear as it becomes easier to connect to the Internet. And thus it is an extraordinary mistake for policy -makers today to be "solving" this problem in light of a technology +makers today to be solving this problem in light of a technology that will be gone tomorrow. The question should not be how to regulate the Internet to eliminate file sharing (the Net will evolve that problem away). The question instead should be how to assure that @@ -13920,10 +14296,10 @@ this transition between twentieth-century models for doing business and twenty-first-century technologies. -The answer begins with recognizing that there are different "problems" +The answer begins with recognizing that there are different problems here to solve. Let's start with type D content—uncopyrighted content or copyrighted content that the artist wants shared. The -"problem" with this content is to make sure that the technology that +problem with this content is to make sure that the technology that would enable this kind of sharing is not rendered illegal. You can think of it this way: Pay phones are used to deliver ransom demands, no doubt. But there are many who need to use pay phones who have @@ -13931,7 +14307,7 @@ nothing to do with ransoms. It would be wrong to ban pay phones in order to eliminate kidnapping. -Type C content raises a different "problem." This is content that was, +Type C content raises a different problem. This is content that was, at one time, published and is no longer available. It may be unavailable because the artist is no longer valuable enough for the record label he signed with to carry his work. Or it may be @@ -13946,14 +14322,14 @@ stores. But libraries and used book stores don't pay the copyright owner when someone reads or buys an out-of-print book. That makes total sense, of course, since any other system would be so burdensome as to eliminate the possibility of used book stores' existing. But -from the author's perspective, this "sharing" of his content without +from the author's perspective, this sharing of his content without his being compensated is less than ideal. The model of used book stores suggests that the law could simply deem out-of-print music fair game. If the publisher does not make copies of the music available for sale, then commercial and noncommercial -providers would be free, under this rule, to "share" that content, +providers would be free, under this rule, to share that content, even though the sharing involved making a copy. The copy here would be incidental to the trade; in a context where commercial publishing has ended, trading music should be as free as trading books. @@ -14015,30 +14391,36 @@ way to compensate those who are harmed. The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher. - William Fisher, Digital Music: Problems and Possibilities (last revised: -10 October 2000), available at -link #77; William Fisher, Promises to Keep: -Technology, Law, and the Future of Entertainment (forthcoming) (Stanford: -Stanford University Press, 2004), ch. 6, available at + + + artists + recording industry payments to + +William Fisher, Digital Music: Problems and Possibilities (last +revised: 10 October 2000), available at +link #77; William +Fisher, Promises to Keep: Technology, Law, and the Future of +Entertainment (forthcoming) (Stanford: Stanford University Press, +2004), ch. 6, available at link #78. Professor Netanel has proposed a related idea that would exempt noncommercial sharing from the reach of copyright and would establish compensation -to artists to balance any loss. See Neil Weinstock Netanel, "Impose a -Noncommercial Use Levy to Allow Free P2P File Sharing," available at -link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back -Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on +to artists to balance any loss. See Neil Weinstock Netanel, Impose a +Noncommercial Use Levy to Allow Free P2P File Sharing, available at +link #79. For other proposals, see Lawrence Lessig, Who's Holding Back +Broadband? Washington Post, 8 January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations Committee, 26 February 2002, available at -link #80; Serguei Osokine, A Quick Case for Intellectual Property -Use Fee (IPUF), 3 March 2002, available at +link #80; Serguei Osokine, A Quick Case for Intellectual Property +Use Fee (IPUF), 3 March 2002, available at link #81; Jefferson Graham, -"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May +Kazaa, Verizon Propose to Pay Artists Directly, USA Today, 13 May 2002, available at -link #82; Steven M. Cherry, "Getting Copyright Right," +link #82; Steven M. Cherry, Getting Copyright Right, IEEE Spectrum Online, 1 July 2002, available at link #83; Declan -McCullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August +McCullagh, Verizon's Copyright Campaign, CNET News.com, 27 August 2002, available at link #84. Fisher's proposal is very similar to Richard Stallman's proposal for @@ -14047,8 +14429,10 @@ proportionally, though more popular artists would get more than the less popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85. -Netanel, Neil Weinstock Fisher, William +Netanel, Neil Weinstock +Promises to Keep (Fisher) + Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission @@ -14063,7 +14447,7 @@ tax. Fisher's proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, -Promises to Keep. The modification that I would make is relatively +Promises to Keep. The modification that I would make is relatively simple: Fisher imagines his proposal replacing the existing copyright system. I imagine it complementing the existing system. The aim of the proposal would be to facilitate compensation to the extent that @@ -14074,11 +14458,16 @@ facilitate free exchange of content, supported through a taxation system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access. +Promises to Keep (Fisher) + + artists + recording industry payments to + Fisher would balk at the idea of allowing the system to lapse. His aim is not just to ensure that artists are paid, but also to ensure that -the system supports the widest range of "semiotic democracy" +the system supports the widest range of semiotic democracy possible. But the aims of semiotic democracy would be satisfied if the other changes I described were accomplished—in particular, the limits on derivative @@ -14088,13 +14477,14 @@ uses. A system that simply charges for access would not greatly burden semiotic democracy if there were few limitations on what one was allowed to do with the content itself. +Real Networks No doubt it would be difficult to calculate the proper measure of -"harm" to an industry. But the difficulty of making that calculation +harm to an industry. But the difficulty of making that calculation would be outweighed by the benefit of facilitating innovation. This background system to compensate would also not need to interfere with innovative proposals such as Apple's MusicStore. As experts predicted -when Apple launched the MusicStore, it could beat "free" by being +when Apple launched the MusicStore, it could beat free by being easier than free is. This has proven correct: Apple has sold millions of songs at even the very high price of 99 cents a song. (At 99 cents, the cost is the equivalent of a per-song CD price, though the labels @@ -14103,17 +14493,18 @@ Real Networks, offering music at just 79 cents a song. And no doubt there will be a great deal of competition to offer and sell music on-line. +Asia, commercial piracy in -This competition has already occurred against the background of "free" +This competition has already occurred against the background of free music from p2p systems. As the sellers of cable television have known for thirty years, and the sellers of bottled water for much more than -that, there is nothing impossible at all about "competing with free." +that, there is nothing impossible at all about competing with free. Indeed, if anything, the competition spurs the competitors to offer new and better products. This is precisely what the competitive market was to be about. Thus in Singapore, though piracy is rampant, movie -theaters are often luxurious—with "first class" seats, and meals +theaters are often luxurious—with first class seats, and meals served while you watch a movie—as they struggle and succeed in -finding ways to compete with "free." +finding ways to compete with free. This regime of competition, with a backstop to assure that artists @@ -14158,9 +14549,9 @@ sharing, to the extent actual harm is demonstrated. -But what if "piracy" doesn't disappear? What if there is a competitive +But what if piracy doesn't disappear? What if there is a competitive market providing content at a low cost, but a significant number of -consumers continue to "take" content for nothing? Should the law do +consumers continue to take content for nothing? Should the law do something then? @@ -14168,9 +14559,9 @@ Yes, it should. But, again, what it should do depends upon how the facts develop. These changes may not eliminate type A sharing. But the real issue is not whether it eliminates sharing in the abstract. The real issue is its effect on the market. Is it better (a) to have a -technology that is 95 percent secure and produces a market of size x, +technology that is 95 percent secure and produces a market of size x, or (b) to have a technology that is 50 percent secure but produces a -market of five times x? Less secure might produce more unauthorized +market of five times x? Less secure might produce more unauthorized sharing, but it is likely to also produce a much bigger market in authorized sharing. The most important thing is to assure artists' compensation without breaking the Internet. Once that's assured, then @@ -14186,9 +14577,9 @@ be on finding ways to break the Internet. Our focus until we're there should be on how to make sure the artists are paid, while protecting the space for innovation and creativity that the Internet is. - +
- +
5. Fire Lots of Lawyers I'm a lawyer. I make lawyers for a living. I believe in the law. I believe @@ -14206,7 +14597,7 @@ strong view queers the law. The evidence of this bending is compelling. I'm attacked as a -"radical" by many within the profession, yet the positions that I am +radical by many within the profession, yet the positions that I am advocating are precisely the positions of some of the most moderate and significant figures in the history of this branch of the law. Many, for example, thought crazy the challenge that we brought to @@ -14214,8 +14605,8 @@ the Copyright Term Extension Act. Yet just thirty years ago, the dominant scholar and practitioner in the field of copyright, Melville Nimmer, thought it obvious. -Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer -Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70. +Lawrence Lessig, Copyright's First Amendment (Melville B. Nimmer +Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70. @@ -14236,16 +14627,16 @@ leading him to question his own publicly stated position—twice. He initially predicted that downloading would substantially harm the industry. He then revised his view in light of the data, and he has since revised his view again. Compare Stan -J. Liebowitz, Rethinking the Network Economy: The True Forces That -Drive the Digital Marketplace (New York: Amacom, 2002), (reviewing his +J. Liebowitz, Rethinking the Network Economy: The True Forces That +Drive the Digital Marketplace (New York: Amacom, 2002), (reviewing his original view but expressing skepticism) with Stan J. Liebowitz, -"Will MP3s Annihilate the Record Industry?" working paper, June 2003, +Will MP3s Annihilate the Record Industry? working paper, June 2003, available at link #86. Liebowitz's careful analysis is extremely valuable in estimating the effect of file-sharing technology. In my view, however, he underestimates the costs of the legal system. See, for example, -Rethinking, 174–76. +Rethinking, 174–76. Liebowitz, Stan They see a system that has been around for hundreds of years, and they @@ -14285,6 +14676,7 @@ away from areas that we know it will only harm. And that is precisely what the law will too often do if too much of our culture is left to its review. +Brezhnev, Leonid Think about the amazing things your kid could do or make with digital technology—the film, the music, the Web page, the blog. Or think @@ -14300,19 +14692,19 @@ regulate culture only where that regulation does good. Yet lawyers rarely test their power, or the power they promote, against this -simple pragmatic question: "Will it do good?" When challenged about -the expanding reach of the law, the lawyer answers, "Why not?" +simple pragmatic question: Will it do good? When challenged about +the expanding reach of the law, the lawyer answers, Why not? -We should ask, "Why?" Show me why your regulation of culture is +We should ask, Why? Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away. - - +
+
 - + NOTES Throughout this text, there are references to links on the World Wide @@ -14326,10 +14718,10 @@ alive, you will be redirected to that link. If the original link has disappeared, you will be redirected to an appropriate reference for the material. - + - + ACKNOWLEDGMENTS This book is the product of a long and as yet unsuccessful struggle that @@ -14337,6 +14729,7 @@ began when I read of Eric Eldred's war to keep books free. Eldred's work helped launch a movement, the free culture movement, and it is to him that this book is dedicated. +Rose, Mark I received guidance in various places from friends and academics, including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, @@ -14355,7 +14748,7 @@ Yuko Noguchi helped me to understand the laws of Japan as well as its culture. I am thankful to her, and to the many in Japan who helped me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro - + Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University Business Law Center, for giving me the chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu @@ -14376,7 +14769,7 @@ K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt -Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz," +Wasserman, Miljenko Williams, Wink, Roger Wood, Ximmbo da Jazz, and Richard Yanco. (I apologize if I have missed anyone; with computers come glitches, and a crash of my e-mail system meant I lost a bunch of great replies.) @@ -14396,7 +14789,8 @@ insisted that there would be unending happiness away from these battles, and who has always been right. This slow learner is, as ever, grateful for her perpetual patience and love. - + +