X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/6e356d514a5c5a6ca331bb2c51e6d3e60f95c180..b58eaee3bcd471c2ea3760adc88a8526e2215ba3:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index eb979d5..26e5c11 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -162,92 +162,6 @@ Code: And Other Laws of Cyberspace - - -THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New -York, New York - - -Copyright © Lawrence Lessig. All rights reserved. - - -Excerpt from an editorial titled The Coming of Copyright Perpetuity, -The New York Times, January 16, 2003. Copyright -© 2003 by The New York Times Co. Reprinted with permission. - - -Cartoon in by Paul Conrad, copyright Tribune -Media Services, Inc. All rights reserved. Reprinted with permission. - - -Diagram in courtesy of the office of FCC -Commissioner, Michael J. Copps. - - -Library of Congress Cataloging-in-Publication Data - - -Lessig, Lawrence. -Free culture : how big media uses technology and the law to lock down -culture and control creativity / Lawrence Lessig. - - -p. cm. - - -Includes index. - - -ISBN 1-59420-006-8 (hardcover) - - - -1. Intellectual property—United States. 2. Mass media—United States. - - -3. Technological innovations—United States. 4. Art—United States. I. Title. - - -KF2979.L47 - - -343.7309'9—dc22 - - -This book is printed on acid-free paper. - - -Printed in the United States of America - - -1 3 5 7 9 10 8 6 4 - - -Designed by Marysarah Quinn - - - -&translationblock; - - - -Without limiting the rights under copyright reserved above, no part of -this publication may be reproduced, stored in or introduced into a -retrieval system, or transmitted, in any form or by any means -(electronic, mechanical, photocopying, recording or otherwise), -without the prior written permission of both the copyright owner and -the above publisher of this book. - - -The scanning, uploading, and distribution of this book via the -Internet or via any other means without the permission of the -publisher is illegal and punishable by law. Please purchase only -authorized electronic editions and do not participate in or encourage -electronic piracy of copyrighted materials. Your support of the -author's rights is appreciated. - - - @@ -764,6 +678,8 @@ stepped out of a thirteenth-story window to his death. +Causby, Thomas Lee +Causby, Tinie This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From @@ -889,6 +805,8 @@ been undone. The consequence is that we are less and less a free culture, more and more a permission culture. +Causby, Thomas Lee +Causby, Tinie protection of artists vs. business interests This change gets justified as necessary to protect commercial @@ -2074,6 +1992,8 @@ realized. +digital cameras +Just Think! If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses @@ -2090,6 +2010,9 @@ schools and enable three hundred to five hundred children to learn something about media by doing something with media. By doing, they think. By tinkering, they learn. +educationin media literacy +media literacy +expression, technologies ofmedia literacy and These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -2116,6 +2039,7 @@ deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it. + This may seem like an odd way to think about literacy. For most people, literacy is about reading and writing. Faulkner and Hemingway @@ -2159,8 +2083,8 @@ from reading a book about it. One learns to write by writing and then reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. -Crichton, Michael Daley, Elizabeth +Crichton, Michael This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern @@ -2281,6 +2205,7 @@ can do well. Yet neither is text a form in which this message depended upon its connection to this form of expression. +Daley, Elizabeth @@ -2313,6 +2238,7 @@ make a little movie. But instead, really help you take these elements that you understand, that are your language, and construct meaning about the topic.… +Barish, Stephanie That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they @@ -2331,6 +2257,10 @@ had a lot of power with this language. + + + + September 11, 2001, terrorist attacks of World Trade Center news coverage @@ -2776,7 +2706,7 @@ natural tendencies of today's digital kids. … We're building an architecture that unleashes 60 percent of the brain [and] a legal system that closes down that part of the brain. - + We're building a technology that takes the magic of Kodak, mixes moving images and sound, and adds a space for commentary and an @@ -2792,8 +2722,10 @@ quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs +Jordan, Jesse RPIRensselaer Polytechnic Institute (RPI) Rensselaer Polytechnic Institute (RPI) +Rensselaer Polytechnic Institute (RPI)computer network search engine of search engines university computer networks, p2p sharing on Internetsearch engines used on @@ -2893,6 +2825,11 @@ this experiment. He was a kid tinkering with technology in an environment where tinkering with technology was precisely what he was supposed to do. +copyright infringement lawsuitsin recording industry +copyright infringement lawsuitsagainst student file sharing +recording industrycopyright infringement lawsuits of +Recording Industry Association of America (RIAA)copyright infringement lawsuits filed by + On April 3, 2003, Jesse was contacted by the dean of students at RPI. The dean informed Jesse that the Recording Industry Association @@ -2916,7 +2853,11 @@ created or posted, and the vast majority of which had nothing to do with music. +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsstatutory damages of +copyright infringement lawsuitsindividual defendants intimidated by statutory damages +Recording Industry Association of America (RIAA)intimidation tactics of But the RIAA branded Jesse a pirate. They claimed he operated a network and had therefore willfully violated copyright laws. They @@ -2928,8 +2869,8 @@ 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. -Princeton University Michigan Technical University +Princeton University Similar lawsuits were brought against three other students: one other student at RPI, one at Michigan Technical University, and one at @@ -2948,7 +2889,7 @@ Suit Alleges $97.8 Billion in Damages, Professional Media Gro (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 @@ -2968,6 +2909,7 @@ 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. +legal system, attorney costs in Jesse's family was outraged at these claims. They wanted to fight. But Jesse's uncle worked to educate the family about the nature of the @@ -2983,6 +2925,8 @@ So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. artistsrecording industry payments to +recording industryartist remuneration in +Recording Industry Association of America (RIAA)lobbying power of 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. @@ -3004,6 +2948,8 @@ Douglas Lichtman makes a related point in KaZaA and Punishment, Wall Street Journal, 10 September 2003, A24. + + On June 23, Jesse wired his savings to the lawyer working for the RIAA. The case against him was then dismissed. And with this, this @@ -3025,11 +2971,17 @@ I. … He's not a tree hugger. … I think it's bizarre that they wo pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record. + + + + + CHAPTER FOUR: <quote>Pirates</quote> +piracyin development of content industry if value, then right theory If piracy means @@ -3139,7 +3091,7 @@ Edison's creative property. The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. -Fourneaux, Henri +Fourneaux, Henri Russel, Phil At the time that Edison and Henri Fourneaux invented machines @@ -3170,7 +3122,7 @@ 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 @@ -3223,6 +3175,10 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 American Graphophone Company player pianos sheet music +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawstatutory licenses in +recording industrystatutory license system in These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the @@ -3248,6 +3204,7 @@ memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). +cover songs The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the @@ -3263,6 +3220,8 @@ copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. +compulsory license +statutory licenses American law ordinarily calls this a compulsory license, but I will refer to it as a statutory license. A statutory license is a license @@ -3271,7 +3230,7 @@ Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. -Grisham, John +Grisham, John This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if @@ -3282,6 +3241,7 @@ have no permission to use Grisham's work except with permission of Grisham. +Beatles But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording @@ -3303,8 +3263,10 @@ sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). -Beatles + + + While the recording industry has been quite coy about this recently, historically it has been quite a supporter of the statutory license for @@ -3334,6 +3296,10 @@ March 1967). I am grateful to Glenn Brown for drawing my attention to this report. + + + + By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit. @@ -3341,7 +3307,8 @@ creative work, the record producers, and the public, benefit.
Radio -artistsrecording industry payments to +recording industryradio broadcast and +artistsrecording industry payments to Radio was also born of piracy. @@ -3388,7 +3355,7 @@ something for nothing. It gets to perform the recording artist's work for free, even if it must pay the composer something for the privilege of playing the song. -Madonna +Madonna This difference can be huge. Imagine you compose a piece of music. Imagine it is your first. You own the exclusive right to authorize @@ -3405,7 +3372,8 @@ the sale of her CDs. The public performance of her recording is not a pirate the value of Madonna's work without paying her anything. - + + No doubt, one might argue that, on balance, the recording artists benefit. On average, the promotion they get is worth more than the @@ -3414,11 +3382,11 @@ 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 -cable television +cable television Cable TV was also born of a kind of piracy. @@ -3535,7 +3503,8 @@ exercise veto power over the emerging technologies of cable. Cable companies thus built their empire in part upon a piracy of the value created by broadcasters' content. - + + These separate stories sing a common theme. If piracy means using value from someone @@ -4691,6 +4660,10 @@ from the implications that the copyright warriors would have us draw. CHAPTER SIX: Founders booksEnglish copyright law developed for +copyright lawdevelopment of +copyright lawEnglish +England, copyright laws developed in +United Kingdomhistory of copyright law in Branagh, Kenneth Henry V Shakespeare, William @@ -4739,7 +4712,9 @@ one else could publish copies of a book to which they held the copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated. -British Parliament +British Parliament +copyrightduration of +copyrightrenewability of Statute of Anne (1710) Now, there's something puzzling about the year 1774 to anyone who @@ -4760,6 +4735,8 @@ Tonson's control in 1774? +lawcommon vs. positive +positive law Licensing Act (1662) The reason is that the English hadn't yet agreed on what a copyright @@ -4772,6 +4749,8 @@ published. But after it expired, there was no positive law that said that the publishers, or Stationers, had an exclusive right to print books. + +common law There was no positive law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to @@ -4784,6 +4763,11 @@ background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law. + +Conger +British Parliament +Scottish publishers +Statute of Anne (1710) This question was important to the publishers, or booksellers, as they were called, because there was growing competition from foreign @@ -4796,6 +4780,7 @@ to again give them exclusive control over publishing. That demand ultimately resulted in the Statute of Anne. +copyrightas narrow monopoly right The Statute of Anne granted the author or proprietor of a book an exclusive right to print that book. In an important limitation, @@ -4805,12 +4790,16 @@ copyright expired, and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed. + Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right at all? + +Shakespeare, William +Romeo and Juliet (Shakespeare) For the booksellers, and the authors whom they represented, had a very strong claim. Take Romeo and Juliet as an example: That play @@ -4829,6 +4818,7 @@ about the notion of copyright that existed at the time of the Statute of Anne. Second, we have to see something important about booksellers. +copyrightusage restrictions attached to First, about copyright. In the last three hundred years, we have come to apply the concept of copyright ever more broadly. But in 1710, it @@ -4845,6 +4835,7 @@ the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on. Branagh, Kenneth +Shakespeare, William So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the @@ -4856,6 +4847,7 @@ allowed to make his films. The copy-right was only an exclusive right to print—no less, of course, but also no more. Henry VIII, King of England +monopoly, copyright as Statute of Monopolies (1656) Even that limited right was viewed with skepticism by the British. @@ -4879,7 +4871,10 @@ have it forever.) The state would protect the exclusive right, but only so long as it benefited society. The British saw the harms from specialinterest favors; they passed a law to stop them. -booksellers, English +Milton, John +booksellers, English +Conger +copyrightduration of Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers. @@ -4900,6 +4895,8 @@ Philip Wittenberg, The Protection and Marketing of Literary Property (New York: J. Messner, Inc., 1937), 31. +Enlightenment +knowledge, freedom of Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment @@ -4908,6 +4905,7 @@ generally. The idea that knowledge should be free was a hallmark of the time, and these powerful commercial interests were interfering with that idea. +British Parliament To balance this power, Parliament decided to increase competition among booksellers, and the simplest way to do that was to spread the @@ -4920,6 +4918,9 @@ to fight the power of the booksellers. The limitation on terms was an indirect way to assure competition among publishers, and thus the construction and spread of culture. +Statute of Anne (1710) + +copyrightin perpetuity When 1731 (1710 + 21) came along, however, the booksellers were getting anxious. They saw the consequences of more competition, and @@ -4955,6 +4956,11 @@ al., 8, Eldred v. Ashcroft, 537 U. + + +common law +lawcommon vs. positive +positive law Having failed in Parliament, the publishers turned to the courts in a series of cases. Their argument was simple and direct: The Statute of @@ -4970,7 +4976,7 @@ they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors. -Patterson, Raymond + This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary @@ -4987,6 +4993,9 @@ Vaidhyanathan, 37–48. The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. +Donaldson, Alexander +Patterson, Raymond +Scottish publishers The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander @@ -4996,6 +5005,8 @@ For a compelling account, see David Saunders, Authorship and Copyrigh (London: Routledge, 1992), 62–69. +Statute of Anne (1710) +Conger Boswell, James Erskine, Andrew @@ -5018,6 +5029,7 @@ of contemporary Scottish poems with Donaldson. Ibid., 93. +common law When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold @@ -5033,11 +5045,17 @@ His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection. + +Millar v. Taylor The London booksellers quickly brought suit to block piracy like Donaldson's. A number of actions were successful against the pirates, the most important early victory being Millar v. Taylor. + + +Thomson, James +copyrightin perpetuity Seasons, The (Thomson) Taylor, Robert @@ -5065,6 +5083,10 @@ reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them. + + + +British Parliament Considered as a matter of abstract justice—reasoning as if justice were just a matter of logical deduction from first @@ -5080,11 +5102,16 @@ believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. +Donaldson, Alexander +Scottish publishers The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. +Thomson, James Beckett, Thomas +House of Lords +Supreme Court, U.S.House of Lords vs. Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included @@ -5099,6 +5126,10 @@ the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before. + + +Donaldson v. Beckett +common law As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of attention throughout Britain. Donaldson's lawyers @@ -5109,6 +5140,7 @@ publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected. + The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the law lords, @@ -5116,6 +5148,9 @@ members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted. + +copyrightin perpetuity +public domainEnglish legal establishment of The reports about the law lords' votes are mixed. On some counts, it looks as if perpetual copyright prevailed. But there is no ambiguity @@ -5126,6 +5161,11 @@ Whatever one's understanding of the common law, now a copyright was fixed for a limited time, after which the work protected by copyright passed into the public domain. +Bacon, Francis +Bunyan, John +Johnson, Samuel +Milton, John +Shakespeare, William The public domain. Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in @@ -5135,12 +5175,13 @@ born. For the first time in Anglo-American history, the legal control over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint. -Bacon, Francis -Bunyan, John -Johnson, Samuel -Milton, John -Shakespeare, William + + + + + +Scottish publishers It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, @@ -5155,6 +5196,7 @@ and illuminations. Rose, 97. + In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The Morning Chronicle @@ -5175,6 +5217,8 @@ Ibid. +House of Lords +free cultureEnglish legal establishment of Ruined is a bit of an exaggeration. But it is not an exaggeration to @@ -5197,19 +5241,32 @@ context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many. - + +British Parliament At least, this was the rule in a world where the Parliament is antimonopoly, resistant to the protectionist pleas of publishers. In a world where the Parliament is more pliant, free culture would be less protected. - + + + + + + + + CHAPTER SEVEN: Recorders +copyright lawfair use and +documentary film +Else, Jon +fair usein documentary film +filmsfair use of copyrighted material in Jon Else is a filmmaker. He is best known for his documentaries and has been very successful in spreading @@ -5222,6 +5279,8 @@ Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today. +Wagner, Richard +San Francisco Opera In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. @@ -5229,8 +5288,8 @@ Stagehands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage. -San Francisco Opera +Simpsons, The During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set. @@ -5240,6 +5299,8 @@ and the opera company played Wagner, was The Simpsons. As it, this touch of cartoon helped capture the flavor of what was special about the scene. + +filmsmultiple copyrights associated with Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. @@ -5247,7 +5308,8 @@ For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless fair use or some other privilege applies. -Gracie Films +Gracie Films +Groening, Matt Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-halfsecond image @@ -5255,7 +5317,7 @@ on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program. -Gracie Films +Fox (film company) Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. @@ -5263,6 +5325,7 @@ Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox. + Then, as Else told me, two things happened. First we discovered … that Matt Groening doesn't own his own creation—or at @@ -5271,7 +5334,9 @@ And second, Fox wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of … entirely unsolicited Simpsons which was in the corner of the shot. -Herrera, Rebecca + + +Herrera, Rebecca Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He @@ -5280,6 +5345,7 @@ asking for your educational rate on this. That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. +Wagner, Richard I wanted to make sure I had my facts straight, he told me. Yes, you have your facts straight, she said. It would cost $10,000 to use the @@ -5292,6 +5358,7 @@ if you quote me, I'll turn you over to our attorneys. As an assistant to Herrera told Else later on, They don't give a shit. They just want the money. + San Francisco Opera Day After Trinity, The @@ -5302,6 +5369,8 @@ very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before. +Fox (film company) +Groening, Matt There's no doubt that someone, whether Matt Groening or Fox, owns the copyright to The Simpsons. That copyright is their property. To use @@ -5336,11 +5405,14 @@ Else's use of just 4.5 seconds of an indirect shot of a SimpsonsThe Simpsons—and fair use does not require the permission of anyone. + + So I asked Else why he didn't just rely upon fair use. Here's his reply:
+fair uselegal intimidation tactics against The Simpsons fiasco was for me a great lesson in the gulf between what lawyers find irrelevant in some abstract sense, and what is crushingly @@ -5350,7 +5422,9 @@ fair use in an absolute legal sense. But I couldn't rely on the concept in any concrete way. Here's why: - + +Errors and Omissions insurance + Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed @@ -5359,8 +5433,10 @@ shot in the film. They take a dim view of fair use, and a claim o fair use can grind the application process to a halt. -Star Wars +Fox (film company) +Groening, Matt Lucas, George +Star Wars I probably never should have asked Matt Groening in the first @@ -5382,7 +5458,9 @@ life, regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them. - + + + The question of fair use usually comes up at the end of the @@ -5391,6 +5469,7 @@ money.
+ In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But @@ -5406,6 +5485,12 @@ publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not. + + + + + + @@ -6358,6 +6443,10 @@ ought to be. Not whether artists should be paid, but whether institutions designed to assure that artists get paid need also control how culture develops. +free culturefour modalities of constraint on +regulationfour modalities of +copyright lawas ex post regulation modality +lawas constraint modality @@ -6373,6 +6462,7 @@ weaken the right or regulation. I represented it with this diagram: How four different modalities of regulation interact to support or weaken the right or regulation. +Madonna At the center of this picture is a regulated dot: the individual or group that is the target of regulation, or the holder of a right. (In @@ -6402,7 +6492,7 @@ could easily be more harsh than many of the punishments imposed by the state. The mark of the difference is not the severity of the rule, but the source of the enforcement. -market constraints +market constraints The market is a third type of constraint. Its constraint is effected through conditions: You can do X if you pay Y; you'll be paid M if you @@ -6429,6 +6519,10 @@ blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint. + + + +lawas constraint modality @@ -6446,10 +6540,11 @@ be; my claim is not about comprehensiveness), these four are among the most significant, and any regulator (whether controlling or freeing) must consider how these four in particular interact. -driving speed, constraints on architecture, constraint effected through market constraints norms, regulatory influence of +driving speed, constraints on +speeding, constraints on So, for example, consider the freedom to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that @@ -6490,8 +6585,8 @@ strict—a federal requirement that states decrease the speed limit, for example—so as to decrease the attractiveness of fast driving. - - + +
Law has a special role in affecting the three. @@ -6541,8 +6636,10 @@ effective liberty that each of these groups might face. market constraints +
Why Hollywood Is Right +copyrightfour regulatory modalities on The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress @@ -6557,8 +6654,9 @@ Internet: Copyright's regulation before the Internet.
-market constraints -norms, regulatory influence of +architecture, constraint effected through +lawas constraint modality +norms, regulatory influence of There is balance between law, norms, market, and architecture. The law @@ -6572,6 +6670,10 @@ uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement. +Internetcopyright regulatory balance lost with +peer-to-peer (p2p) file sharingregulatory balance lost in +market constraints +MP3s Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, @@ -6580,6 +6682,9 @@ architecture relax the regulation of copyright, norms pile on. The happy balance (for the warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet. + + +technologyestablished industries threatened by changes in Thus the sense of, and justification for, the warriors' response. Technology has changed, the warriors say, and the effect of this @@ -6594,6 +6699,8 @@ looting that results. effective state of anarchy after the Internet. +Commerce, U.S. Department of +regulationas establishment protectionism Neither this analysis nor the conclusions that follow are new to the warriors. Indeed, in a White Paper prepared by the Commerce @@ -6606,6 +6713,9 @@ innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright. + + +farming steel industry This mixed strategy is just what copyright needed—if it was to @@ -6624,6 +6734,9 @@ to bail them out when a virus (architecture) devastates their crop. Unions have no hesitation appealing to the government to bail them out when imports (market) wipe out the U.S. steel industry. + + +Brown, John Seely Thus, there's nothing wrong or surprising in the content industry's campaign to protect itself from the harmful consequences of a @@ -6632,9 +6745,14 @@ the changing technology of the Internet has not had a profound effect on the content industry's way of doing business, or as John Seely Brown describes it, its architecture of revenue. -railroad industry advertising +televisionadvertising on +commercials camera technology +digital cameras +Kodak cameras +railroad industry +remote channel changers But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because @@ -6665,8 +6783,13 @@ market. But does anyone believe we should regulate remotes to reinforce commercial television? (Maybe by limiting them to function only once a second, or to switch to only ten channels within an hour?) +free market, technological changes in Brezhnev, Leonid +FM radio +radioFM spectrum of Gates, Bill +market competition +RCA The obvious answer to these obviously rhetorical questions is no. In a free society, with a free market, supported by free enterprise and @@ -6698,6 +6821,9 @@ changes they create, in response to the request of those hurt by changing technology, are changes that preserve the incentives and opportunities for innovation and change. +Constitution, U.S.First Amendment to +First Amendment +speech, freedom ofconstitutional guarantee of In the context of laws regulating speech—which include, obviously, copyright law—that duty is even stronger. When the @@ -6712,6 +6838,8 @@ Congress is being asked to pass laws that would abridge the freed of speech, it should ask— carefully—whether such regulation is justified. + + My argument just now, however, has nothing to do with whether @@ -6724,8 +6852,10 @@ effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. -DDT -Müller, Paul Hermann +Müller, Paul Hermann +DDT +insecticide, environmental consequences of +farming In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul Hermann Müller won the Nobel Prize for his work @@ -6739,7 +6869,8 @@ production is a good thing. No one doubts that the work of Müller was important and valuable and probably saved lives, possibly millions. Carson, Rachel -Silent Sprint (Carson) +Silent Spring (Carson) +environmentalism But in 1962, Rachel Carson published Silent Spring, which argued that DDT, whatever its primary benefits, was also having unintended @@ -6755,7 +6886,9 @@ problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve. + Boyle, James +copyright lawinnovative freedom balanced with fair compensation in It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an environmentalism for @@ -6777,6 +6910,7 @@ protecting copyright not an endorsement of anarchy or an attack on authors. It is an environment of creativity that we seek, and we should be aware of our actions' effects on the environment. + My argument, in the balance of this chapter, tries to map exactly this effect. No doubt the technology of the Internet has had a dramatic @@ -6788,21 +6922,33 @@ not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity. + In a line: To kill a gnat, we are spraying DDT with consequences for free culture that will be far more devastating than that this gnat will be lost. - + + +
Beginnings +Constitution, U.S.on creative property +Constitution, U.S.copyright purpose established in +Constitution, U.S.Progress Clause of +copyrightconstitutional purpose of +copyrightduration of +creative propertyconstitutional tradition on +Progress Clause +copyrightduration of America copied English copyright law. Actually, we copied and improved English copyright law. Our Constitution makes the purpose of creative property rights clear; its express limitations reinforce the English aim to avoid overly powerful publishers. +Congress, U.S.in constitutional Progress Clause The power to establish creative property rights is granted to Congress in a way that, for our Constitution, at least, is very @@ -6821,6 +6967,9 @@ does not say. It does not say Congress has the power to grant purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors. + +copyright lawas protection of creators +copyright lawhistory of American The Progress Clause expressly limits the term of copyrights. As we saw in chapter , @@ -6831,6 +6980,9 @@ followed the English for a similar purpose. Indeed, unlike the English, the framers reinforced that objective, by requiring that copyrights extend to Authors only. +Senate, U.S. +Constitution, U.S.structural checks and balances of +electoral college The design of the Progress Clause reflects something about the Constitution's design in general. To avoid a problem, the framers @@ -6846,6 +6998,8 @@ case, a structure built checks and balances into the constitutional frame, structured to prevent otherwise inevitable concentrations of power. + + I doubt the framers would recognize the regulation we call copyright today. The scope of that regulation is far beyond anything they ever @@ -6853,6 +7007,10 @@ considered. To begin to understand what they did, we need to put our copyright in context: We need to see how it has changed in the 210 years since they first struck its design. + + + +copyrightfour regulatory modalities on Some of these changes come from the law: some in light of changes in technology, and some in light of changes in technology given a @@ -6878,6 +7036,11 @@ Let me explain how.
Law: Duration +copyrightduration of +Congress, U.S.on copyright laws +Copyright Act (1790) +creative propertycommon law protections of +public domainbalance of U.S. content in When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that @@ -6903,6 +7066,7 @@ uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works. Statute of Anne (1710) +lawfederal vs. state That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, @@ -6911,6 +7075,7 @@ protections. Just as in England the Statute of Anne eventually meant that the copyrights for all English works expired, a federal statute meant that any state copyrights expired as well. +copyrightrenewability of In 1790, Congress enacted the first copyright law. It created a federal copyright and secured that copyright for fourteen years. If @@ -6918,6 +7083,7 @@ the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain. + While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually @@ -6942,6 +7108,8 @@ copyright was short. The initial term of copyright was fourteen years, with the option of renewal for an additional fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124. + + This system of renewal was a crucial part of the American system of copyright. It assured that the maximum terms of copyright would be @@ -6968,8 +7136,9 @@ M. Landes and Richard A. Posner, Indefinitely Renewable Copyright,University of Chicago Law Review 70 (2003): 471, 498–501, and accompanying figures. -booksout of print + booksresales of +booksout of print Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall @@ -6982,6 +7151,9 @@ copyright. The only practical commercial use of the books at that time is to sell the books as used books; that use—because it does not involve publication—is effectively free. +Congress, U.S.on copyright laws +Congress, U.S.copyright terms extended by +copyright lawterm extensions in In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 @@ -6990,6 +7162,8 @@ from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. +Sonny Bono Copyright Term Extension Act (CTEA) (1998) +public domainfuture patents vs. future copyrights in Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress @@ -7000,6 +7174,7 @@ In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years. +patentsin public domain The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the @@ -7011,6 +7186,7 @@ after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term. + The effect of these extensions has been exacerbated by another, little-noticed change in the copyright law. Remember I said that the @@ -7021,6 +7197,9 @@ would pass more quickly into the public domain. The works remaining under protection would be those that had some continuing commercial value. +Sonny Bono Copyright Term Extension Act (CTEA) (1998) +copyrightof natural authors vs. corporations +corporationscopyright terms for The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term—the @@ -7040,6 +7219,8 @@ is orphaned by these changes in copyright law. Despite the requirement that terms be limited, we have no evidence that anything will limit them. + + The effect of these changes on the average duration of copyright is dramatic. In 1973, more than 85 percent of copyright owners failed to @@ -7055,16 +7236,24 @@ more than thirty-two years, and averaged thirty years. See Landes and Posner, Indefinitely Renewable Copyright, loc. cit. + + + + +
Law: Scope +copyrightscope of The scope of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. +copyright lawon republishing vs. transformation of original work +derivative workshistorical shift in copyright coverage of In 1790, that scope was very narrow. Copyright covered only maps, charts, and books. That means it didn't cover, for example, music or @@ -7093,6 +7282,9 @@ way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work. +copyrightmarking of +formalities +copyright lawregistration requirement of At the same time that the scope of copyright has expanded, procedural limitations on the right have been relaxed. I've already described the @@ -7107,6 +7299,7 @@ of the history of American copyright law, there was a requirement that works be deposited with the government before a copyright could be secured. + The reason for the registration requirement was the sensible understanding that for most works, no copyright was required. Again, @@ -7121,6 +7314,7 @@ that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author. +copyright lawEuropean All of these formalities were abolished in the American system when we decided to follow European copyright law. There is no requirement @@ -7129,10 +7323,14 @@ automatic; the copyright exists whether or not you mark your work with a ©; and the copyright exists whether or not you actually make a copy available for others to copy. + + + Consider a practical example to understand the scope of these differences. +Copyright Act (1790) If, in 1790, you wrote a book and you were one of the 5 percent who actually copyrighted that book, then the copyright law protected you @@ -7151,6 +7349,9 @@ The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in the United States—publishers. +copyright lawon republishing vs. transformation of original work +derivative workspiracy vs. +piracyderivative work vs. The act left other creators totally unregulated. If I copied your poem @@ -7161,6 +7362,7 @@ those activities were regulated by the original copyright act. These creative activities remained free, while the activities of publishers were restrained. + Today the story is very different: If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, @@ -7189,6 +7391,7 @@ copyright holder. The copyright, in other words, is now not just an right to your writings, but an exclusive right to your writings and a large proportion of the writings inspired by them. + It is this derivative right that would seem most bizarre to our framers, though it has become second nature to us. Initially, this @@ -7238,6 +7441,7 @@ pp. 53–59). These two different uses of my creative work are treated the same. + Disney, Walt Mickey Mouse @@ -7254,9 +7458,13 @@ derivative right is unjustified. My aim just now is much narrower: simply to make clear that this expansion is a significant change from the rights originally granted. + +
Law and Architecture: Reach +copyright lawcopies as core issue of +copyright lawscope of Whereas originally the law regulated only publishers, the change in copyright's scope means that the law today regulates publishers, users, @@ -7273,6 +7481,8 @@ existing law (which regulates copies; 17 United States 102) is that if there is a copy, there is a right. +Valenti, Jackon creative property rights +creative propertyother property rights vs. Copies. That certainly sounds like the obvious thing for @@ -7287,6 +7497,7 @@ copies should not be the trigger for copyright law. More precisely, they should not always be the trigger for copyright law. + This is perhaps the central claim of this book, so let me take this very slowly so that the point is not easily missed. My claim is that the @@ -7303,6 +7514,8 @@ because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law. + + We can see this point abstractly by beginning with this largely empty circle. @@ -7345,6 +7558,8 @@ diagram on next page). +fair use +copyright lawfair use and Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these fair uses. @@ -7354,6 +7569,8 @@ that remain unregulated because the law considers these fair uses.Republishing stands at the core of this circle of possible uses of a copyrighted work. +Constitution, U.S.First Amendment to +First Amendment These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain @@ -7373,6 +7590,7 @@ for public policy (and possibly First Amendment) reasons. Uses that before were presumptively unregulated are now presumptively regulated. +copyrightusage restrictions attached to In real space, then, the possible uses of a book are divided into three @@ -7380,7 +7598,9 @@ sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed fair regardless of the copyright owner's views. -bookson Internet +bookson Internet +Internetbooks on +fair useInternet burdens on Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. @@ -7402,6 +7622,8 @@ would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift. + + So let's be very specific to make this general point clear. Before the Internet, if you purchased a book and read it ten times, there would @@ -7414,7 +7636,7 @@ night before you went to bed. None of those instances of use—reading— could be regulated by copyright law because none of those uses produced a copy. -bookson Internet +e-books derivative workstechnological developments and But the same book as an e-book is effectively governed by a different @@ -7455,6 +7677,9 @@ troubling the expansion with respect to copying a particular work, it is extraordinarily troubling with respect to transformative uses of creative work. +fair useInternet burdens on +copyright lawfair use and +derivative worksfair use vs. Third, this shift from category 1 to category 2 puts an extraordinary @@ -7484,7 +7709,16 @@ grounded in fair use makes sense when the vast majority of uses are presumptively regulated, then the protections of fair use are not enough. -advertising + + + + + + + +Video Pipeline +advertising +film industrytrailer advertisements of The case of Video Pipeline is a good example. Video Pipeline was in the business of making trailer advertisements for movies available @@ -7502,6 +7736,10 @@ technique by giving on-line stores the same ability to enable before you buy the book, so, too, you would be able to sample a bit from the movie on-line before you bought it. +Disney, Inc. +copyright lawfair use and +copyright lawcopies as core issue of +fair uselegal intimidation tactics against In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet @@ -7517,6 +7755,11 @@ distribution immediately. Video Pipeline thought it was within their lawsuit to ask the court to declare that these rights were in fact their rights. + + +copyrightusage restrictions attached to +copyright infringement lawsuitswillful infringement findings in +willful infringement Disney countersued—for $100 million in damages. Those damages were predicated upon a claim that Video Pipeline had willfully @@ -7536,7 +7779,7 @@ permitted to list the titles of the films they were selling, but they were not allowed to show clips of the films as a way of selling them without Disney's permission. - +first-sale doctrine Now, you might think this is a close case, and I think the courts would consider it a close case. My point here is to map the change @@ -7551,8 +7794,15 @@ copy, use on the Internet becomes subject to the copyright owner's control. The technology expands the scope of effective control, because the technology builds a copy into every transaction. + + + + + + Barnes & Noble browsing +market competition No doubt, a potential is not yet an abuse, and so the potential for @@ -7586,6 +7836,8 @@ second important change brought about by the Internet magnifies its significance. This second change does not affect the reach of copyright regulation; it affects how such regulation is enforced. +copyright lawtechnology as automatic enforcer of +technologycopyright enforcement controlled by In the world before digital technology, it was generally the law that controlled whether and how someone was regulated by copyright law. @@ -7595,8 +7847,8 @@ tradition embraced, who said whether and how the law would restrict your freedom. Casablanca -Marx Brothers -Warner Brothers +Marx Brothers +Warner Brothers There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of @@ -7630,7 +7882,7 @@ like the Marx Brothers, knew that no court would ever enforce such a silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. -bookson Internet +bookson Internet On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a @@ -7641,10 +7893,10 @@ 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 +Adobe eBook Reader Consider the life of my Adobe eBook Reader. @@ -7810,7 +8062,7 @@ following report: Wonderland. - + 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 @@ -7847,15 +8099,15 @@ 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 -SonyAibo robotic dog produced by +Aibo robotic dog +robotic dog +SonyAibo robotic dog produced by Consider the robotic dog made by Sony named Aibo. The Aibo learns tricks, cuddles, and follows you around. It eats only electricity @@ -7907,9 +8159,9 @@ 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, @@ -7997,9 +8249,9 @@ academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed. -Aibo robotic dog -robotic dog -SonyAibo robotic dog produced by +Aibo robotic dog +robotic dog +SonyAibo 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 @@ -8013,9 +8265,9 @@ 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 @@ -8969,9 +9221,9 @@ lawyer. CHAPTER ELEVEN: Chimera -chimeras -Wells, H. G. -Country of the Blind, The (Wells) +chimeras +Wells, H. G. +Country of the Blind, The (Wells) In a well-known short story by @@ -9052,8 +9304,8 @@ plot for murder mysteries. But the DNA shows with 100 percent certainty that she was not the person whose blood was at the scene. … - - + + Before I had read about chimeras, I would have said they were impossible. A single person can't have two sets of DNA. The very idea @@ -9159,7 +9411,7 @@ Name Students, Boston Globe, 8 August 2003, D3, a - + Alternatively, we could respond to file sharing the way many kids act as though we've responded. We could totally legalize it. Let there be @@ -9335,6 +9587,10 @@ work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. Worldcom +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsin recording industry +doctors malpractice claims against +Jordan, Jesse That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to @@ -9492,6 +9748,9 @@ permission. That's the point at which they control it.
Constraining Innovators +copyright lawinnovation hampered by +innovationindustry establishment opposed to +regulationas establishment protectionism The story of the last section was a crunchy-lefty story—creativity quashed, artists who can't speak, yada yada @@ -9500,16 +9759,18 @@ weird art out there, and enough expression that is critical of what seems to be just about everything. And if you think that, you might think there's little in this story to worry you. +market constraints But there's an aspect of this story that is not lefty in any sense. Indeed, it is an aspect that could be written by the most extreme promarket ideologue. And if you're one of these sorts (and a special -one at that, 188 pages into a book like this), then you can see this -other aspect by substituting free market every place I've spoken of -free culture. The point is the same, even if the interests -affecting culture are more fundamental. +one at that, pages into a book like this), then you +can see this other aspect by substituting free market +every place I've spoken of free culture. The point is +the same, even if the interests affecting culture are more +fundamental. -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 @@ -9523,7 +9784,9 @@ perspectives are constantly attuned to the ways in which regulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow. + Barry, Hank +venture capitalists This is the single most dramatic effect of the shift in regulatory @@ -9537,11 +9800,15 @@ 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. +Future of Ideas, The (Lessig) +Lessig, Lawrence 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 even I (pessimist extraordinaire) would never have predicted. +MP3.com +my.mp3.com Roberts, Michael In 1997, Michael Roberts launched a company called MP3.com. MP3.com @@ -9594,7 +9861,13 @@ had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought. -Vivendi Universal +Vivendi Universal +copyright infringement lawsuitsdistribution technology targeted in +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsin recording industry +recording industrycopyright infringement lawsuits of +Recording Industry Association of America (RIAA)copyright infringement lawsuits filed by +regulationoutsize penalties of Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled @@ -9618,6 +9891,7 @@ illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded. + The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in @@ -9629,17 +9903,27 @@ industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly. - + + + +Barry, Hank +copyright infringement lawsuitsdistribution technology targeted in +BMW +cars, MP3 sound systems in +EMI Hummer, John Barry, Hank Hummer Winblad -EMI +MP3 players +Napsterventure capital for +Needleman, Rafe Universal Music Group +venture capitalists This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of -its development, its cofounder ( John Hummer), and general partner +its development, its cofounder (John Hummer), and general partner (Hank Barry). See Joseph Menn, Universal, EMI Sue Napster Investor, Los Angeles @@ -9664,8 +9948,6 @@ afraid of technologies that touch content. In an article in discussion with BMW:
-BMW -cars, MP3 sound system in I asked why, with all the storage capacity and computer power in the car, there was no way to play MP3 files. I was told that BMW @@ -9684,6 +9966,9 @@ 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 @@ -9815,6 +10100,8 @@ wrong, it is regulation the powerful use to defeat competitors. cassette recordingVCRs VCRs +statutory licenses +copyright lawstatutory licenses in As I described in chapter , despite this feature of copyright as @@ -9824,6 +10111,7 @@ Copyright, Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001). +Digital Copyright (Litman) Litman, Jessica overall this history of copyright is not bad. As chapter 10 details, @@ -9839,6 +10127,8 @@ the claims of a new technology and the legitimate rights of content creators, both the courts and Congress have imposed legal restrictions that will have the effect of smothering the new to benefit the old. +Internetradio on +radioon Internet The response by the courts has been fairly universal. @@ -9981,7 +10271,15 @@ 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? -artistsrecording industry payments to +artistsrecording industry payments to +Congress, U.S.on copyright laws +Congress, U.S.on radio +Congress, U.S.on recording industry +recording industryartist remuneration in +recording industryradio broadcast and +recording industryInternet radio hampered by +Recording Industry Association of America (RIAA)on Internet radio fees +Recording Industry Association of America (RIAA)lobbying power of 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 @@ -10028,7 +10326,11 @@ interests, that could have been done in a media-neutral way. 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 @@ -10113,7 +10415,7 @@ unique user identifier; the country in which the user received the transmissions. - +Library of Congress The Librarian of Congress eventually suspended these reporting requirements, pending further study. And he also changed the original @@ -10129,6 +10431,9 @@ differences? Was the motive to protect artists against piracy? Real Networks Alben, Alex +Recording Industry Association of America (RIAA)on Internet radio fees +artistsrecording industry payments to +recording industryartist remuneration in 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 @@ -10160,6 +10465,9 @@ added.) + + + Translation: The aim is to use the law to eliminate competition, so that this platform of potentially immense competition, which would @@ -10169,6 +10477,12 @@ 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 @@ -10661,7 +10975,8 @@ success will require. CHAPTER THIRTEEN: Eldred -Hawthorne, Nathaniel +Eldred, Eric +Hawthorne, Nathaniel In 1995, a father was frustrated that his daughters didn't seem to like Hawthorne. No doubt there was @@ -10671,6 +10986,8 @@ Hampshire, decided to put Hawthorne on the Web. An electronic version, Eldred thought, with links to pictures and explanatory text, would make this nineteenth-century author's work come alive. +librariesof public-domain literature +public domainlibrary of works derived from It didn't work—at least for his daughters. They didn't find Hawthorne any more interesting than before. But Eldred's experiment @@ -10691,6 +11008,7 @@ accessible to the twentieth century, Eldred transformed Hawthorne, and many others, into a form more accessible—technically accessible—today. +Scarlet Letter, The (Hawthorne) Eldred's freedom to do this with Hawthorne's work grew from the same source as Disney's. Hawthorne's Scarlet Letter had passed into the @@ -10734,6 +11052,13 @@ world before the Internet were extremely few. Yet one would think it at least as important to protect the Eldreds of the world as to protect noncommercial pornographers. +Congress, U.S.copyright terms extended by +copyrightduration of +copyright lawterm extensions in +Frost, Robert +New Hampshire (Frost) +patentsin public domain +patentsfuture patents vs. future copyrights in As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of poems New Hampshire was slated to @@ -10748,8 +11073,12 @@ would pass into the public domain until that year (and not even then, if Congress extends the term again). By contrast, in the same period, more than 1 million patents will pass into the public domain. + + Bono, Mary Bono, Sonny +copyrightin perpetuity +Sonny Bono Copyright Term Extension Act (CTEA) (1998) @@ -10768,8 +11097,12 @@ you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress, 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). - + +copyright lawfelony punishment for infringement of +NET (No Electronic Theft) Act (1998) +No Electronic Theft (NET) Act (1998) +peer-to-peer (p2p) file sharingfelony punishments for Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he @@ -10779,6 +11112,11 @@ of publishing would make Eldred a felon—whether or not anyone complained. This was a dangerous strategy for a disabled programmer to undertake. + +Congress, U.S.constitutional powers of +Constitution, U.S.Progress Clause of +Progress Clause +Lessig, LawrenceEldred case involvement of It was here that I became involved in Eldred's battle. I was a constitutional @@ -10796,6 +11134,7 @@ by securing for limited Times to Authors … exclusive Right to their … Writings. … + As I've described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause @@ -10806,6 +11145,9 @@ specific—to promote … Progress—through means t are also specific— by securing exclusive Rights (i.e., copyrights) for limited Times. + + + Jaszi, Peter In the past forty years, Congress has gotten into the practice of @@ -10818,6 +11160,9 @@ Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids—perpetual terms on the installment plan, as Professor Peter Jaszi so nicely put it. + + +Lessig, LawrenceEldred case involvement of As an academic, my first response was to hit the books. I remember sitting late at the office, scouring on-line databases for any serious @@ -10963,6 +11308,9 @@ constitutional requirement that terms be limited. If they could extend it once, they would extend it again and again and again. + + + It was also my judgment that this Supreme Court would not allow Congress to extend existing terms. As anyone close to @@ -11268,7 +11616,7 @@ For most of the history of film, the costs of restoring film were very high; digital technology has lowered these costs substantially. While it cost more than $10,000 to restore a ninety-minute black-and-white film in 1993, it can now cost as little as $100 to digitize one hour of -mm film. +8 mm film. Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, Eldred v. Ashcroft, 537 @@ -11454,7 +11802,7 @@ market is not doing the job, then we should allow nonmarket forces the freedom to fill the gaps. As one researcher calculated for American culture, 94 percent of the films, books, and music produced between -and 1946 is not commercially available. However much you love the +1923 and 1946 is not commercially available. However much you love the commercial market, if access is a value, then 6 percent is a failure to provide that value. @@ -12759,9 +13107,12 @@ controlled by this dead (and often unfindable) hand of the past. CONCLUSION -antiretroviral drugs -HIV/AIDS therapies -Africa, medications for HIV patients in +Africa, medications for HIV patients in +AIDS medications +antiretroviral drugs +developing countries, foreign patent costs in +drugspharmaceutical +HIV/AIDS therapies There are more than 35 million people with the AIDS virus worldwide. Twenty-five million of them live @@ -12794,6 +13145,8 @@ issued 9 July 2002, only 230,000 of the 6 million who need drugs in the developing world receive them—and half of them are in Brazil. +patentson pharmaceuticals +pharmaceutical patents These prices are not high because the ingredients of the drugs are @@ -12821,6 +13174,9 @@ African leaders began to recognize the devastation that AIDS was bringing, they started looking for ways to import HIV treatments at costs significantly below the market price. +international law +parallel importation +South Africa, Republic of, pharmaceutical imports by 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 @@ -12837,6 +13193,7 @@ Owns the Knowledge Economy? (New York: The New Press, 2003), 37. Drahos, Peter +United States Trade Representative (USTR) However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association @@ -12876,6 +13233,7 @@ 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. + We should place the intervention by the United States in context. No doubt patents are not the most important reason that Africans don't @@ -12930,6 +13288,7 @@ drugs should not flow into Africa. It was a principle about the importance of intellectual property that led these government actors to intervene against the South African response to AIDS. + 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 @@ -12940,6 +13299,7 @@ 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? +corporationsin pharmaceutical industry Some blame the drug companies. I don't. They are corporations. Their managers are ordered by law to make money for the corporation. @@ -12956,6 +13316,7 @@ elsewhere. There are issues they'd have to resolve to make sure the drugs didn't get back into the United States, but those are mere problems of technology. They could be overcome. +intellectual property rightsof drug patents A different problem, however, could not be overcome. This is the fear of the grandstanding politician who would call the presidents of @@ -12971,6 +13332,13 @@ 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. + + + + + + + So when the common sense of your child confronts you, what will you say? When the common sense of a generation finally revolts @@ -12989,6 +13357,9 @@ in any case. A sensible policy, in other words, could be a balanced policy. For most of our history, both copyright and patent policies were balanced in just this sense. + + + But we as a culture have lost this sense of balance. We have lost the critical eye that helps us see the difference between truth and @@ -12997,9 +13368,7 @@ 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 that most of us would reject if @@ -13028,9 +13397,17 @@ hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans produce the perfect storm for free culture. +academic journals +biomedical research +intellectual property rightsinternational organization on issues of +Internetdevelopment of +IBM +PLoS (Public Library of Science) +Public Library of Science (PLoS) public domainpublic projects in single nucleotied polymorphisms (SNPs) Wellcome Trust +World Intellectual Property Organization (WIPO) World Wide Web Global Positioning System Reagan, Ronald @@ -13057,19 +13434,18 @@ intellectual property. Examples include the Internet and the World Wide Web, both of which were developed on the basis of protocols in the public domain. It included an emerging trend to support open academic journals, including the Public Library of Science project -that I describe in the Afterword. It included a project to develop -single nucleotide polymorphisms (SNPs), which are thought to have -great significance in biomedical research. (That nonprofit project -comprised a consortium of the Wellcome Trust and pharmaceutical and -technological companies, including Amersham Biosciences, AstraZeneca, +that I describe in chapter +. It +included a project to develop single nucleotide polymorphisms (SNPs), +which are thought to have great significance in biomedical +research. (That nonprofit project comprised a consortium of the +Wellcome Trust and pharmaceutical and technological companies, +including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free in the early 1980s. And it included open source and free software. -academic journals -IBM -PLoS (Public Library of Science) @@ -13079,6 +13455,7 @@ intellectual property extremism. Instead, in all of them, intellectual property was balanced by agreements to keep access open or to impose limitations on the way in which proprietary claims might be used. +Lessig, Lawrencein international debate on intellectual property From the perspective of this book, then, the conference was ideal. I should disclose that I was one of the people who asked WIPO for the @@ -13121,8 +13498,12 @@ 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. + + +free software/open-source software (FS/OSS) Apple Corporation +Microsofton free software But there is one project within that list that is highly controversial, at least among lobbyists. That project is open source @@ -13167,6 +13548,7 @@ May 2001), available at link #63. + General Public License (GPL) GPL (General Public License) @@ -13187,7 +13569,9 @@ software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does. -Krim, Jonathan +intellectual property rightsinternational organization on issues of +World Intellectual Property Organization (WIPO) +Krim, Jonathan MicrosoftWIPO meeting opposed by It is therefore understandable that as a proprietary software @@ -13211,6 +13595,7 @@ its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts. + Boland, Lois What was surprising was the United States government's reason for @@ -13222,9 +13607,11 @@ 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. + These statements are astonishing on a number of levels. + First, they are just flat wrong. As I described, most open source and @@ -13280,6 +13667,8 @@ 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. +feudal system +property rightsfeudal system of There is a history of just such a property system that is well known in the Anglo-American tradition. It is called feudalism. Under @@ -13306,6 +13695,8 @@ 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 comment section ensued. Ms. Boland had a number of supporters who @@ -13313,6 +13704,8 @@ tried to show why her comments made sense. But there was one comment 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, @@ -13567,6 +13960,8 @@ permission before you use a copyrighted work in any way. The sorts believe you should be able to do with content as you wish, regardless of whether you have permission or not. +Internetdevelopment of +Internetinitial free character of When the Internet was first born, its initial architecture effectively tilted in the no rights reserved direction. Content could be copied @@ -13593,6 +13988,8 @@ content requires permission. The cut and paste world that define 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 @@ -13601,10 +13998,11 @@ 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 -browsing +free culturerestoration efforts on previous aspects of +browsing +privacy rights If you step back from the battle I've been describing here, you will recognize this problem from other contexts. Think about @@ -13635,8 +14033,9 @@ of privacy. That privacy is guaranteed to us by friction. Not by law places, not by norms (snooping and gossip are just fun), but instead, by the costs that friction imposes on anyone who would want to spy. -Amazon +Amazon cookies, Internet +Internetprivacy protection on 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 @@ -13647,6 +14046,7 @@ and the function of cookies on the Net, it is easier to collect the data than not. The friction has disappeared, and hence any privacy protected by the friction disappears, too. +librariesprivacy rights in use of 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 @@ -13657,7 +14057,8 @@ you. If it becomes simple to gather and sort who does what in electronic spaces, then the friction-induced privacy of yesterday disappears. - + + It is this reality that explains the push of many to define privacy on the Internet. It is the recognition that technology can remove what @@ -13682,6 +14083,11 @@ kind of freedom that was passively provided before. A change in technology now forces those who believe in privacy to affirmatively act where, before, privacy was given by default. + + +Data General +IBM +free software/open-source software (FS/OSS) A similar story could be told about the birth of the free software movement. When computers with software were first made available @@ -13689,9 +14095,8 @@ 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 +Stallman, Richard That was the world Richard Stallman was born into, and while he was a researcher at MIT, he grew to love the community that developed when @@ -13712,6 +14117,7 @@ free to tinker with and improve the code that ran a machine. This, too, was knowledge. Why shouldn't it be open for criticism like anything else? +proprietary code No one answered that question. Instead, the architecture of revenue for computing changed. As it became possible to import programs from @@ -13730,6 +14136,7 @@ economics of computing. And as he believed, if he did nothing about it, then the freedom to change and share software would be fundamentally weakened. + Torvalds, Linus Therefore, in 1984, Stallman began a project to build a free operating @@ -13758,12 +14165,19 @@ that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed. + + +academic journals +scientific journals 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 +Lexis and Westlaw +lawdatabases of case reports in +librariesjournals in +Supreme Court, U.S.access to opinions of As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13780,6 +14194,8 @@ and Westlaw are also free to charge users for the privilege of gaining access to that Supreme Court opinion through their respective services. +public domainaccess fees for material in +public domainlicense system for rebuilding of There's nothing wrong in general with this, and indeed, the ability to charge for access to even public domain materials is a good incentive @@ -13789,11 +14205,14 @@ to flourish. And if there's nothing wrong with selling the public domain, then there could be nothing wrong, in principle, with selling access to material that is not in the public domain. + + But what if the only way to get access to social and scientific data was through proprietary services? What if no one had the ability to browse this data except by paying for a subscription? +librariesjournals in As many are beginning to notice, this is increasingly the reality with scientific journals. When these journals were distributed in paper @@ -13814,6 +14233,8 @@ public libraries begin to disappear. Thus, as with privacy and with software, a changing technology and market shrink a freedom taken for granted before. +PLoS (Public Library of Science) +Public Library of Science (PLoS) This shrinking freedom has led many to take affirmative steps to restore the freedom that has been lost. The Public Library of Science @@ -13826,8 +14247,8 @@ then deposited in a public, electronic archive and made permanently available for free. PLoS also sells a print version of its work, but the copyright for the print journal does not inhibit the right of anyone to redistribute the work for free. -PLoS (Public Library of Science) + This is one of many such efforts to restore a freedom taken for granted before, but now threatened by changing technology and markets. @@ -13837,12 +14258,13 @@ 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 +Creative Commons The same strategy could be applied to culture, as a response to the increasing control effected through law and technology. @@ -14031,8 +14453,8 @@ make it easier for authors and creators to exercise their rights more flexibly and cheaply. That difference, we believe, will enable creativity to spread more easily. - - + +
@@ -15139,4 +15561,89 @@ grateful for her perpetual patience and love. + + +THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New +York, New York + + +Copyright © Lawrence Lessig. All rights reserved. + + +Excerpt from an editorial titled The Coming of Copyright Perpetuity, +The New York Times, January 16, 2003. Copyright +© 2003 by The New York Times Co. Reprinted with permission. + + +Cartoon in by Paul Conrad, copyright Tribune +Media Services, Inc. All rights reserved. Reprinted with permission. + + +Diagram in courtesy of the office of FCC +Commissioner, Michael J. Copps. + + +Library of Congress Cataloging-in-Publication Data + + +Lessig, Lawrence. +Free culture : how big media uses technology and the law to lock down +culture and control creativity / Lawrence Lessig. + + +p. cm. + + +Includes index. + + +ISBN 1-59420-006-8 (hardcover) + + + +1. Intellectual property—United States. 2. Mass media—United States. + + +3. Technological innovations—United States. 4. Art—United States. I. Title. + + +KF2979.L47 + + +343.7309'9—dc22 + + +This book is printed on acid-free paper. + + +Printed in the United States of America + + +1 3 5 7 9 10 8 6 4 + + +Designed by Marysarah Quinn + + + +&translationblock; + + + +Without limiting the rights under copyright reserved above, no part of +this publication may be reproduced, stored in or introduced into a +retrieval system, or transmitted, in any form or by any means +(electronic, mechanical, photocopying, recording or otherwise), +without the prior written permission of both the copyright owner and +the above publisher of this book. + + +The scanning, uploading, and distribution of this book via the +Internet or via any other means without the permission of the +publisher is illegal and punishable by law. Please purchase only +authorized electronic editions and do not participate in or encourage +electronic piracy of copyrighted materials. Your support of the +author's rights is appreciated. + +