X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/bfe44c94fe18df7bf6b209cc619e7f62ace922a7..1ea899c28491287a9ae55a722fcbc824038f245b:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 32f31a3..e3524ac 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -86,15 +86,21 @@ You can buy a copy of this book by clicking on one of the links below: ALSO BY LAWRENCE LESSIG -The Future of Ideas: The Fate of the Commons + + +The Future of Ideas: The Fate of the Commons in a Connected World -Code: And Other Laws of Cyberspace + + +Code: And Other Laws of Cyberspace THE PENGUIN PRESS -NEW YORK + + +NEW YORK @@ -115,31 +121,71 @@ LAWRENCE LESSIG THE PENGUIN PRESS -a member of Penguin Group (USA) Inc. 375 Hudson Street New + + +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," + + +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 by Paul Conrad on page 159. Copyright Tribune Media Services, Inc. -All rights reserved. Reprinted with permission. -Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps. -Library of Congress Cataloging-in-Publication Data -Lessig, Lawrence. + + +Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc. + + +All rights reserved. Reprinted with permission. + + +Diagram on page 164 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 + + +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 @@ -444,8 +490,6 @@ such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. -Causby, Thomas Lee -Causby, Tinie 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 @@ -455,6 +499,8 @@ 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. +Causby, Thomas Lee +Causby, Tinie @@ -724,7 +770,6 @@ then quite extensively, the law protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial marketplace. -Brandeis, Louis D. This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. @@ -734,6 +779,7 @@ right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, 198–200. +Brandeis, Louis D. This is also, of course, an important part of creativity and culture, and it has become @@ -843,10 +889,10 @@ our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. And as Professor Neil Netanel powerfully argues, -Netanel, Neil Weinstock Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law Journal 106 (1996): 283. +Netanel, Neil Weinstock copyright law, properly balanced, protected creators against private control. Our tradition was thus neither Soviet nor the tradition of @@ -1071,6 +1117,7 @@ from someone else without permission is wrong. It is a form of piracy. +Dreyfuss, Rochelle This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the "if value, then right" @@ -1144,7 +1191,6 @@ creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may be seeing, as Richard Florida writes, the "Rise of the Creative Class." -Florida, Richard In The Rise of the Creative Class (New York: Basic Books, 2002), @@ -1154,6 +1200,7 @@ legal conditions under which that creativity is enabled or stifled. I certainly agree with him about the importance and significance of this change, but I also believe the conditions under which it will be enabled are much more tenuous. +Florida, Richard Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. @@ -1668,11 +1715,11 @@ practice of photography the necessity for exceptional facilities or, in fact, any special knowledge of the art. It can be employed without preliminary study, without a darkroom and without chemicals. -Coe, Brian Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. +Coe, Brian @@ -1757,12 +1804,12 @@ Sure, there may be something of value being used. But citizens should have the right to capture at least those images that stand in public view. (Louis Brandeis, who would become a Supreme Court Justice, thought the rule should be different for images from private spaces. -Brandeis, Louis D. -Warren, Samuel D. Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193. +Brandeis, Louis D. +Warren, Samuel D. ) 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 @@ -1906,12 +1953,12 @@ California's Annenberg Center for Communication and dean of the USC School of Cinema-Television, explained to me, the grammar was about "the placement of objects, color, . . . rhythm, pacing, and texture." -Barish, Stephanie -Daley, Elizabeth Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. +Barish, Stephanie +Daley, Elizabeth But as computers open up an interactive space where a story is "played" as well as experienced, that grammar changes. The simple @@ -1967,10 +2014,10 @@ tools that enable the writing to lead or mislead. The aim of any literacy, and this literacy in particular, is to "empower people to choose the appropriate language for what they need to create or express." -Barish, Stephanie Interview with Daley and Barish. +Barish, Stephanie It is to enable students "to communicate in the language of the twenty-first century." @@ -2318,7 +2365,6 @@ with blogs. "It's going to become an essential skill," Winer predicts, for public figures and increasingly for private figures as well. It's not clear that "journalism" is happy about this—some journalists have been told to curtail their blogging. -CNN See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New @@ -2329,6 +2375,7 @@ 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.") +CNN But it is clear that we are still in transition. "A @@ -3298,6 +3345,7 @@ 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. +Drahos, Peter In my view, more developing nations should take advantage of that opportunity, but when they don't, then their laws should be respected. And under the laws of these nations, this piracy @@ -3710,11 +3758,11 @@ no doubt accounts for some of the decrease in sales. Rising prices could account for at least some of the loss. "From 1999 to 2001, the average price of a CD rose 7.2 percent, from $13.04 to $14.19." -Black, Jane Jane Black, "Big Music's Broken Record," BusinessWeek online, 13 February 2003, available at link #17. +Black, Jane Competition from other forms of media could also account for some of the @@ -5073,16 +5121,16 @@ Alben replied, "Well, we're going to have to clear rights from everyone who appears in these films, and the music and everything else that we want to use in these film clips." Slade said, "Great! Go for it." - -artists -publicity rights on images of - Technically, the rights that Alben had to clear were mainly those of publicity—rights an artist has to control the commercial exploitation of his image. But these rights, too, burden "Rip, Mix, Burn" creativity, as this chapter evinces. + +artists +publicity rights on images of + @@ -5159,6 +5207,7 @@ And no doubt, the product itself was exceptionally good. Eastwood loved it, and it sold very well. Alben, Alex +Drucker, Peter 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 @@ -6049,7 +6098,6 @@ property at any particular moment, we must track these changes over time. A restriction imposed by one modality might be erased by another. A freedom enabled by one modality might be displaced by another. -Commons, John R. Some people object to this way of talking about "liberty." They object @@ -6079,7 +6127,9 @@ 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. +of these groups might face. +Commons, John R. + Why Hollywood Is Right @@ -6411,7 +6461,6 @@ the English had confronted in 1774. Many states had passed laws protecting creative property, and some believed that these laws simply supplemented common law rights that already protected creative authorship. -Crosskey, William W. William W. Crosskey, Politics and the Constitution in the History of @@ -6419,6 +6468,7 @@ 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). +Crosskey, William W. This meant that there was no guaranteed public domain in the United States in 1790. If copyrights were protected by the common law, then @@ -8824,7 +8874,6 @@ And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering. -Bush, George W. 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 @@ -8835,6 +8884,7 @@ and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003, available at link #39. President Bush has continued to urge tort reform in recent months. +Bush, George W. Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more @@ -9124,13 +9174,13 @@ the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this forward for release stateside. Even today, no new cars are sold in the United States with bona fide MP3 players. . . . -Needleman, Rafe Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June 2003, available at link #43. I am grateful to Dr. Mohammad Al-Ubaydli for this example. +Needleman, Rafe @@ -9459,7 +9509,6 @@ William Fisher estimates, if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be over $1 million a year. -CARP (Copyright Arbitration Royalty Panel) This example was derived from fees set by the original Copyright @@ -9479,6 +9528,7 @@ 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." +CARP (Copyright Arbitration Royalty Panel) A regular radio station broadcasting the same content would pay no equivalent fee. @@ -12203,11 +12253,12 @@ example, if the drug was sold in India, it could be imported into Africa from India. This is called "parallel importation," and it is generally permitted under international trade law and is specifically permitted within the European Union. -Braithwaite, John See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 37. +Braithwaite, John +Drahos, Peter @@ -12667,6 +12718,7 @@ As Peter Drahos and John Braithwaite relate, this is precisely the choice we are now making about intellectual property. See Drahos with Braithwaite, Information Feudalism, 210–20. +Drahos, Peter We will have an information society. That much is certain. Our only choice now is whether that information society will be free or @@ -12791,6 +12843,7 @@ called "property" is not well exercised within this tradition anymore. If we were Achilles, this would be our heel. This would be the place of our tragedy. +Dylan, Bob As I write these final words, the news is filled with stories about the RIAA lawsuits against almost three hundred individuals. @@ -13785,11 +13838,11 @@ 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 reverse of the recommendation of my colleague Paul Goldstein. -Goldstein, Paul Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stanford: Stanford University Press, 2003), 187–216. +Goldstein, Paul His view is that the law should be written so that expanded protections follow expanded uses. @@ -14049,8 +14102,6 @@ way to compensate those who are harmed. The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher. -Netanel, Neil Weinstock -Fisher, William William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at @@ -14086,6 +14137,8 @@ popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85. +Netanel, Neil Weinstock +Fisher, William Fisher suggests a very clever way around the current impasse of the Internet. Under his