X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/86c982460cdb430b9f1afc523a0478f335f94f5a..b8830e24eee8650d7e2a693bbdcaeca5f1cee7e8:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 8b18f8e..37be603 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -1,13 +1,13 @@ + - @@ -35,30 +35,67 @@ - - 2004 - Lawrence Lessig - - + + + + Intellectual property—United States. + + + Mass media—United States. + + + Technological innovations—United States. + + + Art—United States. + + + + + + The Penguin Press +
New York
+ + + + 2004 + Lawrence Lessig + - + + + + + + + + + + Creative Commons, Some rights reserved + + + + + This version of Free Culture is licensed under a Creative Commons license. This license permits non-commercial use of this work, so long as attribution is given. For more information about the license, click the icon above, or visit http://creativecommons.org/licenses/by-nc/1.0/ - + ABOUT THE AUTHOR LAWRENCE LESSIG -(http://www.lessig.org), +(http://www.lessig.org), professor of law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons -(http://creativecommons.org). +(http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier @@ -71,11 +108,36 @@ clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals. - - - + + + + + + + + + 1-59420-006-8 + + 2003063276 + + + + + You can buy a copy of this book by clicking on one of the links below: @@ -85,9 +147,11 @@ You can buy a copy of this book by clicking on one of the links below: Penguin + - + + ALSO BY LAWRENCE LESSIG @@ -97,13 +161,17 @@ The Future of Ideas: The Fate of the Commons in a Connected World Code: And Other Laws of Cyberspace - + + + THE PENGUIN PRESS, NEW YORK - + + + FREE CULTURE @@ -117,8 +185,9 @@ AND CONTROL CREATIVITY LAWRENCE LESSIG - + + THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New York @@ -156,6 +225,7 @@ Includes index. ISBN 1-59420-006-8 (hardcover) + 1. Intellectual property—United States. 2. Mass media—United States. @@ -191,28 +261,24 @@ this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and -the above publisher of this book. The scanning, uploading, and -distribution of this book via the Internet or via any other means -without the permission of the publisher is illegal and punishable by -law. Please purchase only authorized electronic editions and do not -participate in or encourage electronic piracy of copyrighted -materials. Your support of the author's rights is appreciated. +the above publisher of this book. + + +The scanning, uploading, and distribution of this book via the +Internet or via any other means without the permission of the +publisher is illegal and punishable by law. Please purchase only +authorized electronic editions and do not participate in or encourage +electronic piracy of copyrighted materials. Your support of the +author's rights is appreciated. - + To Eric Eldred—whose work first drew me to this cause, and for whom it continues still. - - -
-Creative Commons, Some rights reserved - -
- @@ -313,7 +379,7 @@ Pogue might have been right in 1999—I'm skeptical, but maybe. But even if he was right then, the point is not right now: Free Culture is about the troubles the Internet causes even after the modem is turned - + off. It is an argument about how the battles that now rage regarding life on-line have fundamentally affected "people who aren't online." There is no switch that will insulate us from the Internet's effect. @@ -406,7 +472,7 @@ like Stallman, I believe those are values of our past that will need to be defended in our future. A free culture has been our past, but it will only be our future if we change the path we are on right now. - + Like Stallman's arguments for free software, an argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not @@ -429,7 +495,7 @@ book is written. - + INTRODUCTION On December 17, 1903, on a windy North Carolina beach for just @@ -517,7 +583,7 @@ Goldstein, Real Property (Mineola, N.Y.: Foundation Press This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It was Douglas's style not to dither. Other justices would have blathered on for pages to reach the - + conclusion that Douglas holds in a single line: "Common sense revolts at the idea." But whether it takes pages or a few words, it is the special genius of a common law system, as ours is, that the law adjusts to the @@ -587,10 +653,10 @@ The audience was hearing something no one had thought possible:
A glass of water was poured before the microphone in Yonkers; it -sounded like a glass of water being poured. . . . A paper was crumpled +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 +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 @@ -605,7 +671,7 @@ was working for RCA. RCA was the dominant player in the then dominant AM radio market. By 1935, there were a thousand radio stations across the United States, but the stations in large cities were all owned by a handful of networks. - + RCA's president, David Sarnoff, a friend of Armstrong's, was eager @@ -640,8 +706,8 @@ described, 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.Lessing, 226. @@ -704,7 +770,7 @@ 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. @@ -755,6 +821,8 @@ 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. +Barlow, Joel +Webster, Noah At the beginning of our history, and for just about the whole of our @@ -794,6 +862,7 @@ This rough divide between the free and the controlled has now been erased. See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13. +Litman, Jessica 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 @@ -949,7 +1018,7 @@ 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. @@ -1033,9 +1102,9 @@ to which most of us remain oblivious. - + "PIRACY" - + Mansfield, William Murray, Lord @@ -1158,6 +1227,7 @@ Byzantine complexity that copyright law has become. It was just one more expense of doing business. Florida, Richard +Rise of the Creative Class, The (Florida) But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of @@ -1175,17 +1245,20 @@ commercial and noncommercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may -be seeing, as Richard Florida writes, the "Rise of the Creative Class." +be seeing, as Richard Florida writes, the "Rise of the Creative +Class." -In The Rise of the Creative Class (New York: Basic Books, 2002), -Richard Florida documents a shift in the nature of labor toward a -labor of creativity. His work, however, doesn't directly address the -legal conditions under which that creativity is enabled or stifled. I -certainly agree with him about the importance and significance of this -change, but I also believe the conditions under which it will be -enabled are much more tenuous. +In The Rise of the Creative Class (New York: +Basic Books, 2002), Richard Florida documents a shift in the nature of +labor toward a labor of creativity. His work, however, doesn't +directly address the legal conditions under which that creativity is +enabled or stifled. I certainly agree with him about the importance +and significance of this change, but I also believe the conditions +under which it will be enabled are much more tenuous. + Florida, Richard +Rise of the Creative Class, The (Florida) Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. @@ -1195,9 +1268,10 @@ These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper context the current battles about behavior labeled "piracy." + -
+ CHAPTER ONE: Creators In 1928, a cartoon character was born. An early Mickey Mouse @@ -1475,9 +1549,9 @@ Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga flourish. As American graphic novelist Judd Winick said to me, "The early days of comics in America are very much like what's going on -in Japan now. . . . American comics were born out of copying each +in Japan now. … American comics were born out of copying each -other. . . . That's how [the artists] learn to draw—by going into comic +other. … That's how [the artists] learn to draw—by going into comic books and not tracing them, but looking at them and copying them" and building from them. @@ -1650,10 +1724,12 @@ free culture. It is becoming much less so. -
-
+ + CHAPTER TWO: "Mere Copyists" -Daguerre, Louis + + photography + In 1839, Louis Daguerre invented the first practical technology for producing what we would call "photographs." Appropriately enough, they @@ -1662,6 +1738,7 @@ expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) +Daguerre, Louis Yet despite high prices, the demand for daguerreotypes was strong. @@ -1673,6 +1750,7 @@ the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. +Talbot, William Eastman, George @@ -1697,12 +1775,13 @@ do the rest." Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112. As he described in The Kodak Primer: +Kodak Primer, The (Eastman)
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 +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, @@ -1726,7 +1805,7 @@ 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. Jenkins, 177. @@ -1746,7 +1825,7 @@ 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 +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." @@ -1874,6 +1953,7 @@ doing something with media. By doing, they think. By tinkering, they learn. + These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -1894,7 +1974,7 @@ learning more and more of something teachers call "media literacy." "Media literacy," as Dave Yanofsky, the executive director of Just -Think!, puts it, "is the ability . . . to understand, analyze, and +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." @@ -1947,7 +2027,7 @@ 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 +about "the placement of objects, color, … rhythm, pacing, and texture." @@ -2085,10 +2165,10 @@ 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 @@ -2397,8 +2477,8 @@ extraordinary to report. John Seely Brown is the chief scientist of the Xerox Corporation. -His work, as his Web site describes it, is "human learning and . . . the -creation of knowledge ecologies for creating . . . innovation." +His work, as his Web site describes it, is "human learning and … the +creation of knowledge ecologies for creating … innovation." Brown thus looks at these technologies of digital creativity a bit @@ -2429,7 +2509,7 @@ FS/OSS technology works can tinker with the code. This opportunity creates a "completely new kind of learning platform," -as Brown describes. "As soon as you start doing that, you . . . +as Brown describes. "As soon as you start doing that, you … unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it." Each effort is a kind of @@ -2440,7 +2520,7 @@ In this process, "the concrete things you tinker with are abstract. They are code." Kids are "shifting to the ability to tinker in the abstract, and this tinkering is no longer an isolated activity that you're doing in your garage. You are tinkering with a community -platform. . . . You are tinkering with other people's stuff. The more +platform. … You are tinkering with other people's stuff. The more you tinker the more you improve." The more you improve, the more you learn. @@ -2450,8 +2530,8 @@ collaborative way when that content is part of the Web. As Brown puts it, "the Web [is] the first medium that truly honors multiple forms of intelligence." Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web amplifies much more than -text. "The Web . . . says if you are musical, if you are artistic, if -you are visual, if you are interested in film . . . [then] there is a +text. "The Web … says if you are musical, if you are artistic, 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." @@ -2476,7 +2556,8 @@ 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 -10) has developed a powerful argument in favor of the "right to +) +has developed a powerful argument in favor of the "right to tinker" as it applies to computer science and to knowledge in general. @@ -2495,7 +2576,7 @@ 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 +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." @@ -2508,12 +2589,17 @@ the law to close down that technology. "No way to run a culture," as Brewster Kahle, whom we'll meet in -chapter 9, quipped to me in a rare moment of despondence. +chapter , +quipped to me in a rare moment of despondence. -
-
+ + CHAPTER THREE: Catalogs +RPIRensselaer Polytechnic Institute (RPI) + + Rensselaer Polytechnic Institute (RPI) + In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer Polytechnic Institute, in Troy, New York. @@ -2611,8 +2697,8 @@ 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 +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, @@ -2651,6 +2737,7 @@ Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC< (2003): 5, available at 2003 WL 55179443. + Jesse called his parents. They were supportive but a bit frightened. An uncle was a lawyer. He began negotiations with the RIAA. They @@ -2713,7 +2800,7 @@ 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 +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. @@ -2721,13 +2808,13 @@ absurd what the RIAA has done. Jesse's parents betray a certain pride in their reluctant activist. As his father told me, Jesse "considers himself very conservative, and so do -I. . . . He's not a tree hugger. . . . I think it's bizarre that they would +I. … He's not a tree hugger. … I think it's bizarre that they would pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record." -
-
+ + CHAPTER FOUR: "Pirates" If "piracy" means using the creative property of others without @@ -2793,6 +2880,7 @@ Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright" (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics, Working Paper No. 159. +Fox, William General Film Company Picker, Randal C. @@ -2830,6 +2918,10 @@ Edison's creative property. The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. + + Fourneaux, Henri + +Russel, Phil At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player @@ -2859,11 +2951,13 @@ then made copies of those recordings. Because of this gap in the law, then, I could effectively pirate someone else's song without paying its composer anything. + The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it, +Kittredge, Alfred
@@ -2880,6 +2974,7 @@ Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in Legislative History of the Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). +Kittredge, Alfred
@@ -2929,6 +3024,7 @@ To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). +American Graphophone Company The law soon resolved this battle in favor of the composer @@ -3116,6 +3212,7 @@ give away. Anello, Douglas Burdick, Quentin +Hyde, Rosel H. Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the practice as a kind of @@ -3126,6 +3223,7 @@ Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel H. Hyde, chairman of the Federal Communications Commission). +Hyde, Rosel H. There may have been a "public interest" in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association @@ -3164,6 +3262,7 @@ United Artists Television, Inc.).
+Heston, Charlton These were "free-ride[rs]," Screen Actor's Guild president Charlton Heston said, who were "depriving actors of @@ -3171,7 +3270,9 @@ compensation." Copyright Law Revision—CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). - +Heston, Charlton + + But again, there was another side to the debate. As Assistant Attorney @@ -3182,7 +3283,7 @@ General Edwin Zimmerman put it, 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 +should be permitted to extend that monopoly. … The question here is how much compensation they should have and @@ -3226,14 +3327,14 @@ permission or compensation—has grown with the Internet." — then every industry affected by copyright today is the product and beneficiary of a certain kind of -piracy. Film, records, radio, cable TV. . . . The list is long and +piracy. Film, records, radio, cable TV. … The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation—until now. - -
+ + CHAPTER FIVE: "Piracy" There is piracy of copyrighted material. Lots of it. This piracy comes @@ -3340,7 +3441,7 @@ less money than they otherwise would have had. For an analysis of the economic impact of copying technology, see Stan Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), -144–90. "In some instances . . . the impact of piracy on the +144–90. "In some instances … the impact of piracy on the copyright holder's ability to appropriate the value of the work will be negligible. One obvious instance is the case where the individual engaging in pirating would not have purchased an original even if @@ -3391,6 +3492,12 @@ Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose. +GNU/Linux operating system +Linux operating system + +Microsoft +Windows operating system of + Windows @@ -3413,6 +3520,10 @@ means giving the property owner the right to say who gets access to what—at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong. +GNU/Linux operating system +Internet Explorer +Netscape +Linux operating system @@ -3480,6 +3591,7 @@ come up with the most creative, paradigm-shifting uses for their own products. This job usually falls to outside innovators, who reassemble existing technology in inventive ways. For a discussion of Christensen's ideas, see Lawrence Lessig, Future, 89–92, 139. + Christensen, Clayton M. ), Shawn Fanning and crew had simply put together components that had been developed independently. @@ -3646,7 +3758,7 @@ regulating technology was the answer. Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record -turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was +turnaround. "In the end," Cap Gemini concludes, "the `crisis' … was not the fault of the tapers—who did not [stop after MTV came into being]—but had to a large extent resulted from stagnation in musical @@ -3858,7 +3970,8 @@ unavailable?" For unlike the piracy I described in the first section of this chapter, much of the "piracy" that file sharing enables is plainly -legal and good. And like the piracy I described in chapter 4, much of +legal and good. And like the piracy I described in chapter +, much of this piracy is motivated by a new way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the recording industry, and @@ -4039,6 +4152,7 @@ technology. Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir. 1981). +Kozinski, Alex But the Supreme Court reversed the decision of the Ninth Circuit. @@ -4072,8 +4186,7 @@ enough, this "taking" notwithstanding. If we put these cases together, a pattern is clear: - -Table + @@ -4110,7 +4223,7 @@ together, a pattern is clear: -
+ In each case throughout our history, a new technology changed the @@ -4216,10 +4329,11 @@ it should be protected just as any other property is protected."
- - + + "PROPERTY" + @@ -4293,10 +4407,12 @@ statement—"copyright material is property"— will be a bit more clear, and its implications will be revealed as quite different from the implications that the copyright warriors would have us draw. + -
+ CHAPTER SIX: Founders +Henry V William Shakespeare wrote Romeo and Juliet in 1595. The play was first published in 1597. It was the eleventh major play that @@ -4363,6 +4479,7 @@ as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said that the publishers, or "Stationers," had an exclusive right to print books. +Licensing Act (1662) There was no positive law, but that didn't mean @@ -4438,41 +4555,35 @@ distribute, the exclusive right to perform, and so on. So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the -term was that no one could reprint Shakespeare's work without the - permission -of the Shakespeare estate. It would not have controlled - anything, -for example, about how the work could be performed, whether +term was that no one could reprint Shakespeare's work without the +permission of the Shakespeare estate. It would not have controlled +anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be -allowed to make his films. The "copy-right" was only an exclusive right -to print—no less, of course, but also no more. +allowed to make his films. The "copy-right" was only an exclusive +right to print—no less, of course, but also no more. +Henry VIII, King of England Even that limited right was viewed with skepticism by the British. -They had had a long and ugly experience with "exclusive rights," - especially -"exclusive rights" granted by the Crown. The English had fought -a civil war in part about the Crown's practice of handing out - monopolies—especially -monopolies for works that already existed. King Henry -VIII granted a patent to print the Bible and a monopoly to Darcy to -print playing cards. The English Parliament began to fight back -against this power of the Crown. In 1656, it passed the Statute of - Monopolies, -limiting monopolies to patents for new inventions. And by -1710, Parliament was eager to deal with the growing monopoly in -publishing. - - -Thus the "copy-right," when viewed as a monopoly right, was - naturally -viewed as a right that should be limited. (However convincing -the claim that "it's my property, and I should have it forever," try +They had had a long and ugly experience with "exclusive rights," +especially "exclusive rights" granted by the Crown. The English had +fought a civil war in part about the Crown's practice of handing out +monopolies—especially monopolies for works that already +existed. King Henry VIII granted a patent to print the Bible and a +monopoly to Darcy to print playing cards. The English Parliament began +to fight back against this power of the Crown. In 1656, it passed the +Statute of Monopolies, limiting monopolies to patents for new +inventions. And by 1710, Parliament was eager to deal with the growing +monopoly in publishing. + + +Thus the "copy-right," when viewed as a monopoly right, was naturally +viewed as a right that should be limited. (However convincing the +claim that "it's my property, and I should have it forever," try sounding convincing when uttering, "It's my monopoly, and I should -have it forever.") The state would protect the exclusive right, but only -so long as it benefited society. The British saw the harms from - specialinterest -favors; they passed a law to stop them. +have it forever.") The state would protect the exclusive right, but +only so long as it benefited society. The British saw the harms from +specialinterest favors; they passed a law to stop them. Second, about booksellers. It wasn't just that the copyright was a @@ -4568,7 +4679,7 @@ way to protect authors. This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary chutzpah. Until then, as law professor Raymond Patterson has put it, -"The publishers . . . had as much concern for authors as a cattle +"The publishers … had as much concern for authors as a cattle rancher has for cattle." Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt @@ -4596,6 +4707,7 @@ under the Statute of Anne. Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), 92. +Rose, Mark Donaldson's publishing house prospered @@ -4606,6 +4718,7 @@ of contemporary Scottish poems with Donaldson." Ibid., 93. +Boswell, James Erskine, Andrew @@ -4751,7 +4864,7 @@ reported:
-By the above decision . . . near 200,000 pounds worth of what was +By the above decision … near 200,000 pounds worth of what was honestly purchased at public sale, and which was yesterday thought property is now reduced to nothing. The Booksellers of London and Westminster, many of whom sold estates and houses to purchase @@ -4793,8 +4906,8 @@ world where the Parliament is more pliant, free culture would be less protected. -
-
+ + CHAPTER SEVEN: Recorders Jon Else is a filmmaker. He is best known for his documentaries and @@ -4851,16 +4964,16 @@ Else said. He was just confirming the permission with Fox. Then, as Else told me, "two things happened. First we discovered -. . . that Matt Groening doesn't own his own creation—or at +… that Matt Groening doesn't own his own creation—or at least that someone [at Fox] believes he doesn't own his own creation." And second, Fox "wanted ten thousand dollars as a licensing fee for us -to use this four-point-five seconds of . . . entirely unsolicited +to use this four-point-five seconds of … entirely unsolicited Simpsons which was in the corner of the shot." Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He -explained to her, "There must be some mistake here. . . . We're +explained to her, "There must be some mistake here. … We're asking for your educational rate on this." That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. @@ -4959,7 +5072,7 @@ principle. I did, in fact, speak with one of your colleagues at Stanford Law -School . . . who confirmed that it was fair use. He also confirmed +School … who confirmed that it was fair use. He also confirmed that Fox would "depose and litigate you to within an inch of your life," regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper @@ -4990,8 +5103,8 @@ matured into a sword that interferes with any use, transformative or not. -
-
+ + CHAPTER EIGHT: Transformers Allen, Paul Alben, Alex @@ -5123,7 +5236,7 @@ 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 +directors, … this many musicians," and we just went at it very systematically and cleared the rights. @@ -5150,7 +5263,7 @@ Did it make sense, I asked Alben, that this is the way a new work has to be made? -For, as he acknowledged, "very few . . . have the time and resources, +For, as he acknowledged, "very few … have the time and resources, and the will to do this," and thus, very few such works would ever be made. Does it make sense, I asked him, from the standpoint of what anybody really thought they were ever giving rights for originally, that @@ -5159,9 +5272,9 @@ you would have to go clear rights for these kinds of clips?
I don't think so. When an actor renders a performance in a movie, -he or she gets paid very well. . . . And then when 30 seconds of +he or she gets paid very well. … And then when 30 seconds of that performance is used in a new product that is a retrospective -of somebody's career, I don't think that that person . . . should be +of somebody's career, I don't think that that person … should be compensated for that.
@@ -5347,8 +5460,8 @@ process is a process of paying lawyers—again a privilege, or perhaps a curse, reserved for the few. -
-
+ + CHAPTER NINE: Collectors In April 1996, millions of "bots"—computer codes designed to @@ -5460,6 +5573,7 @@ Barbara Walters you could get access to [the archives], but if you are just a graduate student?" As Kahle put it,
+Quayle, Dan Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician @@ -5468,8 +5582,8 @@ graduate student wanting to study that, and you wanted to get those original back and forth exchanges between the two, the -60 Minutes episode that came out after it . . . it would be almost -impossible. . . . Those materials are almost unfindable. . . . +60 Minutes episode that came out after it … it would be almost +impossible. … Those materials are almost unfindable. …
@@ -5641,13 +5755,13 @@ Kahle describes, It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of -movies, . . . and about one to two million movies [distributed] during +movies, … and about one to two million movies [distributed] during the twentieth century. There are about twenty-six million different titles of books. All of these would fit on computers that would fit in this room and be able to be afforded by a small company. So we're at a turning point in our history. Universal access is the goal. And the opportunity of leading a different life, based on this, is -. . . thrilling. It could be one of the things humankind would be most +… thrilling. It could be one of the things humankind would be most proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press. @@ -5676,8 +5790,8 @@ someone's "property." And the law of property restricts the freedoms that Kahle and others would exercise. -
-
+ + CHAPTER TEN: "Property" Jack Valenti has been the president of the Motion Picture Association @@ -5688,6 +5802,7 @@ President Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. Johnson, Lyndon +Kennedy, John F. The MPAA is the American branch of the international Motion Picture @@ -6160,6 +6275,7 @@ the changing technology of the Internet has not had a profound effect on the content industry's way of doing business, or as John Seely Brown describes it, its "architecture of revenue." +railroad industry But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because @@ -6231,7 +6347,7 @@ should be especially wary of the request. It is always a bad deal for the government to get into the business of regulating speech markets. The risks and dangers of that game are precisely why our framers created the First Amendment to our Constitution: "Congress -shall make no law . . . abridging the freedom of speech." So when +shall make no law … abridging the freedom of speech." So when Congress is being asked to pass laws that would "abridge" the freedom of speech, it should ask— carefully—whether such regulation is justified. @@ -6349,12 +6465,13 @@ publishers, nor even primarily the purpose of rewarding authors. The Progress Clause expressly limits the term of copyrights. As we saw -in chapter 6, the English limited the term of copyright so as to -assure that a few would not exercise disproportionate control over -culture by exercising disproportionate control over publishing. We can -assume the framers followed the English for a similar purpose. Indeed, -unlike the English, the framers reinforced that objective, by -requiring that copyrights extend "to Authors" only. +in chapter , +the English limited the term of copyright so as to assure that a few +would not exercise disproportionate control over culture by exercising +disproportionate control over publishing. We can assume the framers +followed the English for a similar purpose. Indeed, unlike the +English, the framers reinforced that objective, by requiring that +copyrights extend "to Authors" only. The design of the Progress Clause reflects something about the @@ -6734,8 +6851,8 @@ is a different wrong. Some view transformation as no wrong at all—they believe that our law, as the framers penned it, should not protect derivative rights at all. -Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August -2003, available at +Jonathan Zittrain, "The Copyright Cage," Legal +Affairs, July/August 2003, available at link #26. Zittrain, Jonathan @@ -6753,27 +6870,26 @@ Professor Rubenfeld has presented a powerful constitutional argument about the difference that copyright law should draw (from the perspective of the First Amendment) between mere "copies" and derivative works. See Jed Rubenfeld, "The Freedom of Imagination: -Copyright's Constitutionality," Yale Law Journal 112 (2002): -1–60 (see especially pp. 53–59). +Copyright's Constitutionality," Yale Law +Journal 112 (2002): 1–60 (see especially +pp. 53–59). +Rubenfeld, Jeb -These two different uses of my creative work are -treated the same. +These two different uses of my creative work are treated the same. -This again may seem right to you. If I wrote a book, then why -should you be able to write a movie that takes my story and makes -money from it without paying me or crediting me? Or if Disney - creates -a creature called "Mickey Mouse," why should you be able to make -Mickey Mouse toys and be the one to trade on the value that Disney -originally created? +This again may seem right to you. If I wrote a book, then why should +you be able to write a movie that takes my story and makes money from +it without paying me or crediting me? Or if Disney creates a creature +called "Mickey Mouse," why should you be able to make Mickey Mouse +toys and be the one to trade on the value that Disney originally +created? These are good arguments, and, in general, my point is not that the -derivative right is unjustified. My aim just now is much narrower: - simply -to make clear that this expansion is a significant change from the -rights originally granted. +derivative right is unjustified. My aim just now is much narrower: +simply to make clear that this expansion is a significant change from +the rights originally granted.
@@ -6814,11 +6930,11 @@ very slowly so that the point is not easily missed. My claim is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies, -Thus, my argument is not that in each place that copyright law extends, -we should repeal it. It is instead that we should have a good argument for -its extending where it does, and should not determine its reach on the - basis -of arbitrary and automatic changes caused by technology. +Thus, my argument is not that in each place that copyright law +extends, we should repeal it. It is instead that we should have a good +argument for its extending where it does, and should not determine its +reach on the basis of arbitrary and automatic changes caused by +technology. because it is clear that the current reach of copyright was never contemplated, much less chosen, @@ -6868,15 +6984,14 @@ that remain unregulated because the law considers these "fair uses." -These are uses that themselves involve copying, but which the law treats -as unregulated because public policy demands that they remain - unregulated. -You are free to quote from this book, even in a review that -is quite negative, without my permission, even though that quoting -makes a copy. That copy would ordinarily give the copyright owner the -exclusive right to say whether the copy is allowed or not, but the law -denies the owner any exclusive right over such "fair uses" for public -policy (and possibly First Amendment) reasons. +These are uses that themselves involve copying, but which the law +treats as unregulated because public policy demands that they remain +unregulated. You are free to quote from this book, even in a review +that is quite negative, without my permission, even though that +quoting makes a copy. That copy would ordinarily give the copyright +owner the exclusive right to say whether the copy is allowed or not, +but the law denies the owner any exclusive right over such "fair uses" +for public policy (and possibly First Amendment) reasons.
Unregulated copying considered "fair uses." @@ -6897,25 +7012,22 @@ are nonetheless deemed "fair" regardless of the copyright owner's views. Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. -I don't mean "nature" in the sense that it couldn't be different, but rather that -its present instantiation entails a copy. Optical networks need not make -copies of content they transmit, and a digital network could be designed to -delete anything it copies so that the same number of copies remain. - -And because of this single, -arbitrary feature of the design of a digital network, the scope of - category -1 changes dramatically. Uses that before were presumptively - unregulated -are now presumptively regulated. No longer is there a set of -presumptively unregulated uses that define a freedom associated with a -copyrighted work. Instead, each use is now subject to the copyright, -because each use also makes a copy—category 1 gets sucked into - category -2. And those who would defend the unregulated uses of - copyrighted -work must look exclusively to category 3, fair uses, to bear the -burden of this shift. +I don't mean "nature" in the sense that it couldn't be different, but +rather that its present instantiation entails a copy. Optical networks +need not make copies of content they transmit, and a digital network +could be designed to delete anything it copies so that the same number +of copies remain. + +And because of this single, arbitrary feature of the design of a +digital network, the scope of category 1 changes dramatically. Uses +that before were presumptively unregulated are now presumptively +regulated. No longer is there a set of presumptively unregulated uses +that define a freedom associated with a copyrighted work. Instead, +each use is now subject to the copyright, because each use also makes +a copy—category 1 gets sucked into category 2. And those who +would defend the unregulated uses of copyrighted work must look +exclusively to category 3, fair uses, to bear the burden of this +shift. So let's be very specific to make this general point clear. Before the @@ -6925,10 +7037,9 @@ the copyright owner could make to control that use of her book. Copyright law would have nothing to say about whether you read the book once, ten times, or every -night before you went to bed. None of those instances of use—reading— -could be regulated by copyright law because none of those uses - produced -a copy. +night before you went to bed. None of those instances of +use—reading— could be regulated by copyright law because +none of those uses produced a copy. But the same book as an e-book is effectively governed by a different @@ -6972,16 +7083,15 @@ creative work. Third, this shift from category 1 to category 2 puts an extraordinary -burden on category 3 ("fair use") that fair use never before had to bear. -If a copyright owner now tried to control how many times I could read -a book on-line, the natural response would be to argue that this is a -violation of my fair use rights. But there has never been any litigation -about whether I have a fair use right to read, because before the - Internet, -reading did not trigger the application of copyright law and hence -the need for a fair use defense. The right to read was effectively - protected -before because reading was not regulated. +burden on category 3 ("fair use") that fair use never before had to +bear. If a copyright owner now tried to control how many times I +could read a book on-line, the natural response would be to argue that +this is a violation of my fair use rights. But there has never been +any litigation about whether I have a fair use right to read, because +before the Internet, reading did not trigger the application of +copyright law and hence the need for a fair use defense. The right to +read was effectively protected before because reading was not +regulated. This point about fair use is totally ignored, even by advocates for @@ -7001,45 +7111,38 @@ videos. Video Pipeline got the trailers from the film distributors, put the trailers on tape, and sold the tapes to the retail stores. -The company did this for about fifteen years. Then, in 1997, it - began -to think about the Internet as another way to distribute these - previews. -The idea was to expand their "selling by sampling" technique by -giving on-line stores the same ability to enable "browsing." Just as in a -bookstore you can read a few pages of a book before you buy the book, -so, too, you would be able to sample a bit from the movie on-line - before -you bought it. +The company did this for about fifteen years. Then, in 1997, it began +to think about the Internet as another way to distribute these +previews. The idea was to expand their "selling by sampling" +technique by giving on-line stores the same ability to enable +"browsing." Just as in a bookstore you can read a few pages of a book +before you buy the book, so, too, you would be able to sample a bit +from the movie on-line before you bought it. -In 1998, Video Pipeline informed Disney and other film - distributors +In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet (rather than sending the tapes) to distributors of their videos. Two years later, Disney told Video Pipeline to stop. The owner of Video Pipeline asked Disney to talk about the matter—he had built a - business -on distributing this content as a way to help sell Disney films; he -had customers who depended upon his delivering this content. Disney -would agree to talk only if Video Pipeline stopped the distribution - immediately. -Video Pipeline thought it was within their "fair use" rights -to distribute the clips as they had. So they filed a lawsuit to ask the -court to declare that these rights were in fact their rights. +business on distributing this content as a way to help sell Disney +films; he had customers who depended upon his delivering this +content. Disney would agree to talk only if Video Pipeline stopped the +distribution immediately. Video Pipeline thought it was within their +"fair use" rights to distribute the clips as they had. So they filed a +lawsuit to ask the court to declare that these rights were in fact +their rights. Disney countersued—for $100 million in damages. Those damages -were predicated upon a claim that Video Pipeline had "willfully - infringed" -on Disney's copyright. When a court makes a finding of - willful -infringement, it can award damages not on the basis of the actual -harm to the copyright owner, but on the basis of an amount set in the -statute. Because Video Pipeline had distributed seven hundred clips of -Disney movies to enable video stores to sell copies of those movies, -Disney was now suing Video Pipeline for $100 million. +were predicated upon a claim that Video Pipeline had "willfully +infringed" on Disney's copyright. When a court makes a finding of +willful infringement, it can award damages not on the basis of the +actual harm to the copyright owner, but on the basis of an amount set +in the statute. Because Video Pipeline had distributed seven hundred +clips of Disney movies to enable video stores to sell copies of those +movies, Disney was now suing Video Pipeline for $100 million. Disney has the right to control its property, of course. But the video @@ -7106,13 +7209,20 @@ tradition embraced, who said whether and how the law would restrict your freedom. Casablanca + + Marx Brothers + + + Warner Brothers + There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of -Casablanca. Warner Brothers objected. They wrote a nasty letter to the -Marxes, warning them that there would be serious legal consequences -if they went forward with their plan. +Casablanca. Warner Brothers objected. They +wrote a nasty letter to the Marxes, warning them that there would be +serious legal consequences if they went forward with their +plan. See David Lange, "Recognizing the Public Domain," Law and Contemporary Problems 44 (1981): 172–73. @@ -7123,12 +7233,14 @@ This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers "were brothers long before you were." -Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. +Ibid. See also Vaidhyanathan, Copyrights and +Copywrongs, 1–3. Vaidhyanathan, Siva -The Marx Brothers therefore owned the word brothers, -and if Warner Brothers insisted on trying to control Casablanca, then -the Marx Brothers would insist on control over brothers. +The Marx Brothers therefore owned the word +brothers, and if Warner Brothers insisted on +trying to control Casablanca, then the Marx +Brothers would insist on control over brothers. An absurd and hollow threat, of course, because Warner Brothers, @@ -7137,40 +7249,47 @@ silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. -On the Internet, however, there is no check on silly rules, because -on the Internet, increasingly, rules are enforced not by a human but by -a machine: Increasingly, the rules of copyright law, as interpreted by -the copyright owner, get built into the technology that delivers - copyrighted -content. It is code, rather than law, that rules. And the problem -with code regulations is that, unlike law, code has no shame. Code -would not get the humor of the Marx Brothers. The consequence of -that is not at all funny. +On the Internet, however, there is no check on silly rules, because on +the Internet, increasingly, rules are enforced not by a human but by a +machine: Increasingly, the rules of copyright law, as interpreted by +the copyright owner, get built into the technology that delivers +copyrighted content. It is code, rather than law, that rules. And the +problem with code regulations is that, unlike law, code has no +shame. Code would not get the humor of the Marx Brothers. The +consequence of that is not at all funny. + + + + + Adobe eBook Reader + Consider the life of my Adobe eBook Reader. -An e-book is a book delivered in electronic form. An Adobe eBook -is not a book that Adobe has published; Adobe simply produces the -software that publishers use to deliver e-books. It provides the - technology, -and the publisher delivers the content by using the technology. +An e-book is a book delivered in electronic form. An Adobe eBook is +not a book that Adobe has published; Adobe simply produces the +software that publishers use to deliver e-books. It provides the +technology, and the publisher delivers the content by using the +technology. On the next page is a picture of an old version of my Adobe eBook Reader. -As you can see, I have a small collection of e-books within this +As you can see, I have a small collection of e-books within this e-book library. Some of these books reproduce content that is in the -public domain: Middlemarch, for example, is in the public domain. -Some of them reproduce content that is not in the public domain: My -own book The Future of Ideas is not yet within the public domain. -Consider Middlemarch first. If you click on my e-book copy of +public domain: Middlemarch, for example, is in +the public domain. Some of them reproduce content that is not in the +public domain: My own book The Future of Ideas +is not yet within the public domain. Consider +Middlemarch first. If you click on my e-book +copy of -Middlemarch, you'll see a fancy cover, and then a button at the bottom -called Permissions. +Middlemarch, you'll see a fancy cover, and then +a button at the bottom called Permissions.
Picture of an old version of Adobe eBook Reader @@ -7196,6 +7315,8 @@ read aloud through the computer. Here's the e-book for another work in the public domain (including the translation): Aristotle's Politics. +Aristotle +Politics, (Aristotle)
E-book of Aristotle;s "Politics" @@ -7212,7 +7333,8 @@ the book.
Finally (and most embarrassingly), here are the permissions for the -original e-book version of my last book, The Future of Ideas: +original e-book version of my last book, The Future of +Ideas:
@@ -7223,26 +7345,26 @@ original e-book version of my last book, The Future of Ideas -Now, the Adobe eBook Reader calls these controls "permissions"— -as if the publisher has the power to control how you use these works. -For works under copyright, the copyright owner certainly does have -the power—up to the limits of the copyright law. But for work not - under -copyright, there is no such copyright power. +Now, the Adobe eBook Reader calls these controls +"permissions"— as if the publisher has the power to control how +you use these works. For works under copyright, the copyright owner +certainly does have the power—up to the limits of the copyright +law. But for work not under copyright, there is no such copyright +power. -In principle, a contract might impose a requirement on me. I might, for -example, buy a book from you that includes a contract that says I will read -it only three times, or that I promise to read it three times. But that - obligation -(and the limits for creating that obligation) would come from the -contract, not from copyright law, and the obligations of contract would -not necessarily pass to anyone who subsequently acquired the book. +In principle, a contract might impose a requirement on me. I might, +for example, buy a book from you that includes a contract that says I +will read it only three times, or that I promise to read it three +times. But that obligation (and the limits for creating that +obligation) would come from the contract, not from copyright law, and +the obligations of contract would not necessarily pass to anyone who +subsequently acquired the book. -When my e-book of Middlemarch says I have the permission to -copy only ten text selections into the memory every ten days, what -that really means is that the eBook Reader has enabled the publisher -to control how I use the book on my computer, far beyond the control -that the law would enable. +When my e-book of Middlemarch says I have the +permission to copy only ten text selections into the memory every ten +days, what that really means is that the eBook Reader has enabled the +publisher to control how I use the book on my computer, far beyond the +control that the law would enable. The control comes instead from the code—from the technology @@ -7267,6 +7389,7 @@ These are controls, not permissions. Imagine a world where the Marx Brothers sold word processing software that, when you tried to type "Warner Brothers," erased "Brothers" from the sentence. +Marx Brothers This is the future of copyright law: not so much copyright @@ -7279,23 +7402,23 @@ built into the technology have no similar built-in check. How significant is this? Isn't it always possible to get around the -controls built into the technology? Software used to be sold with - technologies -that limited the ability of users to copy the software, but those -were trivial protections to defeat. Why won't it be trivial to defeat these -protections as well? +controls built into the technology? Software used to be sold with +technologies that limited the ability of users to copy the software, +but those were trivial protections to defeat. Why won't it be trivial +to defeat these protections as well? We've only scratched the surface of this story. Return to the Adobe eBook Reader. -Early in the life of the Adobe eBook Reader, Adobe suffered a - public -relations nightmare. Among the books that you could download for -free on the Adobe site was a copy of Alice's Adventures in Wonderland. -This wonderful book is in the public domain. Yet when you clicked on -Permissions for that book, you got the following report: +Early in the life of the Adobe eBook Reader, Adobe suffered a public +relations nightmare. Among the books that you could download for free +on the Adobe site was a copy of Alice's Adventures in +Wonderland. This wonderful book is in the public +domain. Yet when you clicked on Permissions for that book, you got the +following report: +Alice's Adventures in Wonderland (Carroll)
List of the permissions for "Alice's Adventures in @@ -7304,11 +7427,9 @@ Wonderland".
-Here was a public domain children's book that you were not - allowed -to copy, not allowed to lend, not allowed to give, and, as the - "permissions" -indicated, not allowed to "read aloud"! +Here was a public domain children's book that you were not allowed to +copy, not allowed to lend, not allowed to give, and, as the +"permissions" indicated, not allowed to "read aloud"! The public relations nightmare attached to that final permission. @@ -7339,13 +7460,21 @@ technology enables control, and Adobe has an incentive to defend this control. That incentive is understandable, yet what it creates is often crazy. + To see the point in a particularly absurd context, consider a favorite story of mine that makes the same point. - + Aibo robotic dog + + robotic dog + + + Sony + Aibo robotic dog produced by + Consider the robotic dog made by Sony named "Aibo." The Aibo learns tricks, cuddles, and follows you around. It eats only electricity @@ -7369,16 +7498,18 @@ was giving information to users of the Aibo pet about how to hack their computer "dog" to make it do new tricks (thus, aibohack.com). -If you're not a programmer or don't know many programmers, the -word hack has a particularly unfriendly connotation. Nonprogrammers -hack bushes or weeds. Nonprogrammers in horror movies do even -worse. But to programmers, or coders, as I call them, hack is a much -more positive term. Hack just means code that enables the program to -do something it wasn't originally intended or enabled to do. If you buy -a new printer for an old computer, you might find the old computer -doesn't run, or "drive," the printer. If you discovered that, you'd later be -happy to discover a hack on the Net by someone who has written a -driver to enable the computer to drive the printer you just bought. +If you're not a programmer or don't know many programmers, the word +hack has a particularly unfriendly +connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in +horror movies do even worse. But to programmers, or coders, as I call +them, hack is a much more positive +term. Hack just means code that enables the +program to do something it wasn't originally intended or enabled to +do. If you buy a new printer for an old computer, you might find the +old computer doesn't run, or "drive," the printer. If you discovered +that, you'd later be happy to discover a hack on the Net by someone +who has written a driver to enable the computer to drive the printer +you just bought. Some hacks are easy. Some are unbelievably hard. Hackers as a @@ -7394,7 +7525,9 @@ dance jazz. The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that turned the dog into a more talented creature than Sony had built. - + + + I've told this story in many contexts, both inside and outside the United States. Once I was asked by a puzzled member of the audience, @@ -7481,6 +7614,16 @@ academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed. + + Aibo robotic dog + + + robotic dog + + + Sony + Aibo robotic dog produced by + What links these two, aibopet.com and Felten, is the letters they then received. Aibopet.com received a letter from Sony about the @@ -7494,6 +7637,9 @@ AIBO-ware's copy protection protocol constituting a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act. + + + And though an academic paper describing the weakness in a system of encryption should also be perfectly legal, Felten received a letter @@ -7540,6 +7686,12 @@ measures. It was designed to ban those devices, whether or not the use of the copyrighted material made possible by that circumvention would have been a copyright violation. +Aibo robotic dog +robotic dog + + Sony + Aibo robotic dog produced by + Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright protection system for the purpose of enabling the dog to @@ -7560,15 +7712,17 @@ suggested, Felten himself was distributing a circumvention technology. Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright. +Rogers, Fred The bizarreness of these arguments is captured in a cartoon drawn in 1981 by Paul Conrad. At that time, a court in California had held that the VCR could be banned because it was a copyright-infringing technology: It enabled consumers to copy films without the permission of the copyright owner. No doubt there were uses of the technology -that were legal: Fred Rogers, aka "Mr. Rogers," for example, had -testified in that case that he wanted people to feel free to tape -Mr. Rogers' Neighborhood. +that were legal: Fred Rogers, aka "Mr. Rogers," +for example, had testified in that case that he wanted people to feel +free to tape Mr. Rogers' Neighborhood. +Conrad, Paul
@@ -7591,6 +7745,7 @@ important. 455 fn. 27 (1984). Rogers never changed his view about the VCR. See James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of the VCR (New York: W. W. Norton, 1987), 270–71. +Rogers, Fred
@@ -7603,6 +7758,7 @@ the VCR responsible. This led Conrad to draw the cartoon below, which we can adopt to the DMCA. +Conrad, Paul No argument I have can top this picture, but let me try to get close. @@ -7634,7 +7790,14 @@ circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do. +Conrad, Paul +Aibo robotic dog +robotic dog + + Sony + Aibo robotic dog produced by + The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright @@ -7748,7 +7911,6 @@ of the media. These changes are of two sorts: the scope of concentration, and its nature. -BMG Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media @@ -7770,7 +7932,11 @@ programming to 74 percent of the cable subscribers nationwide." Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette, 31 May 2003. +BMG +EMI McCain, John +Universal Music Group +Warner Music Group The story with radio is even more dramatic. Before deregulation, @@ -7804,7 +7970,7 @@ put it in a recent article about Rupert Murdoch, Murdoch's companies now constitute a production system unmatched in its integration. They supply content—Fox movies -. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus +… Fox TV shows … Fox-controlled sports broadcasts, plus newspapers and books. They sell the content to the public and to advertisers—in newspapers, on the broadcast network, on the cable channels. And they operate the physical distribution system @@ -7862,9 +8028,8 @@ The copyrights that Lear held assured an independence from network control. Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center -Forum, "Entertainment Economics: The Movie Industry," St. Louis, - Missouri, -3 April 2003 (transcript of prepared remarks available at +Forum, "Entertainment Economics: The Movie Industry," St. Louis, +Missouri, 3 April 2003 (transcript of prepared remarks available at link #28; for the Lear story, not included in the prepared remarks, see link #29). @@ -8083,9 +8248,12 @@ diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects Ad," SFGate.com, 16 June 2003, available at link #32. The ground was that the criticism was "too controversial." +ABC Comcast Marijuana Policy Project +NBC WJOA +WRC @@ -8195,8 +8363,7 @@ combine these two distinctions and draw a clear map of the changes that copyright law has undergone. In 1790, the law looked like this: - - + @@ -8218,7 +8385,7 @@ that copyright law has undergone. In 1790, the law looked like this: -
+ The act of publishing a map, chart, and book was regulated by @@ -8233,8 +8400,7 @@ noncommercial work was also free. By the end of the nineteenth century, the law had changed to this: - - + @@ -8256,7 +8422,7 @@ By the end of the nineteenth century, the law had changed to this: -
+ Derivative works were now regulated by copyright law—if @@ -8272,8 +8438,7 @@ expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this: - - + @@ -8295,7 +8460,7 @@ we could say the law began to look like this: -
+ The law was interpreted to reach noncommercial copying through, say, @@ -8305,8 +8470,7 @@ technologies, especially in the context of a digital network, means that the law now looks like this: - - + @@ -8328,7 +8492,7 @@ that the law now looks like this: -
+ Every realm is governed by copyright law, whereas before most @@ -8349,10 +8513,12 @@ I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the -reasons sketched especially in chapters 7 and 8, one might well wonder -whether it does more harm than good for commercial transformation. -More commercial transformative work would be created if derivative -rights were more sharply restricted. +reasons sketched especially in chapters + and +, one +might well wonder whether it does more harm than good for commercial +transformation. More commercial transformative work would be created +if derivative rights were more sharply restricted. The issue is therefore not simply whether copyright is property. Of @@ -8367,6 +8533,7 @@ balance public and private interests. See Thomas C. Grey, "The Disintegration of Property," in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, eds. (New York: New York University Press, 1980). +legal realist movement ) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to @@ -8411,13 +8578,13 @@ lawyer.
- - + + PUZZLES - + -
+ CHAPTER ELEVEN: Chimera chimeras @@ -8480,7 +8647,7 @@ is affected," he reports. "What affects it?" the father asks. "Those queer things that are -called the eyes . . . are diseased . . . in such a way as to affect +called the eyes … are diseased … in such a way as to affect his brain." @@ -8502,7 +8669,7 @@ different from the DNA of the skin. This possibility is an underused plot for murder mysteries. "But the DNA shows with 100 percent certainty that she was not the person whose blood was at the -scene. . . ." +scene. …" @@ -8605,6 +8772,7 @@ subpoenas issued to universities to reveal student file-sharer identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003, D3, available at link #36. +Conyers, John, Jr. Berman, Howard L. @@ -8655,12 +8823,11 @@ eMusic opposes music piracy. We are a distributor of copyrighted material, and we want to protect those rights. -But building a technology fortress that locks in the clout of -the major labels is by no means the only way to protect copyright -interests, nor is it necessarily the best. It is simply too early to - answer -that question. Market forces operating naturally may very -well produce a totally different industry model. +But building a technology fortress that locks in the clout of the +major labels is by no means the only way to protect copyright +interests, nor is it necessarily the best. It is simply too early to +answer that question. Market forces operating naturally may very well +produce a totally different industry model. This is a critical point. The choices that industry sectors make @@ -8696,24 +8863,21 @@ and will kill opportunities that could be extraordinarily valuable. -
-
+ + CHAPTER TWELVE: Harms - To fight "piracy," to protect "property," the content industry has -launched a war. Lobbying and lots of campaign contributions have -now brought the government into this war. As with any war, this one -will have both direct and collateral damage. As with any war of - prohibition, -these damages will be suffered most by our own people. +launched a war. Lobbying and lots of campaign contributions have now +brought the government into this war. As with any war, this one will +have both direct and collateral damage. As with any war of +prohibition, these damages will be suffered most by our own people. My aim so far has been to describe the consequences of this war, in -particular, the consequences for "free culture." But my aim now is to - extend -this description of consequences into an argument. Is this war - justified? +particular, the consequences for "free culture." But my aim now is to +extend this description of consequences into an argument. Is this war +justified? In my view, it is not. There is no good reason why this time, for the @@ -8858,7 +9022,8 @@ critical or reflective. Part of the reason for this fear of illegality has to do with the -changing law. I described that change in detail in chapter 10. But an +changing law. I described that change in detail in chapter +. But an even bigger part has to do with the increasing ease with which infractions can be tracked. As users of file-sharing systems discovered in 2002, it is a trivial matter for copyright owners to get @@ -8880,10 +9045,12 @@ right to cultivate and transform them is not similarly free. Lawyers rarely see this because lawyers are rarely empirical. As I -described in chapter 7, in response to the story about documentary -filmmaker Jon Else, I have been lectured again and again by lawyers -who insist Else's use was fair use, and hence I am wrong to say that the -law regulates such a use. +described in chapter +, in +response to the story about documentary filmmaker Jon Else, I have +been lectured again and again by lawyers who insist Else's use was +fair use, and hence I am wrong to say that the law regulates such a +use. @@ -8927,7 +9094,7 @@ As Jed Horovitz, the businessman behind Video Pipeline, said to me, We're losing [creative] opportunities right and left. Creative people are being forced not to express themselves. Thoughts are not being expressed. And while a lot of stuff may [still] be created, it still -won't get distributed. Even if the stuff gets made . . . you're not +won't get distributed. Even if the stuff gets made … you're not going to get it distributed in the mainstream media unless you've got a little note from a lawyer saying, "This has been @@ -8972,12 +9139,13 @@ against the competitors of tomorrow. This is the single most dramatic effect of the shift in regulatory -strategy that I described in chapter 10. The consequence of this -massive threat of liability tied to the murky boundaries of copyright -law is that innovators who want to innovate in this space can safely -innovate only if they have the sign-off from last generation's -dominant industries. That lesson has been taught through a series of -cases that were designed and executed to teach venture capitalists a +strategy that I described in chapter . The consequence of this massive +threat of liability tied to the murky boundaries of copyright law is +that innovators who want to innovate in this space can safely innovate +only if they have the sign-off from last generation's dominant +industries. That lesson has been taught through a series of cases +that were designed and executed to teach venture capitalists a lesson. That lesson—what former Napster CEO Hank Barry calls a "nuclear pall" that has fallen over the Valley—has been learned. @@ -8986,6 +9154,7 @@ Consider one example to make the point, a story whose beginning I told in The Future of Ideas and which has progressed in a way that even I (pessimist extraordinaire) would never have predicted. +Roberts, Michael In 1997, Michael Roberts launched a company called MP3.com. MP3.com was keen to remake the music business. Their goal was not just to @@ -9075,6 +9244,7 @@ such a view of the law will cost you and your firm dearly. Hummer, John Barry, Hank +Hummer Winblad This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the @@ -9099,8 +9269,11 @@ company whose business is not approved of by the dinosaurs, you are at risk not just in the marketplace, but in the courtroom as well. Your investment buys you not only a company, it also buys you a lawsuit. So extreme has the environment become that even car manufacturers are -afraid of technologies that touch content. In an article in Business -2.0, Rafe Needleman describes a discussion with BMW: +afraid of technologies that touch content. In an article in +Business 2.0, Rafe Needleman describes a +discussion with BMW: +EMI +Universal Music Group
BMW @@ -9111,7 +9284,7 @@ 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. . . . +United States with bona fide MP3 players. … Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June @@ -9134,18 +9307,17 @@ constantly threatened by litigation. The point is not that businesses should have a right to start illegal -enterprises. The point is the definition of "illegal." The law is a mess of -uncertainty. We have no good way to know how it should apply to new -technologies. Yet by reversing our tradition of judicial deference, and -by embracing the astonishingly high penalties that copyright law - imposes, -that uncertainty now yields a reality which is far more - conservative -than is right. If the law imposed the death penalty for parking -tickets, we'd not only have fewer parking tickets, we'd also have much -less driving. The same principle applies to innovation. If innovation is -constantly checked by this uncertain and unlimited liability, we will -have much less vibrant innovation and much less creativity. +enterprises. The point is the definition of "illegal." The law is a +mess of uncertainty. We have no good way to know how it should apply +to new technologies. Yet by reversing our tradition of judicial +deference, and by embracing the astonishingly high penalties that +copyright law imposes, that uncertainty now yields a reality which is +far more conservative than is right. If the law imposed the death +penalty for parking tickets, we'd not only have fewer parking tickets, +we'd also have much less driving. The same principle applies to +innovation. If innovation is constantly checked by this uncertain and +unlimited liability, we will have much less vibrant innovation and +much less creativity. The point is directly parallel to the crunchy-lefty point about fair @@ -9201,48 +9373,44 @@ the Berkman Center for Internet and Society at Harvard Law School (2003), 33–35, available at link #44. - - Congress -has already launched proceedings to explore a mandatory - "broadcast -flag" that would be required on any device capable of transmitting -digital video (i.e., a computer), and that would disable the copying of -any content that is marked with a broadcast flag. Other members of -Congress have proposed immunizing content providers from liability -for technology they might deploy that would hunt down copyright - violators -and disable their machines. - GartnerG2, 26–27. +Congress has already launched proceedings to explore a mandatory +"broadcast flag" that would be required on any device capable of +transmitting digital video (i.e., a computer), and that would disable +the copying of any content that is marked with a broadcast flag. Other +members of Congress have proposed immunizing content providers from +liability for technology they might deploy that would hunt down +copyright violators and disable their machines. + +GartnerG2, 26–27. - In one sense, these solutions seem sensible. If the problem is the -code, why not regulate the code to remove the problem. But any - regulation -of technical infrastructure will always be tuned to the particular -technology of the day. It will impose significant burdens and costs on - +code, why not regulate the code to remove the problem. But any +regulation of technical infrastructure will always be tuned to the +particular technology of the day. It will impose significant burdens +and costs on the technology, but will likely be eclipsed by advances around exactly those requirements. In March 2002, a broad coalition of technology companies, led by -Intel, tried to get Congress to see the harm that such legislation would -impose. - See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, +Intel, tried to get Congress to see the harm that such legislation +would impose. + +See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, February 2002 (Entertainment). - Their argument was obviously not that copyright should not -be protected. Instead, they argued, any protection should not do more +Their argument was obviously not that copyright should not be +protected. Instead, they argued, any protection should not do more harm than good. +Intel -There is one more obvious way in which this war has harmed - innovation—again, -a story that will be quite familiar to the free market -crowd. +There is one more obvious way in which this war has harmed +innovation—again, a story that will be quite familiar to the +free market crowd. Copyright may be property, but like all property, it is also a form @@ -9251,17 +9419,21 @@ When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. -As I described in chapter 10, despite this feature of copyright as -regulation, and subject to important qualifications outlined by Jessica -Litman in her book Digital Copyright, - Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, -2001). +As I described in chapter , despite this feature of copyright as +regulation, and subject to important qualifications outlined by +Jessica Litman in her book Digital +Copyright, + +Jessica Litman, Digital Copyright (Amherst, +N.Y.: Prometheus Books, 2001). +Litman, Jessica - overall this history of copyright -is not bad. As chapter 10 details, when new technologies have come -along, Congress has struck a balance to assure that the new is protected -from the old. Compulsory, or statutory, licenses have been one part of -that strategy. Free use (as in the case of the VCR) has been another. +overall this history of copyright is not bad. As chapter 10 details, +when new technologies have come along, Congress has struck a balance +to assure that the new is protected from the old. Compulsory, or +statutory, licenses have been one part of that strategy. Free use (as +in the case of the VCR) has been another. But that pattern of deference to new technologies has now changed @@ -9306,6 +9478,7 @@ Digital Media in a Post-Napster World," 27 June 2003, 33–34, available at link #44. Berman, Howard L. +Hollings, Fritz But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. @@ -9313,14 +9486,16 @@ the story of the demise of Internet radio. -As I described in chapter 4, when a radio station plays a song, the -recording artist doesn't get paid for that "radio performance" unless -he or she is also the composer. So, for example if Marilyn Monroe had -recorded a version of "Happy Birthday"—to memorialize her famous +As I described in chapter , when a radio station plays a song, the recording +artist doesn't get paid for that "radio performance" unless he or she +is also the composer. So, for example if Marilyn Monroe had recorded a +version of "Happy Birthday"—to memorialize her famous performance before President Kennedy at Madison Square Garden— then whenever that recording was played on the radio, the current copyright owners of "Happy Birthday" would get some money, whereas Marilyn Monroe would not. +Kennedy, John F. The reasoning behind this balance struck by Congress makes some @@ -9372,7 +9547,7 @@ 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 +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 @@ -9528,7 +9703,7 @@ date and time that the user logged out (in the user's time zone); time zone where the signal was received (user); -Unique User identifier; +unique user identifier; the country in which the user received the transmissions. @@ -9549,6 +9724,7 @@ economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? Alben, Alex +Real Networks In a rare bit of candor, one RIAA expert admitted what seemed obvious to everyone at the time. As Alex Alben, vice president for Public @@ -9561,15 +9737,14 @@ some testimony about what they thought a willing buyer would pay to a willing seller, and it was much higher. It was ten times higher than what radio stations pay to perform the same songs for the same period of time. And so the attorneys representing the -webcasters asked the RIAA, . . . "How do you come up with a +webcasters asked the RIAA, … "How do you come up with a -rate that's so much higher? Why is it worth more than radio? - Because -here we have hundreds of thousands of webcasters who -want to pay, and that should establish the market rate, and if you -set the rate so high, you're going to drive the small webcasters out -of business. . . ." +rate that's so much higher? Why is it worth more than radio? Because +here we have hundreds of thousands of webcasters who want to pay, and +that should establish the market rate, and if you set the rate so +high, you're going to drive the small webcasters out of +business. …" And the RIAA experts said, "Well, we don't really model this as an @@ -9688,6 +9863,7 @@ compliance literature). We pride ourselves on our "free society," but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law. +alcohol prohibition This state of affairs is not without consequence. It is a particularly @@ -9705,6 +9881,7 @@ Americans—more significantly in some parts of America than in others, but still, everywhere in America today—can't live their lives both normally and legally, since "normally" entails a certain degree of illegality. +law schools The response to this general illegality is either to enforce the law @@ -9871,11 +10048,11 @@ explains,
then all of a sudden a lot of basic civil liberty protections -evaporate to one degree or another. . . . If you're a copyright +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, +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." @@ -9992,7 +10169,7 @@ 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 +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. @@ -10009,10 +10186,11 @@ effort through our democracy to change our law?
- - + + BALANCES + @@ -10064,10 +10242,14 @@ brace of efforts, so far failed, to find a way to refocus this debate. We must understand these failures if we're to understand what success will require. + -
+ CHAPTER THIRTEEN: Eldred + + Hawthorne, Nathaniel + In 1995, a father was frustrated that his daughters didn't seem to like Hawthorne. No doubt there was more than one such father, but at @@ -10107,6 +10289,7 @@ animated cartoons, sometimes successfully (Cinderella), s (The Hunchback of Notre Dame, Treasure Planet). These are all commercial publications of public domain works. + The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally @@ -10137,16 +10320,17 @@ protect noncommercial pornographers. As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's -collection of poems New Hampshire was slated to pass into the public -domain. Eldred wanted to post that collection in his free public -library. But Congress got in the way. As I described in chapter 10, -in 1998, for the eleventh time in forty years, Congress extended the -terms of existing copyrights—this time by twenty years. Eldred -would not be free to add any works more recent than 1923 to his -collection until 2019. Indeed, no copyrighted work would pass into -the public domain until that year (and not even then, if Congress -extends the term again). By contrast, in the same period, more than 1 -million patents will pass into the public domain. +collection of poems New Hampshire was slated to +pass into the public domain. Eldred wanted to post that collection in +his free public library. But Congress got in the way. As I described +in chapter , in 1998, for the eleventh time in forty years, +Congress extended the terms of existing copyrights—this time by +twenty years. Eldred would not be free to add any works more recent +than 1923 to his collection until 2019. Indeed, no copyrighted work +would pass into the public domain until that year (and not even then, +if Congress extends the term again). By contrast, in the same period, +more than 1 million patents will pass into the public domain. @@ -10187,9 +10371,9 @@ different. As you know, the Constitution says,
-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. …
@@ -10198,7 +10382,7 @@ clause of Article I, section 8 of our Constitution. Every other clause granting power to Congress simply says Congress has the power to do something—for example, to regulate "commerce among the several states" or "declare War." But here, the "something" is something quite -specific—to "promote . . . Progress"—through means that +specific—to "promote … Progress"—through means that are also specific— by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times." @@ -10390,6 +10574,7 @@ activity, when considered on a national scale, affects interstate commerce. A Constitution designed to limit Congress's power was instead interpreted to impose no limit. +Rehnquist, William H. The Supreme Court, under Chief Justice Rehnquist's command, changed that in United States v. Lopez. The government had @@ -10485,6 +10670,7 @@ But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter. +Nashville Songwriters Association As we've seen, our constitutional system requires limits on @@ -10616,6 +10802,8 @@ digitized, and hence will simply rot away on shelves. But the for other creative works is much more dire. Agee, Michael +Hal Roach Studios +Laurel and Hardy Films Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns the copyrights for the Laurel and Hardy films. Agee is a @@ -11032,6 +11220,9 @@ copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments. +GNU/Linux operating system +Intel +Linux operating system Eagle Forum @@ -11039,7 +11230,10 @@ Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union. +American Association of Law Libraries +National Writers Union +Hal Roach Studios But two briefs captured the policy argument best. One made the argument I've already described: A brief by Hal Roach Studios argued @@ -11077,6 +11271,9 @@ Kathleen Sullivan, who had argued many cases in the Court, and who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. Fried, Charles +Morrison, Alan +Public Citizen +Reagan, Ronald Fried was a special victory for our side. Every other former solicitor @@ -11153,15 +11350,16 @@ favorites, through copyright, with who has the right to speak. Between February and October, there was little I did beyond preparing for this case. Early on, as I said, I set the strategy. +Rehnquist, William H. -The Supreme Court was divided into two important camps. One -camp we called "the Conservatives." The other we called "the Rest." -The Conservatives included Chief Justice Rehnquist, Justice O'Connor, +The Supreme Court was divided into two important camps. One camp we +called "the Conservatives." The other we called "the Rest." The +Conservatives included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and Justice Thomas. These five had been the most consistent in limiting Congress's power. They were the -five who had supported the Lopez/Morrison line of cases that said that -an enumerated power had to be interpreted to assure that Congress's -powers had limits. +five who had supported the Lopez/Morrison line +of cases that said that an enumerated power had to be interpreted to +assure that Congress's powers had limits. Breyer, Stephen @@ -11205,28 +11403,28 @@ had consistently argued for limits in the context of intellectual property generally. We were fairly confident he would recognize limits here. -This analysis of "the Rest" showed most clearly where our focus -had to be: on the Conservatives. To win this case, we had to crack open -these five and get at least a majority to go our way. Thus, the single - overriding -argument that animated our claim rested on the Conservatives' -most important jurisprudential innovation—the argument that Judge -Sentelle had relied upon in the Court of Appeals, that Congress's power -must be interpreted so that its enumerated powers have limits. +This analysis of "the Rest" showed most clearly where our focus had to +be: on the Conservatives. To win this case, we had to crack open these +five and get at least a majority to go our way. Thus, the single +overriding argument that animated our claim rested on the +Conservatives' most important jurisprudential innovation—the +argument that Judge Sentelle had relied upon in the Court of Appeals, +that Congress's power must be interpreted so that its enumerated +powers have limits. This then was the core of our strategy—a strategy for which I am responsible. We would get the Court to see that just as with the Lopez - case, under the government's argument here, Congress would always have unlimited power to extend existing terms. If anything was plain about Congress's power under the Progress Clause, it was that this power was supposed to be "limited." Our aim would be to get the Court to -reconcile Eldred with Lopez: If Congress's power to -regulate commerce was limited, then so, too, must Congress's power to -regulate copyright be limited. +reconcile Eldred with +Lopez: If Congress's power to regulate commerce +was limited, then so, too, must Congress's power to regulate copyright +be limited. The argument on the government's side came down to this: Congress has @@ -11237,7 +11435,7 @@ should not now say that practice is unconstitutional. There was some truth to the government's claim, but not much. We -certainly agreed that Congress had extended existing terms in +certainly agreed that Congress had extended existing terms in 1831 and in 1909. And of course, in 1962, Congress began extending existing terms regularly—eleven times in forty years. @@ -11276,6 +11474,7 @@ were an effective practice; I found ways to take every question back to this central idea. Ayer, Don +Reagan, Ronald One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor @@ -11689,11 +11888,16 @@ in a time of such fruitful creative ferment. The best responses were in the cartoons. There was a gaggle of hilarious images—of Mickey in jail and the like. The best, from -my view of the case, was Ruben Bolling's, reproduced on the next -page. The "powerful and wealthy" line is a bit unfair. But the punch -in the face felt exactly like that. +my view of the case, was Ruben Bolling's, reproduced on the next page +(). The "powerful and wealthy" line is a bit +unfair. But the punch in the face felt exactly like that. Bolling, Ruben +
+Tom the Dancing Bug cartoon + +Bolling, Ruben +
The image that will always stick in my head is that evoked by the quote from The New York Times. That "grand experiment" we call the @@ -11704,8 +11908,8 @@ fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently. -
-
+ + CHAPTER FOURTEEN: Eldred II The day Eldred was decided, fate would have it that I was to travel to @@ -11777,7 +11981,8 @@ where copyright owners could be identified. Berne Convention (1908) -As I described in chapter 10, formalities in copyright law were +As I described in chapter , formalities in copyright law were removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. @@ -12041,6 +12246,7 @@ any copyright owner's desire to exercise continued control over his content. It would simply liberate what Kevin Kelly calls the "Dark Content" that fills archives around the world. So when the warriors oppose a change like this, we should ask one simple question: +Kelly, Kevin What does this industry really want? @@ -12093,9 +12299,9 @@ owner and gain permission to build upon his work. The future will be controlled by this dead (and often unfindable) hand of the past. -
 - + + CONCLUSION There are more than 35 million people with the AIDS virus @@ -12166,7 +12372,7 @@ generally permitted under international trade law and is specifically permitted within the European Union. -See Peter Drahos with John Braithwaite, Information Feudalism: Who +See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 37. Braithwaite, John Drahos, Peter @@ -12175,7 +12381,7 @@ Owns the Knowledge Economy? (New York: The New Press, 2003), 37. However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association -characterized it, "The U.S. government pressured South Africa . . . +characterized it, "The U.S. government pressured South Africa … not to permit compulsory licensing or parallel imports." @@ -12358,6 +12564,7 @@ hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans produce the "perfect storm" for free culture. +Reagan, Ronald In August 2003, a fight broke out in the United States about a decision by the World Intellectual Property Organization to cancel a @@ -12390,6 +12597,8 @@ Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free in the early 1980s. And it included "open source and free software." +academic journals +IBM PLoS (Public Library of Science) @@ -12479,6 +12688,10 @@ Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. +IBM +"copyleft" licenses +GNU/Linux operating system +Linux operating system More important for our purposes, to support "open source and free @@ -12511,6 +12724,7 @@ Krim, "The Quiet War over Open-Source," available at link #64. And without U.S. backing, the meeting was canceled. +Krim, Jonathan I don't blame Microsoft for doing what it can to advance its own @@ -12753,7 +12967,7 @@ available at Eminem has just been sued for "sampling" someone else's music. -Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," +Jon Wiederhorn, "Eminem Gets Sued … by a Little Old Lady," mtv.com, 17 September 2003, available at link #68. @@ -12813,7 +13027,7 @@ potential is ever to be realized. - + AFTERWORD @@ -12915,8 +13129,9 @@ What made it assured? Well, if we think in terms of the modalities I described in chapter -10, your privacy was assured because of an inefficient architecture -for gathering data and hence a market constraint (cost) on anyone who +, your +privacy was assured because of an inefficient architecture for +gathering data and hence a market constraint (cost) on anyone who wanted to gather that data. If you were a suspected spy for North Korea, working for the CIA, no doubt your privacy would not be assured. But that's because the CIA would (we hope) find it valuable @@ -12938,6 +13153,7 @@ at. You know this because at the side of the page, there's a list of and the function of cookies on the Net, it is easier to collect the data than not. The friction has disappeared, and hence any "privacy" protected by the friction disappears, too. +cookies, Internet Amazon, of course, is not the problem. But we might begin to worry @@ -12980,6 +13196,7 @@ commercially, the software—both the source code and the binaries— was free. You couldn't run a program written for a Data General machine on an IBM machine, so Data General and IBM didn't care much about controlling their software. +IBM Stallman, Richard @@ -13025,6 +13242,8 @@ Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds's "Linux" kernel was added to produce the GNU/Linux operating system. +GNU/Linux operating system +Linux operating system Stallman's technique was to use copyright law to build a world of @@ -13050,6 +13269,9 @@ Finally, consider a very recent example that more directly resonates with the story of this book. This is the shift in the way academic and scientific journals are produced. + + academic journals + As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13123,6 +13345,7 @@ distribution of content. But competition in our tradition is presumptively a good—especially when it helps spread knowledge and science. +
@@ -13245,7 +13468,11 @@ Commons license after the book went out of print. He then monitored used book store prices for the book. As predicted, as the number of downloads increased, the used book price for his book increased, as well. +Free for All (Wayner) +Wayner, Peter +Public Enemy +rap music These are examples of using the Commons to better spread proprietary content. I believe that is a wonderful and common use of the @@ -13262,7 +13489,6 @@ sampling the music of others, has stated that he does not "allow" Public Enemy to sample anymore, because the legal costs are so high - Willful Infringement: A Report from the Front Lines of the Real Culture Wars (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre production, available at @@ -13270,6 +13496,7 @@ Hittelman, a Fiat Lucre production, available at ), these artists release into the creative environment content that others can build upon, so that their form of creativity might grow. +Leaphart, Walter Finally, there are many who mark their content with a Creative Commons @@ -13355,8 +13582,9 @@ default is control, and "formalities" are banished. Why? -As I suggested in chapter 10, the motivation to abolish formalities -was a good one. In the world before digital technologies, formalities +As I suggested in chapter , the motivation to abolish formalities was a +good one. In the world before digital technologies, formalities imposed a burden on copyright holders without much benefit. Thus, it was progress when the law relaxed the formal requirements that a copyright owner must bear to protect and secure his work. Those @@ -13671,6 +13899,7 @@ University Press, 1967), 32. The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law's greatest judges, Judge Benjamin Kaplan. +Kaplan, Benjamin
@@ -13780,10 +14009,11 @@ an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance. -File-sharing networks complicate this model by enabling the -spread of content for which the performer has not been paid. But of -course, that's not all the file-sharing networks do. As I described in -chapter 5, they enable four different kinds of sharing: +File-sharing networks complicate this model by enabling the spread of +content for which the performer has not been paid. But of course, +that's not all the file-sharing networks do. As I described in chapter +, they enable +four different kinds of sharing: @@ -13819,7 +14049,8 @@ effect of sharing is actually not very harmful, the need for regulation is significantly weakened. -As I said in chapter 5, the actual harm caused by sharing is +As I said in chapter , the actual harm caused by sharing is controversial. For the purposes of this chapter, however, I assume the harm is real. I assume, in other words, that type A sharing is significantly greater than type B, and is the dominant use of sharing @@ -14028,8 +14259,9 @@ proportionally, though more popular artists would get more than the less popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85. -Netanel, Neil Weinstock Fisher, William +Netanel, Neil Weinstock +Promises to Keep (Fisher) Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission @@ -14055,6 +14287,7 @@ facilitate free exchange of content, supported through a taxation system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access. +Promises to Keep (Fisher) Fisher would balk at the idea of allowing the system to lapse. His aim @@ -14069,6 +14302,7 @@ uses. A system that simply charges for access would not greatly burden semiotic democracy if there were few limitations on what one was allowed to do with the content itself. +Real Networks No doubt it would be difficult to calculate the proper measure of "harm" to an industry. But the difficulty of making that calculation @@ -14293,7 +14527,7 @@ keep your lawyers away.
- + NOTES Throughout this text, there are references to links on the World Wide @@ -14307,10 +14541,10 @@ alive, you will be redirected to that link. If the original link has disappeared, you will be redirected to an appropriate reference for the material. - + - + ACKNOWLEDGMENTS This book is the product of a long and as yet unsuccessful struggle that @@ -14318,6 +14552,7 @@ began when I read of Eric Eldred's war to keep books free. Eldred's work helped launch a movement, the free culture movement, and it is to him that this book is dedicated. +Rose, Mark I received guidance in various places from friends and academics, including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, @@ -14336,7 +14571,7 @@ Yuko Noguchi helped me to understand the laws of Japan as well as its culture. I am thankful to her, and to the many in Japan who helped me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro - + Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University Business Law Center, for giving me the chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu @@ -14377,7 +14612,8 @@ insisted that there would be unending happiness away from these battles, and who has always been right. This slow learner is, as ever, grateful for her perpetual patience and love. - + +