A glass of water was poured before the microphone in Yonkers; it -sounded like a glass of water being poured. . . . A paper was -crumpled and torn; it sounded like paper and not like a crackling -forest fire. . . . Sousa marches were played from records and a - piano -solo and guitar number were performed. . . . The music was -projected with a live-ness rarely if ever heard before from a radio -"music box." +sounded like a glass of water being poured. . . . A paper was crumpled +and torn; it sounded like paper and not like a crackling forest +fire. . . . Sousa marches were played from records and a piano solo +and guitar number were performed. . . . The music was projected with a +live-ness rarely if ever heard before from a radio "music +box." Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209.
+I thought Armstrong would invent some kind of a filter to remove -static from our AM radio. I didn't think he'd start a revolution— -start up a whole damn new industry to compete with RCA. -See "Saints: The Heroes and Geniuses of the Electronic Era," First - Electronic -Church of America, at www.webstationone.com/fecha, available at +static from our AM radio. I didn't think he'd start a +revolution— start up a whole damn new industry to compete with +RCA. @@ -603,11 +653,12 @@ radio would be crippled. As Lawrence Lessing described it, The series of body blows that FM radio received right after the war, in a series of rulings manipulated through the FCC by the big radio interests, were almost incredible in their force and - deviousness. See "Saints: The Heroes and Geniuses of the +Electronic Era," First Electronic Church of America, at +www.webstationone.com/fecha, available at link #1 .+deviousness. Lessing, 256.
@@ -1183,12 +1222,11 @@ our wives and friends were going to see the picture.
@@ -1733,22 +1726,20 @@ an average annual increase of over 17 percent.-The principle of the Kodak system is the separation of the work -that any person whomsoever can do in making a photograph, -from the work that only an expert can do. . . . We furnish - anybody, -man, woman or child, who has sufficient intelligence to -point a box straight and press a button, with an instrument which -altogether removes from the practice of photography the - necessity -for exceptional facilities or, in fact, any special knowledge of -the art. It can be employed without preliminary study, without a -darkroom and without chemicals. +The principle of the Kodak system is the separation of the work that +any person whomsoever can do in making a photograph, from the work +that only an expert can do. . . . We furnish anybody, man, woman or +child, who has sufficient intelligence to point a box straight and +press a button, with an instrument which altogether removes from the +practice of photography the necessity for exceptional facilities or, +in fact, any special knowledge of the art. It can be employed without +preliminary study, without a darkroom and without +chemicals. + Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. + Coe, Brian
@@ -2021,28 +1997,29 @@ tools that enable the writing to lead or mislead. The aim of any literacy, and this literacy in particular, is to "empower people to choose the appropriate -language for what they need to create or express." +language for what they need to create or express." ++ It is to enable students "to communicate in the language of the twenty-first century."Interview with Daley and Barish. + Barish, Stephanie Ibid. Barish, Stephanie -As with any language, this language comes more easily to some -than to others. It doesn't necessarily come more easily to those who - excel -in written language. Daley and Stephanie Barish, director of the - Institute -for Multimedia Literacy at the Annenberg Center, describe one -particularly poignant example of a project they ran in a high school. -The high school was a very poor inner-city Los Angeles school. In all -the traditional measures of success, this school was a failure. But Daley -and Barish ran a program that gave kids an opportunity to use film -to express meaning about something the students know something -about—gun violence. +As with any language, this language comes more easily to some than to +others. It doesn't necessarily come more easily to those who excel in +written language. Daley and Stephanie Barish, director of the +Institute for Multimedia Literacy at the Annenberg Center, describe +one particularly poignant example of a project they ran in a high +school. The high school was a very poor inner-city Los Angeles +school. In all the traditional measures of success, this school was a +failure. But Daley and Barish ran a program that gave kids an +opportunity to use film to express meaning about something the +students know something about—gun violence. The class was held on Friday afternoons, and it created a relatively @@ -2053,22 +2030,21 @@ said Barish. They were working harder than in any other class to do what education should be about—learning how to express themselves. -Using whatever "free web stuff they could find," and relatively - simple +Using whatever "free web stuff they could find," and relatively simple tools to enable the kids to mix "image, sound, and text," Barish said this class produced a series of projects that showed something about gun violence that few would otherwise understand. This was an issue -close to the lives of these students. The project "gave them a tool 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 gone and done something -else," Barish described, in part, no doubt, because expressing - themselves -in text is not something these students can do well. Yet neither -is text a form in which these ideas can be expressed well. The power of -this message depended upon its connection to this form of expression. +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 +gone and done something else," Barish described, in part, no doubt, +because expressing themselves in text is not something these students +can do well. Yet neither is text a form in which these ideas can be +expressed well. The power of this message depended upon its connection +to this form of expression. @@ -2304,21 +2280,20 @@ York Times, 16 January 2003, G5. -This different cycle is possible because the same commercial - pressures +This different cycle is possible because the same commercial pressures don't exist with blogs as with other ventures. Television and newspapers are commercial entities. They must work to keep attention. -If they lose readers, they lose revenue. Like sharks, they must move on. +If they lose readers, they lose revenue. Like sharks, they must move +on. But bloggers don't have a similar constraint. They can obsess, they -can focus, they can get serious. If a particular blogger writes a - particularly -interesting story, more and more people link to that story. And as -the number of links to a particular story increases, it rises in the ranks -of stories. People read what is popular; what is popular has been - selected -by a very democratic process of peer-generated rankings. +can focus, they can get serious. If a particular blogger writes a +particularly interesting story, more and more people link to that +story. And as the number of links to a particular story increases, it +rises in the ranks of stories. People read what is popular; what is +popular has been selected by a very democratic process of +peer-generated rankings. There's a second way, as well, in which blogs have a different cycle @@ -2331,68 +2306,60 @@ have to take the conflict of interest" out of journalism, Winer told me. conflict of interest is so easily disclosed that you know you can sort of get it out of the way." +CNN These conflicts become more important as media becomes more -concentrated (more on this below). A concentrated media can hide -more from the public than an unconcentrated media can—as CNN -admitted it did after the Iraq war because it was afraid of the - consequences -to its own employees. +concentrated (more on this below). A concentrated media can hide more +from the public than an unconcentrated media can—as CNN admitted +it did after the Iraq war because it was afraid of the consequences to +its own employees. --It also needs to sustain a more - coherent -account. (In the middle of the Iraq war, I read a post on the -Internet from someone who was at that time listening to a satellite - uplink -with a reporter in Iraq. The New York headquarters was telling the -reporter over and over that her account of the war was too bleak: She -needed to offer a more optimistic story. When she told New York that -wasn't warranted, they told her that they were writing "the story.") - Telephone interview with David Winer, 16 April 2003. -Blog space gives amateurs a way to enter the debate—"amateur" not -in the sense of inexperienced, but in the sense of an Olympic athlete, -meaning not paid by anyone to give their reports. It allows for a much -broader range of input into a story, as reporting on the Columbia - disaster -revealed, when hundreds from across the southwest United States -turned to the Internet to retell what they had seen. +It also needs to sustain a more coherent +account. (In the middle of the Iraq war, I read a post on the Internet +from someone who was at that time listening to a satellite uplink with +a reporter in Iraq. The New York headquarters was telling the reporter +over and over that her account of the war was too bleak: She needed to +offer a more optimistic story. When she told New York that wasn't +warranted, they told her that they were writing "the story.") + +Blog space gives amateurs a way to enter the +debate—"amateur" not in the sense of inexperienced, but in the +sense of an Olympic athlete, meaning not paid by anyone to give their +reports. It allows for a much broader range of input into a story, as +reporting on the Columbia disaster revealed, when hundreds from across +the southwest United States turned to the Internet to retell what they +had seen. -And it drives -readers to read across the range of accounts and "triangulate," as Winer -puts it, the truth. Blogs, Winer says, are "communicating directly with -our constituency, and the middle man is out of it"—with all the - benefits, -and costs, that might entail. +And it drives readers to read across the range of accounts and +"triangulate," as Winer puts it, the truth. Blogs, Winer says, are +"communicating directly with our constituency, and the middle man is +out of it"—with all the benefits, and costs, that might entail. -John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of - Information -Online," New York Times, 2 February 2003, A28; Staci D. Kramer, -"Shuttle Disaster Coverage Mixed, but Strong Overall," Online - Journalism -Review, 2 February 2003, available at +John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of +Information Online," New York Times, 2 February 2003, A28; Staci +D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall," +Online Journalism Review, 2 February 2003, available at link #10 .-Winer is optimistic about the future of journalism infected with -blogs. "It's going to become an essential skill," Winer predicts, for - public -figures and increasingly for private figures as well. It's not clear that -"journalism" is happy about this—some journalists have been told to -curtail their blogging. +Winer is optimistic about the future of journalism infected +with blogs. "It's going to become an essential skill," Winer predicts, +for public figures and increasingly for private figures as well. It's +not clear that "journalism" is happy about this—some journalists +have been told to curtail their blogging. ++ But it is clear that we are still in transition. "A @@ -2487,6 +2454,7 @@ if you are visual, if you are interested in film . . . [then] there is a lot you can start to do on this medium. [It] can now amplify and honor these multiple forms of intelligence."See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New York Times, 29 September 2003, C4. ("Not all news organizations have -been as accepting of employees who blog. Kevin Sites, a CNN - correspondent -in Iraq who started a blog about his reporting of the war on March 9, -stopped posting 12 days later at his bosses' request. Last year Steve - Olafson, -a Houston Chronicle reporter, was fired for keeping a personal Web log, -published under a pseudonym, that dealt with some of the issues and -people he was covering.") +been as accepting of employees who blog. Kevin Sites, a CNN +correspondent in Iraq who started a blog about his reporting of the +war on March 9, stopped posting 12 days later at his bosses' +request. Last year Steve Olafson, a Houston Chronicle reporter, was +fired for keeping a personal Web log, published under a pseudonym, +that dealt with some of the issues and people he was covering.") + CNN Barish, Stephanie Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think! teach: that this tinkering with culture teaches as well @@ -2496,26 +2464,22 @@ as creates. It develops talents differently, and it builds a different kind of recognition. -Yet the freedom to tinker with these objects is not guaranteed. - Indeed, -as we'll see through the course of this book, that freedom is - increasingly -highly contested. While there's no doubt that your father -had the right to tinker with the car engine, there's great doubt that your -child will have the right to tinker with the images she finds all around. -The law and, increasingly, technology interfere with a freedom that -technology, and curiosity, would otherwise ensure. +Yet the freedom to tinker with these objects is not guaranteed. +Indeed, as we'll see through the course of this book, that freedom is +increasingly highly contested. While there's no doubt that your father +had the right to tinker with the car engine, there's great doubt that +your child will have the right to tinker with the images she finds all +around. The law and, increasingly, technology interfere with a +freedom that technology, and curiosity, would otherwise ensure. -These restrictions have become the focus of researchers and - scholars. -Professor Ed Felten of Princeton (whom we'll see more of in - chapter +These restrictions have become the focus of researchers and scholars. +Professor Ed Felten of Princeton (whom we'll see more of in chapter 10) has developed a powerful argument in favor of the "right to -tinker" as it applies to computer science and to knowledge in general. There are plenty of ways for the RIAA to affect and direct policy. So where is the morality in taking money from a - student -for running a search engine? +tinker" as it applies to computer science and to knowledge in +general. @@ -2523,18 +2487,16 @@ But Brown's concern is earlier, or younger, or more fundamental. It is about the learning that kids can do, or can't do, because of the law. -See, for example, Edward Felten and Andrew Appel, "Technological - Access +See, for example, Edward Felten and Andrew Appel, "Technological Access Control Interferes with Noninfringing Scholarship," Communications of the Association for Computer Machinery 43 (2000): 9. -"This is where education in the twenty-first century is going," -Brown explains. We need to "understand how kids who grow up - digital -think and want to learn." +"This is where education in the twenty-first century is going," Brown +explains. We need to "understand how kids who grow up digital think +and want to learn." "Yet," as Brown continued, and as the balance of this book will evince, "we are building a legal system that completely suppresses the -natural tendencies of today's digital kids. . . . We're building an - architecture -that unleashes 60 percent of the brain [and] a legal system that -closes down that part of the brain." +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 @@ -2551,69 +2513,59 @@ chapter 9, quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs -In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled -as a freshman at Rensselaer Polytechnic Institute, in Troy, New York. -His major at RPI was information technology. Though he is not a - programmer, -in October Jesse decided to begin to tinker with search - engine -technology that was available on the RPI network. +In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as +a freshman at Rensselaer Polytechnic Institute, in Troy, New York. +His major at RPI was information technology. Though he is not a +programmer, in October Jesse decided to begin to tinker with search +engine technology that was available on the RPI network. -RPI is one of America's foremost technological research - institutions. -It offers degrees in fields ranging from architecture and - engineering -to information sciences. More than 65 percent of its five -thousand undergraduates finished in the top 10 percent of their high -school class. The school is thus a perfect mix of talent and experience -to imagine and then build, a generation for the network age. +RPI is one of America's foremost technological research institutions. +It offers degrees in fields ranging from architecture and engineering +to information sciences. More than 65 percent of its five thousand +undergraduates finished in the top 10 percent of their high school +class. The school is thus a perfect mix of talent and experience to +imagine and then build, a generation for the network age. -RPI's computer network links students, faculty, and administration -to one another. It also links RPI to the Internet. Not everything - available -on the RPI network is available on the Internet. But the network -is designed to enable students to get access to the Internet, as well as -more intimate access to other members of the RPI community. +RPI's computer network links students, faculty, and administration to +one another. It also links RPI to the Internet. Not everything +available on the RPI network is available on the Internet. But the +network is designed to enable students to get access to the Internet, +as well as more intimate access to other members of the RPI community. Search engines are a measure of a network's intimacy. Google -brought the Internet much closer to all of us by fantastically improving -the quality of search on the network. Specialty search engines can do -this even better. The idea of "intranet" search engines, search engines -that search within the network of a particular institution, is to provide -users of that institution with better access to material from that - institution. -Businesses do this all the time, enabling employees to have - access -to material that people outside the business can't get. Universities -do it as well. - --These engines are enabled by the network technology itself. - Microsoft, -for example, has a network file system that makes it very easy -for search engines tuned to that network to query the system for - information -about the publicly (within that network) available content. -Jesse's search engine was built to take advantage of this technology. It -used Microsoft's network file system to build an index of all the files -available within the RPI network. - --Jesse's wasn't the first search engine built for the RPI network. - Indeed, -his engine was a simple modification of engines that others had -built. His single most important improvement over those engines was -to fix a bug within the Microsoft file-sharing system that could cause a -user's computer to crash. With the engines that existed before, if you -tried to access a file through a Windows browser that was on a - computer -that was off-line, your computer could crash. Jesse modified the -system a bit to fix that problem, by adding a button that a user could -click to see if the machine holding the file was still on-line. +brought the Internet much closer to all of us by fantastically +improving the quality of search on the network. Specialty search +engines can do this even better. The idea of "intranet" search +engines, search engines that search within the network of a particular +institution, is to provide users of that institution with better +access to material from that institution. Businesses do this all the +time, enabling employees to have access to material that people +outside the business can't get. Universities do it as well. + ++These engines are enabled by the network technology itself. +Microsoft, for example, has a network file system that makes it very +easy for search engines tuned to that network to query the system for +information about the publicly (within that network) available +content. Jesse's search engine was built to take advantage of this +technology. It used Microsoft's network file system to build an index +of all the files available within the RPI network. + ++Jesse's wasn't the first search engine built for the RPI network. +Indeed, his engine was a simple modification of engines that others +had built. His single most important improvement over those engines +was to fix a bug within the Microsoft file-sharing system that could +cause a user's computer to crash. With the engines that existed +before, if you tried to access a file through a Windows browser that +was on a computer that was off-line, your computer could crash. Jesse +modified the system a bit to fix that problem, by adding a button that +a user could click to see if the machine holding the file was still +on-line. Jesse's engine went on-line in late October. Over the following six @@ -2634,45 +2586,39 @@ computer. But the index also included music files. In fact, one quarter of the -files that Jesse's search engine listed were music files. But that means, -of course, that three quarters were not, and—so that this point is - absolutely -clear—Jesse did nothing to induce people to put music files in -their public folders. He did nothing to target the search engine to these -files. He was a kid tinkering with a Google-like technology at a - university -where he was studying information science, and hence, - tinkering -was the aim. Unlike Google, or Microsoft, for that matter, he made -no money from this tinkering; he was not connected to any business -that would make any money from this experiment. He was a kid - tinkering -with technology in an environment where tinkering with - technology -was precisely what he was supposed to do. +files that Jesse's search engine listed were music files. But that +means, of course, that three quarters were not, and—so that this +point is absolutely clear—Jesse did nothing to induce people to +put music files in their public folders. He did nothing to target the +search engine to these files. He was a kid tinkering with a +Google-like technology at a university where he was studying +information science, and hence, tinkering was the aim. Unlike Google, +or Microsoft, for that matter, he made no money from this tinkering; +he was not connected to any business that would make any money from +this experiment. He was a kid tinkering with technology in an +environment where tinkering with technology was precisely what he was +supposed to do. On April 3, 2003, Jesse was contacted by the dean of students at RPI. The dean informed Jesse that the Recording Industry Association of America, the RIAA, would be filing a lawsuit against him and three -other students whom he didn't even know, two of them at other - universities. -A few hours later, Jesse was served with papers from the suit. -As he read these papers and watched the news reports about them, he -was increasingly astonished. - --"It was absurd," he told me. "I don't think I did anything wrong. . . . -I don't think there's anything wrong with the search engine that I ran -or . . . what I had done to it. I mean, I hadn't modified it in any way -that promoted or enhanced the work of pirates. I just modified the -search engine in a way that would make it easier to use"—again, a -search engine, which Jesse had not himself built, using the Windows - filesharing -system, which Jesse had not himself built, to enable members -of the RPI community to get access to content, which Jesse had not -himself created or posted, and the vast majority of which had nothing -to do with music. +other students whom he didn't even know, two of them at other +universities. A few hours later, Jesse was served with papers from +the suit. As he read these papers and watched the news reports about +them, he was increasingly astonished. + ++"It was absurd," he told me. "I don't think I did anything +wrong. . . . I don't think there's anything wrong with the search +engine that I ran or . . . what I had done to it. I mean, I hadn't +modified it in any way that promoted or enhanced the work of +pirates. I just modified the search engine in a way that would make it +easier to use"—again, a search engine, which Jesse had not +himself built, using the Windows filesharing system, which Jesse had +not himself built, to enable members of the RPI community to get +access to content, which Jesse had not himself created or posted, and +the vast majority of which had nothing to do with music. But the RIAA branded Jesse a pirate. They claimed he operated a @@ -2710,15 +2656,14 @@ $12,000 to dismiss the case. The RIAA wanted Jesse to admit to doing something wrong. He -refused. They wanted him to agree to an injunction that would - essentially -make it impossible for him to work in many fields of technology -for the rest of his life. He refused. They made him understand that this -process of being sued was not going to be pleasant. (As Jesse's father -recounted to me, the chief lawyer on the case, Matt Oppenheimer, told -Jesse, "You don't want to pay another visit to a dentist like me.") And -throughout, the RIAA insisted it would not settle the case until it took -every penny Jesse had saved. +refused. They wanted him to agree to an injunction that would +essentially make it impossible for him to work in many fields of +technology for the rest of his life. He refused. They made him +understand that this process of being sued was not going to be +pleasant. (As Jesse's father recounted to me, the chief lawyer on the +case, Matt Oppenheimer, told Jesse, "You don't want to pay another +visit to a dentist like me.") And throughout, the RIAA insisted it +would not settle the case until it took every penny Jesse had saved. Jesse's family was outraged at these claims. They wanted to fight. @@ -2731,8 +2676,7 @@ won, he would have a piece of paper saying he had won, and a piece of paper saying he and his family were bankrupt. -So Jesse faced a mafia-like choice: $250,000 and a chance at - winning, +So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. @@ -2750,8 +2694,7 @@ the Arts, More Than One in a Blue Moon (2000). +student for running a search engine? Douglas Lichtman makes a related point in "KaZaA and Punishment," Wall Street Journal, 10 September 2003, A24. @@ -2768,8 +2711,7 @@ activist: I was definitely not an activist [before]. I never really meant to be an activist. . . . [But] I've been pushed into this. In no way did I ever foresee anything like this, but I think it's just completely - absurd -what the RIAA has done. +absurd what the RIAA has done.
@@ -3250,61 +3166,55 @@ United Artists Television, Inc.).
-Our point here is that unlike the problem of whether you have -any copyright protection at all, the problem here is whether - copyright -holders who are already compensated, who already have a -monopoly, should be permitted to extend that monopoly. . . . The +Our point here is that unlike the problem of whether you have any +copyright protection at all, the problem here is whether copyright +holders who are already compensated, who already have a monopoly, +should be permitted to extend that monopoly. . . . The question here is how much compensation they should have and how far back they should carry their right to compensation. -Copyright Law Revision—CATV, 216 (statement of Edwin M. - Zimmerman, -acting assistant attorney general). +Copyright Law Revision—CATV, 216 (statement of Edwin M. +Zimmerman, acting assistant attorney general).
-By the above decision . . . near 200,000 pounds worth of what -was honestly purchased at public sale, and which was yesterday -thought property is now reduced to nothing. The Booksellers of -London and Westminster, many of whom sold estates and houses -to purchase Copy-right, are in a manner ruined, and those who -after many years industry thought they had acquired a - competency -to provide for their families now find themselves without a -shilling to devise to their successors. +By the above decision . . . near 200,000 pounds worth of what was +honestly purchased at public sale, and which was yesterday thought +property is now reduced to nothing. The Booksellers of London and +Westminster, many of whom sold estates and houses to purchase +Copy-right, are in a manner ruined, and those who after many years +industry thought they had acquired a competency to provide for their +families now find themselves without a shilling to devise to their +successors. -@@ -4947,31 +4833,28 @@ Ibid. "Ruined" is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords -meant that the booksellers could no longer control how culture in - England -would grow and develop. Culture in England was thereafter free. -Not in the sense that copyrights would not be respected, for of course, -for a limited time after a work was published, the bookseller had an - exclusive -right to control the publication of that book. And not in the -sense that books could be stolen, for even after a copyright expired, you -still had to buy the book from someone. But free in the sense that the -culture and its growth would no longer be controlled by a small group -of publishers. As every free market does, this free market of free culture -would grow as the consumers and producers chose. English culture -would develop as the many English readers chose to let it develop— -chose in the books they bought and wrote; chose in the memes they -repeated and endorsed. Chose in a competitive context, not a context -in which the choices about what culture is available to people and -how they get access to it are made by the few despite the wishes of -the many. - Ibid. -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. +meant that the booksellers could no longer control how culture in +England would grow and develop. Culture in England was thereafter +free. Not in the sense that copyrights would not be respected, for of +course, for a limited time after a work was published, the bookseller +had an exclusive right to control the publication of that book. And +not in the sense that books could be stolen, for even after a +copyright expired, you still had to buy the book from someone. But +free in the sense that the culture and its growth would no longer be +controlled by a small group of publishers. As every free market does, +this free market of free culture would grow as the consumers and +producers chose. English culture would develop as the many English +readers chose to let it develop— chose in the books they bought +and wrote; chose in the memes they repeated and endorsed. Chose in a +competitive context, not a context in which the choices about what +culture is available to people and how they get access to it are made +by the few despite the wishes of the many. + ++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.
-The Simpsons fiasco was for me a great lesson in the gulf - between -what lawyers find irrelevant in some abstract sense, and -what is crushingly relevant in practice to those of us actually -trying to make and broadcast documentaries. I never had any -doubt that it was "clearly fair use" in an absolute legal sense. But -I couldn't rely on the concept in any concrete way. Here's why: +The Simpsons fiasco was for me a great lesson in the gulf between what +lawyers find irrelevant in some abstract sense, and what is crushingly +relevant in practice to those of us actually trying to make and +broadcast documentaries. I never had any doubt that it was "clearly +fair use" in an absolute legal sense. But I couldn't rely on the +concept in any concrete way. Here's why: -Before our films can be broadcast, the network requires -that we buy Errors and Omissions insurance. The carriers - require -a detailed "visual cue sheet" listing the source and - licensing -status of each shot in the film. They take a dim view of -"fair use," and a claim of "fair use" can grind the application -process to a halt. +Before our films can be broadcast, the network requires that we buy +Errors and Omissions insurance. The carriers require a detailed +"visual cue sheet" listing the source and licensing status of each +shot in the film. They take a dim view of "fair use," and a claim of +"fair use" can grind the application process to a halt. -I probably never should have asked Matt Groening in the -first place. But I knew (at least from folklore) that Fox had a -history of tracking down and stopping unlicensed Simpsons -usage, just as George Lucas had a very high profile litigating -Star Wars usage. So I decided to play by the book, thinking -that we would be granted free or cheap license to four seconds -of Simpsons. As a documentary producer working to - exhaustion -on a shoestring, the last thing I wanted was to risk legal -trouble, even nuisance legal trouble, and even to defend a +I probably never should have asked Matt Groening in the first +place. But I knew (at least from folklore) that Fox had a history of +tracking down and stopping unlicensed Simpsons usage, just as George +Lucas had a very high profile litigating Star Wars usage. So I decided +to play by the book, thinking that we would be granted free or cheap +license to four seconds of Simpsons. As a documentary producer working +to exhaustion on a shoestring, the last thing I wanted was to risk +legal trouble, even nuisance legal trouble, and even to defend a principle. -I did, in fact, speak with one of your colleagues at Stanford -Law School . . . who confirmed that it was fair use. He also -confirmed that Fox would "depose and litigate you to within -an inch of your life," regardless of the merits of my claim. He -made clear that it would boil down to who had the bigger - legal -department and the deeper pockets, me or them. +I did, in fact, speak with one of your colleagues at Stanford Law +School . . . who confirmed that it was fair use. He also confirmed +that Fox would "depose and litigate you to within an inch of your +life," regardless of the merits of my claim. He made clear that it +would boil down to who had the bigger legal department and the deeper +pockets, me or them. @@ -5165,26 +5033,26 @@ money.
+-So we very mechanically went about looking up the film clips. -We made some artistic decisions about what film clips to - include—of -course we were going to use the "Make my day" clip -from Dirty Harry. But you then need to get the guy on the ground -who's wiggling under the gun and you need to get his - permission. -And then you have to decide what you are going to pay -him. +So we very mechanically went about looking up the film clips. We made +some artistic decisions about what film clips to include—of +course we were going to use the "Make my day" clip from Dirty +Harry. But you then need to get the guy on the ground who's wiggling +under the gun and you need to get his permission. And then you have +to decide what you are going to pay him. -We decided that it would be fair if we offered them the - dayplayer -rate for the right to reuse that performance. We're talking -about a clip of less than a minute, but to reuse that performance -in the CD-ROM the rate at the time was about $600. -So we had to identify the people—some of them were hard to -identify because in Eastwood movies you can't tell who's the guy -crashing through the glass—is it the actor or is it the stuntman? -And then we just, we put together a team, my assistant and some -others, and we just started calling people. +We decided that it would be fair if we offered them the dayplayer rate +for the right to reuse that performance. We're talking about a clip of +less than a minute, but to reuse that performance in the CD-ROM the +rate at the time was about $600. So we had to identify the +people—some of them were hard to identify because in Eastwood +movies you can't tell who's the guy crashing through the +glass—is it the actor or is it the stuntman? And then we just, +we put together a team, my assistant and some others, and we just +started calling people.
-Everyone thought it would be too hard. Everyone just threw up -their hands and said, "Oh, my gosh, a film, it's so many - copyrights, -there's the music, there's the screenplay, there's the director, -there's the actors." But we just broke it down. We just put it into -its constituent parts and said, "Okay, there's this many actors, this -many directors, . . . this many musicians," and we just went at it -very systematically and cleared the rights. +Everyone thought it would be too hard. Everyone just threw up their +hands and said, "Oh, my gosh, a film, it's so many copyrights, there's +the music, there's the screenplay, there's the director, there's the +actors." But we just broke it down. We just put it into its +constituent parts and said, "Okay, there's this many actors, this many +directors, . . . this many musicians," and we just went at it very +systematically and cleared the rights.
--Absolutely. I think that if there were some fair-licensing - mechanism—where -you weren't subject to hold-ups and you weren't +Absolutely. I think that if there were some fair-licensing +mechanism—where you weren't subject to hold-ups and you weren't subject to estranged former spouses—you'd see a lot more of this work, because it wouldn't be so daunting to try to put together a -retrospective of someone's career and meaningfully illustrate it -with lots of media from that person's career. You'd build in a cost -as the producer of one of these things. You'd build in a cost of - paying -X dollars to the talent that performed. But it would be a -known cost. That's the thing that trips everybody up and makes -this kind of product hard to get off the ground. If you knew I have -a hundred minutes of film in this product and it's going to cost me -X, then you build your budget around it, and you can get - investments -and everything else that you need to produce it. But if you -say, "Oh, I want a hundred minutes of something and I have no -idea what it's going to cost me, and a certain number of people are -going to hold me up for money," then it becomes difficult to put -one of these things together. +retrospective of someone's career and meaningfully illustrate it with +lots of media from that person's career. You'd build in a cost as the +producer of one of these things. You'd build in a cost of paying X +dollars to the talent that performed. But it would be a known +cost. That's the thing that trips everybody up and makes this kind of +product hard to get off the ground. If you knew I have a hundred +minutes of film in this product and it's going to cost me X, then you +build your budget around it, and you can get investments and +everything else that you need to produce it. But if you say, "Oh, I +want a hundred minutes of something and I have no idea what it's going +to cost me, and a certain number of people are going to hold me up for +money," then it becomes difficult to put one of these things together.
-Do you remember when Dan Quayle was interacting with - Murphy -Brown? Remember that back and forth surreal experience of -a politician interacting with a fictional television character? If you -were a graduate student wanting to study that, and you wanted to -get those original back and forth exchanges between the two, the +Do you remember when Dan Quayle was interacting with Murphy Brown? +Remember that back and forth surreal experience of a politician +interacting with a fictional television character? If you were a +graduate student wanting to study that, and you wanted to get those +original back and forth exchanges between the two, the 60 Minutes episode that came out after it . . . it would be almost @@ -5693,199 +5532,179 @@ impossible. . . . Those materials are almost unfindable. . . . Why is that? Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is recorded on videotape is not? How is it that we've created a world -where researchers trying to understand the effect of media on - nineteenthcentury -America will have an easier time than researchers trying to - understand -the effect of media on twentieth-century America? +where researchers trying to understand the effect of media on +nineteenthcentury America will have an easier time than researchers +trying to understand the effect of media on twentieth-century America? In part, this is because of the law. Early in American copyright law, -copyright owners were required to deposit copies of their work in - libraries. -These copies were intended both to facilitate the spread of -knowledge and to assure that a copy of the work would be around once -the copyright expired, so that others might access and copy the work. +copyright owners were required to deposit copies of their work in +libraries. These copies were intended both to facilitate the spread +of knowledge and to assure that a copy of the work would be around +once the copyright expired, so that others might access and copy the +work. -These rules applied to film as well. But in 1915, the Library of - Congress -made an exception for film. Film could be copyrighted so long -as such deposits were made. But the filmmaker was then allowed to -borrow back the deposits—for an unlimited time at no cost. In 1915 -alone, there were more than 5,475 films deposited and "borrowed back." -Thus, when the copyrights to films expire, there is no copy held by any -library. The copy exists—if it exists at all—in the library archive of the -film company. - -Doug Herrick, "Toward a National Film Collection: Motion Pictures at the -Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5; - Anthony -Slide, Nitrate Won't Wait: A History of Film Preservation in the United -States ( Jefferson, N.C.: McFarland & Co., 1992), 36. +These rules applied to film as well. But in 1915, the Library +of Congress made an exception for film. Film could be copyrighted so +long as such deposits were made. But the filmmaker was then allowed to +borrow back the deposits—for an unlimited time at no cost. In +1915 alone, there were more than 5,475 films deposited and "borrowed +back." Thus, when the copyrights to films expire, there is no copy +held by any library. The copy exists—if it exists at +all—in the library archive of the film company. + +Doug Herrick, "Toward a National Film Collection: Motion Pictures at +the Library of Congress," Film Library Quarterly 13 nos. 2–3 +(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film +Preservation in the United States ( Jefferson, N.C.: McFarland & +Co., 1992), 36. The same is generally true about television. Television broadcasts were originally not copyrighted—there was no way to capture the broadcasts, so there was no fear of "theft." But as technology enabled -capturing, broadcasters relied increasingly upon the law. The law - required -they make a copy of each broadcast for the work to be - "copyrighted." -But those copies were simply kept by the broadcasters. No -library had any right to them; the government didn't demand them. -The content of this part of American culture is practically invisible to -anyone who would look. +capturing, broadcasters relied increasingly upon the law. The law +required they make a copy of each broadcast for the work to be +"copyrighted." But those copies were simply kept by the +broadcasters. No library had any right to them; the government didn't +demand them. The content of this part of American culture is +practically invisible to anyone who would look. Kahle was eager to correct this. Before September 11, 2001, he and -his allies had started capturing television. They selected twenty - stations -from around the world and hit the Record button. After - September -11, Kahle, working with dozens of others, selected twenty stations -from around the world and, beginning October 11, 2001, made their -coverage during the week of September 11 available free on-line. - Anyone -could see how news reports from around the world covered the +his allies had started capturing television. They selected twenty +stations from around the world and hit the Record button. After +September 11, Kahle, working with dozens of others, selected twenty +stations from around the world and, beginning October 11, 2001, made +their coverage during the week of September 11 available free on-line. +Anyone could see how news reports from around the world covered the events of that day. -Kahle had the same idea with film. Working with Rick Prelinger, -whose archive of film includes close to 45,000 "ephemeral films" -(meaning films other than Hollywood movies, films that were never -copyrighted), Kahle established the Movie Archive. Prelinger let Kahle -digitize 1,300 films in this archive and post those films on the Internet -to be downloaded for free. Prelinger's is a for-profit company. It sells +Kahle had the same idea with film. Working with Rick Prelinger, whose +archive of film includes close to 45,000 "ephemeral films" (meaning +films other than Hollywood movies, films that were never copyrighted), +Kahle established the Movie Archive. Prelinger let Kahle digitize +1,300 films in this archive and post those films on the Internet to be +downloaded for free. Prelinger's is a for-profit company. It sells copies of these films as stock footage. What he has discovered is that -after he made a significant chunk available for free, his stock footage -sales went up dramatically. People could easily find the material they -wanted to use. Some downloaded that material and made films on -their own. Others purchased copies to enable other films to be made. -Either way, the archive enabled access to this important part of our - culture. -Want to see a copy of the "Duck and Cover" film that instructed -children how to save themselves in the middle of nuclear attack? Go to -archive.org, and you can download the film in a few minutes—for free. +after he made a significant chunk available for free, his stock +footage sales went up dramatically. People could easily find the +material they wanted to use. Some downloaded that material and made +films on their own. Others purchased copies to enable other films to +be made. Either way, the archive enabled access to this important +part of our culture. Want to see a copy of the "Duck and Cover" film +that instructed children how to save themselves in the middle of +nuclear attack? Go to archive.org, and you can download the film in a +few minutes—for free. -Here again, Kahle is providing access to a part of our culture that -we otherwise could not get easily, if at all. It is yet another part of what -defines the twentieth century that we have lost to history. The law -doesn't require these copies to be kept by anyone, or to be deposited in -an archive by anyone. Therefore, there is no simple way to find them. +Here again, Kahle is providing access to a part of our culture that we +otherwise could not get easily, if at all. It is yet another part of +what defines the twentieth century that we have lost to history. The +law doesn't require these copies to be kept by anyone, or to be +deposited in an archive by anyone. Therefore, there is no simple way +to find them. -The key here is access, not price. Kahle wants to enable free access to -this content, but he also wants to enable others to sell access to it. His -aim is to ensure competition in access to this important part of our - culture. -Not during the commercial life of a bit of creative property, but - during -a second life that all creative property has—a noncommercial life. +The key here is access, not price. Kahle wants to enable free access +to this content, but he also wants to enable others to sell access to +it. His aim is to ensure competition in access to this important part +of our culture. Not during the commercial life of a bit of creative +property, but during a second life that all creative property +has—a noncommercial life. For here is an idea that we should more clearly recognize. Every bit -of creative property goes through different "lives." In its first life, if the +of creative property goes through different "lives." In its first +life, if the -creator is lucky, the content is sold. In such cases the commercial - market -is successful for the creator. The vast majority of creative property -doesn't enjoy such success, but some clearly does. For that content, -commercial life is extremely important. Without this commercial - market, -there would be, many argue, much less creativity. +creator is lucky, the content is sold. In such cases the commercial +market is successful for the creator. The vast majority of creative +property doesn't enjoy such success, but some clearly does. For that +content, commercial life is extremely important. Without this +commercial market, there would be, many argue, much less creativity. -After the commercial life of creative property has ended, our - tradition -has always supported a second life as well. A newspaper delivers -the news every day to the doorsteps of America. The very next day, it is -used to wrap fish or to fill boxes with fragile gifts or to build an archive -of knowledge about our history. In this second life, the content can -continue to inform even if that information is no longer sold. +After the commercial life of creative property has ended, our +tradition has always supported a second life as well. A newspaper +delivers the news every day to the doorsteps of America. The very next +day, it is used to wrap fish or to fill boxes with fragile gifts or to +build an archive of knowledge about our history. In this second life, +the content can continue to inform even if that information is no +longer sold. -The same has always been true about books. A book goes out of -print very quickly (the average today is after about a year +). After +it is out of print, it can be sold in used book stores without the +copyright owner getting anything and stored in libraries, where many +get to read the book, also for free. Used book stores and libraries +are thus the second life of a book. That second life is extremely +important to the spread and stability of culture. + +The same has always been true about books. A book goes out of print +very quickly (the average today is after about a year -). After it is -out of print, it can be sold in used book stores without the copyright -owner getting anything and stored in libraries, where many get to read -the book, also for free. Used book stores and libraries are thus the - second -life of a book. That second life is extremely important to the -spread and stability of culture. - Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 -and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, "The -First Sale Doctrine in the Era of Digital Networks," Boston College Law - Review -44 (2003): 593 n. 51. - -Yet increasingly, any assumption about a stable second life for - creative -property does not hold true with the most important components -of popular culture in the twentieth and twenty-first centuries. For -these—television, movies, music, radio, the Internet—there is no - guarantee -of a second life. For these sorts of culture, it is as if we've replaced -libraries with Barnes & Noble superstores. With this culture, what's -accessible is nothing but what a certain limited market demands. - Beyond -that, culture disappears. +and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, +"The First Sale Doctrine in the Era of Digital Networks," Boston +College Law Review 44 (2003): 593 n. 51. + +Yet increasingly, any assumption about a stable second life for +creative property does not hold true with the most important +components of popular culture in the twentieth and twenty-first +centuries. For these—television, movies, music, radio, the +Internet—there is no guarantee of a second life. For these sorts +of culture, it is as if we've replaced libraries with Barnes & +Noble superstores. With this culture, what's accessible is nothing but +what a certain limited market demands. Beyond that, culture +disappears. For most of the twentieth century, it was economics that made this -so. It would have been insanely expensive to collect and make - accessible -all television and film and music: The cost of analog copies is - extraordinarily -high. So even though the law in principle would have -restricted the ability of a Brewster Kahle to copy culture generally, the +so. It would have been insanely expensive to collect and make +accessible all television and film and music: The cost of analog +copies is extraordinarily high. So even though the law in principle +would have restricted the ability of a Brewster Kahle to copy culture +generally, the -real restriction was economics. The market made it impossibly difficult -to do anything about this ephemeral culture; the law had little - practical -effect. +real restriction was economics. The market made it impossibly +difficult to do anything about this ephemeral culture; the law had +little practical effect. -Perhaps the single most important feature of the digital revolution -is that for the first time since the Library of Alexandria, it is feasible to -imagine constructing archives that hold all culture produced or - distributed -publicly. Technology makes it possible to imagine an archive of all -books published, and increasingly makes it possible to imagine an -archive of all moving images and sound. +Perhaps the single most important feature of the digital revolution is +that for the first time since the Library of Alexandria, it is +feasible to imagine constructing archives that hold all culture +produced or distributed publicly. Technology makes it possible to +imagine an archive of all books published, and increasingly makes it +possible to imagine an archive of all moving images and sound. -The scale of this potential archive is something we've never - imagined -before. The Brewster Kahles of our history have dreamed about it; -but we are for the first time at a point where that dream is possible. As +The scale of this potential archive is something we've never imagined +before. The Brewster Kahles of our history have dreamed about it; but +we are for the first time at a point where that dream is possible. As Kahle describes, -It looks like there's about two to three million recordings of - music. -Ever. There are about a hundred thousand theatrical releases -of movies, . . . and about one to two million movies [distributed] -during the twentieth century. There are about twenty-six million -different titles of books. All of these would fit on computers that -would fit in this room and be able to be afforded by a small - company. -So we're at a turning point in our history. Universal access is -the goal. And the opportunity of leading a different life, based on -this, is . . . thrilling. It could be one of the things humankind -would be most proud of. Up there with the Library of Alexandria, -putting a man on the moon, and the invention of the printing -press. +It looks like there's about two to three million recordings of music. +Ever. There are about a hundred thousand theatrical releases of +movies, . . . and about one to two million movies [distributed] during +the twentieth century. There are about twenty-six million different +titles of books. All of these would fit on computers that would fit in +this room and be able to be afforded by a small company. So we're at +a turning point in our history. Universal access is the goal. And the +opportunity of leading a different life, based on this, is +. . . thrilling. It could be one of the things humankind would be most +proud of. Up there with the Library of Alexandria, putting a man on +the moon, and the invention of the printing press. @@ -5893,258 +5712,236 @@ Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of libraries or archives could be. When the commercial life of creative property ends, I don't know. But it does. And whenever it does, Kahle -and his archive hint at a world where this knowledge, and culture, - remains -perpetually available. Some will draw upon it to understand it; +and his archive hint at a world where this knowledge, and culture, +remains perpetually available. Some will draw upon it to understand +it; -some to criticize it. Some will use it, as Walt Disney did, to re-create -the past for the future. These technologies promise something that had -become unimaginable for much of our past—a future for our past. The -technology of digital arts could make the dream of the Library of -Alexandria real again. +some to criticize it. Some will use it, as Walt Disney did, to +re-create the past for the future. These technologies promise +something that had become unimaginable for much of our past—a +future for our past. The technology of digital arts could make the +dream of the Library of Alexandria real again. -Technologists have thus removed the economic costs of building -such an archive. But lawyers' costs remain. For as much as we might -like to call these "archives," as warm as the idea of a "library" might -seem, the "content" that is collected in these digital spaces is also - someone's -"property." And the law of property restricts the freedoms that -Kahle and others would exercise. +Technologists have thus removed the economic costs of building such an +archive. But lawyers' costs remain. For as much as we might like to +call these "archives," as warm as the idea of a "library" might seem, +the "content" that is collected in these digital spaces is also +someone's "property." And the law of property restricts the freedoms +that Kahle and others would exercise. CHAPTER TEN: "Property" -Jack Valenti has been the president of the Motion Picture - Association -of America since 1966. He first came to Washington, D.C., -with Lyndon Johnson's administration—literally. The famous picture -of Johnson's swearing-in on Air Force One after the assassination of +Jack Valenti has been the president of the Motion Picture Association +of America since 1966. He first came to Washington, D.C., with Lyndon +Johnson's administration—literally. The famous picture of +Johnson's swearing-in on Air Force One after the assassination of President Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. -The MPAA is the American branch of the international Motion -Picture Association. It was formed in 1922 as a trade association whose -goal was to defend American movies against increasing domestic - criticism. -The organization now represents not only filmmakers but - producers -and distributors of entertainment for television, video, and -cable. Its board is made up of the chairmen and presidents of the seven -major producers and distributors of motion picture and television - programs -in the United States: Walt Disney, Sony Pictures - Entertainment, -MGM, Paramount Pictures, Twentieth Century Fox, Universal -Studios, and Warner Brothers. +The MPAA is the American branch of the international Motion Picture +Association. It was formed in 1922 as a trade association whose goal +was to defend American movies against increasing domestic criticism. +The organization now represents not only filmmakers but producers and +distributors of entertainment for television, video, and cable. Its +board is made up of the chairmen and presidents of the seven major +producers and distributors of motion picture and television programs +in the United States: Walt Disney, Sony Pictures Entertainment, MGM, +Paramount Pictures, Twentieth Century Fox, Universal Studios, and +Warner Brothers. -Valenti is only the third president of the MPAA. No president -before him has had as much influence over that organization, or over -Washington. As a Texan, Valenti has mastered the single most - important +Valenti is only the third president of the MPAA. No president before +him has had as much influence over that organization, or over +Washington. As a Texan, Valenti has mastered the single most important political skill of a Southerner—the ability to appear simple and -slow while hiding a lightning-fast intellect. To this day, Valenti plays -the simple, humble man. But this Harvard MBA, and author of four +slow while hiding a lightning-fast intellect. To this day, Valenti +plays the simple, humble man. But this Harvard MBA, and author of four books, who finished high school at the age of fifteen and flew more than fifty combat missions in World War II, is no Mr. Smith. When Valenti went to Washington, he mastered the city in a quintessentially Washingtonian way. -In defending artistic liberty and the freedom of speech that our - culture -depends upon, the MPAA has done important good. In crafting +In defending artistic liberty and the freedom of speech that our +culture depends upon, the MPAA has done important good. In crafting the MPAA rating system, it has probably avoided a great deal of speech-regulating harm. But there is an aspect to the organization's mission that is both the most radical and the most important. This is -the organization's effort, epitomized in Valenti's every act, to redefine -the meaning of "creative property." +the organization's effort, epitomized in Valenti's every act, to +redefine the meaning of "creative property." -In 1982, Valenti's testimony to Congress captured the strategy - perfectly: +In 1982, Valenti's testimony to Congress captured the strategy +perfectly: -No matter the lengthy arguments made, no matter the charges -and the counter-charges, no matter the tumult and the shouting, -reasonable men and women will keep returning to the - fundamental -issue, the central theme which animates this entire debate: - Creative -property owners must be accorded the same rights and protection -resident in all other property owners in the nation. That is the issue. -That is the question. And that is the rostrum on which this entire -hearing and the debates to follow must rest. +No matter the lengthy arguments made, no matter the charges and the +counter-charges, no matter the tumult and the shouting, reasonable men +and women will keep returning to the fundamental issue, the central +theme which animates this entire debate: Creative property owners must +be accorded the same rights and protection resident in all other +property owners in the nation. That is the issue. That is the +question. And that is the rostrum on which this entire hearing and the +debates to follow must rest. Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. -4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the - Subcommittee -on Courts, Civil Liberties, and the Administration of Justice of -the Committee on the Judiciary of the House of Representatives, 97th -Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti). +4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the +Subcommittee on Courts, Civil Liberties, and the Administration of +Justice of the Committee on the Judiciary of the House of +Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack +Valenti). The strategy of this rhetoric, like the strategy of most of Valenti's -rhetoric, is brilliant and simple and brilliant because simple. The - "central -theme" to which "reasonable men and women" will return is this: +rhetoric, is brilliant and simple and brilliant because simple. The +"central theme" to which "reasonable men and women" will return is +this: "Creative property owners must be accorded the same rights and - protections -resident in all other property owners in the nation." There are -no second-class citizens, Valenti might have continued. There should -be no second-class property owners. +protections resident in all other property owners in the nation." +There are no second-class citizens, Valenti might have +continued. There should be no second-class property owners. This claim has an obvious and powerful intuitive pull. It is stated with such clarity as to make the idea as obvious as the notion that we -use elections to pick presidents. But in fact, there is no more extreme a -claim made by anyone who is serious in this debate than this claim of -Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps -the nation's foremost extremist when it comes to the nature and scope -of "creative property." His views have no reasonable connection to our -actual legal tradition, even if the subtle pull of his Texan charm has -slowly redefined that tradition, at least in Washington. - --While "creative property" is certainly "property" in a nerdy and - precise -sense that lawyers are trained to understand, +it has never been the case, nor should it be, that +"creative property owners" have been "accorded the same rights and +protection resident in all other property owners." Indeed, if creative +property owners were given the same rights as all other property +owners, that would effect a radical, and radically undesirable, change +in our tradition. + +use elections to pick presidents. But in fact, there is no more +extreme a claim made by anyone who is serious in this debate than this +claim of Valenti's. Jack Valenti, however sweet and however brilliant, +is perhaps the nation's foremost extremist when it comes to the nature +and scope of "creative property." His views have no reasonable +connection to our actual legal tradition, even if the subtle pull of +his Texan charm has slowly redefined that tradition, at least in +Washington. + ++While "creative property" is certainly "property" in a nerdy and +precise sense that lawyers are trained to understand, -it has never been the -case, nor should it be, that "creative property owners" have been - "accorded -the same rights and protection resident in all other property -owners." Indeed, if creative property owners were given the same rights -as all other property owners, that would effect a radical, and radically -undesirable, change in our tradition. - -Lawyers speak of "property" not as an absolute thing, but as a bundle of -rights that are sometimes associated with a particular object. Thus, my -"property right" to my car gives me the right to exclusive use, but not the -right to drive at 150 miles an hour. For the best effort to connect the - ordinary -meaning of "property" to "lawyer talk," see Bruce Ackerman, Private -Property and the Constitution (New Haven: Yale University Press, 1977), -26–27. - -Valenti knows this. But he speaks for an industry that cares squat -for our tradition and the values it represents. He speaks for an industry -that is instead fighting to restore the tradition that the British - overturned -in 1710. In the world that Valenti's changes would create, a -powerful few would exercise powerful control over how our creative +Lawyers speak of "property" not as an absolute thing, but as a bundle +of rights that are sometimes associated with a particular +object. Thus, my "property right" to my car gives me the right to +exclusive use, but not the right to drive at 150 miles an hour. For +the best effort to connect the ordinary meaning of "property" to +"lawyer talk," see Bruce Ackerman, Private Property and the +Constitution (New Haven: Yale University Press, 1977), 26–27. + +Valenti knows this. But he speaks for an industry that cares squat for +our tradition and the values it represents. He speaks for an industry +that is instead fighting to restore the tradition that the British +overturned in 1710. In the world that Valenti's changes would create, +a powerful few would exercise powerful control over how our creative culture would develop. I have two purposes in this chapter. The first is to convince you -that, historically, Valenti's claim is absolutely wrong. The second is to -convince you that it would be terribly wrong for us to reject our - history. -We have always treated rights in creative property differently -from the rights resident in all other property owners. They have never -been the same. And they should never be the same, because, however -counterintuitive this may seem, to make them the same would be to +that, historically, Valenti's claim is absolutely wrong. The second is +to convince you that it would be terribly wrong for us to reject our +history. We have always treated rights in creative property +differently from the rights resident in all other property +owners. They have never been the same. And they should never be the +same, because, however counterintuitive this may seem, to make them +the same would be to -fundamentally weaken the opportunity for new creators to create. - Creativity -depends upon the owners of creativity having less than perfect -control. - --Organizations such as the MPAA, whose board includes the most -powerful of the old guard, have little interest, their rhetoric - notwithstanding, -in assuring that the new can displace them. No organization -does. No person does. (Ask me about tenure, for example.) But what's -good for the MPAA is not necessarily good for America. A society that -defends the ideals of free culture must preserve precisely the - opportunity -for new creativity to threaten the old. -To get just a hint that there is something fundamentally wrong in +fundamentally weaken the opportunity for new creators to create. +Creativity depends upon the owners of creativity having less than +perfect control. + ++Organizations such as the MPAA, whose board includes the most powerful +of the old guard, have little interest, their rhetoric +notwithstanding, in assuring that the new can displace them. No +organization does. No person does. (Ask me about tenure, for example.) +But what's good for the MPAA is not necessarily good for America. A +society that defends the ideals of free culture must preserve +precisely the opportunity for new creativity to threaten the old. To +get just a hint that there is something fundamentally wrong in Valenti's argument, we need look no further than the United States Constitution itself. -The framers of our Constitution loved "property." Indeed, so -strongly did they love property that they built into the Constitution an -important requirement. If the government takes your property—if it -condemns your house, or acquires a slice of land from your farm—it is -required, under the Fifth Amendment's "Takings Clause," to pay you -"just compensation" for that taking. The Constitution thus guarantees -that property is, in a certain sense, sacred. It cannot ever be taken from -the property owner unless the government pays for the privilege. +The framers of our Constitution loved "property." Indeed, so strongly +did they love property that they built into the Constitution an +important requirement. If the government takes your property—if +it condemns your house, or acquires a slice of land from your +farm—it is required, under the Fifth Amendment's "Takings +Clause," to pay you "just compensation" for that taking. The +Constitution thus guarantees that property is, in a certain sense, +sacred. It cannot ever be taken from the property owner unless the +government pays for the privilege. Yet the very same Constitution speaks very differently about what Valenti calls "creative property." In the clause granting Congress the -power to create "creative property," the Constitution requires that after -a "limited time," Congress take back the rights that it has granted and -set the "creative property" free to the public domain. Yet when - Congress -does this, when the expiration of a copyright term "takes" your -copyright and turns it over to the public domain, Congress does not -have any obligation to pay "just compensation" for this "taking." - Instead, -the same Constitution that requires compensation for your land +power to create "creative property," the Constitution requires that +after a "limited time," Congress take back the rights that it has +granted and set the "creative property" free to the public domain. Yet +when Congress does this, when the expiration of a copyright term +"takes" your copyright and turns it over to the public domain, +Congress does not have any obligation to pay "just compensation" for +this "taking." Instead, the same Constitution that requires +compensation for your land -requires that you lose your "creative property" right without any - compensation -at all. +requires that you lose your "creative property" right without any +compensation at all. The Constitution thus on its face states that these two forms of -property are not to be accorded the same rights. They are plainly to be -treated differently. Valenti is therefore not just asking for a change in -our tradition when he argues that creative-property owners should be -accorded the same rights as every other property-right owner. He is - effectively -arguing for a change in our Constitution itself. +property are not to be accorded the same rights. They are plainly to +be treated differently. Valenti is therefore not just asking for a +change in our tradition when he argues that creative-property owners +should be accorded the same rights as every other property-right +owner. He is effectively arguing for a change in our Constitution +itself. Arguing for a change in our Constitution is not necessarily wrong. There was much in our original Constitution that was plainly wrong. -The Constitution of 1789 entrenched slavery; it left senators to be - appointed -rather than elected; it made it possible for the electoral college -to produce a tie between the president and his own vice president (as it -did in 1800). The framers were no doubt extraordinary, but I would be -the first to admit that they made big mistakes. We have since rejected -some of those mistakes; no doubt there could be others that we should -reject as well. So my argument is not simply that because Jefferson did -it, we should, too. +The Constitution of 1789 entrenched slavery; it left senators to be +appointed rather than elected; it made it possible for the electoral +college to produce a tie between the president and his own vice +president (as it did in 1800). The framers were no doubt +extraordinary, but I would be the first to admit that they made big +mistakes. We have since rejected some of those mistakes; no doubt +there could be others that we should reject as well. So my argument is +not simply that because Jefferson did it, we should, too. Instead, my argument is that because Jefferson did it, we should at least try to understand why. Why did the framers, fanatical property -types that they were, reject the claim that creative property be given the -same rights as all other property? Why did they require that for - creative -property there must be a public domain? +types that they were, reject the claim that creative property be given +the same rights as all other property? Why did they require that for +creative property there must be a public domain? -To answer this question, we need to get some perspective on the - history -of these "creative property" rights, and the control that they - enabled. -Once we see clearly how differently these rights have been -defined, we will be in a better position to ask the question that should -be at the core of this war: Not whether creative property should be - protected, -but how. Not whether we will enforce the rights the law gives to -creative-property owners, but what the particular mix of rights ought to -be. Not whether artists should be paid, but whether institutions designed -to assure that artists get paid need also control how culture develops. +To answer this question, we need to get some perspective on the +history of these "creative property" rights, and the control that they +enabled. Once we see clearly how differently these rights have been +defined, we will be in a better position to ask the question that +should be at the core of this war: Not whether creative property +should be protected, but how. Not whether we will enforce the rights +the law gives to creative-property owners, but what the particular mix +of rights ought to be. Not whether artists should be paid, but whether +institutions designed to assure that artists get paid need also +control how culture develops. @@ -6162,19 +5959,17 @@ weaken the right or regulation. I represented it with this diagram: ![]()