+A glass of water was poured before the microphone in Yonkers; it -sounded like a glass of water being poured. . . . A paper was +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 @@ -603,11 +609,12 @@ 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. +deviousness. Lessing, 256.
@@ -1183,12 +1182,11 @@ our wives and friends were going to see the picture.
-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. + + Coe, Brian Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. @@ -1733,22 +1685,20 @@ an average annual increase of over 17 percent. +Based on a chart in Jenkins, p. 178. Coe, Brian The real significance of Eastman's invention, however, was not economic. It was social. Professional photography gave individuals a -glimpse of places they would never otherwise see. Amateur - photography +glimpse of places they would never otherwise see. Amateur photography gave them the ability to record their own lives in a way they had -never been able to do before. As author Brian Coe notes, "For the first -time the snapshot album provided the man on the street with a - permanent -record of his family and its activities. . . . For the first time in -history there exists an authentic visual record of the appearance and - activities -of the common man made without [literary] interpretation -or bias." +never been able to do before. As author Brian Coe notes, "For the +first time the snapshot album provided the man on the street with a +permanent record of his family and its activities. . . . For the first +time in history there exists an authentic visual record of the +appearance and activities of the common man made without [literary] +interpretation or bias." @@ -1768,11 +1718,10 @@ have before. Coe, 58. What was required for this technology to flourish? Obviously, -Eastman's genius was an important part. But also important was the - legal -environment within which Eastman's invention grew. For early in -the history of photography, there was a series of judicial decisions that -could well have changed the course of photography substantially. +Eastman's genius was an important part. But also important was the +legal environment within which Eastman's invention grew. For early in +the history of photography, there was a series of judicial decisions +that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no. @@ -1781,104 +1730,93 @@ For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E -The arguments in favor of requiring permission will sound - surprisingly -familiar. The photographer was "taking" something from the - person -or building whose photograph he shot—pirating something of -value. Some even thought he was taking the target's soul. Just as - Disney -was not free to take the pencils that his animators used to draw +The arguments in favor of requiring permission will sound surprisingly +familiar. The photographer was "taking" something from the person or +building whose photograph he shot—pirating something of +value. Some even thought he was taking the target's soul. Just as +Disney was not free to take the pencils that his animators used to +draw Mickey, so, too, should these photographers not be free to take images that they thought valuable. +Brandeis, Louis D. On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should have the right to capture at least those images that stand in public view. (Louis Brandeis, who would become a Supreme Court Justice, thought -the rule should be different for images from private spaces. ) It may be that this means that the photographer +gets something for nothing. Just as Disney could take inspiration from +Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be +free to capture an image without compensating the source. +the rule should be different for images from private spaces. + ) It may be -that this means that the photographer gets something for nothing. Just -as Disney could take inspiration from Steamboat Bill, Jr. or the - Brothers -Grimm, the photographer should be free to capture an image - without -compensating the source. +Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," +Harvard Law Review 4 (1890): 193. ++ Brandeis, Louis D. + Warren, Samuel D. -Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," - Harvard -Law Review 4 (1890): 193. - Fortunately for Mr. Eastman, and for photography in general, these -early decisions went in favor of the pirates. In general, no permission -would be required before an image could be captured and shared with -others. Instead, permission was presumed. Freedom was the default. -(The law would eventually craft an exception for famous people: - commercial -photographers who snap pictures of famous people for - commercial -purposes have more restrictions than the rest of us. But in the -ordinary case, the image can be captured without clearing the rights to -do the capturing. +early decisions went in favor of the pirates. In general, no +permission would be required before an image could be captured and +shared with others. Instead, permission was presumed. Freedom was the +default. (The law would eventually craft an exception for famous +people: commercial photographers who snap pictures of famous people +for commercial purposes have more restrictions than the rest of +us. But in the ordinary case, the image can be captured without +clearing the rights to do the capturing. ) See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary -Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law - Review -48 (1960) 398–407; White v. Samsung Electronics America, Inc., 971 F. -2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). +Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law +Review 48 (1960) 398–407; White v. Samsung Electronics America, +Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 +(1993). -We can only speculate about how photography would have - developed -had the law gone the other way. If the presumption had been -against the photographer, then the photographer would have had to -demonstrate permission. Perhaps Eastman Kodak would have had to -demonstrate permission, too, before it developed the film upon which -images were captured. After all, if permission were not granted, then -Eastman Kodak would be benefiting from the "theft" committed by -the photographer. Just as Napster benefited from the copyright - infringements -committed by Napster users, Kodak would be benefiting +We can only speculate about how photography would have developed had +the law gone the other way. If the presumption had been against the +photographer, then the photographer would have had to demonstrate +permission. Perhaps Eastman Kodak would have had to demonstrate +permission, too, before it developed the film upon which images were +captured. After all, if permission were not granted, then Eastman +Kodak would be benefiting from the "theft" committed by the +photographer. Just as Napster benefited from the copyright +infringements committed by Napster users, Kodak would be benefiting from the "image-right" infringement of its photographers. We could imagine the law then requiring that some form of permission be -demonstrated before a company developed pictures. We could imagine -a system developing to demonstrate that permission. +demonstrated before a company developed pictures. We could imagine a +system developing to demonstrate that permission. -But though we could imagine this system of permission, it would -be very hard to see how photography could have flourished as it did if -the requirement for permission had been built into the rules that - govern -it. Photography would have existed. It would have grown in - importance -over time. Professionals would have continued to use the -technology as they did—since professionals could have more easily borne -the burdens of the permission system. But the spread of photography -to ordinary people would not have occurred. Nothing like that growth -would have been realized. And certainly, nothing like that growth in a -democratic technology of expression would have been realized. -If you drive through San Francisco's Presidio, you might see two -gaudy yellow school buses painted over with colorful and striking - images, -and the logo "Just Think!" in place of the name of a school. But -there's little that's "just" cerebral in the projects that these busses - enable. -These buses are filled with technologies that teach kids to tinker -with film. Not the film of Eastman. Not even the film of your VCR. -Rather the "film" of digital cameras. Just Think! is a project that - enables -kids to make films, as a way to understand and critique the filmed -culture that they find all around them. Each year, these busses travel to -more than thirty schools and enable three hundred to five hundred -children to learn something about media by doing something with - media. -By doing, they think. By tinkering, they learn. +But though we could imagine this system of permission, it would be +very hard to see how photography could have flourished as it did if +the requirement for permission had been built into the rules that +govern it. Photography would have existed. It would have grown in +importance over time. Professionals would have continued to use the +technology as they did—since professionals could have more +easily borne the burdens of the permission system. But the spread of +photography to ordinary people would not have occurred. Nothing like +that growth would have been realized. And certainly, nothing like that +growth in a democratic technology of expression would have been +realized. If you drive through San Francisco's Presidio, you might +see two gaudy yellow school buses painted over with colorful and +striking images, and the logo "Just Think!" in place of the name of a +school. But there's little that's "just" cerebral in the projects that +these busses enable. These buses are filled with technologies that +teach kids to tinker with film. Not the film of Eastman. Not even the +film of your VCR. Rather the "film" of digital cameras. Just Think! +is a project that enables kids to make films, as a way to understand +and critique the filmed culture that they find all around them. Each +year, these busses travel to more than thirty schools and enable three +hundred to five hundred children to learn something about media by +doing something with media. By doing, they think. By tinkering, they +learn. These buses are not cheap, but the technology they carry is @@ -1902,11 +1840,10 @@ teachers call "media literacy." "Media literacy," as Dave Yanofsky, the executive director of Just -Think!, puts it, "is the ability . . . to understand, analyze, and - deconstruct -media images. Its aim is to make [kids] literate about the way -media works, the way it's constructed, the way it's delivered, and the -way people access it." +Think!, puts it, "is the ability . . . to understand, analyze, and +deconstruct media images. Its aim is to make [kids] literate about the +way media works, the way it's constructed, the way it's delivered, and +the way people access it." This may seem like an odd way to think about "literacy." For most @@ -1917,8 +1854,7 @@ about. Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 - commercials -generally, +commercials generally, Judith Van Evra, Television and Child Development (Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); "Findings on Family and TV @@ -1959,15 +1895,16 @@ California's Annenberg Center for Communication and dean of the USC School of Cinema-Television, explained to me, the grammar was about "the placement of objects, color, . . . rhythm, pacing, and - texture." + texture." ++ But as computers open up an interactive space where a story is "played" as well as experienced, that grammar changes. The simple -control of narrative is lost, and so other techniques are necessary. - Author +control of narrative is lost, and so other techniques are necessary. Author Michael Crichton had mastered the narrative of science fiction. But when he tried to design a computer game based on one of his works, it was a new craft he had to learn. How to lead people through @@ -1975,28 +1912,25 @@ a game without their feeling they have been led was not obvious, even to a wildly successful author.+ Barish, Stephanie Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4 - November -2000, available at +November 2000, available at link #8 ; "Timeline," 22 November 2000, - available -at +available atlink #9 .computer games -This skill is precisely the craft a filmmaker learns. As Daley - describes, -"people are very surprised about how they are led through a +This skill is precisely the craft a filmmaker learns. As Daley +describes, "people are very surprised about how they are led through a film. [I]t is perfectly constructed to keep you from seeing it, so you have no idea. If a filmmaker succeeds you do not know how you were led." If you know you were led through a film, the film has failed. -Yet the push for an expanded literacy—one that goes beyond text to -include audio and visual elements—is not about making better film - directors. -The aim is not to improve the profession of filmmaking at all. -Instead, as Daley explained, +Yet the push for an expanded literacy—one that goes beyond text +to include audio and visual elements—is not about making better +film directors. The aim is not to improve the profession of +filmmaking at all. Instead, as Daley explained, @@ -2021,7 +1955,9 @@ 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 @@ -2030,19 +1966,18 @@ students "to communicate in the language of the twenty-first century."+ Barish, Stephanie Interview with Daley and Barish. 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 +1988,21 @@ 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 +2238,20 @@ 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 +2264,60 @@ 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 +2412,7 @@ 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."+ CNN 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.") 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 +2422,22 @@ 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 +2445,16 @@ 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 +2471,59 @@ 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 +2544,39 @@ 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 +2614,14 @@ $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 +2634,7 @@ 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 +2652,7 @@ 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 +2669,7 @@ 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 +3124,55 @@ 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).
+-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. @@ -5284,6 +5144,7 @@ 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.