X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/9b35baaf19928f00193b7f7428843cedef1bf1ed..e768a746d89e90ebc2274d4be0f609b3314d8f5e:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 7559507..eae61d5 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -176,11 +176,11 @@ Excerpt from an editorial titled The Coming of Copyright Perpetuity, -Cartoon in by Paul Conrad, copyright Tribune +Cartoon in by Paul Conrad, copyright Tribune Media Services, Inc. All rights reserved. Reprinted with permission. -Diagram in courtesy of the office of FCC +Diagram in courtesy of the office of FCC Commissioner, Michael J. Copps. @@ -322,7 +322,7 @@ c INDEX PREFACE -Pogue, David +Pogue, David At the end of his review of my first book, Code: And Other Laws of Cyberspace, David @@ -358,7 +358,7 @@ 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. - + But unlike Code, the argument here is not much about the Internet itself. It is instead about the consequence of the @@ -395,7 +395,7 @@ disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental. -power, concentration of +power, concentration of CodePink Women in Peace Safire, William Stevens, Ted @@ -432,7 +432,7 @@ altering the way our culture gets made; that change should worry you—whether or not you care about the Internet, and whether you're on Safire's left or on his right. - + The inspiration for the title and for much of the argument of this book comes from the work of Richard @@ -486,9 +486,9 @@ and its importance widely understood. Almost immediately, there was an explosion of interest in this newfound technology of manned flight, and a gaggle of innovators began to build upon it. -air traffic, land ownership vs. -land ownership, air traffic and -property rightsair traffic vs. +air traffic, land ownership vs. +land ownership, air traffic and +property rightsair traffic vs. At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface @@ -527,6 +527,8 @@ property, and the Causbys wanted it to stop. Causby, Thomas Lee Causby, Tinie +Douglas, William O. +Supreme Court, U.S.on airspace vs. land rights The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the @@ -564,6 +566,7 @@ Goldstein, Real Property (Mineola, N.Y.: Foundation Press Common sense revolts at the idea. + 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 @@ -596,13 +599,15 @@ end, the force of what seems obvious to everyone else—the p common sense—would prevail. Their private interest would not be allowed to defeat an obvious public gain. - - - -Armstrong, Edwin Howard + + + + +Armstrong, Edwin Howard Bell, Alexander Graham Edison, Thomas Faraday, Michael +radioFM spectrum of Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He came to the great American @@ -654,6 +659,8 @@ Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong +RCA +mediaownership concentration in As our own common sense tells us, Armstrong had discovered a vastly superior radio technology. But at the time of his invention, Armstrong @@ -684,14 +691,15 @@ www.webstationone.com/fecha, available at -Lessing, Lawrence +FM radio +Sarnoff, David Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author described, -Sarnoff, David +Lessing, Lawrence
The forces for FM, largely engineering, could not overcome the weight @@ -703,6 +711,7 @@ on which RCA had grown to power.Lessing, 226.
+FCCon FM radio RCA at first kept the technology in house, insisting that further tests were needed. When, after two years of testing, Armstrong grew @@ -727,7 +736,7 @@ Lessing, 256. - + AT&T To make room in the spectrum for RCA's latest gamble, television, @@ -739,6 +748,8 @@ FM relaying stations would mean radio stations would have to buy wired links from AT&T.) The spread of FM radio was thus choked, at least temporarily. + + Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's patents. After incorporating FM technology into the @@ -751,7 +762,8 @@ would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of a thirteenth-story window to his death. - + + This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From @@ -768,6 +780,9 @@ 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. + + +Internetdevelopment of There's no single inventor of the Internet. Nor is there any good date upon which to mark its birth. Yet in a very short time, the Internet @@ -803,7 +818,9 @@ old as the Republic itself. Most, if they recognized this change, would reject it. Yet most don't even see the change that the Internet has introduced. + Barlow, Joel +culturecommercial vs. noncommercial Webster, Noah We can glimpse a sense of this change by distinguishing between @@ -828,6 +845,7 @@ individuals shared and transformed their culture—telling stories, reenacting scenes from plays or TV, participating in fan clubs, sharing music, making tapes—were left alone by the law. +Copyright infringement lawsuitscommercial creativity as primary purpose of The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the incentives of creators by @@ -871,6 +889,7 @@ been undone. The consequence is that we are less and less a free culture, more and more a permission culture. +protection of artists vs. business interests This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its @@ -884,6 +903,7 @@ shared have united to induce lawmakers to use the law to protect them. It is the story of RCA and Armstrong; it is the dream of the Causbys. + For the Internet has unleashed an extraordinary possibility for many to participate in the process of building and cultivating a culture @@ -912,6 +932,7 @@ more efficient, more vibrant technology for building culture. They are succeeding in their plan to remake the Internet before the Internet remakes them. + Valenti, Jack on creative property rights It doesn't seem this way to many. The battles over copyright and the @@ -944,6 +965,10 @@ and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet pirates will also rid our culture of values that have been integral to our tradition from the start. +Constitution, U.S.First Amendment to +copyright lawas protection of creators +First Amendment +Netanel, Neil Weinstock These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their @@ -991,6 +1016,7 @@ come to understand the source of this war. We must resolve it soon. Causby, Thomas Lee Causby, Tinie +intellectual property rights Like the Causbys' battle, this war is, in part, about property. The property of this war is not as tangible as the Causbys', and no @@ -1066,6 +1092,7 @@ sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound. + The struggle that rages just now centers on two ideas: piracy and property. My aim in this book's next two parts is to explore these two @@ -1104,7 +1131,10 @@ to which most of us remain oblivious. <quote>PIRACY</quote> -Mansfield, William Murray, Lord +copyright lawEnglish +Mansfield, William Murray, Lord +music publishing +sheet music Since the inception of the law regulating creative property, there has been a war against piracy. The precise contours of this concept, @@ -1121,8 +1151,10 @@ of them for his own use. Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). - + +Internet efficient content distribution on +peer-to-peer (p2p) file sharingefficiency of Today we are in the middle of another war against piracy. The Internet has provoked this war. The Internet makes possible the @@ -1140,6 +1172,7 @@ sharing of copyrighted content. That sharing in turn has excited the war, as copyright owners fear the sharing will rob the author of the profit. + The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their property against this @@ -1170,7 +1203,8 @@ piracy. ASCAP Dreyfuss, Rochelle Girl Scouts -if value, then right theory +creative propertyif value, then right theory of +if value, then right theory This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the if value, then right @@ -1194,6 +1228,7 @@ Speech, No One Wins, Boston Globe, 24 November 20 There was value (the songs) so there must have been a right—even against the Girl Scouts. + This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system @@ -1202,7 +1237,9 @@ of law protecting creative property. But the if value, then right theory of creative property has never been America's theory of creative property. It has never taken hold within our law. - + +copyright lawon republishing vs. transformation of original work +creativitylegal restrictions on Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains @@ -1217,6 +1254,7 @@ work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. + Before the technologies of the Internet, this conflation didn't matter all that much. The technologies of publishing were expensive; that @@ -1225,6 +1263,7 @@ entities could bear the burden of the law—even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. +copyright lawcreativity impeded by Florida, Richard Rise of the Creative Class, The (Florida) @@ -1262,6 +1301,7 @@ under which it will be enabled are much more tenuous. Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. + These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper @@ -1272,8 +1312,11 @@ context the current battles about behavior labeled piracy. CHAPTER ONE: Creators -animated cartoons +animated cartoons cartoon films +filmsanimated +Steamboat Willie +Mickey Mouse In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent flop called Plane Crazy. @@ -1281,6 +1324,7 @@ In November, in New York City's Colony Theater, in the first widely distributed cartoon synchronized with sound, Steamboat Willie brought to life the character that would become Mickey Mouse. +Disney, Walt Synchronized sound had been introduced to film a year earlier in the movie The Jazz Singer. That success led Walt Disney to copy the @@ -1331,6 +1375,9 @@ Disney's invention that set the standard that others struggled to match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others. + +Keaton, Buster +Steamboat Bill, Jr. This much is familiar. What you might not know is that 1928 also marks another important transition. In that year, a comic (as opposed to @@ -1345,6 +1392,8 @@ Jr. was a classic of this form, famous among film buffs for its incredible stunts. The film was classic Keaton—wildly popular and among the best of its genre. +derivative workspiracy vs. +piracyderivative work vs. Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. @@ -1368,6 +1417,12 @@ Steamboat Bill, Jr., itself inspired by the song Steamboat Bill, that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse. + + + + +creativityby transforming previous works +Disney, Inc. This borrowing was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream @@ -1387,6 +1442,7 @@ were built upon a base that was borrowed. Disney added to the work of others before him, creating something new out of something just barely old. +Grimm fairy tales Sometimes this borrowing was slight. Sometimes it was significant. Think about the fairy tales of the Brothers Grimm. If you're as @@ -1418,7 +1474,7 @@ creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn. - + This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would say that there is no @@ -1428,6 +1484,12 @@ would be a bit misleading. It is, more precisely, Walt Disney creativity—a form of expression and genius that builds upon the culture around us and makes it something different. + + + +copyrightduration of +public domaindefined +public domaintraditional term for conversion to In 1928, the culture that Disney was free to draw upon was relatively fresh. The public domain in 1928 was not very old and was therefore quite vibrant. The average term of copyright was just around @@ -1459,6 +1521,8 @@ for Disney to use and build upon in 1928. It was free for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon. + + This is the ways things always were—until quite recently. For most of our history, the public domain was just over the horizon. From @@ -1473,12 +1537,22 @@ permission. Yet today, the public domain is presumptive only for content from before the Great Depression. + + + + +Disney, Walt Of course, Walt Disney had no monopoly on Walt Disney creativity. Nor does America. The norm of free culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal. +comics, Japanese +derivative workspiracy vs. +Japanese comics +manga +piracyderivative work vs. Consider, for example, a form of creativity that seems strange to many Americans but that is inescapable within Japanese culture: manga, or @@ -1504,6 +1578,8 @@ But my purpose here is not to understand manga. It is to describe a variant on manga that from a lawyer's perspective is quite odd, but from a Disney perspective is quite familiar. +creativityby transforming previous works +doujinshi comics This is the phenomenon of doujinshi. Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of @@ -1519,6 +1595,7 @@ must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy. +Disney, Walt These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 circles of creators from across Japan produce @@ -1530,6 +1607,8 @@ competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law. +copyright lawJapanese +Steamboat Bill, Jr. The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under @@ -1544,7 +1623,8 @@ the permission of the original copyright owner is illegal. It is an infringement of the original copyright to make a copy or a derivative work without the original copyright owner's permission. -Winick, Judd + +Winick, Judd 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 @@ -1560,6 +1640,7 @@ For an excellent history, see Scott McCloud, Reinventing Comics + Superman comics American comics now are quite different, Winick explains, in part @@ -1569,7 +1650,10 @@ and you have to stick to them. There are things Superman cannotAs a creator, it's frustrating having to stick to some parameters which are fifty years old. - + +copyright lawJapanese +comics, Japanese +Mehra, Salil The norm in Japan mitigates this legal difficulty. Some say it is precisely the benefit accruing to the Japanese manga market that @@ -1589,6 +1673,9 @@ individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved. + + + The problem with this story, however, as Mehra plainly acknowledges, is that the mechanism producing this laissez faire response is not @@ -1600,6 +1687,8 @@ individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this free taking by the doujinshi culture? + + I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by @@ -1619,6 +1708,7 @@ uncompensated sharing? Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help their clients or hurt them? + Let's pause for a moment. @@ -1633,6 +1723,7 @@ celebrants. I believe in the value of property in general, and I also believe in the value of that weird form of property that lawyers call intellectual property. +Vaidhyanathan, Siva The term intellectual property is of relatively recent origin. See Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas @@ -1640,12 +1731,14 @@ University Press, 2001). See also Lawrence Lessig, The Future of Idea describes a set of property rights—copyright, patents, trademark, and trade-secret—but the nature of those rights is very different. -Vaidhyanathan, Siva A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without intellectual property. +Disney, Walt +Grimm fairy tales +Keaton, Buster But it takes just a second's reflection to realize that there is plenty of value out there that property doesn't capture. I don't @@ -1661,6 +1754,7 @@ Disney's use would have been considered fair. There was nothing wrong with the taking from the Grimms because the Grimms' work was in the public domain. +free culturederivative works based on Thus, even though the things that Disney took—or more generally, the things taken by anyone exercising Walt Disney creativity—are @@ -1670,6 +1764,12 @@ valuable, our tradition does not treat those takings as wrong. Some things remain free for the taking within a free culture, and that freedom is good. + +copyright lawJapanese +comics, Japanese +doujinshi comics +Japanese comics +manga The same with the doujinshi culture. If a doujinshi artist broke into a publisher's office and ran off with a thousand copies of his latest @@ -1678,12 +1778,20 @@ saying the artist was wrong. In addition to having trespassed, he would have stolen something of value. The law bans that stealing in whatever form, whether large or small. + Yet there is an obvious reluctance, even among Japanese lawyers, to say that the copycat comic artists are stealing. This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard to say why. + + + + + + +Shakespeare, William It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the work of other scientists @@ -1709,6 +1817,7 @@ every society has left a certain bit of its culture free for the taking—fr societies more fully than unfree, perhaps, but all societies to some degree. + The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard @@ -1726,14 +1835,15 @@ Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so. + CHAPTER TWO: <quote>Mere Copyists</quote> -camera technology -photography Daguerre, Louis +camera technology +photography In 1839, Louis Daguerre invented the first practical technology for producing what we would call @@ -1756,7 +1866,7 @@ 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. -Eastman, George +Eastman, George The technological change that made mass photography possible didn't happen until 1888, and was the creation of a single man. George @@ -1769,7 +1879,8 @@ a developer, driving the costs of photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the population of photographers. -Kodak Primer, The (Eastman) +Kodak cameras +Kodak Primer, The (Eastman) Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was @@ -1792,12 +1903,13 @@ preliminary study, without a darkroom and without chemicals. +Coe, Brian Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. -Coe, Brian + For $25, anyone could make pictures. The camera came preloaded with film, and when it had been used, the camera was returned to an @@ -1817,7 +1929,6 @@ an average annual increase of over 17 percent. Based on a chart in Jenkins, p. 178. - Coe, Brian @@ -1836,6 +1947,8 @@ interpretation or bias. Coe, 58. +democracyin technologies of expression +expression, technologies ofdemocratic In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a technology of @@ -1849,6 +1962,8 @@ creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before. + +permissionsphotography exempted from What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also important was the @@ -1866,6 +1981,9 @@ v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Dist. Ct. 1894). + +Disney, Walt +images, ownership of The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was taking something from the person or @@ -1878,6 +1996,8 @@ Mickey, so, too, should these photographers not be free to take images that they thought valuable. Brandeis, Louis D. +Steamboat Bill, Jr. +camera technology On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should @@ -1895,7 +2015,7 @@ gets something for nothing. Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source. -images, ownership of + Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no @@ -1914,6 +2034,8 @@ Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). ) +Kodak cameras +Napster We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the @@ -1929,6 +2051,10 @@ imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission. + +camera technology +democracyin technologies of expression +expression, technologies ofdemocratic @@ -1944,7 +2070,10 @@ that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been realized. -camera technology + + + + If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses @@ -1961,8 +2090,6 @@ schools and enable three hundred to five hundred children to learn something about media by doing something with media. By doing, they think. By tinkering, they learn. - - These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -1996,6 +2123,8 @@ and noticing split infinitives are the things that literate peopl about. advertising +commercials +televisionadvertising on Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 @@ -2021,6 +2150,7 @@ how difficult media is. Or more fundamentally, few of us have a sense of how media works, how it holds an audience or leads it through a story, how it triggers emotion or builds suspense. + It took filmmaking a generation before it could do these things well. But even then, the knowledge was in the filming, not in writing about @@ -2030,6 +2160,7 @@ reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. Crichton, Michael +Daley, Elizabeth This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern @@ -2110,7 +2241,7 @@ language of the twenty-first century. Ibid. -Barish, Stephanie +Barish, Stephanie As with any language, this language comes more easily to some than to others. It doesn't necessarily come more easily to those who excel in @@ -2123,6 +2254,7 @@ failure. But Daley and Barish ran a program that gave kids an opportunity to use film to express meaning about something the students know something about—gun violence. + The class was held on Friday afternoons, and it created a relatively new problem for the school. While the challenge in most classes was @@ -2148,6 +2280,7 @@ can do well. Yet neither is text a form in which these ideas can be expressed well. The power of this message depended upon its connection to this form of expression. + @@ -2198,7 +2331,9 @@ had a lot of power with this language. +September 11, 2001, terrorist attacks of World Trade Center +news coverage When two planes crashed into the World Trade Center, another into the Pentagon, and a fourth into a @@ -2235,6 +2370,7 @@ the term in his book Cyber Rights, around a news event th captured the attention of the world. There was ABC and CBS, but there was also the Internet. + I don't mean simply to praise the Internet—though I do think the people who supported this form of speech should be praised. I mean @@ -2254,6 +2390,10 @@ and obviously not just that events are commented upon critically, but that this mix of captured images, sound, and commentary can be widely spread practically instantaneously. +September 11, 2001, terrorist attacks of +blogs (Web-logs) +Internetblogs on +Web-logs (blogs) September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that has grown dramatically was @@ -2263,7 +2403,8 @@ such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way—it's a kind of electronic Jerry Springer, available anywhere in the world. -blogs (Web-logs) +political discourse +Internetpublic discourse conducted on But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about @@ -2278,6 +2419,9 @@ are relatively short; they point directly to words used by others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public discourse that we have. +democracyin technologies of expression +elections +expression, technologies ofdemocratic That's a strong statement. Yet it says as much about our democracy as it does about blogs. This is the part of America that is most @@ -2289,7 +2433,11 @@ people vote in those elections. The cycle of these elections has become totally professionalized and routinized. Most of us think this is democracy. + + + Tocqueville, Alexis de +democracypublic discourse in jury system But democracy has never just been about elections. Democracy @@ -2311,6 +2459,7 @@ See, for example, Alexis de Tocqueville, Democracy in America + Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some @@ -2323,6 +2472,7 @@ And in some towns in New England, something close to deliberation remains. But for most of us for most of the time, there is no time or place for democratic deliberation to occur. +political discourse More bizarrely, there is generally not even permission for it to occur. We, the most powerful democracy in the world, have developed a @@ -2336,8 +2486,13 @@ Cass Sunstein, Republic.com (Princeton: Princeton Univers We say what our friends want to hear, and hear very little beyond what our friends say. -blogs (Web-logs) +blogs (Web-logs) e-mail +Internetblogs on +Web-logs (blogs) + + + Enter the blog. The blog's very architecture solves one part of this problem. People post when they want to post, and people read when they @@ -2398,7 +2553,7 @@ rises in the ranks of stories. People read what is popular; what is popular has been selected by a very democratic process of peer-generated rankings. -Winer, Dave +Winer, Dave There's a second way, as well, in which blogs have a different cycle @@ -2493,9 +2648,14 @@ Today there are probably a couple of million blogs where such writing happens. When there are ten million, there will be something extraordinary to report. - - -Brown, John Seely + + + + + + + +Brown, John Seely advertising John Seely Brown is the chief @@ -2621,7 +2781,7 @@ quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs RPIRensselaer Polytechnic Institute (RPI) -Rensselaer Polytechnic Institute (RPI) +Rensselaer Polytechnic Institute (RPI) In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer @@ -2861,10 +3021,10 @@ now. The film industry of Hollywood was built by fleeing pirates. +Vaidhyanathan, Siva I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, which details Edison's adventures with copyright and patent. -Vaidhyanathan, Siva Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents @@ -2948,6 +3108,7 @@ Edison's creative property.
Recorded Music +copyright lawon music recordings 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. @@ -3033,6 +3194,9 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). +American Graphophone Company +player pianos +sheet music These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the @@ -3057,7 +3221,6 @@ 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 @@ -3082,6 +3245,7 @@ Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. +Grisham, John This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if @@ -3090,8 +3254,8 @@ charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham's work except with permission of Grisham. -Grisham, John + But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording @@ -3437,7 +3601,7 @@ legal wrong, but a locally legal wrong as well. True, these local rules have, in effect, been imposed upon these countries. No country can be part of the world economy and choose - + not to protect copyright internationally. We may have been born a pirate nation, but we will not allow any other nation to have a similar childhood. @@ -3521,10 +3685,14 @@ technology of a time, then it is wrong to take property without the permission of a property owner. That is exactly what property means. Asia, commercial piracy in +piracyin Asia +free software/open-source software (FS/OSS) GNU/Linux operating system Linux operating system -MicrosoftWindows operating system of +Microsoftcompetitive strategies of Windows +Microsoftinternational software piracy of +MicrosoftWindows operating system of Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner. When the Chinese steal @@ -3538,6 +3706,7 @@ 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. +lawdatabases of case reports in This argument, too, is somewhat true. The addiction strategy is a good one. Many businesses practice it. Some thrive because of it. Law @@ -3546,9 +3715,9 @@ databases. The companies marketing both hope the students will become so used to their service that they will want to use it and not the other when they become lawyers (and must pay high subscription fees). -GNU/Linux operating system -Internet Explorer Netscape +Internet Explorer +GNU/Linux operating system Linux operating system Still, the argument is not terribly persuasive. We don't give the @@ -3798,6 +3967,7 @@ when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer. +MTV Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record @@ -4081,6 +4251,17 @@ legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less. artistsrecording industry payments to +composers, copyright protections of +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawon music recordings +copyright lawstatutory licenses in +radiomusic recordings played on +recording industryartist remuneration in +recording industrycopyright protections in +recording industryradio broadcast and +statutory licenses +composer's rights vs. producers' rights in So, as we've seen, when mechanical reproduction threatened the interests of composers, Congress balanced the rights of composers @@ -4102,6 +4283,7 @@ compensation, but at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the statutory price. + @@ -4120,6 +4302,8 @@ Congress chose a path that would assure compensation without giving the past (broadcasters) control over the future (cable). + + Betamax cassette recordingVCRs @@ -4136,6 +4320,7 @@ and shows. Sony was therefore benefiting from the copyright infringement of its customers. It should therefore, Disney and Universal claimed, be partially liable for that infringement. + There was something to Disney's and Universal's claim. Sony did decide to design its machine to make it very simple to record television @@ -4173,7 +4358,7 @@ and plain common sense. Copyright Infringements (Audio and Video Recorders), 475. -Indeed, as surveys would later show, +Indeed, as surveys would later show, 45 percent of VCR owners had movie libraries of ten videos or more Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, @@ -4181,8 +4366,8 @@ percent of VCR owners had movie libraries of ten videos or more — a use the Court would later hold was not fair. By allowing VCR owners to copy freely by the means of an exemption from -copyright infringementwithout creating a mechanism to compensate -copyrightowners, Valenti testified, Congress would take from the +copyright infringement without creating a mechanism to compensate +copyright owners, Valenti testified, Congress would take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby profit from its reproduction. @@ -4313,6 +4498,7 @@ technology to benefit from content made before. It balanced the interests at stake. +Disney, Walt When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes @@ -4528,9 +4714,9 @@ fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one additional years. +Vaidhyanathan, Siva As Siva Vaidhyanathan nicely argues, it is erroneous to call this a copyright law. See Vaidhyanathan, Copyrights and Copywrongs, 40. -Vaidhyanathan, Siva Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? @@ -4744,6 +4930,7 @@ they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors. +Patterson, Raymond This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary @@ -4751,10 +4938,11 @@ chutzpah. Until then, as law professor Raymond Patterson has put it, The publishers … had as much concern for authors as a cattle rancher has for cattle. +Patterson, Raymond +Vaidhyanathan, Siva Lyman Ray Patterson, Free Speech, Copyright, and Fair Use, Vanderbilt Law Review 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37–48. -Vaidhyanathan, Siva The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. @@ -4797,6 +4985,7 @@ inexpensive editions of the most popular English books, in defiance of the supposed common law right of Literary Property. +Patterson, Raymond Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting Borwell). @@ -4809,6 +4998,7 @@ The London booksellers quickly brought suit to block piracy like Donaldson's. A number of actions were successful against the pirates, the most important early victory being Millar v. Taylor. +Seasons, The (Thomson) Taylor, Robert Millar was a bookseller who in 1729 had purchased the rights to James @@ -4823,7 +5013,7 @@ Exploding the Myth of Common Law Copyright, Wayne Law Review< (1983): 1152. -Mansfield, William Murray, Lord +Mansfield, William Murray, Lord Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever @@ -4849,7 +5039,7 @@ a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. - + The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. @@ -5646,6 +5836,7 @@ billion pages, and it was growing at about a billion pages a month. Vanderbilt University Way Back Machine librariesarchival function of +news coverage The Way Back Machine is the largest archive of human knowledge in human history. At the end of 2002, it held two hundred and thirty @@ -5739,6 +5930,7 @@ events of that day. Movie Archive archive.orgInternet Archive + filmsarchive of Internet Archive Duck and Cover film @@ -5871,6 +6063,7 @@ proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press. +Disney, Walt Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of @@ -7001,6 +7194,8 @@ pp. 53–59). These two different uses of my creative work are treated the same. +Disney, Walt +Mickey Mouse 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 @@ -7065,14 +7260,19 @@ current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law. -We can see this point abstractly by beginning with this largely +We can see this point abstractly by beginning with this largely empty circle.
All potential uses of a book.
-booksthree types of uses of +booksthree types of uses of +copyright lawcopies as core issue of +Internetcopyright applicability altered by technology of +technologycopyright intent altered by +derivative workspiracy vs. +piracyderivative work vs. Think about a book in real space, and imagine this circle to represent @@ -7099,6 +7299,8 @@ at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation (see first diagram on next page). + + Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these fair uses. @@ -7133,7 +7335,7 @@ In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed fair regardless of the copyright owner's views. - + bookson Internet Enter the Internet—a distributed, digital network where every use @@ -7169,6 +7371,7 @@ use—reading— could be regulated by copyright law because none of those uses produced a copy. bookson Internet +derivative workstechnological developments and But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book @@ -7195,6 +7398,7 @@ evidence at all that policy makers had this idea in mind when they allowed our policy here to shift. Unregulated uses were an important part of free culture before the Internet. +copyright lawon republishing vs. transformation of original work Second, this shift is especially troubling in the context of transformative uses of creative content. Again, we can all understand @@ -7221,6 +7425,11 @@ 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 free culture. We have been cornered into arguing that our rights @@ -7362,9 +7571,9 @@ This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers were brothers long before you were. +Vaidhyanathan, Siva 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 @@ -7459,6 +7668,8 @@ the book. List of the permissions for Aristotle;s <quote>Politics</quote>. +Future of Ideas, The (Lessig) +Lessig, Lawrence Finally (and most embarrassingly), here are the permissions for the original e-book version of my last book, The Future of @@ -7512,6 +7723,7 @@ if you push the Read Aloud button with my book, the machine simply won't read aloud. Marx Brothers +Warner Brothers These are controls, not permissions. Imagine a @@ -7539,7 +7751,8 @@ to defeat these protections as well? We've only scratched the surface of this story. Return to the Adobe eBook Reader. -Alice's Adventures in Wonderland (Carroll) +Alice's Adventures in Wonderland (Carroll) +public domaine-book restrictions on Early in the life of the Adobe eBook Reader, Adobe suffered a public relations nightmare. Among the books that you could download for free @@ -7580,6 +7793,8 @@ could use a computer to read the book aloud, would Adobe agree that such a use of an eBook Reader was fair? Adobe didn't answer because the answer, however absurd it might seem, is no. + + The point is not to blame Adobe. Indeed, Adobe is among the most innovative companies developing strategies to balance open access to @@ -7606,7 +7821,7 @@ and that doesn't leave that much of a mess (at least in your house). The Aibo is expensive and popular. Fans from around the world have set up clubs to trade stories. One fan in particular set up a Web site to enable information about the Aibo dog to be shared. This fan set - + up aibopet.com (and aibohack.com, but that resolves to the same site), and on that site he provided information about how to teach an Aibo to do tricks in addition to the ones Sony had taught it. @@ -7667,6 +7882,7 @@ completely legal activity. One imagines that the owner of aibopet.com thought, What possible problem could there be with teaching a robot dog to dance? +Microsoftgovernment case against Let's put the dog to sleep for a minute, and turn to a pony show— not literally a pony show, but rather a paper that a Princeton academic @@ -7895,7 +8111,7 @@ practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses. -
+
VCR/handgun cartoon.
@@ -8109,7 +8325,7 @@ just large companies owning many radio stations, but a few companies owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do: -
+
Pattern of modern media ownership.
@@ -8468,9 +8684,9 @@ now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has known. +Vaidhyanathan, Siva Siva Vaidhyanathan captures a similar point in his four surrenders of copyright law in the digital age. See Vaidhyanathan, 159–60. -Vaidhyanathan, Siva @@ -10418,6 +10634,8 @@ gave birth to a hobby, and his hobby begat a cause: Eldred would build a library of public domain works by scanning these works and making them available for free. +Disney, Walt +Grimm fairy tales Eldred's library was not simply a copy of certain public domain works, though even a copy would have been of great value to people @@ -10441,7 +10659,8 @@ 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 @@ -10454,6 +10673,7 @@ social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally. +pornography There's a parallel here with pornography that is a bit hard to describe, but it's a strong one. One phenomenon that the Internet created was a world of noncommercial pornographers—people who @@ -10793,6 +11013,10 @@ its politics struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians. +Constitution, U.S.copyright purpose established in +copyrightconstitutional purpose of +copyrightduration of +Disney, Walt Now let's pause for a moment to make sure we understand what the argument in @@ -11434,6 +11658,8 @@ who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. Fried, Charles +Congress, U.S.constitutional powers of +Constitution, U.S.Commerce Clause of Fried was a special victory for our side. Every other former solicitor general was hired by the other side to defend Congress's power to give @@ -11463,6 +11689,8 @@ continue to have the right to control who did what with content they wanted to control. Gershwin, George +Porgy and Bess +pornography Dr. Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to @@ -12756,9 +12984,13 @@ 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. +public domainpublic projects in +single nucleotied polymorphisms (SNPs) +Wellcome Trust +World Wide Web +Global Positioning System Reagan, Ronald biomedical research -Wellcome Trust In August 2003, a fight broke out in the United States about a decision by the World Intellectual @@ -12814,6 +13046,7 @@ perspectives. And WIPO was an ideal venue for this discussion, since WIPO is the preeminent international body dealing with intellectual property issues. +World Summit on the Information Society (WSIS) Indeed, I was once publicly scolded for not recognizing this fact about WIPO. In February 2003, I delivered a keynote address to a @@ -12844,6 +13077,7 @@ had thought it was taken for granted that WIPO could and should. And thus the meeting about open and collaborative projects to create public goods seemed perfectly appropriate within the WIPO agenda. + Apple Corporation But there is one project within that list that is highly @@ -12856,10 +13090,10 @@ Microsoft's software. And internationally, many governments have begun to explore requirements that they use open source or free software, rather than proprietary software, for their own internal uses. -IBM copyleft licenses GNU/Linux operating system Linux operating system +IBM I don't mean to enter that debate here. It is important only to make clear that the distinction is not between commercial and @@ -12889,6 +13123,8 @@ May 2001), available at link #63. +General Public License (GPL) +GPL (General Public License) More important for our purposes, to support open source and free software is not to oppose copyright. Open source and free software @@ -12908,6 +13144,7 @@ could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does. Krim, Jonathan +MicrosoftWIPO meeting opposed by It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and @@ -12955,7 +13192,10 @@ in understanding—the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues. +World Summit on the Information Society (WSIS) +drugspharmaceutical generic drugs +patentson pharmaceuticals Second, who ever said that WIPO's exclusive aim was to promote intellectual property maximally? As I had been scolded at the @@ -14440,6 +14680,7 @@ the Internet, or the p2p technologies that are currently harming content providers on the Internet, we should find a relatively simple way to compensate those who are harmed. +Promises to Keep (Fisher) The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher. @@ -14494,7 +14735,6 @@ distributed. On the basis of those numbers, then (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax. -Promises to Keep (Fisher) Fisher's proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, @@ -14510,6 +14750,7 @@ 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. + artistsrecording industry payments to Fisher would balk at the idea of allowing the system to lapse. His aim @@ -14746,7 +14987,7 @@ permission produces. Again, this is the reality of Brezhnev's Russia. The law should regulate in certain areas of culture—but it should regulate culture only where that regulation does good. Yet lawyers - + rarely test their power, or the power they promote, against this simple pragmatic question: Will it do good? When challenged about the expanding reach of the law, the lawyer answers, Why not?