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@@ -162,92 +162,6 @@ Code: And Other Laws of Cyberspace
-
-
-THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New
-York, New York
-
-
-Copyright © Lawrence Lessig. All rights reserved.
-
-
-Excerpt from an editorial titled The Coming of Copyright Perpetuity,
-The New York Times , January 16, 2003. Copyright
-© 2003 by The New York Times Co. Reprinted with permission.
-
-
-Cartoon in
-
-Diagram in
-
-Library of Congress Cataloging-in-Publication Data
-
-
-Lessig, Lawrence.
-Free culture : how big media uses technology and the law to lock down
-culture and control creativity / Lawrence Lessig.
-
-
-p. cm.
-
-
-Includes index.
-
-
-ISBN 1-59420-006-8 (hardcover)
-
-
-
-1. Intellectual property—United States. 2. Mass media—United States.
-
-
-3. Technological innovations—United States. 4. Art—United States. I. Title.
-
-
-KF2979.L47
-
-
-343.7309'9—dc22
-
-
-This book is printed on acid-free paper.
-
-
-Printed in the United States of America
-
-
-1 3 5 7 9 10 8 6 4
-
-
-Designed by Marysarah Quinn
-
-
-
-&translationblock;
-
-
-
-Without limiting the rights under copyright reserved above, no part of
-this publication may be reproduced, stored in or introduced into a
-retrieval system, or transmitted, in any form or by any means
-(electronic, mechanical, photocopying, recording or otherwise),
-without the prior written permission of both the copyright owner and
-the above publisher of this book.
-
-
-The scanning, uploading, and distribution of this book via the
-Internet or via any other means without the permission of the
-publisher is illegal and punishable by law. Please purchase only
-authorized electronic editions and do not participate in or encourage
-electronic piracy of copyrighted materials. Your support of the
-author's rights is appreciated.
-
-
-
@@ -764,6 +678,8 @@ stepped out of a thirteenth-story window to his death.
Causby, Thomas Lee Causby, Tinie
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From
@@ -845,7 +761,7 @@ 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 lawsuits commercial creativity as primary purpose of copyright infringement lawsuits commercial 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 +805,9 @@ been undone. The consequence is that we are less and less a free
culture, more and more a permission culture.
+Causby, Thomas Lee Causby, Tinie protection of artists vs. business interests
This change gets justified as necessary to protect commercial
creativity. And indeed, protectionism is precisely its
@@ -965,7 +884,7 @@ 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 law as protection of creators copyright law as protection of creators First Amendment Netanel, Neil Weinstock
@@ -1130,8 +1049,8 @@ to which most of us remain oblivious.
<quote>PIRACY</quote>
-Copyright law English Mansfield, William Murray, Lord copyright law English Mansfield, William Murray, Lord music publishing sheet music
@@ -1150,7 +1069,7 @@ 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 sharing efficiency of ASCAP Dreyfuss, Rochelle Girl Scouts if value, then right
theorycreative property if value, then right
theory ofif 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 +1146,7 @@ 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 +1155,9 @@ 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 law on republishing vs. transformation of original work creativity legal restrictions on
Instead, in our tradition, intellectual property is an instrument. It
sets the groundwork for a richly creative society but remains
@@ -1249,6 +1172,7 @@ 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 +1181,7 @@ 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 law creativity impeded by Florida, Richard Rise of the Creative Class, The (Florida)
@@ -1294,6 +1219,7 @@ 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 +1230,11 @@ context the current battles about behavior labeled piracy.
CHAPTER ONE: Creators
-animated cartoons animated cartoons cartoon films films animated 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 +1242,7 @@ 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 +1293,9 @@ 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 +1310,8 @@ 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 works piracy vs. piracy derivative work vs.
Steamboat Bill, Jr . appeared before Disney's cartoon Steamboat
Willie.
@@ -1400,6 +1335,12 @@ Steamboat Bill, Jr., itself inspired by the song Steamboat Bill,
that we get Steamboat Willie, and then from Steamboat Willie, Mickey
Mouse.
+creativity by 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 +1360,7 @@ 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 +1392,7 @@ 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 +1402,12 @@ 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.
+copyright duration of public domain defined public domain traditional 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 +1439,8 @@ 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 +1455,22 @@ 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 works piracy vs. Japanese comics manga piracy derivative 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 +1496,8 @@ 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.
+creativity by 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 +1513,7 @@ 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 +1525,8 @@ 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 law Japanese 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 +1541,7 @@ 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 +1558,7 @@ For an excellent history, see Scott McCloud, Reinventing Comics
+Superman comics
American comics now are quite different, Winick explains, in part
@@ -1601,7 +1568,10 @@ 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 law Japanese 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 +1591,9 @@ 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 +1605,8 @@ 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 +1626,7 @@ 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 +1654,9 @@ 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 +1672,7 @@ 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 culture derivative 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 +1682,12 @@ 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 law Japanese 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 +1696,20 @@ 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 +1735,7 @@ 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 +1753,15 @@ 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 +1797,8 @@ 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 +1821,13 @@ preliminary study, without a darkroom and without
chemicals.
+Coe, Brian 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 +1847,6 @@ an average annual increase of over 17 percent.
Based on a chart in Jenkins, p. 178.
-Coe, Brian
@@ -1868,6 +1865,8 @@ interpretation or bias.
Coe, 58.
+democracy in technologies of expression expression, technologies of democratic
In this way, the Kodak camera and film were technologies of
expression. The pencil or paintbrush was also a technology of
@@ -1881,6 +1880,8 @@ creativity that the Kodak enabled. Democratic tools gave ordinary
people a way to express themselves more easily than any tools could
have before.
+permissions photography 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 +1899,9 @@ 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 +1914,8 @@ 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 +1933,7 @@ 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 +1952,8 @@ 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 +1969,10 @@ 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 democracy in technologies of expression expression, technologies of democratic
@@ -1976,7 +1988,12 @@ that growth would have been realized. And certainly, nothing like that
growth in a democratic technology of expression would have been
realized.
-camera technology digital cameras Just Think!
If you drive through San
Francisco's Presidio, you might see two gaudy yellow school buses
@@ -1993,8 +2010,9 @@ 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.
-education in media literacy media literacy expression, technologies of media literacy and
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
@@ -2021,6 +2039,7 @@ deconstruct media images. Its aim is to make [kids] literate about the
way media works, the way it's constructed, the way it's delivered, and
the way people access it.
+
This may seem like an odd way to think about literacy.
For most
people, literacy is about reading and writing. Faulkner and Hemingway
@@ -2028,6 +2047,8 @@ and noticing split infinitives are the things that literate
peopl
about.
advertising commercials television advertising 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 +2074,7 @@ 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
@@ -2061,6 +2083,7 @@ from reading a book about it. One learns to write by writing and then
reflecting upon what one has written. One learns to write with images
by making them and then reflecting upon what one has created.
+Daley, Elizabeth Crichton, Michael
This grammar has changed as media has changed. When it was just film,
@@ -2142,7 +2165,7 @@ 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 +2178,7 @@ 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 +2204,8 @@ 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.
+Daley, Elizabeth
@@ -2212,6 +2238,7 @@ make a little movie. But instead, really help you take these elements
that you understand, that are your language, and construct meaning
about the topic.…
+Barish, Stephanie
That empowers enormously. And then what happens, of
course, is eventually, as it has happened in all these classes, they
@@ -2230,7 +2257,13 @@ 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 +2300,7 @@ 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 +2320,10 @@ 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) Internet blogs 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 +2333,8 @@ 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 Internet public 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 +2349,9 @@ 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.
+democracy in technologies of expression elections expression, technologies of democratic
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 +2363,11 @@ 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 democracy public discourse in jury system
But democracy has never just been about elections. Democracy
@@ -2343,6 +2389,7 @@ 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 +2402,7 @@ 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 +2416,13 @@ 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 Internet blogs 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 +2451,8 @@ is having an effect.
Lott, Trent Thurmond, Strom media blog pressure on Internet news 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 +2469,7 @@ Noah Shachtman, With Incessant Postings, a Pundit Stirs the Pot,
York Times, 16 January 2003, G5.
+media commercial 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 +2477,8 @@ newspapers are commercial entities. They must work to keep attention.
If they lose readers, they lose revenue. Like sharks, they must move
on.
+Internet peer-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 +2488,8 @@ 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 +2503,9 @@ conflict of interest is so easily disclosed that you know you can sort of
get it out of the way.
CNN media commercial imperatives of Iraq war media ownership concentration in
These conflicts become more important as media becomes more
concentrated (more on this below). A concentrated media can hide more
@@ -2461,13 +2523,15 @@ 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 +2574,7 @@ 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 +2590,13 @@ 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 +2706,7 @@ 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 +2722,13 @@ quipped to me in a rare moment of despondence.
CHAPTER THREE: Catalogs
+Jordan, Jesse RPI Rensselaer Polytechnic Institute (RPI) Rensselaer Polytechnic Institute (RPI) Rensselaer Polytechnic Institute (RPI) computer network search engine of search engines university computer networks, p2p sharing on Internet search engines used on
In the fall of 2002, Jesse Jordan
of Oceanside, New York, enrolled as a freshman at Rensselaer
@@ -2677,6 +2752,7 @@ 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 +2765,9 @@ 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 Microsoft network 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 +2777,7 @@ 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 +2790,7 @@ 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 +2798,7 @@ 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 +2808,8 @@ might have created; university brochures—basically anything that
users of the RPI network made available in a public folder of their
computer.
+Google education tinkering 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 +2825,11 @@ 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 lawsuits in recording industry copyright infringement lawsuits against student file sharing recording industry copyright 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 +2852,12 @@ 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 lawsuits exaggerated claims of copyright infringement lawsuits statutory damages of copyright infringement lawsuits individual 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 +2869,8 @@ 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 +2889,7 @@ 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 +2909,7 @@ 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 +2925,8 @@ So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
artists recording industry payments to recording industry artist 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 +2948,8 @@ 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 +2971,17 @@ 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>
+piracy in development of content industry if value, then right
theory
If piracy
means
@@ -2980,11 +3086,12 @@ Edison's creative property.
Recorded Music
+copyright law on 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 +3122,7 @@ 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
@@ -3068,6 +3175,10 @@ To Amend and Consolidate the Acts Respecting Copyright, 23
American Graphophone Company player pianos sheet music Congress, U.S. on copyright laws Congress, U.S. on recording industry copyright law statutory licenses in recording industry statutory license system in
These arguments have familiar echoes in the wars of our day. So, too,
do the arguments on the other side. The innovators who developed the
@@ -3093,6 +3204,7 @@ memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
+cover songs
The law soon resolved this battle in favor of the composer
and the recording artist. Congress amended the
@@ -3108,6 +3220,8 @@ copyright law that makes cover songs possible. Once a composer
authorizes a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
+compulsory license statutory licenses
American law ordinarily calls this a compulsory license,
but I will
refer to it as a statutory license.
A statutory license is a license
@@ -3116,6 +3230,7 @@ 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 +3239,9 @@ charge whatever he wants for that permission. The price to publish
Grisham is thus set by Grisham, and copyright law ordinarily says you
have no permission to use Grisham's work except with permission of
Grisham.
-Grisham, John
+Beatles
But the law governing recordings gives recording artists less. And
thus, in effect, the law subsidizes the recording
@@ -3147,8 +3263,10 @@ sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
in Legislative History of the 1909 Copyright Act , E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
-Beatles
+
While the recording industry has been quite coy about this recently,
historically it has been quite a supporter of the statutory license for
@@ -3178,6 +3296,10 @@ March 1967). I am grateful to Glenn Brown for drawing my attention to
this report.
+
By limiting the rights musicians have, by partially pirating their
creative work, the record producers, and the public, benefit.
@@ -3185,7 +3307,8 @@ creative work, the record producers, and the public, benefit.
Radio
-artists recording industry payments to recording industry radio broadcast and artists recording industry payments to
Radio was also born of piracy.
@@ -3232,7 +3355,7 @@ 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 +3372,8 @@ 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
@@ -3258,11 +3382,11 @@ ordinarily gives the creator the right to make this choice. By making
the choice for him or her, the law gives the radio station the right
to take something for nothing.
-
Cable TV
-cable television cable television
Cable TV was also born of a kind of piracy.
@@ -3379,7 +3503,8 @@ 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 +4246,17 @@ legitimate rights of creators while protecting innovation. Sometimes
this has meant more rights for creators. Sometimes less.
artists recording industry payments to composers, copyright protections of Congress, U.S. on copyright laws Congress, U.S. on recording industry copyright law on music recordings copyright law statutory licenses in radio music recordings played on recording industry artist remuneration in recording industry copyright protections in recording industry radio 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 +4278,7 @@ 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 +4297,8 @@ Congress chose a path that would assure
compensation without giving the past
(broadcasters) control over the future (cable).
+Betamax cassette recording VCRs
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 +4331,8 @@ 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 +4355,7 @@ and plain common sense.
Copyright Infringements (Audio and Video Recorders), 475.
Universal City Studios, Inc . v. Sony Corp. of America , 480 F. Supp. 429,
@@ -4221,8 +4363,8 @@ percent of VCR owners had movie libraries of ten videos or more
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 +4415,7 @@ 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 +4496,7 @@ 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 +4509,7 @@ 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 +4600,7 @@ 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 +4620,7 @@ Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
Ellery Bergh, eds., 1903), 330, 333–34.
+property rights intangibility 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 +4659,15 @@ from the implications that the copyright warriors would have us draw.
CHAPTER SIX: Founders
-Henry V books English copyright law developed for copyright law development of copyright law English England, copyright laws developed in United Kingdom history of copyright law in Branagh, Kenneth books English 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 +4680,8 @@ 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
@@ -4557,7 +4712,10 @@ one else could publish copies of a book to which they held the
copyright. Prices of the classics were thus kept high; competition to
produce better or cheaper editions was eliminated.
-British Parliament British Parliament copyright duration of copyright renewability of 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 +4733,10 @@ 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?
+law common vs. positive positive law Licensing Act (1662)
The reason is that the English hadn't yet agreed on what a copyright
@@ -4587,6 +4749,8 @@ published. But after it expired, there was no positive law that said
that the publishers, or Stationers,
had an exclusive right to print
books.
+common law
There was no positive law, but that didn't mean
that there was no law. The Anglo-American legal tradition looks to
@@ -4599,6 +4763,11 @@ background only if it passes a law to displace it. And so the real
question after the licensing statutes had expired was whether the
common law protected a copyright, independent of any positive law.
+Conger British Parliament Scottish publishers Statute of Anne (1710)
This question was important to the publishers, or booksellers,
as
they were called, because there was growing competition from foreign
@@ -4611,6 +4780,7 @@ to again give them exclusive control over publishing. That demand
ultimately
resulted in the Statute of Anne.
+copyright as narrow monopoly right
The Statute of Anne granted the author or proprietor
of a book an
exclusive right to print that book. In an important limitation,
@@ -4620,12 +4790,16 @@ copyright expired,
and the work would then be free and could be
published by anyone. Or so the legislature is thought to have
believed.
+
Now, the thing to puzzle about for a moment is this: Why would
Parliament limit the exclusive right? Not why would they limit it to
the particular limit they set, but why would they limit the right
at all?
+Shakespeare, William Romeo and Juliet (Shakespeare)
For the booksellers, and the authors whom they represented, had a very
strong claim. Take Romeo and Juliet as an example: That play
@@ -4637,12 +4811,14 @@ 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
Statute of Anne. Second, we have to see something important about
booksellers.
+copyright usage restrictions attached to
First, about copyright. In the last three hundred years, we have come
to apply the concept of copyright
ever more broadly. But in 1710, it
@@ -4659,6 +4835,7 @@ the author the exclusive right to copy, the exclusive right to
distribute, the exclusive right to perform, and so on.
Branagh, Kenneth Shakespeare, William
So, for example, even if the copyright to Shakespeare's works were
perpetual, all that would have meant under the original meaning of the
@@ -4670,6 +4847,7 @@ allowed to make his films. The copy-right
was only an exclusive
right to print—no less, of course, but also no more.
Henry VIII, King of England monopoly, copyright as Statute of Monopolies (1656)
Even that limited right was viewed with skepticism by the British.
@@ -4693,7 +4871,10 @@ have it forever.) The state would protect the exclusive right, but
only so long as it benefited society. The British saw the harms from
specialinterest favors; they passed a law to stop them.
-booksellers, English Milton, John booksellers, English Conger copyright duration of
Second, about booksellers. It wasn't just that the copyright was a
monopoly. It was also that it was a monopoly held by the booksellers.
@@ -4714,6 +4895,8 @@ Philip Wittenberg, The Protection and Marketing of Literary
Property (New York: J. Messner, Inc., 1937), 31.
+Enlightenment knowledge, freedom of
Many believed the power the booksellers exercised over the spread of
knowledge was harming that spread, just at the time the Enlightenment
@@ -4722,6 +4905,7 @@ generally. The idea that knowledge should be free was a hallmark of
the time, and these powerful commercial interests were interfering
with that idea.
+British Parliament
To balance this power, Parliament decided to increase competition
among booksellers, and the simplest way to do that was to spread the
@@ -4734,6 +4918,9 @@ to fight the power of the booksellers. The limitation on terms was
an indirect way to assure competition among publishers, and thus the
construction and spread of culture.
+Statute of Anne (1710)
+ copyright in perpetuity
When 1731 (1710 + 21) came along, however, the booksellers were
getting anxious. They saw the consequences of more competition, and
@@ -4769,6 +4956,11 @@ al., 8, Eldred v. Ashcroft , 537 U.
+common law law common vs. positive positive law
Having failed in Parliament, the publishers turned to the courts in a
series of cases. Their argument was simple and direct: The Statute of
@@ -4784,7 +4976,7 @@ they had the right to ban the publication of a book, even if its
Statute of Anne copyright had expired. This, they argued, was the only
way to protect authors.
-Patterson, Raymond
This was a clever argument, and one that had the support of some of
the leading jurists of the day. It also displayed extraordinary
@@ -4801,6 +4993,9 @@ Vaidhyanathan, 37–48.
The bookseller didn't care squat for the rights of the author. His
concern was the monopoly profit that the author's work gave.
+Donaldson, Alexander Patterson, Raymond Scottish publishers
The booksellers' argument was not accepted without a fight.
The hero of this fight was a Scottish bookseller named Alexander
@@ -4810,6 +5005,8 @@ For a compelling account, see David Saunders, Authorship and Copyrigh
(London: Routledge, 1992), 62–69.
+Statute of Anne (1710) Conger Boswell, James Erskine, Andrew
@@ -4832,6 +5029,7 @@ of contemporary Scottish poems with Donaldson.
Ibid., 93.
+common law
When the London booksellers tried to shut down Donaldson's shop in
Scotland, he responded by moving his shop to London, where he sold
@@ -4847,11 +5045,17 @@ His books undercut the Conger prices by 30 to 50 percent, and he
rested his right to compete upon the ground that, under the Statute of
Anne, the works he was selling had passed out of protection.
+Millar v. Taylor
The London booksellers quickly brought suit to block piracy
like
Donaldson's. A number of actions were successful against the pirates,
the most important early victory being Millar v. Taylor .
+Thomson, James copyright in perpetuity Seasons, The (Thomson) Taylor, Robert
@@ -4867,7 +5071,7 @@ 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
@@ -4879,6 +5083,10 @@ reprinting Thomson's poem without Millar's permission. That common law
rule thus effectively gave the booksellers a perpetual right to
control the publication of any book assigned to them.
+British Parliament
Considered as a matter of abstract justice—reasoning as if
justice were just a matter of logical deduction from first
@@ -4893,12 +5101,17 @@ 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.
-Donaldson, Alexander Scottish publishers
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.
+Thomson, James Beckett, Thomas House of Lords Supreme Court, U.S. House of Lords vs.
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
@@ -4913,6 +5126,10 @@ the House of Lords, which functioned much like our own Supreme
Court. In February of 1774, that body had the chance to interpret the
meaning of Parliament's limits from sixty years before.
+Donaldson v. Beckett common law
As few legal cases ever do, Donaldson v. Beckett drew an
enormous amount of attention throughout Britain. Donaldson's lawyers
@@ -4923,6 +5140,7 @@ publication came from that statute. Thus, they argued, after the term
specified in the Statute of Anne expired, works that had been
protected by the statute were no longer protected.
+
The House of Lords was an odd institution. Legal questions were
presented to the House and voted upon first by the law lords,
@@ -4930,6 +5148,9 @@ members of special legal distinction who functioned much like the
Justices in our Supreme Court. Then, after the law lords voted, the
House of Lords generally voted.
+copyright in perpetuity public domain English legal establishment of
The reports about the law lords' votes are mixed. On some counts,
it looks as if perpetual copyright prevailed. But there is no ambiguity
@@ -4940,6 +5161,11 @@ Whatever one's understanding of the common law, now a copyright was
fixed for a limited time, after which the work protected by copyright
passed into the public domain.
+Bacon, Francis Bunyan, John Johnson, Samuel Milton, John Shakespeare, William
The public domain.
Before the case of Donaldson
v. Beckett , there was no clear idea of a public domain in
@@ -4949,12 +5175,13 @@ born. For the first time in Anglo-American history, the legal control
over creative works expired, and the greatest works in English
history—including those of Shakespeare, Bacon, Milton, Johnson,
and Bunyan—were free of legal restraint.
-Bacon, Francis Bunyan, John Johnson, Samuel Milton, John Shakespeare, William
+Scottish publishers
It is hard for us to imagine, but this decision by the House of Lords
fueled an extraordinarily popular and political reaction. In Scotland,
@@ -4969,6 +5196,7 @@ and illuminations.
Rose, 97.
+
In London, however, at least among publishers, the reaction was
equally strong in the opposite direction. The Morning Chronicle
@@ -4989,6 +5217,8 @@ Ibid.
+House of Lords free culture English legal establishment of
Ruined
is a bit of an exaggeration. But it is not an exaggeration to
@@ -5011,19 +5241,32 @@ context, not a context in which the choices about what
culture is available to people and how they get access to it are made
by the few despite the wishes of the many.
-British Parliament
At least, this was the rule in a world where the Parliament is
antimonopoly, resistant to the protectionist pleas of publishers. In a
world where the Parliament is more pliant, free culture would be less
protected.
-
CHAPTER SEVEN: Recorders
+copyright law fair use and documentary film Else, Jon fair use in documentary film films fair use of copyrighted material in
Jon Else is a filmmaker. He is best
known for his documentaries and has been very successful in spreading
@@ -5036,6 +5279,8 @@ Else worked on a documentary that I was involved in. At a break,
he told me a story about the freedom to create with film in America
today.
+Wagner, Richard San Francisco Opera
In 1990, Else was working on a documentary about Wagner's Ring
Cycle. The focus was stagehands at the San Francisco Opera.
@@ -5043,8 +5288,8 @@ Stagehands are a particularly funny and colorful element of an opera.
During a show, they hang out below the stage in the grips' lounge and
in the lighting loft. They make a perfect contrast to the art on the
stage.
-San Francisco Opera
+Simpsons, The
During one of the performances, Else was shooting some stagehands
playing checkers. In one corner of the room was a television set.
@@ -5054,6 +5299,8 @@ and the opera company played Wagner, was The Simpsons . As
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
+films multiple copyrights associated with
Years later, when he finally got funding to complete the film, Else
attempted to clear the rights for those few seconds of The Simpsons .
@@ -5061,7 +5308,8 @@ For of course, those few seconds are copyrighted; and of course, to use
copyrighted material you need the permission of the copyright owner,
unless fair use
or some other privilege applies.
-Gracie Films Gracie Films Groening, Matt
Else called Simpsons creator Matt Groening's office to get permission.
Groening approved the shot. The shot was a four-and-a-halfsecond image
@@ -5069,7 +5317,7 @@ on a tiny television set in the corner of the room. How could it hurt?
Groening was happy to have it in the film, but he told Else to contact
Gracie Films, the company that produces the program.
-Gracie Films Fox (film company)
Gracie Films was okay with it, too, but they, like Groening, wanted
to be careful. So they told Else to contact Fox, Gracie's parent company.
@@ -5077,6 +5325,7 @@ Else called Fox and told them about the clip in the corner of the one
room shot of the film. Matt Groening had already given permission,
Else said. He was just confirming the permission with Fox.
+
Then, as Else told me, two things happened. First we discovered
… that Matt Groening doesn't own his own creation—or at
@@ -5085,7 +5334,9 @@ And second, Fox wanted ten thousand dollars as a licensing fee for us
to use this four-point-five seconds of … entirely unsolicited
Simpsons which was in the corner of the shot.
-Herrera, Rebecca Herrera, Rebecca
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
@@ -5094,6 +5345,7 @@ asking for your educational rate on this. That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
+Wagner, Richard
I wanted to make sure I had my facts straight,
he told me. Yes, you
have your facts straight,
she said. It would cost $10,000 to use the
@@ -5106,6 +5358,7 @@ if you quote me, I'll turn you over to our attorneys. As an assistant
to Herrera told Else later on, They don't give a shit. They just want
the money.
+San Francisco Opera Day After Trinity, The
@@ -5116,6 +5369,8 @@ very last minute before the film was to be released, Else digitally
replaced the shot with a clip from another film that he had worked on,
The Day After Trinity , from ten years before.
+Fox (film company) Groening, Matt
There's no doubt that someone, whether Matt Groening or Fox, owns the
copyright to The Simpsons . That copyright is their property. To use
@@ -5150,11 +5405,14 @@ Else's use of just 4.5 seconds of an indirect shot of a SimpsonsThe Simpsons —and fair use does
not require the permission of anyone.
+
So I asked Else why he didn't just rely upon fair use.
Here's his reply:
+fair use legal intimidation tactics against
The Simpsons fiasco was for me a great lesson in the gulf between what
lawyers find irrelevant in some abstract sense, and what is crushingly
@@ -5164,7 +5422,9 @@ fair use in an absolute legal sense. But I couldn't rely on the
concept in any concrete way. Here's why:
-
+
+Errors and Omissions insurance
Before our films can be broadcast, the network requires that we buy
Errors and Omissions insurance. The carriers require a detailed
@@ -5173,8 +5433,10 @@ shot in the film. They take a dim view of fair use,
and a claim o
fair use
can grind the application process to a halt.
-Star Wars Fox (film company) Groening, Matt Lucas, George Star Wars
I probably never should have asked Matt Groening in the first
@@ -5196,7 +5458,9 @@ life, regardless of the merits of my claim. He made clear that it
would boil down to who had the bigger legal department and the deeper
pockets, me or them.
-
+
+
The question of fair use usually comes up at the end of the
@@ -5205,6 +5469,7 @@ money.
+
In theory, fair use means you need no permission. The theory therefore
supports free culture and insulates against a permission culture. But
@@ -5220,6 +5485,12 @@ publishers' profits against the unfair competition of a pirate. It has
matured into a sword that interferes with any use, transformative or
not.
+
@@ -5690,6 +5961,7 @@ billion pages, and it was growing at about a billion pages a month.
Vanderbilt University Way Back Machine libraries archival 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 +6055,7 @@ events of that day.
Movie Archive archive.org Internet Archive films archive of Internet Archive Duck and Cover film 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 +6407,7 @@ 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 +6428,8 @@ 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
@@ -6166,6 +6443,10 @@ ought to be. Not whether artists should be paid,
but whether institutions designed to assure that artists get paid need
also control how culture develops.
+free culture four modalities of constraint on regulation four modalities of copyright law as ex post regulation modality law as constraint modality
@@ -6181,6 +6462,7 @@ weaken the right or regulation. I represented it with this diagram:
How four different modalities of regulation interact to support or weaken the right or regulation.
![]()
+Madonna
At the center of this picture is a regulated dot: the individual or
group that is the target of regulation, or the holder of a right. (In
@@ -6210,7 +6492,7 @@ could easily be more harsh than many of the punishments imposed by the
state. The mark of the difference is not the severity of the rule, but
the source of the enforcement.
-market constraints market constraints
The market is a third type of constraint. Its constraint is effected
through conditions: You can do X if you pay Y; you'll be paid M if you
@@ -6237,6 +6519,10 @@ blocks your way, it is the law of gravity that enforces this
constraint. If a $500 airplane ticket stands between you and a flight
to New York, it is the market that enforces this constraint.
+law as constraint modality
@@ -6254,10 +6540,11 @@ 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 architecture, constraint effected through market constraints norms, regulatory influence of driving speed, constraints on speeding, constraints on
So, for example, consider the freedom
to drive a car at a high
speed. That freedom is in part restricted by laws: speed limits that
@@ -6298,8 +6585,8 @@ 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.
![]()
@@ -6349,8 +6636,10 @@ effective liberty that each of these groups might face.
market constraints
+
Why Hollywood Is Right
+copyright four regulatory modalities on
The most obvious point that this model reveals is just why, or just
how, Hollywood is right. The copyright warriors have rallied Congress
@@ -6365,8 +6654,9 @@ Internet:
Copyright's regulation before the Internet.
![]()
-market constraints norms, regulatory influence of architecture, constraint effected through law as constraint modality norms, regulatory influence of
There is balance between law, norms, market, and architecture. The law
@@ -6380,6 +6670,10 @@ uses of copyrighted material may well be infringement, but the norms
of our society (before the Internet, at least) had no problem with
this form of infringement.
+Internet copyright regulatory balance lost with peer-to-peer (p2p) file sharing regulatory balance lost in market constraints MP3s
Enter the Internet, or, more precisely, technologies such as MP3s and
p2p sharing. Now the constraint of architecture changes dramatically,
@@ -6388,6 +6682,9 @@ architecture relax the regulation of copyright, norms pile on. The
happy balance (for the warriors, at least) of life before the Internet
becomes an effective state of anarchy after the Internet.
+technology established industries threatened by changes in
Thus the sense of, and justification for, the warriors' response.
Technology has changed, the warriors say, and the effect of this
@@ -6402,6 +6699,8 @@ looting that results.
effective state of anarchy after the Internet.
![]()
+Commerce, U.S. Department of regulation as establishment protectionism
Neither this analysis nor the conclusions that follow are new to the
warriors. Indeed, in a White Paper
prepared by the Commerce
@@ -6414,6 +6713,9 @@ innovative marketing techniques, (3) technologists should push to
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
+farming steel industry
This mixed strategy is just what copyright needed—if it was to
@@ -6432,6 +6734,9 @@ to bail them out when a virus (architecture) devastates their
crop. Unions have no hesitation appealing to the government to bail
them out when imports (market) wipe out the U.S. steel industry.
+Brown, John Seely
Thus, there's nothing wrong or surprising in the content industry's
campaign to protect itself from the harmful consequences of a
@@ -6440,9 +6745,14 @@ the changing technology of the Internet has not had a profound effect
on the content industry's way of doing business, or as John Seely
Brown describes it, its architecture of revenue.
-railroad industry advertising television advertising on commercials camera technology digital cameras Kodak cameras railroad industry remote channel changers
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
@@ -6473,8 +6783,13 @@ market. But does anyone believe we should regulate remotes to
reinforce commercial television? (Maybe by limiting them to function
only once a second, or to switch to only ten channels within an hour?)
+free market, technological changes in Brezhnev, Leonid FM radio radio FM spectrum of Gates, Bill market competition RCA
The obvious answer to these obviously rhetorical questions is no.
In a free society, with a free market, supported by free enterprise and
@@ -6506,6 +6821,9 @@ changes they create, in response to the request of those hurt by
changing technology, are changes that preserve the incentives and
opportunities for innovation and change.
+Constitution, U.S. First Amendment to First Amendment speech, freedom of constitutional guarantee of
In the context of laws regulating speech—which include,
obviously, copyright law—that duty is even stronger. When the
@@ -6520,6 +6838,8 @@ Congress is being asked to pass laws that would abridge
the freed
of speech, it should ask— carefully—whether such
regulation is justified.
+
My argument just now, however, has nothing to do with whether
@@ -6532,8 +6852,10 @@ effect of the changes the content industry wants.
Here's the metaphor that will capture the argument to follow.
-DDT Müller, Paul Hermann Müller, Paul Hermann DDT insecticide, environmental consequences of farming
In 1873, the chemical DDT was first synthesized. In 1948, Swiss
chemist Paul Hermann Müller won the Nobel Prize for his work
@@ -6547,7 +6869,8 @@ production is a good thing. No one doubts that the work of Müller was
important and valuable and probably saved lives, possibly millions.
Carson, Rachel Silent Sprint (Carson) Silent Spring (Carson) environmentalism
But in 1962, Rachel Carson published Silent Spring , which argued that
DDT, whatever its primary benefits, was also having unintended
@@ -6563,7 +6886,9 @@ problems DDT caused were worse than the problems it solved, at least
when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
+Boyle, James copyright law innovative freedom balanced with fair compensation in
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an environmentalism
for
@@ -6585,6 +6910,7 @@ protecting copyright not an endorsement of anarchy or an attack on
authors. It is an environment of creativity that we seek, and we
should be aware of our actions' effects on the environment.
+
My argument, in the balance of this chapter, tries to map exactly
this effect. No doubt the technology of the Internet has had a dramatic
@@ -6596,21 +6922,33 @@ not be only that copyrighted work is effectively protected. Also, and
generally missed, the net effect of this massive increase in protection
will be devastating to the environment for creativity.
+
In a line: To kill a gnat, we are spraying DDT with consequences
for free culture that will be far more devastating than that this gnat will
be lost.
-
Beginnings
+Constitution, U.S. on creative property Constitution, U.S. copyright purpose established in Constitution, U.S. Progress Clause of copyright constitutional purpose of copyright duration of creative property constitutional tradition on Progress Clause copyright duration of
America copied English copyright law. Actually, we copied and improved
English copyright law. Our Constitution makes the purpose of creative
property
rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
+Congress, U.S. in constitutional Progress Clause
The power to establish creative property
rights is granted to
Congress in a way that, for our Constitution, at least, is very
@@ -6629,6 +6967,9 @@ does not say. It does not say Congress has the power to grant
purpose, and its purpose is a public one, not the purpose of enriching
publishers, nor even primarily the purpose of rewarding authors.
+copyright law as protection of creators copyright law history of American
The Progress Clause expressly limits the term of copyrights. As we saw
in chapter to Authors
only.
+Senate, U.S. Constitution, U.S. structural checks and balances of electoral college
The design of the Progress Clause reflects something about the
Constitution's design in general. To avoid a problem, the framers
@@ -6654,6 +6998,8 @@ case, a structure built checks and balances into
the constitutional frame, structured to prevent otherwise inevitable
concentrations of power.
+
I doubt the framers would recognize the regulation we call copyright
today. The scope of that regulation is far beyond anything they ever
@@ -6661,6 +7007,10 @@ considered. To begin to understand what they did, we need to put our
copyright
in context: We need to see how it has changed in the 210
years since they first struck its design.
+copyright four regulatory modalities on
Some of these changes come from the law: some in light of changes
in technology, and some in light of changes in technology given a
@@ -6686,6 +7036,11 @@ Let me explain how.
Law: Duration
+copyright duration of Congress, U.S. on copyright laws Copyright Act (1790) creative property common law protections of public domain balance of U.S. content in
When the first Congress enacted laws to protect creative property, it
faced the same uncertainty about the status of creative property that
@@ -6710,6 +7065,8 @@ 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) law federal vs. state
That uncertainty ended after Congress passed legislation granting
copyrights. Because federal law overrides any contrary state law,
@@ -6718,6 +7075,7 @@ protections. Just as in England the Statute of Anne eventually meant
that the copyrights for all English works expired, a federal statute
meant that any state copyrights expired as well.
+copyright renewability of
In 1790, Congress enacted the first copyright law. It created a
federal copyright and secured that copyright for fourteen years. If
@@ -6725,6 +7083,7 @@ the author was alive at the end of that fourteen years, then he could
opt to renew the copyright for another fourteen years. If he did not
renew the copyright, his work passed into the public domain.
+
While there were many works created in the United States in the first
ten years of the Republic, only 5 percent of the works were actually
@@ -6749,6 +7108,8 @@ copyright was short. The initial term of copyright was fourteen years,
with the option of renewal for an additional fourteen years. Copyright
Act of May 31, 1790, §1, 1 stat. 124.
+
This system of renewal was a crucial part of the American system
of copyright. It assured that the maximum terms of copyright would be
@@ -6775,8 +7136,9 @@ M. Landes and Richard A. Posner, Indefinitely Renewable Copyright,University of Chicago Law Review 70 (2003): 471, 498–501, and
accompanying figures.
-books out of print books resales of books out of print
Even today, this structure would make sense. Most creative work
has an actual commercial life of just a couple of years. Most books fall
@@ -6789,6 +7151,9 @@ copyright. The only practical commercial use of the books at that time
is to sell the books as used books; that use—because it does not
involve publication—is effectively free.
+Congress, U.S. on copyright laws Congress, U.S. copyright terms extended by copyright law term extensions in
In the first hundred years of the Republic, the term of copyright was
changed once. In 1831, the term was increased from a maximum of 28
@@ -6797,6 +7162,8 @@ from 14 years to 28 years. In the next fifty years of the Republic,
the term increased once again. In 1909, Congress extended the renewal
term of 14 years to 28 years, setting a maximum term of 56 years.
+Sonny Bono Copyright Term Extension Act (CTEA) (1998) public domain future patents vs. future copyrights in
Then, beginning in 1962, Congress started a practice that has defined
copyright law since. Eleven times in the last forty years, Congress
@@ -6807,6 +7174,7 @@ In 1976, Congress extended all existing copyrights by nineteen years.
And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
extended the term of existing and future copyrights by twenty years.
+patents in public domain
The effect of these extensions is simply to toll, or delay, the passing
of works into the public domain. This latest extension means that the
@@ -6818,6 +7186,7 @@ after the Sonny Bono Act, while one million patents will pass into the
public domain, zero copyrights will pass into the public domain by virtue
of the expiration of a copyright term.
+
The effect of these extensions has been exacerbated by another,
little-noticed change in the copyright law. Remember I said that the
@@ -6828,6 +7197,9 @@ would pass more quickly into the public domain. The works remaining
under protection would be those that had some continuing commercial
value.
+Sonny Bono Copyright Term Extension Act (CTEA) (1998) copyright of natural authors vs. corporations corporations copyright terms for
The United States abandoned this sensible system in 1976. For
all works created after 1978, there was only one copyright term—the
@@ -6847,6 +7219,8 @@ is orphaned by these changes in copyright law. Despite the requirement
that terms be limited,
we have no evidence that anything will limit
them.
+
The effect of these changes on the average duration of copyright is
dramatic. In 1973, more than 85 percent of copyright owners failed to
@@ -6862,16 +7236,24 @@ more than thirty-two years, and averaged thirty years. See Landes and
Posner, Indefinitely Renewable Copyright,
loc. cit.
+
Law: Scope
+copyright scope of
The scope
of a copyright is the range of rights granted by the law.
The scope of American copyright has changed dramatically. Those
changes are not necessarily bad. But we should understand the extent
of the changes if we're to keep this debate in context.
+copyright law on republishing vs. transformation of original work derivative works historical shift in copyright coverage of
In 1790, that scope was very narrow. Copyright covered only maps,
charts, and books.
That means it didn't cover, for example, music or
@@ -6900,6 +7282,9 @@ way, the right covers more creative work, protects the creative work
more broadly, and protects works that are based in a significant way
on the initial creative work.
+copyright marking of formalities copyright law registration requirement of
At the same time that the scope of copyright has expanded, procedural
limitations on the right have been relaxed. I've already described the
@@ -6914,6 +7299,7 @@ of the history of American copyright law, there was a requirement that
works be deposited with the government before a copyright could be
secured.
+
The reason for the registration requirement was the sensible
understanding that for most works, no copyright was required. Again,
@@ -6928,6 +7314,7 @@ that after the copyright expired, there would be a copy of the work
somewhere so that it could be copied by others without locating the
original author.
+copyright law European
All of these formalities
were abolished in the American system when
we decided to follow European copyright law. There is no requirement
@@ -6936,10 +7323,14 @@ automatic; the copyright exists whether or not you mark your work with
a ©; and the copyright exists whether or not you actually make a
copy available for others to copy.
+
Consider a practical example to understand the scope of these
differences.
+Copyright Act (1790)
If, in 1790, you wrote a book and you were one of the 5 percent who
actually copyrighted that book, then the copyright law protected you
@@ -6958,6 +7349,9 @@ The Copyright Act was thus a tiny
regulation of a tiny proportion of a tiny part of the creative market in
the United States—publishers.
+copyright law on republishing vs. transformation of original work derivative works piracy vs. piracy derivative work vs.
The act left other creators totally unregulated. If I copied your poem
@@ -6968,6 +7362,7 @@ those activities were regulated by the original copyright act. These
creative activities remained free, while the activities of publishers
were restrained.
+
Today the story is very different: If you write a book, your book is
automatically protected. Indeed, not just your book. Every e-mail,
@@ -6996,6 +7391,7 @@ copyright holder. The copyright, in other words, is now not just an
right to your writings, but an exclusive right to your writings
and a large proportion of the writings inspired by them.
+
It is this derivative right that would seem most bizarre to our
framers, though it has become second nature to us. Initially, this
@@ -7045,6 +7441,9 @@ 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
@@ -7059,9 +7458,13 @@ derivative right is unjustified. My aim just now is much narrower:
simply to make clear that this expansion is a significant change from
the rights originally granted.
+
Law and Architecture: Reach
+copyright law copies as core issue of copyright law scope of
Whereas originally the law regulated only publishers, the change in
copyright's scope means that the law today regulates publishers, users,
@@ -7078,6 +7481,8 @@ existing law (which regulates copies;
17 United States
102) is that if there is a copy, there is a right.
+Valenti, Jack on creative property rights creative property other property rights vs.
Copies.
That certainly sounds like the obvious thing for
@@ -7092,6 +7497,7 @@ copies should not be the trigger for copyright
law. More precisely, they should not always be
the trigger for copyright law.
+
This is perhaps the central claim of this book, so let me take this
very slowly so that the point is not easily missed. My claim is that the
@@ -7108,15 +7514,22 @@ because it is clear that the
current reach of copyright was never contemplated, much less chosen,
by the legislators who enacted copyright law.
+
-We can see this point abstractly by beginning with this largely
+We can see this point abstractly by beginning with this largely
empty circle.
All potential uses of a book.
![]()
-books three types of uses of books three types of uses of copyright law copies as core issue of Internet copyright applicability altered by technology of technology copyright intent altered by derivative works piracy vs. piracy derivative work vs.
Think about a book in real space, and imagine this circle to represent
@@ -7143,6 +7556,10 @@ 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).
+fair use copyright law fair use and
Finally, there is a tiny sliver of otherwise regulated copying uses
that remain unregulated because the law considers these fair uses.
@@ -7152,6 +7569,8 @@ that remain unregulated because the law considers these fair uses.
Republishing stands at the core of this circle of possible uses of a copyrighted work.
![]()
+Constitution, U.S. First Amendment to First Amendment
These are uses that themselves involve copying, but which the law
treats as unregulated because public policy demands that they remain
@@ -7171,14 +7590,17 @@ for public policy (and possibly First Amendment) reasons.
Uses that before were presumptively unregulated are now presumptively regulated.
![]()
+copyright usage restrictions attached to
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.
-books on Internet books on Internet Internet books on fair use Internet burdens on
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.
@@ -7200,6 +7622,8 @@ would defend the unregulated uses of copyrighted work must look
exclusively to category 3, fair uses, to bear the burden of this
shift.
+
So let's be very specific to make this general point clear. Before the
Internet, if you purchased a book and read it ten times, there would
@@ -7212,7 +7636,8 @@ night before you went to bed. None of those instances of
use—reading— could be regulated by copyright law because
none of those uses produced a copy.
-books on Internet e-books derivative works technological 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 +7664,7 @@ 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 law on 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
@@ -7251,6 +7677,9 @@ troubling the expansion with respect to copying a particular work, it
is extraordinarily troubling with respect to transformative uses of
creative work.
+fair use Internet burdens on copyright law fair use and derivative works fair use vs.
Third, this shift from category 1 to category 2 puts an extraordinary
@@ -7265,6 +7694,11 @@ 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
@@ -7275,7 +7709,16 @@ grounded in fair use makes sense when the vast majority of uses are
presumptively regulated, then the protections of fair use are not
enough.
-advertising Video Pipeline advertising film industry trailer advertisements of
The case of Video Pipeline is a good example. Video Pipeline was
in the business of making trailer
advertisements for movies available
@@ -7293,6 +7736,10 @@ technique by giving on-line stores the same ability to enable
before you buy the book, so, too, you would be able to sample a bit
from the movie on-line before you bought it.
+Disney, Inc. copyright law fair use and copyright law copies as core issue of fair use legal intimidation tactics against
In 1998, Video Pipeline informed Disney and other film distributors
that it intended to distribute the trailers through the Internet
@@ -7308,6 +7755,11 @@ distribution immediately. Video Pipeline thought it was within their
lawsuit to ask the court to declare that these rights were in fact
their rights.
+copyright usage restrictions attached to copyright infringement lawsuits willful infringement findings in willful infringement
Disney countersued—for $100 million in damages. Those damages
were predicated upon a claim that Video Pipeline had willfully
@@ -7327,7 +7779,7 @@ permitted to list the titles of the films they were selling, but they were
not allowed to show clips of the films as a way of selling them without
Disney's permission.
-first-sale doctrine
Now, you might think this is a close case, and I think the courts
would consider it a close case. My point here is to map the change
@@ -7342,8 +7794,15 @@ copy, use on the Internet becomes subject to the copyright owner's
control. The technology expands the scope of effective control,
because the technology builds a copy into every transaction.
+Barnes & Noble browsing market competition
No doubt, a potential is not yet an abuse, and so the potential for
@@ -7377,6 +7836,8 @@ second important change brought about by the Internet magnifies its
significance. This second change does not affect the reach of copyright
regulation; it affects how such regulation is enforced.
+copyright law technology as automatic enforcer of technology copyright enforcement controlled by
In the world before digital technology, it was generally the law that
controlled whether and how someone was regulated by copyright law.
@@ -7386,8 +7847,8 @@ 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
@@ -7421,7 +7882,7 @@ like the Marx Brothers, knew that no court would ever enforce such a
silly claim. This extremism was irrelevant to the real freedoms anyone
(including Warner Brothers) enjoyed.
-books on Internet books on Internet
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
@@ -7432,10 +7893,10 @@ 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 +7964,8 @@ 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 +8019,7 @@ 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 +8047,8 @@ 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 domain e-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
@@ -7597,7 +8062,7 @@ following report:
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
@@ -7624,6 +8089,8 @@ 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 +8099,15 @@ 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 Sony Aibo robotic dog produced by Aibo robotic dog robotic dog Sony Aibo 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 +8159,9 @@ 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 +8249,9 @@ 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 Sony Aibo robotic dog produced by Aibo robotic dog robotic dog Sony Aibo 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 +8265,9 @@ 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 +9221,9 @@ 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 +9304,8 @@ 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 +9411,7 @@ 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 +9587,10 @@ work spread across the Internet. But as the law is currently crafted, this
work is presumptively illegal.
Worldcom copyright infringement lawsuits exaggerated claims of copyright infringement lawsuits in 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
@@ -9277,6 +9748,9 @@ permission. That's the point at which they control it.
Constraining Innovators
+copyright law innovation hampered by innovation industry establishment opposed to regulation as establishment protectionism
The story of the last section was a crunchy-lefty
story—creativity quashed, artists who can't speak, yada yada
@@ -9285,16 +9759,18 @@ weird art out there, and enough expression that is critical of what
seems to be just about everything. And if you think that, you might
think there's little in this story to worry you.
+market constraints
But there's an aspect of this story that is not lefty in any sense.
Indeed, it is an aspect that could be written by the most extreme
promarket ideologue. And if you're one of these sorts (and a special
-one at that, 188 pages into a book like this), then you can see this
-other aspect by substituting free market
every place I've spoken of
-free culture.
The point is the same, even if the interests
-affecting culture are more fundamental.
+one at that, free market
+every place I've spoken of free culture.
The point is
+the same, even if the interests affecting culture are more
+fundamental.
-market constraints
The charge I've been making about the regulation of culture is the
same charge free marketers make about regulating markets. Everyone, of
@@ -9308,7 +9784,9 @@ perspectives are constantly attuned to the ways in which regulation
simply enables the powerful industries of today to protect themselves
against the competitors of tomorrow.
+Barry, Hank venture capitalists
This is the single most dramatic effect of the shift in regulatory
@@ -9322,11 +9800,15 @@ 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.
+Future of Ideas, The (Lessig) Lessig, Lawrence
Consider one example to make the point, a story whose beginning
I told in The Future of Ideas and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
+MP3.com my.mp3.com Roberts, Michael
In 1997, Michael Roberts launched a company called MP3.com. MP3.com
@@ -9379,7 +9861,13 @@ 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 copyright infringement lawsuits distribution technology targeted in copyright infringement lawsuits exaggerated claims of copyright infringement lawsuits in recording industry recording industry copyright infringement lawsuits of Recording Industry Association of America (RIAA) copyright infringement lawsuits filed by regulation outsize penalties of
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
@@ -9403,6 +9891,7 @@ illegal; therefore, this lawsuit sought to punish any lawyer who had
dared to suggest that the law was less restrictive than the labels
demanded.
+
The clear purpose of this lawsuit (which was settled for an
unspecified amount shortly after the story was no longer covered in
@@ -9414,17 +9903,27 @@ 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.
-Barry, Hank copyright infringement lawsuits distribution technology targeted in BMW cars, MP3 sound systems in EMI Hummer, John Barry, Hank Hummer Winblad EMI MP3 players Napster venture capital for Needleman, Rafe Universal Music Group venture capitalists
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
venture capital firm (VC) that had funded Napster at a certain stage of
-its development, its cofounder ( John Hummer), and general partner
+its development, its cofounder (John Hummer), and general partner
(Hank Barry).
See Joseph Menn, Universal, EMI Sue Napster Investor,
Los Angeles
@@ -9449,8 +9948,6 @@ afraid of technologies that touch content. In an article in
discussion with BMW:
-BMW cars, MP3 sound system in
I asked why, with all the storage capacity and computer power in
the car, there was no way to play MP3 files. I was told that BMW
@@ -9469,6 +9966,9 @@ to Dr. Mohammad Al-Ubaydli for this example.
+
This is the world of the mafia—filled with your money or your
life
offers, governed in the end not by courts but by the threats
@@ -9600,6 +10100,8 @@ wrong, it is regulation the powerful use to defeat competitors.
cassette recording VCRs VCRs statutory licenses copyright law statutory licenses in
As I described in chapter
Jessica Litman, Digital Copyright (Amherst,
N.Y.: Prometheus Books, 2001).
+Digital Copyright (Litman) Litman, Jessica
+Internet radio on radio on Internet
The response by the courts has been fairly universal.
@@ -9766,7 +10271,15 @@ those imposed by the law. Copyright law is one such law. So the first
question we should ask is, what copyright rules would govern Internet
radio?
-artists recording industry payments to artists recording industry payments to Congress, U.S. on copyright laws Congress, U.S. on radio Congress, U.S. on recording industry recording industry artist remuneration in recording industry radio broadcast and recording industry Internet radio hampered by Recording Industry Association of America (RIAA) on Internet radio fees Recording Industry Association of America (RIAA) lobbying power of
But here the power of the lobbyists is reversed. Internet radio is a
new industry. The recording artists, on the other hand, have a very
@@ -9813,7 +10326,11 @@ interests, that could have been done in a media-neutral way.
A regular radio station broadcasting the same content would pay no
equivalent fee.
-
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio
@@ -9898,7 +10415,7 @@ unique user identifier;
the country in which the user received the transmissions.
-
+Library of Congress
The Librarian of Congress eventually suspended these reporting
requirements, pending further study. And he also changed the original
@@ -9914,6 +10431,9 @@ differences? Was the motive to protect artists against piracy?
Real Networks Alben, Alex Recording Industry Association of America (RIAA) on Internet radio fees artists recording industry payments to recording industry artist remuneration in
In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
@@ -9945,6 +10465,9 @@ added.)
Translation: The aim is to use the law to eliminate competition, so
that this platform of potentially immense competition, which would
@@ -9954,6 +10477,12 @@ or the left, who should endorse this use of the law. And yet there is
practically no one, on either the right or the left, who is doing anything
effective to prevent it.
+
Corrupting Citizens
@@ -10446,7 +10975,8 @@ success will require.
CHAPTER THIRTEEN: Eldred
-Hawthorne, Nathaniel Eldred, Eric Hawthorne, Nathaniel
In 1995 , a father was frustrated
that his daughters didn't seem to like Hawthorne. No doubt there was
@@ -10456,6 +10986,8 @@ Hampshire, decided to put Hawthorne on the Web. An electronic version,
Eldred thought, with links to pictures and explanatory text, would
make this nineteenth-century author's work come alive.
+libraries of public-domain literature public domain library of works derived from
It didn't work—at least for his daughters. They didn't find
Hawthorne any more interesting than before. But Eldred's experiment
@@ -10463,6 +10995,8 @@ 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
@@ -10474,6 +11008,7 @@ accessible to the twentieth century, Eldred transformed Hawthorne, and
many others, into a form more accessible—technically
accessible—today.
+Scarlet Letter, The (Hawthorne)
Eldred's freedom to do this with Hawthorne's work grew from the same
source as Disney's. Hawthorne's Scarlet Letter had passed into the
@@ -10486,7 +11021,8 @@ 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 +11035,7 @@ social causes. But with the Internet, it includes a wide range of
individuals and groups dedicated to spreading culture
generally.
+pornography
+Congress, U.S. copyright terms extended by copyright duration of copyright law term extensions in Frost, Robert New Hampshire (Frost) patents in public domain patents future patents vs. future copyrights in
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
collection of poems New Hampshire was slated to
@@ -10529,8 +11073,12 @@ 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.
+Bono, Mary Bono, Sonny copyright in perpetuity Sonny Bono Copyright Term Extension Act (CTEA) (1998)
@@ -10549,8 +11097,12 @@ you know, there is also Jack Valenti's proposal for a term to last
forever less one day. Perhaps the Committee may look at that next
Congress, 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
-
+copyright law felony punishment for infringement of NET (No Electronic Theft) Act (1998) No Electronic Theft (NET) Act (1998) peer-to-peer (p2p) file sharing felony punishments for
Eldred decided to fight this law. He first resolved to fight it through
civil disobedience. In a series of interviews, Eldred announced that he
@@ -10560,6 +11112,11 @@ of publishing would make Eldred a felon—whether or not anyone
complained. This was a dangerous strategy for a disabled programmer
to undertake.
+Congress, U.S. constitutional powers of Constitution, U.S. Progress Clause of Progress Clause Lessig, Lawrence Eldred case involvement of
It was here that I became involved in Eldred's battle. I was a
constitutional
@@ -10577,6 +11134,7 @@ by securing for limited Times to Authors … exclusive Right to
their … Writings. …
+
As I've described, this clause is unique within the power-granting
clause of Article I, section 8 of our Constitution. Every other clause
@@ -10587,6 +11145,9 @@ specific—to promote … Progress
—through means t
are also specific— by securing
exclusive Rights
(i.e.,
copyrights) for limited Times.
+Jaszi, Peter
In the past forty years, Congress has gotten into the practice of
@@ -10599,6 +11160,9 @@ Congress has the power to extend its term, then Congress can achieve
what the Constitution plainly forbids—perpetual terms on the
installment plan,
as Professor Peter Jaszi so nicely put it.
+Lessig, Lawrence Eldred case involvement of
As an academic, my first response was to hit the books. I remember
sitting late at the office, scouring on-line databases for any serious
@@ -10744,6 +11308,9 @@ constitutional requirement that terms be limited.
If
they could extend it once, they would extend it again and again and
again.
+
It was also my judgment that this Supreme Court
would not allow Congress to extend existing terms. As anyone close to
@@ -10838,6 +11405,10 @@ 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 copyright constitutional purpose of copyright duration of Disney, Walt
Now let's pause for a moment to
make sure we understand what the argument in
@@ -11045,7 +11616,7 @@ For most of the history of film, the costs of restoring film were very
high; digital technology has lowered these costs substantially. While
it cost more than $10,000 to restore a ninety-minute black-and-white
film in 1993, it can now cost as little as $100 to digitize one hour of
-mm film.
+8 mm film.
Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
Supporting the Petitoners, Eldred v. Ashcroft , 537
@@ -11231,7 +11802,7 @@ market is not doing the job, then we should allow nonmarket forces the
freedom to fill the gaps. As one researcher calculated for American
culture, 94 percent of the films, books, and music produced between
-and 1946 is not commercially available. However much you love the
+1923 and 1946 is not commercially available. However much you love the
commercial market, if access is a value, then 6 percent is a failure
to provide that value.
@@ -11479,6 +12050,8 @@ 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 +12081,8 @@ 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 +13107,12 @@ 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 drugs pharmaceutical HIV/AIDS therapies
There are more than 35 million
people with the AIDS virus worldwide. Twenty-five million of them live
@@ -12567,6 +13145,8 @@ 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.
+patents on pharmaceuticals pharmaceutical patents
These prices are not high because the ingredients of the drugs are
@@ -12594,6 +13174,9 @@ 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 +13193,7 @@ 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 +13233,7 @@ 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 +13288,7 @@ 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 +13299,7 @@ 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?
+corporations in 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 +13316,7 @@ 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 rights of 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 +13332,13 @@ 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 +13357,9 @@ 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 +13368,7 @@ 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 +13397,17 @@ 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 rights international organization on issues of Internet development of IBM PLoS (Public Library of Science) Public Library of Science (PLoS) public domain public projects in single nucleotied polymorphisms (SNPs) Wellcome Trust World Intellectual Property Organization (WIPO) World Wide Web Global Positioning System Reagan, Ronald open source and free software.
-academic journals IBM PLoS (Public Library of Science)
@@ -12852,6 +13455,7 @@ 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, Lawrence in 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 +13467,7 @@ 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 +13498,12 @@ 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 Microsoft on 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 +13548,7 @@ May 2001), available at
link #63 .
+General Public License (GPL) GPL (General Public License)
@@ -12958,7 +13569,9 @@ 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 rights international organization on issues of World Intellectual Property Organization (WIPO) Krim, Jonathan Microsoft WIPO meeting opposed by
It is therefore understandable that as a proprietary software
@@ -12982,6 +13595,7 @@ 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 +13607,11 @@ 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 +13623,10 @@ 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) drugs pharmaceutical generic drugs patents on 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 +13667,8 @@ 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 rights feudal 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 +13695,8 @@ 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 +13704,8 @@ 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,
@@ -13335,6 +13960,8 @@ permission before you use
a copyrighted work in any way. The sorts believe you should be able to do with content
as you wish, regardless of whether you have permission or not.
+Internet development of Internet initial free character of
When the Internet was first born, its initial architecture effectively
tilted in the no rights reserved
direction. Content could be copied
@@ -13361,6 +13988,8 @@ content requires permission. The cut and paste
world that define
the Internet today will become a get permission to cut and paste
world that is a creator's nightmare.
+
What's needed is a way to say something in the middle—neither
all rights reserved
nor no rights reserved
but some rights
@@ -13369,10 +13998,11 @@ creators to free content as they see fit. In other words, we need a
way to restore a set of freedoms that we could just take for granted
before.
-
Rebuilding Freedoms Previously Presumed: Examples
-browsing free culture restoration efforts on previous aspects of browsing privacy rights
If you step back from the battle I've been describing here, you will
recognize this problem from other contexts. Think about
@@ -13403,8 +14033,9 @@ of privacy. That privacy is guaranteed to us by friction. Not by law
places, not by norms (snooping and gossip are just fun), but instead,
by the costs that friction imposes on anyone who would want to spy.
-Amazon Amazon cookies, Internet Internet privacy protection on
Enter the Internet, where the cost of tracking browsing in particular
has become quite tiny. If you're a customer at Amazon, then as you
@@ -13415,6 +14046,7 @@ and the function of cookies on the Net, it is easier to collect the
data than not. The friction has disappeared, and hence any privacy
protected by the friction disappears, too.
+libraries privacy rights in use of
Amazon, of course, is not the problem. But we might begin to worry
about libraries. If you're one of those crazy lefties who thinks that
@@ -13425,7 +14057,8 @@ you. If it becomes simple to gather and sort who does what in
electronic spaces, then the friction-induced privacy of yesterday
disappears.
-
It is this reality that explains the push of many to define privacy
on the Internet. It is the recognition that technology can remove what
@@ -13450,6 +14083,11 @@ kind of freedom that was passively provided before. A change in
technology now forces those who believe in privacy to affirmatively
act where, before, privacy was given by default.
+Data General IBM free software/open-source software (FS/OSS)
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
@@ -13457,9 +14095,8 @@ commercially, the software—both the source code and the
binaries— was free. You couldn't run a program written for a
Data General machine on an IBM machine, so Data General and IBM didn't
care much about controlling their software.
-IBM
-Stallman, Richard Stallman, Richard
That was the world Richard Stallman was born into, and while he was a
researcher at MIT, he grew to love the community that developed when
@@ -13480,6 +14117,7 @@ free to tinker with and improve the code that ran a machine. This,
too, was knowledge. Why shouldn't it be open for criticism like
anything else?
+proprietary code
No one answered that question. Instead, the architecture of revenue
for computing changed. As it became possible to import programs from
@@ -13498,6 +14136,7 @@ economics of computing. And as he believed, if he did nothing about
it, then the freedom to change and share software would be
fundamentally weakened.
+Torvalds, Linus
Therefore, in 1984, Stallman began a project to build a free operating
@@ -13526,12 +14165,19 @@ 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 law databases of case reports in libraries journals 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 +14194,8 @@ and Westlaw are also free
to charge users for the privilege of gaining access to that Supreme
Court opinion through their respective services.
+public domain access fees for material in public domain license 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
@@ -13557,11 +14205,14 @@ to flourish. And if there's nothing wrong with selling the public
domain, then there could be nothing wrong, in principle, with selling
access to material that is not in the public domain.
+
But what if the only way to get access to social and scientific data
was through proprietary services? What if no one had the ability to
browse this data except by paying for a subscription?
+libraries journals in
As many are beginning to notice, this is increasingly the reality with
scientific journals. When these journals were distributed in paper
@@ -13582,6 +14233,8 @@ 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
@@ -13594,8 +14247,8 @@ then deposited in a public, electronic archive and made permanently
available for free. PLoS also sells a print version of its work, but
the copyright for the print journal does not inhibit the right of
anyone to redistribute the work for free.
-PLoS (Public Library of Science)
+
This is one of many such efforts to restore a freedom taken for
granted before, but now threatened by changing technology and markets.
@@ -13605,12 +14258,13 @@ 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 +14334,7 @@ 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 +14453,8 @@ 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 +15454,7 @@ 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?
@@ -14906,4 +15561,89 @@ grateful for her perpetual patience and love.
+
+THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New
+York, New York
+
+
+Copyright © Lawrence Lessig. All rights reserved.
+
+
+Excerpt from an editorial titled The Coming of Copyright Perpetuity,
+The New York Times , January 16, 2003. Copyright
+© 2003 by The New York Times Co. Reprinted with permission.
+
+
+Cartoon in
+
+Diagram in
+
+Library of Congress Cataloging-in-Publication Data
+
+
+Lessig, Lawrence.
+Free culture : how big media uses technology and the law to lock down
+culture and control creativity / Lawrence Lessig.
+
+
+p. cm.
+
+
+Includes index.
+
+
+ISBN 1-59420-006-8 (hardcover)
+
+
+
+1. Intellectual property—United States. 2. Mass media—United States.
+
+
+3. Technological innovations—United States. 4. Art—United States. I. Title.
+
+
+KF2979.L47
+
+
+343.7309'9—dc22
+
+
+This book is printed on acid-free paper.
+
+
+Printed in the United States of America
+
+
+1 3 5 7 9 10 8 6 4
+
+
+Designed by Marysarah Quinn
+
+
+
+&translationblock;
+
+
+
+Without limiting the rights under copyright reserved above, no part of
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