X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/bb097b556736b82bb6616871868b11a471738678..e5909bf41ef0d1edd253e52f0c2eb9679c52c314:/freeculture.pot diff --git a/freeculture.pot b/freeculture.pot index a1d86af..0886c7b 100644 --- a/freeculture.pot +++ b/freeculture.pot @@ -7,7 +7,7 @@ msgid "" msgstr "" "Project-Id-Version: PACKAGE VERSION\n" -"POT-Creation-Date: 2012-07-19 21:43+0300\n" +"POT-Creation-Date: 2012-07-27 20:12+0300\n" "PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n" "Last-Translator: FULL NAME \n" "Language-Team: LANGUAGE \n" @@ -17,59 +17,74 @@ msgstr "" "Content-Transfer-Encoding: 8bit\n" #. type: Content of the copy entity -#: freeculture.xml:13 +#: freeculture.xml:12 msgid "©" msgstr "" #. type: Attribute 'lang' of: -#: freeculture.xml:19 +#: freeculture.xml:18 msgid "en" msgstr "" #. type: Content of: -#: freeculture.xml:21 +#: freeculture.xml:20 msgid "Free Culture" msgstr "" #. type: Content of: <book><bookinfo> -#: freeculture.xml:23 +#: freeculture.xml:22 msgid "<abbrev>\"freeculture\"</abbrev>" msgstr "" -#. type: Content of: <book><bookinfo><subtitle> -#: freeculture.xml:25 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:24 freeculture.xml:112 +msgid "" +"HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL " +"CREATIVITY" +msgstr "" + +#. type: Content of: <book><bookinfo> +#: freeculture.xml:27 +msgid "<pubdate>2004-03-25</pubdate>" +msgstr "" + +#. type: Content of: <book><bookinfo><releaseinfo> +#: freeculture.xml:29 msgid "Version 2004-02-10" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><firstname> -#: freeculture.xml:29 +#: freeculture.xml:33 msgid "Lawrence" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><surname> -#: freeculture.xml:30 +#: freeculture.xml:34 msgid "Lessig" msgstr "" #. type: Content of: <book><bookinfo> -#: freeculture.xml:34 +#: freeculture.xml:38 +msgid "<copyright> <year>2004</year> <holder>Lawrence Lessig</holder> </copyright>" +msgstr "" + +#. type: Content of: <book><bookinfo><legalnotice><para> +#: freeculture.xml:45 msgid "" -"<copyright> <year>2004</year> <holder> Lawrence Lessig. This version of " -"Free Culture is licensed under a Creative Commons license. This license " -"permits non-commercial use of this work, so long as attribution is given. " -"For more information about the license, click the icon above, or visit " -"<ulink " -"url=\"http://creativecommons.org/licenses/by-nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink> " -"</holder> </copyright>" +"This version of <citetitle>Free Culture</citetitle> is licensed under a " +"Creative Commons license. This license permits non-commercial use of this " +"work, so long as attribution is given. For more information about the " +"license, click the icon above, or visit <ulink " +"url=\"http://creativecommons.org/licenses/by-nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink>" msgstr "" #. type: Content of: <book><bookinfo><abstract><title> -#: freeculture.xml:49 +#: freeculture.xml:54 msgid "ABOUT THE AUTHOR" msgstr "" #. type: Content of: <book><bookinfo><abstract><para> -#: freeculture.xml:51 +#: freeculture.xml:56 msgid "" "LAWRENCE LESSIG (<ulink " "url=\"http://www.lessig.org/\">http://www.lessig.org</ulink>), professor of " @@ -88,191 +103,168 @@ msgid "" "Court of Appeals." msgstr "" -#. type: Content of: <book><chapter><title> -#: freeculture.xml:72 -msgid "Info" -msgstr "" - -#. type: Content of: <book><chapter><para> -#: freeculture.xml:76 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:80 msgid "You can buy a copy of this book by clicking on one of the links below:" msgstr "" -#. type: Content of: <book><chapter><itemizedlist><listitem><para> -#: freeculture.xml:79 +#. type: Content of: <book><colophon><itemizedlist><listitem><para> +#: freeculture.xml:83 msgid "<ulink url=\"http://www.amazon.com/\">Amazon</ulink>" msgstr "" -#. type: Content of: <book><chapter><itemizedlist><listitem><para> -#: freeculture.xml:80 +#. type: Content of: <book><colophon><itemizedlist><listitem><para> +#: freeculture.xml:84 msgid "<ulink url=\"http://www.barnesandnoble.com/\">B&N</ulink>" msgstr "" -#. type: Content of: <book><chapter><itemizedlist><listitem><para> -#: freeculture.xml:81 +#. type: Content of: <book><colophon><itemizedlist><listitem><para> +#: freeculture.xml:85 msgid "<ulink url=\"http://www.penguin.com/\">Penguin</ulink>" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:88 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:92 msgid "ALSO BY LAWRENCE LESSIG" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:91 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:95 msgid "The Future of Ideas: The Fate of the Commons in a Connected World" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:95 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:98 msgid "Code: And Other Laws of Cyberspace" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:100 freeculture.xml:123 -msgid "THE PENGUIN PRESS" -msgstr "" - -#. type: Content of: <book><chapter><para> +#. type: Content of: <book><colophon><para> #: freeculture.xml:103 -msgid "NEW YORK" +msgid "THE PENGUIN PRESS, NEW YORK" msgstr "" -#. type: Content of: <book><chapter><para> +#. type: Content of: <book><colophon><para> #: freeculture.xml:108 msgid "FREE CULTURE" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:112 -msgid "" -"HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL " -"CREATIVITY" -msgstr "" - -#. type: Content of: <book><chapter><para> +#. type: Content of: <book><colophon><para> #: freeculture.xml:118 msgid "LAWRENCE LESSIG" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:126 -msgid "a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New York" -msgstr "" - -#. type: Content of: <book><chapter><para> -#: freeculture.xml:130 -msgid "Copyright © Lawrence Lessig," +#. type: Content of: <book><colophon><para> +#: freeculture.xml:123 +msgid "" +"THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street " +"New York, New York" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:133 -msgid "All rights reserved" +#. type: Content of: <book><colophon><para> +#: freeculture.xml:127 +msgid "Copyright © Lawrence Lessig. All rights reserved." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:136 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:130 msgid "" -"Excerpt from an editorial titled \"The Coming of Copyright Perpetuity,\" The " -"New York Times, January 16, 2003. Copyright © 2003 by The New York " -"Times Co. Reprinted with permission." +"Excerpt from an editorial titled \"The Coming of Copyright Perpetuity,\" " +"<citetitle>The New York Times</citetitle>, January 16, 2003. Copyright " +"© 2003 by The New York Times Co. Reprinted with permission." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:141 -msgid "Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc." -msgstr "" - -#. type: Content of: <book><chapter><para> -#: freeculture.xml:144 -msgid "All rights reserved. Reprinted with permission." +#. type: Content of: <book><colophon><para> +#: freeculture.xml:135 +msgid "" +"Cartoon in <xref linkend=\"fig-1711\"/> by Paul Conrad, copyright Tribune " +"Media Services, Inc. All rights reserved. Reprinted with permission." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:147 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:139 msgid "" -"Diagram on page 164 courtesy of the office of FCC Commissioner, Michael " -"J. Copps." +"Diagram in <xref linkend=\"fig-1761\"/> courtesy of the office of FCC " +"Commissioner, Michael J. Copps." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:150 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:143 msgid "Library of Congress Cataloging-in-Publication Data" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:153 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:146 msgid "" "Lessig, Lawrence. Free culture : how big media uses technology and the law " "to lock down culture and control creativity / Lawrence Lessig." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:158 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:151 msgid "p. cm." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:161 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:154 msgid "Includes index." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:164 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:157 msgid "ISBN 1-59420-006-8 (hardcover)" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:167 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:160 msgid "" "1. Intellectual property—United States. 2. Mass media—United " "States." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:170 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:163 msgid "" "3. Technological innovations—United States. 4. Art—United " "States. I. Title." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:173 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:166 msgid "KF2979.L47" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:176 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:169 msgid "343.7309'9—dc22" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:179 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:172 msgid "This book is printed on acid-free paper." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:182 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:175 msgid "Printed in the United States of America" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:185 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:178 msgid "1 3 5 7 9 10 8 6 4" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:188 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:181 msgid "Designed by Marysarah Quinn" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:192 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:185 msgid "&translationblock;" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:196 +#. type: Content of: <book><colophon><para> +#: freeculture.xml:189 msgid "" "Without limiting the rights under copyright reserved above, no part of this " "publication may be reproduced, stored in or introduced into a retrieval " @@ -286,49 +278,59 @@ msgid "" "materials. Your support of the author's rights is appreciated." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:211 +#. type: Content of: <book><dedication><para> +#: freeculture.xml:206 msgid "" "To Eric Eldred—whose work first drew me to this cause, and for whom it " "continues still." msgstr "" -#. type: Content of: <book><chapter><figure><title> -#: freeculture.xml:216 +#. type: Content of: <book><dedication><para><figure><title> +#: freeculture.xml:212 msgid "Creative Commons, Some rights reserved" msgstr "" -#. type: Content of: <book><chapter><figure> -#: freeculture.xml:217 +#. type: Content of: <book><dedication><para><figure> +#: freeculture.xml:213 msgid "<graphic fileref=\"images/cc.png\"></graphic>" msgstr "" -#. type: Content of: <book><chapter><lot><title> -#: freeculture.xml:223 +#. type: Content of: <book><dedication><para> +#: freeculture.xml:211 +msgid "<placeholder type=\"figure\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><lot><title> +#: freeculture.xml:221 msgid "List of figures" msgstr "" -#. type: Content of: <book><chapter><title> -#: freeculture.xml:286 +#. type: Content of: <book><preface><title> +#: freeculture.xml:283 msgid "PREFACE" msgstr "" -#. type: Content of: <book><chapter><para> +#. type: Content of: <book><preface><indexterm><primary> +#: freeculture.xml:285 +msgid "Pogue, David" +msgstr "" + +#. type: Content of: <book><preface><para> #: freeculture.xml:288 msgid "" -"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 computer-related texts, wrote this:" +"At the end of his review of my first book, <citetitle>Code: And Other Laws " +"of Cyberspace</citetitle>, David Pogue, a brilliant writer and author of " +"countless technical and computer-related texts, wrote this:" msgstr "" -#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#. type: Content of: <book><preface><blockquote><para><footnote><para> #: freeculture.xml:298 msgid "" -"David Pogue, \"Don't Just Chat, Do Something,\" New York Times, 30 January " -"2000." +"David Pogue, \"Don't Just Chat, Do Something,\" <citetitle>New York " +"Times</citetitle>, 30 January 2000." msgstr "" -#. type: Content of: <book><chapter><blockquote><para> +#. type: Content of: <book><preface><blockquote><para> #: freeculture.xml:294 msgid "" "Unlike actual law, Internet software has no capacity to punish. It doesn't " @@ -337,47 +339,48 @@ msgid "" "flip off the modem.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" -#. type: Content of: <book><chapter><para> +#. type: Content of: <book><preface><para> #: freeculture.xml:303 msgid "" "Pogue was skeptical of the core argument of the book—that 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 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." +"off the modem, unplug the computer, and any troubles that exist in " +"<emphasis>that</emphasis> space wouldn't \"affect\" us anymore." msgstr "" #. PAGE BREAK 12 -#. type: Content of: <book><chapter><para> -#: freeculture.xml:311 +#. type: Content of: <book><preface><para> +#: freeculture.xml:312 msgid "" "Pogue might have been right in 1999—I'm skeptical, but maybe. But " -"even if he was right then, the point is not right now: Free Culture is about " -"the troubles the Internet causes even after the modem is turned off. It is " -"an argument about how the battles that now rage regarding life on-line have " -"fundamentally affected \"people who aren't online.\" There is no switch that " -"will insulate us from the Internet's effect." +"even if he was right then, the point is not right now: <citetitle>Free " +"Culture</citetitle> is about the troubles the Internet causes even after the " +"modem is turned off. It is an argument about how the battles that now rage " +"regarding life on-line have fundamentally affected \"people who aren't " +"online.\" There is no switch that will insulate us from the Internet's " +"effect." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:320 +#. type: Content of: <book><preface><para> +#: freeculture.xml:323 msgid "" -"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, and, as hard as this is for a geek-wanna-be " -"to admit, much more important." +"But unlike <citetitle>Code</citetitle>, 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, and, as hard as this " +"is for a geek-wanna-be to admit, much more important." msgstr "" -#. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:331 +#. type: Content of: <book><preface><para><footnote><para> +#: freeculture.xml:335 msgid "" -"Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, " -"ed. 2002)." +"Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 " +"(Joshua Gay, ed. 2002)." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:326 +#. type: Content of: <book><preface><para> +#: freeculture.xml:330 msgid "" "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\" " @@ -387,16 +390,16 @@ msgid "" "\"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 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 only with the permission of the " -"powerful, or of creators from the past." +"rights, to guarantee that follow-on creators and innovators remain " +"<emphasis>as free as possible</emphasis> 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 only " +"with the permission of the powerful, or of creators from the past." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:345 +#. type: Content of: <book><preface><para> +#: freeculture.xml:350 msgid "" "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 " @@ -407,12 +410,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:353 freeculture.xml:12745 +#: freeculture.xml:358 freeculture.xml:12674 msgid "CodePink Women in Peace" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:355 +#. type: Content of: <book><chapter><para><indexterm><primary> +#: freeculture.xml:369 freeculture.xml:379 freeculture.xml:12687 +msgid "Safire, William" +msgstr "" + +#. type: Content of: <book><preface><para> +#: freeculture.xml:360 msgid "" "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 " @@ -421,16 +429,19 @@ msgid "" "marching \"uncomfortably alongside CodePink Women for Peace and the National " "Rifle Association, between liberal Olympia Snowe and conservative Ted " "Stevens,\" he formulated perhaps most simply just what was at stake: the " -"concentration of power. And as he asked," +"concentration of power. And as he asked, <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" -#. type: Content of: <book><chapter><blockquote><para><footnote><para> -#: freeculture.xml:371 -msgid "William Safire, \"The Great Media Gulp,\" New York Times, 22 May 2003." +#. type: Content of: <book><preface><blockquote><para><footnote><para> +#: freeculture.xml:377 +msgid "" +"William Safire, \"The Great Media Gulp,\" <citetitle>New York " +"Times</citetitle>, 22 May 2003. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" -#. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:367 +#. type: Content of: <book><preface><blockquote><para> +#: freeculture.xml:373 msgid "" "Does that sound unconservative? Not to me. The concentration of " "power—political, corporate, media, cultural—should be anathema " @@ -439,27 +450,28 @@ msgid "" "greatest expression of democracy.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:377 +#. type: Content of: <book><preface><para> +#: freeculture.xml:384 msgid "" -"This idea is an element of the argument of Free Culture, though my focus is " -"not just on the concentration of power produced by concentrations in " -"ownership, but more importantly, if because less visibly, on the " -"concentration of power produced by a radical change in 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." +"This idea is an element of the argument of <citetitle>Free " +"Culture</citetitle>, though my focus is not just on the concentration of " +"power produced by concentrations in ownership, but more importantly, if " +"because less visibly, on the concentration of power produced by a radical " +"change in 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 <citetitle>Free Software, Free Society</citetitle>, " +"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." msgstr "" #. PAGE BREAK 14 -#. type: Content of: <book><chapter><para> -#: freeculture.xml:393 +#. type: Content of: <book><preface><para> +#: freeculture.xml:400 msgid "" "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 book than to " @@ -476,8 +488,8 @@ msgid "" "freedom. Anarchy is not what I advance here." msgstr "" -#. type: Content of: <book><chapter><para> -#: freeculture.xml:411 +#. type: Content of: <book><preface><para> +#: freeculture.xml:418 msgid "" "Instead, the free culture that I defend in this book is a balance between " "anarchy and control. A free culture, like a free market, is filled with " @@ -489,12 +501,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:426 +#: freeculture.xml:433 msgid "INTRODUCTION" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:428 +#: freeculture.xml:435 msgid "" "On December 17, 1903, on a windy North Carolina beach for just shy of one " "hundred seconds, the Wright brothers demonstrated that a heavier-than-air, " @@ -505,14 +517,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:440 +#: freeculture.xml:447 msgid "" -"St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: " -"Rothman Reprints, 1969), 18." +"St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South " +"Hackensack, N.J.: Rothman Reprints, 1969), 18." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:436 +#: freeculture.xml:443 msgid "" "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, " @@ -525,7 +537,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:449 +#: freeculture.xml:456 msgid "" "Then came airplanes, and for the first time, this principle of American " "law—deep within the foundations of our tradition, and acknowledged by " @@ -537,17 +549,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:457 freeculture.xml:470 freeculture.xml:501 freeculture.xml:520 freeculture.xml:920 freeculture.xml:937 freeculture.xml:987 freeculture.xml:8769 freeculture.xml:12143 freeculture.xml:12847 +#: freeculture.xml:464 freeculture.xml:477 freeculture.xml:508 freeculture.xml:527 freeculture.xml:927 freeculture.xml:944 freeculture.xml:990 freeculture.xml:8724 freeculture.xml:12077 freeculture.xml:12778 msgid "Causby, Thomas Lee" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:458 freeculture.xml:471 freeculture.xml:502 freeculture.xml:521 freeculture.xml:921 freeculture.xml:938 freeculture.xml:988 freeculture.xml:8770 freeculture.xml:12144 freeculture.xml:12848 +#: freeculture.xml:465 freeculture.xml:478 freeculture.xml:509 freeculture.xml:528 freeculture.xml:928 freeculture.xml:945 freeculture.xml:991 freeculture.xml:8725 freeculture.xml:12078 freeculture.xml:12779 msgid "Causby, Tinie" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:460 +#: freeculture.xml:467 msgid "" "In 1945, these questions became a federal case. When North Carolina farmers " "Thomas Lee and Tinie Causby started losing chickens because of low-flying " @@ -561,7 +573,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:473 +#: freeculture.xml:480 msgid "" "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, " @@ -574,20 +586,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> -#: freeculture.xml:493 +#: freeculture.xml:500 msgid "" "United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that " "there could be a \"taking\" if the government's use of its land effectively " "destroyed the value of the Causbys' land. This example was suggested to me " "by Keith Aoki's wonderful piece, \"(Intellectual) Property and Sovereignty: " -"Notes Toward a Cultural Geography of Authorship,\" Stanford Law Review 48 " -"(1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: " -"Foundation Press, 1984), 1112–13. <placeholder type=\"indexterm\" " -"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" +"Notes Toward a Cultural Geography of Authorship,\" <citetitle>Stanford Law " +"Review</citetitle> 48 (1996): 1293, 1333. See also Paul Goldstein, " +"<citetitle>Real Property</citetitle> (Mineola, N.Y.: Foundation Press, " +"1984), 1112–13. <placeholder type=\"indexterm\" id=\"0\"/> " +"<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:484 +#: freeculture.xml:491 msgid "" "[The] doctrine has no place in the modern world. The air is a public " "highway, as Congress has declared. Were that not true, every " @@ -600,13 +613,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:507 +#: freeculture.xml:514 msgid "\"Common sense revolts at the idea.\"" msgstr "" #. PAGE BREAK 18 #. type: Content of: <book><chapter><para> -#: freeculture.xml:510 +#: freeculture.xml:517 msgid "" "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 " @@ -619,7 +632,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:523 +#: freeculture.xml:530 msgid "" "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 " @@ -639,12 +652,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> -#: freeculture.xml:552 +#: freeculture.xml:559 +msgid "Bell, Alexander Graham" +msgstr "" + +#. type: Content of: <book><chapter><para><indexterm><primary> +#: freeculture.xml:560 +msgid "Edison, Thomas" +msgstr "" + +#. type: Content of: <book><chapter><para><indexterm><primary> +#: freeculture.xml:561 msgid "Faraday, Michael" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:541 +#: freeculture.xml:548 msgid "" "Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He " "came to the great American inventor scene just after the titans Thomas " @@ -655,11 +678,12 @@ msgid "" "he had the same intuition about how the world of radio worked, and on at " "least three occasions, Armstrong invented profoundly important technologies " "that advanced our understanding of radio. <placeholder type=\"indexterm\" " -"id=\"0\"/>" +"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " +"type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:555 +#: freeculture.xml:564 msgid "" "On the day after Christmas, 1933, four patents were issued to Armstrong for " "his most significant invention—FM radio. Until then, consumer radio " @@ -671,7 +695,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:565 +#: freeculture.xml:574 msgid "" "On November 5, 1935, he demonstrated the technology at a meeting of the " "Institute of Radio Engineers at the Empire State Building in New York " @@ -684,19 +708,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:576 +#: freeculture.xml:585 msgid "The audience was hearing something no one had thought possible:" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> -#: freeculture.xml:587 +#: freeculture.xml:596 msgid "" -"Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong " -"(Philadelphia: J. B. Lipincott Company, 1956), 209." +"Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard " +"Armstrong</citetitle> (Philadelphia: J. B. Lipincott Company, 1956), 209." msgstr "" #. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:580 +#: freeculture.xml:589 msgid "" "A glass of water was poured before the microphone in Yonkers; it sounded " "like a glass of water being poured. . . . A paper was crumpled and torn; it " @@ -709,7 +733,7 @@ msgstr "" #. PAGE BREAK 20 #. type: Content of: <book><chapter><para> -#: freeculture.xml:593 +#: freeculture.xml:602 msgid "" "As our own common sense tells us, Armstrong had discovered a vastly superior " "radio technology. But at the time of his invention, Armstrong was working " @@ -719,18 +743,23 @@ msgid "" "networks." msgstr "" +#. type: Content of: <book><chapter><para><indexterm><primary> +#: freeculture.xml:616 freeculture.xml:636 +msgid "Sarnoff, David" +msgstr "" + #. type: Content of: <book><chapter><para> -#: freeculture.xml:602 +#: freeculture.xml:611 msgid "" "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 his invention, Sarnoff was " -"not pleased." +"not pleased. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> -#: freeculture.xml:613 +#: freeculture.xml:623 msgid "" "See \"Saints: The Heroes and Geniuses of the Electronic Era,\" First " "Electronic Church of America, at www.webstationone.com/fecha, available at " @@ -738,7 +767,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:610 +#: freeculture.xml:620 msgid "" "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 " @@ -747,20 +776,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:622 +#: freeculture.xml:632 msgid "" "Armstrong's invention threatened RCA's AM empire, so the company launched a " "campaign to smother FM radio. While FM may have been a superior technology, " -"Sarnoff was a superior tactician. As one author described," +"Sarnoff was a superior tactician. As one author described, <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> -#: freeculture.xml:634 +#: freeculture.xml:645 msgid "Lessing, 226." msgstr "" #. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:629 +#: freeculture.xml:640 msgid "" "The forces for FM, largely engineering, could not overcome the weight of " "strategy devised by the sales, patent, and legal offices to subdue this " @@ -771,7 +801,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:639 +#: freeculture.xml:650 msgid "" "RCA at first kept the technology in house, insisting that further tests were " "needed. When, after two years of testing, Armstrong grew impatient, RCA " @@ -787,12 +817,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> -#: freeculture.xml:658 +#: freeculture.xml:669 msgid "Lessing, 256." msgstr "" #. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:654 +#: freeculture.xml:665 msgid "" "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, " @@ -801,12 +831,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:662 +#: freeculture.xml:673 msgid "AT&T" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:664 +#: freeculture.xml:675 msgid "" "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 " @@ -818,7 +848,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:674 +#: freeculture.xml:685 msgid "" "Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's " "patents. After incorporating FM technology into the emerging standard for " @@ -833,7 +863,7 @@ msgstr "" #. PAGE BREAK 22 #. type: Content of: <book><chapter><para> -#: freeculture.xml:686 +#: freeculture.xml:697 msgid "" "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, " @@ -849,7 +879,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:708 +#: freeculture.xml:719 msgid "" "Amanda Lenhart, \"The Ever-Shifting Internet Population: A New Look at " "Internet Access and the Digital Divide,\" Pew Internet and American Life " @@ -858,7 +888,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:702 +#: freeculture.xml:713 msgid "" "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 " @@ -869,7 +899,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:717 +#: freeculture.xml:728 msgid "" "As the Internet has been integrated into ordinary life, it has changed " "things. Some of these changes are technical—the Internet has made " @@ -883,7 +913,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:728 +#: freeculture.xml:739 msgid "" "Instead, this book is about an effect of the Internet beyond the Internet " "itself: an effect upon how culture is made. My claim is that the Internet " @@ -895,7 +925,7 @@ msgstr "" #. PAGE BREAK 23 #. type: Content of: <book><chapter><para> -#: freeculture.xml:737 +#: freeculture.xml:748 msgid "" "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 " @@ -908,7 +938,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:749 +#: freeculture.xml:760 msgid "" "At the beginning of our history, and for just about the whole of our " "tradition, noncommercial culture was essentially unregulated. Of course, if " @@ -922,12 +952,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> -#: freeculture.xml:774 freeculture.xml:1786 freeculture.xml:1797 +#: freeculture.xml:785 freeculture.xml:1798 freeculture.xml:1809 msgid "Brandeis, Louis D." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:766 +#: freeculture.xml:777 msgid "" "This is not the only purpose of copyright, though it is the overwhelmingly " "primary purpose of the copyright established in the federal constitution. " @@ -940,7 +970,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:760 +#: freeculture.xml:771 msgid "" "The focus of the law was on commercial creativity. At first slightly, then " "quite extensively, the law protected the incentives of creators by granting " @@ -953,14 +983,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:784 +#: freeculture.xml:795 msgid "" -"See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), " -"ch. 13." +"See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: " +"Prometheus Books, 2001), ch. 13." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:782 +#: freeculture.xml:793 msgid "" "This rough divide between the free and the controlled has now been " "erased.<placeholder type=\"footnote\" id=\"0\"/> The Internet has set the " @@ -976,7 +1006,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:800 +#: freeculture.xml:811 msgid "" "This change gets justified as necessary to protect commercial creativity. " "And indeed, protectionism is precisely its motivation. But the protectionism " @@ -990,7 +1020,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:813 +#: freeculture.xml:824 msgid "" "For the Internet has unleashed an extraordinary possibility for many to " "participate in the process of building and cultivating a culture that " @@ -1011,7 +1041,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:832 +#: freeculture.xml:843 msgid "" "Yet, as I argue in the pages that follow, that is precisely what is " "happening in our culture today. These modern-day equivalents of the early " @@ -1022,15 +1052,15 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:849 +#: freeculture.xml:860 msgid "" "Amy Harmon, \"Black Hawk Download: Moving Beyond Music, Pirates Use New " -"Tools to Turn the Net into an Illicit Video Club,\" New York Times, 17 " -"January 2002." +"Tools to Turn the Net into an Illicit Video Club,\" <citetitle>New York " +"Times</citetitle>, 17 January 2002." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:841 +#: freeculture.xml:852 msgid "" "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 " @@ -1045,7 +1075,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:858 +#: freeculture.xml:869 msgid "" "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 " @@ -1055,7 +1085,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:866 +#: freeculture.xml:877 msgid "" "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 " @@ -1064,19 +1094,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> -#: freeculture.xml:880 freeculture.xml:14083 +#: freeculture.xml:891 freeculture.xml:14031 msgid "Netanel, Neil Weinstock" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:878 +#: freeculture.xml:889 msgid "" -"Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" Yale Law " -"Journal 106 (1996): 283. <placeholder type=\"indexterm\" id=\"0\"/>" +"Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" " +"<citetitle>Yale Law Journal</citetitle> 106 (1996): 283. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:872 +#: freeculture.xml:883 msgid "" "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 " @@ -1090,7 +1121,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:888 +#: freeculture.xml:899 msgid "" "Yet the law's response to the Internet, when tied to changes in the " "technology of the Internet itself, has massively increased the effective " @@ -1103,7 +1134,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:900 +#: freeculture.xml:911 msgid "" "The story that follows is about this war. Is it not about the \"centrality " "of technology\" to ordinary life. I don't believe in gods, digital or " @@ -1113,7 +1144,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:909 +#: freeculture.xml:919 msgid "" "It is instead an effort to understand a hopelessly destructive war inspired " "by the technologies of the Internet but reaching far beyond its code. And by " @@ -1125,7 +1156,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:923 +#: freeculture.xml:930 msgid "" "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 " @@ -1143,7 +1174,7 @@ msgstr "" #. PAGE BREAK 27 #. type: Content of: <book><chapter><para> -#: freeculture.xml:940 +#: freeculture.xml:947 msgid "" "And thus, when geeks and technologists defend their Armstrong or Wright " "brothers technology, most of us are simply unsympathetic. Common sense does " @@ -1153,19 +1184,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:950 +#: freeculture.xml:957 msgid "" "My hope is to push this common sense along. I have become increasingly " "amazed by the power of this idea of intellectual property and, more " "importantly, its power to disable critical thought by policy makers and " "citizens. There has never been a time in our history when more of our " "\"culture\" was as \"owned\" as it is now. And yet there has never been a " -"time when the concentration of power to control the uses of culture has been " -"as unquestioningly accepted as it is now." +"time when the concentration of power to control the " +"<emphasis>uses</emphasis> of culture has been as unquestioningly accepted as " +"it is now." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:960 +#: freeculture.xml:967 msgid "" "The puzzle is, Why? Is it because we have come to understand a truth about " "the value and importance of absolute property over ideas and culture? Is it " @@ -1174,14 +1206,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:969 +#: freeculture.xml:973 msgid "" "Or is it because the idea of absolute property over ideas and culture " "benefits the RCAs of our time and fits our own unreflective intuitions?" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:973 +#: freeculture.xml:977 msgid "" "Is the radical shift away from our tradition of free culture an instance of " "America correcting a mistake from its past, as we did after a bloody war " @@ -1191,7 +1223,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:980 +#: freeculture.xml:984 msgid "" "Does common sense lead to the extremes on this question because common sense " "actually believes in these extremes? Or does common sense stand silent in " @@ -1201,7 +1233,7 @@ msgstr "" #. PAGE BREAK 28 #. type: Content of: <book><chapter><para> -#: freeculture.xml:990 +#: freeculture.xml:993 msgid "" "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 " @@ -1213,7 +1245,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:1000 +#: freeculture.xml:1003 msgid "" "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 " @@ -1221,7 +1253,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:1005 +#: freeculture.xml:1008 msgid "" "My method is not the usual method of an academic. I don't want to plunge you " "into a complex argument, buttressed with references to obscure French " @@ -1232,7 +1264,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:1014 +#: freeculture.xml:1016 msgid "" "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 " @@ -1260,8 +1292,13 @@ msgstr "" msgid "\"PIRACY\"" msgstr "" +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1041 freeculture.xml:4644 +msgid "Mansfield, William Murray, Lord" +msgstr "" + #. type: Content of: <book><chapter><para> -#: freeculture.xml:1041 +#: freeculture.xml:1044 msgid "" "Since the inception of the law regulating creative property, there has been " "a war against \"piracy.\" The precise contours of this concept, \"piracy,\" " @@ -1272,12 +1309,14 @@ msgstr "" #. f1 #. type: Content of: <book><chapter><blockquote><para><footnote><para> -#: freeculture.xml:1054 -msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield)." +#: freeculture.xml:1056 +msgid "" +"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 " +"Eng. Rep. 1274 (1777) (Mansfield)." msgstr "" #. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:1050 +#: freeculture.xml:1052 msgid "" "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 " @@ -1286,7 +1325,7 @@ msgstr "" #. PAGE BREAK 31 #. type: Content of: <book><chapter><para> -#: freeculture.xml:1059 +#: freeculture.xml:1062 msgid "" "Today we are in the middle of another \"war\" against \"piracy.\" The " "Internet has provoked this war. The Internet makes possible the efficient " @@ -1297,7 +1336,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:1070 +#: freeculture.xml:1071 msgid "" "This efficiency does not respect the traditional lines of copyright. The " "network doesn't discriminate between the sharing of copyrighted and " @@ -1307,13 +1346,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:1078 +#: freeculture.xml:1079 msgid "" "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, never mind " -"body piercing—our kids are becoming thieves!" +"body piercing—our kids are becoming <emphasis>thieves</emphasis>!" msgstr "" #. type: Content of: <book><chapter><para> @@ -1350,18 +1389,24 @@ msgstr "" #: freeculture.xml:1111 msgid "" "See Rochelle Dreyfuss, \"Expressive Genericity: Trademarks as Language in " -"the Pepsi Generation,\" Notre Dame Law Review 65 (1990): 397." +"the Pepsi Generation,\" <citetitle>Notre Dame Law Review</citetitle> 65 " +"(1990): 397." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:1124 freeculture.xml:6740 +msgid "Zittrain, Jonathan" msgstr "" -#. f3 #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:1119 msgid "" "Lisa Bannon, \"The Birds May Sing, but Campers Can't Unless They Pay Up,\" " -"Wall Street Journal, 21 August 1996, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #3</ulink>; Jonathan Zittrain, " -"\"Calling Off the Copyright War: In Battle of Property vs. Free Speech, No " -"One Wins,\" Boston Globe, 24 November 2002." +"<citetitle>Wall Street Journal</citetitle>, 21 August 1996, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #3</ulink>; Jonathan " +"Zittrain, \"Calling Off the Copyright War: In Battle of Property vs. Free " +"Speech, No One Wins,\" <citetitle>Boston Globe</citetitle>, 24 November " +"2002. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> @@ -1379,13 +1424,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:1128 +#: freeculture.xml:1129 msgid "ASCAP" msgstr "" #. PAGE BREAK 32 #. type: Content of: <book><chapter><para> -#: freeculture.xml:1130 +#: freeculture.xml:1131 msgid "" "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 " @@ -1432,13 +1477,13 @@ msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:1181 msgid "" -"In The Rise of the Creative Class (New York: Basic Books, 2002), Richard " -"Florida documents a shift in the nature of labor toward a labor of " -"creativity. His work, however, doesn't directly address the legal " -"conditions under which that creativity is enabled or stifled. I certainly " -"agree with him about the importance and significance of this change, but I " -"also believe the conditions under which it will be enabled are much more " -"tenuous. <placeholder type=\"indexterm\" id=\"0\"/>" +"In <citetitle>The Rise of the Creative Class</citetitle> (New York: Basic " +"Books, 2002), Richard Florida documents a shift in the nature of labor " +"toward a labor of creativity. His work, however, doesn't directly address " +"the legal conditions under which that creativity is enabled or stifled. I " +"certainly agree with him about the importance and significance of this " +"change, but I also believe the conditions under which it will be enabled are " +"much more tenuous. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> @@ -1480,9 +1525,10 @@ msgstr "" #: freeculture.xml:1203 msgid "" "In 1928, a cartoon character was born. An early Mickey Mouse made his debut " -"in May of that year, in a silent flop called Plane Crazy. In November, in " -"New York City's Colony Theater, in the first widely distributed cartoon " -"synchronized with sound, Steamboat Willie brought to life the character that " +"in May of that year, in a silent flop called <citetitle>Plane " +"Crazy</citetitle>. In November, in New York City's Colony Theater, in the " +"first widely distributed cartoon synchronized with sound, " +"<citetitle>Steamboat Willie</citetitle> brought to life the character that " "would become Mickey Mouse." msgstr "" @@ -1490,11 +1536,11 @@ msgstr "" #: freeculture.xml:1210 msgid "" "Synchronized sound had been introduced to film a year earlier in the movie " -"The Jazz Singer. That success led Walt Disney to copy the technique and mix " -"sound with cartoons. No one knew whether it would work or, if it did work, " -"whether it would win an audience. But when Disney ran a test in the summer " -"of 1928, the results were unambiguous. As Disney describes that first " -"experiment," +"<citetitle>The Jazz Singer</citetitle>. That success led Walt Disney to copy " +"the technique and mix sound with cartoons. No one knew whether it would work " +"or, if it did work, whether it would win an audience. But when Disney ran a " +"test in the summer of 1928, the results were unambiguous. As Disney " +"describes that first experiment," msgstr "" #. PAGE BREAK 35 @@ -1518,10 +1564,10 @@ msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> -#: freeculture.xml:1240 +#: freeculture.xml:1239 msgid "" -"Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons " -"(New York: Penguin Books, 1987), 34–35." +"Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated " +"Cartoons</citetitle> (New York: Penguin Books, 1987), 34–35." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> @@ -1535,12 +1581,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:1250 +#: freeculture.xml:1248 msgid "Iwerks, Ub" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1247 +#: freeculture.xml:1245 msgid "" "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 " @@ -1549,7 +1595,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1253 +#: freeculture.xml:1251 msgid "" "Disney had created something very new, based upon something relatively " "new. Synchronized sound brought life to a form of creativity that had " @@ -1561,54 +1607,56 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1262 +#: freeculture.xml:1260 msgid "" "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. That genius was " -"Buster Keaton. The film was Steamboat Bill, Jr." +"Buster Keaton. The film was <citetitle>Steamboat Bill, Jr</citetitle>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1268 +#: freeculture.xml:1266 msgid "" "Keaton was born into a vaudeville family in 1895. In the era of silent film, " "he had mastered using broad physical comedy as a way to spark uncontrollable " -"laughter from his audience. Steamboat Bill, Jr. was a classic of this form, " -"famous among film buffs for its incredible stunts. The film was classic " -"Keaton—wildly popular and among the best of its genre." +"laughter from his audience. <citetitle>Steamboat Bill, Jr</citetitle>. was a " +"classic of this form, famous among film buffs for its incredible stunts. " +"The film was classic Keaton—wildly popular and among the best of its " +"genre." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1281 +#: freeculture.xml:1280 msgid "" "I am grateful to David Gerstein and his careful history, described at <ulink " "url=\"http://free-culture.cc/notes/\">link #4</ulink>. According to Dave " "Smith of the Disney Archives, Disney paid royalties to use the music for " -"five songs in Steamboat Willie: \"Steamboat Bill,\" \"The Simpleton\" " -"(Delille), \"Mischief Makers\" (Carbonara), \"Joyful Hurry No. 1\" (Baron), " -"and \"Gawky Rube\" (Lakay). A sixth song, \"The Turkey in the Straw,\" was " -"already in the public domain. Letter from David Smith to Harry Surden, 10 " -"July 2003, on file with author." +"five songs in <citetitle>Steamboat Willie</citetitle>: \"Steamboat Bill,\" " +"\"The Simpleton\" (Delille), \"Mischief Makers\" (Carbonara), \"Joyful Hurry " +"No. 1\" (Baron), and \"Gawky Rube\" (Lakay). A sixth song, \"The Turkey in " +"the Straw,\" was already in the public domain. Letter from David Smith to " +"Harry Surden, 10 July 2003, on file with author." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1276 +#: freeculture.xml:1274 msgid "" -"Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The " -"coincidence of titles is not coincidental. Steamboat Willie is a direct " -"cartoon parody of Steamboat Bill,<placeholder type=\"footnote\" id=\"0\"/> " -"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,\" that we get Steamboat " -"Willie, and then from Steamboat Willie, Mickey Mouse." +"<citetitle>Steamboat Bill, Jr</citetitle>. appeared before Disney's cartoon " +"Steamboat Willie. The coincidence of titles is not coincidental. Steamboat " +"Willie is a direct cartoon parody of Steamboat Bill,<placeholder " +"type=\"footnote\" id=\"0\"/> and both are built upon a common song as a " +"source. It is not just from the invention of synchronized sound in " +"<citetitle>The Jazz Singer</citetitle> that we get <citetitle>Steamboat " +"Willie</citetitle>. It is also from Buster Keaton's invention of Steamboat " +"Bill, Jr., itself inspired by the song \"Steamboat Bill,\" that we get " +"Steamboat Willie, and then from Steamboat Willie, Mickey Mouse." msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1302 +#: freeculture.xml:1301 msgid "" "He was also a fan of the public domain. See Chris Sprigman, \"The Mouse that " "Ate the Public Domain,\" Findlaw, 5 March 2002, at <ulink " @@ -1616,7 +1664,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1298 +#: freeculture.xml:1297 msgid "" "This \"borrowing\" was nothing unique, either for Disney or for the " "industry. Disney was always parroting the feature-length mainstream films of " @@ -1631,7 +1679,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1317 +#: freeculture.xml:1316 msgid "" "Sometimes this borrowing was slight. Sometimes it was significant. Think " "about the fairy tales of the Brothers Grimm. If you're as oblivious as I " @@ -1644,7 +1692,7 @@ msgstr "" #. PAGE BREAK 37 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1326 +#: freeculture.xml:1325 msgid "" "Disney took these stories and retold them in a way that carried them into a " "new age. He animated the stories, with both characters and light. Without " @@ -1652,20 +1700,26 @@ msgid "" "dark and injected a genuine emotion of compassion where before there was " "fear. And not just with the work of the Brothers Grimm. Indeed, the catalog " "of Disney work drawing upon the work of others is astonishing when set " -"together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo " -"(1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in " -"Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp " -"(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The " -"Sword in the Stone (1963), and The Jungle Book (1967)—not to mention a " -"recent example that we should perhaps quickly forget, Treasure Planet " -"(2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity " -"from the culture around him, mixed that creativity with his own " -"extraordinary talent, and then burned that mix into the soul of his " -"culture. Rip, mix, and burn." -msgstr "" - -#. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1346 +"together: <citetitle>Snow White</citetitle> (1937), " +"<citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> " +"(1940), <citetitle>Dumbo</citetitle> (1941), <citetitle>Bambi</citetitle> " +"(1942), <citetitle>Song of the South</citetitle> (1946), " +"<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in " +"Wonderland</citetitle> (1951), <citetitle>Robin Hood</citetitle> (1952), " +"<citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the " +"Tramp</citetitle> (1955), <citetitle>Mulan</citetitle> (1998), " +"<citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101 " +"Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> " +"(1963), and <citetitle>The Jungle Book</citetitle> (1967)—not to " +"mention a recent example that we should perhaps quickly forget, " +"<citetitle>Treasure Planet</citetitle> (2003). In all of these cases, Disney " +"(or Disney, Inc.) ripped creativity from the culture around him, mixed that " +"creativity with his own extraordinary talent, and then burned that mix into " +"the soul of his culture. Rip, mix, and burn." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1347 msgid "" "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 " @@ -1678,7 +1732,7 @@ msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1360 +#: freeculture.xml:1361 msgid "" "Until 1976, copyright law granted an author the possibility of two terms: an " "initial term and a renewal term. I have calculated the \"average\" term by " @@ -1691,7 +1745,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1354 +#: freeculture.xml:1355 msgid "" "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 " @@ -1705,7 +1759,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1377 +#: freeculture.xml:1378 msgid "" "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, " @@ -1717,7 +1771,7 @@ msgstr "" #. PAGE BREAK 38 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1386 +#: freeculture.xml:1387 msgid "" "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, " @@ -1730,7 +1784,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1399 +#: freeculture.xml:1400 msgid "" "Of course, Walt Disney had no monopoly on \"Walt Disney creativity.\" Nor " "does America. The norm of free culture has, until recently, and except " @@ -1738,19 +1792,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1405 +#: freeculture.xml:1406 msgid "" "Consider, for example, a form of creativity that seems strange to many " -"Americans but that is inescapable within Japanese culture: manga, or " -"comics. The Japanese are fanatics about comics. Some 40 percent of " -"publications are comics, and 30 percent of publication revenue derives from " -"comics. They are everywhere in Japanese society, at every magazine stand, " -"carried by a large proportion of commuters on Japan's extraordinary system " -"of public transportation." +"Americans but that is inescapable within Japanese culture: " +"<citetitle>manga</citetitle>, or comics. The Japanese are fanatics about " +"comics. Some 40 percent of publications are comics, and 30 percent of " +"publication revenue derives from comics. They are everywhere in Japanese " +"society, at every magazine stand, carried by a large proportion of commuters " +"on Japan's extraordinary system of public transportation." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1414 +#: freeculture.xml:1415 msgid "" "Americans tend to look down upon this form of culture. That's an " "unattractive characteristic of ours. We're likely to misunderstand much " @@ -1763,7 +1817,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1425 +#: freeculture.xml:1426 msgid "" "But my purpose here is not to understand manga. It is to describe a variant " "on manga that from a lawyer's perspective is quite odd, but from a Disney " @@ -1772,12 +1826,13 @@ msgstr "" #. PAGE BREAK 39 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1430 +#: freeculture.xml:1431 msgid "" -"This is the phenomenon of doujinshi. Doujinshi are also comics, but they are " -"a kind of copycat comic. A rich ethic governs the creation of doujinshi. It " -"is not doujinshi if it is just a copy; the artist must make a contribution " -"to the art he copies, by transforming it either subtly or significantly. A " +"This is the phenomenon of <citetitle>doujinshi</citetitle>. Doujinshi are " +"also comics, but they are a kind of copycat comic. A rich ethic governs the " +"creation of doujinshi. It is not doujinshi if it is " +"<emphasis>just</emphasis> a copy; the artist must make a contribution to the " +"art he copies, by 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 " @@ -1788,7 +1843,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1444 +#: freeculture.xml:1446 msgid "" "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 " @@ -1802,7 +1857,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1455 +#: freeculture.xml:1457 msgid "" "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 " @@ -1811,22 +1866,27 @@ msgid "" "\"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 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." +"<citetitle>Steamboat Bill, Jr</citetitle>. 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1471 +msgid "Winick, Judd" msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1480 +#: freeculture.xml:1484 msgid "" -"For an excellent history, see Scott McCloud, Reinventing Comics (New York: " -"Perennial, 2000)." +"For an excellent history, see Scott McCloud, <citetitle>Reinventing " +"Comics</citetitle> (New York: Perennial, 2000)." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1469 +#: freeculture.xml:1474 msgid "" "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 " @@ -1839,7 +1899,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1485 +#: freeculture.xml:1489 msgid "" "American comics now are quite different, Winick explains, in part because of " "the legal difficulty of adapting comics the way doujinshi are " @@ -1851,20 +1911,20 @@ msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1501 +#: freeculture.xml:1506 msgid "" "See Salil K. Mehra, \"Copyright and Comics in Japan: Does Law Explain Why " -"All the Comics My Kid Watches Are Japanese Imports?\" Rutgers Law Review 55 " -"(2002): 155, 182. \"[T]here might be a collective economic rationality that " -"would lead manga and anime artists to forgo bringing legal actions for " -"infringement. One hypothesis is that all manga artists may be better off " -"collectively if they set aside their individual self-interest and decide not " -"to press their legal rights. This is essentially a prisoner's dilemma " -"solved.\"" +"All the Comics My Kid Watches Are Japanese Imports?\" <citetitle>Rutgers Law " +"Review</citetitle> 55 (2002): 155, 182. \"[T]here might be a collective " +"economic rationality that would lead manga and anime artists to forgo " +"bringing legal actions for infringement. One hypothesis is that all manga " +"artists may be better off collectively if they set aside their individual " +"self-interest and decide not to press their legal rights. This is " +"essentially a prisoner's dilemma solved.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1493 +#: freeculture.xml:1498 msgid "" "The norm in Japan mitigates this legal difficulty. Some say it is precisely " "the benefit accruing to the Japanese manga market that explains the " @@ -1876,7 +1936,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1512 +#: freeculture.xml:1517 msgid "" "The problem with this story, however, as Mehra plainly acknowledges, is that " "the mechanism producing this laissez faire response is not clear. It may " @@ -1889,7 +1949,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1523 +#: freeculture.xml:1528 msgid "" "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 " @@ -1900,7 +1960,7 @@ msgstr "" #. PAGE BREAK 41 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1530 +#: freeculture.xml:1535 msgid "" "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 words " @@ -1914,27 +1974,33 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1543 +#: freeculture.xml:1548 msgid "" "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." msgstr "" -#. f7 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:1565 freeculture.xml:2748 freeculture.xml:4351 freeculture.xml:4577 freeculture.xml:7127 freeculture.xml:8184 +msgid "Vaidhyanathan, Siva" +msgstr "" + #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1553 +#: freeculture.xml:1558 msgid "" -"The term intellectual property is of relatively recent origin. See Siva " -"Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University " -"Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: " +"The term <citetitle>intellectual property</citetitle> is of relatively " +"recent origin. See Siva Vaidhyanathan, <citetitle>Copyrights and " +"Copywrongs</citetitle>, 11 (New York: New York University Press, 2001). See " +"also Lawrence Lessig, <citetitle>The Future of Ideas</citetitle> (New York: " "Random House, 2001), 293 n. 26. The term accurately describes a set of " "\"property\" rights—copyright, patents, trademark, and " -"trade-secret—but the nature of those rights is very different." +"trade-secret—but the nature of those rights is very different. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1548 +#: freeculture.xml:1553 msgid "" "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 " @@ -1945,7 +2011,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1568 +#: freeculture.xml:1572 msgid "" "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 " @@ -1962,7 +2028,7 @@ msgstr "" #. PAGE BREAK 42 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1583 +#: freeculture.xml:1587 msgid "" "Thus, even though the things that Disney took—or more generally, the " "things taken by anyone exercising Walt Disney creativity—are valuable, " @@ -1971,7 +2037,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1592 +#: freeculture.xml:1596 msgid "" "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 " @@ -1982,7 +2048,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1600 +#: freeculture.xml:1604 msgid "" "Yet there is an obvious reluctance, even among Japanese lawyers, to say that " "the copycat comic artists are \"stealing.\" This form of Walt Disney " @@ -1991,24 +2057,24 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1606 +#: freeculture.xml:1610 msgid "" "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 Einstein, but may I " "have permission to use your theory of relativity 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 " -"central Shakespeare rights clearinghouse that all productions of Shakespeare " -"must appeal to first?) And Hollywood goes through cycles with a certain kind " -"of movie: five asteroid films in the late 1990s; two volcano disaster films " -"in 1997." +"of Shakespeare without securing permission from anyone. (Does " +"<emphasis>anyone</emphasis> believe Shakespeare would be better spread " +"within our culture if there were a central Shakespeare rights clearinghouse " +"that all productions of Shakespeare must appeal to first?) And Hollywood " +"goes through cycles with a certain kind of movie: five asteroid films in the " +"late 1990s; two volcano disaster films in 1997." msgstr "" #. PAGE BREAK 43 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1620 +#: freeculture.xml:1624 msgid "" "Creators here and everywhere are always and at all times building upon the " "creativity that went before and that surrounds them now. That building is " @@ -2021,20 +2087,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1631 +#: freeculture.xml:1635 msgid "" -"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?\" 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 Exchange? Or " -"is that freedom spread broadly? To artists generally, whether affiliated " -"with the Met or not? To musicians generally, whether white or not? To " -"filmmakers generally, whether affiliated with a studio or not?" +"The hard question is therefore not <emphasis>whether</emphasis> a culture is " +"free. All cultures are free to some degree. The hard question instead is " +"\"<emphasis>How</emphasis> 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 Exchange? Or is that freedom spread " +"broadly? To artists generally, whether affiliated with the Met or not? To " +"musicians generally, whether white or not? To filmmakers generally, whether " +"affiliated with a studio or not?" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1642 +#: freeculture.xml:1647 msgid "" "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 " @@ -2042,17 +2109,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:1650 +#: freeculture.xml:1655 msgid "CHAPTER TWO: \"Mere Copyists\"" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:1651 +#: freeculture.xml:1656 msgid "Daguerre, Louis" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1653 +#: freeculture.xml:1658 msgid "" "In 1839, Louis Daguerre invented the first practical technology for " "producing what we would call \"photographs.\" Appropriately enough, they " @@ -2064,7 +2131,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1662 +#: freeculture.xml:1667 msgid "" "Yet despite high prices, the demand for daguerreotypes was strong. This " "pushed inventors to find simpler and cheaper ways to make \"automatic " @@ -2076,9 +2143,14 @@ msgid "" "not a process within reach of most amateurs." msgstr "" +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1678 +msgid "Eastman, George" +msgstr "" + #. PAGE BREAK 45 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1673 +#: freeculture.xml:1681 msgid "" "The technological change that made mass photography possible didn't happen " "until 1888, and was the creation of a single man. George Eastman, himself an " @@ -2092,35 +2164,36 @@ msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1690 +#: freeculture.xml:1698 msgid "" -"Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University " -"Press, 1975), 112." +"Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: " +"Johns Hopkins University Press, 1975), 112." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1685 +#: freeculture.xml:1693 msgid "" "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.\"<placeholder " -"type=\"footnote\" id=\"0\"/> As he described in The Kodak Primer:" +"type=\"footnote\" id=\"0\"/> As he described in <citetitle>The Kodak " +"Primer</citetitle>:" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:1708 freeculture.xml:1731 +#: freeculture.xml:1716 freeculture.xml:1739 msgid "Coe, Brian" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> -#: freeculture.xml:1706 +#: freeculture.xml:1714 msgid "" -"Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), " -"53. <placeholder type=\"indexterm\" id=\"0\"/>" +"Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: " +"Taplinger Publishing, 1977), 53. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:1695 +#: freeculture.xml:1703 msgid "" "The principle of the Kodak system is the separation of the work that any " "person whomsoever can do in making a photograph, from the work that only an " @@ -2134,18 +2207,18 @@ msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1724 +#: freeculture.xml:1732 msgid "Jenkins, 177." msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1728 +#: freeculture.xml:1736 msgid "Based on a chart in Jenkins, p. 178." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1713 +#: freeculture.xml:1721 msgid "" "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, " @@ -2162,12 +2235,12 @@ msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1746 +#: freeculture.xml:1754 msgid "Coe, 58." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1735 +#: freeculture.xml:1743 msgid "" "The real significance of Eastman's invention, however, was not economic. It " "was social. Professional photography gave individuals a glimpse of places " @@ -2182,7 +2255,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1750 +#: freeculture.xml:1758 msgid "" "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 " @@ -2198,14 +2271,17 @@ msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1772 +#: freeculture.xml:1780 msgid "" -"For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 " -"S.E." +"For illustrative cases, see, for example, <citetitle>Pavesich</citetitle> " +"v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905); " +"<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, " +"123090 S.W. 364, 366 (Ky. 1909); <citetitle>Corliss</citetitle> " +"v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass. Dist. Ct. 1894)." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1763 +#: freeculture.xml:1771 msgid "" "What was required for this technology to flourish? Obviously, Eastman's " "genius was an important part. But also important was the legal environment " @@ -2219,7 +2295,7 @@ msgstr "" #. PAGE BREAK 47 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1776 +#: freeculture.xml:1788 msgid "" "The arguments in favor of requiring permission will sound surprisingly " "familiar. The photographer was \"taking\" something from the person or " @@ -2230,20 +2306,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> -#: freeculture.xml:1798 +#: freeculture.xml:1810 msgid "Warren, Samuel D." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1795 +#: freeculture.xml:1807 msgid "" -"Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" Harvard " -"Law Review 4 (1890): 193. <placeholder type=\"indexterm\" id=\"0\"/> " -"<placeholder type=\"indexterm\" id=\"1\"/>" +"Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" " +"<citetitle>Harvard Law Review</citetitle> 4 (1890): 193. <placeholder " +"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1788 +#: freeculture.xml:1800 msgid "" "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 " @@ -2251,23 +2327,25 @@ msgid "" "Brandeis, who would become a Supreme Court Justice, thought the rule should " "be different for images from private spaces.<placeholder type=\"footnote\" " "id=\"0\"/>) 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." +"for nothing. Just as Disney could take inspiration from <citetitle>Steamboat " +"Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be free " +"to capture an image without compensating the source." msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1815 +#: freeculture.xml:1827 msgid "" -"See Melville B. Nimmer, \"The Right of Publicity,\" Law and Contemporary " -"Problems 19 (1954): 203; William L. Prosser, \"Privacy,\" California Law " -"Review 48 (1960) 398–407; White v. Samsung Electronics America, Inc., " -"971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993)." +"See Melville B. Nimmer, \"The Right of Publicity,\" <citetitle>Law and " +"Contemporary Problems</citetitle> 19 (1954): 203; William L. Prosser, " +"\"Privacy,\" <citetitle>California Law Review</citetitle> 48 (1960) " +"398–407; <citetitle>White</citetitle> v. <citetitle>Samsung " +"Electronics America, Inc</citetitle>., 971 F. 2d 1395 (9th Cir. 1992), " +"cert. denied, 508 U.S. 951 (1993)." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1805 +#: freeculture.xml:1817 msgid "" "Fortunately for Mr. Eastman, and for photography in general, these early " "decisions went in favor of the pirates. In general, no permission would be " @@ -2281,7 +2359,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1823 +#: freeculture.xml:1835 msgid "" "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, " @@ -2299,7 +2377,7 @@ msgstr "" #. PAGE BREAK 48 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1840 +#: freeculture.xml:1852 msgid "" "But though we could imagine this system of permission, it would be very hard " "to see how photography could have flourished as it did if the requirement " @@ -2326,7 +2404,7 @@ msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1871 +#: freeculture.xml:1884 msgid "" "H. Edward Goldberg, \"Essential Presentation Tools: Hardware and Software " "You Need to Create Digital Multimedia Presentations,\" cadalyst, February " @@ -2335,7 +2413,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1865 +#: freeculture.xml:1878 msgid "" "These buses are not cheap, but the technology they carry is increasingly " "so. The cost of a high-quality digital video system has fallen " @@ -2348,19 +2426,23 @@ msgid "" "something teachers call \"media literacy.\"" msgstr "" -#. PAGE BREAK 49 +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:1901 +msgid "Yanofsky, Dave" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1885 +#: freeculture.xml:1896 msgid "" "\"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.\"" +"it.\" <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1892 +#: freeculture.xml:1904 msgid "" "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 " @@ -2369,15 +2451,15 @@ msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1902 +#: freeculture.xml:1914 msgid "" -"Judith Van Evra, Television and Child Development (Hillsdale, N.J.: Lawrence " -"Erlbaum Associates, 1990); \"Findings on Family and TV Study,\" Denver Post, " -"25 May 1997, B6." +"Judith Van Evra, <citetitle>Television and Child Development</citetitle> " +"(Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); \"Findings on Family " +"and TV Study,\" <citetitle>Denver Post</citetitle>, 25 May 1997, B6." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1898 +#: freeculture.xml:1910 msgid "" "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 " @@ -2389,7 +2471,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1914 +#: freeculture.xml:1925 msgid "" "A growing field of academics and activists sees this form of literacy as " "crucial to the next generation of culture. For though anyone who has written " @@ -2402,7 +2484,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1925 +#: freeculture.xml:1935 msgid "" "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 " @@ -2413,22 +2495,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:1932 +#: freeculture.xml:1942 msgid "Crichton, Michael" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:1946 freeculture.xml:2006 freeculture.xml:2013 freeculture.xml:2459 +#: freeculture.xml:1956 freeculture.xml:2016 freeculture.xml:2023 freeculture.xml:2458 msgid "Barish, Stephanie" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> -#: freeculture.xml:1947 +#: freeculture.xml:1957 msgid "Daley, Elizabeth" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1944 +#: freeculture.xml:1954 msgid "" "Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. " "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " @@ -2437,7 +2519,7 @@ msgstr "" #. f12 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:1958 +#: freeculture.xml:1968 msgid "" "See Scott Steinberg, \"Crichton Gets Medieval on PCs,\" E!online, 4 November " "2000, available at <ulink url=\"http://free-culture.cc/notes/\">link " @@ -2446,7 +2528,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1934 +#: freeculture.xml:1944 msgid "" "This grammar has changed as media has changed. When it was just film, as " "Elizabeth Daley, executive director of the University of Southern " @@ -2464,12 +2546,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:1965 +#: freeculture.xml:1975 msgid "computer games" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1967 +#: freeculture.xml:1977 msgid "" "This skill is precisely the craft a filmmaker learns. As Daley describes, " "\"people are very surprised about how they are led through a film. [I]t is " @@ -2479,7 +2561,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1974 +#: freeculture.xml:1984 msgid "" "Yet the push for an expanded literacy—one that goes beyond text to " "include audio and visual elements—is not about making better film " @@ -2488,7 +2570,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:1981 +#: freeculture.xml:1991 msgid "" "From my perspective, probably the most important digital divide is not " "access to a box. It's the ability to be empowered with the language that " @@ -2497,25 +2579,25 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1989 +#: freeculture.xml:1999 msgid "" "\"Read-only.\" Passive recipients of culture produced elsewhere. Couch " "potatoes. Consumers. This is the world of media from the twentieth century." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2005 +#: freeculture.xml:2015 msgid "Interview with Daley and Barish. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f31 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2010 freeculture.xml:3760 freeculture.xml:4834 freeculture.xml:7964 +#: freeculture.xml:2020 freeculture.xml:3725 freeculture.xml:4763 freeculture.xml:7911 msgid "Ibid." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:1994 +#: freeculture.xml:2004 msgid "" "The twenty-first century could be different. This is the crucial point: It " "could be both read and write. Or at least reading and better understanding " @@ -2529,7 +2611,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2015 +#: freeculture.xml:2025 msgid "" "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 " @@ -2543,7 +2625,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2027 +#: freeculture.xml:2037 msgid "" "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 " @@ -2554,7 +2636,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2035 +#: freeculture.xml:2045 msgid "" "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 " @@ -2567,14 +2649,14 @@ msgid "" "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." +"well. Yet neither is text a form in which <emphasis>these</emphasis> ideas " +"can be expressed well. The power of this message depended upon its " +"connection to this form of expression." msgstr "" #. PAGE BREAK 52 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2054 +#: freeculture.xml:2064 msgid "" "\"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 " @@ -2586,7 +2668,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:2067 +#: freeculture.xml:2075 msgid "" "What you want is to give these students ways of constructing meaning. If all " "you give them is text, they're not going to do it. Because they can't. You " @@ -2607,7 +2689,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:2086 +#: freeculture.xml:2094 msgid "" "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 " @@ -2618,7 +2700,7 @@ msgstr "" #. PAGE BREAK 53 #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:2093 +#: freeculture.xml:2101 msgid "" "Because they needed to. There was a reason for doing it. They needed to say " "something, as opposed to just jumping through your hoops. They actually " @@ -2627,7 +2709,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2102 +#: freeculture.xml:2110 msgid "" "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 " @@ -2640,7 +2722,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2113 +#: freeculture.xml:2121 msgid "" "These retellings had an increasingly familiar feel. There was music scored " "for the intermissions, and fancy graphics that flashed across the " @@ -2651,17 +2733,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:2120 freeculture.xml:7902 +#: freeculture.xml:2128 freeculture.xml:7849 msgid "ABC" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:2121 +#: freeculture.xml:2129 msgid "CBS" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2123 +#: freeculture.xml:2131 msgid "" "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 " @@ -2671,14 +2753,14 @@ msgid "" "shows with text. Some offered open letters. There were sound " "recordings. There was anger and frustration. There were attempts to provide " "context. There was, in short, an extraordinary worldwide barn raising, in " -"the sense Mike Godwin uses the term in his book Cyber Rights, around a news " -"event that had captured the attention of the world. There was ABC and CBS, " -"but there was also the Internet." +"the sense Mike Godwin uses the term in his book <citetitle>Cyber " +"Rights</citetitle>, around a news event that had captured the attention of " +"the world. There was ABC and CBS, but there was also the Internet." msgstr "" #. PAGE BREAK 54 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2137 +#: freeculture.xml:2145 msgid "" "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 " @@ -2689,7 +2771,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2147 +#: freeculture.xml:2155 msgid "" "But unlike any technology for simply capturing images, the Internet allows " "these creations to be shared with an extraordinary number of people, " @@ -2701,19 +2783,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2156 +#: freeculture.xml:2164 msgid "" "September 11 was not an aberration. It was a beginning. Around the same " "time, a form of communication that has grown dramatically was just beginning " "to come into public consciousness: the Web-log, or blog. The blog is a kind " "of public diary, and within some cultures, such as in Japan, it functions " "very much like a diary. In those cultures, it records private facts in a " -"public way—it's a kind of electronic Jerry Springer, available " -"anywhere in the world." +"public way—it's a kind of electronic <citetitle>Jerry " +"Springer</citetitle>, available anywhere in the world." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2165 +#: freeculture.xml:2173 msgid "" "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 " @@ -2730,7 +2812,7 @@ msgstr "" #. PAGE BREAK 55 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2179 +#: freeculture.xml:2187 msgid "" "That's a strong statement. Yet it says as much about our democracy as it " "does about blogs. This is the part of America that is most difficult for " @@ -2743,14 +2825,15 @@ msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2205 +#: freeculture.xml:2213 msgid "" -"See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, " -"trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16." +"See, for example, Alexis de Tocqueville, <citetitle>Democracy in " +"America</citetitle>, bk. 1, trans. Henry Reeve (New York: Bantam Books, " +"2000), ch. 16." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2190 +#: freeculture.xml:2198 msgid "" "But democracy has never just been about elections. Democracy means rule by " "the people, but rule means something more than mere elections. In our " @@ -2769,14 +2852,14 @@ msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2214 +#: freeculture.xml:2222 msgid "" -"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" Journal of Political " -"Philosophy 10 (2) (2002): 129." +"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" <citetitle>Journal " +"of Political Philosophy</citetitle> 10 (2) (2002): 129." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2210 +#: freeculture.xml:2218 msgid "" "Yet even this institution flags in American life today. And in its place, " "there is no systematic effort to enable citizen deliberation. Some are " @@ -2788,14 +2871,14 @@ msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2234 +#: freeculture.xml:2237 msgid "" -"Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), " -"65–80, 175, 182, 183, 192." +"Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton " +"University Press, 2001), 65–80, 175, 182, 183, 192." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2225 +#: freeculture.xml:2230 msgid "" "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 " @@ -2808,7 +2891,7 @@ msgstr "" #. PAGE BREAK 56 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2240 +#: freeculture.xml:2243 msgid "" "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 " @@ -2819,7 +2902,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2252 +#: freeculture.xml:2254 msgid "" "But beyond architecture, blogs also have solved the problem of " "norms. There's no norm (yet) in blog space not to talk about politics. " @@ -2829,13 +2912,18 @@ msgid "" "political cover political issues when the occasion merits." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:2266 +msgid "Dean, Howard" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2260 +#: freeculture.xml:2262 msgid "" "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." +"effect. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f18 @@ -2846,8 +2934,13 @@ msgid "" "York Times, 16 January 2003, G5." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:2283 +msgid "Lott, Trent" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2267 +#: freeculture.xml:2269 msgid "" "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 " @@ -2858,11 +2951,12 @@ msgid "" "researching the story. Over time, more and 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.<placeholder type=\"footnote\" id=\"0\"/>" +"leader.<placeholder type=\"footnote\" id=\"0\"/> <placeholder " +"type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2285 +#: freeculture.xml:2286 msgid "" "This different cycle is possible because the same commercial pressures don't " "exist with blogs as with other ventures. Television and newspapers are " @@ -2871,7 +2965,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2292 +#: freeculture.xml:2293 msgid "" "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 " @@ -2881,9 +2975,14 @@ msgid "" "very democratic process of peer-generated rankings." msgstr "" +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:2302 +msgid "Winer, Dave" +msgstr "" + #. PAGE BREAK 57 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2301 +#: freeculture.xml:2305 msgid "" "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 " @@ -2896,18 +2995,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> -#: freeculture.xml:2311 freeculture.xml:2364 +#: freeculture.xml:2315 freeculture.xml:2368 msgid "CNN" msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2319 +#: freeculture.xml:2323 msgid "Telephone interview with David Winer, 16 April 2003." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2313 +#: freeculture.xml:2317 msgid "" "These conflicts become more important as media becomes more concentrated " "(more on this below). A concentrated media can hide more from the public " @@ -2919,22 +3018,23 @@ msgid "" "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.\")" +"warranted, they told her <emphasis>that</emphasis> they were writing \"the " +"story.\")" msgstr "" #. f20 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2337 +#: freeculture.xml:2341 msgid "" "John Schwartz, \"Loss of the Shuttle: The Internet; A Wealth of Information " -"Online,\" New York Times, 2 February 2003, A28; Staci D. Kramer, \"Shuttle " -"Disaster Coverage Mixed, but Strong Overall,\" Online Journalism Review, 2 " -"February 2003, available at <ulink " +"Online,\" <citetitle>New York Times</citetitle>, 2 February 2003, A28; Staci " +"D. Kramer, \"Shuttle Disaster Coverage Mixed, but Strong Overall,\" Online " +"Journalism Review, 2 February 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #10</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2329 +#: freeculture.xml:2333 msgid "" "Blog space gives amateurs a way to enter the debate—\"amateur\" not in " "the sense of inexperienced, but in the sense of an Olympic athlete, meaning " @@ -2949,21 +3049,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2356 -msgid "" -"See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" New York " -"Times, 29 September 2003, C4. (\"Not all news organizations have been as " -"accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq " -"who started a blog about his reporting of the war on March 9, stopped " -"posting 12 days later at his bosses' request. Last year Steve Olafson, a " -"Houston Chronicle reporter, was fired for keeping a personal Web log, " -"published under a pseudonym, that dealt with some of the issues and people " -"he was covering.\") <placeholder type=\"indexterm\" id=\"0\"/>" +#: freeculture.xml:2360 +msgid "" +"See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" " +"<citetitle>New York Times</citetitle>, 29 September 2003, C4. (\"Not all " +"news organizations have been as accepting of employees who blog. Kevin " +"Sites, a CNN correspondent in Iraq who started a blog about his reporting of " +"the war on March 9, stopped posting 12 days later at his bosses' " +"request. Last year Steve Olafson, a <citetitle>Houston Chronicle</citetitle> " +"reporter, was fired for keeping a personal Web log, published under a " +"pseudonym, that dealt with some of the issues and people he was covering.\") " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 58 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2349 +#: freeculture.xml:2353 msgid "" "Winer is optimistic about the future of journalism infected with " "blogs. \"It's going to become an essential skill,\" Winer predicts, for " @@ -2979,7 +3080,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2376 +#: freeculture.xml:2380 msgid "" "This speech affects democracy. Winer thinks that happens because \"you don't " "have to work for somebody who controls, [for] a gatekeeper.\" That is " @@ -2995,8 +3096,13 @@ msgid "" "something extraordinary to report." msgstr "" +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:2396 +msgid "Brown, John Seely" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2393 +#: freeculture.xml:2399 msgid "" "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 " @@ -3004,7 +3110,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2398 +#: freeculture.xml:2404 msgid "" "Brown thus looks at these technologies of digital creativity a bit " "differently from the perspectives I've sketched so far. I'm sure he would be " @@ -3014,7 +3120,7 @@ msgstr "" #. PAGE BREAK 59 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2405 +#: freeculture.xml:2411 msgid "" "As Brown believes, we learn by tinkering. When \"a lot of us grew up,\" he " "explains, that tinkering was done \"on motorcycle engines, lawnmower " @@ -3028,7 +3134,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2420 +#: freeculture.xml:2424 msgid "" "The best large-scale example of this kind of tinkering so far is free " "software or open-source software (FS/OSS). FS/OSS is software whose source " @@ -3038,7 +3144,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2427 +#: freeculture.xml:2431 msgid "" "This opportunity creates a \"completely new kind of learning platform,\" as " "Brown describes. \"As soon as you start doing that, you . . . unleash a " @@ -3049,7 +3155,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2437 +#: freeculture.xml:2439 msgid "" "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, " @@ -3060,7 +3166,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2447 +#: freeculture.xml:2448 msgid "" "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, " @@ -3075,7 +3181,7 @@ msgstr "" #. PAGE BREAK 60 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2461 +#: freeculture.xml:2460 msgid "" "Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just " "Think! teach: that this tinkering with culture teaches as well as " @@ -3084,7 +3190,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2469 +#: freeculture.xml:2468 msgid "" "Yet the freedom to tinker with these objects is not guaranteed. Indeed, as " "we'll see through the course of this book, that freedom is increasingly " @@ -3097,15 +3203,16 @@ msgstr "" #. f22 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2484 +#: freeculture.xml:2483 msgid "" "See, for example, Edward Felten and Andrew Appel, \"Technological Access " -"Control Interferes with Noninfringing Scholarship,\" Communications of the " -"Association for Computer Machinery 43 (2000): 9." +"Control Interferes with Noninfringing Scholarship,\" " +"<citetitle>Communications of the Association for Computer " +"Machinery</citetitle> 43 (2000): 9." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2478 +#: freeculture.xml:2477 msgid "" "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 " @@ -3117,7 +3224,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2492 +#: freeculture.xml:2491 msgid "" "\"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 " @@ -3125,7 +3232,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2497 +#: freeculture.xml:2496 msgid "" "\"Yet,\" as Brown continued, and as the balance of this book will evince, " "\"we are building a legal system that completely suppresses the natural " @@ -3247,7 +3354,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2590 +#: freeculture.xml:2589 msgid "" "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 " @@ -3264,7 +3371,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2605 +#: freeculture.xml:2604 msgid "" "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 " @@ -3275,17 +3382,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2614 +#: freeculture.xml:2613 msgid "" "\"It was absurd,\" he told me. \"I don't think I did anything wrong. . . . " "I don't think there's anything wrong with the search engine that I ran or " ". . . what I had done to it. I mean, I hadn't modified it in any way that " "promoted or enhanced the work of pirates. I just modified the search engine " -"in a way that would make it easier to use\"—again, a search engine, " -"which Jesse had not himself built, using the Windows filesharing system, " -"which Jesse had not himself built, to enable members of the RPI community to " -"get access to content, which Jesse had not himself created or posted, and " -"the vast majority of which had nothing to do with music." +"in a way that would make it easier to use\"—again, a <emphasis>search " +"engine</emphasis>, 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." msgstr "" #. PAGE BREAK 64 @@ -3304,15 +3412,15 @@ msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2647 +#: freeculture.xml:2649 msgid "" "Tim Goral, \"Recording Industry Goes After Campus P-2-P Networks: Suit " -"Alleges $97.8 Billion in Damages,\" Professional Media Group LCC 6 (2003): " -"5, available at 2003 WL 55179443." +"Alleges $97.8 Billion in Damages,\" <citetitle>Professional Media Group " +"LCC</citetitle> 6 (2003): 5, available at 2003 WL 55179443." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2638 +#: freeculture.xml:2637 msgid "" "Similar lawsuits were brought against three other students: one other " "student at RPI, one at Michigan Technical University, and one at " @@ -3320,13 +3428,14 @@ msgid "" "different in detail, the bottom line in each was exactly the same: 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.<placeholder type=\"footnote\" " +"States to award the plaintiffs close to $100 " +"<emphasis>billion</emphasis>—six times the <emphasis>total</emphasis> " +"profit of the film industry in 2001.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2653 +#: freeculture.xml:2655 msgid "" "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 " @@ -3335,7 +3444,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2660 +#: freeculture.xml:2662 msgid "" "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 " @@ -3349,7 +3458,7 @@ msgstr "" #. PAGE BREAK 65 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2671 +#: freeculture.xml:2673 msgid "" "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 " @@ -3361,7 +3470,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2681 +#: freeculture.xml:2683 msgid "" "So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or " "$12,000 and a settlement." @@ -3369,23 +3478,23 @@ msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2693 +#: freeculture.xml:2695 msgid "" "Occupational Employment Survey, U.S. Dept. of Labor (2001) " "(27–2042—Musicians and Singers). See also National Endowment for " -"the Arts, More Than One in a Blue Moon (2000)." +"the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000)." msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:2701 +#: freeculture.xml:2703 msgid "" -"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" Wall " -"Street Journal, 10 September 2003, A24." +"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" " +"<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2685 +#: freeculture.xml:2687 msgid "" "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 " @@ -3399,7 +3508,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2706 +#: freeculture.xml:2708 msgid "" "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 " @@ -3407,7 +3516,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:2713 +#: freeculture.xml:2715 msgid "" "I was definitely not an activist [before]. I never really meant to be an " "activist. . . . [But] I've been pushed into this. In no way did I ever " @@ -3416,7 +3525,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2720 +#: freeculture.xml:2722 msgid "" "Jesse's parents betray a certain pride in their reluctant activist. As his " "father told me, Jesse \"considers himself very conservative, and so do " @@ -3426,12 +3535,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:2729 +#: freeculture.xml:2731 msgid "CHAPTER FOUR: \"Pirates\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:2731 +#: freeculture.xml:2733 msgid "" "If \"piracy\" means using the creative property of others without their " "permission—if \"if value, then right\" is true—then the history " @@ -3442,23 +3551,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:2739 +#: freeculture.xml:2741 msgid "Film" msgstr "" -#. f1 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2743 +#: freeculture.xml:2745 msgid "" "I am grateful to Peter DiMauro for pointing me to this extraordinary " -"history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, " -"87–93, which details Edison's \"adventures\" with copyright and " -"patent." +"history. See also Siva Vaidhyanathan, <citetitle>Copyrights and " +"Copywrongs</citetitle>, 87–93, which details Edison's \"adventures\" " +"with copyright and patent. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 67 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2741 +#: freeculture.xml:2743 msgid "" "The film industry of Hollywood was built by fleeing pirates.<placeholder " "type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East " @@ -3472,12 +3580,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2758 +#: freeculture.xml:2761 msgid "As one commentator tells one part of the story," msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:2762 +#: freeculture.xml:2765 msgid "" "A January 1909 deadline was set for all companies to comply with the " "license. By February, unlicensed outlaws, who referred to themselves as " @@ -3489,12 +3597,12 @@ msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:2782 +#: freeculture.xml:2785 msgid "" -"J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion " -"Picture Producers (Cobblestone Entertainment, 2000) and expanded texts " -"posted at \"The Edison Movie Monopoly: The Motion Picture Patents Company " -"vs. the Independent Outlaws,\" available at <ulink " +"J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent " +"Motion Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and " +"expanded texts posted at \"The Edison Movie Monopoly: The Motion Picture " +"Patents Company vs. the Independent Outlaws,\" available at <ulink " "url=\"http://free-culture.cc/notes/\">link #11</ulink>. For a discussion of " "the economic motive behind both these limits and the limits imposed by " "Victor on phonographs, see Randal C. Picker, \"From Edison to the Broadcast " @@ -3503,8 +3611,18 @@ msgid "" "M. Olin Program in Law and Economics, Working Paper No. 159." msgstr "" +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><indexterm><primary> +#: freeculture.xml:2796 +msgid "General Film Company" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:2797 freeculture.xml:3042 freeculture.xml:4129 freeculture.xml:9448 +msgid "Picker, Randal C." +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:2771 +#: freeculture.xml:2774 msgid "" "With the country experiencing a tremendous expansion in the number of " "nickelodeons, the Patents Company reacted to the independent movement by " @@ -3515,19 +3633,21 @@ msgid "" "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.<placeholder " -"type=\"footnote\" id=\"0\"/>" +"type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> " +"<placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2802 +#: freeculture.xml:2807 msgid "" -"Marc Wanamaker, \"The First Studios,\" The Silents Majority, archived at " -"<ulink url=\"http://free-culture.cc/notes/\">link #12</ulink>." +"Marc Wanamaker, \"The First Studios,\" <citetitle>The Silents " +"Majority</citetitle>, archived at <ulink " +"url=\"http://free-culture.cc/notes/\">link #12</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2796 +#: freeculture.xml:2801 msgid "" "The Napsters of those days, the \"independents,\" were companies like " "Fox. And no less than today, these independents were vigorously resisted. " @@ -3542,7 +3662,7 @@ msgstr "" #. PAGE BREAK 68 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2812 +#: freeculture.xml:2817 msgid "" "Of course, California grew quickly, and the effective enforcement of federal " "law eventually spread west. But because patents grant the patent holder a " @@ -3552,19 +3672,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:2823 +#: freeculture.xml:2828 msgid "Recorded Music" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2825 +#: freeculture.xml:2830 msgid "" "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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2829 +#: freeculture.xml:2834 msgid "" "At the time that Edison and Henri Fourneaux invented machines for " "reproducing music (Edison the phonograph, Fourneaux the player piano), the " @@ -3575,13 +3695,13 @@ msgid "" "score, and I would also have to pay for the right to perform it publicly." msgstr "" -#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:2838 freeculture.xml:2963 +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:2843 freeculture.xml:2987 msgid "Beatles" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2840 +#: freeculture.xml:2845 msgid "" "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 " @@ -3601,7 +3721,7 @@ msgstr "" #. PAGE BREAK 69 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2858 +#: freeculture.xml:2863 msgid "" "The composers (and publishers) were none too happy about this capacity to " "pirate. As South Dakota senator Alfred Kittredge put it," @@ -3609,18 +3729,18 @@ msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:2872 +#: freeculture.xml:2877 msgid "" "To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 " "and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st " "sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, " -"chairman), reprinted in Legislative History of the Copyright Act, E. Fulton " -"Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, " -"1976)." +"chairman), reprinted in <citetitle>Legislative History of the Copyright " +"Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South " +"Hackensack, N.J.: Rothman Reprints, 1976)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:2865 +#: freeculture.xml:2870 msgid "" "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 " @@ -3632,7 +3752,7 @@ msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2886 +#: freeculture.xml:2891 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of " "Nathan Burkan, attorney for the Music Publishers Association)." @@ -3640,7 +3760,7 @@ msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2892 +#: freeculture.xml:2897 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of " "Nathan Burkan, attorney for the Music Publishers Association)." @@ -3648,14 +3768,14 @@ msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2899 +#: freeculture.xml:2904 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of " "John Philip Sousa, composer)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2882 +#: freeculture.xml:2887 msgid "" "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 " @@ -3668,7 +3788,7 @@ msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2911 +#: freeculture.xml:2917 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 283–84 " "(statement of Albert Walker, representative of the Auto-Music Perforating " @@ -3677,7 +3797,7 @@ msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2922 +#: freeculture.xml:2928 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared " "memorandum of Philip Mauro, general patent counsel of the American " @@ -3685,7 +3805,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2904 +#: freeculture.xml:2909 msgid "" "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 " @@ -3703,71 +3823,79 @@ msgstr "" #. PAGE BREAK 70 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2930 +#: freeculture.xml:2934 msgid "" -"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 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 recorded " -"once. This is the part of 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." +"The law soon resolved this battle in favor of the composer " +"<emphasis>and</emphasis> 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 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 recorded once. This is the part of " +"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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2946 +#: freeculture.xml:2949 msgid "" "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) the fee set by the " +"so long as they paid the composer (or copyright holder) the fee set by the " "statute." msgstr "" +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:2964 freeculture.xml:13703 +msgid "Grisham, John" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2955 +#: freeculture.xml:2957 msgid "" "This is an exception within the law of copyright. When John Grisham writes a " "novel, a publisher is free to publish that novel only if Grisham gives the " "publisher permission. Grisham, in turn, is free to 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." +"work except with permission of Grisham. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:2978 +#: freeculture.xml:2981 msgid "" "Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and " "H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., " "217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in " -"Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe " -"Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976)." +"<citetitle>Legislative History of the 1909 Copyright Act</citetitle>, " +"E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman " +"Reprints, 1976)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2965 +#: freeculture.xml:2967 msgid "" "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 weaker right than it otherwise " -"gives creative authors. The Beatles have less control over their creative " -"work than Grisham does. And the beneficiaries of this less control are the " -"recording industry and the public. The recording industry gets something of " -"value for less than 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.<placeholder type=\"footnote\" id=\"0\"/>" +"effect, the law <emphasis>subsidizes</emphasis> the recording industry " +"through a kind of piracy—by giving recording artists a weaker right " +"than it otherwise gives creative authors. The Beatles have less control over " +"their creative work than Grisham does. And the beneficiaries of this less " +"control are the recording industry and the public. The recording industry " +"gets something of value for less than 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.<placeholder type=\"footnote\" id=\"0\"/> <placeholder " +"type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:2986 +#: freeculture.xml:2990 msgid "" "While the recording industry has been quite coy about this recently, " "historically it has been quite a supporter of the statutory license for " @@ -3784,7 +3912,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:2993 +#: freeculture.xml:2997 msgid "" "the record producers argued vigorously that the compulsory license system " "must be retained. They asserted that the record industry is a " @@ -3808,56 +3936,70 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:3025 freeculture.xml:4145 +#: freeculture.xml:3024 freeculture.xml:4094 msgid "Radio" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3027 +#: freeculture.xml:3026 msgid "Radio was also born of piracy." msgstr "" -#. f12 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:3041 +msgid "Hand, Learned" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3033 -msgid "" -"See 17 United States Code, sections 106 and 110. At the beginning, record " -"companies printed \"Not Licensed for Radio Broadcast\" and other messages " -"purporting to restrict the ability to play a record on a radio station. " -"Judge Learned Hand rejected the argument that a warning attached to a record " -"might restrict the rights of the radio station. See RCA Manufacturing " -"Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, " -"\"From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and " -"the Propertization of Copyright,\" University of Chicago Law Review 70 " -"(2003): 281." +#: freeculture.xml:3032 +msgid "" +"See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At " +"the beginning, record companies printed \"Not Licensed for Radio Broadcast\" " +"and other messages purporting to restrict the ability to play a record on a " +"radio station. Judge Learned Hand rejected the argument that a warning " +"attached to a record might restrict the rights of the radio station. See " +"<citetitle>RCA Manufacturing " +"Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd " +"Cir. 1940). See also Randal C. Picker, \"From Edison to the Broadcast Flag: " +"Mechanisms of Consent and Refusal and the Propertization of Copyright,\" " +"<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281. " +"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " +"id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3030 +#: freeculture.xml:3029 msgid "" "When a radio station plays a record on the air, that constitutes a \"public " "performance\" of the composer's work.<placeholder type=\"footnote\" " "id=\"0\"/> As I described above, the law gives the composer (or copyright " -"holder) an exclusive right to public performances of his work. The radio " +"holder) an exclusive right to public performances of his work. The radio " "station thus owes the composer money for that performance." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:3059 freeculture.xml:8547 freeculture.xml:9003 freeculture.xml:11893 +msgid "Lovett, Lyle" +msgstr "" + #. PAGE BREAK 72 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3052 +#: freeculture.xml:3049 msgid "" "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 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." +"of the <emphasis>composer's</emphasis> work. The radio station is also " +"performing a copy of the <emphasis>recording artist's</emphasis> 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. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3068 +#: freeculture.xml:3064 msgid "" "But it doesn't. Under the law governing radio performances, the radio " "station does not have to pay the recording artist. The radio station need " @@ -3866,8 +4008,13 @@ msgid "" "must pay the composer something for the privilege of playing the song." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:3072 freeculture.xml:3557 freeculture.xml:5931 +msgid "Madonna" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3078 +#: freeculture.xml:3075 msgid "" "This difference can be huge. Imagine you compose a piece of music. Imagine " "it is your first. You own the exclusive right to authorize public " @@ -3876,19 +4023,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3085 +#: freeculture.xml:3081 msgid "" "Imagine she does sing your song, and imagine she likes it a lot. She 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 pirate the value of Madonna's work without paying her " -"anything." +"station thus gets to <emphasis>pirate</emphasis> the value of Madonna's work " +"without paying her anything." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3094 +#: freeculture.xml:3092 msgid "" "No doubt, one might argue that, on balance, the recording artists " "benefit. On average, the promotion they get is worth more than the " @@ -3899,18 +4046,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:3104 freeculture.xml:4151 +#: freeculture.xml:3101 freeculture.xml:4100 msgid "Cable TV" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3107 +#: freeculture.xml:3104 msgid "Cable TV was also born of a kind of piracy." msgstr "" #. PAGE BREAK 73 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3110 +#: freeculture.xml:3107 msgid "" "When cable entrepreneurs first started wiring communities with cable " "television in 1948, most refused to pay broadcasters for the content that " @@ -3922,18 +4069,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:3120 +#: freeculture.xml:3117 msgid "Anello, Douglas" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:3121 +#: freeculture.xml:3118 msgid "Burdick, Quentin" msgstr "" #. f13 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3127 +#: freeculture.xml:3124 msgid "" "Copyright Law Revision—CATV: Hearing on S. 1006 Before the " "Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee " @@ -3943,14 +4090,14 @@ msgstr "" #. f14 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3138 +#: freeculture.xml:3135 msgid "" "Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, " "general counsel of the National Association of Broadcasters)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3123 +#: freeculture.xml:3120 msgid "" "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 " @@ -3965,14 +4112,14 @@ msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:3149 +#: freeculture.xml:3146 msgid "" "Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes, " "general counsel of the Association of Maximum Service Telecasters, Inc.)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:3145 +#: freeculture.xml:3142 msgid "" "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 " @@ -3980,13 +4127,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3155 +#: freeculture.xml:3152 msgid "Again, the demand of the copyright holders seemed reasonable enough:" msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:3164 +#: freeculture.xml:3161 msgid "" "Copyright Law Revision—CATV, 169 (joint statement of Arthur B. Krim, " "president of United Artists Corp., and John Sinn, president of United " @@ -3994,7 +4141,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:3159 +#: freeculture.xml:3156 msgid "" "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 " @@ -4004,14 +4151,14 @@ msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3175 +#: freeculture.xml:3172 msgid "" "Copyright Law Revision—CATV, 209 (statement of Charlton Heston, " "president of the Screen Actors Guild)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3171 +#: freeculture.xml:3168 msgid "" "These were \"free-ride[rs],\" Screen Actor's Guild president Charlton Heston " "said, who were \"depriving actors of compensation.\"<placeholder " @@ -4019,40 +4166,46 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3180 +#: freeculture.xml:3177 msgid "" "But again, there was another side to the debate. As Assistant Attorney " "General Edwin Zimmerman put it," msgstr "" -#. f18 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><indexterm><primary> +#: freeculture.xml:3193 freeculture.xml:3195 +msgid "Zimmerman, Edwin" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:3194 +#: freeculture.xml:3191 msgid "" "Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, " -"acting assistant attorney general)." +"acting assistant attorney general). <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:3185 +#: freeculture.xml:3182 msgid "" "Our point here is that unlike the problem of whether you have any copyright " "protection at all, the problem here is whether copyright holders who are " "already compensated, who already have a monopoly, should be permitted to " "extend that monopoly. . . . The question here is how much compensation they " "should have and how far back they should carry their right to " -"compensation.<placeholder type=\"footnote\" id=\"0\"/>" +"compensation.<placeholder type=\"footnote\" id=\"0\"/> <placeholder " +"type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3200 +#: freeculture.xml:3199 msgid "" "Copyright owners took the cable companies to court. Twice the Supreme Court " "held that the cable companies owed the copyright owners nothing." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3204 +#: freeculture.xml:3203 msgid "" "It took Congress almost thirty years before it resolved the question of " "whether cable companies had to pay for the content they \"pirated.\" In the " @@ -4067,35 +4220,36 @@ msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3221 +#: freeculture.xml:3220 msgid "" -"See, for example, National Music Publisher's Association, The Engine of Free " -"Expression: Copyright on the Internet—The Myth of Free Information, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#13</ulink>. \"The threat of piracy—the use of someone else's creative " -"work without permission or compensation—has grown with the Internet.\"" +"See, for example, National Music Publisher's Association, <citetitle>The " +"Engine of Free Expression: Copyright on the Internet—The Myth of Free " +"Information</citetitle>, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #13</ulink>. \"The threat of " +"piracy—the use of someone else's creative work without permission or " +"compensation—has grown with the Internet.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3216 +#: freeculture.xml:3215 msgid "" "These separate stories sing a common theme. If \"piracy\" means using value " "from someone else's creative property without permission from that " "creator—as it is increasingly described today<placeholder " -"type=\"footnote\" id=\"0\"/> — 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." +"type=\"footnote\" id=\"0\"/> — then <emphasis>every</emphasis> " +"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." msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:3238 +#: freeculture.xml:3237 msgid "CHAPTER FIVE: \"Piracy\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:3240 +#: freeculture.xml:3239 msgid "" "There is piracy of copyrighted material. Lots of it. This piracy comes in " "many forms. The most significant is commercial piracy, the unauthorized " @@ -4106,7 +4260,7 @@ msgstr "" #. PAGE BREAK 76 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:3248 +#: freeculture.xml:3247 msgid "" "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 " @@ -4118,23 +4272,23 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:3258 +#: freeculture.xml:3257 msgid "Piracy I" msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3266 +#: freeculture.xml:3265 msgid "" -"See IFPI (International Federation of the Phonographic Industry), The " -"Recording Industry Commercial Piracy Report 2003, July 2003, available at " -"<ulink url=\"http://free-culture.cc/notes/\">link #14</ulink>. See also Ben " -"Hunt, \"Companies Warned on Music Piracy Risk,\" Financial Times, 14 " -"February 2003, 11." +"See IFPI (International Federation of the Phonographic Industry), " +"<citetitle>The Recording Industry Commercial Piracy Report 2003</citetitle>, " +"July 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#14</ulink>. See also Ben Hunt, \"Companies Warned on Music Piracy Risk,\" " +"<citetitle>Financial Times</citetitle>, 14 February 2003, 11." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3260 +#: freeculture.xml:3259 msgid "" "All across the world, but especially in Asia and Eastern Europe, there are " "businesses that do nothing but take others people's copyrighted content, " @@ -4146,7 +4300,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3277 +#: freeculture.xml:3275 msgid "" "This is piracy plain and simple. Nothing in the argument of this book, nor " "in the argument that most people make when talking about the subject of this " @@ -4154,7 +4308,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3283 +#: freeculture.xml:3281 msgid "" "Which is not to say that excuses and justifications couldn't be made for " "it. We could, for example, remind ourselves that for the first one hundred " @@ -4166,7 +4320,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3294 +#: freeculture.xml:3290 msgid "" "That excuse isn't terribly strong. Technically, our law did not ban the " "taking of foreign works. It explicitly limited itself to American " @@ -4181,7 +4335,7 @@ msgstr "" #. PAGE BREAK 77 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3306 +#: freeculture.xml:3301 msgid "" "True, these local rules have, in effect, been imposed upon these " "countries. No country can be part of the world economy and choose not to " @@ -4190,31 +4344,31 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para><footnote><para><indexterm><primary> -#: freeculture.xml:3334 freeculture.xml:12238 freeculture.xml:12670 freeculture.xml:12677 +#: freeculture.xml:3328 freeculture.xml:12172 freeculture.xml:12598 freeculture.xml:12605 msgid "Drahos, Peter" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3320 -msgid "" -"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the " -"Knowledge Economy? (New York: The New Press, 2003), 10–13, 209. The " -"Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement " -"obligates member nations to create administrative and enforcement mechanisms " -"for intellectual property rights, a costly proposition for developing " -"countries. Additionally, patent rights may lead to higher prices for staple " -"industries such as agriculture. Critics of TRIPS question the disparity " -"between burdens imposed upon developing countries and benefits conferred to " -"industrialized nations. TRIPS does permit governments to use patents for " -"public, noncommercial uses without first obtaining the patent holder's " -"permission. Developing nations may be able to use this to gain the benefits " -"of foreign patents at lower prices. This is a promising strategy for " -"developing nations within the TRIPS framework. <placeholder " -"type=\"indexterm\" id=\"0\"/>" +#: freeculture.xml:3314 +msgid "" +"See Peter Drahos with John Braithwaite, Information Feudalism: " +"<citetitle>Who Owns the Knowledge Economy?</citetitle> (New York: The New " +"Press, 2003), 10–13, 209. The Trade-Related Aspects of Intellectual " +"Property Rights (TRIPS) agreement obligates member nations to create " +"administrative and enforcement mechanisms for intellectual property rights, " +"a costly proposition for developing countries. Additionally, patent rights " +"may lead to higher prices for staple industries such as agriculture. Critics " +"of TRIPS question the disparity between burdens imposed upon developing " +"countries and benefits conferred to industrialized nations. TRIPS does " +"permit governments to use patents for public, noncommercial uses without " +"first obtaining the patent holder's permission. Developing nations may be " +"able to use this to gain the benefits of foreign patents at lower " +"prices. This is a promising strategy for developing nations within the TRIPS " +"framework. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3315 +#: freeculture.xml:3309 msgid "" "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 " @@ -4225,21 +4379,26 @@ msgid "" "these nations, this piracy is wrong." msgstr "" -#. f3 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:3348 freeculture.xml:3604 freeculture.xml:14230 +msgid "Liebowitz, Stan" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3347 +#: freeculture.xml:3341 msgid "" "For an analysis of the economic impact of copying technology, see Stan " -"Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), " -"144–90. \"In some instances . . . the impact of piracy on the " -"copyright holder's ability to appropriate the value of the work will be " -"negligible. One obvious instance is the case where the individual engaging " -"in pirating would not have purchased an original even if pirating were not " -"an option.\" Ibid., 149." +"Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: " +"Amacom, 2002), 144–90. \"In some instances . . . the impact of piracy " +"on the copyright holder's ability to appropriate the value of the work will " +"be negligible. One obvious instance is the case where the individual " +"engaging in pirating would not have purchased an original even if pirating " +"were not an option.\" Ibid., 149. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3341 +#: freeculture.xml:3335 msgid "" "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 " @@ -4249,7 +4408,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3357 +#: freeculture.xml:3352 msgid "" "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 " @@ -4265,25 +4424,30 @@ msgstr "" #. PAGE BREAK 78 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3370 +#: freeculture.xml:3365 msgid "" "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 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 copyright owner wants to sell. But 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." +"right of a very special sort, it <emphasis>is</emphasis> a property " +"right. Like all property rights, the copyright gives the 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 copyright owner wants to sell. But " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:3394 +msgid "Windows" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3391 +#: freeculture.xml:3383 msgid "" "Finally, we could try to excuse this piracy with the argument that the " "piracy actually helps the copyright owner. When the Chinese \"steal\" " @@ -4294,11 +4458,12 @@ msgid "" "time, because that buying will benefit 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." +"eventually be buying Microsoft. Without piracy, then, Microsoft would " +"lose. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3407 +#: freeculture.xml:3397 msgid "" "This argument, too, is somewhat true. The addiction strategy is a good " "one. Many businesses practice it. Some thrive because of it. Law students, " @@ -4309,7 +4474,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3416 +#: freeculture.xml:3405 msgid "" "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 " @@ -4325,7 +4490,7 @@ msgstr "" #. PAGE BREAK 79 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3434 +#: freeculture.xml:3419 msgid "" "Thus, while I understand the pull of these justifications for piracy, and I " "certainly see the motivation, in my view, in the end, these efforts at " @@ -4337,7 +4502,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3444 +#: freeculture.xml:3429 msgid "" "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 " @@ -4349,7 +4514,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3453 +#: freeculture.xml:3438 msgid "" "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 need to " @@ -4358,7 +4523,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3459 +#: freeculture.xml:3444 msgid "" "For (1) like the original Hollywood, p2p sharing escapes an overly " "controlling industry; and (2) like the original recording industry, it " @@ -4367,26 +4532,28 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3465 +#: freeculture.xml:3450 msgid "" "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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:3472 +#: freeculture.xml:3456 msgid "Piracy II" msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3477 -msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777)." +#: freeculture.xml:3461 +msgid "" +"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 " +"Eng. Rep. 1274 (1777)." msgstr "" #. PAGE BREAK 80 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3474 +#: freeculture.xml:3458 msgid "" "The key to the \"piracy\" that the law aims to quash is a use that \"rob[s] " "the author of [his] profit.\"<placeholder type=\"footnote\" id=\"0\"/> This " @@ -4395,27 +4562,32 @@ msgid "" "alternative to assure the author of his profit." msgstr "" -#. f5 +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:3483 freeculture.xml:7980 +msgid "Christensen, Clayton M." +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3493 +#: freeculture.xml:3475 msgid "" -"See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary " -"National Bestseller That Changed the Way We Do Business (New York: " -"HarperBusiness, 2000). Professor Christensen examines why companies that " -"give rise to and dominate a product area are frequently unable to come up " -"with the most creative, paradigm-shifting uses for their own products. This " -"job usually falls to outside innovators, who reassemble existing technology " -"in inventive ways. For a discussion of Christensen's ideas, see Lawrence " -"Lessig, Future, 89–92, 139." +"See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The " +"Revolutionary National Bestseller That Changed the Way We Do " +"Business</citetitle> (New York: HarperBusiness, 2000). Professor Christensen " +"examines why companies that give rise to and dominate a product area are " +"frequently unable to come up with the most creative, paradigm-shifting uses " +"for their own products. This job usually falls to outside innovators, who " +"reassemble existing technology in inventive ways. For a discussion of " +"Christensen's ideas, see Lawrence Lessig, <citetitle>Future</citetitle>, " +"89–92, 139. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> -#: freeculture.xml:3504 +#: freeculture.xml:3486 msgid "Fanning, Shawn" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3486 +#: freeculture.xml:3470 msgid "" "Peer-to-peer sharing was made famous by Napster. But the inventors of the " "Napster technology had not made any major technological innovations. Like " @@ -4427,18 +4599,20 @@ msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3512 +#: freeculture.xml:3494 msgid "" -"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" San " -"Francisco Chronicle, 24 September 2002, A1; \"Rock 'n' Roll Suicide,\" New " -"Scientist, 6 July 2002, 42; Benny Evangelista, \"Napster Names CEO, Secures " -"New Financing,\" San Francisco Chronicle, 23 May 2003, C1; \"Napster's " -"Wake-Up Call,\" Economist, 24 June 2000, 23; John Naughton, \"Hollywood at " -"War with the Internet\" (London) Times, 26 July 2002, 18." +"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" " +"<citetitle>San Francisco Chronicle</citetitle>, 24 September 2002, A1; " +"\"Rock 'n' Roll Suicide,\" <citetitle>New Scientist</citetitle>, 6 July " +"2002, 42; Benny Evangelista, \"Napster Names CEO, Secures New Financing,\" " +"<citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1; \"Napster's " +"Wake-Up Call,\" <citetitle>Economist</citetitle>, 24 June 2000, 23; John " +"Naughton, \"Hollywood at War with the Internet\" (London) " +"<citetitle>Times</citetitle>, 26 July 2002, 18." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3507 +#: freeculture.xml:3489 msgid "" "The result was spontaneous combustion. Launched in July 1999, Napster " "amassed over 10 million users within nine months. After eighteen months, " @@ -4454,40 +4628,41 @@ msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3536 +#: freeculture.xml:3516 msgid "" -"See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution " -"(September 2002), reporting that 28 percent of Americans aged twelve and " -"older have downloaded music off of the Internet and 30 percent have listened " -"to digital music files stored on their computers." +"See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music " +"Distribution</citetitle> (September 2002), reporting that 28 percent of " +"Americans aged twelve and older have downloaded music off of the Internet " +"and 30 percent have listened to digital music files stored on their " +"computers." msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3545 +#: freeculture.xml:3525 msgid "" -"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" New York " -"Times, 6 June 2003, A1." +"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" " +"<citetitle>New York Times</citetitle>, 6 June 2003, A1." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3530 +#: freeculture.xml:3510 msgid "" "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.<placeholder type=\"footnote\" id=\"0\"/> 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.<placeholder type=\"footnote\" id=\"1\"/> The vast majority of these " -"are not kids. Whatever the actual figure, a 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." +"by the NPD group quoted in <citetitle>The New York Times</citetitle> " +"estimated that 43 million citizens used file-sharing networks to exchange " +"content in May 2003.<placeholder type=\"footnote\" id=\"1\"/> The vast " +"majority of these are not kids. Whatever the actual figure, a 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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3556 +#: freeculture.xml:3534 msgid "" "Some of this enjoying involves copyright infringement. Some of it does " "not. And even among the part that is technically copyright infringement, " @@ -4499,15 +4674,14 @@ msgstr "" #. PAGE BREAK 81 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3566 +#: freeculture.xml:3544 msgid "" "File sharers share different kinds of content. We can divide these different " "kinds into four types." msgstr "" -#. A. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:3572 +#: freeculture.xml:3550 msgid "" "There are some who use sharing networks as substitutes for purchasing " "content. Thus, when a new Madonna CD is released, rather than buying the CD, " @@ -4515,12 +4689,12 @@ msgid "" "takes it would actually have bought it if sharing didn't make it available " "for free. Most probably wouldn't have, but clearly there are some who " "would. The latter are the target of category A: users who download instead " -"of purchasing." +"of purchasing. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. B. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:3585 +#: freeculture.xml:3561 msgid "" "There are some who use sharing networks to sample music before purchasing " "it. Thus, a friend sends another friend an MP3 of an artist he's not heard " @@ -4533,7 +4707,7 @@ msgstr "" #. C. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:3598 +#: freeculture.xml:3572 msgid "" "There are many who use sharing networks to get access to copyrighted content " "that is no longer sold or that they would not have purchased because the " @@ -4552,39 +4726,40 @@ msgstr "" #. PAGE BREAK 82 #. D. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:3619 +#: freeculture.xml:3589 msgid "" "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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3625 +#: freeculture.xml:3595 msgid "How do these different types of sharing balance out?" msgstr "" -#. f9 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3633 -msgid "See Liebowitz, Rethinking the Network Economy,148–49." +#: freeculture.xml:3603 +msgid "" +"See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, " +"148–49. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3628 +#: freeculture.xml:3598 msgid "" "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.<placeholder " "type=\"footnote\" id=\"0\"/> 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 available). So how sharing matters on balance is a hard question " -"to answer—and certainly much more difficult than the current rhetoric " -"around the issue suggests." +"exposure to music is good) and harmless to the artist (since the work is " +"not otherwise available). So how sharing matters on balance is a hard " +"question to answer—and certainly much more difficult than the current " +"rhetoric around the issue suggests." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3645 +#: freeculture.xml:3614 msgid "" "Whether on balance sharing is harmful depends importantly on how harmful " "type A sharing is. Just as Edison complained about Hollywood, composers " @@ -4595,23 +4770,23 @@ msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3663 +#: freeculture.xml:3629 msgid "" -"See Cap Gemini Ernst & Young, Technology Evolution and the Music " -"Industry's Business Model Crisis (2003), 3. This report describes the music " -"industry's effort to stigmatize the budding practice of cassette taping in " -"the 1970s, including an advertising campaign featuring a cassette-shape " -"skull and the caption \"Home taping is killing music.\" At the time digital " -"audio tape became a threat, the Office of Technical Assessment conducted a " -"survey of consumer behavior. In 1988, 40 percent of consumers older than ten " -"had taped music to a cassette format. U.S. Congress, Office of Technology " -"Assessment, Copyright and Home Copying: Technology Challenges the Law, " -"OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October " -"1989), 145–56." +"See Cap Gemini Ernst & Young, <citetitle>Technology Evolution and the " +"Music Industry's Business Model Crisis</citetitle> (2003), 3. This report " +"describes the music industry's effort to stigmatize the budding practice of " +"cassette taping in the 1970s, including an advertising campaign featuring a " +"cassette-shape skull and the caption \"Home taping is killing music.\" At " +"the time digital audio tape became a threat, the Office of Technical " +"Assessment conducted a survey of consumer behavior. In 1988, 40 percent of " +"consumers older than ten had taped music to a cassette format. U.S. " +"Congress, Office of Technology Assessment, <citetitle>Copyright and Home " +"Copying: Technology Challenges the Law</citetitle>, OTA-CIT-422 (Washington, " +"D.C.: U.S. Government Printing Office, October 1989), 145–56." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3654 +#: freeculture.xml:3622 msgid "" "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 " @@ -4626,12 +4801,12 @@ msgstr "" #. f11 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3692 -msgid "U.S. Congress, Copyright and Home Copying, 4." +#: freeculture.xml:3655 +msgid "U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3684 +#: freeculture.xml:3647 msgid "" "Yet soon thereafter, and before Congress was given an opportunity to enact " "regulation, MTV was launched, and the industry had a record turnaround. \"In " @@ -4642,19 +4817,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3696 +#: freeculture.xml:3659 msgid "" "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 the society that " "inherits the tradition that gave us the film industry, the record industry, " "the radio industry, cable TV, and the VCR—the question is not simply " -"whether type A sharing is harmful. The question is also how harmful type A " -"sharing is, and how beneficial the other types of sharing are." +"whether type A sharing is harmful. The question is also " +"<emphasis>how</emphasis> harmful type A sharing is, and how beneficial the " +"other types of sharing are." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3706 +#: freeculture.xml:3669 msgid "" "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 " @@ -4662,42 +4838,43 @@ msgid "" "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 therefore have " -"little static reason to resist them." +"little <emphasis>static</emphasis> reason to resist them." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3715 +#: freeculture.xml:3680 msgid "" "Could that be true? Could the industry as a whole be gaining because of file " "sharing? Odd as that might sound, the data about CD sales actually suggest " "it might be close." msgstr "" -#. f12 -#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3725 -msgid "" -"See Recording Industry Association of America, 2002 Yearend Statistics, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#15</ulink>. A later report indicates even greater losses. See Recording " -"Industry Association of America, Some Facts About Music Piracy, 25 June " -"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#16</ulink>: \"In the past four years, unit shipments of recorded music have " -"fallen by 26 percent from 1.16 billion units in to 860 million units in 2002 " -"in the United States (based on units shipped). In terms of sales, revenues " -"are down 14 percent, from $14.6 billion in to $12.6 billion last year (based " -"on U.S. dollar value of shipments). The music industry worldwide has gone " -"from a $39 billion industry in 2000 down to a $32 billion industry in 2002 " -"(based on U.S. dollar value of shipments).\"" +#. f12 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3689 +msgid "" +"See Recording Industry Association of America, <citetitle>2002 Yearend " +"Statistics</citetitle>, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #15</ulink>. A later report " +"indicates even greater losses. See Recording Industry Association of " +"America, <citetitle>Some Facts About Music Piracy</citetitle>, 25 June 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #16</ulink>: " +"\"In the past four years, unit shipments of recorded music have fallen by 26 " +"percent from 1.16 billion units in to 860 million units in 2002 in the " +"United States (based on units shipped). In terms of sales, revenues are " +"down 14 percent, from $14.6 billion in to $12.6 billion last year (based on " +"U.S. dollar value of shipments). The music industry worldwide has gone from " +"a $39 billion industry in 2000 down to a $32 billion industry in 2002 (based " +"on U.S. dollar value of shipments).\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> -#: freeculture.xml:3752 +#: freeculture.xml:3716 msgid "Black, Jane" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3749 +#: freeculture.xml:3713 msgid "" "Jane Black, \"Big Music's Broken Record,\" BusinessWeek online, 13 February " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " @@ -4705,7 +4882,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3721 +#: freeculture.xml:3685 msgid "" "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.<placeholder " @@ -4717,15 +4894,16 @@ msgid "" "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.\"<placeholder " "type=\"footnote\" id=\"1\"/> Competition from other forms of media could " -"also account for some of 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.\"<placeholder " -"type=\"footnote\" id=\"2\"/>" +"also account for some of the decline. As Jane Black of " +"<citetitle>BusinessWeek</citetitle> notes, \"The soundtrack to the film " +"<citetitle>High Fidelity</citetitle> has a list price of $18.98. You could " +"get the whole movie [on DVD] for $19.99.\"<placeholder type=\"footnote\" " +"id=\"2\"/>" msgstr "" #. PAGE BREAK 84 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3766 +#: freeculture.xml:3731 msgid "" "But let's assume the RIAA is right, and all of the decline in CD sales is " "because of Internet sharing. Here's the rub: In the same period that the " @@ -4736,7 +4914,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3775 +#: freeculture.xml:3739 msgid "" "There are too many different things happening at the same time to explain " "these numbers definitively, but one conclusion is unavoidable: The recording " @@ -4754,7 +4932,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3793 +#: freeculture.xml:3754 msgid "" "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 " @@ -4763,7 +4941,7 @@ msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3806 +#: freeculture.xml:3766 msgid "" "By one estimate, 75 percent of the music released by the major labels is no " "longer in print. See Online Entertainment and Copyright Law—Coming " @@ -4774,7 +4952,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3800 +#: freeculture.xml:3760 msgid "" "One benefit is type C sharing—making available content that is " "technically still under copyright but is no longer commercially available. " @@ -4784,45 +4962,46 @@ msgid "" "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." +"<emphasis>to the company</emphasis> to make it available." msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3831 +#: freeculture.xml:3786 msgid "" "While there are not good estimates of the number of used record stores in " "existence, in 2002, there were 7,198 used book dealers in the United States, " -"an increase of 20 percent since 1993. See Book Hunter Press, The Quiet " -"Revolution: The Expansion of the Used Book Market (2002), available at " -"<ulink url=\"http://free-culture.cc/notes/\">link #19</ulink>. Used records " -"accounted for $260 million in sales in 2002. See National Association of " -"Recording Merchandisers, \"2002 Annual Survey Results,\" available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #20</ulink>." +"an increase of 20 percent since 1993. See Book Hunter Press, <citetitle>The " +"Quiet Revolution: The Expansion of the Used Book Market</citetitle> (2002), " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#19</ulink>. Used records accounted for $260 million in sales in 2002. See " +"National Association of Recording Merchandisers, \"2002 Annual Survey " +"Results,\" available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#20</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3825 +#: freeculture.xml:3780 msgid "" "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.<placeholder " "type=\"footnote\" id=\"0\"/> 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 copyright, the " -"copyright owner doesn't get a dime. Used 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." +"sell this content, <emphasis>even if the content is still under " +"copyright</emphasis>, the copyright owner doesn't get a dime. Used 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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:3852 +#: freeculture.xml:3806 msgid "Bernstein, Leonard" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3854 +#: freeculture.xml:3808 msgid "" "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 " @@ -4837,7 +5016,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3867 +#: freeculture.xml:3821 msgid "" "It may well be, all things considered, that it would be better if the " "copyright owner got something from this trade. But just because it may well " @@ -4849,24 +5028,24 @@ msgstr "" #. PAGE BREAK 86 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3875 +#: freeculture.xml:3829 msgid "" "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 sharing " "clearly benefits authors and society. Science fiction author Cory Doctorow, " -"for example, released his first novel, Down and Out in 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 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!)" +"for example, released his first novel, <citetitle>Down and Out in the Magic " +"Kingdom</citetitle>, 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 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!)" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3892 +#: freeculture.xml:3846 msgid "" "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 " @@ -4875,7 +5054,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3898 +#: freeculture.xml:3852 msgid "" "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 " @@ -4884,7 +5063,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3905 +#: freeculture.xml:3859 msgid "" "For unlike the piracy I described in the first section of this chapter, much " "of the \"piracy\" that file sharing enables is plainly legal and good. And " @@ -4899,7 +5078,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3918 +#: freeculture.xml:3872 msgid "" "\"But isn't the war just a war against illegal sharing? Isn't the target " "just what you call type A sharing?\"" @@ -4907,18 +5086,18 @@ msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:3935 +#: freeculture.xml:3889 msgid "" "See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 " "(N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at " "<ulink url=\"http://free-culture.cc/notes/\">link #21</ulink>. For an " -"account of the litigation and its toll on Napster, see Joseph Menn, All the " -"Rave: The Rise and Fall of Shawn Fanning's Napster (New York: Crown " -"Business, 2003), 269–82." +"account of the litigation and its toll on Napster, see Joseph Menn, " +"<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's " +"Napster</citetitle> (New York: Crown Business, 2003), 269–82." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3922 +#: freeculture.xml:3876 msgid "" "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 " @@ -4931,7 +5110,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3945 +#: freeculture.xml:3900 msgid "" "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 " @@ -4945,7 +5124,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3956 +#: freeculture.xml:3911 msgid "" "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 " @@ -4957,7 +5136,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3967 +#: freeculture.xml:3920 msgid "" "So, as we've seen, when \"mechanical reproduction\" threatened the interests " "of composers, Congress balanced the rights of composers against the " @@ -4971,7 +5150,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3980 +#: freeculture.xml:3932 msgid "" "Cable TV followed the pattern of record albums. When the courts rejected the " "claim that cable broadcasters had to pay for the content they rebroadcast, " @@ -4982,7 +5161,7 @@ msgstr "" #. PAGE BREAK 88 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:3990 +#: freeculture.xml:3942 msgid "" "This compromise, like the compromise affecting records and player pianos, " "served two important goals—indeed, the two central goals of any " @@ -4994,17 +5173,18 @@ msgid "" "holders associated with broadcasters would use their power to stifle this " "new technology, cable. But if Congress had permitted cable to use " "broadcasters' 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)." +"cable. Thus Congress chose a path that would assure " +"<emphasis>compensation</emphasis> without giving the past (broadcasters) " +"control over the future (cable)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:4008 +#: freeculture.xml:3957 msgid "Betamax" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4010 +#: freeculture.xml:3959 msgid "" "In the same year that Congress struck this balance, two major producers and " "distributors of film content filed a lawsuit against another technology, the " @@ -5020,7 +5200,7 @@ msgstr "" #. PAGE BREAK 89 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4023 +#: freeculture.xml:3972 msgid "" "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 " @@ -5037,7 +5217,7 @@ msgstr "" #. f18 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4045 +#: freeculture.xml:3994 msgid "" "Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 " "Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., " @@ -5047,28 +5227,28 @@ msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4057 +#: freeculture.xml:4006 msgid "Copyright Infringements (Audio and Video Recorders), 475." msgstr "" #. f20 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4062 +#: freeculture.xml:4011 msgid "" -"Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, " -"(C.D. Cal., 1979)." +"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony " +"Corp. of America</citetitle>, 480 F. Supp. 429, (C.D. Cal., 1979)." msgstr "" #. f21 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4073 +#: freeculture.xml:4022 msgid "" "Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack " "Valenti)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4038 +#: freeculture.xml:3987 msgid "" "MPAA president Jack Valenti became the studios' most vocal champion. Valenti " "called VCRs \"tapeworms.\" He warned, \"When there are 20, 30, 40 million of " @@ -5094,14 +5274,14 @@ msgstr "" #. f22 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4089 +#: freeculture.xml:4039 msgid "" -"Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th " -"Cir. 1981)." +"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony " +"Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir. 1981)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4078 +#: freeculture.xml:4027 msgid "" "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 " @@ -5110,14 +5290,14 @@ msgid "" "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 yet, it was a Japanese Boston Strangler of the American film " -"industry)—was an illegal technology.<placeholder type=\"footnote\" " -"id=\"0\"/>" +"(worse yet, it was a <emphasis>Japanese</emphasis> Boston Strangler of the " +"American film industry)—was an illegal technology.<placeholder " +"type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 90 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4094 +#: freeculture.xml:4044 msgid "" "But the Supreme Court reversed the decision of the Ninth Circuit. And in " "its reversal, the Court clearly articulated its understanding of when and " @@ -5126,14 +5306,14 @@ msgstr "" #. f23 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:4113 +#: freeculture.xml:4063 msgid "" -"Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 " -"(1984)." +"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City " +"Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:4103 +#: freeculture.xml:4053 msgid "" "Sound policy, as well as history, supports our consistent deference to " "Congress when major technological innovations alter the market for " @@ -5144,7 +5324,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4118 +#: freeculture.xml:4068 msgid "" "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 " @@ -5154,98 +5334,99 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><title> -#: freeculture.xml:4127 +#: freeculture.xml:4076 msgid "Table" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> -#: freeculture.xml:4131 +#: freeculture.xml:4080 msgid "CASE" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> -#: freeculture.xml:4132 +#: freeculture.xml:4081 msgid "WHOSE VALUE WAS \"PIRATED\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> -#: freeculture.xml:4133 +#: freeculture.xml:4082 msgid "RESPONSE OF THE COURTS" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> -#: freeculture.xml:4134 +#: freeculture.xml:4083 msgid "RESPONSE OF CONGRESS" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4139 +#: freeculture.xml:4088 msgid "Recordings" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4140 +#: freeculture.xml:4089 msgid "Composers" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4141 freeculture.xml:4153 freeculture.xml:4159 +#: freeculture.xml:4090 freeculture.xml:4102 freeculture.xml:4108 msgid "No protection" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4142 freeculture.xml:4154 +#: freeculture.xml:4091 freeculture.xml:4103 msgid "Statutory license" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4146 +#: freeculture.xml:4095 msgid "Recording artists" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4147 +#: freeculture.xml:4096 msgid "N/A" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4148 freeculture.xml:4160 +#: freeculture.xml:4097 freeculture.xml:4109 msgid "Nothing" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4152 +#: freeculture.xml:4101 msgid "Broadcasters" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4157 +#: freeculture.xml:4106 msgid "VCR" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:4158 +#: freeculture.xml:4107 msgid "Film creators" msgstr "" -#. f24 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4170 +#: freeculture.xml:4119 msgid "" "These are the most important instances in our history, but there are other " "cases as well. The technology of digital audio tape (DAT), for example, was " "regulated by Congress to minimize the risk of piracy. The remedy Congress " "imposed did burden DAT producers, by taxing tape sales and controlling the " "technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the " -"United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 " -"U.S.C. §1001. Again, however, this regulation did not eliminate the " -"opportunity for free riding in the sense I've described. See Lessig, Future, " -"71. See also Picker, \"From Edison to the Broadcast Flag,\" University of " -"Chicago Law Review 70 (2003): 293–96." +"<citetitle>United States Code</citetitle>), Pub. L. No. 102-563, 106 Stat. " +"4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not " +"eliminate the opportunity for free riding in the sense I've described. See " +"Lessig, <citetitle>Future</citetitle>, 71. See also Picker, \"From Edison to " +"the Broadcast Flag,\" <citetitle>University of Chicago Law " +"Review</citetitle> 70 (2003): 293–96. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4167 +#: freeculture.xml:4116 msgid "" "In each case throughout our history, a new technology changed the way " "content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each " @@ -5255,20 +5436,20 @@ msgstr "" #. PAGE BREAK 91 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4186 +#: freeculture.xml:4136 msgid "" -"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.\" In every case, Congress acted to recognize some of the " -"legitimacy in 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." +"In <emphasis>none</emphasis> of these cases did either the courts or " +"Congress eliminate all free riding. In <emphasis>none</emphasis> 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.\" In every case, Congress " +"acted to recognize some of the legitimacy in 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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4198 +#: freeculture.xml:4148 msgid "" "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 " @@ -5282,12 +5463,14 @@ msgstr "" #. f25 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4215 -msgid "Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984)." +#: freeculture.xml:4165 +msgid "" +"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City " +"Studios, Inc</citetitle>., 464 U.S. 417, (1984)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4210 +#: freeculture.xml:4160 msgid "" "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 " @@ -5295,13 +5478,13 @@ msgid "" "uses of his work.\"<placeholder type=\"footnote\" id=\"0\"/> 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 balancing has historically been done after " -"a technology has matured, or settled into the mix of technologies that " -"facilitate the distribution of content." +"exclusive right creates. And this balancing has historically been done " +"<emphasis>after</emphasis> a technology has matured, or settled into the mix " +"of technologies that facilitate the distribution of content." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4227 +#: freeculture.xml:4176 msgid "" "We should be doing the same thing today. The technology of the Internet is " "changing quickly. The way people connect to the Internet (wires " @@ -5318,25 +5501,27 @@ msgstr "" #. f26 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:4254 +#: freeculture.xml:4200 msgid "" "John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes " -"Past Efforts,\" New York Times, 22 September 2003, C3." +"Past Efforts,\" <citetitle>New York Times</citetitle>, 22 September 2003, " +"C3." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4244 +#: freeculture.xml:4192 msgid "" "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.\"<placeholder type=\"footnote\" " -"id=\"0\"/> 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 property. Why should we wait for Congress to " +"\"potential public benefits,\" as John Schwartz writes in <citetitle>The New " +"York Times</citetitle>, \"could be delayed in the P2P fight.\"<placeholder " +"type=\"footnote\" id=\"0\"/> 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 " +"<emphasis>property</emphasis>. 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 " @@ -5344,20 +5529,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:4268 +#: freeculture.xml:4214 msgid "" -"\"It is our property,\" the warriors insist. \"And it should be protected " -"just as any other property is protected.\"" +"\"It is <emphasis>our property</emphasis>,\" the warriors insist. \"And it " +"should be protected just as any other property is protected.\"" msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:4276 +#: freeculture.xml:4222 msgid "\"PROPERTY\"" msgstr "" #. PAGE BREAK 94 #. type: Content of: <book><chapter><para> -#: freeculture.xml:4280 +#: freeculture.xml:4226 msgid "" "The copyright warriors are right: A copyright is a kind of property. It can " "be owned and sold, and the law protects against its theft. Ordinarily, the " @@ -5366,30 +5551,30 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:4287 +#: freeculture.xml:4233 msgid "" "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 picnic table you put in " "your backyard. I am taking a thing, the picnic table, and after I take it, " -"you don't have it. But what am I taking when I take the good idea you had to " -"put a picnic 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?" +"you don't have it. But what am I taking when I take the good " +"<emphasis>idea</emphasis> you had to put a picnic 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?" msgstr "" #. f1 #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:4312 +#: freeculture.xml:4258 msgid "" -"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The " -"Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery " -"Bergh, eds., 1903), 330, 333–34." +"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in " +"<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew " +"A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333–34." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:4299 +#: freeculture.xml:4245 msgid "" "The point is not just about the thingness of picnic tables versus ideas, " "though that's an important difference. The point instead is that in the " @@ -5405,7 +5590,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:4318 +#: freeculture.xml:4264 msgid "" "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 " @@ -5415,19 +5600,19 @@ msgstr "" #. f2 #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:4333 +#: freeculture.xml:4277 msgid "" "As the legal realists taught American law, all property rights are " "intangible. A property right is simply a right that an individual has " "against the world to do or not do certain things that may or may not attach " "to a physical object. The right itself is intangible, even if the object to " "which it is (metaphorically) attached is tangible. See Adam Mossoff, \"What " -"Is Property? Putting the Pieces Back Together,\" Arizona Law Review 45 " -"(2003): 373, 429 n. 241." +"Is Property? Putting the Pieces Back Together,\" <citetitle>Arizona Law " +"Review</citetitle> 45 (2003): 373, 429 n. 241." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:4326 +#: freeculture.xml:4272 msgid "" "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 " @@ -5436,7 +5621,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:4346 +#: freeculture.xml:4287 msgid "" "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 " @@ -5448,51 +5633,53 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:4360 +#: freeculture.xml:4299 msgid "CHAPTER SIX: Founders" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4362 +#: freeculture.xml:4301 msgid "" -"William Shakespeare wrote Romeo and Juliet in 1595. The play was first " -"published in 1597. It was the eleventh major play that Shakespeare had " -"written. He would continue to write plays through 1613, and the plays 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.\"" +"William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in " +"1595. The play was first published in 1597. It was the eleventh major play " +"that Shakespeare had written. He would continue to write plays through 1613, " +"and the plays 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.\"" msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4378 +#: freeculture.xml:4316 msgid "" "Jacob Tonson is typically remembered for his associations with prominent " "eighteenth-century literary figures, especially John Dryden, and for his " -"handsome \"definitive editions\" of classic works. In addition to Romeo and " -"Juliet, he published an astonishing array of works that still remain at the " -"heart of the English canon, including collected works of Shakespeare, Ben " -"Jonson, John Milton, and John Dryden. See Keith Walker, \"Jacob Tonson, " -"Bookseller,\" American Scholar 61:3 (1992): 424–31." +"handsome \"definitive editions\" of classic works. In addition to " +"<citetitle>Romeo and Juliet</citetitle>, he published an astonishing array " +"of works that still remain at the heart of the English canon, including " +"collected works of Shakespeare, Ben Jonson, John Milton, and John " +"Dryden. See Keith Walker, \"Jacob Tonson, Bookseller,\" <citetitle>American " +"Scholar</citetitle> 61:3 (1992): 424–31." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4389 +#: freeculture.xml:4327 msgid "" -"Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: " -"Vanderbilt University Press, 1968), 151–52." +"Lyman Ray Patterson, <citetitle>Copyright in Historical " +"Perspective</citetitle> (Nashville: Vanderbilt University Press, 1968), " +"151–52." msgstr "" #. PAGE BREAK 97 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4374 +#: freeculture.xml:4312 msgid "" -"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.<placeholder " +"In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> 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.<placeholder " "type=\"footnote\" id=\"0\"/> Tonson was the most prominent of a small group " "of publishers called the Conger<placeholder type=\"footnote\" id=\"1\"/> who " "controlled bookselling in England during the eighteenth century. The Conger " @@ -5503,16 +5690,16 @@ msgid "" "editions was eliminated." msgstr "" -#. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4415 +#: freeculture.xml:4349 msgid "" "As Siva Vaidhyanathan nicely argues, it is erroneous to call this a " -"\"copyright law.\" See Vaidhyanathan, Copyrights and Copywrongs, 40." +"\"copyright law.\" See Vaidhyanathan, <citetitle>Copyrights and " +"Copywrongs</citetitle>, 40. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4405 +#: freeculture.xml:4340 msgid "" "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 " @@ -5521,13 +5708,13 @@ msgid "" "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.<placeholder " -"type=\"footnote\" id=\"0\"/> 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?" +"type=\"footnote\" id=\"0\"/> Under this law, <citetitle>Romeo and " +"Juliet</citetitle> should have been free in 1731. So why was there any issue " +"about it still being under Tonson's control in 1774?" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4423 +#: freeculture.xml:4357 msgid "" "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 " @@ -5540,22 +5727,23 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4436 +#: freeculture.xml:4368 msgid "" -"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 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." +"There was no <emphasis>positive</emphasis> 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 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." msgstr "" #. PAGE BREAK 98 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4453 +#: freeculture.xml:4380 msgid "" "This question was important to the publishers, or \"booksellers,\" as they " "were called, because there was growing competition from foreign " @@ -5567,7 +5755,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4465 +#: freeculture.xml:4392 msgid "" "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 " @@ -5578,29 +5766,30 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4475 +#: freeculture.xml:4401 msgid "" "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?" +"limit they set, but why would they limit the right <emphasis>at " +"all?</emphasis>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4480 +#: freeculture.xml:4407 msgid "" "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 world. He didn't " -"take anybody's property when he created this play (that's a controversial " -"claim, but never mind), and by his creating 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?" +"strong claim. Take <citetitle>Romeo and Juliet</citetitle> as an example: " +"That play was written by Shakespeare. It was his genius that brought it into " +"the world. He didn't take anybody's property when he created this play " +"(that's a controversial claim, but never mind), and by his creating 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?" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4492 +#: freeculture.xml:4418 msgid "" "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 Statute of " @@ -5609,7 +5798,7 @@ msgstr "" #. PAGE BREAK 99 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4499 +#: freeculture.xml:4424 msgid "" "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 wasn't " @@ -5617,14 +5806,15 @@ msgid "" "as a very specific set of restrictions: It forbade 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 a work could be used. Today the right " -"includes a 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." +"did not control any more generally how a work could be " +"<emphasis>used</emphasis>. Today the right includes a 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." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4516 +#: freeculture.xml:4439 msgid "" "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 " @@ -5637,7 +5827,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4528 +#: freeculture.xml:4451 msgid "" "Even that limited right was viewed with skepticism by the British. They had " "had a long and ugly experience with \"exclusive rights,\" especially " @@ -5652,7 +5842,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4544 +#: freeculture.xml:4467 msgid "" "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 " @@ -5665,14 +5855,14 @@ msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4568 +#: freeculture.xml:4493 msgid "" -"Philip Wittenberg, The Protection and Marketing of Literary Property (New " -"York: J. Messner, Inc., 1937), 31." +"Philip Wittenberg, <citetitle>The Protection and Marketing of Literary " +"Property</citetitle> (New York: J. Messner, Inc., 1937), 31." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4555 +#: freeculture.xml:4478 msgid "" "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. " @@ -5688,7 +5878,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4573 +#: freeculture.xml:4498 msgid "" "Many believed the power the booksellers exercised over the spread of " "knowledge was harming that spread, just at the time the Enlightenment was " @@ -5698,7 +5888,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4582 +#: freeculture.xml:4506 msgid "" "To balance this power, Parliament decided to increase competition among " "booksellers, and the simplest way to do that was to spread the wealth of " @@ -5712,7 +5902,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4594 +#: freeculture.xml:4518 msgid "" "When 1731 (1710 + 21) came along, however, the booksellers were getting " "anxious. They saw the consequences of more competition, and like every " @@ -5724,7 +5914,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4603 +#: freeculture.xml:4527 msgid "" "Parliament rejected their requests. As one pamphleteer put it, in words that " "echo today," @@ -5732,19 +5922,19 @@ msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> -#: freeculture.xml:4618 +#: freeculture.xml:4542 msgid "" "A Letter to a Member of Parliament concerning the Bill now depending in the " "House of Commons, for making more effectual an Act in the Eighth Year of the " "Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by " "Vesting the Copies of Printed Books in the Authors or Purchasers of such " "Copies, during the Times therein mentioned (London, 1735), in Brief Amici " -"Curiae of Tyler T. Ochoa et al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) " -"(No. 01-618)." +"Curiae of Tyler T. Ochoa et al., 8, <citetitle>Eldred</citetitle> " +"v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618)." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:4608 +#: freeculture.xml:4532 msgid "" "I see no Reason for granting a further Term now, which will not hold as well " "for granting it again and again, as often as the Old ones Expire; so that " @@ -5756,7 +5946,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4629 +#: freeculture.xml:4553 msgid "" "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 " @@ -5772,17 +5962,17 @@ msgid "" "way to protect authors." msgstr "" -#. f6 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4650 +#: freeculture.xml:4574 msgid "" -"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" Vanderbilt " -"Law Review 40 (1987): 28. For a wonderfully compelling account, see " -"Vaidhyanathan, 37–48." +"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" " +"<citetitle>Vanderbilt Law Review</citetitle> 40 (1987): 28. For a " +"wonderfully compelling account, see Vaidhyanathan, 37–48. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4644 +#: freeculture.xml:4568 msgid "" "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 " @@ -5795,14 +5985,14 @@ msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4662 +#: freeculture.xml:4587 msgid "" -"For a compelling account, see David Saunders, Authorship and Copyright " -"(London: Routledge, 1992), 62–69." +"For a compelling account, see David Saunders, <citetitle>Authorship and " +"Copyright</citetitle> (London: Routledge, 1992), 62–69." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4658 +#: freeculture.xml:4583 msgid "" "The booksellers' argument was not accepted without a fight. The hero of " "this fight was a Scottish bookseller named Alexander Donaldson.<placeholder " @@ -5811,25 +6001,25 @@ msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4672 +#: freeculture.xml:4597 msgid "" -"Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), " -"92." +"Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard " +"University Press, 1993), 92." msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4682 +#: freeculture.xml:4607 msgid "Ibid., 93." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:4684 +#: freeculture.xml:4609 msgid "Erskine, Andrew" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4667 +#: freeculture.xml:4592 msgid "" "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 " @@ -5844,14 +6034,14 @@ msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4693 +#: freeculture.xml:4618 msgid "" -"Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting " -"Borwell)." +"Lyman Ray Patterson, <citetitle>Copyright in Historical " +"Perspective</citetitle>, 167 (quoting Borwell)." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4687 +#: freeculture.xml:4612 msgid "" "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 " @@ -5863,24 +6053,25 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4701 +#: freeculture.xml:4626 msgid "" "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." +"the most important early victory being <citetitle>Millar</citetitle> " +"v. <citetitle>Taylor</citetitle>." msgstr "" #. f11 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4713 +#: freeculture.xml:4638 msgid "" "Howard B. Abrams, \"The Historic Foundation of American Copyright Law: " -"Exploding the Myth of Common Law Copyright,\" Wayne Law Review 29 (1983): " -"1152." +"Exploding the Myth of Common Law Copyright,\" <citetitle>Wayne Law " +"Review</citetitle> 29 (1983): 1152." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4706 +#: freeculture.xml:4631 msgid "" "Millar was a bookseller who in 1729 had purchased the rights to James " "Thomson's poem \"The Seasons.\" Millar complied with the requirements of the " @@ -5891,7 +6082,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4719 +#: freeculture.xml:4647 msgid "" "Astonishingly to modern lawyers, one of the greatest judges in English " "history, Lord Mansfield, agreed with the booksellers. Whatever protection " @@ -5905,7 +6096,7 @@ msgstr "" #. PAGE BREAK 103 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4730 +#: freeculture.xml:4658 msgid "" "Considered as a matter of abstract justice—reasoning as if justice " "were just a matter of logical deduction from first " @@ -5920,51 +6111,52 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4744 +#: freeculture.xml:4673 msgid "" "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." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:4747 +#: freeculture.xml:4676 msgid "Beckett, Thomas" msgstr "" #. f12 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4753 +#: freeculture.xml:4682 msgid "Ibid., 1156." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4749 +#: freeculture.xml:4678 msgid "" "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.<placeholder type=\"footnote\" id=\"0\"/> 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." +"decision in <citetitle>Millar</citetitle>, 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." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4763 +#: freeculture.xml:4692 msgid "" -"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 Statute of Anne terminated " -"those rights. After passage of the Statute 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." +"As few legal cases ever do, <citetitle>Donaldson</citetitle> " +"v. <citetitle>Beckett</citetitle> drew an enormous amount of attention " +"throughout Britain. Donaldson's lawyers argued that whatever rights may have " +"existed under the common law, the Statute of Anne terminated those " +"rights. After passage of the Statute 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." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4773 +#: freeculture.xml:4702 msgid "" "The House of Lords was an odd institution. Legal questions were presented to " "the House and voted upon first by the \"law lords,\" members of special " @@ -5974,7 +6166,7 @@ msgstr "" #. PAGE BREAK 104 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4780 +#: freeculture.xml:4709 msgid "" "The reports about the law lords' votes are mixed. On some counts, it looks " "as if perpetual copyright prevailed. But there is no ambiguity about how the " @@ -5986,74 +6178,76 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:4798 +#: freeculture.xml:4727 msgid "Bacon, Francis" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:4799 +#: freeculture.xml:4728 msgid "Bunyan, John" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:4800 +#: freeculture.xml:4729 msgid "Johnson, Samuel" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:4801 +#: freeculture.xml:4730 msgid "Milton, John" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:4802 +#: freeculture.xml:4731 msgid "Shakespeare, William" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4790 +#: freeculture.xml:4719 msgid "" -"\"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 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. <placeholder type=\"indexterm\" " -"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " -"type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/> " -"<placeholder type=\"indexterm\" id=\"4\"/>" +"\"The public domain.\" Before the case of <citetitle>Donaldson</citetitle> " +"v. <citetitle>Beckett</citetitle>, 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 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. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " +"type=\"indexterm\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> " +"<placeholder type=\"indexterm\" id=\"3\"/> <placeholder type=\"indexterm\" " +"id=\"4\"/>" msgstr "" #. f13 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4815 +#: freeculture.xml:4744 msgid "Rose, 97." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4805 +#: freeculture.xml:4734 msgid "" "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 celebrated the decision " -"in the streets. As the Edinburgh Advertiser 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 rejoicing in Edinburgh upon victory over literary " -"property: bonfires and illuminations.\"<placeholder type=\"footnote\" " -"id=\"0\"/>" +"in the streets. As the <citetitle>Edinburgh Advertiser</citetitle> 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 rejoicing in Edinburgh upon " +"victory over literary property: bonfires and illuminations.\"<placeholder " +"type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4819 +#: freeculture.xml:4748 msgid "" "In London, however, at least among publishers, the reaction was equally " -"strong in the opposite direction. The Morning Chronicle reported:" +"strong in the opposite direction. The <citetitle>Morning " +"Chronicle</citetitle> reported:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:4825 +#: freeculture.xml:4754 msgid "" "By the above decision . . . near 200,000 pounds worth of what was honestly " "purchased at public sale, and which was yesterday thought property is now " @@ -6066,29 +6260,29 @@ msgstr "" #. PAGE BREAK 105 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4840 +#: freeculture.xml:4769 msgid "" "\"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 free. Not in the sense that " -"copyrights would not be respected, for of course, for a limited time after a " -"work was published, the bookseller had an exclusive right to control the " -"publication of that book. And not in the sense that books could be stolen, " -"for even after a copyright expired, you still had to buy the book from " -"someone. But free in the sense that the culture and its growth would no " -"longer be controlled by a small group of publishers. As every free market " -"does, this free market of free culture would grow as the consumers and " -"producers chose. English culture would develop as the many English readers " -"chose to let it develop— chose in the books they bought and wrote; " -"chose in the memes they repeated and endorsed. Chose in a competitive " -"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." +"and develop. Culture in England was thereafter <emphasis>free</emphasis>. " +"Not in the sense that copyrights would not be respected, for of course, for " +"a limited time after a work was published, the bookseller had an exclusive " +"right to control the publication of that book. And not in the sense that " +"books could be stolen, for even after a copyright expired, you still had to " +"buy the book from someone. But <emphasis>free</emphasis> in the sense that " +"the culture and its growth would no longer be controlled by a small group of " +"publishers. As every free market does, this free market of free culture " +"would grow as the consumers and producers chose. English culture would " +"develop as the many English readers chose to let it develop— chose in " +"the books they bought and wrote; chose in the memes they repeated and " +"endorsed. Chose in a <emphasis>competitive context</emphasis>, 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." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4860 +#: freeculture.xml:4790 msgid "" "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 " @@ -6096,12 +6290,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:4868 +#: freeculture.xml:4798 msgid "CHAPTER SEVEN: Recorders" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4870 +#: freeculture.xml:4800 msgid "" "Jon Else is a filmmaker. He is best known for his documentaries and has been " "very successful in spreading his art. He is also a teacher, and as a teacher " @@ -6110,76 +6304,90 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4877 +#: freeculture.xml:4807 msgid "" "Else worked on a documentary that I was involved in. At a break, he told me " "a story about the freedom to create with film in America today." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4818 freeculture.xml:4887 +msgid "San Francisco Opera" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4882 +#: freeculture.xml:4812 msgid "" "In 1990, Else was working on a documentary about Wagner's Ring Cycle. The " "focus was stagehands at the San Francisco Opera. Stagehands are a " "particularly funny and colorful element of an opera. During a show, they " "hang out below the stage in the grips' lounge and in the lighting loft. They " -"make a perfect contrast to the art on the stage." +"make a perfect contrast to the art on the stage. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 107 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4890 +#: freeculture.xml:4821 msgid "" "During one of the performances, Else was shooting some stagehands playing " "checkers. In one corner of the room was a television set. Playing on the " "television set, while the stagehands played checkers and the opera company " -"played Wagner, was The Simpsons. As Else judged it, this touch of cartoon " -"helped capture the flavor of what was special about the scene." +"played Wagner, was <citetitle>The Simpsons</citetitle>. As Else judged it, " +"this touch of cartoon helped capture the flavor of what was special about " +"the scene." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4899 +#: freeculture.xml:4830 msgid "" "Years later, when he finally got funding to complete the film, Else " -"attempted to clear the rights for those few seconds of The Simpsons. For of " -"course, those few seconds are copyrighted; and of course, to use copyrighted " -"material you need the permission of the copyright owner, unless \"fair use\" " -"or some other privilege applies." +"attempted to clear the rights for those few seconds of <citetitle>The " +"Simpsons</citetitle>. For of course, those few seconds are copyrighted; and " +"of course, to use copyrighted material you need the permission of the " +"copyright owner, unless \"fair use\" or some other privilege applies." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4842 freeculture.xml:4850 +msgid "Gracie Films" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4906 +#: freeculture.xml:4837 msgid "" -"Else called Simpsons creator Matt Groening's office to get permission. " -"Groening approved the shot. The shot was a four-and-a-halfsecond image on a " -"tiny television set in the corner of the room. How could it hurt? Groening " -"was happy to have it in the film, but he told Else to contact Gracie Films, " -"the company that produces the program." +"Else called <citetitle>Simpsons</citetitle> creator Matt Groening's office " +"to get permission. Groening approved the shot. The shot was a " +"four-and-a-halfsecond image on a tiny television set in the corner of the " +"room. How could it hurt? Groening was happy to have it in the film, but he " +"told Else to contact Gracie Films, the company that produces the program. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4913 +#: freeculture.xml:4845 msgid "" "Gracie Films was okay with it, too, but they, like Groening, wanted to be " "careful. So they told Else to contact Fox, Gracie's parent company. Else " "called Fox and told them about the clip in the corner of the one room shot " "of the film. Matt Groening had already given permission, Else said. He was " -"just confirming the permission with Fox." +"just confirming the permission with Fox. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4920 +#: freeculture.xml:4853 msgid "" "Then, as Else told me, \"two things happened. First we discovered . . . that " "Matt Groening doesn't own his own creation—or at least that someone " "[at Fox] believes he doesn't own his own creation.\" And second, Fox " "\"wanted ten thousand dollars as a licensing fee for us to use this " -"four-point-five seconds of . . . entirely unsolicited Simpsons which was in " -"the corner of the shot.\"" +"four-point-five seconds of . . . entirely unsolicited " +"<citetitle>Simpsons</citetitle> which was in the corner of the shot.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4928 +#: freeculture.xml:4861 msgid "" "Else was certain there was a mistake. He worked his way up to someone he " "thought was a vice president for licensing, Rebecca Herrera. He explained " @@ -6190,92 +6398,101 @@ msgstr "" #. PAGE BREAK 108 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4936 +#: freeculture.xml:4869 msgid "" "\"I wanted to make sure I had my facts straight,\" he told me. \"Yes, you " "have your facts straight,\" she said. It would cost $10,000 to use the clip " -"of The Simpsons in the corner of a shot in a documentary film about Wagner's " -"Ring Cycle. And then, astonishingly, Herrera told Else, \"And if you quote " -"me, I'll turn you over to our attorneys.\" As an assistant to Herrera told " -"Else later on, \"They don't give a shit. They just want the money.\"" +"of <citetitle>The Simpsons</citetitle> in the corner of a shot in a " +"documentary film about Wagner's Ring Cycle. And then, astonishingly, Herrera " +"told Else, \"And if you quote me, I'll turn you over to our attorneys.\" As " +"an assistant to Herrera told Else later on, \"They don't give a shit. They " +"just want the money.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4888 +msgid "Day After Trinity, The" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4948 +#: freeculture.xml:4881 msgid "" "Else didn't have the money to buy the right to replay what was playing on " "the television backstage at the San Francisco Opera. To reproduce this " "reality was beyond the documentary filmmaker's budget. At the very last " "minute before the film was to be released, Else digitally replaced the shot " -"with a clip from another film that he had worked on, The Day After Trinity, " -"from ten years before." +"with a clip from another film that he had worked on, <citetitle>The Day " +"After Trinity</citetitle>, from ten years before. <placeholder " +"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4956 +#: freeculture.xml:4891 msgid "" "There's no doubt that someone, whether Matt Groening or Fox, owns the " -"copyright to The Simpsons. That copyright is their property. To use that " -"copyrighted material thus sometimes requires the permission of the copyright " -"owner. If the use that Else wanted to make of the Simpsons copyright were " -"one of the uses restricted by the law, then he would need to get the " -"permission of the copyright owner before he could use the work in that " -"way. And in a free market, it is the owner of the copyright who gets to set " -"the price for any use that the law says the owner gets to control." +"copyright to <citetitle>The Simpsons</citetitle>. That copyright is their " +"property. To use that copyrighted material thus sometimes requires the " +"permission of the copyright owner. If the use that Else wanted to make of " +"the <citetitle>Simpsons</citetitle> copyright were one of the uses " +"restricted by the law, then he would need to get the permission of the " +"copyright owner before he could use the work in that way. And in a free " +"market, it is the owner of the copyright who gets to set the price for any " +"use that the law says the owner gets to control." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4967 +#: freeculture.xml:4902 msgid "" -"For example, \"public performance\" is a use of The Simpsons that the " -"copyright owner gets to control. If you take a selection of favorite " -"episodes, rent a movie theater, and charge for tickets to come see \"My " -"Favorite Simpsons,\" then you need to get permission from the copyright " -"owner. And the copyright owner (rightly, in my view) can charge whatever she " -"wants—$10 or $1,000,000. That's her right, as set by the law." +"For example, \"public performance\" is a use of <citetitle>The " +"Simpsons</citetitle> that the copyright owner gets to control. If you take a " +"selection of favorite episodes, rent a movie theater, and charge for tickets " +"to come see \"My Favorite <citetitle>Simpsons</citetitle>,\" then you need " +"to get permission from the copyright owner. And the copyright owner " +"(rightly, in my view) can charge whatever she wants—$10 or " +"$1,000,000. That's her right, as set by the law." msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:4979 +#: freeculture.xml:4914 msgid "" "For an excellent argument that such use is \"fair use,\" but that lawyers " "don't permit recognition that it is \"fair use,\" see Richard A. Posner with " -"William F. Patry, \"Fair Use and Statutory Reform in the Wake of Eldred \" " -"(draft on file with author), University of Chicago Law School, 5 August " -"2003." +"William F. Patry, \"Fair Use and Statutory Reform in the Wake of " +"<citetitle>Eldred</citetitle>\" (draft on file with author), University of " +"Chicago Law School, 5 August 2003." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4976 +#: freeculture.xml:4911 msgid "" "But when lawyers hear this story about Jon Else and Fox, their first thought " "is \"fair use.\"<placeholder type=\"footnote\" id=\"0\"/> Else's use of just " -"4.5 seconds of an indirect shot of a Simpsons episode is clearly a fair use " -"of The Simpsons—and fair use does not require the permission of " -"anyone." +"4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle> episode " +"is clearly a fair use of <citetitle>The Simpsons</citetitle>—and fair " +"use does not require the permission of anyone." msgstr "" #. PAGE BREAK 109 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:4991 +#: freeculture.xml:4926 msgid "So I asked Else why he didn't just rely upon \"fair use.\" Here's his reply:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:4995 +#: freeculture.xml:4930 msgid "" -"The Simpsons fiasco was for me a great lesson in the gulf between what " -"lawyers find irrelevant in some abstract sense, and what is crushingly " -"relevant in practice to those of us actually trying to make and broadcast " -"documentaries. I never had any doubt that it was \"clearly fair use\" in an " -"absolute legal sense. But I couldn't rely on the concept in any concrete " -"way. Here's why:" +"The <citetitle>Simpsons</citetitle> fiasco was for me a great lesson in the " +"gulf between what lawyers find irrelevant in some abstract sense, and what " +"is crushingly relevant in practice to those of us actually trying to make " +"and broadcast documentaries. I never had any doubt that it was \"clearly " +"fair use\" in an absolute legal sense. But I couldn't rely on the concept in " +"any concrete way. Here's why:" msgstr "" #. 1. #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> -#: freeculture.xml:5005 +#: freeculture.xml:4940 msgid "" "Before our films can be broadcast, the network requires that we buy Errors " "and Omissions insurance. The carriers require a detailed \"visual cue " @@ -6284,24 +6501,29 @@ msgid "" "grind the application process to a halt." msgstr "" -#. 2. +#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para><indexterm><primary> +#: freeculture.xml:4957 +msgid "Lucas, George" +msgstr "" + #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> -#: freeculture.xml:5013 +#: freeculture.xml:4948 msgid "" "I probably never should have asked Matt Groening in the first place. But I " "knew (at least from folklore) that Fox had a history of tracking down and " -"stopping unlicensed Simpsons usage, just as George Lucas had a very high " -"profile litigating Star Wars usage. So I decided to play by the book, " -"thinking that we would be granted free or cheap license to four seconds of " -"Simpsons. As a documentary producer working to exhaustion on a shoestring, " -"the last thing I wanted was to risk legal trouble, even nuisance legal " -"trouble, and even to defend a principle." +"stopping unlicensed <citetitle>Simpsons</citetitle> usage, just as George " +"Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> " +"usage. So I decided to play by the book, thinking that we would be granted " +"free or cheap license to four seconds of <citetitle>Simpsons</citetitle>. As " +"a documentary producer working to exhaustion on a shoestring, the last thing " +"I wanted was to risk legal trouble, even nuisance legal trouble, and even to " +"defend a principle. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. 3. #. PAGE BREAK 110 #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> -#: freeculture.xml:5025 +#: freeculture.xml:4961 msgid "" "I did, in fact, speak with one of your colleagues at Stanford Law School " ". . . who confirmed that it was fair use. He also confirmed that Fox would " @@ -6312,14 +6534,14 @@ msgstr "" #. 4. #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> -#: freeculture.xml:5035 +#: freeculture.xml:4971 msgid "" "The question of fair use usually comes up at the end of the project, when we " "are up against a release deadline and out of money." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5042 +#: freeculture.xml:4978 msgid "" "In theory, fair use means you need no permission. The theory therefore " "supports free culture and insulates against a permission culture. But in " @@ -6330,7 +6552,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5050 +#: freeculture.xml:4986 msgid "" "This practice shows just how far the law has come from its " "eighteenth-century roots. The law was born as a shield to protect " @@ -6339,22 +6561,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:5059 +#: freeculture.xml:4995 msgid "CHAPTER EIGHT: Transformers" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:5060 +#: freeculture.xml:4996 msgid "Allen, Paul" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:5061 freeculture.xml:5069 freeculture.xml:5080 freeculture.xml:5095 freeculture.xml:5104 freeculture.xml:5109 freeculture.xml:5161 freeculture.xml:5177 freeculture.xml:5200 freeculture.xml:5262 freeculture.xml:9613 +#: freeculture.xml:4997 freeculture.xml:5005 freeculture.xml:5016 freeculture.xml:5031 freeculture.xml:5040 freeculture.xml:5045 freeculture.xml:5097 freeculture.xml:5113 freeculture.xml:5136 freeculture.xml:5199 freeculture.xml:9551 msgid "Alben, Alex" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5063 +#: freeculture.xml:4999 msgid "" "In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an " "innovative company founded by Microsoft cofounder Paul Allen to develop " @@ -6364,7 +6586,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5071 +#: freeculture.xml:5007 msgid "" "Alben had a special interest in new technology. He was intrigued by the " "emerging market for CD-ROM technology—not to distribute film, but to " @@ -6376,7 +6598,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5082 +#: freeculture.xml:5018 msgid "" "At that time, Eastwood had made more than fifty films, as an actor and as a " "director. Alben began with a series of interviews with Eastwood, asking him " @@ -6386,7 +6608,7 @@ msgstr "" #. PAGE BREAK 112 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5089 +#: freeculture.xml:5025 msgid "" "That alone would not have made a very interesting product, so Starwave " "wanted to add content from the movies in Eastwood's career: posters, " @@ -6396,7 +6618,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5097 +#: freeculture.xml:5033 msgid "" "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,\" " @@ -6406,24 +6628,24 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5106 +#: freeculture.xml:5042 msgid "" "Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, " "\"Well, what will it take?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> -#: freeculture.xml:5122 +#: freeculture.xml:5058 msgid "artists" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><secondary> -#: freeculture.xml:5123 +#: freeculture.xml:5059 msgid "publicity rights on images of" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:5117 +#: freeculture.xml:5053 msgid "" "Technically, the rights that Alben had to clear were mainly those of " "publicity—rights an artist has to control the commercial exploitation " @@ -6432,7 +6654,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5111 +#: freeculture.xml:5047 msgid "" "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 " @@ -6441,7 +6663,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5128 +#: freeculture.xml:5064 msgid "" "The problem was that neither Alben nor Slade had any idea what clearing " "those rights would mean. Every actor in each of the films could have a claim " @@ -6451,7 +6673,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5135 +#: freeculture.xml:5071 msgid "" "I asked Alben how he dealt with the problem. With an obvious pride in his " "resourcefulness that obscured the obvious bizarreness of his tale, Alben " @@ -6459,18 +6681,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5141 +#: freeculture.xml:5077 msgid "" "So we very mechanically went about looking up the film clips. We made some " "artistic decisions about what film clips to include—of course we were " -"going to use the \"Make my day\" clip from Dirty Harry. But you then need to " -"get the guy on the ground who's wiggling under the gun and you need to get " -"his permission. And then you have to decide what you are going to pay him." +"going to use the \"Make my day\" clip from <citetitle>Dirty " +"Harry</citetitle>. 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." msgstr "" #. PAGE BREAK 113 #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5150 +#: freeculture.xml:5086 msgid "" "We decided that it would be fair if we offered them the dayplayer rate for " "the right to reuse that performance. We're talking about a clip of less than " @@ -6483,7 +6706,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5163 +#: freeculture.xml:5099 msgid "" "Some actors were glad to help—Donald Sutherland, for example, followed " "up himself to be sure that the rights had been cleared. Others were " @@ -6496,14 +6719,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5174 +#: freeculture.xml:5110 msgid "" -"It was one year later—\"and even then we weren't sure whether we were " -"totally in the clear.\"" +"It was one <emphasis>year</emphasis> later—\"and even then we weren't " +"sure whether we were totally in the clear.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5179 +#: freeculture.xml:5115 msgid "" "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 " @@ -6511,7 +6734,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5185 +#: freeculture.xml:5121 msgid "" "Everyone thought it would be too hard. Everyone just threw up their hands " "and said, \"Oh, my gosh, a film, it's so many copyrights, there's the music, " @@ -6524,28 +6747,29 @@ msgstr "" #. PAGE BREAK 114 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5197 +#: freeculture.xml:5133 msgid "" "And no doubt, the product itself was exceptionally good. Eastwood loved it, " "and it sold very well." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:5201 +#: freeculture.xml:5137 msgid "Drucker, Peter" msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:5209 +#: freeculture.xml:5145 msgid "" -"U.S. Department of Commerce Office of Acquisition Management, Seven Steps to " -"Performance-Based Services Acquisition, available at <ulink " +"U.S. Department of Commerce Office of Acquisition Management, " +"<citetitle>Seven Steps to Performance-Based Services " +"Acquisition</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #22</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5203 +#: freeculture.xml:5139 msgid "" "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 " @@ -6556,7 +6780,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5217 +#: freeculture.xml:5153 msgid "" "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 " @@ -6566,7 +6790,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5225 +#: freeculture.xml:5161 msgid "" "I don't think so. When an actor renders a performance in a movie, he or she " "gets paid very well. . . . And then when 30 seconds of that performance is " @@ -6575,20 +6799,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5233 +#: freeculture.xml:5169 msgid "" -"Or at least, is this how the artist should be compensated? Would it make " -"sense, I asked, for there to be some kind of statutory license that someone " -"could pay and be free to make derivative use of clips like this? Did it " -"really make sense that a follow-on creator would have to track down every " -"artist, actor, director, musician, and get explicit permission from each? " -"Wouldn't a lot more be created if the legal part of the creative process " -"could be made to be more clean?" +"Or at least, is this <emphasis>how</emphasis> the artist should be " +"compensated? Would it make sense, I asked, for there to be some kind of " +"statutory license that someone could pay and be free to make derivative use " +"of clips like this? Did it really make sense that a follow-on creator would " +"have to track down every artist, actor, director, musician, and get explicit " +"permission from each? Wouldn't a lot more be created if the legal part of " +"the creative process could be made to be more clean?" msgstr "" #. PAGE BREAK 115 #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5243 +#: freeculture.xml:5180 msgid "" "Absolutely. I think that if there were some fair-licensing " "mechanism—where you weren't subject to hold-ups and you weren't " @@ -6608,7 +6832,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5264 +#: freeculture.xml:5201 msgid "" "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 " @@ -6628,7 +6852,7 @@ msgstr "" #. PAGE BREAK 116 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5281 +#: freeculture.xml:5218 msgid "" "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. " @@ -6639,21 +6863,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5291 +#: freeculture.xml:5228 msgid "" "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." +"century, all framed around the idea of a <citetitle>60 Minutes</citetitle> " +"episode. The execution was perfect, down to the sixty-minute stopwatch. The " +"judges loved every minute of it." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:5296 +#: freeculture.xml:5233 msgid "Nimmer, David" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5298 +#: freeculture.xml:5235 msgid "" "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 " @@ -6664,12 +6888,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:5305 +#: freeculture.xml:5242 msgid "Boies, David" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5307 +#: freeculture.xml:5244 msgid "" "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 " @@ -6686,7 +6910,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5322 +#: freeculture.xml:5259 msgid "" "We live in a \"cut and paste\" culture enabled by technology. Anyone " "building a presentation knows the extraordinary freedom that the cut and " @@ -6695,9 +6919,13 @@ msgid "" "your presentation." msgstr "" -#. PAGE BREAK 117 +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5275 +msgid "Camp Chaos" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5329 +#: freeculture.xml:5266 msgid "" "But presentations are just a tiny beginning. Using the Internet and its " "archives, musicians are able to string together mixes of sound never before " @@ -6706,11 +6934,11 @@ msgid "" "politicians and blends them with music to create biting political " "commentary. A site called Camp Chaos has produced some of the most biting " "criticism of the record industry that there is through the mixing of Flash! " -"and music." +"and music. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5340 +#: freeculture.xml:5278 msgid "" "All of these creations are technically illegal. Even if the creators wanted " "to be \"legal,\" the cost of complying with the law is impossibly " @@ -6720,7 +6948,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5347 +#: freeculture.xml:5285 msgid "" "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 " @@ -6737,7 +6965,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5362 +#: freeculture.xml:5300 msgid "" "Who could possibly object to this? And what reason would there be for " "objecting? We're talking about work that is not now being made; which if " @@ -6747,20 +6975,20 @@ msgstr "" #. PAGE BREAK 118 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5368 +#: freeculture.xml:5306 msgid "" "In February 2003, DreamWorks 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 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.\"" +"the comic genius of <citetitle>Saturday Night Live</citetitle> 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 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.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5380 +#: freeculture.xml:5318 msgid "" "The announcement called this \"film sampling.\" As Myers explained, \"Film " "Sampling is an exciting way to put an original spin on existing films and " @@ -6771,7 +6999,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5389 +#: freeculture.xml:5327 msgid "" "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 about this " @@ -6784,7 +7012,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5399 +#: freeculture.xml:5337 msgid "" "This privilege becomes reserved for two sorts of reasons. The first " "continues the story of the last chapter: the vagueness of \"fair use.\" Much " @@ -6800,12 +7028,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:5414 +#: freeculture.xml:5352 msgid "CHAPTER NINE: Collectors" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5416 +#: freeculture.xml:5354 msgid "" "In April 1996, millions of \"bots\"—computer codes designed to " "\"spider,\" or automatically search the Internet and copy " @@ -6817,7 +7045,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5425 +#: freeculture.xml:5363 msgid "" "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 " @@ -6828,17 +7056,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5433 +#: freeculture.xml:5371 msgid "" "This is the thing about the Internet that Orwell would have appreciated. In " -"the dystopia described in 1984, old newspapers were constantly updated to " -"assure that the current view of the world, approved of by the government, " -"was not contradicted by previous news reports." +"the dystopia described in <citetitle>1984</citetitle>, old newspapers were " +"constantly updated to assure that the current view of the world, approved of " +"by the government, was not contradicted by previous news reports." msgstr "" #. PAGE BREAK 120 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5441 +#: freeculture.xml:5379 msgid "" "Thousands of workers constantly reedited the past, meaning there was no way " "ever to know whether the story you were reading today was the story that was " @@ -6846,7 +7074,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5446 +#: freeculture.xml:5384 msgid "" "It's the same with the Internet. If you go to a Web page today, there's no " "way for you to know whether the content you are reading is the same as the " @@ -6857,7 +7085,7 @@ msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:5459 +#: freeculture.xml:5397 msgid "" "The temptations remain, however. Brewster Kahle reports that the White House " "changes its own press releases without notice. A May 13, 2003, press release " @@ -6867,7 +7095,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5453 +#: freeculture.xml:5391 msgid "" "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 " @@ -6877,7 +7105,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5467 +#: freeculture.xml:5405 msgid "" "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 " @@ -6890,19 +7118,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5478 +#: freeculture.xml:5416 msgid "" "It is said that those who fail to remember history are doomed to repeat " -"it. That's not quite correct. We all forget history. The key is whether we " -"have a way to go back to rediscover what we forget. More directly, the key " -"is whether an objective past can keep us honest. Libraries help do that, by " -"collecting content and keeping it, for schoolchildren, for researchers, for " -"grandma. A free society presumes this knowedge." +"it. That's not quite correct. We <emphasis>all</emphasis> forget " +"history. The key is whether we have a way to go back to rediscover what we " +"forget. More directly, the key is whether an objective past can keep us " +"honest. Libraries help do that, by collecting content and keeping it, for " +"schoolchildren, for researchers, for grandma. A free society presumes this " +"knowedge." msgstr "" #. PAGE BREAK 121 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5487 +#: freeculture.xml:5425 msgid "" "The Internet was an exception to this presumption. Until the Internet " "Archive, there was no way to go back. The Internet was the quintessentially " @@ -6914,7 +7143,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5498 +#: freeculture.xml:5436 msgid "" "Brewster Kahle is the founder of the Internet Archive. He was a very " "successful Internet entrepreneur after he was a successful computer " @@ -6927,7 +7156,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5508 +#: freeculture.xml:5446 msgid "" "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 " @@ -6947,19 +7176,19 @@ msgstr "" #. PAGE BREAK 122 #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5526 +#: freeculture.xml:5464 msgid "" "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 graduate student wanting to " "study that, and you wanted to get those original back and forth exchanges " -"between the two, the 60 Minutes episode that came out after it . . . it " -"would be almost impossible. . . . Those materials are almost " -"unfindable. . . ." +"between the two, the <citetitle>60 Minutes</citetitle> episode that came out " +"after it . . . it would be almost impossible. . . . Those materials are " +"almost unfindable. . . ." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5538 +#: freeculture.xml:5476 msgid "" "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 " @@ -6970,7 +7199,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5546 +#: freeculture.xml:5484 msgid "" "In part, this is because of the law. Early in American copyright law, " "copyright owners were required to deposit copies of their work in " @@ -6981,16 +7210,17 @@ msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:5563 +#: freeculture.xml:5501 msgid "" "Doug Herrick, \"Toward a National Film Collection: Motion Pictures at the " -"Library of Congress,\" Film Library Quarterly 13 nos. 2–3 (1980): 5; " -"Anthony Slide, Nitrate Won't Wait: A History of Film Preservation in the " -"United States ( Jefferson, N.C.: McFarland & Co., 1992), 36." +"Library of Congress,\" <citetitle>Film Library Quarterly</citetitle> 13 " +"nos. 2–3 (1980): 5; Anthony Slide, <citetitle>Nitrate Won't Wait: A " +"History of Film Preservation in the United States</citetitle> ( Jefferson, " +"N.C.: McFarland & Co., 1992), 36." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5554 +#: freeculture.xml:5492 msgid "" "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 " @@ -7003,7 +7233,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5571 +#: freeculture.xml:5509 msgid "" "The same is generally true about television. Television broadcasts were " "originally not copyrighted—there was no way to capture the broadcasts, " @@ -7017,7 +7247,7 @@ msgstr "" #. PAGE BREAK 123 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5582 +#: freeculture.xml:5520 msgid "" "Kahle was eager to correct this. Before September 11, 2001, he and his " "allies had started capturing television. They selected twenty stations from " @@ -7028,8 +7258,13 @@ msgid "" "from around the world covered the events of that day." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5547 +msgid "Movie Archive" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5593 +#: freeculture.xml:5531 msgid "" "Kahle had the same idea with film. Working with Rick Prelinger, whose " "archive of film includes close to 45,000 \"ephemeral films\" (meaning films " @@ -7045,11 +7280,12 @@ msgid "" "access to this important 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." +"film in a few minutes—for free. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5611 +#: freeculture.xml:5550 msgid "" "Here again, Kahle is providing access to a part of our culture that we " "otherwise could not get easily, if at all. It is yet another part of what " @@ -7059,7 +7295,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5619 +#: freeculture.xml:5558 msgid "" "The key here is access, not price. Kahle wants to enable free access to this " "content, but he also wants to enable others to sell access to it. His aim is " @@ -7070,7 +7306,7 @@ msgstr "" #. PAGE BREAK 124 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5627 +#: freeculture.xml:5566 msgid "" "For here is an idea that we should more clearly recognize. Every bit of " "creative property goes through different \"lives.\" In its first life, if " @@ -7082,7 +7318,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5639 +#: freeculture.xml:5578 msgid "" "After the commercial life of creative property has ended, our tradition has " "always supported a second life as well. A newspaper delivers the news every " @@ -7094,18 +7330,18 @@ msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:5651 +#: freeculture.xml:5590 msgid "" "Dave Barns, \"Fledgling Career in Antique Books: Woodstock Landlord, Bar " -"Owner Starts a New Chapter by Adopting Business,\" Chicago Tribune, 5 " -"September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, " -"only 2.2 percent were in print in 2002. R. Anthony Reese, \"The First Sale " -"Doctrine in the Era of Digital Networks,\" Boston College Law Review 44 " -"(2003): 593 n. 51." +"Owner Starts a New Chapter by Adopting Business,\" <citetitle>Chicago " +"Tribune</citetitle>, 5 September 1997, at Metro Lake 1L. Of books published " +"between 1927 and 1946, only 2.2 percent were in print in 2002. R. Anthony " +"Reese, \"The First Sale Doctrine in the Era of Digital Networks,\" " +"<citetitle>Boston College Law Review</citetitle> 44 (2003): 593 n. 51." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5648 +#: freeculture.xml:5587 msgid "" "The same has always been true about books. A book goes out of print very " "quickly (the average today is after about a year<placeholder " @@ -7117,7 +7353,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5665 +#: freeculture.xml:5604 msgid "" "Yet increasingly, any assumption about a stable second life for creative " "property does not hold true with the most important components of popular " @@ -7131,7 +7367,7 @@ msgstr "" #. PAGE BREAK 125 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5676 +#: freeculture.xml:5615 msgid "" "For most of the twentieth century, it was economics that made this so. It " "would have been insanely expensive to collect and make accessible all " @@ -7143,7 +7379,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5688 +#: freeculture.xml:5627 msgid "" "Perhaps the single most important feature of the digital revolution is that " "for the first time since the Library of Alexandria, it is feasible to " @@ -7154,7 +7390,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5696 +#: freeculture.xml:5635 msgid "" "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 " @@ -7163,7 +7399,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5703 +#: freeculture.xml:5642 msgid "" "It looks like there's about two to three million recordings of music. " "Ever. There are about a hundred thousand theatrical releases of movies, " @@ -7180,23 +7416,23 @@ msgstr "" #. PAGE BREAK 126 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5717 +#: freeculture.xml:5656 msgid "" "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 commercial life of creative " -"property ends, I don't know. But it does. And whenever it does, Kahle and " -"his archive hint at a world where this knowledge, and culture, remains " -"perpetually available. Some will draw upon it to understand it; some to " -"criticize it. Some will use it, as Walt Disney did, to re-create the past " -"for the future. These technologies promise something that had become " -"unimaginable for much of our past—a future for our past. The " -"technology of digital arts could make the dream of the Library of Alexandria " -"real again." +"libraries or archives could be. <emphasis>When</emphasis> the commercial " +"life of creative property ends, I don't know. But it does. And whenever it " +"does, Kahle and his archive hint at a world where this knowledge, and " +"culture, remains perpetually available. Some will draw upon it to understand " +"it; some to criticize it. Some will use it, as Walt Disney did, to re-create " +"the past for the future. These technologies promise something that had " +"become unimaginable for much of our past—a future " +"<emphasis>for</emphasis> our past. The technology of digital arts could make " +"the dream of the Library of Alexandria real again." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5732 +#: freeculture.xml:5671 msgid "" "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 " @@ -7207,17 +7443,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:5742 +#: freeculture.xml:5681 msgid "CHAPTER TEN: \"Property\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:5751 +#: freeculture.xml:5690 msgid "Johnson, Lyndon" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5744 +#: freeculture.xml:5683 msgid "" "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 " @@ -7228,8 +7464,43 @@ msgid "" "Washington. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5703 +msgid "Disney, Inc." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5704 +msgid "Sony Pictures Entertainment" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5705 +msgid "MGM" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5706 +msgid "Paramount Pictures" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5707 +msgid "Twentieth Century Fox" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5708 +msgid "Universal Pictures" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5709 +msgid "Warner Brothers" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5754 +#: freeculture.xml:5693 msgid "" "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 " @@ -7239,12 +7510,16 @@ msgid "" "made up of the chairmen and presidents of the seven major producers and " "distributors of motion picture and television programs in the United States: " "Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth " -"Century Fox, Universal Studios, and Warner Brothers." +"Century Fox, Universal Studios, and Warner Brothers. <placeholder " +"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> " +"<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" " +"id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/> <placeholder " +"type=\"indexterm\" id=\"5\"/> <placeholder type=\"indexterm\" id=\"6\"/>" msgstr "" #. PAGE BREAK 128 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5767 +#: freeculture.xml:5713 msgid "" "Valenti is only the third president of the MPAA. No president before him has " "had as much influence over that organization, or over Washington. As a " @@ -7258,7 +7533,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5779 +#: freeculture.xml:5725 msgid "" "In defending artistic liberty and the freedom of speech that our culture " "depends upon, the MPAA has done important good. In crafting the MPAA rating " @@ -7270,13 +7545,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5788 +#: freeculture.xml:5734 msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:" msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> -#: freeculture.xml:5802 +#: freeculture.xml:5748 msgid "" "Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, " "H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on " @@ -7286,21 +7561,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:5793 +#: freeculture.xml:5739 msgid "" "No matter the lengthy arguments made, no matter the charges and the " "counter-charges, no matter the tumult and the shouting, reasonable men and " "women will keep returning to the fundamental issue, the central theme which " -"animates this entire debate: Creative property 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.<placeholder " -"type=\"footnote\" id=\"0\"/>" +"animates this entire debate: <emphasis>Creative property owners must be " +"accorded the same rights and protection resident in all other property " +"owners in the nation</emphasis>. 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.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 129 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5812 +#: freeculture.xml:5758 msgid "" "The strategy of this rhetoric, like the strategy of most of Valenti's " "rhetoric, is brilliant and simple and brilliant because simple. The " @@ -7312,34 +7587,35 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5823 +#: freeculture.xml:5769 msgid "" "This claim has an obvious and powerful intuitive pull. It is stated with " "such clarity as to make the idea as obvious as the notion that we 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 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." +"made by <emphasis>anyone</emphasis> 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 have <emphasis>no</emphasis> " +"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." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:5838 +#: freeculture.xml:5784 msgid "" "Lawyers speak of \"property\" not as an absolute thing, but as a bundle of " "rights that are sometimes associated with a particular object. Thus, my " "\"property right\" to my car gives me the right to exclusive use, but not " "the right to drive at 150 miles an hour. For the best effort to connect the " "ordinary meaning of \"property\" to \"lawyer talk,\" see Bruce Ackerman, " -"Private Property and the Constitution (New Haven: Yale University Press, " -"1977), 26–27." +"<citetitle>Private Property and the Constitution</citetitle> (New Haven: " +"Yale University Press, 1977), 26–27." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5835 +#: freeculture.xml:5781 msgid "" "While \"creative property\" is certainly \"property\" in a nerdy and precise " "sense that lawyers are trained to understand,<placeholder type=\"footnote\" " @@ -7351,7 +7627,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5853 +#: freeculture.xml:5799 msgid "" "Valenti knows this. But he speaks for an industry that cares squat for our " "tradition and the values it represents. He speaks for an industry that is " @@ -7362,7 +7638,7 @@ msgstr "" #. PAGE BREAK 130 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5861 +#: freeculture.xml:5807 msgid "" "I have two purposes in this chapter. The first is to convince you that, " "historically, Valenti's claim is absolutely wrong. The second is to convince " @@ -7376,7 +7652,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5876 +#: freeculture.xml:5822 msgid "" "Organizations such as the MPAA, whose board includes the most powerful of " "the old guard, have little interest, their rhetoric notwithstanding, in " @@ -7390,7 +7666,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5888 +#: freeculture.xml:5834 msgid "" "The framers of our Constitution loved \"property.\" Indeed, so strongly did " "they love property that they built into the Constitution an important " @@ -7398,28 +7674,30 @@ msgid "" "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 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." +"property is, in a certain sense, sacred. It cannot <emphasis>ever</emphasis> " +"be taken from the property owner unless the government pays for the " +"privilege." msgstr "" #. PAGE BREAK 131 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5899 +#: freeculture.xml:5845 msgid "" "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 over to the public domain, Congress does not have any obligation to " -"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 compensation at all." +"create \"creative property,\" the Constitution <emphasis>requires</emphasis> " +"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 Constitution that requires compensation for your land " +"requires that you lose your \"creative property\" right without any " +"compensation at all." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5914 +#: freeculture.xml:5860 msgid "" "The Constitution thus on its face states that these two forms of property " "are not to be accorded the same rights. They are plainly to be treated " @@ -7430,7 +7708,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5923 +#: freeculture.xml:5869 msgid "" "Arguing for a change in our Constitution is not necessarily wrong. There " "was much in our original Constitution that was plainly wrong. The " @@ -7444,57 +7722,57 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5935 +#: freeculture.xml:5881 msgid "" "Instead, my argument is that because Jefferson did it, we should at least " -"try to understand why. Why did the framers, 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?" +"try to understand <emphasis>why</emphasis>. Why did the framers, 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?" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5942 +#: freeculture.xml:5889 msgid "" "To answer this question, we need to get some perspective on the 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 creative property should be protected, but how. Not whether " -"we will enforce the rights the law gives 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." +"war: Not <emphasis>whether</emphasis> creative property should be protected, " +"but how. Not <emphasis>whether</emphasis> we will enforce the rights the law " +"gives to creative-property owners, but what the particular mix of rights " +"ought to be. Not <emphasis>whether</emphasis> artists should be paid, but " +"whether institutions designed to assure that artists get paid need also " +"control how culture develops." msgstr "" #. PAGE BREAK 132 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5956 +#: freeculture.xml:5904 msgid "" "To answer these questions, we need a more general way to talk about how " "property is protected. More precisely, we need a more general way than the " -"narrow language of the law allows. In Code and Other Laws of 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:" +"narrow language of the law allows. In <citetitle>Code and Other Laws of " +"Cyberspace</citetitle>, 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:" msgstr "" #. type: Content of: <book><chapter><sect1><figure><title> -#: freeculture.xml:5965 +#: freeculture.xml:5913 msgid "" "How four different modalities of regulation interact to support or weaken " "the right or regulation." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:5966 freeculture.xml:6140 freeculture.xml:6433 +#: freeculture.xml:5914 freeculture.xml:6089 freeculture.xml:6390 msgid "<graphic fileref=\"images/1331.png\"></graphic>" msgstr "" -#. PAGE BREAK 133 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5969 +#: freeculture.xml:5917 msgid "" "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 " @@ -7507,11 +7785,11 @@ msgid "" "willfully infringe Madonna's copyright by copying a song from her latest CD " "and posting it on the 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." +"by the state. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5985 +#: freeculture.xml:5934 msgid "" "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 " @@ -7524,7 +7802,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:5996 +#: freeculture.xml:5945 msgid "" "The market is a third type of constraint. Its constraint is effected through " "conditions: You can do X if you pay Y; you'll be paid M if you do N. These " @@ -7536,7 +7814,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:6006 +#: freeculture.xml:5955 msgid "" "Finally, and for the moment, perhaps, most mysteriously, " "\"architecture\"—the physical world as one finds it—is a " @@ -7554,7 +7832,7 @@ msgstr "" #. PAGE BREAK 134 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:6023 +#: freeculture.xml:5972 msgid "" "So the first point about these four modalities of regulation is obvious: " "They interact. Restrictions imposed by one might be reinforced by " @@ -7562,7 +7840,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:6029 +#: freeculture.xml:5978 msgid "" "The second point follows directly: If we want to understand the effective " "freedom that anyone has at a given moment to do any particular thing, we " @@ -7574,12 +7852,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:6038 +#: freeculture.xml:5987 msgid "driving speed, constraints on" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:6041 +#: freeculture.xml:5990 msgid "" "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 " @@ -7596,20 +7874,21 @@ msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:6059 +#: freeculture.xml:6008 msgid "" "By describing the way law affects the other three modalities, I don't mean " "to suggest that the other three don't affect law. Obviously, they do. Law's " "only distinction is that it alone speaks as if it has a right " "self-consciously to change the other three. The right of the other three is " -"more timidly expressed. See Lawrence Lessig, Code: And Other Laws of " -"Cyberspace (New York: Basic Books, 1999): 90–95; Lawrence Lessig, " -"\"The New Chicago School,\" Journal of Legal Studies, June 1998." +"more timidly expressed. See Lawrence Lessig, <citetitle>Code: And Other " +"Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95; " +"Lawrence Lessig, \"The New Chicago School,\" <citetitle>Journal of Legal " +"Studies</citetitle>, June 1998." msgstr "" #. PAGE BREAK 135 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:6055 +#: freeculture.xml:6004 msgid "" "The final point about this simple model should also be fairly clear: While " "these four modalities are analytically independent, law has a special role " @@ -7626,22 +7905,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><figure><title> -#: freeculture.xml:6083 +#: freeculture.xml:6032 msgid "Law has a special role in affecting the three." msgstr "" #. type: Content of: <book><chapter><sect1><figure> -#: freeculture.xml:6084 +#: freeculture.xml:6033 msgid "<graphic fileref=\"images/1361.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> -#: freeculture.xml:6123 +#: freeculture.xml:6072 msgid "Commons, John R." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:6095 +#: freeculture.xml:6044 msgid "" "Some people object to this way of talking about \"liberty.\" They object " "because their focus when considering the constraints that exist at any " @@ -7653,26 +7932,28 @@ msgid "" "of ordinary life. I don't mean to deny the value in this narrower view, " "which depends upon the context of the inquiry. I do, however, mean to argue " "against any insistence that this narrower view is the only proper view of " -"liberty. As I argued in Code, we come from a long tradition of political " -"thought with a broader focus than the narrow question of what the government " -"did when. John Stuart Mill defended freedom of speech, for example, from " -"the tyranny of narrow minds, not from the fear of government prosecution; " -"John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. " -"John R. Commons famously defended the economic freedom of labor from " -"constraints imposed by the market; John R. Commons, \"The Right to Work,\" " -"in Malcom Rutherford and Warren J. Samuels, eds., John R. Commons: Selected " -"Essays (London: Routledge: 1997), 62. The Americans with Disabilities Act " -"increases the liberty of people with physical disabilities by changing the " -"architecture of certain public places, thereby making access to those places " -"easier; 42 United States Code, section 12101 (2000). Each of these " -"interventions to change existing conditions changes the liberty of a " -"particular group. The effect of those interventions should be accounted for " -"in order to understand the effective liberty that each of these groups might " -"face. <placeholder type=\"indexterm\" id=\"0\"/>" -msgstr "" - -#. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:6087 +"liberty. As I argued in <citetitle>Code</citetitle>, we come from a long " +"tradition of political thought with a broader focus than the narrow question " +"of what the government did when. John Stuart Mill defended freedom of " +"speech, for example, from the tyranny of narrow minds, not from the fear of " +"government prosecution; John Stuart Mill, <citetitle>On Liberty</citetitle> " +"(Indiana: Hackett Publishing Co., 1978), 19. John R. Commons famously " +"defended the economic freedom of labor from constraints imposed by the " +"market; John R. Commons, \"The Right to Work,\" in Malcom Rutherford and " +"Warren J. Samuels, eds., <citetitle>John R. Commons: Selected " +"Essays</citetitle> (London: Routledge: 1997), 62. The Americans with " +"Disabilities Act increases the liberty of people with physical disabilities " +"by changing the architecture of certain public places, thereby making access " +"to those places easier; 42 <citetitle>United States Code</citetitle>, " +"section 12101 (2000). Each of these interventions to change existing " +"conditions changes the liberty of a particular group. The effect of those " +"interventions should be accounted for in order to understand the effective " +"liberty that each of these groups might face. <placeholder " +"type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:6036 msgid "" "These constraints can thus change, and they can be changed. To understand " "the effective protection of liberty or protection of property at any " @@ -7683,12 +7964,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:6127 +#: freeculture.xml:6076 msgid "Why Hollywood Is Right" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6129 +#: freeculture.xml:6078 msgid "" "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 " @@ -7697,18 +7978,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6135 +#: freeculture.xml:6084 msgid "Let's say this is the picture of copyright's regulation before the Internet:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6139 freeculture.xml:6432 +#: freeculture.xml:6088 freeculture.xml:6389 msgid "Copyright's regulation before the Internet." msgstr "" #. PAGE BREAK 136 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6144 +#: freeculture.xml:6093 msgid "" "There is balance between law, norms, market, and architecture. The law " "limits the ability to copy and share content, by imposing penalties on those " @@ -7722,7 +8003,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6156 +#: freeculture.xml:6105 msgid "" "Enter the Internet, or, more precisely, technologies such as MP3s and p2p " "sharing. Now the constraint of architecture changes dramatically, as does " @@ -7734,7 +8015,7 @@ msgstr "" #. PAGE BREAK 137 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6164 +#: freeculture.xml:6113 msgid "" "Thus the sense of, and justification for, the warriors' response. " "Technology has changed, the warriors say, and the effect of this change, " @@ -7745,17 +8026,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6174 +#: freeculture.xml:6123 msgid "effective state of anarchy after the Internet." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:6175 +#: freeculture.xml:6124 msgid "<graphic fileref=\"images/1381.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6178 +#: freeculture.xml:6127 msgid "" "Neither this analysis nor the conclusions that follow are new to the " "warriors. Indeed, in a \"White Paper\" prepared by the Commerce Department " @@ -7770,7 +8051,7 @@ msgstr "" #. PAGE BREAK 138 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6190 +#: freeculture.xml:6139 msgid "" "This mixed strategy is just what copyright needed—if it was to " "preserve the particular balance that existed before the change induced by " @@ -7787,7 +8068,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6207 +#: freeculture.xml:6156 msgid "" "Thus, there's nothing wrong or surprising in the content industry's campaign " "to protect itself from the harmful consequences of a technological " @@ -7799,7 +8080,7 @@ msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6223 +#: freeculture.xml:6172 msgid "" "See Geoffrey Smith, \"Film vs. Digital: Can Kodak Build a Bridge?\" " "BusinessWeek online, 2 August 1999, available at <ulink " @@ -7810,7 +8091,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6215 +#: freeculture.xml:6164 msgid "" "But just because a particular interest asks for government support, it " "doesn't follow that support should be granted. And just because technology " @@ -7821,24 +8102,31 @@ msgid "" "cameras.<placeholder type=\"footnote\" id=\"0\"/> 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 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?)" +"trucks from roads <emphasis>for the purpose of</emphasis> protecting the " +"railroads? Closer to the subject of this book, remote channel changers have " +"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?)" msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6255 -msgid "Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71." +#: freeculture.xml:6204 +msgid "" +"Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, " +"1994), 170–71." +msgstr "" + +#. type: Content of: <book><chapter><para><indexterm><primary> +#: freeculture.xml:6213 freeculture.xml:12572 +msgid "Gates, Bill" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6245 +#: freeculture.xml:6194 msgid "" "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, " @@ -7852,11 +8140,12 @@ msgid "" "radio.) A world in which competitors with new ideas must fight not only the " "market but also the government is a world in which competitors with new " "ideas will not succeed. It is a world of stasis and increasingly " -"concentrated stagnation. It is the Soviet Union under Brezhnev." +"concentrated stagnation. It is the Soviet Union under Brezhnev. " +"<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6266 +#: freeculture.xml:6216 msgid "" "Thus, while it is understandable for industries threatened with new " "technologies that change the way they do business to look to the government " @@ -7868,7 +8157,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6276 +#: freeculture.xml:6226 msgid "" "In the context of laws regulating speech—which include, obviously, " "copyright law—that duty is even stronger. When the industry " @@ -7885,7 +8174,7 @@ msgstr "" #. PAGE BREAK 140 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6290 +#: freeculture.xml:6240 msgid "" "My argument just now, however, has nothing to do with whether the changes " "that are being pushed by the copyright warriors are \"justified.\" My " @@ -7896,44 +8185,60 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6299 +#: freeculture.xml:6249 msgid "Here's the metaphor that will capture the argument to follow." msgstr "" +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:6252 +msgid "DDT" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:6260 +msgid "Müller, Paul Hermann" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6302 +#: freeculture.xml:6255 msgid "" "In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul " "Hermann Müller won the Nobel Prize for his work demonstrating the " "insecticidal properties of DDT. By the 1950s, the insecticide was widely " "used around the world to kill disease-carrying pests. It was also used to " -"increase farm production." +"increase farm production. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6309 +#: freeculture.xml:6263 msgid "" "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." msgstr "" -#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:6313 +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:6267 freeculture.xml:6273 msgid "Carson, Rachel" msgstr "" +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:6274 +msgid "Silent Sprint (Carson)" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6315 +#: freeculture.xml:6269 msgid "" -"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 reproduce. Whole chains of " -"the ecology were being destroyed." +"But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, " +"which argued that DDT, whatever its primary benefits, was also having " +"unintended environmental consequences. Birds were losing the ability to " +"reproduce. Whole chains of the ecology were being destroyed. <placeholder " +"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6321 +#: freeculture.xml:6277 msgid "" "No one set out to destroy the environment. Paul Müller certainly did not aim " "to harm any birds. But the effort to solve one set of problems produced " @@ -7946,15 +8251,16 @@ msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6334 +#: freeculture.xml:6290 msgid "" "See, for example, James Boyle, \"A Politics of Intellectual Property: " -"Environmentalism for the Net?\" Duke Law Journal 47 (1997): 87." +"Environmentalism for the Net?\" <citetitle>Duke Law Journal</citetitle> 47 " +"(1997): 87." msgstr "" #. PAGE BREAK 141 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6330 +#: freeculture.xml:6286 msgid "" "It is to this image precisely that Duke University law professor James Boyle " "appeals when he argues that we need an \"environmentalism\" for " @@ -7972,7 +8278,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6351 +#: freeculture.xml:6307 msgid "" "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 " @@ -7986,19 +8292,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6362 +#: freeculture.xml:6318 msgid "" "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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:6368 +#: freeculture.xml:6325 msgid "Beginnings" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6370 +#: freeculture.xml:6327 msgid "" "America copied English copyright law. Actually, we copied and improved " "English copyright law. Our Constitution makes the purpose of \"creative " @@ -8007,7 +8313,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6376 +#: freeculture.xml:6333 msgid "" "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, " @@ -8016,20 +8322,21 @@ msgstr "" #. PAGE BREAK 142 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6381 +#: freeculture.xml:6338 msgid "" "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 does not say. It does not " "say Congress has the power to grant \"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." +"that Congress has the power <emphasis>to promote progress</emphasis>. 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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6394 +#: freeculture.xml:6351 msgid "" "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 " @@ -8041,7 +8348,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6403 +#: freeculture.xml:6360 msgid "" "The design of the Progress Clause reflects something about the " "Constitution's design in general. To avoid a problem, the framers built " @@ -8052,13 +8359,13 @@ msgid "" "federal government, they built structures to reinforce the power of the " "states—including the Senate, whose members were at the time selected " "by the states, and an electoral 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." +"select the president. In each case, a <emphasis>structure</emphasis> built " +"checks and balances into the constitutional frame, structured to prevent " +"otherwise inevitable concentrations of power." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6418 +#: freeculture.xml:6375 msgid "" "I doubt the framers would recognize the regulation we call \"copyright\" " "today. The scope of that regulation is far beyond anything they ever " @@ -8069,7 +8376,7 @@ msgstr "" #. PAGE BREAK 143 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6425 +#: freeculture.xml:6382 msgid "" "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 " @@ -8077,49 +8384,49 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6436 +#: freeculture.xml:6393 msgid "We will end here:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6439 +#: freeculture.xml:6396 msgid ""Copyright" today." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:6440 +#: freeculture.xml:6397 msgid "<graphic fileref=\"images/1442.png\"></graphic>" msgstr "" #. PAGE BREAK 144 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6443 +#: freeculture.xml:6400 msgid "Let me explain how." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:6448 +#: freeculture.xml:6405 msgid "Law: Duration" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> -#: freeculture.xml:6463 +#: freeculture.xml:6421 msgid "Crosskey, William W." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6458 +#: freeculture.xml:6415 msgid "" -"William W. Crosskey, Politics and the Constitution in the History of the " -"United States (London: Cambridge University Press, 1953), vol. 1, " -"485–86: \"extinguish[ing], by plain implication of `the supreme Law of " -"the Land,' the perpetual rights which authors had, or were supposed by some " -"to have, under the Common Law\" (emphasis added). <placeholder " -"type=\"indexterm\" id=\"0\"/>" +"William W. Crosskey, <citetitle>Politics and the Constitution in the History " +"of the United States</citetitle> (London: Cambridge University Press, 1953), " +"vol. 1, 485–86: \"extinguish[ing], by plain implication of `the " +"supreme Law of the Land,' <emphasis>the perpetual rights which authors had, " +"or were supposed by some to have, under the Common Law</emphasis>\" " +"(emphasis added). <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6450 +#: freeculture.xml:6407 msgid "" "When the first Congress enacted laws to protect creative property, it faced " "the same uncertainty about the status of creative property that the English " @@ -8135,7 +8442,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6473 +#: freeculture.xml:6431 msgid "" "That uncertainty ended after Congress passed legislation granting " "copyrights. Because federal law overrides any contrary state law, federal " @@ -8146,7 +8453,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6481 +#: freeculture.xml:6439 msgid "" "In 1790, Congress enacted the first copyright law. It created a federal " "copyright and secured that copyright for fourteen years. If the author was " @@ -8157,16 +8464,17 @@ msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6496 +#: freeculture.xml:6454 msgid "" "Although 13,000 titles were published in the United States from 1790 to " -"1799, only 556 copyright registrations were filed; John Tebbel, A History of " -"Book Publishing in the United States, vol. 1, The Creation of an Industry, " -"1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints " -"recorded before 1790, only twelve were copyrighted under the 1790 act; " -"William J. Maher, Copyright Term, Retrospective Extension and the Copyright " -"Law of 1790 in Historical Context, 7–10 (2002), available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #25</ulink>. Thus, the " +"1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A " +"History of Book Publishing in the United States</citetitle>, vol. 1, " +"<citetitle>The Creation of an Industry, 1630–1865</citetitle> (New " +"York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only " +"twelve were copyrighted under the 1790 act; William J. Maher, " +"<citetitle>Copyright Term, Retrospective Extension and the Copyright Law of " +"1790 in Historical Context</citetitle>, 7–10 (2002), available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #25</ulink>. Thus, the " "overwhelming majority of works fell immediately into the public domain. Even " "those works that were copyrighted fell into the public domain quickly, " "because the term of copyright was short. The initial term of copyright was " @@ -8175,7 +8483,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6488 +#: freeculture.xml:6446 msgid "" "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 " @@ -8188,7 +8496,7 @@ msgstr "" #. PAGE BREAK 145 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6512 +#: freeculture.xml:6470 msgid "" "This system of renewal was a crucial part of the American system of " "copyright. It assured that the maximum terms of copyright would be granted " @@ -8199,20 +8507,21 @@ msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6527 +#: freeculture.xml:6485 msgid "" "Few copyright holders ever chose to renew their copyrights. For instance, of " "the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For " "a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, " -"\"Study No. 31: Renewal of Copyright,\" Studies on Copyright, vol. 1 (New " -"York: Practicing Law Institute, 1963), 618. For a more recent and " -"comprehensive analysis, see William M. Landes and Richard A. Posner, " -"\"Indefinitely Renewable Copyright,\" University of Chicago Law Review 70 " -"(2003): 471, 498–501, and accompanying figures." +"\"Study No. 31: Renewal of Copyright,\" <citetitle>Studies on " +"Copyright</citetitle>, vol. 1 (New York: Practicing Law Institute, 1963), " +"618. For a more recent and comprehensive analysis, see William M. Landes and " +"Richard A. Posner, \"Indefinitely Renewable Copyright,\" " +"<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, " +"498–501, and accompanying figures." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6521 +#: freeculture.xml:6479 msgid "" "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 " @@ -8223,25 +8532,25 @@ msgstr "" #. f11 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6542 +#: freeculture.xml:6500 msgid "See Ringer, ch. 9, n. 2." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6538 +#: freeculture.xml:6496 msgid "" "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.<placeholder type=\"footnote\" id=\"0\"/> 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 is to sell the books as used books; " -"that use—because it does not involve publication—is effectively " -"free." +"books are no longer <emphasis>effectively</emphasis> controlled by " +"copyright. The only practical commercial use of the books at that time is to " +"sell the books as used books; that use—because it does not involve " +"publication—is effectively free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6550 +#: freeculture.xml:6508 msgid "" "In the first hundred years of the Republic, the term of copyright was " "changed once. In 1831, the term was increased from a maximum of 28 years to " @@ -8252,7 +8561,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6558 +#: freeculture.xml:6516 msgid "" "Then, beginning in 1962, Congress started a practice that has defined " "copyright law since. Eleven times in the last forty years, Congress has " @@ -8266,7 +8575,7 @@ msgstr "" #. PAGE BREAK 146 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6568 +#: freeculture.xml:6526 msgid "" "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 " @@ -8278,7 +8587,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6579 +#: freeculture.xml:6537 msgid "" "The effect of these extensions has been exacerbated by another, " "little-noticed change in the copyright law. Remember I said that the framers " @@ -8290,7 +8599,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6589 +#: freeculture.xml:6547 msgid "" "The United States abandoned this sensible system in 1976. For all works " "created after 1978, there was only one copyright term—the maximum " @@ -8302,7 +8611,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6599 +#: freeculture.xml:6557 msgid "" "This change meant that American law no longer had an automatic way to assure " "that works that were no longer exploited passed into the public domain. And " @@ -8314,7 +8623,7 @@ msgstr "" #. f12 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6616 +#: freeculture.xml:6574 msgid "" "These statistics are understated. Between the years 1910 and 1962 (the first " "year the renewal term was extended), the average term was never more than " @@ -8323,7 +8632,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6608 +#: freeculture.xml:6566 msgid "" "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 " @@ -8335,12 +8644,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:6625 +#: freeculture.xml:6583 msgid "Law: Scope" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6627 +#: freeculture.xml:6585 msgid "" "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 " @@ -8349,7 +8658,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6633 +#: freeculture.xml:6591 msgid "" "In 1790, that scope was very narrow. Copyright covered only \"maps, charts, " "and books.\" That means it didn't cover, for example, music or " @@ -8365,7 +8674,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6646 +#: freeculture.xml:6604 msgid "" "This, too, has changed dramatically. While the contours of copyright today " "are extremely hard to describe simply, in general terms, the right covers " @@ -8383,7 +8692,7 @@ msgstr "" #. PAGE BREAK 148 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6661 +#: freeculture.xml:6619 msgid "" "At the same time that the scope of copyright has expanded, procedural " "limitations on the right have been relaxed. I've already described the " @@ -8392,13 +8701,13 @@ msgid "" "there was a requirement that a work be registered before it could receive " "the protection of a copyright. There was also a requirement that any " "copyrighted work be marked either with that famous © or the word " -"copyright. And for most of the history of American copyright law, there was " -"a requirement that works be deposited with the government before a copyright " -"could be secured." +"<emphasis>copyright</emphasis>. And for most of the history of American " +"copyright law, there was a requirement that works be deposited with the " +"government before a copyright could be secured." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6674 +#: freeculture.xml:6633 msgid "" "The reason for the registration requirement was the sensible understanding " "that for most works, no copyright was required. Again, in the first ten " @@ -8414,7 +8723,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6688 +#: freeculture.xml:6647 msgid "" "All of these \"formalities\" were abolished in the American system when we " "decided to follow European copyright law. There is no requirement that you " @@ -8425,22 +8734,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6696 +#: freeculture.xml:6655 msgid "Consider a practical example to understand the scope of these differences." msgstr "" #. f13 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6707 +#: freeculture.xml:6666 msgid "" "See Thomas Bender and David Sampliner, \"Poets, Pirates, and the Creation of " -"American Literature,\" 29 New York University Journal of International Law " -"and Politics 255 (1997), and James Gilraeth, ed., Federal Copyright Records, " -"1790–1800 (U.S. G.P.O., 1987)." +"American Literature,\" 29 <citetitle>New York University Journal of " +"International Law and Politics</citetitle> 255 (1997), and James Gilraeth, " +"ed., Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6700 +#: freeculture.xml:6659 msgid "" "If, in 1790, you wrote a book and you were one of the 5 percent who actually " "copyrighted that book, then the copyright law protected you against another " @@ -8454,7 +8763,7 @@ msgstr "" #. PAGE BREAK 149 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6720 +#: freeculture.xml:6678 msgid "" "The act left other creators totally unregulated. If I copied your poem by " "hand, over and over again, as a way to learn it by heart, my act was totally " @@ -8465,18 +8774,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6730 +#: freeculture.xml:6687 msgid "" "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 creative act that's reduced to a " -"tangible form—all of this is automatically copyrighted. There is no " -"need to register or mark your work. The protection follows the creation, not " -"the steps you take to protect it." +"note to your spouse, every doodle, <emphasis>every</emphasis> creative act " +"that's reduced to a tangible form—all of this is automatically " +"copyrighted. There is no need to register or mark your work. The protection " +"follows the creation, not the steps you take to protect it." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6739 +#: freeculture.xml:6696 msgid "" "That protection gives you the right (subject to a narrow range of fair use " "exceptions) to control how others copy the work, whether they copy it to " @@ -8484,7 +8793,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6744 +#: freeculture.xml:6701 msgid "" "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 " @@ -8499,7 +8808,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6758 +#: freeculture.xml:6715 msgid "" "It is this derivative right that would seem most bizarre to our framers, " "though it has become second nature to us. Initially, this expansion was " @@ -8510,42 +8819,44 @@ msgid "" "the verbatim original work." msgstr "" -#. f14 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6781 +#: freeculture.xml:6737 msgid "" -"Jonathan Zittrain, \"The Copyright Cage,\" Legal Affairs, July/August 2003, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link #26</ulink>." +"Jonathan Zittrain, \"The Copyright Cage,\" <citetitle>Legal " +"Affairs</citetitle>, July/August 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #26</ulink>. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6771 +#: freeculture.xml:6727 msgid "" "In preventing that joke, the law created an astonishing power within a free " "culture—at least, it's astonishing when you understand that the law " "applies not just to the commercial publisher but to anyone with a " "computer. I understand the wrong in duplicating 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.<placeholder type=\"footnote\" id=\"0\"/> Whether " -"or not you go that far, it seems plain that whatever wrong is involved is " -"fundamentally different from the wrong of direct piracy." +"work. But whatever <emphasis>that</emphasis> 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.<placeholder type=\"footnote\" id=\"0\"/> " +"Whether or not you go that far, it seems plain that whatever wrong is " +"involved is fundamentally different from the wrong of direct piracy." msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6796 +#: freeculture.xml:6752 msgid "" "Professor Rubenfeld has presented a powerful constitutional argument about " "the difference that copyright law should draw (from the perspective of the " "First Amendment) between mere \"copies\" and derivative works. See Jed " "Rubenfeld, \"The Freedom of Imagination: Copyright's Constitutionality,\" " -"Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59)." +"<citetitle>Yale Law Journal</citetitle> 112 (2002): 1–60 (see " +"especially pp. 53–59)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6790 +#: freeculture.xml:6747 msgid "" "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 " @@ -8555,7 +8866,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6807 +#: freeculture.xml:6763 msgid "" "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 " @@ -8565,7 +8876,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6816 +#: freeculture.xml:6772 msgid "" "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 " @@ -8574,25 +8885,26 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:6824 +#: freeculture.xml:6780 msgid "Law and Architecture: Reach" msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6831 +#: freeculture.xml:6787 msgid "" "This is a simplification of the law, but not much of one. The law certainly " "regulates more than \"copies\"—a public performance of a copyrighted " "song, for example, is regulated even though performance per se doesn't make " -"a copy; 17 United States Code, section 106(4). And it certainly sometimes " -"doesn't regulate a \"copy\"; 17 United States Code, section 112(a). But the " -"presumption under the existing law (which regulates \"copies;\" 17 United " -"States Code, section 102) is that if there is a copy, there is a right." +"a copy; 17 <citetitle>United States Code</citetitle>, section 106(4). And it " +"certainly sometimes doesn't regulate a \"copy\"; 17 <citetitle>United States " +"Code</citetitle>, section 112(a). But the presumption under the existing law " +"(which regulates \"copies;\" 17 <citetitle>United States Code</citetitle>, " +"section 102) is that if there is a copy, there is a right." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6826 +#: freeculture.xml:6782 msgid "" "Whereas originally the law regulated only publishers, the change in " "copyright's scope means that the law today regulates publishers, users, and " @@ -8603,22 +8915,23 @@ msgstr "" #. PAGE BREAK 151 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6843 +#: freeculture.xml:6799 msgid "" -"\"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 obvious that we need to be most careful about. For " +"\"Copies.\" That certainly sounds like the obvious thing for " +"<emphasis>copy</emphasis>right 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 " +"<emphasis>obvious</emphasis> 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 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." +"that in the world with the Internet, copies should <emphasis>not</emphasis> " +"be the trigger for copyright law. More precisely, they should not " +"<emphasis>always</emphasis> be the trigger for copyright law." msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6859 +#: freeculture.xml:6817 msgid "" "Thus, my argument is not that in each place that copyright law extends, we " "should repeal it. It is instead that we should have a good argument for its " @@ -8627,7 +8940,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6854 +#: freeculture.xml:6812 msgid "" "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 " @@ -8639,50 +8952,50 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6870 +#: freeculture.xml:6828 msgid "" "We can see this point abstractly by beginning with this largely empty " "circle." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6874 +#: freeculture.xml:6832 msgid "All potential uses of a book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:6875 +#: freeculture.xml:6833 msgid "<graphic fileref=\"images/1521.png\"></graphic>" msgstr "" #. PAGE BREAK 152 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6879 +#: freeculture.xml:6837 msgid "" "Think about a book in real space, and imagine this circle to represent all " -"its potential uses. Most of these uses are unregulated by copyright law, " -"because the uses don't create a copy. If you read a book, that act is not " -"regulated by copyright law. If you give someone the book, that act is not " -"regulated by copyright law. If you resell a book, that act is not regulated " -"(copyright law expressly states that after the first sale of a book, the " -"copyright owner can impose no further conditions on the disposition of the " -"book). If you sleep on the book or use it to hold up a lamp or let your " -"puppy chew it up, those acts are not regulated by copyright law, because " -"those acts do not make a copy." +"its potential <emphasis>uses</emphasis>. Most of these uses are unregulated " +"by copyright law, because the uses don't create a copy. If you read a book, " +"that act is not regulated by copyright law. If you give someone the book, " +"that act is not regulated by copyright law. If you resell a book, that act " +"is not regulated (copyright law expressly states that after the first sale " +"of a book, the copyright owner can impose no further conditions on the " +"disposition of the book). If you sleep on the book or use it to hold up a " +"lamp or let your puppy chew it up, those acts are not regulated by copyright " +"law, because those acts do not make a copy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6892 +#: freeculture.xml:6850 msgid "Examples of unregulated uses of a book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:6893 +#: freeculture.xml:6851 msgid "<graphic fileref=\"images/1531.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6896 +#: freeculture.xml:6854 msgid "" "Obviously, however, some uses of a copyrighted book are regulated by " "copyright law. Republishing the book, for example, makes a copy. It is " @@ -8693,26 +9006,26 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6904 +#: freeculture.xml:6862 msgid "" "Finally, there is a tiny sliver of otherwise regulated copying uses that " "remain unregulated because the law considers these \"fair uses.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6909 +#: freeculture.xml:6867 msgid "" "Republishing stands at the core of this circle of possible uses of a " "copyrighted work." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:6910 +#: freeculture.xml:6868 msgid "<graphic fileref=\"images/1541.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6913 +#: freeculture.xml:6871 msgid "" "These are uses that themselves involve copying, but which the law treats as " "unregulated because public policy demands that they remain unregulated. You " @@ -8725,30 +9038,30 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6924 +#: freeculture.xml:6882 msgid "Unregulated copying considered "fair uses."" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:6925 +#: freeculture.xml:6883 msgid "<graphic fileref=\"images/1542.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:6929 +#: freeculture.xml:6887 msgid "" "Uses that before were presumptively unregulated are now presumptively " "regulated." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:6930 +#: freeculture.xml:6888 msgid "<graphic fileref=\"images/1551.png\"></graphic>" msgstr "" #. PAGE BREAK 154 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6934 +#: freeculture.xml:6892 msgid "" "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 " @@ -8757,7 +9070,7 @@ msgstr "" #. f18 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:6942 +#: freeculture.xml:6900 msgid "" "I don't mean \"nature\" in the sense that it couldn't be different, but " "rather that its present instantiation entails a copy. Optical networks need " @@ -8767,7 +9080,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6939 +#: freeculture.xml:6897 msgid "" "Enter the Internet—a distributed, digital network where every use of a " "copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> " @@ -8784,33 +9097,34 @@ msgstr "" #. PAGE BREAK 155 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6963 +#: freeculture.xml:6921 msgid "" "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 the copyright owner could make to " -"control that use of her book. Copyright law would have nothing to say about " -"whether you read the book once, ten times, or every night before you went to " -"bed. None of those instances of use—reading— could be regulated " -"by copyright law because none of those uses produced a copy." +"plausible <emphasis>copyright</emphasis>-related argument that the copyright " +"owner could make to control that use of her book. Copyright law would have " +"nothing to say about whether you read the book once, ten times, or every " +"night before you went to bed. None of those instances of " +"use—reading— could be regulated by copyright law because none of " +"those uses produced a copy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6976 +#: freeculture.xml:6934 msgid "" "But the same book as an e-book is effectively governed by a different set of " "rules. Now if the copyright owner says you may read the book only once or " -"only once a month, then copyright law would aid the copyright owner in " -"exercising this degree of control, because of the accidental feature of " -"copyright law that triggers its application upon there being a copy. Now if " -"you read the book ten times and the license says you may read it only five " -"times, then whenever you read the book (or any portion of it) beyond the " -"fifth time, you are making a copy of the book contrary to the copyright " -"owner's wish." +"only once a month, then <emphasis>copyright law</emphasis> would aid the " +"copyright owner in exercising this degree of control, because of the " +"accidental feature of copyright law that triggers its application upon there " +"being a copy. Now if you read the book ten times and the license says you " +"may read it only five times, then whenever you read the book (or any portion " +"of it) beyond the fifth time, you are making a copy of the book contrary to " +"the copyright owner's wish." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6990 +#: freeculture.xml:6946 msgid "" "There are some people who think this makes perfect sense. My aim just now is " "not to argue about whether it makes sense or not. My aim is only to make " @@ -8819,7 +9133,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:6996 +#: freeculture.xml:6952 msgid "" "First, making category 1 disappear is not anything any policy maker ever " "intended. Congress did not think through the collapse of the presumptively " @@ -8830,22 +9144,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7006 +#: freeculture.xml:6960 msgid "" "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 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 is " -"extraordinarily troubling with respect to transformative uses of creative " -"work." +"commercial piracy. But the law now purports to regulate " +"<emphasis>any</emphasis> transformation you make of creative work 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 is extraordinarily troubling with respect " +"to transformative uses of creative work." msgstr "" #. PAGE BREAK 156 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7022 +#: freeculture.xml:6972 msgid "" "Third, this shift from category 1 to category 2 puts an extraordinary burden " "on category 3 (\"fair use\") that fair use never before had to bear. If a " @@ -8859,18 +9173,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7037 +#: freeculture.xml:6987 msgid "" "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 about the expansion in " "effective regulation. A thin protection 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." +"when the vast majority of uses are <emphasis>unregulated</emphasis>. But " +"when everything becomes presumptively regulated, then the protections of " +"fair use are not enough." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7048 +#: freeculture.xml:6997 msgid "" "The case of Video Pipeline is a good example. Video Pipeline was in the " "business of making \"trailer\" advertisements for movies available to video " @@ -8880,7 +9195,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7055 +#: freeculture.xml:7004 msgid "" "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 " @@ -8892,7 +9207,7 @@ msgstr "" #. PAGE BREAK 157 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7067 +#: freeculture.xml:7016 msgid "" "In 1998, Video Pipeline informed Disney and other film distributors that it " "intended to distribute the trailers through the Internet (rather than " @@ -8908,7 +9223,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7084 +#: freeculture.xml:7033 msgid "" "Disney countersued—for $100 million in damages. Those damages were " "predicated upon a claim that Video Pipeline had \"willfully infringed\" on " @@ -8921,7 +9236,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7096 +#: freeculture.xml:7045 msgid "" "Disney has the right to control its property, of course. But the video " "stores that were selling Disney's films also had some sort of right to be " @@ -8933,7 +9248,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7105 +#: freeculture.xml:7054 msgid "" "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 " @@ -8950,7 +9265,7 @@ msgstr "" #. PAGE BREAK 158 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7120 +#: freeculture.xml:7069 msgid "" "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 right to say you " @@ -8967,7 +9282,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7138 +#: freeculture.xml:7084 msgid "" "Again, my aim so far is simply to map the changes that this changed " "architecture enables. Enabling technology to enforce the control of " @@ -8978,12 +9293,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:7148 +#: freeculture.xml:7093 msgid "Architecture and Law: Force" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7150 +#: freeculture.xml:7095 msgid "" "The disappearance of unregulated uses would be change enough, but a second " "important change brought about by the Internet magnifies its " @@ -8992,7 +9307,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7156 +#: freeculture.xml:7101 msgid "" "In the world before digital technology, it was generally the law that " "controlled whether and how someone was regulated by copyright law. The law, " @@ -9002,46 +9317,50 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:7163 +#: freeculture.xml:7108 msgid "Casablanca" msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7172 +#: freeculture.xml:7117 msgid "" -"See David Lange, \"Recognizing the Public Domain,\" Law and Contemporary " -"Problems 44 (1981): 172–73." +"See David Lange, \"Recognizing the Public Domain,\" <citetitle>Law and " +"Contemporary Problems</citetitle> 44 (1981): 172–73." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7165 +#: freeculture.xml:7110 msgid "" "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.<placeholder type=\"footnote\" id=\"0\"/>" +"Brothers. The Marxes intended to make a parody of " +"<citetitle>Casablanca</citetitle>. 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.<placeholder " +"type=\"footnote\" id=\"0\"/>" msgstr "" -#. f20 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7182 -msgid "Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3." +#: freeculture.xml:7126 +msgid "" +"Ibid. See also Vaidhyanathan, <citetitle>Copyrights and " +"Copywrongs</citetitle>, 1–3. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7178 +#: freeculture.xml:7122 msgid "" "This led the Marx Brothers to respond in kind. They warned Warner Brothers " "that the Marx Brothers \"were brothers long before you were.\"<placeholder " "type=\"footnote\" id=\"0\"/> The Marx Brothers therefore owned the word " -"brothers, and if Warner Brothers insisted on trying to control Casablanca, " -"then the Marx Brothers would insist on control over brothers." +"<citetitle>brothers</citetitle>, and if Warner Brothers insisted on trying " +"to control <citetitle>Casablanca</citetitle>, then the Marx Brothers would " +"insist on control over <citetitle>brothers</citetitle>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7189 +#: freeculture.xml:7134 msgid "" "An absurd and hollow threat, of course, because Warner Brothers, like the " "Marx Brothers, knew that no court would ever enforce such a silly " @@ -9050,7 +9369,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7195 +#: freeculture.xml:7140 msgid "" "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: " @@ -9062,12 +9381,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7206 +#: freeculture.xml:7151 msgid "Consider the life of my Adobe eBook Reader." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7209 +#: freeculture.xml:7154 msgid "" "An e-book is a book delivered in electronic form. An Adobe eBook is not a " "book that Adobe has published; Adobe simply produces the software that " @@ -9076,120 +9395,122 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7216 +#: freeculture.xml:7161 msgid "On the next page is a picture of an old version of my Adobe eBook Reader." msgstr "" #. PAGE BREAK 160 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7220 +#: freeculture.xml:7165 msgid "" "As you can see, I have a small collection of e-books within this e-book " "library. Some of these books reproduce content that is in the public domain: " -"Middlemarch, for example, is in the public domain. Some of them reproduce " -"content that is not in the public domain: My own book The Future of Ideas is " -"not yet within the public domain. Consider Middlemarch first. If you click " -"on my e-book copy of Middlemarch, you'll see a fancy cover, and then a " -"button at the bottom called Permissions." +"<citetitle>Middlemarch</citetitle>, for example, is in the public domain. " +"Some of them reproduce content that is not in the public domain: My own book " +"<citetitle>The Future of Ideas</citetitle> is not yet within the public " +"domain. Consider <citetitle>Middlemarch</citetitle> first. If you click on " +"my e-book copy of <citetitle>Middlemarch</citetitle>, you'll see a fancy " +"cover, and then a button at the bottom called Permissions." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7231 +#: freeculture.xml:7176 msgid "Picture of an old version of Adobe eBook Reader" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7232 +#: freeculture.xml:7177 msgid "<graphic fileref=\"images/1611.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7235 +#: freeculture.xml:7180 msgid "" "If you click on the Permissions button, you'll see a list of the permissions " "that the publisher purports to grant with this book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7239 +#: freeculture.xml:7184 msgid "List of the permissions that the publisher purports to grant." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7240 +#: freeculture.xml:7185 msgid "<graphic fileref=\"images/1612.png\"></graphic>" msgstr "" #. PAGE BREAK 161 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7244 +#: freeculture.xml:7189 msgid "" "According to my eBook Reader, I have the permission to copy to the clipboard " "of the computer ten text selections every ten days. (So far, 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." +"button to hear <citetitle>Middlemarch</citetitle> read aloud through the " +"computer." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7260 +#: freeculture.xml:7197 msgid "" "Here's the e-book for another work in the public domain (including the " -"translation): Aristotle's Politics." +"translation): Aristotle's <citetitle>Politics</citetitle>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7264 +#: freeculture.xml:7201 msgid "E-book of Aristotle;s "Politics"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7265 +#: freeculture.xml:7202 msgid "<graphic fileref=\"images/1621.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7268 +#: freeculture.xml:7205 msgid "" "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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7273 +#: freeculture.xml:7210 msgid "List of the permissions for Aristotle;s "Politics"." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7274 +#: freeculture.xml:7211 msgid "<graphic fileref=\"images/1622.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7277 +#: freeculture.xml:7214 msgid "" "Finally (and most embarrassingly), here are the permissions for the original " -"e-book version of my last book, The Future of Ideas:" +"e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7282 +#: freeculture.xml:7219 msgid "List of the permissions for "The Future of Ideas"." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7283 +#: freeculture.xml:7220 msgid "<graphic fileref=\"images/1631.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7286 +#: freeculture.xml:7223 msgid "No copying, no printing, and don't you dare try to listen to this book!" msgstr "" #. f21 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7296 +#: freeculture.xml:7233 msgid "" "In principle, a contract might impose a requirement on me. I might, for " "example, buy a book from you that includes a contract that says I will read " @@ -9200,22 +9521,22 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7289 +#: freeculture.xml:7226 msgid "" "Now, the Adobe eBook Reader calls these controls \"permissions\"— as " "if the publisher has the power to control how you use these works. For " "works under copyright, the copyright owner certainly does have the " "power—up to the limits of the copyright law. But for work not under " "copyright, there is no such copyright power.<placeholder type=\"footnote\" " -"id=\"0\"/> When my e-book of Middlemarch says I have the permission to copy " -"only ten text selections into the memory every ten days, what that really " -"means is that the eBook Reader has enabled the publisher to control how I " -"use the book on my computer, far beyond the control that the law would " -"enable." +"id=\"0\"/> When my e-book of <citetitle>Middlemarch</citetitle> says I have " +"the permission to copy only ten text selections into the memory every ten " +"days, what that really means is that the eBook Reader has enabled the " +"publisher to control how I use the book on my computer, far beyond the " +"control that the law would enable." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7311 +#: freeculture.xml:7248 msgid "" "The control comes instead from the code—from the technology within " "which the e-book \"lives.\" Though the e-book says that these are " @@ -9235,26 +9556,27 @@ msgstr "" #. PAGE BREAK 163 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7329 +#: freeculture.xml:7266 msgid "" -"These are controls, not permissions. Imagine a world where the Marx Brothers " -"sold word processing software that, when you tried to type \"Warner " -"Brothers,\" erased \"Brothers\" from the sentence." +"These are <emphasis>controls</emphasis>, not permissions. Imagine a world " +"where the Marx Brothers sold word processing software that, when you tried " +"to type \"Warner Brothers,\" erased \"Brothers\" from the sentence." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7334 +#: freeculture.xml:7272 msgid "" -"This is the future of copyright law: not so much copyright law as copyright " -"code. The controls over access to content will not be controls that are " -"ratified by courts; the controls over access to content will be controls " -"that are coded by programmers. And whereas the controls that are built into " -"the law are always to be checked by a judge, the controls that are built " -"into the technology have no similar built-in check." +"This is the future of copyright law: not so much copyright " +"<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. The " +"controls over access to content will not be controls that are ratified by " +"courts; the controls over access to content will be controls that are coded " +"by programmers. And whereas the controls that are built into the law are " +"always to be checked by a judge, the controls that are built into the " +"technology have no similar built-in check." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7342 +#: freeculture.xml:7281 msgid "" "How significant is this? Isn't it always possible to get around the controls " "built into the technology? Software used to be sold with technologies that " @@ -9264,35 +9586,35 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7350 +#: freeculture.xml:7289 msgid "" "We've only scratched the surface of this story. Return to the Adobe eBook " "Reader." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7354 +#: freeculture.xml:7293 msgid "" "Early in the life of the Adobe eBook Reader, Adobe suffered a public " "relations nightmare. Among the books that you could download for free on the " -"Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful " -"book is in the public domain. Yet when you clicked on Permissions for that " -"book, you got the following report:" +"Adobe site was a copy of <citetitle>Alice's Adventures in " +"Wonderland</citetitle>. This wonderful book is in the public domain. Yet " +"when you clicked on Permissions for that book, you got the following report:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7362 +#: freeculture.xml:7301 msgid "List of the permissions for "Alice's Adventures in Wonderland"." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7364 +#: freeculture.xml:7303 msgid "<graphic fileref=\"images/1641.png\"></graphic>" msgstr "" #. PAGE BREAK 164 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7368 +#: freeculture.xml:7307 msgid "" "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\" " @@ -9300,7 +9622,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7375 +#: freeculture.xml:7314 msgid "" "The public relations nightmare attached to that final permission. For the " "text did not say that you were not permitted to use the Read Aloud button; " @@ -9311,7 +9633,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7383 +#: freeculture.xml:7322 msgid "" "Adobe responded quickly that it was absurd to think that it was trying to " "restrict the right to read a book aloud. Obviously it was only restricting " @@ -9326,7 +9648,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7396 +#: freeculture.xml:7335 msgid "" "The point is not to blame Adobe. Indeed, Adobe is among the most innovative " "companies developing strategies to balance open access to content with " @@ -9336,19 +9658,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7404 +#: freeculture.xml:7343 msgid "" "To see the point in a particularly absurd context, consider a favorite story " "of mine that makes the same point." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:7407 freeculture.xml:7449 +#: freeculture.xml:7347 msgid "Aibo robotic dog" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7409 +#: freeculture.xml:7350 msgid "" "Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns " "tricks, cuddles, and follows you around. It eats only electricity and that " @@ -9357,7 +9679,7 @@ msgstr "" #. PAGE BREAK 165 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7414 +#: freeculture.xml:7355 msgid "" "The Aibo is expensive and popular. Fans from around the world have set up " "clubs to trade stories. One fan in particular set up a Web site to enable " @@ -9368,7 +9690,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7423 +#: freeculture.xml:7364 msgid "" "\"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 " @@ -9379,22 +9701,23 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7431 +#: freeculture.xml:7372 msgid "" -"If you're not a programmer or don't know many programmers, the word hack has " -"a particularly unfriendly connotation. Nonprogrammers hack bushes or " -"weeds. Nonprogrammers in horror movies do even worse. But to programmers, or " -"coders, as I call them, hack is a much more positive term. Hack just means " -"code that enables the program to do something it wasn't originally intended " -"or enabled to do. If you buy a new printer for an old computer, you might " -"find the old computer doesn't run, or \"drive,\" the printer. If you " -"discovered that, you'd later be happy to discover a hack on the Net by " -"someone who has written a driver to enable the computer to drive the printer " -"you just bought." +"If you're not a programmer or don't know many programmers, the word " +"<citetitle>hack</citetitle> has a particularly unfriendly " +"connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in horror " +"movies do even worse. But to programmers, or coders, as I call them, " +"<citetitle>hack</citetitle> is a much more positive " +"term. <citetitle>Hack</citetitle> just means code that enables the program " +"to do something it wasn't originally intended or enabled to do. If you buy a " +"new printer for an old computer, you might find the old computer doesn't " +"run, or \"drive,\" the printer. If you discovered that, you'd later be happy " +"to discover a hack on the Net by someone who has written a driver to enable " +"the computer to drive the printer you just bought." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7443 +#: freeculture.xml:7384 msgid "" "Some hacks are easy. Some are unbelievably hard. Hackers as a community like " "to challenge themselves and others with increasingly difficult " @@ -9404,7 +9727,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7451 +#: freeculture.xml:7391 msgid "" "The Aibo fan was displaying a bit of both when he hacked the program and " "offered to the world a bit of code that would enable the Aibo to dance " @@ -9415,7 +9738,7 @@ msgstr "" #. PAGE BREAK 166 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7458 +#: freeculture.xml:7399 msgid "" "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 " @@ -9425,12 +9748,12 @@ msgid "" "dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it " "be a crime (though we don't have a lot to 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?" +"that the owner of aibopet.com thought, <emphasis>What possible problem could " +"there be with teaching a robot dog to dance?</emphasis>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7474 +#: freeculture.xml:7415 msgid "" "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 " @@ -9444,27 +9767,29 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> -#: freeculture.xml:7497 freeculture.xml:9925 +#: freeculture.xml:7438 freeculture.xml:9864 msgid "Electronic Frontier Foundation" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7487 +#: freeculture.xml:7428 msgid "" "See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" " -"Science 293 (2001): 2028; Brendan I. Koerner, \"Play Dead: Sony Muzzles the " -"Techies Who Teach a Robot Dog New Tricks,\" American Prospect, January 2002; " -"\"Court Dismisses Computer Scientists' Challenge to DMCA,\" Intellectual " -"Property Litigation Reporter, 11 December 2001; Bill Holland, \"Copyright " -"Act Raising Free-Speech Concerns,\" Billboard, May 2001; Janelle Brown, \"Is " -"the RIAA Running Scared?\" Salon.com, April 2001; Electronic Frontier " -"Foundation, \"Frequently Asked Questions about Felten and USENIX v. RIAA " +"<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, \"Play " +"Dead: Sony Muzzles the Techies Who Teach a Robot Dog New Tricks,\" " +"<citetitle>American Prospect</citetitle>, January 2002; \"Court Dismisses " +"Computer Scientists' Challenge to DMCA,\" <citetitle>Intellectual Property " +"Litigation Reporter</citetitle>, 11 December 2001; Bill Holland, \"Copyright " +"Act Raising Free-Speech Concerns,\" <citetitle>Billboard</citetitle>, May " +"2001; Janelle Brown, \"Is the RIAA Running Scared?\" Salon.com, April 2001; " +"Electronic Frontier Foundation, \"Frequently Asked Questions about " +"<citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> " "Legal Case,\" available at <ulink url=\"http://free-culture.cc/notes/\">link " "#27</ulink>. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7485 +#: freeculture.xml:7426 msgid "" "But Felten's bravery was really tested in April 2001.<placeholder " "type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a " @@ -9474,7 +9799,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7505 +#: freeculture.xml:7446 msgid "" "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 " @@ -9486,7 +9811,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7515 +#: freeculture.xml:7456 msgid "" "When SDMI thought it was close to a standard, it set up a competition. In " "exchange for providing contestants with the code to an SDMI-encrypted bit of " @@ -9496,7 +9821,7 @@ msgstr "" #. PAGE BREAK 167 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7522 +#: freeculture.xml:7463 msgid "" "Felten and his team figured out the encryption system quickly. He and the " "team saw the weakness of this system as a type: Many encryption systems " @@ -9505,7 +9830,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7528 +#: freeculture.xml:7469 msgid "" "Let's review just what Felten was doing. Again, this is the United " "States. We have a principle of free speech. We have this principle not just " @@ -9516,7 +9841,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7536 +#: freeculture.xml:7477 msgid "" "What Felten and his colleagues were doing was publishing a paper describing " "the weakness in a technology. They were not spreading free music, or " @@ -9526,7 +9851,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7544 +#: freeculture.xml:7485 msgid "" "What links these two, aibopet.com and Felten, is the letters they then " "received. Aibopet.com received a letter from Sony about the aibopet.com " @@ -9534,7 +9859,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:7551 +#: freeculture.xml:7492 msgid "" "Your site contains information providing the means to circumvent AIBO-ware's " "copy protection protocol constituting a violation of the anti-circumvention " @@ -9542,7 +9867,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7557 +#: freeculture.xml:7498 msgid "" "And though an academic paper describing the weakness in a system of " "encryption should also be perfectly legal, Felten received a letter from an " @@ -9551,7 +9876,7 @@ msgstr "" #. PAGE BREAK 168 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:7563 +#: freeculture.xml:7504 msgid "" "Any disclosure of information gained from participating in the Public " "Challenge would be outside the scope of activities permitted by the " @@ -9560,7 +9885,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7571 +#: freeculture.xml:7512 msgid "" "In both cases, this weirdly Orwellian law was invoked to control the spread " "of information. The Digital Millennium Copyright Act made spreading such " @@ -9568,28 +9893,30 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7576 +#: freeculture.xml:7517 msgid "" "The DMCA was enacted as a response to copyright owners' first fear about " "cyberspace. The fear was that copyright control was effectively dead; the " "response was to find technologies that might compensate. These new " "technologies would be copyright protection technologies— technologies " "to control the replication and distribution of copyrighted material. They " -"were designed as code to modify the original code of the Internet, to " -"reestablish some protection for copyright owners." +"were designed as <emphasis>code</emphasis> to modify the original " +"<emphasis>code</emphasis> of the Internet, to reestablish some protection " +"for copyright owners." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7585 +#: freeculture.xml:7528 msgid "" "The DMCA was a bit of law intended to back up the protection of this code " -"designed to protect copyrighted material. It was, we could say, legal code " -"intended to buttress software code which itself was intended to support the " -"legal code of copyright." +"designed to protect copyrighted material. It was, we could say, " +"<emphasis>legal code</emphasis> intended to buttress <emphasis>software " +"code</emphasis> which itself was intended to support the <emphasis>legal " +"code of copyright</emphasis>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7591 +#: freeculture.xml:7535 msgid "" "But the DMCA was not designed merely to protect copyrighted works to the " "extent copyright law protected them. Its protection, that is, did not end at " @@ -9601,7 +9928,7 @@ msgstr "" #. PAGE BREAK 169 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7600 +#: freeculture.xml:7544 msgid "" "Aibopet.com and Felten make the point. The Aibo hack circumvented a " "copyright protection system for the purpose of enabling the dog to dance " @@ -9615,7 +9942,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7612 +#: freeculture.xml:7556 msgid "" "The threat against Felten was more attenuated, but it followed the same line " "of reasoning. By publishing a paper describing how a copyright protection " @@ -9626,29 +9953,30 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7620 +#: freeculture.xml:7564 msgid "" "The bizarreness of these arguments is captured in a cartoon drawn in 1981 by " "Paul Conrad. At that time, a court in California had held that the VCR could " "be banned because it was a copyright-infringing technology: It enabled " "consumers to copy films without the permission of the copyright owner. No " "doubt there were uses of the technology that were legal: Fred Rogers, aka " -"\"Mr. Rogers,\" for example, had testified in that case that he wanted " -"people to feel free to tape Mr. Rogers' Neighborhood." +"\"<citetitle>Mr. Rogers</citetitle>,\" for example, had testified in that " +"case that he wanted people to feel free to tape Mr. Rogers' Neighborhood." msgstr "" #. f23 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:7646 +#: freeculture.xml:7590 msgid "" -"Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, " -"455 fn. 27 (1984). Rogers never changed his view about the VCR. See James " -"Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of the VCR " +"<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal " +"City Studios, Inc</citetitle>., 464 U.S. 417, 455 fn. 27 (1984). Rogers " +"never changed his view about the VCR. See James Lardner, <citetitle>Fast " +"Forward: Hollywood, the Japanese, and the Onslaught of the VCR</citetitle> " "(New York: W. W. Norton, 1987), 270–71." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:7631 +#: freeculture.xml:7575 msgid "" "Some public stations, as well as commercial stations, program the " "\"Neighborhood\" at hours when some children cannot use it. I think that " @@ -9667,7 +9995,7 @@ msgstr "" #. PAGE BREAK 170 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7655 +#: freeculture.xml:7599 msgid "" "Even though there were uses that were legal, because there were some uses " "that were illegal, the court held the companies producing the VCR " @@ -9675,17 +10003,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7660 +#: freeculture.xml:7604 msgid "This led Conrad to draw the cartoon below, which we can adopt to the DMCA." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7664 +#: freeculture.xml:7608 msgid "No argument I have can top this picture, but let me try to get close." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7667 +#: freeculture.xml:7611 msgid "" "The anticircumvention provisions of the DMCA target copyright circumvention " "technologies. Circumvention technologies can be used for different " @@ -9697,7 +10025,7 @@ msgstr "" #. PAGE BREAK 171 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7675 +#: freeculture.xml:7619 msgid "" "A handgun can be used to shoot a police officer or a child. Most would agree " "such a use is bad. Or a handgun can be used for target practice or to " @@ -9706,28 +10034,28 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7683 +#: freeculture.xml:7627 msgid "VCR/handgun cartoon." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7684 +#: freeculture.xml:7628 msgid "<graphic fileref=\"images/1711.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7687 +#: freeculture.xml:7631 msgid "" "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." +"technologies) are illegal. Flash: <emphasis>No one ever died from copyright " +"circumvention</emphasis>. 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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7695 +#: freeculture.xml:7639 msgid "" "The Aibo and RIAA examples demonstrate how copyright owners are changing the " "balance that copyright law grants. Using code, copyright owners restrict " @@ -9738,21 +10066,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7703 +#: freeculture.xml:7647 msgid "" -"This is how code becomes law. The controls built into the technology of copy " -"and access protection become rules the violation of which is also a " -"violation of the law. In this way, the code extends the law—increasing " -"its regulation, even if the subject it regulates (activities that would " -"otherwise plainly constitute fair use) is beyond the reach of the law. Code " -"becomes law; code extends the law; code thus extends the control that " -"copyright owners effect—at least for those copyright holders with the " -"lawyers who can write the nasty letters that Felten and aibopet.com " -"received." +"This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. The " +"controls built into the technology of copy and access protection become " +"rules the violation of which is also a violation of the law. In this way, " +"the code extends the law—increasing its regulation, even if the " +"subject it regulates (activities that would otherwise plainly constitute " +"fair use) is beyond the reach of the law. Code becomes law; code extends the " +"law; code thus extends the control that copyright owners effect—at " +"least for those copyright holders with the lawyers who can write the nasty " +"letters that Felten and aibopet.com received." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7713 +#: freeculture.xml:7659 msgid "" "There is one final aspect of the interaction between architecture and law " "that contributes to the force of copyright's regulation. This is the ease " @@ -9767,25 +10095,25 @@ msgstr "" #. f24 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7732 +#: freeculture.xml:7678 msgid "" "For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, " -"Copyright, Fan Fiction, and a New Common Law,\" Loyola of Los Angeles " -"Entertainment Law Journal 17 (1997): 651." +"Copyright, Fan Fiction, and a New Common Law,\" <citetitle>Loyola of Los " +"Angeles Entertainment Law Journal</citetitle> 17 (1997): 651." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7726 +#: freeculture.xml:7672 msgid "" -"For example, imagine you were part of a Star Trek fan club. You 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.<placeholder type=\"footnote\" id=\"0\"/>" +"For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan " +"club. You 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.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7738 +#: freeculture.xml:7684 msgid "" "Before the Internet, this was, in effect, a totally unregulated activity. " "No matter what happened inside your club room, you would never be interfered " @@ -9795,7 +10123,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7745 +#: freeculture.xml:7691 msgid "" "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 " @@ -9808,7 +10136,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7755 +#: freeculture.xml:7701 msgid "" "This change in the effective force of the law is caused by a change in the " "ease with which the law can be enforced. That change too shifts the law's " @@ -9819,13 +10147,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:7764 +#: freeculture.xml:7710 msgid "Market: Concentration" msgstr "" #. PAGE BREAK 173 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7766 +#: freeculture.xml:7712 msgid "" "So copyright's duration has increased dramatically—tripled in the past " "thirty years. And copyright's scope has increased as well—from " @@ -9843,7 +10171,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7784 +#: freeculture.xml:7730 msgid "" "Still, in my view, all of these changes would not matter much if it weren't " "for one more change that we must also consider. This is a change that is in " @@ -9853,7 +10181,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7791 +#: freeculture.xml:7737 msgid "" "This is the change in the concentration and integration of the media. In " "the past twenty years, the nature of media ownership has undergone a radical " @@ -9866,18 +10194,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7802 +#: freeculture.xml:7748 msgid "These changes are of two sorts: the scope of concentration, and its nature." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:7805 +#: freeculture.xml:7751 msgid "BMG" msgstr "" #. f25 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7811 +#: freeculture.xml:7757 msgid "" "FCC Oversight: Hearing Before the Senate Commerce, Science and " "Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement " @@ -9886,22 +10214,27 @@ msgstr "" #. f26 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7818 +#: freeculture.xml:7764 msgid "" "Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" " -"New York Times, 23 December 2002." +"<citetitle>New York Times</citetitle>, 23 December 2002." msgstr "" #. f27 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7824 +#: freeculture.xml:7770 msgid "" -"Molly Ivins, \"Media Consolidation Must Be Stopped,\" Charleston Gazette, 31 " -"May 2003." +"Molly Ivins, \"Media Consolidation Must Be Stopped,\" <citetitle>Charleston " +"Gazette</citetitle>, 31 May 2003." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:7773 +msgid "McCain, John" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7807 +#: freeculture.xml:7753 msgid "" "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 " @@ -9911,24 +10244,25 @@ msgid "" "84.8 percent of the U.S. music market.<placeholder type=\"footnote\" " "id=\"1\"/> The \"five largest cable companies pipe programming to 74 percent " "of the cable subscribers nationwide.\"<placeholder type=\"footnote\" " -"id=\"2\"/>" +"id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/>" msgstr "" #. PAGE BREAK 174 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7829 +#: freeculture.xml:7776 msgid "" "The story with radio is even more dramatic. Before deregulation, the " "nation's largest radio broadcasting conglomerate owned fewer than " -"seventy-five stations. Today one company owns more than 1,200 stations. " -"During that period of consolidation, the 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." +"seventy-five stations. Today <emphasis>one</emphasis> company owns more than " +"1,200 stations. During that period of consolidation, the 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." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7840 +#: freeculture.xml:7787 msgid "" "Newspaper ownership is becoming more concentrated as well. Today, there are " "six hundred fewer daily newspapers in the United States than there were " @@ -9942,12 +10276,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary> -#: freeculture.xml:7854 freeculture.xml:7871 +#: freeculture.xml:7801 freeculture.xml:7818 msgid "Fallows, James" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7851 +#: freeculture.xml:7798 msgid "" "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 " @@ -9955,14 +10289,15 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:7869 +#: freeculture.xml:7816 msgid "" -"James Fallows, \"The Age of Murdoch,\" Atlantic Monthly (September 2003): " -"89. <placeholder type=\"indexterm\" id=\"0\"/>" +"James Fallows, \"The Age of Murdoch,\" <citetitle>Atlantic " +"Monthly</citetitle> (September 2003): 89. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:7858 +#: freeculture.xml:7805 msgid "" "Murdoch's companies now constitute a production system unmatched in its " "integration. They supply content—Fox movies . . . Fox TV shows " @@ -9977,7 +10312,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7876 +#: freeculture.xml:7823 msgid "" "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 " @@ -9986,18 +10321,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> -#: freeculture.xml:7882 +#: freeculture.xml:7829 msgid "Pattern of modern media ownership." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> -#: freeculture.xml:7883 +#: freeculture.xml:7830 msgid "<graphic fileref=\"images/1761.png\"></graphic>" msgstr "" #. PAGE BREAK 175 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7887 +#: freeculture.xml:7834 msgid "" "Does this concentration matter? Will it affect what is made, or what is " "distributed? Or is it merely a more efficient way to produce and distribute " @@ -10005,7 +10340,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7892 +#: freeculture.xml:7839 msgid "" "My view was that concentration wouldn't matter. I thought it was nothing " "more than a more efficient financial structure. But now, after reading and " @@ -10014,35 +10349,35 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7898 +#: freeculture.xml:7845 msgid "" "Here's a representative story that begins to suggest how this integration " "may matter." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:7901 +#: freeculture.xml:7848 msgid "Lear, Norman" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:7903 freeculture.xml:7967 +#: freeculture.xml:7850 freeculture.xml:7914 msgid "All in the Family" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7905 +#: freeculture.xml:7852 msgid "" -"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 first. ABC " -"was exasperated. You're missing the point, they told Lear. We wanted less " -"edgy, not more." +"In 1969, Norman Lear created a pilot for <citetitle>All in the " +"Family</citetitle>. 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 first. ABC was exasperated. You're missing the point, they " +"told Lear. We wanted less edgy, not more." msgstr "" #. f29 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7917 +#: freeculture.xml:7864 msgid "" "Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center " "Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, " @@ -10053,7 +10388,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7912 +#: freeculture.xml:7859 msgid "" "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 " @@ -10063,7 +10398,7 @@ msgstr "" #. PAGE BREAK 176 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7929 +#: freeculture.xml:7876 msgid "" "The network did not control those copyrights because the law forbade the " "networks from controlling the content they syndicated. The law required a " @@ -10075,7 +10410,7 @@ msgstr "" #. f30 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:7948 +#: freeculture.xml:7895 msgid "" "NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media " "Ownership Before the Senate Commerce Committee, 108th Cong., 1st " @@ -10087,7 +10422,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7938 +#: freeculture.xml:7885 msgid "" "In 1994, the FCC abandoned the rules that required this independence. After " "that change, the networks quickly changed the balance. In 1985, there were " @@ -10106,32 +10441,44 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7969 +#: freeculture.xml:7916 msgid "" -"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." +"Today, another Norman Lear with another <citetitle>All in the " +"Family</citetitle> 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:7925 +msgid "Diller, Barry" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:7926 +msgid "Moyers, Bill" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7975 +#: freeculture.xml:7922 msgid "" "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," +"Diller said to Bill Moyers, <placeholder type=\"indexterm\" id=\"0\"/> " +"<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. f32 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:7990 +#: freeculture.xml:7939 msgid "" -"\"Barry Diller Takes on Media Deregulation,\" Now with Bill Moyers, Bill " -"Moyers, 25 April 2003, edited transcript available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #31</ulink>." +"\"Barry Diller Takes on Media Deregulation,\" <citetitle>Now with Bill " +"Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #31</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:7981 +#: freeculture.xml:7930 msgid "" "Well, if you have companies that produce, that finance, that air on their " "channel and then distribute worldwide everything that goes through their " @@ -10142,7 +10489,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:7997 +#: freeculture.xml:7946 msgid "" "This narrowing has an effect on what is produced. The product of such large " "and concentrated networks is increasingly homogenous. Increasingly " @@ -10156,27 +10503,29 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:8008 +#: freeculture.xml:7957 msgid "Clark, Kim B." msgstr "" #. f33 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:8017 +#: freeculture.xml:7966 msgid "" -"Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National " -"Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business " -"School Press, 1997). Christensen acknowledges that the idea was first " -"suggested by Dean Kim Clark. See Kim B. Clark, \"The Interaction of Design " -"Hierarchies and Market Concepts in Technological Evolution,\" Research " -"Policy 14 (1985): 235–51. For a more recent study, see Richard Foster " -"and Sarah Kaplan, Creative Destruction: Why Companies That Are Built to Last " -"Underperform the Market—and How to Successfully Transform Them (New " -"York: Currency/Doubleday, 2001)." +"Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The " +"Revolutionary National Bestseller that Changed the Way We Do " +"Business</citetitle> (Cambridge: Harvard Business School Press, " +"1997). Christensen acknowledges that the idea was first suggested by Dean " +"Kim Clark. See Kim B. Clark, \"The Interaction of Design Hierarchies and " +"Market Concepts in Technological Evolution,\" <citetitle>Research " +"Policy</citetitle> 14 (1985): 235–51. For a more recent study, see " +"Richard Foster and Sarah Kaplan, <citetitle>Creative Destruction: Why " +"Companies That Are Built to Last Underperform the Market—and How to " +"Successfully Transform Them</citetitle> (New York: Currency/Doubleday, " +"2001)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8010 +#: freeculture.xml:7959 msgid "" "Economics itself offers a parallel that explains why this integration " "affects creativity. Clay Christensen has written about the \"Innovator's " @@ -10186,11 +10535,11 @@ msgid "" "would find it rational to ignore new cultural trends.<placeholder " "type=\"footnote\" id=\"0\"/> 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." +"too little sprinting. <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8033 +#: freeculture.xml:7983 msgid "" "I don't think we know enough about the economics of the media market to say " "with certainty what concentration and integration will do. The efficiencies " @@ -10198,14 +10547,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8039 +#: freeculture.xml:7989 msgid "" "But there is a quintessentially obvious example that does strongly suggest " "the concern." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8043 +#: freeculture.xml:7993 msgid "" "In addition to the copyright wars, we're in the middle of the drug " "wars. Government policy is strongly directed against the drug cartels; " @@ -10214,7 +10563,7 @@ msgstr "" #. PAGE BREAK 178 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8048 +#: freeculture.xml:7998 msgid "" "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 " @@ -10232,7 +10581,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8067 +#: freeculture.xml:8017 msgid "" "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 " @@ -10240,7 +10589,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8073 +#: freeculture.xml:8023 msgid "" "Beginning in 1998, the Office of National Drug Control Policy launched a " "media campaign as part of the \"war on drugs.\" The campaign produced scores " @@ -10255,14 +10604,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8085 +#: freeculture.xml:8035 msgid "" "Fair enough. It's a good ad. Not terribly misleading. It delivers its " "message well. It's a fair and reasonable message." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8089 +#: freeculture.xml:8039 msgid "" "But let's say you think it is a wrong message, and you'd like to run a " "countercommercial. Say you want to run a series of ads that try to " @@ -10272,7 +10621,7 @@ msgstr "" #. PAGE BREAK 179 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8095 +#: freeculture.xml:8045 msgid "" "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 " @@ -10280,9 +10629,23 @@ msgid "" "heard then?" msgstr "" -#. f34 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:8086 +msgid "Comcast" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:8087 +msgid "Marijuana Policy Project" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:8088 +msgid "WJOA" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:8112 +#: freeculture.xml:8062 msgid "" "The Marijuana Policy Project, in February 2003, sought to place ads that " "directly responded to the Nick and Norm series on stations within the " @@ -10293,24 +10656,27 @@ msgid "" "the collected fees. Interview with Neal Levine, 15 October 2003. These " "restrictions are, of course, not limited to drug policy. See, for example, " "Nat Ives, \"On the Issue of an Iraq War, Advocacy Ads Meet with Rejection " -"from TV Networks,\" New York Times, 13 March 2003, C4. Outside of " -"election-related air time there is very little that the FCC or the courts " -"are willing to do to even the playing field. For a general overview, see " -"Rhonda Brown, \"Ad Hoc Access: The Regulation of Editorial Advertising on " -"Television and Radio,\" Yale Law and Policy Review 6 (1988): 449–79, " -"and for a more recent summary of the stance of the FCC and the courts, see " -"Radio-Television News Directors Association v. FCC, 184 F. 3d 872 " -"(D.C. Cir. 1999). Municipal authorities exercise the same authority as the " -"networks. In a recent example from San Francisco, the San Francisco transit " -"authority rejected an ad that criticized its Muni diesel buses. Phillip " -"Matier and Andrew Ross, \"Antidiesel Group Fuming After Muni Rejects Ad,\" " -"SFGate.com, 16 June 2003, available at <ulink " +"from TV Networks,\" <citetitle>New York Times</citetitle>, 13 March 2003, " +"C4. Outside of election-related air time there is very little that the FCC " +"or the courts are willing to do to even the playing field. For a general " +"overview, see Rhonda Brown, \"Ad Hoc Access: The Regulation of Editorial " +"Advertising on Television and Radio,\" <citetitle>Yale Law and Policy " +"Review</citetitle> 6 (1988): 449–79, and for a more recent summary of " +"the stance of the FCC and the courts, see <citetitle>Radio-Television News " +"Directors Association</citetitle> v. <citetitle>FCC</citetitle>, 184 F. 3d " +"872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as " +"the networks. In a recent example from San Francisco, the San Francisco " +"transit authority rejected an ad that criticized its Muni diesel " +"buses. Phillip Matier and Andrew Ross, \"Antidiesel Group Fuming After Muni " +"Rejects Ad,\" SFGate.com, 16 June 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #32</ulink>. The ground was that " -"the criticism was \"too controversial.\"" +"the criticism was \"too controversial.\" <placeholder type=\"indexterm\" " +"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " +"type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8102 +#: freeculture.xml:8052 msgid "" "No. You cannot. Television stations have a general policy of avoiding " "\"controversial\" ads. Ads sponsored by the government are deemed " @@ -10324,7 +10690,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8139 +#: freeculture.xml:8092 msgid "" "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 " @@ -10337,12 +10703,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:8151 +#: freeculture.xml:8104 msgid "Together" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8153 +#: freeculture.xml:8106 msgid "" "There is something innocent and obvious about the claim of the copyright " "warriors that the government should \"protect my property.\" In the " @@ -10352,7 +10718,7 @@ msgstr "" #. PAGE BREAK 180 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8159 +#: freeculture.xml:8112 msgid "" "But when we see how dramatically this \"property\" has changed— when " "we recognize how it might now interact with both technology and markets to " @@ -10367,7 +10733,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8175 +#: freeculture.xml:8128 msgid "" "Not starkly. Or absolutely. My point is not that we should abolish copyright " "or go back to the eighteenth century. That would be a total mistake, " @@ -10376,7 +10742,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8181 +#: freeculture.xml:8134 msgid "" "But there is a space between zero and one, Internet culture " "notwithstanding. And these massive shifts in the effective power of " @@ -10390,7 +10756,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8193 +#: freeculture.xml:8146 msgid "" "Copyright law has not been a rock of Gibraltar. It's not a set of constant " "commitments that, for some mysterious reason, teenagers and geeks now " @@ -10398,56 +10764,56 @@ msgid "" "time, as the technologies of distribution and creation have changed and as " "lobbyists have pushed for more control by copyright holders. Changes in the " "past in response to changes in technology suggest that we may well need " -"similar changes in the future. And these changes have to be reductions in " -"the scope of copyright, in response to the extraordinary increase in control " -"that technology and the market enable." +"similar changes in the future. And these changes have to be " +"<emphasis>reductions</emphasis> in the scope of copyright, in response to " +"the extraordinary increase in control that technology and the market enable." msgstr "" #. PAGE BREAK 181 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8205 +#: freeculture.xml:8158 msgid "" "For the single point that is lost in this war on pirates is a point that we " "see only after surveying the range of these changes. When you add together " "the effect of changing law, concentrated markets, and changing technology, " -"together they produce an astonishing conclusion: Never in our history have " -"fewer had a legal right to control more of the development of our culture " -"than now." +"together they produce an astonishing conclusion: <emphasis>Never in our " +"history have fewer had a legal right to control more of the development of " +"our culture than now</emphasis>." msgstr "" -#. f35 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:8227 +#: freeculture.xml:8182 msgid "" "Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of " -"copyright law in the digital age. See Vaidhyanathan, 159–60." +"copyright law in the digital age. See Vaidhyanathan, 159–60. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8213 +#: freeculture.xml:8167 msgid "" "Not when copyrights were perpetual, for when copyrights were perpetual, they " "affected only that precise creative work. Not when only publishers had the " "tools to publish, for the market then was much more diverse. Not when there " "were only three television networks, for even then, newspapers, film " "studios, radio stations, and publishers were independent of the " -"networks. Never has copyright protected such a wide range of rights, against " -"as broad a range of actors, for a term that was remotely as long. This form " -"of regulation—a tiny regulation of a tiny part of the creative 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.<placeholder type=\"footnote\" " -"id=\"0\"/>" +"networks. <emphasis>Never</emphasis> has copyright protected such a wide " +"range of rights, against as broad a range of actors, for a term that was " +"remotely as long. This form of regulation—a tiny regulation of a tiny " +"part of the creative 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.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8232 +#: freeculture.xml:8188 msgid "This has been a long chapter. Its point can now be briefly stated." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8235 +#: freeculture.xml:8191 msgid "" "At the start of this book, I distinguished between commercial and " "noncommercial culture. In the course of this chapter, I have distinguished " @@ -10457,38 +10823,38 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> -#: freeculture.xml:8248 freeculture.xml:8286 +#: freeculture.xml:8204 freeculture.xml:8242 msgid "PUBLISH" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> -#: freeculture.xml:8249 freeculture.xml:8287 freeculture.xml:8326 freeculture.xml:8359 +#: freeculture.xml:8205 freeculture.xml:8243 freeculture.xml:8282 freeculture.xml:8315 msgid "TRANSFORM" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:8254 freeculture.xml:8292 freeculture.xml:8331 freeculture.xml:8364 +#: freeculture.xml:8210 freeculture.xml:8248 freeculture.xml:8287 freeculture.xml:8320 msgid "Commercial" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:8255 freeculture.xml:8293 freeculture.xml:8294 freeculture.xml:8332 freeculture.xml:8333 freeculture.xml:8365 freeculture.xml:8366 freeculture.xml:8370 freeculture.xml:8371 +#: freeculture.xml:8211 freeculture.xml:8249 freeculture.xml:8250 freeculture.xml:8288 freeculture.xml:8289 freeculture.xml:8321 freeculture.xml:8322 freeculture.xml:8326 freeculture.xml:8327 msgid "©" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:8256 freeculture.xml:8260 freeculture.xml:8261 freeculture.xml:8298 freeculture.xml:8299 freeculture.xml:8338 +#: freeculture.xml:8212 freeculture.xml:8216 freeculture.xml:8217 freeculture.xml:8254 freeculture.xml:8255 freeculture.xml:8294 msgid "Free" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:8259 freeculture.xml:8297 freeculture.xml:8336 freeculture.xml:8369 +#: freeculture.xml:8215 freeculture.xml:8253 freeculture.xml:8292 freeculture.xml:8325 msgid "Noncommercial" msgstr "" #. PAGE BREAK 182 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8268 +#: freeculture.xml:8224 msgid "" "The act of publishing a map, chart, and book was regulated by copyright " "law. Nothing else was. Transformations were free. And as copyright attached " @@ -10498,12 +10864,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8277 +#: freeculture.xml:8233 msgid "By the end of the nineteenth century, the law had changed to this:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8306 +#: freeculture.xml:8262 msgid "" "Derivative works were now regulated by copyright law—if published, " "which again, given the economics of publishing at the time, means if offered " @@ -10512,7 +10878,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8312 +#: freeculture.xml:8268 msgid "" "In 1909 the law changed to regulate copies, not publishing, and after this " "change, the scope of the law was tied to technology. As the technology of " @@ -10522,17 +10888,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> -#: freeculture.xml:8325 freeculture.xml:8358 +#: freeculture.xml:8281 freeculture.xml:8314 msgid "COPY" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> -#: freeculture.xml:8337 +#: freeculture.xml:8293 msgid "©/Free" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8345 +#: freeculture.xml:8301 msgid "" "The law was interpreted to reach noncommercial copying through, say, copy " "machines, but still much of copying outside of the commercial market " @@ -10543,7 +10909,7 @@ msgstr "" #. PAGE BREAK 183 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8378 +#: freeculture.xml:8334 msgid "" "Every realm is governed by copyright law, whereas before most creativity was " "not. The law now regulates the full range of creativity— commercial or " @@ -10552,7 +10918,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8386 +#: freeculture.xml:8342 msgid "" "Obviously, copyright law is not the enemy. The enemy is regulation that does " "no good. So the question that we should be asking just now is whether " @@ -10561,7 +10927,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8392 +#: freeculture.xml:8348 msgid "" "I have no doubt that it does good in regulating commercial copying. But I " "also have no doubt that it does more harm than good when regulating (as it " @@ -10574,17 +10940,18 @@ msgstr "" #. f36 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:8408 +#: freeculture.xml:8364 msgid "" "It was the single most important contribution of the legal realist movement " "to demonstrate that all property rights are always crafted to balance public " "and private interests. See Thomas C. Grey, \"The Disintegration of " -"Property,\" in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, " -"eds. (New York: New York University Press, 1980)." +"Property,\" in <citetitle>Nomos XXII: Property</citetitle>, J. Roland " +"Pennock and John W. Chapman, eds. (New York: New York University Press, " +"1980)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8402 +#: freeculture.xml:8358 msgid "" "The issue is therefore not simply whether copyright is property. Of course " "copyright is a kind of \"property,\" and of course, as with any property, " @@ -10594,15 +10961,15 @@ msgid "" "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\" 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." +"\"copyright\" did not control <emphasis>at all</emphasis> 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." msgstr "" #. PAGE BREAK 184 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8425 +#: freeculture.xml:8381 msgid "" "We achieved that free culture because our law respected important limits on " "the scope of the interests protected by \"property.\" The very birth of " @@ -10621,7 +10988,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8444 +#: freeculture.xml:8400 msgid "" "Free culture is increasingly the casualty in this war on piracy. In response " "to a real, if not yet quantified, threat that the technologies of the " @@ -10636,41 +11003,41 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:8461 +#: freeculture.xml:8417 msgid "PUZZLES" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:8465 +#: freeculture.xml:8421 msgid "CHAPTER ELEVEN: Chimera" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:8467 +#: freeculture.xml:8423 msgid "chimeras" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:8470 +#: freeculture.xml:8426 msgid "Wells, H. G." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:8473 +#: freeculture.xml:8429 msgid ""Country of the Blind, The" (Wells)" msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:8481 +#: freeculture.xml:8437 msgid "" -"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, The " -"Country of the Blind and Other Stories, Michael Sherborne, ed. (New York: " -"Oxford University Press, 1996)." +"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, " +"<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael " +"Sherborne, ed. (New York: Oxford University Press, 1996)." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8477 +#: freeculture.xml:8433 msgid "" "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 " @@ -10684,21 +11051,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8493 +#: freeculture.xml:8449 msgid "" "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. 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!'\"" +"They don't have the word <citetitle>blind</citetitle>. 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!'\"" msgstr "" #. PAGE BREAK 187 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8505 +#: freeculture.xml:8461 msgid "" "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, " @@ -10712,7 +11079,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8516 +#: freeculture.xml:8472 msgid "" "When Nunez announces his desire to marry his \"mysteriously delighted\" " "love, the father and the village object. \"You see, my dear,\" her father " @@ -10721,21 +11088,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8522 +#: freeculture.xml:8478 msgid "" "After a careful examination, the doctor gives his opinion. \"His brain is " "affected,\" he reports." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8526 +#: freeculture.xml:8482 msgid "" "\"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.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8531 +#: freeculture.xml:8487 msgid "" "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 " @@ -10745,7 +11112,7 @@ msgstr "" #. PAGE BREAK 188 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8537 +#: freeculture.xml:8493 msgid "" "\"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 " @@ -10760,7 +11127,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8554 +#: freeculture.xml:8510 msgid "" "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 " @@ -10771,7 +11138,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8562 +#: freeculture.xml:8518 msgid "" "The more I work to understand the current struggle over copyright and " "culture, which I've sometimes called unfairly, and sometimes not unfairly " @@ -10788,7 +11155,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8576 +#: freeculture.xml:8532 msgid "" "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 " @@ -10800,18 +11167,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8585 +#: freeculture.xml:8541 msgid "" "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 (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." +"take, that is very much like stealing a copy from Tower. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 189 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8595 +#: freeculture.xml:8552 msgid "" "But it is not quite stealing from Tower. After all, when I take a CD from " "Tower Records, Tower has one less CD to sell. And when I take a CD from " @@ -10823,7 +11191,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8605 +#: freeculture.xml:8562 msgid "" "The point is not that it is as neither side describes. The point is that it " "is both—both as the RIAA describes it and as Kazaa describes it. It is " @@ -10832,9 +11200,13 @@ msgid "" "rules should govern it?" msgstr "" -#. f2. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:8608 freeculture.xml:9308 +msgid "Berman, Howard L." +msgstr "" + #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:8620 +#: freeculture.xml:8578 msgid "" "For an excellent summary, see the report prepared by GartnerG2 and the " "Berkman Center for Internet and Society at Harvard Law School, \"Copyright " @@ -10843,30 +11215,32 @@ msgid "" "Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill " "that would treat unauthorized on-line copying as a felony offense with " "punishments ranging as high as five years imprisonment; see Jon Healey, " -"\"House Bill Aims to Up Stakes on Piracy,\" Los Angeles Times, 17 July 2003, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#34</ulink>. Civil penalties are currently set at $150,000 per copied " -"song. For a recent (and unsuccessful) legal challenge to the RIAA's demand " -"that an ISP reveal the identity of a user accused of sharing more than 600 " -"songs through a family computer, see RIAA v. Verizon Internet Services (In " -"re. Verizon Internet Services), 240 F. Supp. 2d 24 (D.D.C. 2003). Such a " -"user could face liability ranging as high as $90 million. Such astronomical " -"figures furnish the RIAA with a powerful arsenal in its prosecution of file " -"sharers. Settlements ranging from $12,000 to $17,500 for four students " -"accused of heavy file sharing on university networks must have seemed a mere " -"pittance next to the $98 billion the RIAA could seek should the matter " -"proceed to court. See Elizabeth Young, \"Downloading Could Lead to Fines,\" " -"redandblack.com, August 2003, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #35</ulink>. For an example of " -"the RIAA's targeting of student file sharing, and of the subpoenas issued to " -"universities to reveal student file-sharer identities, see James Collins, " -"\"RIAA Steps Up Bid to Force BC, MIT to Name Students,\" Boston Globe, 8 " -"August 2003, D3, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #36</ulink>." -msgstr "" - -#. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8612 +"\"House Bill Aims to Up Stakes on Piracy,\" <citetitle>Los Angeles " +"Times</citetitle>, 17 July 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #34</ulink>. Civil penalties are " +"currently set at $150,000 per copied song. For a recent (and unsuccessful) " +"legal challenge to the RIAA's demand that an ISP reveal the identity of a " +"user accused of sharing more than 600 songs through a family computer, see " +"<citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In " +"re. Verizon Internet Services)</citetitle>, 240 F. Supp. 2d 24 " +"(D.D.C. 2003). Such a user could face liability ranging as high as $90 " +"million. Such astronomical figures furnish the RIAA with a powerful arsenal " +"in its prosecution of file sharers. Settlements ranging from $12,000 to " +"$17,500 for four students accused of heavy file sharing on university " +"networks must have seemed a mere pittance next to the $98 billion the RIAA " +"could seek should the matter proceed to court. See Elizabeth Young, " +"\"Downloading Could Lead to Fines,\" redandblack.com, August 2003, available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #35</ulink>. For an " +"example of the RIAA's targeting of student file sharing, and of the " +"subpoenas issued to universities to reveal student file-sharer identities, " +"see James Collins, \"RIAA Steps Up Bid to Force BC, MIT to Name Students,\" " +"<citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #36</ulink>. <placeholder " +"type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8569 msgid "" "We could respond by simply pretending that it is not a chimera. We could, " "with the RIAA, decide that every act of file sharing should be a felony. We " @@ -10879,7 +11253,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8657 +#: freeculture.xml:8614 msgid "" "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 " @@ -10889,20 +11263,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8664 +#: freeculture.xml:8621 msgid "" "Either response is possible. I think either would be a mistake. Rather than " "embrace one of these two extremes, we should embrace something that " "recognizes the truth in both. And while I end this book with a sketch of a " "system that does just that, my aim in the next chapter is to show just how " "awful it would be for us to adopt the zero-tolerance extreme. I believe " -"either extreme would be worse than a reasonable alternative. But I believe " -"the zero-tolerance solution would be the worse of the two extremes." +"<emphasis>either</emphasis> extreme would be worse than a reasonable " +"alternative. But I believe the zero-tolerance solution would be the worse " +"of the two extremes." msgstr "" #. PAGE BREAK 190 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8676 +#: freeculture.xml:8633 msgid "" "Yet zero tolerance is increasingly our government's policy. In the middle of " "the chaos that the Internet has created, an extraordinary land grab is " @@ -10913,7 +11288,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8684 +#: freeculture.xml:8641 msgid "" "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 " @@ -10927,14 +11302,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:8697 +#: freeculture.xml:8654 msgid "" "eMusic opposes music piracy. We are a distributor of copyrighted material, " "and we want to protect those rights." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:8701 +#: freeculture.xml:8658 msgid "" "But building a technology fortress that locks in the clout of the major " "labels is by no means the only way to protect copyright interests, nor is it " @@ -10945,7 +11320,7 @@ msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> -#: freeculture.xml:8718 +#: freeculture.xml:8676 msgid "" "WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital " "Entertainment on the Internet and Other Media: Hearing Before the " @@ -10956,7 +11331,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:8709 +#: freeculture.xml:8666 msgid "" "This is a critical point. The choices that industry sectors make with " "respect to these systems will in many ways directly shape the market for " @@ -10968,15 +11343,21 @@ msgid "" "everyone's interests.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:8690 freeculture.xml:9039 +msgid "Vivendi Universal" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8733 +#: freeculture.xml:8687 msgid "" "In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the " -"major labels.\" Its position on these matters has now changed." +"major labels.\" Its position on these matters has now changed. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8738 +#: freeculture.xml:8693 msgid "" "Reversing our tradition of tolerance now will not merely quash piracy. It " "will sacrifice values that are important to this culture, and will kill " @@ -10984,12 +11365,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:8746 +#: freeculture.xml:8701 msgid "CHAPTER TWELVE: Harms" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8749 +#: freeculture.xml:8704 msgid "" "To fight \"piracy,\" to protect \"property,\" the content industry has " "launched a war. Lobbying and lots of campaign contributions have now brought " @@ -10999,7 +11380,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8757 +#: freeculture.xml:8712 msgid "" "My aim so far has been to describe the consequences of this war, in " "particular, the consequences for \"free culture.\" But my aim now is to " @@ -11008,7 +11389,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8764 +#: freeculture.xml:8719 msgid "" "In my view, it is not. There is no good reason why this time, for the first " "time, the law should defend the old against the new, just when the power of " @@ -11017,7 +11398,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8772 +#: freeculture.xml:8727 msgid "" "Yet \"common sense\" does not see it this way. Common sense is still on the " "side of the Causbys and the content industry. The extreme claims of control " @@ -11027,7 +11408,7 @@ msgstr "" #. PAGE BREAK 193 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:8779 +#: freeculture.xml:8734 msgid "" "There will be many consequences of continuing this war. I want to describe " "just three. All three might be said to be unintended. I am quite confident " @@ -11037,12 +11418,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:8786 +#: freeculture.xml:8741 msgid "Constraining Creators" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8788 +#: freeculture.xml:8743 msgid "" "In the next ten years we will see an explosion of digital technologies. " "These technologies will enable almost anyone to capture and share " @@ -11059,7 +11440,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8803 +#: freeculture.xml:8758 msgid "" "This digital \"capturing and sharing\" is in part an extension of the " "capturing and sharing that has always been integral to our culture, and in " @@ -11074,7 +11455,7 @@ msgstr "" #. PAGE BREAK 194 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8814 +#: freeculture.xml:8769 msgid "" "Technology has thus given us an opportunity to do something with culture " "that has only ever been possible for individuals in small groups, isolated " @@ -11084,7 +11465,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8824 +#: freeculture.xml:8779 msgid "" "Yet all this is possible only if the activity is presumptively legal. In the " "current regime of legal regulation, it is not. Forget file sharing for a " @@ -11097,24 +11478,29 @@ msgid "" "presumptively illegal." msgstr "" -#. f1. +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:8807 freeculture.xml:8828 +msgid "Worldcom" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:8847 +#: freeculture.xml:8802 msgid "" -"See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom (Hoboken, " -"N.J.: John Wiley & Sons, 2003), 176, 204; for details of the settlement, " -"see MCI press release, \"MCI Wins U.S. District Court Approval for SEC " -"Settlement\" (7 July 2003), available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #37</ulink>." +"See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at " +"WorldCom</citetitle> (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; " +"for details of the settlement, see MCI press release, \"MCI Wins " +"U.S. District Court Approval for SEC Settlement\" (7 July 2003), available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #37</ulink>. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> -#: freeculture.xml:8867 +#: freeculture.xml:8823 msgid "Bush, George W." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:8858 +#: freeculture.xml:8814 msgid "" "The bill, modeled after California's tort reform model, was passed in the " "House of Representatives but defeated in a Senate vote in July 2003. For an " @@ -11128,7 +11514,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8835 +#: freeculture.xml:8790 msgid "" "That presumption will increasingly chill creativity, as the examples of " "extreme penalties for vague infringements continue to proliferate. It is " @@ -11145,21 +11531,22 @@ msgid "" "damages for pain and suffering.<placeholder type=\"footnote\" id=\"1\"/> Can " "common sense recognize the absurdity in a world where the maximum fine for " "downloading two songs off the Internet is more than the fine for a doctor's " -"negligently butchering a patient?" +"negligently butchering a patient? <placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:8894 +#: freeculture.xml:8850 msgid "" -"See Danit Lidor, \"Artists Just Wanna Be Free,\" Wired, 7 July 2003, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#40</ulink>. For an overview of the exhibition, see <ulink " -"url=\"http://free-culture.cc/notes/\">link #41</ulink>." +"See Danit Lidor, \"Artists Just Wanna Be Free,\" " +"<citetitle>Wired</citetitle>, 7 July 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #40</ulink>. For an overview of " +"the exhibition, see <ulink url=\"http://free-culture.cc/notes/\">link " +"#41</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8874 +#: freeculture.xml:8831 msgid "" "The consequence of this legal uncertainty, tied to these extremely high " "penalties, is that an extraordinary amount of creativity will either never " @@ -11179,7 +11566,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8905 +#: freeculture.xml:8860 msgid "" "Part of the reason for this fear of illegality has to do with the changing " "law. I described that change in detail in chapter 10. But an even bigger " @@ -11192,7 +11579,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8916 +#: freeculture.xml:8871 msgid "" "Never in our history has a painter had to worry about whether his painting " "infringed on someone else's work; but the modern-day painter, using the " @@ -11206,7 +11593,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8927 +#: freeculture.xml:8882 msgid "" "Lawyers rarely see this because lawyers are rarely empirical. As I described " "in chapter 7, in response to the story about documentary filmmaker Jon Else, " @@ -11216,7 +11603,7 @@ msgstr "" #. PAGE BREAK 196 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8936 +#: freeculture.xml:8891 msgid "" "But fair use in America simply means the right to hire a lawyer to defend " "your right to create. And as lawyers love to forget, our system for " @@ -11229,7 +11616,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8946 +#: freeculture.xml:8901 msgid "" "Judges and lawyers can tell themselves that fair use provides adequate " "\"breathing room\" between regulation by the law and the access the law " @@ -11242,7 +11629,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8957 +#: freeculture.xml:8912 msgid "" "For in a world that threatens $150,000 for a single willful infringement of " "a copyright, and which demands tens of thousands of dollars to even defend " @@ -11255,13 +11642,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8968 +#: freeculture.xml:8923 msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me," msgstr "" #. PAGE BREAK 197 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:8972 +#: freeculture.xml:8927 msgid "" "We're losing [creative] opportunities right and left. Creative people are " "being forced not to express themselves. Thoughts are not being " @@ -11274,12 +11661,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:8985 +#: freeculture.xml:8940 msgid "Constraining Innovators" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8987 +#: freeculture.xml:8942 msgid "" "The story of the last section was a crunchy-lefty story—creativity " "quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you " @@ -11290,7 +11677,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:8995 +#: freeculture.xml:8950 msgid "" "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 " @@ -11302,7 +11689,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9004 +#: freeculture.xml:8959 msgid "" "The charge I've been making about the regulation of culture is the same " "charge free marketers make about regulating markets. Everyone, of course, " @@ -11317,13 +11704,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:9016 freeculture.xml:9117 +#: freeculture.xml:8971 freeculture.xml:9077 msgid "Barry, Hank" msgstr "" #. PAGE BREAK 198 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9018 +#: freeculture.xml:8973 msgid "" "This is the single most dramatic effect of the shift in regulatory strategy " "that I described in chapter 10. The consequence of this massive threat of " @@ -11337,15 +11724,15 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9030 +#: freeculture.xml:8985 msgid "" "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." +"<citetitle>The Future of Ideas</citetitle> and which has progressed in a way " +"that even I (pessimist extraordinaire) would never have predicted." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9035 +#: freeculture.xml:8990 msgid "" "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 " @@ -11356,17 +11743,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9043 +#: freeculture.xml:8998 msgid "" "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 " "artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And " -"so on." +"so on. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9050 +#: freeculture.xml:9006 msgid "" "This idea required a simple way to gather data about user preferences. " "MP3.com came up with an extraordinarily clever way to gather this preference " @@ -11381,7 +11768,7 @@ msgstr "" #. PAGE BREAK 199 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9062 +#: freeculture.xml:9018 msgid "" "No doubt some could use this system to illegally copy content. But that " "opportunity existed with or without MP3.com. The aim of the my.mp3.com " @@ -11391,7 +11778,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9071 +#: freeculture.xml:9027 msgid "" "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, " @@ -11405,7 +11792,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9083 +#: freeculture.xml:9042 msgid "" "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 " @@ -11417,12 +11804,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9093 +#: freeculture.xml:9052 msgid "That part of the story I have told before. Now consider its conclusion." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9096 +#: freeculture.xml:9055 msgid "" "After Vivendi purchased MP3.com, Vivendi turned around and filed a " "malpractice lawsuit against the lawyers who had advised it that they had a " @@ -11435,7 +11822,7 @@ msgstr "" #. PAGE BREAK 200 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9106 +#: freeculture.xml:9065 msgid "" "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 " @@ -11447,24 +11834,25 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:9116 +#: freeculture.xml:9076 msgid "Hummer, John" msgstr "" #. f4. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9124 +#: freeculture.xml:9085 msgid "" -"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" Los Angeles Times, " -"23 April 2003. For a parallel argument about the effects on innovation in " -"the distribution of music, see Janelle Brown, \"The Music Revolution Will " -"Not Be Digitized,\" Salon.com, 1 June 2001, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #42</ulink>. See also Jon " -"Healey, \"Online Music Services Besieged,\" Los Angeles Times, 28 May 2001." +"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" <citetitle>Los " +"Angeles Times</citetitle>, 23 April 2003. For a parallel argument about the " +"effects on innovation in the distribution of music, see Janelle Brown, \"The " +"Music Revolution Will Not Be Digitized,\" Salon.com, 1 June 2001, available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #42</ulink>. See also " +"Jon Healey, \"Online Music Services Besieged,\" <citetitle>Los Angeles " +"Times</citetitle>, 28 May 2001." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9119 +#: freeculture.xml:9079 msgid "" "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 " @@ -11479,31 +11867,32 @@ msgid "" "not just in the marketplace, but in the courtroom as well. Your investment " "buys you not only a company, it also buys you a lawsuit. So extreme has the " "environment become that even car manufacturers are afraid of technologies " -"that touch content. In an article in Business 2.0, Rafe Needleman describes " -"a discussion with BMW:" +"that touch content. In an article in <citetitle>Business 2.0</citetitle>, " +"Rafe Needleman describes a discussion with BMW:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><indexterm><primary> -#: freeculture.xml:9148 +#: freeculture.xml:9106 msgid "BMW" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary> -#: freeculture.xml:9163 +#: freeculture.xml:9121 msgid "Needleman, Rafe" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:9159 +#: freeculture.xml:9117 msgid "" -"Rafe Needleman, \"Driving in Cars with MP3s,\" Business 2.0, 16 June 2003, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli for this example. " -"<placeholder type=\"indexterm\" id=\"0\"/>" +"Rafe Needleman, \"Driving in Cars with MP3s,\" <citetitle>Business " +"2.0</citetitle>, 16 June 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #43</ulink>. I am grateful to " +"Dr. Mohammad Al-Ubaydli for this example. <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:9150 +#: freeculture.xml:9108 msgid "" "I asked why, with all the storage capacity and computer power in the car, " "there was no way to play MP3 files. I was told that BMW engineers in Germany " @@ -11515,7 +11904,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9168 +#: freeculture.xml:9126 msgid "" "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 " @@ -11527,7 +11916,7 @@ msgstr "" #. PAGE BREAK 201 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9178 +#: freeculture.xml:9136 msgid "" "The point is not that businesses should have a right to start illegal " "enterprises. The point is the definition of \"illegal.\" The law is a mess " @@ -11543,7 +11932,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9193 +#: freeculture.xml:9151 msgid "" "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 both " @@ -11558,7 +11947,7 @@ msgstr "" #. PAGE BREAK 202 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9210 +#: freeculture.xml:9163 msgid "" "The building of a permission culture, rather than a free culture, is the " "first important way in which the changes I have described will burden " @@ -11581,7 +11970,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9235 +#: freeculture.xml:9185 msgid "" "The motivation for this response is obvious. The Internet enables the " "efficient spread of content. That efficiency is a feature of the Internet's " @@ -11595,7 +11984,7 @@ msgstr "" #. f6. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9251 +#: freeculture.xml:9199 msgid "" "\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the " "Berkman Center for Internet and Society at Harvard Law School (2003), " @@ -11605,12 +11994,12 @@ msgstr "" #. f7. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9267 +#: freeculture.xml:9215 msgid "GartnerG2, 26–27." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9247 +#: freeculture.xml:9195 msgid "" "The examples of this form of legislation are many. At the urging of the " "content industry, some in Congress have threatened legislation that would " @@ -11628,7 +12017,7 @@ msgstr "" #. PAGE BREAK 203 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9272 +#: freeculture.xml:9220 msgid "" "In one sense, these solutions seem sensible. If the problem is the code, why " "not regulate the code to remove the problem. But any regulation of technical " @@ -11639,14 +12028,14 @@ msgstr "" #. f8. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9286 +#: freeculture.xml:9234 msgid "" "See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, " "February 2002 (Entertainment)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9283 +#: freeculture.xml:9231 msgid "" "In March 2002, a broad coalition of technology companies, led by Intel, " "tried to get Congress to see the harm that such legislation would " @@ -11656,7 +12045,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9294 +#: freeculture.xml:9242 msgid "" "There is one more obvious way in which this war has harmed " "innovation—again, a story that will be quite familiar to the free " @@ -11664,7 +12053,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9300 +#: freeculture.xml:9248 msgid "" "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 " @@ -11674,25 +12063,27 @@ msgstr "" #. f9. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9309 -msgid "Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001)." +#: freeculture.xml:9257 +msgid "" +"Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: " +"Prometheus Books, 2001)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9306 +#: freeculture.xml:9254 msgid "" "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,<placeholder type=\"footnote\" " -"id=\"0\"/> overall this history of copyright is not bad. As chapter 10 " -"details, when new technologies have come along, Congress has struck a " -"balance to assure that the new is protected from the old. Compulsory, or " -"statutory, licenses have been one part of that strategy. Free use (as in the " -"case of the VCR) has been another." +"Litman in her book <citetitle>Digital Copyright</citetitle>,<placeholder " +"type=\"footnote\" id=\"0\"/> overall this history of copyright is not " +"bad. As chapter 10 details, when new technologies have come along, Congress " +"has struck a balance to assure that the new is protected from the " +"old. Compulsory, or statutory, licenses have been one part of that " +"strategy. Free use (as in the case of the VCR) has been another." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9319 +#: freeculture.xml:9267 msgid "" "But that pattern of deference to new technologies has now changed with the " "rise of the Internet. Rather than striking a balance between the claims of a " @@ -11703,25 +12094,25 @@ msgstr "" #. f10. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9327 -msgid "" -"The only circuit court exception is found in Recording Industry Association " -"of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th " -"Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that " -"makers of a portable MP3 player were not liable for contributory copyright " -"infringement for a device that is unable to record or redistribute music (a " -"device whose only copying function is to render portable a music file " -"already stored on a user's hard drive). At the district court level, the " -"only exception is found in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, " -"Ltd., 259 F. Supp. 2d 1029 (C.D. Cal., 2003), where the court found the " -"link between the distributor and any given user's conduct too attenuated to " -"make the distributor liable for contributory or vicarious infringement " -"liability." +#: freeculture.xml:9276 +msgid "" +"The only circuit court exception is found in <citetitle>Recording Industry " +"Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia " +"Systems</citetitle>, 180 F. 3d 1072 (9th Cir. 1999). There the court of " +"appeals for the Ninth Circuit reasoned that makers of a portable MP3 player " +"were not liable for contributory copyright infringement for a device that is " +"unable to record or redistribute music (a device whose only copying function " +"is to render portable a music file already stored on a user's hard drive). " +"At the district court level, the only exception is found in " +"<citetitle>Metro-Goldwyn-Mayer Studios, " +"Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 259 F. Supp. 2d " +"1029 (C.D. Cal., 2003), where the court found the link between the " +"distributor and any given user's conduct too attenuated to make the " +"distributor liable for contributory or vicarious infringement liability." msgstr "" -#. f11. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9346 +#: freeculture.xml:9294 msgid "" "For example, in July 2002, Representative Howard Berman introduced the " "Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize " @@ -11735,11 +12126,12 @@ msgid "" "which mandated copyright protection technology in all digital media " "devices. See GartnerG2, \"Copyright and Digital Media in a Post-Napster " "World,\" 27 June 2003, 33–34, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #44</ulink>." +"url=\"http://free-culture.cc/notes/\">link #44</ulink>. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9326 +#: freeculture.xml:9274 msgid "" "The response by the courts has been fairly universal.<placeholder " "type=\"footnote\" id=\"0\"/> It has been mirrored in the responses " @@ -11751,7 +12143,7 @@ msgstr "" #. PAGE BREAK 204 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9369 +#: freeculture.xml:9316 msgid "" "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 " @@ -11763,7 +12155,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9380 +#: freeculture.xml:9326 msgid "" "The reasoning behind this balance struck by Congress makes some sense. The " "justification was that radio was a kind of advertising. The recording artist " @@ -11776,7 +12168,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9392 +#: freeculture.xml:9337 msgid "" "Enter Internet radio. Like regular radio, Internet radio is a technology to " "stream content from a broadcaster to a listener. The broadcast travels " @@ -11787,7 +12179,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9402 +#: freeculture.xml:9346 msgid "" "This feature of the architecture of Internet radio means that there are " "potentially an unlimited number of radio stations that a user could tune in " @@ -11803,7 +12195,7 @@ msgstr "" #. PAGE BREAK 205 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9418 +#: freeculture.xml:9361 msgid "" "Internet radio is thus to radio what FM was to AM. It is an improvement " "potentially vastly more significant than the FM improvement over AM, since " @@ -11815,12 +12207,12 @@ msgstr "" #. f12. #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:9447 +#: freeculture.xml:9385 msgid "Lessing, 239." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:9430 +#: freeculture.xml:9371 msgid "" "An almost unlimited number of FM stations was possible in the shortwaves, " "thus ending the unnatural restrictions imposed on radio in the crowded " @@ -11838,12 +12230,12 @@ msgstr "" #. f13. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9456 +#: freeculture.xml:9395 msgid "Ibid., 229." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9452 +#: freeculture.xml:9390 msgid "" "This potential for FM radio was never realized—not because Armstrong " "was wrong about the technology, but because he underestimated the power of " @@ -11853,7 +12245,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9463 +#: freeculture.xml:9400 msgid "" "Now the very same claim could be made about Internet radio. For again, there " "is no technical limitation that could restrict the number of Internet radio " @@ -11864,7 +12256,7 @@ msgstr "" #. PAGE BREAK 206 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9471 +#: freeculture.xml:9408 msgid "" "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 powerful " @@ -11873,18 +12265,18 @@ msgid "" "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 does. Not only is the law not neutral toward Internet " -"radio—the law actually burdens Internet radio more than it burdens " -"terrestrial radio." +"<emphasis>Internet radio does</emphasis>. Not only is the law not neutral " +"toward Internet radio—the law actually burdens Internet radio more " +"than it burdens terrestrial radio." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> -#: freeculture.xml:9511 +#: freeculture.xml:9447 msgid "CARP (Copyright Arbitration Royalty Panel)" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9494 +#: freeculture.xml:9430 msgid "" "This example was derived from fees set by the original Copyright Arbitration " "Royalty Panel (CARP) proceedings, and is drawn from an example offered by " @@ -11895,17 +12287,18 @@ msgid "" "Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #45</ulink>. For an excellent " "analysis making a similar point, see Randal C. Picker, \"Copyright as Entry " -"Policy: The Case of Digital Distribution,\" Antitrust Bulletin (Summer/Fall " -"2002): 461: \"This was not confusion, these are just old-fashioned entry " -"barriers. Analog radio stations are protected from digital entrants, " -"reducing entry in radio and diversity. Yes, this is done in the name of " -"getting royalties to copyright holders, but, absent the play of powerful " -"interests, that could have been done in a media-neutral way.\" <placeholder " -"type=\"indexterm\" id=\"0\"/>" +"Policy: The Case of Digital Distribution,\" <citetitle>Antitrust " +"Bulletin</citetitle> (Summer/Fall 2002): 461: \"This was not confusion, " +"these are just old-fashioned entry barriers. Analog radio stations are " +"protected from digital entrants, reducing entry in radio and diversity. Yes, " +"this is done in the name of getting royalties to copyright holders, but, " +"absent the play of powerful interests, that could have been done in a " +"media-neutral way.\" <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " +"type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9487 +#: freeculture.xml:9423 msgid "" "This financial burden is not slight. As Harvard law professor William Fisher " "estimates, if an Internet radio station distributed adfree popular music to " @@ -11916,65 +12309,66 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9517 +#: freeculture.xml:9454 msgid "" "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 listening transaction:" +"proposed, an Internet radio station (but not a terrestrial radio station) " +"would have to collect the following data from <emphasis>every listening " +"transaction</emphasis>:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9524 +#: freeculture.xml:9462 msgid "name of the service;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9527 +#: freeculture.xml:9465 msgid "channel of the program (AM/FM stations use station ID);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9530 +#: freeculture.xml:9468 msgid "type of program (archived/looped/live);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9533 +#: freeculture.xml:9471 msgid "date of transmission;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9536 +#: freeculture.xml:9474 msgid "time of transmission;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9539 +#: freeculture.xml:9477 msgid "time zone of origination of transmission;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9542 +#: freeculture.xml:9480 msgid "numeric designation of the place of the sound recording within the program;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9545 +#: freeculture.xml:9483 msgid "duration of transmission (to nearest second);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9548 +#: freeculture.xml:9486 msgid "sound recording title;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9551 +#: freeculture.xml:9489 msgid "ISRC code of the recording;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9554 +#: freeculture.xml:9492 msgid "" "release year of the album per copyright notice and in the case of " "compilation albums, the release year of the album and copy- right date of " @@ -11982,87 +12376,88 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9557 +#: freeculture.xml:9495 msgid "featured recording artist;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9560 +#: freeculture.xml:9498 msgid "retail album title;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9563 +#: freeculture.xml:9501 msgid "recording label;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9566 +#: freeculture.xml:9504 msgid "UPC code of the retail album;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9569 +#: freeculture.xml:9507 msgid "catalog number;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9572 +#: freeculture.xml:9510 msgid "copyright owner information;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9575 +#: freeculture.xml:9513 msgid "musical genre of the channel or program (station format);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9578 +#: freeculture.xml:9516 msgid "name of the service or entity;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9581 +#: freeculture.xml:9519 msgid "channel or program;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9584 +#: freeculture.xml:9522 msgid "date and time that the user logged in (in the user's time zone);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9587 +#: freeculture.xml:9525 msgid "date and time that the user logged out (in the user's time zone);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9590 +#: freeculture.xml:9528 msgid "time zone where the signal was received (user);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9593 +#: freeculture.xml:9531 msgid "Unique User identifier;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:9596 +#: freeculture.xml:9534 msgid "the country in which the user received the transmissions." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9601 +#: freeculture.xml:9539 msgid "" "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 basic difference " "between Internet radio and terrestrial radio remains: Internet radio has to " -"pay a type of copyright fee that terrestrial radio does not." +"pay a <emphasis>type of copyright fee</emphasis> that terrestrial radio does " +"not." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9609 +#: freeculture.xml:9547 msgid "" "Why? What justifies this difference? Was there any study of the economic " "consequences from Internet radio that would justify these differences? Was " @@ -12070,7 +12465,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9615 +#: freeculture.xml:9553 msgid "" "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 " @@ -12079,7 +12474,7 @@ msgstr "" #. PAGE BREAK 208 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:9621 +#: freeculture.xml:9559 msgid "" "The RIAA, which was representing the record labels, presented some testimony " "about what they thought a willing buyer would pay to a willing seller, and " @@ -12093,16 +12488,16 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:9637 +#: freeculture.xml:9575 msgid "" "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 added.)" +"with thousands of webcasters, <emphasis>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>.\" (Emphasis added.)" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9644 +#: freeculture.xml:9583 msgid "" "Translation: The aim is to use the law to eliminate competition, so that " "this platform of potentially immense competition, which would cause the " @@ -12113,12 +12508,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:9654 +#: freeculture.xml:9593 msgid "Corrupting Citizens" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9656 +#: freeculture.xml:9595 msgid "" "Overregulation stifles creativity. It smothers innovation. It gives " "dinosaurs a veto over the future. It wastes the extraordinary opportunity " @@ -12126,7 +12521,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9662 +#: freeculture.xml:9601 msgid "" "In addition to these important harms, there is one more that was important " "to our forebears, but seems forgotten today. Overregulation corrupts " @@ -12135,7 +12530,7 @@ msgstr "" #. f15. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9671 +#: freeculture.xml:9610 msgid "" "Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet " "and American Life Project (24 April 2001), available at <ulink " @@ -12146,32 +12541,32 @@ msgstr "" #. PAGE BREAK 209 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9667 +#: freeculture.xml:9606 msgid "" "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.<placeholder type=\"footnote\" id=\"0\"/> " -"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 RIAA launches lawsuits against not only the Napsters " -"and Kazaas of the world, but against students building search engines, and " -"increasingly against ordinary users downloading content, the technologies " -"for sharing will advance to further protect and hide illegal use. It is an " -"arms race or a civil war, with the extremes of one side inviting a more " -"extreme response by the other." +"of citizens. According to <citetitle>The New York Times</citetitle>, 43 " +"million Americans downloaded music in May 2002.<placeholder " +"type=\"footnote\" id=\"0\"/> 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 RIAA launches lawsuits against not " +"only the Napsters and Kazaas of the world, but against students building " +"search engines, and increasingly against ordinary users downloading content, " +"the technologies for sharing will advance to further protect and hide " +"illegal use. It is an arms race or a civil war, with the extremes of one " +"side inviting a more extreme response by the other." msgstr "" #. f16. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9705 +#: freeculture.xml:9644 msgid "" -"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" Los " -"Angeles Times, 10 September 2003, Business." +"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" " +"<citetitle>Los Angeles Times</citetitle>, 10 September 2003, Business." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9692 +#: freeculture.xml:9631 msgid "" "The content industry's tactics exploit the failings of the American legal " "system. When the RIAA brought suit against Jesse Jordan, it knew that in " @@ -12194,15 +12589,16 @@ msgstr "" #. f17. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9727 +#: freeculture.xml:9666 msgid "" "Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During " -"Prohibition,\" American Economic Review 81, no. 2 (1991): 242." +"Prohibition,\" <citetitle>American Economic Review</citetitle> 81, no. 2 " +"(1991): 242." msgstr "" #. f18. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9735 +#: freeculture.xml:9674 msgid "" "National Drug Control Policy: Hearing Before the House Government Reform " "Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John " @@ -12211,15 +12607,15 @@ msgstr "" #. f19. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9745 +#: freeculture.xml:9684 msgid "" "See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" " -"Journal of Economic Literature 36 (1998): 818 (survey of compliance " -"literature)." +"<citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey " +"of compliance literature)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9717 +#: freeculture.xml:9656 msgid "" "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 " @@ -12242,7 +12638,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9754 +#: freeculture.xml:9693 msgid "" "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 " @@ -12261,7 +12657,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9771 +#: freeculture.xml:9710 msgid "" "The response to this general illegality is either to enforce the law more " "severely or to change the law. We, as a society, have to learn how to make " @@ -12275,7 +12671,7 @@ msgstr "" #. PAGE BREAK 211 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9784 +#: freeculture.xml:9723 msgid "" "My point is not the idiotic one: Just because people violate a law, we " "should therefore repeal it. Obviously, we could reduce murder statistics " @@ -12285,7 +12681,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9791 +#: freeculture.xml:9730 msgid "" "My point is instead one that democracies understood for generations, but " "that we recently have learned to forget. The rule of law depends upon people " @@ -12302,7 +12698,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9805 +#: freeculture.xml:9744 msgid "" "When at least forty-three million citizens download content from the " "Internet, and when they use tools to combine that content in ways " @@ -12316,13 +12712,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9817 +#: freeculture.xml:9756 msgid "This abstract point can be made more clear with a particular example." msgstr "" #. PAGE BREAK 212 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9820 +#: freeculture.xml:9759 msgid "" "We all own CDs. Many of us still own phonograph records. These pieces of " "plastic encode music that in a certain sense we have bought. The law " @@ -12333,7 +12729,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9831 +#: freeculture.xml:9770 msgid "" "But as the MP3 craze has demonstrated, there is another use of phonograph " "records that is effectively free. Because these recordings were made without " @@ -12344,12 +12740,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:9839 +#: freeculture.xml:9778 msgid "Adromeda" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9841 +#: freeculture.xml:9780 msgid "" "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 " @@ -12363,7 +12759,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9852 +#: freeculture.xml:9791 msgid "" "This use is enabled by unprotected media—either CDs or records. But " "unprotected media also enable file sharing. File sharing threatens (or so " @@ -12376,7 +12772,7 @@ msgstr "" #. PAGE BREAK 213 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9862 +#: freeculture.xml:9801 msgid "" "If these technologies took off, then the building of large archives of your " "own music would become quite difficult. You might hang in hacker circles, " @@ -12390,7 +12786,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9876 +#: freeculture.xml:9815 msgid "" "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 " @@ -12402,7 +12798,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9885 +#: freeculture.xml:9824 msgid "" "My point just now is not to prove that there is such a system. I offer a " "version of such a system in the last chapter of this book. For now, the only " @@ -12415,7 +12811,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9896 +#: freeculture.xml:9835 msgid "" "I believe there is a way to assure that artists are paid without turning " "forty-three million Americans into felons. But the salient feature of this " @@ -12427,7 +12823,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9905 +#: freeculture.xml:9844 msgid "" "Except that this generation's buggy manufacturers have already saddled " "Congress, and are riding the law to protect themselves against this new form " @@ -12436,7 +12832,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9911 +#: freeculture.xml:9850 msgid "" "It is understandable why they choose as they do. It is not understandable " "why we as a democracy continue to choose as we do. Jack Valenti is charming; " @@ -12450,13 +12846,20 @@ msgid "" "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:9869 freeculture.xml:9978 +msgid "von Lohmann, Fred" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9928 -msgid "\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains," +#: freeculture.xml:9867 +msgid "" +"\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains, " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:9933 +#: freeculture.xml:9873 msgid "" "then all of a sudden a lot of basic civil liberty protections evaporate to " "one degree or another. . . . If you're a copyright infringer, how can you " @@ -12469,7 +12872,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9945 +#: freeculture.xml:9885 msgid "" "And the consequence of this transformation of the American public into " "criminals is that it becomes trivial, as a matter of due process, to " @@ -12477,7 +12880,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9950 +#: freeculture.xml:9890 msgid "" "Users of the Internet began to see this generally in 2003 as the RIAA " "launched its campaign to force Internet service providers to turn over the " @@ -12489,22 +12892,23 @@ msgstr "" #. f20. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9968 +#: freeculture.xml:9908 msgid "" "See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in " -"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 " -"September 2003, E1; Chris Cobbs, \"Worried Parents Pull Plug on File " -"`Stealing'; With the Music Industry Cracking Down on File Swapping, Parents " -"are Yanking Software from Home PCs to Avoid Being Sued,\" Orlando Sentinel " -"Tribune, 30 August 2003, C1; Jefferson Graham, \"Recording Industry Sues " -"Parents,\" USA Today, 15 September 2003, 4D; John Schwartz, \"She Says She's " -"No Music Pirate. No Snoop Fan, Either,\" New York Times, 25 September 2003, " -"C1; Margo Varadi, \"Is Brianna a Criminal?\" Toronto Star, 18 September " -"2003, P7." +"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" <citetitle>Washington " +"Post</citetitle>, 10 September 2003, E1; Chris Cobbs, \"Worried Parents Pull " +"Plug on File `Stealing'; With the Music Industry Cracking Down on File " +"Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued,\" " +"<citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; " +"Jefferson Graham, \"Recording Industry Sues Parents,\" <citetitle>USA " +"Today</citetitle>, 15 September 2003, 4D; John Schwartz, \"She Says She's No " +"Music Pirate. No Snoop Fan, Either,\" <citetitle>New York Times</citetitle>, " +"25 September 2003, C1; Margo Varadi, \"Is Brianna a Criminal?\" " +"<citetitle>Toronto Star</citetitle>, 18 September 2003, P7." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9959 +#: freeculture.xml:9899 msgid "" "The RIAA then expanded this campaign, by announcing a general strategy to " "sue individual users of the Internet who are alleged to have downloaded " @@ -12518,7 +12922,7 @@ msgstr "" #. f21. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:9986 +#: freeculture.xml:9926 msgid "" "See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some " "Methods Used,\" CNN.com, available at <ulink " @@ -12526,7 +12930,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9982 +#: freeculture.xml:9922 msgid "" "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 " @@ -12538,26 +12942,28 @@ msgstr "" #. f22. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:10007 -msgid "" -"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" Boston " -"Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, \"Four Students Sued over " -"Music Sites; Industry Group Targets File Sharing at Colleges,\" Washington " -"Post, 4 April 2003, E1; Elizabeth Armstrong, \"Students `Rip, Mix, Burn' at " -"Their Own Risk,\" Christian Science Monitor, 2 September 2003, 20; Robert " -"Becker and Angela Rozas, \"Music Pirate Hunt Turns to Loyola; Two Students " -"Names Are Handed Over; Lawsuit Possible,\" Chicago Tribune, 16 July 2003, " -"1C; Beth Cox, \"RIAA Trains Antipiracy Guns on Universities,\" Internet " -"News, 30 January 2003, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #48</ulink>; Benny Evangelista, " -"\"Download Warning 101: Freshman Orientation This Fall to Include Record " -"Industry Warnings Against File Sharing,\" San Francisco Chronicle, 11 August " -"2003, E11; \"Raid, Letters Are Weapons at Universities,\" USA Today, 26 " +#: freeculture.xml:9947 +msgid "" +"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" " +"<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank " +"Ahrens, \"Four Students Sued over Music Sites; Industry Group Targets File " +"Sharing at Colleges,\" <citetitle>Washington Post</citetitle>, 4 April 2003, " +"E1; Elizabeth Armstrong, \"Students `Rip, Mix, Burn' at Their Own Risk,\" " +"<citetitle>Christian Science Monitor</citetitle>, 2 September 2003, 20; " +"Robert Becker and Angela Rozas, \"Music Pirate Hunt Turns to Loyola; Two " +"Students Names Are Handed Over; Lawsuit Possible,\" <citetitle>Chicago " +"Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, \"RIAA Trains Antipiracy " +"Guns on Universities,\" <citetitle>Internet News</citetitle>, 30 January " +"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#48</ulink>; Benny Evangelista, \"Download Warning 101: Freshman Orientation " +"This Fall to Include Record Industry Warnings Against File Sharing,\" " +"<citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; \"Raid, " +"Letters Are Weapons at Universities,\" <citetitle>USA Today</citetitle>, 26 " "September 2000, 3D." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:9995 +#: freeculture.xml:9935 msgid "" "So imagine the following not-implausible scenario: Imagine a friend gives a " "CD to your daughter—a collection of songs just like the cassettes you " @@ -12573,9 +12979,8 @@ msgid "" "expelled." msgstr "" -#. PAGE BREAK 216 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:10026 +#: freeculture.xml:9966 msgid "" "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 " @@ -12584,11 +12989,12 @@ msgid "" "university might not believe her. It might treat 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," +"prohibition. This war is no different. Says von Lohmann, <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:10041 +#: freeculture.xml:9982 msgid "" "So when we're talking about numbers like forty to sixty million Americans " "that are essentially copyright infringers, you create a situation where the " @@ -12609,7 +13015,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:10061 +#: freeculture.xml:10002 msgid "" "When forty to sixty million Americans are considered \"criminals\" under the " "law, and when the law could achieve the same objective— securing " @@ -12620,12 +13026,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:10074 +#: freeculture.xml:10015 msgid "BALANCES" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:10078 +#: freeculture.xml:10019 msgid "" "So here's the picture: You're standing at the side of the road. Your car is " "on fire. You are angry and upset because in part you helped start the " @@ -12634,7 +13040,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:10084 +#: freeculture.xml:10025 msgid "" "As you ponder the mess, someone else comes along. In a panic, she grabs the " "bucket. Before you have a chance to tell her to stop—or before she " @@ -12644,7 +13050,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:10092 +#: freeculture.xml:10033 msgid "" "A war about copyright rages all around—and we're all focusing on the " "wrong thing. No doubt, current technologies threaten existing businesses. " @@ -12656,7 +13062,7 @@ msgstr "" #. PAGE BREAK 219 #. type: Content of: <book><chapter><para> -#: freeculture.xml:10101 +#: freeculture.xml:10042 msgid "" "Yet policy makers are not willing to leave this fire to itself. Primed with " "plenty of lobbyists' money, they are keen to intervene to eliminate the " @@ -12666,7 +13072,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:10109 +#: freeculture.xml:10050 msgid "" "Somehow we have to find a way to turn attention to this more important and " "fundamental issue. Somehow we have to find a way to avoid pouring gasoline " @@ -12674,7 +13080,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:10114 +#: freeculture.xml:10055 msgid "" "We have not found that way yet. Instead, we seem trapped in a simpler, " "binary view. However much many people push to frame this debate more " @@ -12683,7 +13089,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:10120 +#: freeculture.xml:10061 msgid "" "This challenge has been my life these last few years. It has also been my " "failure. In the two chapters that follow, I describe one small brace of " @@ -12692,12 +13098,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:10129 +#: freeculture.xml:10070 msgid "CHAPTER THIRTEEN: Eldred" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10131 +#: freeculture.xml:10072 msgid "" "In 1995, a father was frustrated that his daughters didn't seem to like " "Hawthorne. No doubt there was more than one such father, but at least one " @@ -12708,7 +13114,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10140 +#: freeculture.xml:10081 msgid "" "It didn't work—at least for his daughters. They didn't find Hawthorne " "any more interesting than before. But Eldred's experiment gave birth to a " @@ -12718,7 +13124,7 @@ msgstr "" #. PAGE BREAK 221 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10147 +#: freeculture.xml:10088 msgid "" "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 " @@ -12730,22 +13136,24 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10158 +#: freeculture.xml:10099 msgid "" "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 permission of the Hawthorne " -"estate or anyone else. Some, such as Dover Press and Penguin Classics, take " -"works from the public domain and produce printed editions, which they sell " -"in bookstores across the 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." +"as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> had passed " +"into the public domain in 1907. It was free for anyone to take without the " +"permission of the Hawthorne estate or anyone else. Some, such as Dover Press " +"and Penguin Classics, take works from the public domain and produce printed " +"editions, which they sell in bookstores across the country. Others, such as " +"Disney, take these stories and turn them into animated cartoons, sometimes " +"successfully (<citetitle>Cinderella</citetitle>), sometimes not " +"(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure " +"Planet</citetitle>). These are all commercial publications of public domain " +"works." msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10181 +#: freeculture.xml:10122 msgid "" "There's a parallel here with pornography that is a bit hard to describe, but " "it's a strong one. One phenomenon that the Internet created was a world of " @@ -12763,7 +13171,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10170 +#: freeculture.xml:10111 msgid "" "The Internet created the possibility of noncommercial publications of public " "domain works. Eldred's is just one example. There are literally thousands of " @@ -12777,23 +13185,24 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10198 +#: freeculture.xml:10139 msgid "" "As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection " -"of poems New Hampshire was slated to pass into the public domain. Eldred " -"wanted to post that collection in his free public library. But Congress got " -"in the way. As I described in chapter 10, in 1998, for the eleventh time in " -"forty years, Congress extended the terms of existing copyrights—this " -"time by twenty years. Eldred would not be free to add any works more recent " -"than 1923 to his collection until 2019. Indeed, no copyrighted work would " -"pass into the public domain until that year (and not even then, if Congress " -"extends the term again). By contrast, in the same period, more than 1 " -"million patents will pass into the public domain." +"of poems <citetitle>New Hampshire</citetitle> was slated to pass into the " +"public domain. Eldred wanted to post that collection in his free public " +"library. But Congress got in the way. As I described in chapter 10, in " +"1998, for the eleventh time in forty years, Congress extended the terms of " +"existing copyrights—this time by twenty years. Eldred would not be " +"free to add any works more recent than 1923 to his collection until 2019. " +"Indeed, no copyrighted work would pass into the public domain until that " +"year (and not even then, if Congress extends the term again). By contrast, " +"in the same period, more than 1 million patents will pass into the public " +"domain." msgstr "" #. f2. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10218 +#: freeculture.xml:10159 msgid "" "The full text is: \"Sonny [Bono] wanted the term of copyright protection to " "last forever. I am informed by staff that such a change would violate the " @@ -12805,7 +13214,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10213 +#: freeculture.xml:10154 msgid "" "This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in " "memory of the congressman and former musician Sonny Bono, who, his widow, " @@ -12814,7 +13223,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10229 +#: freeculture.xml:10170 msgid "" "Eldred decided to fight this law. He first resolved to fight it through " "civil disobedience. In a series of interviews, Eldred announced that he " @@ -12825,7 +13234,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10238 +#: freeculture.xml:10179 msgid "" "It was here that I became involved in Eldred's battle. I was a " "constitutional scholar whose first passion was constitutional " @@ -12835,7 +13244,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:10249 +#: freeculture.xml:10190 msgid "" "Congress has the power to promote the Progress of Science . . . by securing " "for limited Times to Authors . . . exclusive Right to their " @@ -12843,7 +13252,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10255 +#: freeculture.xml:10196 msgid "" "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 " @@ -12856,12 +13265,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> -#: freeculture.xml:10274 freeculture.xml:11728 +#: freeculture.xml:10215 freeculture.xml:11657 msgid "Jaszi, Peter" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10265 +#: freeculture.xml:10206 msgid "" "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 " @@ -12874,7 +13283,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10277 +#: freeculture.xml:10218 msgid "" "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 " @@ -12887,7 +13296,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10288 +#: freeculture.xml:10229 msgid "" "For this is the core of the corruption in our present system of " "government. \"Corruption\" not in the sense that representatives are " @@ -12899,7 +13308,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10297 +#: freeculture.xml:10238 msgid "" "If that's not obvious to you, consider the following: Say you're one of the " "very few lucky copyright owners whose copyright continues to make money one " @@ -12911,7 +13320,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10307 +#: freeculture.xml:10248 msgid "" "So imagine the Robert Frost estate is earning $100,000 a year from three of " "Frost's poems. And imagine the copyright for those poems is about to " @@ -12921,7 +13330,7 @@ msgstr "" #. PAGE BREAK 224 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10314 +#: freeculture.xml:10255 msgid "" "\"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 " @@ -12929,7 +13338,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10322 +#: freeculture.xml:10263 msgid "" "\"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 " @@ -12938,14 +13347,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10328 +#: freeculture.xml:10269 msgid "" "\"Hope?\" a fellow board member says. \"Can't we be doing something about " "it?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10332 +#: freeculture.xml:10273 msgid "" "\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the " "campaigns of a number of representatives to try to assure that they support " @@ -12953,7 +13362,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10337 +#: freeculture.xml:10278 msgid "" "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 " @@ -12961,7 +13370,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10343 +#: freeculture.xml:10284 msgid "" "\"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 " @@ -12970,14 +13379,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10349 +#: freeculture.xml:10290 msgid "" "You're a bit shocked by the number, but you quickly come to the correct " "conclusion:" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10353 +#: freeculture.xml:10294 msgid "" "\"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 " @@ -12985,7 +13394,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10359 +#: freeculture.xml:10300 msgid "" "\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute " "up to the `present value' of the income you expect from these " @@ -12994,7 +13403,7 @@ msgstr "" #. PAGE BREAK 225 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10365 +#: freeculture.xml:10306 msgid "" "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 beneficiary " @@ -13006,7 +13415,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10376 +#: freeculture.xml:10317 msgid "" "Thus a congressional perpetual motion machine: So long as legislation can be " "bought (albeit indirectly), there will be all the incentive in the world to " @@ -13015,16 +13424,16 @@ msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10389 +#: freeculture.xml:10329 msgid "" "Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse " -"Effort; Congress OKs Bill Granting Creators 20 More Years,\" Chicago " -"Tribune, 17 October 1998, 22." +"Effort; Congress OKs Bill Granting Creators 20 More Years,\" " +"<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22." msgstr "" #. f4. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10396 +#: freeculture.xml:10336 msgid "" "See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" " "available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>." @@ -13032,15 +13441,15 @@ msgstr "" #. f5. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10403 +#: freeculture.xml:10344 msgid "" -"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" Congressional " -"Quarterly This Week, 8 August 1990, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #50</ulink>." +"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" " +"<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #50</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10382 +#: freeculture.xml:10322 msgid "" "In the lobbying that led to the passage of the Sonny Bono Copyright Term " "Extension Act, this \"theory\" about incentives was proved real. Ten of the " @@ -13055,7 +13464,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10411 +#: freeculture.xml:10351 msgid "" "Constitutional law is not oblivious to the obvious. Or at least, it need not " "be. So when I was considering Eldred's complaint, this reality about the " @@ -13069,19 +13478,19 @@ msgstr "" #. PAGE BREAK 226 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10424 +#: freeculture.xml:10364 msgid "" -"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 the power of Congress when it has " -"viewed Congress's actions as exceeding the power granted to it by the " -"Constitution. Among constitutional scholars, the most famous example of this " -"trend was the Supreme Court's decision in 1995 to strike down a law that " -"banned the possession of guns near schools." +"It was also my judgment that <emphasis>this</emphasis> 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 the power of " +"Congress when it has viewed Congress's actions as exceeding the power " +"granted to it by the Constitution. Among constitutional scholars, the most " +"famous example of this trend was the Supreme Court's decision in 1995 to " +"strike down a law that banned the possession of guns near schools." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10437 +#: freeculture.xml:10377 msgid "" "Since 1937, the Supreme Court had interpreted Congress's granted powers very " "broadly; so, while the Constitution grants Congress the power to regulate " @@ -13091,7 +13500,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10447 +#: freeculture.xml:10387 msgid "" "As the economy grew, this standard increasingly meant that there was no " "limit to Congress's power to regulate, since just about every activity, when " @@ -13101,46 +13510,51 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10456 +#: freeculture.xml:10394 msgid "" "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 commerce. Guns near schools increase crime, " -"crime lowers property values, and so on. In the oral argument, the Chief " -"Justice asked the government whether there was any activity that would not " -"affect interstate commerce under the reasoning the government advanced. The " -"government said there was not; if Congress says an activity affects " -"interstate commerce, then that activity affects interstate commerce. The " -"Supreme Court, the government said, was not in the position to second-guess " -"Congress." +"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The " +"government had argued that possessing guns near schools affected interstate " +"commerce. Guns near schools increase crime, crime lowers property values, " +"and so on. In the oral argument, the Chief Justice asked the government " +"whether there was any activity that would not affect interstate commerce " +"under the reasoning the government advanced. The government said there was " +"not; if Congress says an activity affects interstate commerce, then that " +"activity affects interstate commerce. The Supreme Court, the government " +"said, was not in the position to second-guess Congress." msgstr "" #. f6. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10472 -msgid "United States v. Lopez, 514 U.S. 549, 564 (1995)." +#: freeculture.xml:10409 +msgid "" +"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 " +"U.S. 549, 564 (1995)." msgstr "" #. f7. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10478 -msgid "United States v. Morrison, 529 U.S. 598 (2000)." +#: freeculture.xml:10416 +msgid "" +"<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 " +"U.S. 598 (2000)." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10469 +#: freeculture.xml:10407 msgid "" "\"We pause to consider the implications of the government's arguments,\" the " "Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> 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.<placeholder type=\"footnote\" id=\"1\"/>" +"<citetitle>Lopez</citetitle> was reaffirmed five years later in " +"<citetitle>United States</citetitle> " +"v. <citetitle>Morrison</citetitle>.<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. f8. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10485 +#: freeculture.xml:10423 msgid "" "If it is a principle about enumerated powers, then the principle carries " "from one enumerated power to another. The animating point in the context of " @@ -13154,7 +13568,7 @@ msgstr "" #. PAGE BREAK 227 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10483 +#: freeculture.xml:10420 msgid "" "If a principle were at work here, then it should apply to the Progress " "Clause as much as the Commerce Clause.<placeholder type=\"footnote\" " @@ -13168,14 +13582,15 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10509 +#: freeculture.xml:10444 msgid "" -"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 " +"<emphasis>If</emphasis>, that is, the principle announced in " +"<citetitle>Lopez</citetitle> stood for a principle. Many believed the " +"decision in <citetitle>Lopez</citetitle> 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 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 " @@ -13183,35 +13598,36 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10523 +#: freeculture.xml:10457 msgid "" "Now let's pause for a moment to make sure we understand what the argument in " -"Eldred was not about. By insisting on the Constitution's limits to " -"copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious " -"sense, he was fighting a kind of piracy—piracy of the public " -"domain. When Robert Frost wrote his work and when Walt Disney created Mickey " -"Mouse, the maximum copyright term was just fifty-six years. Because of " -"interim changes, Frost and Disney had already enjoyed a seventy-five-year " -"monopoly for their work. They had gotten the benefit of the bargain that the " -"Constitution envisions: In exchange for a monopoly protected for fifty-six " -"years, they created new work. But now these entities were using their " -"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." +"<citetitle>Eldred</citetitle> was not about. By insisting on the " +"Constitution's limits to copyright, obviously Eldred was not endorsing " +"piracy. Indeed, in an obvious sense, he was fighting a kind of " +"piracy—piracy of the public domain. When Robert Frost wrote his work " +"and when Walt Disney created Mickey Mouse, the maximum copyright term was " +"just fifty-six years. Because of interim changes, Frost and Disney had " +"already enjoyed a seventy-five-year monopoly for their work. They had gotten " +"the benefit of the bargain that the Constitution envisions: In exchange for " +"a monopoly protected for fifty-six years, they created new work. But now " +"these entities were using their 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." msgstr "" #. f9. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10546 +#: freeculture.xml:10480 msgid "" -"Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 " -"U.S. 186 (2003) (No. 01-618), n.10, available at <ulink " +"Brief of the Nashville Songwriters Association, " +"<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. " +"186 (2003) (No. 01-618), n.10, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #51</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10541 +#: freeculture.xml:10474 msgid "" "Some people view the public domain with contempt. In their brief before the " "Supreme Court, the Nashville Songwriters Association wrote that the public " @@ -13223,7 +13639,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10556 +#: freeculture.xml:10490 msgid "" "As we've seen, our constitutional system requires limits on copyright as a " "way to assure that copyright holders do not too heavily influence the " @@ -13235,7 +13651,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10568 +#: freeculture.xml:10502 msgid "" "It is valuable copyrights that are responsible for terms being extended. " "Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for " @@ -13249,16 +13665,17 @@ msgstr "" #. f10. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10589 +#: freeculture.xml:10523 msgid "" "The figure of 2 percent is an extrapolation from the study by the " "Congressional Research Service, in light of the estimated renewal " -"ranges. See Brief of Petitioners, Eldred v. Ashcroft, 7, available at <ulink " +"ranges. See Brief of Petitioners, <citetitle>Eldred</citetitle> " +"v. <citetitle>Ashcroft</citetitle>, 7, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #52</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10583 +#: freeculture.xml:10517 msgid "" "If you look at the work created in the first twenty years (1923 to 1942) " "affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that " @@ -13270,7 +13687,7 @@ msgstr "" #. PAGE BREAK 229 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10598 +#: freeculture.xml:10532 msgid "" "Think practically about the consequence of this extension—practically, " "as a businessperson, and not as a lawyer eager for more legal work. In 1930, " @@ -13281,7 +13698,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10610 +#: freeculture.xml:10544 msgid "" "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 " @@ -13292,14 +13709,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10618 +#: freeculture.xml:10552 msgid "" "Then for the books still under copyright, you would need to locate the " "current copyright owners. How would you do that?" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10622 +#: freeculture.xml:10556 msgid "" "Most people think that there must be a list of these copyright owners " "somewhere. Practical people think this way. How could there be thousands and " @@ -13307,7 +13724,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10629 +#: freeculture.xml:10563 msgid "" "But there is no list. There may be a name from 1930, and then in 1959, of " "the person who registered the copyright. But just think practically about " @@ -13317,26 +13734,26 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10638 +#: freeculture.xml:10572 msgid "" "\"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?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10644 +#: freeculture.xml:10577 msgid "" -"Well, actually, if you think about it, there are plenty of lists of who owns " -"what property. Think about deeds on houses, or titles to cars. And where " -"there isn't a list, the code of real space is pretty good at suggesting who " -"the owner of a bit of property is. (A swing set in your backyard is probably " -"yours.) So formally or informally, we have a pretty good way to know who " -"owns what tangible property." +"Well, actually, if you think about it, there <emphasis>are</emphasis> plenty " +"of lists of who owns what property. Think about deeds on houses, or titles " +"to cars. And where there isn't a list, the code of real space is pretty " +"good at suggesting who the owner of a bit of property is. (A swing set in " +"your backyard is probably yours.) So formally or informally, we have a " +"pretty good way to know who owns what tangible property." msgstr "" #. PAGE BREAK 230 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10653 +#: freeculture.xml:10586 msgid "" "So: You walk down a street and see a house. You can know who owns the house " "by looking it up in the courthouse registry. If you see a car, there is " @@ -13350,7 +13767,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10668 +#: freeculture.xml:10601 msgid "" "Compare this story to intangible property. You go into a library. The " "library owns the books. But who owns the copyrights? As I've already " @@ -13364,7 +13781,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10680 +#: freeculture.xml:10613 msgid "" "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 " @@ -13372,36 +13789,43 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:10685 +#: freeculture.xml:10618 msgid "Agee, Michael" msgstr "" #. f11. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10698 +#: freeculture.xml:10631 msgid "" -"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" Los " -"Angeles Times, 6 October 2002; David Streitfeld, \"Classic Movies, Songs, " -"Books at Stake; Supreme Court Hears Arguments Today on Striking Down " -"Copyright Extension,\" Orlando Sentinel Tribune, 9 October 2002." +"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" " +"<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, " +"\"Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today " +"on Striking Down Copyright Extension,\" <citetitle>Orlando Sentinel " +"Tribune</citetitle>, 9 October 2002." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:10637 +msgid "Lucky Dog, The" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10687 +#: freeculture.xml:10620 msgid "" "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 made between " -"1921 and 1951. Only one of these films, The Lucky Dog, is 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 videocassettes and 50,000 DVDs of the duo's " -"silent films.\"<placeholder type=\"footnote\" id=\"0\"/>" +"1921 and 1951. Only one of these films, <citetitle>The Lucky " +"Dog</citetitle>, is 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 " +"videocassettes and 50,000 DVDs of the duo's silent films.\"<placeholder " +"type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10706 +#: freeculture.xml:10640 msgid "" "Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this " "culture: selflessness. He argued in a brief before the Supreme Court that " @@ -13411,7 +13835,7 @@ msgstr "" #. PAGE BREAK 231 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10712 +#: freeculture.xml:10646 msgid "" "His argument is straightforward. A tiny fraction of this work has any " "continuing commercial value. The rest—to the extent it survives at " @@ -13423,17 +13847,19 @@ msgstr "" #. f12. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10729 +#: freeculture.xml:10664 msgid "" "Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the " -"Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618), 12. See " -"also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet " -"Archive, Eldred v. Ashcroft, available at <ulink " +"Petitoners, <citetitle>Eldred</citetitle> " +"v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01- 618), " +"12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the " +"Internet Archive, <citetitle>Eldred</citetitle> " +"v. <citetitle>Ashcroft</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #53</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10723 +#: freeculture.xml:10657 msgid "" "We can't know the benefits, but we do know a lot about the costs. For most " "of the history of film, the costs of restoring film were very high; digital " @@ -13444,7 +13870,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10739 +#: freeculture.xml:10674 msgid "" "Restoration technology is not the only cost, nor the most important. " "Lawyers, too, are a cost, and increasingly, a very important one. In " @@ -13454,17 +13880,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10747 +#: freeculture.xml:10682 msgid "" -"Or more accurately, owners. As we've seen, there isn't only a single " -"copyright associated with a film; there are many. There isn't a single " -"person whom you can contact about those 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." +"Or more accurately, <emphasis>owners</emphasis>. As we've seen, there isn't " +"only a single copyright associated with a film; there are many. There isn't " +"a single person whom you can contact about those 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." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10756 +#: freeculture.xml:10690 msgid "" "\"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 " @@ -13479,7 +13906,7 @@ msgstr "" #. PAGE BREAK 232 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10767 +#: freeculture.xml:10701 msgid "" "For some films, the benefit of releasing the film may well exceed these " "costs. But for the vast majority of them, there is no way the benefit would " @@ -13489,7 +13916,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10777 +#: freeculture.xml:10711 msgid "" "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 " @@ -13498,7 +13925,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10785 +#: freeculture.xml:10719 msgid "" "Of all the creative work produced by humans anywhere, a tiny fraction has " "continuing commercial value. For that tiny fraction, the copyright is a " @@ -13508,7 +13935,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10794 +#: freeculture.xml:10728 msgid "" "But even for that tiny fraction, the actual time during which the creative " "work has a commercial life is extremely short. As I've indicated, most books " @@ -13519,7 +13946,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10804 +#: freeculture.xml:10738 msgid "" "Yet that doesn't mean the life of the creative work ends. We don't keep " "libraries of books in order to compete with Barnes & Noble, and we don't " @@ -13533,7 +13960,7 @@ msgstr "" #. PAGE BREAK 233 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10817 +#: freeculture.xml:10751 msgid "" "Copyrights in this context do not drive an engine of free expression. In " "this context, there is no need for an exclusive right. Copyrights in this " @@ -13541,20 +13968,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10824 +#: freeculture.xml:10758 msgid "" "Yet, for most of our history, they also did little harm. For most of our " "history, when a work ended its commercial life, there was no " -"copyright-related use that would be inhibited by an exclusive right. When a " -"book went out of print, you could not buy it from a publisher. But you " -"could still buy it from a used book store, and when a used book store sells " -"it, in America, at least, there is no need to pay the copyright owner " -"anything. Thus, the ordinary use of a book after its commercial life ended " -"was a use that was independent of copyright law." +"<emphasis>copyright-related use</emphasis> that would be inhibited by an " +"exclusive right. When a book went out of print, you could not buy it from a " +"publisher. But you could still buy it from a used book store, and when a " +"used book store sells it, in America, at least, there is no need to pay the " +"copyright owner anything. Thus, the ordinary use of a book after its " +"commercial life ended was a use that was independent of copyright law." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10834 +#: freeculture.xml:10769 msgid "" "The same was effectively true of film. Because the costs of restoring a " "film—the real economic costs, not the lawyer costs—were so high, " @@ -13565,7 +13992,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10843 +#: freeculture.xml:10778 msgid "" "In other words, though copyright has been relatively short for most of our " "history, long copyrights wouldn't have mattered for the works that lost " @@ -13574,12 +14001,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10849 +#: freeculture.xml:10784 msgid "But this situation has now changed." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10852 +#: freeculture.xml:10787 msgid "" "One crucially important consequence of the emergence of digital technologies " "is to enable the archive that Brewster Kahle dreams of. Digital " @@ -13594,7 +14021,7 @@ msgstr "" #. PAGE BREAK 234 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10865 +#: freeculture.xml:10800 msgid "" "And now copyright law does get in the way. Every step of producing this " "digital archive of our culture infringes on the exclusive right of " @@ -13607,20 +14034,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10875 +#: freeculture.xml:10810 msgid "" "Here is the core of the harm that comes from extending terms: Now that " "technology enables us to rebuild the library of Alexandria, the law gets in " -"the way. And it doesn't get in the way for any useful copyright purpose, for " -"the purpose of copyright is to enable the commercial market that spreads " -"culture. No, we are talking about culture after it has lived its commercial " -"life. In this context, copyright is serving no purpose at all related to the " -"spread of knowledge. In this context, copyright is not an engine of free " +"the way. And it doesn't get in the way for any useful " +"<emphasis>copyright</emphasis> purpose, for the purpose of copyright is to " +"enable the commercial market that spreads culture. No, we are talking about " +"culture after it has lived its commercial life. In this context, copyright " +"is serving no purpose <emphasis>at all</emphasis> related to the spread of " +"knowledge. In this context, copyright is not an engine of free " "expression. Copyright is a brake." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10886 +#: freeculture.xml:10821 msgid "" "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 " @@ -13628,7 +14056,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10892 +#: freeculture.xml:10827 msgid "" "Maybe. Someday. But there is absolutely no evidence to suggest that " "publishers would be as complete as libraries. If Barnes & Noble offered " @@ -13642,7 +14070,7 @@ msgstr "" #. f13. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:10915 +#: freeculture.xml:10850 msgid "" "Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 " "December 2002, available at <ulink " @@ -13650,7 +14078,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10903 +#: freeculture.xml:10838 msgid "" "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 " @@ -13664,7 +14092,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10922 +#: freeculture.xml:10857 msgid "" "In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal " "district court in Washington, D.C., asking the court to declare the Sonny " @@ -13675,7 +14103,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10930 +#: freeculture.xml:10865 msgid "" "The district court dismissed our claims without even hearing an argument. A " "panel of the Court of Appeals for the D.C. Circuit also dismissed our " @@ -13685,7 +14113,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10937 +#: freeculture.xml:10872 msgid "" "Judge David Sentelle said the CTEA violated the requirement that copyrights " "be for \"limited Times\" only. His argument was as elegant as it was simple: " @@ -13698,7 +14126,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10948 +#: freeculture.xml:10883 msgid "" "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 " @@ -13708,7 +14136,7 @@ msgstr "" #. PAGE BREAK 236 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10954 +#: freeculture.xml:10889 msgid "" "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 " @@ -13718,7 +14146,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10963 +#: freeculture.xml:10898 msgid "" "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 " @@ -13728,7 +14156,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10970 +#: freeculture.xml:10905 msgid "" "But in February 2002, the Supreme Court surprised the world by granting our " "petition to review the D.C. Circuit opinion. Argument was set for October of " @@ -13736,7 +14164,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10976 +#: freeculture.xml:10911 msgid "" "It is over a year later as I write these words. It is still astonishingly " "hard. If you know anything at all about this story, you know that we lost " @@ -13749,7 +14177,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10986 +#: freeculture.xml:10921 msgid "" "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 " @@ -13757,13 +14185,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:10991 freeculture.xml:11005 +#: freeculture.xml:10926 freeculture.xml:10940 msgid "Steward, Geoffrey" msgstr "" #. PAGE BREAK 237 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:10993 +#: freeculture.xml:10928 msgid "" "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 " @@ -13775,17 +14203,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11003 freeculture.xml:11342 freeculture.xml:11356 freeculture.xml:11450 freeculture.xml:11672 freeculture.xml:11703 freeculture.xml:11789 +#: freeculture.xml:10938 freeculture.xml:11278 freeculture.xml:11293 freeculture.xml:11386 freeculture.xml:11600 freeculture.xml:11631 freeculture.xml:11719 msgid "Ayer, Don" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11004 +#: freeculture.xml:10939 msgid "Bromberg, Dan" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11007 +#: freeculture.xml:10942 msgid "" "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 " @@ -13798,7 +14226,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11017 +#: freeculture.xml:10952 msgid "" "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 " @@ -13819,7 +14247,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11038 +#: freeculture.xml:10973 msgid "" "In any case, I thought, the Court must already see the danger and the harm " "caused by this sort of law. Why else would they grant review? There was no " @@ -13830,7 +14258,7 @@ msgstr "" #. PAGE BREAK 238 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11046 +#: freeculture.xml:10981 msgid "" "There was one way, however, in which I felt politics would matter and in " "which I thought a response was appropriate. I was convinced that the Court " @@ -13841,15 +14269,25 @@ msgid "" "the case was not to demonstrate how bad the Sonny Bono Act was but to " "demonstrate that it was unconstitutional, my hope was to make this argument " "against a background of briefs that covered the full range of political " -"views. To show that this claim against the CTEA was grounded in law and not " -"politics, then, we tried to gather 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." +"views. To show that this claim against the CTEA was grounded in " +"<emphasis>law</emphasis> and not politics, then, we tried to gather 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:11012 freeculture.xml:11035 +msgid "Eagle Forum" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:11013 +msgid "Schlafly, Phyllis" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11065 +#: freeculture.xml:11000 msgid "" "The first step happened all by itself. Phyllis Schlafly's organization, " "Eagle Forum, had been an opponent of the CTEA from the very beginning. " @@ -13862,11 +14300,12 @@ msgid "" "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." +"Schlafly argued. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " +"type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11081 +#: freeculture.xml:11016 msgid "" "In the Court of Appeals, Eagle Forum was eager to file a brief supporting " "our position. Their brief made the argument that became the core claim in " @@ -13875,9 +14314,8 @@ msgid "" "conservative argument persuaded a strong conservative judge, Judge Sentelle." msgstr "" -#. PAGE BREAK 239 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11090 +#: freeculture.xml:11024 msgid "" "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 Software " @@ -13886,11 +14324,12 @@ msgid "" "were two law professors' briefs, one by 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." +"was a new brief by Eagle Forum, repeating and strengthening its arguments. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11103 +#: freeculture.xml:11038 msgid "" "Those briefs framed a legal argument. Then to support the legal argument, " "there were a number of powerful briefs by libraries and archives, including " @@ -13899,7 +14338,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11109 +#: freeculture.xml:11044 msgid "" "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 " @@ -13908,32 +14347,32 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11115 +#: freeculture.xml:11050 msgid "Akerlof, George" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11116 +#: freeculture.xml:11051 msgid "Arrow, Kenneth" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11117 +#: freeculture.xml:11052 msgid "Buchanan, James" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11118 +#: freeculture.xml:11053 msgid "Coase, Ronald" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11119 +#: freeculture.xml:11054 msgid "Friedman, Milton" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11121 +#: freeculture.xml:11056 msgid "" "This economists' brief was signed by seventeen economists, including five " "Nobel Prize winners, including Ronald Coase, James Buchanan, Milton " @@ -13946,9 +14385,13 @@ msgid "" "wild." msgstr "" -#. PAGE BREAK 240 +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:11079 freeculture.xml:11092 freeculture.xml:11284 freeculture.xml:11636 +msgid "Fried, Charles" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11132 +#: freeculture.xml:11067 msgid "" "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 " @@ -13958,11 +14401,12 @@ msgid "" "history with a series of seminal victories in the Supreme Court defending " "individual rights; my colleague and dean, 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." +"Amendment strategy; and finally, former solicitor general Charles Fried. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11146 +#: freeculture.xml:11082 msgid "" "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 " @@ -13972,11 +14416,12 @@ msgid "" "Court. He had helped craft the line of cases that limited Congress's power " "in the context of the Commerce Clause. And while he had argued many " "positions in the Supreme Court that I personally disagreed with, his joining " -"the cause was a vote of confidence in our argument." +"the cause was a vote of confidence in our argument. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11158 +#: freeculture.xml:11095 msgid "" "The government, in defending the statute, had its collection of friends, as " "well. Significantly, however, none of these \"friends\" included historians " @@ -13985,7 +14430,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11165 +#: freeculture.xml:11102 msgid "" "The media companies were not surprising. They had the most to gain from the " "law. The congressmen were not surprising either—they were defending " @@ -13997,23 +14442,27 @@ msgstr "" #. f14. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:11181 +#: freeculture.xml:11118 msgid "" -"Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. " -"(2003) (No. 01-618), 19." +"Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> " +"v. <citetitle>Ashcroft</citetitle>, 537 U.S. (2003) (No. 01-618), 19." msgstr "" #. f15. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:11189 +#: freeculture.xml:11126 msgid "" "Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins " -"the Fray,\" New York Times, 28 March 1998, B7." +"the Fray,\" <citetitle>New York Times</citetitle>, 28 March 1998, B7." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:11133 +msgid "Gershwin, George" msgstr "" -#. PAGE BREAK 241 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11174 +#: freeculture.xml:11111 msgid "" "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 " @@ -14022,14 +14471,15 @@ msgid "" "drugs or to create pornography.\"<placeholder type=\"footnote\" id=\"0\"/> " "That was also the motive of the Gershwin estate, which defended its " "\"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.<placeholder type=\"footnote\" id=\"1\"/> That's their view of how this " -"part of American culture should be controlled, and they wanted this law to " -"help them effect that control." +"license <citetitle>Porgy and Bess</citetitle> to anyone who refuses to use " +"African Americans in the cast.<placeholder type=\"footnote\" id=\"1\"/> " +"That's their view of how this part of American culture should be controlled, " +"and they wanted this law to help them effect that control. <placeholder " +"type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11199 +#: freeculture.xml:11136 msgid "" "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 " @@ -14044,7 +14494,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11211 +#: freeculture.xml:11148 msgid "" "We argued as much in a final brief. Not only would upholding the CTEA mean " "that there was no limit to the power of Congress to extend " @@ -14056,25 +14506,26 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11220 +#: freeculture.xml:11157 msgid "" "The Supreme Court was divided into two important camps. One camp we called " "\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives " "included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice " "Kennedy, and Justice Thomas. These five had been the most consistent in " "limiting Congress's power. They were the five who had supported the " -"Lopez/Morrison line of cases that said that an enumerated power had to be " -"interpreted to assure that Congress's powers had limits." +"<citetitle>Lopez/Morrison</citetitle> line of cases that said that an " +"enumerated power had to be interpreted to assure that Congress's powers had " +"limits." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11229 freeculture.xml:11253 freeculture.xml:11601 freeculture.xml:11613 +#: freeculture.xml:11166 freeculture.xml:11190 freeculture.xml:11529 freeculture.xml:11541 msgid "Breyer, Stephen" msgstr "" #. PAGE BREAK 242 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11231 +#: freeculture.xml:11168 msgid "" "The Rest were the four Justices who had strongly opposed limits on " "Congress's power. These four—Justice Stevens, Justice Souter, Justice " @@ -14087,7 +14538,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11243 +#: freeculture.xml:11180 msgid "" "In particular, the least likely was Justice Ginsburg's. In addition to her " "general view about deference to Congress (except where issues of gender are " @@ -14100,7 +14551,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11255 +#: freeculture.xml:11192 msgid "" "Close behind Justice Ginsburg were two justices whom we also viewed as " "unlikely allies, though possible surprises. Justice Souter strongly favored " @@ -14110,7 +14561,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11263 +#: freeculture.xml:11200 msgid "" "The only vote we could be confident about was that of Justice " "Stevens. History will record Justice Stevens as one of the greatest judges " @@ -14121,7 +14572,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11271 +#: freeculture.xml:11208 msgid "" "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 " @@ -14134,20 +14585,22 @@ msgstr "" #. PAGE BREAK 243 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11281 +#: freeculture.xml:11218 msgid "" "This then was the core of our strategy—a strategy for which I am " -"responsible. We would get the Court to see that just as with the Lopez case, " -"under the government's argument here, Congress would always have unlimited " -"power to extend existing terms. If anything was plain about Congress's power " -"under the Progress Clause, it was that this power was supposed to be " -"\"limited.\" Our aim would be to get the Court to reconcile Eldred with " -"Lopez: If Congress's power to regulate commerce was limited, then so, too, " -"must Congress's power to regulate copyright be limited." +"responsible. We would get the Court to see that just as with the " +"<citetitle>Lopez</citetitle> case, under the government's argument here, " +"Congress would always have unlimited power to extend existing terms. If " +"anything was plain about Congress's power under the Progress Clause, it was " +"that this power was supposed to be \"limited.\" Our aim would be to get the " +"Court to reconcile <citetitle>Eldred</citetitle> with " +"<citetitle>Lopez</citetitle>: If Congress's power to regulate commerce was " +"limited, then so, too, must Congress's power to regulate copyright be " +"limited." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11294 +#: freeculture.xml:11232 msgid "" "The argument on the government's side came down to this: Congress has done " "it before. It should be allowed to do it again. The government claimed that " @@ -14157,7 +14610,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11303 +#: freeculture.xml:11239 msgid "" "There was some truth to the government's claim, but not much. We certainly " "agreed that Congress had extended existing terms in and in 1909. And of " @@ -14167,7 +14620,7 @@ msgstr "" #. PAGE BREAK 244 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11310 +#: freeculture.xml:11246 msgid "" "But this \"consistency\" should be kept in perspective. Congress extended " "existing terms once in the first hundred years of the Republic. It then " @@ -14185,7 +14638,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11333 +#: freeculture.xml:11269 msgid "" "I was convinced that to win, I had to keep the Court focused on a single " "point: that if this extension is permitted, then there is no limit to the " @@ -14196,16 +14649,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11344 +#: freeculture.xml:11280 msgid "" "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:" +"of the moot, he let his concern speak: <placeholder type=\"indexterm\" " +"id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11350 +#: freeculture.xml:11287 msgid "" "\"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 " @@ -14216,7 +14670,7 @@ msgstr "" #. PAGE BREAK 245 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11358 +#: freeculture.xml:11295 msgid "" "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 " @@ -14234,7 +14688,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11375 +#: freeculture.xml:11312 msgid "" "Not everyone has to wait in line. People who know the Justices can ask for " "seats they control. (I asked Justice Scalia's chambers for seats for my " @@ -14250,7 +14704,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11390 +#: freeculture.xml:11327 msgid "" "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 " @@ -14259,14 +14713,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11396 +#: freeculture.xml:11333 msgid "" "Justice O'Connor stopped me within one minute of my opening. The history " "was bothering her." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11401 +#: freeculture.xml:11338 msgid "" "justice o'connor: Congress has extended the term so often through the years, " "and if you are right, don't we run the risk of upsetting previous extensions " @@ -14275,7 +14729,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11408 +#: freeculture.xml:11345 msgid "" "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 " @@ -14284,7 +14738,7 @@ msgstr "" #. PAGE BREAK 246 #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11414 +#: freeculture.xml:11351 msgid "" "mr. lessig: Well, if it flies in the face of what the framers had in mind, " "then the question is, is there a way of interpreting their words that gives " @@ -14292,14 +14746,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11422 +#: freeculture.xml:11359 msgid "" "There were two points in this argument when I should have seen where the " "Court was going. The first was a question by Justice Kennedy, who observed," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11428 +#: freeculture.xml:11365 msgid "" "justice kennedy: Well, I suppose implicit in the argument that the '76 act, " "too, should have been declared void, and that we might leave it alone " @@ -14309,14 +14763,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11436 +#: freeculture.xml:11373 msgid "" "Here follows my clear mistake. Like a professor correcting a student, I " "answered," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11442 +#: freeculture.xml:11379 msgid "" "mr. lessig: Justice, we are not making an empirical claim at all. Nothing " "in our Copyright Clause claim hangs upon the empirical assertion about " @@ -14326,7 +14780,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11452 +#: freeculture.xml:11388 msgid "" "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 " @@ -14336,30 +14790,30 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11459 +#: freeculture.xml:11395 msgid "" "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." +"crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> " +"ruling, and we hoped that he would see this case as its second cousin." msgstr "" #. PAGE BREAK 247 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11464 +#: freeculture.xml:11400 msgid "" "It was clear a second into his question that he wasn't at all sympathetic. " "To him, we were a bunch of anarchists. As he asked:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11472 +#: freeculture.xml:11407 msgid "" "chief justice: Well, but you want more than that. You want the right to copy " "verbatim other people's books, don't you?" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11476 +#: freeculture.xml:11411 msgid "" "mr. lessig: We want the right to copy verbatim works that should be in the " "public domain and would be in the public domain but for a statute that " @@ -14368,7 +14822,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11485 +#: freeculture.xml:11420 msgid "" "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 " @@ -14376,7 +14830,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11491 +#: freeculture.xml:11426 msgid "" "justice scalia: You say that the functional equivalent of an unlimited time " "would be a violation [of the Constitution], but that's precisely the " @@ -14385,7 +14839,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11500 +#: freeculture.xml:11434 msgid "" "When Olson was finished, it was my turn to give a closing rebuttal. Olson's " "flailing had revived my anger. But my anger still was directed to the " @@ -14401,7 +14855,7 @@ msgstr "" #. PAGE BREAK 248 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11513 +#: freeculture.xml:11447 msgid "" "As I left the court that day, I knew there were a hundred points I wished I " "could remake. There were a hundred questions I wished I had answered " @@ -14409,7 +14863,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11521 +#: freeculture.xml:11455 msgid "" "The government had been asked over and over again, what is the limit? Over " "and over again, it had answered there is no limit. This was precisely the " @@ -14426,7 +14880,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11540 +#: freeculture.xml:11470 msgid "" "The morning of January 15, 2003, I was five minutes late to the office and " "missed the 7:00 A.M. call from the Supreme Court clerk. Listening to the " @@ -14436,7 +14890,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11547 +#: freeculture.xml:11477 msgid "" "A few seconds later, the opinions arrived by e-mail. I took the phone off " "the hook, posted an announcement to our blog, and sat down to see where I " @@ -14444,25 +14898,26 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11552 +#: freeculture.xml:11482 msgid "" -"My reasoning. Here was a case that pitted all the money in the world against " -"reasoning. And here was the last naïve law professor, scouring the pages, " -"looking for reasoning." +"My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money " +"in the world against <emphasis>reasoning</emphasis>. And here was the last " +"naïve law professor, scouring the pages, looking for reasoning." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11557 +#: freeculture.xml:11488 msgid "" "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." +"principle in this case from the principle in " +"<citetitle>Lopez</citetitle>. 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." msgstr "" #. PAGE BREAK 249 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11568 +#: freeculture.xml:11497 msgid "" "Justice Ginsburg simply ignored the enumerated powers argument. Consistent " "with her view that Congress's power was not limited generally, she had found " @@ -14470,29 +14925,30 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11574 +#: freeculture.xml:11502 msgid "" "Her opinion was perfectly reasonable—for her, and for Justice " -"Souter. Neither believes in Lopez. It would be too much to expect them to " -"write an opinion that recognized, much less explained, the doctrine they had " -"worked so hard to defeat." +"Souter. Neither believes in <citetitle>Lopez</citetitle>. It would be too " +"much to expect them to write an opinion that recognized, much less " +"explained, the doctrine they had worked so hard to defeat." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11580 +#: freeculture.xml:11508 msgid "" "But as I realized what had happened, I couldn't quite believe what I was " "reading. I had said there was no way this Court could reconcile limited " "powers with the Commerce Clause and unlimited powers with the Progress " "Clause. It had never even occurred to me that they could reconcile the two " -"simply by not addressing the 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." +"simply <emphasis>by not addressing the argument</emphasis>. There was no " +"inconsistency because they would not talk about the two together. There was " +"therefore no principle that followed from the <citetitle>Lopez</citetitle> " +"case: In that context, Congress's power would be limited, but in this " +"context it would not." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11591 +#: freeculture.xml:11519 msgid "" "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 " @@ -14505,7 +14961,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11603 +#: freeculture.xml:11531 msgid "" "Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion " "was crafted internal to the law: He argued that the tradition of " @@ -14520,7 +14976,7 @@ msgstr "" #. PAGE BREAK 250 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11616 +#: freeculture.xml:11544 msgid "" "Justice Breyer's opinion, perhaps the best opinion he has ever written, was " "external to the Constitution. He argued that the term of copyrights has " @@ -14533,17 +14989,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11627 +#: freeculture.xml:11555 msgid "" "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 anyone having " -"addressed the argument that we had carried from Judge Sentelle. It was " -"Hamlet without the Prince." +"neither believed in the <citetitle>Lopez</citetitle> case, neither was " +"willing to push it as a reason to reject this extension. The case was " +"decided without anyone having addressed the argument that we had carried " +"from Judge Sentelle. It was <citetitle>Hamlet</citetitle> without the " +"Prince." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11634 +#: freeculture.xml:11562 msgid "" "Defeat brings depression. They say it is a sign of health when depression " "gives way to anger. My anger came quickly, but it didn't cure the " @@ -14551,23 +15008,24 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11639 +#: freeculture.xml:11567 msgid "" "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 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?" +"thing for them to have explained why the principle of " +"<citetitle>Lopez</citetitle> 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 " +"first understand the framers' text, interpreted in their context, in light " +"of the structure of the Constitution. That method had produced " +"<citetitle>Lopez</citetitle> and many other \"originalist\" rulings. Where " +"was their \"originalism\" now?" msgstr "" #. PAGE BREAK 251 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11652 +#: freeculture.xml:11580 msgid "" "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 " @@ -14582,7 +15040,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11667 +#: freeculture.xml:11595 msgid "" "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 " @@ -14590,7 +15048,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11674 +#: freeculture.xml:11602 msgid "" "Most lawyers, and most law professors, have little patience for idealism " "about courts in general and this Supreme Court in particular. Most have a " @@ -14605,7 +15063,7 @@ msgstr "" #. PAGE BREAK 252 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11685 +#: freeculture.xml:11613 msgid "" "As I read back over the transcript from that argument in October, I can see " "a hundred places where the answers could have taken the conversation in " @@ -14624,15 +15082,15 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11705 +#: freeculture.xml:11633 msgid "" "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?" +"Sullivan? <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11710 +#: freeculture.xml:11639 msgid "" "My friends huddled around me to insist it would not. The Court was not " "ready, my friends insisted. This was a loss that was destined. It would take " @@ -14641,7 +15099,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11716 +#: freeculture.xml:11645 msgid "" "Maybe, but I doubt it. These Justices have no financial interest in doing " "anything except the right thing. They are not lobbied. They have little " @@ -14651,7 +15109,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11723 +#: freeculture.xml:11652 msgid "" "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 " @@ -14663,7 +15121,7 @@ msgstr "" #. PAGE BREAK 253 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11731 +#: freeculture.xml:11660 msgid "" "After the argument and after the decision, Peter said to me, and publicly, " "that he was wrong. But if indeed that Court could not have been persuaded, " @@ -14679,11 +15137,11 @@ msgid "" "been skeptical of the Court's activism in other cases. Deference was a good " "thing, even if it left standing a silly law. But where the decision was " "attacked, it was attacked because it left standing a silly and harmful " -"law. The New York Times wrote in its editorial," +"law. <citetitle>The New York Times</citetitle> wrote in its editorial," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> -#: freeculture.xml:11752 +#: freeculture.xml:11681 msgid "" "In effect, the Supreme Court's decision makes it likely that we are seeing " "the beginning of the end of public domain and the birth of copyright " @@ -14693,47 +15151,52 @@ msgid "" "creative ferment." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:11695 +msgid "Bolling, Ruben" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11761 +#: freeculture.xml:11690 msgid "" "The best responses were in the cartoons. There was a gaggle of hilarious " "images—of Mickey in jail and the like. The best, from my view of the " "case, was Ruben Bolling's, reproduced on the next page. The \"powerful and " "wealthy\" line is a bit unfair. But the punch in the face felt exactly like " -"that." +"that. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11768 +#: freeculture.xml:11698 msgid "" "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 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." +"<citetitle>The New York Times</citetitle>. 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." msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:11779 +#: freeculture.xml:11709 msgid "CHAPTER FOURTEEN: Eldred II" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11781 +#: freeculture.xml:11711 msgid "" -"The day Eldred was decided, fate would have it that I was to travel to " -"Washington, D.C. (The day the rehearing petition in Eldred was " -"denied—meaning the case was really finally over—fate would have " -"it that I was giving a speech to technologists at Disney World.) This was a " -"particularly long flight to my least favorite city. The drive into the city " -"from Dulles was delayed because of traffic, so I opened up my computer and " -"wrote an op-ed piece." +"The day <citetitle>Eldred</citetitle> was decided, fate would have it that I " +"was to travel to Washington, D.C. (The day the rehearing petition in " +"<citetitle>Eldred</citetitle> was denied—meaning the case was really " +"finally over—fate would have it that I was giving a speech to " +"technologists at Disney World.) This was a particularly long flight to my " +"least favorite city. The drive into the city from Dulles was delayed because " +"of traffic, so I opened up my computer and wrote an op-ed piece." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11791 +#: freeculture.xml:11721 msgid "" "It was an act of contrition. During the whole of the flight from San " "Francisco to Washington, I had heard over and over again in my head the same " @@ -14747,17 +15210,17 @@ msgstr "" #. PAGE BREAK 256 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11801 +#: freeculture.xml:11731 msgid "" -"The New York Times published the piece. In it, I proposed a simple fix: " -"Fifty years after a work has been published, the copyright owner would be " -"required to register the work and pay a small fee. If he paid the fee, he " -"got the benefit of the full term of copyright. If he did not, the work " -"passed into the public domain." +"<citetitle>The New York Times</citetitle> published the piece. In it, I " +"proposed a simple fix: Fifty years after a work has been published, the " +"copyright owner would be required to register the work and pay a small " +"fee. If he paid the fee, he got the benefit of the full term of " +"copyright. If he did not, the work passed into the public domain." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11809 +#: freeculture.xml:11739 msgid "" "We called this the Eldred Act, but that was just to give it a name. Eric " "Eldred was kind enough to let his name be used once again, but as he said " @@ -14765,7 +15228,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11814 +#: freeculture.xml:11744 msgid "" "Or another two names. For depending upon your perspective, this is either " "the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation " @@ -14776,12 +15239,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11822 freeculture.xml:12020 +#: freeculture.xml:11752 freeculture.xml:11951 msgid "Forbes, Steve" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11824 +#: freeculture.xml:11754 msgid "" "The reaction to this idea was amazingly strong. Steve Forbes endorsed it in " "an editorial. I received an avalanche of e-mail and letters expressing " @@ -14795,7 +15258,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11836 +#: freeculture.xml:11766 msgid "" "Indeed, many recognized the obvious benefit of the registration " "requirement. For one of the hardest things about the current system for " @@ -14808,18 +15271,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11846 +#: freeculture.xml:11776 msgid "Berlin Act (1908)" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> -#: freeculture.xml:11847 freeculture.xml:11886 +#: freeculture.xml:11777 freeculture.xml:11816 msgid "Berne Convention (1908)" msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><para><footnote><para> -#: freeculture.xml:11854 +#: freeculture.xml:11784 msgid "" "Until the 1908 Berlin Act of the Berne Convention, national copyright " "legislation sometimes made protection depend upon compliance with " @@ -14835,13 +15298,13 @@ msgid "" "National Museum. Copies of books published in the United Kingdom must be " "deposited in the British Library. The German Copyright Act provides for a " "Registrar of Authors where the author's true name can be filed in the case " -"of anonymous or pseudonymous works. Paul Goldstein, International " -"Intellectual Property Law, Cases and Materials (New York: Foundation Press, " -"2001), 153–54." +"of anonymous or pseudonymous works. Paul Goldstein, <citetitle>International " +"Intellectual Property Law, Cases and Materials</citetitle> (New York: " +"Foundation Press, 2001), 153–54." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11850 +#: freeculture.xml:11780 msgid "" "As I described in chapter 10, formalities in copyright law were removed in " "1976, when Congress followed the Europeans by abandoning any formal " @@ -14855,7 +15318,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11880 +#: freeculture.xml:11810 msgid "" "That's great rhetoric. It sounds wonderfully romantic. But it is absurd " "copyright policy. It is absurd especially for authors, because a world " @@ -14865,19 +15328,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11888 +#: freeculture.xml:11818 msgid "" "The fight against formalities achieved its first real victory in Berlin in " "1908. International copyright lawyers amended the Berne Convention in 1908, " "to require copyright terms of life plus fifty years, as well as the " "abolition of copyright formalities. The formalities were hated because the " "stories of inadvertent loss were increasingly common. It was as if a Charles " -"Dickens character ran all copyright offices, and the failure to dot an i or " -"cross a t resulted in the loss of widows' only income." +"Dickens character ran all copyright offices, and the failure to dot an " +"<citetitle>i</citetitle> or cross a <citetitle>t</citetitle> resulted in the " +"loss of widows' only income." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11898 +#: freeculture.xml:11828 msgid "" "These complaints were real and sensible. And the strictness of the " "formalities, especially in the United States, was absurd. The law should " @@ -14888,7 +15352,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11906 +#: freeculture.xml:11836 msgid "" "Even that would have been resisted, however, because registration in the " "nineteenth and twentieth centuries was still expensive. It was also a " @@ -14899,7 +15363,7 @@ msgstr "" #. PAGE BREAK 258 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11914 +#: freeculture.xml:11844 msgid "" "In addition to the practical complaint of authors in 1908, there was a moral " "claim as well. There was no reason that creative property should be a " @@ -14911,7 +15375,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11926 +#: freeculture.xml:11856 msgid "" "This argument is correct, but its implications are misleading. For the " "argument in favor of formalities does not depend upon creative property " @@ -14922,7 +15386,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11935 +#: freeculture.xml:11865 msgid "" "No one thinks, for example, that land is second-class property just because " "you have to register a deed with a court if your sale of land is to be " @@ -14939,9 +15403,8 @@ msgid "" "burdens produce a much better system of protection for property generally." msgstr "" -#. PAGE BREAK 259 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11951 +#: freeculture.xml:11881 msgid "" "It is similarly special physics that makes formalities important in " "copyright law. Unlike a carpenter's table, there's nothing in nature that " @@ -14951,11 +15414,12 @@ msgid "" "owner. And like a car, there's no way to buy and sell creative property with " "confidence unless there is some simple way to authenticate who is the author " "and what rights he has. Simple transactions are destroyed in a world without " -"formalities. Complex, expensive, lawyer transactions take their place." +"formalities. Complex, expensive, <emphasis>lawyer</emphasis> transactions " +"take their place. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11965 +#: freeculture.xml:11896 msgid "" "This was the understanding of the problem with the Sonny Bono Act that we " "tried to demonstrate to the Court. This was the part it didn't \"get.\" " @@ -14967,18 +15431,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11975 +#: freeculture.xml:11906 msgid "" "But now that copyrights can be just about a century long, the inability to " "know what is protected and what is not protected becomes a huge and obvious " "burden on the creative process. If the only way a library can offer an " "Internet exhibit about the New Deal is to hire a lawyer to clear the rights " "to every image and sound, then the copyright system is burdening creativity " -"in a way that has never been seen before because there are no formalities." +"in a way that has never been seen before <emphasis>because there are no " +"formalities</emphasis>." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11984 +#: freeculture.xml:11915 msgid "" "The Eldred Act was designed to respond to exactly this problem. If it is " "worth $1 to you, then register your work and you can get the longer " @@ -14988,7 +15453,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11991 +#: freeculture.xml:11922 msgid "" "If it isn't worth it to you to register to get the benefit of an extended " "term, then it shouldn't be worth it for the government to defend your " @@ -14998,7 +15463,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:11998 +#: freeculture.xml:11929 msgid "" "Some worry about the burden on authors. Won't the burden of registering the " "work mean that the $1 is really misleading? Isn't the hassle worth more than " @@ -15007,25 +15472,25 @@ msgstr "" #. PAGE BREAK 260 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12004 +#: freeculture.xml:11935 msgid "" "It is. The hassle is terrible. The system that exists now is awful. I " "completely agree that the Copyright Office has done a terrible job (no doubt " "because they are terribly funded) in enabling simple and cheap " "registrations. Any real solution to the problem of formalities must address " -"the real problem of governments standing at the core of any system of " -"formalities. In this book, I offer such a solution. That solution " -"essentially remakes the Copyright Office. For now, assume it was Amazon that " -"ran the registration system. Assume it was one-click registration. The " -"Eldred Act would propose a simple, one-click registration fifty years after " -"a work was published. Based upon historical data, that system would move up " -"to 98 percent of commercial work, commercial work that no longer had a " -"commercial life, into the public domain within fifty years. What do you " -"think?" +"the real problem of <emphasis>governments</emphasis> standing at the core of " +"any system of formalities. In this book, I offer such a solution. That " +"solution essentially remakes the Copyright Office. For now, assume it was " +"Amazon that ran the registration system. Assume it was one-click " +"registration. The Eldred Act would propose a simple, one-click registration " +"fifty years after a work was published. Based upon historical data, that " +"system would move up to 98 percent of commercial work, commercial work that " +"no longer had a commercial life, into the public domain within fifty " +"years. What do you think?" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12022 +#: freeculture.xml:11953 msgid "" "When Steve Forbes endorsed the idea, some in Washington began to pay " "attention. Many people contacted me pointing to representatives who might be " @@ -15033,19 +15498,25 @@ msgid "" "that they might be willing to take the first step." msgstr "" +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:11966 +msgid "Lofgren, Zoe" +msgstr "" + #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12028 +#: freeculture.xml:11959 msgid "" "One representative, Zoe Lofgren of California, went so far as to get the " "bill drafted. The draft solved any problem with international law. It " "imposed the simplest requirement upon copyright owners possible. In May " "2003, it looked as if the bill would be introduced. On May 16, I posted on " "the Eldred Act blog, \"we are close.\" There was a general reaction in the " -"blog community that something good might happen here." +"blog community that something good might happen here. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12037 +#: freeculture.xml:11969 msgid "" "But at this stage, the lobbyists began to intervene. Jack Valenti and the " "MPAA general counsel came to the congresswoman's office to give the view of " @@ -15057,7 +15528,7 @@ msgstr "" #. PAGE BREAK 261 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12045 +#: freeculture.xml:11977 msgid "" "The MPAA argued first that Congress had \"firmly rejected the central " "concept in the proposed bill\"—that copyrights be renewed. That was " @@ -15079,7 +15550,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12066 +#: freeculture.xml:11998 msgid "" "Finally, the MPAA argued that existing law enabled copyright owners to do " "this if they wanted. But the whole point is that there are thousands of " @@ -15090,7 +15561,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12074 +#: freeculture.xml:12006 msgid "" "At the beginning of this book, I told two stories about the law reacting to " "changes in technology. In the one, common sense prevailed. In the other, " @@ -15102,7 +15573,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12084 +#: freeculture.xml:12016 msgid "" "I used these two cases as a way to frame the war that this book has been " "about. For here, too, a new technology is forcing the law to react. And " @@ -15112,7 +15583,7 @@ msgstr "" #. PAGE BREAK 262 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12093 +#: freeculture.xml:12025 msgid "" "When the issue is piracy, it is right for the law to back the copyright " "owners. The commercial piracy that I described is wrong and harmful, and the " @@ -15126,7 +15597,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12104 +#: freeculture.xml:12036 msgid "" "But when the copyright owners oppose a proposal such as the Eldred Act, " "then, finally, there is an example that lays bare the naked selfinterest " @@ -15139,35 +15610,36 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12114 +#: freeculture.xml:12046 msgid "What does this industry really want?" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12117 +#: freeculture.xml:12049 msgid "" "With very little effort, the warriors could protect their content. So the " "effort to block something like the Eldred Act is not really about protecting " -"their content. The effort to block the Eldred Act is an effort to assure " -"that nothing more passes into the public domain. It is another step to " -"assure that the public domain will never compete, that there will be no use " -"of content that is not commercially controlled, and that there will be no " -"commercial use of content that doesn't require their permission first." +"<emphasis>their</emphasis> content. The effort to block the Eldred Act is an " +"effort to assure that nothing more passes into the public domain. It is " +"another step to assure that the public domain will never compete, that there " +"will be no use of content that is not commercially controlled, and that " +"there will be no commercial use of content that doesn't require " +"<emphasis>their</emphasis> permission first." msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12127 +#: freeculture.xml:12060 msgid "" "The opposition to the Eldred Act reveals how extreme the other side is. The " "most powerful and sexy and well loved of lobbies really has as its aim not " "the protection of \"property\" but the rejection of a tradition. Their aim " -"is not simply to protect what is theirs. Their aim is to assure that all " -"there is is what is theirs." +"is not simply to protect what is theirs. <emphasis>Their aim is to assure " +"that all there is is what is theirs</emphasis>." msgstr "" #. PAGE BREAK 263 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12134 +#: freeculture.xml:12068 msgid "" "It is not hard to understand why the warriors take this view. It is not hard " "to see why it would benefit them if the competition of the public domain " @@ -15178,7 +15650,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12146 +#: freeculture.xml:12080 msgid "" "What is hard to understand is why the public takes this view. It is as if " "the law made airplanes trespassers. The MPAA stands with the Causbys and " @@ -15188,7 +15660,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12153 +#: freeculture.xml:12087 msgid "" "All this seems to follow easily from this untroubled acceptance of the " "\"property\" in intellectual property. Common sense supports it, and so long " @@ -15200,12 +15672,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:12165 +#: freeculture.xml:12099 msgid "CONCLUSION" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12167 +#: freeculture.xml:12101 msgid "" "There are more than 35 million people with the AIDS virus " "worldwide. Twenty-five million of them live in sub-Saharan Africa. " @@ -15215,7 +15687,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12174 +#: freeculture.xml:12108 msgid "" "There is no cure for AIDS, but there are drugs to slow its progression. " "These antiretroviral therapies are still experimental, but they have already " @@ -15226,7 +15698,7 @@ msgstr "" #. f1. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12189 +#: freeculture.xml:12123 msgid "" "Commission on Intellectual Property Rights, \"Final Report: Integrating " "Intellectual Property Rights and Development Policy\" (London, 2002), " @@ -15237,7 +15709,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12182 +#: freeculture.xml:12116 msgid "" "These drugs are expensive. When they were first introduced in the United " "States, they cost between $10,000 and $15,000 per person per year. Today, " @@ -15250,7 +15722,7 @@ msgstr "" #. PAGE BREAK 265 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12200 +#: freeculture.xml:12134 msgid "" "These prices are not high because the ingredients of the drugs are " "expensive. These prices are high because the drugs are protected by " @@ -15261,7 +15733,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12208 +#: freeculture.xml:12142 msgid "" "There are many who are skeptical of patents, especially drug patents. I am " "not. Indeed, of all the areas of research that might be supported by " @@ -15274,7 +15746,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12219 +#: freeculture.xml:12153 msgid "" "But it is one thing to support patents, even drug patents. It is another " "thing to determine how best to deal with a crisis. And as African leaders " @@ -15284,20 +15756,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:12237 freeculture.xml:12671 +#: freeculture.xml:12171 freeculture.xml:12599 msgid "Braithwaite, John" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12235 +#: freeculture.xml:12169 msgid "" -"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the " -"Knowledge Economy? (New York: The New Press, 2003), 37. <placeholder " -"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" +"See Peter Drahos with John Braithwaite, Information Feudalism: " +"<citetitle>Who Owns the Knowledge Economy?</citetitle> (New York: The New " +"Press, 2003), 37. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " +"type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12226 +#: freeculture.xml:12160 msgid "" "In 1997, South Africa tried one tack. It passed a law to allow the " "importation of patented medicines that had been produced or sold in another " @@ -15310,30 +15783,31 @@ msgstr "" #. f3. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12247 +#: freeculture.xml:12182 msgid "" -"International Intellectual Property Institute (IIPI), Patent Protection and " -"Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared " -"for the World Intellectual Property Organization (Washington, D.C., 2000), " -"14, available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#56</ulink>. For a firsthand account of the struggle over South Africa, see " -"Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human " -"Resources, House Committee on Government Reform, H. Rep., 1st sess., " -"Ser. No. 106-126 (22 July 1999), 150–57 (statement of James Love)." +"International Intellectual Property Institute (IIPI), <citetitle>Patent " +"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a " +"Report Prepared for the World Intellectual Property Organization</citetitle> " +"(Washington, D.C., 2000), 14, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #56</ulink>. For a firsthand " +"account of the struggle over South Africa, see Hearing Before the " +"Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House " +"Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 " +"July 1999), 150–57 (statement of James Love)." msgstr "" #. f4. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12279 +#: freeculture.xml:12209 msgid "" -"International Intellectual Property Institute (IIPI), Patent Protection and " -"Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared " -"for the World Intellectual Property Organization (Washington, D.C., 2000), " -"15." +"International Intellectual Property Institute (IIPI), <citetitle>Patent " +"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a " +"Report Prepared for the World Intellectual Property Organization</citetitle> " +"(Washington, D.C., 2000), 15." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12242 +#: freeculture.xml:12176 msgid "" "However, the United States government opposed the bill. Indeed, more than " "opposed. As the International Intellectual Property Association " @@ -15356,7 +15830,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12285 +#: freeculture.xml:12215 msgid "" "We should place the intervention by the United States in context. No doubt " "patents are not the most important reason that Africans don't have access to " @@ -15368,7 +15842,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12295 +#: freeculture.xml:12225 msgid "" "By stopping the flow of HIV treatment into Africa, the United States " "government was not saving drugs for United States citizens. This is not " @@ -15379,7 +15853,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12303 +#: freeculture.xml:12233 msgid "" "Nor was the intervention by the United States going to protect the profits " "of United States drug companies—at least, not substantially. It was " @@ -15393,24 +15867,25 @@ msgstr "" #. f5. #. PAGE BREAK 333 #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12318 +#: freeculture.xml:12248 msgid "" "See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at " -"Odds with Firms' Profit Motive,\" San Francisco Chronicle, 24 May 1999, A1, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link #57</ulink> " -"(\"compulsory licenses and gray markets pose a threat to the entire system " -"of intellectual property protection\"); Robert Weissman, \"AIDS and " -"Developing Countries: Democratizing Access to Essential Medicines,\" Foreign " -"Policy in Focus 4:23 (August 1999), available at <ulink " +"Odds with Firms' Profit Motive,\" <citetitle>San Francisco " +"Chronicle</citetitle>, 24 May 1999, A1, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #57</ulink> (\"compulsory " +"licenses and gray markets pose a threat to the entire system of intellectual " +"property protection\"); Robert Weissman, \"AIDS and Developing Countries: " +"Democratizing Access to Essential Medicines,\" <citetitle>Foreign Policy in " +"Focus</citetitle> 4:23 (August 1999), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing " "U.S. policy); John A. Harrelson, \"TRIPS, Pharmaceutical Patents, and the " "HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property " -"Rights and Compassion, a Synopsis,\" Widener Law Symposium Journal (Spring " -"2001): 175." +"Rights and Compassion, a Synopsis,\" <citetitle>Widener Law Symposium " +"Journal</citetitle> (Spring 2001): 175." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12312 +#: freeculture.xml:12242 msgid "" "Instead, the argument in favor of restricting this flow of information, " "which was needed to save the lives of millions, was an argument about the " @@ -15422,7 +15897,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12339 +#: freeculture.xml:12269 msgid "" "Now just step back for a moment. There will be a time thirty years from now " "when our children look back at us and ask, how could we have let this " @@ -15435,7 +15910,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12349 +#: freeculture.xml:12279 msgid "" "Some blame the drug companies. I don't. They are corporations. Their " "managers are ordered by law to make money for the corporation. They push a " @@ -15446,7 +15921,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12357 +#: freeculture.xml:12287 msgid "" "The corruption is our own politicians' failure of integrity. For the drug " "companies would love—they say, and I believe them—to sell their " @@ -15458,7 +15933,7 @@ msgstr "" #. PAGE BREAK 268 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12365 +#: freeculture.xml:12295 msgid "" "A different problem, however, could not be overcome. This is the fear of the " "grandstanding politician who would call the presidents of the drug companies " @@ -15474,7 +15949,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12380 +#: freeculture.xml:12310 msgid "" "So when the common sense of your child confronts you, what will you say? " "When the common sense of a generation finally revolts against what we have " @@ -15482,7 +15957,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12386 +#: freeculture.xml:12316 msgid "" "A sensible patent policy could endorse and strongly support the patent " "system without having to reach everyone everywhere in exactly the same " @@ -15497,7 +15972,7 @@ msgstr "" #. PAGE BREAK 269 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12398 +#: freeculture.xml:12328 msgid "" "But we as a culture have lost this sense of balance. We have lost the " "critical eye that helps us see the difference between truth and extremism. " @@ -15517,7 +15992,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12418 +#: freeculture.xml:12348 msgid "" "So far, common sense sleeps. There is no revolt. Common sense does not yet " "see what there could be to revolt about. The extremism that now dominates " @@ -15535,21 +16010,26 @@ msgstr "" #. f6. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12435 +#: freeculture.xml:12365 msgid "" -"Jonathan Krim, \"The Quiet War over Open-Source,\" Washington Post, August " -"2003, E1, available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#59</ulink>; William New, \"Global Group's Shift on `Open Source' Meeting " -"Spurs Stir,\" National Journal's Technology Daily, 19 August 2003, available " -"at <ulink url=\"http://free-culture.cc/notes/\">link #60</ulink>; William " -"New, \"U.S. Official Opposes `Open Source' Talks at WIPO,\" National " -"Journal's Technology Daily, 19 August 2003, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #61</ulink>." +"Jonathan Krim, \"The Quiet War over Open-Source,\" <citetitle>Washington " +"Post</citetitle>, August 2003, E1, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #59</ulink>; William New, " +"\"Global Group's Shift on `Open Source' Meeting Spurs Stir,\" " +"<citetitle>National Journal's Technology Daily</citetitle>, 19 August 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #60</ulink>; " +"William New, \"U.S. Official Opposes `Open Source' Talks at WIPO,\" " +"<citetitle>National Journal's Technology Daily</citetitle>, 19 August 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #61</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:12393 freeculture.xml:13115 +msgid "PLoS (Public Library of Science)" msgstr "" -#. PAGE BREAK 270 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12432 +#: freeculture.xml:12362 msgid "" "In August 2003, a fight broke out in the United States about a decision by " "the World Intellectual Property Organization to cancel a " @@ -15569,11 +16049,11 @@ msgid "" "Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, " "Novartis, Pfizer, and Searle.) It included the Global Positioning System, " "which Ronald Reagan set free in the early 1980s. And it included \"open " -"source and free software.\"" +"source and free software.\" <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12465 +#: freeculture.xml:12396 msgid "" "The aim of the meeting was to consider this wide range of projects from one " "common perspective: that none of these projects relied upon intellectual " @@ -15584,14 +16064,14 @@ msgstr "" #. f7. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12473 +#: freeculture.xml:12404 msgid "" "I should disclose that I was one of the people who asked WIPO for the " "meeting." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12472 +#: freeculture.xml:12403 msgid "" "From the perspective of this book, then, the conference was " "ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its " @@ -15603,7 +16083,7 @@ msgstr "" #. PAGE BREAK 271 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12483 +#: freeculture.xml:12414 msgid "" "Indeed, I was once publicly scolded for not recognizing this fact about " "WIPO. In February 2003, I delivered a keynote address to a preparatory " @@ -15627,7 +16107,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12507 +#: freeculture.xml:12438 msgid "" "So whether or not WSIS can discuss balance in intellectual property, I had " "thought it was taken for granted that WIPO could and should. And thus the " @@ -15636,7 +16116,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12513 +#: freeculture.xml:12444 msgid "" "But there is one project within that list that is highly controversial, at " "least among lobbyists. That project is \"open source and free software.\" " @@ -15651,7 +16131,7 @@ msgstr "" #. f8. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12536 +#: freeculture.xml:12466 msgid "" "Microsoft's position about free and open source software is more " "sophisticated. As it has repeatedly asserted, it has no problem with \"open " @@ -15659,18 +16139,19 @@ msgid "" "opposition is to \"free software\" licensed under a \"copyleft\" license, " "meaning a license that requires the licensee to adopt the same terms on any " "derivative work. See Bradford L. Smith, \"The Future of Software: Enabling " -"the Marketplace to Decide,\" Government Policy Toward Open Source Software " -"(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, " -"American Enterprise Institute for Public Policy Research, 2002), 69, " -"available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#62</ulink>. See also Craig Mundie, Microsoft senior vice president, The " -"Commercial Software Model, discussion at New York University Stern School of " +"the Marketplace to Decide,\" <citetitle>Government Policy Toward Open Source " +"Software</citetitle> (Washington, D.C.: AEI-Brookings Joint Center for " +"Regulatory Studies, American Enterprise Institute for Public Policy " +"Research, 2002), 69, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #62</ulink>. See also Craig " +"Mundie, Microsoft senior vice president, <citetitle>The Commercial Software " +"Model</citetitle>, discussion at New York University Stern School of " "Business (3 May 2001), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #63</ulink>." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12524 +#: freeculture.xml:12455 msgid "" "I don't mean to enter that debate here. It is important only to make clear " "that the distinction is not between commercial and noncommercial " @@ -15686,7 +16167,7 @@ msgstr "" #. PAGE BREAK 272 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12558 +#: freeculture.xml:12484 msgid "" "More important for our purposes, to support \"open source and free " "software\" is not to oppose copyright. \"Open source and free software\" is " @@ -15705,27 +16186,27 @@ msgstr "" #. f9. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12584 +#: freeculture.xml:12510 msgid "" "Krim, \"The Quiet War over Open-Source,\" available at <ulink " "url=\"http://free-culture.cc/notes/\">link #64</ulink>." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12576 +#: freeculture.xml:12502 msgid "" "It is therefore understandable that as a proprietary software developer, " "Microsoft would oppose this WIPO meeting, and understandable that it would " "use its lobbyists to get the United States government to oppose it, as " "well. And indeed, that is just what was reported to have happened. According " -"to Jonathan Krim of the Washington Post, Microsoft's lobbyists succeeded in " -"getting the United States government to veto the meeting.<placeholder " -"type=\"footnote\" id=\"0\"/> And without U.S. backing, the meeting was " -"canceled." +"to Jonathan Krim of the <citetitle>Washington Post</citetitle>, Microsoft's " +"lobbyists succeeded in getting the United States government to veto the " +"meeting.<placeholder type=\"footnote\" id=\"0\"/> And without U.S. backing, " +"the meeting was canceled." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12590 +#: freeculture.xml:12516 msgid "" "I don't blame Microsoft for doing what it can to advance its own interests, " "consistent with the law. And lobbying governments is plainly consistent with " @@ -15735,7 +16216,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12598 +#: freeculture.xml:12524 msgid "" "What was surprising was the United States government's reason for opposing " "the meeting. Again, as reported by Krim, Lois Boland, acting director of " @@ -15747,12 +16228,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12608 +#: freeculture.xml:12534 msgid "These statements are astonishing on a number of levels." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12612 +#: freeculture.xml:12538 msgid "" "First, they are just flat wrong. As I described, most open source and free " "software relies fundamentally upon the intellectual property right called " @@ -15765,7 +16246,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12622 +#: freeculture.xml:12548 msgid "" "Second, who ever said that WIPO's exclusive aim was to \"promote\" " "intellectual property maximally? As I had been scolded at the preparatory " @@ -15780,23 +16261,24 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12635 +#: freeculture.xml:12561 msgid "" "Third, even if one believed that the purpose of WIPO was to maximize " "intellectual property rights, in our tradition, intellectual property rights " "are held by individuals and corporations. They get to decide what to do with " -"those rights because, again, they are their rights. If they want to " -"\"waive\" or \"disclaim\" their rights, that is, within our tradition, " -"totally appropriate. When Bill Gates gives away more than $20 billion to do " -"good in the world, that is not inconsistent with the objectives of the " -"property system. That is, on the contrary, just what a property system is " -"supposed to be about: giving individuals the right to decide what to do with " -"their property." +"those rights because, again, they are <emphasis>their</emphasis> rights. If " +"they want to \"waive\" or \"disclaim\" their rights, that is, within our " +"tradition, totally appropriate. When Bill Gates gives away more than $20 " +"billion to do good in the world, that is not inconsistent with the " +"objectives of the property system. That is, on the contrary, just what a " +"property system is supposed to be about: giving individuals the right to " +"decide what to do with <emphasis>their</emphasis> property. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 274 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12647 +#: freeculture.xml:12575 msgid "" "When Ms. Boland says that there is something wrong with a meeting \"which " "has as its purpose to disclaim or waive such rights,\" she's saying that " @@ -15809,7 +16291,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12659 +#: freeculture.xml:12587 msgid "" "There is a history of just such a property system that is well known in the " "Anglo-American tradition. It is called \"feudalism.\" Under feudalism, not " @@ -15823,24 +16305,25 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12676 +#: freeculture.xml:12604 msgid "" -"See Drahos with Braithwaite, Information Feudalism, 210–20. " -"<placeholder type=\"indexterm\" id=\"0\"/>" +"See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, " +"210–20. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12673 +#: freeculture.xml:12601 msgid "" "As Peter Drahos and John Braithwaite relate, this is precisely the choice we " "are now making about intellectual property.<placeholder type=\"footnote\" " "id=\"0\"/> We will have an information society. That much is certain. Our " -"only choice now is whether that information society will be free or " -"feudal. The trend is toward the feudal." +"only choice now is whether that information society will be " +"<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is " +"toward the feudal." msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12684 +#: freeculture.xml:12613 msgid "" "When this battle broke, I blogged it. A spirited debate within the comment " "section ensued. Ms. Boland had a number of supporters who tried to show why " @@ -15850,7 +16333,7 @@ msgstr "" #. PAGE BREAK 275 #. type: Content of: <book><chapter><blockquote><para> -#: freeculture.xml:12691 +#: freeculture.xml:12620 msgid "" "George, you misunderstand Lessig: He's only talking about the world as it " "should be (\"the goal of WIPO, and the goal of any government, should be to " @@ -15863,7 +16346,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12703 +#: freeculture.xml:12632 msgid "" "I missed the irony the first time I read it. I read it quickly and thought " "the poster was supporting the idea that seeking balance was what our " @@ -15876,7 +16359,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12713 +#: freeculture.xml:12642 msgid "" "Obviously, however, the poster was not supporting that idea. Instead, the " "poster was ridiculing the very idea that in the real world, the \"goal\" of " @@ -15887,7 +16370,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12721 +#: freeculture.xml:12650 msgid "" "I understand criticism of academic utopianism. I think utopianism is silly, " "too, and I'd be the first to poke fun at the absurdly unrealistic ideals of " @@ -15895,7 +16378,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12727 +#: freeculture.xml:12656 msgid "" "But when it has become silly to suppose that the role of our government " "should be to \"seek balance,\" then count me with the silly, for that means " @@ -15909,7 +16392,7 @@ msgstr "" #. PAGE BREAK 276 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12738 +#: freeculture.xml:12667 msgid "" "It might be crazy to expect a high government official to speak the " "truth. It might be crazy to believe that government policy will be something " @@ -15918,8 +16401,13 @@ msgid "" "tradition for most of our history—free culture." msgstr "" +#. type: Content of: <book><chapter><para><indexterm><primary> +#: freeculture.xml:12686 +msgid "Turner, Ted" +msgstr "" + #. type: Content of: <book><chapter><para> -#: freeculture.xml:12747 +#: freeculture.xml:12676 msgid "" "If this is crazy, then let there be more crazies. Soon. There are moments " "of hope in this struggle. And moments that surprise. When the FCC was " @@ -15929,11 +16417,12 @@ msgid "" "interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted " "Turner, and CodePink Women for Peace organized to oppose this change in FCC " "policy. An astonishing 700,000 letters were sent to the FCC, demanding more " -"hearings and a different result." +"hearings and a different result. <placeholder type=\"indexterm\" id=\"0\"/> " +"<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12759 +#: freeculture.xml:12690 msgid "" "This activism did not stop the FCC, but soon after, a broad coalition in the " "Senate voted to reverse the FCC decision. The hostile hearings leading up to " @@ -15943,7 +16432,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12767 +#: freeculture.xml:12698 msgid "" "But even this movement misses an important piece of the puzzle. Largeness " "as such is not bad. Freedom is not threatened just because some become very " @@ -15953,7 +16442,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12774 +#: freeculture.xml:12705 msgid "" "The danger in media concentration comes not from the concentration, but " "instead from the feudalism that this concentration, tied to the change in " @@ -15965,7 +16454,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12784 +#: freeculture.xml:12715 msgid "" "It is therefore significant that so many would rally to demand competition " "and increased diversity. Still, if the rally is understood as being about " @@ -15975,7 +16464,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12791 +#: freeculture.xml:12722 msgid "" "It would be something new, and something very important, if an equal number " "could be rallied to fight the increasing extremism built within the idea of " @@ -15986,20 +16475,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12799 +#: freeculture.xml:12730 msgid "" "If we were Achilles, this would be our heel. This would be the place of our " "tragedy." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:12802 +#: freeculture.xml:12733 msgid "Dylan, Bob" msgstr "" #. f11. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12807 +#: freeculture.xml:12738 msgid "" "John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " @@ -16007,17 +16496,18 @@ msgid "" "8 September 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #66</ulink>; Soni Sangha and " "Phyllis Furman with Robert Gearty, \"Sued for a Song, N.Y.C. 12-Yr-Old Among " -"261 Cited as Sharers,\" New York Daily News, 9 September 2003, 3; Frank " -"Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., " -"12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 September " -"2003, E1; Katie Dean, \"Schoolgirl Settles with RIAA,\" Wired News, 10 " +"261 Cited as Sharers,\" <citetitle>New York Daily News</citetitle>, 9 " +"September 2003, 3; Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; " +"Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" " +"<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean, " +"\"Schoolgirl Settles with RIAA,\" <citetitle>Wired News</citetitle>, 10 " "September 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #67</ulink>." msgstr "" #. f12. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12825 +#: freeculture.xml:12756 msgid "" "Jon Wiederhorn, \"Eminem Gets Sued . . . by a Little Old Lady,\" mtv.com, 17 " "September 2003, available at <ulink " @@ -16027,7 +16517,7 @@ msgstr "" #. f13. #. PAGE BREAK 334 #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12832 +#: freeculture.xml:12763 msgid "" "Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan " "Songs,\" Kansascity.com, 9 July 2003, available at <ulink " @@ -16035,7 +16525,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12804 +#: freeculture.xml:12735 msgid "" "As I write these final words, the news is filled with stories about the RIAA " "lawsuits against almost three hundred individuals.<placeholder " @@ -16054,18 +16544,18 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:12849 freeculture.xml:13199 +#: freeculture.xml:12780 freeculture.xml:13131 msgid "Creative Commons" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> -#: freeculture.xml:12850 +#: freeculture.xml:12781 msgid "Gil, Gilberto" msgstr "" #. f14. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12855 +#: freeculture.xml:12786 msgid "" "\"BBC Plans to Open Up Its Archive to the Public,\" BBC press release, 24 " "August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " @@ -16074,7 +16564,7 @@ msgstr "" #. f15. #. type: Content of: <book><chapter><para><footnote><para> -#: freeculture.xml:12864 +#: freeculture.xml:12795 msgid "" "\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>." @@ -16082,7 +16572,7 @@ msgstr "" #. PAGE BREAK 278 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12852 +#: freeculture.xml:12783 msgid "" "Yet on the other side of the Atlantic, the BBC has just announced that it " "will build a \"Creative Archive,\" from which British citizens can download " @@ -16101,20 +16591,20 @@ msgstr "" #. PAGE BREAK 279 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12878 +#: freeculture.xml:12809 msgid "" "Common sense must revolt. It must act to free culture. Soon, if this " "potential is ever to be realized." msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:12886 +#: freeculture.xml:12817 msgid "AFTERWORD" msgstr "" #. PAGE BREAK 280 #. type: Content of: <book><chapter><para> -#: freeculture.xml:12890 +#: freeculture.xml:12821 msgid "" "At least some who have read this far will agree with me that something must " "be done to change where we are heading. The balance of this book maps what " @@ -16122,7 +16612,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12895 +#: freeculture.xml:12826 msgid "" "I divide this map into two parts: that which anyone can do now, and that " "which requires the help of lawmakers. If there is one lesson that we can " @@ -16131,7 +16621,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12901 +#: freeculture.xml:12832 msgid "" "That means this movement must begin in the streets. It must recruit a " "significant number of parents, teachers, librarians, creators, authors, " @@ -16140,7 +16630,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:12908 +#: freeculture.xml:12839 msgid "" "Once this movement has its effect in the streets, it has some hope of having " "an effect in Washington. We are still a democracy. What people think " @@ -16150,12 +16640,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:12917 +#: freeculture.xml:12848 msgid "US, NOW" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12919 +#: freeculture.xml:12850 msgid "" "Common sense is with the copyright warriors because the debate so far has " "been framed at the extremes—as a grand either/or: either property or " @@ -16164,7 +16654,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12925 +#: freeculture.xml:12856 msgid "" "The mistake here is the error of the excluded middle. There are extremes in " "this debate, but the extremes are not all that there is. There are those who " @@ -16178,7 +16668,7 @@ msgstr "" #. PAGE BREAK 282 #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12935 +#: freeculture.xml:12866 msgid "" "When the Internet was first born, its initial architecture effectively " "tilted in the \"no rights reserved\" direction. Content could be copied " @@ -16189,7 +16679,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12947 +#: freeculture.xml:12878 msgid "" "This initial character produced a reaction (opposite, but not quite equal) " "by copyright owners. That reaction has been the topic of this book. Through " @@ -16205,7 +16695,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:12961 +#: freeculture.xml:12892 msgid "" "What's needed is a way to say something in the middle—neither \"all " "rights reserved\" nor \"no rights reserved\" but \"some rights " @@ -16215,12 +16705,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:12970 +#: freeculture.xml:12901 msgid "Rebuilding Freedoms Previously Presumed: Examples" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:12972 +#: freeculture.xml:12903 msgid "" "If you step back from the battle I've been describing here, you will " "recognize this problem from other contexts. Think about privacy. Before the " @@ -16232,12 +16722,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:12982 +#: freeculture.xml:12913 msgid "What made it assured?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:12986 +#: freeculture.xml:12917 msgid "" "Well, if we think in terms of the modalities I described in chapter 10, your " "privacy was assured because of an inefficient architecture for gathering " @@ -16254,12 +16744,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:13000 +#: freeculture.xml:12931 msgid "Amazon" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13002 +#: freeculture.xml:12933 msgid "" "Enter the Internet, where the cost of tracking browsing in particular has " "become quite tiny. If you're a customer at Amazon, then as you browse the " @@ -16272,7 +16762,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13012 +#: freeculture.xml:12943 msgid "" "Amazon, of course, is not the problem. But we might begin to worry about " "libraries. If you're one of those crazy lefties who thinks that people " @@ -16285,20 +16775,21 @@ msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:13028 +#: freeculture.xml:12959 msgid "" "See, for example, Marc Rotenberg, \"Fair Information Practices and the " -"Architecture of Privacy (What Larry Doesn't Get),\" Stanford Technology Law " -"Review 1 (2001): par. 6–18, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #72</ulink> (describing examples " -"in which technology defines privacy policy). See also Jeffrey Rosen, The " -"Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: " -"Random House, 2004) (mapping tradeoffs between technology and privacy)." +"Architecture of Privacy (What Larry Doesn't Get),\" <citetitle>Stanford " +"Technology Law Review</citetitle> 1 (2001): par. 6–18, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #72</ulink> (describing " +"examples in which technology defines privacy policy). See also Jeffrey " +"Rosen, <citetitle>The Naked Crowd: Reclaiming Security and Freedom in an " +"Anxious Age</citetitle> (New York: Random House, 2004) (mapping tradeoffs " +"between technology and privacy)." msgstr "" #. PAGE BREAK 284 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13022 +#: freeculture.xml:12953 msgid "" "It is this reality that explains the push of many to define \"privacy\" on " "the Internet. It is the recognition that technology can remove what friction " @@ -16311,7 +16802,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13046 +#: freeculture.xml:12977 msgid "" "A similar story could be told about the birth of the free software " "movement. When computers with software were first made available " @@ -16322,12 +16813,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> -#: freeculture.xml:13053 +#: freeculture.xml:12984 msgid "Stallman, Richard" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13055 +#: freeculture.xml:12986 msgid "" "That was the world Richard Stallman was born into, and while he was a " "researcher at MIT, he grew to love the community that developed when one was " @@ -16337,7 +16828,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13063 +#: freeculture.xml:12994 msgid "" "In an academic setting, at least, that's not a terribly radical idea. In a " "math department, anyone would be free to tinker with a proof that someone " @@ -16351,7 +16842,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13075 +#: freeculture.xml:13006 msgid "" "No one answered that question. Instead, the architecture of revenue for " "computing changed. As it became possible to import programs from one system " @@ -16364,7 +16855,7 @@ msgstr "" #. PAGE BREAK 285 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13084 +#: freeculture.xml:13015 msgid "" "Thus, the practice of proprietary code began to spread, and by the early " "1980s, Stallman found himself surrounded by proprietary code. The world of " @@ -16374,7 +16865,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13093 +#: freeculture.xml:13024 msgid "" "Therefore, in 1984, Stallman began a project to build a free operating " "system, so that at least a strain of free software would survive. That was " @@ -16383,7 +16874,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13099 +#: freeculture.xml:13030 msgid "" "Stallman's technique was to use copyright law to build a world of software " "that must be kept free. Software licensed under the Free Software " @@ -16396,7 +16887,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13110 +#: freeculture.xml:13041 msgid "" "Stallman was thus doing for software what privacy advocates now do for " "privacy. He was seeking a way to rebuild a kind of freedom that was taken " @@ -16407,7 +16898,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13118 +#: freeculture.xml:13049 msgid "" "Finally, consider a very recent example that more directly resonates with " "the story of this book. This is the shift in the way academic and scientific " @@ -16416,7 +16907,7 @@ msgstr "" #. PAGE BREAK 286 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13123 +#: freeculture.xml:13054 msgid "" "As digital technologies develop, it is becoming obvious to many that " "printing thousands of copies of journals every month and sending them to " @@ -16433,7 +16924,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13139 +#: freeculture.xml:13070 msgid "" "There's nothing wrong in general with this, and indeed, the ability to " "charge for access to even public domain materials is a good incentive for " @@ -16445,7 +16936,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13148 +#: freeculture.xml:13079 msgid "" "But what if the only way to get access to social and scientific data was " "through proprietary services? What if no one had the ability to browse this " @@ -16453,7 +16944,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13153 +#: freeculture.xml:13084 msgid "" "As many are beginning to notice, this is increasingly the reality with " "scientific journals. When these journals were distributed in paper form, " @@ -16468,7 +16959,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13165 +#: freeculture.xml:13096 msgid "" "As journals become electronic, however, the publishers are demanding that " "libraries not give the general public access to the journals. This means " @@ -16477,9 +16968,8 @@ msgid "" "and market shrink a freedom taken for granted before." msgstr "" -#. PAGE BREAK 287 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13173 +#: freeculture.xml:13104 msgid "" "This shrinking freedom has led many to take affirmative steps to restore the " "freedom that has been lost. The Public Library of Science (PLoS), for " @@ -16489,11 +16979,12 @@ msgid "" "peer review. If accepted, the work is then deposited in a public, electronic " "archive and made permanently available for free. PLoS also sells a print " "version of its work, but the copyright for the print journal does not " -"inhibit the right of anyone to redistribute the work for free." +"inhibit the right of anyone to redistribute the work for free. <placeholder " +"type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13186 +#: freeculture.xml:13118 msgid "" "This is one of many such efforts to restore a freedom taken for granted " "before, but now threatened by changing technology and markets. There's no " @@ -16504,51 +16995,51 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:13197 +#: freeculture.xml:13129 msgid "Rebuilding Free Culture: One Idea" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13202 +#: freeculture.xml:13134 msgid "" "The same strategy could be applied to culture, as a response to the " "increasing control effected through law and technology." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13206 +#: freeculture.xml:13138 msgid "" "Enter the Creative Commons. The Creative Commons is a nonprofit corporation " "established in Massachusetts, but with its home at Stanford University. Its " -"aim is to build a layer of reasonable copyright on top of the extremes that " -"now reign. It does this by making it easy for people to build upon other " -"people's work, by making it simple for creators to express the freedom for " -"others to take and build upon their work. Simple tags, tied to " -"human-readable descriptions, tied to bulletproof licenses, make this " +"aim is to build a layer of <emphasis>reasonable</emphasis> copyright on top " +"of the extremes that now reign. It does this by making it easy for people to " +"build upon other people's work, by making it simple for creators to express " +"the freedom for others to take and build upon their work. Simple tags, tied " +"to human-readable descriptions, tied to bulletproof licenses, make this " "possible." msgstr "" #. PAGE BREAK 288 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13216 +#: freeculture.xml:13149 msgid "" -"Simple—which means without a middleman, or without a lawyer. By " -"developing a free set of licenses that people can attach to their content, " -"Creative Commons aims to mark a range of content that can easily, and " -"reliably, be built upon. These tags are then linked to machine-readable " -"versions of the license that enable computers automatically to identify " -"content that can easily be shared. These three expressions together—a " -"legal license, a human-readable description, and machine-readable " -"tags—constitute a Creative Commons license. A Creative Commons license " -"constitutes a grant of freedom to anyone who accesses the license, and more " -"importantly, an expression of the ideal that the person associated with the " -"license believes in something different than the \"All\" or \"No\" " -"extremes. Content is marked with the CC mark, which does not mean that " -"copyright is waived, but that certain freedoms are given." +"<emphasis>Simple</emphasis>—which means without a middleman, or " +"without a lawyer. By developing a free set of licenses that people can " +"attach to their content, Creative Commons aims to mark a range of content " +"that can easily, and reliably, be built upon. These tags are then linked to " +"machine-readable versions of the license that enable computers automatically " +"to identify content that can easily be shared. These three expressions " +"together—a legal license, a human-readable description, and " +"machine-readable tags—constitute a Creative Commons license. A " +"Creative Commons license constitutes a grant of freedom to anyone who " +"accesses the license, and more importantly, an expression of the ideal that " +"the person associated with the license believes in something different than " +"the \"All\" or \"No\" extremes. Content is marked with the CC mark, which " +"does not mean that copyright is waived, but that certain freedoms are given." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13234 +#: freeculture.xml:13167 msgid "" "These freedoms are beyond the freedoms promised by fair use. Their precise " "contours depend upon the choices the creator makes. The creator can choose a " @@ -16561,7 +17052,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13245 +#: freeculture.xml:13178 msgid "" "These choices thus establish a range of freedoms beyond the default of " "copyright law. They also enable freedoms that go beyond traditional fair " @@ -16573,9 +17064,13 @@ msgid "" "that content will in turn enable us to rebuild a public domain." msgstr "" -#. PAGE BREAK 289 +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:13199 +msgid "Garlick, Mia" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13256 +#: freeculture.xml:13189 msgid "" "This is just one project among many within the Creative Commons. And of " "course, Creative Commons is not the only organization pursuing such " @@ -16585,11 +17080,11 @@ msgid "" "movement of consumers and producers of content (\"content conducers,\" as " "attorney Mia Garlick calls them) who help build the public domain and, by " "their work, demonstrate the importance of the public domain to other " -"creativity." +"creativity. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13268 +#: freeculture.xml:13202 msgid "" "The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to " "complement them. The problems that the law creates for us as a culture are " @@ -16603,17 +17098,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13280 +#: freeculture.xml:13214 msgid "" "Why would creators participate in giving up total control? Some participate " "to better spread their content. Cory Doctorow, for example, is a science " -"fiction author. His first novel, Down and Out in the Magic Kingdom, was " -"released on-line and for free, under a Creative Commons license, on the same " -"day that it went on sale in bookstores." +"fiction author. His first novel, <citetitle>Down and Out in the Magic " +"Kingdom</citetitle>, was released on-line and for free, under a Creative " +"Commons license, on the same day that it went on sale in bookstores." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13287 +#: freeculture.xml:13221 msgid "" "Why would a publisher ever agree to this? I suspect his publisher reasoned " "like this: There are two groups of people out there: (1) those who will buy " @@ -16623,11 +17118,11 @@ msgid "" "it. Call them bad-(1)s. Some part of (2) will download Cory's book, like " "it, and then decide to buy it. Call them (2)-goods. If there are more " "(2)-goods than bad-(1)s, the strategy of releasing Cory's book free on-line " -"will probably increase sales of Cory's book." +"will probably <emphasis>increase</emphasis> sales of Cory's book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13299 +#: freeculture.xml:13233 msgid "" "Indeed, the experience of his publisher clearly supports that conclusion. " "The book's first printing was exhausted months before the publisher had " @@ -16636,29 +17131,29 @@ msgstr "" #. PAGE BREAK 290 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13305 +#: freeculture.xml:13239 msgid "" "The idea that free content might increase the value of nonfree content was " "confirmed by the experience of another author. Peter Wayner, who wrote a " -"book about the free software movement titled Free for All, made an " -"electronic version of his book free on-line under a Creative Commons license " -"after the book went out of print. He then monitored used book store prices " -"for the book. As predicted, as the number of downloads increased, the used " -"book price for his book increased, as well." +"book about the free software movement titled <citetitle>Free for " +"All</citetitle>, made an electronic version of his book free on-line under a " +"Creative Commons license after the book went out of print. He then monitored " +"used book store prices for the book. As predicted, as the number of " +"downloads increased, the used book price for his book increased, as well." msgstr "" #. f2. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:13331 +#: freeculture.xml:13266 msgid "" -"Willful Infringement: A Report from the Front Lines of the Real Culture Wars " -"(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre " -"production, available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#72</ulink>." +"<citetitle>Willful Infringement: A Report from the Front Lines of the Real " +"Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg " +"Hittelman, a Fiat Lucre production, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #72</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13316 +#: freeculture.xml:13250 msgid "" "These are examples of using the Commons to better spread proprietary " "content. I believe that is a wonderful and common use of the Commons. There " @@ -16668,16 +17163,17 @@ msgid "" "or noncommercial purposes, to sample content from the licensed work; they " "are just not free to make full copies of the licensed work available to " "others. This is consistent with their own art—they, too, sample from " -"others. Because the legal costs of sampling are so high (Walter Leaphart, " -"manager of the rap group Public Enemy, which was born sampling the music of " -"others, has stated that he does not \"allow\" Public Enemy to sample " -"anymore, because the legal costs are so high<placeholder type=\"footnote\" " -"id=\"0\"/>), these artists release into the creative environment content " -"that others can build upon, so that their form of creativity might grow." +"others. Because the <emphasis>legal</emphasis> costs of sampling are so high " +"(Walter Leaphart, manager of the rap group Public Enemy, which was born " +"sampling the music of others, has stated that he does not \"allow\" Public " +"Enemy to sample anymore, because the legal costs are so high<placeholder " +"type=\"footnote\" id=\"0\"/>), these artists release into the creative " +"environment content that others can build upon, so that their form of " +"creativity might grow." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13340 +#: freeculture.xml:13275 msgid "" "Finally, there are many who mark their content with a Creative Commons " "license just because they want to express to others the importance of " @@ -16692,7 +17188,7 @@ msgstr "" #. PAGE BREAK 291 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13352 +#: freeculture.xml:13287 msgid "" "In the first six months of the Creative Commons experiment, over 1 million " "objects were licensed with these free-culture licenses. The next step is " @@ -16703,7 +17199,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13362 +#: freeculture.xml:13297 msgid "" "These are first steps to rebuilding a public domain. They are not mere " "arguments; they are action. Building a public domain is the first step to " @@ -16714,7 +17210,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13370 +#: freeculture.xml:13305 msgid "" "Creative Commons is just one example of voluntary efforts by individuals and " "creators to change the mix of rights that now govern the creative field. The " @@ -16725,12 +17221,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><title> -#: freeculture.xml:13384 +#: freeculture.xml:13319 msgid "THEM, SOON" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:13386 +#: freeculture.xml:13321 msgid "" "We will not reclaim a free culture by individual action alone. It will also " "take important reforms of laws. We have a long way to go before the " @@ -16740,7 +17236,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><para> -#: freeculture.xml:13393 +#: freeculture.xml:13328 msgid "" "In this chapter, I outline five kinds of changes: four that are general, and " "one that's specific to the most heated battle of the day, music. Each is a " @@ -16749,12 +17245,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:13400 +#: freeculture.xml:13335 msgid "1. More Formalities" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13402 +#: freeculture.xml:13337 msgid "" "If you buy a house, you have to record the sale in a deed. If you buy land " "upon which to build a house, you have to record the purchase in a deed. If " @@ -16764,14 +17260,14 @@ msgstr "" #. PAGE BREAK 293 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13409 +#: freeculture.xml:13344 msgid "" "These are all formalities associated with property. They are requirements " "that we all must bear if we want our property to be protected." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13414 +#: freeculture.xml:13349 msgid "" "In contrast, under current copyright law, you automatically get a copyright, " "regardless of whether you comply with any formality. You don't have to " @@ -16780,12 +17276,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13420 +#: freeculture.xml:13355 msgid "Why?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13423 +#: freeculture.xml:13358 msgid "" "As I suggested in chapter 10, the motivation to abolish formalities was a " "good one. In the world before digital technologies, formalities imposed a " @@ -16795,7 +17291,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13431 +#: freeculture.xml:13366 msgid "" "But the Internet changes all this. Formalities today need not be a " "burden. Rather, the world without formalities is the world that burdens " @@ -16804,13 +17300,13 @@ msgid "" "others. There are no records, there is no system to trace— there is no " "simple way to know how to get permission. Yet given the massive increase in " "the scope of copyright's rule, getting permission is a necessary step for " -"any work that builds upon our past. And thus, the lack of formalities forces " -"many into silence where they otherwise could speak." +"any work that builds upon our past. And thus, the <emphasis>lack</emphasis> " +"of formalities forces many into silence where they otherwise could speak." msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:13445 +#: freeculture.xml:13380 msgid "" "The proposal I am advancing here would apply to American works only. " "Obviously, I believe it would be beneficial for the same idea to be adopted " @@ -16818,7 +17314,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13443 +#: freeculture.xml:13378 msgid "" "The law should therefore change this requirement<placeholder " "type=\"footnote\" id=\"0\"/>—but it should not change it by going back " @@ -16828,7 +17324,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13453 +#: freeculture.xml:13388 msgid "" "The important formalities are three: marking copyrighted work, registering " "copyrights, and renewing the claim to copyright. Traditionally, the first of " @@ -16839,12 +17335,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><title> -#: freeculture.xml:13465 +#: freeculture.xml:13400 msgid "REGISTRATION AND RENEWAL" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13467 +#: freeculture.xml:13402 msgid "" "Under the old system, a copyright owner had to file a registration with the " "Copyright Office to register or renew a copyright. When filing that " @@ -16859,7 +17355,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13480 +#: freeculture.xml:13415 msgid "" "Yet it is always astonishing to me that we, who come from a tradition of " "extraordinary innovation in governmental design, can no longer think " @@ -16871,7 +17367,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13489 +#: freeculture.xml:13424 msgid "" "In the context of registration, one obvious model is the Internet. There " "are at least 32 million Web sites registered around the world. Domain name " @@ -16884,7 +17380,7 @@ msgstr "" #. PAGE BREAK 295 #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13499 +#: freeculture.xml:13434 msgid "" "We should adopt a similar model for the registration and renewal of " "copyrights. The Copyright Office may well serve as the central registry, but " @@ -16898,12 +17394,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><title> -#: freeculture.xml:13514 +#: freeculture.xml:13449 msgid "MARKING" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13516 +#: freeculture.xml:13451 msgid "" "It used to be that the failure to include a copyright notice on a creative " "work meant that the copyright was forfeited. That was a harsh punishment for " @@ -16915,7 +17411,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13526 +#: freeculture.xml:13461 msgid "" "The aim of marking is to signal to the public that this work is copyrighted " "and that the author wants to enforce his rights. The mark also makes it easy " @@ -16923,7 +17419,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13532 +#: freeculture.xml:13467 msgid "" "One of the problems the copyright system confronted early on was that " "different copyrighted works had to be differently marked. It wasn't clear " @@ -16937,7 +17433,7 @@ msgstr "" #. f2. #. type: Content of: <book><chapter><sect1><sect2><sect3><para><footnote><para> -#: freeculture.xml:13549 +#: freeculture.xml:13484 msgid "" "There would be a complication with derivative works that I have not solved " "here. In my view, the law of derivatives creates a more complicated system " @@ -16946,7 +17442,7 @@ msgstr "" #. PAGE BREAK 296 #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13542 +#: freeculture.xml:13477 msgid "" "Let's start with the last point. If a copyright owner allows his work to be " "published without a copyright notice, the consequence of that failure need " @@ -16962,7 +17458,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13562 +#: freeculture.xml:13497 msgid "" "That in turn raises the question about how work should best be marked. Here " "again, the system needs to adjust as the technologies evolve. The best way " @@ -16972,21 +17468,21 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13569 +#: freeculture.xml:13504 msgid "" "For example, if a recording industry association devises a method for " "marking CDs, it would propose that to the Copyright Office. The Copyright " "Office would hold a hearing, at which other proposals could be made. The " "Copyright Office would then select the proposal that it judged preferable, " -"and it would base that choice solely upon the consideration of which method " -"could best be integrated into the registration and renewal system. We would " -"not count on the government to innovate; but we would count on the " -"government to keep the product of innovation in line with its other " -"important functions." +"and it would base that choice <emphasis>solely</emphasis> upon the " +"consideration of which method could best be integrated into the registration " +"and renewal system. We would not count on the government to innovate; but we " +"would count on the government to keep the product of innovation in line with " +"its other important functions." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13580 +#: freeculture.xml:13516 msgid "" "Finally, marking content clearly would simplify registration requirements. " "If photographs were marked by author and year, there would be little reason " @@ -16997,7 +17493,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13588 +#: freeculture.xml:13524 msgid "" "The objective of formalities is to make things clear. The existing system " "does nothing to make things clear. Indeed, it seems designed to make things " @@ -17005,7 +17501,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> -#: freeculture.xml:13593 +#: freeculture.xml:13529 msgid "" "If formalities such as registration were reinstated, one of the most " "difficult aspects of relying upon the public domain would be removed. It " @@ -17016,12 +17512,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:13605 +#: freeculture.xml:13541 msgid "2. Shorter Terms" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13607 +#: freeculture.xml:13543 msgid "" "The term of copyright has gone from fourteen years to ninety-five years for " "corporate authors, and life of the author plus seventy years for natural " @@ -17030,25 +17526,28 @@ msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:13619 +#: freeculture.xml:13556 msgid "" -"\"A Radical Rethink,\" Economist, 366:8308 (25 January 2003): 15, available " -"at <ulink url=\"http://free-culture.cc/notes/\">link #74</ulink>." +"\"A Radical Rethink,\" <citetitle>Economist</citetitle>, 366:8308 (25 " +"January 2003): 15, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #74</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13612 +#: freeculture.xml:13548 msgid "" -"In The Future of Ideas, I proposed a seventy-five-year term, granted in " -"five-year increments with a requirement of renewal every five years. That " -"seemed radical enough at the time. But after we lost Eldred v. Ashcroft, " -"the proposals became even more radical. The Economist endorsed a proposal " -"for a fourteen-year copyright term.<placeholder type=\"footnote\" id=\"0\"/> " +"In <citetitle>The Future of Ideas</citetitle>, I proposed a " +"seventy-five-year term, granted in five-year increments with a requirement " +"of renewal every five years. That seemed radical enough at the time. But " +"after we lost <citetitle>Eldred</citetitle> " +"v. <citetitle>Ashcroft</citetitle>, the proposals became even more " +"radical. <citetitle>The Economist</citetitle> endorsed a proposal for a " +"fourteen-year copyright term.<placeholder type=\"footnote\" id=\"0\"/> " "Others have proposed tying the term to the term for patents." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13626 +#: freeculture.xml:13563 msgid "" "I agree with those who believe that we need a radical change in copyright's " "term. But whether fourteen years or seventy-five, there are four principles " @@ -17057,81 +17556,87 @@ msgstr "" #. (1) #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13634 +#: freeculture.xml:13571 msgid "" -"Keep it short: The term should be as long as necessary to give incentives to " -"create, but no longer. If it were tied to very strong protections for " -"authors (so authors were able to reclaim rights from publishers), rights to " -"the same work (not derivative works) might be extended further. The key is " -"not to tie the work up with legal regulations when it no longer benefits an " -"author." +"<emphasis>Keep it short:</emphasis> The term should be as long as necessary " +"to give incentives to create, but no longer. If it were tied to very strong " +"protections for authors (so authors were able to reclaim rights from " +"publishers), rights to the same work (not derivative works) might be " +"extended further. The key is not to tie the work up with legal regulations " +"when it no longer benefits an author." msgstr "" #. (2) #. PAGE BREAK 298 #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13642 +#: freeculture.xml:13580 msgid "" -"Keep it simple: The line between the public domain and protected content " -"must be kept clear. Lawyers like the fuzziness of \"fair use,\" and the " -"distinction between \"ideas\" and \"expression.\" That kind of law gives " -"them lots of work. But our framers had a simpler idea in mind: protected " -"versus unprotected. The value of short terms is that there is little need " -"to build exceptions into copyright when the term itself is kept short. A " -"clear and active \"lawyer-free zone\" makes the complexities of \"fair use\" " -"and \"idea/expression\" less necessary to navigate." +"<emphasis>Keep it simple:</emphasis> The line between the public domain and " +"protected content must be kept clear. Lawyers like the fuzziness of \"fair " +"use,\" and the distinction between \"ideas\" and \"expression.\" That kind " +"of law gives them lots of work. But our framers had a simpler idea in mind: " +"protected versus unprotected. The value of short terms is that there is " +"little need to build exceptions into copyright when the term itself is kept " +"short. A clear and active \"lawyer-free zone\" makes the complexities of " +"\"fair use\" and \"idea/expression\" less necessary to navigate." msgstr "" #. f4. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><footnote><para> -#: freeculture.xml:13662 +#: freeculture.xml:13601 msgid "" "Department of Veterans Affairs, Veteran's Application for Compensation " "and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at " "<ulink url=\"http://free-culture.cc/notes/\">link #75</ulink>." msgstr "" +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><indexterm><primary> +#: freeculture.xml:13609 +msgid "veterans' pensions" +msgstr "" + #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13655 +#: freeculture.xml:13593 msgid "" -"Keep it alive: Copyright should have to be renewed. Especially if the " -"maximum term is long, the copyright owner should be required to signal " -"periodically that he wants the protection continued. This need not be an " -"onerous burden, but there is no reason this monopoly protection has to be " -"granted for free. On average, it takes ninety minutes for a veteran to apply " -"for a pension.<placeholder type=\"footnote\" id=\"0\"/> If we make veterans " -"suffer that burden, I don't see why we couldn't require authors to spend ten " -"minutes every fifty years to file a single form." +"<emphasis>Keep it alive:</emphasis> Copyright should have to be renewed. " +"Especially if the maximum term is long, the copyright owner should be " +"required to signal periodically that he wants the protection continued. This " +"need not be an onerous burden, but there is no reason this monopoly " +"protection has to be granted for free. On average, it takes ninety minutes " +"for a veteran to apply for a pension.<placeholder type=\"footnote\" " +"id=\"0\"/> If we make veterans suffer that burden, I don't see why we " +"couldn't require authors to spend ten minutes every fifty years to file a " +"single form. <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. (4) #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13673 +#: freeculture.xml:13613 msgid "" -"Keep it prospective: Whatever the term of copyright should be, the clearest " -"lesson that economists teach is that a term once given should not be " -"extended. It might have been a mistake in 1923 for the law to offer authors " -"only a fifty-six-year term. I don't think so, but it's possible. If it was a " -"mistake, then the consequence was that we got fewer authors to create in " -"1923 than we otherwise would have. But we can't correct that mistake today " -"by increasing the term. No matter what we do today, we will not increase the " -"number of authors who wrote in 1923. Of course, we can increase the reward " -"that those who write now get (or alternatively, increase the copyright " -"burden that smothers many works that are today invisible). But increasing " -"their reward will not increase their creativity in 1923. What's not done is " -"not done, and there's nothing we can do about that now." +"<emphasis>Keep it prospective:</emphasis> Whatever the term of copyright " +"should be, the clearest lesson that economists teach is that a term once " +"given should not be extended. It might have been a mistake in 1923 for the " +"law to offer authors only a fifty-six-year term. I don't think so, but it's " +"possible. If it was a mistake, then the consequence was that we got fewer " +"authors to create in 1923 than we otherwise would have. But we can't correct " +"that mistake today by increasing the term. No matter what we do today, we " +"will not increase the number of authors who wrote in 1923. Of course, we can " +"increase the reward that those who write now get (or alternatively, increase " +"the copyright burden that smothers many works that are today invisible). But " +"increasing their reward will not increase their creativity in 1923. What's " +"not done is not done, and there's nothing we can do about that now." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13688 +#: freeculture.xml:13629 msgid "" -"These changes together should produce an average copyright term that is much " -"shorter than the current term. Until 1976, the average term was just 32.2 " -"years. We should be aiming for the same." +"These changes together should produce an <emphasis>average</emphasis> " +"copyright term that is much shorter than the current term. Until 1976, the " +"average term was just 32.2 years. We should be aiming for the same." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13693 +#: freeculture.xml:13635 msgid "" "No doubt the extremists will call these ideas \"radical.\" (After all, I " "call them \"extremists.\") But again, the term I recommended was longer than " @@ -17140,12 +17645,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:13703 +#: freeculture.xml:13645 msgid "3. Free Use Vs. Fair Use" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13705 +#: freeculture.xml:13647 msgid "" "As I observed at the beginning of this book, property law originally granted " "property owners the right to control their property from the ground to the " @@ -17156,7 +17661,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13713 +#: freeculture.xml:13655 msgid "" "Our Constitution gives Congress the power to give authors \"exclusive " "right\" to \"their writings.\" Congress has given authors an exclusive right " @@ -17168,14 +17673,14 @@ msgstr "" #. f5. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:13726 +#: freeculture.xml:13668 msgid "" -"Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia " -"University Press, 1967), 32." +"Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New " +"York: Columbia University Press, 1967), 32." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13722 +#: freeculture.xml:13664 msgid "" "Congress granted the beginnings of this right in 1870, when it expanded the " "exclusive right of copyright to include a right to control translations and " @@ -17187,12 +17692,12 @@ msgstr "" #. f6. #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> -#: freeculture.xml:13739 +#: freeculture.xml:13681 msgid "Ibid., 56." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> -#: freeculture.xml:13735 +#: freeculture.xml:13677 msgid "" "So inured have we become to the extension of the monopoly to a large range " "of so-called derivative works, that we no longer sense the oddity of " @@ -17201,7 +17706,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13744 +#: freeculture.xml:13686 msgid "" "I think it's time to recognize that there are airplanes in this field and " "the expansiveness of these rights of derivative use no longer make " @@ -17210,36 +17715,35 @@ msgid "" "each limitation in turn." msgstr "" -#. PAGE BREAK 300 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13751 +#: freeculture.xml:13693 msgid "" -"Term: If Congress wants to grant a derivative right, then that right should " -"be for a much shorter term. It makes sense to protect John Grisham's right " -"to sell the movie rights to his latest novel (or at least I'm willing to " -"assume it does); but it does not make sense for that right to run for the " -"same term as the underlying copyright. The derivative right could be " -"important in inducing creativity; it is not important long after the " -"creative work is done." +"<emphasis>Term:</emphasis> If Congress wants to grant a derivative right, " +"then that right should be for a much shorter term. It makes sense to protect " +"John Grisham's right to sell the movie rights to his latest novel (or at " +"least I'm willing to assume it does); but it does not make sense for that " +"right to run for the same term as the underlying copyright. The derivative " +"right could be important in inducing creativity; it is not important long " +"after the creative work is done. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13762 +#: freeculture.xml:13706 msgid "" -"Scope: Likewise should the scope of derivative rights be narrowed. Again, " -"there are some cases in which derivative rights are important. Those should " -"be specified. But the law should draw clear lines around regulated and " -"unregulated uses of copyrighted material. When all \"reuse\" of creative " -"material was within the control of businesses, perhaps it made sense to " -"require lawyers to negotiate the lines. It no longer makes sense for lawyers " -"to negotiate the lines. Think about all the creative possibilities that " -"digital technologies enable; now imagine pouring molasses into the " -"machines. That's what this general requirement of permission does to the " -"creative process. Smothers it." +"<emphasis>Scope:</emphasis> Likewise should the scope of derivative rights " +"be narrowed. Again, there are some cases in which derivative rights are " +"important. Those should be specified. But the law should draw clear lines " +"around regulated and unregulated uses of copyrighted material. When all " +"\"reuse\" of creative material was within the control of businesses, perhaps " +"it made sense to require lawyers to negotiate the lines. It no longer makes " +"sense for lawyers to negotiate the lines. Think about all the creative " +"possibilities that digital technologies enable; now imagine pouring molasses " +"into the machines. That's what this general requirement of permission does " +"to the creative process. Smothers it." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13774 +#: freeculture.xml:13719 msgid "" "This was the point that Alben made when describing the making of the Clint " "Eastwood CD. While it makes sense to require negotiation for foreseeable " @@ -17249,20 +17753,20 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> -#: freeculture.xml:13790 +#: freeculture.xml:13735 msgid "Goldstein, Paul" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:13788 +#: freeculture.xml:13733 msgid "" -"Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox " -"(Stanford: Stanford University Press, 2003), 187–216. <placeholder " -"type=\"indexterm\" id=\"0\"/>" +"Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the " +"Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), " +"187–216. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13782 +#: freeculture.xml:13727 msgid "" "In each of these cases, the law should mark the uses that are protected, and " "the presumption should be that other uses are not protected. This is the " @@ -17272,7 +17776,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13796 +#: freeculture.xml:13741 msgid "" "Goldstein's analysis would make perfect sense if the cost of the legal " "system were small. But as we are currently seeing in the context of the " @@ -17283,7 +17787,7 @@ msgstr "" #. PAGE BREAK 301 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13803 +#: freeculture.xml:13748 msgid "" "The law could remedy this problem either by removing protection beyond the " "part explicitly drawn or by granting reuse rights upon certain statutory " @@ -17293,12 +17797,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:13813 +#: freeculture.xml:13758 msgid "4. Liberate the Music—Again" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13815 +#: freeculture.xml:13760 msgid "" "The battle that got this whole war going was about music, so it wouldn't be " "fair to end this book without addressing the issue that is, to most people, " @@ -17308,7 +17812,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13822 +#: freeculture.xml:13767 msgid "" "The appeal of file-sharing music was the crack cocaine of the Internet's " "growth. It drove demand for access to the Internet more powerfully than any " @@ -17319,7 +17823,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13831 +#: freeculture.xml:13776 msgid "" "The aim of copyright, with respect to content in general and music in " "particular, is to create the incentives for music to be composed, performed, " @@ -17329,7 +17833,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13838 +#: freeculture.xml:13783 msgid "" "File-sharing networks complicate this model by enabling the spread of " "content for which the performer has not been paid. But of course, that's not " @@ -17339,7 +17843,7 @@ msgstr "" #. A. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13846 +#: freeculture.xml:13791 msgid "" "There are some who are using sharing networks as substitutes for purchasing " "CDs." @@ -17347,7 +17851,7 @@ msgstr "" #. B. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13851 +#: freeculture.xml:13796 msgid "" "There are also some who are using sharing networks to sample, on the way to " "purchasing CDs." @@ -17356,7 +17860,7 @@ msgstr "" #. PAGE BREAK 302 #. C. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13857 +#: freeculture.xml:13802 msgid "" "There are many who are using file-sharing networks to get access to content " "that is no longer sold but is still under copyright or that would have been " @@ -17365,7 +17869,7 @@ msgstr "" #. D. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:13863 +#: freeculture.xml:13808 msgid "" "There are many who are using file-sharing networks to get access to content " "that is not copyrighted or to get access that the copyright owner plainly " @@ -17373,7 +17877,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13869 +#: freeculture.xml:13814 msgid "" "Any reform of the law needs to keep these different uses in focus. It must " "avoid burdening type D even if it aims to eliminate type A. The eagerness " @@ -17384,7 +17888,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13877 +#: freeculture.xml:13822 msgid "" "As I said in chapter 5, the actual harm caused by sharing is controversial. " "For the purposes of this chapter, however, I assume the harm is real. I " @@ -17393,7 +17897,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13884 +#: freeculture.xml:13829 msgid "" "Nonetheless, there is a crucial fact about the current technological context " "that we must keep in mind if we are to understand how the law should " @@ -17401,7 +17905,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13889 +#: freeculture.xml:13834 msgid "" "Today, file sharing is addictive. In ten years, it won't be. It is addictive " "today because it is the easiest way to gain access to a broad range of " @@ -17416,7 +17920,7 @@ msgstr "" #. PAGE BREAK 303 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13901 +#: freeculture.xml:13846 msgid "" "But it will become a reality, and that means the way we get access to the " "Internet today is a technology in transition. Policy makers should not make " @@ -17433,7 +17937,7 @@ msgstr "" #. f8. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:13933 +#: freeculture.xml:13879 msgid "" "See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April " "2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " @@ -17441,16 +17945,17 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13916 +#: freeculture.xml:13861 msgid "" "In that world, it will be extremely easy to connect to services that give " "you access to content on the fly—such as Internet radio, content that " "is streamed to the user when the user demands. Here, then, is the critical " -"point: When it is extremely easy to connect to services that give access to " -"content, it will be easier to connect to services that give you access to " -"content than it will be to download and store content on the many devices " -"you will have for playing content. It will be easier, in other words, to " -"subscribe than it will be to be a database manager, as everyone in the " +"point: When it is <emphasis>extremely</emphasis> easy to connect to services " +"that give access to content, it will be <emphasis>easier</emphasis> to " +"connect to services that give you access to content than it will be to " +"download and store content <emphasis>on the many devices you will have for " +"playing content</emphasis>. It will be easier, in other words, to subscribe " +"than it will be to be a database manager, as everyone in the " "download-sharing world of Napster-like technologies essentially is. Content " "services will compete with content sharing, even if the services charge " "money for the content they give access to. Already cell-phone services in " @@ -17462,7 +17967,7 @@ msgstr "" #. PAGE BREAK 304 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13940 +#: freeculture.xml:13886 msgid "" "This point about the future is meant to suggest a perspective on the " "present: It is emphatically temporary. The \"problem\" with file " @@ -17478,7 +17983,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13956 +#: freeculture.xml:13902 msgid "" "The answer begins with recognizing that there are different \"problems\" " "here to solve. Let's start with type D content—uncopyrighted content " @@ -17491,7 +17996,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13967 +#: freeculture.xml:13913 msgid "" "Type C content raises a different \"problem.\" This is content that was, at " "one time, published and is no longer available. It may be unavailable " @@ -17502,7 +18007,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13976 +#: freeculture.xml:13922 msgid "" "Again, the model here is the used book store. Once a book goes out of print, " "it may still be available in libraries and used book stores. But libraries " @@ -17514,7 +18019,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13986 +#: freeculture.xml:13932 msgid "" "The model of used book stores suggests that the law could simply deem " "out-of-print music fair game. If the publisher does not make copies of the " @@ -17527,7 +18032,7 @@ msgstr "" #. PAGE BREAK 305 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:13997 +#: freeculture.xml:13943 msgid "" "Alternatively, the law could create a statutory license that would ensure " "that artists get something from the trade of their work. For example, if the " @@ -17539,7 +18044,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14007 +#: freeculture.xml:13953 msgid "" "This system would also create an incentive for publishers to keep works " "available commercially. Works that are available commercially would not be " @@ -17552,7 +18057,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14017 +#: freeculture.xml:13963 msgid "" "The hard case is content of types A and B, and again, this case is hard only " "because the extent of the problem will change over time, as the technologies " @@ -17563,14 +18068,14 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14025 +#: freeculture.xml:13971 msgid "" "So here's a solution that will at first seem very strange to both sides in " "this war, but which upon reflection, I suggest, should make some sense." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14029 +#: freeculture.xml:13975 msgid "" "Stripped of the rhetoric about the sanctity of property, the basic claim of " "the content industry is this: A new technology (the Internet) has harmed a " @@ -17584,7 +18089,7 @@ msgstr "" #. PAGE BREAK 306 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14040 +#: freeculture.xml:13986 msgid "" "I love the Internet, and so I don't like likening it to tobacco or " "asbestos. But the analogy is a fair one from the perspective of the law. " @@ -17595,49 +18100,51 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> -#: freeculture.xml:14084 +#: freeculture.xml:14032 msgid "Fisher, William" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:14051 -msgid "" -"William Fisher, Digital Music: Problems and Possibilities (last revised: 10 " -"October 2000), available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #77</ulink>; William Fisher, " -"Promises to Keep: Technology, Law, and the Future of Entertainment " -"(forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available " -"at <ulink url=\"http://free-culture.cc/notes/\">link #78</ulink>. Professor " -"Netanel has proposed a related idea that would exempt noncommercial sharing " -"from the reach of copyright and would establish compensation to artists to " -"balance any loss. See Neil Weinstock Netanel, \"Impose a Noncommercial Use " -"Levy to Allow Free P2P File Sharing,\" available at <ulink " +#: freeculture.xml:13998 +msgid "" +"William Fisher, <citetitle>Digital Music: Problems and " +"Possibilities</citetitle> (last revised: 10 October 2000), available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #77</ulink>; William " +"Fisher, <citetitle>Promises to Keep: Technology, Law, and the Future of " +"Entertainment</citetitle> (forthcoming) (Stanford: Stanford University " +"Press, 2004), ch. 6, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #78</ulink>. Professor Netanel " +"has proposed a related idea that would exempt noncommercial sharing from the " +"reach of copyright and would establish compensation to artists to balance " +"any loss. See Neil Weinstock Netanel, \"Impose a Noncommercial Use Levy to " +"Allow Free P2P File Sharing,\" available at <ulink " "url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals, " -"see Lawrence Lessig, \"Who's Holding Back Broadband?\" Washington Post, 8 " -"January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter " -"to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations " -"Committee, 26 February 2002, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #80</ulink>; Serguei Osokine, A " -"Quick Case for Intellectual Property Use Fee (IPUF), 3 March 2002, available " -"at <ulink url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson " -"Graham, \"Kazaa, Verizon Propose to Pay Artists Directly,\" USA Today, 13 " -"May 2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#82</ulink>; Steven M. Cherry, \"Getting Copyright Right,\" IEEE Spectrum " -"Online, 1 July 2002, available at <ulink " -"url=\"http://free-culture.cc/notes/\">link #83</ulink>; Declan McCullagh, " -"\"Verizon's Copyright Campaign,\" CNET News.com, 27 August 2002, available " -"at <ulink url=\"http://free-culture.cc/notes/\">link #84</ulink>. Fisher's " -"proposal is very similar to Richard Stallman's proposal for DAT. Unlike " -"Fisher's, Stallman's proposal would not pay artists directly proportionally, " -"though more popular artists would get more than the less popular. As is " -"typical with Stallman, his proposal predates the current debate by about a " -"decade. See <ulink url=\"http://free-culture.cc/notes/\">link #85</ulink>. " -"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " -"id=\"1\"/>" +"see Lawrence Lessig, \"Who's Holding Back Broadband?\" <citetitle>Washington " +"Post</citetitle>, 8 January 2002, A17; Philip S. Corwin on behalf of Sharman " +"Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman of the Senate " +"Foreign Relations Committee, 26 February 2002, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #80</ulink>; Serguei Osokine, " +"<citetitle>A Quick Case for Intellectual Property Use Fee " +"(IPUF)</citetitle>, 3 March 2002, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson Graham, " +"\"Kazaa, Verizon Propose to Pay Artists Directly,\" <citetitle>USA " +"Today</citetitle>, 13 May 2002, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #82</ulink>; Steven M. Cherry, " +"\"Getting Copyright Right,\" IEEE Spectrum Online, 1 July 2002, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #83</ulink>; Declan " +"McCullagh, \"Verizon's Copyright Campaign,\" CNET News.com, 27 August 2002, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #84</ulink>. " +"Fisher's proposal is very similar to Richard Stallman's proposal for " +"DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly " +"proportionally, though more popular artists would get more than the less " +"popular. As is typical with Stallman, his proposal predates the current " +"debate by about a decade. See <ulink " +"url=\"http://free-culture.cc/notes/\">link #85</ulink>. <placeholder " +"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14048 +#: freeculture.xml:13994 msgid "" "The idea would be a modification of a proposal that has been floated by " "Harvard law professor William Fisher.<placeholder type=\"footnote\" " @@ -17652,25 +18159,25 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14097 +#: freeculture.xml:14045 msgid "" "Fisher's proposal is careful and comprehensive. It raises a million " -"questions, most of which he answers well in his upcoming book, Promises to " -"Keep. The modification that I would make is relatively simple: Fisher " -"imagines his proposal replacing the existing copyright system. I imagine it " -"complementing the existing system. The aim of the proposal would be to " -"facilitate compensation to the extent that harm could be shown. This " -"compensation would be temporary, aimed at facilitating a transition between " -"regimes. And it would require renewal after a period of years. If it " -"continues to make sense to facilitate free exchange of content, supported " -"through a taxation system, then it can be continued. If this form of " -"protection is no longer necessary, then the system could lapse into the old " -"system of controlling access." +"questions, most of which he answers well in his upcoming book, " +"<citetitle>Promises to Keep</citetitle>. The modification that I would make " +"is relatively simple: Fisher imagines his proposal replacing the existing " +"copyright system. I imagine it complementing the existing system. The aim " +"of the proposal would be to facilitate compensation to the extent that harm " +"could be shown. This compensation would be temporary, aimed at facilitating " +"a transition between regimes. And it would require renewal after a period of " +"years. If it continues to make sense to facilitate free exchange of content, " +"supported through a taxation system, then it can be continued. If this form " +"of protection is no longer necessary, then the system could lapse into the " +"old system of controlling access." msgstr "" #. PAGE BREAK 307 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14112 +#: freeculture.xml:14060 msgid "" "Fisher would balk at the idea of allowing the system to lapse. His aim is " "not just to ensure that artists are paid, but also to ensure that the system " @@ -17683,7 +18190,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14125 +#: freeculture.xml:14073 msgid "" "No doubt it would be difficult to calculate the proper measure of \"harm\" " "to an industry. But the difficulty of making that calculation would be " @@ -17700,7 +18207,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14140 +#: freeculture.xml:14088 msgid "" "This competition has already occurred against the background of \"free\" " "music from p2p systems. As the sellers of cable television have known for " @@ -17715,7 +18222,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14152 +#: freeculture.xml:14100 msgid "" "This regime of competition, with a backstop to assure that artists don't " "lose, would facilitate a great deal of innovation in the delivery of " @@ -17726,13 +18233,13 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14161 +#: freeculture.xml:14109 msgid "In summary, then, my proposal is this:" msgstr "" #. PAGE BREAK 308 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14166 +#: freeculture.xml:14114 msgid "" "The Internet is in transition. We should not be regulating a technology in " "transition. We should instead be regulating to minimize the harm to " @@ -17741,19 +18248,19 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14173 +#: freeculture.xml:14121 msgid "We can minimize that harm while maximizing the benefit to innovation by" msgstr "" #. 1. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:14179 +#: freeculture.xml:14127 msgid "guaranteeing the right to engage in type D sharing;" msgstr "" #. 2. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:14183 +#: freeculture.xml:14131 msgid "" "permitting noncommercial type C sharing without liability, and commercial " "type C sharing at a low and fixed rate set by statute;" @@ -17761,14 +18268,14 @@ msgstr "" #. 3. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> -#: freeculture.xml:14189 +#: freeculture.xml:14137 msgid "" "while in this transition, taxing and compensating for type A sharing, to the " "extent actual harm is demonstrated." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14194 +#: freeculture.xml:14142 msgid "" "But what if \"piracy\" doesn't disappear? What if there is a competitive " "market providing content at a low cost, but a significant number of " @@ -17777,24 +18284,24 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14200 +#: freeculture.xml:14148 msgid "" "Yes, it should. But, again, what it should do depends upon how the facts " "develop. These changes may not eliminate type A sharing. But the real issue " "is not whether it eliminates sharing in the abstract. The real issue is its " "effect on the market. Is it better (a) to have a technology that is 95 " -"percent secure and produces a market of size x, or (b) to have a technology " -"that is 50 percent secure but produces a market of five times x? Less secure " -"might produce more unauthorized sharing, but it is likely to also produce a " -"much bigger market in authorized sharing. The most important thing is to " -"assure artists' compensation without breaking the Internet. Once that's " -"assured, then it may well be appropriate to find ways to track down the " -"petty pirates." +"percent secure and produces a market of size <citetitle>x</citetitle>, or " +"(b) to have a technology that is 50 percent secure but produces a market of " +"five times <citetitle>x</citetitle>? Less secure might produce more " +"unauthorized sharing, but it is likely to also produce a much bigger market " +"in authorized sharing. The most important thing is to assure artists' " +"compensation without breaking the Internet. Once that's assured, then it may " +"well be appropriate to find ways to track down the petty pirates." msgstr "" #. PAGE BREAK 309 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14214 +#: freeculture.xml:14162 msgid "" "But we're a long way away from whittling the problem down to this subset of " "type A sharers. And our focus until we're there should not be on finding " @@ -17804,12 +18311,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> -#: freeculture.xml:14225 +#: freeculture.xml:14173 msgid "5. Fire Lots of Lawyers" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14227 +#: freeculture.xml:14175 msgid "" "I'm a lawyer. I make lawyers for a living. I believe in the law. I believe " "in the law of copyright. Indeed, I have devoted my life to working in law, " @@ -17818,7 +18325,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14233 +#: freeculture.xml:14181 msgid "" "Yet much of this book has been a criticism of lawyers, or the role lawyers " "have played in this debate. The law speaks to ideals, but it is my view that " @@ -17829,14 +18336,15 @@ msgstr "" #. f10. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:14250 +#: freeculture.xml:14198 msgid "" "Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer " -"Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70." +"Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, " +"1069–70." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14241 +#: freeculture.xml:14189 msgid "" "The evidence of this bending is compelling. I'm attacked as a \"radical\" by " "many within the profession, yet the positions that I am advocating are " @@ -17849,35 +18357,35 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14256 +#: freeculture.xml:14204 msgid "" "However, my criticism of the role that lawyers have played in this debate is " "not just about a professional bias. It is more importantly about our failure " "to actually reckon the costs of the law." msgstr "" -#. f11. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> -#: freeculture.xml:14266 +#: freeculture.xml:14214 msgid "" "A good example is the work of Professor Stan Liebowitz. Liebowitz is to be " "commended for his careful review of data about infringement, leading him to " "question his own publicly stated position—twice. He initially " "predicted that downloading would substantially harm the industry. He then " "revised his view in light of the data, and he has since revised his view " -"again. Compare Stan J. Liebowitz, Rethinking the Network Economy: The True " -"Forces That Drive the Digital Marketplace (New York: Amacom, 2002), " -"(reviewing his original view but expressing skepticism) with Stan J. " -"Liebowitz, \"Will MP3s Annihilate the Record Industry?\" working paper, June " -"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " -"#86</ulink>. Liebowitz's careful analysis is extremely valuable in " -"estimating the effect of file-sharing technology. In my view, however, he " -"underestimates the costs of the legal system. See, for example, Rethinking, " -"174–76." +"again. Compare Stan J. Liebowitz, <citetitle>Rethinking the Network " +"Economy: The True Forces That Drive the Digital Marketplace</citetitle> (New " +"York: Amacom, 2002), (reviewing his original view but expressing skepticism) " +"with Stan J. Liebowitz, \"Will MP3s Annihilate the Record Industry?\" " +"working paper, June 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #86</ulink>. Liebowitz's careful " +"analysis is extremely valuable in estimating the effect of file-sharing " +"technology. In my view, however, he underestimates the costs of the legal " +"system. See, for example, <citetitle>Rethinking</citetitle>, 174–76. " +"<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14261 +#: freeculture.xml:14209 msgid "" "Economists are supposed to be good at reckoning costs and benefits. But " "more often than not, economists, with no clue about how the legal system " @@ -17889,7 +18397,7 @@ msgstr "" #. PAGE BREAK 310 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14289 +#: freeculture.xml:14238 msgid "" "But the legal system doesn't work. Or more accurately, it doesn't work for " "anyone except those with the most resources. Not because the system is " @@ -17899,7 +18407,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14297 +#: freeculture.xml:14246 msgid "" "These costs distort free culture in many ways. A lawyer's time is billed at " "the largest firms at more than $400 per hour. How much time should such a " @@ -17912,7 +18420,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14307 +#: freeculture.xml:14256 msgid "" "The costliness and clumsiness and randomness of this system mock our " "tradition. And lawyers, as well as academics, should consider it their duty " @@ -17923,7 +18431,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14315 +#: freeculture.xml:14264 msgid "" "But until that reform is complete, we as a society should keep the law away " "from areas that we know it will only harm. And that is precisely what the " @@ -17931,7 +18439,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14321 +#: freeculture.xml:14270 msgid "" "Think about the amazing things your kid could do or make with digital " "technology—the film, the music, the Web page, the blog. Or think about " @@ -17944,7 +18452,7 @@ msgstr "" #. PAGE BREAK 311 #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14330 +#: freeculture.xml:14279 msgid "" "The law should regulate in certain areas of culture—but it should " "regulate culture only where that regulation does good. Yet lawyers rarely " @@ -17954,7 +18462,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> -#: freeculture.xml:14339 +#: freeculture.xml:14288 msgid "" "We should ask, \"Why?\" Show me why your regulation of culture is " "needed. Show me how it does good. And until you can show me both, keep your " @@ -17962,12 +18470,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:14348 +#: freeculture.xml:14297 msgid "NOTES" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:14350 +#: freeculture.xml:14299 msgid "" "Throughout this text, there are references to links on the World Wide " "Web. As anyone who has tried to use the Web knows, these links can be highly " @@ -17981,12 +18489,12 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><title> -#: freeculture.xml:14365 +#: freeculture.xml:14314 msgid "ACKNOWLEDGMENTS" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:14367 +#: freeculture.xml:14316 msgid "" "This book is the product of a long and as yet unsuccessful struggle that " "began when I read of Eric Eldred's war to keep books free. Eldred's work " @@ -17995,7 +18503,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:14373 +#: freeculture.xml:14322 msgid "" "I received guidance in various places from friends and academics, including " "Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and " @@ -18011,7 +18519,7 @@ msgstr "" #. PAGE BREAK 337 #. type: Content of: <book><chapter><para> -#: freeculture.xml:14386 +#: freeculture.xml:14335 msgid "" "Yuko Noguchi helped me to understand the laws of Japan as well as its " "culture. I am thankful to her, and to the many in Japan who helped me " @@ -18024,7 +18532,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:14397 +#: freeculture.xml:14346 msgid "" "These are the traditional sorts of help that academics regularly draw " "upon. But in addition to them, the Internet has made it possible to receive " @@ -18045,7 +18553,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:14417 +#: freeculture.xml:14366 msgid "" "Richard Stallman and Michael Carroll each read the whole book in draft, and " "each provided extremely helpful correction and advice. Michael helped me to " @@ -18056,7 +18564,7 @@ msgid "" msgstr "" #. type: Content of: <book><chapter><para> -#: freeculture.xml:14426 +#: freeculture.xml:14375 msgid "" "Finally, and forever, I am thankful to Bettina, who has always insisted that " "there would be unending happiness away from these battles, and who has "