X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/bbfb8360b669f4a13697a3d64a6e1ab863f2f3a2..113a433633dff43563643e25a364f9c851953f6d:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index f22ac2c..b629800 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -52,8 +52,8 @@ - The Penguin Press -
New York
+ Petter Reinholdtsen +
Oslo
 @@ -124,7 +124,7 @@ Appeals. --> - 1-59420-006-8 + 978-82-92812-XX-Y - - - -You can buy a copy of this book by clicking on one of the links below: - - -Amazon -B&N -Penguin - - - - @@ -162,96 +148,10 @@ Code: And Other Laws of Cyberspace - - -THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New -York, New York - - -Copyright © Lawrence Lessig. All rights reserved. - - -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. - - -Cartoon in by Paul Conrad, copyright Tribune -Media Services, Inc. All rights reserved. Reprinted with permission. - - -Diagram in courtesy of the office of FCC -Commissioner, Michael J. Copps. - - -Library of Congress Cataloging-in-Publication Data - - -Lessig, Lawrence. -Free culture : how big media uses technology and the law to lock down -culture and control creativity / Lawrence Lessig. - - -p. cm. - - -Includes index. - - -ISBN 1-59420-006-8 (hardcover) - - - -1. Intellectual property—United States. 2. Mass media—United States. - - -3. Technological innovations—United States. 4. Art—United States. I. Title. - - -KF2979.L47 - - -343.7309'9—dc22 - - -This book is printed on acid-free paper. - - -Printed in the United States of America - - -1 3 5 7 9 10 8 6 4 - - -Designed by Marysarah Quinn - - - -&translationblock; - - - -Without limiting the rights under copyright reserved above, no part of -this publication may be reproduced, stored in or introduced into a -retrieval system, or transmitted, in any form or by any means -(electronic, mechanical, photocopying, recording or otherwise), -without the prior written permission of both the copyright owner and -the above publisher of this book. - - -The scanning, uploading, and distribution of this book via the -Internet or via any other means without the permission of the -publisher is illegal and punishable by law. Please purchase only -authorized electronic editions and do not participate in or encourage -electronic piracy of copyrighted materials. Your support of the -author's rights is appreciated. - - - -To Eric Eldred—whose work first drew me to this cause, and for whom +To Eric Eldred — whose work first drew me to this cause, and for whom it continues still. @@ -1000,9 +900,9 @@ independent. We have built a kind of cultural nobility; those within the noble class live easily; those outside it don't. But it is nobility of any form that is alien to our tradition. - + -The story that follows is about this war. Is it not about the +The story that follows is about this war. It is not about the centrality of technology to ordinary life. I don't believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group, for neither do I believe in a devil, corporate or @@ -1636,7 +1536,7 @@ flourish. As American graphic novelist Judd Winick said to me, The early days of comics in America are very much like what's going on in Japan now. … American comics were born out of copying each -other. … That's how [the artists] learn to draw—by going into comic +other. … That's how [the artists] learn to draw — by going into comic books and not tracing them, but looking at them and copying them and building from them. @@ -1732,8 +1632,8 @@ The term intellectual property is of relatively recent or Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas (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 +describes a set of property rights — copyright, patents, +trademark, and trade-secret — but the nature of those rights is very different. A large, diverse society cannot survive without property; a large, @@ -2851,7 +2751,6 @@ access to material from that institution. Businesses do this all the time, enabling employees to have access to material that people outside the business can't get. Universities do it as well. - Jordan, Jesse Microsoftnetwork file system of @@ -3226,7 +3125,7 @@ composer and publisher without any regard for [their] rights. To Amend and Consolidate the Acts Respecting Copyright: Hearings on -S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th +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 @@ -3344,7 +3243,7 @@ creativity. 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 +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). @@ -3865,9 +3764,10 @@ and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit. -innovation -Fanning, Shawn +Fanning, Shawn +innovation +Napster Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet @@ -3888,6 +3788,9 @@ Christensen's ideas, see Lawrence Lessig, Future, 89&ndas put together components that had been developed independently. +Kazaa +Napsternumber of registrations on +Napsterreplacement of The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the @@ -3908,6 +3811,7 @@ users to make content available to any number of other users. With a p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends. + According to a number of estimates, a huge proportion of Americans have tasted file-sharing technology. A study by Ipsos-Insight in @@ -4214,8 +4118,9 @@ 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. -Bernstein, Leonard booksout of print +Bernstein, Leonard +Internetbooks on Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because the person making @@ -4238,6 +4143,8 @@ stopped, do you think that libraries and used book stores should be shut as well? booksfree on-line releases of +Doctorow, Cory +Down and Out in the Magic Kingdom (Doctorow) Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur—the sharing of content that copyright owners @@ -4269,6 +4176,7 @@ understandably says, This is how much we've lost, we must also as efficiencies? What is the content that otherwise would be unavailable? + For unlike the piracy I described in the first section of this chapter, much of the piracy that file sharing enables is plainly @@ -4288,14 +4196,13 @@ found only with time. just what you call type A sharing? -You would think. And we should hope. But so far, it is not. The - effect +You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing alone has been felt far -beyond that one class of sharing. That much is obvious from the - Napster -case itself. When Napster told the district court that it had - developed -a technology to block the transfer of 99.4 percent of identified +beyond that one class of sharing. That much is obvious from the +Napster case itself. When Napster told the district court that it had +developed a technology to block the transfer of 99.4 percent of +identified + infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements @@ -4386,7 +4293,7 @@ Congress chose a path that would assure -Betamax +Betamax cassette recordingVCRs In the same year that Congress struck this balance, two major @@ -4459,6 +4366,7 @@ Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti). + It took eight years for this case to be resolved by the Supreme Court. In the interim, the Ninth Circuit Court of Appeals, which @@ -5826,9 +5734,12 @@ room of over 250 well-entertained judges. Taking an ominous tone, he began his talk with a question: Do you know how many federal laws were just violated in this room? -Boies, David -Alben, Alex +Alben, Alex +Boies, David +Court of AppealsNinth Circuit +Ninth Circuit Court of Appeals +Napster For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the rights to these clips; technically, what they had done violated the @@ -6112,7 +6023,7 @@ all—in the library archive of the film company. 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 & +Preservation in the United States (Jefferson, N.C.: McFarland & Co., 1992), 36. @@ -6546,7 +6457,7 @@ weaken the right or regulation. I represented it with this diagram:
How four different modalities of regulation interact to support or weaken the right or regulation. - +
Madonna @@ -6675,7 +6586,8 @@ driving.
Law has a special role in affecting the three. - + +
architecture, constraint effected through @@ -6738,7 +6650,8 @@ Internet:
Copyright's regulation before the Internet. - + +
architecture, constraint effected through lawas constraint modality @@ -6783,7 +6696,8 @@ looting that results.
effective state of anarchy after the Internet. - + +
Commerce, U.S. Department of regulationas establishment protectionism @@ -6863,7 +6777,7 @@ 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 +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 @@ -7106,14 +7020,14 @@ started here:
Copyright's regulation before the Internet. - +
We will end here:
<quote>Copyright</quote> today. - +
Let me explain how. @@ -7608,7 +7522,7 @@ empty circle.
All potential uses of a book. - +
booksthree types of uses of copyright lawcopies as core issue of @@ -7632,15 +7546,15 @@ acts do not make a copy.
Examples of unregulated uses of a book. - +
Obviously, however, some uses of a copyrighted book are regulated by copyright law. Republishing the book, for example, makes a copy. It is therefore regulated by copyright law. Indeed, this particular use stands at the core of this circle of possible uses of a copyrighted work. It is the -paradigmatic use properly regulated by copyright regulation (see first -diagram on next page). +paradigmatic use properly regulated by copyright regulation (see +diagram ). @@ -7653,7 +7567,7 @@ that remain unregulated because the law considers these fair uses.
Republishing stands at the core of this circle of possible uses of a copyrighted work. - +
Constitution, U.S.First Amendment to First Amendment @@ -7669,12 +7583,12 @@ for public policy (and possibly First Amendment) reasons.
Unregulated copying considered <quote>fair uses.</quote> - +
Uses that before were presumptively unregulated are now presumptively regulated. - +
copyrightusage restrictions attached to @@ -8012,7 +7926,7 @@ a button at the bottom called Permissions.
Picture of an old version of Adobe eBook Reader - +
If you click on the Permissions button, you'll see a list of the @@ -8020,7 +7934,7 @@ permissions that the publisher purports to grant with this book.
List of the permissions that the publisher purports to grant. - +
@@ -8039,7 +7953,7 @@ translation): Aristotle's Politics.
E-book of Aristotle;s <quote>Politics</quote> - +
According to its permissions, no printing or copying is permitted @@ -8048,7 +7962,7 @@ the book.
List of the permissions for Aristotle;s <quote>Politics</quote>. - +
Future of Ideas, The (Lessig) Lessig, Lawrence @@ -8060,7 +7974,7 @@ Ideas:
List of the permissions for <quote>The Future of Ideas</quote>. - +
No copying, no printing, and don't you dare try to listen to this book! @@ -8146,7 +8060,7 @@ following report:
List of the permissions for <quote>Alice's Adventures in Wonderland</quote>. - +
@@ -8495,7 +8409,7 @@ and bad uses.
VCR/handgun cartoon. - +
Conrad, Paul @@ -8618,7 +8532,7 @@ media. Before this change happened, the different forms of media were owned by separate media companies. Now, the media is increasingly owned by only a few companies. Indeed, after the changes that the FCC announced in June 2003, most expect that within a few years, we will -live in a world where just three companies control more than percent +live in a world where just three companies control more than 85 percent of the media. @@ -8676,11 +8590,11 @@ of all cable revenue. This is a market far from the free press the framers sought to protect. Indeed, it is a market that is quite well protected— by the market. +Fallows, James Concentration in size alone is one thing. The more invidious change is in the nature of that concentration. As author James Fallows put it in a recent article about Rupert Murdoch, -Fallows, James
@@ -8709,7 +8623,7 @@ pattern better than a thousand words could do:
Pattern of modern media ownership. - +
@@ -8901,6 +8815,9 @@ depend fundamentally upon the press to help inform Americans about these issues. advertising +commercials +televisionadvertising on +Nick and Norm anti-drug campaign Beginning in 1998, the Office of National Drug Control Policy launched a media campaign as part of the war on drugs. The campaign produced @@ -8930,6 +8847,10 @@ money. Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then? +Constitution, U.S.First Amendment to +First Amendment +Supreme Court, U.S.on television advertising bans +televisioncontroversy avoided by No. You cannot. Television stations have a general policy of avoiding controversial ads. Ads sponsored by the government are deemed @@ -8941,6 +8862,13 @@ commercial media will refuse one side of a crucial debate the opportunity to present its case. And the courts will defend the rights of the stations to be this biased. +ABC +Comcast +Marijuana Policy Project +NBC +WJOA +WRC +advertising The Marijuana Policy Project, in February 2003, sought to place ads that directly responded to the Nick and Norm series on stations within the Washington, D.C., area. Comcast rejected the ads as against @@ -8949,31 +8877,29 @@ without reviewing them. The local ABC affiliate, WJOA, originally agreed to run the ads and accepted payment to do so, but later decided not to run the ads and returned 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 +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 -link #32. The ground -was that the criticism was too controversial. -ABC -Comcast -Marijuana Policy Project -NBC -WJOA -WRC -advertising +diesel buses. Phillip Matier and Andrew Ross, Antidiesel Group +Fuming After Muni Rejects Ad, SFGate.com, 16 June 2003, +available at link +#32. The ground was that the criticism was too +controversial. + + 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 @@ -9247,13 +9173,13 @@ property, the state ought to protect it. But first impressions notwithstanding, historically, this property right (as with all property rights +legal realist movement 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). -legal realist movement ) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to @@ -9270,19 +9196,23 @@ We achieved that free culture because our law respected important limits on the scope of the interests protected by property. The very birth of copyright as a statutory right recognized those limits, by granting copyright owners protection for a limited time only (the -story of chapter 6). The tradition of fair use is animated by a -similar concern that is increasingly under strain as the costs of -exercising any fair use right become unavoidably high (the story of -chapter 7). Adding +story of chapter ). The tradition of fair use is +animated by a similar concern that is increasingly under strain as the +costs of exercising any fair use right become unavoidably high (the +story of chapter ). Adding statutory rights where markets might stifle innovation is another -familiar limit on the property right that copyright is (chapter -8). And granting archives and libraries a broad freedom to collect, -claims of property notwithstanding, is a crucial part of guaranteeing -the soul of a culture (chapter 9). Free cultures, like free markets, -are built with property. But the nature of the property that builds a -free culture is very different from the extremist vision that -dominates the debate today. +familiar limit on the property right that copyright is (chapter ). And +granting archives and libraries a broad freedom to collect, claims of +property notwithstanding, is a crucial part of guaranteeing the soul +of a culture (chapter ). Free cultures, like free markets, are built +with property. But the nature of the property that builds a free +culture is very different from the extremist vision that dominates the +debate today. Free culture is increasingly the casualty in this war on piracy. In @@ -9672,7 +9602,7 @@ on remote topics of science or culture. There is a vast amount of creative work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. -Worldcom +WorldCom copyright infringement lawsuitsexaggerated claims of copyright infringement lawsuitsin recording industry doctors malpractice claims against @@ -9683,11 +9613,12 @@ examples of extreme penalties for vague infringements continue to proliferate. It is impossible to get a clear sense of what's allowed and what's not, and at the same time, the penalties for crossing the line are astonishingly harsh. The four students who were threatened -by the RIAA ( Jesse Jordan of chapter 3 was just one) were threatened -with a $98 billion lawsuit for building search engines that permitted -songs to be copied. Yet World-Com—which defrauded investors of -$11 billion, resulting in a loss to investors in market capitalization -of over $200 billion—received a fine of a mere $750 +by the RIAA (Jesse Jordan of chapter was just one) were threatened with a +$98 billion lawsuit for building search engines that permitted songs +to be copied. Yet World-Com—which defrauded investors of $11 +billion, resulting in a loss to investors in market capitalization of +over $200 billion—received a fine of a mere $750 million. See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom @@ -9695,7 +9626,7 @@ See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldComMCI Wins U.S. District Court Approval for SEC Settlement (7 July 2003), available at link #37. -Worldcom +WorldCom And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for @@ -10090,7 +10021,7 @@ creativity generally. Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to -produce an overregulatedregulated market. +produce an overregulated-regulated market. The building of a permission culture, rather than a free culture, is @@ -10200,7 +10131,8 @@ N.Y.: Prometheus Books, 2001). Digital Copyright (Litman) Litman, Jessica -overall this history of copyright is not bad. As chapter 10 details, +overall this history of copyright is not bad. As chapter + 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 @@ -10238,6 +10170,9 @@ implemented by Congress. I won't catalog all of those responses here. Tauzin, Billy +Berman, Howard L. +Hollings, Fritz +broadcast flag For example, in July 2002, Representative Howard Berman introduced the Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize copyright holders from liability for damage done to computers when the @@ -10252,9 +10187,6 @@ technology in all digital media devices. See GartnerG2, Copyright and Digital Media in a Post-Napster World, 27 June 2003, 33–34, available at link #44. -Berman, Howard L. -Hollings, Fritz -broadcast flag But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. @@ -12077,7 +12009,7 @@ 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 Foundation (home of the GNU project that made GNU/ Linux +Software Foundation (home of the GNU project that made GNU/Linux possible). They included a powerful brief about the costs of uncertainty by Intel. There were two law professors' briefs, one by copyright scholars and one by First Amendment scholars. There was an @@ -12781,7 +12713,7 @@ unfair. But the punch in the face felt exactly like that.
Tom the Dancing Bug cartoon - + Bolling, Ruben
@@ -15647,4 +15579,127 @@ grateful for her perpetual patience and love. + + +This digital book was published by Petter Reinholdtsen in 2014. + + +The original hardcover paper book was published in 2004 by The Penguin +Press, a member of Penguin Group (USA) Inc. 375 Hudson Street New +York, New York. + + +Copyright © Lawrence Lessig. Some rights reserved. + + +This version of Free Culture is licensed under +a Creative Commons license. This license permits non-commercial use of +this work, so long as attribution is given. For more information +about the license, click the icon above, or visit +http://creativecommons.org/licenses/by-nc/1.0/ + + +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. + + +Cartoon in by Paul +Conrad, copyright Tribune Media Services, Inc. All rights +reserved. Reprinted with permission. + + +Diagram in +courtesy of the office of FCC Commissioner, Michael J. Copps. + + +Library of Congress Cataloging-in-Publication Data + + +Lessig, Lawrence. +Free culture : how big media uses technology and the law to lock down +culture and control creativity / Lawrence Lessig. + + +p. cm. + + +Includes index. + + + + + + + + ISBN + Format / MIME-type + + + + + 978-82-92812-XX-Y + text/plain + + + + 978-82-92812-XX-Y + application/pdf + + + 978-82-92812-XX-Y + text/html + + + 978-82-92812-XX-Y + application/epub+zip + + + 978-82-92812-XX-Y + application/docbook+xml + + + 978-82-92812-XX-Y + application/x-mobipocket-ebook + + + + + + + +1. Intellectual property—United States. + + +2. Mass media—United States. + + +3. Technological innovations—United States. + + +4. Art—United States. I. Title. + + +KF2979.L47 2004 + + +343.7309'9—dc22 2003063276 + + + +The source of this version of the text is written using DocBook +notation and the other formats are derived from the DocBook source. +The DocBook source is based on a DocBook XML version created by Hans +Schou, and extended with formatting and index references by Petter +Reinholdtsen. The source files of this book is available as +a +github project. + + + +&translationblock; + + +