X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/6b1261c064600113503e36eb5134fe5de10ce0b5..c919692015de1540e06b36cff3a26b08e78da9e6:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index a1d4670..65e1dd6 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -124,19 +124,17 @@ Circuit Court of Appeals. - + - 978-82-8067-010-6 @@ -181,7 +179,7 @@ Code: And Other Laws of Cyberspace (1999) - + @@ -260,6 +258,7 @@ c INDEX Preface Pogue, David +Code (Lessig) At the end of his review of my first book, Code: And Other Laws of Cyberspace, David @@ -2223,8 +2222,8 @@ close to the lives of these students. The project gave them a tool and empowered them to be able to both understand it and talk about it, Barish explained. That tool succeeded in creating expression—far more successfully and powerfully than could have -been created using only text. If you had said to these students, `you -have to do it in text,' they would've just thrown their hands up and +been created using only text. If you had said to these students, you +have to do it in text, they would've just thrown their hands up and gone and done something else, Barish described, in part, no doubt, because expressing themselves in text is not something these students can do well. Yet neither is text a form in which @@ -3090,11 +3089,12 @@ Working Paper No. 159. -The Napsters of those days, the independents, were companies like -Fox. And no less than today, these independents were vigorously -resisted. Shooting was disrupted by machinery stolen, and -`accidents' resulting in loss of negatives, equipment, buildings and -sometimes life and limb frequently occurred. +The Napsters of those days, the independents, were +companies like Fox. And no less than today, these independents were +vigorously resisted. Shooting was disrupted by machinery +stolen, and accidents resulting in loss of negatives, +equipment, buildings and sometimes life and limb frequently +occurred. Marc Wanamaker, The First Studios, The Silents Majority, archived at link #12. @@ -3157,6 +3157,8 @@ then, I could effectively pirate someone else's song without paying its composer anything. +Kittredge, Alfred +music publishing The composers (and publishers) were none too happy about @@ -3183,6 +3185,7 @@ Hackensack, N.J.: Rothman Reprints, 1976). + Sousa, John Philip The innovators who developed the technology to record other @@ -3206,6 +3209,7 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). + American Graphophone Company player pianos sheet music @@ -3228,7 +3232,7 @@ Perforating Company of New York). In any case, the innovators argued, the job of Congress was to consider first the interest of [the public], whom they represent, and whose servants they are. All talk about -`theft,' the general counsel of the American Graphophone Company +theft, the general counsel of the American Graphophone Company wrote, is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute. @@ -3898,6 +3902,8 @@ carefully than the polarized voices around this debate usually do—the kinds of sharing that file sharing enables, and the kinds of harm it entails. +peer-to-peer (p2p) file sharingfour types of +Napsterrange of content on File sharers share different kinds of content. We can divide these @@ -3951,6 +3957,7 @@ to content that is not copyrighted or that the copyright owner wants to give away. + How do these different types of sharing balance out? @@ -3988,6 +3995,7 @@ cassette recording is a good example. As a study by Cap Gemini Ernst technology, the labels fought it. cassette recording +DAT (digital audio tape) See Cap Gemini Ernst & Young, Technology Evolution and the Music Industry's Business Model Crisis (2003), 3. This report describes the music industry's effort to stigmatize the budding @@ -4007,10 +4015,11 @@ regulating technology was the answer. MTV -Yet soon thereafter, and before Congress was given an opportunity -to enact regulation, MTV was launched, and the industry had a record -turnaround. In the end, Cap Gemini concludes, the `crisis' … was -not the fault of the tapers—who did not [stop after MTV came into +Yet soon thereafter, and before Congress was given an opportunity to +enact regulation, MTV was launched, and the industry had a record +turnaround. In the end, Cap Gemini concludes, +the crisis … was not the fault of the +tapers—who did not [stop after MTV came into being]—but had to a large extent resulted from stagnation in musical innovation at the major labels. @@ -4249,6 +4258,9 @@ found only with time. But isn't the war just a war against illegal sharing? Isn't the target just what you call type A sharing? +copyright infringement lawsuitszero tolerance in +Napsterinfringing material blocked by +peer-to-peer (p2p) file sharinginfringement protections in You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing alone has been felt far @@ -4272,6 +4284,8 @@ account of the litigation and its toll on Napster, see Joseph Menn, York: Crown Business, 2003), 269–82. + + If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement. There is no way to @@ -4283,6 +4297,7 @@ The court's ruling means that we as a society must lose the benefits of p2p, even for the totally legal and beneficial uses they serve, simply to assure that there are zero copyright infringements caused by p2p. + Zero tolerance has not been our history. It has not produced the content industry that we know today. The history of American law has @@ -4382,13 +4397,14 @@ for the architecture it chose. Congress, U.S.on copyright laws Congress, U.S.on VCR technology +Valenti, Jackon VCR technology MPAA president Jack Valenti became the studios' most vocal -champion. Valenti called VCRs tapeworms. He warned, When there are -20, 30, 40 million of these VCRs in the land, we will be invaded by -millions of `tapeworms,' eating away at the very heart and essence of -the most precious asset the copyright owner has, his -copyright. +champion. Valenti called VCRs tapeworms. He warned, +When there are 20, 30, 40 million of these VCRs in the land, we +will be invaded by millions of tapeworms, eating away +at the very heart and essence of the most precious asset the copyright +owner has, his copyright. Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st @@ -4442,6 +4458,7 @@ technology. Kozinski, Alex + But the Supreme Court reversed the decision of the Ninth Circuit. @@ -4517,6 +4534,7 @@ together, a pattern is clear: In each case throughout our history, a new technology changed the way content was distributed. +DAT (digital audio tape) These are the most important instances in our history, but there are other cases as well. The technology of digital audio tape (DAT), for example, @@ -4613,10 +4631,11 @@ argument. All this hand waving about balance and incentives, they say, misses a fundamental point. Our content, the warriors insist, is our property. Why should we wait for Congress to -`rebalance' our property rights? Do you have to wait before calling -the police when your car has been stolen? And why should Congress -deliberate at all about the merits of this theft? Do we ask whether -the car thief had a good use for the car before we arrest him? +rebalance our property rights? Do you have to wait +before calling the police when your car has been stolen? And why +should Congress deliberate at all about the merits of this theft? Do +we ask whether the car thief had a good use for the car before we +arrest him? It is our property, the warriors @@ -5385,8 +5404,6 @@ And second, Fox wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of … entirely unsolicited Simpsons which was in the corner of the shot. - - Herrera, Rebecca Else was certain there was a mistake. He worked his way up to someone @@ -5420,8 +5437,6 @@ very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before. -Fox (film company) -Groening, Matt There's no doubt that someone, whether Matt Groening or Fox, owns the copyright to The Simpsons. That copyright is their property. To use @@ -5456,8 +5471,8 @@ Else's use of just 4.5 seconds of an indirect shot of a SimpsonsThe Simpsons—and fair use does not require the permission of anyone. - - + + So I asked Else why he didn't just rely upon fair use. Here's his reply: @@ -6230,6 +6245,10 @@ Kahle describes,
bookstotal number of +filmstotal number of +music recordingspeer-to-peer (p2p) file sharing +music recordingsrecording industry +music recordingstotal number of It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of @@ -6276,7 +6295,7 @@ that Kahle and others would exercise. Chapter Ten: <quote>Property</quote> Johnson, Lyndon Kennedy, John F. -Valenti, Jackbackground of +Valenti, Jackbackground of Jack Valenti has been the president of the Motion Picture Association of America since 1966. He first came @@ -6288,10 +6307,10 @@ running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. Disney, Inc. -Sony Pictures Entertainment MGM Paramount Pictures Twentieth Century Fox +Sony Pictures Entertainment Universal Pictures Warner Brothers @@ -6306,7 +6325,6 @@ in the United States: Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, Universal Studios, and Warner Brothers. -Valenti, Jackbackground of Valenti is only the third president of the MPAA. No president before @@ -6503,6 +6521,8 @@ ought to be. Not whether artists should be paid, but whether institutions designed to assure that artists get paid need also control how culture develops. +Code (Lessig) +Lessig, Lawrence free culturefour modalities of constraint on regulationfour modalities of copyright lawas ex post regulation modality @@ -6520,7 +6540,7 @@ weaken the right or regulation. I represented it with this diagram:
- +
Madonna @@ -6632,6 +6652,7 @@ other three is more timidly expressed. See Lawrence Lessig, Code: An Other Laws of Cyberspace (New York: Basic Books, 1999): 90–95; Lawrence Lessig, The New Chicago School, Journal of Legal Studies, June 1998. +Code (Lessig) The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality. Thus, the law might be used @@ -6649,7 +6670,7 @@ driving.
- +
architecture, constraint effected through @@ -6695,6 +6716,7 @@ effective liberty that each of these groups might face. Commons, John R. architecture, constraint effected through market constraints +Code (Lessig) @@ -6713,7 +6735,7 @@ Internet:
- +
architecture, constraint effected through @@ -6759,7 +6781,7 @@ looting that results.
- +
Commerce, U.S. Department of @@ -7087,14 +7109,14 @@ started here:
- +
We will end here:
- +
Let me explain how. @@ -7117,12 +7139,13 @@ supplemented common law rights that already protected creative authorship. -William W. Crosskey, Politics and the Constitution in the History of -the United States (London: Cambridge University Press, 1953), vol. 1, -485–86: extinguish[ing], by plain implication of `the supreme -Law of the Land,' the perpetual rights which authors had, or -were supposed by some to have, under the Common Law -(emphasis added). +William W. Crosskey, Politics and the Constitution in the +History of the United States (London: Cambridge University +Press, 1953), vol. 1, 485–86: extinguish[ing], by plain +implication of the supreme Law of the Land, +the perpetual rights which authors had, or were supposed by +some to have, under the Common Law (emphasis +added). Crosskey, William W. This meant that there was no guaranteed public domain in the United @@ -7950,6 +7973,7 @@ silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. bookson Internet +Internetbooks on On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a @@ -8062,6 +8086,7 @@ times. But that obligation (and the limits for creating that obligation) would come from the contract, not from copyright law, and the obligations of contract would not necessarily pass to anyone who subsequently acquired the book. +contracts When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten @@ -8167,6 +8192,7 @@ control. That incentive is understandable, yet what it creates is often crazy. + To see the point in a particularly absurd context, consider a favorite @@ -8463,7 +8489,7 @@ No argument I have can top this picture, but let me try to get close. — On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment? - + The anticircumvention provisions of the DMCA target copyright @@ -8651,6 +8677,7 @@ market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues. cable television +newspapersownership consolidation of Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than @@ -8687,6 +8714,7 @@ James Fallows, The Age of Murdoch, Atlantic Monthly
+ The pattern with Murdoch is the pattern of modern media. Not @@ -8810,6 +8838,7 @@ Moyers, 25 April 2003, edited transcript available at +democracymedia concentration and This narrowing has an effect on what is produced. The product of such large and concentrated networks is increasingly homogenous. @@ -9338,10 +9367,10 @@ sight to the villagers. They don't understand. He tells them they are blind. They don't have the word blind. They think he's just thick. Indeed, as they increasingly notice the things he can't do (hear the sound of grass being stepped on, for example), they increasingly try -to control him. He, in turn, becomes increasingly frustrated. `You -don't understand,' he cried, in a voice that was meant to be great and -resolute, and which broke. `You are blind and I can see. Leave me -alone!' +to control him. He, in turn, becomes increasingly frustrated. You +don't understand, he cried, in a voice that was meant to be great and +resolute, and which broke. You are blind and I can see. Leave me +alone! @@ -9644,6 +9673,8 @@ statement. You could write a poem to express your love, or you could weave together a string—a mash-up— of songs from your favorite artists in a collage and make it available on the Net. +democracydigital sharing within +Kodak cameras This digital capturing and sharing is in part an extension of the capturing and sharing that has always been integral to our culture, @@ -9707,15 +9738,17 @@ negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering. - The bill, modeled after California's tort reform model, was passed in the + +The bill, modeled after California's tort reform model, was passed in the House of Representatives but defeated in a Senate vote in July 2003. For -an overview, see Tanya Albert, Measure Stalls in Senate: `We'll Be Back,' +an overview, see Tanya Albert, Measure Stalls in Senate: We'll Be Back, Say Tort Reformers, amednews.com, 28 July 2003, available at link #38, and Senate Turns Back Malpractice Caps, CBSNews.com, 9 July 2003, available at link #39. President Bush has continued to urge tort reform in recent months. +tort reform Bush, George W. Can common sense recognize the absurdity in a world where @@ -10068,6 +10101,10 @@ that will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly hard if that company is constantly threatened by litigation. +market constraints +permission culturetransaction cost of +regulationoutsize penalties of +technologylegal murkiness on @@ -10084,7 +10121,6 @@ innovation. If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity. -market constraints The point is directly parallel to the crunchy-lefty point about fair use. Whatever the real law is, realism about the effect of law in @@ -10116,6 +10152,8 @@ within a permission culture are enough to bury a wide range of creativity. Someone needs to do a lot of justifying to justify that result. + + The uncertainty of the law is one burden on innovation. There is a second burden that operates more @@ -10905,7 +10943,7 @@ Jesse Jordan. See Frank Ahrens, RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants, Washington Post, 10 September 2003, E1; Chris Cobbs, Worried Parents -Pull Plug on File `Stealing'; With the Music Industry Cracking Down on +Pull Plug on File Stealing; With the Music Industry Cracking Down on File Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued, Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham, Recording Industry Sues Parents, USA Today, 15 September @@ -10915,6 +10953,7 @@ Brianna a Criminal? Toronto Star, 18 September 20 +Napsterrecording industry tracking users of Even this understates the espionage that is being waged by the RIAA. A report from CNN late last summer described a strategy the @@ -10945,7 +10984,7 @@ See Jeff Adler, Cambridge: On Campus, Pirates Are Not Penitent, Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, Four Students Sued over Music Sites; Industry Group Targets File Sharing at Colleges, Washington Post, 4 April 2003, E1; Elizabeth Armstrong, -Students `Rip, Mix, Burn' at Their Own Risk, Christian Science +Students Rip, Mix, Burn at Their Own Risk, Christian Science Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, Music Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over; Lawsuit Possible, Chicago Tribune, 16 July 2003, 1C; Beth Cox, RIAA @@ -10975,6 +11014,7 @@ have already learned, our presumptions about innocence disappear in the middle of wars of prohibition. This war is no different. Says von Lohmann, +
So when we're talking about numbers like forty to sixty million @@ -11184,6 +11224,7 @@ Sonny Bono, who, his widow, Mary Bono, says, believed that Bono, Mary Bono, Sonny +Valenti, Jackperpetual copyright term proposed by The full text is: Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to @@ -11327,7 +11368,7 @@ much is it worth? Well, the adviser says, if you're confident that you will continue to get at least $100,000 a year from these copyrights, and you use the -`discount rate' that we use to evaluate estate investments (6 percent), +discount rate that we use to evaluate estate investments (6 percent), then this law would be worth $1,146,000 to the estate. @@ -11343,7 +11384,7 @@ would assure that the bill was passed? Absolutely, the adviser responds. It is worth it to you to contribute -up to the `present value' of the income you expect from these +up to the present value of the income you expect from these copyrights. Which for us means over $1,000,000. @@ -11419,6 +11460,9 @@ Supreme Court's decision in 1995 to strike down a law that banned the possession of guns near schools. +commerce, interstate +Congress, U.S.constitutional powers of +interstate commerce Since 1937, the Supreme Court had interpreted Congress's granted powers very broadly; so, while the Constitution grants Congress the @@ -11437,6 +11481,7 @@ commerce. A Constitution designed to limit Congress's power was instead interpreted to impose no limit. Rehnquist, William H. +United States v. Lopez The Supreme Court, under Chief Justice Rehnquist's command, changed that in United States v. Lopez. The government had @@ -11461,8 +11506,11 @@ Congress's power. The decision in Lopez was reaffirmed fi later in United States v. Morrison. United States v. Morrison, 529 U.S. 598 (2000). +United States v. Morrison + + If a principle were at work here, then it should apply to the Progress Clause as much as the Commerce Clause. @@ -11487,6 +11535,9 @@ limit. Thus, the same principle applied to the power to grant copyrights should entail that Congress is not allowed to extend the term of existing copyrights. + +Congress, U.S.Supreme Court restraint on +United States v. Lopez If, that is, the principle announced in Lopez stood for a principle. Many believed the decision in Lopez stood for @@ -11500,6 +11551,7 @@ its politics struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians. + Constitution, U.S.copyright purpose established in copyrightconstitutional purpose of copyrightduration of @@ -11551,6 +11603,8 @@ have created the perfect storm for the public domain. Copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again. + + It is valuable copyrights that are responsible for terms being extended. Mickey Mouse and @@ -11904,8 +11958,8 @@ culture, 94 percent of the films, books, and music produced between commercial market, if access is a value, then 6 percent is a failure to provide that value. -Jason Schultz, The Myth of the 1976 Copyright `Chaos' Theory, 20 -December 2002, available at +Jason Schultz, The Myth of the 1976 Copyright +Chaos Theory, 20 December 2002, available at link #54. @@ -12232,8 +12286,17 @@ favorites, through copyright, with who has the right to speak. was little I did beyond preparing for this case. Early on, as I said, I set the strategy. +Kennedy, Anthony +O'Connor, Sandra Day Rehnquist, William H. O'Connor, Sandra Day +Thomas, Clarence +United States v. Lopez +United States v. Morrison +Scalia, Antonin +Congress, U.S.Supreme Court restraint on +Supreme Court, U.S.congressional actions restrained by +Supreme Court, U.S.factions of The Supreme Court was divided into two important camps. One camp we called the Conservatives. The other we called the Rest. The @@ -12278,6 +12341,7 @@ also very sensitive to free speech concerns. And as we strongly believed, there was a very important free speech argument against these retrospective extensions. + The only vote we could be confident about was that of Justice @@ -12297,6 +12361,13 @@ argument that Judge Sentelle had relied upon in the Court of Appeals, that Congress's power must be interpreted so that its enumerated powers have limits. +United States v. Lopez +commerce, interstate +interstate commerce +Congress, U.S.in constitutional Progress Clause +Progress Clause +Congress, U.S.copyright terms extended by +Constitution, U.S.Progress Clause of This then was the core of our strategy—a strategy for which I am responsible. We would get the Court to see that just as with the @@ -12319,6 +12390,7 @@ beginning, Congress has been extending the term of existing copyrights. So, the government argued, the Court should not now say that practice is unconstitutional. + There was some truth to the government's claim, but not much. We certainly agreed that Congress had extended existing terms in 1831 @@ -12483,6 +12555,7 @@ number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss. +United States v. Lopez The second came from the Chief, for whom the whole case had been crafted. For the Chief Justice had crafted the Lopez ruling, @@ -12579,6 +12652,7 @@ money in the world against reasoning. And here was the last naïve law professor, scouring the pages, looking for reasoning. +United States v. Lopez I first scoured the opinion, looking for how the Court would distinguish the principle in this case from the principle in @@ -12611,6 +12685,7 @@ talk about the two together. There was therefore no principle that followed from the Lopez case: In that context, Congress's power would be limited, but in this context it would not. + Yet by what right did they get to choose which of the framers' values they would respect? By what right did they—the silent @@ -12647,6 +12722,7 @@ way, the point was clear: If the Constitution said a term had to be limited, and the existing term was so long as to be effectively unlimited, then it was unconstitutional. +United States v. Lopez These two justices understood all the arguments we had made. But because neither believed in the Lopez case, neither was willing to push @@ -12674,6 +12750,7 @@ light of the structure of the Constitution. That method had produced Lopez and many other originalist rulings. Where was their originalism now? + Here, they had joined an opinion that never once tried to explain what the framers had meant by crafting the Progress Clause as they @@ -12859,6 +12936,8 @@ Congress allows for those works where its worth is at least $1. But for everything else, let the content go. Forbes, Steve +Democratic Party +Republican Party The reaction to this idea was amazingly strong. Steve Forbes endorsed it in an editorial. I received an avalanche of e-mail and letters @@ -13077,6 +13156,7 @@ introduced. On May 16, I posted on the Eldred Act blog, we are close. There was a general reaction in the blog community that something good might happen here. +Valenti, JackEldred Act opposed by But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA general counsel came to the congresswoman's office to give @@ -13522,10 +13602,10 @@ Property Organization to cancel a meeting. Jonathan Krim, The Quiet War over Open-Source, Washington Post, August 2003, E1, available at link #59; William New, Global Group's -Shift on `Open Source' Meeting Spurs Stir, National Journal's Technology +Shift on Open Source Meeting Spurs Stir, National Journal's Technology Daily, 19 August 2003, available at link #60; William New, U.S. Official -Opposes `Open Source' Talks at WIPO, National Journal's Technology +Opposes Open Source Talks at WIPO, National Journal's Technology Daily, 19 August 2003, available at link #61. @@ -14674,6 +14754,9 @@ doesn't follow that the government must actually administer the role. Instead, we should be creating incentives for private parties to serve the public, subject to standards that the government sets. +domain names +Internetdomain name registration on +Web sites, domain name registration of In the context of registration, one obvious model is the Internet. There are at least 32 million Web sites registered around the world. @@ -15329,6 +15412,8 @@ controlling access. artistsrecording industry payments to +semiotic democracy +democracysemiotic Fisher would balk at the idea of allowing the system to lapse. His aim is not just to ensure that artists are paid, but also to ensure that