X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/e5fd7da7e42a6d9e827dda63dee49f2fad5640a5..d2af23fb000e5dd14cdc6a0830f1994ac1435495:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index c92301b..5dc040e 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -305,6 +305,7 @@ disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental. +CodePink Women in Peace We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC considered changes in media ownership rules that @@ -411,6 +412,8 @@ my field? Do I have the right to banish it from my property? Am I allowed to enter into an exclusive license with Delta Airlines? Could we set up an auction to decide how much these rights are worth? +Causby, Thomas Lee +Causby, Tinie In 1945, these questions became a federal case. When North Carolina farmers Thomas Lee and Tinie Causby started losing chickens @@ -422,6 +425,8 @@ Blackstone, Kent, and Coke had said, their land reached to "an indefinite extent, upwards," then the government was trespassing on their property, and the Causbys wanted it to stop. +Causby, Thomas Lee +Causby, Tinie The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the @@ -441,17 +446,18 @@ trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only -the public has a just claim. -United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that -there could be a "taking" if the government's use of its land effectively - destroyed -the value of the Causbys' land. This example was suggested to me -by Keith Aoki's wonderful piece, "(Intellectual) Property and Sovereignty: -Notes Toward a Cultural Geography of Authorship," Stanford Law - Review -48 (1996): 1293, 1333. See also Paul Goldstein, Real Property - (Mineola, -N.Y.: Foundation Press, 1984), 1112–13. +the public has a just claim. +Causby, Thomas Lee +Causby, Tinie + +United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find +that there could be a "taking" if the government's use of its land +effectively destroyed the value of the Causbys' land. This example was +suggested to me by Keith Aoki's wonderful piece, "(Intellectual) +Property and Sovereignty: Notes Toward a Cultural Geography of +Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul +Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), +1112–13. @@ -469,6 +475,8 @@ genius of a common law system, as ours is, that the law adjusts to the technologies of the time. And as it adjusts, it changes. Ideas that were as solid as rock in one age crumble in another. +Causby, Thomas Lee +Causby, Tinie Or at least, this is how things happen when there's no one powerful on the other side of the change. The Causbys were just farmers. And @@ -837,27 +845,27 @@ These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. -And as Professor Neil Netanel powerfully argues, +And as Professor Neil Netanel powerfully argues, +Netanel, Neil Weinstock + Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law Journal 106 (1996): 283. -copyright law, - properly -balanced, protected creators against private control. Our tradition -was thus neither Soviet nor the tradition of patrons. It instead carved out -a wide berth within which creators could cultivate and extend our culture. +copyright law, properly balanced, protected creators against private +control. Our tradition was thus neither Soviet nor the tradition of +patrons. It instead carved out a wide berth within which creators +could cultivate and extend our culture. Yet the law's response to the Internet, when tied to changes in the -technology of the Internet itself, has massively increased the effective -regulation of creativity in America. To build upon or critique the - culture -around us one must ask, Oliver Twist–like, for permission first. -Permission is, of course, often granted—but it is not often granted to -the critical or the independent. We have built a kind of cultural - nobility; -those within the noble class live easily; those outside it don't. But it -is nobility of any form that is alien to our tradition. +technology of the Internet itself, has massively increased the +effective regulation of creativity in America. To build upon or +critique the culture around us one must ask, Oliver Twist–like, +for permission first. Permission is, of course, often +granted—but it is not often granted to the critical or the +independent. We have built a kind of cultural nobility; those within +the noble class live easily; those outside it don't. But it is +nobility of any form that is alien to our tradition. @@ -881,27 +889,31 @@ culture if it is allowed to continue unchecked. We must come to understand the source of this war. We must resolve it soon. - -Like the Causbys' battle, this war is, in part, about "property." -The property of this war is not as tangible as the Causbys', and no -innocent chicken has yet to lose its life. Yet the ideas surrounding this -"property" are as obvious to most as the Causbys' claim about the - sacredness -of their farm was to them. We are the Causbys. Most of us -take for granted the extraordinarily powerful claims that the owners of -"intellectual property" now assert. Most of us, like the Causbys, treat -these claims as obvious. And hence we, like the Causbys, object when -a new technology interferes with this property. It is as plain to us as it -was to them that the new technologies of the Internet are "trespassing" -upon legitimate claims of "property." It is as plain to us as it was to -them that the law should intervene to stop this trespass. - +Causby, Thomas Lee +Causby, Tinie + +Like the Causbys' battle, this war is, in part, about "property." The +property of this war is not as tangible as the Causbys', and no +innocent chicken has yet to lose its life. Yet the ideas surrounding +this "property" are as obvious to most as the Causbys' claim about the +sacredness of their farm was to them. We are the Causbys. Most of us +take for granted the extraordinarily powerful claims that the owners +of "intellectual property" now assert. Most of us, like the Causbys, +treat these claims as obvious. And hence we, like the Causbys, object +when a new technology interferes with this property. It is as plain to +us as it was to them that the new technologies of the Internet are +"trespassing" upon legitimate claims of "property." It is as plain to +us as it was to them that the law should intervene to stop this +trespass. + +Causby, Thomas Lee +Causby, Tinie And thus, when geeks and technologists defend their Armstrong or -Wright brothers technology, most of us are simply unsympathetic. - Common -sense does not revolt. Unlike in the case of the unlucky Causbys, -common sense is on the side of the property owners in this war. Unlike +Wright brothers technology, most of us are simply unsympathetic. +Common sense does not revolt. Unlike in the case of the unlucky +Causbys, common sense is on the side of the property owners in this +war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side. @@ -944,15 +956,16 @@ sense stand silent in the face of these extremes because, as with versus RCA, the more powerful side has ensured that it has the more powerful view? +Causby, Thomas Lee +Causby, Tinie -I don't mean to be mysterious. My own views are resolved. I believe -it was right for common sense to revolt against the extremism of the -Causbys. I believe it would be right for common sense to revolt against -the extreme claims made today on behalf of "intellectual property." -What the law demands today is increasingly as silly as a sheriff - arresting -an airplane for trespass. But the consequences of this silliness will -be much more profound. +I don't mean to be mysterious. My own views are resolved. I believe it +was right for common sense to revolt against the extremism of the +Causbys. I believe it would be right for common sense to revolt +against the extreme claims made today on behalf of "intellectual +property." What the law demands today is increasingly as silly as a +sheriff arresting an airplane for trespass. But the consequences of +this silliness will be much more profound. @@ -1115,6 +1128,7 @@ 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. +Florida, Richard But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of @@ -1132,7 +1146,9 @@ commercial and noncommercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may -be seeing, as Richard Florida writes, the "Rise of the Creative Class." +be seeing, as Richard Florida writes, the "Rise of the Creative Class." +Florida, Richard + In The Rise of the Creative Class (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of labor toward a @@ -1230,8 +1246,7 @@ genre. Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The coincidence of titles is not coincidental. Steamboat Willie is a - direct -cartoon parody of Steamboat Bill, +direct cartoon parody of Steamboat Bill, I am grateful to David Gerstein and his careful history, described at link #4. @@ -1242,13 +1257,12 @@ Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1" Straw," was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author. -and both are built upon a - common -song as a source. It is not just from the invention of synchronized -sound in The Jazz Singer that we get Steamboat Willie. It is also from -Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the -song "Steamboat Bill," that we get Steamboat Willie, and then from -Steamboat Willie, Mickey Mouse. +and both are built upon a common song as a source. It is not just from +the invention of synchronized sound in The Jazz Singer that we get +Steamboat Willie. It is also from Buster Keaton's invention of +Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill," +that we get Steamboat Willie, and then from Steamboat Willie, Mickey +Mouse. This "borrowing" was nothing unique, either for Disney or for the @@ -2236,21 +2250,20 @@ York Times, 16 January 2003, G5. -This different cycle is possible because the same commercial - pressures +This different cycle is possible because the same commercial pressures don't exist with blogs as with other ventures. Television and newspapers are commercial entities. They must work to keep attention. -If they lose readers, they lose revenue. Like sharks, they must move on. +If they lose readers, they lose revenue. Like sharks, they must move +on. But bloggers don't have a similar constraint. They can obsess, they -can focus, they can get serious. If a particular blogger writes a - particularly -interesting story, more and more people link to that story. And as -the number of links to a particular story increases, it rises in the ranks -of stories. People read what is popular; what is popular has been - selected -by a very democratic process of peer-generated rankings. +can focus, they can get serious. If a particular blogger writes a +particularly interesting story, more and more people link to that +story. And as the number of links to a particular story increases, it +rises in the ranks of stories. People read what is popular; what is +popular has been selected by a very democratic process of +peer-generated rankings. There's a second way, as well, in which blogs have a different cycle @@ -2263,68 +2276,60 @@ have to take the conflict of interest" out of journalism, Winer told me. conflict of interest is so easily disclosed that you know you can sort of get it out of the way." +CNN These conflicts become more important as media becomes more -concentrated (more on this below). A concentrated media can hide -more from the public than an unconcentrated media can—as CNN -admitted it did after the Iraq war because it was afraid of the - consequences -to its own employees. +concentrated (more on this below). A concentrated media can hide more +from the public than an unconcentrated media can—as CNN admitted +it did after the Iraq war because it was afraid of the consequences to +its own employees. Telephone interview with David Winer, 16 April 2003. -It also needs to sustain a more - coherent -account. (In the middle of the Iraq war, I read a post on the -Internet from someone who was at that time listening to a satellite - uplink -with a reporter in Iraq. The New York headquarters was telling the -reporter over and over that her account of the war was too bleak: She -needed to offer a more optimistic story. When she told New York that -wasn't warranted, they told her that they were writing "the story.") - - -Blog space gives amateurs a way to enter the debate—"amateur" not -in the sense of inexperienced, but in the sense of an Olympic athlete, -meaning not paid by anyone to give their reports. It allows for a much -broader range of input into a story, as reporting on the Columbia - disaster -revealed, when hundreds from across the southwest United States -turned to the Internet to retell what they had seen. +It also needs to sustain a more coherent +account. (In the middle of the Iraq war, I read a post on the Internet +from someone who was at that time listening to a satellite uplink with +a reporter in Iraq. The New York headquarters was telling the reporter +over and over that her account of the war was too bleak: She needed to +offer a more optimistic story. When she told New York that wasn't +warranted, they told her that they were writing "the story.") + + Blog space gives amateurs a way to enter the +debate—"amateur" not in the sense of inexperienced, but in the +sense of an Olympic athlete, meaning not paid by anyone to give their +reports. It allows for a much broader range of input into a story, as +reporting on the Columbia disaster revealed, when hundreds from across +the southwest United States turned to the Internet to retell what they +had seen. -John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of - Information -Online," New York Times, 2 February 2003, A28; Staci D. Kramer, -"Shuttle Disaster Coverage Mixed, but Strong Overall," Online - Journalism -Review, 2 February 2003, available at +John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of +Information Online," New York Times, 2 February 2003, A28; Staci +D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall," +Online Journalism Review, 2 February 2003, available at link #10. -And it drives -readers to read across the range of accounts and "triangulate," as Winer -puts it, the truth. Blogs, Winer says, are "communicating directly with -our constituency, and the middle man is out of it"—with all the - benefits, -and costs, that might entail. +And it drives readers to read across the range of accounts and +"triangulate," as Winer puts it, the truth. Blogs, Winer says, are +"communicating directly with our constituency, and the middle man is +out of it"—with all the benefits, and costs, that might entail. -Winer is optimistic about the future of journalism infected with -blogs. "It's going to become an essential skill," Winer predicts, for - public -figures and increasingly for private figures as well. It's not clear that -"journalism" is happy about this—some journalists have been told to -curtail their blogging. +Winer is optimistic about the future of journalism infected +with blogs. "It's going to become an essential skill," Winer predicts, +for public figures and increasingly for private figures as well. It's +not clear that "journalism" is happy about this—some journalists +have been told to curtail their blogging. +CNN + See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New York Times, 29 September 2003, C4. ("Not all news organizations have -been as accepting of employees who blog. Kevin Sites, a CNN - correspondent -in Iraq who started a blog about his reporting of the war on March 9, -stopped posting 12 days later at his bosses' request. Last year Steve - Olafson, -a Houston Chronicle reporter, was fired for keeping a personal Web log, -published under a pseudonym, that dealt with some of the issues and -people he was covering.") +been as accepting of employees who blog. Kevin Sites, a CNN +correspondent in Iraq who started a blog about his reporting of the +war on March 9, stopped posting 12 days later at his bosses' +request. Last year Steve Olafson, a Houston Chronicle reporter, was +fired for keeping a personal Web log, published under a pseudonym, +that dealt with some of the issues and people he was covering.") But it is clear that we are still in transition. "A @@ -2972,12 +2977,10 @@ recorded music, with the public being given lower prices, improved quality, and a greater choice. -Copyright Law Revision: Report to Accompany H.R. 2512, House - Committee -on the Judiciary, 90th Cong., 1st sess., House Document no. 83, -(8 March 1967). I am grateful to Glenn Brown for drawing my attention -to this report. - +Copyright Law Revision: Report to Accompany H.R. 2512, House Committee +on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8 +March 1967). I am grateful to Glenn Brown for drawing my attention to +this report. @@ -3072,28 +3075,28 @@ something for nothing. Cable TV was also born of a kind of piracy. -When cable entrepreneurs first started wiring communities with -cable television in 1948, most refused to pay broadcasters for the - content -that they echoed to their customers. Even when the cable - companies +When cable entrepreneurs first started wiring communities with cable +television in 1948, most refused to pay broadcasters for the content +that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold. Cable companies were thus Napsterizing - broadcasters' -content, but more egregiously than anything Napster ever did— -Napster never charged for the content it enabled others to give away. +broadcasters' content, but more egregiously than anything Napster ever +did— Napster never charged for the content it enabled others to +give away. Anello, Douglas +Burdick, Quentin Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the practice as a kind of "unfair and potentially destructive competition." -Copyright Law Revision—CATV: Hearing on S. 1006 Before the Subcommittee -on Patents, Trademarks, and Copyrights of the Senate Committee -on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of -Rosel H. Hyde, chairman of the Federal Communications Commission). +Copyright Law Revision—CATV: Hearing on S. 1006 Before the +Subcommittee on Patents, Trademarks, and Copyrights of the Senate +Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) +(statement of Rosel H. Hyde, chairman of the Federal Communications +Commission). There may have been a "public interest" in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association @@ -3117,8 +3120,7 @@ general counsel of the Association of Maximum Service Telecasters, Inc.). -Again, the demand of the copyright holders seemed reasonable -enough: +Again, the demand of the copyright holders seemed reasonable enough:
@@ -3134,61 +3136,55 @@ United Artists Television, Inc.).
-These were "free-ride[rs]," Screen Actor's Guild president - Charlton -Heston said, who were "depriving actors of compensation." +These were "free-ride[rs]," Screen Actor's Guild president Charlton +Heston said, who were "depriving actors of +compensation." Copyright Law Revision—CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). -But again, there was another side to the debate. As Assistant - Attorney +But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it,
-Our point here is that unlike the problem of whether you have -any copyright protection at all, the problem here is whether - copyright -holders who are already compensated, who already have a -monopoly, should be permitted to extend that monopoly. . . . The +Our point here is that unlike the problem of whether you have any +copyright protection at all, the problem here is whether copyright +holders who are already compensated, who already have a monopoly, +should be permitted to extend that monopoly. . . . The question here is how much compensation they should have and how far back they should carry their right to compensation. -Copyright Law Revision—CATV, 216 (statement of Edwin M. - Zimmerman, -acting assistant attorney general). +Copyright Law Revision—CATV, 216 (statement of Edwin M. +Zimmerman, acting assistant attorney general).
-Copyright owners took the cable companies to court. Twice the -Supreme Court held that the cable companies owed the copyright -owners nothing. +Copyright owners took the cable companies to court. Twice the Supreme +Court held that the cable companies owed the copyright owners nothing. It took Congress almost thirty years before it resolved the question of whether cable companies had to pay for the content they "pirated." -In the end, Congress resolved this question in the same way that it - resolved -the question about record players and player pianos. Yes, cable -companies would have to pay for the content that they broadcast; but -the price they would have to pay was not set by the copyright owner. -The price was set by law, so that the broadcasters couldn't exercise veto -power over the emerging technologies of cable. Cable companies thus -built their empire in part upon a "piracy" of the value created by - broadcasters' -content. - - -These separate stories sing a common theme. If "piracy" -means using value from someone else's creative property without - permission -from that creator—as it is increasingly described today +In the end, Congress resolved this question in the same way that it +resolved the question about record players and player pianos. Yes, +cable companies would have to pay for the content that they broadcast; +but the price they would have to pay was not set by the copyright +owner. The price was set by law, so that the broadcasters couldn't +exercise veto power over the emerging technologies of cable. Cable +companies thus built their empire in part upon a "piracy" of the value +created by broadcasters' content. + + +These separate stories sing a common theme. If "piracy" means +using value from someone else's creative property without permission +from that creator—as it is increasingly described +today See, for example, National Music Publisher's Association, The Engine of Free Expression: Copyright on the Internet—The Myth of Free @@ -3209,23 +3205,21 @@ generation—until now. CHAPTER FIVE: "Piracy" - -There is piracy of copyrighted material. Lots of it. This piracy -comes in many forms. The most significant is commercial piracy, the +There is piracy of copyrighted material. Lots of it. This piracy comes +in many forms. The most significant is commercial piracy, the unauthorized taking of other people's content within a commercial -context. Despite the many justifications that are offered in its defense, -this taking is wrong. No one should condone it, and the law should -stop it. +context. Despite the many justifications that are offered in its +defense, this taking is wrong. No one should condone it, and the law +should stop it. But as well as copy-shop piracy, there is another kind of "taking" that is more directly related to the Internet. That taking, too, seems wrong to many, and it is wrong much of the time. Before we paint this taking "piracy," however, we should understand its nature a bit more. -For the harm of this taking is significantly more ambiguous than - outright -copying, and the law should account for that ambiguity, as it has -so often done in the past. +For the harm of this taking is significantly more ambiguous than +outright copying, and the law should account for that ambiguity, as it +has so often done in the past. @@ -3462,7 +3456,7 @@ of the Napster technology had not made any major technological Like every great advance in innovation on the Internet (and, arguably, off the Internet as well - + See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (New York: HarperBusiness, 2000). Professor Christensen examines why companies @@ -3715,19 +3709,20 @@ could account for this drop. SoundScan, for example, reports a more than 20 percent drop in the number of CDs released since 1999. That no doubt accounts for some of the decrease in sales. Rising prices could account for at least some of the loss. "From 1999 to 2001, the average -price of a CD rose 7.2 percent, from $13.04 to $14.19." +price of a CD rose 7.2 percent, from $13.04 to $14.19." +Black, Jane + Jane Black, "Big Music's Broken Record," BusinessWeek online, 13 - February -2003, available at +February 2003, available at link #17. - -Competition -from other forms of media could also account for some of the decline. -As Jane Black of BusinessWeek notes, "The soundtrack to the film High -Fidelity has a list price of $18.98. You could get the whole movie [on -DVD] for $19.99." - + + +Competition from other forms of media could also account for some of the +decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film +High Fidelity has a list price of $18.98. You could get the whole movie +[on DVD] for $19.99." + Ibid. @@ -3976,21 +3971,19 @@ would assure compensation without giving the past (broadcasters) control over the future (cable). +Betamax -In the same year that Congress struck this balance, two major - producers -and distributors of film content filed a lawsuit against another -technology, the video tape recorder (VTR, or as we refer to them today, -VCRs) that Sony had produced, the Betamax. Disney's and Universal's -claim against Sony was relatively simple: Sony produced a device, - Disney -and Universal claimed, that enabled consumers to engage in - copyright -infringement. Because the device that Sony built had a "record" -button, the device could be used to record copyrighted movies and -shows. Sony was therefore benefiting from the copyright infringement -of its customers. It should therefore, Disney and Universal claimed, be -partially liable for that infringement. +In the same year that Congress struck this balance, two major +producers and distributors of film content filed a lawsuit against +another technology, the video tape recorder (VTR, or as we refer to +them today, VCRs) that Sony had produced, the Betamax. Disney's and +Universal's claim against Sony was relatively simple: Sony produced a +device, Disney and Universal claimed, that enabled consumers to engage +in copyright infringement. Because the device that Sony built had a +"record" button, the device could be used to record copyrighted movies +and shows. Sony was therefore benefiting from the copyright +infringement of its customers. It should therefore, Disney and +Universal claimed, be partially liable for that infringement. There was something to Disney's and Universal's claim. Sony did @@ -4003,31 +3996,27 @@ grant anyone permission to copy. Indeed, if anyone had asked, no doubt the majority of shows would not have authorized copying. And in the face of this obvious preference, Sony could have designed its - system -to minimize the opportunity for copyright infringement. It did +system to minimize the opportunity for copyright infringement. It did not, and for that, Disney and Universal wanted to hold it responsible for the architecture it chose. MPAA president Jack Valenti became the studios' most vocal -champion. Valenti called VCRs "tapeworms." He warned, "When -there are 20, 30, 40 million of these VCRs in the land, we will be - invaded -by millions of `tapeworms,' eating away at the very heart and -essence of the most precious asset the copyright owner has, his - copyright." +champion. Valenti called VCRs "tapeworms." He warned, "When there are +20, 30, 40 million of these VCRs in the land, we will be invaded by +millions of `tapeworms,' eating away at the very heart and essence of +the most precious asset the copyright owner has, his +copyright." Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture Association of America, Inc.). -"One does not have to be trained in sophisticated marketing -and creative judgment," he told Congress, "to understand the - devastation -on the after-theater marketplace caused by the hundreds of - millions -of tapings that will adversely impact on the future of the creative +"One does not have to be trained in sophisticated marketing and +creative judgment," he told Congress, "to understand the devastation +on the after-theater marketplace caused by the hundreds of millions of +tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense." @@ -4734,6 +4723,7 @@ Crown coveted to the free culture that we inherited. The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. +Beckett, Thomas 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 @@ -4777,6 +4767,7 @@ fixed for a limited time, after which the work protected by copyright passed into the public domain. Bacon, Francis +Bunyan, John "The public domain." Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in England. Before 1774, there @@ -5065,6 +5056,7 @@ into a sword that interferes with any use, transformative or not. CHAPTER EIGHT: Transformers Allen, Paul +Alben, Alex In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative company founded by Microsoft cofounder Paul Allen to @@ -5072,22 +5064,21 @@ 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. +Alben, Alex Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology—not to distribute -film, but to do things with film that otherwise would be very difficult. -In 1993, he launched an initiative to develop a product to build - retrospectives -on the work of particular actors. The first actor chosen was -Clint Eastwood. The idea was to showcase all of the work of - Eastwood, -with clips from his films and interviews with figures important -to his career. - - -At that time, Eastwood had made more than fifty films, as an actor -and as a director. Alben began with a series of interviews with - Eastwood, +film, but to do things with film that otherwise would be very +difficult. In 1993, he launched an initiative to develop a product to +build retrospectives on the work of particular actors. The first actor +chosen was Clint Eastwood. The idea was to showcase all of the work of +Eastwood, with clips from his films and interviews with figures +important to his career. + +Alben, Alex + +At that time, Eastwood had made more than fifty films, as an actor and +as a director. Alben began with a series of interviews with Eastwood, asking him about his career. Because Starwave produced those interviews, it was free to include them on the CD. @@ -5099,19 +5090,21 @@ posters, scripts, and other material relating to the films Eastwood made. Most of his career was spent at Warner Brothers, and so it was relatively easy to get permission for that content. +Alben, Alex Then Alben and his team decided to include actual film clips. "Our -goal was that we were going to have a clip from every one of - Eastwood's -films," Alben told me. It was here that the problem arose. "No -one had ever really done this before," Alben explained. "No one had -ever tried to do this in the context of an artistic look at an actor's -career." +goal was that we were going to have a clip from every one of +Eastwood's films," Alben told me. It was here that the problem +arose. "No one had ever really done this before," Alben explained. "No +one had ever tried to do this in the context of an artistic look at an +actor's career." +Alben, Alex Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, "Well, what will it take?" +Alben, Alex Alben replied, "Well, we're going to have to clear rights from everyone who appears in these films, and the music and everything @@ -5143,15 +5136,12 @@ tale, Alben recounted just what they did:
-So we very mechanically went about looking up the film clips. -We made some artistic decisions about what film clips to - include—of -course we were going to use the "Make my day" clip -from Dirty Harry. But you then need to get the guy on the ground -who's wiggling under the gun and you need to get his - permission. -And then you have to decide what you are going to pay -him. +So we very mechanically went about looking up the film clips. We made +some artistic decisions about what film clips to include—of +course we were going to use the "Make my day" clip from Dirty +Harry. But you then need to get the guy on the ground who's wiggling +under the gun and you need to get his permission. And then you have +to decide what you are going to pay him. @@ -5167,6 +5157,7 @@ And then we just, we put together a team, my assistant and some others, and we just started calling people.
+Alben, Alex Some actors were glad to help—Donald Sutherland, for example, followed up himself to be sure that the rights had been cleared. @@ -5182,6 +5173,7 @@ career. It was one year later—"and even then we weren't sure whether we were totally in the clear." +Alben, Alex Alben is proud of his work. The project was the first of its kind and the only time he knew of that a team had undertaken such a massive @@ -5189,14 +5181,13 @@ project for the purpose of releasing a retrospective.
-Everyone thought it would be too hard. Everyone just threw up -their hands and said, "Oh, my gosh, a film, it's so many - copyrights, -there's the music, there's the screenplay, there's the director, -there's the actors." But we just broke it down. We just put it into -its constituent parts and said, "Okay, there's this many actors, this -many directors, . . . this many musicians," and we just went at it -very systematically and cleared the rights. +Everyone thought it would be too hard. Everyone just threw up their +hands and said, "Oh, my gosh, a film, it's so many copyrights, there's +the music, there's the screenplay, there's the director, there's the +actors." But we just broke it down. We just put it into its +constituent parts and said, "Okay, there's this many actors, this many +directors, . . . this many musicians," and we just went at it very +systematically and cleared the rights.
@@ -5205,13 +5196,13 @@ very systematically and cleared the rights. And no doubt, the product itself was exceptionally good. Eastwood loved it, and it sold very well. +Alben, Alex But I pressed Alben about how weird it seems that it would have to -take a year's work simply to clear rights. No doubt Alben had done this -efficiently, but as Peter Drucker has famously quipped, "There is - nothing -so useless as doing efficiently that which should not be done at -all." +take a year's work simply to clear rights. No doubt Alben had done +this efficiently, but as Peter Drucker has famously quipped, "There is +nothing so useless as doing efficiently that which should not be done +at all." U.S. Department of Commerce Office of Acquisition Management, Seven Steps to Performance-Based Services Acquisition, available at @@ -5271,25 +5262,23 @@ going to hold me up for money," then it becomes difficult to put one of these things together. - -Alben worked for a big company. His company was backed by some -of the 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 +Alben, Alex + +Alben worked for a big company. His company was backed by some of the +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 -how much it's going to cost to negotiate them. (Remember the idea -that land runs to the heavens, and imagine the pilot purchasing - flythrough +how much it's going to cost to negotiate them. (Remember the idea that +land runs to the heavens, and imagine the pilot purchasing flythrough rights as he negotiates to fly from Los Angeles to San Francisco.) These rights might well have once made sense; but as circumstances -change, they make no sense at all. Or at least, a well-trained, - regulationminimizing -Republican should look at the rights and ask, "Does this -still make sense?" +change, they make no sense at all. Or at least, a well-trained, +regulationminimizing Republican should look at the rights and ask, +"Does this still make sense?" I've seen the flash of recognition when people get this point, but only @@ -5307,6 +5296,7 @@ twentieth century, all framed around the idea of a 60 Minutes episode. The execution was perfect, down to the sixty-minute stopwatch. The judges loved every minute of it. +Nimmer, David When the lights came up, I looked over to my copanelist, David Nimmer, perhaps the leading copyright scholar and practitioner in the @@ -5315,22 +5305,21 @@ room of over 250 well-entertained judges. Taking an ominous tone, he began his talk with a question: "Do you know how many federal laws were just violated in this room?" +Boies, David For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the -rights to these clips; technically, what they had done violated the law. -Of course, it wasn't as if they or anyone were going to be prosecuted for -this violation (the presence of 250 judges and a gaggle of federal - marshals -notwithstanding). But Nimmer was making an important point: -A year before anyone would have heard of the word Napster, and two -years before another member of our panel, David Boies, would defend -Napster before the Ninth Circuit Court of Appeals, Nimmer was - trying -to get the judges to see that the law would not be friendly to the -capacities that this technology would enable. Technology means you -can now do amazing things easily; but you couldn't easily do them -legally. +rights to these clips; technically, what they had done violated the +law. Of course, it wasn't as if they or anyone were going to be +prosecuted for this violation (the presence of 250 judges and a gaggle +of federal marshals notwithstanding). But Nimmer was making an +important point: A year before anyone would have heard of the word +Napster, and two years before another member of our panel, David +Boies, would defend Napster before the Ninth Circuit Court of Appeals, +Nimmer was trying to get the judges to see that the law would not be +friendly to the capacities that this technology would +enable. Technology means you can now do amazing things easily; but you +couldn't easily do them legally. We live in a "cut and paste" culture enabled by technology. Anyone @@ -5342,14 +5331,13 @@ planted in your presentation. But presentations are just a tiny beginning. Using the Internet and -its archives, musicians are able to string together mixes of sound never -before imagined; filmmakers are able to build movies out of clips on -computers around the world. An extraordinary site in Sweden 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. +its archives, musicians are able to string together mixes of sound +never before imagined; filmmakers are able to build movies out of +clips on computers around the world. An extraordinary site in Sweden +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. All of these creations are technically illegal. Even if the creators @@ -5359,21 +5347,19 @@ never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released. -To some, these stories suggest a solution: Let's alter the mix of -rights so that people are free to build upon our culture. Free to add or -mix as they see fit. We could even make this change without - necessarily -requiring that the "free" use be free as in "free beer." Instead, the - system -could simply make it easy for follow-on creators to compensate -artists without requiring an army of lawyers to come along: a rule, for -example, that says "the royalty owed the copyright owner of an - unregistered -work for the derivative reuse of his work will be a flat 1 percent -of net revenues, to be held in escrow for the copyright owner." Under -this rule, the copyright owner could benefit from some royalty, but he -would not have the benefit of a full property right (meaning the right -to name his own price) unless he registers the work. +To some, these stories suggest a solution: Let's alter the mix of +rights so that people are free to build upon our culture. Free to add +or mix as they see fit. We could even make this change without +necessarily requiring that the "free" use be free as in "free beer." +Instead, the system could simply make it easy for follow-on creators +to compensate artists without requiring an army of lawyers to come +along: a rule, for example, that says "the royalty owed the copyright +owner of an unregistered work for the derivative reuse of his work +will be a flat 1 percent of net revenues, to be held in escrow for the +copyright owner." Under this rule, the copyright owner could benefit +from some royalty, but he would not have the benefit of a full +property right (meaning the right to name his own price) unless he +registers the work. Who could possibly object to this? And what reason would there be @@ -5382,37 +5368,32 @@ which if made, under this plan, would produce new income for artists. What reason would anyone have to oppose it? -In February 2003, DreamWorks studios announced an - agreement -with Mike Myers, the comic genius of Saturday Night Live and +In February 2003, DreamWorks studios announced an agreement with Mike +Myers, the comic genius of Saturday Night Live and -Austin Powers. According to the announcement, Myers and - Dream-Works -would work together to form a "unique filmmaking pact." Under -the agreement, DreamWorks "will acquire the rights to existing motion -picture hits and classics, write new storylines and—with the use of - stateof-the-art -digital technology—insert Myers and other actors into the -film, thereby creating an entirely new piece of entertainment." - - -The announcement called this "film sampling." As Myers - explained, -"Film Sampling is an exciting way to put an original spin on -existing films and allow audiences to see old movies in a new light. Rap +Austin Powers. According to the announcement, Myers and Dream-Works +would work together to form a "unique filmmaking pact." Under the +agreement, DreamWorks "will acquire the rights to existing motion +picture hits and classics, write new storylines and—with the use +of stateof-the-art digital technology—insert Myers and other +actors into the film, thereby creating an entirely new piece of +entertainment." + + +The announcement called this "film sampling." As Myers explained, +"Film Sampling is an exciting way to put an original spin on existing +films and allow audiences to see old movies in a new light. Rap artists have been doing this for years with music and now we are able to take that same concept and apply it to film." Steven Spielberg is -quoted as saying, "If anyone can create a way to bring old films to new -audiences, it is Mike." +quoted as saying, "If anyone can create a way to bring old films to +new audiences, it is Mike." Spielberg is right. Film sampling by Myers will be brilliant. But if you don't think about it, you might miss the truly astonishing point -about this announcement. As the vast majority of our film heritage - remains -under copyright, the real meaning of the DreamWorks - announcement -is just this: It is Mike Myers and only Mike Myers who is +about this announcement. As the vast majority of our film heritage +remains under copyright, the real meaning of the DreamWorks +announcement is just this: It is Mike Myers and only Mike Myers who is free to sample. Any general freedom to build upon the film archive of our culture, a freedom in other contexts presumed for us all, is now a privilege reserved for the funny and famous—and presumably rich. @@ -5600,7 +5581,7 @@ alone, there were more than 5,475 films deposited and "borrowed back." Thus, when the copyrights to films expire, there is no copy held by any library. The copy exists—if it exists at all—in the library archive of the film company. - + Doug Herrick, "Toward a National Film Collection: Motion Pictures at the Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5; Anthony @@ -6170,53 +6151,50 @@ understand the effective protection of liberty or protection of property at any particular moment, we must track these changes over time. A restriction imposed by one modality might be erased by another. A freedom enabled by one modality might be displaced by -another. - -Some people object to this way of talking about "liberty." They object - because -their focus when considering the constraints that exist at any - particular -moment are constraints imposed exclusively by the government. For -instance, if a storm destroys a bridge, these people think it is meaningless -to say that one's liberty has been restrained. A bridge has washed out, and -it's harder to get from one place to another. To talk about this as a loss of -freedom, they say, is to confuse the stuff of politics with the vagaries of - ordinary -life. -I don't mean to deny the value in this narrower view, which depends -upon the context of the inquiry. I do, however, mean to argue against any -insistence that this narrower view is the only proper view of liberty. As I -argued in Code, we come from a long tradition of political thought with a -broader focus than the narrow question of what the government did when. -John Stuart Mill defended freedom of speech, for example, from the -tyranny of narrow minds, not from the fear of government prosecution; -John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. -John R. Commons famously defended the economic freedom of labor -from constraints imposed by the market; John R. Commons, "The Right -to Work," in Malcom Rutherford and Warren J. Samuels, eds., John R. -Commons: Selected Essays (London: Routledge: 1997), 62. The Americans -with Disabilities Act increases the liberty of people with physical - disabilities -by changing the architecture of certain public places, thereby making -access to those places easier; 42 United States Code, section 12101 (2000). -Each of these interventions to change existing conditions changes the -liberty of a particular group. The effect of those interventions should be -accounted for in order to understand the effective liberty that each of these -groups might face. - +another. +Commons, John R. + + +Some people object to this way of talking about "liberty." They object +because their focus when considering the constraints that exist at any +particular moment are constraints imposed exclusively by the +government. For instance, if a storm destroys a bridge, these people +think it is meaningless to say that one's liberty has been +restrained. A bridge has washed out, and it's harder to get from one +place to another. To talk about this as a loss of freedom, they say, +is to confuse the stuff of politics with the vagaries of ordinary +life. I don't mean to deny the value in this narrower view, which +depends upon the context of the inquiry. I do, however, mean to argue +against any insistence that this narrower view is the only proper view +of liberty. As I argued in Code, we come from a long tradition of +political thought with a broader focus than the narrow question of +what the government did when. John Stuart Mill defended freedom of +speech, for example, from the tyranny of narrow minds, not from the +fear of government prosecution; John Stuart Mill, On Liberty (Indiana: +Hackett Publishing Co., 1978), 19. John R. Commons famously defended +the economic freedom of labor from constraints imposed by the market; +John R. Commons, "The Right to Work," in Malcom Rutherford and Warren +J. Samuels, eds., John R. Commons: Selected Essays (London: +Routledge: 1997), 62. The Americans with Disabilities Act increases +the liberty of people with physical disabilities by changing the +architecture of certain public places, thereby making access to those +places easier; 42 United States Code, section 12101 (2000). Each of +these interventions to change existing conditions changes the liberty +of a particular group. The effect of those interventions should be +accounted for in order to understand the effective liberty that each +of these groups might face. Why Hollywood Is Right - The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress and the courts to defend copyright. This model helps us see why that rallying makes sense. -Let's say this is the picture of copyright's regulation before the - Internet: +Let's say this is the picture of copyright's regulation before the +Internet:
Copyright's regulation before the Internet. @@ -6224,35 +6202,31 @@ Let's say this is the picture of copyright's regulation before the
-There is balance between law, norms, market, and architecture. The -law limits the ability to copy and share content, by imposing penalties -on those who copy and share content. Those penalties are reinforced by -technologies that make it hard to copy and share content (architecture) -and expensive to copy and share content (market). Finally, those - penalties -are mitigated by norms we all recognize—kids, for example, taping -other kids' records. These uses of copyrighted material may well be - infringement, -but the norms of our society (before the Internet, at least) -had no problem with this form of infringement. - - -Enter the Internet, or, more precisely, technologies such as MP3s -and p2p sharing. Now the constraint of architecture changes - dramatically, +There is balance between law, norms, market, and architecture. The law +limits the ability to copy and share content, by imposing penalties on +those who copy and share content. Those penalties are reinforced by +technologies that make it hard to copy and share content +(architecture) and expensive to copy and share content +(market). Finally, those penalties are mitigated by norms we all +recognize—kids, for example, taping other kids' records. These +uses of copyrighted material may well be infringement, but the norms +of our society (before the Internet, at least) had no problem with +this form of infringement. + + +Enter the Internet, or, more precisely, technologies such as MP3s and +p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The -happy balance (for the warriors, at least) of life before the Internet - becomes -an effective state of anarchy after the Internet. +happy balance (for the warriors, at least) of life before the Internet +becomes an effective state of anarchy after the Internet. -Thus the sense of, and justification for, the warriors' response. - Technology -has changed, the warriors say, and the effect of this change, -when ramified through the market and norms, is that a balance of - protection -for the copyright owners' rights has been lost. This is Iraq +Thus the sense of, and justification for, the warriors' response. +Technology has changed, the warriors say, and the effect of this +change, when ramified through the market and norms, is that a balance +of protection for the copyright owners' rights has been lost. This is +Iraq after the fall of Saddam, but this time no government is justifying the looting that results. @@ -6263,84 +6237,70 @@ looting that results. Neither this analysis nor the conclusions that follow are new to the -warriors. Indeed, in a "White Paper" prepared by the Commerce - Department -(one heavily influenced by the copyright warriors) in 1995, +warriors. Indeed, in a "White Paper" prepared by the Commerce +Department (one heavily influenced by the copyright warriors) in 1995, this mix of regulatory modalities had already been identified and the -strategy to respond already mapped. In response to the changes the - Internet -had effected, the White Paper argued (1) Congress should -strengthen intellectual property law, (2) businesses should adopt - innovative -marketing techniques, (3) technologists should push to develop -code to protect copyrighted material, and (4) educators should educate -kids to better protect copyright. - - -This mixed strategy is just what copyright needed—if it was to - preserve -the particular balance that existed before the change induced by -the Internet. And it's just what we should expect the content industry -to push for. It is as American as apple pie to consider the happy life -you have as an entitlement, and to look to the law to protect it if - something -comes along to change that happy life. Homeowners living in a +strategy to respond already mapped. In response to the changes the +Internet had effected, the White Paper argued (1) Congress should +strengthen intellectual property law, (2) businesses should adopt +innovative marketing techniques, (3) technologists should push to +develop code to protect copyrighted material, and (4) educators should +educate kids to better protect copyright. + + +This mixed strategy is just what copyright needed—if it was to +preserve the particular balance that existed before the change induced +by the Internet. And it's just what we should expect the content +industry to push for. It is as American as apple pie to consider the +happy life you have as an entitlement, and to look to the law to +protect it if something comes along to change that happy +life. Homeowners living in a flood plain have no hesitation appealing to the government to rebuild -(and rebuild again) when a flood (architecture) wipes away their - property -(law). Farmers have no hesitation appealing to the government to -bail them out when a virus (architecture) devastates their crop. Unions -have no hesitation appealing to the government to bail them out when -imports (market) wipe out the U.S. steel industry. +(and rebuild again) when a flood (architecture) wipes away their +property (law). Farmers have no hesitation appealing to the government +to bail them out when a virus (architecture) devastates their +crop. Unions have no hesitation appealing to the government to bail +them out when imports (market) wipe out the U.S. steel industry. Thus, there's nothing wrong or surprising in the content industry's -campaign to protect itself from the harmful consequences of a - technological -innovation. And I would be the last person to argue that the -changing technology of the Internet has not had a profound effect on the -content industry's way of doing business, or as John Seely Brown - describes -it, its "architecture of revenue." +campaign to protect itself from the harmful consequences of a +technological innovation. And I would be the last person to argue that +the changing technology of the Internet has not had a profound effect +on the content industry's way of doing business, or as John Seely +Brown describes it, its "architecture of revenue." -But just because a particular interest asks for government support, -it doesn't follow that support should be granted. And just because - technology -has weakened a particular way of doing business, it doesn't - follow -that the government should intervene to support that old way of +But just because a particular interest asks for government support, it +doesn't follow that support should be granted. And just because +technology has weakened a particular way of doing business, it doesn't +follow that the government should intervene to support that old way of doing business. Kodak, for example, has lost perhaps as much as 20 percent of their traditional film market to the emerging technologies of digital cameras. -See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?" - BusinessWeek -online, 2 August 1999, available at -link #23. For a more recent -analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can -Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003, - available -at +See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?" +BusinessWeek online, 2 August 1999, available at +link #23. For a more +recent analysis of Kodak's place in the market, see Chana +R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6 +October 2003, available at link #24. -Does anyone believe the government should ban -digital cameras just to support Kodak? Highways have weakened the -freight business for railroads. Does anyone think we should ban trucks -from roads for the purpose of protecting the railroads? Closer to the - subject -of this book, remote channel changers have weakened the - "stickiness" -of television advertising (if a boring commercial comes on the -TV, the remote makes it easy to surf ), and it may well be that this -change has weakened the television advertising market. But does - anyone -believe we should regulate remotes to reinforce commercial - television? -(Maybe by limiting them to function only once a second, or to -switch to only ten channels within an hour?) + +Does anyone believe the government should ban digital cameras just to +support Kodak? Highways have weakened the freight business for +railroads. Does anyone think we should ban trucks from roads for the +purpose of protecting the railroads? Closer to the subject of this +book, remote channel changers have weakened the "stickiness" of +television advertising (if a boring commercial comes on the TV, the +remote makes it easy to surf ), and it may well be that this change +has weakened the television advertising market. But does anyone +believe we should regulate remotes to reinforce commercial television? +(Maybe by limiting them to function only once a second, or to switch +to only ten channels within an hour?) The obvious answer to these obviously rhetorical questions is no. @@ -6365,42 +6325,36 @@ Brezhnev. Thus, while it is understandable for industries threatened with new -technologies that change the way they do business to look to the - government -for protection, it is the special duty of policy makers to - guarantee -that that protection not become a deterrent to progress. It is the -duty of policy makers, in other words, to assure that the changes they -create, in response to the request of those hurt by changing technology, -are changes that preserve the incentives and opportunities for - innovation -and change. - - -In the context of laws regulating speech—which include, obviously, -copyright law—that duty is even stronger. When the industry - complaining -about changing technologies is asking Congress to respond in -a way that burdens speech and creativity, policy makers should be - especially -wary of the request. It is always a bad deal for the government -to get into the business of regulating speech markets. The risks and -dangers of that game are precisely why our framers created the First -Amendment to our Constitution: "Congress shall make no law . . . -abridging the freedom of speech." So when Congress is being asked to -pass laws that would "abridge" the freedom of speech, it should ask— -carefully—whether such regulation is justified. +technologies that change the way they do business to look to the +government for protection, it is the special duty of policy makers to +guarantee that that protection not become a deterrent to progress. It +is the duty of policy makers, in other words, to assure that the +changes they create, in response to the request of those hurt by +changing technology, are changes that preserve the incentives and +opportunities for innovation and change. + + +In the context of laws regulating speech—which include, +obviously, copyright law—that duty is even stronger. When the +industry complaining about changing technologies is asking Congress to +respond in a way that burdens speech and creativity, policy makers +should be especially wary of the request. It is always a bad deal for +the government to get into the business of regulating speech +markets. The risks and dangers of that game are precisely why our +framers created the First Amendment to our Constitution: "Congress +shall make no law . . . abridging the freedom of speech." So when +Congress is being asked to pass laws that would "abridge" the freedom +of speech, it should ask— carefully—whether such +regulation is justified. My argument just now, however, has nothing to do with whether the changes that are being pushed by the copyright warriors are - "justified." -My argument is about their effect. For before we get to the - question -of justification, a hard question that depends a great deal upon -your values, we should first ask whether we understand the effect of the -changes the content industry wants. +"justified." My argument is about their effect. For before we get to +the question of justification, a hard question that depends a great +deal upon your values, we should first ask whether we understand the +effect of the changes the content industry wants. Here's the metaphor that will capture the argument to follow. @@ -6417,47 +6371,42 @@ No one doubts that killing disease-carrying pests or increasing crop production is a good thing. No one doubts that the work of Müller was important and valuable and probably saved lives, possibly millions. +Carson, Rachel -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. +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. -No one set out to destroy the environment. Paul Müller certainly -did not aim to harm any birds. But the effort to solve one set of - problems -produced another set which, in the view of some, was far worse -than the problems that were originally attacked. Or more accurately, -the problems DDT caused were worse than the problems it solved, at -least when considering the other, more environmentally friendly ways -to solve the problems that DDT was meant to solve. +No one set out to destroy the environment. Paul Müller certainly did +not aim to harm any birds. But the effort to solve one set of problems +produced another set which, in the view of some, was far worse than +the problems that were originally attacked. Or more accurately, the +problems DDT caused were worse than the problems it solved, at least +when considering the other, more environmentally friendly ways to +solve the problems that DDT was meant to solve. It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an "environmentalism" for culture. -See, for example, James Boyle, "A Politics of Intellectual Property: - Environmentalism -for the Net?" Duke Law Journal 47 (1997): 87. - -His point, and the point I want to develop in the balance of -this chapter, is not that the aims of copyright are flawed. Or that - authors -should not be paid for their work. Or that music should be given -away "for free." The point is that some of the ways in which we might -protect authors will have unintended consequences for the cultural - environment, -much like DDT had for the natural environment. And just +See, for example, James Boyle, "A Politics of Intellectual Property: +Environmentalism for the Net?" Duke Law Journal 47 (1997): 87. + +His point, and the point I want to develop in the balance of this +chapter, is not that the aims of copyright are flawed. Or that authors +should not be paid for their work. Or that music should be given away +"for free." The point is that some of the ways in which we might +protect authors will have unintended consequences for the cultural +environment, much like DDT had for the natural environment. And just as criticism of DDT is not an endorsement of malaria or an attack on -farmers, so, too, is criticism of one particular set of regulations - protecting -copyright not an endorsement of anarchy or an attack on authors. -It is an environment of creativity that we seek, and we should be aware -of our actions' effects on the environment. +farmers, so, too, is criticism of one particular set of regulations +protecting copyright not an endorsement of anarchy or an attack on +authors. It is an environment of creativity that we seek, and we +should be aware of our actions' effects on the environment. My argument, in the balance of this chapter, tries to map exactly @@ -6479,18 +6428,15 @@ be lost. Beginnings -America copied English copyright law. Actually, we copied and - improved -English copyright law. Our Constitution makes the purpose of -"creative property" rights clear; its express limitations reinforce the - English +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. -The power to establish "creative property" rights is granted to - Congress -in a way that, for our Constitution, at least, is very odd. Article I, -section 8, clause 8 of our Constitution states that: +The power to establish "creative property" rights is granted to +Congress in a way that, for our Constitution, at least, is very +odd. Article I, section 8, clause 8 of our Constitution states that: Congress has the power to promote the Progress of Science and @@ -6498,48 +6444,43 @@ useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. -We can call this the "Progress Clause," for notice what this clause does -not say. It does not say Congress has the power to grant "creative - property -rights." It says that Congress has the power to promote progress. The -grant of power is its purpose, and its purpose is a public one, not the -purpose of enriching publishers, nor even primarily the purpose of - rewarding -authors. +We can call this the "Progress Clause," for notice what this clause +does not say. It does not say Congress has the power to grant +"creative property rights." It says that Congress has the power to +promote progress. The grant of power is its purpose, and its purpose +is a public one, not the purpose of enriching publishers, nor even +primarily the purpose of rewarding authors. -The Progress Clause expressly limits the term of copyrights. As we -saw in chapter 6, the English limited the term of copyright so as to - assure -that a few would not exercise disproportionate control over culture -by exercising disproportionate control over publishing. We can assume -the framers followed the English for a similar purpose. Indeed, unlike -the English, the framers reinforced that objective, by requiring that -copyrights extend "to Authors" only. +The Progress Clause expressly limits the term of copyrights. As we saw +in chapter 6, the English limited the term of copyright so as to +assure that a few would not exercise disproportionate control over +culture by exercising disproportionate control over publishing. We can +assume the framers followed the English for a similar purpose. Indeed, +unlike the English, the framers reinforced that objective, by +requiring that copyrights extend "to Authors" only. The design of the Progress Clause reflects something about the -Constitution's design in general. To avoid a problem, the framers built -structure. To prevent the concentrated power of publishers, they built -a structure that kept copyrights away from publishers and kept them -short. To prevent the concentrated power of a church, they banned the -federal government from establishing a church. To prevent - concentrating -power in the federal government, they built structures to reinforce -the power of the states—including the Senate, whose members were -at the time selected by the states, and an electoral college, also selected -by the states, to select the president. In each case, a structure built -checks and balances into the constitutional frame, structured to - prevent -otherwise inevitable concentrations of power. - - -I doubt the framers would recognize the regulation we call - "copyright" -today. The scope of that regulation is far beyond anything they -ever considered. To begin to understand what they did, we need to put -our "copyright" in context: We need to see how it has changed in the -210 years since they first struck its design. +Constitution's design in general. To avoid a problem, the framers +built structure. To prevent the concentrated power of publishers, they +built a structure that kept copyrights away from publishers and kept +them short. To prevent the concentrated power of a church, they banned +the federal government from establishing a church. To prevent +concentrating power in the federal government, they built structures +to reinforce the power of the states—including the Senate, whose +members were at the time selected by the states, and an electoral +college, also selected by the states, to select the president. In each +case, a structure built checks and balances into the constitutional +frame, structured to prevent otherwise inevitable concentrations of +power. + + +I doubt the framers would recognize the regulation we call "copyright" +today. The scope of that regulation is far beyond anything they ever +considered. To begin to understand what they did, we need to put our +"copyright" in context: We need to see how it has changed in the 210 +years since they first struck its design. Some of these changes come from the law: some in light of changes @@ -6614,7 +6555,7 @@ in the United States both before 1790 and from 1790 through 1800, 95 percent immediately passed into the public domain; the balance would pass into the pubic domain within twenty-eight years at most, and more likely within fourteen years. - + Although 13,000 titles were published in the United States from 1790 to 1799, only 556 copyright registrations were filed; John Tebbel, A History of Book Publishing in the United States, vol. 1, The Creation @@ -7282,6 +7223,7 @@ trained in the tradition of the law and cognizant of the balances that tradition embraced, who said whether and how the law would restrict your freedom. +Casablanca There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of @@ -7923,6 +7865,7 @@ of the media. These changes are of two sorts: the scope of concentration, and its nature. +BMG Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media @@ -7930,8 +7873,8 @@ ownership, "five companies control 85 percent of our media sources."

FCC Oversight: Hearing Before the Senate Commerce, Science and Transportation Committee, 108th Cong., 1st sess. (22 May 2003) -(statement of Senator John McCain). The five -recording labels of Universal Music Group, BMG, Sony Music +(statement of Senator John McCain). +The five recording labels of Universal Music Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8 percent of the U.S. music market. @@ -8152,9 +8095,9 @@ Built to Last Underperform the Market—and How to Successfully Transform Them (New York: Currency/Doubleday, 2001). - Lumbering -giants not only don't, but should not, sprint. Yet if the field is -only open to the giants, there will be far too little sprinting. +Lumbering giants not only don't, but should not, sprint. Yet if the +field is only open to the giants, there will be far too little +sprinting. I don't think we know enough about the economics of the media @@ -8177,41 +8120,36 @@ any position in government by saying I believe this war is a profound mistake. I am not pro drugs. Indeed, I come from a family once -wrecked by drugs—though the drugs that wrecked my family were all -quite legal. I believe this war is a profound mistake because the - collateral -damage from it is so great as to make waging the war insane. -When you add together the burdens on the criminal justice system, the -desperation of generations of kids whose only real economic - opportunities -are as drug warriors, the queering of constitutional protections - because -of the constant surveillance this war requires, and, most profoundly, -the total destruction of the legal systems of many South American - nations -because of the power of the local drug cartels, I find it impossible -to believe that the marginal benefit in reduced drug consumption by -Americans could possibly outweigh these costs. - - -You may not be convinced. That's fine. We live in a democracy, and -it is through votes that we are to choose policy. But to do that, we - depend -fundamentally upon the press to help inform Americans about +wrecked by drugs—though the drugs that wrecked my family were +all quite legal. I believe this war is a profound mistake because the +collateral damage from it is so great as to make waging the war +insane. When you add together the burdens on the criminal justice +system, the desperation of generations of kids whose only real +economic opportunities are as drug warriors, the queering of +constitutional protections because of the constant surveillance this +war requires, and, most profoundly, the total destruction of the legal +systems of many South American nations because of the power of the +local drug cartels, I find it impossible to believe that the marginal +benefit in reduced drug consumption by Americans could possibly +outweigh these costs. + + +You may not be convinced. That's fine. We live in a democracy, and it +is through votes that we are to choose policy. But to do that, we +depend fundamentally upon the press to help inform Americans about these issues. -Beginning in 1998, the Office of National Drug Control Policy -launched a media campaign as part of the "war on drugs." The - campaign -produced scores of short film clips about issues related to illegal -drugs. In one series (the Nick and Norm series) two men are in a bar, -discussing the idea of legalizing drugs as a way to avoid some of the -collateral damage from the war. One advances an argument in favor of -drug legalization. The other responds in a powerful and effective way -against the argument of the first. In the end, the first guy changes his -mind (hey, it's television). The plug at the end is a damning attack on -the pro-legalization campaign. +Beginning in 1998, the Office of National Drug Control Policy launched +a media campaign as part of the "war on drugs." The campaign produced +scores of short film clips about issues related to illegal drugs. In +one series (the Nick and Norm series) two men are in a bar, discussing +the idea of legalizing drugs as a way to avoid some of the collateral +damage from the war. One advances an argument in favor of drug +legalization. The other responds in a powerful and effective way +against the argument of the first. In the end, the first guy changes +his mind (hey, it's television). The plug at the end is a damning +attack on the pro-legalization campaign. Fair enough. It's a good ad. Not terribly misleading. It delivers its @@ -8220,98 +8158,88 @@ message well. It's a fair and reasonable message. But let's say you think it is a wrong message, and you'd like to run a countercommercial. Say you want to run a series of ads that try to -demonstrate the extraordinary collateral harm that comes from the -drug war. Can you do it? +demonstrate the extraordinary collateral harm that comes from the drug +war. Can you do it? Well, obviously, these ads cost lots of money. Assume you raise the money. Assume a group of concerned citizens donates all the money in -the world to help you get your message out. Can you be sure your - message -will be heard then? +the world to help you get your message out. Can you be sure your +message will be heard then? -No. You cannot. Television stations have a general policy of - avoiding +No. You cannot. Television stations have a general policy of avoiding "controversial" ads. Ads sponsored by the government are deemed -uncontroversial; ads disagreeing with the government are controversial. -This selectivity might be thought inconsistent with the First - Amendment, -but the Supreme Court has held that stations have the right to -choose what they run. Thus, the major channels of commercial media -will refuse one side of a crucial debate the opportunity to present its case. -And the courts will defend the rights of the stations to be this biased. +uncontroversial; ads disagreeing with the government are +controversial. This selectivity might be thought inconsistent with +the First Amendment, but the Supreme Court has held that stations have +the right to choose what they run. Thus, the major channels of +commercial media will refuse one side of a crucial debate the +opportunity to present its case. And the courts will defend the +rights of the stations to be this biased. -The Marijuana Policy Project, in February 2003, sought to place ads that -directly responded to the Nick and Norm series on stations within the -Washington, D.C., area. Comcast rejected the ads as "against [their] - policy." -The local NBC affiliate, WRC, rejected the ads without reviewing -them. The local ABC affiliate, WJOA, originally agreed to run the ads and -accepted payment to do so, but later decided not to run the ads and - returned -the collected fees. Interview with Neal Levine, 15 October 2003. -These restrictions are, of course, not limited to drug policy. See, for - example, -Nat Ives, "On the Issue of an Iraq War, Advocacy Ads Meet with -Rejection from TV Networks," New York Times, 13 March 2003, C4. - Outside -of election-related air time there is very little that the FCC or the -courts are willing to do to even the playing field. For a general overview, -see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial - Advertising -on Television and Radio," Yale Law and Policy Review 6 (1988): -449–79, and for a more recent summary of the stance of the FCC and the -courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d -872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as -the networks. In a recent example from San Francisco, the San Francisco -transit authority rejected an ad that criticized its Muni diesel buses. Phillip -Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects -Ad," SFGate.com, 16 June 2003, available at -link #32. The ground was -that the criticism was "too controversial." - - - -I'd be happy to defend the networks' rights, as well—if we lived in -a media market that was truly diverse. But concentration in the media -throws that condition into doubt. If a handful of companies control - access -to the media, and that handful of companies gets to decide which -political positions it will allow to be promoted on its channels, then in -an obvious and important way, concentration matters. You might like -the positions the handful of companies selects. But you should not like -a world in which a mere few get to decide which issues the rest of us -get to know about. - +The Marijuana Policy Project, in February 2003, sought to place ads +that directly responded to the Nick and Norm series on stations within +the Washington, D.C., area. Comcast rejected the ads as "against +[their] policy." The local NBC affiliate, WRC, rejected the ads +without reviewing them. The local ABC affiliate, WJOA, originally +agreed to run the ads and accepted payment to do so, but later decided +not to run the ads and returned the collected fees. Interview with +Neal Levine, 15 October 2003. These restrictions are, of course, not +limited to drug policy. See, for example, Nat Ives, "On the Issue of +an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," New +York Times, 13 March 2003, C4. Outside of election-related air time +there is very little that the FCC or the courts are willing to do to +even the playing field. For a general overview, see Rhonda Brown, "Ad +Hoc Access: The Regulation of Editorial Advertising on Television and +Radio," Yale Law and Policy Review 6 (1988): 449–79, and for a +more recent summary of the stance of the FCC and the courts, see +Radio-Television News Directors Association v. FCC, 184 F. 3d 872 +(D.C. Cir. 1999). Municipal authorities exercise the same authority as +the networks. In a recent example from San Francisco, the San +Francisco transit authority rejected an ad that criticized its Muni +diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming +After Muni Rejects Ad," SFGate.com, 16 June 2003, available at +link #32. The ground +was that the criticism was "too controversial." + + + +I'd be happy to defend the networks' rights, as well—if we lived +in a media market that was truly diverse. But concentration in the +media throws that condition into doubt. If a handful of companies +control access to the media, and that handful of companies gets to +decide which political positions it will allow to be promoted on its +channels, then in an obvious and important way, concentration +matters. You might like the positions the handful of companies +selects. But you should not like a world in which a mere few get to +decide which issues the rest of us get to know about. Together -There is something innocent and obvious about the claim of the - copyright -warriors that the government should "protect my property." In -the abstract, it is obviously true and, ordinarily, totally harmless. No -sane sort who is not an anarchist could disagree. +There is something innocent and obvious about the claim of the +copyright warriors that the government should "protect my property." +In the abstract, it is obviously true and, ordinarily, totally +harmless. No sane sort who is not an anarchist could disagree. But when we see how dramatically this "property" has changed— -when we recognize how it might now interact with both technology -and markets to mean that the effective constraint on the liberty to - cultivate -our culture is dramatically different—the claim begins to seem +when we recognize how it might now interact with both technology and +markets to mean that the effective constraint on the liberty to +cultivate our culture is dramatically different—the claim begins +to seem -less innocent and obvious. Given (1) the power of technology to - supplement -the law's control, and (2) the power of concentrated markets -to weaken the opportunity for dissent, if strictly enforcing the - massively -expanded "property" rights granted by copyright fundamentally -changes the freedom within this culture to cultivate and build upon our -past, then we have to ask whether this property should be redefined. +less innocent and obvious. Given (1) the power of technology to +supplement the law's control, and (2) the power of concentrated +markets to weaken the opportunity for dissent, if strictly enforcing +the massively expanded "property" rights granted by copyright +fundamentally changes the freedom within this culture to cultivate and +build upon our past, then we have to ask whether this property should +be redefined. Not starkly. Or absolutely. My point is not that we should abolish @@ -8320,62 +8248,51 @@ mistake, disastrous for the most important creative enterprises within our culture today. -But there is a space between zero and one, Internet culture - notwithstanding. -And these massive shifts in the effective power of copyright -regulation, tied to increased concentration of the content industry and -resting in the hands of technology that will increasingly enable control -over the use of culture, should drive us to consider whether another - adjustment -is called for. Not an adjustment that increases copyright's -power. Not an adjustment that increases its term. Rather, an - adjustment -to restore the balance that has traditionally defined copyright's -regulation—a weakening of that regulation, to strengthen creativity. +But there is a space between zero and one, Internet culture +notwithstanding. And these massive shifts in the effective power of +copyright regulation, tied to increased concentration of the content +industry and resting in the hands of technology that will increasingly +enable control over the use of culture, should drive us to consider +whether another adjustment is called for. Not an adjustment that +increases copyright's power. Not an adjustment that increases its +term. Rather, an adjustment to restore the balance that has +traditionally defined copyright's regulation—a weakening of that +regulation, to strengthen creativity. -Copyright law has not been a rock of Gibraltar. It's not a set of - constant -commitments that, for some mysterious reason, teenagers and +Copyright law has not been a rock of Gibraltar. It's not a set of +constant commitments that, for some mysterious reason, teenagers and geeks now flout. Instead, copyright power has grown dramatically in a short period of time, as the technologies of distribution and creation -have changed and as lobbyists have pushed for more control by - copyright -holders. Changes in the past in response to changes in - technology -suggest that we may well need similar changes in the future. And -these changes have to be reductions in the scope of copyright, in - response -to the extraordinary increase in control that technology and the -market enable. +have changed and as lobbyists have pushed for more control by +copyright holders. Changes in the past in response to changes in +technology suggest that we may well need similar changes in the +future. And these changes have to be reductions in the scope of +copyright, in response to the extraordinary increase in control that +technology and the market enable. For the single point that is lost in this war on pirates is a point that we see only after surveying the range of these changes. When you add together the effect of changing law, concentrated markets, and - changing -technology, together they produce an astonishing conclusion: -Never in our history have fewer had a legal right to control more of the - development -of our culture than now. - - -Not when copyrights were perpetual, for when copyrights were -perpetual, they affected only that precise creative work. Not when only -publishers had the tools to publish, for the market then was much more -diverse. Not when there were only three television networks, for even -then, newspapers, film studios, radio stations, and publishers were - independent -of the networks. Never has copyright protected such a wide -range of rights, against as broad a range of actors, for a term that was -remotely as long. This form of regulation—a tiny regulation of a tiny -part of the creative energy of a nation at the founding—is now a - massive -regulation of the overall creative process. Law plus technology plus -the market now interact to turn this historically benign regulation into -the most significant regulation of culture that our free society has -known. +changing technology, together they produce an astonishing conclusion: +Never in our history have fewer had a legal right to control more of +the development of our culture than now. + + Not when copyrights were perpetual, for when copyrights were +perpetual, they affected only that precise creative work. Not when +only publishers had the tools to publish, for the market then was much +more diverse. Not when there were only three television networks, for +even then, newspapers, film studios, radio stations, and publishers +were independent of the networks. Never has copyright protected such a +wide range of rights, against as broad a range of actors, for a term +that was remotely as long. This form of regulation—a tiny +regulation of a tiny part of the creative energy of a nation at the +founding—is now a massive regulation of the overall creative +process. Law plus technology plus the market now interact to turn this +historically benign regulation into the most significant regulation of +culture that our free society has known. Siva Vaidhyanathan captures a similar point in his "four surrenders" of copyright law in the digital age. See Vaidhyanathan, 159–60. @@ -8386,12 +8303,10 @@ This has been a long chapter. Its point can now be briefly stated. At the start of this book, I distinguished between commercial and -noncommercial culture. In the course of this chapter, I have - distinguished -between copying a work and transforming it. We can now +noncommercial culture. In the course of this chapter, I have +distinguished between copying a work and transforming it. We can now combine these two distinctions and draw a clear map of the changes -that copyright law has undergone. -In 1790, the law looked like this: +that copyright law has undergone. In 1790, the law looked like this: @@ -8458,20 +8373,16 @@ By the end of the nineteenth century, the law had changed to this:
-Derivative works were now regulated by copyright law—if - published, -which again, given the economics of publishing at the time, +Derivative works were now regulated by copyright law—if +published, which again, given the economics of publishing at the time, means if offered commercially. But noncommercial publishing and transformation were still essentially free. -In 1909 the law changed to regulate copies, not publishing, and - after +In 1909 the law changed to regulate copies, not publishing, and after this change, the scope of the law was tied to technology. As the -technology of copying became more prevalent, the reach of the law - expanded. -Thus by 1975, as photocopying machines became more - common, +technology of copying became more prevalent, the reach of the law +expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this: @@ -8535,12 +8446,12 @@ means that the law now looks like this: -Every realm is governed by copyright law, whereas before most - creativity -was not. The law now regulates the full range of creativity— +Every realm is governed by copyright law, whereas before most +creativity was not. The law now regulates the full range of +creativity— -commercial or not, transformative or not—with the same rules designed -to regulate commercial publishers. +commercial or not, transformative or not—with the same rules +designed to regulate commercial publishers. Obviously, copyright law is not the enemy. The enemy is regulation @@ -8551,11 +8462,9 @@ these domains actually does any good. I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when -regulating (as it regulates just now) noncommercial copying and, - especially, -noncommercial transformation. And increasingly, for the - reasons -sketched especially in chapters 7 and 8, one might well wonder +regulating (as it regulates just now) noncommercial copying and, +especially, noncommercial transformation. And increasingly, for the +reasons sketched especially in chapters 7 and 8, one might well wonder whether it does more harm than good for commercial transformation. More commercial transformative work would be created if derivative rights were more sharply restricted. @@ -8563,58 +8472,57 @@ rights were more sharply restricted. The issue is therefore not simply whether copyright is property. Of course copyright is a kind of "property," and of course, as with any -property, the state ought to protect it. But first impressions - notwithstanding, -historically, this property right (as with all property rights +property, the state ought to protect it. But first impressions +notwithstanding, historically, this property right (as with all +property rights -It was the single most important contribution of the legal realist - movement -to demonstrate that all property rights are always crafted to balance -public and private interests. See Thomas C. Grey, "The Disintegration of -Property," in Nomos XXII: Property, J. Roland Pennock and John W. -Chapman, eds. (New York: New York University Press, 1980). +It was the single most important contribution of the legal realist +movement to demonstrate that all property rights are always crafted to +balance public and private interests. See Thomas C. Grey, "The +Disintegration of Property," in Nomos XXII: Property, J. Roland +Pennock and John W. Chapman, eds. (New York: New York University +Press, 1980). ) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to -creative work. This balance has always been struck in light of new - technologies. -And for almost half of our tradition, the "copyright" did not -control at all the freedom of others to 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. +creative work. This balance has always been struck in light of new +technologies. And for almost half of our tradition, the "copyright" +did not control at all the freedom of others to build upon or +transform a creative work. American culture was born free, and for +almost 180 years our country consistently protected a vibrant and rich +free culture. We achieved that free culture because our law respected important limits on the scope of the interests protected by "property." The very birth of "copyright" as a statutory right recognized those limits, by -granting copyright owners protection for a limited time only (the story -of chapter 6). The tradition of "fair use" is animated by a similar - concern -that is increasingly under strain as the costs of exercising any fair -use right become unavoidably high (the story of chapter 7). Adding +granting copyright owners protection for a limited time only (the +story of chapter 6). The tradition of "fair use" is animated by a +similar concern that is increasingly under strain as the costs of +exercising any fair use right become unavoidably high (the story of +chapter 7). Adding statutory rights where markets might stifle innovation is another - familiar -limit on the property right that copyright is (chapter 8). And - granting -archives and libraries a broad freedom to collect, claims of property -notwithstanding, is a crucial part of guaranteeing the soul of a culture -(chapter 9). Free cultures, like free markets, are built with property. But -the nature of the property that builds a free culture is very different -from the extremist vision that dominates the debate today. - - -Free culture is increasingly the casualty in this war on piracy. In - response -to a real, if not yet quantified, threat that the technologies of the -Internet present to twentieth-century business models for producing -and distributing culture, the law and technology are being transformed -in a way that will undermine our tradition of free culture. The property -right that is copyright is no longer the balanced right that it was, or -was intended to be. The property right that is copyright has become -unbalanced, tilted toward an extreme. The opportunity to create and -transform becomes weakened in a world in which creation requires -permission and creativity must check with a lawyer. +familiar limit on the property right that copyright is (chapter +8). And granting archives and libraries a broad freedom to collect, +claims of property notwithstanding, is a crucial part of guaranteeing +the soul of a culture (chapter 9). Free cultures, like free markets, +are built with property. But the nature of the property that builds a +free culture is very different from the extremist vision that +dominates the debate today. + + +Free culture is increasingly the casualty in this war on piracy. In +response to a real, if not yet quantified, threat that the +technologies of the Internet present to twentieth-century business +models for producing and distributing culture, the law and technology +are being transformed in a way that will undermine our tradition of +free culture. The property right that is copyright is no longer the +balanced right that it was, or was intended to be. The property right +that is copyright has become unbalanced, tilted toward an extreme. The +opportunity to create and transform becomes weakened in a world in +which creation requires permission and creativity must check with a +lawyer. @@ -8622,168 +8530,164 @@ permission and creativity must check with a lawyer. PUZZLES - - - + CHAPTER ELEVEN: Chimera - + + chimeras + + + Wells, H. G. + + + "Country of the Blind, The" (Wells) + + In a well-known short story by H. G. Wells, a mountain climber named Nunez trips (literally, down an ice slope) into an unknown and isolated valley in the Peruvian Andes. - H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells, + +H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells, The Country of the Blind and Other Stories, Michael Sherborne, ed. (New York: Oxford University Press, 1996). -The valley is extraordinarily -beautiful, with "sweet water, pasture, an even climate, slopes of rich -brown soil with tangles of a shrub that bore an excellent fruit." But the -villagers are all blind. Nunez takes this as an opportunity. "In the -Country of the Blind," he tells himself, "the One-Eyed Man is King." -So he resolves to live with the villagers to explore life as a king. +The valley is extraordinarily beautiful, with "sweet water, pasture, +an even climate, slopes of rich brown soil with tangles of a shrub +that bore an excellent fruit." But the villagers are all blind. Nunez +takes this as an opportunity. "In the Country of the Blind," he tells +himself, "the One-Eyed Man is King." So he resolves to live with the +villagers to explore life as a king. Things don't go quite as he planned. He tries to explain the idea of sight to the villagers. They don't understand. He tells them they are -"blind." They don't have the word blind. They think he's just thick. - Indeed, -as they increasingly notice the things he can't do (hear the sound -of grass being stepped on, for example), they increasingly try to control -him. He, in turn, becomes increasingly frustrated. "`You don't - understand,' -he cried, in a voice that was meant to be great and resolute, and -which broke. `You are blind and I can see. Leave me alone!'" +"blind." They don't have the word blind. They think he's just thick. +Indeed, as they increasingly notice the things he can't do (hear the +sound of grass being stepped on, for example), they increasingly try +to control him. He, in turn, becomes increasingly frustrated. "`You +don't understand,' he cried, in a voice that was meant to be great and +resolute, and which broke. `You are blind and I can see. Leave me +alone!'" -The villagers don't leave him alone. Nor do they see (so to speak) -the virtue of his special power. Not even the ultimate target of his - affection, -a young woman who to him seems "the most beautiful thing in -the whole of creation," understands the beauty of sight. Nunez's - description -of what he sees "seemed to her the most poetical of fancies, -and she listened to his description of the stars and the mountains and -her own sweet white-lit beauty as though it was a guilty indulgence." -"She did not believe," Wells tells us, and "she could only half - understand, -but she was mysteriously delighted." - - -When Nunez announces his desire to marry his "mysteriously - delighted" +The villagers don't leave him alone. Nor do they see (so to speak) the +virtue of his special power. Not even the ultimate target of his +affection, a young woman who to him seems "the most beautiful thing in +the whole of creation," understands the beauty of sight. Nunez's +description of what he sees "seemed to her the most poetical of +fancies, and she listened to his description of the stars and the +mountains and her own sweet white-lit beauty as though it was a guilty +indulgence." "She did not believe," Wells tells us, and "she could +only half understand, but she was mysteriously delighted." + + +When Nunez announces his desire to marry his "mysteriously delighted" love, the father and the village object. "You see, my dear," her -father instructs, "he's an idiot. He has delusions. He can't do anything -right." They take Nunez to the village doctor. +father instructs, "he's an idiot. He has delusions. He can't do +anything right." They take Nunez to the village doctor. After a careful examination, the doctor gives his opinion. "His brain is affected," he reports. -"What affects it?" the father asks. -"Those queer things that are called the eyes . . . are diseased . . . in -such a way as to affect his brain." +"What affects it?" the father asks. "Those queer things that are +called the eyes . . . are diseased . . . in such a way as to affect +his brain." The doctor continues: "I think I may say with reasonable certainty -that in order to cure him completely, all that we need to do is a simple -and easy surgical operation—namely, to remove these irritant bodies -[the eyes]." +that in order to cure him completely, all that we need to do is a +simple and easy surgical operation—namely, to remove these +irritant bodies [the eyes]." -"Thank Heaven for science!" says the father to the doctor. They - inform +"Thank Heaven for science!" says the father to the doctor. They inform Nunez of this condition necessary for him to be allowed his bride. -(You'll have to read the original to learn what happens in the end. I - believe -in free culture, but never in giving away the end of a story.) +(You'll have to read the original to learn what happens in the end. I +believe in free culture, but never in giving away the end of a story.) It sometimes happens that the eggs of twins fuse in the mother's womb. That fusion produces a "chimera." A chimera is a single creature with two sets of DNA. The DNA in the blood, for example, might be different from the DNA of the skin. This possibility is an underused -plot for murder mysteries. "But the DNA shows with 100 percent - certainty -that she was not the person whose blood was at the scene. . . ." +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 of -DNA is that it is the code of an individual. Yet in fact, not only can two -individuals have the same set of DNA (identical twins), but one person -can have two different sets of DNA (a chimera). Our understanding of -a "person" should reflect this reality. +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 +of DNA is that it is the code of an individual. Yet in fact, not only +can two individuals have the same set of DNA (identical twins), but +one person can have two different sets of DNA (a chimera). Our +understanding of a "person" should reflect this reality. -The more I work to understand the current struggle over copyright -and culture, which I've sometimes called unfairly, and sometimes not +The more I work to understand the current struggle over copyright and +culture, which I've sometimes called unfairly, and sometimes not unfairly enough, "the copyright wars," the more I think we're dealing with a chimera. For example, in the battle over the question "What is -p2p file sharing?" both sides have it right, and both sides have it wrong. -One side says, "File sharing is just like two kids taping each others' -records—the sort of thing we've been doing for the last thirty years -without any question at all." That's true, at least in part. When I tell my -best friend to try out a new CD that I've bought, but rather than just -send the CD, I point him to my p2p server, that is, in all relevant - respects, -just like what every executive in every recording company no -doubt did as a kid: sharing music. +p2p file sharing?" both sides have it right, and both sides have it +wrong. One side says, "File sharing is just like two kids taping each +others' records—the sort of thing we've been doing for the last +thirty years without any question at all." That's true, at least in +part. When I tell my best friend to try out a new CD that I've bought, +but rather than just send the CD, I point him to my p2p server, that +is, in all relevant respects, just like what every executive in every +recording company no doubt did as a kid: sharing music. But the description is also false in part. For when my p2p server is -on a p2p network through which anyone can get access to my music, -then sure, my friends can get access, but it stretches the meaning of +on a p2p network through which anyone can get access to my music, then +sure, my friends can get access, but it stretches the meaning of "friends" beyond recognition to say "my ten thousand best friends" can get access. Whether or not sharing my music with my best friend is -what "we have always been allowed to do," we have not always been - allowed -to share music with "our ten thousand best friends." +what "we have always been allowed to do," we have not always been +allowed to share music with "our ten thousand best friends." Likewise, when the other side says, "File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out -with it," that's true, at least in part. If, after Lyle Lovett (finally) - releases -a new album, rather than buying it, I go to Kazaa and find a free -copy to take, that is very much like stealing a copy from Tower. +with it," that's true, at least in part. If, after Lyle Lovett +(finally) releases a new album, rather than buying it, I go to Kazaa +and find a free copy to take, that is very much like stealing a copy +from Tower. But it is not quite stealing from Tower. After all, when I take a CD -from Tower Records, Tower has one less CD to sell. And when I take -a CD from Tower Records, I get a bit of plastic and a cover, and - something -to show on my shelves. (And, while we're at it, we could also note -that when I take a CD from Tower Records, the maximum fine that -might be imposed on me, under California law, at least, is $1,000. - According -to the RIAA, by contrast, if I download a ten-song CD, I'm - liable -for $1,500,000 in damages.) +from Tower Records, Tower has one less CD to sell. And when I take a +CD from Tower Records, I get a bit of plastic and a cover, and +something to show on my shelves. (And, while we're at it, we could +also note that when I take a CD from Tower Records, the maximum fine +that might be imposed on me, under California law, at least, is +$1,000. According to the RIAA, by contrast, if I download a ten-song +CD, I'm liable for $1,500,000 in damages.) -The point is not that it is as neither side describes. The point is that -it is both—both as the RIAA describes it and as Kazaa describes it. It -is a chimera. And rather than simply denying what the other side - asserts, -we need to begin to think about how we should respond to this -chimera. What rules should govern it? +The point is not that it is as neither side describes. The point is +that it is both—both as the RIAA describes it and as Kazaa +describes it. It is a chimera. And rather than simply denying what the +other side asserts, we need to begin to think about how we should +respond to this chimera. What rules should govern it? We could respond by simply pretending that it is not a chimera. We -could, with the RIAA, decide that every act of file sharing should be a -felony. We could prosecute families for millions of dollars in damages -just because file sharing occurred on a family computer. And we can get -universities to monitor all computer traffic to make sure that no - computer -is used to commit this crime. These responses might be extreme, -but each of them has either been proposed or actually implemented. +could, with the RIAA, decide that every act of file sharing should be +a felony. We could prosecute families for millions of dollars in +damages just because file sharing occurred on a family computer. And +we can get universities to monitor all computer traffic to make sure +that no computer is used to commit this crime. These responses might +be extreme, but each of them has either been proposed or actually +implemented. For an excellent summary, see the report prepared by GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School, "Copyright @@ -8819,14 +8723,13 @@ D3, available at + -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 no copyright liability, either civil or criminal, for making - copyrighted -content available on the Net. Make file sharing like gossip: - regulated, -if at all, by social norms but not by law. +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 +no copyright liability, either civil or criminal, for making +copyrighted content available on the Net. Make file sharing like +gossip: regulated, if at all, by social norms but not by law. Either response is possible. I think either would be a mistake. @@ -8938,10 +8841,12 @@ first time, the law should defend the old against the new, just when the power of the property called "intellectual property" is at its greatest in our history. +Causby, Thomas Lee +Causby, Tinie -Yet "common sense" does not see it this way. Common sense is still -on the side of the Causbys and the content industry. The extreme -claims of control in the name of property still resonate; the uncritical +Yet "common sense" does not see it this way. Common sense is still on +the side of the Causbys and the content industry. The extreme claims +of control in the name of property still resonate; the uncritical rejection of "piracy" still has play. @@ -9023,7 +8928,9 @@ Approval for SEC Settlement" (7 July 2003), available at And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and -suffering. +suffering. +Bush, George W. + The bill, modeled after California's tort reform model, was passed in the House of Representatives but defeated in a Senate vote in July 2003. For an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,' @@ -9181,6 +9088,7 @@ 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 This is the single most dramatic effect of the shift in regulatory @@ -9280,6 +9188,8 @@ industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly. +Hummer, John +Barry, Hank This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the @@ -9310,31 +9220,32 @@ are afraid of technologies that touch content. In an article in Business 2.0, Rafe Needleman describes a discussion with BMW:

+BMW 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 engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this - forward -for release stateside. Even today, no new cars are sold in the -United States with bona fide MP3 players. . . . - Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June +forward for release stateside. Even today, no new cars are sold in the +United States with bona fide MP3 players. . . . +Needleman, Rafe + + +Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June 2003, available at -link #43. I am grateful to Dr. Mohammad Al-Ubaydli -for this example. +link #43. I am grateful +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 that the -law empowers copyright holders to exercise. It is a system that will - obviously -and necessarily stifle new innovation. It is hard enough to start -a company. It is impossibly hard if that company is constantly - threatened -by litigation. +life" offers, governed in the end not by courts but by the threats +that the law empowers copyright holders to exercise. It is a system +that will obviously and necessarily stifle new innovation. It is hard +enough to start a company. It is impossibly hard if that company is +constantly threatened by litigation. @@ -9652,29 +9563,30 @@ This financial burden is not slight. As Harvard law professor William Fisher estimates, if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be -over $1 million a year. - This example was derived from fees set by the original Copyright - Arbitration -Royalty Panel (CARP) proceedings, and is drawn from an example -offered by Professor William Fisher. Conference Proceedings, iLaw -(Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain -submitted testimony in the CARP proceeding that was ultimately rejected. -See Jonathan Zittrain, Digital Performance Right in Sound Recordings -and Ephemeral Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, -available at +over $1 million a year. +CARP (Copyright Arbitration Royalty Panel) + + +This example was derived from fees set by the original Copyright +Arbitration Royalty Panel (CARP) proceedings, and is drawn from an +example offered by Professor William Fisher. Conference Proceedings, +iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher +and Zittrain submitted testimony in the CARP proceeding that was +ultimately rejected. See Jonathan Zittrain, Digital Performance Right +in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP +DTRA 1 and 2, available at link #45. -For an excellent analysis making a similar point, see Randal C. Picker, -"Copyright as Entry Policy: The Case of Digital Distribution," Antitrust -Bulletin (Summer/Fall 2002): 461: "This was not confusion, these are just -old-fashioned entry barriers. Analog radio stations are protected from - digital -entrants, reducing entry in radio and diversity. Yes, this is done in the -name of getting royalties to copyright holders, but, absent the play of - powerful +For an excellent analysis making a similar point, see Randal +C. Picker, "Copyright as Entry Policy: The Case of Digital +Distribution," Antitrust Bulletin (Summer/Fall 2002): 461: "This was +not confusion, these are just old-fashioned entry barriers. Analog +radio stations are protected from digital entrants, reducing entry in +radio and diversity. Yes, this is done in the name of getting +royalties to copyright holders, but, absent the play of powerful interests, that could have been done in a media-neutral way." - A regular radio station broadcasting the same -content would pay no equivalent fee. +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 @@ -9773,9 +9685,9 @@ Why? What justifies this difference? Was there any study of the economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? +Alben, Alex -In a rare bit of candor, one RIAA expert admitted what seemed - obvious +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 Policy at Real Networks, told me, @@ -11999,86 +11911,74 @@ between Democrats and Republicans on this issue. Anyone can recognize the stupid harm of the present system. -Indeed, many recognized the obvious benefit of the registration - requirement. -For one of the hardest things about the current system for -people who want to license content is that there is no obvious place to -look for the current copyright owners. Since registration is not - required, -since marking content is not required, since no formality at all -is required, it is often impossibly hard to locate copyright owners to ask -permission to use or license their work. This system would lower these -costs, by establishing at least one registry where copyright owners -could be identified. +Indeed, many recognized the obvious benefit of the registration +requirement. For one of the hardest things about the current system +for people who want to license content is that there is no obvious +place to look for the current copyright owners. Since registration is +not required, since marking content is not required, since no +formality at all is required, it is often impossibly hard to locate +copyright owners to ask permission to use or license their work. This +system would lower these costs, by establishing at least one registry +where copyright owners could be identified. +Berlin Act (1908) +Berne Convention (1908) As I described in chapter 10, formalities in copyright law were - removed -in 1976, when Congress followed the Europeans by - abandoning +removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. - Until the 1908 Berlin Act of the Berne Convention, national copyright -legislation sometimes made protection depend upon compliance with - formalities -such as registration, deposit, and affixation of notice of the - author's -claim of copyright. However, starting with the 1908 act, every text -of the Convention has provided that "the enjoyment and the exercise" of -rights guaranteed by the Convention "shall not be subject to any - formality." -The prohibition against formalities is presently embodied in Article -5(2) of the Paris Text of the Berne Convention. Many countries continue -to impose some form of deposit or registration requirement, albeit not as -a condition of copyright. French law, for example, requires the deposit of -copies of works in national repositories, principally the National Museum. + +Until the 1908 Berlin Act of the Berne Convention, national copyright +legislation sometimes made protection depend upon compliance with +formalities such as registration, deposit, and affixation of notice of +the author's claim of copyright. However, starting with the 1908 act, +every text of the Convention has provided that "the enjoyment and the +exercise" of rights guaranteed by the Convention "shall not be subject +to any formality." The prohibition against formalities is presently +embodied in Article 5(2) of the Paris Text of the Berne +Convention. Many countries continue to impose some form of deposit or +registration requirement, albeit not as a condition of +copyright. French law, for example, requires the deposit of copies of +works in national repositories, principally the National Museum. Copies of books published in the United Kingdom must be deposited in the British Library. The German Copyright Act provides for a Registrar -of Authors where the author's true name can be filed in the case of - anonymous -or pseudonymous works. Paul Goldstein, International Intellectual -Property Law, Cases and Materials (New York: Foundation Press, 2001), -153–54. - - The - Europeans -are said to view copyright as a "natural right." Natural rights -don't need forms to exist. Traditions, like the Anglo-American - tradition -that required copyright owners to follow form if their rights were -to be protected, did not, the Europeans thought, properly respect the -dignity of the author. My right as a creator turns on my creativity, not -upon the special favor of the government. - - -That's great rhetoric. It sounds wonderfully romantic. But it is - absurd -copyright policy. It is absurd especially for authors, because a -world without formalities harms the creator. The ability to spread +of Authors where the author's true name can be filed in the case of +anonymous or pseudonymous works. Paul Goldstein, International +Intellectual Property Law, Cases and Materials (New York: Foundation +Press, 2001), 153–54. +The Europeans are said to view copyright as a "natural right." Natural +rights don't need forms to exist. Traditions, like the Anglo-American +tradition that required copyright owners to follow form if their +rights were to be protected, did not, the Europeans thought, properly +respect the dignity of the author. My right as a creator turns on my +creativity, not upon the special favor of the government. + + +That's great rhetoric. It sounds wonderfully romantic. But it is +absurd copyright policy. It is absurd especially for authors, because +a world without formalities harms the creator. The ability to spread "Walt Disney creativity" is destroyed when there is no simple way to know what's protected and what's not. +Berne Convention (1908) -The fight against formalities achieved its first real victory in Berlin -in 1908. International copyright lawyers amended the Berne - Convention -in 1908, to require copyright terms of life plus fifty years, as well as -the abolition of copyright formalities. The formalities were hated - because -the stories of inadvertent loss were increasingly common. It was -as if a Charles Dickens character ran all copyright offices, and the - failure -to dot an i or cross a t resulted in the loss of widows' only income. +The fight against formalities achieved its first real victory in +Berlin in 1908. International copyright lawyers amended the Berne +Convention in 1908, to require copyright terms of life plus fifty +years, as well as the abolition of copyright formalities. The +formalities were hated because the stories of inadvertent loss were +increasingly common. It was as if a Charles Dickens character ran all +copyright offices, and the failure to dot an i or cross a t resulted +in the loss of widows' only income. These complaints were real and sensible. And the strictness of the -formalities, especially in the United States, was absurd. The law should -always have ways of forgiving innocent mistakes. There is no reason -copyright law couldn't, as well. Rather than abandoning formalities - totally, -the response in Berlin should have been to embrace a more - equitable -system of registration. +formalities, especially in the United States, was absurd. The law +should always have ways of forgiving innocent mistakes. There is no +reason copyright law couldn't, as well. Rather than abandoning +formalities totally, the response in Berlin should have been to +embrace a more equitable system of registration. Even that would have been resisted, however, because registration @@ -12093,40 +11993,37 @@ In addition to the practical complaint of authors in 1908, there was a moral claim as well. There was no reason that creative property -should be a second-class form of property. If a carpenter builds a table, -his rights over the table don't depend upon filing a form with the - government. -He has a property right over the table "naturally," and he can -assert that right against anyone who would steal the table, whether or -not he has informed the government of his ownership of the table. +should be a second-class form of property. If a carpenter builds a +table, his rights over the table don't depend upon filing a form with +the government. He has a property right over the table "naturally," +and he can assert that right against anyone who would steal the table, +whether or not he has informed the government of his ownership of the +table. -This argument is correct, but its implications are misleading. For -the argument in favor of formalities does not depend upon creative -property being second-class property. The argument in favor of - formalities -turns upon the special problems that creative property - presents. -The law of formalities responds to the special physics of creative -property, to assure that it can be efficiently and fairly spread. +This argument is correct, but its implications are misleading. For the +argument in favor of formalities does not depend upon creative +property being second-class property. The argument in favor of +formalities turns upon the special problems that creative property +presents. The law of formalities responds to the special physics of +creative property, to assure that it can be efficiently and fairly +spread. No one thinks, for example, that land is second-class property just -because you have to register a deed with a court if your sale of land is -to be effective. And few would think a car is second-class property just -because you must register the car with the state and tag it with a - license. -In both of those cases, everyone sees that there is an important -reason to secure registration—both because it makes the markets more -efficient and because it better secures the rights of the owner. Without -a registration system for land, landowners would perpetually have to -guard their property. With registration, they can simply point the - police -to a deed. Without a registration system for cars, auto theft would -be much easier. With a registration system, the thief has a high burden -to sell a stolen car. A slight burden is placed on the property owner, but -those burdens produce a much better system of protection for property -generally. +because you have to register a deed with a court if your sale of land +is to be effective. And few would think a car is second-class property +just because you must register the car with the state and tag it with +a license. In both of those cases, everyone sees that there is an +important reason to secure registration—both because it makes +the markets more efficient and because it better secures the rights of +the owner. Without a registration system for land, landowners would +perpetually have to guard their property. With registration, they can +simply point the police to a deed. Without a registration system for +cars, auto theft would be much easier. With a registration system, the +thief has a high burden to sell a stolen car. A slight burden is +placed on the property owner, but those burdens produce a much better +system of protection for property generally. It is similarly special physics that makes formalities important in @@ -12153,15 +12050,13 @@ work would be presumptively controlled. After fourteen years, it would be presumptively uncontrolled. -But now that copyrights can be just about a century long, the - inability -to know what is protected and what is not protected becomes a -huge and obvious burden on the creative process. If the only way a - library -can offer an Internet exhibit about the New Deal is to hire a -lawyer to clear the rights to every image and sound, then the copyright -system is burdening creativity in a way that has never been seen before -because there are no formalities. +But now that copyrights can be just about a century long, the +inability to know what is protected and what is not protected becomes +a huge and obvious burden on the creative process. If the only way a +library can offer an Internet exhibit about the New Deal is to hire a +lawyer to clear the rights to every image and sound, then the +copyright system is burdening creativity in a way that has never been +seen before because there are no formalities. The Eldred Act was designed to respond to exactly this problem. If @@ -12178,10 +12073,10 @@ domain where anyone can copy it, or build archives with it, or create a movie based on it. It should become free if it is not worth $1 to you. -Some worry about the burden on authors. Won't the burden of - registering -the work mean that the $1 is really misleading? Isn't the hassle -worth more than $1? Isn't that the real problem with registration? +Some worry about the burden on authors. Won't the burden of +registering the work mean that the $1 is really misleading? Isn't the +hassle worth more than $1? Isn't that the real problem with +registration? It is. The hassle is terrible. The system that exists now is awful. I @@ -12323,6 +12218,8 @@ feared the competition of FM, they fear the competition of a public domain connected to a public that now has the means to create with it and to share its own creation. +Causby, Thomas Lee +Causby, Tinie What is hard to understand is why the public takes this view. It is as if the law made airplanes trespassers. The MPAA stands with the @@ -12942,68 +12839,58 @@ something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history—free culture. +CodePink Women in Peace -If this is crazy, then let there be more crazies. Soon. -There are moments of hope in this struggle. And moments that -surprise. When the FCC was considering relaxing ownership rules, -which would thereby further increase the concentration in media - ownership, -an extraordinary bipartisan coalition formed to fight this -change. For perhaps the first time in history, interests as diverse as the -NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and -CodePink Women for Peace organized to oppose this change in FCC -policy. An astonishing 700,000 letters were sent to the FCC, - demanding -more hearings and a different result. +If this is crazy, then let there be more crazies. Soon. There are +moments of hope in this struggle. And moments that surprise. When the +FCC was considering relaxing ownership rules, which would thereby +further increase the concentration in media ownership, an +extraordinary bipartisan coalition formed to fight this change. For +perhaps the first time in history, interests as diverse as the NRA, +the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women +for Peace organized to oppose this change in FCC policy. An +astonishing 700,000 letters were sent to the FCC, demanding more +hearings and a different result. -This activism did not stop the FCC, but soon after, a broad - coalition -in the Senate voted to reverse the FCC decision. The hostile - hearings -leading up to that vote revealed just how powerful this movement -had become. There was no substantial support for the FCC's decision, -and there was broad and sustained support for fighting further - concentration -in the media. +This activism did not stop the FCC, but soon after, a broad coalition +in the Senate voted to reverse the FCC decision. The hostile hearings +leading up to that vote revealed just how powerful this movement had +become. There was no substantial support for the FCC's decision, and +there was broad and sustained support for fighting further +concentration in the media. But even this movement misses an important piece of the puzzle. Largeness as such is not bad. Freedom is not threatened just because -some become very rich, or because there are only a handful of big - players. -The poor quality of Big Macs or Quarter Pounders does not mean -that you can't get a good hamburger from somewhere else. +some become very rich, or because there are only a handful of big +players. The poor quality of Big Macs or Quarter Pounders does not +mean that you can't get a good hamburger from somewhere else. -The danger in media concentration comes not from the - concentration, +The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the -change in copyright, produces. It is not just that there are a few - powerful -companies that control an ever expanding slice of the media. It -is that this concentration can call upon an equally bloated range of -rights—property rights of a historically extreme form—that makes -their bigness bad. +change in copyright, produces. It is not just that there are a few +powerful companies that control an ever expanding slice of the +media. It is that this concentration can call upon an equally bloated +range of rights—property rights of a historically extreme +form—that makes their bigness bad. -It is therefore significant that so many would rally to demand - competition -and increased diversity. Still, if the rally is understood as being -about bigness alone, it is not terribly surprising. We Americans have a -long history of fighting "big," wisely or not. That we could be - motivated -to fight "big" again is not something new. +It is therefore significant that so many would rally to demand +competition and increased diversity. Still, if the rally is understood +as being about bigness alone, it is not terribly surprising. We +Americans have a long history of fighting "big," wisely or not. That +we could be motivated to fight "big" again is not something new. -It would be something new, and something very important, if an -equal number could be rallied to fight the increasing extremism built -within the idea of "intellectual property." Not because balance is alien -to our tradition; indeed, as I've argued, balance is our tradition. But - because -the muscle to think critically about the scope of anything called -"property" is not well exercised within this tradition anymore. +It would be something new, and something very important, if an equal +number could be rallied to fight the increasing extremism built within +the idea of "intellectual property." Not because balance is alien to +our tradition; indeed, as I've argued, balance is our tradition. But +because the muscle to think critically about the scope of anything +called "property" is not well exercised within this tradition anymore. If we were Achilles, this would be our heel. This would be the place @@ -13012,50 +12899,49 @@ of our tragedy. As I write these final words, the news is filled with stories about the RIAA lawsuits against almost three hundred individuals. - John Borland, "RIAA Sues 261 File Swappers," CNET News.com, -September 2003, available at -link #65; Paul R. La Monica, "Music - Industry -Sues Swappers," CNN/Money, 8 September 2003, available at -link #66; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a -Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily -News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet - Surprised + +John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September +2003, available at +link #65; Paul +R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September +2003, available at +link #66; Soni +Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song, +N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9 +September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," Washington Post, 10 September 2003, E1; Katie Dean, -"Schoolgirl Settles with RIAA," Wired News, 10 September 2003, - available -at +"Schoolgirl Settles with RIAA," Wired News, 10 September 2003, +available at link #67. - - Eminem -has just been sued for "sampling" someone else's music. - Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com, -17 September 2003, available at +Eminem has just been sued for "sampling" someone else's +music. + +Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," +mtv.com, 17 September 2003, available at link #68. - The -story about Bob Dylan "stealing" from a Japanese author has just - finished -making the rounds. - Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for - Dylan -Songs," Kansascity.com, 9 July 2003, available at +The story about Bob Dylan "stealing" from a Japanese author has just +finished making the rounds. + +Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for +Dylan Songs," Kansascity.com, 9 July 2003, available at link #69. - An insider from Hollywood—who insists -he must remain anonymous—reports "an amazing conversation with -these studio guys. They've got extraordinary [old] content that they'd -love to use but can't because they can't begin to clear the rights. They've -got scores of kids who could do amazing things with the content, but -it would take scores of lawyers to clean it first." Congressmen are - talking -about deputizing computer viruses to bring down computers thought -to violate the law. Universities are threatening expulsion for kids who -use a computer to share content. +An insider from Hollywood—who insists he must remain +anonymous—reports "an amazing conversation with these studio +guys. They've got extraordinary [old] content that they'd love to use +but can't because they can't begin to clear the rights. They've got +scores of kids who could do amazing things with the content, but it +would take scores of lawyers to clean it first." Congressmen are +talking about deputizing computer viruses to bring down computers +thought to violate the law. Universities are threatening expulsion for +kids who use a computer to share content. +Causby, Thomas Lee +Causby, Tinie 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 @@ -13064,10 +12950,11 @@ download BBC content, and rip, mix, and burn it. 24 August 2003, available at link #70. - And in Brazil, the -culture minister, Gilberto Gil, himself a folk hero of Brazilian music, -has joined with Creative Commons to release content and free licenses -in that Latin American country. +Gil, Gilberto +And in Brazil, the culture minister, Gilberto Gil, himself a folk hero +of Brazilian music, has joined with Creative Commons to release +content and free licenses in that Latin American +country. "Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003, available at link #71. @@ -13094,10 +12981,9 @@ potential is ever to be realized. -At least some who have read this far will agree with me that - something -must be done to change where we are heading. The balance of -this book maps what might be done. +At least some who have read this far will agree with me that something +must be done to change where we are heading. The balance of this book +maps what might be done. I divide this map into two parts: that which anyone can do now, @@ -13106,12 +12992,11 @@ that we can draw from the history of remaking common sense, it is that it requires remaking how many people think about the very same issue. -That means this movement must begin in the streets. It must - recruit -a significant number of parents, teachers, librarians, creators, - authors, -musicians, filmmakers, scientists—all to tell this story in their -own words, and to tell their neighbors why this battle is so important. +That means this movement must begin in the streets. It must recruit a +significant number of parents, teachers, librarians, creators, +authors, musicians, filmmakers, scientists—all to tell this +story in their own words, and to tell their neighbors why this battle +is so important. Once this movement has its effect in the streets, it has some hope of @@ -13125,52 +13010,46 @@ sketch changes that Congress could make to better secure a free culture. US, NOW -Common sense is with the copyright warriors because the debate so -far has been framed at the extremes—as a grand either/or: either - property -or anarchy, either total control or artists won't be paid. If that - really -is the choice, then the warriors should win. +Common sense is with the copyright warriors because the debate so far +has been framed at the extremes—as a grand either/or: either +property or anarchy, either total control or artists won't be paid. If +that really is the choice, then the warriors should win. -The mistake here is the error of the excluded middle. There are - extremes -in this debate, but the extremes are not all that there is. There -are those who believe in maximal copyright—"All Rights Reserved"— -and those who reject copyright—"No Rights Reserved." The "All -Rights Reserved" sorts believe that you should ask permission before -you "use" a copyrighted work in any way. The "No Rights Reserved" -sorts believe you should be able to do with content as you wish, - regardless -of whether you have permission or not. +The mistake here is the error of the excluded middle. There are +extremes in this debate, but the extremes are not all that there +is. There are those who believe in maximal copyright—"All Rights +Reserved"— and those who reject copyright—"No Rights +Reserved." The "All Rights Reserved" sorts believe that you should ask +permission before you "use" a copyrighted work in any way. The "No +Rights Reserved" sorts believe you should be able to do with content +as you wish, regardless of whether you have permission or not. When the Internet was first born, its initial architecture effectively tilted in the "no rights reserved" direction. Content could be copied -perfectly and cheaply; rights could not easily be controlled. Thus, - regardless -of anyone's desire, the effective regime of copyright under the +perfectly and cheaply; rights could not easily be controlled. Thus, +regardless of anyone's desire, the effective regime of copyright under +the original design of the Internet was "no rights reserved." Content was -"taken" regardless of the rights. Any rights were effectively - unprotected. +"taken" regardless of the rights. Any rights were effectively +unprotected. This initial character produced a reaction (opposite, but not quite equal) by copyright owners. That reaction has been the topic of this book. Through legislation, litigation, and changes to the network's -design, copyright holders have been able to change the essential - character -of the environment of the original Internet. If the original - architecture -made the effective default "no rights reserved," the future -architecture will make the effective default "all rights reserved." The - architecture -and law that surround the Internet's design will increasingly -produce an environment where all use of content requires permission. -The "cut and paste" world that defines the Internet today will become -a "get permission to cut and paste" world that is a creator's nightmare. +design, copyright holders have been able to change the essential +character of the environment of the original Internet. If the original +architecture made the effective default "no rights reserved," the +future architecture will make the effective default "all rights +reserved." The architecture and law that surround the Internet's +design will increasingly produce an environment where all use of +content requires permission. The "cut and paste" world that defines +the Internet today will become a "get permission to cut and paste" +world that is a creator's nightmare. What's needed is a way to say something in the middle—neither "all @@ -13184,14 +13063,14 @@ that we could just take for granted before. Rebuilding Freedoms Previously Presumed: Examples -If you step back from the battle I've been describing here, you will - recognize -this problem from other contexts. Think about privacy. Before -the Internet, most of us didn't have to worry much about data about -our lives that we broadcast to the world. If you walked into a bookstore -and browsed through some of the works of Karl Marx, you didn't need -to worry about explaining your browsing habits to your neighbors or -boss. The "privacy" of your browsing habits was assured. +If you step back from the battle I've been describing here, you will +recognize this problem from other contexts. Think about +privacy. Before the Internet, most of us didn't have to worry much +about data about our lives that we broadcast to the world. If you +walked into a bookstore and browsed through some of the works of Karl +Marx, you didn't need to worry about explaining your browsing habits +to your neighbors or boss. The "privacy" of your browsing habits was +assured. What made it assured? @@ -13199,21 +13078,18 @@ What made it assured? Well, if we think in terms of the modalities I described in chapter -10, your privacy was assured because of an inefficient architecture for -gathering data and hence a market constraint (cost) on anyone who -wanted to gather that data. If you were a suspected spy for North - Korea, -working for the CIA, no doubt your privacy would not be assured. -But that's because the CIA would (we hope) find it valuable enough to -spend the thousands required to track you. But for most of us (again, -we can hope), spying doesn't pay. The highly inefficient architecture of -real space means we all enjoy a fairly robust amount of privacy. That -privacy is guaranteed to us by friction. Not by law (there is no law - protecting -"privacy" in public places), and in many places, not by norms -(snooping and gossip are just fun), but instead, by the costs that - friction -imposes on anyone who would want to spy. +10, your privacy was assured because of an inefficient architecture +for gathering data and hence a market constraint (cost) on anyone who +wanted to gather that data. If you were a suspected spy for North +Korea, working for the CIA, no doubt your privacy would not be +assured. But that's because the CIA would (we hope) find it valuable +enough to spend the thousands required to track you. But for most of +us (again, we can hope), spying doesn't pay. The highly inefficient +architecture of real space means we all enjoy a fairly robust amount +of privacy. That privacy is guaranteed to us by friction. Not by law +(there is no law protecting "privacy" in public places), and in many +places, not by norms (snooping and gossip are just fun), but instead, +by the costs that friction imposes on anyone who would want to spy. Amazon @@ -13240,99 +13116,89 @@ disappears. It is this reality that explains the push of many to define "privacy" on the Internet. It is the recognition that technology can remove what friction before gave us that leads many to push for laws to do what - friction -did. - See, for example, Marc Rotenberg, "Fair Information Practices and the - Architecture -of Privacy (What Larry Doesn't Get)," Stanford Technology Law -Review 1 (2001): par. 6–18, available at -link #72 (describing examples in -which technology defines privacy policy). See also Jeffrey Rosen, The Naked -Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: - Random -House, 2004) (mapping tradeoffs between technology and privacy). - - And whether you're in favor of those laws or not, it is the - pattern +friction did. + + +See, for example, Marc Rotenberg, "Fair Information Practices and the +Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology +Law Review 1 (2001): par. 6–18, available at + +link #72 +(describing examples in which technology defines privacy policy). See +also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom +in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs +between technology and privacy). +And whether you're in favor of those laws or not, it is the pattern that is important here. We must take affirmative steps to secure a -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. +kind of freedom that was passively provided before. A change in +technology now forces those who believe in privacy to affirmatively +act where, before, privacy was given by default. A similar story could be told about the birth of the free software movement. When computers with software were first made available -commercially, the software—both the source code and the 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. +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. +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 one was free to explore and tinker with the software that -ran on machines. Being a smart sort himself, and a talented - programmer, -Stallman grew to depend upon the freedom to add to or modify -other people's work. - - -In an academic setting, at least, that's not a terribly radical idea. In -a math department, anyone would be free to tinker with a proof that -someone offered. If you thought you had a better way to prove a - theorem, -you could take what someone else did and change it. In a classics -department, if you believed a colleague's translation of a recently - discovered -text was flawed, you were free to improve it. Thus, to Stallman, -it seemed obvious that you should be 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? +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 +one was free to explore and tinker with the software that ran on +machines. Being a smart sort himself, and a talented programmer, +Stallman grew to depend upon the freedom to add to or modify other +people's work. + + +In an academic setting, at least, that's not a terribly radical +idea. In a math department, anyone would be free to tinker with a +proof that someone offered. If you thought you had a better way to +prove a theorem, you could take what someone else did and change +it. In a classics department, if you believed a colleague's +translation of a recently discovered text was flawed, you were free to +improve it. Thus, to Stallman, it seemed obvious that you should be +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? No one answered that question. Instead, the architecture of revenue -for computing changed. As it became possible to import programs -from one system to another, it became economically attractive (at least -in the view of some) to hide the code of your program. So, too, as - companies -started selling peripherals for mainframe systems. If I could just -take your printer driver and copy it, then that would make it easier for -me to sell a printer to the market than it was for you. +for computing changed. As it became possible to import programs from +one system to another, it became economically attractive (at least in +the view of some) to hide the code of your program. So, too, as +companies started selling peripherals for mainframe systems. If I +could just take your printer driver and copy it, then that would make +it easier for me to sell a printer to the market than it was for you. Thus, the practice of proprietary code began to spread, and by the early 1980s, Stallman found himself surrounded by proprietary code. -The world of free software had been erased by a change in the - economics -of computing. And as he believed, if he did nothing about it, -then the freedom to change and share software would be - fundamentally -weakened. +The world of free software had been erased by a change in the +economics of computing. And as he believed, if he did nothing about +it, then the freedom to change and share software would be +fundamentally weakened. -Therefore, in 1984, Stallman began a project to build a free - operating +Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds's "Linux" kernel was added to produce the GNU/Linux operating system. Stallman's technique was to use copyright law to build a world of -software that must be kept free. Software licensed under the Free - Software -Foundation's GPL cannot be modified and distributed unless the -source code for that software is made available as well. Thus, anyone -building upon GPL'd software would have to make their buildings free -as well. This would assure, Stallman believed, that an ecology of code -would develop that remained free for others to build upon. His - fundamental -goal was freedom; innovative creative code was a byproduct. +software that must be kept free. Software licensed under the Free +Software Foundation's GPL cannot be modified and distributed unless +the source code for that software is made available as well. Thus, +anyone building upon GPL'd software would have to make their buildings +free as well. This would assure, Stallman believed, that an ecology of +code would develop that remained free for others to build upon. His +fundamental goal was freedom; innovative creative code was a +byproduct. Stallman was thus doing for software what privacy advocates now @@ -13436,37 +13302,32 @@ The same strategy could be applied to culture, as a response to the control effected through law and technology. -Enter the Creative Commons. The Creative Commons is a - nonprofit +Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at -Stanford University. Its aim is to build a layer of reasonable copyright -on top of the extremes that now reign. It does this by making it easy for -people to build upon other people's work, by making it simple for - creators -to express the freedom for others to take and build upon their -work. Simple tags, tied to human-readable descriptions, tied to - bulletproof -licenses, make this possible. - - -Simple—which means without a middleman, or without a lawyer. -By developing a free set of licenses that people can attach to their -content, Creative Commons aims to mark a range of content that -can easily, and reliably, be built upon. These tags are then linked to -machine-readable versions of the license that enable computers - automatically -to identify content that can easily be shared. These three - expressions -together—a legal license, a human-readable description, and +Stanford University. Its aim is to build a layer of reasonable +copyright on top of the extremes that now reign. It does this by +making it easy for people to build upon other people's work, by making +it simple for creators to express the freedom for others to take and +build upon their work. Simple tags, tied to human-readable +descriptions, tied to bulletproof licenses, make this possible. + + +Simple—which means without a middleman, or without a lawyer. By +developing a free set of licenses that people can attach to their +content, Creative Commons aims to mark a range of content that can +easily, and reliably, be built upon. These tags are then linked to +machine-readable versions of the license that enable computers +automatically to identify content that can easily be shared. These +three expressions together—a legal license, a human-readable +description, and machine-readable tags—constitute a Creative Commons license. A -Creative Commons license constitutes a grant of freedom to anyone -who accesses the license, and more importantly, an expression of the -ideal that the person associated with the license believes in something +Creative Commons license constitutes a grant of freedom to anyone who +accesses the license, and more importantly, an expression of the ideal +that the person associated with the license believes in something different than the "All" or "No" extremes. Content is marked with the -CC mark, which does not mean that copyright is waived, but that - certain -freedoms are given. +CC mark, which does not mean that copyright is waived, but that +certain freedoms are given. These freedoms are beyond the freedoms promised by fair use. Their @@ -13832,28 +13693,23 @@ Copyright Office's role to that of approving standards for marking content that have been crafted elsewhere. -For example, if a recording industry association devises a method -for marking CDs, it would propose that to the Copyright Office. The +For example, if a recording industry association devises a method for +marking CDs, it would propose that to the Copyright Office. The Copyright Office would hold a hearing, at which other proposals could be made. The Copyright Office would then select the proposal that it -judged preferable, and it would base that choice solely upon the - consideration -of which method could best be integrated into the registration -and renewal system. We would not count on the government to - innovate; -but we would count on the government to keep the product of - innovation -in line with its other important functions. +judged preferable, and it would base that choice solely upon the +consideration of which method could best be integrated into the +registration and renewal system. We would not count on the government +to innovate; but we would count on the government to keep the product +of innovation in line with its other important functions. -Finally, marking content clearly would simplify registration - requirements. -If photographs were marked by author and year, there -would be little reason not to allow a photographer to reregister, for - example, -all photographs taken in a particular year in one quick step. The -aim of the formality is not to burden the creator; the system itself -should be kept as simple as possible. +Finally, marking content clearly would simplify registration +requirements. If photographs were marked by author and year, there +would be little reason not to allow a photographer to reregister, for +example, all photographs taken in a particular year in one quick +step. The aim of the formality is not to burden the creator; the +system itself should be kept as simple as possible. The objective of formalities is to make things clear. The existing @@ -14062,75 +13918,66 @@ molasses into the machines. That's what this general requirement of permission does to the creative process. Smothers it. -This was the point that Alben made when describing the making of -the Clint Eastwood CD. While it makes sense to require negotiation -for foreseeable derivative rights—turning a book into a movie, or a -poem into a musical score—it doesn't make sense to require - negotiation -for the unforeseeable. Here, a statutory right would make much -more sense. +This was the point that Alben made when describing the making of the +Clint Eastwood CD. While it makes sense to require negotiation for +foreseeable derivative rights—turning a book into a movie, or a +poem into a musical score—it doesn't make sense to require +negotiation for the unforeseeable. Here, a statutory right would make +much more sense. -In each of these cases, the law should mark the uses that are - protected, -and the presumption should be that other uses are not - protected. -This is the reverse of the recommendation of my colleague Paul -Goldstein. - Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial - Jukebox -(Stanford: Stanford University Press, 2003), 187–216. +In each of these cases, the law should mark the uses that are +protected, and the presumption should be that other uses are not +protected. This is the reverse of the recommendation of my colleague +Paul Goldstein. +Goldstein, Paul + + +Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial +Jukebox (Stanford: Stanford University Press, 2003), 187–216. - His view is that the law should be written so that expanded -protections follow expanded uses. +His view is that the law should be written so that +expanded protections follow expanded uses. -Goldstein's analysis would make perfect sense if the cost of the - legal +Goldstein's analysis would make perfect sense if the cost of the legal system were small. But as we are currently seeing in the context of -the Internet, the uncertainty about the scope of protection, and the - incentives -to protect existing architectures of revenue, combined with a -strong copyright, weaken the process of innovation. +the Internet, the uncertainty about the scope of protection, and the +incentives to protect existing architectures of revenue, combined with +a strong copyright, weaken the process of innovation. The law could remedy this problem either by removing protection beyond the part explicitly drawn or by granting reuse rights upon - certain -statutory conditions. Either way, the effect would be to free a great -deal of culture to others to cultivate. And under a statutory rights -regime, that reuse would earn artists more income. +certain statutory conditions. Either way, the effect would be to free +a great deal of culture to others to cultivate. And under a statutory +rights regime, that reuse would earn artists more income. 4. Liberate the Music—Again -The battle that got this whole war going was about music, so it wouldn't -be fair to end this book without addressing the issue that is, to most -people, most pressing—music. There is no other policy issue that - better -teaches the lessons of this book than the battles around the sharing -of music. +The battle that got this whole war going was about music, so it +wouldn't be fair to end this book without addressing the issue that +is, to most people, most pressing—music. There is no other +policy issue that better teaches the lessons of this book than the +battles around the sharing of music. -The appeal of file-sharing music was the crack cocaine of the - Internet's -growth. It drove demand for access to the Internet more - powerfully -than any other single application. It was the Internet's killer -app—possibly in two senses of that word. It no doubt was the - application -that drove demand for bandwidth. It may well be the application -that drives demand for regulations that in the end kill innovation on -the network. - - -The aim of copyright, with respect to content in general and music -in particular, is to create the incentives for music to be composed, - performed, -and, most importantly, spread. The law does this by giving +The appeal of file-sharing music was the crack cocaine of the +Internet's growth. It drove demand for access to the Internet more +powerfully than any other single application. It was the Internet's +killer app—possibly in two senses of that word. It no doubt was +the application that drove demand for bandwidth. It may well be the +application that drives demand for regulations that in the end kill +innovation on the network. + + +The aim of copyright, with respect to content in general and music in +particular, is to create the incentives for music to be composed, +performed, and, most importantly, spread. The law does this by giving an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance. @@ -14154,17 +14001,15 @@ on the way to purchasing CDs. -There are many who are using file-sharing networks to get - access -to content that is no longer sold but is still under copyright -or that would have been too cumbersome to buy off the Net. +There are many who are using file-sharing networks to get access to +content that is no longer sold but is still under copyright or that +would have been too cumbersome to buy off the Net. -There are many who are using file-sharing networks to get - access -to content that is not copyrighted or to get access that the -copyright owner plainly endorses. +There are many who are using file-sharing networks to get access to +content that is not copyrighted or to get access that the copyright +owner plainly endorses. @@ -14176,11 +14021,11 @@ effect of sharing is actually not very harmful, the need for regulation is significantly weakened. -As I said in chapter 5, the actual harm caused by sharing is - controversial. -For the purposes of this chapter, however, I assume the harm is -real. I assume, in other words, that type A sharing is significantly -greater than type B, and is the dominant use of sharing networks. +As I said in chapter 5, the actual harm caused by sharing is +controversial. For the purposes of this chapter, however, I assume +the harm is real. I assume, in other words, that type A sharing is +significantly greater than type B, and is the dominant use of sharing +networks. Nonetheless, there is a crucial fact about the current technological @@ -14188,17 +14033,16 @@ context that we must keep in mind if we are to understand how the law should respond. -Today, file sharing is addictive. In ten years, it won't be. It is addictive -today because it is the easiest way to gain access to a broad range of - content. -It won't be the easiest way to get access to a broad range of content -in ten years. Today, access to the Internet is cumbersome and slow—we -in the United States are lucky to have broadband service at 1.5 MBs, and -very rarely do we get service at that speed both up and down. Although -wireless access is growing, most of us still get access across wires. Most -only gain access through a machine with a keyboard. The idea of the - always -on, always connected Internet is mainly just an idea. +Today, file sharing is addictive. In ten years, it won't be. It is +addictive today because it is the easiest way to gain access to a +broad range of content. It won't be the easiest way to get access to +a broad range of content in ten years. Today, access to the Internet +is cumbersome and slow—we in the United States are lucky to have +broadband service at 1.5 MBs, and very rarely do we get service at +that speed both up and down. Although wireless access is growing, most +of us still get access across wires. Most only gain access through a +machine with a keyboard. The idea of the always on, always connected +Internet is mainly just an idea. But it will become a reality, and that means the way we get access to @@ -14206,38 +14050,35 @@ the Internet today is a technology in transition. Policy makers should not make policy on the basis of technology in transition. They should make policy on the basis of where the technology is going. The - question -should not be, how should the law regulate sharing in this world? -The question should be, what law will we require when the network -becomes the network it is clearly becoming? That network is one in -which every machine with electricity is essentially on the Net; where -everywhere you are—except maybe the desert or the 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. - - -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, content -that is streamed to the user when the user demands. Here, then, is the -critical point: When it is extremely easy to connect to services that give -access to content, it will be easier to connect to services that give you -access to content than it will be to download and store content on the -many devices you will have for playing content. It will be easier, in other -words, to subscribe than it will be to be a database manager, as - everyone -in the download-sharing world of Napster-like technologies - essentially -is. Content services will compete with content sharing, even if -the services charge money for the content they give access to. Already -cell-phone services in Japan offer music (for a fee) streamed over cell -phones (enhanced with plugs for headphones). The Japanese are - paying -for this content even though "free" content is available in the form -of MP3s across the Web. - See, for example, "Music Media Watch," The J@pan Inc. Newsletter, -3 April 2002, available at +question should not be, how should the law regulate sharing in this +world? The question should be, what law will we require when the +network becomes the network it is clearly becoming? That network is +one in which every machine with electricity is essentially on the Net; +where everywhere you are—except maybe the desert or the +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. + + +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, content that is streamed to the user when the user +demands. Here, then, is the critical point: When it is extremely easy +to connect to services that give access to content, it will be easier +to connect to services that give you access to content than it will be +to download and store content on the many devices you will have for +playing content. It will be easier, in other words, to subscribe than +it will be to be a database manager, as everyone in the +download-sharing world of Napster-like technologies essentially +is. Content services will compete with content sharing, even if the +services charge money for the content they give access to. Already +cell-phone services in Japan offer music (for a fee) streamed over +cell phones (enhanced with plugs for headphones). The Japanese are +paying for this content even though "free" content is available in the +form of MP3s across the Web. + +See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3 +April 2002, available at link #76. @@ -14289,14 +14130,13 @@ from the author's perspective, this "sharing" of his content without his being compensated is less than ideal. -The model of used book stores suggests that the law could simply -deem out-of-print music fair game. If the publisher does not make -copies of the music available for sale, then commercial and - noncommercial +The model of used book stores suggests that the law could simply deem +out-of-print music fair game. If the publisher does not make copies of +the music available for sale, then commercial and noncommercial providers would be free, under this rule, to "share" that content, -even though the sharing involved making a copy. The copy here would -be incidental to the trade; in a context where commercial publishing -has ended, trading music should be as free as trading books. +even though the sharing involved making a copy. The copy here would be +incidental to the trade; in a context where commercial publishing has +ended, trading music should be as free as trading books. @@ -14353,7 +14193,10 @@ way to compensate those who are harmed. The idea would be a modification of a proposal that has been -floated by Harvard law professor William Fisher. +floated by Harvard law professor William Fisher. +Netanel, Neil Weinstock +Fisher, William + William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William Fisher, Promises to Keep: @@ -14672,15 +14515,16 @@ keep your lawyers away. NOTES -Throughout this text, there are references to links on the World Wide Web. As -anyone who has tried to use the Web knows, these links can be highly unstable. I -have tried to remedy the instability by redirecting readers to the original source -through the Web site associated with this book. For each link below, you can go to -http://free-culture.cc/notes and locate the original source by clicking on the -number after the # sign. If the original link remains alive, you will be redirected to -that link. If the original link has disappeared, you will be redirected to an - appropriate -reference for the material. +Throughout this text, there are references to links on the World Wide +Web. As anyone who has tried to use the Web knows, these links can be +highly unstable. I have tried to remedy the instability by redirecting +readers to the original source through the Web site associated with +this book. For each link below, you can go to +http://free-culture.cc/notes and locate the original source by +clicking on the number after the # sign. If the original link remains +alive, you will be redirected to that link. If the original link has +disappeared, you will be redirected to an appropriate reference for +the material. @@ -14695,17 +14539,16 @@ to him that this book is dedicated. I received guidance in various places from friends and academics, -including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard -Posner, Mark Rose, and Kathleen Sullivan. And I received correction -and guidance from many amazing students at Stanford Law School -and Stanford University. They included Andrew B. Coan, John Eden, -James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert - Hallman, -Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, -Alina Ng, and Erica Platt. I am particularly grateful to Catherine -Crump and Harry Surden, who helped direct their research, and to -Laura Lynch, who brilliantly managed the army that they assembled, -and provided her own critical eye on much of this. +including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, +Mark Rose, and Kathleen Sullivan. And I received correction and +guidance from many amazing students at Stanford Law School and +Stanford University. They included Andrew B. Coan, John Eden, James +P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman, +Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and +Erica Platt. I am particularly grateful to Catherine Crump and Harry +Surden, who helped direct their research, and to Laura Lynch, who +brilliantly managed the army that they assembled, and provided her own +critical eye on much of this. Yuko Noguchi helped me to understand the laws of Japan as well as @@ -14719,41 +14562,39 @@ chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was there. -These are the traditional sorts of help that academics regularly -draw upon. But in addition to them, the Internet has made it possible -to receive advice and correction from many whom I have never even -met. Among those who have responded with extremely helpful advice -to requests on my blog about the book are Dr. Mohammad Al-Ubaydli, -David Gerstein, and Peter DiMauro, as well as a long list of those who -had specific ideas about ways to develop my argument. They included -Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob -Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy -Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James - Lindenschmidt, -K. L. Mann, Mark Manning, Nora McCauley, Jeffrey -McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D. -Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, -Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, -Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger -Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have -missed anyone; with computers come glitches, and a crash of my -e-mail system meant I lost a bunch of great replies.) - - -Richard Stallman and Michael Carroll each read the whole book -in draft, and each provided extremely helpful correction and advice. -Michael helped me to see more clearly the significance of the - regulation -of derivitive works. And Richard corrected an embarrassingly large -number of errors. While my work is in part inspired by Stallman's, he -does not agree with me in important places throughout this book. - - -Finally, and forever, I am thankful to Bettina, who has always - insisted -that there would be unending happiness away from these battles, -and who has always been right. This slow learner is, as ever, grateful for -her perpetual patience and love. +These are the traditional sorts of help that academics regularly draw +upon. But in addition to them, the Internet has made it possible to +receive advice and correction from many whom I have never even +met. Among those who have responded with extremely helpful advice to +requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David +Gerstein, and Peter DiMauro, as well as a long list of those who had +specific ideas about ways to develop my argument. They included +Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine, +Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger, +Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt, +K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan +McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir +Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, +Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt +Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz," +and Richard Yanco. (I apologize if I have missed anyone; with +computers come glitches, and a crash of my e-mail system meant I lost +a bunch of great replies.) + + +Richard Stallman and Michael Carroll each read the whole book in +draft, and each provided extremely helpful correction and advice. +Michael helped me to see more clearly the significance of the +regulation of derivitive works. And Richard corrected an +embarrassingly large number of errors. While my work is in part +inspired by Stallman's, he does not agree with me in important places +throughout this book. + + +Finally, and forever, I am thankful to Bettina, who has always +insisted that there would be unending happiness away from these +battles, and who has always been right. This slow learner is, as ever, +grateful for her perpetual patience and love.