X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/d62d828ab52932ecde63972f92e1c27fda91a5ae..f996fa37271db00487dc83c715d97fef1e9149d6:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 69a3132..9addf20 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -623,6 +623,9 @@ allowed to defeat an obvious public gain. + + Armstrong, Edwin Howard + Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He came to the great American inventor scene just after the @@ -772,6 +775,7 @@ would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of a thirteenth-story window to his death. + This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From @@ -2467,6 +2471,7 @@ request. Last year Steve Olafson, a Houston Chronicle rep fired for keeping a personal Web log, published under a pseudonym, that dealt with some of the issues and people he was covering.) CNN +Olafson, Steve But it is clear that we are still in transition. A @@ -2770,6 +2775,7 @@ demanded to know how much money Jesse had. Jesse had saved $12,000 from summer jobs and other employment. They demanded $12,000 to dismiss the case. +Oppenheimer, Matt The RIAA wanted Jesse to admit to doing something wrong. He refused. They wanted him to agree to an injunction that would @@ -2795,6 +2801,10 @@ paper saying he and his family were bankrupt. 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 + 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. @@ -2904,7 +2914,9 @@ limits imposed by Victor on phonographs, see Randal C. Picker, From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics, -Working Paper No. 159. +Working Paper No. 159. +broadcast flag + Fox, William General Film Company Picker, Randal C. @@ -3143,6 +3155,10 @@ creative work, the record producers, and the public, benefit.
Radio + + artists + recording industry payments to + Radio was also born of piracy. @@ -3217,6 +3233,7 @@ 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 @@ -3381,6 +3398,7 @@ has so often done in the past.
Piracy I +Asia, commercial piracy in All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people's copyrighted @@ -3459,6 +3477,7 @@ advantage of that opportunity, but when they don't, then their laws should be respected. And under the laws of these nations, this piracy is wrong. +Asia, commercial piracy in Alternatively, we could try to excuse this piracy by noting that in any case, it does no harm to the industry. The Chinese who get access @@ -3507,6 +3526,7 @@ a property system, and that system is properly balanced to the technology of a time, then it is wrong to take property without the permission of a property owner. That is exactly what property means. +Asia, commercial piracy in Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner. When the Chinese steal @@ -4056,6 +4076,10 @@ technology. In this adjustment, the law sought to ensure the legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less. + + artists + recording industry payments to + So, as we've seen, when mechanical reproduction threatened the interests of composers, Congress balanced the rights of composers @@ -4266,6 +4290,7 @@ controlling the technology of DAT. See Audio Home Recording Act of eliminate the opportunity for free riding in the sense I've described. See Lessig, Future, 71. See also Picker, From Edison to the Broadcast Flag, University of Chicago Law Review 70 (2003): 293–96. +broadcast flag Picker, Randal C. In each case, throughout our history, @@ -4441,6 +4466,7 @@ from the implications that the copyright warriors would have us draw. CHAPTER SIX: Founders Henry V +Branagh, Kenneth William Shakespeare wrote Romeo and Juliet in 1595. The play was first published in 1597. It was the eleventh major play that @@ -4580,6 +4606,7 @@ large collection of restrictions on the freedom of others: It grants the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on. +Branagh, Kenneth So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the @@ -5145,6 +5172,10 @@ develop digital entertainment. Long before the Internet became popular, Starwave began investing in new technology for delivering entertainment in anticipation of the power of networks. + + artists + retrospective compilations on + Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology—not to distribute @@ -5338,6 +5369,9 @@ richest investors in the world. He therefore had authority and access that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high? + + + These costs are the burdens of a kind of regulation. Put on a Republican hat for a moment, and get angry for a bit. The government defines the scope of these rights, and the scope defined determines @@ -5399,6 +5433,7 @@ and paste architecture of the Internet created—in a second you can find just about any image you want; in another second, you can have it planted in your presentation. +Camp Chaos But presentations are just a tiny beginning. Using the Internet and @@ -5409,7 +5444,6 @@ takes images of politicians and blends them with music to create biting political commentary. A site called Camp Chaos has produced some of the most biting criticism of the record industry that there is through the mixing of Flash! and music. -Camp Chaos All of these creations are technically illegal. Even if the creators @@ -5487,6 +5521,9 @@ curse, reserved for the few. CHAPTER NINE: Collectors + + archives, digital + In April 1996, millions of bots—computer codes designed to spider, or automatically search the Internet and copy content—began @@ -5504,6 +5541,9 @@ the world. Using a technology called the Way Back Machine, you co enter a Web page, and see all of its copies going back to 1996, as well as when those pages changed. + + Orwell, George + This is the thing about the Internet that Orwell would have appreciated. In the dystopia described in 1984, old newspapers were @@ -5524,6 +5564,7 @@ the same as the content you read before. The page may seem the same, but the content could easily be different. The Internet is Orwell's library—constantly updated, without any reliable memory. + Until the Way Back Machine, at least. With the Way Back Machine, and the Internet Archive underlying it, you can see what the Internet @@ -5665,6 +5706,11 @@ their coverage during the week of September 11 available free on-line. Anyone could see how news reports from around the world covered the events of that day. +Movie Archive + + archive.org + Internet Archive + Kahle had the same idea with film. Working with Rick Prelinger, whose archive of film includes close to 45,000 ephemeral films (meaning @@ -5682,7 +5728,6 @@ part of our culture. Want to see a copy of the Duck and Cover fi that instructed children how to save themselves in the middle of nuclear attack? Go to archive.org, and you can download the film in a few minutes—for free. -Movie Archive Here again, Kahle is providing access to a part of our culture that we @@ -5776,6 +5821,10 @@ we are for the first time at a point where that dream is possible. As Kahle describes,
+ + books + total number of + It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of @@ -5813,6 +5862,7 @@ the content that is collected in these digital spaces is also someone's property. And the law of property restricts the freedoms that Kahle and others would exercise. + @@ -6069,6 +6119,7 @@ with a $150,000 fine. The fine is an ex post punishment for violating an ex ante rule. It is imposed by the state. Madonna +norms, regulatory influence of Norms are a different kind of constraint. They, too, punish an individual for violating a rule. But the punishment of a norm is @@ -6080,6 +6131,7 @@ 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 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 @@ -6090,6 +6142,7 @@ sold. But given a set of norms, and a background of property and contract law, the market imposes a simultaneous constraint upon how an individual or group might behave. +architecture, constraint effected through Finally, and for the moment, perhaps, most mysteriously, architecture—the physical world as one finds it—is a @@ -6125,6 +6178,9 @@ must consider how these four in particular interact. driving speed, constraints on +architecture, constraint effected through +market constraints +norms, regulatory influence of 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 @@ -6171,6 +6227,7 @@ driving. Law has a special role in affecting the three. +architecture, constraint effected through These constraints can thus change, and they can be changed. To understand the effective protection of liberty or protection of @@ -6211,6 +6268,8 @@ those interventions should be accounted for in order to understand the effective liberty that each of these groups might face. Americans with Disabilities Act (1990) Commons, John R. +architecture, constraint effected through +market constraints
@@ -6229,6 +6288,8 @@ Internet: Copyright's regulation before the Internet. +market constraints +norms, regulatory influence of There is balance between law, norms, market, and architecture. The law @@ -6333,6 +6394,8 @@ 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?) +Brezhnev, Leonid +Gates, Bill The obvious answer to these obviously rhetorical questions is no. In a free society, with a free market, supported by free enterprise and @@ -6353,7 +6416,6 @@ not only the market but also the government is a world in which competitors with new ideas will not succeed. It is a world of stasis and increasingly concentrated stagnation. It is the Soviet Union under Brezhnev. -Gates, Bill Thus, while it is understandable for industries threatened with new @@ -6408,13 +6470,12 @@ 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) But in 1962, Rachel Carson published Silent Spring, which argued that DDT, whatever its primary benefits, was also having unintended environmental consequences. Birds were losing the ability to reproduce. Whole chains of the ecology were being destroyed. -Carson, Rachel -Silent Sprint (Carson) No one set out to destroy the environment. Paul Müller certainly did @@ -6425,6 +6486,7 @@ 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 It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an environmentalism for @@ -7198,6 +7260,7 @@ 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 No doubt, a potential is not yet an abuse, and so the potential for @@ -8580,6 +8643,7 @@ build upon or transform a creative work. American culture was born free, and for almost 180 years our country consistently protected a vibrant and rich free culture. +archives, digital We achieved that free culture because our law respected important limits on the scope of the interests protected by property. The very @@ -8929,6 +8993,7 @@ the side of the Causbys and the content industry. The extreme claims of control in the name of property still resonate; the uncritical rejection of piracy still has play. +Armstrong, Edwin Howard There will be many consequences of continuing this war. I want to @@ -9027,6 +9092,7 @@ the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient? Worldcom +art, underground The consequence of this legal uncertainty, tied to these extremely high penalties, is that an extraordinary amount of creativity will @@ -9158,6 +9224,7 @@ other aspect by substituting free market every place I've spoken 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 @@ -9355,6 +9422,7 @@ innovation. If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity. +market constraints The point is directly parallel to the crunchy-lefty point about fair use. Whatever the real law is, realism about the effect of law in @@ -9399,6 +9467,7 @@ of content. One obvious response to this efficiency is thus to make the Internet less efficient. If the Internet enables piracy, then, this response says, we should break the kneecaps of the Internet. +broadcast flag The examples of this form of legislation are many. At the urging of the content industry, some in Congress have threatened legislation that @@ -9515,10 +9584,15 @@ available at link #44. Berman, Howard L. Hollings, Fritz +broadcast flag But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. + + artists + recording industry payments to + @@ -9566,6 +9640,7 @@ easily develop and market their content to a relatively large number of users worldwide. According to some estimates, more than eighty million users worldwide have tuned in to this new form of radio. +Armstrong, Edwin Howard @@ -9615,6 +9690,10 @@ 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 + 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 @@ -9661,6 +9740,7 @@ 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 @@ -9784,6 +9864,10 @@ that should establish the market rate, and if you set the rate so high, you're going to drive the small webcasters out of business. … + + artists + recording industry payments to + And the RIAA experts said, Well, we don't really model this as an industry with thousands of webcasters, we think it should be @@ -10371,6 +10455,8 @@ 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 @@ -10379,6 +10465,8 @@ This was the Sonny Bono Copyright Term Extension Act Sonny Bono, who, his widow, Mary Bono, says, believed that copyrights should be forever. +Bono, Mary +Bono, Sonny The full text is: Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to @@ -10765,6 +10853,7 @@ wanted to make available to the world in your iArchive project the remaining 9,873. What would you have to do? +archives, digital Well, first, you'd have to determine which of the 9,873 books were still under copyright. That requires going to a library (these data are @@ -11013,6 +11102,9 @@ would not have interfered with anything. But this situation has now changed. + + archives, digital + One crucially important consequence of the emergence of digital technologies is to enable the archive that Brewster Kahle dreams of. @@ -11064,6 +11156,7 @@ role is to archive culture, whether there's a demand for any particular bit of that culture or not—then we can't count on the commercial market to do our library work for us. + I would be the first to agree that it should do as much as it can: We should rely upon the market as much as possible to spread and enable @@ -11393,6 +11486,7 @@ Between February and October, there was little I did beyond preparing for this case. Early on, as I said, I set the strategy. Rehnquist, William H. +O'Connor, Sandra Day The Supreme Court was divided into two important camps. One camp we called the Conservatives. The other we called the Rest. The @@ -11570,6 +11664,7 @@ where I intended to stay: on the question of the limits on Congress's power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit. +O'Connor, Sandra Day Justice O'Connor stopped me within one minute of my opening. The history was bothering her. @@ -11657,6 +11752,7 @@ Amendment analysis or under a proper reading of the limits built into the Copyright Clause.
+Olson, Theodore B. Things went better for us when the government gave its argument; for now the Court picked up on the core of our claim. As Justice Scalia @@ -11804,6 +11900,7 @@ Defeat brings depression. They say it is a sign of health when depression gives way to anger. My anger came quickly, but it didn't cure the depression. This anger was of two sorts. +originalism It was first anger with the five Conservatives. It would have been one thing for them to have explained why the principle of Lopez didn't @@ -12621,6 +12718,9 @@ noticed. Powerful lobbies, complex issues, and MTV attention spans produce the perfect storm for free culture. Reagan, Ronald + + biomedical research + In August 2003, a fight broke out in the United States about a decision by the World Intellectual Property Organization to cancel a @@ -12657,6 +12757,7 @@ in the early 1980s. And it included open source and free software.IBM PLoS (Public Library of Science) + The aim of the meeting was to consider this wide range of projects from one common perspective: that none of these projects relied upon @@ -13049,6 +13150,8 @@ kids who use a computer to share content. Causby, Tinie Creative Commons Gil, Gilberto +BBC +Brazil, free culture in Yet on the other side of the Atlantic, the BBC has just announced that it will build a Creative Archive, from which British citizens can @@ -14150,6 +14253,7 @@ Rockies—you can instantaneously be connected to the Internet. Imagine the Internet as ubiquitous as the best cell-phone service, where with the flip of a device, you are connected. +cell phones, music streamed over In that world, it will be extremely easy to connect to services that give you access to content on the fly—such as Internet radio, @@ -14288,6 +14392,10 @@ The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher. + + artists + recording industry payments to + William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William @@ -14324,6 +14432,7 @@ debate by about a decade. See Fisher, William Netanel, Neil Weinstock Promises to Keep (Fisher) + Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission @@ -14351,6 +14460,10 @@ longer necessary, then the system could lapse into the old system of controlling access. Promises to Keep (Fisher) + + artists + recording industry payments to + Fisher would balk at the idea of allowing the system to lapse. His aim is not just to ensure that artists are paid, but also to ensure that @@ -14380,6 +14493,7 @@ Real Networks, offering music at just 79 cents a song. And no doubt there will be a great deal of competition to offer and sell music on-line. +Asia, commercial piracy in This competition has already occurred against the background of free music from p2p systems. As the sellers of cable television have known @@ -14562,6 +14676,7 @@ away from areas that we know it will only harm. And that is precisely what the law will too often do if too much of our culture is left to its review. +Brezhnev, Leonid Think about the amazing things your kid could do or make with digital technology—the film, the music, the Web page, the blog. Or think