ABOUT THE AUTHOR

-LAWRENCE LESSIG +This book is licensed under a Creative Commons license. This license +permits non-commercial use of this work, so long as attribution is +given. For more information about the license visit +http://creativecommons.org/licenses/by-nc/1.0/. +

About the author

+Lawrence Lessig (http://www.lessig.org), -professor of law and a John A. Wilson Distinguished Faculty Scholar -at Stanford Law School, is founder of the Stanford Center for Internet +professor of law and a Roy L. Furman Professor of Law and Leadership +at Harvard Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons (http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And @@ -19,35 +18,35 @@ Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, -twice listed in BusinessWeek's «e.biz 25,» and named one of Scientific -American's «50 visionaries.» A graduate of the University of -Pennsylvania, Cambridge University, and Yale Law School, Lessig -clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of -Appeals. +twice listed in BusinessWeek's «e.biz 25,» and named one +of Scientific American's «50 visionaries.» A graduate of +the University of Pennsylvania, Cambridge University, and Yale Law +School, Lessig clerked for Judge Richard Posner of the U.S. Seventh +Circuit Court of Appeals.

^[1] David Pogue, «Don't Just Chat, Do Something,» New York Times, 30 January 2000. -

^[2] +

^[2] Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002). -

^[3] William Safire, +

^[3] William Safire, «The Great Media Gulp,» New York Times, 22 May 2003. - -

^[4] +

^[4] St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18. -

^[5] +

^[5] 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 @@ -644,25 +643,25 @@ 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. - - -

^[6] + + +

^[6] Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209. -

^[7] See «Saints: The Heroes and Geniuses of the +

^[7] See «Saints: The Heroes and Geniuses of the Electronic Era,» First Electronic Church of America, at www.webstationone.com/fecha, available at link #1. -

^[8]Lessing, 226. -

^[9] +

^[8]Lessing, 226. +

^[9] Lessing, 256. -

^[10] +

^[10] 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. -

^[11] +

^[11] This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. State copyright law historically protected not just the commercial interest in @@ -671,20 +670,20 @@ 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. - -

^[12] + +

^[12] See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13. - -

^[13] + +

^[13] 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. -

^[14] +

^[14] Neil W. Netanel, «Copyright and a Democratic Civil Society,» Yale Law Journal 106 (1996): 283. - -

Part I. «PIRACY»

+ +

^[15] +

^[15] Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). -

^[16] +

^[16] See Rochelle Dreyfuss, «Expressive Genericity: Trademarks as Language in the Pepsi Generation,» Notre Dame Law Review 65 (1990): 397. -

^[17] +

^[17] Lisa Bannon, «The Birds May Sing, but Campers Can't Unless They Pay 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. - -

^[18] + +

^[18] In The Rise of the Creative Class (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of @@ -816,9 +815,9 @@ 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. - - -

Chapter 1. CHAPTER ONE: Creators

+ + +

^[19] +

^[19] Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons (New York: Penguin Books, 1987), 34–35. -

^[20] +

^[20] I am grateful to David Gerstein and his careful history, described at link #4. @@ -1180,12 +1179,12 @@ Simpleton (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. -

^[21] +

^[21] He was also a fan of the public domain. See Chris Sprigman, «The Mouse that Ate the Public Domain,» Findlaw, 5 March 2002, at link #5. -

^[22] +

^[22] Until 1976, copyright law granted an author the possibility of two terms: an initial term and a renewal term. I have calculated the «average» term by @@ -1197,11 +1196,11 @@ average term is 32.2 years. For the renewal data and other relevant data, see the Web site associated with this book, available at link #6. -

^[23] +

^[23] For an excellent history, see Scott McCloud, Reinventing Comics (New York: Perennial, 2000). -

^[24] +

^[24] See Salil K. Mehra, «Copyright and Comics in Japan: Does Law Explain Why All the Comics My Kid Watches Are Japanese Imports?» Rutgers Law @@ -1211,9 +1210,9 @@ legal actions for infringement. One hypothesis is that all manga artists may be better off collectively if they set aside their individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved.» -

^[25] +

^[25] - + 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 @@ -1221,7 +1220,7 @@ University Press, 2001). See also Lawrence Lessig, The Fut describes a set of «property» rights — copyright, patents, trademark, and trade-secret — but the nature of those rights is very different. -

Chapter 2. CHAPTER TWO: «Mere Copyists»

For $25, anyone could make pictures. The camera came preloaded with film, and when it had been used, the camera was returned to an Eastman factory, where the film was developed. Over time, of course, @@ -1276,9 +1275,9 @@ popular photography. Eastman's camera first went on sale in 1888; one year later, Kodak was printing more than six thousand negatives a day. From 1888 through 1909, while industrial production was rising by 4.7 percent, photographic equipment and material sales increased by 11 -percent.^[28] Eastman Kodak's sales during the same period experienced -an average annual increase of over 17 percent.^[29] -

+percent.^[28] Eastman Kodak's sales during the same period experienced +an average annual increase of over 17 percent.^[29] +

The real significance of Eastman's invention, however, was not @@ -1290,8 +1289,8 @@ first time the snapshot album provided the man on the street with a permanent record of his family and its activities. … For the first time in history there exists an authentic visual record of the appearance and activities of the common man made without [literary] -interpretation or bias.»^[30] -

In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a technology of expression, of course. But it took years of training before they could @@ -1303,7 +1302,7 @@ how best to frame a picture and you get a sense of the experience of creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before. -

What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also important was the legal environment within which Eastman's invention grew. For early in @@ -1311,8 +1310,8 @@ the history of photography, there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image -he wanted. Their answer was no.^[31] -

The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was «taking» something from the person or building whose photograph he shot—pirating something of @@ -1322,16 +1321,16 @@ draw Mickey, so, too, should these photographers not be free to take images that they thought valuable. -

On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should have the right to capture at least those images that stand in public view. (Louis Brandeis, who would become a Supreme Court Justice, thought -the rule should be different for images from private spaces.^[32]) It may be that this means that the photographer +the rule should be different for images from private spaces.^[32]) It may be that this means that the photographer gets something for nothing. Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source. -

Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no permission would be required before an image could be captured and @@ -1340,8 +1339,8 @@ default. (The law would eventually craft an exception for famous people: commercial photographers who snap pictures of famous people for commercial purposes have more restrictions than the rest of us. But in the ordinary case, the image can be captured without -clearing the rights to do the capturing.^[33]) -

We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the photographer, then the photographer would have had to demonstrate @@ -1355,7 +1354,7 @@ from the imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission. -

But though we could imagine this system of permission, it would be @@ -1369,7 +1368,7 @@ photography to ordinary people would not have occurred. Nothing like that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been realized. -

If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses painted over with colorful and striking images, and the logo @@ -1389,27 +1388,27 @@ These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has fallen dramatically. As one analyst puts it, «Five years ago, a good real-time digital video editing system cost $25,000. Today you can get -professional quality for $595.»^[34] +professional quality for $595.»^[34] 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 deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it.» -

This may seem like an odd way to think about «literacy.» For most people, literacy is about reading and writing. Faulkner and Hemingway and noticing split infinitives are the things that «literate» people know about. -

Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 -commercials generally,^[35] +commercials generally,^[35] 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 @@ -1424,14 +1423,14 @@ language to be understandable—few of us have any real sense of how difficult media is. Or more fundamentally, few of us have a sense of how media works, how it holds an audience or leads it through a story, how it triggers emotion or builds suspense. -

It took filmmaking a generation before it could do these things well. But even then, the knowledge was in the filming, not in writing about the film. The skill came from experiencing the making of a film, not from reading a book about it. One learns to write by writing and then reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. -

This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern California's Annenberg Center for Communication and dean of the @@ -1439,7 +1438,7 @@ 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.»^[36] +texture.»^[36] But as computers open up an interactive space where a story is «played» as well as experienced, that grammar changes. The simple control of narrative is lost, and so other techniques are necessary. Author @@ -1447,8 +1446,8 @@ Michael Crichton had mastered the narrative of science fiction. But when he tried to design a computer game based on one of his works, it was a new craft he had to learn. How to lead people through a game without their feeling they have been led was not obvious, even -to a wildly successful author.^[37] -

This skill is precisely the craft a filmmaker learns. As Daley describes, «people are very surprised about how they are led through a film. [I]t is perfectly constructed to keep you from seeing it, so you @@ -1478,8 +1477,8 @@ literacy, and this literacy in particular, is to «empower people to choose the appropriate language for what they need to create or -express.»^[38] It is to enable students «to communicate in the -language of the twenty-first century.»^[39] +express.»^[38] It is to enable students «to communicate in the +language of the twenty-first century.»^[39]

As with any language, this language comes more easily to some than to others. It doesn't necessarily come more easily to those who excel in @@ -1491,7 +1490,7 @@ school. In all the traditional measures of success, this school was a failure. But Daley and Barish ran a program that gave kids an opportunity to use film to express meaning about something the students know something about—gun violence. -

The class was held on Friday afternoons, and it created a relatively new problem for the school. While the challenge in most classes was getting the kids to come, the challenge in this class was keeping them @@ -1514,7 +1513,7 @@ because expressing themselves in text is not something these students can do well. Yet neither is text a form in which these ideas can be expressed well. The power of this message depended upon its connection to this form of expression. -

«But isn't education about teaching kids to write?» I asked. In part, @@ -1543,7 +1542,7 @@ camera and … saying, make a little movie.» But instead, really help you take these elements that you understand, that are your language, and construct meaning about the topic.… -

That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they bump up against the fact, «I need to explain this and I really need @@ -1556,7 +1555,7 @@ your hoops. They actually needed to use a language that they didn't speak very well. But they had come to understand that they had a lot of power with this language. -

When two planes crashed into the World Trade Center, another into the Pentagon, and a fourth into a Pennsylvania field, all media around the world shifted to this @@ -1574,7 +1573,7 @@ the screen. There was a formula to interviews. There was and seriousness. This was news choreographed in the way we have increasingly come to expect it, «news as entertainment,» even if the entertainment is tragedy. -

But in addition to this produced news about the «tragedy of September 11,» those of us tied to the Internet came to see a very different production as well. The Internet was filled with accounts of the same @@ -1587,7 +1586,7 @@ extraordinary worldwide barn raising, in the sense Mike Godwin uses the term in his book Cyber Rights, around a news event that had captured the attention of the world. There was ABC and CBS, but there was also the Internet. -

I don't mean simply to praise the Internet—though I do think the people who supported this form of speech should be praised. I mean instead to point to a significance in this form of speech. For like a @@ -1604,7 +1603,7 @@ tradition—not just that culture can be captured mechanically, and obviously not just that events are commented upon critically, but that this mix of captured images, sound, and commentary can be widely spread practically instantaneously. -

September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that has grown dramatically was just beginning to come into public consciousness: the Web-log, or @@ -1612,7 +1611,7 @@ blog. The blog is a kind of public diary, and within some cultures, such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way—it's a kind of electronic Jerry Springer, available anywhere in the world. -

But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about their private life. But there are many who use the space to engage in @@ -1635,7 +1634,7 @@ people vote in those elections. The cycle of these elections has become totally professionalized and routinized. Most of us think this is democracy. -

But democracy has never just been about elections. Democracy means rule by the people, but rule means something more than mere elections. In our tradition, it also means control through reasoned @@ -1649,11 +1648,11 @@ jury didn't just vote about the outcome they would impose. They deliberated. Members argued about the «right» result; they tried to persuade each other of the «right» result, and in criminal cases at least, they had to agree upon a unanimous result for the process to -come to an end.^[40] -

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.^[41] +are pushing to create just such an institution.^[41] 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. @@ -1663,9 +1662,9 @@ 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.^[42] We say what our friends want to hear, and hear very +isolated, and isolated discourse becomes more extreme.^[42] 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. @@ -1682,12 +1681,12 @@ Indeed, the space is filled with political speech, on both the right and the left. Some of the most popular sites are conservative or libertarian, but there are many of all political stripes. And even blogs that are not political cover political issues when the occasion merits. -

The significance of these blogs is tiny now, though not so tiny. The name Howard Dean may well have faded from the 2004 presidential race but for blogs. Yet even if the number of readers is small, the reading is having an effect. -

One direct effect is on stories that had a different life cycle in the mainstream media. The Trent Lott affair is an example. When Lott «misspoke» at a party for Senator Strom Thurmond, essentially praising @@ -1697,14 +1696,14 @@ 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.^[43] +resign as senate majority leader.^[43]

This different cycle is possible because the same commercial pressures don't exist with blogs as with other ventures. Television and newspapers are commercial entities. They must work to keep attention. If they lose readers, they lose revenue. Like sharks, they must move on. -

But bloggers don't have a similar constraint. They can obsess, they can focus, they can get serious. If a particular blogger writes a particularly interesting story, more and more people link to that @@ -1712,7 +1711,7 @@ story. And as the number of links to a particular story increases, it rises in the ranks of stories. People read what is popular; what is popular has been selected by a very democratic process of peer-generated rankings. -

There's a second way, as well, in which blogs have a different cycle from the mainstream press. As Dave Winer, one of the fathers of this @@ -1722,12 +1721,12 @@ have to take the conflict of interest «An amateur journalist simply doesn't have a conflict of interest, or the conflict of interest is so easily disclosed that you know you can sort of get it out of the way.» -

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.^[44] +its own employees.^[44] 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 @@ -1735,14 +1734,14 @@ 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.^[45] +retell what they had seen.^[45] 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 @@ -1752,7 +1751,7 @@ 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.^[46] +have been told to curtail their blogging.^[46] But it is clear that we are still in transition. «A @@ -1761,7 +1760,7 @@ There is a lot that must mature before this space has its mature effect. And as the inclusion of content in this space is the least infringing use of the Internet (meaning infringing on copyright), Winer said, «we will be the last thing that gets shut down.» -

This speech affects democracy. Winer thinks that happens because «you don't have to work for somebody who controls, [for] a gatekeeper.» That is true. But it affects democracy in another way as well. As @@ -1775,7 +1774,7 @@ The writing of ideas, arguments, and criticism improves democracy. Today there are probably a couple of million blogs where such writing happens. When there are ten million, there will be something extraordinary to report. -

John Seely Brown is the chief scientist of the Xerox Corporation. His work, as his Web site describes it, is «human learning and … the creation of @@ -1829,7 +1828,7 @@ text. 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.» -

Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think! teach: that this tinkering with culture teaches as well @@ -1847,10 +1846,10 @@ 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) +10) has developed a powerful argument in favor of the «right to tinker» as it applies to computer science and to knowledge in -general.^[47] +general.^[47] 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.

@@ -1863,115 +1862,115 @@ evince, 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 opportunity to spread that creativity everywhere. But we're building the law to close down that technology.

«No way to run a culture,» as Brewster Kahle, whom we'll meet in -chapter 9, +chapter 9, quipped to me in a rare moment of despondence. -

^[26] +

^[26] Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112. -

^[27] +

^[27] - + Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. -

^[28] +

^[28] Jenkins, 177. -

^[29] +

^[29] Based on a chart in Jenkins, p. 178. -

^[30] +

^[30] Coe, 58. -

^[31] +

^[31] 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). -

^[32] +

^[32] Samuel D. Warren and Louis D. Brandeis, «The Right to Privacy,» Harvard Law Review 4 (1890): 193. - - -

^[33] + + +

^[33] 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). -

^[34] +

^[34] H. Edward Goldberg, «Essential Presentation Tools: Hardware and Software You Need to Create Digital Multimedia Presentations,» cadalyst, February 2002, available at link #7. -

^[35] +

^[35] 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. -

^[36] +

^[36] Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. - - -

^[37] + + +

^[37] See Scott Steinberg, «Crichton Gets Medieval on PCs,» E!online, 4 November 2000, available at link #8; «Timeline,» 22 November 2000, available at link #9. -

^[38] +

^[38] Interview with Daley and Barish. - -

^[39] + +

^[39] Ibid. -

^[40] +

^[40] See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16. -

^[41] +

^[41] Bruce Ackerman and James Fishkin, «Deliberation Day,» Journal of Political Philosophy 10 (2) (2002): 129. -

^[42] +

^[42] Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), 65–80, 175, 182, 183, 192. -

^[43] +

^[43] Noah Shachtman, «With Incessant Postings, a Pundit Stirs the Pot,» New York Times, 16 January 2003, G5. -

^[44] +

^[44] Telephone interview with David Winer, 16 April 2003. -

^[45] +

^[45] 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. -

^[46] +

^[46] - - - - + + + + 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 @@ -1980,12 +1979,12 @@ 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.») -

^[47] +

^[47] 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. -

Chapter 3. CHAPTER THREE: Catalogs

^[48] +

^[48] Tim Goral, «Recording Industry Goes After Campus P-2-P Networks: Suit Alleges $97.8 Billion in Damages,» Professional Media Group LCC 6 (2003): 5, available at 2003 WL 55179443. -

^[49] +

^[49] 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). -

^[50] +

^[50] Douglas Lichtman makes a related point in «KaZaA and Punishment,» Wall Street Journal, 10 September 2003, A24. -

Chapter 4. CHAPTER FOUR: «Pirates»

4.2. 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. -

At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of @@ -2248,7 +2247,7 @@ their music. In other words, in 1900, if I wanted a copy of Phil Russel's 1899 hit «Happy Mose,» the law said I would have to pay for the right to get a copy of the musical score, and I would also have to pay for the right to perform it publicly. -

But what if I wanted to record «Happy Mose,» using Edison's phonograph or Fourneaux's player piano? Here the law stumbled. It was clear enough that I would have to buy any copy of the musical score that I @@ -2265,42 +2264,42 @@ importantly, it wasn't clear whether I owed the composer anything if I then made copies of those recordings. Because of this gap in the law, then, I could effectively pirate someone else's song without paying its composer anything. -

The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it, - +

Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it. Along come the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for [their] -rights.^[54] -

+rights.^[54] +

The innovators who developed the technology to record other people's works were «sponging upon the toil, the work, the talent, and -genius of American composers,»^[55] +genius of American composers,»^[55] and the «music publishing industry» -was thereby «at the complete mercy of this one pirate.»^[56] +was thereby «at the complete mercy of this one pirate.»^[56] As John Philip Sousa put it, in as direct a way as possible, «When they make money -out of my pieces, I want a share of it.»^[57] -

These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that «it is perfectly demonstrable that the 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.^[58] In any case, the innovators argued, the job of +increased the sales of sheet music.^[58] 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.»^[59] -

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 @@ -2329,7 +2328,7 @@ charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham's work except with permission of Grisham. -

But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording industry through a kind of piracy—by giving recording artists a @@ -2341,8 +2340,8 @@ it otherwise would pay; the public gets access to a much wider range of musical creativity. Indeed, Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of rights holders, and that that power would stifle follow-on -creativity.^[60] -

While the recording industry has been quite coy about this recently, historically it has been quite a supporter of the statutory license for records. As a 1967 report from the House Committee on the Judiciary @@ -2361,15 +2360,15 @@ 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.^[61] -

By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit.

4.3. Radio

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.^[62] +«public performance» of the composer's work.^[62] 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. @@ -2384,7 +2383,7 @@ 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. - +

@@ -2408,14 +2407,14 @@ 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. -

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. -

4.4. Cable TV

Cable TV was also born of a kind of piracy.

When cable entrepreneurs first started wiring communities with cable @@ -2427,30 +2426,30 @@ for what they sold. Cable companies were thus Napsterizing broadcasters' content, but more egregiously than anything Napster ever did— Napster never charged for the content it enabled others to give away. -

Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the practice as a kind of -«unfair and potentially destructive competition.»^[63] +«unfair and potentially destructive competition.»^[63] There may have been a «public interest» in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association of Broadcasters, asked Senator Quentin Burdick during testimony, «Does public -interest dictate that you use somebody else's property?»^[64] +interest dictate that you use somebody else's property?»^[64] As another broadcaster put it,

The extraordinary thing about the CATV business is that it is the only business I know of where the product that is being sold is not -paid for.^[65] +paid for.^[65]

Again, the demand of the copyright holders seemed reasonable enough:

All we are asking for is a very simple thing, that people who now take our property for nothing pay for it. We are trying to stop piracy and I don't think there is any lesser word to describe it. I -think there are harsher words which would fit it.^[66] -

+think there are harsher words which would fit it.^[66] +

These were «free-ride[rs],» Screen Actor's Guild president Charlton Heston said, who were «depriving actors of -compensation.»^[67] +compensation.»^[67]

But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it, @@ -2462,8 +2461,8 @@ 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.^[68] - +how far back they should carry their right to compensation.^[68] +

Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing. @@ -2478,23 +2477,23 @@ 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^[69] +it is increasingly described today^[69] — 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. -

^[51] +

^[51] - + I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, which details Edison's «adventures» with copyright and patent. -

^[52] +

^[52] J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion Picture Producers (Cobblestone Entertainment, 2000) and expanded texts @@ -2507,12 +2506,12 @@ 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. - -

^[53] + +

^[53] Marc Wanamaker, «The First Studios,» The Silents Majority, archived at link #12. -

^[54] +

^[54] To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th @@ -2520,31 +2519,31 @@ Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in Legislative History of the Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). - -

^[55] + +

^[55] To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of Nathan Burkan, attorney for the Music Publishers Association). -

^[56] +

^[56] To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of Nathan Burkan, attorney for the Music Publishers Association). -

^[57] +

^[57] To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). -

^[58] +

^[58] To Amend and Consolidate the Acts Respecting Copyright, 283–84 (statement of Albert Walker, representative of the Auto-Music Perforating Company of New York). -

^[59] +

^[59] To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). -

^[60] +

^[60] Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and @@ -2552,12 +2551,12 @@ H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). -

^[61] +

^[61] 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.

^[62] +this report.

^[62] See 17 United States Code, sections 106 and 110. At the beginning, record companies printed «Not Licensed for Radio Broadcast» and other @@ -2568,40 +2567,40 @@ station. See RCA Manufacturing Co. v. «From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright,» University of Chicago Law Review 70 (2003): 281. - - -

^[63] + + +

^[63] 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). - -

^[64] + +

^[64] Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, general counsel of the National Association of Broadcasters). -

^[65] +

^[65] Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes, general counsel of the Association of Maximum Service Telecasters, Inc.). -

^[66] +

^[66] Copyright Law Revision—CATV, 169 (joint statement of Arthur B. Krim, president of United Artists Corp., and John Sinn, president of United Artists Television, Inc.). -

^[67] +

^[67] Copyright Law Revision—CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). - -

^[68] + +

^[68] Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, acting assistant attorney general). - -

^[69] + +

^[69] See, for example, National Music Publisher's Association, The Engine of Free Expression: Copyright on the Internet—The Myth of Free @@ -2609,7 +2608,7 @@ 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.» -

Chapter 5. Chapter Five: «Piracy»

There is piracy of copyrighted material. Lots of it. This piracy comes in many forms. The most significant is commercial piracy, the unauthorized taking of other @@ -2625,12 +2624,12 @@ 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. -

5.1. Piracy I

+
5.1. Piracy I
All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people's copyrighted content, copy it, and sell it—all without the permission of a copyright owner. The recording industry estimates that it loses about $4.6 billion -every year to physical piracy^[70] +every year to physical piracy^[70] (that works out to one in three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually worldwide to piracy.
@@ -2667,16 +2666,16 @@ similar childhood. If a country is to be treated as a sovereign, however, then its laws are its laws regardless of their source. The international law under which these nations live gives them some opportunities to escape the burden -of intellectual property law.^[71] In my view, more developing nations should take +of intellectual property law.^[71] In my view, more developing nations should take advantage of that opportunity, but when they don't, then their laws should be respected. And under the laws of these nations, this piracy is wrong. -
+
Alternatively, we could try to excuse this piracy by noting that in any case, it does no harm to the industry. The Chinese who get access to American CDs at 50 cents a copy are not people who would have bought those American CDs at $15 a copy. So no one really has any -less money than they otherwise would have had.^[72] +less money than they otherwise would have had.^[72]
This is often true (though I have friends who have purchased many thousands of pirated DVDs who certainly have enough money to pay @@ -2689,7 +2688,7 @@ Noble, it has one less book to sell. By contrast, when you take an MP3 from a computer network, there is not one less CD that can be sold. The physics of piracy of the intangible are different from the physics of piracy of the tangible. -
+
This argument is still very weak. However, although copyright is a property right of a very special sort, it is a property right. Like all property rights, the copyright gives the @@ -2706,7 +2705,7 @@ 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 @@ -2718,14 +2717,14 @@ Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose. -
+
This argument, too, is somewhat true. The addiction strategy is a good one. Many businesses practice it. Some thrive because of it. Law students, for example, are given free access to the two largest legal databases. The companies marketing both hope the students will become so used to their service that they will want to use it and not the other when they become lawyers (and must pay high subscription fees). -
+
Still, the argument is not terribly persuasive. We don't give the alcoholic a defense when he steals his first beer, merely because that will make it more likely that he will buy the next three. Instead, we @@ -2771,29 +2770,29 @@ should push us to find a way to protect artists while enabling this sharing to survive.
5.2. Piracy II
The key to the «piracy» that the law aims to quash is a use that «rob[s] -the author of [his] profit.»^[73] +the author of [his] profit.»^[73] This means we must determine whether and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit.
- - + + Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet -(and, arguably, off the Internet as well^[74]), Shawn Fanning and crew had simply +(and, arguably, off the Internet as well^[74]), Shawn Fanning and crew had simply put together components that had been developed independently.
- - - + + + The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the -system.^[75] +system.^[75] Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It boasts over 100 million members.) These services' systems are different @@ -2801,14 +2800,14 @@ architecturally, though not very different in function: Each enables users to make content available to any number of other users. With a p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends. -
+
According to a number of estimates, a huge proportion of Americans have tasted file-sharing technology. A study by Ipsos-Insight in September 2002 estimated that 60 million Americans had downloaded -music—28 percent of Americans older than 12.^[76] +music—28 percent of Americans older than 12.^[76] 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.^[77] +exchange content in May 2003.^[77] 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 @@ -2825,7 +2824,7 @@ of harm it entails. File sharers share different kinds of content. We can divide these different kinds into four types. -
+
There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna CD is released, rather than buying @@ -2871,7 +2870,7 @@ 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.^[78] +harmful.^[78] 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 @@ -2891,20 +2890,20 @@ 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.»^[79] +technology, the labels fought it.»^[79] The labels claimed that every album taped was an album unsold, and when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer. -
+
Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record turnaround. «In the end,» Cap Gemini concludes, «the `crisis' … was not the fault of the tapers—who did not [stop after MTV came into being]—but had to a large extent resulted from stagnation in musical -innovation at the major labels.»^[80] -
+innovation at the major labels.»^[80] +
But just because the industry was wrong before does not mean it is wrong today. To evaluate the real threat that p2p sharing presents to the industry in particular, and society in general—or at least @@ -2930,19 +2929,19 @@ actually suggest it might be close.
In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 million to 803 million units; revenues fell 6.7 -percent.^[81] +percent.^[81] This confirms a trend over the past few years. The RIAA blames Internet piracy for the trend, though there are many other causes that could account for this drop. SoundScan, for example, reports a more than 20 percent drop in the number of CDs released since 1999. That no doubt accounts for some of the decrease in sales. Rising prices could account for at least some of the loss. «From 1999 to 2001, the average -price of a CD rose 7.2 percent, from $13.04 to $14.19.»^[82] +price of a CD rose 7.2 percent, from $13.04 to $14.19.»^[82] 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.»^[83] +$19.99.»^[83]
@@ -2966,7 +2965,7 @@ 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 @@ -2976,18 +2975,18 @@ One benefit is type C sharing—making available content that is technically still under copyright but is no longer commercially available. This is not a small category of content. There are millions of tracks that are no longer commercially -available.^[84] +available.^[84] 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.^[85] +today.^[85] 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 @@ -2996,7 +2995,7 @@ book and record stores are commercial entities; their owners make money from the content they sell; but as with cable companies before statutory licensing, they don't have to pay the copyright owner for the content they sell. -
+
Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because the person making the content available isn't making money from making the content @@ -3015,7 +3014,7 @@ well be better, it doesn't follow that it would be good to ban used book stores. Or put differently, if you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well? -
+
Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur—the sharing of content that copyright owners want to have shared or for which there is no continuing copyright. This @@ -3031,7 +3030,7 @@ they liked it, they would be more likely to buy it. Doctorow's content is type D content. If sharing networks enable his work to be spread, then both he and society are better off. (Actually, much better off: It is a great book!) -
+
Likewise for work in the public domain: This sharing benefits society with no legal harm to authors at all. If efforts to solve the problem of type A sharing destroy the opportunity for type D sharing, then we @@ -3042,11 +3041,11 @@ understandably says, «How much has society gained from p2p sharing? What are the efficiencies? What is the content that otherwise would be unavailable?» -
+
For unlike the piracy I described in the first section of this chapter, much of the «piracy» that file sharing enables is plainly legal and good. And like the piracy I described in chapter -4, much of +4, much of this piracy is motivated by a new way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the recording industry, and @@ -3069,7 +3068,7 @@ identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements -«down to zero.»^[86] +«down to zero.»^[86]
If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement. There is no way to @@ -3088,7 +3087,7 @@ 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 @@ -3106,7 +3105,7 @@ they rebroadcast, Congress responded by giving broadcasters a right to compensation, but at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the statutory price. -
+
This compromise, like the compromise affecting records and player @@ -3123,7 +3122,7 @@ content for free, then it would have unfairly subsidized cable. Thus Congress chose a path that would assure compensation without giving the past (broadcasters) control over the future (cable). -
+
In the same year that Congress struck this balance, two major producers and distributors of film content filed a lawsuit against another technology, the video tape recorder (VTR, or as we refer to @@ -3135,7 +3134,7 @@ in copyright infringement. Because the device that Sony built had a and shows. Sony was therefore benefiting from the copyright infringement of its customers. It should therefore, Disney and Universal claimed, be partially liable for that infringement. -
+
There was something to Disney's and Universal's claim. Sony did decide to design its machine to make it very simple to record television shows. It could have built the machine to block or inhibit any direct @@ -3149,29 +3148,29 @@ in the face of this obvious preference, Sony could have designed its system to minimize the opportunity for copyright infringement. It did not, and for that, Disney and Universal wanted to hold it responsible for the architecture it chose. -
+
MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs «tapeworms.» He warned, «When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of `tapeworms,' eating away at the very heart and essence of the most precious asset the copyright owner has, his -copyright.»^[87] +copyright.»^[87] «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.»^[88] +and plain common sense.»^[88] Indeed, as surveys would later show, 45 -percent of VCR owners had movie libraries of ten videos or more^[89] +percent of VCR owners had movie libraries of ten videos or more^[89] — a use the Court would later hold was not «fair.» By «allowing VCR owners to copy freely by the means of an exemption from copyright infringement without creating a mechanism to compensate copyright owners,» Valenti testified, Congress would «take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby -profit from its reproduction.»^[90] -
+profit from its reproduction.»^[90] +
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 @@ -3182,8 +3181,8 @@ 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.^[91] - +technology.^[91] +
But the Supreme Court reversed the decision of the Ninth Circuit. @@ -3200,16 +3199,16 @@ for copyrighted materials. Congress has the constitutional and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated -by such new technology.^[92] -
+by such new technology.^[92] +
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: -
CASE WHOSE VALUE WAS «PIRATED» RESPONSE OF THE COURTS RESPONSE OF CONGRESS
Recordings Composers No protection Statutory license
Radio Recording artists N/A Nothing
Cable TV Broadcasters No protection Statutory license
VCR Film creators No protection Nothing
+
CASE WHOSE VALUE WAS «PIRATED» RESPONSE OF THE COURTS RESPONSE OF CONGRESS
Recordings Composers No protection Statutory license
Radio Recording artists N/A Nothing
Cable TV Broadcasters No protection Statutory license
VCR Film creators No protection Nothing
In each case throughout our history, a new technology changed the -way content was distributed.^[93] +way content was distributed.^[93] In each case, throughout our history, that change meant that someone got a «free ride» on someone else's work. @@ -3224,7 +3223,7 @@ the behavior of the technology to benefit from content made before. It balanced the interests at stake. -
+
When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes sense. Was Walt Disney a pirate? Would doujinshi be better if creators @@ -3235,11 +3234,11 @@ Is it really right that building a search engine should expose you to $15 million in damages? Would it have been better if Edison had controlled film? Should every cover band have to hire a lawyer to get permission to record a song? -
+
We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the Supreme Court has stated, copyright «has never accorded the copyright owner complete control -over all possible uses of his work.»^[94] +over all possible uses of his work.»^[94] Instead, the particular uses that the law regulates have been defined by balancing the good that comes from granting an exclusive right against the burdens such an exclusive right creates. And this @@ -3268,7 +3267,7 @@ can be ideally efficient in moving content across a widely diverse network. Left to develop, they could make the network vastly more efficient. Yet these «potential public benefits,» as John Schwartz writes in The New York Times, «could be delayed in the P2P -fight.»^[95] +fight.»^[95]
Yet when anyone begins to talk about «balance,» the copyright warriors raise a different @@ -3284,14 +3283,14 @@ the car thief had a good use for the car before we arrest him? «It is our property,» the warriors insist. «And it should be protected just as any other property is protected.» -

^[70] +

^[70] 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. -
^[71] +
^[71] See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The @@ -3308,9 +3307,9 @@ 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. - - -
^[72] + + +
^[72] For an analysis of the economic impact of copying technology, see Stan Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), @@ -3319,13 +3318,13 @@ 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. - -
^[73] + +
^[73] Bach v. Longman, 98 Eng. Rep. 1274 (1777). -
^[74] +
^[74] - + 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 @@ -3335,8 +3334,8 @@ 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. - -
^[75] + +
^[75] See Carolyn Lochhead, «Silicon Valley Dream, Hollywood Nightmare,» San Francisco Chronicle, 24 September 2002, A1; «Rock 'n' Roll Suicide,» @@ -3344,24 +3343,24 @@ Francisco Chronicle, 24 September 2002, A1; 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. -
^[76] +
^[76] 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. -
^[77] +
^[77] Amy Harmon, «Industry Offers a Carrot in Online Music Fight,» New York Times, 6 June 2003, A1. -
^[78] +
^[78] See Liebowitz, Rethinking the Network Economy, 148–49. - -
^[79] + +
^[79] - + 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 @@ -3373,10 +3372,10 @@ 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.
^[80] +October 1989), 145–56.
^[80] U.S. Congress, Copyright and Home Copying, 4. -
^[81] +
^[81] See Recording Industry Association of America, 2002 Yearend Statistics, available at @@ -3392,15 +3391,15 @@ 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).» -
^[82] +
^[82] Jane Black, «Big Music's Broken Record,» BusinessWeek online, 13 February 2003, available at link #17. - -
^[83] + +
^[83] Ibid. -
^[84] +
^[84] By one estimate, 75 percent of the music released by the major labels is no longer in print. See Online Entertainment and Copyright @@ -3408,9 +3407,9 @@ 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. -
^[85] +
^[85] - + 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 @@ -3421,7 +3420,7 @@ records accounted for $260 million in sales in 2002. See National Association of Recording Merchandisers, «2002 Annual Survey Results,» available at link #20. -
^[86] +
^[86] 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 @@ -3431,31 +3430,31 @@ MHP, available at 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. -
^[87] +
^[87] 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.). -
^[88] +
^[88] Copyright Infringements (Audio and Video Recorders), 475. -
^[89] +
^[89] Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, (C.D. Cal., 1979). -
^[90] +
^[90] Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti). -
^[91] +
^[91] Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir. 1981). -
^[92] +
^[92] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984). -
^[93] +
^[93] These are the most important instances in our history, but there are other cases as well. The technology of digital audio tape (DAT), for example, @@ -3467,17 +3466,17 @@ controlling the technology of DAT. See Audio Home Recording Act of eliminate the opportunity for free riding in the sense I've described. See Lessig, Future, 71. See also Picker, «From Edison to the Broadcast Flag,» University of Chicago Law Review 70 (2003): 293–96. - - -
^[94] + + +
^[94] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984). -
^[95] +
^[95] John Schwartz, «New Economy: The Attack on Peer-to-Peer Software Echoes Past Efforts,» New York Times, 22 September 2003, C3. -

CASE	WHOSE VALUE WAS «PIRATED»	RESPONSE OF THE COURTS	RESPONSE OF CONGRESS
Recordings	Composers	No protection	Statutory license
Radio	Recording artists	N/A	Nothing
Cable TV	Broadcasters	No protection	Statutory license
VCR	Film creators	No protection	Nothing

CASE	WHOSE VALUE WAS «PIRATED»	RESPONSE OF THE COURTS	RESPONSE OF CONGRESS
Recordings	Composers	No protection	Statutory license
Radio	Recording artists	N/A	Nothing
Cable TV	Broadcasters	No protection	Statutory license
VCR	Film creators	No protection	Nothing

Part II. «PROPERTY»

Part II. «Property»

The copyright warriors are right: A @@ -3496,7 +3495,7 @@ when I take the good idea you had to put table in the backyard—by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing I am taking then? -

+
The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The point instead is that @@ -3508,8 +3507,8 @@ might seem weird if I did it every day, and especially weird if you are a woman. Instead, as Thomas Jefferson said (and as is especially true when I copy the way someone else dresses), «He who receives an idea from me, receives instruction himself without lessening mine; as he who -lights his taper at mine, receives light without darkening me.»^[96] -
+lights his taper at mine, receives light without darkening me.»^[96] +
The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that I won't discuss here. Here the law says you can't take my idea or @@ -3520,7 +3519,7 @@ property. But how, and to what extent, and in what form—the details, in other words—matter. To get a good sense of how this practice of turning the intangible into property emerged, we need to place this -«property» in its proper context.^[97] +«property» in its proper context.^[97]
My strategy in doing this will be the same as my strategy in the preceding part. I offer four stories to help put the idea of @@ -3530,12 +3529,12 @@ these stories, the significance of this true statement—«copyright material is property»— will be a bit more clear, and its implications will be revealed as quite different from the implications that the copyright warriors would have us draw. -

^[96] +

^[96] Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333–34. -
^[97] +
^[97] As the legal realists taught American law, all property rights are intangible. A property right is simply a right that an individual has @@ -3544,7 +3543,7 @@ attach to a physical object. The right itself is intangible, even if the object to which it is (metaphorically) attached is tangible. See Adam Mossoff, «What Is Property? Putting the Pieces Back Together,» Arizona Law Review 45 (2003): 373, 429 n. 241. -
Chapter 6. CHAPTER SIX: Founders
+

Chapter 6. Chapter Six: Founders

William Shakespeare wrote Romeo and Juliet in 1595. The play was first published in 1597. It was the eleventh major play that Shakespeare had @@ -3555,12 +3554,12 @@ into our culture that we often don't even recognize their source. I once overheard someone commenting on Kenneth Branagh's adaptation of Henry V: «I liked it, but Shakespeare is so full of clichés.» -
+
In 1774, almost 180 years after Romeo and Juliet was written, the «copy-right» for the work was still thought by many to be the exclusive -right of a single London publisher, Jacob Tonson.^[98] +right of a single London publisher, Jacob Tonson.^[98] Tonson was the most prominent of a small group of publishers called -the Conger^[99] +the Conger^[99] who controlled bookselling in England during the eighteenth century. The Conger claimed a perpetual right to control the «copy» of books that they had acquired from authors. That perpetual right meant @@ -3569,7 +3568,7 @@ that no one else could publish copies of a book to which they held the copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated. -
+
Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the history of copyright is 1710, the year that the British Parliament @@ -3577,10 +3576,10 @@ adopted the first act stated that all published works would get a copyright term of fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one -additional years.^[100] Under this law, Romeo and Juliet should have been +additional years.^[100] Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? -
+
The reason is that the English hadn't yet agreed on what a «copyright» was—indeed, no one had. At the time the English passed the Statute of Anne, there was no other legislation governing copyrights. @@ -3590,7 +3589,7 @@ as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said that the publishers, or «Stationers,» had an exclusive right to print books. -
+
There was no positive law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to both the words of legislatures and the words of judges to know the @@ -3601,7 +3600,7 @@ legislatures legislate; the legislature, ordinarily, can trump that background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law. -
+
This question was important to the publishers, or «booksellers,» as they were called, because there was growing competition from foreign publishers. The Scottish, in particular, were increasingly publishing @@ -3620,12 +3619,12 @@ bookseller that right for a limited term. At the end of that term, the copyright «expired,» and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed. -
+
Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right at all? -
+
For the booksellers, and the authors whom they represented, had a very strong claim. Take Romeo and Juliet as an example: That play was written by Shakespeare. It was his genius that brought it into the @@ -3635,12 +3634,12 @@ this play, he didn't make it any harder for others to craft a play. So why is it that the law would ever allow someone else to come along and take Shakespeare's play without his, or his estate's, permission? What reason is there to allow someone else to «steal» Shakespeare's work? -
+
The answer comes in two parts. We first need to see something special about the notion of «copyright» that existed at the time of the Statute of Anne. Second, we have to see something important about «booksellers.» -
+
First, about copyright. In the last three hundred years, we have come to apply the concept of «copyright» ever more broadly. But in 1710, it wasn't so much a concept as it was a very particular right. The @@ -3654,7 +3653,7 @@ a work could be used. Today the right inc large collection of restrictions on the freedom of others: It grants the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on. -
+
So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the term was that no one could reprint Shakespeare's work without the @@ -3663,7 +3662,7 @@ anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be allowed to make his films. The «copy-right» was only an exclusive right to print—no less, of course, but also no more. -
+
Even that limited right was viewed with skepticism by the British. They had had a long and ugly experience with «exclusive rights,» especially «exclusive rights» granted by the Crown. The English had @@ -3683,7 +3682,7 @@ sounding convincing when uttering, have it forever.») The state would protect the exclusive right, but only so long as it benefited society. The British saw the harms from specialinterest favors; they passed a law to stop them. -
+
Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers. Booksellers sound quaint and harmless to us. They were not viewed @@ -3696,8 +3695,8 @@ England to guarantee themselves a monopoly profit. The attacks against these monopolists were harsh: Milton described them as «old patentees and monopolizers in the trade of book-selling»; they were «men who do not therefore labour in an honest profession to which learning is -indetted.»^[101] -
+indetted.»^[101] +
Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment was teaching the importance of education and knowledge spread @@ -3735,8 +3734,8 @@ establishing a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to Trade, a Discouragement to Learning, no Benefit to the Authors, but a general Tax on the Publick; and all this only to increase the private Gain of the -Booksellers.^[102] -

+Booksellers.^[102] +

^[98] +

^[98] - - + + Jacob Tonson is typically remembered for his associations with prominent eighteenth-century literary figures, especially John Dryden, and for his handsome «definitive editions» of classic works. In addition to Romeo and @@ -3922,21 +3921,21 @@ Juliet, he published an astonishing array of works that still remain at the heart of the English canon, including collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See Keith Walker, «Jacob Tonson, Bookseller,» American Scholar 61:3 (1992): 424–31. -

^[99] +

^[99] Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968), 151–52. -

^[100] +

^[100] - + As Siva Vaidhyanathan nicely argues, it is erroneous to call this a «copyright law.» See Vaidhyanathan, Copyrights and Copywrongs, 40. -

^[101] +

^[101] Philip Wittenberg, The Protection and Marketing of Literary Property (New York: J. Messner, Inc., 1937), 31. -

^[102] +

^[102] A Letter to a Member of Parliament concerning the Bill now depending in the House of Commons, for making more effectual an Act in the @@ -3945,45 +3944,45 @@ Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618). -

^[103] +

^[103] - - + + Lyman Ray Patterson, «Free Speech, Copyright, and Fair Use,» Vanderbilt Law Review 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37–48. -

^[104] +

^[104] For a compelling account, see David Saunders, Authorship and Copyright (London: Routledge, 1992), 62–69. -

^[105] +

^[105] Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), 92. - -

^[106] + +

^[106] Ibid., 93. -

^[107] +

^[107] - + Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting Borwell). -

^[108] +

^[108] Howard B. Abrams, «The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright,» Wayne Law Review 29 (1983): 1152. -

^[109] +

^[109] Ibid., 1156. -

^[110] +

^[110] Rose, 97. -

^[111] +

^[111] Ibid. -

Chapter 7. CHAPTER SEVEN: Recorders

^[112] +

^[112] 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. -

Chapter 8. CHAPTER EIGHT: Transformers

^[113] +

^[113] 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. - - -

^[114] + + +

^[114] U.S. Department of Commerce Office of Acquisition Management, Seven Steps to Performance-Based Services Acquisition, available at link #22. -

Chapter 9. CHAPTER NINE: Collectors

^[115] +

^[115] - - + + 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. -

^[116] +

^[116] 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. -

^[117] +

^[117] - + Dave Barns, «Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business,» Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, «The First Sale Doctrine in the Era of Digital Networks,» Boston College Law Review 44 (2003): 593 n. 51. -

Chapter 10. CHAPTER TEN: «Property»

To answer this question, we need to get some perspective on the history of these «creative property» rights, and the control that they enabled. Once we see clearly how differently these rights have been @@ -4925,7 +4924,7 @@ Cyberspace, I used a simple model to capture this more general perspective. For any particular right or regulation, this model asks how four different modalities of regulation interact to support or weaken the right or regulation. I represented it with this diagram: -

At the center of this picture is a regulated dot: the individual or group that is the target of regulation, or the holder of a right. (In each case throughout, we can describe this either as regulation or as @@ -4940,8 +4939,8 @@ Web, you can be punished with a $150,000 fine. The fine is an ex post punishment for violating an ex ante rule. It is imposed by the state. - -

Norms are a different kind of constraint. They, too, punish an individual for violating a rule. But the punishment of a norm is imposed by a community, not (or not only) by the state. There may be @@ -4960,7 +4959,7 @@ is to be taken legally; it is norms that say what is appropriately sold. But given a set of norms, and a background of property and contract law, the market imposes a simultaneous constraint upon how an individual or group might behave. -

Finally, and for the moment, perhaps, most mysteriously, «architecture»—the physical world as one finds it—is a constraint on behavior. A fallen bridge might constrain your ability @@ -4974,7 +4973,7 @@ theft, but by nature, by blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint. -

So the first point about these four modalities of regulation is @@ -4989,7 +4988,7 @@ interact. Whether or not there are other constraints (there may well be; my claim is not about comprehensiveness), these four are among the most significant, and any regulator (whether controlling or freeing) must consider how these four in particular interact. -

So, for example, consider the «freedom» to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that say how fast you can drive in particular places at particular @@ -5005,7 +5004,7 @@ same norm wouldn't be as effective in a different town, or at night.

The final point about this simple model should also be fairly clear: While these four modalities are analytically independent, law has a -special role in affecting the three.^[120] +special role in affecting the three.^[120] The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality. Thus, the law might be used to increase taxes on gasoline, so as to increase the incentives to @@ -5017,14 +5016,14 @@ used to require that other laws be more strict—a federal requirement that states decrease the speed limit, for example—so as to decrease the attractiveness of fast driving. -

These constraints can thus change, and they can be changed. To understand the effective protection of liberty or protection of property at any particular moment, we must track these changes over time. A restriction imposed by one modality might be erased by another. A freedom enabled by one modality might be displaced by -another.^[121] -

10.1. Why Hollywood Is Right

+another.^[121] +

10.1. Why Hollywood Is Right

The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress and the courts to defend copyright. This model helps us see why that @@ -5032,7 +5031,7 @@ rallying makes sense.

Let's say this is the picture of copyright's regulation before the Internet: -

Figure 10.3. Copyright's regulation before the Internet.

Figure 10.3.

There is balance between law, norms, market, and architecture. The law limits the ability to copy and share content, by imposing penalties on @@ -5044,14 +5043,14 @@ recognize—kids, for example, taping other kids' records. These uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement. -

Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The happy balance (for the warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet. -

Thus the sense of, and justification for, the warriors' response. Technology has changed, the warriors say, and the effect of this change, when ramified through the market and norms, is that a balance @@ -5060,7 +5059,7 @@ Iraq after the fall of Saddam, but this time no government is justifying the looting that results. -

Figure 10.4. effective state of anarchy after the Internet.

Figure 10.4.

Neither this analysis nor the conclusions that follow are new to the warriors. Indeed, in a «White Paper» prepared by the Commerce Department (one heavily influenced by the copyright warriors) in 1995, @@ -5071,7 +5070,7 @@ strengthen intellectual property law, (2) businesses should adopt innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright. -

This mixed strategy is just what copyright needed—if it was to preserve the particular balance that existed before the change induced by the Internet. And it's just what we should expect the content @@ -5087,21 +5086,21 @@ property (law). Farmers have no hesitation appealing to the government to bail them out when a virus (architecture) devastates their crop. Unions have no hesitation appealing to the government to bail them out when imports (market) wipe out the U.S. steel industry. -

Thus, there's nothing wrong or surprising in the content industry's campaign to protect itself from the harmful consequences of a technological innovation. And I would be the last person to argue that the changing technology of the Internet has not had a profound effect on the content industry's way of doing business, or as John Seely Brown describes it, its «architecture of revenue.» -

But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because technology has weakened a particular way of doing business, it doesn't follow that the government should intervene to support that old way of doing business. Kodak, for example, has lost perhaps as much as 20 percent of their traditional film market to the emerging technologies -of digital cameras.^[122] +of digital cameras.^[122] Does anyone believe the government should ban digital cameras just to support Kodak? Highways have weakened the freight business for @@ -5114,7 +5113,7 @@ may well be that this change has weakened the television advertising market. But does anyone believe we should regulate remotes to reinforce commercial television? (Maybe by limiting them to function only once a second, or to switch to only ten channels within an hour?) -

The obvious answer to these obviously rhetorical questions is no. In a free society, with a free market, supported by free enterprise and free trade, the government's role is not to support one way of doing @@ -5123,7 +5122,7 @@ business against others. Its role is not to pick winners and protect them against loss. If the government did this generally, then we would never have any progress. As Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software patents, «established companies -have an interest in excluding future competitors.»^[123] +have an interest in excluding future competitors.»^[123] And relative to a startup, established companies also have the means. (Think RCA and FM radio.) A world in which competitors with new ideas must fight @@ -5140,7 +5139,7 @@ is the duty of policy makers, in other words, to assure that the changes they create, in response to the request of those hurt by changing technology, are changes that preserve the incentives and opportunities for innovation and change. -

In the context of laws regulating speech—which include, obviously, copyright law—that duty is even stronger. When the industry complaining about changing technologies is asking Congress to @@ -5153,7 +5152,7 @@ shall make no law … abridging the freedom of speech. Congress is being asked to pass laws that would «abridge» the freedom of speech, it should ask— carefully—whether such regulation is justified. -

My argument just now, however, has nothing to do with whether the changes that are being pushed by the copyright warriors are @@ -5173,7 +5172,7 @@ pests. It was also used to increase farm production. No one doubts that killing disease-carrying pests or increasing crop production is a good thing. No one doubts that the work of Müller was important and valuable and probably saved lives, possibly millions. -

But in 1962, Rachel Carson published Silent Spring, which argued that DDT, whatever its primary benefits, was also having unintended environmental consequences. Birds were losing the ability to @@ -5186,10 +5185,10 @@ the problems that were originally attacked. Or more accurately, the problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve. -

It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an «environmentalism» for -culture.^[124] +culture.^[124] His point, and the point I want to develop in the balance of this chapter, is not that the aims of copyright are flawed. Or that authors should not be paid for their work. Or that music should be given away @@ -5202,7 +5201,7 @@ farmers, so, too, is criticism of one particular set of regulations protecting copyright not an endorsement of anarchy or an attack on authors. It is an environment of creativity that we seek, and we should be aware of our actions' effects on the environment. -

My argument, in the balance of this chapter, tries to map exactly this effect. No doubt the technology of the Internet has had a dramatic effect on the ability of copyright owners to protect their content. But @@ -5212,11 +5211,11 @@ the Internet is undergoing just now, the net effect of these changes will not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity. -

In a line: To kill a gnat, we are spraying DDT with consequences for free culture that will be far more devastating than that this gnat will be lost. -

10.2. Beginnings

America copied English copyright law. Actually, we copied and improved English copyright law. Our Constitution makes the purpose of «creative property» rights clear; its express limitations reinforce the English @@ -5237,16 +5236,16 @@ does not say. It does not say Congress has the power to grant to promote progress. The grant of power is its purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors. -

The Progress Clause expressly limits the term of copyrights. As we saw -in chapter 6, +in chapter 6, the English limited the term of copyright so as to assure that a few would not exercise disproportionate control over culture by exercising disproportionate control over publishing. We can assume the framers followed the English for a similar purpose. Indeed, unlike the English, the framers reinforced that objective, by requiring that copyrights extend «to Authors» only. -

The design of the Progress Clause reflects something about the Constitution's design in general. To avoid a problem, the framers built structure. To prevent the concentrated power of publishers, they @@ -5260,37 +5259,37 @@ college, also selected by the states, to select the president. In each case, a structure built checks and balances into the constitutional frame, structured to prevent otherwise inevitable concentrations of power. -

I doubt the framers would recognize the regulation we call «copyright» today. The scope of that regulation is far beyond anything they ever considered. To begin to understand what they did, we need to put our «copyright» in context: We need to see how it has changed in the 210 years since they first struck its design. -

Some of these changes come from the law: some in light of changes in technology, and some in light of changes in technology given a particular concentration of market power. In terms of our model, we started here: -

Figure 10.5. Copyright's regulation before the Internet.

Figure 10.5.

We will end here: -

Figure 10.6. «Copyright» today.

Figure 10.6.

Let me explain how. -

10.3. Law: Duration

When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that the English had confronted in 1774. Many states had passed laws protecting creative property, and some believed that these laws simply supplemented common law rights that already protected creative -authorship.^[125] +authorship.^[125] This meant that there was no guaranteed public domain in the United States in 1790. If copyrights were protected by the common law, then there was no simple way to know whether a work published in the United States was controlled or free. Just as in England, this lingering uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works. -

That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, federal protections for copyrighted works displaced any state law @@ -5303,15 +5302,15 @@ federal copyright and secured that copyright for fourteen years. If the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain. -

While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually registered under the federal copyright regime. Of all the work created in the United States both before 1790 and from 1790 through 1800, 95 percent immediately passed into the public domain; the balance would pass into the pubic domain within twenty-eight years at most, and more -likely within fourteen years.^[126] -

+likely within fourteen years.^[126] +

This system of renewal was a crucial part of the American system of copyright. It assured that the maximum terms of copyright would be @@ -5324,11 +5323,11 @@ Fourteen years may not seem long to us, but for the vast majority of copyright owners at that time, it was long enough: Only a small minority of them renewed their copyright after fourteen years; the balance allowed their work to pass into the public -domain.^[127] -

+domain.^[127] +

Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall -out of print after one year.^[128] When that happens, the +out of print after one year.^[128] When that happens, the used books are traded free of copyright regulation. Thus the books are no longer effectively controlled by copyright. The only practical commercial use of the books at that time @@ -5350,7 +5349,7 @@ extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years. -

The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the public domain will have been tolled for thirty-nine out of fifty-five @@ -5360,7 +5359,7 @@ years, or 70 percent of the time since 1962. Thus, in the twenty years after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term. -

The effect of these extensions has been exacerbated by another, little-noticed change in the copyright law. Remember I said that the framers established a two-part copyright regime, requiring a copyright @@ -5369,7 +5368,7 @@ renewal meant that works that no longer needed copyright protection would pass more quickly into the public domain. The works remaining under protection would be those that had some continuing commercial value. -

The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term—the maximum term. For «natural» authors, that term was life plus fifty @@ -5386,20 +5385,20 @@ even possible to put works into the public domain. The public domain is orphaned by these changes in copyright law. Despite the requirement that terms be «limited,» we have no evidence that anything will limit them. -

The effect of these changes on the average duration of copyright is dramatic. In 1973, more than 85 percent of copyright owners failed to renew their copyright. That meant that the average term of copyright in 1973 was just 32.2 years. Because of the elimination of the renewal requirement, the average term of copyright is now the maximum term. In thirty years, then, the average term has tripled, from 32.2 years to 95 -years.^[129] -

10.4. Law: Scope

+years.^[129] +

10.4. Law: Scope

The «scope» of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. -

In 1790, that scope was very narrow. Copyright covered only «maps, charts, and books.» That means it didn't cover, for example, music or architecture. More significantly, the right granted by a copyright gave @@ -5438,7 +5437,7 @@ famous of the history of American copyright law, there was a requirement that works be deposited with the government before a copyright could be secured. -

The reason for the registration requirement was the sensible understanding that for most works, no copyright was required. Again, in the first ten years of the Republic, 95 percent of works eligible @@ -5451,14 +5450,14 @@ being claimed. The requirement that works be deposited was to assure that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author. -

All of these «formalities» were abolished in the American system when we decided to follow European copyright law. There is no requirement that you register a work to get a copyright; the copyright now is automatic; the copyright exists whether or not you mark your work with a ©; and the copyright exists whether or not you actually make a copy available for others to copy. -

Consider a practical example to understand the scope of these differences.

@@ -5467,7 +5466,7 @@ actually copyrighted that book, then the copyright law protected you against another publisher's taking your book and republishing it without your permission. The aim of the act was to regulate publishers so as to prevent that kind of unfair competition. In 1790, there were -174 publishers in the United States.^[130] +174 publishers in the United States.^[130] The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in the United States—publishers. @@ -5480,7 +5479,7 @@ a play based upon it, or if I translated it or abridged it, none of those activities were regulated by the original copyright act. These creative activities remained free, while the activities of publishers were restrained. -

Today the story is very different: If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, every note to your spouse, every doodle, every @@ -5505,7 +5504,7 @@ copyright holder. The copyright, in other words, is now not just an exclusive right to your writings, but an exclusive right to your writings and a large proportion of the writings inspired by them. -

It is this derivative right that would seem most bizarre to our framers, though it has become second nature to us. Initially, this expansion @@ -5525,7 +5524,7 @@ and selling someone else's work. But whatever that wrong is, transforming someone else's work is a different wrong. Some view transformation as no wrong at all—they believe that our law, as the framers penned it, should -not protect derivative rights at all.^[131] +not protect derivative rights at all.^[131] Whether or not you go that far, it seems plain that whatever wrong is involved is fundamentally different from the wrong of direct piracy. @@ -5533,9 +5532,9 @@ the wrong of direct piracy. Yet copyright law treats these two different wrongs in the same way. I can go to court and get an injunction against your pirating my book. I can go to court and get an injunction against your transformative use -of my book.^[132] +of my book.^[132] These two different uses of my creative work are treated the same. -

This again may seem right to you. If I wrote a book, then why should you be able to write a movie that takes my story and makes money from it without paying me or crediting me? Or if Disney creates a creature @@ -5547,12 +5546,12 @@ These are good arguments, and, in general, my point is not that the derivative right is unjustified. My aim just now is much narrower: simply to make clear that this expansion is a significant change from the rights originally granted. -

10.5. Law and Architecture: Reach

Whereas originally the law regulated only publishers, the change in copyright's scope means that the law today regulates publishers, users, and authors. It regulates them because all three are capable of making -copies, and the core of the regulation of copyright law is copies.^[133] -

+copies, and the core of the regulation of copyright law is copies.^[133] +

«Copies.» That certainly sounds like the obvious thing for copyright law to regulate. But as with Jack @@ -5565,18 +5564,18 @@ reflection, it should be obvious that in the world with the Internet, copies should not be the trigger for copyright law. More precisely, they should not always be the trigger for copyright law. -

This is perhaps the central claim of this book, so let me take this very slowly so that the point is not easily missed. My claim is that the Internet should at least force us to rethink the conditions under which -the law of copyright automatically applies,^[134] +the law of copyright automatically applies,^[134] because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law. -

We can see this point abstractly by beginning with this largely empty circle. -

Figure 10.7. All potential uses of a book.

Figure 10.7.

Think about a book in real space, and imagine this circle to represent all its potential uses. Most of these uses are @@ -5589,17 +5588,17 @@ impose no further conditions on the disposition of the book). If you sleep on the book or use it to hold up a lamp or let your puppy chew it up, those acts are not regulated by copyright law, because those acts do not make a copy. -

Figure 10.8. Examples of unregulated uses of a book.

Figure 10.8.

Obviously, however, some uses of a copyrighted book are regulated by copyright law. Republishing the book, for example, makes a copy. It is therefore regulated by copyright law. Indeed, this particular use stands at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation (see -diagram in Figure 10.9, “Republishing stands at the core of this circle of possible uses of a copyrighted work.”). -

+diagram in figure 10.9). +

Figure 10.9.

Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these «fair uses.» -

Figure 10.9. Republishing stands at the core of this circle of possible uses of a copyrighted work.

These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain unregulated. You are free to quote from this book, even in a review @@ -5608,14 +5607,14 @@ quoting makes a copy. That copy would ordinarily give the copyright owner the exclusive right to say whether the copy is allowed or not, but the law denies the owner any exclusive right over such «fair uses» for public policy (and possibly First Amendment) reasons. -

Figure 10.10. Unregulated copying considered «fair uses.»

Figure 10.11. Uses that before were presumptively unregulated are now presumptively regulated.

Figure 10.10.

In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed «fair» regardless of the copyright owner's views. -

Enter the Internet—a distributed, digital network where every use -of a copyrighted work produces a copy.^[135] +of a copyrighted work produces a copy.^[135] And because of this single, arbitrary feature of the design of a digital network, the scope of category 1 changes dramatically. Uses that before were presumptively unregulated are now presumptively @@ -5626,7 +5625,7 @@ a copy—category 1 gets sucked into category 2. And those who would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift. -

So let's be very specific to make this general point clear. Before the Internet, if you purchased a book and read it ten times, there would be no plausible copyright-related argument that @@ -5648,7 +5647,7 @@ book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner's wish. -

Figure 10.11.

There are some people who think this makes perfect sense. My aim just now is not to argue about whether it makes sense or not. My aim is only to make clear the change. Once you see this point, a few other @@ -5684,7 +5683,7 @@ before the Internet, reading did not trigger the application of copyright law and hence the need for a fair use defense. The right to read was effectively protected before because reading was not regulated. -

This point about fair use is totally ignored, even by advocates for free culture. We have been cornered into arguing that our rights depend upon fair use—never even addressing the earlier question @@ -5693,13 +5692,13 @@ grounded in fair use makes sense when the vast majority of uses are unregulated. But when everything becomes presumptively regulated, then the protections of fair use are not enough. -

The case of Video Pipeline is a good example. Video Pipeline was in the business of making «trailer» advertisements for movies available to video stores. The video stores displayed the trailers as a way to sell videos. Video Pipeline got the trailers from the film distributors, put the trailers on tape, and sold the tapes to the retail stores. -

The company did this for about fifteen years. Then, in 1997, it began to think about the Internet as another way to distribute these previews. The idea was to expand their «selling by sampling» @@ -5707,7 +5706,7 @@ technique by giving on-line stores the same ability to enable «browsing.» Just as in a bookstore you can read a few pages of a book before you buy the book, so, too, you would be able to sample a bit from the movie on-line before you bought it. -

In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet (rather than sending the tapes) to distributors of their videos. Two @@ -5721,7 +5720,7 @@ distribution immediately. Video Pipeline thought it was within their «fair use» rights to distribute the clips as they had. So they filed a lawsuit to ask the court to declare that these rights were in fact their rights. -

Disney countersued—for $100 million in damages. Those damages were predicated upon a claim that Video Pipeline had «willfully infringed» on Disney's copyright. When a court makes a finding of @@ -5738,7 +5737,7 @@ in court was that the stores were allowed to sell the films and they were permitted to list the titles of the films they were selling, but they were not allowed to show clips of the films as a way of selling them without Disney's permission. -

Now, you might think this is a close case, and I think the courts would consider it a close case. My point here is to map the change that gives Disney this power. Before the Internet, Disney couldn't @@ -5751,7 +5750,7 @@ access to this content. Because each use of the Internet produces a copy, use on the Internet becomes subject to the copyright owner's control. The technology expands the scope of effective control, because the technology builds a copy into every transaction. -

No doubt, a potential is not yet an abuse, and so the potential for control is not yet the abuse of control. Barnes & Noble has the @@ -5778,25 +5777,25 @@ The disappearance of unregulated uses would be change enough, but a second important change brought about by the Internet magnifies its significance. This second change does not affect the reach of copyright regulation; it affects how such regulation is enforced. -

In the world before digital technology, it was generally the law that controlled whether and how someone was regulated by copyright law. The law, meaning a court, meaning a judge: In the end, it was a human, trained in the tradition of the law and cognizant of the balances that tradition embraced, who said whether and how the law would restrict your freedom. -

There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of Casablanca. Warner Brothers objected. They wrote a nasty letter to the Marxes, warning them that there would be serious legal consequences if they went forward with their -plan.^[136] +plan.^[136]

This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers «were brothers long before -you were.»^[137] +you were.»^[137] The Marx Brothers therefore owned the word brothers, and if Warner Brothers insisted on trying to control Casablanca, then the Marx @@ -5815,7 +5814,7 @@ copyrighted content. It is code, rather than law, that rules. And the problem with code regulations is that, unlike law, code has no shame. Code would not get the humor of the Marx Brothers. The consequence of that is not at all funny. -

Consider the life of my Adobe eBook Reader.

An e-book is a book delivered in electronic form. An Adobe eBook is @@ -5823,9 +5822,10 @@ not a book that Adobe has published; Adobe simply produces the software that publishers use to deliver e-books. It provides the technology, and the publisher delivers the content by using the technology. -

-In Figure 10.12, “Picture of an old version of Adobe eBook Reader” is a picture of an old version of my -Adobe eBook Reader. +

Figure 10.12.

+In figure +10.12 +is a picture of an old version of my Adobe eBook Reader.

As you can see, I have a small collection of e-books within this e-book library. Some of these books reproduce content that is in the @@ -5838,10 +5838,10 @@ copy of Middlemarch, you'll see a fancy cover, and then a button at the bottom called Permissions. -

Figure 10.12. Picture of an old version of Adobe eBook Reader

If you click on the Permissions button, you'll see a list of the permissions that the publisher purports to grant with this book. -

Figure 10.13. List of the permissions that the publisher purports to grant.

Figure 10.13.

According to my eBook Reader, I have the permission to copy to the clipboard of the computer ten text selections every ten days. (So far, @@ -5849,18 +5849,18 @@ I've copied no text to the clipboard.) I also have the permission to print ten pages from the book every ten days. Lastly, I have the permission to use the Read Aloud button to hear Middlemarch read aloud through the computer. -

Here's the e-book for another work in the public domain (including the translation): Aristotle's Politics. -

Figure 10.14. E-book of Aristotle's «Politics»

Figure 10.14.

According to its permissions, no printing or copying is permitted at all. But fortunately, you can use the Read Aloud button to hear the book. -

Figure 10.15. List of the permissions for Aristotle's «Politics».

Figure 10.15.

Finally (and most embarrassingly), here are the permissions for the original e-book version of my last book, The Future of Ideas: -

Figure 10.16. List of the permissions for «The Future of Ideas».

Figure 10.16.

No copying, no printing, and don't you dare try to listen to this book!

Now, the Adobe eBook Reader calls these controls @@ -5868,7 +5868,7 @@ Now, the Adobe eBook Reader calls these controls you use these works. For works under copyright, the copyright owner certainly does have the power—up to the limits of the copyright law. But for work not under copyright, there is no such copyright -power.^[138] +power.^[138] When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the @@ -5890,7 +5890,7 @@ says that you can't use the Read Aloud button to read my book aloud—it's not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won't read aloud. -

These are controls, not permissions. Imagine a world where the Marx Brothers sold word processing software that, when @@ -5920,8 +5920,7 @@ on the Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful book is in the public domain. Yet when you clicked on Permissions for that book, you got the following report: -

Figure 10.17. List of the permissions for «Alice's Adventures in -Wonderland».

Figure 10.17.

Here was a public domain children's book that you were not allowed to copy, not allowed to lend, not allowed to give, and, as the «permissions» indicated, not allowed to «read aloud»! @@ -5944,14 +5943,14 @@ protection built into an Adobe eBook so that a blind person, say, could use a computer to read the book aloud, would Adobe agree that such a use of an eBook Reader was fair? Adobe didn't answer because the answer, however absurd it might seem, is no. -

The point is not to blame Adobe. Indeed, Adobe is among the most innovative companies developing strategies to balance open access to content with incentives for companies to innovate. But Adobe's technology enables control, and Adobe has an incentive to defend this control. That incentive is understandable, yet what it creates is often crazy. -

To see the point in a particularly absurd context, consider a favorite story of mine that makes the same point.

@@ -5973,7 +5972,7 @@ differently. So to say that aibopet.com was giving information about how to teach the dog to do new tricks is just to say that aibopet.com was giving information to users of the Aibo pet about how to hack their computer «dog» to make it do new tricks (thus, aibohack.com). -

If you're not a programmer or don't know many programmers, the word hack has a particularly unfriendly connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in @@ -5998,7 +5997,7 @@ and offered to the world a bit of code that would enable the Aibo to dance jazz. The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that turned the dog into a more talented creature than Sony had built. -

I've told this story in many contexts, both inside and outside the United States. Once I was asked by a puzzled member of the audience, is it permissible for a dog to dance jazz in the United States? We @@ -6013,7 +6012,7 @@ go on here) to teach your robot dog to dance jazz. Dancing jazz is a completely legal activity. One imagines that the owner of aibopet.com thought, What possible problem could there be with teaching a robot dog to dance? -

Let's put the dog to sleep for a minute, and turn to a pony show— not literally a pony show, but rather a paper that a Princeton academic named Ed Felten prepared for a conference. This Princeton academic @@ -6024,7 +6023,7 @@ brilliance and his coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his ground. He was not about to be bullied into being silent about something he knew very well.

-But Felten's bravery was really tested in April 2001.^[139] +But Felten's bravery was really tested in April 2001.^[139] He and a group of colleagues were working on a paper to be submitted at conference. The paper was intended to describe the weakness in an encryption system being developed by the Secure Digital Music @@ -6072,7 +6071,7 @@ wrote: Your site contains information providing the means to circumvent AIBO-ware's copy protection protocol constituting a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act. -

And though an academic paper describing the weakness in a system of encryption should also be perfectly legal, Felten received a letter from an RIAA lawyer that read: @@ -6110,7 +6109,7 @@ devices that were designed to circumvent copyright protection measures. It was designed to ban those devices, whether or not the use of the copyrighted material made possible by that circumvention would have been a copyright violation. -

Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright protection system for the purpose of enabling the dog to dance jazz. That enablement no doubt involved the use of copyrighted @@ -6128,7 +6127,7 @@ copyright protection system could be circumvented, the RIAA lawyer suggested, Felten himself was distributing a circumvention technology. Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright. -

The bizarreness of these arguments is captured in a cartoon drawn in 1981 by Paul Conrad. At that time, a court in California had held that the VCR could be banned because it was a copyright-infringing @@ -6137,7 +6136,7 @@ of the copyright owner. No doubt there were uses of the technology that were legal: Fred Rogers, aka «Mr. Rogers,» for example, had testified in that case that he wanted people to feel free to tape Mr. Rogers' Neighborhood. - +

Even though there were uses that were legal, because there were some uses that were illegal, the court held the companies producing the VCR responsible.

-This led Conrad to draw the cartoon below, which we can adopt to -the DMCA. - +This led Conrad to draw the cartoon in figure +10.18, which we can adopt to the +DMCA. +

The anticircumvention provisions of the DMCA target copyright circumvention technologies. Circumvention technologies can be used for different ends. They can be used, for example, to enable massive @@ -6178,14 +6180,14 @@ would agree such a use is bad. Or a handgun can be used for target practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses. -

The obvious point of Conrad's cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do. -

The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright owners restrict fair use; using the DMCA, they punish those who would @@ -6220,14 +6222,14 @@ For example, imagine you were part of a Star Trek fan gathered every month to share trivia, and maybe to enact a kind of fan fiction about the show. One person would play Spock, another, Captain Kirk. The characters would begin with a plot from a real story, then -simply continue it.^[141] +simply continue it.^[141]

Before the Internet, this was, in effect, a totally unregulated activity. No matter what happened inside your club room, you would never be interfered with by the copyright police. You were free in that space to do as you wished with this part of our culture. You were allowed to build on it as you wished without fear of legal control. -

But if you moved your club onto the Internet, and made it generally available for others to join, the story would be very different. Bots scouring the Net for trademark and copyright infringement would @@ -6279,15 +6281,15 @@ of the media.

Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media -ownership, «five companies control 85 percent of our media sources.»^[142] +ownership, «five companies control 85 percent of our media sources.»^[142] 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.^[143] +U.S. music market.^[143] The «five largest cable companies pipe -programming to 74 percent of the cable subscribers nationwide.»^[144] +programming to 74 percent of the cable subscribers nationwide.»^[144]

The story with radio is even more dramatic. Before deregulation, the nation's largest radio broadcasting conglomerate owned fewer than @@ -6298,7 +6300,7 @@ total number of radio owners dropped by 34 percent. Today, in most markets, the two largest broadcasters control 74 percent of that market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues. -

Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than there were eighty years ago, and ten companies control half of the @@ -6308,7 +6310,7 @@ film revenue. The ten largest cable companies account for 85 percent of all cable revenue. This is a market far from the free press the framers sought to protect. Indeed, it is a market that is quite well protected— by the market. -

Concentration in size alone is one thing. The more invidious change is in the nature of that concentration. As author James Fallows put it in a recent article about Rupert Murdoch, @@ -6322,13 +6324,13 @@ cable channels. And they operate the physical distribution system through which the content reaches the customers. Murdoch's satellite systems now distribute News Corp. content in Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that system will serve -the same function in the United States.^[145] +the same function in the United States.^[145]

The pattern with Murdoch is the pattern of modern media. Not just large companies owning many radio stations, but a few companies owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do: -

Does this concentration matter? Will it affect what is made, or what is distributed? Or is it merely a more efficient way to produce and @@ -6341,7 +6343,7 @@ contrary, I am beginning to change my mind.

Here's a representative story that begins to suggest how this integration may matter. -

In 1969, Norman Lear created a pilot for All in the Family. He took the pilot to ABC. The network didn't like it. It was too edgy, they told Lear. Make it again. Lear made a second pilot, more edgy than the @@ -6351,7 +6353,7 @@ We wanted less edgy, not more. Rather than comply, Lear simply took the show elsewhere. CBS was happy to have the series; ABC could not stop Lear from walking. The copyrights that Lear held assured an independence from network -control.^[146] +control.^[146]

@@ -6371,19 +6373,19 @@ 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.»^[147] +year there was one.»^[147] 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%.»^[148] -

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, @@ -6395,7 +6397,7 @@ 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.^[149] +handful.^[149]

This narrowing has an effect on what is produced. The product of such large and concentrated networks is increasingly homogenous. @@ -6407,18 +6409,18 @@ question without risk of consequence—not necessarily banishment to Siberia, but punishment nonetheless. Independent, critical, different views are quashed. This is not the environment for a democracy. -

Economics itself offers a parallel that explains why this integration affects creativity. Clay Christensen has written about the «Innovator's Dilemma»: the fact that large traditional firms find it rational to ignore 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.^[150] +companies would find it rational to ignore new cultural trends.^[150] Lumbering giants not only don't, but should not, sprint. Yet if the field is only open to the giants, there will be far too little sprinting. - +

I don't think we know enough about the economics of the media market to say with certainty what concentration and integration will @@ -6454,7 +6456,7 @@ 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 @@ -6479,7 +6481,7 @@ Well, obviously, these ads cost lots of money. Assume you raise the money. Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then? -

No. You cannot. Television stations have a general policy of avoiding «controversial» ads. Ads sponsored by the government are deemed uncontroversial; ads disagreeing with the government are @@ -6488,8 +6490,8 @@ 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.^[151] -

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 @@ -6499,7 +6501,7 @@ 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. -

10.8. 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 @@ -6568,7 +6570,7 @@ energy of a nation at the founding—is now a massive regulation of the overall creative process. Law plus technology plus the market now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has -known.^[152] +known.^[152]

This has been a long chapter. Its point can now be briefly stated. @@ -6623,8 +6625,8 @@ 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 +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. @@ -6633,7 +6635,7 @@ 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^[153]) +property rights^[153]) 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 @@ -6642,21 +6644,21 @@ did not control at all the freedom of oth 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 +story of chapter 6). The tradition of «fair use» is animated by a similar concern that is increasingly under strain as the costs of exercising any fair use right become unavoidably high (the -story of chapter 7). Adding +story of chapter 7). Adding statutory rights where markets might stifle innovation is another -familiar limit on the property right that copyright is (chapter 8). And +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 +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. @@ -6672,7 +6674,7 @@ that is copyright has become unbalanced, tilted toward an extreme. The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must check with a lawyer. -

^[118] +

^[118] 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 @@ -6680,7 +6682,7 @@ 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). -

^[119] +

^[119] Lawyers speak of «property» not as an absolute thing, but as a bundle of rights that are sometimes associated with a particular @@ -6689,7 +6691,7 @@ exclusive use, but not the right to drive at 150 miles an hour. For the best effort to connect the ordinary meaning of «property» to «lawyer talk,» see Bruce Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977), 26–27. -

^[120] +

^[120] By describing the way law affects the other three modalities, I don't mean to suggest that the other three don't affect law. Obviously, they @@ -6699,7 +6701,7 @@ other three is more timidly expressed. See Lawrence Lessig, «The New Chicago School,» Journal of Legal Studies, June 1998. -

^[121] +

^[121] Some people object to this way of talking about «liberty.» They object because their focus when considering the constraints that exist at any @@ -6730,11 +6732,11 @@ places easier; 42 United States Code, section conditions changes the liberty of a particular group. The effect of those interventions should be accounted for in order to understand the effective liberty that each of these groups might face. - - - - -

^[122] + + + + +

^[122] See Geoffrey Smith, «Film vs. Digital: Can Kodak Build a Bridge?» BusinessWeek online, 2 August 1999, available at @@ -6743,14 +6745,14 @@ recent analysis of Kodak's place in the market, see Chana R. Schoenberger, «Can Kodak Make Up for Lost Moments?» Forbes.com, 6 October 2003, available at link #24. -

^[123] +

^[123] Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71. -

^[124] +

^[124] See, for example, James Boyle, «A Politics of Intellectual Property: Environmentalism for the Net?» Duke Law Journal 47 (1997): 87. -

^[125] +

^[125] William W. Crosskey, Politics and the Constitution in the History of the United States (London: Cambridge University Press, 1953), vol. 1, @@ -6758,8 +6760,8 @@ the United States (London: Cambridge University Press, 1953), vol. 1, Law of the Land,' the perpetual rights which authors had, or were supposed by some to have, under the Common Law» (emphasis added). - -

^[126] + +

^[126] Although 13,000 titles were published in the United States from 1790 to 1799, only 556 copyright registrations were filed; John Tebbel, A @@ -6774,7 +6776,7 @@ immediately into the public domain. Even those works that were copyrighted fell into the public domain quickly, because the term of copyright was short. The initial term of copyright was fourteen years, with the option of renewal for an additional fourteen years. Copyright -Act of May 31, 1790, §1, 1 stat. 124.

^[127] +Act of May 31, 1790, §1, 1 stat. 124.

^[127] Few copyright holders ever chose to renew their copyrights. For instance, of the 25,006 copyrights registered in 1883, only 894 were @@ -6784,28 +6786,28 @@ rates, see Barbara A. Ringer, 1963), 618. For a more recent and comprehensive analysis, see William M. Landes and Richard A. Posner, «Indefinitely Renewable Copyright,» University of Chicago Law Review 70 (2003): 471, 498–501, and -accompanying figures.

^[128] +accompanying figures.

^[128] -See Ringer, ch. 9, n. 2.

^[129] +See Ringer, ch. 9, n. 2.

^[129] These statistics are understated. Between the years 1910 and 1962 (the first year the renewal term was extended), the average term was never more than thirty-two years, and averaged thirty years. See Landes and Posner, «Indefinitely Renewable Copyright,» loc. cit. -

^[130] +

^[130] See Thomas Bender and David Sampliner, «Poets, Pirates, and the Creation of American Literature,» 29 New York University Journal of International Law and Politics 255 (1997), and James Gilraeth, ed., Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987). -

^[131] +

^[131] Jonathan Zittrain, «The Copyright Cage,» Legal Affairs, July/August 2003, available at link #26. - -

^[132] + +

^[132] Professor Rubenfeld has presented a powerful constitutional argument about the difference that copyright law should draw (from the @@ -6814,8 +6816,8 @@ derivative works. See Jed Rubenfeld, Copyright's Constitutionality,» Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59). - -

^[133] + +

^[133] This is a simplification of the law, but not much of one. The law certainly regulates more than «copies»—a public performance of a @@ -6825,30 +6827,30 @@ per se doesn't make a copy; 17 United States Code, se United States Code, section 112(a). But the presumption under the existing law (which regulates «copies;» 17 United States Code, section 102) is that if there is a copy, there is a right. -

^[134] +

^[134] Thus, my argument is not that in each place that copyright law extends, we should repeal it. It is instead that we should have a good argument for its extending where it does, and should not determine its reach on the basis of arbitrary and automatic changes caused by technology. -

^[135] +

^[135] I don't mean «nature» in the sense that it couldn't be different, but rather that its present instantiation entails a copy. Optical networks need not make copies of content they transmit, and a digital network could be designed to delete anything it copies so that the same number of copies remain. -

^[136] +

^[136] See David Lange, «Recognizing the Public Domain,» Law and Contemporary Problems 44 (1981): 172–73. -

^[137] +

^[137] - + Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. -

^[138] +

^[138] In principle, a contract might impose a requirement on me. I might, for example, buy a book from you that includes a contract that says I @@ -6857,7 +6859,7 @@ times. But that obligation (and the limits for creating that obligation) would come from the contract, not from copyright law, and the obligations of contract would not necessarily pass to anyone who subsequently acquired the book. -

^[139] +

^[139] See Pamela Samuelson, «Anticircumvention Rules: Threat to Science,» Science 293 (2001): 2028; Brendan I. Koerner, «Play Dead: Sony Muzzles @@ -6869,38 +6871,38 @@ May 2001; Janelle Brown, April 2001; Electronic Frontier Foundation, «Frequently Asked Questions about Felten and USENIX v. RIAA Legal Case,» available at link #27. - -

^[140] + +

^[140] - + 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. - -

^[141] + +

^[141] 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. -

^[142] +

^[142] FCC Oversight: Hearing Before the Senate Commerce, Science and Transportation Committee, 108th Cong., 1st sess. (22 May 2003) -(statement of Senator John McCain).

^[143] +(statement of Senator John McCain).

^[143] Lynette Holloway, «Despite a Marketing Blitz, CD Sales Continue to Slide,» New York Times, 23 December 2002. -

^[144] +

^[144] Molly Ivins, «Media Consolidation Must Be Stopped,» Charleston Gazette, 31 May 2003. -

^[145] +

^[145] James Fallows, «The Age of Murdoch,» Atlantic Monthly (September 2003): 89. - -

^[146] + +

^[146] Leonard Hill, «The Axis of Access,» remarks before Weidenbaum Center Forum, «Entertainment Economics: The Movie Industry,» St. Louis, @@ -6908,7 +6910,7 @@ Missouri, 3 April 2003 (transcript of prepared remarks available at link #28; for the Lear story, not included in the prepared remarks, see link #29). -

^[147] +

^[147] NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media Ownership Before the Senate Commerce Committee, 108th Cong., 1st @@ -6918,15 +6920,15 @@ and the Consumer Federation of America), available at quotes Victoria Riskin, president of Writers Guild of America, West, in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003. -

^[148] +

^[148] Ibid. -

^[149] +

^[149] «Barry Diller Takes on Media Deregulation,» Now with Bill Moyers, Bill Moyers, 25 April 2003, edited transcript available at link #31. -

^[150] +

^[150] Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National Bestseller that Changed the Way We Do Business @@ -6937,15 +6939,15 @@ Concepts in Technological Evolution, 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).

^[151] - - - - - - - - +(New York: Currency/Doubleday, 2001).

^[151] + + + + + + + + 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 @@ -6973,25 +6975,25 @@ Fuming After Muni Rejects Ad, available at link #32. The ground was that the criticism was «too controversial.» -

^[152] +

^[152] - + Siva Vaidhyanathan captures a similar point in his «four surrenders» of copyright law in the digital age. See Vaidhyanathan, 159–60. -

^[153] +

^[153] - + 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). -

^[154] +

^[154] 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). -
^[155] +
^[155] - + 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, @@ -7216,9 +7218,9 @@ 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. - - -
^[156] + + +
^[156] WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital Entertainment on the Internet and Other Media: Hearing Before the @@ -7226,7 +7228,7 @@ 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.
Chapter 12. CHAPTER TWELVE: Harms
+Congressional Testimony File.

Chapter 12. Chapter Twelve: Harms

To fight «piracy,» to protect «property,» the content industry has launched a war. Lobbying and lots of campaign contributions have now brought the @@ -7243,12 +7245,12 @@ In my view, it is not. There is no good reason why this time, for the first time, the law should defend the old against the new, just when the power of the property called «intellectual property» is at its greatest in our history. -

+
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. -
+
There will be many consequences of continuing this war. I want to describe just three. All three might be said to be unintended. I am quite @@ -7298,26 +7300,26 @@ to criticize politicians or businesses; sites that gather newspaper articles on remote topics of science or culture. There is a vast amount of creative work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. -
+
That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to proliferate. It is impossible to get a clear sense of what's allowed and what's not, and at the same time, the penalties for crossing the line are astonishingly harsh. The four students who were threatened -by the RIAA (Jesse Jordan of chapter 3 was just one) were threatened with a +by the RIAA (Jesse Jordan of chapter 3 was just one) were threatened with a $98 billion lawsuit for building search engines that permitted songs to be copied. Yet World-Com—which defrauded investors of $11 billion, resulting in a loss to investors in market capitalization of over $200 billion—received a fine of a mere $750 -million.^[157] +million.^[157] 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.^[158] +suffering.^[158] 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? -
+
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 @@ -7334,14 +7336,14 @@ 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.^[159] +States.^[159] In what does their «illegality» consist? In the act of mixing the culture around us with an expression that is 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 +10. 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 @@ -7349,7 +7351,7 @@ courts to order Internet service providers to reveal who has what content. It is as if your cassette tape player transmitted a list of the songs that you played in the privacy of your own home that anyone could tune into for whatever reason they chose. -
+
Never in our history has a painter had to worry about whether his painting infringed on someone else's work; but the modern-day painter, using the tools of Photoshop, sharing content on the Web, @@ -7362,7 +7364,7 @@ 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 +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 @@ -7438,10 +7440,10 @@ good, it doesn't follow that more regulation is better. And both perspectives are constantly attuned to the ways in which regulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow. -
+
This is the single most dramatic effect of the shift in regulatory -strategy that I described in chapter 10. The consequence of this massive +strategy that I described in chapter 10. The consequence of this massive threat of liability tied to the murky boundaries of copyright law is that innovators who want to innovate in this space can safely innovate only if they have the sign-off from last generation's dominant @@ -7449,18 +7451,18 @@ 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 even I (pessimist extraordinaire) would never have predicted. -
+
In 1997, Michael Roberts launched a company called MP3.com. MP3.com was keen to remake the music business. Their goal was not just to facilitate new ways to get access to content. Their goal was also to facilitate new ways to create content. Unlike the major labels, MP3.com offered creators a venue to distribute their creativity, without demanding an exclusive engagement from the creators. -
+
To make this system work, however, MP3.com needed a reliable way to recommend music to its users. The idea behind this alternative was to leverage the revealed preferences of music listeners to recommend new @@ -7485,7 +7487,7 @@ that opportunity existed with or without MP3.com. The aim of the my.mp3.com service was to give users access to their own content, and as a by-product, by seeing the content they already owned, to discover the kind of content the users liked. -
+
To make this system function, however, MP3.com needed to copy 50,000 CDs to a server. (In principle, it could have been the user who uploaded the music, but that would have taken a great deal of time, @@ -7496,7 +7498,7 @@ from those copies to anyone except those who authenticated that they had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought. -
+
Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of the five. Nine months later, a federal judge found @@ -7516,7 +7518,7 @@ should have been obvious that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded. -
+
The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in the press) was to send an unequivocal message to lawyers advising @@ -7526,12 +7528,12 @@ space: It is not just your clients who might suffer if the content industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly. -
+
This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of its development, its cofounder (John Hummer), and general partner -(Hank Barry).^[160] +(Hank Barry).^[160] 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 @@ -7551,8 +7553,8 @@ 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. … ^[161] -

+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,^[165] +Copyright,^[165] overall this history of copyright is not bad. As chapter -10 details, +10 details, when new technologies have come along, Congress has struck a balance to assure that the new is protected from the old. Compulsory, or statutory, licenses have been one part of that strategy. Free use (as @@ -7673,16 +7675,16 @@ the claims of a new technology and the legitimate rights of content creators, both the courts and Congress have imposed legal restrictions that will have the effect of smothering the new to benefit the old.

-The response by the courts has been fairly universal.^[166] +The response by the courts has been fairly universal.^[166] It has been mirrored in the responses threatened and actually implemented by Congress. I won't catalog all of those responses -here.^[167] +here.^[167] 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 +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 @@ -7720,7 +7722,7 @@ audience for Internet radio is the whole world, niche stations could easily develop and market their content to a relatively large number of users worldwide. According to some estimates, more than eighty million users worldwide have tuned in to this new form of radio. -

Internet radio is thus to radio what FM was to AM. It is an @@ -7743,12 +7745,12 @@ restrictive licenses on it. This tyranny was broken only when it became possible for men freely to acquire printing presses and freely to run them. FM in this sense was as great an invention as the printing presses, for it gave radio the opportunity to strike off its -shackles.^[168] +shackles.^[168]

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»^[169] +legislation»^[169] to retard the growth of this competing technology.

Now the very same claim could be made about Internet radio. For @@ -7757,7 +7759,7 @@ Internet radio stations. The only restrictions on Internet radio are those imposed by the law. Copyright law is one such law. So the first question we should ask is, what copyright rules would govern Internet radio? -

But here the power of the lobbyists is reversed. Internet radio is a new industry. The recording artists, on the other hand, have a very @@ -7776,10 +7778,10 @@ This financial burden is not slight. As Harvard law professor William Fisher estimates, if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be -over $1 million a year.^[170] +over $1 million a year.^[170] 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 @@ -7834,7 +7836,7 @@ time zone where the signal was received (user); unique user identifier;

^[157] +

^[157] 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. - -

^[158] + +

^[158] 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,' @@ -8215,15 +8217,15 @@ and available at link #39. President Bush has continued to urge tort reform in recent months. - -

^[159] + +

^[159] 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. -

^[160] +

^[160] See Joseph Menn, «Universal, EMI Sue Napster Investor,» Los Angeles Times, 23 April 2003. For a parallel argument about the effects on @@ -8232,34 +8234,34 @@ Revolution Will Not Be Digitized, at link #42. See also Jon Healey, «Online Music Services Besieged,» Los Angeles Times, 28 May 2001. -

^[161] +

^[161] 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. - -

^[162] + +

^[162] «Copyright and Digital Media in a Post-Napster World,» GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School (2003), 33–35, available at link #44. -

^[163] +

^[163] GartnerG2, 26–27. -

^[164] +

^[164] See David McGuire, «Tech Execs Square Off Over Piracy,» Newsbytes, February 2002 (Entertainment). -

^[165] +

^[165] Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001). - - -

^[166] + + +

^[166] - + 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 @@ -8273,12 +8275,12 @@ drive). At the district court level, the only exception is found in distributor and any given user's conduct too attenuated to make the distributor liable for contributory or vicarious infringement liability. -

^[167] +

^[167] - - - - + + + + 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 @@ -8293,13 +8295,13 @@ technology in all digital media devices. See GartnerG2, Digital Media in a Post-Napster World,» 27 June 2003, 33–34, available at link #44. -

^[168] +

^[168] Lessing, 239. -

^[169] +

^[169] Ibid., 229. -

^[170] +

^[170] This example was derived from fees set by the original Copyright Arbitration Royalty Panel (CARP) proceedings, and is drawn from an @@ -8318,33 +8320,33 @@ 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.» - - -

^[171] + + +

^[171] Mike Graziano and Lee Rainie, «The Music Downloading Deluge,» Pew Internet and American Life Project (24 April 2001), available at link #46. The Pew Internet and American Life Project reported that 37 million Americans had downloaded music files from the Internet by early 2001. -

^[172] +

^[172] Alex Pham, «The Labels Strike Back: N.Y. Girl Settles RIAA Case,» Los Angeles Times, 10 September 2003, Business. -

^[173] +

^[173] Jeffrey A. Miron and Jeffrey Zwiebel, «Alcohol Consumption During Prohibition,» American Economic Review 81, no. 2 (1991): 242. -

^[174] +

^[174] National Drug Control Policy: Hearing Before the House Government Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John P. Walters, director of National Drug Control Policy). -

^[175] +

^[175] See James Andreoni, Brian Erard, and Jonathon Feinstein, «Tax Compliance,» Journal of Economic Literature 36 (1998): 818 (survey of compliance literature). -

^[176] +

^[176] See Frank Ahrens, «RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,» @@ -8356,12 +8358,12 @@ Graham, 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. -

^[177] +

^[177] See «Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some Methods Used,» CNN.com, available at link #47. -

^[178] +

^[178] See Jeff Adler, «Cambridge: On Campus, Pirates Are Not Penitent,» Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, «Four @@ -8377,7 +8379,7 @@ Trains Antipiracy Guns on Universities, 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. -

^[179] +

^[179] - + There's a parallel here with pornography that is a bit hard to describe, but it's a strong one. One phenomenon that the Internet created was a world of noncommercial pornographers—people who @@ -9782,10 +9785,10 @@ power. The same point could have been made about noncommercial publishers after the advent of the Internet. The Eric Eldreds of the world before the Internet were extremely few. Yet one would think it at least as important to protect the Eldreds of the world as to -protect noncommercial pornographers.

^[180] +protect noncommercial pornographers.

^[180] - - + + The full text is: «Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to @@ -9793,25 +9796,25 @@ strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress,» 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). -

^[181] +

^[181] 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. -

^[182] +

^[182] See Nick Brown, «Fair Use No More?: Copyright in the Information Age,» available at link #49. -

^[183] +

^[183] Alan K. Ota, «Disney in Washington: The Mouse That Roars,» Congressional Quarterly This Week, 8 August 1990, available at link #50. -

^[184] +

^[184] United States v. Lopez, 514 U.S. 549, 564 (1995). -

^[185] +

^[185] United States v. Morrison, 529 U.S. 598 (2000). -

^[186] +

^[186] If it is a principle about enumerated powers, then the principle carries from one enumerated power to another. The animating point in @@ -9822,24 +9825,24 @@ 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. -

^[187] +

^[187] Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), n.10, available at link #51. -

^[188] +

^[188] 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 link #52. -

^[189] +

^[189] See David G. Savage, «High Court Scene of Showdown on Copyright Law,» Los Angeles Times, 6 October 2002; David Streitfeld, «Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking Down Copyright Extension,» Orlando Sentinel Tribune, 9 October 2002. -

^[190] +

^[190] Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, Eldred v. Ashcroft, 537 @@ -9847,20 +9850,20 @@ 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. -

^[191] +

^[191] Jason Schultz, «The Myth of the 1976 Copyright `Chaos' Theory,» 20 December 2002, available at link #54. -

^[192] +

^[192] Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. (2003) (No. 01-618), 19. -

^[193] +

^[193] Dinitia Smith, «Immortal Words, Immortal Royalties? Even Mickey Mouse Joins the Fray,» New York Times, 28 March 1998, B7. -

Chapter 14. CHAPTER FOURTEEN: Eldred II

^[194] +

^[194] - + 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 @@ -10203,7 +10206,7 @@ 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.

Chapter . Conclusion
There are more than 35 million people with the AIDS virus worldwide. Twenty-five million of them live in sub-Saharan Africa. Seventeen million have already died. Seventeen @@ -10223,7 +10226,7 @@ year. Today, some cost $25,000 per year. At these prices, of course, no African nation can afford the drugs for the vast majority of its population: $15,000 is thirty times the per capita gross national product of -Zimbabwe. At these prices, the drugs are totally unavailable.^[195] +Zimbabwe. At these prices, the drugs are totally unavailable.^[195]
These prices are not high because the ingredients of the drugs are @@ -10255,13 +10258,13 @@ another nation's market with the consent of the patent owner. For 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.^[196] -
+permitted within the European Union.^[196] +
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.»^[197] +imports.»^[197] 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 @@ -10276,8 +10279,8 @@ 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.^[198] -
+effect on the treatment of AIDS within South Africa.^[198] +
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 @@ -10306,12 +10309,12 @@ 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.^[199] +about the sanctity of property.^[199] 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 @@ -10348,7 +10351,7 @@ sacred. They adopt a rational strategy in an irrational context, with the unintended consequence that perhaps millions die. And that rational strategy thus becomes framed in terms of this ideal—the sanctity of an idea called «intellectual property.» -
+
So when the common sense of your child confronts you, what will you say? When the common sense of a generation finally revolts against what we have done, how will we justify what we have done? @@ -10364,14 +10367,14 @@ 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 @@ -10397,10 +10400,10 @@ content war was itself a beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans 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.^[200] +Property Organization to cancel a meeting.^[200] 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 @@ -10410,7 +10413,7 @@ 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 chapter -16. It +. 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 @@ -10421,14 +10424,14 @@ 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.» -
+
The aim of the meeting was to consider this wide range of projects from one common perspective: that none of these projects relied upon intellectual property extremism. Instead, in all of them, intellectual property was balanced by agreements to keep access open or to impose limitations on the way in which proprietary claims might be used.
-From the perspective of this book, then, the conference was ideal.^[201] +From the perspective of this book, then, the conference was ideal.^[201] 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 @@ -10462,7 +10465,7 @@ 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 @@ -10472,7 +10475,7 @@ 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 @@ -10482,8 +10485,8 @@ operating system, the most famous bit of 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.^[202] -
+Microsoft's.^[202] +
More important for our purposes, to support «open source and free software» is not to oppose copyright. «Open source and free software» is not software in the public domain. Instead, like Microsoft's @@ -10500,14 +10503,14 @@ software. But that requirement is effective only if copyright governs software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does. -
+
It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and understandable that it would use its lobbyists to get the United States government to oppose it, as well. And indeed, that is just what was reported to have happened. According to Jonathan Krim of the Washington Post, Microsoft's lobbyists succeeded in getting the United -States government to veto the meeting.^[203] +States government to veto the meeting.^[203] And without U.S. backing, the meeting was canceled.
I don't blame Microsoft for doing what it can to advance its own @@ -10516,7 +10519,7 @@ plainly consistent with the law. There was nothing surprising about its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts. -
+
What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting director of international relations for the U.S. Patent and Trademark @@ -10525,9 +10528,9 @@ mission of WIPO, which is to promote intellectual-property rights. She is quoted as saying, «To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.» -
+
These statements are astonishing on a number of levels. -
+
First, they are just flat wrong. As I described, most open source and free software relies fundamentally upon the intellectual property right called «copyright». Without it, restrictions imposed by those @@ -10536,7 +10539,7 @@ of promoting intellectual property rights reveals an extraordinary gap in understanding—the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues. -
+
Second, who ever said that WIPO's exclusive aim was to «promote» intellectual property maximally? As I had been scolded at the preparatory conference of WSIS, WIPO is to consider not only how best @@ -10548,7 +10551,7 @@ uncontested. One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose patent has expired) contrary to the WIPO mission? Does the public domain weaken intellectual property? Would it have been better if the protocols of the Internet had been patented? -
+
Third, even if one believed that the purpose of WIPO was to maximize intellectual property rights, in our tradition, intellectual property rights are held by individuals and corporations. They get to decide @@ -10582,19 +10585,19 @@ not weaken feudalism by liberating people or property within their control to the free market. Feudalism depended upon maximum control and concentration. It fought any freedom that might interfere with that control. -
+
As Peter Drahos and John Braithwaite relate, this is precisely the -choice we are now making about intellectual property.^[204] +choice we are now making about intellectual property.^[204] 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. -
+
When this battle broke, I blogged it. A spirited debate within the comment section ensued. Ms. Boland had a number of supporters who tried to show why her comments made sense. But there was one comment 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 intellectual property rights, @@ -10613,7 +10616,7 @@ criticism was that her comments betrayed a first-year law student's mistake. I have no illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about whether our government should speak the truth or not.) -
+
Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the «goal» of a government should be «to promote the right balance» of @@ -10644,7 +10647,7 @@ 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.
If this is crazy, then let there be more crazies. Soon. -
+
There are moments of hope in this struggle. And moments that surprise. When the FCC was considering relaxing ownership rules, which would thereby further increase the @@ -10691,14 +10694,14 @@ called
If we were Achilles, this would be our heel. This would be the place of our tragedy. -
+
As I write these final words, the news is filled with stories about the RIAA lawsuits against almost -three hundred individuals.^[205] +three hundred individuals.^[205] Eminem has just been sued for «sampling» someone else's -music.^[206] +music.^[206] The story about Bob Dylan «stealing» from a Japanese author has just -finished making the rounds.^[207] +finished making the rounds.^[207] An insider from Hollywood—who insists he must remain anonymous—reports «an amazing conversation with these studio guys. They've got extraordinary [old] content that they'd love to use @@ -10708,14 +10711,14 @@ would take scores of lawyers to clean it first. 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. -
+
Yet on the other side of the Atlantic, the BBC has just announced that it will build a «Creative Archive,» from which British citizens can -download BBC content, and rip, mix, and burn it.^[208] +download BBC content, and rip, mix, and burn it.^[208] 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.^[209] +country.^[209] I've told a dark story. The truth is more mixed. A technology has given us a new freedom. Slowly, some begin to understand that this @@ -10730,7 +10733,7 @@ potential is ever to be realized. -

^[195] +

^[195] Commission on Intellectual Property Rights, «Final Report: Integrating Intellectual Property Rights and Development Policy» (London, 2002), available at @@ -10738,13 +10741,13 @@ available at release issued 9 July 2002, only 230,000 of the 6 million who need drugs in the developing world receive them—and half of them are in Brazil. -
^[196] +
^[196] See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 37. - - -
^[197] + + +
^[197] International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan @@ -10756,12 +10759,12 @@ 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). -
^[198] +
^[198] 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.
^[199] +Organization (Washington, D.C., 2000), 15.
^[199] See Sabin Russell, «New Crusade to Lower AIDS Drug Costs: Africa's Needs at Odds with Firms' Profit Motive,» San Francisco Chronicle, 24 @@ -10777,7 +10780,7 @@ 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. -
^[200] +
^[200] Jonathan Krim, «The Quiet War over Open-Source,» Washington Post, August 2003, E1, available at link #59; William New, «Global Group's @@ -10787,10 +10790,10 @@ Daily, 19 August 2003, available at Opposes `Open Source' Talks at WIPO,» National Journal's Technology Daily, 19 August 2003, available at link #61. -
^[201] +
^[201] I should disclose that I was one of the people who asked WIPO for the meeting. -
^[202] +
^[202] Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with @@ -10807,14 +10810,14 @@ Craig Mundie, Microsoft senior vice president, The Commerc Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. -
^[203] +
^[203] Krim, «The Quiet War over Open-Source,» available at link #64. -
^[204] +
^[204] See Drahos with Braithwaite, Information Feudalism, 210–20. - -
^[205] + +
^[205] John Borland, «RIAA Sues 261 File Swappers,» CNET News.com, September 2003, available at @@ -10830,27 +10833,27 @@ Defendants, «Schoolgirl Settles with RIAA,» Wired News, 10 September 2003, available at link #67. -
^[206] +
^[206] Jon Wiederhorn, «Eminem Gets Sued … by a Little Old Lady,» mtv.com, 17 September 2003, available at link #68. -
^[207] +
^[207] Kenji Hall, Associated Press, «Japanese Book May Be Inspiration for Dylan Songs,» Kansascity.com, 9 July 2003, available at link #69. -
^[208] +
^[208] «BBC Plans to Open Up Its Archive to the Public,» BBC press release, 24 August 2003, available at link #70. -
^[209] +
^[209] «Creative Commons and Brazil,» Creative Commons Weblog, 6 August 2003, available at link #71. -
Chapter 16. AFTERWORD
+
Chapter . Afterword
At least some who have read this @@ -10873,7 +10876,7 @@ having an effect in Washington. We are still a democracy. What people think matters. Not as much as it should, at least when an RCA stands opposed, but still, it matters. And thus, in the second part below, I sketch changes that Congress could make to better secure a free culture. -
16.1. US, NOW
+
1. Us, now
Common sense is with the copyright warriors because the debate so far has been framed at the extremes—as a grand either/or: either property or anarchy, @@ -10912,14 +10915,14 @@ design will increasingly produce an environment where all use of content requires permission. The «cut and paste» world that defines 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. -
16.1.1. Rebuilding Freedoms Previously Presumed: Examples
+
1.1. Rebuilding Freedoms Previously Presumed: Examples
If you step back from the battle I've been describing here, you will recognize this problem from other contexts. Think about privacy. Before the Internet, most of us didn't have to worry much @@ -10932,7 +10935,7 @@ assured. What made it assured?
Well, if we think in terms of the modalities I described in chapter -10, your +10, 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 @@ -10945,7 +10948,7 @@ of privacy. That privacy is guaranteed to us by friction. Not by law (there is no law protecting «privacy» in public places), and in many places, not by norms (snooping and gossip are just fun), but instead, by the costs that friction imposes on anyone who would want to spy. -
+
Enter the Internet, where the cost of tracking browsing in particular has become quite tiny. If you're a customer at Amazon, then as you browse the pages, Amazon collects the data about what you've looked @@ -10954,7 +10957,7 @@ 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. -
+
Amazon, of course, is not the problem. But we might begin to worry about libraries. If you're one of those crazy lefties who thinks that people should have the «right» to browse in a library without the @@ -10963,11 +10966,11 @@ too), then this change in the technology of monitoring might concern you. If it becomes simple to gather and sort who does what in electronic spaces, then the friction-induced privacy of yesterday disappears. -
+
It is this reality that explains the push of many to define «privacy» on the Internet. It is the recognition that technology can remove what friction before gave us that leads many to push for laws to do what -friction did.^[210] +friction did.^[210] 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 @@ -10975,7 +10978,7 @@ that is important here. We must take affirmative steps to secure a kind of freedom that was passively provided before. A change in technology now forces those who believe in privacy to affirmatively act where, before, privacy was given by default. -
+
A similar story could be told about the birth of the free software movement. When computers with software were first made available commercially, the software—both the source code and the @@ -11016,13 +11019,13 @@ The world of free software had been erased by a change in the economics of computing. And as he believed, if he did nothing about it, then the freedom to change and share software would be fundamentally weakened. -
+
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. - - + +
Stallman's technique was to use copyright law to build a world of software that must be kept free. Software licensed under the Free @@ -11040,11 +11043,11 @@ was taken for granted before. Through the affirmative use of licenses that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed. -
+
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. -
+
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 @@ -11059,7 +11062,7 @@ 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 for people to develop new and innovative ways to spread knowledge. @@ -11067,7 +11070,7 @@ 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. -
+
But what if the only way to get access to social and scientific data was through proprietary services? What if no one had the ability to browse this data except by paying for a subscription? @@ -11089,7 +11092,7 @@ 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 restore the freedom that has been lost. The Public Library of Science (PLoS), for example, is a nonprofit corporation dedicated to making @@ -11101,7 +11104,7 @@ 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. -
+
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 @@ -11109,10 +11112,10 @@ 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. -
16.1.2. Rebuilding Free Culture: One Idea
+
1.2. Rebuilding Free Culture: One Idea
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 corporation established in Massachusetts, but with its home at Stanford University. Its aim is to build a layer of @@ -11159,7 +11162,7 @@ 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 @@ -11170,7 +11173,7 @@ 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 @@ -11203,7 +11206,7 @@ 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, @@ -11213,7 +11216,7 @@ 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. -
+
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 @@ -11227,7 +11230,7 @@ art—they, too, sample from others. Because the 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^[211]), +high^[211]), these artists release into the creative environment content that others can build upon, so that their form of creativity might grow.
@@ -11265,7 +11268,7 @@ 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. -
16.2. THEM, SOON
+
2. Them, soon
We will not reclaim a free culture by individual action alone. It will also take important reforms of laws. We have a long way to go before the politicians will listen to @@ -11276,7 +11279,7 @@ In this chapter, I outline five kinds of changes: four that are general, and one that's specific to the most heated battle of the day, music. Each is a step, not an end. But any of these steps would carry us a long way to our end. -
16.2.1. 1. More Formalities
+
2.1. 1. More Formalities
If you buy a house, you have to record the sale in a deed. If you buy land upon which to build a house, you have to record the purchase in a deed. If you buy a car, you get a bill of sale and register the car. If you buy an @@ -11294,7 +11297,7 @@ default is control, and
Why?
-As I suggested in chapter 10, the motivation to abolish formalities was a +As I suggested in chapter 10, 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 @@ -11312,7 +11315,7 @@ 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^[212]—but it +The law should therefore change this requirement^[212]—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. @@ -11324,7 +11327,7 @@ 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. -
16.2.1.1. REGISTRATION AND RENEWAL
+
2.1.1. 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 @@ -11365,7 +11368,7 @@ competition would substantially lower the burden of this formality—while producing a database of registrations that would facilitate the licensing of content. -
16.2.1.2. MARKING
+
2.1.2. 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 @@ -11394,7 +11397,7 @@ 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 -doesn't give permission.^[213] +doesn't give permission.^[213] 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 @@ -11408,7 +11411,7 @@ marked. Here again, the system needs to adjust as the technologies evolve. The best way to ensure that the system evolves is to limit the 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 Copyright Office would hold a hearing, at which other proposals could @@ -11437,7 +11440,7 @@ It would be simple to identify what content is presumptively free; it would be simple to identify who controls the rights for a particular kind of content; it would be simple to assert those rights, and to renew that assertion at the appropriate time. -
16.2.2. 2. Shorter Terms
+
2.2. 2. Shorter Terms
The term of copyright has gone from fourteen years to ninety-five years for corporate authors, and life of the author plus seventy years for natural authors. @@ -11447,7 +11450,7 @@ 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.^[214] +copyright term.^[214] Others have proposed tying the term to the term for patents.
I agree with those who believe that we need a radical change in @@ -11474,7 +11477,7 @@ 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 @@ -11482,7 +11485,7 @@ 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.^[215] +pension.^[215] 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. @@ -11511,7 +11514,7 @@ No doubt the extremists will call these ideas call them «extremists.») But again, the term I recommended was longer than the term under Richard Nixon. How «radical» can it be to ask for a more generous copyright law than Richard Nixon presided over? -
16.2.3. 3. Free Use Vs. Fair Use
+
2.3. 3. Free Use Vs. Fair Use
As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the ground to the heavens. The airplane came along. The scope of property @@ -11526,10 +11529,10 @@ 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.^[216] +control translations and dramatizations of a work.^[216] 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. @@ -11537,7 +11540,7 @@ greatest judges, Judge Benjamin Kaplan. So inured have we become to the extension of the monopoly to a large range of so-called derivative works, that we no longer sense the oddity of accepting such an enlargement of copyright while -yet intoning the abracadabra of idea and expression.^[217] +yet intoning the abracadabra of idea and expression.^[217]

I think it's time to recognize that there are airplanes in this field and the expansiveness of these rights of derivative use no longer make @@ -11555,7 +11558,7 @@ 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. - +

Scope: Likewise should the scope of derivative rights be narrowed. Again, there are some cases in which derivative @@ -11568,7 +11571,7 @@ 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 @@ -11579,7 +11582,7 @@ 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.^[218] +Paul Goldstein.^[218] His view is that the law should be written so that expanded protections follow expanded uses.
@@ -11595,7 +11598,7 @@ 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. -

ISBN	Format / MIME-type
978-82-92812-XX-Y	text/plain
978-82-92812-XX-Y	application/pdf
978-82-92812-XX-Y	text/html
978-82-92812-XX-Y	application/epub+zip
978-82-92812-XX-Y	application/docbook+xml
978-82-92812-XX-Y	application/x-mobipocket-ebook

ISBN	Format / MIME-type
978-82-8067-010-6	Digest size from lulu.com
978-82-8067-011-3	application/pdf
978-82-8067-012-0	application/epub+zip
978-82-8067-013-7	application/x-mobipocket-ebook

Free Culture

HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN - CULTURE AND CONTROL CREATIVITY

Lawrence Lessig

Free Culture

How big media uses technology and the law to lock down + culture and control creativity

Lawrence Lessig

Also by Lawrence Lessig -

PREFACE

Preface

Chapter 0. INTRODUCTION

Chapter . Introduction

Part I. «PIRACY»

Part I. «Piracy»

Chapter 1. CHAPTER ONE: Creators

Chapter 1. Chapter One: Creators

Chapter 2. CHAPTER TWO: «Mere Copyists»

Chapter 2. Chapter Two: «Mere Copyists»

Chapter 3. CHAPTER THREE: Catalogs

Chapter 3. Chapter Three: Catalogs

Chapter 4. CHAPTER FOUR: «Pirates»

Chapter 4. Chapter Four: «Pirates»

4.1. Film

4.2. Recorded Music

4.3. Radio

4.4. Cable TV

4.4. Cable TV

Chapter 5. CHAPTER FIVE: «Piracy»

Chapter 5. Chapter Five: «Piracy»

5.1. Piracy I

5.1. Piracy I

5.2. Piracy II

Part II. «PROPERTY»

Part II. «Property»

Chapter 6. CHAPTER SIX: Founders

Chapter 6. Chapter Six: Founders

Chapter 7. CHAPTER SEVEN: Recorders

Chapter 7. Chapter Seven: Recorders

Chapter 8. CHAPTER EIGHT: Transformers

Chapter 8. Chapter Eight: Transformers

Chapter 9. CHAPTER NINE: Collectors

Chapter 9. Chapter Nine: Collectors

Chapter 10. CHAPTER TEN: «Property»

Chapter 10. Chapter Ten: «Property»

10.1. Why Hollywood Is Right

10.1. Why Hollywood Is Right

10.2. Beginnings

10.2. Beginnings

10.3. Law: Duration

10.3. Law: Duration

10.4. Law: Scope

10.4. Law: Scope

10.5. Law and Architecture: Reach

10.5. Law and Architecture: Reach

10.8. Together

10.8. Together

Part III. PUZZLES

Chapter 11. CHAPTER ELEVEN: Chimera

Part III. Puzzles

Chapter 11. Chapter Eleven: Chimera

Chapter 12. CHAPTER TWELVE: Harms

Chapter 12. Chapter Twelve: Harms

12.3. Corrupting Citizens

12.3. Corrupting Citizens

Part IV. BALANCES

Part IV. Balances

Chapter 13. CHAPTER THIRTEEN: Eldred

Chapter 13. Chapter Thirteen: Eldred

Chapter 14. CHAPTER FOURTEEN: Eldred II

Chapter 14. Chapter Fourteen: Eldred II

Chapter 15. CONCLUSION

Chapter . Conclusion

Chapter 16. AFTERWORD

Chapter . Afterword

16.1. US, NOW

1. Us, now

16.1.1. Rebuilding Freedoms Previously Presumed: Examples

1.1. Rebuilding Freedoms Previously Presumed: Examples

16.1.2. Rebuilding Free Culture: One Idea

1.2. Rebuilding Free Culture: One Idea

16.2. THEM, SOON