@@ -244,52 +352,56 @@ Unlike actual law, Internet software has no capacity to punish. It doesn't affect people who aren't online (and only a tiny minority of the world population is). And if you don't like the Internet's system, you can always flip off the modem. -David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000. +David Pogue, "Don't Just Chat, Do Something," New York Times , 30 January 2000.
@@ -318,12 +432,13 @@ power—political, corporate, media, cultural—should be anathema to conservatives. The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and the greatest expression of democracy. William Safire, -"The Great Media Gulp," New York Times, 22 May 2003. +"The Great Media Gulp," New York Times , 22 May 2003. +Safire, William
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." -Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong +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. @@ -572,14 +690,15 @@ Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author described, + See "Saints: The Heroes and Geniuses of the +Electronic Era," First Electronic Church of America, at +www.webstationone.com/fecha, available at link #1 .Sarnoff, David +The forces for FM, largely engineering, could not overcome the weight of strategy devised by the sales, patent, and legal offices to subdue this threat to corporate position. For FM, if allowed to develop -unrestrained, posed . . . a complete reordering of radio power -. . . and the eventual overthrow of the carefully restricted AM system +unrestrained, posed … a complete reordering of radio power +… and the eventual overthrow of the carefully restricted AM system on which RCA had grown to power. @@ -603,11 +722,12 @@ 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.Lessing, 226. +deviousness. Lessing, 256. AT&T To make room in the spectrum for RCA's latest gamble, television, FM radio users were to be moved to a totally new spectrum band. The @@ -619,48 +739,43 @@ wired links from AT&T.) The spread of FM radio was thus choked, at least temporarily. -Armstrong resisted RCA's efforts. In response, RCA resisted - Armstrong's -patents. After incorporating FM technology into the emerging -standard for television, RCA declared the patents invalid—baselessly, -and almost fifteen years after they were issued. It thus refused to pay -him royalties. For six years, Armstrong fought an expensive war of - litigation -to defend the patents. Finally, just as the patents expired, RCA -offered a settlement so low that it would not even cover Armstrong's -lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong -wrote a short note to his wife and then stepped out of a - thirteenth-story -window to his death. +Armstrong resisted RCA's efforts. In response, RCA resisted +Armstrong's patents. After incorporating FM technology into the +emerging standard for television, RCA declared the patents +invalid—baselessly, and almost fifteen years after they were +issued. It thus refused to pay him royalties. For six years, Armstrong +fought an expensive war of litigation to defend the patents. Finally, +just as the patents expired, RCA offered a settlement so low that it +would not even cover Armstrong's lawyers' fees. Defeated, broken, and +now broke, in 1954 Armstrong wrote a short note to his wife and then +stepped out of a thirteenth-story window to his death. This is how the law sometimes works. Not often this tragically, and -rarely with heroic drama, but sometimes, this is how it works. From the -beginning, government and government agencies have been subject -to capture. They are more likely captured when a powerful interest is -threatened by either a legal or technical change. That powerful interest -too often exerts its influence within the government to get the - government -to protect it. The rhetoric of this protection is of course always -public spirited; the reality is something different. Ideas that were as -solid as rock in one age, but that, left to themselves, would crumble in +rarely with heroic drama, but sometimes, this is how it works. From +the beginning, government and government agencies have been subject to +capture. They are more likely captured when a powerful interest is +threatened by either a legal or technical change. That powerful +interest too often exerts its influence within the government to get +the government to protect it. The rhetoric of this protection is of +course always public spirited; the reality is something +different. Ideas that were as solid as rock in one age, but that, left +to themselves, would crumble in another, are sustained through this subtle corruption of our political -process. RCA had what the Causbys did not: the power to stifle the - effect -of technological change. +process. RCA had what the Causbys did not: the power to stifle the +effect of technological change. -There's no single inventor of the Internet. Nor is there any good -date upon which to mark its birth. Yet in a very short time, the - Internet +There's no single inventor of the Internet. Nor is there any good date +upon which to mark its birth. Yet in a very short time, the Internet has become part of ordinary American life. According to the Pew -Internet and American Life Project, 58 percent of Americans had - access -to the Internet in 2002, up from 49 percent two years before. -Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look -at Internet Access and the Digital Divide," Pew Internet and American -Life Project, 15 April 2003: 6, available at +Internet and American Life Project, 58 percent of Americans had access +to the Internet in 2002, up from 49 percent two years +before. That number could well exceed two thirds of the nation by the end @@ -678,121 +793,120 @@ don't affect them directly. They are the proper subject of a book about the Internet. But this is not a book about the Internet. +Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at +Internet Access and the Digital Divide," Pew Internet and American +Life Project, 15 April 2003: 6, available at link #2 .-Instead, this book is about an effect of the Internet beyond the - Internet -itself: an effect upon how culture is made. My claim is that the -Internet has induced an important and unrecognized change in that -process. That change will radically transform a tradition that is as old as -the Republic itself. Most, if they recognized this change, would reject -it. Yet most don't even see the change that the Internet has introduced. +Instead, this book is about an effect of the Internet beyond the +Internet itself: an effect upon how culture is made. My claim is that +the Internet has induced an important and unrecognized change in that +process. That change will radically transform a tradition that is as +old as the Republic itself. Most, if they recognized this change, +would reject it. Yet most don't even see the change that the Internet +has introduced. We can glimpse a sense of this change by distinguishing between -commercial and noncommercial culture, and by mapping the law's - regulation -of each. By "commercial culture" I mean that part of our culture -that is produced and sold or produced to be sold. By "noncommercial -culture" I mean all the rest. When old men sat around parks or on +commercial and noncommercial culture, and by mapping the law's +regulation of each. By "commercial culture" I mean that part of our +culture that is produced and sold or produced to be sold. By +"noncommercial culture" I mean all the rest. When old men sat around +parks or on street corners telling stories that kids and others consumed, that was -noncommercial culture. When Noah Webster published his "Reader," -or Joel Barlow his poetry, that was commercial culture. +noncommercial culture. When Noah Webster published his "Reader," or +Joel Barlow his poetry, that was commercial culture. + + Barlow, Joel Webster, Noah At the beginning of our history, and for just about the whole of our tradition, noncommercial culture was essentially unregulated. Of -course, if your stories were lewd, or if your song disturbed the peace, -then the law might intervene. But the law was never directly concerned -with the creation or spread of this form of culture, and it left this - culture -"free." The ordinary ways in which ordinary individuals shared and -transformed their culture—telling stories, reenacting scenes from plays -or TV, participating in fan clubs, sharing music, making tapes—were -left alone by the law. +course, if your stories were lewd, or if your song disturbed the +peace, then the law might intervene. But the law was never directly +concerned with the creation or spread of this form of culture, and it +left this culture "free." The ordinary ways in which ordinary +individuals shared and transformed their culture—telling +stories, reenacting scenes from plays or TV, participating in fan +clubs, sharing music, making tapes—were left alone by the law. The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial -marketplace. +The Internet has set the stage for this erasure and, pushed by big +media, the law has now affected it. For the first time in our +tradition, the ordinary ways in which individuals create and share +culture fall within the reach of the regulation of the law, which has +expanded to draw within its control a vast amount of culture and +creativity that it never reached before. The technology that preserved +the balance of our history—between uses of our culture that were +free and uses of our culture that were only upon permission—has +been undone. The consequence is that we are less and less a free +culture, more and more a permission culture. +marketplace. + -This is also, of -course, an important part of creativity and culture, and it has become -an increasingly important part in America. But in no sense was it - dominant -within our tradition. It was instead just one part, a controlled -part, balanced with the free. +This is also, of course, an important part of creativity and culture, +and it has become an increasingly important part in America. But in no +sense was it dominant within our tradition. It was instead just one +part, a controlled part, balanced with the free.This is not the only purpose of copyright, though it is the overwhelmingly -primary purpose of the copyright established in the federal constitution. +primary purpose of the copyright established in the federal constitution. State copyright law historically protected not just the commercial interest in publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, 198–200. + Brandeis, Louis D. This rough divide between the free and the controlled has now been erased. -The Internet has set the stage for this erasure and, -pushed by big media, the law has now affected it. For the first time in -our tradition, the ordinary ways in which individuals create and share -culture fall within the reach of the regulation of the law, which has - expanded -to draw within its control a vast amount of culture and - creativity -that it never reached before. The technology that preserved the -balance of our history—between uses of our culture that were free and -uses of our culture that were only upon permission—has been undone. -The consequence is that we are less and less a free culture, more and -more a permission culture. + -See Jessica Litman, Digital Copyright (New York: Prometheus Books, +See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13. -+ Litman, Jessica -This change gets justified as necessary to protect commercial - creativity. -And indeed, protectionism is precisely its motivation. But the -protectionism that justifies the changes that I will describe below is not -the limited and balanced sort that has defined the law in the past. This -is not a protectionism to protect artists. It is instead a protectionism -to protect certain forms of business. Corporations threatened by the -potential of the Internet to change the way both commercial and -noncommercial culture are made and shared have united to induce -lawmakers to use the law to protect them. It is the story of RCA and -Armstrong; it is the dream of the Causbys. +This change gets justified as necessary to protect commercial +creativity. And indeed, protectionism is precisely its +motivation. But the protectionism that justifies the changes that I +will describe below is not the limited and balanced sort that has +defined the law in the past. This is not a protectionism to protect +artists. It is instead a protectionism to protect certain forms of +business. Corporations threatened by the potential of the Internet to +change the way both commercial and noncommercial culture are made and +shared have united to induce lawmakers to use the law to protect +them. It is the story of RCA and Armstrong; it is the dream of the +Causbys. For the Internet has unleashed an extraordinary possibility for many -to participate in the process of building and cultivating a culture that -reaches far beyond local boundaries. That power has changed the - marketplace -for making and cultivating culture generally, and that change -in turn threatens established content industries. The Internet is thus to -the industries that built and distributed content in the twentieth - century -what FM radio was to AM radio, or what the truck was to the -railroad industry of the nineteenth century: the beginning of the end, -or at least a substantial transformation. Digital technologies, tied to the -Internet, could produce a vastly more competitive and vibrant market -for building and cultivating culture; that market could include a much -wider and more diverse range of creators; those creators could produce -and distribute a much more vibrant range of creativity; and depending -upon a few important factors, those creators could earn more on average -from this system than creators do today—all so long as the RCAs of our -day don't use the law to protect themselves against this competition. - --Yet, as I argue in the pages that follow, that is precisely what is - happening -in our culture today. These modern-day equivalents of the early -twentieth-century radio or nineteenth-century railroads are using their -power to get the law to protect them against this new, more efficient, -more vibrant technology for building culture. They are succeeding in -their plan to remake the Internet before the Internet remakes them. +to participate in the process of building and cultivating a culture +that reaches far beyond local boundaries. That power has changed the +marketplace for making and cultivating culture generally, and that +change in turn threatens established content industries. The Internet +is thus to the industries that built and distributed content in the +twentieth century what FM radio was to AM radio, or what the truck was +to the railroad industry of the nineteenth century: the beginning of +the end, or at least a substantial transformation. Digital +technologies, tied to the Internet, could produce a vastly more +competitive and vibrant market for building and cultivating culture; +that market could include a much wider and more diverse range of +creators; those creators could produce and distribute a much more +vibrant range of creativity; and depending upon a few important +factors, those creators could earn more on average from this system +than creators do today—all so long as the RCAs of our day don't +use the law to protect themselves against this competition. + ++Yet, as I argue in the pages that follow, that is precisely what is +happening in our culture today. These modern-day equivalents of the +early twentieth-century radio or nineteenth-century railroads are +using their power to get the law to protect them against this new, +more efficient, more vibrant technology for building culture. They are +succeeding in their plan to remake the Internet before the Internet +remakes them. It doesn't seem this way to many. The battles over copyright and the @@ -801,12 +915,11 @@ Internet seem remote to most. To the few who follow them, they seem mainly about a much simpler brace of questions—whether "piracy" will be permitted, and whether "property" will be protected. The "war" that has been waged against the technologies of the Internet—what - Motion -Picture Association of America (MPAA) president Jack Valenti +Motion Picture Association of America (MPAA) president Jack Valenti calls his "own terrorist war" —has been framed as a battle about the rule of law and respect for property. To know which side to take in this war, most think that we need only decide whether we're for property or @@ -814,12 +927,11 @@ against it. Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates -Use New Tools to Turn the Net into an Illicit Video Club," New York -Times, 17 January 2002. +Use New Tools to Turn the Net into an Illicit Video Club," New York +Times , 17 January 2002.If those really were the choices, then I would be with Jack Valenti -and the content industry. I, too, am a believer in property, and - especially -in the importance of what Mr. Valenti nicely calls "creative - property." -I believe that "piracy" is wrong, and that the law, properly tuned, -should punish "piracy," whether on or off the Internet. +and the content industry. I, too, am a believer in property, and +especially in the importance of what Mr. Valenti nicely calls +"creative property." I believe that "piracy" is wrong, and that the +law, properly tuned, should punish "piracy," whether on or off the +Internet. But those simple beliefs mask a much more fundamental question @@ -832,93 +944,90 @@ These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. -And as Professor Neil Netanel powerfully argues, + +-Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law -Journal 106 (1996): 283. +And as Professor Neil Netanel powerfully argues, + -copyright law, - properly -balanced, protected creators against private control. Our tradition -was thus neither Soviet nor the tradition of patrons. It instead carved out -a wide berth within which creators could cultivate and extend our culture. +copyright law, properly balanced, protected creators against private +control. Our tradition was thus neither Soviet nor the tradition of +patrons. It instead carved out a wide berth within which creators +could cultivate and extend our culture.+Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law +Journal 106 (1996): 283. +Netanel, Neil Weinstock Yet the law's response to the Internet, when tied to changes in the -technology of the Internet itself, has massively increased the effective -regulation of creativity in America. To build upon or critique the - culture -around us one must ask, Oliver Twist–like, for permission first. -Permission is, of course, often granted—but it is not often granted to -the critical or the independent. We have built a kind of cultural - nobility; -those within the noble class live easily; those outside it don't. But it -is nobility of any form that is alien to our tradition. - - --The story that follows is about this war. Is it not about the - "centrality -of technology" to ordinary life. I don't believe in gods, digital or -otherwise. Nor is it an effort to demonize any individual or group, for -neither do I believe in a devil, corporate or otherwise. It is not a - morality -tale. Nor is it a call to jihad against an industry. - --It is instead an effort to understand a hopelessly destructive war - inspired -by the technologies of the Internet but reaching far beyond its -code. And by understanding this battle, it is an effort to map peace. -There is no good reason for the current struggle around Internet - technologies -to continue. There will be great harm to our tradition and -culture if it is allowed to continue unchecked. We must come to - understand -the source of this war. We must resolve it soon. - --Like the Causbys' battle, this war is, in part, about "property." -The property of this war is not as tangible as the Causbys', and no -innocent chicken has yet to lose its life. Yet the ideas surrounding this -"property" are as obvious to most as the Causbys' claim about the - sacredness -of their farm was to them. We are the Causbys. Most of us -take for granted the extraordinarily powerful claims that the owners of -"intellectual property" now assert. Most of us, like the Causbys, treat -these claims as obvious. And hence we, like the Causbys, object when -a new technology interferes with this property. It is as plain to us as it -was to them that the new technologies of the Internet are "trespassing" -upon legitimate claims of "property." It is as plain to us as it was to -them that the law should intervene to stop this trespass. - +technology of the Internet itself, has massively increased the +effective regulation of creativity in America. To build upon or +critique the culture around us one must ask, Oliver Twist–like, +for permission first. Permission is, of course, often +granted—but it is not often granted to the critical or the +independent. We have built a kind of cultural nobility; those within +the noble class live easily; those outside it don't. But it is +nobility of any form that is alien to our tradition. ++The story that follows is about this war. Is it not about the +"centrality of technology" to ordinary life. I don't believe in gods, +digital or otherwise. Nor is it an effort to demonize any individual +or group, for neither do I believe in a devil, corporate or +otherwise. It is not a morality tale. Nor is it a call to jihad +against an industry. + ++It is instead an effort to understand a hopelessly destructive war +inspired by the technologies of the Internet but reaching far beyond +its code. And by understanding this battle, it is an effort to map +peace. There is no good reason for the current struggle around +Internet technologies to continue. There will be great harm to our +tradition and culture if it is allowed to continue unchecked. We must +come to understand the source of this war. We must resolve it soon. + ++ Causby, Thomas Lee + Causby, Tinie +Like the Causbys' battle, this war is, in part, about "property." The +property of this war is not as tangible as the Causbys', and no +innocent chicken has yet to lose its life. Yet the ideas surrounding +this "property" are as obvious to most as the Causbys' claim about the +sacredness of their farm was to them. We are the Causbys. Most of us +take for granted the extraordinarily powerful claims that the owners +of "intellectual property" now assert. Most of us, like the Causbys, +treat these claims as obvious. And hence we, like the Causbys, object +when a new technology interferes with this property. It is as plain to +us as it was to them that the new technologies of the Internet are +"trespassing" upon legitimate claims of "property." It is as plain to +us as it was to them that the law should intervene to stop this +trespass. + ++ Causby, Thomas Lee Causby, Tinie And thus, when geeks and technologists defend their Armstrong or -Wright brothers technology, most of us are simply unsympathetic. - Common -sense does not revolt. Unlike in the case of the unlucky Causbys, -common sense is on the side of the property owners in this war. Unlike +Wright brothers technology, most of us are simply unsympathetic. +Common sense does not revolt. Unlike in the case of the unlucky +Causbys, common sense is on the side of the property owners in this +war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side. -My hope is to push this common sense along. I have become - increasingly -amazed by the power of this idea of intellectual property -and, more importantly, its power to disable critical thought by policy -makers and citizens. There has never been a time in our history when -more of our "culture" was as "owned" as it is now. And yet there has -never been a time when the concentration of power to control the uses -of culture has been as unquestioningly accepted as it is now. +My hope is to push this common sense along. I have become increasingly +amazed by the power of this idea of intellectual property and, more +importantly, its power to disable critical thought by policy makers +and citizens. There has never been a time in our history when more of +our "culture" was as "owned" as it is now. And yet there has never +been a time when the concentration of power to control the + uses of culture has been as unquestioningly +accepted as it is now.-The puzzle is, Why? -Is it because we have come to understand a truth about the value -and importance of absolute property over ideas and culture? Is it - because -we have discovered that our tradition of rejecting such an - absolute -claim was wrong? +The puzzle is, Why? Is it because we have come to understand a truth +about the value and importance of absolute property over ideas and +culture? Is it because we have discovered that our tradition of +rejecting such an absolute claim was wrong? Or is it because the idea of absolute property over ideas and culture @@ -932,22 +1041,22 @@ radical shift away from our tradition of free culture yet another example of a political system captured by a few powerful special interests? -Does common sense lead to the extremes on this question because -common sense actually believes in these extremes? Or does common -sense stand silent in the face of these extremes because, as with - Armstrong -versus RCA, the more powerful side has ensured that it has the -more powerful view? +Does common sense lead to the extremes on this question because common +sense actually believes in these extremes? Or does common sense stand +silent in the face of these extremes because, as with Armstrong versus +RCA, the more powerful side has ensured that it has the more powerful +view? ++ Causby, Thomas Lee Causby, Tinie -I don't mean to be mysterious. My own views are resolved. I believe -it was right for common sense to revolt against the extremism of the -Causbys. I believe it would be right for common sense to revolt against -the extreme claims made today on behalf of "intellectual property." -What the law demands today is increasingly as silly as a sheriff - arresting -an airplane for trespass. But the consequences of this silliness will -be much more profound. +I don't mean to be mysterious. My own views are resolved. I believe it +was right for common sense to revolt against the extremism of the +Causbys. I believe it would be right for common sense to revolt +against the extreme claims made today on behalf of "intellectual +property." What the law demands today is increasingly as silly as a +sheriff arresting an airplane for trespass. But the consequences of +this silliness will be much more profound. @@ -957,48 +1066,45 @@ ideas. My method is not the usual method of an academic. I don't want to -plunge you into a complex argument, buttressed with references to - obscure -French theorists—however natural that is for the weird sort we -academics have become. Instead I begin in each part with a collection -of stories that set a context within which these apparently simple ideas -can be more fully understood. +plunge you into a complex argument, buttressed with references to +obscure French theorists—however natural that is for the weird +sort we academics have become. Instead I begin in each part with a +collection of stories that set a context within which these apparently +simple ideas can be more fully understood. The two sections set up the core claim of this book: that while the -Internet has indeed produced something fantastic and new, our - government, -pushed by big media to respond to this "something new," is +Internet has indeed produced something fantastic and new, our +government, pushed by big media to respond to this "something new," is destroying something very old. Rather than understanding the changes the Internet might permit, and rather than taking time to let "common -sense" resolve how best to respond, we are allowing those most - threatened -by the changes to use their power to change the law—and more -importantly, to use their power to change something fundamental about -who we have always been. - --We allow this, I believe, not because it is right, and not because -most of us really believe in these changes. We allow it because the - interests -most threatened are among the most powerful players in our -depressingly compromised process of making law. This book is the -story of one more consequence of this form of corruption—a - consequence +sense" resolve how best to respond, we are allowing those most +threatened by the changes to use their power to change the +law—and more importantly, to use their power to change something +fundamental about who we have always been. + ++We allow this, I believe, not because it is right, and not because +most of us really believe in these changes. We allow it because the +interests most threatened are among the most powerful players in our +depressingly compromised process of making law. This book is the story +of one more consequence of this form of corruption—a consequence to which most of us remain oblivious. -+ "PIRACY" - +- -Since the inception of the law regulating creative property, there -has been a war against "piracy." The precise contours of this concept, -"piracy," are hard to sketch, but the animating injustice is easy to - capture. -As Lord Mansfield wrote in a case that extended the reach of + ++ +Mansfield, William Murray, Lord ++Since the inception of the law regulating creative property, there has +been a war against "piracy." The precise contours of this concept, +"piracy," are hard to sketch, but the animating injustice is easy to +capture. As Lord Mansfield wrote in a case that extended the reach of English copyright law to include sheet music, @@ -1007,37 +1113,35 @@ A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying copies and disposing of them for his own use.-Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). + Bach v.Longman , 98 Eng. Rep. 1274 (1777) (Mansfield).
@@ -1183,24 +1284,21 @@ our wives and friends were going to see the picture.
@@ -1723,7 +1791,7 @@ improved. Roll film thus became the basis for the explosive growth of popular photography. Eastman's camera first went on sale in 1888; one year later, Kodak was printing more than six thousand negatives a day. From 1888 through 1909, while industrial production was rising by 4.7 -percent, photographic equipment and material sales increased by +percent, photographic equipment and material sales increased by 11 percent.-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, +Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. +Coe, Brian
@@ -2013,36 +2067,37 @@ Couch potatoes. Consumers. This is the world of media from the twentieth century. -The twenty-first century could be different. This is the crucial point: -It could be both read and write. Or at least reading and better - understanding -the craft of writing. Or best, reading and understanding the -tools that enable the writing to lead or mislead. The aim of any literacy, +The twenty-first century could be different. This is the crucial +point: It could be both read and write. Or at least reading and better +understanding the craft of writing. Or best, reading and understanding +the tools that enable the writing to lead or mislead. The aim of any +literacy, -and this literacy in particular, is to "empower people to choose the - appropriate -language for what they need to create or express." +and this literacy in particular, is to "empower people to choose the +appropriate 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. - It is to enable students "to communicate in the +language of the twenty-first century." + + 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 @@ -2053,36 +2108,33 @@ 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 +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."But isn't education about teaching kids to write?" I asked. In part, -of course, it is. But why are we teaching kids to write? Education, - Daley -explained, is about giving students a way of "constructing - meaning." -To say that that means just writing is like saying teaching writing -is only about teaching kids how to spell. Text is one part—and - increasingly, -not the most powerful part—of constructing meaning. As Daley -explained in the most moving part of our interview, +of course, it is. But why are we teaching kids to write? Education, +Daley explained, is about giving students a way of "constructing +meaning." To say that that means just writing is like saying teaching +writing is only about teaching kids how to spell. Text is one +part—and increasingly, not the most powerful part—of +constructing meaning. As Daley explained in the most moving part of +our interview, @@ -2099,10 +2151,10 @@ you. [But i]nstead, if you say, "Well, with all these things that you can do, let's talk about this issue. Play for me music that you think reflects that, or show me images that you think reflect that, or draw for me something that reflects that." Not by giving a kid a video -camera and . . . saying, "Let's go have fun with the video camera and +camera and … saying, "Let's go have fun with the video camera and make a little movie." But instead, really help you take these elements that you understand, that are your language, and construct meaning -about the topic. . . . +about the topic. … That empowers enormously. And then what happens, of @@ -2151,7 +2203,7 @@ world and presented them as slide shows with text. Some offered open letters. There were sound recordings. There was anger and frustration. There were attempts to provide context. There was, in short, an extraordinary worldwide barn raising, in the sense Mike Godwin uses -the term in his book Cyber Rights, around a news event that had +the term in his book @@ -2175,13 +2227,13 @@ that this mix of captured images, sound, and commentary can be widely spread practically instantaneously.Cyber Rights , around a news event that had captured the attention of the world. There was ABC and CBS, but there was also the Internet.-September 11 was not an aberration. It was a beginning. Around -the same time, a form of communication that has grown dramatically -was just beginning to come into public consciousness: the Web-log, or -blog. The blog is a kind of public diary, and within some cultures, such -as in Japan, it functions very much like a diary. In those cultures, it -records private facts in a public way—it's a kind of electronic Jerry -Springer, available anywhere in the world. +September 11 was not an aberration. It was a beginning. Around the +same time, a form of communication that has grown dramatically was +just beginning to come into public consciousness: the Web-log, or +blog. The blog is a kind of public diary, and within some cultures, +such as in Japan, it functions very much like a diary. In those +cultures, it records private facts in a public way—it's a kind +of electronic Jerry Springer , available anywhere in the world.But in the United States, blogs have taken on a very different @@ -2224,8 +2276,8 @@ persuade each other of the "right" result, and in criminal cases at least, they had to agree upon a unanimous result for the process to come to an end. -See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans. -Henry Reeve (New York: Bantam Books, 2000), ch. 16. +See, for example, Alexis de Tocqueville, Democracy in America , +bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.@@ -2233,37 +2285,31 @@ Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some are pushing to create just such an institution. --And in some towns in -New England, something close to deliberation remains. But for most -of us for most of the time, there is no time or place for "democratic - deliberation" -to occur. - -Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of - Political -Philosophy 10 (2) (2002): 129. - -More bizarrely, there is generally not even permission for it to - occur. -We, the most powerful democracy in the world, have developed a -strong norm against talking about politics. It's fine to talk about - politics -with people you agree with. But it is rude to argue about politics -with people you disagree with. Political discourse becomes isolated, -and isolated discourse becomes more extreme. ++And in some towns in New England, something close to deliberation +remains. But for most of us for most of the time, there is no time or +place for "democratic deliberation" to occur. + +Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of +Political Philosophy 10 (2) (2002): 129. ++More bizarrely, there is generally not even permission for it to +occur. We, the most powerful democracy in the world, have developed a +strong norm against talking about politics. It's fine to talk about +politics with people you agree with. But it is rude to argue about +politics with people you disagree with. Political discourse becomes +isolated, and isolated discourse becomes more extreme. We say what our -friends want to hear, and hear very little beyond what our friends say. + -Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), +Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), 65–80, 175, 182, 183, 192. -
I was definitely not an activist [before]. I never really meant to be -an activist. . . . [But] I've been pushed into this. In no way did I +an activist. … [But] I've been pushed into this. In no way did I ever foresee anything like this, but I think it's just completely - absurd -what the RIAA has done. +absurd what the RIAA has done.
@@ -3250,101 +3239,95 @@ 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). + Zimmerman, Edwin Zimmerman, Edwin
@@ -9003,17 +8788,14 @@ which they will be able to access digital media and the equipment that they will require to do so. Poor choices made this early in the game will retard the growth of this market, hurting everyone's interests. + +WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital +Entertainment on the Internet and Other Media: Hearing Before the +Subcommittee on Telecommunications, Trade, and Consumer Protection, +House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter +Harter, vice president, Global Public Policy and Standards, +EMusic.com), available in LEXIS, Federal Document Clearing House +Congressional Testimony File. - WIPO and the DMCA One Year Later: Assessing Consumer Access to -Digital Entertainment on the Internet and Other Media: Hearing Before -the Subcommittee on Telecommunications, Trade, and Consumer - Protection, -House Committee on Commerce, 106th Cong. 29 (1999) (statement -of Peter Harter, vice president, Global Public Policy and Standards, - EMusic.com), -available in LEXIS, Federal Document Clearing House - Congressional -Testimony File. -
+BMW 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 engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this - forward -for release stateside. Even today, no new cars are sold in the -United States with bona fide MP3 players. . . . - Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June +forward for release stateside. Even today, no new cars are sold in the +United States with bona fide MP3 players. … + + +Rafe Needleman, "Driving in Cars with MP3s," Business 2.0 , 16 June 2003, available at -link #43 . I am grateful to Dr. Mohammad Al-Ubaydli -for this example. +link #43 . I am grateful +to Dr. Mohammad Al-Ubaydli for this example. +Needleman, Rafe
An almost unlimited number of FM stations was possible in the -shortwaves, thus ending the unnatural restrictions imposed on - radio -in the crowded longwaves. If FM were freely developed, the -number of stations would be limited only by economics and - competition -rather than by technical restrictions. . . . Armstrong -likened the situation that had grown up in radio to that following -the invention of the printing press, when governments and ruling -interests attempted to control this new instrument of mass - communications -by imposing restrictive licenses on it. This tyranny -was broken only when it became possible for men freely to - acquire -printing presses and freely to run them. FM in this sense -was as great an invention as the printing presses, for it gave radio -the opportunity to strike off its shackles. - Lessing, 239. +shortwaves, thus ending the unnatural restrictions imposed on radio in +the crowded longwaves. If FM were freely developed, the number of +stations would be limited only by economics and competition rather +than by technical restrictions. … Armstrong likened the situation +that had grown up in radio to that following the invention of the +printing press, when governments and ruling interests attempted to +control this new instrument of mass communications by imposing +restrictive licenses on it. This tyranny was broken only when it +became possible for men freely to acquire printing presses and freely +to run them. FM in this sense was as great an invention as the +printing presses, for it gave radio the opportunity to strike off its +shackles. + +Lessing, 239.
-then all of a sudden a lot of basic civil liberty protections - evaporate -to one degree or another. . . . If you're a copyright infringer, -how can you hope to have any privacy rights? If you're a copyright -infringer, how can you hope to be secure against seizures of your -computer? How can you hope to continue to receive Internet -access? . . . Our sensibilities change as soon as we think, "Oh, -well, but that person's a criminal, a lawbreaker." Well, what this -campaign against file sharing has done is turn a remarkable - percentage -of the American Internet-using population into - "lawbreakers." +then all of a sudden a lot of basic civil liberty protections +evaporate to one degree or another. … If you're a copyright +infringer, how can you hope to have any privacy rights? If you're a +copyright infringer, how can you hope to be secure against seizures of +your computer? How can you hope to continue to receive Internet +access? … Our sensibilities change as soon as we think, "Oh, well, +but that person's a criminal, a lawbreaker." Well, what this campaign +against file sharing has done is turn a remarkable percentage of the +American Internet-using population into "lawbreakers."
So when we're talking about numbers like forty to sixty million Americans that are essentially copyright infringers, you create a situation where the civil liberties of those people are very much in -peril in a general matter. [I don't] think [there is any] analog -where you could randomly choose any person off the street and be -confident that they were committing an unlawful act that could -put them on the hook for potential felony liability or hundreds of -millions of dollars of civil liability. Certainly we all speed, but -speeding isn't the kind of an act for which we routinely forfeit -civil liberties. Some people use drugs, and I think that's the - closest -analog, [but] many have noted that the war against drugs has -eroded all of our civil liberties because it's treated so many - Americans -as criminals. Well, I think it's fair to say that file sharing -is an order of magnitude larger number of Americans than drug -use. . . . If forty to sixty million Americans have become - lawbreakers, -then we're really on a slippery slope to lose a lot of civil -liberties for all forty to sixty million of them. +peril in a general matter. [I don't] think [there is any] analog where +you could randomly choose any person off the street and be confident +that they were committing an unlawful act that could put them on the +hook for potential felony liability or hundreds of millions of dollars +of civil liability. Certainly we all speed, but speeding isn't the +kind of an act for which we routinely forfeit civil liberties. Some +people use drugs, and I think that's the closest analog, [but] many +have noted that the war against drugs has eroded all of our civil +liberties because it's treated so many Americans as criminals. Well, I +think it's fair to say that file sharing is an order of magnitude +larger number of Americans than drug use. … If forty to sixty +million Americans have become lawbreakers, then we're really on a +slippery slope to lose a lot of civil liberties for all forty to sixty +million of them.
-Congress has the power to promote the Progress of Science . . . -by securing for limited Times to Authors . . . exclusive Right to -their . . . Writings. . . . +Congress has the power to promote the Progress of Science … +by securing for limited Times to Authors … exclusive Right to +their … Writings. …
-justice scalia: You say that the functional equivalent of an - unlimited -time would be a violation [of the Constitution], but that's -precisely the argument that's being made by petitioners here, that -a limited time which is extendable is the functional equivalent of -an unlimited time. +justice scalia: You say that the functional equivalent of an unlimited +time would be a violation [of the Constitution], but that's precisely +the argument that's being made by petitioners here, that a limited +time which is extendable is the functional equivalent of an unlimited +time.
In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of -copyright perpetuity. The public domain has been a grand - experiment, -one that should not be allowed to die. The ability to draw -freely on the entire creative output of humanity is one of the - reasons -we live in a time of such fruitful creative ferment. +copyright perpetuity. The public domain has been a grand experiment, +one that should not be allowed to die. The ability to draw freely on +the entire creative output of humanity is one of the reasons we live +in a time of such fruitful creative ferment.
@@ -14250,8 +13844,9 @@ a copyright runs. And they don't make sense as an amorphous grant. Consider each limitation in turn. -Term: If Congress wants to grant a derivative right, then that right -should be for a much shorter term. It makes sense to protect John + Term: If Congress wants to grant a derivative +right, then that right should be for a much shorter term. It makes +sense to protect John Grisham's right to sell the movie rights to his latest novel (or at least @@ -14259,100 +13854,91 @@ I'm willing to assume it does); but it does not make sense for that right to run for the same term as the underlying copyright. The derivative right could be important in inducing creativity; it is not important long after the creative work is done. +Grisham, John -Scope: Likewise should the scope of derivative rights be narrowed. -Again, there are some cases in which derivative rights are important. -Those should be specified. But the law should draw clear lines around -regulated and unregulated uses of copyrighted material. When all -"reuse" of creative material was within the control of businesses, - perhaps -it made sense to require lawyers to negotiate the lines. It no longer -makes sense for lawyers to negotiate the lines. Think about all the - creative -possibilities that digital technologies enable; now imagine - pouring -molasses into the machines. That's what this general requirement -of permission does to the creative process. Smothers it. + Scope: Likewise should the scope of derivative +rights be narrowed. Again, there are some cases in which derivative +rights are important. Those should be specified. But the law should +draw clear lines around regulated and unregulated uses of copyrighted +material. When all "reuse" of creative material was within the control +of businesses, perhaps it made sense to require lawyers to negotiate +the lines. It no longer makes sense for lawyers to negotiate the +lines. Think about all the creative possibilities that digital +technologies enable; now imagine pouring molasses into the +machines. That's what this general requirement of permission does to +the creative process. Smothers it.-This was the point that Alben made when describing the making of -the Clint Eastwood CD. While it makes sense to require negotiation -for foreseeable derivative rights—turning a book into a movie, or a -poem into a musical score—it doesn't make sense to require - negotiation -for the unforeseeable. Here, a statutory right would make much -more sense. +This was the point that Alben made when describing the making of the +Clint Eastwood CD. While it makes sense to require negotiation for +foreseeable derivative rights—turning a book into a movie, or a +poem into a musical score—it doesn't make sense to require +negotiation for the unforeseeable. Here, a statutory right would make +much more sense. -In each of these cases, the law should mark the uses that are - protected, -and the presumption should be that other uses are not - protected. -This is the reverse of the recommendation of my colleague Paul -Goldstein. - Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial - Jukebox -(Stanford: Stanford University Press, 2003), 187–216. +In each of these cases, the law should mark the uses that are +protected, and the presumption should be that other uses are not +protected. This is the reverse of the recommendation of my colleague +Paul Goldstein. + - His view is that the law should be written so that expanded -protections follow expanded uses. +His view is that the law should be written so that +expanded protections follow expanded uses.+ +Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial +Jukebox (Stanford: Stanford University Press, 2003), 187–216. +Goldstein, Paul -Goldstein's analysis would make perfect sense if the cost of the - legal +Goldstein's analysis would make perfect sense if the cost of the legal system were small. But as we are currently seeing in the context of -the Internet, the uncertainty about the scope of protection, and the - incentives -to protect existing architectures of revenue, combined with a -strong copyright, weaken the process of innovation. +the Internet, the uncertainty about the scope of protection, and the +incentives to protect existing architectures of revenue, combined with +a strong copyright, weaken the process of innovation. The law could remedy this problem either by removing protection beyond the part explicitly drawn or by granting reuse rights upon - certain -statutory conditions. Either way, the effect would be to free a great -deal of culture to others to cultivate. And under a statutory rights -regime, that reuse would earn artists more income. +certain statutory conditions. Either way, the effect would be to free +a great deal of culture to others to cultivate. And under a statutory +rights regime, that reuse would earn artists more income. -