X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/d264e7aaa2b125a1e94e1efa3d92cd3834d42641..066d181eb1c0c362989f38c9598f8e557668309c:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index a00d147..8ab4118 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -845,7 +845,7 @@ individuals shared and transformed their culture—telling stories, reenacting scenes from plays or TV, participating in fan clubs, sharing music, making tapes—were left alone by the law. -Copyright infringement lawsuitscommercial creativity as primary purpose of +copyright infringement lawsuitscommercial creativity as primary purpose of The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the incentives of creators by @@ -889,6 +889,7 @@ been undone. The consequence is that we are less and less a free culture, more and more a permission culture. +protection of artists vs. business interests This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its @@ -965,7 +966,7 @@ this change, the war to rid the world of Internet pirates will al culture of values that have been integral to our tradition from the start. Constitution, U.S.First Amendment to -Copyright lawas protection of creators +copyright lawas protection of creators First Amendment Netanel, Neil Weinstock @@ -1130,8 +1131,8 @@ to which most of us remain oblivious. <quote>PIRACY</quote> -Copyright lawEnglish -Mansfield, William Murray, Lord +copyright lawEnglish +Mansfield, William Murray, Lord music publishing sheet music @@ -1150,7 +1151,7 @@ of them for his own use. Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). - + Internet efficient content distribution on peer-to-peer (p2p) file sharingefficiency of @@ -1202,7 +1203,8 @@ piracy. ASCAP Dreyfuss, Rochelle Girl Scouts -if value, then right theory +creative propertyif value, then right theory of +if value, then right theory This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the if value, then right @@ -1226,6 +1228,7 @@ Speech, No One Wins, Boston Globe, 24 November 20 There was value (the songs) so there must have been a right—even against the Girl Scouts. + This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system @@ -1234,7 +1237,9 @@ of law protecting creative property. But the if value, then right theory of creative property has never been America's theory of creative property. It has never taken hold within our law. - + +copyright lawon republishing vs. transformation of original work +creativitylegal restrictions on Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains @@ -1249,6 +1254,7 @@ work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. + Before the technologies of the Internet, this conflation didn't matter all that much. The technologies of publishing were expensive; that @@ -1257,6 +1263,7 @@ entities could bear the burden of the law—even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. +copyright lawcreativity impeded by Florida, Richard Rise of the Creative Class, The (Florida) @@ -1294,6 +1301,7 @@ under which it will be enabled are much more tenuous. Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. + These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper @@ -1304,8 +1312,11 @@ context the current battles about behavior labeled piracy. CHAPTER ONE: Creators -animated cartoons +animated cartoons cartoon films +filmsanimated +Steamboat Willie +Mickey Mouse In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent flop called Plane Crazy. @@ -1313,6 +1324,7 @@ In November, in New York City's Colony Theater, in the first widely distributed cartoon synchronized with sound, Steamboat Willie brought to life the character that would become Mickey Mouse. +Disney, Walt Synchronized sound had been introduced to film a year earlier in the movie The Jazz Singer. That success led Walt Disney to copy the @@ -1363,6 +1375,9 @@ Disney's invention that set the standard that others struggled to match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others. + +Keaton, Buster +Steamboat Bill, Jr. This much is familiar. What you might not know is that 1928 also marks another important transition. In that year, a comic (as opposed to @@ -1377,6 +1392,8 @@ Jr. was a classic of this form, famous among film buffs for its incredible stunts. The film was classic Keaton—wildly popular and among the best of its genre. +derivative workspiracy vs. +piracyderivative work vs. Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. @@ -1400,6 +1417,12 @@ Steamboat Bill, Jr., itself inspired by the song Steamboat Bill, that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse. + + + + +creativityby transforming previous works +Disney, Inc. This borrowing was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream @@ -1419,6 +1442,7 @@ were built upon a base that was borrowed. Disney added to the work of others before him, creating something new out of something just barely old. +Grimm fairy tales Sometimes this borrowing was slight. Sometimes it was significant. Think about the fairy tales of the Brothers Grimm. If you're as @@ -1450,7 +1474,7 @@ creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn. - + This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would say that there is no @@ -1460,6 +1484,12 @@ would be a bit misleading. It is, more precisely, Walt Disney creativity—a form of expression and genius that builds upon the culture around us and makes it something different. + + + +copyrightduration of +public domaindefined +public domaintraditional term for conversion to In 1928, the culture that Disney was free to draw upon was relatively fresh. The public domain in 1928 was not very old and was therefore quite vibrant. The average term of copyright was just around @@ -1491,6 +1521,8 @@ for Disney to use and build upon in 1928. It was free for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon. + + This is the ways things always were—until quite recently. For most of our history, the public domain was just over the horizon. From @@ -1505,12 +1537,22 @@ permission. Yet today, the public domain is presumptive only for content from before the Great Depression. + + + + +Disney, Walt Of course, Walt Disney had no monopoly on Walt Disney creativity. Nor does America. The norm of free culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal. +comics, Japanese +derivative workspiracy vs. +Japanese comics +manga +piracyderivative work vs. Consider, for example, a form of creativity that seems strange to many Americans but that is inescapable within Japanese culture: manga, or @@ -1536,6 +1578,8 @@ But my purpose here is not to understand manga. It is to describe a variant on manga that from a lawyer's perspective is quite odd, but from a Disney perspective is quite familiar. +creativityby transforming previous works +doujinshi comics This is the phenomenon of doujinshi. Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of @@ -1551,6 +1595,7 @@ must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy. +Disney, Walt These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 circles of creators from across Japan produce @@ -1562,6 +1607,8 @@ competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law. +copyright lawJapanese +Steamboat Bill, Jr. The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under @@ -1576,6 +1623,7 @@ the permission of the original copyright owner is illegal. It is an infringement of the original copyright to make a copy or a derivative work without the original copyright owner's permission. + Winick, Judd Yet this illegal market exists and indeed flourishes in Japan, and in @@ -1592,6 +1640,7 @@ For an excellent history, see Scott McCloud, Reinventing Comics + Superman comics American comics now are quite different, Winick explains, in part @@ -1601,7 +1650,10 @@ and you have to stick to them. There are things Superman cannotAs a creator, it's frustrating having to stick to some parameters which are fifty years old. - + +copyright lawJapanese +comics, Japanese +Mehra, Salil The norm in Japan mitigates this legal difficulty. Some say it is precisely the benefit accruing to the Japanese manga market that @@ -1621,6 +1673,9 @@ individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved. + + + The problem with this story, however, as Mehra plainly acknowledges, is that the mechanism producing this laissez faire response is not @@ -1632,6 +1687,8 @@ individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this free taking by the doujinshi culture? + + I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by @@ -1651,6 +1708,7 @@ uncompensated sharing? Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help their clients or hurt them? + Let's pause for a moment. @@ -1678,6 +1736,9 @@ A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without intellectual property. +Disney, Walt +Grimm fairy tales +Keaton, Buster But it takes just a second's reflection to realize that there is plenty of value out there that property doesn't capture. I don't @@ -1693,6 +1754,7 @@ Disney's use would have been considered fair. There was nothing wrong with the taking from the Grimms because the Grimms' work was in the public domain. +free culturederivative works based on Thus, even though the things that Disney took—or more generally, the things taken by anyone exercising Walt Disney creativity—are @@ -1702,6 +1764,12 @@ valuable, our tradition does not treat those takings as wrong. Some things remain free for the taking within a free culture, and that freedom is good. + +copyright lawJapanese +comics, Japanese +doujinshi comics +Japanese comics +manga The same with the doujinshi culture. If a doujinshi artist broke into a publisher's office and ran off with a thousand copies of his latest @@ -1710,12 +1778,20 @@ saying the artist was wrong. In addition to having trespassed, he would have stolen something of value. The law bans that stealing in whatever form, whether large or small. + Yet there is an obvious reluctance, even among Japanese lawyers, to say that the copycat comic artists are stealing. This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard to say why. + + + + + + +Shakespeare, William It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the work of other scientists @@ -1741,6 +1817,7 @@ every society has left a certain bit of its culture free for the taking—fr societies more fully than unfree, perhaps, but all societies to some degree. + The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard @@ -1758,14 +1835,15 @@ Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so. + CHAPTER TWO: <quote>Mere Copyists</quote> -camera technology -photography Daguerre, Louis +camera technology +photography In 1839, Louis Daguerre invented the first practical technology for producing what we would call @@ -1801,7 +1879,8 @@ a developer, driving the costs of photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the population of photographers. -Kodak Primer, The (Eastman) +Kodak cameras +Kodak Primer, The (Eastman) Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was @@ -1824,12 +1903,13 @@ preliminary study, without a darkroom and without chemicals. +Coe, Brian Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. -Coe, Brian + For $25, anyone could make pictures. The camera came preloaded with film, and when it had been used, the camera was returned to an @@ -1849,7 +1929,6 @@ an average annual increase of over 17 percent. Based on a chart in Jenkins, p. 178. - Coe, Brian @@ -1868,6 +1947,8 @@ interpretation or bias. Coe, 58. +democracyin technologies of expression +expression, technologies ofdemocratic In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a technology of @@ -1881,6 +1962,8 @@ creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before. + +permissionsphotography exempted from What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also important was the @@ -1898,6 +1981,9 @@ v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Dist. Ct. 1894). + +Disney, Walt +images, ownership of The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was taking something from the person or @@ -1910,6 +1996,8 @@ Mickey, so, too, should these photographers not be free to take images that they thought valuable. Brandeis, Louis D. +Steamboat Bill, Jr. +camera technology 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 @@ -1927,7 +2015,7 @@ 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. -images, ownership of + Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no @@ -1946,6 +2034,8 @@ Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). ) +Kodak cameras +Napster We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the @@ -1961,6 +2051,10 @@ 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. + +camera technology +democracyin technologies of expression +expression, technologies ofdemocratic @@ -1976,7 +2070,10 @@ that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been realized. -camera technology + + + + If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses @@ -1993,8 +2090,6 @@ schools and enable three hundred to five hundred children to learn something about media by doing something with media. By doing, they think. By tinkering, they learn. - - These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -2028,6 +2123,8 @@ and noticing split infinitives are the things that literate peopl about. advertising +commercials +televisionadvertising on Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 @@ -2053,6 +2150,7 @@ 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 @@ -2062,6 +2160,7 @@ reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. Crichton, Michael +Daley, Elizabeth This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern @@ -2142,7 +2241,7 @@ language of the twenty-first century. Ibid. -Barish, Stephanie +Barish, Stephanie 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 @@ -2155,6 +2254,7 @@ 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 @@ -2180,6 +2280,7 @@ 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. + @@ -2230,7 +2331,9 @@ had a lot of power with this language. +September 11, 2001, terrorist attacks of World Trade Center +news coverage When two planes crashed into the World Trade Center, another into the Pentagon, and a fourth into a @@ -2267,6 +2370,7 @@ the term in his book Cyber Rights, around a news event th 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 @@ -2286,6 +2390,10 @@ 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, 2001, terrorist attacks of +blogs (Web-logs) +Internetblogs on +Web-logs (blogs) September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that has grown dramatically was @@ -2295,7 +2403,8 @@ 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. -blogs (Web-logs) +political discourse +Internetpublic discourse conducted on But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about @@ -2310,6 +2419,9 @@ are relatively short; they point directly to words used by others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public discourse that we have. +democracyin technologies of expression +elections +expression, technologies ofdemocratic That's a strong statement. Yet it says as much about our democracy as it does about blogs. This is the part of America that is most @@ -2321,7 +2433,11 @@ people vote in those elections. The cycle of these elections has become totally professionalized and routinized. Most of us think this is democracy. + + + Tocqueville, Alexis de +democracypublic discourse in jury system But democracy has never just been about elections. Democracy @@ -2343,6 +2459,7 @@ See, for example, Alexis de Tocqueville, Democracy in America + Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some @@ -2355,6 +2472,7 @@ 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. +political discourse More bizarrely, there is generally not even permission for it to occur. We, the most powerful democracy in the world, have developed a @@ -2368,8 +2486,13 @@ Cass Sunstein, Republic.com (Princeton: Princeton Univers We say what our friends want to hear, and hear very little beyond what our friends say. -blogs (Web-logs) +blogs (Web-logs) e-mail +Internetblogs on +Web-logs (blogs) + + + 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 @@ -2398,6 +2521,8 @@ is having an effect. Lott, Trent Thurmond, Strom +mediablog pressure on +Internetnews events on 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 @@ -2414,6 +2539,7 @@ Noah Shachtman, With Incessant Postings, a Pundit Stirs the Pot, York Times, 16 January 2003, G5. +mediacommercial imperatives of This different cycle is possible because the same commercial pressures don't exist with blogs as with other ventures. Television and @@ -2421,6 +2547,8 @@ newspapers are commercial entities. They must work to keep attention. If they lose readers, they lose revenue. Like sharks, they must move on. + +Internetpeer-generated rankings 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 @@ -2430,6 +2558,8 @@ 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. + +journalism Winer, Dave There's a second way, as well, in which blogs have a different cycle @@ -2443,7 +2573,9 @@ conflict of interest is so easily disclosed that you know you can sort of get it out of the way. CNN +mediacommercial imperatives of Iraq war +mediaownership concentration in These conflicts become more important as media becomes more concentrated (more on this below). A concentrated media can hide more @@ -2461,13 +2593,15 @@ 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. + + +Blog space gives amateurs a way to enter the +debate—amateur not in the sense of inexperienced, +but in the sense of an Olympic athlete, meaning not paid by anyone to +give their reports. It allows for a much broader range of input into a +story, as reporting on the Columbia disaster revealed, when hundreds +from across the southwest United States turned to the Internet to +retell what they had seen. John Schwartz, Loss of the Shuttle: The Internet; A Wealth of Information Online, New York Times, 2 February 2003, A28; Staci @@ -2510,6 +2644,7 @@ 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. @@ -2525,8 +2660,13 @@ 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. - - + + + + + + + Brown, John Seely advertising @@ -2636,7 +2776,7 @@ 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 @@ -2652,8 +2792,13 @@ quipped to me in a rare moment of despondence. CHAPTER THREE: Catalogs +Jordan, Jesse RPIRensselaer Polytechnic Institute (RPI) Rensselaer Polytechnic Institute (RPI) +Rensselaer Polytechnic Institute (RPI)computer network search engine of +search engines +university computer networks, p2p sharing on +Internetsearch engines used on In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer @@ -2677,6 +2822,7 @@ available on the RPI network is available on the Internet. But the network is designed to enable students to get access to the Internet, as well as more intimate access to other members of the RPI community. +Google Search engines are a measure of a network's intimacy. Google @@ -2689,6 +2835,9 @@ access to material from that institution. Businesses do this all the time, enabling employees to have access to material that people outside the business can't get. Universities do it as well. + +Jordan, Jesse +Microsoftnetwork file system of These engines are enabled by the network technology itself. Microsoft, for example, has a network file system that makes it very @@ -2698,6 +2847,7 @@ content. Jesse's search engine was built to take advantage of this technology. It used Microsoft's network file system to build an index of all the files available within the RPI network. + Jesse's wasn't the first search engine built for the RPI network. Indeed, his engine was a simple modification of engines that others @@ -2710,6 +2860,7 @@ modified the system a bit to fix that problem, by adding a button that a user could click to see if the machine holding the file was still on-line. + Jesse's engine went on-line in late October. Over the following six months, he continued to tweak it to improve its functionality. By @@ -2717,6 +2868,7 @@ March, the system was functioning quite well. Jesse had more than one million files in his directory, including every type of content that might be on users' computers. + Thus the index his search engine produced included pictures, which students could use to put on their own Web sites; copies of notes or @@ -2726,6 +2878,8 @@ might have created; university brochures—basically anything that users of the RPI network made available in a public folder of their computer. +Google +educationtinkering as means of But the index also included music files. In fact, one quarter of the files that Jesse's search engine listed were music files. But that @@ -2741,6 +2895,11 @@ this experiment. He was a kid tinkering with technology in an environment where tinkering with technology was precisely what he was supposed to do. +copyright infringement lawsuitsin recording industry +copyright infringement lawsuitsagainst student file sharing +recording industrycopyright infringement lawsuits of +Recording Industry Association of America (RIAA)copyright infringement lawsuits filed by + On April 3, 2003, Jesse was contacted by the dean of students at RPI. The dean informed Jesse that the Recording Industry Association @@ -2763,7 +2922,12 @@ RPI community to get access to content, which Jesse had not himself created or posted, and the vast majority of which had nothing to do with music. + +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsstatutory damages of +copyright infringement lawsuitsindividual defendants intimidated by statutory damages +Recording Industry Association of America (RIAA)intimidation tactics of But the RIAA branded Jesse a pirate. They claimed he operated a network and had therefore willfully violated copyright laws. They @@ -2775,8 +2939,8 @@ claim $150,000 per infringement. As the RIAA alleged more than one hundred specific copyright infringements, they therefore demanded that Jesse pay them at least $15,000,000. -Princeton University Michigan Technical University +Princeton University Similar lawsuits were brought against three other students: one other student at RPI, one at Michigan Technical University, and one at @@ -2795,7 +2959,7 @@ Suit Alleges $97.8 Billion in Damages, Professional Media Gro (2003): 5, available at 2003 WL 55179443. - + Jesse called his parents. They were supportive but a bit frightened. An uncle was a lawyer. He began negotiations with the RIAA. They @@ -2815,6 +2979,7 @@ case, Matt Oppenheimer, told Jesse, You don't want to pay another visit to a dentist like me.) And throughout, the RIAA insisted it would not settle the case until it took every penny Jesse had saved. +legal system, attorney costs in Jesse's family was outraged at these claims. They wanted to fight. But Jesse's uncle worked to educate the family about the nature of the @@ -2830,6 +2995,8 @@ So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. artistsrecording industry payments to +recording industryartist remuneration in +Recording Industry Association of America (RIAA)lobbying power of The recording industry insists this is a matter of law and morality. Let's put the law aside for a moment and think about the morality. @@ -2851,6 +3018,8 @@ Douglas Lichtman makes a related point in KaZaA and Punishment, Wall Street Journal, 10 September 2003, A24. + + On June 23, Jesse wired his savings to the lawyer working for the RIAA. The case against him was then dismissed. And with this, this @@ -2872,10 +3041,17 @@ I. … He's not a tree hugger. … I think it's bizarre that they wo pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record. + + + + + + CHAPTER FOUR: <quote>Pirates</quote> +piracyin development of content industry if value, then right theory If piracy means @@ -2980,11 +3156,12 @@ Edison's creative property.
Recorded Music +copyright lawon music recordings The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. -Fourneaux, Henri +Fourneaux, Henri Russel, Phil At the time that Edison and Henri Fourneaux invented machines @@ -3015,7 +3192,7 @@ 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 @@ -3116,6 +3293,7 @@ Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. +Grisham, John This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if @@ -3124,8 +3302,8 @@ charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham's work except with permission of Grisham. -Grisham, John + But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording @@ -3232,7 +3410,7 @@ something for nothing. It gets to perform the recording artist's work for free, even if it must pay the composer something for the privilege of playing the song. -Madonna +Madonna This difference can be huge. Imagine you compose a piece of music. Imagine it is your first. You own the exclusive right to authorize @@ -3249,7 +3427,7 @@ the sale of her CDs. The public performance of her recording is not a 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 @@ -3262,7 +3440,7 @@ to take something for nothing.
Cable TV -cable television +cable television Cable TV was also born of a kind of piracy. @@ -3379,7 +3557,8 @@ 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 @@ -4121,6 +4300,17 @@ legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less. artistsrecording industry payments to +composers, copyright protections of +Congress, U.S.on copyright laws +Congress, U.S.on recording industry +copyright lawon music recordings +copyright lawstatutory licenses in +radiomusic recordings played on +recording industryartist remuneration in +recording industrycopyright protections in +recording industryradio broadcast and +statutory licenses +composer's rights vs. producers' rights in So, as we've seen, when mechanical reproduction threatened the interests of composers, Congress balanced the rights of composers @@ -4142,6 +4332,7 @@ 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. + @@ -4160,6 +4351,8 @@ Congress chose a path that would assure compensation without giving the past (broadcasters) control over the future (cable). + + Betamax cassette recordingVCRs @@ -4176,6 +4369,7 @@ 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 @@ -4191,6 +4385,8 @@ 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. +Congress, U.S.on copyright laws +Congress, U.S.on VCR technology MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs tapeworms. He warned, When there are @@ -4213,7 +4409,7 @@ and plain common sense. Copyright Infringements (Audio and Video Recorders), 475. -Indeed, as surveys would later show, +Indeed, as surveys would later show, 45 percent of VCR owners had movie libraries of ten videos or more Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, @@ -4221,8 +4417,8 @@ percent of VCR owners had movie libraries of ten videos or more — 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 infringementwithout creating a mechanism to compensate -copyrightowners, Valenti testified, Congress would take from the +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. @@ -4273,6 +4469,7 @@ by such new technology. + Congress was asked to respond to the Supreme Court's decision. But as with the plea of recording artists about radio broadcasts, Congress @@ -4353,6 +4550,7 @@ technology to benefit from content made before. It balanced the interests at stake. +Disney, Walt When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes @@ -4365,6 +4563,7 @@ 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? +Supreme Court, U.S.on balance of interests in copyright law We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the Supreme Court has stated, @@ -4455,6 +4654,7 @@ 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? +Jefferson, Thomas The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The point instead is that @@ -4474,6 +4674,7 @@ Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in Ellery Bergh, eds., 1903), 330, 333–34. +property rightsintangibility of 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 @@ -4512,9 +4713,11 @@ from the implications that the copyright warriors would have us draw. CHAPTER SIX: Founders -Henry V +booksEnglish copyright law developed for Branagh, Kenneth -booksEnglish copyright law developed for +Henry V +Shakespeare, William +Romeo and Juliet (Shakespeare) William Shakespeare wrote Romeo and Juliet in 1595. The play was first @@ -4527,6 +4730,8 @@ once overheard someone commenting on Kenneth Branagh's adaptation of Henry V: I liked it, but Shakespeare is so full of clichés. +Conger +Tonson, Jacob 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 @@ -4558,6 +4763,7 @@ copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated. British Parliament +Statute of Anne (1710) Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the @@ -4575,6 +4781,8 @@ As Siva Vaidhyanathan nicely argues, it is erroneous to call this a free in 1731. So why was there any issue about it still being under Tonson's control in 1774? + + Licensing Act (1662) The reason is that the English hadn't yet agreed on what a copyright @@ -4637,6 +4845,7 @@ 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? +Statute of Anne (1710) 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 @@ -4867,7 +5076,7 @@ Exploding the Myth of Common Law Copyright, Wayne Law Review< (1983): 1152. -Mansfield, William Murray, Lord +Mansfield, William Murray, Lord Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever @@ -4893,7 +5102,7 @@ a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. - + The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. @@ -5019,7 +5228,7 @@ world where the Parliament is more pliant, free culture would be less protected. - + @@ -5690,6 +5899,7 @@ billion pages, and it was growing at about a billion pages a month. Vanderbilt University Way Back Machine librariesarchival function of +news coverage The Way Back Machine is the largest archive of human knowledge in human history. At the end of 2002, it held two hundred and thirty @@ -5783,6 +5993,7 @@ events of that day. Movie Archive archive.orgInternet Archive + filmsarchive of Internet Archive Duck and Cover film @@ -5915,6 +6126,7 @@ proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press. +Disney, Walt Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of @@ -6133,6 +6345,7 @@ should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself. +Jefferson, Thomas Arguing for a change in our Constitution is not necessarily wrong. There was much in our original Constitution that was plainly wrong. @@ -6153,6 +6366,8 @@ creative property be given the same rights as all other property? Why did they require that for creative property there must be a public domain? + + To answer this question, we need to get some perspective on the history of these creative property rights, and the control that they @@ -6254,7 +6469,7 @@ 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. -driving speed, constraints on +driving speed, constraints on architecture, constraint effected through market constraints norms, regulatory influence of @@ -6298,7 +6513,7 @@ strict—a federal requirement that states decrease the speed limit, for example—so as to decrease the attractiveness of fast driving. - +
Law has a special role in affecting the three. @@ -6532,7 +6747,7 @@ effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. -DDT +DDT Müller, Paul Hermann In 1873, the chemical DDT was first synthesized. In 1948, Swiss @@ -6601,7 +6816,7 @@ 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. - +
Beginnings @@ -6710,6 +6925,7 @@ 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. +Statute of Anne (1710) That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, @@ -7045,6 +7261,8 @@ pp. 53–59). These two different uses of my creative work are treated the same. +Disney, Walt +Mickey Mouse 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 @@ -7109,14 +7327,19 @@ 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 +We can see this point abstractly by beginning with this largely empty circle.
All potential uses of a book.
-booksthree types of uses of +booksthree types of uses of +copyright lawcopies as core issue of +Internetcopyright applicability altered by technology of +technologycopyright intent altered by +derivative workspiracy vs. +piracyderivative work vs. Think about a book in real space, and imagine this circle to represent @@ -7143,6 +7366,8 @@ at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation (see first diagram on next page). + + Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these fair uses. @@ -7177,7 +7402,7 @@ 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. - + bookson Internet Enter the Internet—a distributed, digital network where every use @@ -7213,6 +7438,7 @@ use—reading— could be regulated by copyright law because none of those uses produced a copy. bookson Internet +derivative workstechnological developments and But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book @@ -7239,6 +7465,7 @@ evidence at all that policy makers had this idea in mind when they allowed our policy here to shift. Unregulated uses were an important part of free culture before the Internet. +copyright lawon republishing vs. transformation of original work Second, this shift is especially troubling in the context of transformative uses of creative content. Again, we can all understand @@ -7265,6 +7492,11 @@ 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 @@ -7386,8 +7618,8 @@ tradition embraced, who said whether and how the law would restrict your freedom. Casablanca -Marx Brothers -Warner Brothers +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 @@ -7432,10 +7664,10 @@ 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 +Adobe eBook Reader Consider the life of my Adobe eBook Reader. @@ -7503,6 +7735,8 @@ the book. List of the permissions for Aristotle;s <quote>Politics</quote>. +Future of Ideas, The (Lessig) +Lessig, Lawrence Finally (and most embarrassingly), here are the permissions for the original e-book version of my last book, The Future of @@ -7556,6 +7790,7 @@ if you push the Read Aloud button with my book, the machine simply won't read aloud. Marx Brothers +Warner Brothers These are controls, not permissions. Imagine a @@ -7583,7 +7818,8 @@ to defeat these protections as well? We've only scratched the surface of this story. Return to the Adobe eBook Reader. -Alice's Adventures in Wonderland (Carroll) +Alice's Adventures in Wonderland (Carroll) +public domaine-book restrictions on Early in the life of the Adobe eBook Reader, Adobe suffered a public relations nightmare. Among the books that you could download for free @@ -7624,6 +7860,8 @@ 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 @@ -7632,15 +7870,15 @@ 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. -Aibo robotic dog -robotic dog -SonyAibo robotic dog produced by +Aibo robotic dog +robotic dog +SonyAibo robotic dog produced by Consider the robotic dog made by Sony named Aibo. The Aibo learns tricks, cuddles, and follows you around. It eats only electricity @@ -7692,9 +7930,9 @@ 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, @@ -7782,9 +8020,9 @@ academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed. -Aibo robotic dog -robotic dog -SonyAibo robotic dog produced by +Aibo robotic dog +robotic dog +SonyAibo robotic dog produced by What links these two, aibopet.com and Felten, is the letters they then received. Aibopet.com received a letter from Sony about the @@ -7798,9 +8036,9 @@ 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 @@ -8754,9 +8992,9 @@ lawyer. CHAPTER ELEVEN: Chimera -chimeras -Wells, H. G. -Country of the Blind, The (Wells) +chimeras +Wells, H. G. +Country of the Blind, The (Wells) In a well-known short story by @@ -8837,8 +9075,8 @@ plot for murder mysteries. But the DNA shows with 100 percent certainty that she was not the person whose blood was at the scene. … - - + + Before I had read about chimeras, I would have said they were impossible. A single person can't have two sets of DNA. The very idea @@ -8944,7 +9182,7 @@ Name Students, Boston Globe, 8 August 2003, D3, a - + Alternatively, we could respond to file sharing the way many kids act as though we've responded. We could totally legalize it. Let there be @@ -9120,6 +9358,10 @@ work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. Worldcom +copyright infringement lawsuitsexaggerated claims of +copyright infringement lawsuitsin recording industry +doctors malpractice claims against +Jordan, Jesse That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to @@ -9379,7 +9621,7 @@ had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought. -Vivendi Universal +Vivendi Universal Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled @@ -9414,7 +9656,7 @@ industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly. - + Hummer, John Barry, Hank Hummer Winblad @@ -10446,7 +10688,7 @@ success will require. CHAPTER THIRTEEN: Eldred -Hawthorne, Nathaniel +Hawthorne, Nathaniel In 1995, a father was frustrated that his daughters didn't seem to like Hawthorne. No doubt there was @@ -10463,6 +10705,8 @@ gave birth to a hobby, and his hobby begat a cause: Eldred would build a library of public domain works by scanning these works and making them available for free. +Disney, Walt +Grimm fairy tales Eldred's library was not simply a copy of certain public domain works, though even a copy would have been of great value to people @@ -10486,7 +10730,8 @@ animated cartoons, sometimes successfully (Cinderella), s (The Hunchback of Notre Dame, Treasure Planet). These are all commercial publications of public domain works. - + + The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally @@ -10499,6 +10744,7 @@ social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally. +pornography 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 @@ -10838,6 +11084,10 @@ its politics struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians. +Constitution, U.S.copyright purpose established in +copyrightconstitutional purpose of +copyrightduration of +Disney, Walt Now let's pause for a moment to make sure we understand what the argument in @@ -11479,6 +11729,8 @@ who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. Fried, Charles +Congress, U.S.constitutional powers of +Constitution, U.S.Commerce Clause of Fried was a special victory for our side. Every other former solicitor general was hired by the other side to defend Congress's power to give @@ -11508,6 +11760,8 @@ continue to have the right to control who did what with content they wanted to control. Gershwin, George +Porgy and Bess +pornography Dr. Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to @@ -12532,9 +12786,12 @@ controlled by this dead (and often unfindable) hand of the past. CONCLUSION -antiretroviral drugs -HIV/AIDS therapies -Africa, medications for HIV patients in +Africa, medications for HIV patients in +AIDS medications +antiretroviral drugs +developing countries, foreign patent costs in +drugspharmaceutical +HIV/AIDS therapies There are more than 35 million people with the AIDS virus worldwide. Twenty-five million of them live @@ -12567,6 +12824,8 @@ 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. +patentson pharmaceuticals +pharmaceutical patents These prices are not high because the ingredients of the drugs are @@ -12594,6 +12853,9 @@ African leaders began to recognize the devastation that AIDS was bringing, they started looking for ways to import HIV treatments at costs significantly below the market price. +international law +parallel importation +South Africa, Republic of, pharmaceutical imports by In 1997, South Africa tried one tack. It passed a law to allow the importation of patented medicines that had been produced or sold in @@ -12610,6 +12872,7 @@ Owns the Knowledge Economy? (New York: The New Press, 2003), 37. Drahos, Peter +United States Trade Representative (USTR) However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association @@ -12649,6 +12912,7 @@ Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization (Washington, D.C., 2000), 15. + We should place the intervention by the United States in context. No doubt patents are not the most important reason that Africans don't @@ -12703,6 +12967,7 @@ 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 @@ -12713,6 +12978,7 @@ idea? What possible justification could there ever be for a policy that results in so many deaths? What exactly is the insanity that would allow so many to die for such an abstraction? +corporationsin pharmaceutical industry Some blame the drug companies. I don't. They are corporations. Their managers are ordered by law to make money for the corporation. @@ -12729,6 +12995,7 @@ elsewhere. There are issues they'd have to resolve to make sure the drugs didn't get back into the United States, but those are mere problems of technology. They could be overcome. +intellectual property rightsof drug patents A different problem, however, could not be overcome. This is the fear of the grandstanding politician who would call the presidents of @@ -12744,6 +13011,13 @@ 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 @@ -12762,6 +13036,9 @@ 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 @@ -12770,9 +13047,7 @@ 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 @@ -12801,9 +13076,17 @@ 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. +academic journals +biomedical research +intellectual property rightsinternational organization on issues of +Internetdevelopment of +IBM +PLoS (Public Library of Science) +Public Library of Science (PLoS) public domainpublic projects in single nucleotied polymorphisms (SNPs) Wellcome Trust +World Intellectual Property Organization (WIPO) World Wide Web Global Positioning System Reagan, Ronald @@ -12840,9 +13123,6 @@ 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 -IBM -PLoS (Public Library of Science) @@ -12852,6 +13132,7 @@ 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. +Lessig, Lawrencein international debate on intellectual property From the perspective of this book, then, the conference was ideal. I should disclose that I was one of the people who asked WIPO for the @@ -12863,6 +13144,7 @@ perspectives. And WIPO was an ideal venue for this discussion, since WIPO is the preeminent international body dealing with intellectual property issues. +World Summit on the Information Society (WSIS) Indeed, I was once publicly scolded for not recognizing this fact about WIPO. In February 2003, I delivered a keynote address to a @@ -12893,7 +13175,12 @@ 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. + + + +free software/open-source software (FS/OSS) Apple Corporation +Microsofton free software But there is one project within that list that is highly controversial, at least among lobbyists. That project is open source @@ -12938,6 +13225,7 @@ May 2001), available at link #63. + General Public License (GPL) GPL (General Public License) @@ -12958,7 +13246,9 @@ 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. -Krim, Jonathan +intellectual property rightsinternational organization on issues of +World Intellectual Property Organization (WIPO) +Krim, Jonathan MicrosoftWIPO meeting opposed by It is therefore understandable that as a proprietary software @@ -12982,6 +13272,7 @@ its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts. + Boland, Lois What was surprising was the United States government's reason for @@ -12993,9 +13284,11 @@ 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 @@ -13007,7 +13300,10 @@ 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. +World Summit on the Information Society (WSIS) +drugspharmaceutical generic drugs +patentson pharmaceuticals Second, who ever said that WIPO's exclusive aim was to promote intellectual property maximally? As I had been scolded at the @@ -13048,6 +13344,8 @@ WIPO is not just that intellectual property rights be maximized, but that they also should be exercised in the most extreme and restrictive way possible. +feudal system +property rightsfeudal system of There is a history of just such a property system that is well known in the Anglo-American tradition. It is called feudalism. Under @@ -13074,6 +13372,8 @@ 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 @@ -13081,6 +13381,8 @@ 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, @@ -13526,12 +13828,17 @@ 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. +academic journals +scientific journals 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 +Lexis and Westlaw +lawdatabases of case reports in +librariesjournals in +Supreme Court, U.S.access to opinions of As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13548,6 +13855,8 @@ and Westlaw are also free to charge users for the privilege of gaining access to that Supreme Court opinion through their respective services. +public domainaccess fees for material in +public domainlicense system for rebuilding of 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 @@ -13557,6 +13866,8 @@ 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 @@ -13582,6 +13893,8 @@ public libraries begin to disappear. Thus, as with privacy and with software, a changing technology and market shrink a freedom taken for granted before. +PLoS (Public Library of Science) +Public Library of Science (PLoS) This shrinking freedom has led many to take affirmative steps to restore the freedom that has been lost. The Public Library of Science @@ -13594,7 +13907,6 @@ then deposited in a public, electronic archive and made permanently available for free. PLoS also sells a print version of its work, but the copyright for the print journal does not inhibit the right of anyone to redistribute the work for free. -PLoS (Public Library of Science) This is one of many such efforts to restore a freedom taken for @@ -13605,12 +13917,12 @@ distribution of content. But competition in our tradition is presumptively a good—especially when it helps spread knowledge and science. - - + +
Rebuilding Free Culture: One Idea -Creative Commons +Creative Commons The same strategy could be applied to culture, as a response to the increasing control effected through law and technology. @@ -13680,6 +13992,7 @@ 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. +Jefferson, Thomas 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 @@ -13798,8 +14111,8 @@ 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. - - + +
@@ -14799,7 +15112,7 @@ permission produces. Again, this is the reality of Brezhnev's Russia. The law should regulate in certain areas of culture—but it should regulate culture only where that regulation does good. Yet lawyers - + rarely test their power, or the power they promote, against this simple pragmatic question: Will it do good? When challenged about the expanding reach of the law, the lawyer answers, Why not?