X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/cd9160a8d96eb1f62400eb880598f62880e0830e..2e2ddba248d0b77d22dd620f23b867e65f9f1d09:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 84ebe19..1b3668c 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -41,24 +41,38 @@ - + + + + + + + + + + Creative Commons, Some rights reserved + + + + + This version of Free Culture is licensed under a Creative Commons license. This license permits non-commercial use of this work, so long as attribution is given. For more information about the license, click the icon above, or visit http://creativecommons.org/licenses/by-nc/1.0/ - + ABOUT THE AUTHOR LAWRENCE LESSIG -(http://www.lessig.org), +(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 and Society and is chairman of the Creative Commons -(http://creativecommons.org). +(http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier @@ -206,13 +220,6 @@ materials. Your support of the author's rights is appreciated. To Eric Eldred—whose work first drew me to this cause, and for whom it continues still. - - -
-Creative Commons, Some rights reserved - -
- @@ -794,6 +801,7 @@ This rough divide between the free and the controlled has now been erased. See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13. +Litman, Jessica The Internet has set the stage for this erasure and, pushed by big media, the law has now affected it. For the first time in our @@ -1654,7 +1662,9 @@ free culture. It is becoming much less so. CHAPTER TWO: "Mere Copyists" -Daguerre, Louis + + photography + In 1839, Louis Daguerre invented the first practical technology for producing what we would call "photographs." Appropriately enough, they @@ -1663,6 +1673,7 @@ expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) +Daguerre, Louis Yet despite high prices, the demand for daguerreotypes was strong. @@ -1674,6 +1685,7 @@ the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. +Talbot, William Eastman, George @@ -1875,6 +1887,7 @@ doing something with media. By doing, they think. By tinkering, they learn. + These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -2477,7 +2490,8 @@ freedom that technology, and curiosity, would otherwise ensure. These restrictions have become the focus of researchers and scholars. Professor Ed Felten of Princeton (whom we'll see more of in chapter -10) has developed a powerful argument in favor of the "right to +) +has developed a powerful argument in favor of the "right to tinker" as it applies to computer science and to knowledge in general. @@ -2509,7 +2523,8 @@ the law to close down that technology. "No way to run a culture," as Brewster Kahle, whom we'll meet in -chapter 9, quipped to me in a rare moment of despondence. +chapter , +quipped to me in a rare moment of despondence. @@ -3392,6 +3407,12 @@ 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. +GNU/Linux operating system +Linux operating system + +Microsoft +Windows operating system of + Windows @@ -3414,6 +3435,8 @@ means giving the property owner the right to say who gets access to what—at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong. +GNU/Linux operating system +Linux operating system @@ -3481,6 +3504,7 @@ come up with the most creative, paradigm-shifting uses for their own products. This job usually falls to outside innovators, who reassemble existing technology in inventive ways. For a discussion of Christensen's ideas, see Lawrence Lessig, Future, 89–92, 139. + Christensen, Clayton M. ), Shawn Fanning and crew had simply put together components that had been developed independently. @@ -3859,7 +3883,8 @@ unavailable?" For unlike the piracy I described in the first section of this chapter, much of the "piracy" that file sharing enables is plainly -legal and good. And like the piracy I described in chapter 4, much of +legal and good. And like the piracy I described in chapter +, much of this piracy is motivated by a new way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the recording industry, and @@ -4074,7 +4099,7 @@ together, a pattern is clear: -Table +Pattern of Court and Congress response @@ -4366,6 +4391,7 @@ 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. +Licensing Act (1662) There was no positive law, but that didn't mean @@ -6352,12 +6378,13 @@ publishers, nor even primarily the purpose of rewarding authors. The Progress Clause expressly limits the term of copyrights. As we saw -in chapter 6, the English limited the term of copyright so as to -assure that a 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. +in chapter , +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 @@ -7109,13 +7136,20 @@ tradition embraced, who said whether and how the law would restrict your freedom. Casablanca + + Marx Brothers + + + Warner Brothers + 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. +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. See David Lange, "Recognizing the Public Domain," Law and Contemporary Problems 44 (1981): 172–73. @@ -7126,12 +7160,14 @@ This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers "were brothers long before you were." -Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. +Ibid. See also Vaidhyanathan, Copyrights and +Copywrongs, 1–3. Vaidhyanathan, Siva -The Marx Brothers therefore owned the word brothers, -and if Warner Brothers insisted on trying to control Casablanca, then -the Marx Brothers would insist on control over brothers. +The Marx Brothers therefore owned the word +brothers, and if Warner Brothers insisted on +trying to control Casablanca, then the Marx +Brothers would insist on control over brothers. An absurd and hollow threat, of course, because Warner Brothers, @@ -7140,40 +7176,47 @@ silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. -On the Internet, however, there is no check on silly rules, because -on the Internet, increasingly, rules are enforced not by a human but by -a machine: Increasingly, the rules of copyright law, as interpreted by -the copyright owner, get built into the technology that delivers - 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. +On the Internet, however, there is no check on silly rules, because on +the Internet, increasingly, rules are enforced not by a human but by a +machine: Increasingly, the rules of copyright law, as interpreted by +the copyright owner, get built into the technology that delivers +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. + + + + + Adobe eBook Reader + Consider the life of my Adobe eBook Reader. -An e-book is a book delivered in electronic form. An Adobe eBook -is not a book that Adobe has published; Adobe simply produces the -software that publishers use to deliver e-books. It provides the - technology, -and the publisher delivers the content by using the technology. +An e-book is a book delivered in electronic form. An Adobe eBook is +not a book that Adobe has published; Adobe simply produces the +software that publishers use to deliver e-books. It provides the +technology, and the publisher delivers the content by using the +technology. On the next page 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 +As you can see, I have a small collection of e-books within this e-book library. Some of these books reproduce content that is in the -public domain: Middlemarch, for example, is in the public domain. -Some of them reproduce content that is not in the public domain: My -own book The Future of Ideas is not yet within the public domain. -Consider Middlemarch first. If you click on my e-book copy of +public domain: Middlemarch, for example, is in +the public domain. Some of them reproduce content that is not in the +public domain: My own book The Future of Ideas +is not yet within the public domain. Consider +Middlemarch first. If you click on my e-book +copy of -Middlemarch, you'll see a fancy cover, and then a button at the bottom -called Permissions. +Middlemarch, you'll see a fancy cover, and then +a button at the bottom called Permissions.
Picture of an old version of Adobe eBook Reader @@ -7199,6 +7242,8 @@ read aloud through the computer. Here's the e-book for another work in the public domain (including the translation): Aristotle's Politics. +Aristotle +Politics, (Aristotle)
E-book of Aristotle;s "Politics" @@ -7215,7 +7260,8 @@ the book.
Finally (and most embarrassingly), here are the permissions for the -original e-book version of my last book, The Future of Ideas: +original e-book version of my last book, The Future of +Ideas:
@@ -7226,26 +7272,26 @@ original e-book version of my last book, The Future of Ideas -Now, the Adobe eBook Reader calls these controls "permissions"— -as if the publisher has the power to control how you use these works. -For works under copyright, the copyright owner certainly does have -the power—up to the limits of the copyright law. But for work not - under -copyright, there is no such copyright power. +Now, the Adobe eBook Reader calls these controls +"permissions"— as if the publisher has the power to control how +you use these works. For works under copyright, the copyright owner +certainly does have the power—up to the limits of the copyright +law. But for work not under copyright, there is no such copyright +power. -In principle, a contract might impose a requirement on me. I might, for -example, buy a book from you that includes a contract that says I will read -it only three times, or that I promise to read it three 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. +In principle, a contract might impose a requirement on me. I might, +for example, buy a book from you that includes a contract that says I +will read it only three times, or that I promise to read it three +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. -When my e-book of Middlemarch says I have the permission to -copy only ten text selections into the memory every ten days, what -that really means is that the eBook Reader has enabled the publisher -to control how I use the book on my computer, far beyond the control -that the law would enable. +When my e-book of Middlemarch says I have the +permission to copy only ten text selections into the memory every ten +days, what that really means is that the eBook Reader has enabled the +publisher to control how I use the book on my computer, far beyond the +control that the law would enable. The control comes instead from the code—from the technology @@ -7270,6 +7316,7 @@ These are controls, not permissions. Imagine a world where the Marx Brothers sold word processing software that, when you tried to type "Warner Brothers," erased "Brothers" from the sentence. +Marx Brothers This is the future of copyright law: not so much copyright @@ -7282,23 +7329,23 @@ built into the technology have no similar built-in check. How significant is this? Isn't it always possible to get around the -controls built into the technology? Software used to be sold with - technologies -that limited the ability of users to copy the software, but those -were trivial protections to defeat. Why won't it be trivial to defeat these -protections as well? +controls built into the technology? Software used to be sold with +technologies that limited the ability of users to copy the software, +but those were trivial protections to defeat. Why won't it be trivial +to defeat these protections as well? We've only scratched the surface of this story. Return to the Adobe eBook Reader. -Early in the life of the Adobe eBook Reader, Adobe suffered a - public -relations nightmare. Among the books that you could download for -free on the Adobe site was a copy of Alice's Adventures in Wonderland. -This wonderful book is in the public domain. Yet when you clicked on -Permissions for that book, you got the following report: +Early in the life of the Adobe eBook Reader, Adobe suffered a public +relations nightmare. Among the books that you could download for free +on the Adobe site was a copy of Alice's Adventures in +Wonderland. This wonderful book is in the public +domain. Yet when you clicked on Permissions for that book, you got the +following report: +Alice's Adventures in Wonderland (Carroll)
List of the permissions for "Alice's Adventures in @@ -7307,11 +7354,9 @@ Wonderland".
-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"! +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"! The public relations nightmare attached to that final permission. @@ -7342,6 +7387,7 @@ 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. @@ -8086,9 +8132,12 @@ diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects Ad," SFGate.com, 16 June 2003, available at link #32. The ground was that the criticism was "too controversial." +ABC Comcast Marijuana Policy Project +NBC WJOA +WRC @@ -8199,7 +8248,7 @@ that copyright law has undergone. In 1790, the law looked like this:
- +Law status in 1790 @@ -8237,7 +8286,7 @@ By the end of the nineteenth century, the law had changed to this:
- +Law status at the end of ninetheenth centory @@ -8276,7 +8325,7 @@ we could say the law began to look like this:
- +Law status in 1975 @@ -8309,7 +8358,7 @@ that the law now looks like this:
- +Law status now @@ -8352,10 +8401,12 @@ I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the -reasons sketched especially in chapters 7 and 8, one might well wonder -whether it does more harm than good for commercial transformation. -More commercial transformative work would be created if derivative -rights were more sharply restricted. +reasons sketched especially in chapters + and +, one +might well wonder whether it does more harm than good for commercial +transformation. More commercial transformative work would be created +if derivative rights were more sharply restricted. The issue is therefore not simply whether copyright is property. Of @@ -8861,7 +8912,8 @@ critical or reflective. Part of the reason for this fear of illegality has to do with the -changing law. I described that change in detail in chapter 10. But an +changing law. I described that change in detail in chapter +. But an even bigger part has to do with the increasing ease with which infractions can be tracked. As users of file-sharing systems discovered in 2002, it is a trivial matter for copyright owners to get @@ -8883,10 +8935,12 @@ right to cultivate and transform them is not similarly free. Lawyers rarely see this because lawyers are rarely empirical. As I -described in chapter 7, in response to the story about documentary -filmmaker Jon Else, I have been lectured again and again by lawyers -who insist Else's use was fair use, and hence I am wrong to say that the -law regulates such a use. +described in chapter +, in +response to the story about documentary filmmaker Jon Else, I have +been lectured again and again by lawyers who insist Else's use was +fair use, and hence I am wrong to say that the law regulates such a +use. @@ -8975,12 +9029,13 @@ 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 threat of liability tied to the murky boundaries of copyright -law is that innovators who want to innovate in this space can safely -innovate only if they have the sign-off from last generation's -dominant industries. That lesson has been taught through a series of -cases that were designed and executed to teach venture capitalists a +strategy that I described in chapter . The consequence of this massive +threat of liability tied to the murky boundaries of copyright law is +that innovators who want to innovate in this space can safely innovate +only if they have the sign-off from last generation's dominant +industries. That lesson has been taught through a series of cases +that were designed and executed to teach venture capitalists a lesson. That lesson—what former Napster CEO Hank Barry calls a "nuclear pall" that has fallen over the Valley—has been learned. @@ -9254,11 +9309,15 @@ When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. -As I described in chapter 10, despite this feature of copyright as -regulation, and subject to important qualifications outlined by Jessica -Litman in her book Digital Copyright, - Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, -2001). +As I described in chapter , despite this feature of copyright as +regulation, and subject to important qualifications outlined by +Jessica Litman in her book Digital +Copyright, + +Jessica Litman, Digital Copyright (Amherst, +N.Y.: Prometheus Books, 2001). +Litman, Jessica overall this history of copyright is not bad. As chapter 10 details, when new technologies have come @@ -9316,10 +9375,11 @@ the story of the demise of Internet radio. -As I described in chapter 4, when a radio station plays a song, the -recording artist doesn't get paid for that "radio performance" unless -he or she is also the composer. So, for example if Marilyn Monroe had -recorded a version of "Happy Birthday"—to memorialize her famous +As I described in chapter , when a radio station plays a song, the recording +artist doesn't get paid for that "radio performance" unless he or she +is also the composer. So, for example if Marilyn Monroe had recorded a +version of "Happy Birthday"—to memorialize her famous performance before President Kennedy at Madison Square Garden— then whenever that recording was played on the radio, the current copyright owners of "Happy Birthday" would get some money, whereas @@ -9691,6 +9751,7 @@ compliance literature). We pride ourselves on our "free society," but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law. +alcohol prohibition This state of affairs is not without consequence. It is a particularly @@ -10142,16 +10203,17 @@ protect noncommercial pornographers. As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's -collection of poems New Hampshire was slated to pass into the public -domain. Eldred wanted to post that collection in his free public -library. But Congress got in the way. As I described in chapter 10, -in 1998, for the eleventh time in forty years, Congress extended the -terms of existing copyrights—this time by twenty years. Eldred -would not be free to add any works more recent than 1923 to his -collection until 2019. Indeed, no copyrighted work would pass into -the public domain until that year (and not even then, if Congress -extends the term again). By contrast, in the same period, more than 1 -million patents will pass into the public domain. +collection of poems New Hampshire was slated to +pass into the public domain. Eldred wanted to post that collection in +his free public library. But Congress got in the way. As I described +in chapter , in 1998, for the eleventh time in forty years, +Congress extended the terms of existing copyrights—this time by +twenty years. Eldred would not be free to add any works more recent +than 1923 to his collection until 2019. Indeed, no copyrighted work +would pass into the public domain until that year (and not even then, +if Congress extends the term again). By contrast, in the same period, +more than 1 million patents will pass into the public domain. @@ -10490,6 +10552,7 @@ But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter. +Nashville Songwriters Association As we've seen, our constitutional system requires limits on @@ -11037,6 +11100,8 @@ copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments. +GNU/Linux operating system +Linux operating system Eagle Forum @@ -11044,6 +11109,8 @@ Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union. +American Association of Law Libraries +National Writers Union But two briefs captured the policy argument best. One made the @@ -11782,7 +11849,8 @@ where copyright owners could be identified. Berne Convention (1908) -As I described in chapter 10, formalities in copyright law were +As I described in chapter , formalities in copyright law were removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. @@ -12100,9 +12168,8 @@ controlled by this dead (and often unfindable) hand of the past. - + CONCLUSION - There are more than 35 million people with the AIDS virus worldwide. Twenty-five million of them live in sub-Saharan Africa. @@ -12172,7 +12239,7 @@ generally permitted under international trade law and is specifically permitted within the European Union. -See Peter Drahos with John Braithwaite, Information Feudalism: Who +See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 37. Braithwaite, John Drahos, Peter @@ -12396,6 +12463,7 @@ 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." +academic journals PLoS (Public Library of Science) @@ -12485,6 +12553,8 @@ Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. +GNU/Linux operating system +Linux operating system More important for our purposes, to support "open source and free @@ -12818,12 +12888,9 @@ potential is ever to be realized. - - - - + + AFTERWORD - @@ -12924,8 +12991,9 @@ What made it assured? Well, if we think in terms of the modalities I described in chapter -10, your privacy was assured because of an inefficient architecture -for gathering data and hence a market constraint (cost) on anyone who +, your +privacy was assured because of an inefficient architecture for +gathering data and hence a market constraint (cost) on anyone who wanted to gather that data. If you were a suspected spy for North Korea, working for the CIA, no doubt your privacy would not be assured. But that's because the CIA would (we hope) find it valuable @@ -13034,6 +13102,8 @@ Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds's "Linux" kernel was added to produce the GNU/Linux operating system. +GNU/Linux operating system +Linux operating system Stallman's technique was to use copyright law to build a world of @@ -13059,6 +13129,9 @@ Finally, consider a very recent example that more directly resonates with the story of this book. This is the shift in the way academic and scientific journals are produced. + + academic journals + As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13132,6 +13205,7 @@ distribution of content. But competition in our tradition is presumptively a good—especially when it helps spread knowledge and science. +
@@ -13364,8 +13438,9 @@ default is control, and "formalities" are banished. Why? -As I suggested in chapter 10, the motivation to abolish formalities -was a good one. In the world before digital technologies, formalities +As I suggested in chapter , the motivation to abolish formalities was a +good one. In the world before digital technologies, formalities imposed a burden on copyright holders without much benefit. Thus, it was progress when the law relaxed the formal requirements that a copyright owner must bear to protect and secure his work. Those @@ -13789,10 +13864,11 @@ an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance. -File-sharing networks complicate this model by enabling the -spread of content for which the performer has not been paid. But of -course, that's not all the file-sharing networks do. As I described in -chapter 5, they enable four different kinds of sharing: +File-sharing networks complicate this model by enabling the spread of +content for which the performer has not been paid. But of course, +that's not all the file-sharing networks do. As I described in chapter +, they enable +four different kinds of sharing: @@ -13828,7 +13904,8 @@ effect of sharing is actually not very harmful, the need for regulation is significantly weakened. -As I said in chapter 5, the actual harm caused by sharing is +As I said in chapter , the actual harm caused by sharing is controversial. For the purposes of this chapter, however, I assume the harm is real. I assume, in other words, that type A sharing is significantly greater than type B, and is the dominant use of sharing @@ -14301,9 +14378,7 @@ keep your lawyers away.
- - - + NOTES @@ -14391,4 +14466,5 @@ grateful for her perpetual patience and love. +