@@ -249,52 +352,56 @@ Unlike actual law, Internet software has no capacity to punish. It
doesn't affect people who aren't online (and only a tiny minority
of the world population is). And if you don't like the Internet's
system, you can always flip off the modem.
-David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
+David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
-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.
+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.
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
+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.
+
-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 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.
That tradition is the way our culture gets made. As I explain in the
pages that follow, we come from a tradition of "free culture"—not
"free" as in "free beer" (to borrow a phrase from the founder of the
-freesoftware movement
+free software movement
-Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002).
-), but "free" as in "free speech," "free markets," "free
-trade," "free enterprise," "free will," and "free elections." A free
-culture supports and protects creators and innovators. It does this
-directly by granting intellectual property rights. But it does so
+Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002).
+), but "free" as in "free speech," "free markets,"
+"free trade," "free enterprise," "free will," and "free elections." A
+free culture supports and protects creators and innovators. It does
+this directly by granting intellectual property rights. But it does so
indirectly by limiting the reach of those rights, to guarantee that
-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.
+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.
If we understood this change, I believe we would resist it. Not "we"
@@ -305,6 +412,7 @@ disinterested, then the story I tell here will trouble you. For the
changes I describe affect values that both sides of our political
culture deem fundamental.
+CodePink Women in Peace
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
@@ -315,6 +423,7 @@ 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,
+Safire, William
@@ -323,12 +432,13 @@ power—political, corporate, media, cultural—should be anathema to
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy. William Safire,
-"The Great Media Gulp," New York Times, 22 May 2003.
+"The Great Media Gulp," New York Times, 22 May 2003.
+Safire, William
-This idea is an element of the argument of Free Culture, though my
+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
@@ -338,22 +448,21 @@ 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
+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.
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 remind a culture about a tradition that has always been its own.
-Like Stallman, I defend that tradition on the basis of values. Like
-Stallman, I believe those are the values of freedom. And like Stallman,
-I believe those are values of our past that will need to be defended in
-our future. A free culture has been our past, but it will only be our
- future
-if we change the path we are on right now.
-xv
+lawyer is always derivative, and I mean to do nothing more in this
+book than to remind a culture about a tradition that has always been
+its own. Like Stallman, I defend that tradition on the basis of
+values. Like Stallman, I believe those are the values of freedom. And
+like Stallman, I believe those are values of our past that will need
+to be defended in our future. A free culture has been our past, but it
+will only be our future if we change the path we are on right now.
+
Like Stallman's arguments for free software, an argument for free
culture stumbles on a confusion that is hard to avoid, and even harder
@@ -363,19 +472,17 @@ in which creators can't get paid, is anarchy, not freedom. Anarchy is not
what I advance here.
-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 property. It is filled with rules of property and contract that get
-enforced by the state. But just as a free market is perverted if its
- property
-becomes feudal, so too can a free culture be queered by extremism
-in the property rights that define it. That is what I fear about our
- culture
-today. It is against that extremism that this book is written.
+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 property. It is filled with rules of property and contract
+that get enforced by the state. But just as a free market is perverted
+if its property becomes feudal, so too can a free culture be queered
+by extremism in the property rights that define it. That is what I
+fear about our culture today. It is against that extremism that this
+book is written.
-
+
@@ -394,7 +501,7 @@ At the time the Wright brothers invented the airplane, American
law held that a property owner presumptively owned not just the surface
of his land, but all the land below, down to the center of the earth,
and all the space above, to "an indefinite extent, upwards."
-St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
+St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
For many
@@ -411,6 +518,8 @@ my field? Do I have the right to banish it from my property? Am I allowed
to enter into an exclusive license with Delta Airlines? Could we
set up an auction to decide how much these rights are worth?
+Causby, Thomas Lee
+Causby, Tinie
In 1945, these questions became a federal case. When North Carolina
farmers Thomas Lee and Tinie Causby started losing chickens
@@ -422,6 +531,8 @@ Blackstone, Kent, and Coke had said, their land reached to "an indefinite
extent, upwards," then the government was trespassing on their
property, and the Causbys wanted it to stop.
+Causby, Thomas Lee
+Causby, Tinie
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
@@ -441,17 +552,18 @@ trespass suits. Common sense revolts at the idea. To recognize
such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the public
interest, and transfer into private ownership that to which only
-the public has a just claim.
-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.
+the public has a just claim.
+
+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.
+Causby, Thomas Lee
+Causby, Tinie
@@ -469,6 +581,8 @@ genius of a common law system, as ours is, that the law adjusts to the
technologies of the time. And as it adjusts, it changes. Ideas that were
as solid as rock in one age crumble in another.
+Causby, Thomas Lee
+Causby, Tinie
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
@@ -499,6 +613,9 @@ how the world of radio worked, and on at least three occasions,
Armstrong invented profoundly important technologies that advanced our
understanding of radio.
+Bell, Alexander Graham
+Edison, Thomas
+Faraday, Michael
On the day after Christmas, 1933, four patents were issued to Armstrong
@@ -511,18 +628,15 @@ band of spectrum would deliver an astonishing fidelity of sound, with
much less transmitter power and static.
-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 City. He tuned his radio dial across a range of AM stations,
-until the radio locked on a broadcast that he had arranged from
- seventeen
-miles away. The radio fell totally silent, as if dead, and then with a
-clarity no one else in that room had ever heard from an electrical
- device,
-it produced the sound of an announcer's voice: "This is amateur
-station W2AG at Yonkers, New York, operating on frequency
- modulation
-at two and a half meters."
+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 City. He tuned his radio dial across a range of AM stations,
+until the radio locked on a broadcast that he had arranged from
+seventeen miles away. The radio fell totally silent, as if dead, and
+then with a clarity no one else in that room had ever heard from an
+electrical device, it produced the sound of an announcer's voice:
+"This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters."
The audience was hearing something no one had thought possible:
@@ -530,26 +644,24 @@ The audience was hearing something no one had thought possible:
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 sounded like paper and not like a crackling
-forest fire. . . . Sousa marches were played from records and a
- piano
-solo and guitar number were performed. . . . The music was
-projected with a live-ness rarely if ever heard before from a radio
-"music box."
-Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+sounded like a glass of water being poured. … A paper was crumpled
+and torn; it sounded like paper and not like a crackling forest
+fire. … Sousa marches were played from records and a piano solo
+and guitar number were performed. … The music was projected with a
+live-ness rarely if ever heard before from a radio "music
+box."
+Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
(Philadelphia: J. B. Lipincott Company, 1956), 209.
-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 for RCA. RCA was the dominant player in the
-then dominant AM radio market. By 1935, there were a thousand radio
-stations across the United States, but the stations in large cities were all
-owned by a handful of networks.
+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 for RCA. RCA was the dominant player in the then dominant
+AM radio market. By 1935, there were a thousand radio stations across
+the United States, but the stations in large cities were all owned by
+a handful of networks.
@@ -558,15 +670,16 @@ 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.
+Sarnoff, David
I thought Armstrong would invent some kind of a filter to remove
-static from our AM radio. I didn't think he'd start a revolution—
-start up a whole damn new industry to compete with RCA.
-See "Saints: The Heroes and Geniuses of the Electronic Era," First
- Electronic
-Church of America, at www.webstationone.com/fecha, available at
+static from our AM radio. I didn't think he'd start a
+revolution— start up a whole damn new industry to compete with
+RCA. See "Saints: The Heroes and Geniuses of the
+Electronic Era," First Electronic Church of America, at
+www.webstationone.com/fecha, available at
link #1.
@@ -577,14 +690,15 @@ Armstrong's invention threatened RCA's AM empire, so the company
launched a campaign to smother FM radio. While FM may have been a
superior technology, Sarnoff was a superior tactician. As one author
described,
+Sarnoff, David
The forces for FM, largely engineering, could not overcome the weight
of strategy devised by the sales, patent, and legal offices to subdue
this threat to corporate position. For FM, if allowed to develop
-unrestrained, posed . . . a complete reordering of radio power
-. . . and the eventual overthrow of the carefully restricted AM system
+unrestrained, posed … a complete reordering of radio power
+… and the eventual overthrow of the carefully restricted AM system
on which RCA had grown to power.Lessing, 226.
@@ -649,21 +763,19 @@ different. Ideas that were as solid as rock in one age, but that, left
to themselves, would crumble in
another, are sustained through this subtle corruption of our political
-process. RCA had what the Causbys did not: the power to stifle the
- effect
-of technological change.
+process. RCA had what the Causbys did not: the power to stifle the
+effect of technological change.
-There's no single inventor of the Internet. Nor is there any good
-date upon which to mark its birth. Yet in a very short time, the
- Internet
+There's no single inventor of the Internet. Nor is there any good date
+upon which to mark its birth. Yet in a very short time, the Internet
has become part of ordinary American life. According to the Pew
-Internet and American Life Project, 58 percent of Americans had
- access
-to the Internet in 2002, up from 49 percent two years before.
-Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look
-at Internet Access and the Digital Divide," Pew Internet and American
-Life Project, 15 April 2003: 6, available at
+Internet and American Life Project, 58 percent of Americans had access
+to the Internet in 2002, up from 49 percent two years
+before.
+Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at
+Internet Access and the Digital Divide," Pew Internet and American
+Life Project, 15 April 2003: 6, available at
link #2.
That number could well exceed two thirds of the nation by the end
@@ -681,37 +793,38 @@ don't affect them directly. They are the proper subject of a book about
the Internet. But this is not a book about the Internet.
-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 has induced an important and unrecognized change in that
-process. That change will radically transform a tradition that is as old as
-the Republic itself. Most, if they recognized this change, would reject
-it. Yet most don't even see the change that the Internet has introduced.
+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 has induced an important and unrecognized change in that
+process. That change will radically transform a tradition that is as
+old as the Republic itself. Most, if they recognized this change,
+would reject it. Yet most don't even see the change that the Internet
+has introduced.
We can glimpse a sense of this change by distinguishing between
-commercial and noncommercial culture, and by mapping the law's
- regulation
-of each. By "commercial culture" I mean that part of our culture
-that is produced and sold or produced to be sold. By "noncommercial
-culture" I mean all the rest. When old men sat around parks or on
+commercial and noncommercial culture, and by mapping the law's
+regulation of each. By "commercial culture" I mean that part of our
+culture that is produced and sold or produced to be sold. By
+"noncommercial culture" I mean all the rest. When old men sat around
+parks or on
street corners telling stories that kids and others consumed, that was
-noncommercial culture. When Noah Webster published his "Reader,"
-or Joel Barlow his poetry, that was commercial culture.
+noncommercial culture. When Noah Webster published his "Reader," or
+Joel Barlow his poetry, that was commercial culture.
+Barlow, Joel
+Webster, Noah
At the beginning of our history, and for just about the whole of our
tradition, noncommercial culture was essentially unregulated. Of
-course, if your stories were lewd, or if your song disturbed the peace,
-then the law might intervene. But the law was never directly concerned
-with the creation or spread of this form of culture, and it left this
- culture
-"free." The ordinary ways in which ordinary individuals shared and
-transformed their culture—telling stories, reenacting scenes from plays
-or TV, participating in fan clubs, sharing music, making tapes—were
-left alone by the law.
+course, if your stories were lewd, or if your song disturbed the
+peace, then the law might intervene. But the law was never directly
+concerned with the creation or spread of this form of culture, and it
+left this culture "free." The ordinary ways in which ordinary
+individuals shared and transformed their culture—telling
+stories, reenacting scenes from plays or TV, participating in fan
+clubs, sharing music, making tapes—were left alone by the law.
The focus of the law was on commercial creativity. At first slightly,
@@ -719,7 +832,6 @@ 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.
@@ -729,75 +841,72 @@ 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
-an increasingly important part in America. But in no sense was it
- dominant
-within our tradition. It was instead just one part, a controlled
-part, balanced with the free.
+This is also, of course, an important part of creativity and culture,
+and it has become an increasingly important part in America. But in no
+sense was it dominant within our tradition. It was instead just one
+part, a controlled part, balanced with the free.
This rough divide between the free and the controlled has now
been erased.
-See Jessica Litman, Digital Copyright (New York: Prometheus Books,
+See Jessica Litman, Digital Copyright (New York: Prometheus Books,
2001), ch. 13.
-
-The Internet has set the stage for this erasure and,
-pushed by big media, the law has now affected it. For the first time in
-our tradition, the ordinary ways in which individuals create and share
-culture fall within the reach of the regulation of the law, which has
- expanded
-to draw within its control a vast amount of culture and
- creativity
-that it never reached before. The technology that preserved the
-balance of our history—between uses of our culture that were free and
-uses of our culture that were only upon permission—has been undone.
-The consequence is that we are less and less a free culture, more and
-more a permission culture.
+Litman, Jessica
+
+The Internet has set the stage for this erasure and, pushed by big
+media, the law has now affected it. For the first time in our
+tradition, the ordinary ways in which individuals create and share
+culture fall within the reach of the regulation of the law, which has
+expanded to draw within its control a vast amount of culture and
+creativity that it never reached before. The technology that preserved
+the balance of our history—between uses of our culture that were
+free and uses of our culture that were only upon permission—has
+been undone. The consequence is that we are less and less a free
+culture, more and more a permission culture.
-This change gets justified as necessary to protect commercial
- creativity.
-And indeed, protectionism is precisely its motivation. But the
-protectionism that justifies the changes that I will describe below is not
-the limited and balanced sort that has defined the law in the past. This
-is not a protectionism to protect artists. It is instead a protectionism
-to protect certain forms of business. Corporations threatened by the
-potential of the Internet to change the way both commercial and
-noncommercial culture are made and shared have united to induce
-lawmakers to use the law to protect them. It is the story of RCA and
-Armstrong; it is the dream of the Causbys.
+This change gets justified as necessary to protect commercial
+creativity. And indeed, protectionism is precisely its
+motivation. But the protectionism that justifies the changes that I
+will describe below is not the limited and balanced sort that has
+defined the law in the past. This is not a protectionism to protect
+artists. It is instead a protectionism to protect certain forms of
+business. Corporations threatened by the potential of the Internet to
+change the way both commercial and noncommercial culture are made and
+shared have united to induce lawmakers to use the law to protect
+them. It is the story of RCA and Armstrong; it is the dream of the
+Causbys.
For the Internet has unleashed an extraordinary possibility for many
-to participate in the process of building and cultivating a culture that
-reaches far beyond local boundaries. That power has changed the
- marketplace
-for making and cultivating culture generally, and that change
-in turn threatens established content industries. The Internet is thus to
-the industries that built and distributed content in the twentieth
- century
-what FM radio was to AM radio, or what the truck was to the
-railroad industry of the nineteenth century: the beginning of the end,
-or at least a substantial transformation. Digital technologies, tied to the
-Internet, could produce a vastly more competitive and vibrant market
-for building and cultivating culture; that market could include a much
-wider and more diverse range of creators; those creators could produce
-and distribute a much more vibrant range of creativity; and depending
-upon a few important factors, those creators could earn more on average
-from this system than creators do today—all so long as the RCAs of our
-day don't use the law to protect themselves against this competition.
-
-
-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
-twentieth-century radio or nineteenth-century railroads are using their
-power to get the law to protect them against this new, more efficient,
-more vibrant technology for building culture. They are succeeding in
-their plan to remake the Internet before the Internet remakes them.
+to participate in the process of building and cultivating a culture
+that reaches far beyond local boundaries. That power has changed the
+marketplace for making and cultivating culture generally, and that
+change in turn threatens established content industries. The Internet
+is thus to the industries that built and distributed content in the
+twentieth century what FM radio was to AM radio, or what the truck was
+to the railroad industry of the nineteenth century: the beginning of
+the end, or at least a substantial transformation. Digital
+technologies, tied to the Internet, could produce a vastly more
+competitive and vibrant market for building and cultivating culture;
+that market could include a much wider and more diverse range of
+creators; those creators could produce and distribute a much more
+vibrant range of creativity; and depending upon a few important
+factors, those creators could earn more on average from this system
+than creators do today—all so long as the RCAs of our day don't
+use the law to protect themselves against this competition.
+
+
+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 twentieth-century radio or nineteenth-century railroads are
+using their power to get the law to protect them against this new,
+more efficient, more vibrant technology for building culture. They are
+succeeding in their plan to remake the Internet before the Internet
+remakes them.
It doesn't seem this way to many. The battles over copyright and the
@@ -806,12 +915,11 @@ Internet seem remote to most. To the few who follow them, they seem
mainly about a much simpler brace of questions—whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
has been waged against the technologies of the Internet—what
- Motion
-Picture Association of America (MPAA) president Jack Valenti
+Motion Picture Association of America (MPAA) president Jack Valenti
calls his "own terrorist war"
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.
+Use New Tools to Turn the Net into an Illicit Video Club," New York
+Times, 17 January 2002.
—has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
war, most think that we need only decide whether we're for property or
@@ -819,12 +927,11 @@ against it.
If those really were the choices, then I would be with Jack Valenti
-and the content industry. I, too, am a believer in property, and
- especially
-in the importance of what Mr. Valenti nicely calls "creative
- property."
-I believe that "piracy" is wrong, and that the law, properly tuned,
-should punish "piracy," whether on or off the Internet.
+and the content industry. I, too, am a believer in property, and
+especially in the importance of what Mr. Valenti nicely calls
+"creative property." I believe that "piracy" is wrong, and that the
+law, properly tuned, should punish "piracy," whether on or off the
+Internet.
But those simple beliefs mask a much more fundamental question
@@ -837,93 +944,90 @@ These values built a tradition that, for at least the first 180 years of
our Republic, guaranteed creators the right to build freely upon their
past, and protected creators and innovators from either state or private
control. The First Amendment protected creators against state control.
-And as Professor Neil Netanel powerfully argues,
-Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
-Journal 106 (1996): 283.
+And as Professor Neil Netanel powerfully argues,
+
+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 patrons. It instead carved out
-a wide berth within which creators could cultivate and extend our culture.
+copyright law, properly balanced, protected creators against private
+control. Our tradition was thus neither Soviet nor the tradition of
+patrons. It instead carved out a wide berth within which creators
+could cultivate and extend our culture.
Yet the law's response to the Internet, when tied to changes in the
-technology of the Internet itself, has massively increased the effective
-regulation of creativity in America. To build upon or critique the
- culture
-around us one must ask, Oliver Twist–like, for permission first.
-Permission is, of course, often granted—but it is not often granted to
-the critical or the 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
- "centrality
-of technology" to ordinary life. I don't believe in gods, digital or
-otherwise. Nor is it an effort to demonize any individual or group, for
-neither do I believe in a devil, corporate or otherwise. It is not a
- morality
-tale. Nor is it a call to jihad against an industry.
-
-
-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 understanding this battle, it is an effort to map peace.
-There is no good reason for the current struggle around Internet
- technologies
-to continue. There will be great harm to our tradition and
-culture if it is allowed to continue unchecked. We must come to
- understand
-the source of this war. We must resolve it soon.
-
-
-Like the Causbys' battle, this war is, in part, about "property."
-The property of this war is not as tangible as the Causbys', and no
-innocent chicken has yet to lose its life. Yet the ideas surrounding this
-"property" are as obvious to most as the Causbys' claim about the
- sacredness
-of their farm was to them. We are the Causbys. Most of us
-take for granted the extraordinarily powerful claims that the owners of
-"intellectual property" now assert. Most of us, like the Causbys, treat
-these claims as obvious. And hence we, like the Causbys, object when
-a new technology interferes with this property. It is as plain to us as it
-was to them that the new technologies of the Internet are "trespassing"
-upon legitimate claims of "property." It is as plain to us as it was to
-them that the law should intervene to stop this trespass.
-
+technology of the Internet itself, has massively increased the
+effective regulation of creativity in America. To build upon or
+critique the culture around us one must ask, Oliver Twist–like,
+for permission first. Permission is, of course, often
+granted—but it is not often granted to the critical or the
+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
+"centrality of technology" to ordinary life. I don't believe in gods,
+digital or otherwise. Nor is it an effort to demonize any individual
+or group, for neither do I believe in a devil, corporate or
+otherwise. It is not a morality tale. Nor is it a call to jihad
+against an industry.
+
+
+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 understanding this battle, it is an effort to map
+peace. There is no good reason for the current struggle around
+Internet technologies to continue. There will be great harm to our
+tradition and culture if it is allowed to continue unchecked. We must
+come to understand the source of this war. We must resolve it soon.
+
+Causby, Thomas Lee
+Causby, Tinie
+
+Like the Causbys' battle, this war is, in part, about "property." The
+property of this war is not as tangible as the Causbys', and no
+innocent chicken has yet to lose its life. Yet the ideas surrounding
+this "property" are as obvious to most as the Causbys' claim about the
+sacredness of their farm was to them. We are the Causbys. Most of us
+take for granted the extraordinarily powerful claims that the owners
+of "intellectual property" now assert. Most of us, like the Causbys,
+treat these claims as obvious. And hence we, like the Causbys, object
+when a new technology interferes with this property. It is as plain to
+us as it was to them that the new technologies of the Internet are
+"trespassing" upon legitimate claims of "property." It is as plain to
+us as it was to them that the law should intervene to stop this
+trespass.
+
+Causby, Thomas Lee
+Causby, Tinie
And thus, when geeks and technologists defend their Armstrong or
-Wright brothers technology, most of us are simply unsympathetic.
- Common
-sense does not revolt. Unlike in the case of the unlucky Causbys,
-common sense is on the side of the property owners in this war. Unlike
+Wright brothers technology, most of us are simply unsympathetic.
+Common sense does not revolt. Unlike in the case of the unlucky
+Causbys, common sense is on the side of the property owners in this
+war. Unlike
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
-My hope is to push this common sense along. I have become
- increasingly
-amazed by the power of this idea of intellectual property
-and, more importantly, its power to disable critical thought by policy
-makers and citizens. There has never been a time in our history when
-more of our "culture" was as "owned" as it is now. And yet there has
-never been a time when the concentration of power to control the uses
-of culture has been as unquestioningly accepted as it is now.
+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.
-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
- because
-we have discovered that our tradition of rejecting such an
- absolute
-claim was wrong?
+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 because we have discovered that our tradition of
+rejecting such an absolute claim was wrong?
Or is it because the idea of absolute property over ideas and culture
@@ -937,22 +1041,22 @@ radical shift away from our tradition of free culture yet another example
of a political system captured by a few powerful special interests?
-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 the face of these extremes because, as with
- Armstrong
-versus RCA, the more powerful side has ensured that it has the
-more powerful view?
+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 the face of these extremes because, as with Armstrong versus
+RCA, the more powerful side has ensured that it has the more powerful
+view?
+Causby, Thomas Lee
+Causby, Tinie
-I don't mean to be mysterious. My own views are resolved. I believe
-it was right for common sense to revolt against the extremism of the
-Causbys. I believe it would be right for common sense to revolt against
-the extreme claims made today on behalf of "intellectual property."
-What the law demands today is increasingly as silly as a sheriff
- arresting
-an airplane for trespass. But the consequences of this silliness will
-be much more profound.
+I don't mean to be mysterious. My own views are resolved. I believe it
+was right for common sense to revolt against the extremism of the
+Causbys. I believe it would be right for common sense to revolt
+against the extreme claims made today on behalf of "intellectual
+property." What the law demands today is increasingly as silly as a
+sheriff arresting an airplane for trespass. But the consequences of
+this silliness will be much more profound.
@@ -962,25 +1066,22 @@ ideas.
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 theorists—however natural that is for the weird sort we
-academics have become. Instead I begin in each part with a collection
-of stories that set a context within which these apparently simple ideas
-can be more fully understood.
+plunge you into a complex argument, buttressed with references to
+obscure French theorists—however natural that is for the weird
+sort we academics have become. Instead I begin in each part with a
+collection of stories that set a context within which these apparently
+simple ideas can be more fully understood.
The two sections set up the core claim of this book: that while the
-Internet has indeed produced something fantastic and new, our
- government,
-pushed by big media to respond to this "something new," is
+Internet has indeed produced something fantastic and new, our
+government, pushed by big media to respond to this "something new," is
destroying something very old. Rather than understanding the changes
the Internet might permit, and rather than taking time to let "common
-sense" resolve how best to respond, we are allowing those most
- threatened
-by the changes to use their power to change the law—and more
-importantly, to use their power to change something fundamental about
-who we have always been.
+sense" resolve how best to respond, we are allowing those most
+threatened by the changes to use their power to change the
+law—and more importantly, to use their power to change something
+fundamental about who we have always been.
We allow this, I believe, not because it is right, and not because
@@ -992,16 +1093,18 @@ to which most of us remain oblivious.
-
+"PIRACY"
-
+
+
+ Mansfield, William Murray, Lord
+
-Since the inception of the law regulating creative property, there
-has been a war against "piracy." The precise contours of this concept,
-"piracy," are hard to sketch, but the animating injustice is easy to
- capture.
-As Lord Mansfield wrote in a case that extended the reach of
+Since the inception of the law regulating creative property, there has
+been a war against "piracy." The precise contours of this concept,
+"piracy," are hard to sketch, but the animating injustice is easy to
+capture. As Lord Mansfield wrote in a case that extended the reach of
English copyright law to include sheet music,
@@ -1010,37 +1113,35 @@ A person may use the copy by playing it, but he has no right to
rob the author of the profit, by multiplying copies and disposing
of them for his own use.
-Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+
Today we are in the middle of another "war" against "piracy." The
-Internet has provoked this war. The Internet makes possible the
- efficient
-spread of content. Peer-to-peer (p2p) file sharing is among the
-most efficient of the efficient technologies the Internet enables. Using
-distributed intelligence, p2p systems facilitate the easy spread of
- content
-in a way unimagined a generation ago.
+Internet has provoked this war. The Internet makes possible the
+efficient spread of content. Peer-to-peer (p2p) file sharing is among
+the most efficient of the efficient technologies the Internet
+enables. Using distributed intelligence, p2p systems facilitate the
+easy spread of content in a way unimagined a generation ago.
This efficiency does not respect the traditional lines of copyright.
The network doesn't discriminate between the sharing of copyrighted
-and uncopyrighted content. Thus has there been a vast amount of
- sharing
-of copyrighted content. That sharing in turn has excited the war, as
-copyright owners fear the sharing will "rob the author of the profit."
+and uncopyrighted content. Thus has there been a vast amount of
+sharing of copyrighted content. That sharing in turn has excited the
+war, as copyright owners fear the sharing will "rob the author of the
+profit."
-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!
+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!
There's no doubt that "piracy" is wrong, and that pirates should be
@@ -1061,13 +1162,14 @@ 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"
theory of creative property
See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
-in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
+in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
@@ -1075,10 +1177,11 @@ organization, ASCAP, to sue the Girl Scouts for failing to pay for the
songs that girls sang around Girl Scout campfires.
Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
-Up," Wall Street Journal, 21 August 1996, available at
+Up," Wall Street Journal, 21 August 1996, available at
link #3; Jonathan
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
-Speech, No One Wins," Boston Globe, 24 November 2002.
+Speech, No One Wins," Boston Globe, 24 November 2002.
+Zittrain, Jonathan
There was "value" (the songs) so there must have been a
"right"—even against the Girl Scouts.
@@ -1088,10 +1191,9 @@ There was "value" (the songs) so there must have been a
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
-of law protecting creative property. But the "if value, then right" theory
-of creative property has never been America's theory of creative
- property.
-It has never taken hold within our law.
+of law protecting creative property. But the "if value, then right"
+theory of creative property has never been America's theory of
+creative property. It has never taken hold within our law.
Instead, in our tradition, intellectual property is an instrument. It
@@ -1115,6 +1217,7 @@ entities could bear the burden of the law—even the burden of the
Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
+Florida, Richard
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
@@ -1132,15 +1235,17 @@ commercial and noncommercial creativity, the law burdens this
creativity with insanely complex and vague rules and with the threat
of obscenely severe penalties. We may
-be seeing, as Richard Florida writes, the "Rise of the Creative Class."
+be seeing, as Richard Florida writes, the "Rise of the Creative Class."
+
-In The Rise of the Creative Class (New York: Basic Books, 2002),
+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.
+Florida, Richard
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
@@ -1150,20 +1255,21 @@ These burdens make no sense in our tradition. We should begin by
understanding that tradition a bit more and by placing in their proper
context the current battles about behavior labeled "piracy."
+
-
+CHAPTER ONE: Creators
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.
+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
+distributed cartoon synchronized with sound, Steamboat Willie brought
to life the character that would become Mickey Mouse.
Synchronized sound had been introduced to film a year earlier in the
-movie The Jazz Singer. That success led Walt Disney to copy 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.
@@ -1185,16 +1291,14 @@ bammed tin pans and blew slide whistles on the beat. The
synchronization was pretty close.
-The effect on our little audience was nothing less than
- electric.
-They responded almost instinctively to this union of sound
-and motion. I thought they were kidding me. So they put me in
-the audience and ran the action again. It was terrible, but it was
-wonderful! And it was something new!
+The effect on our little audience was nothing less than electric.
+They responded almost instinctively to this union of sound and
+motion. I thought they were kidding me. So they put me in the audience
+and ran the action again. It was terrible, but it was wonderful! And
+it was something new!
-Leonard Maltin, Of Mice and Magic: A History of American Animated
- Cartoons
-(New York: Penguin Books, 1987), 34–35.
+Leonard Maltin, Of Mice and Magic: A History of American Animated
+Cartoons (New York: Penguin Books, 1987), 34–35.
@@ -1202,6 +1306,7 @@ Leonard Maltin, Of Mice and Magic: A History of American Animated
Disney's then partner, and one of animation's most extraordinary
talents, Ub Iwerks, put it more strongly: "I have never been so thrilled
in my life. Nothing since has ever equaled it."
+Iwerks, Ub
Disney had created something very new, based upon something relatively
@@ -1213,42 +1318,41 @@ match. And quite often, Disney's great genius, his spark of
creativity, was built upon the work of others.
-This much is familiar. What you might not know is that 1928 also
-marks another important transition. In that year, a comic (as opposed
-to cartoon) genius created his last independently produced silent film.
-That genius was Buster Keaton. The film was Steamboat Bill, Jr.
+This much is familiar. What you might not know is that 1928 also marks
+another important transition. In that year, a comic (as opposed to
+cartoon) genius created his last independently produced silent film.
+That genius was Buster Keaton. The film was Steamboat Bill, Jr.
-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.
+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.
-Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
+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,
+direct cartoon parody of Steamboat Bill,
I am grateful to David Gerstein and his careful history, described at
link #4.
According to Dave Smith of the Disney Archives, Disney paid royalties to
-use the music for five songs in Steamboat Willie: "Steamboat Bill," "The
+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.
-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.
+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.
This "borrowing" was nothing unique, either for Disney or for the
@@ -1285,18 +1389,20 @@ light. Without removing the elements of fear and danger altogether, he
made funny what was 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
+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.
+(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.
This is a kind of creativity. It is a creativity that we should
@@ -1359,7 +1465,7 @@ universal.
Consider, for example, a form of creativity that seems strange to many
-Americans but that is inescapable within Japanese culture: manga, or
+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
@@ -1383,10 +1489,11 @@ variant on manga that from a lawyer's perspective is quite odd, but
from a Disney perspective is quite familiar.
-This is the phenomenon of doujinshi. Doujinshi are also comics, but
+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
+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 doujinshi comic can thus take a mainstream comic and
develop it differently—with a different story line. Or the comic can
@@ -1415,25 +1522,27 @@ American copyright law, the doujinshi market is an illegal
one. Doujinshi are plainly "derivative works." There is no general
practice by doujinshi artists of securing the permission of the manga
creators. Instead, the practice is simply to take and modify the
-creations of others, as Walt Disney did with Steamboat Bill, Jr. Under
-both Japanese and American law, that "taking" without 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.
-
+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.
+
+
+ Winick, Judd
+
Yet this illegal market exists and indeed flourishes in Japan, and in
the view of many, it is precisely because it exists that Japanese manga
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
-
+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.
-For an excellent history, see Scott McCloud, Reinventing Comics (New
+For an excellent history, see Scott McCloud, Reinventing Comics (New
York: Perennial, 2000).
@@ -1445,6 +1554,7 @@ and you have to stick to them." There are things Superman "cannot"
do. "As a creator, it's frustrating having to stick to some parameters
which are fifty years old."
+
The norm in Japan mitigates this legal difficulty. Some say it is
precisely the benefit accruing to the Japanese manga market that
@@ -1455,8 +1565,8 @@ wealthy and productive. Everyone would be worse off if doujinshi were
banned, so the law does not ban doujinshi.
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
+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
@@ -1506,19 +1616,18 @@ celebrants. I believe in the value of property in general, and I also
believe in the value of that weird form of property that lawyers call
"intellectual property."
-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:
-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.
-
-A large, diverse society cannot survive without
- property;
-a large, diverse, and modern society cannot flourish without
-intellectual property.
+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: 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.
+Vaidhyanathan, Siva
+
+A large, diverse society cannot survive without property; a large,
+diverse, and modern society cannot flourish without intellectual
+property.
But it takes just a second's reflection to realize that there is
@@ -1565,12 +1674,12 @@ 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.
+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.
Creators here and everywhere are always and at all times building
@@ -1584,15 +1693,16 @@ societies more fully than unfree, perhaps, but all societies to some degree.
-The hard question is therefore not whether a culture is free. All
-cultures are free to some degree. The hard question instead is "How
-free is this culture?" 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 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?
Free cultures are cultures that leave a great deal open for others to
@@ -1601,9 +1711,12 @@ free culture. It is becoming much less so.
-
-
+
+CHAPTER TWO: "Mere Copyists"
+
+ photography
+
In 1839, Louis Daguerre invented the first practical technology for
producing what we would call "photographs." Appropriately enough, they
@@ -1612,6 +1725,7 @@ expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
Association that helped regulate the industry, as do all such
associations, by keeping competition down so as to keep prices up.)
+Daguerre, Louis
Yet despite high prices, the demand for daguerreotypes was strong.
@@ -1623,7 +1737,11 @@ the 1870s, dry plates were developed, making it easier to separate the
taking of a picture from its developing. These were still plates of
glass, and thus it was still not a process within reach of most
amateurs.
+Talbot, William
+
+ Eastman, George
+
The technological change that made mass photography possible
didn't happen until 1888, and was the creation of a single man. George
@@ -1642,25 +1760,25 @@ 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."
-Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
- As he described in The Kodak Primer:
+Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
+ As he described in The Kodak Primer:
The principle of the Kodak system is the separation of the work that
any person whomsoever can do in making a photograph, from the work
-that only an expert can do. . . . We furnish anybody, man, woman or
+that only an expert can do. … We furnish anybody, man, woman or
child, who has sufficient intelligence to point a box straight and
press a button, with an instrument which altogether removes from the
practice of photography the necessity for exceptional facilities or,
in fact, any special knowledge of the art. It can be employed without
preliminary study, without a darkroom and without
chemicals.
-Coe, Brian
-Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
+Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
+Coe, Brian
@@ -1673,7 +1791,7 @@ improved. Roll film thus became the basis for the explosive growth of
popular photography. Eastman's camera first went on sale in 1888; one
year later, Kodak was printing more than six thousand negatives a day.
From 1888 through 1909, while industrial production was rising by 4.7
-percent, photographic equipment and material sales increased by
+percent, photographic equipment and material sales increased by 11
percent.
Jenkins, 177.
@@ -1693,7 +1811,7 @@ glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had
never been able to do before. As author Brian Coe notes, "For the
first time the snapshot album provided the man on the street with a
-permanent record of his family and its activities. . . . For the first
+permanent record of his family and its activities. … For the first
time in history there exists an authentic visual record of the
appearance and activities of the common man made without [literary]
interpretation or bias."
@@ -1724,7 +1842,11 @@ Courts were asked whether the photographer, amateur or professional,
required permission before he could capture and print whatever image
he wanted. Their answer was no.
-For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E.
+For illustrative cases, see, for example, Pavesich
+v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905);
+Foster-Milburn Co. v. Chinn, 123090 S.W. 364, 366
+(Ky. 1909); Corliss v. Walker, 64 F. 280 (Mass.
+Dist. Ct. 1894).
@@ -1745,15 +1867,15 @@ 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.
+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
+Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
@@ -1767,10 +1889,10 @@ for commercial purposes have more restrictions than the rest of
us. But in the ordinary case, the image can be captured without
clearing the rights to do the capturing.
-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
+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).
)
@@ -1816,6 +1938,8 @@ hundred to five hundred children to learn something about media by
doing something with media. By doing, they think. By tinkering, they
learn.
+
+
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
@@ -1823,25 +1947,24 @@ fallen dramatically. As one analyst puts it, "Five years ago, a good
real-time digital video editing system cost $25,000. Today you can get
professional quality for $595."
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
- Software
-You Need to Create Digital Multimedia Presentations," cadalyst,
-February 2002, available at
+H. Edward Goldberg, "Essential Presentation Tools: Hardware and
+Software You Need to Create Digital Multimedia Presentations,"
+cadalyst, February 2002, available at
link #7.
-These buses are filled with technology that
-would have cost hundreds of thousands just ten years ago. And it is
-now feasible to imagine not just buses like this, but classrooms across
-the country where kids are learning more and more of something
-teachers call "media literacy."
+These buses are filled with technology that would have cost hundreds
+of thousands just ten years ago. And it is now feasible to imagine not
+just buses like this, but classrooms across the country where kids are
+learning more and more of something teachers call "media literacy."
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
+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."
+Yanofsky, Dave
This may seem like an odd way to think about "literacy." For most
@@ -1854,27 +1977,25 @@ Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
commercials generally,
-Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
+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.
+Study," Denver Post, 25 May 1997, B6.
-it is increasingly important to understand the
-"grammar" of media. For just as there is a grammar for the written
-word, so, too, is there one for media. And just as kids learn how to write
-by writing lots of terrible prose, kids learn how to write media by
- constructing
-lots of (at least at first) terrible media.
+it is increasingly important to understand the "grammar" of media. For
+just as there is a grammar for the written word, so, too, is there one
+for media. And just as kids learn how to write by writing lots of
+terrible prose, kids learn how to write media by constructing lots of
+(at least at first) terrible media.
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 understands how difficult writing is—how difficult it is to
- sequence
-the story, to keep a reader's attention, to craft language to be
-understandable—few of us have any real sense of how difficult media
-is. Or more fundamentally, few of us have a sense of how media works,
-how it holds an audience or leads it through a story, how it triggers
-emotion or builds suspense.
+as crucial to the next generation of culture. For though anyone who
+has written understands how difficult writing is—how difficult
+it is to sequence the story, to keep a reader's attention, to craft
+language to be understandable—few of us have any real sense of
+how difficult media is. Or more fundamentally, few of us have a sense
+of how media works, how it holds an audience or leads it through a
+story, how it triggers emotion or builds suspense.
It took filmmaking a generation before it could do these things well.
@@ -1884,21 +2005,22 @@ from reading a book about it. One learns to write by writing and then
reflecting upon what one has written. One learns to write with images
by making them and then reflecting upon what one has created.
+Crichton, Michael
-This grammar has changed as media has changed. When it was just
-film, as Elizabeth Daley, executive director of the University of
- Southern
+This grammar has changed as media has changed. When it was just film,
+as Elizabeth Daley, executive director of the University of Southern
California's Annenberg Center for Communication and dean of the
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, . . . rhythm, pacing, and
- texture."
-Barish, Stephanie
+about "the placement of objects, color, … rhythm, pacing, and
+texture."
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
@@ -1945,21 +2067,21 @@ Couch potatoes. Consumers. This is the world of media from the
twentieth century.
-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
-the craft of writing. Or best, reading and understanding the
-tools that enable the writing to lead or mislead. The aim of any literacy,
+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 the craft of writing. Or best, reading and understanding
+the tools that enable the writing to lead or mislead. The aim of any
+literacy,
-and this literacy in particular, is to "empower people to choose the
- appropriate
-language for what they need to create or express."
-Barish, Stephanie
+and this literacy in particular, is to "empower people to choose the
+appropriate language for what they need to create or
+express."
Interview with Daley and Barish.
- It is to enable
-students "to communicate in the language of the twenty-first century."
+Barish, Stephanie
+ It is to enable students "to communicate in the
+language of the twenty-first century."
Ibid.
@@ -1998,23 +2120,21 @@ been created using only text. "If you had said to these students, `you
have to do it in text,' they would've just thrown their hands up and
gone and done something else," Barish described, in part, no doubt,
because expressing themselves in text is not something these students
-can do well. Yet neither is text a form in which these ideas can be
-expressed well. The power of this message depended upon its connection
-to this form of expression.
+can do well. Yet neither is text a form in which
+these ideas can be expressed well. The power of
+this message depended upon its connection to this form of expression.
"But isn't education about teaching kids to write?" I asked. In part,
-of course, it is. But why are we teaching kids to write? Education,
- Daley
-explained, is about giving students a way of "constructing
- meaning."
-To say that that means just writing is like saying teaching writing
-is only about teaching kids how to spell. Text is one part—and
- increasingly,
-not the most powerful part—of constructing meaning. As Daley
-explained in the most moving part of our interview,
+of course, it is. But why are we teaching kids to write? Education,
+Daley explained, is about giving students a way of "constructing
+meaning." To say that that means just writing is like saying teaching
+writing is only about teaching kids how to spell. Text is one
+part—and increasingly, not the most powerful part—of
+constructing meaning. As Daley explained in the most moving part of
+our interview,
@@ -2031,10 +2151,10 @@ you. [But i]nstead, if you say, "Well, with all these things that you
can do, let's talk about this issue. Play for me music that you think
reflects that, or show me images that you think reflect that, or draw
for me something that reflects that." Not by giving a kid a video
-camera and . . . saying, "Let's go have fun with the video camera and
+camera and … saying, "Let's go have fun with the video camera and
make a little movie." But instead, really help you take these elements
that you understand, that are your language, and construct meaning
-about the topic. . . .
+about the topic. …
That empowers enormously. And then what happens, of
@@ -2083,7 +2203,7 @@ world and presented them as slide 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
+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.
@@ -2107,13 +2227,13 @@ that this mix of captured images, sound, and commentary can be widely
spread practically instantaneously.
-September 11 was not an aberration. It was a beginning. Around
-the same time, a form of communication that has grown dramatically
-was just beginning to come into public consciousness: the Web-log, or
-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.
+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.
But in the United States, blogs have taken on a very different
@@ -2156,8 +2276,8 @@ persuade each other of the "right" result, and in criminal cases at
least, they had to agree upon a unanimous result for the process to
come to an end.
-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, Democracy in America,
+bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
@@ -2165,37 +2285,31 @@ Yet even this institution flags in American life today. And in its
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.
-Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
- Political
-Philosophy 10 (2) (2002): 129.
-
-And in some towns in
-New England, something close to deliberation remains. But for most
-of us for most of the time, there is no time or place for "democratic
- deliberation"
-to occur.
-
-
-More bizarrely, there is generally not even permission for it to
- occur.
-We, the most powerful democracy in the world, have developed a
-strong norm against talking about politics. It's fine to talk about
- politics
-with people you agree with. But it is rude to argue about politics
-with people you disagree with. Political discourse becomes isolated,
-and isolated discourse becomes more extreme.
+Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
+Political Philosophy 10 (2) (2002): 129.
+
+And in some towns in New England, something close to deliberation
+remains. But for most of us for most of the time, there is no time or
+place for "democratic deliberation" to occur.
+
+
+More bizarrely, there is generally not even permission for it to
+occur. We, the most powerful democracy in the world, have developed a
+strong norm against talking about politics. It's fine to talk about
+politics with people you agree with. But it is rude to argue about
+politics with people you disagree with. Political discourse becomes
+isolated, and isolated discourse becomes more extreme.
-Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
+Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
65–80, 175, 182, 183, 192.
- We say what our
-friends want to hear, and hear very little beyond what our friends say.
+
We say what our friends want to hear, and hear very
+little beyond what our friends say.
Enter the blog. The blog's very architecture solves one part of this
-problem. People post when they want to post, and people read when
-they want to read. The most difficult time is synchronous time.
- Technologies
-that enable asynchronous communication, such as e-mail,
+problem. People post when they want to post, and people read when they
+want to read. The most difficult time is synchronous time.
+Technologies that enable asynchronous communication, such as e-mail,
increase the opportunity for communication. Blogs allow for public
@@ -2212,46 +2326,47 @@ political cover political issues when the occasion merits.
The significance of these blogs is tiny now, though not so tiny. The
-name Howard Dean may well have faded from the 2004 presidential
-race but for blogs. Yet even if the number of readers is small, the
- reading
+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.
+Dean, Howard
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
-"misspoke" at a party for Senator Strom Thurmond, essentially
- praising
+"misspoke" at a party for Senator Strom Thurmond, essentially praising
Thurmond's segregationist policies, he calculated correctly that this
story would disappear from the mainstream press within forty-eight
-hours. It did. But he didn't calculate its life cycle in blog space. The
-bloggers kept researching the story. Over time, more and more
- instances
-of the same "misspeaking" emerged. Finally, the story broke
-back into the mainstream press. In the end, Lott was forced to resign
-as senate majority leader.
+hours. It did. But he didn't calculate its life cycle in blog
+space. The bloggers kept researching the story. Over time, more and
+more instances of the same "misspeaking" emerged. Finally, the story
+broke back into the mainstream press. In the end, Lott was forced to
+resign as senate majority leader.
Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
York Times, 16 January 2003, G5.
+Lott, Trent
-This different cycle is possible because the same commercial
- pressures
+This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
newspapers are commercial entities. They must work to keep attention.
-If they lose readers, they lose revenue. Like sharks, they must move on.
+If they lose readers, they lose revenue. Like sharks, they must move
+on.
But bloggers don't have a similar constraint. They can obsess, they
-can focus, they can get serious. If a particular blogger writes a
- particularly
-interesting story, more and more people link to that story. And as
-the number of links to a particular story increases, it rises in the ranks
-of stories. People read what is popular; what is popular has been
- selected
-by a very democratic process of peer-generated rankings.
-
+can focus, they can get serious. If a particular blogger writes a
+particularly interesting story, more and more people link to that
+story. And as the number of links to a particular story increases, it
+rises in the ranks of stories. People read what is popular; what is
+popular has been selected by a very democratic process of
+peer-generated rankings.
+
+
+ Winer, Dave
+
There's a second way, as well, in which blogs have a different cycle
@@ -2263,68 +2378,60 @@ have to take the conflict of interest" out of journalism, Winer told me.
conflict of interest is so easily disclosed that you know you can sort of
get it out of the way."
+CNN
These conflicts become more important as media becomes more
-concentrated (more on this below). A concentrated media can hide
-more from the public than an unconcentrated media can—as CNN
-admitted it did after the Iraq war because it was afraid of the
- consequences
-to its own employees.
+concentrated (more on this below). A concentrated media can hide more
+from the public than an unconcentrated media can—as CNN admitted
+it did after the Iraq war because it was afraid of the consequences to
+its own employees.
Telephone interview with David Winer, 16 April 2003.
-It also needs to sustain a more
- coherent
-account. (In the middle of the Iraq war, I read a post on the
-Internet from someone who was at that time listening to a satellite
- uplink
-with a reporter in Iraq. The New York headquarters was telling the
-reporter over and over that her account of the war was too bleak: She
-needed to offer a more optimistic story. When she told New York that
-wasn't warranted, they told her that they were writing "the story.")
-
-
-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 not paid by anyone to give their reports. It allows for a much
-broader range of input into a story, as reporting on the Columbia
- disaster
-revealed, when hundreds from across the southwest United States
-turned to the Internet to retell what they had seen.
+It also needs to sustain a more coherent account. (In the middle of
+the Iraq war, I read a post on the Internet from someone who was at
+that time listening to a satellite uplink with a reporter in Iraq. The
+New York headquarters was telling the reporter over and over that her
+account of the war was too bleak: She needed to offer a more
+optimistic story. When she told New York that wasn't warranted, they
+told her that they were writing "the story.")
+
+ 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 not paid by anyone to give their
+reports. It allows for a much broader range of input into a story, as
+reporting on the Columbia disaster revealed, when hundreds from across
+the southwest United States turned to the Internet to retell what they
+had seen.
-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
+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
link #10.
-And it drives
-readers to read across the range of accounts and "triangulate," as Winer
-puts it, the truth. Blogs, Winer says, are "communicating directly with
-our constituency, and the middle man is out of it"—with all the
- benefits,
-and costs, that might entail.
+And it drives readers to read across the range of accounts and
+"triangulate," as Winer puts it, the truth. Blogs, Winer says, are
+"communicating directly with our constituency, and the middle man is
+out of it"—with all the benefits, and costs, that might entail.
-Winer is optimistic about the future of journalism infected 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.
+Winer is optimistic about the future of journalism infected
+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.
+
-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.")
+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.")
+CNN
But it is clear that we are still in transition. "A
@@ -2336,97 +2443,92 @@ of the Internet (meaning infringing on copyright), Winer said, "we will
be the last thing that gets shut down."
-This speech affects democracy. Winer thinks that happens because
-"you don't have to work for somebody who controls, [for] a
- gatekeeper."
-That is true. But it affects democracy in another way as well.
-As more and more citizens express what they think, and defend it in
-writing, that will change the way people understand public issues. It is
-easy to be wrong and misguided in your head. It is harder when the
-product of your mind can be criticized by others. Of course, it is a rare
-human who admits that he has been persuaded that he is wrong. But it
-is even rarer for a human to ignore when he has been proven wrong.
+This speech affects democracy. Winer thinks that happens because "you
+don't have to work for somebody who controls, [for] a gatekeeper."
+That is true. But it affects democracy in another way as well. As
+more and more citizens express what they think, and defend it in
+writing, that will change the way people understand public issues. It
+is easy to be wrong and misguided in your head. It is harder when the
+product of your mind can be criticized by others. Of course, it is a
+rare human who admits that he has been persuaded that he is wrong. But
+it is even rarer for a human to ignore when he has been proven wrong.
The writing of ideas, arguments, and criticism improves democracy.
Today there are probably a couple of million blogs where such writing
-happens. When there are ten million, there will be something
- extraordinary
-to report.
+happens. When there are ten million, there will be something
+extraordinary to report.
+
+
+ Brown, John Seely
+
John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is "human learning and . . . the
-creation of knowledge ecologies for creating . . . innovation."
+His work, as his Web site describes it, is "human learning and … the
+creation of knowledge ecologies for creating … innovation."
-Brown thus looks at these technologies of digital creativity a bit
- differently
-from the perspectives I've sketched so far. I'm sure he would be
-excited about any technology that might improve democracy. But his
-real excitement comes from how these technologies affect learning.
+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 excited about any technology that might improve
+democracy. But his real excitement comes from how these technologies
+affect learning.
-As Brown believes, we learn by tinkering. When "a lot of us grew
-up," he explains, that tinkering was done "on motorcycle engines,
- lawnmower
-engines, automobiles, radios, and so on." But digital
- technologies
+As Brown believes, we learn by tinkering. When "a lot of us grew up,"
+he explains, that tinkering was done "on motorcycle engines, lawnmower
+engines, automobiles, radios, and so on." But digital technologies
enable a different kind of tinkering—with abstract ideas though
-in concrete form. The kids at Just Think! not only think about how
-a commercial portrays a politician; using digital technology, they can
+in concrete form. The kids at Just Think! not only think about how a
+commercial portrays a politician; using digital technology, they can
take the commercial apart and manipulate it, tinker with it to see how
-it does what it does. Digital technologies launch a kind of bricolage, or
-"free collage," as Brown calls it. Many get to add to or transform the
-tinkering of many others.
+it does what it does. Digital technologies launch a kind of bricolage,
+or "free collage," as Brown calls it. Many get to add to or transform
+the tinkering of many others.
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 code is shared. Anyone can download the technology that makes
-a FS/OSS program run. And anyone eager to learn how a particular bit
-of FS/OSS technology works can tinker with the code.
+source code is shared. Anyone can download the technology that makes a
+FS/OSS program run. And anyone eager to learn how a particular bit of
+FS/OSS technology works can tinker with the code.
-This opportunity creates a "completely new kind of learning
- platform,"
-as Brown describes. "As soon as you start doing that, you . . .
-unleash a free collage on the community, so that other people can start
-looking at your code, tinkering with it, trying it out, seeing if they can
-improve it." Each effort is a kind of apprenticeship. "Open source
- becomes
-a major apprenticeship platform."
+This opportunity creates a "completely new kind of learning platform,"
+as Brown describes. "As soon as you start doing that, you …
+unleash a free collage on the community, so that other people can
+start looking at your code, tinkering with it, trying it out, seeing
+if they can improve it." Each effort is a kind of
+apprenticeship. "Open source becomes a major apprenticeship platform."
In this process, "the concrete things you tinker with are abstract.
-They are code." Kids are "shifting to the ability to tinker in the
- abstract,
-and this tinkering is no longer an isolated activity that you're
- doing
-in your garage. You are tinkering with a community platform. . . .
-You are tinkering with other people's stuff. The more you tinker the
-more you improve." The more you improve, the more you learn.
-
-
-This same thing happens with content, too. And it happens in the
-same collaborative way when that content is part of the Web. As
-Brown puts it, "the Web [is] the first medium that truly honors
- multiple
-forms of intelligence." Earlier technologies, such as the typewriter
-or word processors, helped amplify text. But the Web amplifies much
-more than text. "The Web . . . says if you are musical, if you are
- artistic,
-if you are visual, if you are interested in film . . . [then] there is a lot
-you can start to do on this medium. [It] can now amplify and honor
+They are code." Kids are "shifting to the ability to tinker in the
+abstract, and this tinkering is no longer an isolated activity that
+you're doing in your garage. You are tinkering with a community
+platform. … You are tinkering with other people's stuff. The more
+you tinker the more you improve." The more you improve, the more you
+learn.
+
+
+This same thing happens with content, too. And it happens in the same
+collaborative way when that content is part of the Web. As Brown puts
+it, "the Web [is] the first medium that truly honors multiple forms of
+intelligence." Earlier technologies, such as the typewriter or word
+processors, helped amplify text. But the Web amplifies much more than
+text. "The Web … says if you are musical, if you are artistic, if
+you are visual, if you are interested in film … [then] there is a
+lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence."
Barish, Stephanie
-Brown is talking about what Elizabeth Daley, Stephanie Barish,
-and Just Think! teach: that this tinkering with culture teaches as well
+Brown is talking about what Elizabeth Daley, Stephanie Barish, and
+Just Think! teach: that this tinkering with culture teaches as well
-as creates. It develops talents differently, and it builds a different kind
-of recognition.
+as creates. It develops talents differently, and it builds a different
+kind of recognition.
Yet the freedom to tinker with these objects is not guaranteed.
@@ -2440,13 +2542,14 @@ freedom that technology, and curiosity, would otherwise ensure.
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter
-10) has developed a powerful argument in favor of the "right to
+)
+has developed a powerful argument in favor of the "right to
tinker" as it applies to computer science and to knowledge in
general.
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," Communications
+of the Association for Computer Machinery 43 (2000): 9.
But Brown's concern is earlier, or younger, or more fundamental. It is
about the learning that kids can do, or can't do, because of the law.
@@ -2459,10 +2562,11 @@ and want to learn."
"Yet," as Brown continued, and as the balance of this book will
evince, "we are building a legal system that completely suppresses the
-natural tendencies of today's digital kids. . . . We're building an
+natural tendencies of today's digital kids. … We're building an
architecture that unleashes 60 percent of the brain [and] a legal
system that closes down that part of the brain."
+
We're building a technology that takes the magic of Kodak, mixes
moving images and sound, and adds a space for commentary and an
@@ -2471,11 +2575,12 @@ the law to close down that technology.
"No way to run a culture," as Brewster Kahle, whom we'll meet in
-chapter 9, quipped to me in a rare moment of despondence.
+chapter ,
+quipped to me in a rare moment of despondence.
-
-
+
+CHAPTER THREE: Catalogs
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
@@ -2540,10 +2645,9 @@ million files in his directory, including every type of content that might
be on users' computers.
-Thus the index his search engine produced included pictures,
-which students could use to put on their own Web sites; copies of notes
-or research; copies of information pamphlets; movie clips that
- students
+Thus the index his search engine produced included pictures, which
+students could use to put on their own Web sites; copies of notes or
+research; copies of information pamphlets; movie clips that students
might have created; university brochures—basically anything that
users of the RPI network made available in a public folder of their
@@ -2575,40 +2679,43 @@ them, he was increasingly astonished.
"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
+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.
+easier to use"—again, a search engine,
+which Jesse had not himself built, using the Windows filesharing
+system, which Jesse had not himself built, to enable members of the
+RPI community to get access to content, which Jesse had not himself
+created or posted, and the vast majority of which had nothing to do
+with music.
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore "willfully" violated copyright laws. They
- demanded
-that he pay them the damages for his wrong. For cases of
+demanded that he pay them the damages for his wrong. For cases of
"willful infringement," the Copyright Act specifies something lawyers
call "statutory damages." These damages permit a copyright owner to
claim $150,000 per infringement. As the RIAA alleged more than one
-hundred specific copyright infringements, they therefore demanded
-that Jesse pay them at least $15,000,000.
+hundred specific copyright infringements, they therefore demanded that
+Jesse pay them at least $15,000,000.
-Similar lawsuits were brought against three other students: one
-other student at RPI, one at Michigan Technical University, and one at
+Similar lawsuits were brought against three other students: one other
+student at RPI, one at Michigan Technical University, and one at
Princeton. Their situations were similar to Jesse's. Though each case
was different in detail, the bottom line in each was exactly the same:
huge demands for "damages" that the RIAA claimed it was entitled to.
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.
+the United States to award the plaintiffs close to $100
+billion—six times the
+total profit of the film industry in
+2001.
+
Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
-Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
+Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
(2003): 5, available at 2003 WL 55179443.
@@ -2655,14 +2762,14 @@ artist makes $45,900.
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, More Than One in a Blue Moon (2000).
There are plenty of ways for the RIAA to affect
and direct policy. So where is the morality in taking money from a
student for running a search engine?
Douglas Lichtman makes a related point in "KaZaA and Punishment,"
-Wall Street Journal, 10 September 2003, A24.
+Wall Street Journal, 10 September 2003, A24.
@@ -2674,7 +2781,7 @@ activist:
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
+an activist. … [But] I've been pushed into this. In no way did I
ever foresee anything like this, but I think it's just completely
absurd what the RIAA has done.
@@ -2682,13 +2789,13 @@ absurd what the RIAA has done.
Jesse's parents betray a certain pride in their reluctant activist. As
his father told me, Jesse "considers himself very conservative, and so do
-I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
+I. … He's not a tree hugger. … I think it's bizarre that they would
pick on him. But he wants to let people know that they're sending the
wrong message. And he wants to correct the record."
-
-
+
+CHAPTER FOUR: "Pirates"
If "piracy" means using the creative property of others without
@@ -2698,14 +2805,15 @@ the content industry is a history of piracy. Every important sector of
kind of piracy so defined. The consistent story is how last generation's
pirates join this generation's country club—until now.
-
+Film
The film industry of Hollywood was built by fleeing pirates.
I am grateful to Peter DiMauro for pointing me to this extraordinary
-history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
+history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
which details Edison's "adventures" with copyright and patent.
+Vaidhyanathan, Siva
Creators and directors migrated from the East Coast to California in
the early twentieth century in part to escape controls that patents
@@ -2742,8 +2850,8 @@ 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.
-J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
-Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
+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
link #11. For a
@@ -2753,6 +2861,9 @@ Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159.
+Fox, William
+General Film Company
+Picker, Randal C.
@@ -2762,7 +2873,7 @@ resisted. "Shooting was disrupted by machinery stolen, and
`accidents' resulting in loss of negatives, equipment, buildings and
sometimes life and limb frequently occurred."
-Marc Wanamaker, "The First Studios," The Silents Majority, archived at
+Marc Wanamaker, "The First Studios," The Silents Majority, archived at
link #12.
That led the independents to flee the East
@@ -2781,13 +2892,16 @@ time), by the time enough federal marshals appeared, the patents had
expired. A new industry had been born, in part from the piracy of
Edison's creative property.
-
-
+
+Recorded Music
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.
+
+ Fourneaux, Henri
+
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
@@ -2817,11 +2931,13 @@ then made copies of those recordings. Because of this gap in the law,
then, I could effectively pirate someone else's song without paying
its composer anything.
+
The composers (and publishers) were none too happy about
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
+Kittredge, Alfred
@@ -2835,9 +2951,10 @@ rights.
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
+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).
+Kittredge, Alfred
@@ -2871,79 +2988,79 @@ introduction of automatic music players has not deprived any composer
of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.
+
To Amend and Consolidate the Acts Respecting Copyright, 283–84
-(statement of Albert Walker, representative of the Auto-Music
- Perforating
-Company of New York).
- In any case, the innovators
-argued, the job of Congress was "to consider first the interest of [the
-public], whom they represent, and whose servants they are." "All talk
-about `theft,'" the general counsel of the American Graphophone
-Company wrote, "is the merest claptrap, for there exists no property in
-ideas musical, literary or artistic, except as defined by statute."
+(statement of Albert Walker, representative of the Auto-Music
+Perforating Company of New York).
+ In any case, the innovators argued, the job of
+Congress was "to consider first the interest of [the public], whom
+they represent, and whose servants they are." "All talk about
+`theft,'" the general counsel of the American Graphophone Company
+wrote, "is the merest claptrap, for there exists no property in ideas
+musical, literary or artistic, except as defined by
+statute."
-To Amend and Consolidate the Acts Respecting Copyright, 376
- (prepared
-memorandum of Philip Mauro, general patent counsel of the
- American
+To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
+memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
+American Graphophone Company
-The law soon resolved this battle in favor of the composer 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
+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
+copyright law that makes cover songs possible. Once a composer
+authorizes a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
American law ordinarily calls this a "compulsory license," but I will
-refer to it as a "statutory license." A statutory license is a license 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 statute.
+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 statute.
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.
+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.
+Grisham, John
-Beatles
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.
+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.
+
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
+in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
+Beatles
While the recording industry has been quite coy about this recently,
@@ -2956,37 +3073,30 @@ relates,
the record producers argued vigorously that the compulsory
license system must be retained. They asserted that the record
- industry
-is a half-billion-dollar business of great economic
- importance
-in the United States and throughout the world; records
-today are the principal means of disseminating music, and this
-creates special problems, since performers need unhampered
- access
-to musical material on nondiscriminatory terms. Historically,
-the record producers pointed out, there were no recording rights
-before 1909 and the 1909 statute adopted the compulsory license
-as a deliberate anti-monopoly condition on the grant of these
-rights. They argue that the result has been an outpouring of
-recorded music, with the public being given lower prices,
- improved
-quality, and a greater choice.
+industry is a half-billion-dollar business of great economic
+importance in the United States and throughout the world; records
+today are the principal means of disseminating music, and this creates
+special problems, since performers need unhampered access to musical
+material on nondiscriminatory terms. Historically, the record
+producers pointed out, there were no recording rights before 1909 and
+the 1909 statute adopted the compulsory license as a deliberate
+anti-monopoly condition on the grant of these rights. They argue that
+the result has been an outpouring of recorded music, with the public
+being given lower prices, improved quality, and a greater
+choice.
-Copyright Law Revision: Report to Accompany H.R. 2512, House
- Committee
-on the Judiciary, 90th Cong., 1st sess., House Document no. 83,
-(8 March 1967). I am grateful to Glenn Brown for drawing my attention
-to this report.
-
+Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
+on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
+March 1967). I am grateful to Glenn Brown for drawing my attention to
+this report.
-By limiting the rights musicians have, by partially pirating their
- creative
-work, the record producers, and the public, benefit.
+By limiting the rights musicians have, by partially pirating their
+creative work, the record producers, and the public, benefit.
-
-
+
+Radio
Radio was also born of piracy.
@@ -2995,53 +3105,50 @@ Radio was also born of piracy.
When a radio station plays a record on the air, that constitutes a
"public performance" of the composer's work.
-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.
-
-As I described above,
-the law gives the composer (or copyright holder) an exclusive right to
-public performances of his work. The radio station thus owes the
- composer
-money for that performance.
-
-
-But when the radio station plays a record, it is not only performing
-a copy of the composer's work. The radio station is also performing a
-copy of the recording artist's work. It's one thing to have "Happy
- Birthday"
-sung on the radio by the 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.
+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.
+Hand, Learned
+Picker, Randal C.
+
+As I described above, the law gives the composer (or copyright holder)
+an exclusive right to public performances of his work. The radio
+station thus owes the composer money for that performance.
+
+
+But when the radio station plays a record, it is not only performing a
+copy of the composer's work. The radio station is
+also performing a copy of the recording artist's
+work. It's one thing to have "Happy Birthday" sung on the radio by the
+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.
+Lovett, Lyle
-But it doesn't. Under the law governing radio performances, the
- radio
+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 only pay the composer. The radio station thus gets a bit of
- something
-for nothing. It gets to perform the recording artist's work for
-free, even if it must pay the composer something for the privilege of
-playing the song.
+need only pay the composer. The radio station thus gets a bit of
+something for nothing. It gets to perform the recording artist's work
+for free, even if it must pay the composer something for the privilege
+of playing the song.
+
+ Madonna
+
-This difference can be huge. Imagine you compose a piece of
- music.
+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 performances of that music. So if Madonna wants to sing your
song in public, she has to get your permission.
@@ -3049,51 +3156,52 @@ song in public, she has to get your permission.
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
+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.
+"protected" right. The radio station thus gets to
+pirate the value of Madonna's work without paying
+her anything.
+
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
-performance rights they give up. Maybe. But even if so, the law
- ordinarily
-gives the creator the right to make this choice. By making the
-choice for him or her, the law gives the radio station the right to take
-something for nothing.
-
-
-
+performance rights they give up. Maybe. But even if so, the law
+ordinarily gives the creator the right to make this choice. By making
+the choice for him or her, the law gives the radio station the right
+to take something for nothing.
+
+
+Cable TV
Cable TV was also born of a kind of piracy.
-When cable entrepreneurs first started wiring communities with
-cable television in 1948, most refused to pay broadcasters for the
- content
-that they echoed to their customers. Even when the cable
- companies
+When cable entrepreneurs first started wiring communities with cable
+television in 1948, most refused to pay broadcasters for the content
+that they echoed to their customers. Even when the cable companies
started selling access to television broadcasts, they refused to pay
for what they sold. Cable companies were thus Napsterizing
- broadcasters'
-content, but more egregiously than anything Napster ever did—
-Napster never charged for the content it enabled others to give away.
+broadcasters' content, but more egregiously than anything Napster ever
+did— Napster never charged for the content it enabled others to
+give away.
Anello, Douglas
+Burdick, Quentin
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
"unfair and potentially destructive competition."
-Copyright Law Revision—CATV: Hearing on S. 1006 Before the Subcommittee
-on Patents, Trademarks, and Copyrights of the Senate Committee
-on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of
-Rosel H. Hyde, chairman of the Federal Communications Commission).
+Copyright Law Revision—CATV: Hearing on S. 1006 Before the
+Subcommittee on Patents, Trademarks, and Copyrights of the Senate
+Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
+(statement of Rosel H. Hyde, chairman of the Federal Communications
+Commission).
There may have been a "public interest" in spreading the reach of cable
TV, but as Douglas Anello, general counsel to the National Association
@@ -3117,8 +3225,7 @@ general counsel of the Association of Maximum Service Telecasters, Inc.).
-Again, the demand of the copyright holders seemed reasonable
-enough:
+Again, the demand of the copyright holders seemed reasonable enough:
@@ -3134,101 +3241,95 @@ United Artists Television, Inc.).
-These were "free-ride[rs]," Screen Actor's Guild president
- Charlton
-Heston said, who were "depriving actors of compensation."
+These were "free-ride[rs]," Screen Actor's Guild president Charlton
+Heston said, who were "depriving actors of
+compensation."
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
-But again, there was another side to the debate. As Assistant
- Attorney
+But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
-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
+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.
-Copyright Law Revision—CATV, 216 (statement of Edwin M.
- Zimmerman,
-acting assistant attorney general).
+Copyright Law Revision—CATV, 216 (statement of Edwin M.
+Zimmerman, acting assistant attorney general).
+Zimmerman, Edwin
+Zimmerman, Edwin
-Copyright owners took the cable companies to court. Twice the
-Supreme Court held that the cable companies owed the copyright
-owners nothing.
+Copyright owners took the cable companies to court. Twice the Supreme
+Court held that the cable companies owed the copyright owners nothing.
It took Congress almost thirty years before it resolved the question
of whether cable companies had to pay for the content they "pirated."
-In the end, Congress resolved this question in the same way that it
- resolved
-the question about record players and player pianos. Yes, cable
-companies would have to pay for the content that they broadcast; but
-the price they would have to pay was not set by the copyright owner.
-The price was set by law, so that the broadcasters couldn't exercise veto
-power over the emerging technologies of cable. Cable companies thus
-built their empire in part upon a "piracy" of the value created by
- broadcasters'
-content.
-
-
-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
+In the end, Congress resolved this question in the same way that it
+resolved the question about record players and player pianos. Yes,
+cable companies would have to pay for the content that they broadcast;
+but the price they would have to pay was not set by the copyright
+owner. The price was set by law, so that the broadcasters couldn't
+exercise veto power over the emerging technologies of cable. Cable
+companies thus built their empire in part upon a "piracy" of the value
+created by broadcasters' content.
+
+
+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
-See, for example, National Music Publisher's Association, The Engine
+See, for example, National Music Publisher's Association, The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
-Information, available at
+Information, available at
link #13. "The
threat of piracy—the use of someone else's creative work without
permission or compensation—has grown with the Internet."
-— 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.
+— then every industry affected by copyright
+today is the product and beneficiary of a certain kind of
+piracy. Film, records, radio, cable TV. … The list is long and
+could well be expanded. Every generation welcomes the pirates from the
+last. Every generation—until now.
-
-
-
+
+
+CHAPTER FIVE: "Piracy"
-
-There is piracy of copyrighted material. Lots of it. This piracy
-comes in many forms. The most significant is commercial piracy, the
+There is piracy of copyrighted material. Lots of it. This piracy comes
+in many forms. The most significant is commercial piracy, the
unauthorized taking of other people's content within a commercial
-context. Despite the many justifications that are offered in its defense,
-this taking is wrong. No one should condone it, and the law should
-stop it.
+context. Despite the many justifications that are offered in its
+defense, this taking is wrong. No one should condone it, and the law
+should stop it.
But as well as copy-shop piracy, there is another kind of "taking"
that is more directly related to the Internet. That taking, too, seems
wrong to many, and it is wrong much of the time. Before we paint this
taking "piracy," however, we should understand its nature a bit more.
-For the harm of this taking is significantly more ambiguous than
- outright
-copying, and the law should account for that ambiguity, as it has
-so often done in the past.
+For the harm of this taking is significantly more ambiguous than
+outright copying, and the law should account for that ambiguity, as it
+has so often done in the past.
-
+Piracy I
All across the world, but especially in Asia and Eastern Europe, there
@@ -3237,15 +3338,14 @@ content, copy it, and sell it—all without the permission of a copyright
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy
-See IFPI (International Federation of the Phonographic Industry), The
-Recording Industry Commercial Piracy Report 2003, July 2003, available at
-
-link #14. See also Ben Hunt, "Companies Warned on Music Piracy Risk,"
-Financial Times, 14 February 2003, 11.
+See IFPI (International Federation of the Phonographic Industry), The
+Recording Industry Commercial Piracy Report 2003, July 2003, available
+at link #14. See
+also Ben Hunt, "Companies Warned on Music Piracy Risk," Financial
+Times, 14 February 2003, 11.
-(that works out to one in three CDs sold
-worldwide). The MPAA estimates that it loses $3 billion annually
-worldwide to piracy.
+(that works out to one in three CDs sold worldwide). The MPAA
+estimates that it loses $3 billion annually worldwide to piracy.
This is piracy plain and simple. Nothing in the argument of this
@@ -3256,34 +3356,30 @@ This piracy is wrong.
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 years of the American Republic, America did not honor
- foreign
+hundred years of the American Republic, America did not honor foreign
copyrights. We were born, in this sense, a pirate nation. It might
-therefore seem hypocritical for us to insist so strongly that other
- developing
-nations treat as wrong what we, for the first hundred years of our
-existence, treated as right.
+therefore seem hypocritical for us to insist so strongly that other
+developing nations treat as wrong what we, for the first hundred years
+of our existence, treated as right.
That excuse isn't terribly strong. Technically, our law did not ban
the taking of foreign works. It explicitly limited itself to American
works. Thus the American publishers who published foreign works
without the permission of foreign authors were not violating any rule.
-The copy shops in Asia, by contrast, are violating Asian law. Asian law
-does protect foreign copyrights, and the actions of the copy shops
- violate
-that law. So the wrong of piracy that they engage in is not just a
-moral wrong, but a legal wrong, and not just an internationally legal
-wrong, but a locally legal wrong as well.
+The copy shops in Asia, by contrast, are violating Asian law. Asian
+law does protect foreign copyrights, and the actions of the copy shops
+violate that law. So the wrong of piracy that they engage in is not
+just a moral wrong, but a legal wrong, and not just an internationally
+legal wrong, but a locally legal wrong as well.
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
not to protect copyright internationally. We may have been born a
- pirate
-nation, but we will not allow any other nation to have a similar
-childhood.
+pirate nation, but we will not allow any other nation to have a
+similar childhood.
If a country is to be treated as a sovereign, however, then its laws are
@@ -3291,8 +3387,8 @@ its laws regardless of their source. The international law under which
these nations live gives them some opportunities to escape the burden
of intellectual property law.
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
+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
@@ -3305,6 +3401,7 @@ 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
@@ -3318,12 +3415,13 @@ bought those American CDs at $15 a copy. So no one really has any
less money than they otherwise would have had.
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, 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, Stan
@@ -3341,66 +3439,64 @@ piracy of the tangible.
This argument is still very weak. However, although copyright is a
-property right of a very special sort, it is a property right. Like all
- property
-rights, the copyright gives the 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
+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.
-
-
-Finally, we could try to excuse this piracy with the argument that
-the piracy actually helps the copyright owner. When the Chinese
-"steal" Windows, that makes the Chinese dependent on Microsoft.
-Microsoft loses the value of the software that was taken. But it gains
-users who are used to life in the Microsoft world. Over time, as the
- nation
-grows more wealthy, more and more people will buy software
-rather than steal it. And hence over time, because that buying will
- benefit
+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.
+
+
+Finally, we could try to excuse this piracy with the argument that the
+piracy actually helps the copyright owner. When the Chinese "steal"
+Windows, that makes the Chinese dependent on Microsoft. Microsoft
+loses the value of the software that was taken. But it gains users who
+are used to life in the Microsoft world. Over time, as the nation
+grows more wealthy, more and more people will buy software rather than
+steal it. And hence over 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.
+system, then these Chinese users would not eventually be buying
+Microsoft. Without piracy, then, Microsoft would lose.
+GNU/Linux operating system
+Linux operating system
+
+Microsoft
+Windows operating system of
+
+Windows
-This argument, too, is somewhat true. The addiction strategy is a
-good one. Many businesses practice it. Some thrive because of it. Law
+This argument, too, is somewhat true. The addiction strategy is a good
+one. Many businesses practice it. Some thrive because of it. Law
students, for example, are given free access to the two largest legal
-databases. The companies marketing both hope the students will
- become
+databases. The companies marketing both hope the students will become
so used to their service that they will want to use it and not the
other when they become lawyers (and must pay high subscription fees).
-Still, the argument is not terribly persuasive. We don't give the
- alcoholic
-a defense when he steals his first beer, merely because that will
-make it more likely that he will buy the next three. Instead, we
- ordinarily
-allow businesses to decide for themselves when it is best to give
-their product away. If Microsoft fears the competition of GNU/Linux,
-then Microsoft can give its product away, as it did, for example, with
-Internet Explorer to fight Netscape. A property right means
- giving
-the property owner the right to say who gets access to what—at
-least ordinarily. And if the law properly balances the rights of the
- copyright
-owner with the rights of access, then violating the law is still
-wrong.
+Still, the argument is not terribly persuasive. We don't give the
+alcoholic a defense when he steals his first beer, merely because that
+will make it more likely that he will buy the next three. Instead, we
+ordinarily allow businesses to decide for themselves when it is best
+to give their product away. If Microsoft fears the competition of
+GNU/Linux, then Microsoft can give its product away, as it did, for
+example, with Internet Explorer to fight Netscape. A property right
+means giving the property owner the right to say who gets access to
+what—at least ordinarily. And if the law properly balances the
+rights of the copyright owner with the rights of access, then
+violating the law is still wrong.
+GNU/Linux operating system
+Linux operating system
@@ -3436,18 +3532,17 @@ TV, no one is selling the content that is shared on p2p services.
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.
+should push us to find a way to protect artists while enabling this
+sharing to survive.
-
-
+
+Piracy II
The key to the "piracy" that the law aims to quash is a use that "rob[s]
the author of [his] profit."
-Bach v. Longman, 98 Eng. Rep. 1274 (1777).
+Bach v. Longman, 98 Eng. Rep. 1274 (1777).
This means we must determine whether
and how much p2p sharing harms before we know how strongly the
@@ -3456,24 +3551,24 @@ law should seek to either prevent it or find an alternative to assure the
author of his profit.
-Peer-to-peer sharing was made famous by Napster. But the inventors
-of the Napster technology had not made any major technological
- innovations.
-Like every great advance in innovation on the Internet (and,
- arguably,
-off the Internet as well
-
-See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
-National Bestseller That Changed the Way We Do Business (New York:
+Peer-to-peer sharing was made famous by Napster. But the inventors of
+the Napster technology had not made any major technological
+innovations. Like every great advance in innovation on the Internet
+(and, arguably, off the Internet as well
+
+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.
+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.
+
+Christensen, Clayton M.), Shawn Fanning and crew had simply
put together components that had been developed independently.
+Fanning, Shawn
The result was spontaneous combustion. Launched in July 1999,
@@ -3481,14 +3576,12 @@ Napster amassed over 10 million users within nine months. After
eighteen months, there were close to 80 million registered users of the
system.
-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," 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.
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
@@ -3499,39 +3592,37 @@ 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
+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.
+
-See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
+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.
-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.
+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.
-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," New
+York Times, 6 June 2003, A1.
-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.
+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.
-Some of this enjoying involves copyright infringement. Some of it
-does not. And even among the part that is technically copyright
- infringement,
-calculating the actual harm to copyright owners is more
-complicated than one might think. So consider—a bit more carefully
-than the polarized voices around this debate usually do—the kinds of
-sharing that file sharing enables, and the kinds of harm it entails.
+Some of this enjoying involves copyright infringement. Some of it does
+not. And even among the part that is technically copyright
+infringement, calculating the actual harm to copyright owners is more
+complicated than one might think. So consider—a bit more
+carefully than the polarized voices around this debate usually
+do—the kinds of sharing that file sharing enables, and the kinds
+of harm it entails.
@@ -3541,48 +3632,40 @@ different kinds into four types.
-There are some who use sharing networks as substitutes for
- purchasing
-content. Thus, when a new Madonna CD is released,
-rather than buying the CD, these users simply take it. We might
-quibble about whether everyone who 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.
+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, these users simply take it. We might quibble about whether
+everyone who 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.
+Madonna
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 of. The other friend then buys CDs by that
-artist. This is a kind of targeted advertising, quite likely to
- succeed.
-If the friend recommending the album gains nothing from
-a bad recommendation, then one could expect that the
- recommendations
-will actually be quite good. The net effect of this
-sharing could increase the quantity of music purchased.
+purchasing it. Thus, a friend sends another friend an MP3 of an artist
+he's not heard of. The other friend then buys CDs by that artist. This
+is a kind of targeted advertising, quite likely to succeed. If the
+friend recommending the album gains nothing from a bad recommendation,
+then one could expect that the recommendations will actually be quite
+good. The net effect of this sharing could increase the quantity of
+music purchased.
-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 transaction costs off the Net are too
-high. This use of sharing networks is among the most
- rewarding
-for many. Songs that were part of your childhood but have
-long vanished from the marketplace magically appear again on
-the network. (One friend told me that when she discovered
-Napster, she spent a solid weekend "recalling" old songs. She
-was astonished at the range and mix of content that was
- available.)
-For content not sold, this is still technically a violation of
-copyright, though because the copyright owner is not selling the
-content anymore, the economic harm is zero—the same harm
-that occurs when I sell my collection of 1960s 45-rpm records to
+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 transaction costs off the Net are too high. This use of
+sharing networks is among the most rewarding for many. Songs that were
+part of your childhood but have long vanished from the marketplace
+magically appear again on the network. (One friend told me that when
+she discovered Napster, she spent a solid weekend "recalling" old
+songs. She was astonished at the range and mix of content that was
+available.) For content not sold, this is still technically a
+violation of copyright, though because the copyright owner is not
+selling the content anymore, the economic harm is zero—the same
+harm that occurs when I sell my collection of 1960s 45-rpm records to
a local collector.
@@ -3597,71 +3680,64 @@ wants to give away.
How do these different types of sharing balance out?
-Let's start with some simple but important points. From the
- perspective
-of the law, only type D sharing is clearly legal. From the
-perspective of economics, only type A sharing is clearly harmful.
+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.
-See Liebowitz, Rethinking the Network Economy,148–49.
-
-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.
-
-
-Whether on balance sharing is harmful depends importantly on
-how harmful type A sharing is. Just as Edison complained about
- Hollywood,
-composers complained about piano rolls, recording artists
-complained about radio, and broadcasters complained about cable TV,
-the music industry complains that type A sharing is a kind of "theft"
-that is "devastating" the industry.
-
-
-While the numbers do suggest that sharing is harmful, how
- harmful
-is harder to reckon. It has long been the recording industry's
- practice
-to blame technology for any drop in sales. The history of cassette
-recording is a good example. As a study by Cap Gemini Ernst &
-Young put it, "Rather than exploiting this new, popular technology, the
-labels fought it."
+See Liebowitz, Rethinking the Network Economy, 148–49.
+Liebowitz, Stan
+
+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.
+
+
+Whether on balance sharing is harmful depends importantly on how
+harmful type A sharing is. Just as Edison complained about Hollywood,
+composers complained about piano rolls, recording artists complained
+about radio, and broadcasters complained about cable TV, the music
+industry complains that type A sharing is a kind of "theft" that is
+"devastating" the industry.
+
+
+While the numbers do suggest that sharing is harmful, how
+harmful is harder to reckon. It has long been the recording industry's
+practice to blame technology for any drop in sales. The history of
+cassette recording is a good example. As a study by Cap Gemini Ernst
+& Young put it, "Rather than exploiting this new, popular
+technology, the labels fought it."
-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.
-
-The labels claimed that every album taped was an
-album unsold, and when record sales fell by 11.4 percent in 1981, the
-industry claimed that its point was proved. Technology was the
- problem,
-and banning or regulating technology was the answer.
+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.
+The labels claimed that every album taped was an album unsold, and
+when record sales fell by 11.4 percent in 1981, the industry claimed
+that its point was proved. Technology was the problem, and banning or
+regulating technology was the answer.
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+turnaround. "In the end," Cap Gemini concludes, "the `crisis' … was
not the fault of the tapers—who did not [stop after MTV came into
being]—but had to a large extent resulted from stagnation in musical
innovation at the major labels."
-U.S. Congress, Copyright and Home Copying, 4.
+U.S. Congress, Copyright and Home Copying, 4.
@@ -3671,138 +3747,131 @@ 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.
+harmful. The question is also how harmful type A
+sharing is, and how beneficial the other types of sharing are.
-We start to answer this question by focusing on the net harm, from
-the standpoint of the industry as a whole, that sharing networks cause.
+We start to answer this question by focusing on the net harm, from the
+standpoint of the industry as a whole, that sharing networks cause.
The "net harm" to the industry as a whole is the amount by which type
A sharing exceeds type B. If the record companies sold more records
through sampling than they lost through substitution, then sharing
-networks would actually benefit music companies on balance. They
-would therefore have little static reason to resist them.
+networks would actually benefit music companies on balance. They would
+therefore have little static reason to resist
+them.
+
-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.
+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.
-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.
+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.
-See Recording Industry Association of America, 2002 Yearend Statistics,
+See Recording Industry Association of America, 2002 Yearend Statistics,
available at
-link #15. A later report indicates even greater losses. See
-Recording Industry Association of America, Some Facts About Music Piracy,
-25 June 2003, available at
-link #16: "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
+link #15. A later
+report indicates even greater losses. See Recording Industry
+Association of America, Some Facts About Music Piracy, 25 June 2003,
+available at link
+#16: "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)."
+to a $32 billion industry in 2002 (based on U.S. dollar value of
+shipments)."
-This confirms a trend over the past few years. The RIAA blames
- Internet
-piracy for the trend, though there are many other causes that
+This confirms a trend over the past few years. The RIAA blames
+Internet piracy for the trend, though there are many other causes that
could account for this drop. SoundScan, for example, reports a more
-than 20 percent drop in the number of CDs released since 1999. That
-no doubt accounts for some of the decrease in sales. Rising prices could
+than 20 percent drop in the number of CDs released since 1999. That no
+doubt accounts for some of the decrease in sales. Rising prices could
account for at least some of the loss. "From 1999 to 2001, the average
-price of a CD rose 7.2 percent, from $13.04 to $14.19."
+price of a CD rose 7.2 percent, from $13.04 to $14.19."
+
Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
- February
-2003, available at
+February 2003, available at
link #17.
-
-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."
-
+Black, Jane
+
+
+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."
+
Ibid.
-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
+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 RIAA estimates that 803 million CDs were sold, the RIAA
-estimates that 2.1 billion CDs were downloaded for free. Thus,
- although
-2.6 times the total number of CDs sold were downloaded for
+estimates that 2.1 billion CDs were downloaded for free. Thus,
+although 2.6 times the total number of CDs sold were downloaded for
free, sales revenue fell by just 6.7 percent.
There are too many different things happening at the same time to
explain these numbers definitively, but one conclusion is unavoidable:
-The recording industry constantly asks, "What's the difference
- between
-downloading a song and stealing a CD?"—but their own
- numbers
+The recording industry constantly asks, "What's the difference between
+downloading a song and stealing a CD?"—but their own numbers
reveal the difference. If I steal a CD, then there is one less CD to
sell. Every taking is a lost sale. But on the basis of the numbers the
RIAA provides, it is absolutely clear that the same is not true of
-downloads. If every download were a lost sale—if every use of Kazaa
-"rob[bed] the author of [his] profit"—then the industry would have
-suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6
-times the number of CDs sold were downloaded for free, and yet sales
-revenue dropped by just 6.7 percent, then there is a huge difference
- between
-"downloading a song and stealing a CD."
+downloads. If every download were a lost sale—if every use of
+Kazaa "rob[bed] the author of [his] profit"—then the industry
+would have suffered a 100 percent drop in sales last year, not a 7
+percent drop. If 2.6 times the number of CDs sold were downloaded for
+free, and yet sales revenue dropped by just 6.7 percent, then there is
+a huge difference between "downloading a song and stealing a CD."
-These are the harms—alleged and perhaps exaggerated but, let's
- assume,
-real. What of the benefits? File sharing may impose costs on the
-recording industry. What value does it produce in addition to these
-costs?
+These are the harms—alleged and perhaps exaggerated but, let's
+assume, real. What of the benefits? File sharing may impose costs on
+the recording industry. What value does it produce in addition to
+these costs?
-One benefit is type C sharing—making available content that is
-technically still under copyright but is no longer commercially
- available.
-This is not a small category of content. There are millions of
-tracks that are no longer commercially available.
+One benefit is type C sharing—making available content that
+is technically still under copyright but is no longer commercially
+available. This is not a small category of content. There are
+millions of tracks that are no longer commercially
+available.
-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
-Soon to a Digital Device Near You: Hearing Before the Senate
- Committee
-on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared
- statement
-of the Future of Music Coalition), available at
-link #18.
-
-And while it's
- conceivable
-that some of this content is not available because the artist
-producing the content doesn't want it to be made available, the vast
-majority of it is unavailable solely because the publisher or the
- distributor
-has decided it no longer makes economic sense to the company to
-make it available.
+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 Soon to a Digital Device Near You: Hearing Before the
+Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
+2001) (prepared statement of the Future of Music Coalition), available
+at link #18.
+
+And while it's conceivable that some of this content is not available
+because the artist producing the content doesn't want it to be made
+available, the vast majority of it is unavailable solely because the
+publisher or the distributor has decided it no longer makes economic
+sense to the company to make it available.
In real space—long before the Internet—the market had a simple
-response to this problem: used book and record stores. There are
- thousands
-of used book and used record stores in America today.
+response to this problem: used book and record stores. There are
+thousands of used book and used record stores in America
+today.
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
+an increase of 20 percent since 1993. See Book Hunter Press, The Quiet
+Revolution: The Expansion of the Used Book Market (2002), available at
link #19. Used records accounted for $260 million in sales in 2002. See
National
Association of Recording Merchandisers, "2002 Annual Survey
@@ -3810,15 +3879,14 @@ Association of Recording Merchandisers, "2002 Annual Survey
available at
link #20.
-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.
+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.
Bernstein, Leonard
@@ -3847,8 +3915,8 @@ 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
+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
@@ -3875,7 +3943,8 @@ unavailable?"
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 like the piracy I described in chapter 4, much of
+legal and good. And like the piracy I described in chapter
+, much of
this piracy is motivated by a new way of spreading content caused by
changes in the technology of distribution. Thus, consistent with the
tradition that gave us Hollywood, radio, the recording industry, and
@@ -3906,10 +3975,11 @@ percent was not good enough. Napster had to push the infringements
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
-link #21. 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.
+
+link #21. 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.
@@ -3926,71 +3996,63 @@ assure that there are zero copyright infringements caused by p2p.
Zero tolerance has not been our history. It has not produced the
content industry that we know today. The history of American law has
-been a process of balance. As new technologies changed the way
- content
-was distributed, the law adjusted, after some time, to the new
- technology.
-In this adjustment, the law sought to ensure the legitimate rights
-of creators while protecting innovation. Sometimes this has meant
-more rights for creators. Sometimes less.
+been a process of balance. As new technologies changed the way content
+was distributed, the law adjusted, after some time, to the new
+technology. In this adjustment, the law sought to ensure the
+legitimate rights of creators while protecting innovation. Sometimes
+this has meant more rights for creators. Sometimes less.
So, as we've seen, when "mechanical reproduction" threatened the
interests of composers, Congress balanced the rights of composers
-against the interests of the recording industry. It granted rights to
- composers,
-but also to the recording artists: Composers were to be paid, but
-at a price set by Congress. But when radio started broadcasting the
-recordings made by these recording artists, and they complained to
-Congress that their "creative property" was not being respected (since
-the radio station did not have to pay them for the creativity it
- broadcast),
-Congress rejected their claim. An indirect benefit was enough.
+against the interests of the recording industry. It granted rights to
+composers, but also to the recording artists: Composers were to be
+paid, but at a price set by Congress. But when radio started
+broadcasting the recordings made by these recording artists, and they
+complained to Congress that their "creative property" was not being
+respected (since the radio station did not have to pay them for the
+creativity it broadcast), Congress rejected their claim. An indirect
+benefit was enough.
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, Congress responded by giving broadcasters a right to
-compensation, but at a level set by the law. It likewise gave cable
- companies
-the right to the content, so long as they paid the statutory price.
+compensation, but at a level set by the law. It likewise gave cable
+companies the right to the content, so long as they paid the statutory
+price.
This compromise, like the compromise affecting records and player
-pianos, served two important goals—indeed, the two central goals of
-any copyright legislation. First, the law assured that new innovators
-would have the freedom to develop new ways to deliver content.
- Second,
-the law assured that copyright holders would be paid for the
- content
-that was distributed. One fear was that if Congress simply
-required cable TV to pay copyright holders whatever they demanded
-for their content, then copyright 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).
-
-
-In the same year that Congress struck this balance, two major
- producers
-and distributors of film content filed a lawsuit against another
-technology, the video tape recorder (VTR, or as we refer to them today,
-VCRs) that Sony had produced, the Betamax. Disney's and Universal's
-claim against Sony was relatively simple: Sony produced a device,
- Disney
-and Universal claimed, that enabled consumers to engage in
- copyright
-infringement. Because the device that Sony built had a "record"
-button, the device could be used to record copyrighted movies and
-shows. Sony was therefore benefiting from the copyright infringement
-of its customers. It should therefore, Disney and Universal claimed, be
-partially liable for that infringement.
+pianos, served two important goals—indeed, the two central goals
+of any copyright legislation. First, the law assured that new
+innovators would have the freedom to develop new ways to deliver
+content. Second, the law assured that copyright holders would be paid
+for the content that was distributed. One fear was that if Congress
+simply required cable TV to pay copyright holders whatever they
+demanded for their content, then copyright 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).
+
+Betamax
+
+In the same year that Congress struck this balance, two major
+producers and distributors of film content filed a lawsuit against
+another technology, the video tape recorder (VTR, or as we refer to
+them today, VCRs) that Sony had produced, the Betamax. Disney's and
+Universal's claim against Sony was relatively simple: Sony produced a
+device, Disney and Universal claimed, that enabled consumers to engage
+in copyright infringement. Because the device that Sony built had a
+"record" button, the device could be used to record copyrighted movies
+and shows. Sony was therefore benefiting from the copyright
+infringement of its customers. It should therefore, Disney and
+Universal claimed, be partially liable for that infringement.
There was something to Disney's and Universal's claim. Sony did
@@ -4003,31 +4065,27 @@ grant anyone permission to copy. Indeed, if anyone had asked, no
doubt the majority of shows would not have authorized copying. And
in the face of this obvious preference, Sony could have designed its
- system
-to minimize the opportunity for copyright infringement. It did
+system to minimize the opportunity for copyright infringement. It did
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "When
-there are 20, 30, 40 million of these VCRs in the land, we will be
- invaded
-by millions of `tapeworms,' eating away at the very heart and
-essence of the most precious asset the copyright owner has, his
- copyright."
+champion. Valenti called VCRs "tapeworms." He warned, "When there are
+20, 30, 40 million of these VCRs in the land, we will be invaded by
+millions of `tapeworms,' eating away at the very heart and essence of
+the most precious asset the copyright owner has, his
+copyright."
Copyright Infringements (Audio and Video Recorders): Hearing on
S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
Picture Association of America, Inc.).
-"One does not have to be trained in sophisticated marketing
-and creative judgment," he told Congress, "to understand the
- devastation
-on the after-theater marketplace caused by the hundreds of
- millions
-of tapings that will adversely impact on the future of the creative
+"One does not have to be trained in sophisticated marketing and
+creative judgment," he told Congress, "to understand the devastation
+on the after-theater marketplace caused by the hundreds of millions of
+tapings that will adversely impact on the future of the creative
community in this country. It is simply a question of basic economics
and plain common sense."
@@ -4036,7 +4094,7 @@ Copyright Infringements (Audio and Video Recorders), 475.
Indeed, as surveys would later show,
percent of VCR owners had movie libraries of ten videos or more
-Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429,
+Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429,
(C.D. Cal., 1979).
— a use the Court would later hold was not "fair." By
@@ -4054,16 +4112,17 @@ 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
-includes Hollywood in its jurisdiction—leading Judge Alex Kozinski,
-who sits on that court, refers to it as the "Hollywood Circuit"—held
-that Sony would be liable for the copyright 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
+includes Hollywood in its jurisdiction—leading Judge Alex
+Kozinski, who sits on that court, refers to it as the "Hollywood
+Circuit"—held that Sony would be liable for the copyright
+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.
-Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
+Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
1981).
@@ -4087,21 +4146,20 @@ varied permutations of competing interests that are inevitably
implicated
by such new technology.
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
+Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
-Congress was asked to respond to the Supreme Court's decision.
-But as with the plea of recording artists about radio broadcasts,
- Congress
-ignored the request. Congress was convinced that American film
-got enough, this "taking" notwithstanding.
-If we put these cases together, a pattern is clear:
+Congress was asked to respond to the Supreme Court's decision. But as
+with the plea of recording artists about radio broadcasts, Congress
+ignored the request. Congress was convinced that American film got
+enough, this "taking" notwithstanding. If we put these cases
+together, a pattern is clear:
-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 reduced to nothing. The Booksellers of
-London and Westminster, many of whom sold estates and houses
-to purchase Copy-right, are in a manner ruined, and those who
-after many years industry thought they had acquired a
- competency
-to provide for their families now find themselves without a
-shilling to devise to their successors.
+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 reduced to nothing. The Booksellers of London and
+Westminster, many of whom sold estates and houses to purchase
+Copy-right, are in a manner ruined, and those who after many years
+industry thought they had acquired a competency to provide for their
+families now find themselves without a shilling to devise to their
+successors.
Ibid.
@@ -4827,35 +4857,33 @@ Ibid.
"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
+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.
-
-
-At least, this was the rule in a world where the Parliament is
- antimonopoly,
-resistant to the protectionist pleas of publishers. In a world
-where the Parliament is more pliant, free culture would be less
- protected.
+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.
+
+
+At least, this was the rule in a world where the Parliament is
+antimonopoly, resistant to the protectionist pleas of publishers. In a
+world where the Parliament is more pliant, free culture would be less
+protected.
-
-
+
+CHAPTER SEVEN: Recorders
Jon Else is a filmmaker. He is best known for his documentaries and
@@ -4871,38 +4899,36 @@ today.
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.
+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.
+San Francisco Opera
-During one of the performances, Else was shooting some
- stagehands
+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
+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.
Years later, when he finally got funding to complete the film, Else
-attempted to clear the rights for those few seconds of The Simpsons.
+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.
-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 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.
+Gracie Films
Gracie Films was okay with it, too, but they, like Groening, wanted
@@ -4910,80 +4936,79 @@ 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.
+Gracie Films
-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."
+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."
-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 to her, "There must be some mistake here. . . .
-We're asking for your educational rate on this." That was the
- educational
+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 to her, "There must be some mistake here. … We're
+asking for your educational rate on this." That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
-"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
+"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."
+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."
-Else didn't have the money to buy the right to replay what was
- playing
+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.
-
-
-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
+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.
+San Francisco Opera
+Day After Trinity, The
+
+
+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.
+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.
-For example, "public performance" is a use of The Simpsons that
-the copyright owner gets to control. If you take a selection of favorite
+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
+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.
+whatever she wants—$10 or $1,000,000. That's her right, as set
+by the law.
But when lawyers hear this story about Jon Else and Fox, their first
thought is "fair use."
-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.
+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.
-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.
+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.
@@ -4991,49 +5016,43 @@ So I asked Else why he didn't just rely upon "fair use." Here's his reply:
-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 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:
-Before our films can be broadcast, the network requires
-that we buy Errors and Omissions insurance. The carriers
- require
-a detailed "visual cue sheet" listing the source and
- licensing
-status of each shot in the film. They take a dim view of
-"fair use," and a claim of "fair use" can grind the application
-process to a halt.
+Before our films can be broadcast, the network requires that we buy
+Errors and Omissions insurance. The carriers require a detailed
+"visual cue sheet" listing the source and licensing status of each
+shot in the film. They take a dim view of "fair use," and a claim of
+"fair use" can grind the application process to a halt.
-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
+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.
+Lucas, George
-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 "depose and litigate you to within
-an inch of your life," regardless of the merits of my claim. He
-made clear that it would boil down to who had the bigger
- legal
-department and the deeper pockets, me or them.
+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 "depose and litigate you to within an inch of your
+life," regardless of the merits of my claim. He made clear that it
+would boil down to who had the bigger legal department and the deeper
+pockets, me or them.
@@ -5045,26 +5064,26 @@ money.
-In theory, fair use means you need no permission. The theory
- therefore
-supports free culture and insulates against a permission culture.
-But in practice, fair use functions very differently. The fuzzy lines of
-the law, tied to the extraordinary liability if lines are crossed, means
-that the effective fair use for many types of creators is slight. The law
-has the right aim; practice has defeated the aim.
+In theory, fair use means you need no permission. The theory therefore
+supports free culture and insulates against a permission culture. But
+in practice, fair use functions very differently. The fuzzy lines of
+the law, tied to the extraordinary liability if lines are crossed,
+means that the effective fair use for many types of creators is
+slight. The law has the right aim; practice has defeated the aim.
This practice shows just how far the law has come from its
-eighteenth-century roots. The law was born as a shield to protect
- publishers'
-profits against the unfair competition of a pirate. It has matured
-into a sword that interferes with any use, transformative or not.
+eighteenth-century roots. The law was born as a shield to protect
+publishers' profits against the unfair competition of a pirate. It has
+matured into a sword that interferes with any use, transformative or
+not.
-
-
+
+CHAPTER EIGHT: TransformersAllen, Paul
+Alben, Alex
In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
was an innovative company founded by Microsoft cofounder Paul Allen to
@@ -5072,22 +5091,21 @@ develop digital entertainment. Long before the Internet became
popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
+Alben, Alex
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 do things with film that otherwise would be very difficult.
-In 1993, he launched an initiative to develop a product to build
- retrospectives
-on the work of particular actors. The first actor chosen was
-Clint Eastwood. The idea was to showcase all of the work of
- Eastwood,
-with clips from his films and interviews with figures important
-to his career.
-
-
-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,
+film, but to do things with film that otherwise would be very
+difficult. In 1993, he launched an initiative to develop a product to
+build retrospectives on the work of particular actors. The first actor
+chosen was Clint Eastwood. The idea was to showcase all of the work of
+Eastwood, with clips from his films and interviews with figures
+important to his career.
+
+Alben, Alex
+
+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 about his career. Because Starwave produced those
interviews, it was free to include them on the CD.
@@ -5099,34 +5117,36 @@ posters, scripts, and other material relating to the films Eastwood
made. Most of his career was spent at Warner Brothers, and so it was
relatively easy to get permission for that content.
+Alben, Alex
Then Alben and his team decided to include actual film clips. "Our
-goal was that we were going to have a clip from every one of
- Eastwood's
-films," Alben told me. It was here that the problem arose. "No
-one had ever really done this before," Alben explained. "No one had
-ever tried to do this in the context of an artistic look at an actor's
-career."
+goal was that we were going to have a clip from every one of
+Eastwood's films," Alben told me. It was here that the problem
+arose. "No one had ever really done this before," Alben explained. "No
+one had ever tried to do this in the context of an artistic look at an
+actor's career."
+Alben, Alex
Alben brought the idea to Michael Slade, the CEO of Starwave.
Slade asked, "Well, what will it take?"
+Alben, Alex
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
+
@@ -5143,30 +5163,27 @@ tale, Alben recounted just what they did:
-So we very mechanically went about looking up the film clips.
-We made some artistic decisions about what film clips to
- include—of
-course we were going to use the "Make my day" clip
-from Dirty 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.
+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.
-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 a minute, but to reuse that performance
-in the CD-ROM the rate at the time was about $600.
-So we had to identify the people—some of them were hard to
-identify because in Eastwood movies you can't tell who's the guy
-crashing through the glass—is it the actor or is it the stuntman?
-And then we just, we put together a team, my assistant and some
-others, and we just started calling people.
+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 a minute, but to reuse that performance in the CD-ROM the
+rate at the time was about $600. So we had to identify the
+people—some of them were hard to identify because in Eastwood
+movies you can't tell who's the guy crashing through the
+glass—is it the actor or is it the stuntman? And then we just,
+we put together a team, my assistant and some others, and we just
+started calling people.
+Alben, Alex
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
@@ -5179,9 +5196,10 @@ cleared the rights to this retrospective CD-ROM on Clint Eastwood's
career.
-It was one year later—"and even then we weren't sure whether we
-were totally in the clear."
+It was one year later—"and even then we
+weren't sure whether we were totally in the clear."
+Alben, Alex
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
@@ -5189,14 +5207,13 @@ project for the purpose of releasing a retrospective.
-Everyone thought it would be too hard. Everyone just threw up
-their hands and said, "Oh, my gosh, a film, it's so many
- copyrights,
-there's the music, there's the screenplay, there's the director,
-there's the actors." But we just broke it down. We just put it into
-its constituent parts and said, "Okay, there's this many actors, this
-many directors, . . . this many musicians," and we just went at it
-very systematically and cleared the rights.
+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, there's the screenplay, there's the director, there's the
+actors." But we just broke it down. We just put it into its
+constituent parts and said, "Okay, there's this many actors, this many
+directors, … this many musicians," and we just went at it very
+systematically and cleared the rights.
@@ -5205,23 +5222,24 @@ very systematically and cleared the rights.
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 this
-efficiently, but as Peter Drucker has famously quipped, "There is
- nothing
-so useless as doing efficiently that which should not be done at
-all."
+take a year's work simply to clear rights. No doubt Alben had done
+this efficiently, but as Peter Drucker has famously quipped, "There is
+nothing so useless as doing efficiently that which should not be done
+at all."
-U.S. Department of Commerce Office of Acquisition Management, Seven
-Steps to Performance-Based Services Acquisition, available at
+U.S. Department of Commerce Office of Acquisition Management, Seven
+Steps to Performance-Based Services Acquisition, available at
link #22.
Did it make sense, I asked Alben, that this is the way a new work
has to be made?
-For, as he acknowledged, "very few . . . have the time and resources,
+For, as he acknowledged, "very few … have the time and resources,
and the will to do this," and thus, very few such works would ever be
made. Does it make sense, I asked him, from the standpoint of what
anybody really thought they were ever giving rights for originally, that
@@ -5230,66 +5248,60 @@ you would have to go clear rights for these kinds of clips?
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
+he or she gets paid very well. … And then when 30 seconds of
that performance is used in a new product that is a retrospective
-of somebody's career, I don't think that that person . . . should be
+of somebody's career, I don't think that that person … should be
compensated for that.
-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 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?
-Absolutely. I think that if there were some fair-licensing
- mechanism—where
-you weren't subject to hold-ups and you weren't
+Absolutely. I think that if there were some fair-licensing
+mechanism—where you weren't subject to hold-ups and you weren't
subject to estranged former spouses—you'd see a lot more of this
work, because it wouldn't be so daunting to try to put together a
-retrospective of someone's career and meaningfully illustrate it
-with lots of media from that person's career. You'd build in a cost
-as the producer of one of these things. You'd build in a cost of
- paying
-X dollars to the talent that performed. But it would be a
-known cost. That's the thing that trips everybody up and makes
-this kind of product hard to get off the ground. If you knew I have
-a hundred minutes of film in this product and it's going to cost me
-X, then you build your budget around it, and you can get
- investments
-and everything else that you need to produce it. But if you
-say, "Oh, I want a hundred minutes of something and I have no
-idea what it's going to cost me, and a certain number of people are
-going to hold me up for money," then it becomes difficult to put
-one of these things together.
+retrospective of someone's career and meaningfully illustrate it with
+lots of media from that person's career. You'd build in a cost as the
+producer of one of these things. You'd build in a cost of paying X
+dollars to the talent that performed. But it would be a known
+cost. That's the thing that trips everybody up and makes this kind of
+product hard to get off the ground. If you knew I have a hundred
+minutes of film in this product and it's going to cost me X, then you
+build your budget around it, and you can get investments and
+everything else that you need to produce it. But if you say, "Oh, I
+want a hundred minutes of something and I have no idea what it's going
+to cost me, and a certain number of people are going to hold me up for
+money," then it becomes difficult to put one of these things together.
-
-Alben worked for a big company. His company was backed by some
-of the richest investors in the world. He therefore had authority and
-access that the average Web designer would not have. So if it took him
-a year, how long would it take someone else? And how much creativity
-is never made just because the costs of clearing the rights are so high?
-These costs are the burdens of a kind of regulation. Put on a
- Republican
-hat for a moment, and get angry for a bit. The government
+Alben, Alex
+
+Alben worked for a big company. His company was backed by some of the
+richest investors in the world. He therefore had authority and access
+that the average Web designer would not have. So if it took him a
+year, how long would it take someone else? And how much creativity is
+never made just because the costs of clearing the rights are so high?
+These costs are the burdens of a kind of regulation. Put on a
+Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines
-how much it's going to cost to negotiate them. (Remember the idea
-that land runs to the heavens, and imagine the pilot purchasing
- flythrough
+how much it's going to cost to negotiate them. (Remember the idea that
+land runs to the heavens, and imagine the pilot purchasing flythrough
rights as he negotiates to fly from Los Angeles to San Francisco.)
These rights might well have once made sense; but as circumstances
-change, they make no sense at all. Or at least, a well-trained,
- regulationminimizing
-Republican should look at the rights and ask, "Does this
-still make sense?"
+change, they make no sense at all. Or at least, a well-trained,
+regulationminimizing Republican should look at the rights and ask,
+"Does this still make sense?"
I've seen the flash of recognition when people get this point, but only
@@ -5303,10 +5315,11 @@ friend, Robert Fairbank, had produced.
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.
+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.
+Nimmer, David
When the lights came up, I looked over to my copanelist, David
Nimmer, perhaps the leading copyright scholar and practitioner in the
@@ -5315,22 +5328,21 @@ 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
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 law.
-Of course, it wasn't as if they or anyone were going to be prosecuted for
-this violation (the presence of 250 judges and a gaggle of federal
- marshals
-notwithstanding). But Nimmer was making an important point:
-A year before anyone would have heard of the word Napster, and two
-years before another member of our panel, David Boies, would defend
-Napster before the Ninth Circuit Court of Appeals, Nimmer was
- trying
-to get the judges to see that the law would not be friendly to the
-capacities that this technology would enable. Technology means you
-can now do amazing things easily; but you couldn't easily do them
-legally.
+rights to these clips; technically, what they had done violated the
+law. Of course, it wasn't as if they or anyone were going to be
+prosecuted for this violation (the presence of 250 judges and a gaggle
+of federal marshals notwithstanding). But Nimmer was making an
+important point: A year before anyone would have heard of the word
+Napster, and two years before another member of our panel, David
+Boies, would defend Napster before the Ninth Circuit Court of Appeals,
+Nimmer was trying to get the judges to see that the law would not be
+friendly to the capacities that this technology would
+enable. Technology means you can now do amazing things easily; but you
+couldn't easily do them legally.
We live in a "cut and paste" culture enabled by technology. Anyone
@@ -5342,14 +5354,14 @@ planted in your presentation.
But presentations are just a tiny beginning. Using the Internet and
-its archives, musicians are able to string together mixes of sound never
-before imagined; filmmakers are able to build movies out of clips on
-computers around the world. An extraordinary site in Sweden takes
-images of 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.
+its archives, musicians are able to string together mixes of sound
+never before imagined; filmmakers are able to build movies out of
+clips on computers around the world. An extraordinary site in Sweden
+takes images of 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.
+Camp Chaos
All of these creations are technically illegal. Even if the creators
@@ -5359,21 +5371,19 @@ never made. And for that part that is made, if it doesn't follow the
clearance rules, it doesn't get released.
-To some, these stories suggest a solution: Let's alter the mix of
-rights so that people are free to build upon our culture. Free to add or
-mix as they see fit. We could even make this change without
- necessarily
-requiring that the "free" use be free as in "free beer." Instead, the
- system
-could simply make it easy for follow-on creators to compensate
-artists without requiring an army of lawyers to come along: a rule, for
-example, that says "the royalty owed the copyright owner of an
- unregistered
-work for the derivative reuse of his work will be a flat 1 percent
-of net revenues, to be held in escrow for the copyright owner." Under
-this rule, the copyright owner could benefit from some royalty, but he
-would not have the benefit of a full property right (meaning the right
-to name his own price) unless he registers the work.
+To some, these stories suggest a solution: Let's alter the mix of
+rights so that people are free to build upon our culture. Free to add
+or mix as they see fit. We could even make this change without
+necessarily requiring that the "free" use be free as in "free beer."
+Instead, the system could simply make it easy for follow-on creators
+to compensate artists without requiring an army of lawyers to come
+along: a rule, for example, that says "the royalty owed the copyright
+owner of an unregistered work for the derivative reuse of his work
+will be a flat 1 percent of net revenues, to be held in escrow for the
+copyright owner." Under this rule, the copyright owner could benefit
+from some royalty, but he would not have the benefit of a full
+property right (meaning the right to name his own price) unless he
+registers the work.
Who could possibly object to this? And what reason would there be
@@ -5382,37 +5392,32 @@ which if made, under this plan, would produce new income for artists.
What reason would anyone have to oppose it?
-In February 2003, DreamWorks studios announced an
- agreement
-with Mike Myers, the comic genius of Saturday Night Live and
+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 announcement called this "film sampling." As Myers
- explained,
-"Film Sampling is an exciting way to put an original spin on
-existing films and allow audiences to see old movies in a new light. Rap
+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 announcement called this "film sampling." As Myers explained,
+"Film Sampling is an exciting way to put an original spin on existing
+films and allow audiences to see old movies in a new light. Rap
artists have been doing this for years with music and now we are able
to take that same concept and apply it to film." Steven Spielberg is
-quoted as saying, "If anyone can create a way to bring old films to new
-audiences, it is Mike."
+quoted as saying, "If anyone can create a way to bring old films to
+new audiences, it is Mike."
Spielberg is right. Film sampling by Myers will be brilliant. But if
you don't think about it, you might miss the truly astonishing point
-about this announcement. As the vast majority of our film heritage
- remains
-under copyright, the real meaning of the DreamWorks
- announcement
-is just this: It is Mike Myers and only Mike Myers who is
+about this announcement. As the vast majority of our film heritage
+remains under copyright, the real meaning of the DreamWorks
+announcement is just this: It is Mike Myers and only Mike Myers who is
free to sample. Any general freedom to build upon the film archive of
our culture, a freedom in other contexts presumed for us all, is now a
privilege reserved for the funny and famous—and presumably rich.
@@ -5431,8 +5436,8 @@ process is a process of paying lawyers—again a privilege, or perhaps a
curse, reserved for the few.
-
-
+
+CHAPTER NINE: Collectors
In April 1996, millions of "bots"—computer codes designed to
@@ -5445,19 +5450,18 @@ bits of code took copies of the Internet and stored them.
By October 2001, the bots had collected more than five years of
-copies. And at a small announcement in Berkeley, California, the archive
-that these copies created, the Internet Archive, was opened to the
-world. Using a technology called "the Way Back Machine," you could
-enter a Web page, and see all of its copies going back to 1996, as well
-as when those pages changed.
+copies. And at a small announcement in Berkeley, California, the
+archive that these copies created, the Internet Archive, was opened to
+the world. Using a technology called "the Way Back Machine," you could
+enter a Web page, and see all of its copies going back to 1996, as
+well as when those pages changed.
-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.
+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.
@@ -5469,573 +5473,528 @@ story that was printed on the date published on the paper.
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 content you read before. The page may seem the same,
-but the content could easily be different. The Internet is Orwell's
- library—constantly
-updated, without any reliable memory.
+but the content could easily be different. The Internet is Orwell's
+library—constantly updated, without any reliable memory.
-Until the Way Back Machine, at least. With the Way Back
- Machine,
-and the Internet Archive underlying it, you can see what the
-Internet was. You have the power to see what you remember. More
-importantly, perhaps, you also have the power to find what you don't
-remember and what others might prefer you forget.
+Until the Way Back Machine, at least. With the Way Back Machine, and
+the Internet Archive underlying it, you can see what the Internet
+was. You have the power to see what you remember. More importantly,
+perhaps, you also have the power to find what you don't remember and
+what others might prefer you forget.
The temptations remain, however. Brewster Kahle reports that the White
-House changes its own press releases without notice. A May 13, 2003, press
-release stated, "Combat Operations in Iraq Have Ended." That was later
-changed, without notice, to "Major Combat Operations in Iraq Have Ended."
-E-mail from Brewster Kahle, 1 December 2003.
+House changes its own press releases without notice. A May 13, 2003,
+press release stated, "Combat Operations in Iraq Have Ended." That was
+later changed, without notice, to "Major Combat Operations in Iraq
+Have Ended." E-mail from Brewster Kahle, 1 December 2003.
-We take it for granted that we can go back to see what we
- remember
-reading. Think about newspapers. If you wanted to study the
- reaction
-of your hometown newspaper to the race riots in Watts in 1965,
-or to Bull Connor's water cannon in 1963, you could go to your public
+We take it for granted that we can go back to see what we remember
+reading. Think about newspapers. If you wanted to study the reaction
+of your hometown newspaper to the race riots in Watts in 1965, or to
+Bull Connor's water cannon in 1963, you could go to your public
library and look at the newspapers. Those papers probably exist on
microfiche. If you're lucky, they exist in paper, too. Either way, you
-are free, using a library, to go back and remember—not just what it is
-convenient to remember, but remember something close to the truth.
+are free, using a library, to go back and remember—not just what
+it is convenient to remember, but remember something close to the
+truth.
-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 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.
-The Internet was an exception to this presumption. Until the
- Internet
+The Internet was an exception to this presumption. Until the Internet
Archive, there was no way to go back. The Internet was the
-quintessentially transitory medium. And yet, as it becomes more
- important
-in forming and reforming society, it becomes more and more
+quintessentially transitory medium. And yet, as it becomes more
+important in forming and reforming society, it becomes more and more
- important
-to maintain in some historical form. It's just bizarre to think that
-we have scads of archives of newspapers from tiny towns around the
-world, yet there is but one copy of the Internet—the one kept by the
- Internet
-Archive.
+important to maintain in some historical form. It's just bizarre to
+think that we have scads of archives of newspapers from tiny towns
+around the world, yet there is but one copy of the Internet—the
+one kept by the Internet Archive.
Brewster Kahle is the founder of the Internet Archive. He was a very
-successful Internet entrepreneur after he was a successful computer
- researcher.
-In the 1990s, Kahle decided he had had enough business
- success.
-It was time to become a different kind of success. So he launched
-a series of projects designed to archive human knowledge. The
- Internet
-Archive was just the first of the projects of this Andrew Carnegie
-of the Internet. By December of 2002, the archive had over 10 billion
-pages, and it was growing at about a billion pages a month.
-
-
-The Way Back Machine is the largest archive of human knowledge
-in human history. At the end of 2002, it held "two hundred and thirty
-terabytes of material"—and was "ten times larger than the Library of
-Congress." And this was just the first of the archives that Kahle set
-out to build. In addition to the Internet Archive, Kahle has been
- constructing
-the Television Archive. Television, it turns out, is even more
-ephemeral than the Internet. While much of twentieth-century culture
-was constructed through television, only a tiny proportion of that
- culture
-is available for anyone to see today. Three hours of news are
- recorded
-each evening by Vanderbilt University—thanks to a specific
-exemption in the copyright law. That content is indexed, and is available
-to scholars for a very low fee. "But other than that, [television] is almost
-unavailable," Kahle told me. "If you were Barbara Walters you could get
-access to [the archives], but if you are just a graduate student?" As Kahle
-put it,
+successful Internet entrepreneur after he was a successful computer
+researcher. In the 1990s, Kahle decided he had had enough business
+success. It was time to become a different kind of success. So he
+launched a series of projects designed to archive human knowledge. The
+Internet Archive was just the first of the projects of this Andrew
+Carnegie of the Internet. By December of 2002, the archive had over 10
+billion pages, and it was growing at about a billion pages a month.
+
+
+The Way Back Machine is the largest archive of human knowledge in
+human history. At the end of 2002, it held "two hundred and thirty
+terabytes of material"—and was "ten times larger than the
+Library of Congress." And this was just the first of the archives that
+Kahle set out to build. In addition to the Internet Archive, Kahle has
+been constructing the Television Archive. Television, it turns out, is
+even more ephemeral than the Internet. While much of twentieth-century
+culture was constructed through television, only a tiny proportion of
+that culture is available for anyone to see today. Three hours of news
+are recorded each evening by Vanderbilt University—thanks to a
+specific exemption in the copyright law. That content is indexed, and
+is available to scholars for a very low fee. "But other than that,
+[television] is almost unavailable," Kahle told me. "If you were
+Barbara Walters you could get access to [the archives], but if you are
+just a graduate student?" As Kahle put it,
-Do you remember when Dan Quayle was interacting with
- Murphy
-Brown? Remember that back and forth surreal experience of
-a politician interacting with a fictional television character? If you
-were a graduate student wanting to study that, and you wanted to
-get those original back and forth exchanges between the two, the
+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. . . .
+60 Minutes episode that came out after it … it would be almost
+impossible. … Those materials are almost unfindable. …
Why is that? Why is it that the part of our culture that is recorded
in newspapers remains perpetually accessible, while the part that is
recorded on videotape is not? How is it that we've created a world
-where researchers trying to understand the effect of media on
- nineteenthcentury
-America will have an easier time than researchers trying to
- understand
-the effect of media on twentieth-century America?
+where researchers trying to understand the effect of media on
+nineteenthcentury America will have an easier time than researchers
+trying to understand the effect of media on twentieth-century America?
In part, this is because of the law. Early in American copyright law,
-copyright owners were required to deposit copies of their work in
- libraries.
-These copies were intended both to facilitate the spread of
-knowledge and to assure that a copy of the work would be around once
-the copyright expired, so that others might access and copy the work.
+copyright owners were required to deposit copies of their work in
+libraries. These copies were intended both to facilitate the spread
+of knowledge and to assure that a copy of the work would be around
+once the copyright expired, so that others might access and copy the
+work.
-These rules applied to film as well. But in 1915, the Library of
- Congress
-made an exception for film. Film could be copyrighted so long
-as such deposits were made. But the filmmaker was then allowed to
-borrow back the deposits—for an unlimited time at no cost. In 1915
-alone, there were more than 5,475 films deposited and "borrowed back."
-Thus, when the copyrights to films expire, there is no copy held by any
-library. The copy exists—if it exists at 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 & Co., 1992), 36.
+These rules applied to film as well. But in 1915, the Library
+of Congress made an exception for film. Film could be copyrighted so
+long as such deposits were made. But the filmmaker was then allowed to
+borrow back the deposits—for an unlimited time at no cost. In
+1915 alone, there were more than 5,475 films deposited and "borrowed
+back." Thus, when the copyrights to films expire, there is no copy
+held by any library. The copy exists—if it exists at
+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 &
+Co., 1992), 36.
The same is generally true about television. Television broadcasts
were originally not copyrighted—there was no way to capture the
broadcasts, so there was no fear of "theft." But as technology enabled
-capturing, broadcasters relied increasingly upon the law. The law
- required
-they make a copy of each broadcast for the work to be
- "copyrighted."
-But those copies were simply kept by the broadcasters. No
-library had any right to them; the government didn't demand them.
-The content of this part of American culture is practically invisible to
-anyone who would look.
+capturing, broadcasters relied increasingly upon the law. The law
+required they make a copy of each broadcast for the work to be
+"copyrighted." But those copies were simply kept by the
+broadcasters. No library had any right to them; the government didn't
+demand them. The content of this part of American culture is
+practically invisible to anyone who would look.
Kahle was eager to correct this. Before September 11, 2001, he and
-his allies had started capturing television. They selected twenty
- stations
-from around the world and hit the Record button. After
- September
-11, Kahle, working with dozens of others, selected twenty stations
-from around the world and, beginning October 11, 2001, made their
-coverage during the week of September 11 available free on-line.
- Anyone
-could see how news reports from around the world covered the
+his allies had started capturing television. They selected twenty
+stations from around the world and hit the Record button. After
+September 11, Kahle, working with dozens of others, selected twenty
+stations from around the world and, beginning October 11, 2001, made
+their coverage during the week of September 11 available free on-line.
+Anyone could see how news reports from around the world covered the
events of that day.
-Kahle had the same idea with film. Working with Rick Prelinger,
-whose archive of film includes close to 45,000 "ephemeral films"
-(meaning films other than Hollywood movies, films that were never
-copyrighted), Kahle established the Movie Archive. Prelinger let Kahle
-digitize 1,300 films in this archive and post those films on the Internet
-to be downloaded for free. Prelinger's is a for-profit company. It sells
+Kahle had the same idea with film. Working with Rick Prelinger, whose
+archive of film includes close to 45,000 "ephemeral films" (meaning
+films other than Hollywood movies, films that were never copyrighted),
+Kahle established the Movie Archive. Prelinger let Kahle digitize
+1,300 films in this archive and post those films on the Internet to be
+downloaded for free. Prelinger's is a for-profit company. It sells
copies of these films as stock footage. What he has discovered is that
-after he made a significant chunk available for free, his stock footage
-sales went up dramatically. People could easily find the material they
-wanted to use. Some downloaded that material and made films on
-their own. Others purchased copies to enable other films to be made.
-Either way, the archive enabled access to this important part of our
- culture.
-Want to see a copy of the "Duck and Cover" film 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.
-
-
-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
-defines the twentieth century that we have lost to history. The law
-doesn't require these copies to be kept by anyone, or to be deposited in
-an archive by anyone. Therefore, there is no simple way to find them.
-
-
-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 to ensure competition in access to this important part of our
- culture.
-Not during the commercial life of a bit of creative property, but
- during
-a second life that all creative property has—a noncommercial life.
+after he made a significant chunk available for free, his stock
+footage sales went up dramatically. People could easily find the
+material they wanted to use. Some downloaded that material and made
+films on their own. Others purchased copies to enable other films to
+be made. Either way, the archive enabled access to this important
+part of our culture. Want to see a copy of the "Duck and Cover" film
+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.
+Movie Archive
+
+
+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 defines the twentieth century that we have lost to history. The
+law doesn't require these copies to be kept by anyone, or to be
+deposited in an archive by anyone. Therefore, there is no simple way
+to find them.
+
+
+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 to ensure competition in access to this important part
+of our culture. Not during the commercial life of a bit of creative
+property, but during a second life that all creative property
+has—a noncommercial life.
For here is an idea that we should more clearly recognize. Every bit
-of creative property goes through different "lives." In its first life, if the
+of creative property goes through different "lives." In its first
+life, if the
-creator is lucky, the content is sold. In such cases the commercial
- market
-is successful for the creator. The vast majority of creative property
-doesn't enjoy such success, but some clearly does. For that content,
-commercial life is extremely important. Without this commercial
- market,
-there would be, many argue, much less creativity.
+creator is lucky, the content is sold. In such cases the commercial
+market is successful for the creator. The vast majority of creative
+property doesn't enjoy such success, but some clearly does. For that
+content, commercial life is extremely important. Without this
+commercial market, there would be, many argue, much less creativity.
-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 day to the doorsteps of America. The very next day, it is
-used to wrap fish or to fill boxes with fragile gifts or to build an archive
-of knowledge about our history. In this second life, the content can
-continue to inform even if that information is no longer sold.
+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 day to the doorsteps of America. The very next
+day, it is used to wrap fish or to fill boxes with fragile gifts or to
+build an archive of knowledge about our history. In this second life,
+the content can continue to inform even if that information is no
+longer sold.
-The same has always been true about books. A book goes out of
-print very quickly (the average today is after about a year
+The same has always been true about books. A book goes out of print
+very quickly (the average today is after about a year
Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
-Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune,
+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.
-). After it is
-out of print, it can be sold in used book stores without the copyright
-owner getting anything and stored in libraries, where many get to read
-the book, also for free. Used book stores and libraries are thus the
- second
-life of a book. That second life is extremely important to the
-spread and stability of culture.
-
-
-Yet increasingly, any assumption about a stable second life for
- creative
-property does not hold true with the most important components
-of popular culture in the twentieth and twenty-first centuries. For
-these—television, movies, music, radio, the Internet—there is no
- guarantee
-of a second life. For these sorts of culture, it is as if we've replaced
-libraries with Barnes & Noble superstores. With this culture, what's
-accessible is nothing but what a certain limited market demands.
- Beyond
-that, culture disappears.
+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.
+). After
+it is out of print, it can be sold in used book stores without the
+copyright owner getting anything and stored in libraries, where many
+get to read the book, also for free. Used book stores and libraries
+are thus the second life of a book. That second life is extremely
+important to the spread and stability of culture.
+
+
+Yet increasingly, any assumption about a stable second life for
+creative property does not hold true with the most important
+components of popular culture in the twentieth and twenty-first
+centuries. For these—television, movies, music, radio, the
+Internet—there is no guarantee of a second life. For these sorts
+of culture, it is as if we've replaced libraries with Barnes &
+Noble superstores. With this culture, what's accessible is nothing but
+what a certain limited market demands. Beyond that, culture
+disappears.
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 television and film and music: The cost of analog copies is
- extraordinarily
-high. So even though the law in principle would have
-restricted the ability of a Brewster Kahle to copy culture generally, the
+so. It would have been insanely expensive to collect and make
+accessible all television and film and music: The cost of analog
+copies is extraordinarily high. So even though the law in principle
+would have restricted the ability of a Brewster Kahle to copy culture
+generally, the
-real restriction was economics. The market made it impossibly difficult
-to do anything about this ephemeral culture; the law had little
- practical
-effect.
+real restriction was economics. The market made it impossibly
+difficult to do anything about this ephemeral culture; the law had
+little practical effect.
-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
-imagine constructing archives that hold all culture produced or
- distributed
-publicly. Technology makes it possible to imagine an archive of all
-books published, and increasingly makes it possible to imagine an
-archive of all moving images and sound.
+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 imagine constructing archives that hold all culture
+produced or distributed publicly. Technology makes it possible to
+imagine an archive of all books published, and increasingly makes it
+possible to imagine an archive of all moving images and sound.
-The scale of this potential archive is something we've never
- imagined
-before. The Brewster Kahles of our history have dreamed about it;
-but we are for the first time at a point where that dream is possible. As
+The scale of this potential archive is something we've never imagined
+before. The Brewster Kahles of our history have dreamed about it; but
+we are for the first time at a point where that dream is possible. As
Kahle describes,
-It looks like there's about two to three million recordings of
- music.
-Ever. There are about a hundred thousand theatrical releases
-of movies, . . . and about one to two million movies [distributed]
-during the twentieth century. There are about twenty-six million
-different titles of books. All of these would fit on computers that
-would fit in this room and be able to be afforded by a small
- company.
-So we're at a turning point in our history. Universal access is
-the goal. And the opportunity of leading a different life, based on
-this, is . . . thrilling. It could be one of the things humankind
-would be most proud of. Up there with the Library of Alexandria,
-putting a man on the moon, and the invention of the printing
-press.
+It looks like there's about two to three million recordings of music.
+Ever. There are about a hundred thousand theatrical releases of
+movies, … and about one to two million movies [distributed] during
+the twentieth century. There are about twenty-six million different
+titles of books. All of these would fit on computers that would fit in
+this room and be able to be afforded by a small company. So we're at
+a turning point in our history. Universal access is the goal. And the
+opportunity of leading a different life, based on this, is
+… thrilling. It could be one of the things humankind would be most
+proud of. Up there with the Library of Alexandria, putting a man on
+the moon, and the invention of the printing press.
Kahle is not the only librarian. The Internet Archive is not the only
archive. But Kahle and the Internet Archive suggest what the future of
-libraries or archives could be. When the 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;
+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.
+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.
-Technologists have thus removed the economic costs of building
-such an archive. But lawyers' costs remain. For as much as we might
-like to call these "archives," as warm as the idea of a "library" might
-seem, the "content" that is collected in these digital spaces is also
- someone's
-"property." And the law of property restricts the freedoms that
-Kahle and others would exercise.
+Technologists have thus removed the economic costs of building such an
+archive. But lawyers' costs remain. For as much as we might like to
+call these "archives," as warm as the idea of a "library" might seem,
+the "content" that is collected in these digital spaces is also
+someone's "property." And the law of property restricts the freedoms
+that Kahle and others would exercise.
-
-
+
+CHAPTER TEN: "Property"
-Jack Valenti has been the president of the Motion Picture
- Association
-of America since 1966. He first came to Washington, D.C.,
-with Lyndon Johnson's administration—literally. The famous picture
-of Johnson's swearing-in on Air Force One after the assassination of
+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 administration—literally. The famous picture of
+Johnson's swearing-in on Air Force One after the assassination of
President Kennedy has Valenti in the background. In his almost forty
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
-
-
-The MPAA is the American branch of the international Motion
-Picture Association. It was formed in 1922 as a trade association whose
-goal was to defend American movies against increasing domestic
- criticism.
-The organization now represents not only filmmakers but
- producers
-and distributors of entertainment for television, video, and
-cable. Its board is 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.
+Johnson, Lyndon
+Kennedy, John F.
+
+
+The MPAA is the American branch of the international Motion Picture
+Association. It was formed in 1922 as a trade association whose goal
+was to defend American movies against increasing domestic criticism.
+The organization now represents not only filmmakers but producers and
+distributors of entertainment for television, video, and cable. Its
+board is 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.
+Disney, Inc.
+Sony Pictures Entertainment
+MGM
+Paramount Pictures
+Twentieth Century Fox
+Universal Pictures
+Warner Brothers
-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 Texan, Valenti has mastered the single most
- important
+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 Texan, Valenti has mastered the single most important
political skill of a Southerner—the ability to appear simple and
-slow while hiding a lightning-fast intellect. To this day, Valenti plays
-the simple, humble man. But this Harvard MBA, and author of four
+slow while hiding a lightning-fast intellect. To this day, Valenti
+plays the simple, humble man. But this Harvard MBA, and author of four
books, who finished high school at the age of fifteen and flew more
than fifty combat missions in World War II, is no Mr. Smith. When
Valenti went to Washington, he mastered the city in a quintessentially
Washingtonian way.
-In defending artistic liberty and the freedom of speech that our
- culture
-depends upon, the MPAA has done important good. In crafting
+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 system, it has probably avoided a great deal of
speech-regulating harm. But there is an aspect to the organization's
mission that is both the most radical and the most important. This is
-the organization's effort, epitomized in Valenti's every act, to redefine
-the meaning of "creative property."
+the organization's effort, epitomized in Valenti's every act, to
+redefine the meaning of "creative property."
-In 1982, Valenti's testimony to Congress captured the strategy
- perfectly:
+In 1982, Valenti's testimony to Congress captured the strategy
+perfectly:
-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.
+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.
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 Courts, Civil Liberties, and the Administration of Justice of
-the Committee on the Judiciary of the House of Representatives, 97th
-Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti).
+4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
+Subcommittee on Courts, Civil Liberties, and the Administration of
+Justice of the Committee on the Judiciary of the House of
+Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
+Valenti).
@@ -7764,10 +7698,10 @@ but I just feel that anything that allows a person to be more active
in the control of his or her life, in a healthy way, is
important.
-Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
+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 (New York: W. W. Norton, 1987), 270–71.
+James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of
+the VCR (New York: W. W. Norton, 1987), 270–71.
@@ -7780,6 +7714,7 @@ the VCR responsible.
This led Conrad to draw the cartoon below, which we can adopt to
the DMCA.
+Conrad, Paul
No argument I have can top this picture, but let me try to get close.
@@ -7807,10 +7742,11 @@ and bad uses.
The obvious point of Conrad's cartoon is the weirdness of a world
where guns are legal, despite the harm they can do, while VCRs (and
-circumvention technologies) are illegal. Flash: No one ever died from
-copyright circumvention. Yet the law bans circumvention technologies
-absolutely, despite the potential that they might do some good, but
-permits guns, despite the obvious and tragic harm they do.
+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.
+Conrad, Paul
The Aibo and RIAA examples demonstrate how copyright owners are
@@ -7821,14 +7757,16 @@ code. Technology becomes a means by which fair use can be erased; the
law of the DMCA backs up that erasing.
-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 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.
There is one final aspect of the interaction between architecture and
@@ -7844,15 +7782,15 @@ tracking down the identity of those who violate the rules.
-For example, imagine you were part of a Star Trek fan club. You
+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.
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," Loyola of Los Angeles
+Entertainment Law Journal 17 (1997): 651.
@@ -7880,8 +7818,8 @@ which you traveled at every moment that you drove; that would be just
one step before the state started issuing tickets based upon the data you
transmitted. That is, in effect, what is happening here.
-
-
+
+Market: Concentration
So copyright's duration has increased dramatically—tripled in
@@ -7923,6 +7861,7 @@ of the media.
These changes are of two sorts: the scope of concentration, and its
nature.
+BMG
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
@@ -7930,31 +7869,32 @@ ownership, "five companies control 85 percent of our media sources."
FCC Oversight: Hearing Before the Senate Commerce, Science and
Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
-(statement of Senator John McCain).
The five
-recording labels of Universal Music Group, BMG, Sony Music
+(statement of Senator John McCain).
+The five recording labels of Universal Music Group, BMG, Sony Music
Entertainment, Warner Music Group, and EMI control 84.8 percent of the
U.S. music market.
Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
-Slide," New York Times, 23 December 2002.
+Slide," New York Times, 23 December 2002.
The "five largest cable companies pipe
programming to 74 percent of the cable subscribers nationwide."
-Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
+Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
31 May 2003.
+McCain, John
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 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.
Newspaper ownership is becoming more concentrated as well. Today,
@@ -7971,12 +7911,13 @@ protected— by the market.
Concentration in size alone is one thing. The more invidious
change is in the nature of that concentration. As author James Fallows
put it in a recent article about Rupert Murdoch,
+Fallows, James
Murdoch's companies now constitute a production system
unmatched in its integration. They supply content—Fox movies
-. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus
+… Fox TV shows … Fox-controlled sports broadcasts, plus
newspapers and books. They sell the content to the public and to
advertisers—in newspapers, on the broadcast network, on the
cable channels. And they operate the physical distribution system
@@ -7985,8 +7926,9 @@ systems now distribute News Corp. content in Europe and Asia; if
Murdoch becomes DirecTV's largest single owner, that system will serve
the same function in the United States.
-James Fallows, "The Age of Murdoch," Atlantic Monthly (September
+James Fallows, "The Age of Murdoch," Atlantic Monthly (September
2003): 89.
+Fallows, James
@@ -8020,7 +7962,7 @@ integration may matter.
ABCAll in the Family
-In 1969, Norman Lear created a pilot for All in the Family. He took
+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.
@@ -8044,61 +7986,57 @@ for the Lear story, not included in the prepared remarks, see
-The network did not control those copyrights because the law
- forbade
-the networks from controlling the content they syndicated. The
-law required a separation between the networks and the content
- producers;
-that separation would guarantee Lear freedom. And as late as
-1992, because of these rules, the vast majority of prime time
- television—75
-percent of it—was "independent" of the networks.
-
-
-In 1994, the FCC abandoned the rules that required this
- independence.
-After that change, the networks quickly changed the balance.
-In 1985, there were twenty-five independent television production
- studios;
-in 2002, only five independent television studios remained. "In
-1992, only 15 percent of new series were produced for a network by a
-company it controlled. Last year, the percentage of shows produced by
-controlled companies more than quintupled to 77 percent." "In 1992,
-16 new series were produced independently of conglomerate control,
-last year there was one."
+The network did not control those copyrights because the law forbade
+the networks from controlling the content they syndicated. The law
+required a separation between the networks and the content producers;
+that separation would guarantee Lear freedom. And as late as 1992,
+because of these rules, the vast majority of prime time
+television—75 percent of it—was "independent" of the
+networks.
+
+
+In 1994, the FCC abandoned the rules that required this independence.
+After that change, the networks quickly changed the balance. In 1985,
+there were twenty-five independent television production studios; in
+2002, only five independent television studios remained. "In 1992,
+only 15 percent of new series were produced for a network by a company
+it controlled. Last year, the percentage of shows produced by
+controlled companies more than quintupled to 77 percent." "In 1992, 16
+new series were produced independently of conglomerate control, last
+year there was one."
-NewsCorp./DirecTV Merger and Media Consolidation: Hearings on
-Media Ownership Before the Senate Commerce Committee, 108th
-Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of
- Consumers
-Union and the Consumer Federation of America), available at
-link #30. Kimmelman quotes Victoria Riskin, president of Writers Guild of
-America, West, in her Remarks at FCC En Banc Hearing, Richmond,
-Virginia, 27 February 2003.
-
-In 2002, 75 percent of prime time television
-was owned by the networks that ran it. "In the ten-year period between
-1992 and 2002, the number of prime time television hours per week
-produced by network studios increased over 200%, whereas the
- number
-of prime time television hours per week produced by independent
-studios decreased 63%."
+NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
+Ownership Before the Senate Commerce Committee, 108th Cong., 1st
+sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
+and the Consumer Federation of America), available at
+link #30. Kimmelman
+quotes Victoria Riskin, president of Writers Guild of America, West,
+in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
+2003.
+
+In 2002, 75 percent of prime time television was owned by the networks
+that ran it. "In the ten-year period between 1992 and 2002, the number
+of prime time television hours per week produced by network studios
+increased over 200%, whereas the number of prime time television hours
+per week produced by independent studios decreased
+63%."
Ibid.
All in the Family
-Today, another Norman Lear with another All in the Family would
+Today, another Norman Lear with another All in the Family would
find that he had the choice either to make the show less edgy or to be
fired: The content of any show developed for a network is increasingly
owned by the network.
-While the number of channels has increased dramatically, the
- ownership
-of those channels has narrowed to an ever smaller and smaller
-few. As Barry Diller said to Bill Moyers,
+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, Barry
+Moyers, Bill
@@ -8107,29 +8045,27 @@ their channel and then distribute worldwide everything that goes
through their controlled distribution system, then what you get is
fewer and fewer actual voices participating in the process. [We
-u]sed to have dozens and dozens of thriving independent
- production
-companies producing television programs. Now you have less
-than a handful.
+u]sed to have dozens and dozens of thriving independent production
+companies producing television programs. Now you have less than a
+handful.
-"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
+"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
Moyers, 25 April 2003, edited transcript available at
link #31.
-This narrowing has an effect on what is produced. The product of
-such large and concentrated networks is increasingly homogenous.
- Increasingly
-safe. Increasingly sterile. The product of news shows from
-networks like this is increasingly tailored to the message the network
-wants to convey. This is not the communist party, though from the
- inside,
-it must feel a bit like the communist party. No one can question
-without risk of consequence—not necessarily banishment to Siberia,
-but punishment nonetheless. Independent, critical, different views are
-quashed. This is not the environment for a democracy.
+This narrowing has an effect on what is produced. The product of such
+large and concentrated networks is increasingly homogenous.
+Increasingly safe. Increasingly sterile. The product of news shows
+from networks like this is increasingly tailored to the message the
+network wants to convey. This is not the communist party, though from
+the inside, it must feel a bit like the communist party. No one can
+question without risk of consequence—not necessarily banishment
+to Siberia, but punishment nonetheless. Independent, critical,
+different views are quashed. This is not the environment for a
+democracy.
Clark, Kim B.
@@ -8140,21 +8076,21 @@ new, breakthrough technologies that compete with their core business.
The same analysis could help explain why large, traditional media
companies would find it rational to ignore new cultural trends.
-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).
-
-
- 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.
+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).
+
+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.
+Christensen, Clayton M.
I don't think we know enough about the economics of the media
@@ -8177,41 +8113,36 @@ any position in government by saying I believe this war is a profound
mistake. I am not pro drugs. Indeed, I come from a family once
-wrecked by drugs—though the drugs that wrecked my family were all
-quite legal. I believe this war is a profound mistake because the
- collateral
-damage from it is so great as to make waging the war insane.
-When you add together the burdens on the criminal justice system, the
-desperation of generations of kids whose only real economic
- opportunities
-are as drug warriors, the queering of constitutional protections
- because
-of the constant surveillance this war requires, and, most profoundly,
-the total destruction of the legal systems of many South American
- nations
-because of the power of the local drug cartels, I find it impossible
-to believe that the marginal benefit in reduced drug consumption by
-Americans could possibly outweigh these costs.
-
-
-You may not be convinced. That's fine. We live in a democracy, and
-it is through votes that we are to choose policy. But to do that, we
- depend
-fundamentally upon the press to help inform Americans about
+wrecked by drugs—though the drugs that wrecked my family were
+all quite legal. I believe this war is a profound mistake because the
+collateral damage from it is so great as to make waging the war
+insane. When you add together the burdens on the criminal justice
+system, the desperation of generations of kids whose only real
+economic opportunities are as drug warriors, the queering of
+constitutional protections because of the constant surveillance this
+war requires, and, most profoundly, the total destruction of the legal
+systems of many South American nations because of the power of the
+local drug cartels, I find it impossible to believe that the marginal
+benefit in reduced drug consumption by Americans could possibly
+outweigh these costs.
+
+
+You may not be convinced. That's fine. We live in a democracy, and it
+is through votes that we are to choose policy. But to do that, we
+depend fundamentally upon the press to help inform Americans about
these issues.
-Beginning in 1998, the Office of National Drug Control Policy
-launched a media campaign as part of the "war on drugs." The
- campaign
-produced scores of short film clips about issues related to illegal
-drugs. In one series (the Nick and Norm series) two men are in a bar,
-discussing the idea of legalizing drugs as a way to avoid some of the
-collateral damage from the war. One advances an argument in favor of
-drug legalization. The other responds in a powerful and effective way
-against the argument of the first. In the end, the first guy changes his
-mind (hey, it's television). The plug at the end is a damning attack on
-the pro-legalization 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
+scores of short film clips about issues related to illegal drugs. In
+one series (the Nick and Norm series) two men are in a bar, discussing
+the idea of legalizing drugs as a way to avoid some of the collateral
+damage from the war. One advances an argument in favor of drug
+legalization. The other responds in a powerful and effective way
+against the argument of the first. In the end, the first guy changes
+his mind (hey, it's television). The plug at the end is a damning
+attack on the pro-legalization campaign.
Fair enough. It's a good ad. Not terribly misleading. It delivers its
@@ -8220,98 +8151,94 @@ message well. It's a fair and reasonable message.
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
-demonstrate the extraordinary collateral harm that comes from the
-drug war. Can you do it?
+demonstrate the extraordinary collateral harm that comes from the drug
+war. Can you do it?
Well, obviously, these ads cost lots of money. Assume you raise the
money. Assume a group of concerned citizens donates all the money in
-the world to help you get your message out. Can you be sure your
- message
-will be heard then?
+the world to help you get your message out. Can you be sure your
+message will be heard then?
-No. You cannot. Television stations have a general policy of
- avoiding
+No. You cannot. Television stations have a general policy of avoiding
"controversial" ads. Ads sponsored by the government are deemed
-uncontroversial; ads disagreeing with the government are controversial.
-This selectivity might be thought inconsistent with the First
- Amendment,
-but the Supreme Court has held that stations have the right to
-choose what they run. Thus, the major channels of commercial media
-will refuse one side of a crucial debate the opportunity to present its case.
-And the courts will defend the rights of the stations to be this biased.
+uncontroversial; ads disagreeing with the government are
+controversial. This selectivity might be thought inconsistent with
+the First Amendment, but the Supreme Court has held that stations have
+the right to choose what they run. Thus, the major channels of
+commercial media will refuse one side of a crucial debate the
+opportunity to present its case. And the courts will defend the
+rights of the stations to be this biased.
-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 [their]
- policy."
-The local NBC affiliate, WRC, rejected the ads 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 (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."
-
-
-
-I'd be happy to defend the networks' rights, as well—if we lived in
-a media market that was truly diverse. But concentration in the media
-throws that condition into doubt. If a handful of companies control
- access
-to the media, and that handful of companies gets to decide which
-political positions it will allow to be promoted on its channels, then in
-an obvious and important way, concentration matters. You might like
-the positions the handful of companies selects. But you should not like
-a world in which a mere few get to decide which issues the rest of us
-get to know about.
-
-
-
-
+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
+[their] policy." The local NBC affiliate, WRC, rejected the ads
+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
+(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
+
+
+
+I'd be happy to defend the networks' rights, as well—if we lived
+in a media market that was truly diverse. But concentration in the
+media throws that condition into doubt. If a handful of companies
+control access to the media, and that handful of companies gets to
+decide which political positions it will allow to be promoted on its
+channels, then in an obvious and important way, concentration
+matters. You might like the positions the handful of companies
+selects. But you should not like a world in which a mere few get to
+decide which issues the rest of us get to know about.
+
+
+Together
-There is something innocent and obvious about the claim of the
- copyright
-warriors that the government should "protect my property." In
-the abstract, it is obviously true and, ordinarily, totally harmless. No
-sane sort who is not an anarchist could disagree.
+There is something innocent and obvious about the claim of the
+copyright warriors that the government should "protect my property."
+In the abstract, it is obviously true and, ordinarily, totally
+harmless. No sane sort who is not an anarchist could disagree.
But when we see how dramatically this "property" has changed—
-when we recognize how it might now interact with both technology
-and markets to mean that the effective constraint on the liberty to
- cultivate
-our culture is dramatically different—the claim begins to seem
+when we recognize how it might now interact with both technology and
+markets to mean that the effective constraint on the liberty to
+cultivate our culture is dramatically different—the claim begins
+to seem
-less innocent and obvious. Given (1) the power of technology to
- supplement
-the law's control, and (2) the power of concentrated markets
-to weaken the opportunity for dissent, if strictly enforcing the
- massively
-expanded "property" rights granted by copyright fundamentally
-changes the freedom within this culture to cultivate and build upon our
-past, then we have to ask whether this property should be redefined.
+less innocent and obvious. Given (1) the power of technology to
+supplement the law's control, and (2) the power of concentrated
+markets to weaken the opportunity for dissent, if strictly enforcing
+the massively expanded "property" rights granted by copyright
+fundamentally changes the freedom within this culture to cultivate and
+build upon our past, then we have to ask whether this property should
+be redefined.
Not starkly. Or absolutely. My point is not that we should abolish
@@ -8320,65 +8247,57 @@ mistake, disastrous for the most important creative enterprises within
our culture today.
-But there is a space between zero and one, Internet culture
- notwithstanding.
-And these massive shifts in the effective power of copyright
-regulation, tied to increased concentration of the content industry and
-resting in the hands of technology that will increasingly enable control
-over the use of culture, should drive us to consider whether another
- adjustment
-is called for. Not an adjustment that increases copyright's
-power. Not an adjustment that increases its term. Rather, an
- adjustment
-to restore the balance that has traditionally defined copyright's
-regulation—a weakening of that regulation, to strengthen creativity.
+But there is a space between zero and one, Internet culture
+notwithstanding. And these massive shifts in the effective power of
+copyright regulation, tied to increased concentration of the content
+industry and resting in the hands of technology that will increasingly
+enable control over the use of culture, should drive us to consider
+whether another adjustment is called for. Not an adjustment that
+increases copyright's power. Not an adjustment that increases its
+term. Rather, an adjustment to restore the balance that has
+traditionally defined copyright's regulation—a weakening of that
+regulation, to strengthen creativity.
-Copyright law has not been a rock of Gibraltar. It's not a set of
- constant
-commitments that, for some mysterious reason, teenagers and
+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 flout. Instead, copyright power has grown dramatically in a
short period of 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.
+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.
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.
+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.
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
+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.
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
copyright law in the digital age. See Vaidhyanathan, 159–60.
+Vaidhyanathan, Siva
@@ -8386,16 +8305,14 @@ This has been a long chapter. Its point can now be briefly stated.
At the start of this book, I distinguished between commercial and
-noncommercial culture. In the course of this chapter, I have
- distinguished
-between copying a work and transforming it. We can now
+noncommercial culture. In the course of this chapter, I have
+distinguished between copying a work and transforming it. We can now
combine these two distinctions and draw a clear map of the changes
-that copyright law has undergone.
-In 1790, the law looked like this:
+that copyright law has undergone. In 1790, the law looked like this:
-
+Law status in 1790
@@ -8433,7 +8350,7 @@ By the end of the nineteenth century, the law had changed to this:
-
+Law status at the end of ninetheenth centory
@@ -8458,25 +8375,21 @@ By the end of the nineteenth century, the law had changed to this:
-Derivative works were now regulated by copyright law—if
- published,
-which again, given the economics of publishing at the time,
+Derivative works were now regulated by copyright law—if
+published, which again, given the economics of publishing at the time,
means if offered commercially. But noncommercial publishing and
transformation were still essentially free.
-In 1909 the law changed to regulate copies, not publishing, and
- after
+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 copying became more prevalent, the reach of the law
- expanded.
-Thus by 1975, as photocopying machines became more
- common,
+technology of copying became more prevalent, the reach of the law
+expanded. Thus by 1975, as photocopying machines became more common,
we could say the law began to look like this:
-
+Law status in 1975
@@ -8501,16 +8414,15 @@ we could say the law began to look like this:
-The law was interpreted to reach noncommercial copying through,
-say, copy machines, but still much of copying outside of the
- commercial
-market remained free. But the consequence of the emergence of
-digital technologies, especially in the context of a digital network,
-means that the law now looks like this:
+The law was interpreted to reach noncommercial copying through, say,
+copy machines, but still much of copying outside of the commercial
+market remained free. But the consequence of the emergence of digital
+technologies, especially in the context of a digital network, means
+that the law now looks like this:
-
+Law status now
@@ -8535,12 +8447,12 @@ means that the law now looks like this:
-Every realm is governed by copyright law, whereas before most
- creativity
-was not. The law now regulates the full range of creativity—
+Every realm is governed by copyright law, whereas before most
+creativity was not. The law now regulates the full range of
+creativity—
-commercial or not, transformative or not—with the same rules designed
-to regulate commercial publishers.
+commercial or not, transformative or not—with the same rules
+designed to regulate commercial publishers.
Obviously, copyright law is not the enemy. The enemy is regulation
@@ -8551,318 +8463,310 @@ these domains actually does any good.
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 regulates just now) noncommercial copying and,
- especially,
-noncommercial transformation. And increasingly, for the
- reasons
-sketched especially in chapters 7 and 8, one might well wonder
-whether it does more harm than good for commercial transformation.
-More commercial transformative work would be created if derivative
-rights were more sharply restricted.
+regulating (as it regulates just now) noncommercial copying and,
+especially, noncommercial transformation. And increasingly, for the
+reasons sketched especially in chapters
+ and
+, one
+might well wonder whether it does more harm than good for commercial
+transformation. More commercial transformative work would be created
+if derivative rights were more sharply restricted.
The issue is therefore not simply whether copyright is property. Of
course copyright is a kind of "property," and of course, as with any
-property, the state ought to protect it. But first impressions
- notwithstanding,
-historically, this property right (as with all property rights
+property, the state ought to protect it. But first impressions
+notwithstanding, historically, this property right (as with all
+property rights
-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).
+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).
)
has been crafted to balance the important need to give authors and
artists incentives with the equally important need to assure access to
-creative work. This balance has always been struck in light of new
- technologies.
-And for almost half of our tradition, the "copyright" 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.
+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.
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
+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
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.
-
-
-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
-Internet present to twentieth-century business models for producing
-and distributing culture, the law and technology are being transformed
-in a way that will undermine our tradition of free culture. The property
-right that is copyright is no longer the balanced right that it was, or
-was intended to be. The property right that is copyright has become
-unbalanced, tilted toward an extreme. The opportunity to create and
-transform becomes weakened in a world in which creation requires
-permission and creativity must check with a lawyer.
+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.
+
+
+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 Internet present to twentieth-century business
+models for producing and distributing culture, the law and technology
+are being transformed in a way that will undermine our tradition of
+free culture. The property right that is copyright is no longer the
+balanced right that it was, or was intended to be. The property right
+that is copyright has become unbalanced, tilted toward an extreme. The
+opportunity to create and transform becomes weakened in a world in
+which creation requires permission and creativity must check with a
+lawyer.
-
-
+
-
+
+PUZZLES
-
-
-
+CHAPTER ELEVEN: Chimera
-
+
+ chimeras
+
+
+ Wells, H. G.
+
+
+ "Country of the Blind, The" (Wells)
+
+
In a well-known short story by H. G. Wells, a mountain climber
named Nunez trips (literally, down an ice slope) into an unknown and
isolated valley in the Peruvian Andes.
- 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
+
+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).
-The valley is extraordinarily
-beautiful, with "sweet water, pasture, an even climate, slopes of rich
-brown soil with tangles of a shrub that bore an excellent fruit." But the
-villagers are all blind. Nunez takes this as an opportunity. "In the
-Country of the Blind," he tells himself, "the One-Eyed Man is King."
-So he resolves to live with the villagers to explore life as a king.
+The valley is extraordinarily beautiful, with "sweet water, pasture,
+an even climate, slopes of rich brown soil with tangles of a shrub
+that bore an excellent fruit." But the villagers are all blind. Nunez
+takes this as an opportunity. "In the Country of the Blind," he tells
+himself, "the One-Eyed Man is King." So he resolves to live with the
+villagers to explore life as a king.
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
-"blind." They don't have the word blind. They think he's just thick.
- 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!'"
+"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!'"
-The villagers don't leave him alone. Nor do they see (so to speak)
-the virtue of his special power. Not even the ultimate target of his
- affection,
-a young woman who to him seems "the most beautiful thing in
-the whole of creation," understands the beauty of sight. Nunez's
- description
-of what he sees "seemed to her the most poetical of fancies,
-and she listened to his description of the stars and the mountains and
-her own sweet white-lit beauty as though it was a guilty indulgence."
-"She did not believe," Wells tells us, and "she could only half
- understand,
-but she was mysteriously delighted."
-
-
-When Nunez announces his desire to marry his "mysteriously
- delighted"
+The villagers don't leave him alone. Nor do they see (so to speak) the
+virtue of his special power. Not even the ultimate target of his
+affection, a young woman who to him seems "the most beautiful thing in
+the whole of creation," understands the beauty of sight. Nunez's
+description of what he sees "seemed to her the most poetical of
+fancies, and she listened to his description of the stars and the
+mountains and her own sweet white-lit beauty as though it was a guilty
+indulgence." "She did not believe," Wells tells us, and "she could
+only half understand, but she was mysteriously delighted."
+
+
+When Nunez announces his desire to marry his "mysteriously delighted"
love, the father and the village object. "You see, my dear," her
-father instructs, "he's an idiot. He has delusions. He can't do anything
-right." They take Nunez to the village doctor.
+father instructs, "he's an idiot. He has delusions. He can't do
+anything right." They take Nunez to the village doctor.
After a careful examination, the doctor gives his opinion. "His brain
is affected," he reports.
-"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."
+"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."
The doctor continues: "I think I may say with reasonable certainty
-that in order to cure him completely, all that we need to do is a simple
-and easy surgical operation—namely, to remove these irritant bodies
-[the eyes]."
+that in order to cure him completely, all that we need to do is a
+simple and easy surgical operation—namely, to remove these
+irritant bodies [the eyes]."
-"Thank Heaven for science!" says the father to the doctor. They
- inform
+"Thank Heaven for science!" says the father to the doctor. They inform
Nunez of this condition necessary for him to be allowed his bride.
-(You'll have to read the original to learn what happens in the end. I
- believe
-in free culture, but never in giving away the end of a story.)
+(You'll have to read the original to learn what happens in the end. I
+believe in free culture, but never in giving away the end of a story.)
It sometimes happens that the eggs of twins fuse in the mother's
womb. That fusion produces a "chimera." A chimera is a single creature
with two sets of DNA. The DNA in the blood, for example, might be
different from the DNA of the skin. This possibility is an underused
-plot for murder mysteries. "But the DNA shows with 100 percent
- certainty
-that she was not the person whose blood was at the scene. . . ."
+plot for murder mysteries. "But the DNA shows with 100 percent
+certainty that she was not the person whose blood was at the
+scene. …"
+
+
-Before I had read about chimeras, I would have said they were
- impossible.
-A single person can't have two sets of DNA. The very idea of
-DNA is that it is the code of an individual. Yet in fact, not only can two
-individuals have the same set of DNA (identical twins), but one person
-can have two different sets of DNA (a chimera). Our understanding of
-a "person" should reflect this reality.
+Before I had read about chimeras, I would have said they were
+impossible. A single person can't have two sets of DNA. The very idea
+of DNA is that it is the code of an individual. Yet in fact, not only
+can two individuals have the same set of DNA (identical twins), but
+one person can have two different sets of DNA (a chimera). Our
+understanding of a "person" should reflect this reality.
-The more I work to understand the current struggle over copyright
-and culture, which I've sometimes called unfairly, and sometimes not
+The more I work to understand the current struggle over copyright and
+culture, which I've sometimes called unfairly, and sometimes not
unfairly enough, "the copyright wars," the more I think we're dealing
with a chimera. For example, in the battle over the question "What is
-p2p file sharing?" both sides have it right, and both sides have it wrong.
-One side says, "File sharing is just like two kids taping each others'
-records—the sort of thing we've been doing for the last thirty years
-without any question at all." That's true, at least in part. When I tell my
-best friend to try out a new CD that I've bought, but rather than just
-send the CD, I point him to my p2p server, that is, in all relevant
- respects,
-just like what every executive in every recording company no
-doubt did as a kid: sharing music.
+p2p file sharing?" both sides have it right, and both sides have it
+wrong. One side says, "File sharing is just like two kids taping each
+others' records—the sort of thing we've been doing for the last
+thirty years without any question at all." That's true, at least in
+part. When I tell my best friend to try out a new CD that I've bought,
+but rather than just send the CD, I point him to my p2p server, that
+is, in all relevant respects, just like what every executive in every
+recording company no doubt did as a kid: sharing music.
But the description is also false in part. For when my p2p server is
-on a p2p network through which anyone can get access to my music,
-then sure, my friends can get access, but it stretches the meaning of
+on a p2p network through which anyone can get access to my music, then
+sure, my friends can get access, but it stretches the meaning of
"friends" beyond recognition to say "my ten thousand best friends" can
get access. Whether or not sharing my music with my best friend is
-what "we have always been allowed to do," we have not always been
- allowed
-to share music with "our ten thousand best friends."
+what "we have always been allowed to do," we have not always been
+allowed to share music with "our ten thousand best friends."
Likewise, when the other side says, "File sharing is just like walking
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.
+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.
+Lovett, Lyle
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 Tower Records, I get a bit of plastic and a cover, and
- something
-to show on my shelves. (And, while we're at it, we could also note
-that when I take a CD from Tower Records, the maximum fine that
-might be imposed on me, under California law, at least, is $1,000.
- According
-to the RIAA, by contrast, if I download a ten-song CD, I'm
- liable
-for $1,500,000 in damages.)
-
-
-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 a chimera. And rather than simply denying what the other side
- asserts,
-we need to begin to think about how we should respond to this
-chimera. What rules should govern it?
+from Tower Records, Tower has one less CD to sell. And when I take a
+CD from Tower Records, I get a bit of plastic and a cover, and
+something to show on my shelves. (And, while we're at it, we could
+also note that when I take a CD from Tower Records, the maximum fine
+that might be imposed on me, under California law, at least, is
+$1,000. According to the RIAA, by contrast, if I download a ten-song
+CD, I'm liable for $1,500,000 in damages.)
+
+
+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 a chimera. And rather than simply denying what the
+other side asserts, we need to begin to think about how we should
+respond to this chimera. What rules should govern it?
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 could prosecute families for millions of dollars in damages
-just because file sharing occurred on a family computer. And we can get
-universities to monitor all computer traffic to make sure that no
- computer
-is used to commit this crime. These responses might be extreme,
-but each of them has either been proposed or actually implemented.
- For an excellent summary, see the report prepared by GartnerG2 and the
-Berkman Center for Internet and Society at Harvard Law School,
- "Copyright
-and Digital Media in a Post-Napster World," 27 June 2003, available
-at
-link #33. Reps. John 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
-link #34. 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
-link #35. 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
+could, with the RIAA, decide that every act of file sharing should be
+a felony. We could prosecute families for millions of dollars in
+damages just because file sharing occurred on a family computer. And
+we can get universities to monitor all computer traffic to make sure
+that no computer is used to commit this crime. These responses might
+be extreme, but each of them has either been proposed or actually
+implemented.
+
+For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+"Copyright and Digital Media in a Post-Napster World," 27 June 2003,
+available at
+link
+#33. Reps. John 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
+link #34. 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
+link #35. 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
link #36.
+Conyers, John, Jr.
+Berman, Howard L.
+
-Alternatively, we could respond to file sharing the way many kids
-act as though we've responded. We could totally legalize it. Let there
-be no copyright liability, either civil or criminal, for making
- copyrighted
-content available on the Net. Make file sharing like gossip:
- regulated,
-if at all, by social norms but not by law.
+Alternatively, we could respond to file sharing the way many kids act
+as though we've responded. We could totally legalize it. Let there be
+no copyright liability, either civil or criminal, for making
+copyrighted content available on the Net. Make file sharing like
+gossip: regulated, if at all, by social norms but not by law.
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.
+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.
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 occurring. The law and technology are being shifted to give
- content
-holders a kind of control over our culture that they have never had
-before. And in this extremism, many an opportunity for new
- innovation
-and new creativity will be lost.
+middle of the chaos that the Internet has created, an extraordinary
+land grab is occurring. The law and technology are being shifted to
+give content holders a kind of control over our culture that they have
+never had before. And in this extremism, many an opportunity for new
+innovation and new creativity will be lost.
I'm not talking about the opportunities for kids to "steal" music. My
focus instead is the commercial and cultural innovation that this war
will also kill. We have never seen the power to innovate spread so
-broadly among our citizens, and we have just begun to see the
- innovation
-that this power will unleash. Yet the Internet has already seen the
-passing of one cycle of innovation around technologies to distribute
-content. The law is responsible for this passing. As the vice president
-for global public policy at one of these new innovators, eMusic.com,
-put it when criticizing the DMCA's added protection for copyrighted
-material,
+broadly among our citizens, and we have just begun to see the
+innovation that this power will unleash. Yet the Internet has already
+seen the passing of one cycle of innovation around technologies to
+distribute content. The law is responsible for this passing. As the
+vice president for global public policy at one of these new
+innovators, eMusic.com, put it when criticizing the DMCA's added
+protection for copyrighted material,
@@ -8887,17 +8791,14 @@ which they will be able to access digital media and the equipment
that they will require to do so. Poor choices made this early in the
game will retard the growth of this market, hurting everyone's
interests.
- WIPO and the DMCA One Year Later: Assessing Consumer Access to
-Digital Entertainment on the Internet and Other Media: Hearing Before
-the Subcommittee on Telecommunications, Trade, and Consumer
- Protection,
-House Committee on Commerce, 106th Cong. 29 (1999) (statement
-of Peter Harter, vice president, Global Public Policy and Standards,
- EMusic.com),
-available in LEXIS, Federal Document Clearing House
- Congressional
-Testimony File.
-
+
+WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
+Entertainment on the Internet and Other Media: Hearing Before the
+Subcommittee on Telecommunications, Trade, and Consumer Protection,
+House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
+Harter, vice president, Global Public Policy and Standards,
+EMusic.com), available in LEXIS, Federal Document Clearing House
+Congressional Testimony File.
@@ -8905,16 +8806,17 @@ Testimony File.
In April 2001, eMusic.com was purchased by Vivendi Universal,
one of "the major labels." Its position on these matters has now
changed.
+Vivendi Universal
Reversing our tradition of tolerance now will not merely quash
-piracy. It will sacrifice values that are important to this culture, and will
-kill opportunities that could be extraordinarily valuable.
+piracy. It will sacrifice values that are important to this culture,
+and will kill opportunities that could be extraordinarily valuable.
-
-
+
+CHAPTER TWELVE: Harms
@@ -8938,10 +8840,12 @@ first time, the law should defend the old against the new, just when the
power of the property called "intellectual property" is at its greatest in
our history.
+Causby, Thomas Lee
+Causby, Tinie
-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 in the name of property still resonate; the uncritical
+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 in the name of property still resonate; the uncritical
rejection of "piracy" still has play.
@@ -8952,7 +8856,7 @@ confident the third is unintended. I'm less sure about the first two. The
first two protect modern RCAs, but there is no Howard Armstrong in
the wings to fight today's monopolists of culture.
-
+Constraining Creators
In the next ten years we will see an explosion of digital
@@ -9014,16 +8918,18 @@ $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
+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
link #37.
+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
no more than $250,000 in damages for pain and
-suffering.
+suffering.
+
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 overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
@@ -9033,35 +8939,35 @@ 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
+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?
+Worldcom
The consequence of this legal uncertainty, tied to these extremely
-high penalties, is that an extraordinary amount of creativity will either
-never be exercised, or never be exercised in the open. We drive this
- creative
-process underground by branding the modern-day Walt Disneys
-"pirates." We make it impossible for businesses to rely upon a public
-domain, because the boundaries of the public domain are designed to
+high penalties, is that an extraordinary amount of creativity will
+either never be exercised, or never be exercised in the open. We drive
+this creative process underground by branding the modern-day Walt
+Disneys "pirates." We make it impossible for businesses to rely upon a
+public domain, because the boundaries of the public domain are
+designed to
-be unclear. It never pays to do anything except pay for the right to
- create,
-and hence only those who can pay are allowed to create. As was the
-case in the Soviet Union, though for very different reasons, we will
- begin
-to see a world of underground art—not because the message is
- necessarily
-political, or because the subject is controversial, but because the
-very act of creating the art is legally fraught. Already, exhibits of
- "illegal
-art" tour the United States.
- See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003,
- available
-at
+be unclear. It never pays to do anything except pay for the right
+to create, and hence only those who can pay are allowed to create. As
+was the case in the Soviet Union, though for very different reasons,
+we will begin to see a world of underground art—not because the
+message is necessarily political, or because the subject is
+controversial, but because the very act of creating the art is legally
+fraught. Already, exhibits of "illegal art" tour the United
+States.
+
+
+See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July
+2003, available at
link #40. For an overview of the exhibition, see
link #41.
@@ -9071,7 +8977,8 @@ critical or reflective.
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
+changing law. I described that change in detail in chapter
+. But an
even bigger part has to do with the increasing ease with which
infractions can be tracked. As users of file-sharing systems
discovered in 2002, it is a trivial matter for copyright owners to get
@@ -9093,10 +9000,12 @@ right to cultivate and transform them is not similarly free.
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, I have been lectured again and again by lawyers
-who insist Else's use was fair use, and hence I am wrong to say that the
-law regulates such a use.
+described in chapter
+, in
+response to the story about documentary filmmaker Jon Else, I have
+been lectured again and again by lawyers who insist Else's use was
+fair use, and hence I am wrong to say that the law regulates such a
+use.
@@ -9140,7 +9049,7 @@ As Jed Horovitz, the businessman behind Video Pipeline, said to me,
We're losing [creative] opportunities right and left. Creative people
are being forced not to express themselves. Thoughts are not being
expressed. And while a lot of stuff may [still] be created, it still
-won't get distributed. Even if the stuff gets made . . . you're not
+won't get distributed. Even if the stuff gets made … you're not
going to get it distributed in the mainstream media unless
you've got a little note from a lawyer saying, "This has been
@@ -9148,8 +9057,8 @@ cleared." You're not even going to get it on PBS without that kind of
permission. That's the point at which they control it.
-
-
+
+Constraining Innovators
The story of the last section was a crunchy-lefty
@@ -9181,21 +9090,23 @@ perspectives are constantly attuned to the ways in which regulation
simply enables the powerful industries of today to protect themselves
against the competitors of tomorrow.
+Barry, Hank
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 liability tied to the murky boundaries of copyright
-law is that innovators who want to innovate in this space can safely
-innovate only if they have the sign-off from last generation's
-dominant industries. That lesson has been taught through a series of
-cases that were designed and executed to teach venture capitalists a
+strategy that I described in chapter . The consequence of this massive
+threat of liability tied to the murky boundaries of copyright law is
+that innovators who want to innovate in this space can safely innovate
+only if they have the sign-off from last generation's dominant
+industries. That lesson has been taught through a series of cases
+that were designed and executed to teach venture capitalists a
lesson. That lesson—what former Napster CEO Hank Barry calls a
"nuclear pall" that has fallen over the Valley—has been learned.
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
+I told in The Future of Ideas and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
@@ -9212,6 +9123,7 @@ 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.
+Lovett, Lyle
This idea required a simple way to gather data about user preferences.
@@ -9246,6 +9158,9 @@ had a copy of the CD they wanted to access. So while this was 50,000
copies, it was 50,000 copies directed at giving customers something
they had already bought.
+
+ Vivendi Universal
+
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
@@ -9280,61 +9195,63 @@ industry directs its guns against them. It is also you. So those of
you who believe the law should be less restrictive should realize that
such a view of the law will cost you and your firm dearly.
+
+Hummer, John
+Barry, Hank
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
venture capital firm (VC) that had funded Napster at a certain stage of
its development, its cofounder ( John Hummer), and general partner
(Hank Barry).
- 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
-link #42.
-See also Jon Healey, "Online Music Services Besieged," Los Angeles
-Times, 28 May 2001.
-
- The claim here, as well, was that the VC should have
-recognized the right of the content industry to control how the
- industry
-should develop. They should be held personally liable for funding a
-company whose business turned out to be beyond the law. Here again,
-the aim of the lawsuit is transparent: Any VC now recognizes that if
-you fund a company whose business is not approved of by the dinosaurs,
-you are at risk 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:
+
+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 link #42.
+See also Jon Healey, "Online Music Services Besieged," Los Angeles
+Times, 28 May 2001.
+
+The claim here, as well, was that the VC should have recognized the
+right of the content industry to control how the industry should
+develop. They should be held personally liable for funding a company
+whose business turned out to be beyond the law. Here again, the aim of
+the lawsuit is transparent: Any VC now recognizes that if you fund a
+company whose business is not approved of by the dinosaurs, you are at
+risk 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:
+BMW
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 had rigged a new vehicle to play MP3s via
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
- forward
-for release stateside. Even today, no new cars are sold in the
-United States with bona fide MP3 players. . . .
- Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+forward for release stateside. Even today, no new cars are sold in the
+United States with bona fide MP3 players. …
+
+
+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.
+link #43. I am grateful
+to Dr. Mohammad Al-Ubaydli for this example.
+Needleman, Rafe
This is the world of the mafia—filled with "your money or your
-life" offers, governed in the end not by courts but by the threats that the
-law empowers copyright holders to exercise. It is a system that will
- obviously
-and necessarily stifle new innovation. It is hard enough to start
-a company. It is impossibly hard if that company is constantly
- threatened
-by litigation.
+life" offers, governed in the end not by courts but by the threats
+that the law empowers copyright holders to exercise. It is a system
+that will obviously and necessarily stifle new innovation. It is hard
+enough to start a company. It is impossibly hard if that company is
+constantly threatened by litigation.
@@ -9355,57 +9272,47 @@ have much less vibrant innovation and much less creativity.
The point is directly parallel to the crunchy-lefty point about fair
-use. Whatever the "real" law is, realism about the effect of law in both
-contexts is the same. This wildly punitive system of regulation will
- systematically
-stifle creativity and innovation. It will protect some
- industries
-and some creators, but it will harm industry and 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.
+use. Whatever the "real" law is, realism about the effect of law in
+both contexts is the same. This wildly punitive system of regulation
+will systematically stifle creativity and innovation. It will protect
+some industries and some creators, but it will harm industry and
+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.
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
-innovation. A permission culture means a lawyer's culture—a
- culture
-in which the ability to create requires a call to your lawyer. Again,
-I am not antilawyer, at least when they're kept in their proper place. I
-am certainly not antilaw. But our profession has lost the sense of its
-limits. And leaders in our profession have lost an appreciation of the
-high costs that our profession imposes upon others. The inefficiency of
-the law is an embarrassment to our tradition. And while I believe our
-profession should therefore do everything it can to make the law more
-efficient, it should at least do everything it can to limit the reach of the
+the first important way in which the changes I have described will
+burden innovation. A permission culture means a lawyer's
+culture—a culture in which the ability to create requires a call
+to your lawyer. Again, I am not antilawyer, at least when they're kept
+in their proper place. I am certainly not antilaw. But our profession
+has lost the sense of its limits. And leaders in our profession have
+lost an appreciation of the high costs that our profession imposes
+upon others. The inefficiency of the law is an embarrassment to our
+tradition. And while I believe our profession should therefore do
+everything it can to make the law more efficient, it should at least
+do everything it can to limit the reach of the
law where the law is not doing any good. The transaction costs buried
-within a permission culture are enough to bury a wide range of
- creativity.
-Someone needs to do a lot of justifying to justify that result.
-The uncertainty of the law is one burden on innovation. There is
-a second burden that operates more directly. This is the effort by many
-in the content industry to use the law to directly regulate the
- technology
-of the Internet so that it better protects their content.
-
-
-The motivation for this response is obvious. The Internet enables
-the efficient spread of content. That efficiency is a feature of the
- Internet's
-design. But from the perspective of the content industry, this
- feature
-is a "bug." The efficient spread of content means that content
-distributors have a harder time controlling the distribution of content.
-One obvious response to this efficiency is thus to make the Internet
-less efficient. If the Internet enables "piracy," then, this response says,
-we should break the kneecaps of the Internet.
+within a permission culture are enough to bury a wide range of
+creativity. Someone needs to do a lot of justifying to justify that
+result. The uncertainty of the law is one burden on innovation. There
+is a second burden that operates more directly. This is the effort by
+many in the content industry to use the law to directly regulate the
+technology of the Internet so that it better protects their content.
+
+
+The motivation for this response is obvious. The Internet enables the
+efficient spread of content. That efficiency is a feature of the
+Internet's design. But from the perspective of the content industry,
+this feature is a "bug." The efficient spread of content means that
+content distributors have a harder time controlling the distribution
+of content. One obvious response to this efficiency is thus to make
+the Internet less efficient. If the Internet enables "piracy," then,
+this response says, we should break the kneecaps of the Internet.
The examples of this form of legislation are many. At the urging of
@@ -9467,11 +9374,15 @@ When done right, it benefits creators and harms leeches. When done
wrong, it is regulation the powerful use to defeat competitors.
-As I described in chapter 10, despite this feature of copyright as
-regulation, and subject to important qualifications outlined by Jessica
-Litman in her book Digital Copyright,
- Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books,
-2001).
+As I described in chapter , despite this feature of copyright as
+regulation, and subject to important qualifications outlined by
+Jessica Litman in her book Digital
+Copyright,
+
+Jessica Litman, Digital Copyright (Amherst,
+N.Y.: Prometheus Books, 2001).
+Litman, Jessica
overall this history of copyright
is not bad. As chapter 10 details, when new technologies have come
@@ -9488,140 +9399,131 @@ that will have the effect of smothering the new to benefit the old.
The response by the courts has been fairly universal.
- 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.
-
- It has been
-mirrored in the responses threatened and actually implemented by
-Congress. I won't catalog all of those responses here.
- For example, in July 2002, Representative Howard Berman introduced the
+
+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.
+
+It has been mirrored in the responses threatened and actually
+implemented by Congress. I won't catalog all of those responses
+here.
+
+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
-copyright holders use technology to stop copyright infringement. In
- August
-2002, Representative Billy Tauzin introduced a bill to mandate that
-technologies capable of rebroadcasting digital copies of films broadcast on
-TV (i.e., computers) respect a "broadcast flag" that would disable copying
-of that content. And in March of the same year, Senator Fritz Hollings
-introduced the Consumer Broadband and Digital Television Promotion
-Act, 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
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a "broadcast flag" that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, 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
link #44.
+Berman, Howard L.
- But there is one
-example that captures the flavor of them all. This is the story of the
- demise
-of Internet radio.
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
-As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless he
-or she is also the composer. So, for example if Marilyn Monroe had
-recorded a version of "Happy Birthday"—to memorialize her famous
+As I described in chapter , when a radio station plays a song, the recording
+artist doesn't get paid for that "radio performance" unless he or she
+is also the composer. So, for example if Marilyn Monroe had recorded a
+version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
-then whenever that recording was played on the radio, the current
- copyright
-owners of "Happy Birthday" would get some money, whereas
+then whenever that recording was played on the radio, the current
+copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
+Kennedy, John F.
The reasoning behind this balance struck by Congress makes some
sense. The justification was that radio was a kind of advertising. The
-recording artist thus benefited because by playing her music, the radio
-station was making it more likely that her records would be purchased.
-Thus, the recording artist got something, even if only indirectly.
- Probably
-this reasoning had less to do with the result than with the power
-of radio stations: Their lobbyists were quite good at stopping any
- efforts
-to get Congress to require compensation to the recording artists.
-
-
-Enter Internet radio. Like regular radio, Internet radio is a
- technology
-to stream content from a broadcaster to a listener. The broadcast
-travels across the Internet, not across the ether of radio spectrum.
-Thus, I can "tune in" to an Internet radio station in Berlin while sitting
-in San Francisco, even though there's no way for me to tune in to a
- regular
-radio station much beyond the San Francisco metropolitan area.
+recording artist thus benefited because by playing her music, the
+radio station was making it more likely that her records would be
+purchased. Thus, the recording artist got something, even if only
+indirectly. Probably this reasoning had less to do with the result
+than with the power of radio stations: Their lobbyists were quite good
+at stopping any efforts to get Congress to require compensation to the
+recording artists.
+
+
+Enter Internet radio. Like regular radio, Internet radio is a
+technology to stream content from a broadcaster to a listener. The
+broadcast travels across the Internet, not across the ether of radio
+spectrum. Thus, I can "tune in" to an Internet radio station in
+Berlin while sitting in San Francisco, even though there's no way for
+me to tune in to a regular radio station much beyond the San Francisco
+metropolitan area.
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 to using her computer, whereas under the existing architecture
-for broadcast radio, there is an obvious limit to the number of
- broadcasters
-and clear broadcast frequencies. Internet radio could therefore
-be more competitive than regular radio; it could provide a wider range
-of selections. And because the potential audience for Internet radio is
-the whole world, niche stations could easily develop and market their
-content to a relatively large number of users worldwide. According to
-some estimates, more than eighty million users worldwide have tuned
-in to this new form of radio.
+are potentially an unlimited number of radio stations that a user
+could tune in to using her computer, whereas under the existing
+architecture for broadcast radio, there is an obvious limit to the
+number of broadcasters and clear broadcast frequencies. Internet radio
+could therefore be more competitive than regular radio; it could
+provide a wider range of selections. And because the potential
+audience for Internet radio is the whole world, niche stations could
+easily develop and market their content to a relatively large number
+of users worldwide. According to some estimates, more than eighty
+million users worldwide have tuned in to this new form of radio.
-Internet radio is thus to radio what FM was to AM. It is an
- improvement
-potentially vastly more significant than the FM
- improvement
-over AM, since not only is the technology better, so, too, is the
-competition. Indeed, there is a direct parallel between the fight to
- establish
-FM radio and the fight to protect Internet radio. As one author
-describes Howard Armstrong's struggle to enable FM radio,
+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 not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
An almost unlimited number of FM stations was possible in the
-shortwaves, thus ending the unnatural restrictions imposed on
- radio
-in the crowded longwaves. If FM were freely developed, the
-number of stations would be limited only by economics and
- competition
-rather than by technical restrictions. . . . Armstrong
-likened the situation that had grown up in radio to that following
-the invention of the printing press, when governments and ruling
-interests attempted to control this new instrument of mass
- communications
-by imposing restrictive licenses on it. This tyranny
-was broken only when it became possible for men freely to
- acquire
-printing presses and freely to run them. FM in this sense
-was as great an invention as the printing presses, for it gave radio
-the opportunity to strike off its shackles.
- Lessing, 239.
+shortwaves, thus ending the unnatural restrictions imposed on radio in
+the crowded longwaves. If FM were freely developed, the number of
+stations would be limited only by economics and competition rather
+than by technical restrictions. … Armstrong likened the situation
+that had grown up in radio to that following the invention of the
+printing press, when governments and ruling interests attempted to
+control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it
+became possible for men freely to acquire printing presses and freely
+to run them. FM in this sense was as great an invention as the
+printing presses, for it gave radio the opportunity to strike off its
+shackles.
+
+Lessing, 239.
-This potential for FM radio was never realized—not because
- Armstrong
-was wrong about the technology, but because he underestimated
-the power of "vested interests, habits, customs and legislation"
- Ibid., 229.
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of "vested interests, habits, customs and
+legislation"
+
+Ibid., 229.
-to
- retard
-the growth of this competing technology.
+to retard the growth of this competing technology.
Now the very same claim could be made about Internet radio. For
@@ -9636,50 +9538,52 @@ 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 lobby, the RIAA. Thus when Congress considered the
- phenomenon
-of Internet radio in 1995, the lobbyists had primed Congress
-to adopt a different rule for Internet radio than the rule that applies to
-terrestrial radio. While terrestrial radio does not have to pay our
- hypothetical
-Marilyn Monroe when it plays her hypothetical recording of
-"Happy Birthday" on the air, Internet radio does. Not only is the law not
-neutral toward Internet radio—the law actually burdens Internet radio
-more than it burdens terrestrial radio.
+powerful lobby, the RIAA. Thus when Congress considered the phenomenon
+of Internet radio in 1995, the lobbyists had primed Congress to adopt
+a different rule for Internet radio than the rule that applies to
+terrestrial radio. While terrestrial radio does not have to pay our
+hypothetical Marilyn Monroe when it plays her hypothetical recording
+of "Happy Birthday" on the air, Internet radio
+does. Not only is the law not neutral toward Internet
+radio—the law actually burdens Internet radio more than it
+burdens terrestrial radio.
This financial burden is not slight. As Harvard law professor
William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
-over $1 million a year.
- This example was derived from fees set by the original Copyright
- Arbitration
-Royalty Panel (CARP) proceedings, and is drawn from an example
-offered by Professor William Fisher. Conference Proceedings, iLaw
-(Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain
-submitted testimony in the CARP proceeding that was ultimately rejected.
-See Jonathan Zittrain, Digital Performance Right in Sound Recordings
-and Ephemeral Recordings, Docket No. 2000-9, CARP DTRA 1 and 2,
-available at
+over $1 million a year.
+
+
+This example was derived from fees set by the original Copyright
+Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
+example offered by Professor William Fisher. Conference Proceedings,
+iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
+and Zittrain submitted testimony in the CARP proceeding that was
+ultimately rejected. See Jonathan Zittrain, Digital Performance Right
+in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
+DTRA 1 and 2, available at
link #45.
-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
+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."
+CARP (Copyright Arbitration Royalty Panel)
+Picker, Randal C.
- A regular radio station broadcasting the same
-content would pay no equivalent fee.
+A regular radio station broadcasting the same content would pay no
+equivalent fee.
The burden is not financial only. Under the original rules that were
-proposed, an Internet radio station (but not a terrestrial radio station)
-would have to collect the following data from every listening transaction:
+proposed, an Internet radio station (but not a terrestrial radio
+station) would have to collect the following data from every
+listening transaction:
@@ -9765,17 +9669,17 @@ 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.
+Internet radio has to pay a type of copyright fee
+that terrestrial radio does not.
Why? What justifies this difference? Was there any study of the
economic consequences from Internet radio that would justify these
differences? Was the motive to protect artists against piracy?
+Alben, Alex
-In a rare bit of candor, one RIAA expert admitted what seemed
- obvious
+In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
Policy at Real Networks, told me,
@@ -9786,7 +9690,7 @@ some testimony about what they thought a willing buyer would
pay to a willing seller, and it was much higher. It was ten times
higher than what radio stations pay to perform the same songs for
the same period of time. And so the attorneys representing the
-webcasters asked the RIAA, . . . "How do you come up with a
+webcasters asked the RIAA, … "How do you come up with a
rate that's so much higher? Why is it worth more than radio?
@@ -9794,13 +9698,14 @@ rate that's so much higher? Why is it worth more than radio?
here we have hundreds of thousands of webcasters who
want to pay, and that should establish the market rate, and if you
set the rate so high, you're going to drive the small webcasters out
-of business. . . ."
+of business. …"
-And the RIAA experts said, "Well, we don't really model this
-as an industry with thousands of webcasters, we think it should be
+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.)
+high rate and it's a stable, predictable market." (Emphasis
+added.)
@@ -9812,8 +9717,8 @@ or the left, who should endorse this use of the law. And yet there is
practically no one, on either the right or the left, who is doing anything
effective to prevent it.
-
-
+
+Corrupting Citizens
Overregulation stifles creativity. It smothers innovation. It gives
@@ -9829,7 +9734,7 @@ corrupts citizens and weakens the rule of law.
The war that is being waged today is a war of prohibition. As with
every war of prohibition, it is targeted against the behavior of a very
-large number of citizens. According to The New York Times, 43 million
+large number of citizens. According to The New York Times, 43 million
Americans downloaded music in May 2002.
Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
Internet and American Life Project (24 April 2001), available at
@@ -9865,8 +9770,8 @@ sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
was.
-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," Los
+Angeles Times, 10 September 2003, Business.
As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
@@ -9888,7 +9793,7 @@ level. Americans were drinking just about as much, but now, a vast
number were criminals.
Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
-Prohibition," American Economic Review 81, no. 2 (1991): 242.
+Prohibition," American Economic Review 81, no. 2 (1991): 242.
We have
@@ -9906,12 +9811,13 @@ tax system that a majority of cash businesses regularly
cheat.
See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
-Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
compliance literature).
We pride ourselves on our "free society," but an endless array of
ordinary behavior is regulated within our society. And as a result, a
huge proportion of Americans regularly violate at least some law.
+alcohol prohibition
This state of affairs is not without consequence. It is a particularly
@@ -10085,19 +9991,21 @@ Lohmann describes, this is the "collateral damage" that "arises
whenever you turn a very large percentage of the population into
criminals." This is the collateral damage to civil liberties
generally.
+Electronic Frontier Foundation
"If you can treat someone as a putative lawbreaker," von Lohmann
explains,
+von Lohmann, Fred
then all of a sudden a lot of basic civil liberty protections
-evaporate to one degree or another. . . . If you're a copyright
+evaporate to one degree or another. … If you're a copyright
infringer, how can you hope to have any privacy rights? If you're a
copyright infringer, how can you hope to be secure against seizures of
your computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh, well,
+access? … Our sensibilities change as soon as we think, "Oh, well,
but that person's a criminal, a lawbreaker." Well, what this campaign
against file sharing has done is turn a remarkable percentage of the
American Internet-using population into "lawbreakers."
@@ -10129,14 +10037,14 @@ Jesse Jordan.
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
+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
+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.
+Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
@@ -10167,19 +10075,19 @@ as a "criminal." And under the rules that universities are beginning
to deploy,
See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
-Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+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
+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
+Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," Internet News, 30 January
2003, available at link
#48; 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 September 2000, 3D.
+Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," USA Today, 26 September 2000, 3D.
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
@@ -10197,6 +10105,7 @@ 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,
+von Lohmann, Fred
@@ -10213,7 +10122,7 @@ people use drugs, and I think that's the closest analog, [but] many
have noted that the war against drugs has eroded all of our civil
liberties because it's treated so many Americans as criminals. Well, I
think it's fair to say that file sharing is an order of magnitude
-larger number of Americans than drug use. . . . If forty to sixty
+larger number of Americans than drug use. … If forty to sixty
million Americans have become lawbreakers, then we're really on a
slippery slope to lose a lot of civil liberties for all forty to sixty
million of them.
@@ -10229,11 +10138,12 @@ effort through our democracy to change our law?
-
-
+
-
+
+BALANCES
+
@@ -10285,9 +10195,10 @@ brace of efforts, so far failed, to find a way to refocus this
debate. We must understand these failures if we're to understand what
success will require.
+
-
+CHAPTER THIRTEEN: Eldred
In 1995, a father was frustrated that his daughters didn't seem to
@@ -10318,14 +10229,14 @@ accessible—today.
Eldred's freedom to do this with Hawthorne's work grew from the same
-source as Disney's. Hawthorne's Scarlet Letter had passed into the
+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
+animated cartoons, sometimes successfully (Cinderella), sometimes not
+(The Hunchback of Notre Dame, Treasure Planet). These are all
commercial publications of public domain works.
@@ -10358,16 +10269,17 @@ protect noncommercial pornographers.
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.
+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 , 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.
@@ -10408,9 +10320,9 @@ different. As you know, the Constitution says,
-Congress has the power to promote the Progress of Science . . .
-by securing for limited Times to Authors . . . exclusive Right to
-their . . . Writings. . . .
+Congress has the power to promote the Progress of Science …
+by securing for limited Times to Authors … exclusive Right to
+their … Writings. …
@@ -10418,57 +10330,52 @@ As I've described, this clause is unique within the power-granting
clause of Article I, section 8 of our Constitution. Every other clause
granting power to Congress simply says Congress has the power to do
something—for example, to regulate "commerce among the several
-states" or "declare War." But here, the "something" is something quite
- specific—to
-"promote . . . Progress"—through means that are also specific—
-by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times."
+states" or "declare War." But here, the "something" is something quite
+specific—to "promote … Progress"—through means that
+are also specific— by "securing" "exclusive Rights" (i.e.,
+copyrights) "for limited Times."
-In the past forty years, Congress has gotten into the practice of
- extending
-existing terms of copyright protection. What puzzled me
+In the past forty years, Congress has gotten into the practice of
+extending existing terms of copyright protection. What puzzled me
about this was, if Congress has the power to extend existing terms,
then the Constitution's requirement that terms be "limited" will have
no practical effect. If every time a copyright is about to expire,
- Congress
-has the power to extend its term, then Congress can achieve what
-the Constitution plainly forbids—perpetual terms "on the installment
-plan," as Professor Peter Jaszi so nicely put it.
+Congress has the power to extend its term, then Congress can achieve
+what the Constitution plainly forbids—perpetual terms "on the
+installment plan," as Professor Peter Jaszi so nicely put it.
+Jaszi, Peter
As an academic, my first response was to hit the books. I remember
-sitting late at the office, scouring on-line databases for any serious
- consideration
-of the question. No one had ever challenged Congress's
+sitting late at the office, scouring on-line databases for any serious
+consideration of the question. No one had ever challenged Congress's
practice of extending existing terms. That failure may in part be why
-Congress seemed so untroubled in its habit. That, and the fact that the
-practice had become so lucrative for Congress. Congress knows that
+Congress seemed so untroubled in its habit. That, and the fact that
+the practice had become so lucrative for Congress. Congress knows that
copyright owners will be willing to pay a great deal of money to see
-their copyright terms extended. And so Congress is quite happy to
-keep this gravy train going.
+their copyright terms extended. And so Congress is quite happy to keep
+this gravy train going.
For this is the core of the corruption in our present system of
-government. "Corruption" not in the sense that representatives are bribed.
-Rather, "corruption" in the sense that the system induces the
- beneficiaries
-of Congress's acts to raise and give money to Congress to induce
-it to act. There's only so much time; there's only so much Congress can
-do. Why not limit its actions to those things it must do—and those
-things that pay? Extending copyright terms pays.
+government. "Corruption" not in the sense that representatives are
+bribed. Rather, "corruption" in the sense that the system induces the
+beneficiaries of Congress's acts to raise and give money to Congress
+to induce it to act. There's only so much time; there's only so much
+Congress can do. Why not limit its actions to those things it must
+do—and those things that pay? Extending copyright terms pays.
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 hundred years after it was created. The Estate of
-Robert Frost is a good example. Frost died in 1963. His poetry
- continues
-to be extraordinarily valuable. Thus the Robert Frost estate
- benefits
-greatly from any extension of copyright, since no publisher would
-pay the estate any money if the poems Frost wrote could be published
-by anyone for free.
+Robert Frost is a good example. Frost died in 1963. His poetry
+continues to be extraordinarily valuable. Thus the Robert Frost estate
+benefits greatly from any extension of copyright, since no publisher
+would pay the estate any money if the poems Frost wrote could be
+published by anyone for free.
So imagine the Robert Frost estate is earning $100,000 a year from
@@ -10540,8 +10447,7 @@ are about to expire, there is a massive amount of lobbying to get
the copyright term extended.
-Thus a congressional perpetual motion machine: So long as
- legislation
+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 buy further extensions of copyright.
@@ -10555,7 +10461,7 @@ committee; in the Senate, eight of the twelve sponsors received
contributions.
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.
+Chicago Tribune, 17 October 1998, 22.
The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
@@ -10567,9 +10473,9 @@ Age," available at
Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the
cycle.
- Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
- Congressional
-Quarterly This Week, 8 August 1990, available at
+
+Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
+Congressional Quarterly This Week, 8 August 1990, available at
link #50.
@@ -10588,13 +10494,13 @@ If they could extend it once, they would extend it again and again
and again.
-It was also my judgment that this Supreme Court would not allow
-Congress to extend existing terms. As anyone close to the Supreme
-Court's work knows, this Court has increasingly restricted 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
+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
@@ -10611,98 +10517,91 @@ include the power to regulate any activity that merely affected
commerce.
-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 considered on a national scale, affects interstate commerce.
-A Constitution designed to limit Congress's power was instead
- interpreted
-to impose no limit.
+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 considered on a national scale, affects interstate
+commerce. A Constitution designed to limit Congress's power was
+instead interpreted to impose no limit.
-The Supreme Court, under Chief Justice Rehnquist's command,
-changed that in United States v. Lopez. The government had argued
-that possessing guns near schools affected interstate 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.
+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.
-"We pause to consider the implications of the government's
- arguments,"
+"We pause to consider the implications of the government's arguments,"
the Chief Justice wrote.
- United States v. Lopez, 514 U.S. 549, 564 (1995).
+ United States v. Lopez, 514 U.S. 549, 564 (1995).
- 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.
- United States v. Morrison, 529 U.S. 598 (2000).
+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.
+
+United States v. Morrison, 529 U.S. 598 (2000).
-
If a principle were at work here, then it should apply to the Progress
Clause as much as the Commerce Clause.
- 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 the Commerce Clause was that the interpretation offered by the
-government would allow the government unending power to regulate
-commerce—the limitation to interstate commerce notwithstanding. The
-same point is true in the context of the Copyright Clause. Here, too, the
-government's interpretation would allow the government unending power
-to regulate copyrights—the limitation to "limited times" notwithstanding.
-
- And if it is applied to the
-Progress Clause, the principle should yield the conclusion that
- Congress
+
+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 the Commerce Clause was that the interpretation offered
+by the government would allow the government unending power to
+regulate commerce—the limitation to interstate commerce
+notwithstanding. The same point is true in the context of the
+Copyright Clause. Here, too, the government's interpretation would
+allow the government unending power to regulate copyrights—the
+limitation to "limited times" notwithstanding.
+
+And if it is applied to the Progress Clause, the principle should
+yield the conclusion that Congress
-can't extend an existing term. If Congress could extend an
- existing
-term, then there would be no "stopping point" to Congress's power
-over terms, though the Constitution expressly states that there is such
-a limit. Thus, the same principle applied to the power to grant
- copyrights
-should entail that Congress is not allowed to extend the term of
-existing copyrights.
-
-
-If, that is, the principle announced in Lopez stood for a principle.
-Many believed the decision in Lopez stood for politics—a conservative
-Supreme Court, which believed in states' rights, using its power over
-Congress to advance its own personal political preferences. But I
- rejected
-that view of the Supreme Court's decision. Indeed, shortly after
-the decision, I wrote an article demonstrating the "fidelity" in such an
-interpretation of the Constitution. The idea that the Supreme Court
-decides cases based upon its politics struck me as extraordinarily
- boring.
-I was not going to devote my life to teaching constitutional law if
-these nine Justices were going to be petty politicians.
-
-
-Now let's pause for a moment to make sure we understand what
-the argument in Eldred was not about. By insisting on the
- 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.
+can't extend an existing term. If Congress could extend an existing
+term, then there would be no "stopping point" to Congress's power over
+terms, though the Constitution expressly states that there is such a
+limit. Thus, the same principle applied to the power to grant
+copyrights should entail that Congress is not allowed to extend the
+term of existing copyrights.
+
+
+If, that is, the principle announced in Lopez
+stood for a principle. Many believed the decision in Lopez stood for
+politics—a conservative Supreme Court, which believed in states'
+rights, using its power over Congress to advance its own personal
+political preferences. But I rejected that view of the Supreme Court's
+decision. Indeed, shortly after the decision, I wrote an article
+demonstrating the "fidelity" in such an interpretation of the
+Constitution. The idea that the Supreme Court decides cases based upon
+its politics struck me as extraordinarily boring. I was not going to
+devote my life to teaching constitutional law if these nine Justices
+were going to be petty politicians.
+
+
+Now let's pause for a moment to make sure we understand what the
+argument in Eldred was not about. By insisting on the
+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.
Some people view the public domain with contempt. In their brief
@@ -10710,14 +10609,16 @@ Some people view the public domain with contempt. In their brief
before the Supreme Court, the Nashville Songwriters Association
wrote that the public domain is nothing more than "legal piracy."
- Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S.
-186 (2003) (No. 01-618), n.10, available at
-link #51.
+
+Brief of the Nashville Songwriters Association, Eldred
+v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), n.10, available
+at link #51.
- But
-it is not piracy when the law allows it; and in our constitutional system,
-our law requires it. Some may not like the Constitution's requirements,
-but that doesn't make the Constitution a pirate's charter.
+But it is not piracy when the law allows it; and in our constitutional
+system, our law requires it. Some may not like the Constitution's
+requirements, but that doesn't make the Constitution a pirate's
+charter.
+Nashville Songwriters Association
As we've seen, our constitutional system requires limits on
@@ -10756,7 +10657,7 @@ extended the terms of copyright generally.
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
+of Petitioners, Eldred v. Ashcroft, 7, available at
link #52.
@@ -10802,19 +10703,18 @@ of such records—especially since the person who registered is
not necessarily the current owner. And we're just talking about 1930!
-"But there isn't a list of who owns property generally," the
- apologists
-for the system respond. "Why should there be a list of copyright
-owners?"
+"But there isn't a list of who owns property generally," the
+apologists for the system respond. "Why should there be a list of
+copyright owners?"
-Well, actually, if you think about it, there are plenty of lists of who
-owns what property. Think about deeds on 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 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.
So: You walk down a street and see a house. You can know who
@@ -10854,7 +10754,7 @@ for other creative works is much more dire.
Consider the story of Michael Agee, chairman of Hal Roach Studios,
which owns the copyrights for the Laurel and Hardy films. Agee is a
direct beneficiary of the Bono Act. The Laurel and Hardy films were
-made between 1921 and 1951. Only one of these films, The Lucky Dog, is
+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
@@ -10863,11 +10763,12 @@ videocassettes and 50,000 DVDs of the duo's silent
films."
See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
-Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+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.
+Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
+Lucky Dog, The
Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
@@ -10893,11 +10794,12 @@ high; digital technology has lowered these costs substantially. While
it cost more than $10,000 to restore a ninety-minute black-and-white
film in 1993, it can now cost as little as $100 to digitize one hour of
mm film.
- 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
+
+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
link #53.
@@ -10911,13 +10813,12 @@ And to secure the rights for a film that is under copyright, you need to
locate the copyright owner.
-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, 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.
"But can't you just restore the film, distribute it, and then pay the
@@ -10990,12 +10891,13 @@ this context do no good.
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.
+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.
The same was effectively true of film. Because the costs of restoring
@@ -11042,12 +10944,12 @@ written for a radically different context.
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
-expression. Copyright is a brake.
+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 expression. Copyright is a brake.
You may well ask, "But if digital technologies lower the costs for
@@ -11216,42 +11118,41 @@ 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 would not hear our arguments if it thought these were
just the arguments of a group of lefty loons. This Supreme Court was
-not about to launch into a new field of judicial review if it seemed that
-this field of review was simply the preference of a small political
- minority.
-Although my focus in 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
+not about to launch into a new field of judicial review if it seemed
+that this field of review was simply the preference of a small
+political minority. Although my focus in 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.
-The first step happened all by itself. Phyllis Schlafly's organization,
-Eagle Forum, had been an opponent of the CTEA from the very
- beginning.
-Mrs. Schlafly viewed the CTEA as a sellout by Congress. In
-November 1998, she wrote a stinging editorial attacking the
- Republican
-Congress for allowing the law to pass. As she wrote, "Do you
-sometimes wonder why bills that create a financial windfall to narrow
-special interests slide easily through the intricate legislative process,
-while bills that benefit the general public seem to get bogged down?"
-The answer, as the editorial documented, was the 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.
-
-
-In the Court of Appeals, Eagle Forum was eager to file a brief
- supporting
-our position. Their brief made the argument that became the
+The first step happened all by itself. Phyllis Schlafly's
+organization, Eagle Forum, had been an opponent of the CTEA from the
+very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
+Congress. In November 1998, she wrote a stinging editorial attacking
+the Republican Congress for allowing the law to pass. As she wrote,
+"Do you sometimes wonder why bills that create a financial windfall to
+narrow special interests slide easily through the intricate
+legislative process, while bills that benefit the general public seem
+to get bogged down?" The answer, as the editorial documented, was the
+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.
+Eagle Forum
+Schlafly, Phyllis
+
+
+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 the Supreme Court: If Congress can extend the term of
-existing copyrights, there is no limit to Congress's power to set terms.
-That strong conservative argument persuaded a strong conservative
-judge, Judge Sentelle.
+existing copyrights, there is no limit to Congress's power to set
+terms. That strong conservative argument persuaded a strong
+conservative judge, Judge Sentelle.
In the Supreme Court, the briefs on our side were about as diverse as
@@ -11265,12 +11166,17 @@ 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.
+GNU/Linux operating system
+Linux operating system
+Eagle Forum
Those briefs framed a legal argument. Then to support the legal
argument, there were a number of powerful briefs by libraries and
archives, including the Internet Archive, the American Association of
Law Libraries, and the National Writers Union.
+American Association of Law Libraries
+National Writers Union
But two briefs captured the policy argument best. One made the
@@ -11308,6 +11214,7 @@ Kathleen Sullivan, who had argued many cases in the Court, and
who had advised us early on about a First Amendment strategy; and
finally, former solicitor general Charles Fried.
+Fried, Charles
Fried was a special victory for our side. Every other former solicitor
@@ -11320,6 +11227,7 @@ 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.
+Fried, Charles
The government, in defending the statute, had its collection of
@@ -11345,22 +11253,22 @@ public domain—because if this creativity were in the public
domain, then people could use it to "glorify drugs or to create
pornography."
-Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
+Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
U.S. (2003) (No. 01-618), 19.
-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.
+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.
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
-Mouse Joins the Fray," New York Times, 28 March 1998, B7.
+Mouse Joins the Fray," New York Times, 28 March 1998, B7.
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.
+Gershwin, George
This argument made clear a theme that is rarely noticed in this
@@ -11389,7 +11297,7 @@ 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
+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.
@@ -11446,25 +11354,24 @@ must be interpreted so that its enumerated powers have limits.
This then was the core of our strategy—a strategy for which I am
-responsible. We would get the Court to see that just as with the Lopez
+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.
+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.
-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 from the very beginning, Congress has been
-extending the term of existing copyrights. So, the government argued,
-the Court should not now say that practice is unconstitutional.
+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 from the very beginning, Congress has been extending the
+term of existing copyrights. So, the government argued, the Court
+should not now say that practice is unconstitutional.
There was some truth to the government's claim, but not much. We
@@ -11512,6 +11419,7 @@ 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:
+Fried, Charles
"I'm just afraid that unless they really see the harm, they won't be
@@ -11609,8 +11517,7 @@ I answered,
mr. lessig: Justice, we are not making an empirical claim at all.
Nothing in our Copyright Clause claim hangs upon the empirical
assertion about impeding progress. Our only argument is this is a
-structural limit necessary to assure that what would be an
- effectively
+structural limit necessary to assure that what would be an effectively
perpetual term not be permitted under the copyright laws.
@@ -11623,14 +11530,13 @@ here was the place Don Ayer's advice should have mattered. This was a
softball; my answer was a swing and a miss.
-The second came from the Chief, for whom the whole case had
-been crafted. For the Chief Justice had crafted the Lopez ruling, and we
-hoped that he would see this case as its second cousin.
+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.
-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:
+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:
@@ -11655,26 +11561,25 @@ asked Solicitor General Olson,
-justice scalia: You say that the functional equivalent of an
- unlimited
-time would be a violation [of the Constitution], but that's
-precisely the argument that's being made by petitioners here, that
-a limited time which is extendable is the functional equivalent of
-an unlimited time.
+justice scalia: You say that the functional equivalent of an unlimited
+time would be a violation [of the Constitution], but that's precisely
+the argument that's being made by petitioners here, that a limited
+time which is extendable is the functional equivalent of an unlimited
+time.
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 academic, not the practical. The government was arguing as if
-this were the first case ever to consider limits on Congress's Copyright
-and Patent Clause power. Ever the professor and not the advocate, I
-closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause—
-indeed, the very first case striking a law of Congress as exceeding a
- specific
-enumerated power was based upon the Copyright and Patent
-Clause. All true. But it wasn't going to move the Court to my side.
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+Copyright and Patent Clause. All true. But it wasn't going to move the
+Court to my side.
As I left the court that day, I knew there were a hundred points I
@@ -11685,23 +11590,19 @@ answered differently. But one way of thinking about this case left me
optimistic.
-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 answer I wanted the Court to hear. For I could not
-imagine how the Court could understand that the government
- believed
-Congress's power was unlimited under the terms of the
- Copyright
-Clause, and sustain the government's argument. The solicitor
-general had made my argument for me. No matter how often I tried,
-I could not understand how the Court could find that Congress's
-power under the Commerce Clause was limited, but under the
- Copyright
-Clause, unlimited. In those rare moments when I let myself
- believe
-that we may have prevailed, it was because I felt this Court—in
-particular, the Conservatives—would feel itself constrained by the rule
-of law that it had established elsewhere.
+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 answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+the Conservatives—would feel itself constrained by the rule of
+law that it had established elsewhere.
The morning of January 15, 2003, I was five minutes late to the office
@@ -11716,43 +11617,41 @@ phone off the hook, posted an announcement to our blog, and sat
down to see where I had been wrong in my reasoning.
-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 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.
-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.
+I first scoured the opinion, looking for how the Court would
+distinguish the principle in this case from the principle in
+Lopez. The argument was nowhere to be found. The case was not even
+cited. The argument that was the core argument of our case did not
+even appear in the Court's opinion.
Justice Ginsburg simply ignored the enumerated powers argument.
-Consistent with her view that Congress's power was not limited
- generally,
-she had found Congress's power not limited here.
+Consistent with her view that Congress's power was not limited
+generally, she had found Congress's power not limited here.
Her opinion was perfectly reasonable—for her, and for Justice
-Souter. Neither believes in Lopez. It would be too much to expect them
+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.
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.
+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.
Yet by what right did they get to choose which of the framers' values
@@ -11792,10 +11691,10 @@ unlimited, then it was unconstitutional.
These two justices understood all the arguments we had made. But
-because neither believed in the Lopez case, neither was willing to push
+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.
+Sentelle. It was Hamlet without the Prince.
Defeat brings depression. They say it is a sign of health when
@@ -11804,7 +11703,7 @@ the depression. This anger was of two sorts.
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
+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
@@ -11812,7 +11711,7 @@ 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
+Lopez and many other "originalist" rulings. Where was their
"originalism" now?
@@ -11872,6 +11771,7 @@ should decide the issue.
Would it have been different if I had argued it differently? Would it
have been different if Don Ayer had argued it? Or Charles Fried? Or
Kathleen Sullivan?
+Fried, Charles
My friends huddled around me to insist it would not. The Court
@@ -11892,6 +11792,7 @@ January. For at the start of this case, one of America's leading
intellectual property professors stated publicly that my bringing this
case was a mistake. "The Court is not ready," Peter Jaszi said; this
issue should not be raised until it is.
+Jaszi, Peter
After the argument and after the decision, Peter said to me, and
@@ -11911,7 +11812,7 @@ the decision was praised, it was praised by papers that had 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,
+harmful law. The New York Times wrote in its editorial,
@@ -11926,13 +11827,18 @@ in a time of such fruitful creative ferment.
The best responses were in the cartoons. There was a gaggle of
hilarious images—of Mickey in jail and the like. The best, from
-my view of the case, was Ruben Bolling's, reproduced on the next
-page. The "powerful and wealthy" line is a bit unfair. But the punch
-in the face felt exactly like that.
-
+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.
+Bolling, Ruben
+
+
+Tom the Dancing Bug cartoon
+
+
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
+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
@@ -11940,12 +11846,12 @@ fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
-
-
+
+CHAPTER FOURTEEN: Eldred II
-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
+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
@@ -11964,7 +11870,7 @@ that." And so, having failed in the argument of constitutional principle,
finally, I turned to an argument of politics.
-The New York Times published the piece. In it, I proposed a simple
+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
@@ -11999,86 +11905,75 @@ between Democrats and Republicans on this issue. Anyone can recognize
the stupid harm of the present system.
-Indeed, many recognized the obvious benefit of the registration
- requirement.
-For one of the hardest things about the current system for
-people who want to license content is that there is no obvious place to
-look for the current copyright owners. Since registration is not
- required,
-since marking content is not required, since no formality at all
-is required, it is often impossibly hard to locate copyright owners to ask
-permission to use or license their work. This system would lower these
-costs, by establishing at least one registry where copyright owners
-could be identified.
+Indeed, many recognized the obvious benefit of the registration
+requirement. For one of the hardest things about the current system
+for people who want to license content is that there is no obvious
+place to look for the current copyright owners. Since registration is
+not required, since marking content is not required, since no
+formality at all is required, it is often impossibly hard to locate
+copyright owners to ask permission to use or license their work. This
+system would lower these costs, by establishing at least one registry
+where copyright owners could be identified.
+Berlin Act (1908)
+Berne Convention (1908)
-As I described in chapter 10, formalities in copyright law were
- removed
-in 1976, when Congress followed the Europeans by
- abandoning
+As I described in chapter , formalities in copyright law were
+removed in 1976, when Congress followed the Europeans by abandoning
any formal requirement before a copyright is granted.
- Until the 1908 Berlin Act of the Berne Convention, national copyright
-legislation sometimes made protection depend upon compliance with
- formalities
-such as registration, deposit, and affixation of notice of the
- author's
-claim of copyright. However, starting with the 1908 act, every text
-of the Convention has provided that "the enjoyment and the exercise" of
-rights guaranteed by the Convention "shall not be subject to any
- formality."
-The prohibition against formalities is presently embodied in Article
-5(2) of the Paris Text of the Berne Convention. Many countries continue
-to impose some form of deposit or registration requirement, albeit not as
-a condition of copyright. French law, for example, requires the deposit of
-copies of works in national repositories, principally the National Museum.
+
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject
+to any formality." The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the 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.
-
- The
- Europeans
-are said to view copyright as a "natural right." Natural rights
-don't need forms to exist. Traditions, like the Anglo-American
- tradition
-that required copyright owners to follow form if their rights were
-to be protected, did not, the Europeans thought, properly respect the
-dignity of the author. My right as a creator turns on my creativity, not
-upon the special favor of the government.
-
-
-That's great rhetoric. It sounds wonderfully romantic. But it is
- absurd
-copyright policy. It is absurd especially for authors, because a
-world without formalities harms the creator. The ability to spread
+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.
+The Europeans are said to view copyright as a "natural right." Natural
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+
+
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
+Berne Convention (1908)
-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.
+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.
These complaints were real and sensible. And the strictness of the
-formalities, especially in the United States, was absurd. The law should
-always have ways of forgiving innocent mistakes. There is no reason
-copyright law couldn't, as well. Rather than abandoning formalities
- totally,
-the response in Berlin should have been to embrace a more
- equitable
-system of registration.
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
Even that would have been resisted, however, because registration
@@ -12136,8 +12031,9 @@ 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.
+a world without formalities. Complex, expensive,
+lawyer transactions take their place.
+Lovett, Lyle
This was the understanding of the problem with the Sonny Bono
@@ -12156,7 +12052,7 @@ 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.
+seen before because there are no formalities.
The Eldred Act was designed to respond to exactly this problem. If
@@ -12185,15 +12081,15 @@ 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?
+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?
Forbes, Steve
@@ -12210,6 +12106,7 @@ 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.
+Lofgren, Zoe
But at this stage, the lobbyists began to intervene. Jack Valenti and
@@ -12287,6 +12184,7 @@ any copyright owner's desire to exercise continued control over his
content. It would simply liberate what Kevin Kelly calls the "Dark
Content" that fills archives around the world. So when the warriors
oppose a change like this, we should ask one simple question:
+Kelly, Kevin
What does this industry really want?
@@ -12294,19 +12192,21 @@ What does this industry really want?
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.
+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.
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.
+tradition. Their aim is not simply to protect what is
+theirs. Their aim is to assure that all there is is what is
+theirs.
It is not hard to understand why the warriors take this view. It is not
@@ -12318,6 +12218,8 @@ feared the competition of FM, they fear the competition of a public
domain connected to a public that now has the means to create with it
and to share its own creation.
+Causby, Thomas Lee
+Causby, Tinie
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
@@ -12335,8 +12237,8 @@ owner and gain permission to build upon his work. The future will be
controlled by this dead (and often unfindable) hand of the past.
-
+
CONCLUSION
@@ -12406,67 +12308,62 @@ 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.
-
-
-
-However, the United States government opposed the bill. Indeed,
-more than opposed. As the International Intellectual Property
- Association
-characterized it, "The U.S. government pressured South Africa . . .
-not to permit compulsory licensing or parallel imports."
- 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
-link #56. 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).
-
- Through the
-Office of the United States Trade Representative, the government
-asked South Africa to change the law—and to add pressure to that
- request,
-in 1998, the USTR listed South Africa for possible trade sanctions.
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
+Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
+Braithwaite, John
+Drahos, Peter
+
+
+
+However, the United States government opposed the bill. Indeed, more
+than opposed. As the International Intellectual Property Association
+characterized it, "The U.S. government pressured South Africa …
+not to permit compulsory licensing or parallel
+imports."
+
+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
+link #56. 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).
+
+Through the Office of the United States Trade Representative, the
+government asked South Africa to change the law—and to add
+pressure to that request, in 1998, the USTR listed South Africa for
+possible trade sanctions.
-That same year, more than forty pharmaceutical companies
- began
-proceedings in the South African courts to challenge the
- government's
-actions. The United States was then joined by other governments
-from the EU. Their claim, and the claim of the pharmaceutical
- companies,
-was that South Africa was violating its obligations under
- international
-law by discriminating against a particular kind of patent—
-pharmaceutical patents. The demand of these governments, with the
-United States in the lead, was that South Africa respect these patents
-as it respects any other patent, regardless of any effect on the treatment
-of AIDS within South Africa.
- 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.
-
-
-
-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 drugs. Poverty and the total absence of an effective
+That same year, more than forty pharmaceutical companies began
+proceedings in the South African courts to challenge the government's
+actions. The United States was then joined by other governments from
+the EU. Their claim, and the claim of the pharmaceutical companies,
+was that South Africa was violating its obligations under
+international law by discriminating against a particular kind of
+patent— pharmaceutical patents. The demand of these governments,
+with the United States in the lead, was that South Africa respect
+these patents as it respects any other patent, regardless of any
+effect on the treatment of AIDS within South Africa.
+
+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.
+
+
+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 drugs. Poverty and the total absence of an effective
health care infrastructure matter more. But whether patents are the
-most important reason or not, the price of drugs has an effect on their
-demand, and patents affect price. And so, whether massive or
- marginal,
-there was an effect from our government's intervention to stop
-the flow of medications into Africa.
+most important reason or not, the price of drugs has an effect on
+their demand, and patents affect price. And so, whether massive or
+marginal, there was an effect from our government's intervention to
+stop the flow of medications into Africa.
By stopping the flow of HIV treatment into Africa, the United
@@ -12486,45 +12383,41 @@ parallel import of these drugs would not substantially increase the sales
by U.S. companies.
-Instead, the argument in favor of restricting this flow of
- information,
-which was needed to save the lives of millions, was an argument
+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 sanctity of property.
- 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
-link #57 ("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
-link #58 (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.
+
+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
+link #57
+("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
+link #58
+(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.
- It was because "intellectual property"
-would be violated that these drugs should not flow into Africa. It was
-a principle about the importance of "intellectual property" that led
-these government actors to intervene against the South African
- response
-to AIDS.
+It was because "intellectual property" would be violated that these
+drugs should not flow into Africa. It was a principle about the
+importance of "intellectual property" that led these government actors
+to intervene against the South African response to AIDS.
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 happen? How could we allow a policy to be pursued whose
- direct
-cost would be to speed the death of 15 to 30 million Africans, and
-whose only real benefit would be to uphold the "sanctity" of an idea?
-What possible justification could there ever be for a policy that results
-in so many deaths? What exactly is the insanity that would allow so
-many to die for such an abstraction?
+let this happen? How could we allow a policy to be pursued whose
+direct cost would be to speed the death of 15 to 30 million Africans,
+and whose only real benefit would be to uphold the "sanctity" of an
+idea? What possible justification could there ever be for a policy
+that results in so many deaths? What exactly is the insanity that
+would allow so many to die for such an abstraction?
Some blame the drug companies. I don't. They are corporations.
@@ -12536,12 +12429,11 @@ a corruption the drug companies are certainly not responsible for.
The corruption is our own politicians' failure of integrity. For the
-drug companies would love—they say, and I believe them—to sell their
-drugs as cheaply as they can to countries in Africa and elsewhere.
-There are issues they'd have to resolve to make sure the drugs didn't get
-back into the United States, but those are mere problems of
- technology.
-They could be overcome.
+drug companies would love—they say, and I believe them—to
+sell their drugs as cheaply as they can to countries in Africa and
+elsewhere. There are issues they'd have to resolve to make sure the
+drugs didn't get back into the United States, but those are mere
+problems of technology. They could be overcome.
A different problem, however, could not be overcome. This is the
@@ -12565,31 +12457,31 @@ against what we have done, how will we justify what we have done?
What is the argument?
-A sensible patent policy could endorse and strongly support the
-patent system without having to reach everyone everywhere in exactly
-the same way. Just as a sensible copyright policy could endorse and
-strongly support a copyright system without having to regulate the
-spread of culture perfectly and forever, a sensible patent policy could
-endorse and strongly support a patent system without having to block
-the spread of drugs to a country not rich enough to afford market
-prices in any case. A sensible policy, in other words, could be a balanced
-policy. For most of our history, both copyright and patent policies were
-balanced in just this sense.
+A sensible patent policy could endorse and strongly support the patent
+system without having to reach everyone everywhere in exactly the same
+way. Just as a sensible copyright policy could endorse and strongly
+support a copyright system without having to regulate the spread of
+culture perfectly and forever, a sensible patent policy could endorse
+and strongly support a patent system without having to block the
+spread of drugs to a country not rich enough to afford market prices
+in any case. A sensible policy, in other words, could be a balanced
+policy. For most of our history, both copyright and patent policies
+were balanced in just this sense.
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.
-A certain property fundamentalism, having no connection to our
-tradition, now reigns in this culture—bizarrely, and with consequences
-more grave to the spread of ideas and culture than almost any other
-single policy decision that we as a democracy will make.
-A simple idea blinds us, and under the cover of darkness, much
-happens that most of us would reject if any of us looked. So uncritically
-do we accept the idea of property in ideas that we don't even notice
-how monstrous it is to deny ideas to a people who are dying without
-them. So uncritically do we accept the idea of property in culture that
-we don't even question when the control of that property removes our
+critical eye that helps us see the difference between truth and
+extremism. A certain property fundamentalism, having no connection to
+our tradition, now reigns in this culture—bizarrely, and with
+consequences more grave to the spread of ideas and culture than almost
+any other single policy decision that we as a democracy will make. A
+simple idea blinds us, and under the cover of darkness, much happens
+that most of us would reject if any of us looked. So uncritically do
+we accept the idea of property in ideas that we don't even notice how
+monstrous it is to deny ideas to a people who are dying without
+them. So uncritically do we accept the idea of property in culture
+that we don't even question when the control of that property removes
+our
ability, as a people, to develop our culture democratically. Blindness
becomes our common sense. And the challenge for anyone who would
@@ -12614,39 +12506,36 @@ produce the "perfect storm" for free culture.
In August 2003, a fight broke out in the United States about a
decision by the World Intellectual Property Organization to cancel a
meeting.
- Jonathan Krim, "The Quiet War over Open-Source," Washington Post,
+ Jonathan Krim, "The Quiet War over Open-Source," Washington Post,
August 2003, E1, available at
link #59; William New, "Global Group's
-Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology
-Daily, 19 August 2003, available at
+Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology
+Daily, 19 August 2003, available at
link #60; William New, "U.S. Official
-Opposes `Open Source' Talks at WIPO," National Journal's Technology
-Daily, 19 August 2003, available at
+Opposes `Open Source' Talks at WIPO," National Journal's Technology
+Daily, 19 August 2003, available at
link #61.
- At the request of a wide range of interests, WIPO had
- decided
-to hold a meeting to discuss "open and collaborative projects to
-create public goods." These are projects that have been successful in
-producing public goods without relying exclusively upon a proprietary
-use of intellectual property. Examples include the Internet and the
-World Wide Web, both of which were developed on the basis of
- protocols
-in the public domain. It included an emerging trend to support
-open academic journals, including the Public Library of Science
- project
+At the request of a wide range of interests, WIPO had decided to hold
+a meeting to discuss "open and collaborative projects to create public
+goods." These are projects that have been successful in producing
+public goods without relying exclusively upon a proprietary use of
+intellectual property. Examples include the Internet and the World
+Wide Web, both of which were developed on the basis of protocols in
+the public domain. It included an emerging trend to support open
+academic journals, including the Public Library of Science project
that I describe in the Afterword. It included a project to develop
single nucleotide polymorphisms (SNPs), which are thought to have
-great significance in biomedical research. (That nonprofit project
- comprised
-a consortium of the Wellcome Trust and pharmaceutical and
+great significance in biomedical research. (That nonprofit project
+comprised a consortium of the Wellcome Trust and pharmaceutical and
technological companies, including Amersham Biosciences, AstraZeneca,
Aventis, Bayer, 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."
+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."
+academic journals
+PLoS (Public Library of Science)
The aim of the meeting was to consider this wide range of projects
@@ -12660,95 +12549,84 @@ From the perspective of this book, then, the conference was ideal. I should disclose that I was one of the people who asked WIPO for the
meeting.
-The projects within its scope included both commercial and
- noncommercial
-work. They primarily involved science, but from many
- perspectives.
-And WIPO was an ideal venue for this discussion, since
+The projects within its scope included both commercial and
+noncommercial work. They primarily involved science, but from many
+perspectives. And WIPO was an ideal venue for this discussion, since
WIPO is the preeminent international body dealing with intellectual
property issues.
Indeed, I was once publicly scolded for not recognizing this fact
about WIPO. In February 2003, I delivered a keynote address to a
-preparatory conference for the World Summit on the Information
- Society
-(WSIS). At a press conference before the address, I was asked
-what I would say. I responded that I would be talking a little about the
+preparatory conference for the World Summit on the Information Society
+(WSIS). At a press conference before the address, I was asked what I
+would say. I responded that I would be talking a little about the
importance of balance in intellectual property for the development of
-an information society. The moderator for the event then promptly
- interrupted
-to inform me and the assembled reporters that no question
+an information society. The moderator for the event then promptly
+interrupted to inform me and the assembled reporters that no question
about intellectual property would be discussed by WSIS, since those
questions were the exclusive domain of WIPO. In the talk that I had
-prepared, I had actually made the issue of intellectual property
- relatively
-minor. But after this astonishing statement, I made intellectual
-property the sole focus of my talk. There was no way to talk about an
-"Information Society" unless one also talked about the range of
- information
-and culture that would be free. My talk did not make my
- immoderate
-moderator very happy. And she was no doubt correct that the
-scope of intellectual property protections was ordinarily the stuff of
+prepared, I had actually made the issue of intellectual property
+relatively minor. But after this astonishing statement, I made
+intellectual property the sole focus of my talk. There was no way to
+talk about an "Information Society" unless one also talked about the
+range of information and culture that would be free. My talk did not
+make my immoderate moderator very happy. And she was no doubt correct
+that the scope of intellectual property protections was ordinarily the
+stuff of
WIPO. But in my view, there couldn't be too much of a conversation
about how much intellectual property is needed, since in my view, the
very idea of balance in intellectual property had been lost.
-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 meeting about "open and collaborative projects to
-create public goods" seemed perfectly appropriate within the WIPO
-agenda.
-
-
-But there is one project within that list that is highly controversial,
-at least among lobbyists. That project is "open source and free
- software."
-Microsoft in particular is wary of discussion of the subject. From
-its perspective, a conference to discuss open source and free software
-would be like a conference to discuss Apple's operating system. Both
-open source and free software compete with Microsoft's software. And
-internationally, many governments have begun to explore requirements
-that they use open source or free software, rather than "proprietary
-software," for their own internal uses.
-
-
-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
-software. There are many important companies that depend
- fundamentally
-upon open source and free software, IBM being the most
+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 meeting about "open and collaborative projects to create
+public goods" seemed perfectly appropriate within the WIPO agenda.
+
+
+But there is one project within that list that is highly
+controversial, at least among lobbyists. That project is "open source
+and free software." Microsoft in particular is wary of discussion of
+the subject. From its perspective, a conference to discuss open source
+and free software would be like a conference to discuss Apple's
+operating system. Both open source and free software compete with
+Microsoft's software. And internationally, many governments have begun
+to explore requirements that they use open source or free software,
+rather than "proprietary software," for their own internal uses.
+
+
+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 software. There are many important companies that depend
+fundamentally upon open source and free software, IBM being the most
prominent. IBM is increasingly shifting its focus to the GNU/Linux
-operating system, the most famous bit of "free software"—and IBM is
-emphatically a commercial entity. Thus, to support "open source and
-free software" is not to oppose commercial entities. It is, instead, to
-support a mode of software development that is different from
- Microsoft's.
- Microsoft's position about free and open source software is more
- sophisticated.
-As it has repeatedly asserted, it has no problem with "open source"
-software or software in the public domain. Microsoft's principal
- 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
-link #62. See also Craig Mundie, Microsoft senior vice
- president,
-The Commercial Software Model, discussion at New York University
-Stern School of Business (3 May 2001), available at
+operating system, the most famous bit of "free software"—and IBM
+is emphatically a commercial entity. Thus, to support "open source and
+free software" is not to oppose commercial entities. It is, instead,
+to support a mode of software development that is different from
+Microsoft's.
+
+Microsoft's position about free and open source software is more
+sophisticated. As it has repeatedly asserted, it has no problem with
+"open source" software or software in the public domain. Microsoft's
+principal 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
+link #62. See also
+Craig Mundie, Microsoft senior vice president, The Commercial Software
+Model, discussion at New York University Stern School of Business (3
+May 2001), available at
link #63.
+"copyleft" licenses
+GNU/Linux operating system
+Linux operating system
More important for our purposes, to support "open source and free
@@ -12774,7 +12652,7 @@ 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
+Washington Post, Microsoft's lobbyists succeeded in getting the United
States government to veto the meeting.
Krim, "The Quiet War over Open-Source," available at 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.
+Gates, Bill
When Ms. Boland says that there is something wrong with a meeting
@@ -12869,11 +12749,13 @@ that control.
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.
+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
-feudal. The trend is toward the feudal.
+choice now is whether that information society will be
+free or feudal. The trend is
+toward the feudal.
When this battle broke, I blogged it. A spirited debate within the
@@ -12885,7 +12767,7 @@ that was particularly depressing for me. An anonymous poster wrote,
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 promote the right balance of intellectualproperty rights,
+should be to promote the right balance of intellectual property rights,
not simply to promote intellectual property rights"), not as it is. If
we were talking about the world as it is, then of course Boland didn't
say anything wrong. But in the world
@@ -12937,6 +12819,7 @@ something more than the handmaiden of the most powerful interests.
It might be crazy to argue that we should preserve a tradition that has
been part of our tradition for most of our history—free culture.
+CodePink Women in Peace
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
@@ -12948,6 +12831,8 @@ 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.
+Turner, Ted
+Safire, William
This activism did not stop the FCC, but soon after, a broad coalition
@@ -12993,6 +12878,7 @@ 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.
@@ -13004,18 +12890,18 @@ R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September
2003, available at
link #66; 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
+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 September 2003,
+Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
+"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
available at
link #67.
Eminem has just been sued for "sampling" someone else's
music.
-Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady,"
+Jon Wiederhorn, "Eminem Gets Sued … by a Little Old Lady,"
mtv.com, 17 September 2003, available at
link #68.
@@ -13037,6 +12923,10 @@ talking about deputizing computer viruses to bring down computers
thought to violate the law. Universities are threatening expulsion for
kids who use a computer to share content.
+Causby, Thomas Lee
+Causby, Tinie
+Creative Commons
+Gil, Gilberto
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
@@ -13045,13 +12935,13 @@ download BBC content, and rip, mix, and burn it.
24 August 2003, available at
link #70.
-Gil, Gilberto
And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
of Brazilian music, has joined with Creative Commons to release
content and free licenses in that Latin American
country.
- "Creative Commons and Brazil," Creative Commons Weblog, 6 August
-2003, available at
+
+"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003,
+available at
link #71.
@@ -13102,7 +12992,7 @@ sketch changes that Congress could make to better secure a free culture.
-
+US, NOW
Common sense is with the copyright warriors because the debate so far
@@ -13147,15 +13037,15 @@ the Internet today will become a "get permission to cut and paste"
world that is a creator's nightmare.
-What's needed is a way to say something in the middle—neither "all
-rights reserved" nor "no rights reserved" but "some rights reserved"—
-and thus a way to respect copyrights but enable creators to free content
-as they see fit. In other words, we need a way to restore a set of
- freedoms
-that we could just take for granted before.
+What's needed is a way to say something in the middle—neither
+"all rights reserved" nor "no rights reserved" but "some rights
+reserved"— and thus a way to respect copyrights but enable
+creators to free content as they see fit. In other words, we need a
+way to restore a set of freedoms that we could just take for granted
+before.
-
+Rebuilding Freedoms Previously Presumed: Examples
If you step back from the battle I've been describing here, you will
@@ -13173,8 +13063,9 @@ What made it assured?
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 data and hence a market constraint (cost) on anyone who
+, your
+privacy was assured because of an inefficient architecture for
+gathering data and hence a market constraint (cost) on anyone who
wanted to gather that data. If you were a suspected spy for North
Korea, working for the CIA, no doubt your privacy would not be
assured. But that's because the CIA would (we hope) find it valuable
@@ -13196,6 +13087,7 @@ at. You know this because at the side of the page, there's a list of
and the function of cookies on the Net, it is easier to collect the
data than not. The friction has disappeared, and hence any "privacy"
protected by the friction disappears, too.
+cookies, Internet
Amazon, of course, is not the problem. But we might begin to worry
@@ -13215,13 +13107,13 @@ friction did.
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
+Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
+Law Review 1 (2001): par. 6–18, available at
link #72
(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
+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).
And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
@@ -13283,6 +13175,8 @@ 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 the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
+GNU/Linux operating system
+Linux operating system
Stallman's technique was to use copyright law to build a world of
@@ -13308,29 +13202,30 @@ 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 journals are produced.
+
+ academic journals
+
-As digital technologies develop, it is becoming obvious to many
-that printing thousands of copies of journals every month and sending
-them to libraries is perhaps not the most efficient way to distribute
+As digital technologies develop, it is becoming obvious to many that
+printing thousands of copies of journals every month and sending them
+to libraries is perhaps not the most efficient way to distribute
knowledge. Instead, journals are increasingly becoming electronic, and
-libraries and their users are given access to these electronic journals
-through password-protected sites. Something similar to this has been
-happening in law for almost thirty years: Lexis and Westlaw have had
-electronic versions of case reports available to subscribers to their
- service.
-Although a Supreme Court opinion is not copyrighted, and
- anyone
-is free to go to a library and read it, Lexis and Westlaw are also free
+libraries and their users are given access to these electronic
+journals through password-protected sites. Something similar to this
+has been happening in law for almost thirty years: Lexis and Westlaw
+have had electronic versions of case reports available to subscribers
+to their service. Although a Supreme Court opinion is not
+copyrighted, and anyone is free to go to a library and read it, Lexis
+and Westlaw are also free
to charge users for the privilege of gaining access to that Supreme
Court opinion through their respective services.
-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
+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 people to develop new and innovative ways to spread knowledge.
-The law has agreed, which is why Lexis and Westlaw have been
- allowed
+The law has agreed, which is why Lexis and Westlaw have been allowed
to flourish. And if there's nothing wrong with selling the public
domain, then there could be nothing wrong, in principle, with selling
access to material that is not in the public domain.
@@ -13342,24 +13237,23 @@ browse this data except by paying for a subscription?
As many are beginning to notice, this is increasingly the reality with
-scientific journals. When these journals were distributed in paper form,
-libraries could make the journals available to anyone who had access to
-the library. Thus, patients with cancer could become cancer experts
- because
-the library gave them access. Or patients trying to understand
-the risks of a certain treatment could research those risks by reading all
-available articles about that treatment. This freedom was therefore a
-function of the institution of libraries (norms) and the technology of
-paper journals (architecture)—namely, that it was very hard to control
-access to a paper journal.
-
-
-As journals become electronic, however, the publishers are
- demanding
-that libraries not give the general public access to the journals. This
-means that the freedoms provided by print journals in public libraries
-begin to disappear. Thus, as with privacy and with software, a changing
-technology and market shrink a freedom taken for granted before.
+scientific journals. When these journals were distributed in paper
+form, libraries could make the journals available to anyone who had
+access to the library. Thus, patients with cancer could become cancer
+experts because the library gave them access. Or patients trying to
+understand the risks of a certain treatment could research those risks
+by reading all available articles about that treatment. This freedom
+was therefore a function of the institution of libraries (norms) and
+the technology of paper journals (architecture)—namely, that it
+was very hard to control access to a paper journal.
+
+
+As journals become electronic, however, the publishers are demanding
+that libraries not give the general public access to the
+journals. This means that the freedoms provided by print journals in
+public libraries begin to disappear. Thus, as with privacy and with
+software, a changing technology and market shrink a freedom taken for
+granted before.
This shrinking freedom has led many to take affirmative steps to
@@ -13368,199 +13262,184 @@ restore the freedom that has been lost. The Public Library of Science
scientific research available to anyone with a Web connection. Authors
of scientific work submit that work to the Public Library of Science.
-That work is then subject to 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.
+That work is then subject to 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.
+PLoS (Public Library of Science)
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 doubt that this alternative competes with the
- traditional
+granted before, but now threatened by changing technology and markets.
+There's no doubt that this alternative competes with the traditional
publishers and their efforts to make money from the exclusive
-distribution of content. But competition in our tradition is
- presumptively
-a good—especially when it helps spread knowledge and science.
+distribution of content. But competition in our tradition is
+presumptively a good—especially when it helps spread knowledge
+and science.
+
-
-
+
+Rebuilding Free Culture: One Idea
+
+ Creative Commons
+
-The same strategy could be applied to culture, as a response to the
- increasing
-control effected through law and technology.
+The same strategy could be applied to culture, as a response to the
+increasing control effected through law and technology.
-Enter the Creative Commons. The Creative Commons is a
- nonprofit
+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 possible.
-
-
-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
+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 possible.
+
+
+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
+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.
+CC mark, which does not mean that copyright is waived, but that
+certain freedoms are given.
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 license that permits any use, so long as attribution is
-given. She can choose a license that permits only noncommercial use.
-She can choose a license that permits any use so long as the same
- freedoms
-are given to other uses ("share and share alike"). Or any use so
-long as no derivative use is made. Or any use at all within developing
-nations. Or any sampling use, so long as full copies are not made. Or
-lastly, any educational use.
-
-
-These choices thus establish a range of freedoms beyond the default
-of copyright law. They also enable freedoms that go beyond traditional
+precise contours depend upon the choices the creator makes. The
+creator can choose a license that permits any use, so long as
+attribution is given. She can choose a license that permits only
+noncommercial use. She can choose a license that permits any use so
+long as the same freedoms are given to other uses ("share and share
+alike"). Or any use so long as no derivative use is made. Or any use
+at all within developing nations. Or any sampling use, so long as full
+copies are not made. Or lastly, any educational use.
+
+
+These choices thus establish a range of freedoms beyond the default of
+copyright law. They also enable freedoms that go beyond traditional
fair use. And most importantly, they express these freedoms in a way
that subsequent users can use and rely upon without the need to hire a
-lawyer. Creative Commons thus aims to build a layer of content,
- governed
-by a layer of reasonable copyright law, that others can build
-upon. Voluntary choice of individuals and creators will make this
- content
-available. And that content will in turn enable us to rebuild a
- public
-domain.
-
-
-This is just one project among many within the Creative
- Commons.
-And of course, Creative Commons is not the only organization
-pursuing such freedoms. But the point that distinguishes the Creative
-Commons from many is that we are not interested only in talking
-about a public domain or in getting legislators to help build a public
-domain. Our aim is to build a movement of consumers and producers
+lawyer. Creative Commons thus aims to build a layer of content,
+governed by a layer of reasonable copyright law, that others can build
+upon. Voluntary choice of individuals and creators will make this
+content available. And that content will in turn enable us to rebuild
+a public domain.
+
+
+This is just one project among many within the Creative Commons. And
+of course, Creative Commons is not the only organization pursuing such
+freedoms. But the point that distinguishes the Creative Commons from
+many is that we are not interested only in talking about a public
+domain or in getting legislators to help build a public domain. Our
+aim is to build a 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.
-
-
-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 produced by insane and unintended consequences of laws
-written centuries ago, applied to a technology that only Jefferson could
-have imagined. The rules may well have made sense against a
- background
-of technologies from centuries ago, but they do not make sense
-against the background of digital technologies. New rules—with
- different
-freedoms, expressed in ways so that humans without lawyers can
-use them—are needed. Creative Commons gives people a way
- effectively
+Garlick, Mia
+
+
+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 produced by insane and unintended consequences of laws written
+centuries ago, applied to a technology that only Jefferson could have
+imagined. The rules may well have made sense against a background of
+technologies from centuries ago, but they do not make sense against
+the background of digital technologies. New rules—with different
+freedoms, expressed in ways so that humans without lawyers can use
+them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
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.
+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.
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 Cory's book whether or not it's on the Internet, and (2)
-those who may never hear of Cory's book, if it isn't made available for
-free on the Internet. Some part of (1) will download Cory's book
- instead
-of buying 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.
-
-
-Indeed, the experience of his publisher clearly supports that
- conclusion.
-The book's first printing was exhausted months before the
-publisher had expected. This first novel of a science fiction author was
-a total success.
-
-
-The idea that free content might increase the value of nonfree
- content
+reasoned like this: There are two groups of people out there: (1)
+those who will buy Cory's book whether or not it's on the Internet,
+and (2) those who may never hear of Cory's book, if it isn't made
+available for free on the Internet. Some part of (1) will download
+Cory's book instead of buying 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.
+
+
+Indeed, the experience of his publisher clearly supports that
+conclusion. The book's first printing was exhausted months before the
+publisher had expected. This first novel of a science fiction author
+was a total success.
+
+
+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,
+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.
+Free for All (Wayner)
+Wayner, Peter
-These are examples of using the Commons to better spread
- proprietary
+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 are others who use Creative Commons licenses for
-other reasons. Many who use the "sampling license" do so because
- anything
-else would be hypocritical. The sampling license says that others
-are free, for commercial or noncommercial purposes, to sample content
-from the licensed work; they are just not free to make full copies of the
+Commons. There are others who use Creative Commons licenses for other
+reasons. Many who use the "sampling license" do so because anything
+else would be hypocritical. The sampling license says that others are
+free, for commercial 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
- 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
+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
+
+
+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
link #72.
),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
-Finally, there are many who mark their content with a Creative
-Commons license just because they want to express to others the
- importance
-of balance in this debate. If you just go along with the system
-as it is, you are effectively saying you believe in the "All Rights Reserved"
-model. Good for you, but many do not. Many believe that however
- appropriate
-that rule is for Hollywood and freaks, it is not an appropriate
-description of how most creators view the rights associated with their
-content. The Creative Commons license expresses this notion of "Some
-Rights Reserved," and gives many the chance to say it to others.
+Finally, there are many who mark their content with a Creative Commons
+license just because they want to express to others the importance of
+balance in this debate. If you just go along with the system as it is,
+you are effectively saying you believe in the "All Rights Reserved"
+model. Good for you, but many do not. Many believe that however
+appropriate that rule is for Hollywood and freaks, it is not an
+appropriate description of how most creators view the rights
+associated with their content. The Creative Commons license expresses
+this notion of "Some Rights Reserved," and gives many the chance to
+say it to others.
In the first six months of the Creative Commons experiment, over
@@ -13581,21 +13460,20 @@ this rebuilding. They will lead to a world in which more than voluntary
steps are possible.
-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 project does not compete with copyright; it
- complements
-it. Its aim is not to defeat the rights of authors, but to make it
-easier for authors and creators to exercise their rights more flexibly and
-cheaply. That difference, we believe, will enable creativity to spread
-more easily.
+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 project does not compete with copyright; it
+complements it. Its aim is not to defeat the rights of authors, but to
+make it easier for authors and creators to exercise their rights more
+flexibly and cheaply. That difference, we believe, will enable
+creativity to spread more easily.
+
-
-
-
+
+
+THEM, SOON
We will not reclaim a free culture by individual action alone. It will
@@ -13611,7 +13489,7 @@ is a step, not an end. But any of these steps would carry us a long way
to our end.
-
+1. More Formalities
If you buy a house, you have to record the sale in a deed. If you buy land
@@ -13621,9 +13499,9 @@ airplane ticket, it has your name on it.
-These are all formalities associated with property. They are
- requirements
-that we all must bear if we want our property to be protected.
+These are all formalities associated with property. They are
+requirements that we all must bear if we want our property to be
+protected.
In contrast, under current copyright law, you automatically get a
@@ -13635,124 +13513,114 @@ default is control, and "formalities" are banished.
Why?
-As I suggested in chapter 10, the motivation to abolish formalities
-was a good one. In the world before digital technologies, formalities
+As I suggested in chapter , the motivation to abolish formalities was a
+good one. In the world before digital technologies, formalities
imposed a burden on copyright holders without much benefit. Thus, it
was progress when the law relaxed the formal requirements that a
-copyright owner must bear to protect and secure his work. Those
- formalities
-were getting in the way.
+copyright owner must bear to protect and secure his work. Those
+formalities were getting in the way.
But the Internet changes all this. Formalities today need not be a
-burden. Rather, the world without formalities is the world that
- burdens
-creativity. Today, there is no simple way to know who owns what,
-or with whom one must deal in order to use or build upon the
- creative
-work of 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.
+burden. Rather, the world without formalities is the world that
+burdens creativity. Today, there is no simple way to know who owns
+what, or with whom one must deal in order to use or build upon the
+creative work of 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.
The law should therefore change this requirement
- 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
-by other countries as well.
-—but it should
-not change it by going back to the old, broken system. We should
- require
-formalities, but we should establish a system that will create the
-incentives to minimize the burden of these formalities.
-
-
-The important formalities are three: marking copyrighted work,
- registering
-copyrights, and renewing the claim to copyright. Traditionally,
-the first of these three was something the copyright owner did; the
- second
-two were something the government did. But a revised system of
-formalities would banish the government from the process, except for
-the sole purpose of approving standards developed by others.
+
+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 by other countries as well.—but it
+should not change it by going back to the old, broken system. We
+should require formalities, but we should establish a system that will
+create the incentives to minimize the burden of these formalities.
+
+
+The important formalities are three: marking copyrighted work,
+registering copyrights, and renewing the claim to
+copyright. Traditionally, the first of these three was something the
+copyright owner did; the second two were something the government
+did. But a revised system of formalities would banish the government
+from the process, except for the sole purpose of approving standards
+developed by others.
-
+REGISTRATION AND RENEWAL
-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
-registration, the copyright owner paid a fee. As with most government
-agencies, the Copyright Office had little incentive to minimize the
-burden of registration; it also had little incentive to minimize the fee.
-And as the Copyright Office is not a main target of government
- policymaking,
-the office has historically been terribly underfunded. Thus,
-when people who know something about the process hear this idea
-about formalities, their first reaction is panic—nothing could be worse
-than forcing people to deal with the mess that is the Copyright Office.
-
-
-Yet it is always astonishing to me that we, who come from a
- tradition
+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 registration, the copyright owner paid a fee. As with most
+government agencies, the Copyright Office had little incentive to
+minimize the burden of registration; it also had little incentive to
+minimize the fee. And as the Copyright Office is not a main target of
+government policymaking, the office has historically been terribly
+underfunded. Thus, when people who know something about the process
+hear this idea about formalities, their first reaction is
+panic—nothing could be worse than forcing people to deal with
+the mess that is the Copyright Office.
+
+
+Yet it is always astonishing to me that we, who come from a tradition
of extraordinary innovation in governmental design, can no longer
think innovatively about how governmental functions can be designed.
-Just because there is a public purpose to a government role, it doesn't
-follow that the government must actually administer the role. Instead,
-we should be creating incentives for private parties to serve the public,
-subject to standards that the government sets.
+Just because there is a public purpose to a government role, it
+doesn't follow that the government must actually administer the
+role. Instead, we should be creating incentives for private parties to
+serve the public, subject to standards that the government sets.
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 owners for these Web sites have to pay a fee to keep their
registration alive. In the main top-level domains (.com, .org, .net),
-there is a central registry. The actual registrations are, however,
- performed
-by many competing registrars. That competition drives the cost
-of registering down, and more importantly, it drives the ease with which
-registration occurs up.
+there is a central registry. The actual registrations are, however,
+performed by many competing registrars. That competition drives the
+cost of registering down, and more importantly, it drives the ease
+with which registration occurs up.
We should adopt a similar model for the registration and renewal of
-copyrights. The Copyright Office may well serve as the central registry,
-but it should not be in the registrar business. Instead, it should
- establish
-a database, and a set of standards for registrars. It should approve
-registrars that meet its standards. Those registrars would then compete
-with one another to deliver the cheapest and simplest systems for
- registering
-and renewing copyrights. That competition would
- substantially
-lower the burden of this formality—while producing a database
+copyrights. The Copyright Office may well serve as the central
+registry, but it should not be in the registrar business. Instead, it
+should establish a database, and a set of standards for registrars. It
+should approve registrars that meet its standards. Those registrars
+would then compete with one another to deliver the cheapest and
+simplest systems for registering and renewing copyrights. That
+competition would substantially lower the burden of this
+formality—while producing a database
of registrations that would facilitate the licensing of content.
-
-
+
+MARKING
-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 failing to comply with a regulatory rule—akin to imposing
-the death penalty for a parking ticket in the world of creative rights.
-Here again, there is no reason that a marking requirement needs to be
-enforced in this way. And more importantly, there is no reason a
- marking
-requirement needs to be enforced uniformly across all media.
+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 failing to comply with a regulatory rule—akin to
+imposing the death penalty for a parking ticket in the world of
+creative rights. Here again, there is no reason that a marking
+requirement needs to be enforced in this way. And more importantly,
+there is no reason a marking requirement needs to be enforced
+uniformly across all media.
-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 to locate a copyright owner to secure permission to use
-the work.
+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 to locate a copyright owner to secure permission to
+use the work.
One of the problems the copyright system confronted early on was
@@ -13768,18 +13636,17 @@ loss of the right to punish someone for failing to get permission first.
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 not be that the copyright is lost. The consequence could
-instead be that anyone has the right to use this work, until the
- copyright
-owner complains and demonstrates that it is his work and he
+instead be that anyone has the right to use this work, until the
+copyright owner complains and demonstrates that it is his work and he
doesn't give permission.
- There would be a complication with derivative works that I have not
+
+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 than is justified by the marginal incentive it creates.
- The meaning of an unmarked work would
-therefore be "use unless someone complains." If someone does
- complain,
-then the obligation would be to stop using the work in any new
+The meaning of an unmarked work would therefore be "use unless someone
+complains." If someone does complain, then the obligation would be to
+stop using the work in any new
work from then on though no penalty would attach for existing uses.
This would create a strong incentive for copyright owners to mark
@@ -13793,28 +13660,24 @@ Copyright Office's role to that of approving standards for marking
content that have been crafted elsewhere.
-For example, if a recording industry association devises a method
-for marking CDs, it would propose that to the Copyright Office. The
+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.
-
-
-Finally, marking content clearly would simplify registration
- requirements.
-If photographs were marked by author and year, there
-would be little reason not to allow a photographer to reregister, for
- example,
-all photographs taken in a particular year in one quick step. The
-aim of the formality is not to burden the creator; the system itself
-should be kept as simple as possible.
+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.
+
+
+Finally, marking content clearly would simplify registration
+requirements. If photographs were marked by author and year, there
+would be little reason not to allow a photographer to reregister, for
+example, all photographs taken in a particular year in one quick
+step. The aim of the formality is not to burden the creator; the
+system itself should be kept as simple as possible.
The objective of formalities is to make things clear. The existing
@@ -13831,9 +13694,9 @@ that assertion at the appropriate time.
-
-
-
+
+
+2. Shorter Terms
The term of copyright has gone from fourteen years to ninety-five
@@ -13841,100 +13704,91 @@ years for corporate authors, and life of the author plus seventy years for
natural authors.
-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.
- "A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, available
-at
+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.
+
+
+"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
+available at
link #74.
- Others have
-proposed tying the term to the term for patents.
+Others have proposed tying the term to the term for patents.
-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 that are important to keep in mind about copyright terms.
+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 that are important to keep in mind about copyright
+terms.
-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.
+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.
-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.
+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.
-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.
- Department of Veterans Affairs, Veteran's Application for Compensation
+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.
+
+Department of Veterans Affairs, Veteran's Application for Compensation
and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
available at
link #75.
- 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.
+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.
+veterans' pensions
-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.
-
+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.
-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 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.
No doubt the extremists will call these ideas "radical." (After all, I
@@ -13945,8 +13799,8 @@ a more generous copyright law than Richard Nixon presided over?
-
-
+
+3. Free Use Vs. Fair Use
As I observed at the beginning of this book, property law originally
@@ -13957,27 +13811,26 @@ challenge. It made no sense anymore to grant that much control, given
the emergence of that new technology.
-Our Constitution gives Congress the power to give authors
- "exclusive
+Our Constitution gives Congress the power to give authors "exclusive
right" to "their writings." Congress has given authors an exclusive
-right to "their writings" plus any derivative writings (made by others) that
-are sufficiently close to the author's original work. Thus, if I write a book,
-and you base a movie on that book, I have the power to deny you the
-right to release that movie, even though that movie is not "my writing."
-
-
-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 dramatizations of a work.
- Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
+right to "their writings" plus any derivative writings (made by
+others) that are sufficiently close to the author's original
+work. Thus, if I write a book, and you base a movie on that book, I
+have the power to deny you the right to release that movie, even
+though that movie is not "my writing."
+
+
+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 dramatizations of a work.
+
+Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
University Press, 1967), 32.
- The courts have expanded
-it slowly through judicial interpretation ever since. This expansion has
-been commented upon by one of the law's greatest judges, Judge
- Benjamin
-Kaplan.
+The courts have expanded it slowly through judicial interpretation
+ever since. This expansion has been commented upon by one of the law's
+greatest judges, Judge Benjamin Kaplan.
+Kaplan, Benjamin
@@ -13997,8 +13850,9 @@ a copyright runs. And they don't make sense as an amorphous grant.
Consider each limitation in turn.
-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
+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
@@ -14006,100 +13860,91 @@ 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.
+Grisham, John
-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.
+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.
-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 derivative rights—turning a book into a movie, or a
-poem into a musical score—it doesn't make sense to require
- negotiation
-for the unforeseeable. Here, a statutory right would make much
-more sense.
+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 derivative rights—turning a book into a movie, or a
+poem into a musical score—it doesn't make sense to require
+negotiation for the unforeseeable. Here, a statutory right would make
+much more sense.
-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.
- Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
- Jukebox
-(Stanford: Stanford University Press, 2003), 187–216.
+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.
+
+
+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.
+His view is that the law should be written so that
+expanded protections follow expanded uses.
-Goldstein's analysis would make perfect sense if the cost of the
- legal
+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 Internet, the uncertainty about the scope of protection, and the
- incentives
-to protect existing architectures of revenue, combined with a
-strong copyright, weaken the process of innovation.
+the Internet, the uncertainty about the scope of protection, and the
+incentives to protect existing architectures of revenue, combined with
+a strong copyright, weaken the process of innovation.
The law could remedy this problem either by removing protection
beyond the part explicitly drawn or by granting reuse rights upon
- certain
-statutory conditions. Either way, the effect would be to free a great
-deal of culture to others to cultivate. And under a statutory rights
-regime, that reuse would earn artists more income.
+certain statutory conditions. Either way, the effect would be to free
+a great deal of culture to others to cultivate. And under a statutory
+rights regime, that reuse would earn artists more income.
-
+
-
+4. Liberate the Music—Again
-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, most pressing—music. There is no other policy issue that
- better
-teaches the lessons of this book than the battles around the sharing
-of music.
-
-
-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 other single application. It was the Internet's killer
-app—possibly in two senses of that word. It no doubt was the
- application
-that drove demand for bandwidth. It may well be the application
-that drives demand for regulations that in the end kill innovation on
-the network.
-
-
-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,
-and, most importantly, spread. The law does this by giving
+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, most pressing—music. There is no other
+policy issue that better teaches the lessons of this book than the
+battles around the sharing of music.
+
+
+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 other single application. It was the Internet's
+killer app—possibly in two senses of that word. It no doubt was
+the application that drove demand for bandwidth. It may well be the
+application that drives demand for regulations that in the end kill
+innovation on the network.
+
+
+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, and, most importantly, spread. The law does this by giving
an exclusive right to a composer to control public performances of his
work, and to a performing artist to control copies of her performance.
-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 all the file-sharing networks do. As I described in
-chapter 5, they enable four different kinds of sharing:
+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 all the file-sharing networks do. As I described in chapter
+, they enable
+four different kinds of sharing:
@@ -14115,17 +13960,15 @@ on the way to purchasing CDs.
-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 too cumbersome to buy off the Net.
+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 too cumbersome to buy off the Net.
-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 endorses.
+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 endorses.
@@ -14137,11 +13980,12 @@ effect of sharing is actually not very harmful, the need for regulation is
significantly weakened.
-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 assume, in other words, that type A sharing is significantly
-greater than type B, and is the dominant use of sharing networks.
+As I said in chapter , the actual harm caused by sharing is
+controversial. For the purposes of this chapter, however, I assume
+the harm is real. I assume, in other words, that type A sharing is
+significantly greater than type B, and is the dominant use of sharing
+networks.
Nonetheless, there is a crucial fact about the current technological
@@ -14149,17 +13993,16 @@ context that we must keep in mind if we are to understand how the law
should respond.
-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
- content.
-It won't be the easiest way to get access to a broad range of content
-in ten years. Today, access to the Internet is cumbersome and slow—we
-in the United States are lucky to have broadband service at 1.5 MBs, and
-very rarely do we get service at that speed both up and down. Although
-wireless access is growing, most of us still get access across wires. Most
-only gain access through a machine with a keyboard. The idea of the
- always
-on, always connected Internet is mainly just an idea.
+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 content. It won't be the easiest way to get access to
+a broad range of content in ten years. Today, access to the Internet
+is cumbersome and slow—we in the United States are lucky to have
+broadband service at 1.5 MBs, and very rarely do we get service at
+that speed both up and down. Although wireless access is growing, most
+of us still get access across wires. Most only gain access through a
+machine with a keyboard. The idea of the always on, always connected
+Internet is mainly just an idea.
But it will become a reality, and that means the way we get access to
@@ -14167,38 +14010,36 @@ the Internet today is a technology in transition. Policy makers should
not make policy on the basis of technology in transition. They should
make policy on the basis of where the technology is going. The
- question
-should not be, how should the law regulate sharing in this world?
-The question should be, what law will we require when the network
-becomes the network it is clearly becoming? That network is one in
-which every machine with electricity is essentially on the Net; where
-everywhere you are—except maybe the desert or the Rockies—you can
-instantaneously be connected to the Internet. Imagine the Internet as
-ubiquitous as the best cell-phone service, where with the flip of a
- device,
-you are connected.
+question should not be, how should the law regulate sharing in this
+world? The question should be, what law will we require when the
+network becomes the network it is clearly becoming? That network is
+one in which every machine with electricity is essentially on the Net;
+where everywhere you are—except maybe the desert or the
+Rockies—you can instantaneously be connected to the
+Internet. Imagine the Internet as ubiquitous as the best cell-phone
+service, where with the flip of a device, you are connected.
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 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 Japan offer music (for a fee) streamed over cell
-phones (enhanced with plugs for headphones). The Japanese are
- paying
-for this content even though "free" content is available in the form
-of MP3s across the Web.
- See, for example, "Music Media Watch," The J@pan Inc. Newsletter,
-3 April 2002, available at
+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
+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 Japan offer music (for a fee) streamed over
+cell phones (enhanced with plugs for headphones). The Japanese are
+paying for this content even though "free" content is available in the
+form of MP3s across the Web.
+
+See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
+April 2002, available at
link #76.
@@ -14250,14 +14091,13 @@ from the author's perspective, this "sharing" of his content without
his being compensated is less than ideal.
-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 music available for sale, then commercial and
- noncommercial
+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 music available for sale, then commercial and noncommercial
providers would be free, under this rule, to "share" that content,
-even though the sharing involved making a copy. The copy here would
-be incidental to the trade; in a context where commercial publishing
-has ended, trading music should be as free as trading books.
+even though the sharing involved making a copy. The copy here would be
+incidental to the trade; in a context where commercial publishing has
+ended, trading music should be as free as trading books.
@@ -14314,84 +14154,82 @@ 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.
- William Fisher, Digital Music: Problems and Possibilities (last revised:
-10 October 2000), available at
-link #77; William Fisher, Promises to Keep:
-Technology, Law, and the Future of Entertainment (forthcoming) (Stanford:
-Stanford University Press, 2004), ch. 6, available at
+floated by Harvard law professor William Fisher.
+
+
+William Fisher, Digital Music: Problems and Possibilities (last
+revised: 10 October 2000), available at
+link #77; William
+Fisher, Promises to Keep: Technology, Law, and the Future of
+Entertainment (forthcoming) (Stanford: Stanford University Press,
+2004), ch. 6, available at
link #78. 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
link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back
-Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
+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
-link #80; Serguei Osokine, A Quick Case for Intellectual Property
-Use Fee (IPUF), 3 March 2002, available at
+link #80; Serguei Osokine, A Quick Case for Intellectual Property
+Use Fee (IPUF), 3 March 2002, available at
link #81; Jefferson Graham,
-"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
+"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
2002, available at
link #82; Steven M. Cherry, "Getting Copyright Right,"
IEEE Spectrum Online, 1 July 2002, available at
link #83; Declan
- McCullagh,
-"Verizon's Copyright Campaign," CNET News.com, 27 August
+McCullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August
2002, available at
link #84.
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
+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
-plan, all content capable of digital transmission would (1) be marked
-with a digital watermark (don't worry about how easy it is to evade
-these marks; as you'll see, there's no incentive to evade them). Once the
-content is marked, then entrepreneurs would develop (2) systems to
-monitor how many items of each content were distributed. On the
- basis
-of those numbers, then (3) artists would be compensated. The
- compensation
-would be paid for by (4) an appropriate tax.
+Fisher suggests a very clever way around the current impasse of the
+Internet. Under his plan, all content capable of digital transmission
+would (1) be marked with a digital watermark (don't worry about how
+easy it is to evade these marks; as you'll see, there's no incentive
+to evade them). Once the content is marked, then entrepreneurs would
+develop (2) systems to monitor how many items of each content were
+distributed. On the basis of those numbers, then (3) artists would be
+compensated. The compensation would be paid for by (4) an appropriate
+tax.
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.
-
-
-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 supports the widest range of "semiotic democracy" possible. But
-the aims of semiotic democracy would be satisfied if the other changes
-I described were accomplished—in particular, the limits on derivative
+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.
+
+
+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 supports the widest range of "semiotic democracy"
+possible. But the aims of semiotic democracy would be satisfied if the
+other changes I described were accomplished—in particular, the
+limits on derivative
uses. A system that simply charges for access would not greatly burden
-semiotic democracy if there were few limitations on what one was
- allowed
-to do with the content itself.
+semiotic democracy if there were few limitations on what one was
+allowed to do with the content itself.
No doubt it would be difficult to calculate the proper measure of
@@ -14463,41 +14301,37 @@ sharing, to the extent actual harm is demonstrated.
-But what if "piracy" doesn't disappear? What if there is a
- competitive
+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
consumers continue to "take" content for nothing? Should the law do
something then?
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.
+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.
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 ways to break the Internet. Our focus until we're there
+subset of type A sharers. And our focus until we're there should not
+be on finding ways to break the Internet. Our focus until we're there
-should be on how to make sure the artists are paid, while protecting the
-space for innovation and creativity that the Internet is.
+should be on how to make sure the artists are paid, while protecting
+the space for innovation and creativity that the Internet is.
-
+
-
+5. Fire Lots of Lawyers
I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
@@ -14507,27 +14341,24 @@ ideals at the end that I would love to live.
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 our profession has become too attuned to the client. And
-in a world where the rich clients have one strong view, the
- unwillingness
-of the profession to question or counter that one strong view queers
-the law.
-
-
-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 precisely the positions of some of the most moderate and
-significant figures in the history of this branch of the law. Many, for
- example,
-thought crazy the challenge that we brought to the Copyright
-Term Extension Act. Yet just thirty years ago, the dominant scholar
-and practitioner in the field of copyright, Melville Nimmer, thought it
-obvious.
- Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
-Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
+lawyers have played in this debate. The law speaks to ideals, but it
+is my view that our profession has become too attuned to the
+client. And in a world where the rich clients have one strong view,
+the unwillingness of the profession to question or counter that one
+strong view queers the law.
+
+
+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 precisely the positions of some of the most moderate
+and significant figures in the history of this branch of the
+law. Many, for example, thought crazy the challenge that we brought to
+the Copyright Term Extension Act. Yet just thirty years ago, the
+dominant scholar and practitioner in the field of copyright, Melville
+Nimmer, thought it obvious.
+
+Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
+Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
@@ -14537,53 +14368,51 @@ debate is not just about a professional bias. It is more importantly
about our failure to actually reckon the costs of the law.
-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 actually functions, simply assume that the transaction
-costs of the legal system are slight.
- 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
+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 actually functions, simply assume that the transaction costs of
+the legal system are slight.
+
+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
link #86.
-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.
+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.
+Liebowitz, Stan
- They see a system that has been
-around for hundreds of years, and they assume it works the way their
-elementary school civics class taught them it works.
+They see a system that has been around for hundreds of years, and they
+assume it works the way their elementary school civics class taught
+them it works.
-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 corrupt. I don't think our legal system (at the federal level, at
-least) is at all corrupt. I mean simply because the costs of our legal
- system
-are so astonishingly high that justice can practically never be done.
+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 corrupt. I don't think our legal system (at the federal
+level, at least) is at all corrupt. I mean simply because the costs of
+our legal system are so astonishingly high that justice can
+practically never be done.
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 lawyer spend reading cases carefully, or researching
- obscure
-strands of authority? The answer is the increasing reality: very
- little.
-The law depended upon the careful articulation and development
-of doctrine, but the careful articulation and development of legal
- doctrine
-depends upon careful work. Yet that careful work costs too much,
-except in the most high-profile and costly cases.
+should such a lawyer spend reading cases carefully, or researching
+obscure strands of authority? The answer is the increasing reality:
+very little. The law depended upon the careful articulation and
+development of doctrine, but the careful articulation and development
+of legal doctrine depends upon careful work. Yet that careful work
+costs too much, except in the most high-profile and costly cases.
The costliness and clumsiness and randomness of this system mock
@@ -14594,23 +14423,19 @@ top 1 percent of the clients. It could be made radically more efficient,
and inexpensive, and hence radically more just.
-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 law will too often do if too much of our culture is left
-to its review.
+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 law will too often do if too much of our culture is left to
+its review.
-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 the amazing things your community could facilitate with
-digital technology—a wiki, a barn raising, activism to change
- something.
-Think about all those creative things, and then imagine cold
-molasses poured onto the machines. This is what any regime that
- requires
-permission produces. Again, this is the reality of Brezhnev's
-Russia.
+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 the amazing things your community could facilitate with digital
+technology—a wiki, a barn raising, activism to change something.
+Think about all those creative things, and then imagine cold molasses
+poured onto the machines. This is what any regime that requires
+permission produces. Again, this is the reality of Brezhnev's Russia.
The law should regulate in certain areas of culture—but it should
@@ -14627,21 +14452,22 @@ needed. Show me how it does good. And until you can show me both,
keep your lawyers away.
-
-
+
+
NOTES
-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 unstable. I
-have tried to remedy the instability by redirecting readers to the original source
-through the Web site associated with this book. For each link below, you can go to
-http://free-culture.cc/notes and locate the original source by clicking on the
-number after the # sign. If the original link remains alive, you will be redirected to
-that link. If the original link has disappeared, you will be redirected to an
- appropriate
-reference for the material.
+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 unstable. I have tried to remedy the instability by redirecting
+readers to the original source through the Web site associated with
+this book. For each link below, you can go to
+http://free-culture.cc/notes and locate the original source by
+clicking on the number after the # sign. If the original link remains
+alive, you will be redirected to that link. If the original link has
+disappeared, you will be redirected to an appropriate reference for
+the material.
@@ -14656,17 +14482,16 @@ to him that this book is dedicated.
I received guidance in various places from friends and academics,
-including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard
-Posner, Mark Rose, and Kathleen Sullivan. And I received correction
-and guidance from many amazing students at Stanford Law School
-and Stanford University. They included Andrew B. Coan, John Eden,
-James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert
- Hallman,
-Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum,
-Alina Ng, and Erica Platt. I am particularly grateful to Catherine
-Crump and Harry Surden, who helped direct their research, and to
-Laura Lynch, who brilliantly managed the army that they assembled,
-and provided her own critical eye on much of this.
+including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
+Mark Rose, and Kathleen Sullivan. And I received correction and
+guidance from many amazing students at Stanford Law School and
+Stanford University. They included Andrew B. Coan, John Eden, James
+P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
+Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
+Erica Platt. I am particularly grateful to Catherine Crump and Harry
+Surden, who helped direct their research, and to Laura Lynch, who
+brilliantly managed the army that they assembled, and provided her own
+critical eye on much of this.
Yuko Noguchi helped me to understand the laws of Japan as well as
@@ -14680,43 +14505,42 @@ chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
Yamagami for their generous help while I was there.
-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 advice and correction from many whom I have never even
-met. Among those who have responded with extremely helpful advice
-to requests on my blog about the book are Dr. Mohammad Al-Ubaydli,
-David Gerstein, and Peter DiMauro, as well as a long list of those who
-had specific ideas about ways to develop my argument. They included
-Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob
-Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy
-Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James
- Lindenschmidt,
-K. L. Mann, Mark Manning, Nora McCauley, Jeffrey
-McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D.
-Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack,
-Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina,
-Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger
-Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have
-missed anyone; with computers come glitches, and a crash of my
-e-mail system meant I lost a bunch of great replies.)
-
-
-Richard Stallman and Michael Carroll each read the whole book
-in draft, and each provided extremely helpful correction and advice.
-Michael helped me to see more clearly the significance of the
- regulation
-of derivitive works. And Richard corrected an embarrassingly large
-number of errors. While my work is in part inspired by Stallman's, he
-does not agree with me in important places throughout this book.
-
-
-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 always been right. This slow learner is, as ever, grateful for
-her perpetual patience and love.
+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 advice and correction from many whom I have never even
+met. Among those who have responded with extremely helpful advice to
+requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
+Gerstein, and Peter DiMauro, as well as a long list of those who had
+specific ideas about ways to develop my argument. They included
+Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
+Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
+Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
+K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
+McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
+Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
+Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
+Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
+and Richard Yanco. (I apologize if I have missed anyone; with
+computers come glitches, and a crash of my e-mail system meant I lost
+a bunch of great replies.)
+
+
+Richard Stallman and Michael Carroll each read the whole book in
+draft, and each provided extremely helpful correction and advice.
+Michael helped me to see more clearly the significance of the
+regulation of derivitive works. And Richard corrected an
+embarrassingly large number of errors. While my work is in part
+inspired by Stallman's, he does not agree with me in important places
+throughout this book.
+
+
+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 always been right. This slow learner is, as ever,
+grateful for her perpetual patience and love.
+