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Free CultureHow big media uses technology and the law to lock down
- culture and control creativity
Copyright © 2004 Lawrence Lessig
+ culture and control creativity
Copyright © 2004 Lawrence Lessig
This book 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 visit
http://creativecommons.org/licenses/by-nc/1.0/.
-
About the author
Lawrence Lessig
(http://www.lessig.org),
professor of law and a Roy L. Furman Professor of Law and Leadership
@@ -18,35 +18,29 @@ Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
the boards of the Public Library of Science, the Electronic Frontier
Foundation, and Public Knowledge. He was the winner of the Free
Software Foundation's Award for the Advancement of Free Software,
-twice listed in BusinessWeek's «e.biz 25,» and named one
-of Scientific American's «50 visionaries.» A graduate of
+twice listed in BusinessWeek's “e.biz 25,” and named one
+of Scientific American's “50 visionaries.” A graduate of
the University of Pennsylvania, Cambridge University, and Yale Law
School, Lessig clerked for Judge Richard Posner of the U.S. Seventh
Circuit Court of Appeals.
-
-The USA is lesterland: The nature of congressional corruption
+The USA is lesterland: The nature of congressional corruption (2014)
-
-Republic, lost: How money corrupts Congress - and a plan to stop it
+Republic, lost: How money corrupts Congress - and a plan to stop it (2011)
-
-Remix: Making art and commerce thrive in the hybrid economy
+Remix: Making art and commerce thrive in the hybrid economy (2008)
-
-Code: Version 2.0
+Code: Version 2.0 (2006)
-
-The Future of Ideas: The Fate of the Commons in a Connected World
+The Future of Ideas: The Fate of the Commons in a Connected World (2001)
-
-Code: And Other Laws of Cyberspace
-
+Code: And Other Laws of Cyberspace (1999)
+
To Eric Eldred — whose work first drew me to this cause, and for whom
it continues still.
-
At the end of his review of my first
book, Code: And Other Laws of Cyberspace, David
Pogue, a brilliant writer and author of countless technical and
@@ -58,12 +52,12 @@ of the world population is). And if you don't like the Internet's
system, you can always flip off the modem.
Pogue was skeptical of the core argument of the book—that
-software, or «code,» functioned as a kind of law—and his review
+software, or “code,” functioned as a kind of law—and his review
suggested the happy thought that if life in cyberspace got bad, we
-could always «drizzle, drazzle, druzzle, drome»-like simply flip a
+could always “drizzle, drazzle, druzzle, drome”-like simply flip a
switch and be back home. Turn off the modem, unplug the computer, and
any troubles that exist in that space wouldn't
-«affect» us anymore.
+“affect” us anymore.
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:
@@ -71,9 +65,9 @@ But even if he was right then, the point is not right now:
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
+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
Internet to a part of our tradition that is much more fundamental,
@@ -81,10 +75,10 @@ and, as hard as this is for a geek-wanna-be to admit, much more
important.
That tradition is the way our culture gets made. As I explain in the
-pages that follow, we come from a tradition of «free culture»—not
-«free» as in «free beer» (to borrow a phrase from the founder of the
-free software movement), but «free» as in «free speech,» «free markets,»
-«free trade,» «free enterprise,» «free will,» and «free elections.» A
+pages that follow, we come from a tradition of “free culture”—not
+“free” as in “free beer” (to borrow a phrase from the founder of the
+free software movement), but “free” as in “free speech,” “free markets,”
+“free trade,” “free enterprise,” “free will,” and “free elections.” A
free culture supports and protects creators and innovators. It does
this directly by granting intellectual property rights. But it does so
indirectly by limiting the reach of those rights, to guarantee that
@@ -92,25 +86,25 @@ follow-on creators and innovators remain as free as
possible from the control of the past. A free culture is
not a culture without property, just as a free market is not a market
in which everything is free. The opposite of a free culture is a
-«permission culture»—a culture in which creators get to create
+“permission culture”—a culture in which creators get to create
only with the permission of the powerful, or of creators from the
past.
-If we understood this change, I believe we would resist it. Not «we»
-on the Left or «you» on the Right, but we who have no stake in the
+If we understood this change, I believe we would resist it. Not “we”
+on the Left or “you” on the Right, but we who have no stake in the
particular industries of culture that defined the twentieth century.
Whether you are on the Left or the Right, if you are in this sense
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.
-
+
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
would relax limits on media concentration, an extraordinary coalition
generated more than 700,000 letters to the FCC opposing the change.
-As William Safire described marching «uncomfortably alongside CodePink
+As William Safire described marching “uncomfortably alongside CodePink
Women for Peace and the National Rifle Association, between liberal
-Olympia Snowe and conservative Ted Stevens,» he formulated perhaps
+Olympia Snowe and conservative Ted Stevens,” he formulated perhaps
most simply just what was at stake: the concentration of power. And as
he asked,
@@ -118,7 +112,7 @@ Does that sound unconservative? Not to me. The concentration of
power—political, corporate, media, cultural—should be anathema to
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
-the greatest expression of democracy.
+the greatest expression of democracy.
This idea is an element of the argument of Free Culture, though my
focus is not just on the concentration of power produced by
@@ -128,14 +122,14 @@ the effective scope of the law. The law is changing; that change is
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
Stallman and the Free Software Foundation. Indeed, as I reread
Stallman's own work, especially the essays in Free Software, Free
Society, I realize that all of the theoretical insights I develop here
are insights Stallman described decades ago. One could thus well argue
-that this work is «merely» derivative.
+that this work is “merely” derivative.
I accept that criticism, if indeed it is a criticism. The work of a
lawyer is always derivative, and I mean to do nothing more in this
@@ -163,12 +157,12 @@ by extremism in the property rights that define it. That is what I
fear about our culture today. It is against that extremism that this
book is written.
On December 17, 1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
@@ -180,12 +174,12 @@ flight, and a gaggle of innovators began to build upon it.
At the time the Wright brothers invented the airplane, American
law held that a property owner presumptively owned not just the surface
of his land, but all the land below, down to the center of the earth,
-and all the space above, to «an indefinite extent, upwards.»
+and all the space above, to “an indefinite extent, upwards.”
For many
years, scholars had puzzled about how best to interpret the idea that
rights in land ran to the heavens. Did that mean that you owned the
stars? Could you prosecute geese for their willful and regular trespass?
-
+
Then came airplanes, and for the first time, this principle of American
law—deep within the foundations of our tradition, and acknowledged
by the most important legal thinkers of our past—mattered. If
@@ -193,23 +187,23 @@ my land reaches to the heavens, what happens when United flies over
my field? Do I have the right to banish it from my property? Am I allowed
to enter into an exclusive license with Delta Airlines? Could we
set up an auction to decide how much these rights are worth?
-
+
In 1945, these questions became a federal case. When North Carolina
farmers Thomas Lee and Tinie Causby started losing chickens
because of low-flying military aircraft (the terrified chickens apparently
flew into the barn walls and died), the Causbys filed a lawsuit saying
that the government was trespassing on their land. The airplanes,
of course, never touched the surface of the Causbys' land. But if, as
-Blackstone, Kent, and Coke had said, their land reached to «an indefinite
-extent, upwards,» then the government was trespassing on their
+Blackstone, Kent, and Coke had said, their land reached to “an indefinite
+extent, upwards,” then the government was trespassing on their
property, and the Causbys wanted it to stop.
-
+
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
heavens, then Congress's declaration could well have been an unconstitutional
-«taking» of property without compensation. The Court acknowledged
-that «it is ancient doctrine that common law ownership of
-the land extended to the periphery of the universe.» But Justice Douglas
+“taking” of property without compensation. The Court acknowledged
+that “it is ancient doctrine that common law ownership of
+the land extended to the periphery of the universe.” But Justice Douglas
had no patience for ancient doctrine. In a single paragraph, hundreds of
years of property law were erased. As he wrote for the Court,
@@ -220,20 +214,20 @@ trespass suits. Common sense revolts at the idea. To recognize
such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the public
interest, and transfer into private ownership that to which only
-the public has a just claim.
+the public has a just claim.
-«Common sense revolts at the idea.»
-
+“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
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
+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
technologies of the time. And as it adjusts, it changes. Ideas that were
as solid as rock in one age crumble in another.
-
+
Or at least, this is how things happen when there's no one powerful
on the other side of the change. The Causbys were just farmers. And
though there were no doubt many like them who were upset by the
@@ -242,15 +236,15 @@ themselves into walls), the Causbys of the world would find it very
hard to unite and stop the idea, and the technology, that the Wright
brothers had birthed. The Wright brothers spat airplanes into the
technological meme pool; the idea then spread like a virus in a chicken
-coop; farmers like the Causbys found themselves surrounded by «what
-seemed reasonable» given the technology that the Wrights had produced.
+coop; farmers like the Causbys found themselves surrounded by “what
+seemed reasonable” given the technology that the Wrights had produced.
They could stand on their farms, dead chickens in hand, and
shake their fists at these newfangled technologies all they wanted.
They could call their representatives or even file a lawsuit. But in the
-end, the force of what seems «obvious» to everyone else—the power of
-«common sense»—would prevail. Their «private interest» would not be
+end, the force of what seems “obvious” to everyone else—the power of
+“common sense”—would prevail. Their “private interest” would not be
allowed to defeat an obvious public gain.
-
+
Edwin Howard Armstrong is one of
America's forgotten inventor geniuses. He came to the great American
inventor scene just after the titans Thomas Edison and Alexander
@@ -279,8 +273,8 @@ until the radio locked on a broadcast that he had arranged from
seventeen miles away. The radio fell totally silent, as if dead, and
then with a clarity no one else in that room had ever heard from an
electrical device, it produced the sound of an announcer's voice:
-«This is amateur station W2AG at Yonkers, New York, operating on
-frequency modulation at two and a half meters.»
+“This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters.”
The audience was hearing something no one had thought possible:
@@ -289,8 +283,8 @@ sounded like a glass of water being poured. … A paper was crumpled
and torn; it sounded like paper and not like a crackling forest
fire. … Sousa marches were played from records and a piano solo
and guitar number were performed. … The music was projected with a
-live-ness rarely if ever heard before from a radio «music
-box.»
+live-ness rarely if ever heard before from a radio “music
+box.”
As our own common sense tells us, Armstrong had discovered a vastly
superior radio technology. But at the time of his invention, Armstrong
@@ -299,18 +293,18 @@ 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
that Armstrong discover a way to remove static from AM radio. So
Sarnoff was quite excited when Armstrong told him he had a device
-that removed static from «radio.» But when Armstrong demonstrated
+that removed static from “radio.” But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
I thought Armstrong would invent some kind of a filter to remove
static from our AM radio. I didn't think he'd start a
revolution— start up a whole damn new industry to compete with
-RCA.
-
+RCA.
+
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
@@ -321,7 +315,7 @@ 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
-on which RCA had grown to power.
+on which RCA had grown to power.
RCA at first kept the technology in house, insisting that further
tests were needed. When, after two years of testing, Armstrong grew
@@ -338,8 +332,8 @@ radio would be crippled. As Lawrence Lessing described it,
The series of body blows that FM radio received right after the
war, in a series of rulings manipulated through the FCC by the
big radio interests, were almost incredible in their force and
-deviousness.
-
+deviousness.
+
To make room in the spectrum for RCA's latest gamble, television,
FM radio users were to be moved to a totally new spectrum band. The
power of FM radio stations was also cut, meaning FM could no longer
@@ -348,7 +342,7 @@ be used to beam programs from one part of the country to another.
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
emerging standard for television, RCA declared the patents
@@ -359,7 +353,7 @@ just as the patents expired, RCA offered a settlement so low that it
would not even cover Armstrong's lawyers' fees. Defeated, broken, and
now broke, in 1954 Armstrong wrote a short note to his wife and then
stepped out of a thirteenth-story window to his death.
-
+
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From
the beginning, government and government agencies have been subject to
@@ -374,13 +368,13 @@ 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.
-
+
There's no single inventor of the Internet. Nor is there any good date
upon which to mark its birth. Yet in a very short time, the Internet
has become part of ordinary American life. According to the Pew
Internet and American Life Project, 58 percent of Americans had access
to the Internet in 2002, up from 49 percent two years
-before.
+before.
That number could well exceed two thirds of the nation by the end
of 2004.
@@ -401,16 +395,16 @@ process. That change will radically transform a tradition that is as
old as the Republic itself. Most, if they recognized this change,
would reject it. Yet most don't even see the change that the Internet
has introduced.
-
+
We can glimpse a sense of this change by distinguishing between
commercial and noncommercial culture, and by mapping the law's
-regulation of each. By «commercial culture» I mean that part of our
+regulation of each. By “commercial culture” I mean that part of our
culture that is produced and sold or produced to be sold. By
-«noncommercial culture» I mean all the rest. When old men sat around
+“noncommercial culture” I mean all the rest. When old men sat around
parks or on
street corners telling stories that kids and others consumed, that was
-noncommercial culture. When Noah Webster published his «Reader,» or
+noncommercial culture. When Noah Webster published his “Reader,” or
Joel Barlow his poetry, that was commercial culture.
At the beginning of our history, and for just about the whole of our
@@ -418,7 +412,7 @@ tradition, noncommercial culture was essentially unregulated. Of
course, if your stories were lewd, or if your song disturbed the
peace, then the law might intervene. But the law was never directly
concerned with the creation or spread of this form of culture, and it
-left this culture «free.» The ordinary ways in which ordinary
+left this culture “free.” The ordinary ways in which ordinary
individuals shared and transformed their culture—telling
stories, reenacting scenes from plays or TV, participating in fan
clubs, sharing music, making tapes—were left alone by the law.
@@ -427,14 +421,14 @@ The focus of the law was on commercial creativity. At first slightly,
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial
-marketplace.
+marketplace.
This is also, of course, an important part of creativity and culture,
and it has become an increasingly important part in America. But in no
sense was it dominant within our tradition. It was instead just one
part, a controlled part, balanced with the free.
-
+
This rough divide between the free and the controlled has now
-been erased.
+been erased.
The Internet has set the stage for this erasure and, pushed by big
media, the law has now affected it. For the first time in our
tradition, the ordinary ways in which individuals create and share
@@ -445,7 +439,7 @@ the balance of our history—between uses of our culture that were
free and uses of our culture that were only upon permission—has
been undone. The consequence is that we are less and less a free
culture, more and more a permission culture.
-
+
This change gets justified as necessary to protect commercial
creativity. And indeed, protectionism is precisely its
motivation. But the protectionism that justifies the changes that I
@@ -457,7 +451,7 @@ change the way both commercial and noncommercial culture are made and
shared have united to induce lawmakers to use the law to protect
them. It is the story of RCA and Armstrong; it is the dream of the
Causbys.
-
+
For the Internet has unleashed an extraordinary possibility for many
to participate in the process of building and cultivating a culture
that reaches far beyond local boundaries. That power has changed the
@@ -483,15 +477,15 @@ using their power to get the law to protect them against this new,
more efficient, more vibrant technology for building culture. They are
succeeding in their plan to remake the Internet before the Internet
remakes them.
-
+
It doesn't seem this way to many. The battles over copyright and the
Internet seem remote to most. To the few who follow them, they seem
-mainly about a much simpler brace of questions—whether «piracy» will
-be permitted, and whether «property» will be protected. The «war» that
+mainly about a much simpler brace of questions—whether “piracy” will
+be permitted, and whether “property” will be protected. The “war” that
has been waged against the technologies of the Internet—what
Motion Picture Association of America (MPAA) president Jack Valenti
-calls his «own terrorist war»—has been framed as a battle about the
+calls his “own terrorist war”—has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
war, most think that we need only decide whether we're for property or
against it.
@@ -499,20 +493,20 @@ against it.
If those really were the choices, then I would be with Jack Valenti
and the content industry. I, too, am a believer in property, and
especially in the importance of what Mr. Valenti nicely calls
-«creative property.» I believe that «piracy» is wrong, and that the
-law, properly tuned, should punish «piracy,» whether on or off the
+“creative property.” I believe that “piracy” is wrong, and that the
+law, properly tuned, should punish “piracy,” whether on or off the
Internet.
But those simple beliefs mask a much more fundamental question
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
+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.
-
+
These values built a tradition that, for at least the first 180 years of
our Republic, guaranteed creators the right to build freely upon their
past, and protected creators and innovators from either state or private
control. The First Amendment protected creators against state control.
-And as Professor Neil Netanel powerfully argues,
+And as Professor Neil Netanel powerfully argues,
copyright law, properly balanced, protected creators against private
control. Our tradition was thus neither Soviet nor the tradition of
patrons. It instead carved out a wide berth within which creators
@@ -529,7 +523,7 @@ the noble class live easily; those outside it don't. But it is
nobility of any form that is alien to our tradition.
The story that follows is about this war. It is not about the
-«centrality of technology» to ordinary life. I don't believe in gods,
+“centrality of technology” to ordinary life. I don't believe in gods,
digital or otherwise. Nor is it an effort to demonize any individual
or group, for neither do I believe in a devil, corporate or
otherwise. It is not a morality tale. Nor is it a call to jihad
@@ -542,21 +536,21 @@ peace. There is no good reason for the current struggle around
Internet technologies to continue. There will be great harm to our
tradition and culture if it is allowed to continue unchecked. We must
come to understand the source of this war. We must resolve it soon.
-
-Like the Causbys' battle, this war is, in part, about «property.» The
+
+Like the Causbys' battle, this war is, in part, about “property.” The
property of this war is not as tangible as the Causbys', and no
innocent chicken has yet to lose its life. Yet the ideas surrounding
-this «property» are as obvious to most as the Causbys' claim about the
+this “property” are as obvious to most as the Causbys' claim about the
sacredness of their farm was to them. We are the Causbys. Most of us
take for granted the extraordinarily powerful claims that the owners
-of «intellectual property» now assert. Most of us, like the Causbys,
+of “intellectual property” now assert. Most of us, like the Causbys,
treat these claims as obvious. And hence we, like the Causbys, object
when a new technology interferes with this property. It is as plain to
us as it was to them that the new technologies of the Internet are
-«trespassing» upon legitimate claims of «property.» It is as plain to
+“trespassing” upon legitimate claims of “property.” It is as plain to
us as it was to them that the law should intervene to stop this
trespass.
-
+
And thus, when geeks and technologists defend their Armstrong or
Wright brothers technology, most of us are simply unsympathetic.
Common sense does not revolt. Unlike in the case of the unlucky
@@ -565,12 +559,12 @@ war. Unlike
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
-
+
My hope is to push this common sense along. I have become increasingly
amazed by the power of this idea of intellectual property and, more
importantly, its power to disable critical thought by policy makers
and citizens. There has never been a time in our history when more of
-our «culture» was as «owned» as it is now. And yet there has never
+our “culture” was as “owned” as it is now. And yet there has never
been a time when the concentration of power to control the
uses of culture has been as unquestioningly
accepted as it is now.
@@ -594,18 +588,18 @@ sense actually believes in these extremes? Or does common sense stand
silent in the face of these extremes because, as with Armstrong versus
RCA, the more powerful side has ensured that it has the more powerful
view?
-
+
I don't mean to be mysterious. My own views are resolved. I believe it
was right for common sense to revolt against the extremism of the
Causbys. I believe it would be right for common sense to revolt
-against the extreme claims made today on behalf of «intellectual
-property.» What the law demands today is increasingly as silly as a
+against the extreme claims made today on behalf of “intellectual
+property.” What the law demands today is increasingly as silly as a
sheriff arresting an airplane for trespass. But the consequences of
this silliness will be much more profound.
-
-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
+
+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
ideas.
My method is not the usual method of an academic. I don't want to
@@ -617,10 +611,10 @@ simple ideas can be more fully understood.
The two sections set up the core claim of this book: that while the
Internet has indeed produced something fantastic and new, our
-government, pushed by big media to respond to this «something new,» is
+government, pushed by big media to respond to this “something new,” is
destroying something very old. Rather than understanding the changes
-the Internet might permit, and rather than taking time to let «common
-sense» resolve how best to respond, we are allowing those most
+the Internet might permit, and rather than taking time to let “common
+sense” resolve how best to respond, we are allowing those most
threatened by the changes to use their power to change the
law—and more importantly, to use their power to change something
fundamental about who we have always been.
@@ -631,70 +625,70 @@ interests most threatened are among the most powerful players in our
depressingly compromised process of making law. This book is the story
of one more consequence of this form of corruption—a consequence
to which most of us remain oblivious.
-
Since the inception of the law regulating creative property, there has
-been a war against «piracy.» The precise contours of this concept,
-«piracy,» are hard to sketch, but the animating injustice is easy to
+been a war against “piracy.” The precise contours of this concept,
+“piracy,” are hard to sketch, but the animating injustice is easy to
capture. As Lord Mansfield wrote in a case that extended the reach of
English copyright law to include sheet music,
A person may use the copy by playing it, but he has no right to
rob the author of the profit, by multiplying copies and disposing
-of them for his own use.
-
-Today we are in the middle of another «war» against «piracy.» The
+of them for his own use.
+
+Today we are in the middle of another “war” against “piracy.” The
Internet has provoked this war. The Internet makes possible the
efficient spread of content. Peer-to-peer (p2p) file sharing is among
the most efficient of the efficient technologies the Internet
@@ -706,19 +700,19 @@ This efficiency does not respect the traditional lines of copyright.
The network doesn't discriminate between the sharing of copyrighted
and uncopyrighted content. Thus has there been a vast amount of
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.»
-
+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
-«piracy.» A generation of Americans, the warriors warn, is being
-raised to believe that «property» should be «free.» Forget tattoos,
+increasingly to technology to defend their “property” against this
+“piracy.” A generation of Americans, the warriors warn, is being
+raised to believe that “property” should be “free.” Forget tattoos,
never mind body piercing—our kids are becoming
thieves!
-There's no doubt that «piracy» is wrong, and that pirates should be
+There's no doubt that “piracy” is wrong, and that pirates should be
punished. But before we summon the executioners, we should put this
-notion of «piracy» in some context. For as the concept is increasingly
+notion of “piracy” in some context. For as the concept is increasingly
used, at its core is an extraordinary idea that is almost certainly wrong.
The idea goes something like this:
@@ -729,24 +723,24 @@ value. Whenever I take something of value from someone else, I
should have their permission. The taking of something of value
from someone else without permission is wrong. It is a form of
piracy.
-
+
This view runs deep within the current debates. It is what NYU law
-professor Rochelle Dreyfuss criticizes as the «if value, then right»
-theory of creative property
+professor Rochelle Dreyfuss criticizes as the “if value, then right”
+theory of creative property
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
organization, ASCAP, to sue the Girl Scouts for failing to pay for the
-songs that girls sang around Girl Scout campfires.
-There was «value» (the songs) so there must have been a
-«right»—even against the Girl Scouts.
-
+songs that girls sang around Girl Scout campfires.
+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
-of law protecting creative property. But the «if value, then right»
+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.
-
+
Instead, in our tradition, intellectual property is an instrument. It
sets the groundwork for a richly creative society but remains
subservient to the value of creativity. The current debate has this
@@ -758,19 +752,19 @@ takes care to draw—the distinction between republishing someone's
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
meant the vast majority of publishing was commercial. Commercial
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.
-
+
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
commercial creators but effectively that of anyone. Although that
expansion would not matter much if copyright law regulated only
-«copying,» when the law regulates as broadly and obscurely as it does,
+“copying,” when the law regulates as broadly and obscurely as it does,
the extension matters a lot. The burden of this law now vastly
outweighs any original benefit—certainly as it affects
noncommercial creativity, and increasingly as it affects commercial
@@ -782,30 +776,30 @@ 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.”
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
-context the current battles about behavior labeled «piracy.»
-
Disney's then partner, and one of animation's most extraordinary
-talents, Ub Iwerks, put it more strongly: «I have never been so thrilled
-in my life. Nothing since has ever equaled it.»
+talents, Ub Iwerks, put it more strongly: “I have never been so thrilled
+in my life. Nothing since has ever equaled it.”
Disney had created something very new, based upon something relatively
new. Synchronized sound brought life to a form of creativity that had
@@ -860,7 +854,7 @@ filler for other films. Throughout animation's early history, it was
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.
-
+
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
cartoon) genius created his last independently produced silent film.
@@ -877,17 +871,17 @@ and among the best of its genre.
Willie.
The coincidence of titles is not coincidental. Steamboat Willie is a
-direct cartoon parody of Steamboat Bill,
+direct cartoon parody of Steamboat Bill,
and both are built upon a common song as a source. It is not just from
the invention of synchronized sound in The Jazz Singer that we
get Steamboat Willie. It is also from Buster Keaton's invention of
-Steamboat Bill, Jr., itself inspired by the song «Steamboat Bill,»
+Steamboat Bill, Jr., itself inspired by the song “Steamboat Bill,”
that we get Steamboat Willie, and then from Steamboat Willie, Mickey
Mouse.
-
-This «borrowing» was nothing unique, either for Disney or for the
+
+This “borrowing” was nothing unique, either for Disney or for the
industry. Disney was always parroting the feature-length mainstream
-films of his day.
+films of his day.
So did many others. Early cartoons are filled with
knockoffs—slight variations on winning themes; retellings of
ancient stories. The key to success was the brilliance of the
@@ -926,32 +920,32 @@ that we should perhaps quickly forget, Treasure Planet
+
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
creativity except this kind. We don't need to go that far to recognize
-its importance. We could call this «Disney creativity,» though that
-would be a bit misleading. It is, more precisely, «Walt Disney
-creativity»—a form of expression and genius that builds upon the
+its importance. We could call this “Disney creativity,” though that
+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.
-
In 1928, the culture that Disney was free to draw upon was
+
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
thirty years—for that minority of creative work that was in fact
-copyrighted.
+copyrighted.
That means that for thirty years, on average, the authors or
-copyright holders of a creative work had an «exclusive right» to control
+copyright holders of a creative work had an “exclusive right” to control
certain uses of the work. To use this copyrighted work in limited ways
required the permission of the copyright owner.
At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
-permission and, hence, no lawyers. The public domain is a «lawyer-free
-zone.» Thus, most of the content from the nineteenth century was free
+permission and, hence, no lawyers. The public domain is a “lawyer-free
+zone.” Thus, most of the content from the nineteenth century was free
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
until 1978, the average copyright term was never more than thirty-two
@@ -963,8 +957,8 @@ Today's equivalent would be for creative work from the 1960s and 1970s
to now be free for the next Walt Disney to build upon without
permission. Yet today, the public domain is presumptive only for
content from before the Great Depression.
-
-Of course, Walt Disney had no monopoly on «Walt Disney creativity.»
+
+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.
@@ -980,8 +974,8 @@ extraordinary system of public transportation.
Americans tend to look down upon this form of culture. That's an
unattractive characteristic of ours. We're likely to misunderstand
much about manga, because few of us have ever read anything close to
-the stories that these «graphic novels» tell. For the Japanese, manga
-cover every aspect of social life. For us, comics are «men in tights.»
+the stories that these “graphic novels” tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are “men in tights.”
And anyway, it's not as if the New York subways are filled with
readers of Joyce or even Hemingway. People of different cultures
distract themselves in different ways, the Japanese in this
@@ -1000,13 +994,13 @@ transforming it either subtly or
significantly. A doujinshi comic can thus take a mainstream comic and
develop it differently—with a different story line. Or the comic can
keep the character in character but change its look slightly. There is no
-formula for what makes the doujinshi sufficiently «different.» But they
+formula for what makes the doujinshi sufficiently “different.” But they
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.
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
+huge. More than 33,000 “circles” of creators from across Japan produce
these bits of Walt Disney creativity. More than 450,000 Japanese come
together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
@@ -1014,45 +1008,45 @@ mainstream commercial manga market. In some ways, it obviously
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.
-
+
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
Japanese copyright law, which in this respect (on paper) mirrors
American copyright law, the doujinshi market is an illegal
-one. Doujinshi are plainly «derivative works.» There is no general
+one. Doujinshi are plainly “derivative works.” There is no general
practice by doujinshi artists of securing the permission of the manga
creators. Instead, the practice is simply to take and modify the
creations of others, as Walt Disney did with Steamboat Bill,
-Jr. Under both Japanese and American law, that «taking» without
+Jr. Under both Japanese and American law, that “taking” without
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.
-
+
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
+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
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.
-
+books and not tracing them, but looking at them and copying them”
+and building from them.
+
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi are
-allowed. Speaking of Superman, Winick told me, «there are these rules
-and you have to stick to them.» There are things Superman «cannot»
-do. «As a creator, it's frustrating having to stick to some parameters
-which are fifty years old.»
-
+allowed. Speaking of Superman, Winick told me, “there are these rules
+and you have to stick to them.” There are things Superman “cannot”
+do. “As a creator, it's frustrating having to stick to some parameters
+which are fifty years old.”
+
The norm in Japan mitigates this legal difficulty. Some say it is
precisely the benefit accruing to the Japanese manga market that
explains the mitigation. Temple University law professor Salil Mehra,
for example, hypothesizes that the manga market accepts these
technical violations because they spur the manga market to be more
wealthy and productive. Everyone would be worse off if doujinshi were
-banned, so the law does not ban doujinshi.
-
+banned, so the law does not ban doujinshi.
+
The problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response is not
clear. It may well be that the market as a whole is better off if
@@ -1060,14 +1054,14 @@ doujinshi are permitted rather than banned, but that doesn't explain
why individual copyright owners don't sue nonetheless. If the law has
no general exception for doujinshi, and indeed in some cases
individual manga artists have sued doujinshi artists, why is there not
-a more general pattern of blocking this «free taking» by the doujinshi
+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
-a friend from a major Japanese law firm. «We don't have enough
-lawyers,» he told me one afternoon. There «just aren't enough resources
-to prosecute cases like this.»
+a friend from a major Japanese law firm. “We don't have enough
+lawyers,” he told me one afternoon. There “just aren't enough resources
+to prosecute cases like this.”
This is a theme to which we will return: that regulation by law is a
function of both the words on the books and the costs of making those
@@ -1079,24 +1073,24 @@ Japanese gain something important if they could end this practice of
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.
If you're like I was a decade ago, or like most people are when they
first start thinking about these issues, then just about now you should
be puzzled about something you hadn't thought through before.
-We live in a world that celebrates «property.» I am one of those
+We live in a world that celebrates “property.” I am one of those
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.»
+“intellectual property.”
A large, diverse society cannot survive without property; a large,
diverse, and modern society cannot flourish without intellectual
property.
-
+
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
-mean «money can't buy you love,» but rather, value that is plainly
+plenty of value out there that “property” doesn't capture. I don't
+mean “money can't buy you love,” but rather, value that is plainly
part of a process of production, including commercial as well as
noncommercial production. If Disney animators had stolen a set of
pencils to draw Steamboat Willie, we'd have no hesitation in
@@ -1104,7 +1098,7 @@ condemning that taking as wrong— even though trivial, even if
unnoticed. Yet there was nothing wrong, at least under the law of the
day, with Disney's taking from Buster Keaton or from the Brothers
Grimm. There was nothing wrong with the taking from Keaton because
-Disney's use would have been considered «fair.» There was nothing
+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.
@@ -1115,24 +1109,24 @@ 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.
-
+
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
work—or even one copy—without paying, we'd have no hesitation in
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
+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.
-
+
It's the same with a thousand examples that appear everywhere once you
begin to look. Scientists build upon the work of other scientists
-without asking or paying for the privilege. («Excuse me, Professor
+without asking or paying for the privilege. (“Excuse me, Professor
Einstein, but may I have permission to use your theory of relativity
-to show that you were wrong about quantum physics?») Acting companies
+to show that you were wrong about quantum physics?”) Acting companies
perform adaptations of the works of Shakespeare without securing
permission from anyone. (Does anyone believe
Shakespeare would be better spread within our culture if there were a
@@ -1150,10 +1144,10 @@ permission for Walt Disney creativity must always be sought. Instead,
every society has left a certain bit of its culture free for the taking—free
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
-question instead is «How free is this culture?»
+question instead is “How free is this culture?”
How much, and how broadly, is the culture free for others to take and
build upon? Is that freedom limited to party members? To members of
the royal family? To the top ten corporations on the New York Stock
@@ -1165,29 +1159,29 @@ a studio or not?
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 2. Chapter Two: “Mere Copyists”
In 1839, Louis Daguerre invented
the first practical technology for producing what we would call
-«photographs.» Appropriately enough, they were called
-«daguerreotypes.» The process was complicated and
+“photographs.” Appropriately enough, they were called
+“daguerreotypes.” The process was complicated and
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.)
-
+
Yet despite high prices, the demand for daguerreotypes was strong.
This pushed inventors to find simpler and cheaper ways to make
-«automatic pictures.» William Talbot soon discovered a process for
-making «negatives.» But because the negatives were glass, and had to
+“automatic pictures.” William Talbot soon discovered a process for
+making “negatives.” But because the negatives were glass, and had to
be kept wet, the process still remained expensive and cumbersome. In
the 1870s, dry plates were developed, making it easier to separate the
taking of a picture from its developing. These were still plates of
@@ -1253,8 +1247,8 @@ population of photographers.
Eastman developed flexible, emulsion-coated paper film and placed
rolls of it in small, simple cameras: the Kodak. The device was
-marketed on the basis of its simplicity. «You press the button and we
-do the rest.» As he described in The Kodak Primer:
+marketed on the basis of its simplicity. “You press the button and we
+do the rest.” As he described in The Kodak Primer:
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
@@ -1264,8 +1258,8 @@ press a button, with an instrument which altogether removes from the
practice of photography the necessity for exceptional facilities or,
in fact, any special knowledge of the art. It can be employed without
preliminary study, without a darkroom and without
-chemicals.
-
+chemicals.
+
For $25, anyone could make pictures. The camera came preloaded
with film, and when it had been used, the camera was returned to an
Eastman factory, where the film was developed. Over time, of course,
@@ -1275,34 +1269,34 @@ 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 11
-percent. Eastman Kodak's sales during the same period experienced
-an average annual increase of over 17 percent.
-
+percent. Eastman Kodak's sales during the same period experienced
+an average annual increase of over 17 percent.
+
The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
glimpse of places they would never otherwise see. Amateur photography
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
+never been able to do before. As author Brian Coe notes, “For the
first time the snapshot album provided the man on the street with a
permanent record of his family and its activities. … For the first
time in history there exists an authentic visual record of the
appearance and activities of the common man made without [literary]
-interpretation or bias.»
-
+interpretation or bias.”
+
In this way, the Kodak camera and film were technologies of
expression. The pencil or paintbrush was also a technology of
expression, of course. But it took years of training before they could
be deployed by amateurs in any useful or effective way. With the
Kodak, expression was possible much sooner and more simply. The
-barrier to expression was lowered. Snobs would sneer at its «quality»;
+barrier to expression was lowered. Snobs would sneer at its “quality”;
professionals would discount it as irrelevant. But watch a child study
how best to frame a picture and you get a sense of the experience of
creativity that the Kodak enabled. Democratic tools gave ordinary
people a way to express themselves more easily than any tools could
have before.
-
+
What was required for this technology to flourish? Obviously,
Eastman's genius was an important part. But also important was the
legal environment within which Eastman's invention grew. For early in
@@ -1310,10 +1304,10 @@ the history of photography, there was a series of judicial decisions
that could well have changed the course of photography substantially.
Courts were asked whether the photographer, amateur or professional,
required permission before he could capture and print whatever image
-he wanted. Their answer was no.
-
+he wanted. Their answer was no.
+
The arguments in favor of requiring permission will sound surprisingly
-familiar. The photographer was «taking» something from the person or
+familiar. The photographer was “taking” something from the person or
building whose photograph he shot—pirating something of
value. Some even thought he was taking the target's soul. Just as
Disney was not free to take the pencils that his animators used to
@@ -1321,16 +1315,16 @@ draw
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
-
+
On the other side was an argument that should be familiar, as well.
Sure, there may be something of value being used. But citizens should
have the right to capture at least those images that stand in public view.
(Louis Brandeis, who would become a Supreme Court Justice, thought
-the rule should be different for images from private spaces.) It may be that this means that the photographer
+the rule should be different for images from private spaces.) It may be that this means that the photographer
gets something for nothing. Just as Disney could take inspiration from
Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
-
+
Fortunately for Mr. Eastman, and for photography in general, these
early decisions went in favor of the pirates. In general, no
permission would be required before an image could be captured and
@@ -1339,22 +1333,22 @@ default. (The law would eventually craft an exception for famous
people: commercial photographers who snap pictures of famous people
for commercial purposes have more restrictions than the rest of
us. But in the ordinary case, the image can be captured without
-clearing the rights to do the capturing.)
-
+clearing the rights to do the capturing.)
+
We can only speculate about how photography would have developed had
the law gone the other way. If the presumption had been against the
photographer, then the photographer would have had to demonstrate
permission. Perhaps Eastman Kodak would have had to demonstrate
permission, too, before it developed the film upon which images were
captured. After all, if permission were not granted, then Eastman
-Kodak would be benefiting from the «theft» committed by the
+Kodak would be benefiting from the “theft” committed by the
photographer. Just as Napster benefited from the copyright
infringements committed by Napster users, Kodak would be benefiting
-from the «image-right» infringement of its photographers. We could
+from the “image-right” infringement of its photographers. We could
imagine the law then requiring that some form of permission be
demonstrated before a company developed pictures. We could imagine a
system developing to demonstrate that permission.
-
+
But though we could imagine this system of permission, it would be
@@ -1368,15 +1362,15 @@ photography to ordinary people would not have occurred. Nothing like
that growth would have been realized. And certainly, nothing like that
growth in a democratic technology of expression would have been
realized.
-
+
If you drive through San
Francisco's Presidio, you might see two gaudy yellow school buses
painted over with colorful and striking images, and the logo
-«Just Think!» in place of the name of a school. But
-there's little that's «just» cerebral in the projects
+“Just Think!” in place of the name of a school. But
+there's little that's “just” cerebral in the projects
that these busses enable. These buses are filled with technologies
that teach kids to tinker with film. Not the film of Eastman. Not even
-the film of your VCR. Rather the «film» of digital
+the film of your VCR. Rather the “film” of digital
cameras. Just Think! is a project that enables kids to make films, as
a way to understand and critique the filmed culture that they find all
around them. Each year, these busses travel to more than thirty
@@ -1386,30 +1380,30 @@ 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
-fallen dramatically. As one analyst puts it, «Five years ago, a good
+fallen dramatically. As one analyst puts it, “Five years ago, a good
real-time digital video editing system cost $25,000. Today you can get
-professional quality for $595.»
+professional quality for $595.”
These buses are filled with technology that would have cost hundreds
of thousands just ten years ago. And it is now feasible to imagine not
just buses like this, but classrooms across the country where kids are
-learning more and more of something teachers call «media literacy.»
-
+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
+“Media literacy,” as Dave Yanofsky, the executive director of Just
+Think!, puts it, “is the ability … to understand, analyze, and
deconstruct media images. Its aim is to make [kids] literate about the
way media works, the way it's constructed, the way it's delivered, and
-the way people access it.»
-
-This may seem like an odd way to think about «literacy.» For most
+the way people access it.”
+
+This may seem like an odd way to think about “literacy.” For most
people, literacy is about reading and writing. Faulkner and Hemingway
-and noticing split infinitives are the things that «literate» people know
+and noticing split infinitives are the things that “literate” people know
about.
-
+
Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
-commercials generally,
-it is increasingly important to understand the «grammar» of media. For
+commercials generally,
+it is increasingly important to understand the “grammar” of media. For
just as there is a grammar for the written word, so, too, is there one
for media. And just as kids learn how to write by writing lots of
terrible prose, kids learn how to write media by constructing lots of
@@ -1423,36 +1417,36 @@ language to be understandable—few of us have any real sense of
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
the film. The skill came from experiencing the making of a film, not
from reading a book about it. One learns to write by writing and then
reflecting upon what one has written. One learns to write with images
by making them and then reflecting upon what one has created.
-
+
This grammar has changed as media has changed. When it was just film,
as Elizabeth Daley, executive director of the University of Southern
California's Annenberg Center for Communication and dean of the
USC School of Cinema-Television, explained to me, the grammar was
-about «the placement of objects, color, … rhythm, pacing, and
-texture.»
+about “the placement of objects, color, … rhythm, pacing, and
+texture.”
But as computers open up an interactive space where a story is
-«played» as well as experienced, that grammar changes. The simple
+“played” as well as experienced, that grammar changes. The simple
control of narrative is lost, and so other techniques are necessary. Author
Michael Crichton had mastered the narrative of science fiction.
But when he tried to design a computer game based on one of his
works, it was a new craft he had to learn. How to lead people through
a game without their feeling they have been led was not obvious, even
-to a wildly successful author.
-
+to a wildly successful author.
+
This skill is precisely the craft a filmmaker learns. As Daley
-describes, «people are very surprised about how they are led through a
+describes, “people are very surprised about how they are led through a
film. [I]t is perfectly constructed to keep you from seeing it, so you
have no idea. If a filmmaker succeeds you do not know how you were
-led.» If you know you were led through a film, the film has failed.
+led.” If you know you were led through a film, the film has failed.
Yet the push for an expanded literacy—one that goes beyond text
to include audio and visual elements—is not about making better
@@ -1465,7 +1459,7 @@ language that that box works in. Otherwise only a very few people
can write with this language, and all the rest of us are reduced to
being read-only.
-«Read-only.» Passive recipients of culture produced elsewhere.
+“Read-only.” Passive recipients of culture produced elsewhere.
Couch potatoes. Consumers. This is the world of media from the
twentieth century.
@@ -1475,10 +1469,10 @@ understanding the craft of writing. Or best, reading and understanding
the tools that enable the writing to lead or mislead. The aim of any
literacy,
-and this literacy in particular, is to «empower people to choose the
+and this literacy in particular, is to “empower people to choose the
appropriate language for what they need to create or
-express.» It is to enable students «to communicate in the
-language of the twenty-first century.»
+express.” It is to enable students “to communicate in the
+language of the twenty-first century.”
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
@@ -1490,36 +1484,36 @@ school. In all the traditional measures of success, this school was a
failure. But Daley and Barish ran a program that gave kids an
opportunity to use film to express meaning about something the
students know something about—gun violence.
-
+
The class was held on Friday afternoons, and it created a relatively
new problem for the school. While the challenge in most classes was
getting the kids to come, the challenge in this class was keeping them
-away. The «kids were showing up at 6 A.M. and leaving at 5 at night,»
+away. The “kids were showing up at 6 A.M. and leaving at 5 at night,”
said Barish. They were working harder than in any other class to do
what education should be about—learning how to express themselves.
-Using whatever «free web stuff they could find,» and relatively simple
-tools to enable the kids to mix «image, sound, and text,» Barish said
+Using whatever “free web stuff they could find,” and relatively simple
+tools to enable the kids to mix “image, sound, and text,” Barish said
this class produced a series of projects that showed something about
gun violence that few would otherwise understand. This was an issue
-close to the lives of these students. The project «gave them a tool
+close to the lives of these students. The project “gave them a tool
and empowered them to be able to both understand it and talk about
-it,» Barish explained. That tool succeeded in creating
+it,” Barish explained. That tool succeeded in creating
expression—far more successfully and powerfully than could have
-been created using only text. «If you had said to these students, `you
-have to do it in text,' they would've just thrown their hands up and
-gone and done something else,» Barish described, in part, no doubt,
+been created using only text. “If you had said to these students, ‘you
+have to do it in text,’ they would've just thrown their hands up and
+gone and done something else,” Barish described, in part, no doubt,
because expressing themselves in text is not something these students
can do well. Yet neither is text a form in which
these ideas can be expressed well. The power of
this message depended upon its connection to this form of expression.
-
+
-«But isn't education about teaching kids to write?» I asked. In part,
+“But isn't education about teaching kids to write?” I asked. In part,
of course, it is. But why are we teaching kids to write? Education,
-Daley explained, is about giving students a way of «constructing
-meaning.» To say that that means just writing is like saying teaching
+Daley explained, is about giving students a way of “constructing
+meaning.” To say that that means just writing is like saying teaching
writing is only about teaching kids how to spell. Text is one
part—and increasingly, not the most powerful part—of
constructing meaning. As Daley explained in the most moving part of
@@ -1531,22 +1525,22 @@ Because they can't. You know, you've got Johnny who can look at a
video, he can play a video game, he can do graffiti all over your
walls, he can take your car apart, and he can do all sorts of other
things. He just can't read your text. So Johnny comes to school and
-you say, «Johnny, you're illiterate. Nothing you can do matters.»
+you say, “Johnny, you're illiterate. Nothing you can do matters.”
Well, Johnny then has two choices: He can dismiss you or he [can]
dismiss himself. If his ego is healthy at all, he's going to dismiss
-you. [But i]nstead, if you say, «Well, with all these things that you
+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
-make a little movie.» But instead, really help you take these elements
+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
+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.…
-
+
That empowers enormously. And then what happens, of
course, is eventually, as it has happened in all these classes, they
-bump up against the fact, «I need to explain this and I really need
-to write something.» And as one of the teachers told Stephanie,
+bump up against the fact, “I need to explain this and I really need
+to write something.” And as one of the teachers told Stephanie,
they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
Because they needed to. There was a reason for doing it. They
@@ -1555,7 +1549,7 @@ your hoops. They actually needed to use a language that they
didn't speak very well. But they had come to understand that they
had a lot of power with this language.
-
+
When two planes crashed into the
World Trade Center, another into the Pentagon, and a fourth into a
Pennsylvania field, all media around the world shifted to this
@@ -1569,13 +1563,13 @@ watching.
These retellings had an increasingly familiar feel. There was music
scored for the intermissions, and fancy graphics that flashed across
-the screen. There was a formula to interviews. There was «balance,»
+the screen. There was a formula to interviews. There was “balance,”
and seriousness. This was news choreographed in the way we have
-increasingly come to expect it, «news as entertainment,» even if the
+increasingly come to expect it, “news as entertainment,” even if the
entertainment is tragedy.
-
-But in addition to this produced news about the «tragedy of September
-11,» those of us tied to the Internet came to see a very different
+
+But in addition to this produced news about the “tragedy of September
+11,” those of us tied to the Internet came to see a very different
production as well. The Internet was filled with accounts of the same
events. Yet these Internet accounts had a very different flavor. Some
people constructed photo pages that captured images from around the
@@ -1586,14 +1580,14 @@ extraordinary worldwide barn raising, in the sense Mike Godwin uses
the term in his book Cyber Rights, around a news event that had
captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
-
+
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
instead to point to a significance in this form of speech. For like a
Kodak, the Internet enables people to capture images. And like in a
movie
-by a student on the «Just Think!» bus, the visual images could be mixed
+by a student on the “Just Think!” bus, the visual images could be mixed
with sound or text.
But unlike any technology for simply capturing images, the Internet
@@ -1603,7 +1597,7 @@ tradition—not just that culture can be captured mechanically,
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 was not an aberration. It was a beginning. Around the
same time, a form of communication that has grown dramatically was
just beginning to come into public consciousness: the Web-log, or
@@ -1611,7 +1605,7 @@ blog. The blog is a kind of public diary, and within some cultures,
such as in Japan, it functions very much like a diary. In those
cultures, it records private facts in a public way—it's a kind
of electronic Jerry Springer, available anywhere in the world.
-
+
But in the United States, blogs have taken on a very different
character. There are some who use the space simply to talk about
their private life. But there are many who use the space to engage in
@@ -1634,37 +1628,37 @@ people vote
in those elections. The cycle of these elections has become totally
professionalized and routinized. Most of us think this is democracy.
-
+
But democracy has never just been about elections. Democracy
means rule by the people, but rule means something more than mere
elections. In our tradition, it also means control through reasoned
discourse. This was the idea that captured the imagination of Alexis
de Tocqueville, the nineteenth-century French lawyer who wrote the
-most important account of early «Democracy in America.» It wasn't
+most important account of early “Democracy in America.” It wasn't
popular elections that fascinated him—it was the jury, an
institution that gave ordinary people the right to choose life or
death for other citizens. And most fascinating for him was that the
jury didn't just vote about the outcome they would impose. They
-deliberated. Members argued about the «right» result; they tried to
-persuade each other of the «right» result, and in criminal cases at
+deliberated. Members argued about the “right” result; they tried to
+persuade each other of the “right” result, and in criminal cases at
least, they had to agree upon a unanimous result for the process to
-come to an end.
-
+come to an end.
+
Yet even this institution flags in American life today. And in its
place, there is no systematic effort to enable citizen deliberation. Some
-are pushing to create just such an institution.
+are pushing to create just such an institution.
And in some towns in New England, something close to deliberation
remains. But for most of us for most of the time, there is no time or
-place for «democratic deliberation» to occur.
+place for “democratic deliberation” to occur.
More bizarrely, there is generally not even permission for it to
occur. We, the most powerful democracy in the world, have developed a
strong norm against talking about politics. It's fine to talk about
politics with people you agree with. But it is rude to argue about
politics with people you disagree with. Political discourse becomes
-isolated, and isolated discourse becomes more extreme. We say what our friends want to hear, and hear very
+isolated, and isolated discourse becomes more extreme. We say what our friends want to hear, and hear very
little beyond what our friends say.
-
+
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
want to read. The most difficult time is synchronous time.
@@ -1681,29 +1675,29 @@ Indeed, the space is filled with political speech, on both the right and
the left. Some of the most popular sites are conservative or libertarian,
but there are many of all political stripes. And even blogs that are not
political cover political issues when the occasion merits.
-
+
The significance of these blogs is tiny now, though not so tiny. The
name Howard Dean may well have faded from the 2004 presidential race
but for blogs. Yet even if the number of readers is small, the reading
is having an effect.
-
+
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
-«misspoke» at a party for Senator Strom Thurmond, essentially praising
+“misspoke” at a party for Senator Strom Thurmond, essentially praising
Thurmond's segregationist policies, he calculated correctly that this
story would disappear from the mainstream press within forty-eight
hours. It did. But he didn't calculate its life cycle in blog
space. The bloggers kept researching the story. Over time, more and
-more instances of the same «misspeaking» emerged. Finally, the story
+more instances of the same “misspeaking” emerged. Finally, the story
broke back into the mainstream press. In the end, Lott was forced to
-resign as senate majority leader.
+resign as senate majority leader.
This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
newspapers are commercial entities. They must work to keep attention.
If they lose readers, they lose revenue. Like sharks, they must move
on.
-
+
But bloggers don't have a similar constraint. They can obsess, they
can focus, they can get serious. If a particular blogger writes a
particularly interesting story, more and more people link to that
@@ -1711,58 +1705,58 @@ story. And as the number of links to a particular story increases, it
rises in the ranks of stories. People read what is popular; what is
popular has been selected by a very democratic process of
peer-generated rankings.
-
+
There's a second way, as well, in which blogs have a different cycle
from the mainstream press. As Dave Winer, one of the fathers of this
movement and a software author for many decades, told me, another
-difference is the absence of a financial «conflict of interest.» «I think you
-have to take the conflict of interest» out of journalism, Winer told me.
-«An amateur journalist simply doesn't have a conflict of interest, or the
+difference is the absence of a financial “conflict of interest.” “I think you
+have to take the conflict of interest” out of journalism, Winer told me.
+“An amateur journalist simply doesn't have a conflict of interest, or the
conflict of interest is so easily disclosed that you know you can sort of
-get it out of the way.»
-
+get it out of the way.”
+
These conflicts become more important as media becomes more
concentrated (more on this below). A concentrated media can hide more
from the public than an unconcentrated media can—as CNN admitted
it did after the Iraq war because it was afraid of the consequences to
-its own employees.
+its own employees.
It also needs to sustain a more coherent account. (In the middle of
the Iraq war, I read a post on the Internet from someone who was at
that time listening to a satellite uplink with a reporter in Iraq. The
New York headquarters was telling the reporter over and over that her
account of the war was too bleak: She needed to offer a more
optimistic story. When she told New York that wasn't warranted, they
-told her that they were writing «the story.»)
-
+told her that they were writing “the story.”)
+
Blog space gives amateurs a way to enter the
-debate—«amateur» not in the sense of inexperienced,
+debate—“amateur” not in the sense of inexperienced,
but in the sense of an Olympic athlete, meaning not paid by anyone to
give their reports. It allows for a much broader range of input into a
story, as reporting on the Columbia disaster revealed, when hundreds
from across the southwest United States turned to the Internet to
-retell what they had seen.
+retell what they had seen.
And it drives readers to read across the range of accounts and
-«triangulate,» as Winer puts it, the truth. Blogs, Winer says, are
-«communicating directly with our constituency, and the middle man is
-out of it»—with all the benefits, and costs, that might entail.
+“triangulate,” as Winer puts it, the truth. Blogs, Winer says, are
+“communicating directly with our constituency, and the middle man is
+out of it”—with all the benefits, and costs, that might entail.
Winer is optimistic about the future of journalism infected
-with blogs. «It's going to become an essential skill,» Winer predicts,
+with blogs. “It's going to become an essential skill,” Winer predicts,
for public figures and increasingly for private figures as well. It's
-not clear that «journalism» is happy about this—some journalists
-have been told to curtail their blogging.
-But it is clear that we are still in transition. «A
+not clear that “journalism” is happy about this—some journalists
+have been told to curtail their blogging.
+But it is clear that we are still in transition. “A
-lot of what we are doing now is warm-up exercises,» Winer told me.
+lot of what we are doing now is warm-up exercises,” Winer told me.
There is a lot that must mature before this space has its mature effect.
And as the inclusion of content in this space is the least infringing use
-of the Internet (meaning infringing on copyright), Winer said, «we will
-be the last thing that gets shut down.»
-
-This speech affects democracy. Winer thinks that happens because «you
-don't have to work for somebody who controls, [for] a gatekeeper.»
+of the Internet (meaning infringing on copyright), Winer said, “we will
+be the last thing that gets shut down.”
+
+This speech affects democracy. Winer thinks that happens because “you
+don't have to work for somebody who controls, [for] a gatekeeper.”
That is true. But it affects democracy in another way as well. As
more and more citizens express what they think, and defend it in
writing, that will change the way people understand public issues. It
@@ -1774,11 +1768,11 @@ The writing of ideas, arguments, and criticism improves democracy.
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.
-
+
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.»
+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
differently from the perspectives I've sketched so far. I'm sure he
@@ -1786,16 +1780,16 @@ would be excited about any technology that might improve
democracy. But his real excitement comes from how these technologies
affect learning.
-As Brown believes, we learn by tinkering. When «a lot of us grew up,»
-he explains, that tinkering was done «on motorcycle engines, lawnmower
-engines, automobiles, radios, and so on.» But digital technologies
+As Brown believes, we learn by tinkering. When “a lot of us grew up,”
+he explains, that tinkering was done “on motorcycle engines, lawnmower
+engines, automobiles, radios, and so on.” But digital technologies
enable a different kind of tinkering—with abstract ideas though
in concrete form. The kids at Just Think! not only think about how a
commercial portrays a politician; using digital technology, they can
take the commercial apart and manipulate it, tinker with it to see how
it does what it does. Digital technologies launch a kind of bricolage,
-or «free collage,» as Brown calls it. Many get to add to or transform
+or “free collage,” as Brown calls it. Many get to add to or transform
the tinkering of many others.
The best large-scale example of this kind of tinkering so far is free
@@ -1804,31 +1798,31 @@ source code is shared. Anyone can download the technology that makes a
FS/OSS program run. And anyone eager to learn how a particular bit of
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 …
+This opportunity creates a “completely new kind of learning platform,”
+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
-apprenticeship. «Open source becomes a major apprenticeship platform.»
+if they can improve it.” Each effort is a kind of
+apprenticeship. “Open source becomes a major apprenticeship platform.”
-In this process, «the concrete things you tinker with are abstract.
-They are code.» Kids are «shifting to the ability to tinker in the
+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
-you tinker the more you improve.» The more you improve, the more you
+you tinker the more you improve.” The more you improve, the more you
learn.
This same thing happens with content, too. And it happens in the same
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
+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
+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.»
-
+these multiple forms of intelligence.”
+
Brown is talking about what Elizabeth Daley, Stephanie Barish, and
Just Think! teach: that this tinkering with culture teaches as well
@@ -1846,145 +1840,145 @@ 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
-tinker» as it applies to computer science and to knowledge in
-general.
+10)
+has developed a powerful argument in favor of the “right to
+tinker” as it applies to computer science and to knowledge in
+general.
But Brown's concern is earlier, or younger, or more fundamental. It is
about the learning that kids can do, or can't do, because of the law.
-«This is where education in the twenty-first century is going,» Brown
-explains. We need to «understand how kids who grow up digital think
-and want to learn.»
+“This is where education in the twenty-first century is going,” Brown
+explains. We need to “understand how kids who grow up digital think
+and want to learn.”
-«Yet,» as Brown continued, and as the balance of this book will
-evince, «we are building a legal system that completely suppresses the
+“Yet,” as Brown continued, and as the balance of this book will
+evince, “we are building a legal system that completely suppresses the
natural tendencies of today's digital kids. … We're building an
architecture that unleashes 60 percent of the brain [and] a legal
-system that closes down that part of the brain.»
-
+system that closes down that part of the brain.”
+
We're building a technology that takes the magic of Kodak, mixes
moving images and sound, and adds a space for commentary and an
opportunity to spread that creativity everywhere. But we're building
the law to close down that technology.
-
-«No way to run a culture,» as Brewster Kahle, whom we'll meet in
+
+“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 3. Chapter Three: Catalogs
In the fall of 2002, Jesse Jordan
of Oceanside, New York, enrolled as a freshman at Rensselaer
Polytechnic Institute, in Troy, New York. His major at RPI was
@@ -2009,7 +2003,7 @@ Search engines are a measure of a network's intimacy. Google
brought the Internet much closer to all of us by fantastically
improving the quality of search on the network. Specialty search
-engines can do this even better. The idea of «intranet» search
+engines can do this even better. The idea of “intranet” search
engines, search engines that search within the network of a particular
institution, is to provide users of that institution with better
access to material from that institution. Businesses do this all the
@@ -2023,7 +2017,7 @@ information about the publicly (within that network) available
content. Jesse's search engine was built to take advantage of this
technology. It used Microsoft's network file system to build an index
of all the files available within the RPI network.
-
+
Jesse's wasn't the first search engine built for the RPI network.
Indeed, his engine was a simple modification of engines that others
had built. His single most important improvement over those engines
@@ -2034,13 +2028,13 @@ was on a computer that was off-line, your computer could crash. Jesse
modified the system a bit to fix that problem, by adding a button that
a user could click to see if the machine holding the file was still
on-line.
-
+
Jesse's engine went on-line in late October. Over the following six
months, he continued to tweak it to improve its functionality. By
March, the system was functioning quite well. Jesse had more than one
million files in his directory, including every type of content that might
be on users' computers.
-
+
Thus the index his search engine produced included pictures, which
students could use to put on their own Web sites; copies of notes or
research; copies of information pamphlets; movie clips that students
@@ -2048,7 +2042,7 @@ might have created; university brochures—basically anything that
users of the RPI network made available in a public folder of their
computer.
-
+
But the index also included music files. In fact, one quarter of the
files that Jesse's search engine listed were music files. But that
means, of course, that three quarters were not, and—so that this
@@ -2062,7 +2056,7 @@ he was not connected to any business that would make any money from
this experiment. He was a kid tinkering with technology in an
environment where tinkering with technology was precisely what he was
supposed to do.
-
+
On April 3, 2003, Jesse was contacted by the dean of students at
RPI. The dean informed Jesse that the Recording Industry Association
of America, the RIAA, would be filing a lawsuit against him and three
@@ -2071,55 +2065,55 @@ universities. A few hours later, Jesse was served with papers from
the suit. As he read these papers and watched the news reports about
them, he was increasingly astonished.
-«It was absurd,» he told me. «I don't think I did anything
+“It was absurd,” he told me. “I don't think I did anything
wrong. … I don't think there's anything wrong with the search
engine that I ran or … what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of
pirates. I just modified the search engine in a way that would make it
-easier to use»—again, a search engine,
+easier to use”—again, a search engine,
which Jesse had not himself built, using the Windows filesharing
system, which Jesse had not himself built, to enable members of the
RPI community to get access to content, which Jesse had not himself
created or posted, and the vast majority of which had nothing to do
with music.
-
+
But the RIAA branded Jesse a pirate. They claimed he operated a
-network and had therefore «willfully» violated copyright laws. They
+network and had therefore “willfully” violated copyright laws. They
demanded that he pay them the damages for his wrong. For cases of
-«willful infringement,» the Copyright Act specifies something lawyers
-call «statutory damages.» These damages permit a copyright owner to
+“willful infringement,” the Copyright Act specifies something lawyers
+call “statutory damages.” These damages permit a copyright owner to
claim $150,000 per infringement. As the RIAA alleged more than one
hundred specific copyright infringements, they therefore demanded that
Jesse pay them at least $15,000,000.
-
+
Similar lawsuits were brought against three other students: one other
student at RPI, one at Michigan Technical University, and one at
Princeton. Their situations were similar to Jesse's. Though each case
was different in detail, the bottom line in each was exactly the same:
-huge demands for «damages» that the RIAA claimed it was entitled to.
+huge demands for “damages” that the RIAA claimed it was entitled to.
If you added up the claims, these four lawsuits were asking courts in
the United States to award the plaintiffs close to $100
billion—six times the
total profit of the film industry in
-2001.
-
+2001.
+
Jesse called his parents. They were supportive but a bit frightened.
An uncle was a lawyer. He began negotiations with the RIAA. They
demanded to know how much money Jesse had. Jesse had saved
$12,000 from summer jobs and other employment. They demanded
$12,000 to dismiss the case.
-
+
The RIAA wanted Jesse to admit to doing something wrong. He
refused. They wanted him to agree to an injunction that would
essentially make it impossible for him to work in many fields of
technology for the rest of his life. He refused. They made him
understand that this process of being sued was not going to be
pleasant. (As Jesse's father recounted to me, the chief lawyer on the
-case, Matt Oppenheimer, told Jesse, «You don't want to pay another
-visit to a dentist like me.») And throughout, the RIAA insisted it
+case, Matt Oppenheimer, told Jesse, “You don't want to pay another
+visit to a dentist like me.”) And throughout, the RIAA insisted it
would not settle the case until it took every penny Jesse had saved.
-
+
Jesse's family was outraged at these claims. They wanted to fight.
But Jesse's uncle worked to educate the family about the nature of the
American legal system. Jesse could fight the RIAA. He might even
@@ -2131,18 +2125,18 @@ paper saying he and his family were bankrupt.
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
-
+
The recording industry insists this is a matter of law and morality.
Let's put the law aside for a moment and think about the morality.
Where is the morality in a lawsuit like this? What is the virtue in
scapegoatism? The RIAA is an extraordinarily powerful lobby. The
president of the RIAA is reported to make more than $1 million a year.
Artists, on the other hand, are not well paid. The average recording
-artist makes $45,900.
+artist makes $45,900.
There are plenty of ways for the RIAA to affect
and direct policy. So where is the morality in taking money from a
-student for running a search engine?
-
+student for running a search engine?
+
On June 23, Jesse wired his savings to the lawyer working for the
RIAA. The case against him was then dismissed. And with this, this
kid who had tinkered a computer into a $15 million lawsuit became an
@@ -2154,41 +2148,41 @@ ever foresee anything like this, but I think it's just completely
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
+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
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 4. Chapter Four: “Pirates”
+If “piracy” means
using the creative property of others without their
-permission—if «if value, then right» is
+permission—if “if value, then right” is
true—then the history of the content industry is a history of
-piracy. Every important sector of «big media»
+piracy. Every important sector of “big media”
today—film, records, radio, and cable TV—was born of a
kind of piracy so defined. The consistent story is how last
generation's pirates join this generation's country club—until
now.
-
-The film industry of Hollywood was built by fleeing pirates.
+
+The film industry of Hollywood was built by fleeing pirates.
Creators and directors migrated from the East Coast to California in
the early twentieth century in part to escape controls that patents
granted the inventor of filmmaking, Thomas Edison. These controls were
-exercised through a monopoly «trust,» the Motion Pictures Patents
+exercised through a monopoly “trust,” the Motion Pictures Patents
Company, and were based on Thomas Edison's creative
property—patents. Edison formed the MPPC to exercise the rights
this creative property
@@ -2204,7 +2198,7 @@ business without submitting to the Edison monopoly. In the
summer of 1909 the independent movement was in full-swing,
with producers and theater owners using illegal equipment and
imported film stock to create their own underground market.
-
+
With the country experiencing a tremendous expansion in the number of
nickelodeons, the Patents Company reacted to the independent movement
by forming a strong-arm subsidiary known as the General Film Company
@@ -2214,47 +2208,48 @@ equipment, discontinued product supply to theaters which showed
unlicensed films, and effectively monopolized distribution with the
acquisition of all U.S. film exchanges, except for the one owned by
the independent William Fox who defied the Trust even after his
-license was revoked.
+license was revoked.
-The Napsters of those days, the «independents,» were companies like
-Fox. And no less than today, these independents were vigorously
-resisted. «Shooting was disrupted by machinery stolen, and
-`accidents' resulting in loss of negatives, equipment, buildings and
-sometimes life and limb frequently occurred.»
+The Napsters of those days, the “independents,” were
+companies like Fox. And no less than today, these independents were
+vigorously resisted. “Shooting was disrupted by machinery
+stolen, and ‘accidents’ resulting in loss of negatives,
+equipment, buildings and sometimes life and limb frequently
+occurred.”
That led the independents to flee the East
Coast. California was remote enough from Edison's reach that
filmmakers there could pirate his inventions without fear of the
law. And the leaders of Hollywood filmmaking, Fox most prominently,
did just that.
-
+
Of course, California grew quickly, and the effective enforcement
of federal law eventually spread west. But because patents grant the
-patent holder a truly «limited» monopoly (just seventeen years at that
+patent holder a truly “limited” monopoly (just seventeen years at that
time), by the time enough federal marshals appeared, the patents had
expired. A new industry had been born, in part from the piracy of
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.
-
+
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
piano), the law gave composers the exclusive right to control copies of
their music and the exclusive right to control public performances of
their music. In other words, in 1900, if I wanted a copy of Phil Russel's
-1899 hit «Happy Mose,» the law said I would have to pay for the right
+1899 hit “Happy Mose,” the law said I would have to pay for the right
to get a copy of the musical score, and I would also have to pay for the
right to perform it publicly.
-
-But what if I wanted to record «Happy Mose,» using Edison's phonograph
+
+But what if I wanted to record “Happy Mose,” using Edison's phonograph
or Fourneaux's player piano? Here the law stumbled. It was clear
enough that I would have to buy any copy of the musical score that I
performed in making this recording. And it was clear enough that I
would have to pay for any public performance of the work I was
recording. But it wasn't totally clear that I would have to pay for a
-«public performance» if I recorded the song in my own house (even
+“public performance” if I recorded the song in my own house (even
today, you don't owe the Beatles anything if you sing their songs in
the shower), or if I recorded the song from memory (copies in your
brain are not—yet— regulated by copyright law). So if I
@@ -2264,46 +2259,46 @@ importantly, it wasn't clear whether I owed the composer anything if I
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,
-
+
Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same and
copyrights it. Along come the phonographic companies and companies who
cut music rolls and deliberately steal the work of the brain of the
composer and publisher without any regard for [their]
-rights.
-
+rights.
+
The innovators who developed the technology to record other
-people's works were «sponging upon the toil, the work, the talent, and
-genius of American composers,»
-and the «music publishing industry»
-was thereby «at the complete mercy of this one pirate.»
+people's works were “sponging upon the toil, the work, the talent, and
+genius of American composers,”
+and the “music publishing industry”
+was thereby “at the complete mercy of this one pirate.”
As John Philip
-Sousa put it, in as direct a way as possible, «When they make money
-out of my pieces, I want a share of it.»
-
+Sousa put it, in as direct a way as possible, “When they make money
+out of my pieces, I want a share of it.”
+
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
-player piano argued that «it is perfectly demonstrable that the
+player piano argued that “it is perfectly demonstrable that the
introduction of automatic music players has not deprived any composer
-of anything he had before their introduction.» Rather, the machines
-increased the sales of sheet music. In any case, the innovators argued, the job of
-Congress was «to consider first the interest of [the public], whom
-they represent, and whose servants they are.» «All talk about
-`theft,'» the general counsel of the American Graphophone Company
-wrote, «is the merest claptrap, for there exists no property in ideas
+of anything he had before their introduction.” Rather, the machines
+increased the sales of sheet music. In any case, the innovators argued, the job of
+Congress was “to consider first the interest of [the public], whom
+they represent, and whose servants they are.” “All talk about
+‘theft,’” the general counsel of the American Graphophone Company
+wrote, “is the merest claptrap, for there exists no property in ideas
musical, literary or artistic, except as defined by
-statute.»
-
+statute.”
+
The law soon resolved this battle in favor of the composer
and the recording artist. Congress amended the
-law to make sure that composers would be paid for the «mechanical
-reproductions» of their music. But rather than simply granting the
+law to make sure that composers would be paid for the “mechanical
+reproductions” of their music. But rather than simply granting the
composer complete control over the right to make mechanical
reproductions, Congress gave recording artists a right to record the
music, at a price set by Congress, once the composer allowed it to be
@@ -2314,8 +2309,8 @@ copyright law that makes cover songs possible. Once a composer
authorizes a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
-American law ordinarily calls this a «compulsory license,» but I will
-refer to it as a «statutory license.» A statutory license is a license
+American law ordinarily calls this a “compulsory license,” but I will
+refer to it as a “statutory license.” A statutory license is a license
whose key terms are set by law. After Congress's amendment of the
Copyright Act in 1909, record companies were free to distribute copies
of recordings so long as they paid the composer (or copyright holder)
@@ -2328,7 +2323,7 @@ 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.
-
+
But the law governing recordings gives recording artists less. And
thus, in effect, the law subsidizes the recording
industry through a kind of piracy—by giving recording artists a
@@ -2340,8 +2335,8 @@ it otherwise would pay; the public gets access to a much wider range
of musical creativity. Indeed, Congress was quite explicit about its
reasons for granting this right. Its fear was the monopoly power of
rights holders, and that that power would stifle follow-on
-creativity.
-
+creativity.
+
While the recording industry has been quite coy about this recently,
historically it has been quite a supporter of the statutory license for
records. As a 1967 report from the House Committee on the Judiciary
@@ -2360,30 +2355,30 @@ the 1909 statute adopted the compulsory license as a deliberate
anti-monopoly condition on the grant of these rights. They argue that
the result has been an outpouring of recorded music, with the public
being given lower prices, improved quality, and a greater
-choice.
-
+choice.
+
By limiting the rights musicians have, by partially pirating their
creative work, the record producers, and the public, benefit.
Radio was also born of piracy.
When a radio station plays a record on the air, that constitutes a
-«public performance» of the composer's work.
+“public performance” of the composer's work.
As I described above, the law gives the composer (or copyright holder)
an exclusive right to public performances of his work. The radio
station thus owes the composer money for that performance.
-
+
But when the radio station plays a record, it is not only performing a
copy of the composer's work. The radio station is
also performing a copy of the recording artist's
-work. It's one thing to have «Happy Birthday» sung on the radio by the
+work. It's one thing to have “Happy Birthday” sung on the radio by the
local children's choir; it's quite another to have it sung by the
Rolling Stones or Lyle Lovett. The recording artist is adding to the
value of the composition performed on the radio station. And if the
law were perfectly consistent, the radio station would have to pay the
recording artist for his work, just as it pays the composer of the
music for his work.
-
+
@@ -2404,17 +2399,17 @@ then decides to make a recording of your song, and it becomes a top
hit. Under our law, every time a radio station plays your song, you
get some money. But Madonna gets nothing, save the indirect effect on
the sale of her CDs. The public performance of her recording is not a
-«protected» right. The radio station thus gets to
+“protected” right. The radio station thus gets to
pirate the value of Madonna's work without paying
her anything.
-
+
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
performance rights they give up. Maybe. But even if so, the law
ordinarily gives the creator the right to make this choice. By making
the choice for him or her, the law gives the radio station the right
to take something for nothing.
-
Cable TV was also born of a kind of piracy.
When cable entrepreneurs first started wiring communities with cable
@@ -2426,30 +2421,30 @@ for what they sold. Cable companies were thus Napsterizing
broadcasters' content, but more egregiously than anything Napster ever
did— Napster never charged for the content it enabled others to
give away.
-
+
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
-«unfair and potentially destructive competition.»
-There may have been a «public interest» in spreading the reach of cable
+“unfair and potentially destructive competition.”
+There may have been a “public interest” in spreading the reach of cable
TV, but as Douglas Anello, general counsel to the National Association
-of Broadcasters, asked Senator Quentin Burdick during testimony, «Does public
-interest dictate that you use somebody else's property?»
+of Broadcasters, asked Senator Quentin Burdick during testimony, “Does public
+interest dictate that you use somebody else's property?”
As another broadcaster put it,
The extraordinary thing about the CATV business is that it is the
only business I know of where the product that is being sold is not
-paid for.
+paid for.
Again, the demand of the copyright holders seemed reasonable enough:
All we are asking for is a very simple thing, that people who now
take our property for nothing pay for it. We are trying to stop
piracy and I don't think there is any lesser word to describe it. I
-think there are harsher words which would fit it.
-
-These were «free-ride[rs],» Screen Actor's Guild president Charlton
-Heston said, who were «depriving actors of
-compensation.»
+think there are harsher words which would fit it.
+
+These were “free-ride[rs],” Screen Actor's Guild president Charlton
+Heston said, who were “depriving actors of
+compensation.”
But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
@@ -2461,57 +2456,57 @@ should be permitted to extend that monopoly. … The
question here is how much compensation they should have and
-how far back they should carry their right to compensation.
-
+how far back they should carry their right to compensation.
+
Copyright owners took the cable companies to court. Twice the Supreme
Court held that the cable companies owed the copyright owners nothing.
It took Congress almost thirty years before it resolved the question
-of whether cable companies had to pay for the content they «pirated.»
+of whether cable companies had to pay for the content they “pirated.”
In the end, Congress resolved this question in the same way that it
resolved the question about record players and player pianos. Yes,
cable companies would have to pay for the content that they broadcast;
but the price they would have to pay was not set by the copyright
owner. The price was set by law, so that the broadcasters couldn't
exercise veto power over the emerging technologies of cable. Cable
-companies thus built their empire in part upon a «piracy» of the value
+companies thus built their empire in part upon a “piracy” of the value
created by broadcasters' content.
-
+
These separate stories sing a
-common theme. If «piracy» means using value from someone
+common theme. If “piracy” means using value from someone
else's creative property without permission from that creator—as
-it is increasingly described today
+it is increasingly described today
— 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
could well be expanded. Every generation welcomes the pirates from the
last. Every generation—until now.
-
Chapter 5. Chapter Five: «Piracy»
+permission or compensation—has grown with the Internet.”
+
Chapter 5. Chapter Five: “Piracy”
There is piracy of copyrighted
material. Lots of it. This piracy comes in many forms. The most
significant is commercial piracy, the unauthorized taking of other
@@ -2616,20 +2611,20 @@ people's content within a commercial context. Despite the many
justifications that are offered in its defense, this taking is
wrong. No one should condone it, and the law should stop it.
-But as well as copy-shop piracy, there is another kind of «taking»
+But as well as copy-shop piracy, there is another kind of “taking”
that is more directly related to the Internet. That taking, too, seems
wrong to many, and it is wrong much of the time. Before we paint this
-taking «piracy,» however, we should understand its nature a bit more.
+taking “piracy,” however, we should understand its nature a bit more.
For the harm of this taking is significantly more ambiguous than
outright copying, and the law should account for that ambiguity, as it
has so often done in the past.
-
+
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
content, copy it, and sell it—all without the permission of a copyright
owner. The recording industry estimates that it loses about $4.6 billion
-every year to physical piracy
+every year to physical piracy
(that works out to one in three CDs sold worldwide). The MPAA
estimates that it loses $3 billion annually worldwide to piracy.
@@ -2666,29 +2661,29 @@ similar childhood.
If a country is to be treated as a sovereign, however, then its laws are
its laws regardless of their source. The international law under which
these nations live gives them some opportunities to escape the burden
-of intellectual property law. In my view, more developing nations should take
+of intellectual property law. In my view, more developing nations should take
advantage of that opportunity, but when they don't, then their laws
should be respected. And under the laws of these nations, this piracy
is wrong.
-
+
Alternatively, we could try to excuse this piracy by noting that in
any case, it does no harm to the industry. The Chinese who get access
to American CDs at 50 cents a copy are not people who would have
bought those American CDs at $15 a copy. So no one really has any
-less money than they otherwise would have had.
+less money than they otherwise would have had.
This is often true (though I have friends who have purchased many
thousands of pirated DVDs who certainly have enough money to pay
for the content they have taken), and it does mitigate to some degree
the harm caused by such taking. Extremists in this debate love to say,
-«You wouldn't go into Barnes & Noble and take a book off of the shelf
-without paying; why should it be any different with on-line music?»
+“You wouldn't go into Barnes & Noble and take a book off of the shelf
+without paying; why should it be any different with on-line music?”
The difference is, of course, that when you take a book from Barnes &
Noble, it has one less book to sell. By contrast, when you take an MP3
from a computer network, there is not one less CD that can be sold.
The physics of piracy of the intangible are different from the physics of
piracy of the tangible.
-
+
This argument is still very weak. However, although copyright is a
property right of a very special sort, it is a
property right. Like all property rights, the copyright gives the
@@ -2696,7 +2691,7 @@ owner the right to decide the terms under which content is shared. If
the copyright owner doesn't want to sell, she doesn't have to. There
are exceptions: important statutory licenses that apply to copyrighted
content regardless of the wish of the copyright owner. Those licenses
-give people the right to «take» copyrighted content whether or not the
+give people the right to “take” copyrighted content whether or not the
copyright owner wants to sell. But
@@ -2704,10 +2699,10 @@ where the law does not give people the right to take content, it is
wrong to take that content even if the wrong does no harm. If we have
a property system, and that system is properly balanced to the
technology of a time, then it is wrong to take property without the
-permission of a property owner. That is exactly what «property» means.
-
+permission of a property owner. That is exactly what “property” means.
+
Finally, we could try to excuse this piracy with the argument that the
-piracy actually helps the copyright owner. When the Chinese «steal»
+piracy actually helps the copyright owner. When the Chinese “steal”
Windows, that makes the Chinese dependent on Microsoft. Microsoft
loses the value of the software that was taken. But it gains users who
are used to life in the Microsoft world. Over time, as the nation
@@ -2717,14 +2712,14 @@ 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.
-
+
This argument, too, is somewhat true. The addiction strategy is a good
one. Many businesses practice it. Some thrive because of it. Law
students, for example, are given free access to the two largest legal
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).
-
+
Still, the argument is not terribly persuasive. We don't give the
alcoholic a defense when he steals his first beer, merely because that
will make it more likely that he will buy the next three. Instead, we
@@ -2748,12 +2743,12 @@ Nothing has changed to draw that law into doubt. This form of piracy
is flat out wrong.
But as the examples from the four chapters that introduced this part
-suggest, even if some piracy is plainly wrong, not all «piracy» is. Or
-at least, not all «piracy» is wrong if that term is understood in the
-way it is increasingly used today. Many kinds of «piracy» are useful
+suggest, even if some piracy is plainly wrong, not all “piracy” is. Or
+at least, not all “piracy” is wrong if that term is understood in the
+way it is increasingly used today. Many kinds of “piracy” are useful
and productive, to produce either new content or new ways of doing
business. Neither our tradition nor any tradition has ever banned all
-«piracy» in that sense of the term.
+“piracy” in that sense of the term.
This doesn't mean that there are no questions raised by the latest
piracy concern, peer-to-peer file sharing. But it does mean that we
@@ -2769,30 +2764,31 @@ These differences distinguish p2p sharing from true piracy. They
should push us to find a way to protect artists while enabling this
sharing to survive.
-The key to the «piracy» that the law aims to quash is a use that «rob[s]
-the author of [his] profit.»
+The key to the “piracy” that the law aims to quash is a use that “rob[s]
+the author of [his] profit.”
This means we must determine whether
and how much p2p sharing harms before we know how strongly the
law should seek to either prevent it or find an alternative to assure the
author of his profit.
-
-
+
+
+
Peer-to-peer sharing was made famous by Napster. But the inventors of
the Napster technology had not made any major technological
innovations. Like every great advance in innovation on the Internet
-(and, arguably, off the Internet as well), Shawn Fanning and crew had simply
+(and, arguably, off the Internet as well), Shawn Fanning and crew had simply
put together components that had been developed independently.
-
-
-
+
+
+
The result was spontaneous combustion. Launched in July 1999,
Napster amassed over 10 million users within nine months. After
eighteen months, there were close to 80 million registered users of the
-system.
+system.
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
boasts over 100 million members.) These services' systems are different
@@ -2800,16 +2796,16 @@ architecturally, though not very different in function: Each enables
users to make content available to any number of other users. With a
p2p system, you can share your favorite songs with your best friend—
or your 20,000 best friends.
-
+
According to a number of estimates, a huge proportion of Americans
have tasted file-sharing technology. A study by Ipsos-Insight in
September 2002 estimated that 60 million Americans had downloaded
-music—28 percent of Americans older than 12.
+music—28 percent of Americans older than 12.
A survey by the NPD group quoted in The New York Times
estimated that 43 million citizens used file-sharing networks to
-exchange content in May 2003.
+exchange content in May 2003.
The vast majority of these are not kids. Whatever the actual figure, a
-massive quantity of content is being «taken» on these networks. The
+massive quantity of content is being “taken” on these networks. The
ease and inexpensiveness of file-sharing networks have inspired
millions to enjoy music in a way that they hadn't before.
@@ -2820,11 +2816,11 @@ complicated than one might think. So consider—a bit more
carefully than the polarized voices around this debate usually
do—the kinds of sharing that file sharing enables, and the kinds
of harm it entails.
-
+
File sharers share different kinds of content. We can divide these
different kinds into four types.
-
+
There are some who use sharing networks as substitutes for purchasing
content. Thus, when a new Madonna CD is released, rather than buying
@@ -2851,7 +2847,7 @@ because the transaction costs off the Net are too high. This use of
sharing networks is among the most rewarding for many. Songs that were
part of your childhood but have long vanished from the marketplace
magically appear again on the network. (One friend told me that when
-she discovered Napster, she spent a solid weekend «recalling» old
+she discovered Napster, she spent a solid weekend “recalling” old
songs. She was astonished at the range and mix of content that was
available.) For content not sold, this is still technically a
violation of copyright, though because the copyright owner is not
@@ -2864,13 +2860,13 @@ a local collector.
Finally, there are many who use sharing networks to get access
to content that is not copyrighted or that the copyright owner
wants to give away.
-
+
How do these different types of sharing balance out?
Let's start with some simple but important points. From the
perspective of the law, only type D sharing is clearly legal. From the
perspective of economics, only type A sharing is clearly
-harmful.
+harmful.
Type B sharing is illegal but plainly beneficial. Type C sharing is
illegal, yet good for society (since more exposure to music is good)
and harmless to the artist (since the work is not otherwise
@@ -2882,28 +2878,29 @@ Whether on balance sharing is harmful depends importantly on how
harmful type A sharing is. Just as Edison complained about Hollywood,
composers complained about piano rolls, recording artists complained
about radio, and broadcasters complained about cable TV, the music
-industry complains that type A sharing is a kind of «theft» that is
-«devastating» the industry.
+industry complains that type A sharing is a kind of “theft” that is
+“devastating” the industry.
While the numbers do suggest that sharing is harmful, how
harmful is harder to reckon. It has long been the recording industry's
practice to blame technology for any drop in sales. The history of
cassette recording is a good example. As a study by Cap Gemini Ernst
-& Young put it, «Rather than exploiting this new, popular
-technology, the labels fought it.»
+& Young put it, “Rather than exploiting this new, popular
+technology, the labels fought it.”
The labels claimed that every album taped was an album unsold, and
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.
-
-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
-not the fault of the tapers—who did not [stop after MTV came into
+
+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 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
-innovation at the major labels.»
-
+innovation at the major labels.”
+
But just because the industry was wrong before does not mean it is
wrong today. To evaluate the real threat that p2p sharing presents to
the industry in particular, and society in general—or at least
@@ -2915,7 +2912,7 @@ sharing is, and how beneficial the other types of sharing are.
We start to answer this question by focusing on the net harm, from the
standpoint of the industry as a whole, that sharing networks cause.
-The «net harm» to the industry as a whole is the amount by which type
+The “net harm” to the industry as a whole is the amount by which type
A sharing exceeds type B. If the record companies sold more records
through sampling than they lost through substitution, then sharing
networks would actually benefit music companies on balance. They would
@@ -2929,19 +2926,19 @@ actually suggest it might be close.
In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
from 882 million to 803 million units; revenues fell 6.7
-percent.
+percent.
This confirms a trend over the past few years. The RIAA blames
Internet piracy for the trend, though there are many other causes that
could account for this drop. SoundScan, for example, reports a more
than 20 percent drop in the number of CDs released since 1999. That no
doubt accounts for some of the decrease in sales. Rising prices could
-account for at least some of the loss. «From 1999 to 2001, the average
-price of a CD rose 7.2 percent, from $13.04 to $14.19.»
+account for at least some of the loss. “From 1999 to 2001, the average
+price of a CD rose 7.2 percent, from $13.04 to $14.19.”
Competition from other forms of media could also account for some of
-the decline. As Jane Black of BusinessWeek notes, «The
+the decline. As Jane Black of BusinessWeek notes, “The
soundtrack to the film High Fidelity has a list price of
$18.98. You could get the whole movie [on DVD] for
-$19.99.»
+$19.99.”
@@ -2954,18 +2951,18 @@ free, sales revenue fell by just 6.7 percent.
There are too many different things happening at the same time to
explain these numbers definitively, but one conclusion is unavoidable:
-The recording industry constantly asks, «What's the difference between
-downloading a song and stealing a CD?»—but their own numbers
+The recording industry constantly asks, “What's the difference between
+downloading a song and stealing a CD?”—but their own numbers
reveal the difference. If I steal a CD, then there is one less CD to
sell. Every taking is a lost sale. But on the basis of the numbers the
RIAA provides, it is absolutely clear that the same is not true of
downloads. If every download were a lost sale—if every use of
-Kazaa «rob[bed] the author of [his] profit»—then the industry
+Kazaa “rob[bed] the author of [his] profit”—then the industry
would have suffered a 100 percent drop in sales last year, not a 7
percent drop. If 2.6 times the number of CDs sold were downloaded for
free, and yet sales revenue dropped by just 6.7 percent, then there is
-a huge difference between «downloading a song and stealing a CD.»
-
+a huge difference between “downloading a song and stealing a CD.”
+
These are the harms—alleged and perhaps exaggerated but, let's
assume, real. What of the benefits? File sharing may impose costs on
the recording industry. What value does it produce in addition to
@@ -2975,18 +2972,18 @@ One benefit is type C sharing—making available content that
is technically still under copyright but is no longer commercially
available. This is not a small category of content. There are
millions of tracks that are no longer commercially
-available.
+available.
And while it's conceivable that some of this content is not available
because the artist producing the content doesn't want it to be made
available, the vast majority of it is unavailable solely because the
publisher or the distributor has decided it no longer makes economic
sense to the company to make it available.
-
+
In real space—long before the Internet—the market had a simple
response to this problem: used book and record stores. There are
thousands of used book and used record stores in America
-today.
+today.
These stores buy content from owners, then sell the content they
buy. And under American copyright law, when they buy and sell this
content, even if the content is still under
@@ -2995,13 +2992,13 @@ book and record stores are commercial entities; their owners make
money from the content they sell; but as with cable companies before
statutory licensing, they don't have to pay the copyright owner for
the content they sell.
-
+
Type C sharing, then, is very much like used book stores or used
record stores. It is different, of course, because the person making
the content available isn't making money from making the content
available. It is also different, of course, because in real space,
when I sell a record, I don't have it anymore, while in cyberspace,
-when someone shares my 1949 recording of Bernstein's «Two Love Songs,»
+when someone shares my 1949 recording of Bernstein's “Two Love Songs,”
I still have it. That difference would matter economically if the
owner of the copyright were selling the record in competition to my
sharing. But we're talking about the class of content that is not
@@ -3014,7 +3011,7 @@ well be better, it doesn't follow that it would be good to ban used book
stores. Or put differently, if you think that type C sharing should be
stopped, do you think that libraries and used book stores should be
shut as well?
-
+
Finally, and perhaps most importantly, file-sharing networks enable
type D sharing to occur—the sharing of content that copyright owners
want to have shared or for which there is no continuing copyright. This
@@ -3024,28 +3021,28 @@ the Magic Kingdom, both free on-line and in bookstores on the same
day. His (and his publisher's) thinking was that the on-line distribution
-would be a great advertisement for the «real» book. People would read
+would be a great advertisement for the “real” book. People would read
part on-line, and then decide whether they liked the book or not. If
they liked it, they would be more likely to buy it. Doctorow's content is
type D content. If sharing networks enable his work to be spread, then
both he and society are better off. (Actually, much better off: It is a
great book!)
-
+
Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
of type A sharing destroy the opportunity for type D sharing, then we
lose something important in order to protect type A content.
The point throughout is this: While the recording industry
-understandably says, «This is how much we've lost,» we must also ask,
-«How much has society gained from p2p sharing? What are the
+understandably says, “This is how much we've lost,” we must also ask,
+“How much has society gained from p2p sharing? What are the
efficiencies? What is the content that otherwise would be
-unavailable?»
-
+unavailable?”
+
For unlike the piracy I described in the first section of this
-chapter, much of the «piracy» that file sharing enables is plainly
+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
+4, 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
@@ -3055,9 +3052,9 @@ possible) the wrongful harm it causes artists. The question is one of
balance. The law should seek that balance, and that balance will be
found only with time.
-«But isn't the war just a war against illegal sharing? Isn't the target
-just what you call type A sharing?»
-
+“But isn't the war just a war against illegal sharing? Isn't the target
+just what you call type A sharing?”
+
You would think. And we should hope. But so far, it is not. The effect
of the war purportedly on type A sharing alone has been felt far
beyond that one class of sharing. That much is obvious from the
@@ -3068,8 +3065,8 @@ identified
infringing material, the district court told counsel for Napster 99.4
percent was not good enough. Napster had to push the infringements
-«down to zero.»
-
+“down to zero.”
+
If 99.4 percent is not good enough, then this is a war on file-sharing
technologies, not a war on copyright infringement. There is no way to
assure that a p2p system is used 100 percent of the time in compliance
@@ -3079,7 +3076,7 @@ are used in compliance with the law. Zero tolerance means zero p2p.
The court's ruling means that we as a society must lose the benefits of
p2p, even for the totally legal and beneficial uses they serve, simply to
assure that there are zero copyright infringements caused by p2p.
-
+
Zero tolerance has not been our history. It has not produced the
content industry that we know today. The history of American law has
been a process of balance. As new technologies changed the way content
@@ -3087,14 +3084,14 @@ was distributed, the law adjusted, after some time, to the new
technology. In this adjustment, the law sought to ensure the
legitimate rights of creators while protecting innovation. Sometimes
this has meant more rights for creators. Sometimes less.
-
-So, as we've seen, when «mechanical reproduction» threatened the
+
+So, as we've seen, when “mechanical reproduction” threatened the
interests of composers, Congress balanced the rights of composers
against the interests of the recording industry. It granted rights to
composers, but also to the recording artists: Composers were to be
paid, but at a price set by Congress. But when radio started
broadcasting the recordings made by these recording artists, and they
-complained to Congress that their «creative property» was not being
+complained to Congress that their “creative property” was not being
respected (since the radio station did not have to pay them for the
creativity it broadcast), Congress rejected their claim. An indirect
benefit was enough.
@@ -3105,7 +3102,7 @@ they rebroadcast, Congress responded by giving broadcasters a right to
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.
-
+
This compromise, like the compromise affecting records and player
@@ -3122,7 +3119,7 @@ content for free, then it would have unfairly subsidized cable. Thus
Congress chose a path that would assure
compensation without giving the past
(broadcasters) control over the future (cable).
-
+
In the same year that Congress struck this balance, two major
producers and distributors of film content filed a lawsuit against
another technology, the video tape recorder (VTR, or as we refer to
@@ -3130,16 +3127,16 @@ them today, VCRs) that Sony had produced, the Betamax. Disney's and
Universal's claim against Sony was relatively simple: Sony produced a
device, Disney and Universal claimed, that enabled consumers to engage
in copyright infringement. Because the device that Sony built had a
-«record» button, the device could be used to record copyrighted movies
+“record” button, the device could be used to record copyrighted movies
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
shows. It could have built the machine to block or inhibit any direct
copying from a television broadcast. Or possibly, it could have built the
-machine to copy only if there were a special «copy me» signal on the
+machine to copy only if there were a special “copy me” signal on the
line. It was clear that there were many television shows that did not
grant anyone permission to copy. Indeed, if anyone had asked, no
doubt the majority of shows would not have authorized copying. And
@@ -3148,42 +3145,42 @@ in the face of this obvious preference, Sony could have designed its
system to minimize the opportunity for copyright infringement. It did
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
-
+
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs «tapeworms.» He warned, «When there are
-20, 30, 40 million of these VCRs in the land, we will be invaded by
-millions of `tapeworms,' eating away at the very heart and essence of
-the most precious asset the copyright owner has, his
-copyright.»
-«One does not have to be trained in sophisticated marketing and
-creative judgment,» he told Congress, «to understand the devastation
+champion. Valenti called VCRs “tapeworms.” He warned,
+“When there are 20, 30, 40 million of these VCRs in the land, we
+will be invaded by millions of ‘tapeworms,’ eating away
+at the very heart and essence of the most precious asset the copyright
+owner has, his copyright.”
+“One does not have to be trained in sophisticated marketing and
+creative judgment,” he told Congress, “to understand the devastation
on the after-theater marketplace caused by the hundreds of millions of
tapings that will adversely impact on the future of the creative
community in this country. It is simply a question of basic economics
-and plain common sense.»
+and plain common sense.”
Indeed, as surveys would later show, 45
-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
+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 infringement without creating a mechanism to compensate
-copyright owners,» Valenti testified, Congress would «take from the
+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.»
-
+profit from its reproduction.”
+
It took eight years for this case to be resolved by the Supreme
Court. In the interim, the Ninth Circuit Court of Appeals, which
includes Hollywood in its jurisdiction—leading Judge Alex
-Kozinski, who sits on that court, refers to it as the «Hollywood
-Circuit»—held that Sony would be liable for the copyright
+Kozinski, who sits on that court, refers to it as the “Hollywood
+Circuit”—held that Sony would be liable for the copyright
infringement made possible by its machines. Under the Ninth Circuit's
rule, this totally familiar technology—which Jack Valenti had
-called «the Boston Strangler of the American film industry» (worse
+called “the Boston Strangler of the American film industry” (worse
yet, it was a Japanese Boston Strangler of the
American film industry)—was an illegal
-technology.
-
-
+technology.
+
+
But the Supreme Court reversed the decision of the Ninth Circuit.
@@ -3199,31 +3196,31 @@ for copyrighted materials. Congress has the constitutional
and the institutional ability to accommodate fully the
varied permutations of competing interests that are inevitably
implicated
-by such new technology.
-
+by such new technology.
+
Congress was asked to respond to the Supreme Court's decision. But as
with the plea of recording artists about radio broadcasts, Congress
ignored the request. Congress was convinced that American film got
-enough, this «taking» notwithstanding. If we put these cases
+enough, this “taking” notwithstanding. If we put these cases
together, a pattern is clear:
-
+
In each case throughout our history, a new technology changed the
-way content was distributed.
+way content was distributed.
In each case, throughout our history,
-that change meant that someone got a «free ride» on someone else's
+that change meant that someone got a “free ride” on someone else's
work.
In none of these cases did either the courts or
Congress eliminate all free riding. In none of
these cases did the courts or Congress insist that the law should
assure that the copyright holder get all the value that his copyright
-created. In every case, the copyright owners complained of «piracy.»
+created. In every case, the copyright owners complained of “piracy.”
In every case, Congress acted to recognize some of the legitimacy in
-the behavior of the «pirates.» In each case, Congress allowed some new
+the behavior of the “pirates.” In each case, Congress allowed some new
technology to benefit from content made before. It balanced the
interests at stake.
-
+
When you think across these examples, and the other examples that
make up the first four chapters of this section, this balance makes
sense. Was Walt Disney a pirate? Would doujinshi be better if creators
@@ -3234,11 +3231,11 @@ Is it really right that building a search engine should expose you
to $15 million in damages? Would it have been better if Edison had
controlled film? Should every cover band have to hire a lawyer to get
permission to record a song?
-
+
We could answer yes to each of these questions, but our tradition
has answered no. In our tradition, as the Supreme Court has stated,
-copyright «has never accorded the copyright owner complete control
-over all possible uses of his work.»
+copyright “has never accorded the copyright owner complete control
+over all possible uses of his work.”
Instead, the particular uses that the law regulates have been defined
by balancing the good that comes from granting an exclusive right
against the burdens such an exclusive right creates. And this
@@ -3249,7 +3246,7 @@ facilitate the distribution of content.
We should be doing the same thing today. The technology of the
Internet is changing quickly. The way people connect to the Internet
(wires vs. wireless) is changing very quickly. No doubt the network
-should not become a tool for «stealing» from artists. But neither
+should not become a tool for “stealing” from artists. But neither
should the law become a tool to entrench one particular way in which
artists (or more accurately, distributors) get paid. As I describe in
some detail in the last chapter of this book, we should be securing
@@ -3265,32 +3262,33 @@ This is especially true when a new technology enables a vastly
superior mode of distribution. And this p2p has done. P2p technologies
can be ideally efficient in moving content across a widely diverse
network. Left to develop, they could make the network vastly more
-efficient. Yet these «potential public benefits,» as John Schwartz
-writes in The New York Times, «could be delayed in the P2P
-fight.»
+efficient. Yet these “potential public benefits,” as John Schwartz
+writes in The New York Times, “could be delayed in the P2P
+fight.”
Yet when anyone begins to talk
-about «balance,» the copyright warriors raise a different
-argument. «All this hand waving about balance and
-incentives,» they say, «misses a fundamental point. Our
-content,» the warriors insist, «is our
+about “balance,” the copyright warriors raise a different
+argument. “All this hand waving about balance and
+incentives,” they say, “misses a fundamental point. Our
+content,” the warriors insist, “is our
property. Why should we wait for Congress to
-`rebalance' our property rights? Do you have to wait before calling
-the police when your car has been stolen? And why should Congress
-deliberate at all about the merits of this theft? Do we ask whether
-the car thief had a good use for the car before we arrest him?»
+‘rebalance’ our property rights? Do you have to wait
+before calling the police when your car has been stolen? And why
+should Congress deliberate at all about the merits of this theft? Do
+we ask whether the car thief had a good use for the car before we
+arrest him?”
-«It is our property,» the warriors
-insist. «And it should be protected just as any other property
-is protected.»
-
+John Schwartz, “New Economy: The Attack on Peer-to-Peer Software
+Echoes Past Efforts,” New York Times, 22 September 2003, C3.
+
The copyright warriors are right: A
@@ -3485,7 +3485,7 @@ protects against its theft. Ordinarily, the copyright owner gets to
hold out for any price he wants. Markets reckon the supply and demand
that partially determine the price she can get.
-But in ordinary language, to call a copyright a «property» right is a
+But in ordinary language, to call a copyright a “property” right is a
bit misleading, for the property of copyright is an odd kind of
property. Indeed, the very idea of property in any idea or any
expression is very odd. I understand what I am taking when I take the
@@ -3495,7 +3495,7 @@ when I take the good idea you had to put
table in the backyard—by, for example, going to Sears, buying a
table, and putting it in my backyard? What is the thing I am taking
then?
-
+
The point is not just about the thingness of picnic tables versus
ideas, though that's an important difference. The point instead is that
@@ -3505,10 +3505,10 @@ range of exceptions—ideas released to the world are free. I don't
take anything from you when I copy the way you dress—though I
might seem weird if I did it every day, and especially weird if you are a
woman. Instead, as Thomas Jefferson said (and as is especially true
-when I copy the way someone else dresses), «He who receives an idea
+when I copy the way someone else dresses), “He who receives an idea
from me, receives instruction himself without lessening mine; as he who
-lights his taper at mine, receives light without darkening me.»
-
+lights his taper at mine, receives light without darkening me.”
+
The exceptions to free use are ideas and expressions within the
reach of the law of patent and copyright, and a few other domains that
I won't discuss here. Here the law says you can't take my idea or
@@ -3519,31 +3519,31 @@ property.
But how, and to what extent, and in what form—the details,
in other words—matter. To get a good sense of how this practice
of turning the intangible into property emerged, we need to place this
-«property» in its proper context.
+“property” in its proper context.
My strategy in doing this will be the same as my strategy in the
preceding part. I offer four stories to help put the idea of
-«copyright material is property» in context. Where did the idea come
+“copyright material is property” in context. Where did the idea come
from? What are its limits? How does it function in practice? After
these stories, the significance of this true
-statement—«copyright material is property»— will be a bit
+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 6. Chapter Six: Founders
William Shakespeare wrote
Romeo and Juliet in 1595. The play was first
published in 1597. It was the eleventh major play that Shakespeare had
@@ -3552,56 +3552,56 @@ that he wrote have continued to define Anglo-American culture ever
since. So deeply have the works of a sixteenth-century writer seeped
into our culture that we often don't even recognize their source. I
once overheard someone commenting on Kenneth Branagh's adaptation of
-Henry V: «I liked it, but Shakespeare is so full of
-clichés.»
-
+Henry V: “I liked it, but Shakespeare is so full of
+clichés.”
+
In 1774, almost 180 years after Romeo and Juliet was written, the
-«copy-right» for the work was still thought by many to be the exclusive
-right of a single London publisher, Jacob Tonson.
+“copy-right” for the work was still thought by many to be the exclusive
+right of a single London publisher, Jacob Tonson.
Tonson was the most prominent of a small group of publishers called
-the Conger
+the Conger
who controlled bookselling in England during the eighteenth
-century. The Conger claimed a perpetual right to control the «copy» of
+century. The Conger claimed a perpetual right to control the “copy” of
books that they had acquired from authors. That perpetual right meant
that no
one else could publish copies of a book to which they held the
copyright. Prices of the classics were thus kept high; competition to
produce better or cheaper editions was eliminated.
-
+
Now, there's something puzzling about the year 1774 to anyone who
knows a little about copyright law. The better-known year in the
history of copyright is 1710, the year that the British Parliament
-adopted the first «copyright» act. Known as the Statute of Anne, the
+adopted the first “copyright” act. Known as the Statute of Anne, the
act stated that all published works would get a copyright term of
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. Under this law, Romeo and Juliet should have been
+additional years. 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?
-
-The reason is that the English hadn't yet agreed on what a «copyright»
+
+The reason is that the English hadn't yet agreed on what a “copyright”
was—indeed, no one had. At the time the English passed the
Statute of Anne, there was no other legislation governing copyrights.
The last law regulating publishers, the Licensing Act of 1662, had
expired in 1695. That law gave publishers a monopoly over publishing,
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
+that the publishers, or “Stationers,” had an exclusive right to print
books.
-
+
There was no positive law, but that didn't mean
that there was no law. The Anglo-American legal tradition looks to
both the words of legislatures and the words of judges to know the
rules that are to govern how people are to behave. We call the words
-from legislatures «positive law.» We call the words from judges
-«common law.» The common law sets the background against which
+from legislatures “positive law.” We call the words from judges
+“common law.” The common law sets the background against which
legislatures legislate; the legislature, ordinarily, can trump that
background only if it passes a law to displace it. And so the real
question after the licensing statutes had expired was whether the
common law protected a copyright, independent of any positive law.
-
-This question was important to the publishers, or «booksellers,» as
+
+This question was important to the publishers, or “booksellers,” as
they were called, because there was growing competition from foreign
publishers. The Scottish, in particular, were increasingly publishing
and exporting books to England. That competition reduced the profits
@@ -3612,19 +3612,19 @@ to again give them exclusive control over publishing. That demand
ultimately
resulted in the Statute of Anne.
-The Statute of Anne granted the author or «proprietor» of a book an
+The Statute of Anne granted the author or “proprietor” of a book an
exclusive right to print that book. In an important limitation,
however, and to the horror of the booksellers, the law gave the
bookseller that right for a limited term. At the end of that term, the
-copyright «expired,» and the work would then be free and could be
+copyright “expired,” and the work would then be free and could be
published by anyone. Or so the legislature is thought to have
believed.
-
+
Now, the thing to puzzle about for a moment is this: Why would
Parliament limit the exclusive right? Not why would they limit it to
the particular limit they set, but why would they limit the right
at all?
-
+
For the booksellers, and the authors whom they represented, had a very
strong claim. Take Romeo and Juliet as an example: That play
was written by Shakespeare. It was his genius that brought it into the
@@ -3633,18 +3633,18 @@ world. He didn't take anybody's property when he created this play
this play, he didn't make it any harder for others to craft a play. So
why is it that the law would ever allow someone else to come along and
take Shakespeare's play without his, or his estate's, permission? What
-reason is there to allow someone else to «steal» Shakespeare's work?
-
+reason is there to allow someone else to “steal” Shakespeare's work?
+
The answer comes in two parts. We first need to see something special
-about the notion of «copyright» that existed at the time of the
+about the notion of “copyright” that existed at the time of the
Statute of Anne. Second, we have to see something important about
-«booksellers.»
-
+“booksellers.”
+
First, about copyright. In the last three hundred years, we have come
-to apply the concept of «copyright» ever more broadly. But in 1710, it
+to apply the concept of “copyright” ever more broadly. But in 1710, it
wasn't so much a concept as it was a very particular right. The
copyright was born as a very specific set of restrictions: It forbade
-others from reprinting a book. In 1710, the «copy-right» was a right
+others from reprinting a book. In 1710, the “copy-right” was a right
to use a particular machine to replicate a particular work. It did not
go beyond that very narrow right. It did not control any more
generally how
@@ -3653,19 +3653,19 @@ a work could be used. Today the right inc
large collection of restrictions on the freedom of others: It grants
the author the exclusive right to copy, the exclusive right to
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
the work could be translated, or whether Kenneth Branagh would be
-allowed to make his films. The «copy-right» was only an exclusive
+allowed to make his films. The “copy-right” was only an exclusive
right to print—no less, of course, but also no more.
-
+
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
+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
@@ -3675,14 +3675,14 @@ 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
+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
+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.
-
+
Second, about booksellers. It wasn't just that the copyright was a
monopoly. It was also that it was a monopoly held by the booksellers.
Booksellers sound quaint and harmless to us. They were not viewed
@@ -3692,11 +3692,11 @@ as harmless in seventeenth-century England. Members of the Conger
were increasingly seen as monopolists of the worst
kind—tools of the Crown's repression, selling the liberty of
England to guarantee themselves a monopoly profit. The attacks against
-these monopolists were harsh: Milton described them as «old patentees
-and monopolizers in the trade of book-selling»; they were «men who do
+these monopolists were harsh: Milton described them as “old patentees
+and monopolizers in the trade of book-selling”; they were “men who do
not therefore labour in an honest profession to which learning is
-indetted.»
-
+indetted.”
+
Many believed the power the booksellers exercised over the spread of
knowledge was harming that spread, just at the time the Enlightenment
was teaching the importance of education and knowledge spread
@@ -3734,75 +3734,75 @@ establishing a perpetual Monopoly, a Thing deservedly odious in the
Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
Learning, no Benefit to the Authors, but a general Tax on the Publick;
and all this only to increase the private Gain of the
-Booksellers.
-
+Booksellers.
+
Having failed in Parliament, the publishers turned to the courts in a
series of cases. Their argument was simple and direct: The Statute of
Anne gave authors certain protections through positive law, but those
protections were not intended as replacements for the common law.
Instead, they were intended simply to supplement the common law.
Under common law, it was already wrong to take another person's
-creative «property» and use it without his permission. The Statute of
+creative “property” and use it without his permission. The Statute of
Anne, the booksellers argued, didn't change that. Therefore, just
because the protections of the Statute of Anne expired, that didn't
mean the protections of the common law expired: Under the common law
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.
-
+
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
-rancher has for cattle.»
+“The publishers … had as much concern for authors as a cattle
+rancher has for cattle.”
The bookseller didn't care squat for the rights of the author. His
concern was the monopoly profit that the author's work gave.
-
+
The booksellers' argument was not accepted without a fight.
The hero of this fight was a Scottish bookseller named Alexander
-Donaldson.
-
+Donaldson.
+
Donaldson was an outsider to the London Conger. He began his
career in Edinburgh in 1750. The focus of his business was inexpensive
-reprints «of standard works whose copyright term had expired,» at least
-under the Statute of Anne.
+reprints “of standard works whose copyright term had expired,” at least
+under the Statute of Anne.
Donaldson's publishing house prospered
-and became «something of a center for literary Scotsmen.» «[A]mong
-them,» Professor Mark Rose writes, was «the young James Boswell
+and became “something of a center for literary Scotsmen.” “[A]mong
+them,” Professor Mark Rose writes, was “the young James Boswell
who, together with his friend Andrew Erskine, published an anthology
-of contemporary Scottish poems with Donaldson.»
+of contemporary Scottish poems with Donaldson.”
When the London booksellers tried to shut down Donaldson's shop in
Scotland, he responded by moving his shop to London, where he sold
-inexpensive editions «of the most popular English books, in defiance
+inexpensive editions “of the most popular English books, in defiance
of the supposed common law right of Literary
-Property.»
+Property.”
His books undercut the Conger prices by 30 to 50 percent, and he
rested his right to compete upon the ground that, under the Statute of
Anne, the works he was selling had passed out of protection.
-
-The London booksellers quickly brought suit to block «piracy» like
-Donaldson's. A number of actions were successful against the «pirates,»
+
+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.
-
+
Millar was a bookseller who in 1729 had purchased the rights to James
-Thomson's poem «The Seasons.» Millar complied with the requirements of
+Thomson's poem “The Seasons.” Millar complied with the requirements of
the Statute of Anne, and therefore received the full protection of the
statute. After the term of copyright ended, Robert Taylor began
printing a competing volume. Millar sued, claiming a perpetual common
-law right, the Statute of Anne notwithstanding.
+law right, the Statute of Anne notwithstanding.
Astonishingly to modern lawyers, one of the greatest judges in English
history, Lord Mansfield, agreed with the booksellers. Whatever
protection the Statute of Anne gave booksellers, it did not, he held,
extinguish any common law right. The question was whether the common
-law would protect the author against subsequent «pirates.»
+law would protect the author against subsequent “pirates.”
Mansfield's answer was yes: The common law would bar Taylor from
reprinting Thomson's poem without Millar's permission. That common law
rule thus effectively gave the booksellers a perpetual right to
control the publication of any book assigned to them.
-
+
Considered as a matter of abstract justice—reasoning as if
justice were just a matter of logical deduction from first
principles—Mansfield's conclusion might make some sense. But
@@ -3815,20 +3815,20 @@ short enough to assure that culture would pass into competition within
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.
-
+
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
-Thomas Beckett.
+Thomas Beckett.
Donaldson then released an unauthorized edition
of Thomson's works. Beckett, on the strength of the decision in Millar,
got an injunction against Donaldson. Donaldson appealed the case to
the House of Lords, which functioned much like our own Supreme
Court. In February of 1774, that body had the chance to interpret the
meaning of Parliament's limits from sixty years before.
-
+
As few legal cases ever do, Donaldson v. Beckett drew an
enormous amount of attention throughout Britain. Donaldson's lawyers
argued that whatever rights may have existed under the common law, the
@@ -3837,13 +3837,13 @@ of Anne, the only legal protection for an exclusive right to control
publication came from that statute. Thus, they argued, after the term
specified in the Statute of Anne expired, works that had been
protected by the statute were no longer protected.
-
+
The House of Lords was an odd institution. Legal questions were
-presented to the House and voted upon first by the «law lords,»
+presented to the House and voted upon first by the “law lords,”
members of special legal distinction who functioned much like the
Justices in our Supreme Court. Then, after the law lords voted, the
House of Lords generally voted.
-
+
The reports about the law lords' votes are mixed. On some counts,
it looks as if perpetual copyright prevailed. But there is no ambiguity
@@ -3852,8 +3852,8 @@ about how the House of Lords voted as whole. By a two-to-one majority
Whatever one's understanding of the common law, now a copyright was
fixed for a limited time, after which the work protected by copyright
passed into the public domain.
-
-«The public domain.» Before the case of Donaldson
+
+“The public domain.” Before the case of Donaldson
v. Beckett, there was no clear idea of a public domain in
England. Before 1774, there was a strong argument that common law
copyrights were perpetual. After 1774, the public domain was
@@ -3861,17 +3861,17 @@ born. For the first time in Anglo-American history, the legal control
over creative works expired, and the greatest works in English
history—including those of Shakespeare, Bacon, Milton, Johnson,
and Bunyan—were free of legal restraint.
-
+
It is hard for us to imagine, but this decision by the House of Lords
fueled an extraordinarily popular and political reaction. In Scotland,
-where most of the «pirate publishers» did their work, people
+where most of the “pirate publishers” did their work, people
celebrated the decision in the streets. As the Edinburgh Advertiser
-reported, «No private cause has so much engrossed the attention of the
+reported, “No private cause has so much engrossed the attention of the
public, and none has been tried before the House of Lords in the
-decision of which so many individuals were interested.» «Great
+decision of which so many individuals were interested.” “Great
rejoicing in Edinburgh upon victory over literary property: bonfires
-and illuminations.»
-
+and illuminations.”
+
In London, however, at least among publishers, the reaction was
equally strong in the opposite direction. The Morning Chronicle
reported:
@@ -3883,10 +3883,10 @@ Westminster, many of whom sold estates and houses to purchase
Copy-right, are in a manner ruined, and those who after many years
industry thought they had acquired a competency to provide for their
families now find themselves without a shilling to devise to their
-successors.
-
+successors.
+
-«Ruined» is a bit of an exaggeration. But it is not an exaggeration to
+“Ruined” is a bit of an exaggeration. But it is not an exaggeration to
say that the change was profound. The decision of the House of Lords
meant that the booksellers could no longer control how culture in
England would grow and develop. Culture in England was thereafter
@@ -3905,37 +3905,37 @@ memes they repeated and endorsed. Chose in a competit
context, not a context in which the choices about what
culture is available to people and how they get access to it are made
by the few despite the wishes of the many.
-
+
At least, this was the rule in a world where the Parliament is
antimonopoly, resistant to the protectionist pleas of publishers. In a
world where the Parliament is more pliant, free culture would be less
protected.
-
Chapter 8. Chapter Eight: Transformers
In 1993, Alex Alben was a lawyer
working at Starwave, Inc. Starwave was an innovative company founded
by Microsoft cofounder Paul Allen to develop digital
@@ -4172,20 +4172,20 @@ posters, scripts, and other material relating to the films Eastwood
made. Most of his career was spent at Warner Brothers, and so it was
relatively easy to get permission for that content.
-Then Alben and his team decided to include actual film clips. «Our
+Then Alben and his team decided to include actual film clips. “Our
goal was that we were going to have a clip from every one of
-Eastwood's films,» Alben told me. It was here that the problem
-arose. «No one had ever really done this before,» Alben explained. «No
+Eastwood's films,” Alben told me. It was here that the problem
+arose. “No one had ever really done this before,” Alben explained. “No
one had ever tried to do this in the context of an artistic look at an
-actor's career.»
+actor's career.”
Alben brought the idea to Michael Slade, the CEO of Starwave.
-Slade asked, «Well, what will it take?»
+Slade asked, “Well, what will it take?”
-Alben replied, «Well, we're going to have to clear rights from
+Alben replied, “Well, we're going to have to clear rights from
everyone who appears in these films, and the music and everything
-else that we want to use in these film clips.» Slade said, «Great! Go
-for it.»
+else that we want to use in these film clips.” Slade said, “Great! Go
+for it.”
The problem was that neither Alben nor Slade had any idea what
clearing those rights would mean. Every actor in each of the films
@@ -4199,7 +4199,7 @@ tale, Alben recounted just what they did:
So we very mechanically went about looking up the film clips. We made
some artistic decisions about what film clips to include—of
-course we were going to use the «Make my day» clip from Dirty
+course we were going to use the “Make my day” clip from Dirty
Harry. But you then need to get the guy on the ground who's wiggling
under the gun and you need to get his permission. And then you have
to decide what you are going to pay him.
@@ -4214,47 +4214,47 @@ movies you can't tell who's the guy crashing through the
glass—is it the actor or is it the stuntman? And then we just,
we put together a team, my assistant and some others, and we just
started calling people.
-
+
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
Others were dumbfounded at their good fortune. Alben would ask,
-«Hey, can I pay you $600 or maybe if you were in two films, you
-know, $1,200?» And they would say, «Are you for real? Hey, I'd love
-to get $1,200.» And some of course were a bit difficult (estranged
+“Hey, can I pay you $600 or maybe if you were in two films, you
+know, $1,200?” And they would say, “Are you for real? Hey, I'd love
+to get $1,200.” And some of course were a bit difficult (estranged
ex-wives, in particular). But eventually, Alben and his team had
cleared the rights to this retrospective CD-ROM on Clint Eastwood's
career.
-It was one year later—«and even then we
-weren't sure whether we were totally in the clear.»
+It was one year later—“and even then we
+weren't sure whether we were totally in the clear.”
Alben is proud of his work. The project was the first of its kind and
the only time he knew of that a team had undertaken such a massive
project for the purpose of releasing a retrospective.
Everyone thought it would be too hard. Everyone just threw up their
-hands and said, «Oh, my gosh, a film, it's so many copyrights, there's
+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
+actors.” But we just broke it down. We just put it into its
+constituent parts and said, “Okay, there's this many actors, this many
+directors, … this many musicians,” and we just went at it very
systematically and cleared the rights.
And no doubt, the product itself was exceptionally good. Eastwood
loved it, and it sold very well.
-
+
But I pressed Alben about how weird it seems that it would have to
take a year's work simply to clear rights. No doubt Alben had done
-this efficiently, but as Peter Drucker has famously quipped, «There is
+this efficiently, but as Peter Drucker has famously quipped, “There is
nothing so useless as doing efficiently that which should not be done
-at all.»
+at all.”
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,
-and the will to do this,» and thus, very few such works would ever be
+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
you would have to go clear rights for these kinds of clips?
@@ -4287,17 +4287,17 @@ cost. That's the thing that trips everybody up and makes this kind of
product hard to get off the ground. If you knew I have a hundred
minutes of film in this product and it's going to cost me X, then you
build your budget around it, and you can get investments and
-everything else that you need to produce it. But if you say, «Oh, I
+everything else that you need to produce it. But if you say, “Oh, I
want a hundred minutes of something and I have no idea what it's going
to cost me, and a certain number of people are going to hold me up for
-money,» then it becomes difficult to put one of these things together.
+money,” then it becomes difficult to put one of these things together.
Alben worked for a big company. His company was backed by some of the
richest investors in the world. He therefore had authority and access
that the average Web designer would not have. So if it took him a
year, how long would it take someone else? And how much creativity is
never made just because the costs of clearing the rights are so high?
-
+
These costs are the burdens of a kind of regulation. Put on a
Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
@@ -4307,8 +4307,8 @@ rights as he negotiates to fly from Los Angeles to San Francisco.)
These rights might well have once made sense; but as circumstances
change, they make no sense at all. Or at least, a well-trained,
regulationminimizing Republican should look at the rights and ask,
-«Does this still make sense?»
-
+“Does this still make sense?”
+
I've seen the flash of recognition when people get this point, but only
a few times. The first was at a conference of federal judges in California.
The judges were gathered to discuss the emerging topic of cyber-law. I
@@ -4322,19 +4322,19 @@ The video was a brilliant collage of film from every period in the
twentieth century, all framed around the idea of a 60 Minutes episode.
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
-
+
When the lights came up, I looked over to my copanelist, David
Nimmer, perhaps the leading copyright scholar and practitioner in the
nation. He had an astonished look on his face, as he peered across the
room of over 250 well-entertained judges. Taking an ominous tone, he
-began his talk with a question: «Do you know how many federal laws
-were just violated in this room?»
-
-
-
-
-
-
+began his talk with a question: “Do you know how many federal laws
+were just violated in this room?”
+
+
+
+
+
+
For of course, the two brilliantly talented creators who made this
film hadn't done what Alben did. They hadn't spent a year clearing the
rights to these clips; technically, what they had done violated the
@@ -4349,12 +4349,12 @@ friendly to the capacities that this technology would
enable. Technology means you can now do amazing things easily; but you
couldn't easily do them legally.
-We live in a «cut and paste» culture enabled by technology. Anyone
+We live in a “cut and paste” culture enabled by technology. Anyone
building a presentation knows the extraordinary freedom that the cut
and paste architecture of the Internet created—in a second you can
find just about any image you want; in another second, you can have it
planted in your presentation.
-
+
But presentations are just a tiny beginning. Using the Internet and
its archives, musicians are able to string together mixes of sound
@@ -4366,7 +4366,7 @@ some of the most biting criticism of the record industry that there is
through the mixing of Flash! and music.
All of these creations are technically illegal. Even if the creators
-wanted to be «legal,» the cost of complying with the law is impossibly
+wanted to be “legal,” the cost of complying with the law is impossibly
high. Therefore, for the law-abiding sorts, a wealth of creativity is
never made. And for that part that is made, if it doesn't follow the
clearance rules, it doesn't get released.
@@ -4374,13 +4374,13 @@ clearance rules, it doesn't get released.
To some, these stories suggest a solution: Let's alter the mix of
rights so that people are free to build upon our culture. Free to add
or mix as they see fit. We could even make this change without
-necessarily requiring that the «free» use be free as in «free beer.»
+necessarily requiring that the “free” use be free as in “free beer.”
Instead, the system could simply make it easy for follow-on creators
to compensate artists without requiring an army of lawyers to come
-along: a rule, for example, that says «the royalty owed the copyright
+along: a rule, for example, that says “the royalty owed the copyright
owner of an unregistered work for the derivative reuse of his work
will be a flat 1 percent of net revenues, to be held in escrow for the
-copyright owner.» Under this rule, the copyright owner could benefit
+copyright owner.” Under this rule, the copyright owner could benefit
from some royalty, but he would not have the benefit of a full
property right (meaning the right to name his own price) unless he
registers the work.
@@ -4395,20 +4395,20 @@ studios announced an agreement with Mike Myers, the comic genius of
Saturday Night Live and
Austin Powers. According to the announcement, Myers and Dream-Works
-would work together to form a «unique filmmaking pact.» Under the
-agreement, DreamWorks «will acquire the rights to existing motion
+would work together to form a “unique filmmaking pact.” Under the
+agreement, DreamWorks “will acquire the rights to existing motion
picture hits and classics, write new storylines and—with the use
of stateof-the-art digital technology—insert Myers and other
actors into the film, thereby creating an entirely new piece of
-entertainment.»
+entertainment.”
-The announcement called this «film sampling.» As Myers explained,
-«Film Sampling is an exciting way to put an original spin on existing
+The announcement called this “film sampling.” As Myers explained,
+“Film Sampling is an exciting way to put an original spin on existing
films and allow audiences to see old movies in a new light. Rap
artists have been doing this for years with music and now we are able
-to take that same concept and apply it to film.» Steven Spielberg is
-quoted as saying, «If anyone can create a way to bring old films to
-new audiences, it is Mike.»
+to take that same concept and apply it to film.” Steven Spielberg is
+quoted as saying, “If anyone can create a way to bring old films to
+new audiences, it is Mike.”
Spielberg is right. Film sampling by Myers will be brilliant. But if
you don't think about it, you might miss the truly astonishing point
@@ -4420,8 +4420,8 @@ our culture, a freedom in other contexts presumed for us all, is now a
privilege reserved for the funny and famous—and presumably rich.
This privilege becomes reserved for two sorts of reasons. The first
-continues the story of the last chapter: the vagueness of «fair use.»
-Much of «sampling» should be considered «fair use.» But few would
+continues the story of the last chapter: the vagueness of “fair use.”
+Much of “sampling” should be considered “fair use.” But few would
rely upon so weak a doctrine to create. That leads to the second reason
that the privilege is reserved for the few: The costs of negotiating the
legal rights for the creative reuse of content are astronomically high.
@@ -4430,34 +4430,34 @@ defend your fair use rights or pay a lawyer to track down permissions
so you don't have to rely upon fair use rights. Either way, the creative
process is a process of paying lawyers—again a privilege, or perhaps a
curse, reserved for the few.
-
Chapter 9. Chapter Nine: Collectors
In April 1996, millions of
-«bots»—computer codes designed to
-«spider,» or automatically search the Internet and copy
+“bots”—computer codes designed to
+“spider,” or automatically search the Internet and copy
content—began running across the Net. Page by page, these bots
copied Internet-based information onto a small set of computers
located in a basement in San Francisco's Presidio. Once the bots
finished the whole of the Internet, they started again. Over and over
again, once every two months, these bits of code took copies of the
Internet and stored them.
-
+
By October 2001, the bots had collected more than five years of
copies. And at a small announcement in Berkeley, California, the
archive that these copies created, the Internet Archive, was opened to
-the world. Using a technology called «the Way Back Machine,» you could
+the world. Using a technology called “the Way Back Machine,” you could
enter a Web page, and see all of its copies going back to 1996, as
well as when those pages changed.
@@ -4477,13 +4477,13 @@ there's no way for you to know whether the content you are reading is
the same as the content you read before. The page may seem the same,
but the content could easily be different. The Internet is Orwell's
library—constantly updated, without any reliable memory.
-
+
Until the Way Back Machine, at least. With the Way Back Machine, and
the Internet Archive underlying it, you can see what the Internet
was. You have the power to see what you remember. More importantly,
perhaps, you also have the power to find what you don't remember and
-what others might prefer you forget.
-
+what others might prefer you forget.
+
We take it for granted that we can
go back to see what we remember reading. Think about newspapers. If
you wanted to study the reaction of your hometown newspaper to the
@@ -4511,7 +4511,7 @@ important to maintain in some historical form. It's just bizarre to
think that we have scads of archives of newspapers from tiny towns
around the world, yet there is but one copy of the Internet—the
one kept by the Internet Archive.
-
+
Brewster Kahle is the founder of the Internet Archive. He was a very
successful Internet entrepreneur after he was a successful computer
researcher. In the 1990s, Kahle decided he had had enough business
@@ -4520,11 +4520,11 @@ launched a series of projects designed to archive human knowledge. The
Internet Archive was just the first of the projects of this Andrew
Carnegie of the Internet. By December of 2002, the archive had over 10
billion pages, and it was growing at about a billion pages a month.
-
+
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
-terabytes of material»—and was «ten times larger than the
-Library of Congress.» And this was just the first of the archives that
+human history. At the end of 2002, it held “two hundred and thirty
+terabytes of material”—and was “ten times larger than the
+Library of Congress.” And this was just the first of the archives that
Kahle set out to build. In addition to the Internet Archive, Kahle has
been constructing the Television Archive. Television, it turns out, is
even more ephemeral than the Internet. While much of twentieth-century
@@ -4532,11 +4532,11 @@ culture was constructed through television, only a tiny proportion of
that culture is available for anyone to see today. Three hours of news
are recorded each evening by Vanderbilt University—thanks to a
specific exemption in the copyright law. That content is indexed, and
-is available to scholars for a very low fee. «But other than that,
-[television] is almost unavailable,» Kahle told me. «If you were
+is available to scholars for a very low fee. “But other than that,
+[television] is almost unavailable,” Kahle told me. “If you were
Barbara Walters you could get access to [the archives], but if you are
-just a graduate student?» As Kahle put it,
-
+just a graduate student?” As Kahle put it,
+
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
interacting with a fictional television character? If you were a
@@ -4546,7 +4546,7 @@ 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. …
-
+
Why is that? Why is it that the part of our culture that is recorded
in newspapers remains perpetually accessible, while the part that is
recorded on videotape is not? How is it that we've created a world
@@ -4560,26 +4560,26 @@ libraries. These copies were intended both to facilitate the spread
of knowledge and to assure that a copy of the work would be around
once the copyright expired, so that others might access and copy the
work.
-
+
These rules applied to film as well. But in 1915, the Library
of Congress made an exception for film. Film could be copyrighted so
long as such deposits were made. But the filmmaker was then allowed to
borrow back the deposits—for an unlimited time at no cost. In
-1915 alone, there were more than 5,475 films deposited and «borrowed
-back.» Thus, when the copyrights to films expire, there is no copy
+1915 alone, there were more than 5,475 films deposited and “borrowed
+back.” Thus, when the copyrights to films expire, there is no copy
held by any library. The copy exists—if it exists at
-all—in the library archive of the film company.
+all—in the library archive of the film company.
The same is generally true about television. Television broadcasts
were originally not copyrighted—there was no way to capture the
-broadcasts, so there was no fear of «theft.» But as technology enabled
+broadcasts, so there was no fear of “theft.” But as technology enabled
capturing, broadcasters relied increasingly upon the law. The law
required they make a copy of each broadcast for the work to be
-«copyrighted.» But those copies were simply kept by the
+“copyrighted.” But those copies were simply kept by the
broadcasters. No library had any right to them; the government didn't
demand them. The content of this part of American culture is
practically invisible to anyone who would look.
-
+
Kahle was eager to correct this. Before September 11, 2001, he and
his allies had started capturing television. They selected twenty
@@ -4589,9 +4589,9 @@ stations from around the world and, beginning October 11, 2001, made
their coverage during the week of September 11 available free on-line.
Anyone could see how news reports from around the world covered the
events of that day.
-
+
Kahle had the same idea with film. Working with Rick Prelinger, whose
-archive of film includes close to 45,000 «ephemeral films» (meaning
+archive of film includes close to 45,000 “ephemeral films” (meaning
films other than Hollywood movies, films that were never copyrighted),
Kahle established the Movie Archive. Prelinger let Kahle digitize
1,300 films in this archive and post those films on the Internet to be
@@ -4602,7 +4602,7 @@ footage sales went up dramatically. People could easily find the
material they wanted to use. Some downloaded that material and made
films on their own. Others purchased copies to enable other films to
be made. Either way, the archive enabled access to this important
-part of our culture. Want to see a copy of the «Duck and Cover» film
+part of our culture. Want to see a copy of the “Duck and Cover” film
that instructed children how to save themselves in the middle of
nuclear attack? Go to archive.org, and you can download the film in a
few minutes—for free.
@@ -4622,7 +4622,7 @@ property, but during a second life that all creative property
has—a noncommercial life.
For here is an idea that we should more clearly recognize. Every bit
-of creative property goes through different «lives.» In its first
+of creative property goes through different “lives.” In its first
life, if the
@@ -4639,9 +4639,9 @@ day, it is used to wrap fish or to fill boxes with fragile gifts or to
build an archive of knowledge about our history. In this second life,
the content can continue to inform even if that information is no
longer sold.
-
+
The same has always been true about books. A book goes out of print
-very quickly (the average today is after about a year). After
+very quickly (the average today is after about a year). After
it is out of print, it can be sold in used book stores without the
copyright owner getting anything and stored in libraries, where many
get to read the book, also for free. Used book stores and libraries
@@ -4680,7 +4680,7 @@ The scale of this potential archive is something we've never imagined
before. The Brewster Kahles of our history have dreamed about it; but
we are for the first time at a point where that dream is possible. As
Kahle describes,
-
+
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
movies, … and about one to two million movies [distributed] during
@@ -4692,7 +4692,7 @@ opportunity of leading a different life, based on this, is
… thrilling. It could be one of the things humankind would be most
proud of. Up there with the Library of Alexandria, putting a man on
the moon, and the invention of the printing press.
-
+
Kahle is not the only librarian. The Internet Archive is not the only
archive. But Kahle and the Internet Archive suggest what the future of
libraries or archives could be. When the
@@ -4709,36 +4709,37 @@ arts could make the dream of the Library of Alexandria real again.
Technologists have thus removed the economic costs of building such an
archive. But lawyers' costs remain. For as much as we might like to
-call these «archives,» as warm as the idea of a «library» might seem,
-the «content» that is collected in these digital spaces is also
-someone's «property.» And the law of property restricts the freedoms
+call these “archives,” as warm as the idea of a “library” might seem,
+the “content” that is collected in these digital spaces is also
+someone's “property.” And the law of property restricts the freedoms
that Kahle and others would exercise.
-
Chapter 10. Chapter Ten: “Property”
Jack Valenti has been the president
of the Motion Picture Association of America since 1966. He first came
to Washington, D.C., with Lyndon Johnson's
@@ -4747,7 +4748,7 @@ swearing-in on Air Force One after the assassination of President
Kennedy has Valenti in the background. In his almost forty years of
running the MPAA, Valenti has established himself as perhaps the most
prominent and effective lobbyist in Washington.
-
+
The MPAA is the American branch of the international Motion Picture
Association. It was formed in 1922 as a trade association whose goal
was to defend American movies against increasing domestic criticism.
@@ -4777,7 +4778,7 @@ the MPAA rating system, it has probably avoided a great deal of
speech-regulating harm. But there is an aspect to the organization's
mission that is both the most radical and the most important. This is
the organization's effort, epitomized in Valenti's every act, to
-redefine the meaning of «creative property.»
+redefine the meaning of “creative property.”
In 1982, Valenti's testimony to Congress captured the strategy
perfectly:
@@ -4789,15 +4790,15 @@ theme which animates this entire debate: Creative pro
owners must be accorded the same rights and protection resident in all
other property owners in the nation. That is the issue.
That is the question. And that is the rostrum on which this entire
-hearing and the debates to follow must rest.
+hearing and the debates to follow must rest.
The strategy of this rhetoric, like the strategy of most of Valenti's
rhetoric, is brilliant and simple and brilliant because simple. The
-«central theme» to which «reasonable men and women» will return is
+“central theme” to which “reasonable men and women” will return is
this:
-«Creative property owners must be accorded the same rights and
-protections resident in all other property owners in the nation.»
+“Creative property owners must be accorded the same rights and
+protections resident in all other property owners in the nation.”
There are no second-class citizens, Valenti might have
continued. There should be no second-class property owners.
@@ -4807,15 +4808,15 @@ use elections to pick presidents. But in fact, there is no more
extreme a claim made by anyone who is serious in
this debate than this claim of Valenti's. Jack Valenti, however sweet
and however brilliant, is perhaps the nation's foremost extremist when
-it comes to the nature and scope of «creative property.» His views
+it comes to the nature and scope of “creative property.” His views
have no reasonable connection to our actual legal
tradition, even if the subtle pull of his Texan charm has slowly
redefined that tradition, at least in Washington.
-
-While «creative property» is certainly «property» in a nerdy and
-precise sense that lawyers are trained to understand, it has never been the case, nor should it be, that
-«creative property owners» have been «accorded the same rights and
-protection resident in all other property owners.» Indeed, if creative
+
+While “creative property” is certainly “property” in a nerdy and
+precise sense that lawyers are trained to understand, it has never been the case, nor should it be, that
+“creative property owners” have been “accorded the same rights and
+protection resident in all other property owners.” Indeed, if creative
property owners were given the same rights as all other property
owners, that would effect a radical, and radically undesirable, change
in our tradition.
@@ -4853,28 +4854,28 @@ precisely the opportunity for new creativity to threaten the old.
something fundamentally wrong in Valenti's argument, we need look no
further than the United States Constitution itself.
-The framers of our Constitution loved «property.» Indeed, so strongly
+The framers of our Constitution loved “property.” Indeed, so strongly
did they love property that they built into the Constitution an
important requirement. If the government takes your property—if
it condemns your house, or acquires a slice of land from your
-farm—it is required, under the Fifth Amendment's «Takings
-Clause,» to pay you «just compensation» for that taking. The
+farm—it is required, under the Fifth Amendment's “Takings
+Clause,” to pay you “just compensation” for that taking. The
Constitution thus guarantees that property is, in a certain sense,
sacred. It cannot ever be taken from the property
owner unless the government pays for the privilege.
Yet the very same Constitution speaks very differently about what
-Valenti calls «creative property.» In the clause granting Congress the
-power to create «creative property,» the Constitution
-requires that after a «limited time,» Congress
-take back the rights that it has granted and set the «creative
-property» free to the public domain. Yet when Congress does this, when
-the expiration of a copyright term «takes» your copyright and turns it
+Valenti calls “creative property.” In the clause granting Congress the
+power to create “creative property,” the Constitution
+requires that after a “limited time,” Congress
+take back the rights that it has granted and set the “creative
+property” free to the public domain. Yet when Congress does this, when
+the expiration of a copyright term “takes” your copyright and turns it
over to the public domain, Congress does not have any obligation to
-pay «just compensation» for this «taking.» Instead, the same
+pay “just compensation” for this “taking.” Instead, the same
Constitution that requires compensation for your land
-requires that you lose your «creative property» right without any
+requires that you lose your “creative property” right without any
compensation at all.
The Constitution thus on its face states that these two forms of
@@ -4902,9 +4903,9 @@ fanatical property types that they were, reject the claim that
creative property be given the same rights as all other property? Why
did they require that for creative property there must be a public
domain?
-
+
To answer this question, we need to get some perspective on the
-history of these «creative property» rights, and the control that they
+history of these “creative property” rights, and the control that they
enabled. Once we see clearly how differently these rights have been
defined, we will be in a better position to ask the question that
should be at the core of this war: Not whether
@@ -4914,7 +4915,7 @@ to creative-property owners, but what the particular mix of rights
ought to be. Not whether artists should be paid,
but whether institutions designed to assure that artists get paid need
also control how culture develops.
-
+
To answer these questions, we need a more general way to talk about
@@ -4924,7 +4925,7 @@ Cyberspace, I used a simple model to capture this more general
perspective. For any particular right or regulation, this model asks
how four different modalities of regulation interact to support or
weaken the right or regulation. I represented it with this diagram:
-
+
At the center of this picture is a regulated dot: the individual or
group that is the target of regulation, or the holder of a right. (In
each case throughout, we can describe this either as regulation or as
@@ -4939,8 +4940,8 @@ Web, you can be punished
with a $150,000 fine. The fine is an ex post punishment for violating
an ex ante rule. It is imposed by the state.
-
-
+
+
Norms are a different kind of constraint. They, too, punish an
individual for violating a rule. But the punishment of a norm is
imposed by a community, not (or not only) by the state. There may be
@@ -4959,9 +4960,9 @@ is to be taken legally; it is norms that say what is appropriately
sold. But given a set of norms, and a background of property and
contract law, the market imposes a simultaneous constraint upon how an
individual or group might behave.
-
+
Finally, and for the moment, perhaps, most mysteriously,
-«architecture»—the physical world as one finds it—is a
+“architecture”—the physical world as one finds it—is a
constraint on behavior. A fallen bridge might constrain your ability
to get across a river. Railroad tracks might constrain the ability of
a community to integrate its social life. As with the market,
@@ -4969,11 +4970,11 @@ architecture does not effect its constraint through ex post
punishments. Instead, also as with the market, architecture effects
its constraint through simultaneous conditions. These conditions are
imposed not by courts enforcing contracts, or by police punishing
-theft, but by nature, by «architecture.» If a 500-pound boulder
+theft, but by nature, by “architecture.” If a 500-pound boulder
blocks your way, it is the law of gravity that enforces this
constraint. If a $500 airplane ticket stands between you and a flight
to New York, it is the market that enforces this constraint.
-
+
So the first point about these four modalities of regulation is
@@ -4988,8 +4989,8 @@ interact. Whether or not there are other constraints (there may well
be; my claim is not about comprehensiveness), these four are among the
most significant, and any regulator (whether controlling or freeing)
must consider how these four in particular interact.
-
-So, for example, consider the «freedom» to drive a car at a high
+
+So, for example, consider the “freedom” to drive a car at a high
speed. That freedom is in part restricted by laws: speed limits that
say how fast you can drive in particular places at particular
times. It is in part restricted by architecture: speed bumps, for
@@ -5004,7 +5005,7 @@ same norm wouldn't be as effective in a different town, or at night.
The final point about this simple model should also be fairly clear:
While these four modalities are analytically independent, law has a
-special role in affecting the three.
+special role in affecting the three.
The law, in other words, sometimes operates to increase or decrease
the constraint of a particular modality. Thus, the law might be used
to increase taxes on gasoline, so as to increase the incentives to
@@ -5016,14 +5017,14 @@ used to require that other laws be more
strict—a federal requirement that states decrease the speed
limit, for example—so as to decrease the attractiveness of fast
driving.
-
+
These constraints can thus change, and they can be changed. To
understand the effective protection of liberty or protection of
property at any particular moment, we must track these changes over
time. A restriction imposed by one modality might be erased by
another. A freedom enabled by one modality might be displaced by
-another.
-
10.1. Why Hollywood Is Right
+another.
+
10.1. Why Hollywood Is Right
The most obvious point that this model reveals is just why, or just
how, Hollywood is right. The copyright warriors have rallied Congress
and the courts to defend copyright. This model helps us see why that
@@ -5031,7 +5032,7 @@ rallying makes sense.
Let's say this is the picture of copyright's regulation before the
Internet:
-
+
There is balance between law, norms, market, and architecture. The law
limits the ability to copy and share content, by imposing penalties on
@@ -5043,14 +5044,14 @@ recognize—kids, for example, taping other kids' records. These
uses of copyrighted material may well be infringement, but the norms
of our society (before the Internet, at least) had no problem with
this form of infringement.
-
+
Enter the Internet, or, more precisely, technologies such as MP3s and
p2p sharing. Now the constraint of architecture changes dramatically,
as does the constraint of the market. And as both the market and
architecture relax the regulation of copyright, norms pile on. The
happy balance (for the warriors, at least) of life before the Internet
becomes an effective state of anarchy after the Internet.
-
+
Thus the sense of, and justification for, the warriors' response.
Technology has changed, the warriors say, and the effect of this
change, when ramified through the market and norms, is that a balance
@@ -5059,9 +5060,9 @@ Iraq
after the fall of Saddam, but this time no government is justifying the
looting that results.
-
+
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a «White Paper» prepared by the Commerce
+warriors. Indeed, in a “White Paper” prepared by the Commerce
Department (one heavily influenced by the copyright warriors) in 1995,
this mix of regulatory modalities had already been identified and the
strategy to respond already mapped. In response to the changes the
@@ -5070,7 +5071,7 @@ strengthen intellectual property law, (2) businesses should adopt
innovative marketing techniques, (3) technologists should push to
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
-
+
This mixed strategy is just what copyright needed—if it was to
preserve the particular balance that existed before the change induced
by the Internet. And it's just what we should expect the content
@@ -5086,34 +5087,34 @@ property (law). Farmers have no hesitation appealing to the government
to bail them out when a virus (architecture) devastates their
crop. Unions have no hesitation appealing to the government to bail
them out when imports (market) wipe out the U.S. steel industry.
-
+
Thus, there's nothing wrong or surprising in the content industry's
campaign to protect itself from the harmful consequences of a
technological innovation. And I would be the last person to argue that
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.»
-
+Brown describes it, its “architecture of revenue.”
+
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
technology has weakened a particular way of doing business, it doesn't
follow that the government should intervene to support that old way of
doing business. Kodak, for example, has lost perhaps as much as 20
percent of their traditional film market to the emerging technologies
-of digital cameras.
+of digital cameras.
Does anyone believe the government should ban digital cameras just to
support Kodak? Highways have weakened the freight business for
railroads. Does anyone think we should ban trucks from roads
for the purpose of protecting the railroads?
Closer to the subject of this book, remote channel changers have
-weakened the «stickiness» of television advertising (if a boring
+weakened the “stickiness” of television advertising (if a boring
commercial comes on the TV, the remote makes it easy to surf), and it
may well be that this change has weakened the television advertising
market. But does anyone believe we should regulate remotes to
reinforce commercial television? (Maybe by limiting them to function
only once a second, or to switch to only ten channels within an hour?)
-
+
The obvious answer to these obviously rhetorical questions is no.
In a free society, with a free market, supported by free enterprise and
free trade, the government's role is not to support one way of doing
@@ -5121,8 +5122,8 @@ free trade, the government's role is not to support one way of doing
business against others. Its role is not to pick winners and protect
them against loss. If the government did this generally, then we would
never have any progress. As Microsoft chairman Bill Gates wrote in
-1991, in a memo criticizing software patents, «established companies
-have an interest in excluding future competitors.»
+1991, in a memo criticizing software patents, “established companies
+have an interest in excluding future competitors.”
And relative to a
startup, established companies also have the means. (Think RCA and
FM radio.) A world in which competitors with new ideas must fight
@@ -5139,7 +5140,7 @@ is the duty of policy makers, in other words, to assure that the
changes they create, in response to the request of those hurt by
changing technology, are changes that preserve the incentives and
opportunities for innovation and change.
-
+
In the context of laws regulating speech—which include,
obviously, copyright law—that duty is even stronger. When the
industry complaining about changing technologies is asking Congress to
@@ -5147,16 +5148,16 @@ respond in a way that burdens speech and creativity, policy makers
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
-Congress is being asked to pass laws that would «abridge» the freedom
+framers created the First Amendment to our Constitution: “Congress
+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.
-
+
My argument just now, however, has nothing to do with whether
the changes that are being pushed by the copyright warriors are
-«justified.» My argument is about their effect. For before we get to
+“justified.” My argument is about their effect. For before we get to
the question of justification, a hard question that depends a great
deal upon your values, we should first ask whether we understand the
effect of the changes the content industry wants.
@@ -5172,7 +5173,7 @@ pests. It was also used to increase farm production.
No one doubts that killing disease-carrying pests or increasing crop
production is a good thing. No one doubts that the work of Müller was
important and valuable and probably saved lives, possibly millions.
-
+
But in 1962, Rachel Carson published Silent Spring, which argued that
DDT, whatever its primary benefits, was also having unintended
environmental consequences. Birds were losing the ability to
@@ -5185,14 +5186,14 @@ the problems that were originally attacked. Or more accurately, the
problems DDT caused were worse than the problems it solved, at least
when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
-
+
It is to this image precisely that Duke University law professor James
-Boyle appeals when he argues that we need an «environmentalism» for
-culture.
+Boyle appeals when he argues that we need an “environmentalism” for
+culture.
His point, and the point I want to develop in the balance of this
chapter, is not that the aims of copyright are flawed. Or that authors
should not be paid for their work. Or that music should be given away
-«for free.» The point is that some of the ways in which we might
+“for free.” The point is that some of the ways in which we might
protect authors will have unintended consequences for the cultural
environment, much like DDT had for the natural environment. And just
@@ -5201,7 +5202,7 @@ farmers, so, too, is criticism of one particular set of regulations
protecting copyright not an endorsement of anarchy or an attack on
authors. It is an environment of creativity that we seek, and we
should be aware of our actions' effects on the environment.
-
+
My argument, in the balance of this chapter, tries to map exactly
this effect. No doubt the technology of the Internet has had a dramatic
effect on the ability of copyright owners to protect their content. But
@@ -5211,32 +5212,31 @@ the Internet is undergoing just now, the net effect of these changes will
not be only that copyrighted work is effectively protected. Also, and
generally missed, the net effect of this massive increase in protection
will be devastating to the environment for creativity.
-
+
In a line: To kill a gnat, we are spraying DDT with consequences
for free culture that will be far more devastating than that this gnat will
be lost.
-
America copied English copyright law. Actually, we copied and improved
-English copyright law. Our Constitution makes the purpose of «creative
-property» rights clear; its express limitations reinforce the English
+English copyright law. Our Constitution makes the purpose of “creative
+property” rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
-The power to establish «creative property» rights is granted to
+The power to establish “creative property” rights is granted to
Congress in a way that, for our Constitution, at least, is very
odd. Article I, section 8, clause 8 of our Constitution states that:
-
+
Congress has the power to promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries.
-
-
-We can call this the «Progress Clause,» for notice what this clause
+
+We can call this the “Progress Clause,” for notice what this clause
does not say. It does not say Congress has the power to grant
-«creative property rights.» It says that Congress has the power
+“creative property rights.” It says that Congress has the power
to promote progress. The grant of power is its
purpose, and its purpose is a public one, not the purpose of enriching
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
@@ -5244,8 +5244,8 @@ 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.
-
+copyrights extend “to Authors” only.
+
The design of the Progress Clause reflects something about the
Constitution's design in general. To avoid a problem, the framers
built structure. To prevent the concentrated power of publishers, they
@@ -5259,37 +5259,37 @@ college, also selected by the states, to select the president. In each
case, a structure built checks and balances into
the constitutional frame, structured to prevent otherwise inevitable
concentrations of power.
-
-I doubt the framers would recognize the regulation we call «copyright»
+
+I doubt the framers would recognize the regulation we call “copyright”
today. The scope of that regulation is far beyond anything they ever
considered. To begin to understand what they did, we need to put our
-«copyright» in context: We need to see how it has changed in the 210
+“copyright” in context: We need to see how it has changed in the 210
years since they first struck its design.
-
+
Some of these changes come from the law: some in light of changes
in technology, and some in light of changes in technology given a
particular concentration of market power. In terms of our model, we
started here:
-
+
We will end here:
-
+
Let me explain how.
-
When the first Congress enacted laws to protect creative property, it
faced the same uncertainty about the status of creative property that
the English had confronted in 1774. Many states had passed laws
protecting creative property, and some believed that these laws simply
supplemented common law rights that already protected creative
-authorship.
+authorship.
This meant that there was no guaranteed public domain in the United
States in 1790. If copyrights were protected by the common law, then
there was no simple way to know whether a work published in the United
States was controlled or free. Just as in England, this lingering
uncertainty would make it hard for publishers to rely upon a public
domain to reprint and distribute works.
-
+
That uncertainty ended after Congress passed legislation granting
copyrights. Because federal law overrides any contrary state law,
federal protections for copyrighted works displaced any state law
@@ -5302,15 +5302,15 @@ federal copyright and secured that copyright for fourteen years. If
the author was alive at the end of that fourteen years, then he could
opt to renew the copyright for another fourteen years. If he did not
renew the copyright, his work passed into the public domain.
-
+
While there were many works created in the United States in the first
ten years of the Republic, only 5 percent of the works were actually
registered under the federal copyright regime. Of all the work created
in the United States both before 1790 and from 1790 through 1800, 95
percent immediately passed into the public domain; the balance would
pass into the pubic domain within twenty-eight years at most, and more
-likely within fourteen years.
-
+likely within fourteen years.
+
This system of renewal was a crucial part of the American system
of copyright. It assured that the maximum terms of copyright would be
@@ -5323,11 +5323,11 @@ Fourteen years may not seem long to us, but for the vast majority of
copyright owners at that time, it was long enough: Only a small
minority of them renewed their copyright after fourteen years; the
balance allowed their work to pass into the public
-domain.
-
+domain.
+
Even today, this structure would make sense. Most creative work
has an actual commercial life of just a couple of years. Most books fall
-out of print after one year. When that happens, the
+out of print after one year. When that happens, the
used books are traded free of copyright regulation. Thus the books are
no longer effectively controlled by
copyright. The only practical commercial use of the books at that time
@@ -5340,7 +5340,7 @@ years to a maximum of 42 by increasing the initial term of copyright
from 14 years to 28 years. In the next fifty years of the Republic,
the term increased once again. In 1909, Congress extended the renewal
term of 14 years to 28 years, setting a maximum term of 56 years.
-
+
Then, beginning in 1962, Congress started a practice that has defined
copyright law since. Eleven times in the last forty years, Congress
has extended the terms of existing copyrights; twice in those forty
@@ -5349,7 +5349,7 @@ extensions of existing copyrights were short, a mere one to two years.
In 1976, Congress extended all existing copyrights by nineteen years.
And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
extended the term of existing and future copyrights by twenty years.
-
+
The effect of these extensions is simply to toll, or delay, the passing
of works into the public domain. This latest extension means that the
public domain will have been tolled for thirty-nine out of fifty-five
@@ -5359,7 +5359,7 @@ years, or 70 percent of the time since 1962. Thus, in the twenty years
after the Sonny Bono Act, while one million patents will pass into the
public domain, zero copyrights will pass into the public domain by virtue
of the expiration of a copyright term.
-
+
The effect of these extensions has been exacerbated by another,
little-noticed change in the copyright law. Remember I said that the
framers established a two-part copyright regime, requiring a copyright
@@ -5368,10 +5368,10 @@ renewal meant that works that no longer needed copyright protection
would pass more quickly into the public domain. The works remaining
under protection would be those that had some continuing commercial
value.
-
+
The United States abandoned this sensible system in 1976. For
all works created after 1978, there was only one copyright term—the
-maximum term. For «natural» authors, that term was life plus fifty
+maximum term. For “natural” authors, that term was life plus fifty
years. For corporations, the term was seventy-five years. Then, in 1992,
Congress abandoned the renewal requirement for all works created
before 1978. All works still under copyright would be accorded the
@@ -5383,30 +5383,30 @@ assure that works that were no longer exploited passed into the public
domain. And indeed, after these changes, it is unclear whether it is
even possible to put works into the public domain. The public domain
is orphaned by these changes in copyright law. Despite the requirement
-that terms be «limited,» we have no evidence that anything will limit
+that terms be “limited,” we have no evidence that anything will limit
them.
-
+
The effect of these changes on the average duration of copyright is
dramatic. In 1973, more than 85 percent of copyright owners failed to
renew their copyright. That meant that the average term of copyright
in 1973 was just 32.2 years. Because of the elimination of the renewal
requirement, the average term of copyright is now the maximum term.
In thirty years, then, the average term has tripled, from 32.2 years to 95
-years.
-
-The «scope» of a copyright is the range of rights granted by the law.
+years.
+
+The “scope” of a copyright is the range of rights granted by the law.
The scope of American copyright has changed dramatically. Those
changes are not necessarily bad. But we should understand the extent
of the changes if we're to keep this debate in context.
-
-In 1790, that scope was very narrow. Copyright covered only «maps,
-charts, and books.» That means it didn't cover, for example, music or
+
+In 1790, that scope was very narrow. Copyright covered only “maps,
+charts, and books.” That means it didn't cover, for example, music or
architecture. More significantly, the right granted by a copyright gave
-the author the exclusive right to «publish» copyrighted works. That
+the author the exclusive right to “publish” copyrighted works. That
means someone else violated the copyright only if he republished the
work without the copyright owner's permission. Finally, the right granted
by a copyright was an exclusive right to that particular book. The right
-did not extend to what lawyers call «derivative works.» It would not,
+did not extend to what lawyers call “derivative works.” It would not,
therefore, interfere with the right of someone other than the author to
translate a copyrighted book, or to adapt the story to a different form
(such as a drama based on a published book).
@@ -5416,11 +5416,11 @@ today are extremely hard to describe simply, in general terms, the
right covers practically any creative work that is reduced to a
tangible form. It covers music as well as architecture, drama as well
as computer programs. It gives the copyright owner of that creative
-work not only the exclusive right to «publish» the work, but also the
-exclusive right of control over any «copies» of that work. And most
+work not only the exclusive right to “publish” the work, but also the
+exclusive right of control over any “copies” of that work. And most
significant for our purposes here, the right gives the copyright owner
control over not only his or her particular work, but also any
-«derivative work» that might grow out of the original work. In this
+“derivative work” that might grow out of the original work. In this
way, the right covers more creative work, protects the creative work
more broadly, and protects works that are based in a significant way
on the initial creative work.
@@ -5437,7 +5437,7 @@ famous
of the history of American copyright law, there was a requirement that
works be deposited with the government before a copyright could be
secured.
-
+
The reason for the registration requirement was the sensible
understanding that for most works, no copyright was required. Again,
in the first ten years of the Republic, 95 percent of works eligible
@@ -5450,14 +5450,14 @@ being claimed. The requirement that works be deposited was to assure
that after the copyright expired, there would be a copy of the work
somewhere so that it could be copied by others without locating the
original author.
-
-All of these «formalities» were abolished in the American system when
+
+All of these “formalities” were abolished in the American system when
we decided to follow European copyright law. There is no requirement
that you register a work to get a copyright; the copyright now is
automatic; the copyright exists whether or not you mark your work with
a ©; and the copyright exists whether or not you actually make a
copy available for others to copy.
-
+
Consider a practical example to understand the scope of these
differences.
@@ -5466,7 +5466,7 @@ actually copyrighted that book, then the copyright law protected you
against another publisher's taking your book and republishing it
without your permission. The aim of the act was to regulate publishers
so as to prevent that kind of unfair competition. In 1790, there were
-174 publishers in the United States.
+174 publishers in the United States.
The Copyright Act was thus a tiny
regulation of a tiny proportion of a tiny part of the creative market in
the United States—publishers.
@@ -5479,7 +5479,7 @@ a play based upon it, or if I translated it or abridged it, none of
those activities were regulated by the original copyright act. These
creative activities remained free, while the activities of publishers
were restrained.
-
+
Today the story is very different: If you write a book, your book is
automatically protected. Indeed, not just your book. Every e-mail,
every note to your spouse, every doodle, every
@@ -5495,8 +5495,8 @@ copy it to republish it or to share an excerpt.
That much is the obvious part. Any system of copyright would
control
competing publishing. But there's a second part to the copyright of
-today that is not at all obvious. This is the protection of «derivative
-rights.» If you write a book, no one can make a movie out of your
+today that is not at all obvious. This is the protection of “derivative
+rights.” If you write a book, no one can make a movie out of your
book without permission. No one can translate it without permission.
CliffsNotes can't make an abridgment unless permission is granted. All
of these derivative uses of your original work are controlled by the
@@ -5504,7 +5504,7 @@ copyright holder. The copyright, in other words, is now not just an
exclusive
right to your writings, but an exclusive right to your writings
and a large proportion of the writings inspired by them.
-
+
It is this derivative right that would seem most bizarre to our
framers, though it has become second nature to us. Initially, this
expansion
@@ -5524,7 +5524,7 @@ and selling someone else's work. But whatever
that wrong is, transforming someone else's work
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.
+not protect derivative rights at all.
Whether or not you go that far, it seems
plain that whatever wrong is involved is fundamentally different from
the wrong of direct piracy.
@@ -5532,13 +5532,13 @@ the wrong of direct piracy.
Yet copyright law treats these two different wrongs in the same way. I
can go to court and get an injunction against your pirating my book. I
can go to court and get an injunction against your transformative use
-of my book.
+of my book.
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
+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?
@@ -5546,17 +5546,17 @@ 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.
-
10.5. Law and Architecture: Reach
+
10.5. Law and Architecture: Reach
Whereas originally the law regulated only publishers, the change in
copyright's scope means that the law today regulates publishers, users,
and authors. It regulates them because all three are capable of making
-copies, and the core of the regulation of copyright law is copies.
-
+copies, and the core of the regulation of copyright law is copies.
+
-«Copies.» That certainly sounds like the obvious thing for
+“Copies.” That certainly sounds like the obvious thing for
copyright law to regulate. But as with Jack
-Valenti's argument at the start of this chapter, that «creative
-property» deserves the «same rights» as all other property, it is the
+Valenti's argument at the start of this chapter, that “creative
+property” deserves the “same rights” as all other property, it is the
obvious that we need to be most careful
about. For while it may be obvious that in the world before the
Internet, copies were the obvious trigger for copyright law, upon
@@ -5564,15 +5564,15 @@ reflection, it should be obvious that in the world with the Internet,
copies should not be the trigger for copyright
law. More precisely, they should not always be
the trigger for copyright law.
-
+
This is perhaps the central claim of this book, so let me take this
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,
+the law of copyright automatically applies,
because it is clear that the
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
empty circle.
@@ -5595,26 +5595,26 @@ is therefore regulated by copyright law. Indeed, this particular use stands
at the core of this circle of possible uses of a copyrighted work. It is the
paradigmatic use properly regulated by copyright regulation (see
diagram in figure 10.9).
-
+
Finally, there is a tiny sliver of otherwise regulated copying uses
-that remain unregulated because the law considers these «fair uses.»
-
+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»
+but the law denies the owner any exclusive right over such “fair uses”
for public policy (and possibly First Amendment) reasons.
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.
-
+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.
+of a copyrighted work produces a copy.
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
@@ -5625,7 +5625,7 @@ 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
Internet, if you purchased a book and read it ten times, there would
be no plausible copyright-related argument that
@@ -5664,7 +5664,7 @@ Second, this shift is especially troubling in the context of
transformative uses of creative content. Again, we can all understand
the wrong in commercial piracy. But the law now purports to regulate
any transformation you make of creative work
-using a machine. «Copy and paste» and «cut and paste» become
+using a machine. “Copy and paste” and “cut and paste” become
crimes. Tinkering with a story and releasing it to others exposes the
tinkerer to at least a requirement of justification. However
troubling the expansion with respect to copying a particular work, it
@@ -5674,7 +5674,7 @@ 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
+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
@@ -5683,7 +5683,7 @@ 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
free culture. We have been cornered into arguing that our rights
depend upon fair use—never even addressing the earlier question
@@ -5692,21 +5692,21 @@ grounded in fair use makes sense when the vast majority of uses are
unregulated. But when everything becomes
presumptively regulated, then the protections of fair use are not
enough.
-
+
The case of Video Pipeline is a good example. Video Pipeline was
-in the business of making «trailer» advertisements for movies available
+in the business of making “trailer” advertisements for movies available
to video stores. The video stores displayed the trailers as a way to sell
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»
+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
+“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
that it intended to distribute the trailers through the Internet
(rather than sending the tapes) to distributors of their videos. Two
@@ -5717,13 +5717,13 @@ 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
+“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
+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
@@ -5737,12 +5737,12 @@ in court was that the stores were allowed to sell the films and they were
permitted to list the titles of the films they were selling, but they were
not allowed to show clips of the films as a way of selling them without
Disney's permission.
-
+
Now, you might think this is a close case, and I think the courts
would consider it a close case. My point here is to map the change
that gives Disney this power. Before the Internet, Disney couldn't
really control how people got access to their content. Once a video
-was in the marketplace, the «first-sale doctrine» would free the
+was in the marketplace, the “first-sale doctrine” would free the
seller to use the video as he wished, including showing portions of it
in order to engender sales of the entire movie video. But with the
Internet, it becomes possible for Disney to centralize control over
@@ -5750,7 +5750,7 @@ access to this content. Because each use of the Internet produces a
copy, use on the Internet becomes subject to the copyright owner's
control. The technology expands the scope of effective control,
because the technology builds a copy into every transaction.
-
+
No doubt, a potential is not yet an abuse, and so the potential for
control is not yet the abuse of control. Barnes & Noble has the
@@ -5777,25 +5777,25 @@ The disappearance of unregulated uses would be change enough, but a
second important change brought about by the Internet magnifies its
significance. This second change does not affect the reach of copyright
regulation; it affects how such regulation is enforced.
-
+
In the world before digital technology, it was generally the law that
controlled whether and how someone was regulated by copyright law.
The law, meaning a court, meaning a judge: In the end, it was a human,
trained in the tradition of the law and cognizant of the balances that
tradition embraced, who said whether and how the law would restrict
your freedom.
-
+
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.
+plan.
This led the Marx Brothers to respond in kind. They warned
-Warner Brothers that the Marx Brothers «were brothers long before
-you were.»
+Warner Brothers that the Marx Brothers “were brothers long before
+you were.”
The Marx Brothers therefore owned the word
brothers, and if Warner Brothers insisted on
trying to control Casablanca, then the Marx
@@ -5805,7 +5805,7 @@ An absurd and hollow threat, of course, because Warner Brothers,
like the Marx Brothers, knew that no court would ever enforce such a
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
@@ -5814,7 +5814,7 @@ 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.
-
+
Consider the life of my Adobe eBook Reader.
An e-book is a book delivered in electronic form. An Adobe eBook is
@@ -5849,14 +5849,14 @@ I've copied no text to the clipboard.) I also have the permission to
print ten pages from the book every ten days. Lastly, I have the
permission to use the Read Aloud button to hear Middlemarch
read aloud through the computer.
-
+
Here's the e-book for another work in the public domain (including the
translation): Aristotle's Politics.
According to its permissions, no printing or copying is permitted
at all. But fortunately, you can use the Read Aloud button to hear
the book.
-
+
Finally (and most embarrassingly), here are the permissions for the
original e-book version of my last book, The Future of
Ideas:
@@ -5864,11 +5864,11 @@ Ideas:
No copying, no printing, and don't you dare try to listen to this book!
Now, the Adobe eBook Reader calls these controls
-«permissions»— as if the publisher has the power to control how
+“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.
+power.
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
@@ -5876,9 +5876,9 @@ 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
-within which the e-book «lives.» Though the e-book says that these are
-permissions, they are not the sort of «permissions» that most of us
-deal with. When a teenager gets «permission» to stay out till
+within which the e-book “lives.” Though the e-book says that these are
+permissions, they are not the sort of “permissions” that most of us
+deal with. When a teenager gets “permission” to stay out till
midnight, she knows (unless she's Cinderella) that she can stay out
till 2 A.M., but will suffer a punishment if she's caught. But when
the Adobe eBook Reader says I have the permission to make ten copies
@@ -5890,11 +5890,11 @@ says that you can't use the Read Aloud button to read my book
aloud—it's not that the company will sue you if you do; instead,
if you push the Read Aloud button with my book, the machine simply
won't read aloud.
-
+
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
+you tried to type “Warner Brothers,” erased “Brothers” from the
sentence.
This is the future of copyright law: not so much copyright
@@ -5923,7 +5923,7 @@ following report:
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»!
+“permissions” indicated, not allowed to “read aloud”!
The public relations nightmare attached to that final permission.
For the text did not say that you were not permitted to use the Read
@@ -5943,18 +5943,18 @@ protection built into an Adobe eBook so that a blind person, say,
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
content with incentives for companies to innovate. But Adobe's
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.
-Consider the robotic dog made by Sony named «Aibo.» The Aibo
+Consider the robotic dog made by Sony named “Aibo.” The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
and that doesn't leave that much of a mess (at least in your house).
@@ -5966,13 +5966,13 @@ 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.
-«Teach» here has a special meaning. Aibos are just cute computers.
+“Teach” here has a special meaning. Aibos are just cute computers.
You teach a computer how to do something by programming it
differently. So to say that aibopet.com was giving information about
how to teach the dog to do new tricks is just to say that aibopet.com
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).
-
+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
@@ -5981,7 +5981,7 @@ 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
+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.
@@ -5997,7 +5997,7 @@ and offered to the world a bit of code that would enable the Aibo to
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,
is it permissible for a dog to dance jazz in the United States? We
@@ -6012,7 +6012,7 @@ go on here) to teach your robot dog to dance jazz. Dancing jazz is a
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?
-
+
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
named Ed Felten prepared for a conference. This Princeton academic
@@ -6023,7 +6023,7 @@ brilliance and his coolness. Under heavy badgering by Microsoft
lawyers, Ed Felten stood his ground. He was not about to be bullied
into being silent about something he knew very well.
-But Felten's bravery was really tested in April 2001.
+But Felten's bravery was really tested in April 2001.
He and a group of colleagues were working on a paper to be submitted
at conference. The paper was intended to describe the weakness in an
encryption system being developed by the Secure Digital Music
@@ -6033,8 +6033,8 @@ The SDMI coalition had as its goal a technology to enable content
owners to exercise much better control over their content than the
Internet, as it originally stood, granted them. Using encryption, SDMI
hoped to develop a standard that would allow the content owner to say
-«this music cannot be copied,» and have a computer respect that
-command. The technology was to be part of a «trusted system» of
+“this music cannot be copied,” and have a computer respect that
+command. The technology was to be part of a “trusted system” of
control that would get content owners to trust the system of the
Internet much more.
@@ -6071,7 +6071,7 @@ wrote:
Your site contains information providing the means to circumvent
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
from an RIAA lawyer that read:
@@ -6080,7 +6080,7 @@ Any disclosure of information gained from participating in the
Public Challenge would be outside the scope of activities permitted by
the Agreement and could subject you and your research team to actions
-under the Digital Millennium Copyright Act («DMCA»).
+under the Digital Millennium Copyright Act (“DMCA”).
In both cases, this weirdly Orwellian law was invoked to control the
spread of information. The Digital Millennium Copyright Act made
@@ -6109,7 +6109,7 @@ devices that were designed to circumvent copyright protection
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.
-
+
Aibopet.com and Felten make the point. The Aibo hack circumvented a
copyright protection system for the purpose of enabling the dog to
dance jazz. That enablement no doubt involved the use of copyrighted
@@ -6127,31 +6127,31 @@ copyright protection system could be circumvented, the RIAA lawyer
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.
-
+
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,»
+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.
-
+
Some public stations, as well as commercial stations, program the
-«Neighborhood» at hours when some children cannot use it. I think that
+“Neighborhood” at hours when some children cannot use it. I think that
it's a real service to families to be able to record such programs and
show them at appropriate times. I have always felt that with the
advent of all of this new technology that allows people to tape the
-«Neighborhood» off-the-air, and I'm speaking for the «Neighborhood»
+“Neighborhood” off-the-air, and I'm speaking for the “Neighborhood”
because that's what I produce, that they then become much more active
in the programming of their family's television life. Very frankly, I
am opposed to people being programmed by others. My whole approach in
-broadcasting has always been «You are an important person just the way
-you are. You can make healthy decisions.» Maybe I'm going on too long,
+broadcasting has always been “You are an important person just the way
+you are. You can make healthy decisions.” Maybe I'm going on too long,
but I just feel that anything that allows a person to be more active
in the control of his or her life, in a healthy way, is
-important.
+important.
Even though there were uses that were legal, because there were
@@ -6161,12 +6161,12 @@ the VCR responsible.
This led Conrad to draw the cartoon in figure
10.18, which we can adopt to the
DMCA.
-
+
No argument I have can top this picture, but let me try to get close.
+equipment?
The anticircumvention provisions of the DMCA target copyright
circumvention technologies. Circumvention technologies can be used for
different ends. They can be used, for example, to enable massive
@@ -6180,14 +6180,14 @@ would agree such a use is bad. Or a handgun can be used for target
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.
-
+
The obvious point of Conrad's cartoon is the weirdness of a world
where guns are legal, despite the harm they can do, while VCRs (and
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.
-
+
The Aibo and RIAA examples demonstrate how copyright owners are
changing the balance that copyright law grants. Using code, copyright
owners restrict fair use; using the DMCA, they punish those who would
@@ -6222,14 +6222,14 @@ For example, imagine you were part of a Star Trek fan
gathered every month to share trivia, and maybe to enact a kind of fan
fiction about the show. One person would play Spock, another, Captain
Kirk. The characters would begin with a plot from a real story, then
-simply continue it.
+simply continue it.
Before the Internet, this was, in effect, a totally unregulated
activity. No matter what happened inside your club room, you would
never be interfered with by the copyright police. You were free in
that space to do as you wished with this part of our culture. You were
allowed to build on it as you wished without fear of legal control.
-
+
But if you moved your club onto the Internet, and made it generally
available for others to join, the story would be very different. Bots
scouring the Net for trademark and copyright infringement would
@@ -6281,16 +6281,16 @@ of the media.
These changes are of two sorts: the scope of concentration, and its
nature.
-
+
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
-ownership, «five companies control 85 percent of our media sources.»
+ownership, “five companies control 85 percent of our media sources.”
The five recording labels of Universal Music Group, BMG, Sony Music
Entertainment, Warner Music Group, and EMI control 84.8 percent of the
-U.S. music market.
-The «five largest cable companies pipe
-programming to 74 percent of the cable subscribers nationwide.»
-
+U.S. music market.
+The “five largest cable companies pipe
+programming to 74 percent of the cable subscribers nationwide.”
+
The story with radio is even more dramatic. Before deregulation,
the nation's largest radio broadcasting conglomerate owned fewer than
@@ -6300,7 +6300,7 @@ total number of radio owners dropped by 34 percent. Today, in most
markets, the two largest broadcasters control 74 percent of that
market's revenues. Overall, just four companies control 90 percent of
the nation's radio advertising revenues.
-
+
Newspaper ownership is becoming more concentrated as well. Today,
there are six hundred fewer daily newspapers in the United States than
there were eighty years ago, and ten companies control half of the
@@ -6310,7 +6310,7 @@ film revenue. The ten largest cable companies account for 85 percent
of all cable revenue. This is a market far from the free press the
framers sought to protect. Indeed, it is a market that is quite well
protected— by the market.
-
+
Concentration in size alone is one thing. The more invidious
change is in the nature of that concentration. As author James Fallows
put it in a recent article about Rupert Murdoch,
@@ -6324,8 +6324,8 @@ cable channels. And they operate the physical distribution system
through which the content reaches the customers. Murdoch's satellite
systems now distribute News Corp. content in Europe and Asia; if
Murdoch becomes DirecTV's largest single owner, that system will serve
-the same function in the United States.
-
+the same function in the United States.
+
The pattern with Murdoch is the pattern of modern media. Not
just large companies owning many radio stations, but a few companies
owning as many outlets of media as possible. A picture describes this
@@ -6343,7 +6343,7 @@ contrary, I am beginning to change my mind.
Here's a representative story that begins to suggest how this
integration may matter.
-
+
In 1969, Norman Lear created a pilot for All in the Family. He took
the pilot to ABC. The network didn't like it. It was too edgy, they told
Lear. Make it again. Lear made a second pilot, more edgy than the
@@ -6353,7 +6353,7 @@ We wanted less edgy, not more.
Rather than comply, Lear simply took the show elsewhere. CBS
was happy to have the series; ABC could not stop Lear from walking.
The copyrights that Lear held assured an independence from network
-control.
+control.
@@ -6362,30 +6362,30 @@ the networks from controlling the content they syndicated. The law
required a separation between the networks and the content producers;
that separation would guarantee Lear freedom. And as late as 1992,
because of these rules, the vast majority of prime time
-television—75 percent of it—was «independent» of the
+television—75 percent of it—was “independent” of the
networks.
In 1994, the FCC abandoned the rules that required this independence.
After that change, the networks quickly changed the balance. In 1985,
there were twenty-five independent television production studios; in
-2002, only five independent television studios remained. «In 1992,
+2002, only five independent television studios remained. “In 1992,
only 15 percent of new series were produced for a network by a company
it controlled. Last year, the percentage of shows produced by
-controlled companies more than quintupled to 77 percent.» «In 1992, 16
+controlled companies more than quintupled to 77 percent.” “In 1992, 16
new series were produced independently of conglomerate control, last
-year there was one.»
+year there was one.”
In 2002, 75 percent of prime time television was owned by the networks
-that ran it. «In the ten-year period between 1992 and 2002, the number
+that ran it. “In the ten-year period between 1992 and 2002, the number
of prime time television hours per week produced by network studios
increased over 200%, whereas the number of prime time television hours
per week produced by independent studios decreased
-63%.»
-
+63%.”
+
Today, another Norman Lear with another All in the Family would
find that he had the choice either to make the show less edgy or to be
fired: The content of any show developed for a network is increasingly
owned by the network.
-
+
While the number of channels has increased dramatically, the ownership
of those channels has narrowed to an ever smaller and smaller few. As
Barry Diller said to Bill Moyers,
@@ -6397,8 +6397,8 @@ fewer and fewer actual voices participating in the process. [We
u]sed to have dozens and dozens of thriving independent production
companies producing television programs. Now you have less than a
-handful.
-
+handful.
+
This narrowing has an effect on what is produced. The product of such
large and concentrated networks is increasingly homogenous.
Increasingly safe. Increasingly sterile. The product of news shows
@@ -6409,18 +6409,18 @@ question without risk of consequence—not necessarily banishment
to Siberia, but punishment nonetheless. Independent, critical,
different views are quashed. This is not the environment for a
democracy.
-
+
Economics itself offers a parallel that explains why this integration
-affects creativity. Clay Christensen has written about the «Innovator's
-Dilemma»: the fact that large traditional firms find it rational to ignore
+affects creativity. Clay Christensen has written about the “Innovator's
+Dilemma”: the fact that large traditional firms find it rational to ignore
new, breakthrough technologies that compete with their core business.
The same analysis could help explain why large, traditional media
-companies would find it rational to ignore new cultural trends.
+companies would find it rational to ignore new cultural trends.
Lumbering giants not only don't, but should not, sprint. Yet if the
field is only open to the giants, there will be far too little
sprinting.
-
+
I don't think we know enough about the economics of the media
market to say with certainty what concentration and integration will
@@ -6433,7 +6433,7 @@ suggest the concern.
In addition to the copyright wars, we're in the middle of the drug
wars. Government policy is strongly directed against the drug cartels;
criminal and civil courts are filled with the consequences of this battle.
-
+
Let me hereby disqualify myself from any possible appointment to
any position in government by saying I believe this war is a profound
mistake. I am not pro drugs. Indeed, I come from a family once
@@ -6456,9 +6456,9 @@ You may not be convinced. That's fine. We live in a democracy, and it
is through votes that we are to choose policy. But to do that, we
depend fundamentally upon the press to help inform Americans about
these issues.
-
+
Beginning in 1998, the Office of National Drug Control Policy launched
-a media campaign as part of the «war on drugs.» The campaign produced
+a media campaign as part of the “war on drugs.” The campaign produced
scores of short film clips about issues related to illegal drugs. In
one series (the Nick and Norm series) two men are in a bar, discussing
the idea of legalizing drugs as a way to avoid some of the collateral
@@ -6481,17 +6481,17 @@ Well, obviously, these ads cost lots of money. Assume you raise the
money. Assume a group of concerned citizens donates all the money in
the world to help you get your message out. Can you be sure your
message will be heard then?
-
+
No. You cannot. Television stations have a general policy of avoiding
-«controversial» ads. Ads sponsored by the government are deemed
+“controversial” ads. Ads sponsored by the government are deemed
uncontroversial; ads disagreeing with the government are
controversial. This selectivity might be thought inconsistent with
the First Amendment, but the Supreme Court has held that stations have
the right to choose what they run. Thus, the major channels of
commercial media will refuse one side of a crucial debate the
opportunity to present its case. And the courts will defend the
-rights of the stations to be this biased.
-
+rights of the stations to be this biased.
+
I'd be happy to defend the networks' rights, as well—if we lived
in a media market that was truly diverse. But concentration in the
media throws that condition into doubt. If a handful of companies
@@ -6501,13 +6501,13 @@ channels, then in an obvious and important way, concentration
matters. You might like the positions the handful of companies
selects. But you should not like a world in which a mere few get to
decide which issues the rest of us get to know about.
-
There is something innocent and obvious about the claim of the
-copyright warriors that the government should «protect my property.»
+copyright warriors that the government should “protect my property.”
In the abstract, it is obviously true and, ordinarily, totally
harmless. No sane sort who is not an anarchist could disagree.
-But when we see how dramatically this «property» has changed—
+But when we see how dramatically this “property” has changed—
when we recognize how it might now interact with both technology and
markets to mean that the effective constraint on the liberty to
cultivate our culture is dramatically different—the claim begins
@@ -6517,7 +6517,7 @@ to seem
less innocent and obvious. Given (1) the power of technology to
supplement the law's control, and (2) the power of concentrated
markets to weaken the opportunity for dissent, if strictly enforcing
-the massively expanded «property» rights granted by copyright
+the massively expanded “property” rights granted by copyright
fundamentally changes the freedom within this culture to cultivate and
build upon our past, then we have to ask whether this property should
be redefined.
@@ -6570,7 +6570,7 @@ energy of a nation at the founding—is now a massive regulation
of the overall creative process. Law plus technology plus the market
now interact to turn this historically benign regulation into the most
significant regulation of culture that our free society has
-known.
+known.
This has been a long chapter. Its
point can now be briefly stated.
@@ -6632,24 +6632,24 @@ 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
-course copyright is a kind of «property,» and of course, as with any
+course copyright is a kind of “property,” and of course, as with any
property, the state ought to protect it. But first impressions
notwithstanding, historically, this property right (as with all
-property rights)
+property rights)
has been crafted to balance the important need to give authors and
artists incentives with the equally important need to assure access to
creative work. This balance has always been struck in light of new
-technologies. And for almost half of our tradition, the «copyright»
+technologies. And for almost half of our tradition, the “copyright”
did not control at all the freedom of others to
build upon or transform a creative work. American culture was born
free, and for almost 180 years our country consistently protected a
vibrant and rich free culture.
-
+
We achieved that free culture because our law respected important
-limits on the scope of the interests protected by «property.» The very
-birth of «copyright» as a statutory right recognized those limits, by
+limits on the scope of the interests protected by “property.” The very
+birth of “copyright” as a statutory right recognized those limits, by
granting copyright owners protection for a limited time only (the
-story of chapter 6). The tradition of «fair use» is
+story of chapter 6). The tradition of “fair use” is
animated by a similar concern that is increasingly under strain as the
costs of exercising any fair use right become unavoidably high (the
story of chapter 7). Adding
@@ -6674,7 +6674,7 @@ that is copyright has become unbalanced, tilted toward an extreme. The
opportunity to create and transform becomes weakened in a world in
which creation requires permission and creativity must check with a
lawyer.
-
Chapter 11. Chapter Eleven: Chimera
In a well-known short story by
H. G. Wells, a mountain climber named Nunez trips (literally, down an
ice slope) into an unknown and isolated valley in the Peruvian
-Andes.
-The valley is extraordinarily beautiful, with «sweet water, pasture,
+Andes.
+The valley is extraordinarily beautiful, with “sweet water, pasture,
an even climate, slopes of rich brown soil with tangles of a shrub
-that bore an excellent fruit.» But the villagers are all blind. Nunez
-takes this as an opportunity. «In the Country of the Blind,» he tells
-himself, «the One-Eyed Man is King.» So he resolves to live with the
+that bore an excellent fruit.” But the villagers are all blind. Nunez
+takes this as an opportunity. “In the Country of the Blind,” he tells
+himself, “the One-Eyed Man is King.” So he resolves to live with the
villagers to explore life as a king.
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
-«blind.» They don't have the word blind. They think he's just thick.
+“blind.” They don't have the word blind. They think he's just thick.
Indeed, as they increasingly notice the things he can't do (hear the
sound of grass being stepped on, for example), they increasingly try
-to control him. He, in turn, becomes increasingly frustrated. «`You
-don't understand,' he cried, in a voice that was meant to be great and
-resolute, and which broke. `You are blind and I can see. Leave me
-alone!'»
+to control him. He, in turn, becomes increasingly frustrated. “‘You
+don't understand,’ he cried, in a voice that was meant to be great and
+resolute, and which broke. ‘You are blind and I can see. Leave me
+alone!’”
The villagers don't leave him alone. Nor do they see (so to speak) the
virtue of his special power. Not even the ultimate target of his
-affection, a young woman who to him seems «the most beautiful thing in
-the whole of creation,» understands the beauty of sight. Nunez's
-description of what he sees «seemed to her the most poetical of
+affection, a young woman who to him seems “the most beautiful thing in
+the whole of creation,” understands the beauty of sight. Nunez's
+description of what he sees “seemed to her the most poetical of
fancies, and she listened to his description of the stars and the
mountains and her own sweet white-lit beauty as though it was a guilty
-indulgence.» «She did not believe,» Wells tells us, and «she could
-only half understand, but she was mysteriously delighted.»
+indulgence.” “She did not believe,” Wells tells us, and “she could
+only half understand, but she was mysteriously delighted.”
-When Nunez announces his desire to marry his «mysteriously delighted»
-love, the father and the village object. «You see, my dear,» her
-father instructs, «he's an idiot. He has delusions. He can't do
-anything right.» They take Nunez to the village doctor.
+When Nunez announces his desire to marry his “mysteriously delighted”
+love, the father and the village object. “You see, my dear,” her
+father instructs, “he's an idiot. He has delusions. He can't do
+anything right.” They take Nunez to the village doctor.
-After a careful examination, the doctor gives his opinion. «His brain
-is affected,» he reports.
+After a careful examination, the doctor gives his opinion. “His brain
+is affected,” he reports.
-«What affects it?» the father asks. «Those queer things that are
+“What affects it?” the father asks. “Those queer things that are
called the eyes … are diseased … in such a way as to affect
-his brain.»
+his brain.”
-The doctor continues: «I think I may say with reasonable certainty
+The doctor continues: “I think I may say with reasonable certainty
that in order to cure him completely, all that we need to do is a
simple and easy surgical operation—namely, to remove these
-irritant bodies [the eyes].»
+irritant bodies [the eyes].”
-«Thank Heaven for science!» says the father to the doctor. They inform
+“Thank Heaven for science!” says the father to the doctor. They inform
Nunez of this condition necessary for him to be allowed his bride.
(You'll have to read the original to learn what happens in the end. I
believe in free culture, but never in giving away the end of a story.)
It sometimes happens that the eggs
of twins fuse in the mother's womb. That fusion produces a
-«chimera.» A chimera is a single creature with two sets
+“chimera.” A chimera is a single creature with two sets
of DNA. The DNA in the blood, for example, might be different from the
DNA of the skin. This possibility is an underused
-plot for murder mysteries. «But the DNA shows with 100 percent
+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. …”
+
Before I had read about chimeras, I would have said they were
impossible. A single person can't have two sets of DNA. The very idea
of DNA is that it is the code of an individual. Yet in fact, not only
can two individuals have the same set of DNA (identical twins), but
one person can have two different sets of DNA (a chimera). Our
-understanding of a «person» should reflect this reality.
+understanding of a “person” should reflect this reality.
The more I work to understand the current struggle over copyright and
culture, which I've sometimes called unfairly, and sometimes not
-unfairly enough, «the copyright wars,» the more I think we're dealing
-with a chimera. For example, in the battle over the question «What is
-p2p file sharing?» both sides have it right, and both sides have it
-wrong. One side says, «File sharing is just like two kids taping each
+unfairly enough, “the copyright wars,” the more I think we're dealing
+with a chimera. For example, in the battle over the question “What is
+p2p file sharing?” both sides have it right, and both sides have it
+wrong. One side says, “File sharing is just like two kids taping each
others' records—the sort of thing we've been doing for the last
-thirty years without any question at all.» That's true, at least in
+thirty years without any question at all.” That's true, at least in
part. When I tell my best friend to try out a new CD that I've bought,
but rather than just send the CD, I point him to my p2p server, that
is, in all relevant respects, just like what every executive in every
@@ -7078,18 +7082,18 @@ recording company no doubt did as a kid: sharing music.
But the description is also false in part. For when my p2p server is
on a p2p network through which anyone can get access to my music, then
sure, my friends can get access, but it stretches the meaning of
-«friends» beyond recognition to say «my ten thousand best friends» can
+“friends” beyond recognition to say “my ten thousand best friends” can
get access. Whether or not sharing my music with my best friend is
-what «we have always been allowed to do,» we have not always been
-allowed to share music with «our ten thousand best friends.»
+what “we have always been allowed to do,” we have not always been
+allowed to share music with “our ten thousand best friends.”
-Likewise, when the other side says, «File sharing is just like walking
+Likewise, when the other side says, “File sharing is just like walking
into a Tower Records and taking a CD off the shelf and walking out
-with it,» that's true, at least in part. If, after Lyle Lovett
+with it,” that's true, at least in part. If, after Lyle Lovett
(finally) releases a new album, rather than buying it, I go to Kazaa
and find a free copy to take, that is very much like stealing a copy
from Tower.
-
+
@@ -7115,9 +7119,9 @@ damages just because file sharing occurred on a family computer. And
we can get universities to monitor all computer traffic to make sure
that no computer is used to commit this crime. These responses might
be extreme, but each of them has either been proposed or actually
-implemented.
+implemented.
-
+
Alternatively, we could respond to file sharing the way many kids act
as though we've responded. We could totally legalize it. Let there be
no copyright liability, either civil or criminal, for making
@@ -7142,7 +7146,7 @@ give content holders a kind of control over our culture that they have
never had before. And in this extremism, many an opportunity for new
innovation and new creativity will be lost.
-I'm not talking about the opportunities for kids to «steal» music. My
+I'm not talking about the opportunities for kids to “steal” music. My
focus instead is the commercial and cultural innovation that this war
will also kill. We have never seen the power to innovate spread so
broadly among our citizens, and we have just begun to see the
@@ -7170,34 +7174,34 @@ that are available to consumers, both in terms of the ease with
which they will be able to access digital media and the equipment
that they will require to do so. Poor choices made this early in the
game will retard the growth of this market, hurting everyone's
-interests.
+interests.
In April 2001, eMusic.com was purchased by Vivendi Universal,
-one of «the major labels.» Its position on these matters has now
+one of “the major labels.” Its position on these matters has now
changed.
-
+
Reversing our tradition of tolerance now will not merely quash
piracy. It will sacrifice values that are important to this culture,
and will kill opportunities that could be extraordinarily valuable.
-
12.2. Constraining Innovators
The story of the last section was a crunchy-lefty
@@ -7424,8 +7428,8 @@ But there's an aspect of this story that is not lefty in any sense.
Indeed, it is an aspect that could be written by the most extreme
promarket ideologue. And if you're one of these sorts (and a special
one at that, pages into a book like this), then you
-can see this other aspect by substituting «free market»
-every place I've spoken of «free culture.» The point is
+can see this other aspect by substituting “free market”
+every place I've spoken of “free culture.” The point is
the same, even if the interests affecting culture are more
fundamental.
@@ -7440,29 +7444,29 @@ good, it doesn't follow that more regulation is better. And both
perspectives are constantly attuned to the ways in which regulation
simply enables the powerful industries of today to protect themselves
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
+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
lesson. That lesson—what former Napster CEO Hank Barry calls a
-«nuclear pall» that has fallen over the Valley—has been learned.
-
+“nuclear pall” that has fallen over the Valley—has been learned.
+
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.
-
+
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
facilitate new ways to get access to content. Their goal was also to
facilitate new ways to create content. Unlike the major labels,
MP3.com offered creators a venue to distribute their creativity,
without demanding an exclusive engagement from the creators.
-
+
To make this system work, however, MP3.com needed a reliable way to
recommend music to its users. The idea behind this alternative was to
leverage the revealed preferences of music listeners to recommend new
@@ -7487,7 +7491,7 @@ that opportunity existed with or without MP3.com. The aim of the
my.mp3.com service was to give users access to their own content, and
as a by-product, by seeing the content they already owned, to discover
the kind of content the users liked.
-
+
To make this system function, however, MP3.com needed to copy 50,000
CDs to a server. (In principle, it could have been the user who
uploaded the music, but that would have taken a great deal of time,
@@ -7498,7 +7502,7 @@ from those copies to anyone except those who authenticated that they
had a copy of the CD they wanted to access. So while this was 50,000
copies, it was 50,000 copies directed at giving customers something
they had already bought.
-
+
Nine days after MP3.com launched its service, the five major labels,
headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
with four of the five. Nine months later, a federal judge found
@@ -7518,7 +7522,7 @@ should have been obvious that the courts would find this behavior
illegal; therefore, this lawsuit sought to punish any lawyer who had
dared to suggest that the law was less restrictive than the labels
demanded.
-
+
The clear purpose of this lawsuit (which was settled for an
unspecified amount shortly after the story was no longer covered in
the press) was to send an unequivocal message to lawyers advising
@@ -7528,12 +7532,12 @@ space: It is not just your clients who might suffer if the content
industry directs its guns against them. It is also you. So those of
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
-
+
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
venture capital firm (VC) that had funded Napster at a certain stage of
its development, its cofounder (John Hummer), and general partner
-(Hank Barry).
+(Hank Barry).
The claim here, as well, was that the VC should have recognized the
right of the content industry to control how the industry should
develop. They should be held personally liable for funding a company
@@ -7553,19 +7557,19 @@ 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. …
-
-This is the world of the mafia—filled with «your money or your
-life» offers, governed in the end not by courts but by the threats
+United States with bona fide MP3 players. …
+
+This is the world of the mafia—filled with “your money or your
+life” offers, governed in the end not by courts but by the threats
that the law empowers copyright holders to exercise. It is a system
that will obviously and necessarily stifle new innovation. It is hard
enough to start a company. It is impossibly hard if that company is
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
+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
@@ -7576,9 +7580,9 @@ 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
-use. Whatever the «real» law is, realism about the effect of law in
+use. Whatever the “real” law is, realism about the effect of law in
both contexts is the same. This wildly punitive system of regulation
will systematically stifle creativity and innovation. It will protect
some industries and some creators, but it will harm industry and
@@ -7605,7 +7609,7 @@ law where the law is not doing any good. The transaction costs buried
within a permission culture are enough to bury a wide range of
creativity. Someone needs to do a lot of justifying to justify that
result.
-
+
The uncertainty of the law is one
burden on innovation. There is a second burden that operates more
directly. This is the effort by many in the content industry to use
@@ -7615,23 +7619,23 @@ better protects their content.
The motivation for this response is obvious. The Internet enables the
efficient spread of content. That efficiency is a feature of the
Internet's design. But from the perspective of the content industry,
-this feature is a «bug.» The efficient spread of content means that
+this feature is a “bug.” The efficient spread of content means that
content distributors have a harder time controlling the distribution
of content. One obvious response to this efficiency is thus to make
-the Internet less efficient. If the Internet enables «piracy,» then,
+the Internet less efficient. If the Internet enables “piracy,” then,
this response says, we should break the kneecaps of the Internet.
-
+
The examples of this form of legislation are many. At the urging of
the content industry, some in Congress have threatened legislation that
would require computers to determine whether the content they access
-is protected or not, and to disable the spread of protected content.
+is protected or not, and to disable the spread of protected content.
Congress has already launched proceedings to explore a mandatory
-«broadcast flag» that would be required on any device capable of
+“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.
+copyright violators and disable their machines.
In one sense, these solutions seem sensible. If the problem is the
code, why not regulate the code to remove the problem. But any
@@ -7641,10 +7645,10 @@ 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.
+would impose.
Their argument was obviously not that copyright should not be
protected. Instead, they argued, any protection should not do more
harm than good.
@@ -7657,13 +7661,13 @@ Copyright may be property, but like all property, it is also a form
of regulation. It is a regulation that benefits some and harms others.
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
+
+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,
+Copyright,
overall this history of copyright is not bad. As chapter
-10 details,
+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
@@ -7675,22 +7679,22 @@ the claims of a new technology and the legitimate rights of content
creators, both the courts and Congress have imposed legal restrictions
that will have the effect of smothering the new to benefit the old.
-The response by the courts has been fairly universal.
+The response by the courts has been fairly universal.
It has been mirrored in the responses threatened and actually
implemented by Congress. I won't catalog all of those responses
-here.
+here.
But there is one example that captures the flavor of them all. This is
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
+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
+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
+copyright owners of “Happy Birthday” would get some money, whereas
Marilyn Monroe would not.
The reasoning behind this balance struck by Congress makes some
@@ -7702,11 +7706,11 @@ indirectly. Probably this reasoning had less to do with the result
than with the power of radio stations: Their lobbyists were quite good
at stopping any efforts to get Congress to require compensation to the
recording artists.
-
+
Enter Internet radio. Like regular radio, Internet radio is a
technology to stream content from a broadcaster to a listener. The
broadcast travels across the Internet, not across the ether of radio
-spectrum. Thus, I can «tune in» to an Internet radio station in
+spectrum. Thus, I can “tune in” to an Internet radio station in
Berlin while sitting in San Francisco, even though there's no way for
me to tune in to a regular radio station much beyond the San Francisco
metropolitan area.
@@ -7722,7 +7726,7 @@ audience for Internet radio is the whole world, niche stations could
easily develop and market their content to a relatively large number
of users worldwide. According to some estimates, more than eighty
million users worldwide have tuned in to this new form of radio.
-
+
Internet radio is thus to radio what FM was to AM. It is an
@@ -7745,12 +7749,12 @@ restrictive licenses on it. This tyranny was broken only when it
became possible for men freely to acquire printing presses and freely
to run them. FM in this sense was as great an invention as the
printing presses, for it gave radio the opportunity to strike off its
-shackles.
+shackles.
This potential for FM radio was never realized—not
because Armstrong was wrong about the technology, but because he
-underestimated the power of «vested interests, habits, customs and
-legislation»
+underestimated the power of “vested interests, habits, customs and
+legislation”
to retard the growth of this competing technology.
Now the very same claim could be made about Internet radio. For
@@ -7759,7 +7763,7 @@ Internet radio stations. The only restrictions on Internet radio are
those imposed by the law. Copyright law is one such law. So the first
question we should ask is, what copyright rules would govern Internet
radio?
-
+
But here the power of the lobbyists is reversed. Internet radio is a
new industry. The recording artists, on the other hand, have a very
@@ -7769,7 +7773,7 @@ of Internet radio in 1995, the lobbyists had primed Congress to adopt
a different rule for Internet radio than the rule that applies to
terrestrial radio. While terrestrial radio does not have to pay our
hypothetical Marilyn Monroe when it plays her hypothetical recording
-of «Happy Birthday» on the air, Internet radio
+of “Happy Birthday” on the air, Internet radio
does. Not only is the law not neutral toward Internet
radio—the law actually burdens Internet radio more than it
burdens terrestrial radio.
@@ -7778,10 +7782,10 @@ This financial burden is not slight. As Harvard law professor
William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
-over $1 million a year.
+over $1 million a year.
A regular radio station broadcasting the same content would pay no
equivalent fee.
-
+
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio
station) would have to collect the following data from every
@@ -7836,7 +7840,7 @@ time zone where the signal was received (user);
unique user identifier;
the country in which the user received the transmissions.
-
+
The Librarian of Congress eventually suspended these reporting
requirements, pending further study. And he also changed the original
rates set by the arbitration panel charged with setting rates. But the
@@ -7847,7 +7851,7 @@ that terrestrial radio does not.
Why? What justifies this difference? Was there any study of the
economic consequences from Internet radio that would justify these
differences? Was the motive to protect artists against piracy?
-
+
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
Policy at Real Networks, told me,
@@ -7857,21 +7861,21 @@ 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. …»
-
-And the RIAA experts said, «Well, we don't really model this as an
+business. …”
+
+And the RIAA experts said, “Well, we don't really model this as an
industry with thousands of webcasters, we think it should be
an industry with, you know, five or seven big players who can pay a
-high rate and it's a stable, predictable market.» (Emphasis
+high rate and it's a stable, predictable market.” (Emphasis
added.)
-
+
Translation: The aim is to use the law to eliminate competition, so
that this platform of potentially immense competition, which would
cause the diversity and range of content available to explode, would not
@@ -7879,7 +7883,7 @@ cause pain to the dinosaurs of old. There is no one, on either the right
or the left, who should endorse this use of the law. And yet there is
practically no one, on either the right or the left, who is doing anything
effective to prevent it.
-
12.3. Corrupting Citizens
+
12.3. Corrupting Citizens
Overregulation stifles creativity. It smothers innovation. It gives
dinosaurs
a veto over the future. It wastes the extraordinary opportunity
@@ -7892,7 +7896,7 @@ corrupts citizens and weakens the rule of law.
The war that is being waged today is a war of prohibition. As with
every war of prohibition, it is targeted against the behavior of a very
large number of citizens. According to The New York Times, 43 million
-Americans downloaded music in May 2002.
+Americans downloaded music in May 2002.
According to the RIAA,
the behavior of those 43 million Americans is a felony. We thus have a
set of rules that transform 20 percent of America into criminals. As the
@@ -7918,7 +7922,7 @@ led Jordan to choose to pay all the money he had in the world
RIAA's suits against individual users. In September 2003, the RIAA
sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
-was.
+was.
As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
year old, for example, like Jesse Jordan, paid her life savings of $2,000
@@ -7926,7 +7930,7 @@ to settle the case.) Our law is an awful system for defending rights. It
is an embarrassment to our tradition. And the consequence of our law
as it is, is that those with the power can use the law to quash any rights
they oppose.
-
+
Wars of prohibition are nothing new in America. This one is just
something more extreme than anything we've seen before. We
experimented with alcohol prohibition, at a time when the per capita
@@ -7935,23 +7939,23 @@ against drinking initially reduced that consumption to just 30 percent
of its preprohibition levels, but by the end of prohibition,
consumption was up to 70 percent of the preprohibition
level. Americans were drinking just about as much, but now, a vast
-number were criminals.
+number were criminals.
We have
launched a war on drugs aimed at reducing the consumption of regulated
-narcotics that 7 percent (or 16 million) Americans now use.
+narcotics that 7 percent (or 16 million) Americans now use.
That is a drop from the high (so to speak) in 1979 of 14 percent of
the population. We regulate automobiles to the point where the vast
majority of Americans violate the law every day. We run such a complex
tax system that a majority of cash businesses regularly
-cheat.
-We pride ourselves on our «free society,» but an endless array of
+cheat.
+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.
-
+
This state of affairs is not without consequence. It is a particularly
salient issue for teachers like me, whose job it is to teach law
-students about the importance of «ethics.» As my colleague Charlie
+students about the importance of “ethics.” As my colleague Charlie
Nesson told a class at Stanford, each year law schools admit thousands
of students who have illegally downloaded music, illegally consumed
alcohol and sometimes drugs, illegally worked without paying taxes,
@@ -7962,7 +7966,7 @@ keep client funds separate, or honor a demand to disclose a document
that will mean that your case is over. Generations of
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
+lives both normally and legally, since “normally” entails a certain
degree of illegality.
The response to this general illegality is either to enforce the law
@@ -7993,8 +7997,8 @@ or not; I want to catch and incarcerate the rapist. But I do care
whether my students respect the law. And I do care if the rules of law
sow increasing disrespect because of the extreme of regulation they
impose. Twenty million Americans have come of age since the Internet
-introduced this different idea of «sharing.» We need to be able to
-call these twenty million Americans «citizens,» not «felons.»
+introduced this different idea of “sharing.” We need to be able to
+call these twenty million Americans “citizens,” not “felons.”
When at least forty-three million citizens download content from the
Internet, and when they use tools to combine that content in ways
@@ -8016,18 +8020,18 @@ copyright infringement for me to sell all my classical records at a
used
-record store and buy jazz records to replace them. That «use» of the
+record store and buy jazz records to replace them. That “use” of the
recordings is free.
But as the MP3 craze has demonstrated, there is another use of
phonograph records that is effectively free. Because these recordings
-were made without copy-protection technologies, I am «free» to copy,
-or «rip,» music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that «freedom» was a
-right: In a series of commercials, Apple endorsed the «Rip, Mix, Burn»
+were made without copy-protection technologies, I am “free” to copy,
+or “rip,” music from my records onto a computer hard disk. Indeed,
+Apple Corporation went so far as to suggest that “freedom” was a
+right: In a series of commercials, Apple endorsed the “Rip, Mix, Burn”
capacities of digital technologies.
-
-This «use» of my records is certainly valuable. I have begun a large
+
+This “use” of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
them in one archive. Then, using Apple's iTunes, or a wonderful
program called Andromeda, we can build different play lists of our
@@ -8056,9 +8060,9 @@ these protection technologies would effectively destroy the archiving
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
-plastic or were part of a massively complex «digital rights
-management» system.
-
+plastic or were part of a massively complex “digital rights
+management” system.
+
If the only way to assure that artists get paid were the elimination
of the ability to freely move content, then these technologies to
interfere with the freedom to move content would be justifiable. But
@@ -8097,16 +8101,16 @@ understandable why we as a democracy continue to choose as we do. Jack
Valenti is charming; but not so charming as to justify giving up a
tradition as deep and important as our tradition of free culture.
-
+
There's one more aspect to this
corruption that is particularly important to civil liberties, and
follows directly from any war of prohibition. As Electronic Frontier
Foundation attorney Fred von Lohmann describes, this is the
-«collateral damage» that «arises whenever you turn
-a very large percentage of the population into criminals.» This
+“collateral damage” that “arises whenever you turn
+a very large percentage of the population into criminals.” This
is the collateral damage to civil liberties generally.
-
-«If you can treat someone as a putative lawbreaker,» von Lohmann
+
+“If you can treat someone as a putative lawbreaker,” von Lohmann
explains,
then all of a sudden a lot of basic civil liberty protections
@@ -8114,10 +8118,10 @@ evaporate to one degree or another. … If you're a copyright
infringer, how can you hope to have any privacy rights? If you're a
copyright infringer, how can you hope to be secure against seizures of
your computer? How can you hope to continue to receive Internet
-access? … Our sensibilities change as soon as we think, «Oh, well,
-but that person's a criminal, a lawbreaker.» Well, what this campaign
+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.»
+American Internet-using population into “lawbreakers.”
And the consequence of this transformation of the American public
into criminals is that it becomes trivial, as a matter of due process, to
@@ -8138,15 +8142,15 @@ seen, the potential damages from these suits are astronomical: If a
family's computer is used to download a single CD's worth of music,
the family could be liable for $2 million in damages. That didn't stop
the RIAA from suing a number of these families, just as they had sued
-Jesse Jordan.
+Jesse Jordan.
-
+
Even this understates the espionage that is being waged by the
RIAA. A report from CNN late last summer described a strategy the
-RIAA had adopted to track Napster users.
+RIAA had adopted to track Napster users.
Using a sophisticated hashing algorithm, the RIAA took what is in
effect a fingerprint of every song in the Napster catalog. Any copy of
-one of those MP3s will have the same «fingerprint.»
+one of those MP3s will have the same “fingerprint.”
So imagine the following not-implausible scenario: Imagine a
friend gives a CD to your daughter—a collection of songs just
@@ -8154,27 +8158,27 @@ like the cassettes you used to make as a kid. You don't know, and
neither does your daughter, where these songs came from. But she
copies these songs onto her computer. She then takes her computer to
college and connects it to a college network, and if the college
-network is «cooperating» with the RIAA's espionage, and she hasn't
+network is “cooperating” with the RIAA's espionage, and she hasn't
properly protected her content from the network (do you know how to do
that yourself ?), then the RIAA will be able to identify your daughter
-as a «criminal.» And under the rules that universities are beginning
-to deploy,
+as a “criminal.” And under the rules that universities are beginning
+to deploy,
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
-
+
Now, of course, she'll have the right to defend herself. You can hire
a lawyer for her (at $300 per hour, if you're lucky), and she can
plead that she didn't know anything about the source of the songs or
that they came from Napster. And it may well be that the university
believes her. But the university might not believe her. It might treat
-this «contraband» as presumptive of guilt. And as any number of
+this “contraband” as presumptive of guilt. And as any number of
college students
have already learned, our presumptions about innocence disappear in
the middle of wars of prohibition. This war is no different.
Says von Lohmann,
-
+
So when we're talking about numbers like forty to sixty million
Americans that are essentially copyright infringers, you create a
situation where the civil liberties of those people are very much in
@@ -8193,75 +8197,77 @@ 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.
-When forty to sixty million Americans are considered «criminals» under
+When forty to sixty million Americans are considered “criminals” under
the law, and when the law could achieve the same objective—
securing rights to authors—without these millions being
-considered «criminals,» who is the villain? Americans or the law?
+considered “criminals,” who is the villain? Americans or the law?
Which is American, a constant war on our own people or a concerted
effort through our democracy to change our law?
-
So here's the picture: You're
standing at the side of the road. Your car is on fire. You are angry
@@ -8437,7 +8443,7 @@ Hawthorne any more interesting than before. But Eldred's experiment
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.
-
+
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
across the world who can't get access to printed versions of these
@@ -8447,7 +8453,7 @@ public domain works. Just as Disney turned Grimm into stories more
accessible to the twentieth century, Eldred transformed Hawthorne, and
many others, into a form more accessible—technically
accessible—today.
-
+
Eldred's freedom to do this with Hawthorne's work grew from the same
source as Disney's. Hawthorne's Scarlet Letter had passed into the
public domain in 1907. It was free for anyone to take without the
@@ -8458,37 +8464,37 @@ country. Others, such as Disney, take these stories and turn them into
animated cartoons, sometimes successfully (Cinderella), sometimes not
(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
thousands of others. Hundreds of thousands from across the world have
discovered this platform of expression and now use it to share works
that are, by law, free for the taking. This has produced what we might
-call the «noncommercial publishing industry,» which before the
+call the “noncommercial publishing industry,” which before the
Internet was limited to people with large egos or with political or
social causes. But with the Internet, it includes a wide range of
individuals and groups dedicated to spreading culture
-generally.
-
+generally.
+
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,
+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.
-
+
This was the Sonny Bono Copyright Term Extension Act
(CTEA), enacted in memory of the congressman and former musician
Sonny Bono, who, his widow, Mary Bono, says, believed that
-«copyrights should be forever.»
-
+“copyrights should be forever.”
+
Eldred decided to fight this law. He first resolved to fight it through
civil disobedience. In a series of interviews, Eldred announced that he
would publish as planned, CTEA notwithstanding. But because of a
@@ -8496,7 +8502,7 @@ second law passed in 1998, the NET (No Electronic Theft) Act, his act
of publishing would make Eldred a felon—whether or not anyone
complained. This was a dangerous strategy for a disabled programmer
to undertake.
-
+
It was here that I became involved in Eldred's battle. I was a
constitutional
scholar whose first passion was constitutional
@@ -8509,26 +8515,26 @@ 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. …
-
+
As I've described, this clause is unique within the power-granting
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
-are also specific— by «securing» «exclusive Rights» (i.e.,
-copyrights) «for limited Times.»
-
+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
+are also specific— by “securing” “exclusive Rights” (i.e.,
+copyrights) “for limited Times.”
+
In the past forty years, Congress has gotten into the practice of
extending existing terms of copyright protection. What puzzled me
about this was, if Congress has the power to extend existing terms,
-then the Constitution's requirement that terms be «limited» will have
+then the Constitution's requirement that terms be “limited” will have
no practical effect. If every time a copyright is about to expire,
Congress has the power to extend its term, then Congress can achieve
-what the Constitution plainly forbids—perpetual terms «on the
-installment plan,» as Professor Peter Jaszi so nicely put it.
-
+what the Constitution plainly forbids—perpetual terms “on the
+installment plan,” as Professor Peter Jaszi so nicely put it.
+
As an academic, my first response was to hit the books. I remember
sitting late at the office, scouring on-line databases for any serious
consideration of the question. No one had ever challenged Congress's
@@ -8540,8 +8546,8 @@ their copyright terms extended. And so Congress is quite happy to keep
this gravy train going.
For this is the core of the corruption in our present system of
-government. «Corruption» not in the sense that representatives are
-bribed. Rather, «corruption» in the sense that the system induces the
+government. “Corruption” not in the sense that representatives are
+bribed. Rather, “corruption” in the sense that the system induces the
beneficiaries of Congress's acts to raise and give money to Congress
to induce it to act. There's only so much time; there's only so much
Congress can do. Why not limit its actions to those things it must
@@ -8562,47 +8568,47 @@ is about to expire. You sit on the board of the Robert Frost estate.
Your financial adviser comes to your board meeting with a very grim
report:
-«Next year,» the adviser announces, «our copyrights in works A, B,
+“Next year,” the adviser announces, “our copyrights in works A, B,
and C will expire. That means that after next year, we will no longer be
receiving the annual royalty check of $100,000 from the publishers of
-those works.»
+those works.”
-«There's a proposal in Congress, however,» she continues, «that
+“There's a proposal in Congress, however,” she continues, “that
could change this. A few congressmen are floating a bill to extend the
terms of copyright by twenty years. That bill would be extraordinarily
-valuable to us. So we should hope this bill passes.»
+valuable to us. So we should hope this bill passes.”
-«Hope?» a fellow board member says. «Can't we be doing something
-about it?»
+“Hope?” a fellow board member says. “Can't we be doing something
+about it?”
-«Well, obviously, yes,» the adviser responds. «We could contribute
+“Well, obviously, yes,” the adviser responds. “We could contribute
to the campaigns of a number of representatives to try to assure that
-they support the bill.»
+they support the bill.”
You hate politics. You hate contributing to campaigns. So you want
-to know whether this disgusting practice is worth it. «How much
-would we get if this extension were passed?» you ask the adviser. «How
-much is it worth?»
+to know whether this disgusting practice is worth it. “How much
+would we get if this extension were passed?” you ask the adviser. “How
+much is it worth?”
-«Well,» the adviser says, «if you're confident that you will continue
+“Well,” the adviser says, “if you're confident that you will continue
to get at least $100,000 a year from these copyrights, and you use the
-`discount rate' that we use to evaluate estate investments (6 percent),
-then this law would be worth $1,146,000 to the estate.»
+‘discount rate’ that we use to evaluate estate investments (6 percent),
+then this law would be worth $1,146,000 to the estate.”
You're a bit shocked by the number, but you quickly come to the
correct conclusion:
-«So you're saying it would be worth it for us to pay more than
+“So you're saying it would be worth it for us to pay more than
$1,000,000 in campaign contributions if we were confident those
contributions
-would assure that the bill was passed?»
+would assure that the bill was passed?”
-«Absolutely,» the adviser responds. «It is worth it to you to
+“Absolutely,” the adviser responds. “It is worth it to you to
contribute
-up to the `present value' of the income you expect from these
-copyrights. Which for us means over $1,000,000.»
+up to the ‘present value’ of the income you expect from these
+copyrights. Which for us means over $1,000,000.”
You quickly get the point—you as the member of the board and, I
trust, you the reader. Each time copyrights are about to expire, every
@@ -8620,17 +8626,17 @@ the world to buy further extensions of copyright.
In the lobbying that led to the passage of the Sonny Bono
Copyright
-Term Extension Act, this «theory» about incentives was proved
+Term Extension Act, this “theory” about incentives was proved
real. Ten of the thirteen original sponsors of the act in the House
received the maximum contribution from Disney's political action
committee; in the Senate, eight of the twelve sponsors received
- contributions.
+ contributions.
The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
-than $200,000 in campaign contributions.
+than $200,000 in campaign contributions.
Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the
-cycle.
+cycle.
Constitutional law is not oblivious
@@ -8640,10 +8646,10 @@ increase the copyright term was central to my thinking. In my view, a
pragmatic court committed to interpreting and applying the
Constitution of our framers would see that if Congress has the power
to extend existing terms, then there would be no effective
-constitutional requirement that terms be «limited.» If
+constitutional requirement that terms be “limited.” If
they could extend it once, they would extend it again and again and
again.
-
+
It was also my judgment that this Supreme Court
would not allow Congress to extend existing terms. As anyone close to
the Supreme Court's work knows, this Court has increasingly restricted
@@ -8655,12 +8661,12 @@ Supreme Court's
decision in 1995 to strike down a law that banned the possession of
guns near schools.
-
+
Since 1937, the Supreme Court had interpreted Congress's granted
powers very broadly; so, while the Constitution grants Congress the
-power to regulate only «commerce among the several states» (aka
- «interstate
-commerce»), the Supreme Court had interpreted that power to
+power to regulate only “commerce among the several states” (aka
+ “interstate
+commerce”), the Supreme Court had interpreted that power to
include the power to regulate any activity that merely affected
interstate
commerce.
@@ -8670,7 +8676,7 @@ no limit to Congress's power to regulate, since just about every
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.
-
+
The Supreme Court, under Chief Justice Rehnquist's command, changed
that in United States v. Lopez. The government had
argued that possessing guns near schools affected interstate
@@ -8683,37 +8689,37 @@ interstate commerce, then that activity affects interstate
commerce. The Supreme Court, the government said, was not in the
position to second-guess Congress.
-«We pause to consider the implications of the government's arguments,»
-the Chief Justice wrote.
+“We pause to consider the implications of the government's arguments,”
+the Chief Justice wrote.
If anything Congress says is interstate commerce must therefore be
considered interstate commerce, then there would be no limit to
Congress's power. The decision in Lopez was reaffirmed five years
-later in United States v. Morrison.
-
+later in United States v. Morrison.
+
If a principle were at work here, then it should apply to the Progress
-Clause as much as the Commerce Clause.
+Clause as much as the Commerce Clause.
And if it is applied to the Progress Clause, the principle should
yield the conclusion that Congress
can't extend an existing term. If Congress could extend an existing
-term, then there would be no «stopping point» to Congress's power over
+term, then there would be no “stopping point” to Congress's power over
terms, though the Constitution expressly states that there is such a
limit. Thus, the same principle applied to the power to grant
copyrights should entail that Congress is not allowed to extend the
term of existing copyrights.
-
+
If, that is, the principle announced in Lopez
stood for a principle. Many believed the decision in Lopez stood for
politics—a conservative Supreme Court, which believed in states'
rights, using its power over Congress to advance its own personal
political preferences. But I rejected that view of the Supreme Court's
decision. Indeed, shortly after the decision, I wrote an article
-demonstrating the «fidelity» in such an interpretation of the
+demonstrating the “fidelity” in such an interpretation of the
Constitution. The idea that the Supreme Court decides cases based upon
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.
-
+
Now let's pause for a moment to
make sure we understand what the argument in
Eldred was not about. By insisting on the
@@ -8730,12 +8736,12 @@ power—expressed through the power of lobbyists' money—to
get another twenty-year dollop of monopoly. That twenty-year dollop
would be taken from the public domain. Eric Eldred was fighting a
piracy that affects us all.
-
+
Some people view the public domain with contempt. In their brief
before the Supreme Court, the Nashville Songwriters Association
-wrote that the public domain is nothing more than «legal piracy.»
+wrote that the public domain is nothing more than “legal piracy.”
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
@@ -8751,10 +8757,10 @@ terms will be repeatedly extended, and extended, and extended. We
have created the perfect storm for the public domain. Copyrights have
not expired, and will not expire, so long as Congress is free to be
bought to extend them again.
-
+
It is valuable copyrights that are
responsible for terms being extended. Mickey Mouse and
-«Rhapsody in Blue.» These works are too valuable for
+“Rhapsody in Blue.” These works are too valuable for
copyright owners to ignore. But the real harm to our society from
copyright extensions is not that Mickey Mouse remains Disney's.
Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
@@ -8768,9 +8774,9 @@ If you look at the work created in the first twenty years (1923 to
2 percent of that work has any continuing commercial value. It was the
copyright holders for that 2 percent who pushed the CTEA through.
But the law and its effect were not limited to that 2 percent. The law
-extended the terms of copyright generally.
+extended the terms of copyright generally.
-
+
Think practically about the consequence of this
extension—practically,
as a businessperson, and not as a lawyer eager for more legal
@@ -8781,7 +8787,7 @@ books were still in print. Let's say you were Brewster Kahle, and you
wanted to make available to the world in your iArchive project the
remaining
9,873. What would you have to do?
-
+
Well, first, you'd have to determine which of the 9,873 books were
still under copyright. That requires going to a library (these data are
not on-line) and paging through tomes of books, cross-checking the
@@ -8806,9 +8812,9 @@ about how impossibly difficult it would be to track down
of such records—especially since the person who registered is
not necessarily the current owner. And we're just talking about 1930!
-«But there isn't a list of who owns property generally,» the
-apologists for the system respond. «Why should there be a list of
-copyright owners?»
+“But there isn't a list of who owns property generally,” the
+apologists for the system respond. “Why should there be a list of
+copyright owners?”
Well, actually, if you think about it, there are
plenty of lists of who owns what property. Think about deeds on
@@ -8847,7 +8853,7 @@ The consequence with respect to old books is that they won't be
digitized, and hence will simply rot away on shelves. But the
consequence
for other creative works is much more dire.
-
+
Consider the story of Michael Agee, chairman of Hal Roach Studios,
which owns the copyrights for the Laurel and Hardy films. Agee is a
direct beneficiary of the Bono Act. The Laurel and Hardy films were
@@ -8855,9 +8861,9 @@ made between 1921 and 1951. Only one of these films, The L
currently out of copyright. But for the CTEA, films made after 1923
would have begun entering the public domain. Because Agee controls the
exclusive rights for these popular films, he makes a great deal of
-money. According to one estimate, «Roach has sold about 60,000
+money. According to one estimate, “Roach has sold about 60,000
videocassettes and 50,000 DVDs of the duo's silent
-films.»
+films.”
Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
this culture: selflessness. He argued in a brief before the Supreme
@@ -8879,7 +8885,7 @@ For most of the history of film, the costs of restoring film were very
high; digital technology has lowered these costs substantially. While
it cost more than $10,000 to restore a ninety-minute black-and-white
film in 1993, it can now cost as little as $100 to digitize one hour of
-8 mm film.
+8 mm film.
Restoration technology is not the only cost, nor the most
@@ -8896,8 +8902,8 @@ copyrights; there are as many as can hold the rights, which turns out
to be an extremely large number. Thus the costs of clearing the rights
to these films is exceptionally high.
-«But can't you just restore the film, distribute it, and then pay the
-copyright owner when she shows up?» Sure, if you want to commit a
+“But can't you just restore the film, distribute it, and then pay the
+copyright owner when she shows up?” Sure, if you want to commit a
felony. And even if you're not worried about committing a felony, when
she does show up, she'll have the right to sue you for all the profits you
have made. So, if you're successful, you can be fairly confident you'll be
@@ -8914,7 +8920,7 @@ these costs. But for the vast majority of them, there is no way the
would outweigh the legal costs. Thus, for the vast majority of old
films, Agee argued, the film will not be restored and distributed until
the copyright expires.
-
+
But by the time the copyright for these films expires, the film will
have expired. These films were produced on nitrate-based stock, and
nitrate stock dissolves over time. They will be gone, and the metal
@@ -8927,7 +8933,7 @@ by humans anywhere, a tiny fraction has continuing commercial
value. For that tiny fraction, the copyright is a crucially important
legal device. For that tiny fraction, the copyright creates incentives
to produce and distribute the creative work. For that tiny fraction,
-the copyright acts as an «engine of free expression.»
+the copyright acts as an “engine of free expression.”
But even for that tiny fraction, the actual time during which the
creative work has a commercial life is extremely short. As I've
@@ -8980,7 +8986,7 @@ that lost their commercial value. Long copyrights for these works
would not have interfered with anything.
But this situation has now changed.
-
+
One crucially important consequence of the emergence of digital
technologies is to enable the archive that Brewster Kahle dreams of.
Digital technologies now make it possible to preserve and give access
@@ -9012,21 +9018,21 @@ context, copyright is serving no purpose at all<
related to the spread of knowledge. In this context, copyright is not
an engine of free expression. Copyright is a brake.
-You may well ask, «But if digital technologies lower the costs for
+You may well ask, “But if digital technologies lower the costs for
Brewster Kahle, then they will lower the costs for Random House, too.
So won't Random House do as well as Brewster Kahle in spreading
-culture widely?»
-
+culture widely?”
+
Maybe. Someday. But there is absolutely no evidence to suggest that
publishers would be as complete as libraries. If Barnes & Noble
offered to lend books from its stores for a low price, would that
eliminate the need for libraries? Only if you think that the only role
-of a library is to serve what «the market» would demand. But if you
+of a library is to serve what “the market” would demand. But if you
think the role of a library is bigger than this—if you think its
role is to archive culture, whether there's a demand for any
particular bit of that culture or not—then we can't count on the
commercial market to do our library work for us.
-
+
I would be the first to agree that it should do as much as it can: We
should rely upon the market as much as possible to spread and enable
culture. My message is absolutely not antimarket. But where we see the
@@ -9037,7 +9043,7 @@ freedom to fill the gaps. As one researcher calculated for American
culture, 94 percent of the films, books, and music produced between
1923 and 1946 is not commercially available. However much you love the
commercial market, if access is a value, then 6 percent is a failure
-to provide that value.
+to provide that value.
In January 1999, we filed a lawsuit
@@ -9045,7 +9051,7 @@ on Eric Eldred's behalf in federal district court in Washington, D.C.,
asking the court to declare the Sonny Bono Copyright Term Extension
Act unconstitutional. The two central claims that we made were (1)
that extending existing terms violated the Constitution's
-«limited Times» requirement, and (2) that extending terms
+“limited Times” requirement, and (2) that extending terms
by another twenty years violated the First Amendment.
The district court dismissed our claims without even hearing an
@@ -9055,20 +9061,20 @@ that decision at least had a dissent, by one of the most conservative
judges on that court. That dissent gave our claims life.
Judge David Sentelle said the CTEA violated the requirement that
-copyrights be for «limited Times» only. His argument was as elegant as
+copyrights be for “limited Times” only. His argument was as elegant as
it was simple: If Congress can extend existing terms, then there is no
-«stopping point» to Congress's power under the Copyright Clause. The
+“stopping point” to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are «limited.» Thus, Judge Sentelle argued, the court had
-to interpret the term «limited Times» to give it meaning. And the best
+terms that are “limited.” Thus, Judge Sentelle argued, the court had
+to interpret the term “limited Times” to give it meaning. And the best
interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
We asked the Court of Appeals for the D.C. Circuit as a whole to
hear the case. Cases are ordinarily heard in panels of three, except for
important cases or cases that raise issues specific to the circuit as a
-whole, where the court will sit «en banc» to hear the case.
-
+whole, where the court will sit “en banc” to hear the case.
+
The Court of Appeals rejected our request to hear the case en banc.
This time, Judge Sentelle was joined by the most liberal member of the
@@ -9077,11 +9083,12 @@ D.C. Circuit, Judge David Tatel. Both the most conservative and the
most liberal judges in the D.C. Circuit believed Congress had
overstepped its bounds.
-It was here that most expected Eldred v. Ashcroft would die, for the
-Supreme Court rarely reviews any decision by a court of appeals. (It
-hears about one hundred cases a year, out of more than five thousand
-appeals.) And it practically never reviews a decision that upholds a
-statute when no other court has yet reviewed the statute.
+It was here that most expected Eldred
+v. Ashcroft would die, for the Supreme Court
+rarely reviews any decision by a court of appeals. (It hears about one
+hundred cases a year, out of more than five thousand appeals.) And it
+practically never reviews a decision that upholds a statute when no
+other court has yet reviewed the statute.
But in February 2002, the Supreme Court surprised the world by
granting our petition to review the D.C. Circuit opinion. Argument
@@ -9102,7 +9109,7 @@ But my client and these friends were wrong. This case could have
been won. It should have been won. And no matter how hard I try to
retell this story to myself, I can never escape believing that my own
mistake lost it.
-
+
The mistake was made early, though
it became obvious only at the very end. Our case had been supported
from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
@@ -9112,22 +9119,22 @@ Pogue. Jones Day took a great deal of heat
from its copyright-protectionist clients for supporting us. They
ignored this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
-
+
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
quite involved. Bromberg and Ayer in particular had a common view
about how this case would be won: We would only win, they repeatedly
-told me, if we could make the issue seem «important» to the Supreme
+told me, if we could make the issue seem “important” to the Supreme
Court. It had to seem as if dramatic harm were being done to free
-speech and free culture; otherwise, they would never vote against «the
-most powerful media companies in the world.»
-
+speech and free culture; otherwise, they would never vote against “the
+most powerful media companies in the world.”
+
I hate this view of the law. Of course I thought the Sonny Bono Act
was a dramatic harm to free speech and free culture. Of course I still
think it is. But the idea that the Supreme Court decides the law based
on how important they believe the issues are is just wrong. It might be
-«right» as in «true,» I thought, but it is «wrong» as in «it just shouldn't be
-that way.» As I believed that any faithful interpretation of what the
+“right” as in “true,” I thought, but it is “wrong” as in “it just shouldn't be
+that way.” As I believed that any faithful interpretation of what the
framers of our Constitution did would yield the conclusion that the
CTEA was unconstitutional, and as I believed that any faithful
interpretation
@@ -9166,16 +9173,16 @@ views. To show that this claim against the CTEA was grounded in
the widest range of credible critics—credible not because they
were rich and famous, but because they, in the aggregate, demonstrated
that this law was unconstitutional regardless of one's politics.
-
+
The first step happened all by itself. Phyllis Schlafly's
organization, Eagle Forum, had been an opponent of the CTEA from the
very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
Congress. In November 1998, she wrote a stinging editorial attacking
the Republican Congress for allowing the law to pass. As she wrote,
-«Do you sometimes wonder why bills that create a financial windfall to
+“Do you sometimes wonder why bills that create a financial windfall to
narrow special interests slide easily through the intricate
legislative process, while bills that benefit the general public seem
-to get bogged down?» The answer, as the editorial documented, was the
+to get bogged down?” The answer, as the editorial documented, was the
power of money. Schlafly enumerated Disney's contributions to the key
players on the committees. It was money, not justice, that gave Mickey
Mouse twenty more years in Disney's control, Schlafly argued.
@@ -9186,7 +9193,7 @@ core claim in the Supreme Court: If Congress can extend the term of
existing copyrights, there is no limit to Congress's power to set
terms. That strong conservative argument persuaded a strong
conservative judge, Judge Sentelle.
-
+
In the Supreme Court, the briefs on our side were about as diverse as
it gets. They included an extraordinary historical brief by the Free
@@ -9198,18 +9205,18 @@ 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.
-
+
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.
-
+
But two briefs captured the policy argument best. One made the
argument I've already described: A brief by Hal Roach Studios argued
that unless the law was struck, a whole generation of American film
would disappear. The other made the economic argument absolutely
clear.
-
+
This economists' brief was signed by seventeen economists, including
five Nobel Prize winners, including Ronald Coase, James Buchanan,
Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
@@ -9217,9 +9224,9 @@ the list of Nobel winners demonstrates, spanned the political
spectrum. Their conclusions were powerful: There was no plausible
claim that extending the terms of existing copyrights would do
anything to increase incentives to create. Such extensions were
-nothing more than «rent-seeking»—the fancy term economists use
+nothing more than “rent-seeking”—the fancy term economists use
to describe special-interest legislation gone wild.
-
+
The same effort at balance was reflected in the legal team we gathered
to write our briefs in the case. The Jones Day lawyers had been with
us from the start. But when the case got to the Supreme Court, we
@@ -9232,7 +9239,7 @@ 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 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
media companies the special favor of extended copyright terms. Fried
@@ -9245,7 +9252,7 @@ personally disagreed with, his joining the cause was a vote of
confidence in our argument.
The government, in defending the statute, had its collection of
-friends, as well. Significantly, however, none of these «friends» included
+friends, as well. Significantly, however, none of these “friends” included
historians or economists. The briefs on the other side of the case were
written exclusively by major media companies, congressmen, and
copyright holders.
@@ -9257,17 +9264,17 @@ contributions such power induced. And of course it was not surprising
that the copyright holders would defend the idea that they should
continue to have the right to control who did what with content they
wanted to control.
-
+
Dr. Seuss's representatives, for example, argued that it was
better for the Dr. Seuss estate to control what happened to
Dr. Seuss's work— better than allowing it to fall into the
public domain—because if this creativity were in the public
-domain, then people could use it to «glorify drugs or to create
-pornography.»
+domain, then people could use it to “glorify drugs or to create
+pornography.”
That was also the motive of the Gershwin estate, which defended its
-«protection» of the work of George Gershwin. They refuse, for example,
+“protection” of the work of George Gershwin. They refuse, for example,
to license Porgy and Bess to anyone who refuses to use African
-Americans in the cast.
+Americans in the cast.
That's
their view of how this part of American culture should be controlled,
@@ -9277,9 +9284,9 @@ This argument made clear a theme that is rarely noticed in this
debate. When Congress decides to extend the term of existing
copyrights, Congress is making a choice about which speakers it will
favor. Famous and beloved copyright owners, such as the Gershwin
-estate and Dr. Seuss, come to Congress and say, «Give us twenty years
+estate and Dr. Seuss, come to Congress and say, “Give us twenty years
to control the speech about these icons of American culture. We'll do
-better with them than anyone else.» Congress of course likes to reward
+better with them than anyone else.” Congress of course likes to reward
the popular and famous by giving them what they want. But when
Congress gives people an exclusive right to speak in a certain way,
that's just what the First Amendment is traditionally meant to block.
@@ -9293,16 +9300,16 @@ 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.
-
+
The Supreme Court was divided into two important camps. One camp we
-called «the Conservatives.» The other we called «the Rest.» The
+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.
-
+
The Rest were the four Justices who had strongly opposed limits on
Congress's power. These four—Justice Stevens, Justice Souter,
Justice Ginsburg, and Justice Breyer—had repeatedly argued that
@@ -9323,14 +9330,14 @@ the same intellectual property cloth. We expected she would agree with
the writings of her daughter: that Congress had the power in this
context to do as it wished, even if what Congress wished made little
sense.
-
+
Close behind Justice Ginsburg were two justices whom we also viewed as
unlikely allies, though possible surprises. Justice Souter strongly
favored deference to Congress, as did Justice Breyer. But both were
also very sensitive to free speech concerns. And as we strongly
believed, there was a very important free speech argument against
these retrospective extensions.
-
+
The only vote we could be confident about was that of Justice
Stevens. History will record Justice Stevens as one of the greatest
judges on this Court. His votes are consistently eclectic, which just
@@ -9338,7 +9345,7 @@ means that no simple ideology explains where he will stand. But he
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
+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
@@ -9346,7 +9353,7 @@ 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
@@ -9354,7 +9361,7 @@ responsible. We would get the Court to see that just as with the
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
+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
@@ -9366,14 +9373,14 @@ allowed to do it again. The government claimed that from the very
beginning, Congress has been extending the term of existing
copyrights. So, the government argued, the Court 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 1831
and in 1909. And of course, in 1962, Congress began extending
existing
terms regularly—eleven times in forty years.
-But this «consistency» should be kept in perspective. Congress
+But this “consistency” should be kept in perspective. Congress
extended
existing terms once in the first hundred years of the Republic.
It then extended existing terms once again in the next fifty. Those rare
@@ -9390,10 +9397,10 @@ There was no reason it couldn't intervene here.
Oral argument was scheduled for the
first week in October. I arrived in D.C. two weeks before the
argument. During those two weeks, I was repeatedly
-«mooted» by lawyers who had volunteered to
+“mooted” by lawyers who had volunteered to
-help in the case. Such «moots» are basically practice rounds, where
+help in the case. Such “moots” are basically practice rounds, where
wannabe justices fire questions at wannabe winners.
I was convinced that to win, I had to keep the Court focused on a
@@ -9404,18 +9411,18 @@ terms would be effectively unlimited; going with us would give
a clear line to follow: Don't extend existing terms. The moots
were an effective practice; I found ways to take every question back to
this central idea.
-
+
One moot was before the lawyers at Jones Day. Don Ayer was the
skeptic. He had served in the Reagan Justice Department with Solicitor
General Charles Fried. He had argued many cases before the Supreme
Court. And in his review of the moot, he let his concern speak:
-«I'm just afraid that unless they really see the harm, they won't be
+“I'm just afraid that unless they really see the harm, they won't be
willing to upset this practice that the government says has been a
consistent practice for two hundred years. You have to make them see
the harm—passionately get them to see the harm. For if they
-don't see that, then we haven't any chance of winning.»
-
+don't see that, then we haven't any chance of winning.”
+
He may have argued many cases before this Court, I thought, but
he didn't understand its soul. As a clerk, I had seen the Justices do the
right thing—not because of politics but because it was right. As a law
@@ -9452,7 +9459,7 @@ When the Chief Justice called me to begin my argument, I began
where I intended to stay: on the question of the limits on Congress's
power. This was a case about enumerated powers, I said, and whether
those enumerated powers had any limit.
-
+
Justice O'Connor stopped me within one minute of my opening.
The history was bothering her.
@@ -9461,8 +9468,8 @@ through the years, and if you are right, don't we run the risk of
upsetting previous extensions of time? I mean, this seems to be a
practice that began with the very first act.
-She was quite willing to concede «that this flies directly in the face
-of what the framers had in mind.» But my response again and again
+She was quite willing to concede “that this flies directly in the face
+of what the framers had in mind.” But my response again and again
was to emphasize limits on Congress's power.
mr. lessig: Well, if it flies in the face of what the framers had in
@@ -9490,13 +9497,13 @@ Nothing in our Copyright Clause claim hangs upon the empirical
assertion about impeding progress. Our only argument is this is a
structural limit necessary to assure that what would be an effectively
perpetual term not be permitted under the copyright laws.
-
+
That was a correct answer, but it wasn't the right answer. The right
answer was instead that there was an obvious and profound harm. Any
number of briefs had been written about it. He wanted to hear it. And
here was the place Don Ayer's advice should have mattered. This was a
softball; my answer was a swing and a miss.
-
+
The second came from the Chief, for whom the whole case had been
crafted. For the Chief Justice had crafted the Lopez ruling,
and we hoped that he would see this case as its second cousin.
@@ -9515,7 +9522,7 @@ should be in the public domain and would be in the public
but for a statute that cannot be justified under ordinary First
Amendment analysis or under a proper reading of the limits built
into the Copyright Clause.
-
+
Things went better for us when the government gave its argument;
for now the Court picked up on the core of our claim. As Justice Scalia
asked Solicitor General Olson,
@@ -9575,13 +9582,13 @@ My reasoning. Here was a case that pitted
money in the world against reasoning. And here
was the last naïve law professor, scouring the pages, looking for
reasoning.
-
+
I first scoured the opinion, looking for how the Court would
distinguish the principle in this case from the principle in
Lopez. The argument was nowhere to be found. The case was not even
cited. The argument that was the core argument of our case did not
even appear in the Court's opinion.
-
+
Justice Ginsburg simply ignored the enumerated powers argument.
@@ -9602,7 +9609,7 @@ argument. There was no inconsistency because they would not
talk about the two together. There was therefore no principle that
followed from the Lopez case: In that context, Congress's power would
be limited, but in this context it would not.
-
+
Yet by what right did they get to choose which of the framers' values
they would respect? By what right did they—the silent
five—get to select the part of the Constitution they would
@@ -9612,7 +9619,7 @@ convince them that the issue here was important, and I had failed to
recognize that however much I might hate a system in which the Court
gets to pick the constitutional values that it will respect, that is
the system we have.
-
+
Justices Breyer and Stevens wrote very strong dissents. Stevens's
opinion was crafted internal to the law: He argued that the tradition
of intellectual property law should not support this unjustified
@@ -9622,7 +9629,7 @@ the Court discounted the parallel—without explaining how the
very same words in the Progress Clause could come to mean totally
different things depending upon whether the words were about patents
or copyrights. The Court let Justice Stevens's charge go unanswered.
-
+
Justice Breyer's opinion, perhaps the best opinion he has ever
written, was external to the Constitution. He argued that the term of
@@ -9631,9 +9638,9 @@ said that under the current term, a copyright gave an author 99.8
percent of the value of a perpetual term. Breyer said we were wrong,
that the actual number was 99.9997 percent of a perpetual term. Either
way, the point was clear: If the Constitution said a term had to be
-«limited,» and the existing term was so long as to be effectively
+“limited,” and the existing term was so long as to be effectively
unlimited, then it was unconstitutional.
-
+
These two justices understood all the arguments we had made. But
because neither believed in the Lopez case, neither was willing to push
it as a reason to reject this extension. The case was decided without
@@ -9644,19 +9651,19 @@ Sentelle. It was Hamlet without the Prince.
it is a sign of health when depression gives way to anger. My anger
came quickly, but it didn't cure the depression. This anger was of two
sorts.
-
-It was first anger with the five «Conservatives.» It would have been
+
+It was first anger with the five “Conservatives.” It would have been
one thing for them to have explained why the principle of Lopez didn't
apply in this case. That wouldn't have been a very convincing
argument, I don't believe, having read it made by others, and having
tried to make it myself. But it at least would have been an act of
integrity. These justices in particular have repeatedly said that the
-proper mode of interpreting the Constitution is «originalism»—to
+proper mode of interpreting the Constitution is “originalism”—to
first understand the framers' text, interpreted in their context, in
light of the structure of the Constitution. That method had produced
-Lopez and many other «originalist» rulings. Where was their
-«originalism» now?
-
+Lopez and many other “originalist” rulings. Where was their
+“originalism” now?
+
Here, they had joined an opinion that never once tried to explain
what the framers had meant by crafting the Progress Clause as they
did; they joined an opinion that never once tried to explain how the
@@ -9675,7 +9682,7 @@ My anger with the Conservatives quickly yielded to anger with
myself.
For I had let a view of the law that I liked interfere with a view of
the law as it is.
-
+
Most lawyers, and most law professors, have little patience for
idealism about courts in general and this Supreme Court in particular.
Most have a much more pragmatic view. When Don Ayer said that this
@@ -9703,7 +9710,7 @@ effort to persuade; but I
refused to stand before this audience and try to persuade with the
passion I had used elsewhere. It was not the basis on which a court
should decide the issue.
-
+
Would it have been different if I had argued it differently? Would it
have been different if Don Ayer had argued it? Or Charles Fried? Or
Kathleen Sullivan?
@@ -9718,11 +9725,11 @@ doing anything except the right thing. They are not lobbied. They have
little reason to resist doing right. I can't help but think that if I had
stepped down from this pretty picture of dispassionate justice, I could
have persuaded.
-
+
And even if I couldn't, then that doesn't excuse what happened in
January. For at the start of this case, one of America's leading
intellectual property professors stated publicly that my bringing this
-case was a mistake. «The Court is not ready,» Peter Jaszi said; this
+case was a mistake. “The Court is not ready,” Peter Jaszi said; this
issue should not be raised until it is.
After the argument and after the decision, Peter said to me, and
@@ -9756,21 +9763,21 @@ 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 in figure
-13.1. The «powerful
-and wealthy» line is a bit unfair. But the punch in the face
+13.1. The “powerful
+and wealthy” line is a bit unfair. But the punch in the face
felt exactly like that.
-
-
+
+
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
-«public domain» is over? When I can make light of it, I think, «Honey,
-I shrunk the Constitution.» But I can rarely make light of it. We had
+quote from The New York Times. That “grand experiment” we call the
+“public domain” is over? When I can make light of it, I think, “Honey,
+I shrunk the Constitution.” But I can rarely make light of it. We had
in our Constitution a commitment to free culture. In the case that I
fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
-
