A glass of water was poured before the microphone in Yonkers; it -sounded like a glass of water being poured. . . . A paper was -crumpled and torn; it sounded like paper and not like a crackling -forest fire. . . . Sousa marches were played from records and a - piano -solo and guitar number were performed. . . . The music was -projected with a live-ness rarely if ever heard before from a radio -"music box." +sounded like a glass of water being poured. . . . A paper was crumpled +and torn; it sounded like paper and not like a crackling forest +fire. . . . Sousa marches were played from records and a piano solo +and guitar number were performed. . . . The music was projected with a +live-ness rarely if ever heard before from a radio "music +box." Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209.
+I thought Armstrong would invent some kind of a filter to remove -static from our AM radio. I didn't think he'd start a revolution— -start up a whole damn new industry to compete with RCA. -See "Saints: The Heroes and Geniuses of the Electronic Era," First - Electronic -Church of America, at www.webstationone.com/fecha, available at +static from our AM radio. I didn't think he'd start a +revolution— start up a whole damn new industry to compete with +RCA. @@ -644,21 +694,19 @@ different. Ideas that were as solid as rock in one age, but that, left to themselves, would crumble in another, are sustained through this subtle corruption of our political -process. RCA had what the Causbys did not: the power to stifle the - effect -of technological change. +process. RCA had what the Causbys did not: the power to stifle the +effect of technological change. See "Saints: The Heroes and Geniuses of the +Electronic Era," First Electronic Church of America, at +www.webstationone.com/fecha, available at link #1 .-There's no single inventor of the Internet. Nor is there any good -date upon which to mark its birth. Yet in a very short time, the - Internet +There's no single inventor of the Internet. Nor is there any good date +upon which to mark its birth. Yet in a very short time, the Internet has become part of ordinary American life. According to the Pew -Internet and American Life Project, 58 percent of Americans had - access -to the Internet in 2002, up from 49 percent two years before. -Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look -at Internet Access and the Digital Divide," Pew Internet and American -Life Project, 15 April 2003: 6, available at +Internet and American Life Project, 58 percent of Americans had access +to the Internet in 2002, up from 49 percent two years +before. That number could well exceed two thirds of the nation by the end @@ -676,37 +724,36 @@ don't affect them directly. They are the proper subject of a book about the Internet. But this is not a book about the Internet. +Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at +Internet Access and the Digital Divide," Pew Internet and American +Life Project, 15 April 2003: 6, available at link #2 .-Instead, this book is about an effect of the Internet beyond the - Internet -itself: an effect upon how culture is made. My claim is that the -Internet has induced an important and unrecognized change in that -process. That change will radically transform a tradition that is as old as -the Republic itself. Most, if they recognized this change, would reject -it. Yet most don't even see the change that the Internet has introduced. +Instead, this book is about an effect of the Internet beyond the +Internet itself: an effect upon how culture is made. My claim is that +the Internet has induced an important and unrecognized change in that +process. That change will radically transform a tradition that is as +old as the Republic itself. Most, if they recognized this change, +would reject it. Yet most don't even see the change that the Internet +has introduced. We can glimpse a sense of this change by distinguishing between -commercial and noncommercial culture, and by mapping the law's - regulation -of each. By "commercial culture" I mean that part of our culture -that is produced and sold or produced to be sold. By "noncommercial -culture" I mean all the rest. When old men sat around parks or on +commercial and noncommercial culture, and by mapping the law's +regulation of each. By "commercial culture" I mean that part of our +culture that is produced and sold or produced to be sold. By +"noncommercial culture" I mean all the rest. When old men sat around +parks or on street corners telling stories that kids and others consumed, that was -noncommercial culture. When Noah Webster published his "Reader," -or Joel Barlow his poetry, that was commercial culture. +noncommercial culture. When Noah Webster published his "Reader," or +Joel Barlow his poetry, that was commercial culture. At the beginning of our history, and for just about the whole of our tradition, noncommercial culture was essentially unregulated. Of -course, if your stories were lewd, or if your song disturbed the peace, -then the law might intervene. But the law was never directly concerned -with the creation or spread of this form of culture, and it left this - culture -"free." The ordinary ways in which ordinary individuals shared and -transformed their culture—telling stories, reenacting scenes from plays -or TV, participating in fan clubs, sharing music, making tapes—were -left alone by the law. +course, if your stories were lewd, or if your song disturbed the +peace, then the law might intervene. But the law was never directly +concerned with the creation or spread of this form of culture, and it +left this culture "free." The ordinary ways in which ordinary +individuals shared and transformed their culture—telling +stories, reenacting scenes from plays or TV, participating in fan +clubs, sharing music, making tapes—were left alone by the law. The focus of the law was on commercial creativity. At first slightly, @@ -714,7 +761,6 @@ then quite extensively, the law protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial marketplace. - -This is also, of -course, an important part of creativity and culture, and it has become -an increasingly important part in America. But in no sense was it - dominant -within our tradition. It was instead just one part, a controlled -part, balanced with the free. +This is also, of course, an important part of creativity and culture, +and it has become an increasingly important part in America. But in no +sense was it dominant within our tradition. It was instead just one +part, a controlled part, balanced with the free.Brandeis, Louis D. This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. @@ -724,13 +770,12 @@ right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, 198–200. + Brandeis, Louis D. This rough divide between the free and the controlled has now @@ -738,61 +783,58 @@ been erased. -The Internet has set the stage for this erasure and, -pushed by big media, the law has now affected it. For the first time in -our tradition, the ordinary ways in which individuals create and share -culture fall within the reach of the regulation of the law, which has - expanded -to draw within its control a vast amount of culture and - creativity -that it never reached before. The technology that preserved the -balance of our history—between uses of our culture that were free and -uses of our culture that were only upon permission—has been undone. -The consequence is that we are less and less a free culture, more and -more a permission culture. +The Internet has set the stage for this erasure and, pushed by big +media, the law has now affected it. For the first time in our +tradition, the ordinary ways in which individuals create and share +culture fall within the reach of the regulation of the law, which has +expanded to draw within its control a vast amount of culture and +creativity that it never reached before. The technology that preserved +the balance of our history—between uses of our culture that were +free and uses of our culture that were only upon permission—has +been undone. The consequence is that we are less and less a free +culture, more and more a permission culture. See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13. -This change gets justified as necessary to protect commercial - creativity. -And indeed, protectionism is precisely its motivation. But the -protectionism that justifies the changes that I will describe below is not -the limited and balanced sort that has defined the law in the past. This -is not a protectionism to protect artists. It is instead a protectionism -to protect certain forms of business. Corporations threatened by the -potential of the Internet to change the way both commercial and -noncommercial culture are made and shared have united to induce -lawmakers to use the law to protect them. It is the story of RCA and -Armstrong; it is the dream of the Causbys. +This change gets justified as necessary to protect commercial +creativity. And indeed, protectionism is precisely its +motivation. But the protectionism that justifies the changes that I +will describe below is not the limited and balanced sort that has +defined the law in the past. This is not a protectionism to protect +artists. It is instead a protectionism to protect certain forms of +business. Corporations threatened by the potential of the Internet to +change the way both commercial and noncommercial culture are made and +shared have united to induce lawmakers to use the law to protect +them. It is the story of RCA and Armstrong; it is the dream of the +Causbys. For the Internet has unleashed an extraordinary possibility for many -to participate in the process of building and cultivating a culture that -reaches far beyond local boundaries. That power has changed the - marketplace -for making and cultivating culture generally, and that change -in turn threatens established content industries. The Internet is thus to -the industries that built and distributed content in the twentieth - century -what FM radio was to AM radio, or what the truck was to the -railroad industry of the nineteenth century: the beginning of the end, -or at least a substantial transformation. Digital technologies, tied to the -Internet, could produce a vastly more competitive and vibrant market -for building and cultivating culture; that market could include a much -wider and more diverse range of creators; those creators could produce -and distribute a much more vibrant range of creativity; and depending -upon a few important factors, those creators could earn more on average -from this system than creators do today—all so long as the RCAs of our -day don't use the law to protect themselves against this competition. - --Yet, as I argue in the pages that follow, that is precisely what is - happening -in our culture today. These modern-day equivalents of the early -twentieth-century radio or nineteenth-century railroads are using their -power to get the law to protect them against this new, more efficient, -more vibrant technology for building culture. They are succeeding in -their plan to remake the Internet before the Internet remakes them. +to participate in the process of building and cultivating a culture +that reaches far beyond local boundaries. That power has changed the +marketplace for making and cultivating culture generally, and that +change in turn threatens established content industries. The Internet +is thus to the industries that built and distributed content in the +twentieth century what FM radio was to AM radio, or what the truck was +to the railroad industry of the nineteenth century: the beginning of +the end, or at least a substantial transformation. Digital +technologies, tied to the Internet, could produce a vastly more +competitive and vibrant market for building and cultivating culture; +that market could include a much wider and more diverse range of +creators; those creators could produce and distribute a much more +vibrant range of creativity; and depending upon a few important +factors, those creators could earn more on average from this system +than creators do today—all so long as the RCAs of our day don't +use the law to protect themselves against this competition. + ++Yet, as I argue in the pages that follow, that is precisely what is +happening in our culture today. These modern-day equivalents of the +early twentieth-century radio or nineteenth-century railroads are +using their power to get the law to protect them against this new, +more efficient, more vibrant technology for building culture. They are +succeeding in their plan to remake the Internet before the Internet +remakes them. It doesn't seem this way to many. The battles over copyright and the @@ -801,8 +843,7 @@ Internet seem remote to most. To the few who follow them, they seem mainly about a much simpler brace of questions—whether "piracy" will be permitted, and whether "property" will be protected. The "war" that has been waged against the technologies of the Internet—what - Motion -Picture Association of America (MPAA) president Jack Valenti +Motion Picture Association of America (MPAA) president Jack Valenti calls his "own terrorist war" Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the Net into an Illicit Video Club," New York @@ -814,12 +855,11 @@ against it. If those really were the choices, then I would be with Jack Valenti -and the content industry. I, too, am a believer in property, and - especially -in the importance of what Mr. Valenti nicely calls "creative - property." -I believe that "piracy" is wrong, and that the law, properly tuned, -should punish "piracy," whether on or off the Internet. +and the content industry. I, too, am a believer in property, and +especially in the importance of what Mr. Valenti nicely calls +"creative property." I believe that "piracy" is wrong, and that the +law, properly tuned, should punish "piracy," whether on or off the +Internet. But those simple beliefs mask a much more fundamental question @@ -832,27 +872,27 @@ 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, + -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.Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law Journal 106 (1996): 283. + Netanel, Neil Weinstock 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. @@ -876,27 +916,31 @@ 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. @@ -939,15 +983,16 @@ 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. @@ -1056,6 +1101,7 @@ from someone else without permission is wrong. It is a form of piracy.
@@ -3171,61 +3166,55 @@ United Artists Television, Inc.).
-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).
-By the above decision . . . near 200,000 pounds worth of what -was honestly purchased at public sale, and which was yesterday -thought property is now reduced to nothing. The Booksellers of -London and Westminster, many of whom sold estates and houses -to purchase Copy-right, are in a manner ruined, and those who -after many years industry thought they had acquired a - competency -to provide for their families now find themselves without a -shilling to devise to their successors. +By the above decision . . . near 200,000 pounds worth of what was +honestly purchased at public sale, and which was yesterday thought +property is now reduced to nothing. The Booksellers of London and +Westminster, many of whom sold estates and houses to purchase +Copy-right, are in a manner ruined, and those who after many years +industry thought they had acquired a competency to provide for their +families now find themselves without a shilling to devise to their +successors. -@@ -4864,31 +4833,28 @@ Ibid. "Ruined" is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords -meant that the booksellers could no longer control how culture in - England -would grow and develop. Culture in England was thereafter free. -Not in the sense that copyrights would not be respected, for of course, -for a limited time after a work was published, the bookseller had an - exclusive -right to control the publication of that book. And not in the -sense that books could be stolen, for even after a copyright expired, you -still had to buy the book from someone. But free in the sense that the -culture and its growth would no longer be controlled by a small group -of publishers. As every free market does, this free market of free culture -would grow as the consumers and producers chose. English culture -would develop as the many English readers chose to let it develop— -chose in the books they bought and wrote; chose in the memes they -repeated and endorsed. Chose in a competitive context, not a context -in which the choices about what culture is available to people and -how they get access to it are made by the few despite the wishes of -the many. - Ibid. -At least, this was the rule in a world where the Parliament is - antimonopoly, -resistant to the protectionist pleas of publishers. In a world -where the Parliament is more pliant, free culture would be less - protected. +meant that the booksellers could no longer control how culture in +England would grow and develop. Culture in England was thereafter +free. Not in the sense that copyrights would not be respected, for of +course, for a limited time after a work was published, the bookseller +had an exclusive right to control the publication of that book. And +not in the sense that books could be stolen, for even after a +copyright expired, you still had to buy the book from someone. But +free in the sense that the culture and its growth would no longer be +controlled by a small group of publishers. As every free market does, +this free market of free culture would grow as the consumers and +producers chose. English culture would develop as the many English +readers chose to let it develop— chose in the books they bought +and wrote; chose in the memes they repeated and endorsed. Chose in a +competitive context, not a context in which the choices about what +culture is available to people and how they get access to it are made +by the few despite the wishes of the many. + ++At least, this was the rule in a world where the Parliament is +antimonopoly, resistant to the protectionist pleas of publishers. In a +world where the Parliament is more pliant, free culture would be less +protected. @@ -4908,19 +4874,17 @@ today.In 1990, Else was working on a documentary about Wagner's Ring -Cycle. The focus was stagehands at the San Francisco Opera. - Stagehands -are a particularly funny and colorful element of an opera. - During -a show, they hang out below the stage in the grips' lounge and in -the lighting loft. They make a perfect contrast to the art on the stage. +Cycle. The focus was stagehands at the San Francisco Opera. +Stagehands are a particularly funny and colorful element of an opera. +During a show, they hang out below the stage in the grips' lounge and +in the lighting loft. They make a perfect contrast to the art on the +stage. -During one of the performances, Else was shooting some - stagehands +During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set. -Playing on the television set, while the stagehands played checkers and -the opera company played Wagner, was The Simpsons. As Else judged +Playing on the television set, while the stagehands played checkers +and the opera company played Wagner, was The Simpsons. As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene. @@ -4933,13 +4897,11 @@ copyrighted material you need the permission of the copyright owner, unless "fair use" or some other privilege applies. -Else called Simpsons creator Matt Groening's office to get - permission. -Groening approved the shot. The shot was a - four-and-a-halfsecond -image on a tiny television set in the corner of the room. How -could it hurt? Groening was happy to have it in the film, but he told -Else to contact Gracie Films, the company that produces the program. +Else called Simpsons creator Matt Groening's office to get permission. +Groening approved the shot. The shot was a four-and-a-halfsecond image +on a tiny television set in the corner of the room. How could it hurt? +Groening was happy to have it in the film, but he told Else to contact +Gracie Films, the company that produces the program. Gracie Films was okay with it, too, but they, like Groening, wanted @@ -4949,78 +4911,74 @@ room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox. -Then, as Else told me, "two things happened. First we - discovered -. . . that Matt Groening doesn't own his own creation—or at least -that someone [at Fox] believes he doesn't own his own creation." And -second, Fox "wanted ten thousand dollars as a licensing fee for us to use -this four-point-five seconds of . . . entirely unsolicited Simpsons which -was in the corner of the shot." +Then, as Else told me, "two things happened. First we discovered +. . . that Matt Groening doesn't own his own creation—or at +least that someone [at Fox] believes he doesn't own his own creation." +And second, Fox "wanted ten thousand dollars as a licensing fee for us +to use this four-point-five seconds of . . . entirely unsolicited +Simpsons which was in the corner of the shot." -Else was certain there was a mistake. He worked his way up to -someone he thought was a vice president for licensing, Rebecca - Herrera. -He explained to her, "There must be some mistake here. . . . -We're asking for your educational rate on this." That was the - educational +Else was certain there was a mistake. He worked his way up to someone +he thought was a vice president for licensing, Rebecca Herrera. He +explained to her, "There must be some mistake here. . . . We're +asking for your educational rate on this." That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. -"I wanted to make sure I had my facts straight," he told me. "Yes, -you have your facts straight," she said. It would cost $10,000 to use the -clip of The Simpsons in the corner of a shot in a documentary film about +"I wanted to make sure I had my facts straight," he told me. "Yes, you +have your facts straight," she said. It would cost $10,000 to use the +clip of The Simpsons in the corner of a shot in a documentary film +about Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And -if you quote me, I'll turn you over to our attorneys." As an assistant to -Herrera told Else later on, "They don't give a shit. They just want the -money." +if you quote me, I'll turn you over to our attorneys." As an assistant +to Herrera told Else later on, "They don't give a shit. They just want +the money." -Else didn't have the money to buy the right to replay what was - playing +Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera. To reproduce -this reality was beyond the documentary filmmaker's budget. At the very -last minute before the film was to be released, Else digitally replaced the -shot with a clip from another film that he had worked on, The Day After -Trinity, from ten years before. +this reality was beyond the documentary filmmaker's budget. At the +very last minute before the film was to be released, Else digitally +replaced the shot with a clip from another film that he had worked on, +The Day After Trinity, from ten years before. -There's no doubt that someone, whether Matt Groening or Fox, -owns the copyright to The Simpsons. That copyright is their property. -To use that copyrighted material thus sometimes requires the - permission -of the copyright owner. If the use that Else wanted to make of the +There's no doubt that someone, whether Matt Groening or Fox, owns the +copyright to The Simpsons. That copyright is their property. To use +that copyrighted material thus sometimes requires the permission of +the copyright owner. If the use that Else wanted to make of the Simpsons copyright were one of the uses restricted by the law, then he would need to get the permission of the copyright owner before he -could use the work in that way. And in a free market, it is the owner of -the copyright who gets to set the price for any use that the law says the -owner gets to control. +could use the work in that way. And in a free market, it is the owner +of the copyright who gets to set the price for any use that the law +says the owner gets to control. -For example, "public performance" is a use of The Simpsons that -the copyright owner gets to control. If you take a selection of favorite +For example, "public performance" is a use of The Simpsons that the +copyright owner gets to control. If you take a selection of favorite episodes, rent a movie theater, and charge for tickets to come see "My -Favorite Simpsons," then you need to get permission from the - copyright +Favorite Simpsons," then you need to get permission from the copyright owner. And the copyright owner (rightly, in my view) can charge -whatever she wants—$10 or $1,000,000. That's her right, as set by -the law. +whatever she wants—$10 or $1,000,000. That's her right, as set +by the law. But when lawyers hear this story about Jon Else and Fox, their first thought is "fair use." -Else's use of just 4.5 seconds of an indirect shot -of a Simpsons episode is clearly a fair use of The Simpsons—and fair use -does not require the permission of anyone. +Else's use of just 4.5 seconds of an indirect shot of a Simpsons +episode is clearly a fair use of The Simpsons—and fair use does +not require the permission of anyone. -For an excellent argument that such use is "fair use," but that lawyers don't -permit recognition that it is "fair use," see Richard A. Posner with William -F. Patry, "Fair Use and Statutory Reform in the Wake of Eldred " (draft on -file with author), University of Chicago Law School, 5 August 2003. +For an excellent argument that such use is "fair use," but that +lawyers don't permit recognition that it is "fair use," see Richard +A. Posner with William F. Patry, "Fair Use and Statutory Reform in the +Wake of Eldred " (draft on file with author), University of Chicago +Law School, 5 August 2003. @@ -5028,49 +4986,42 @@ So I asked Else why he didn't just rely upon "fair use." Here's his reply: -The Simpsons fiasco was for me a great lesson in the gulf - between -what lawyers find irrelevant in some abstract sense, and -what is crushingly relevant in practice to those of us actually -trying to make and broadcast documentaries. I never had any -doubt that it was "clearly fair use" in an absolute legal sense. But -I couldn't rely on the concept in any concrete way. Here's why: +The Simpsons fiasco was for me a great lesson in the gulf between what +lawyers find irrelevant in some abstract sense, and what is crushingly +relevant in practice to those of us actually trying to make and +broadcast documentaries. I never had any doubt that it was "clearly +fair use" in an absolute legal sense. But I couldn't rely on the +concept in any concrete way. Here's why: -Before our films can be broadcast, the network requires -that we buy Errors and Omissions insurance. The carriers - require -a detailed "visual cue sheet" listing the source and - licensing -status of each shot in the film. They take a dim view of -"fair use," and a claim of "fair use" can grind the application -process to a halt. +Before our films can be broadcast, the network requires that we buy +Errors and Omissions insurance. The carriers require a detailed +"visual cue sheet" listing the source and licensing status of each +shot in the film. They take a dim view of "fair use," and a claim of +"fair use" can grind the application process to a halt. -I probably never should have asked Matt Groening in the -first place. But I knew (at least from folklore) that Fox had a -history of tracking down and stopping unlicensed Simpsons -usage, just as George Lucas had a very high profile litigating -Star Wars usage. So I decided to play by the book, thinking -that we would be granted free or cheap license to four seconds -of Simpsons. As a documentary producer working to - exhaustion -on a shoestring, the last thing I wanted was to risk legal -trouble, even nuisance legal trouble, and even to defend a +I probably never should have asked Matt Groening in the first +place. But I knew (at least from folklore) that Fox had a history of +tracking down and stopping unlicensed Simpsons usage, just as George +Lucas had a very high profile litigating Star Wars usage. So I decided +to play by the book, thinking that we would be granted free or cheap +license to four seconds of Simpsons. As a documentary producer working +to exhaustion on a shoestring, the last thing I wanted was to risk +legal trouble, even nuisance legal trouble, and even to defend a principle. -I did, in fact, speak with one of your colleagues at Stanford -Law School . . . who confirmed that it was fair use. He also -confirmed that Fox would "depose and litigate you to within -an inch of your life," regardless of the merits of my claim. He -made clear that it would boil down to who had the bigger - legal -department and the deeper pockets, me or them. +I did, in fact, speak with one of your colleagues at Stanford Law +School . . . who confirmed that it was fair use. He also confirmed +that Fox would "depose and litigate you to within an inch of your +life," regardless of the merits of my claim. He made clear that it +would boil down to who had the bigger legal department and the deeper +pockets, me or them. @@ -5082,26 +5033,26 @@ money. -In theory, fair use means you need no permission. The theory - therefore -supports free culture and insulates against a permission culture. -But in practice, fair use functions very differently. The fuzzy lines of -the law, tied to the extraordinary liability if lines are crossed, means -that the effective fair use for many types of creators is slight. The law -has the right aim; practice has defeated the aim. +In theory, fair use means you need no permission. The theory therefore +supports free culture and insulates against a permission culture. But +in practice, fair use functions very differently. The fuzzy lines of +the law, tied to the extraordinary liability if lines are crossed, +means that the effective fair use for many types of creators is +slight. The law has the right aim; practice has defeated the aim. This practice shows just how far the law has come from its -eighteenth-century roots. The law was born as a shield to protect - publishers' -profits against the unfair competition of a pirate. It has matured -into a sword that interferes with any use, transformative or not. +eighteenth-century roots. The law was born as a shield to protect +publishers' profits against the unfair competition of a pirate. It has +matured 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 @@ -5109,22 +5060,21 @@ 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. @@ -5136,34 +5086,36 @@ 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.
+-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. -We decided that it would be fair if we offered them the - dayplayer -rate for the right to reuse that performance. We're talking -about a clip of less than a minute, but to reuse that performance -in the CD-ROM the rate at the time was about $600. -So we had to identify the people—some of them were hard to -identify because in Eastwood movies you can't tell who's the guy -crashing through the glass—is it the actor or is it the stuntman? -And then we just, we put together a team, my assistant and some -others, and we just started calling people. +We decided that it would be fair if we offered them the dayplayer rate +for the right to reuse that performance. We're talking about a clip of +less than a minute, but to reuse that performance in the CD-ROM the +rate at the time was about $600. So we had to identify the +people—some of them were hard to identify because in Eastwood +movies you can't tell who's the guy crashing through the +glass—is it the actor or is it the stuntman? And then we just, +we put together a team, my assistant and some others, and we just +started calling people.
-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.
--Absolutely. I think that if there were some fair-licensing - mechanism—where -you weren't subject to hold-ups and you weren't +Absolutely. I think that if there were some fair-licensing +mechanism—where you weren't subject to hold-ups and you weren't subject to estranged former spouses—you'd see a lot more of this work, because it wouldn't be so daunting to try to put together a -retrospective of someone's career and meaningfully illustrate it -with lots of media from that person's career. You'd build in a cost -as the producer of one of these things. You'd build in a cost of - paying -X dollars to the talent that performed. But it would be a -known cost. That's the thing that trips everybody up and makes -this kind of product hard to get off the ground. If you knew I have -a hundred minutes of film in this product and it's going to cost me -X, then you build your budget around it, and you can get - investments -and everything else that you need to produce it. But if you -say, "Oh, I want a hundred minutes of something and I have no -idea what it's going to cost me, and a certain number of people are -going to hold me up for money," then it becomes difficult to put -one of these things together. +retrospective of someone's career and meaningfully illustrate it with +lots of media from that person's career. You'd build in a cost as the +producer of one of these things. You'd build in a cost of paying X +dollars to the talent that performed. But it would be a known +cost. That's the thing that trips everybody up and makes this kind of +product hard to get off the ground. If you knew I have a hundred +minutes of film in this product and it's going to cost me X, then you +build your budget around it, and you can get investments and +everything else that you need to produce it. But if you say, "Oh, I +want a hundred minutes of something and I have no idea what it's going +to cost me, and a certain number of people are going to hold me up for +money," then it becomes difficult to put one of these things together.
-Do you remember when Dan Quayle was interacting with - Murphy -Brown? Remember that back and forth surreal experience of -a politician interacting with a fictional television character? If you -were a graduate student wanting to study that, and you wanted to -get those original back and forth exchanges between the two, the +Do you remember when Dan Quayle was interacting with Murphy Brown? +Remember that back and forth surreal experience of a politician +interacting with a fictional television character? If you were a +graduate student wanting to study that, and you wanted to get those +original back and forth exchanges between the two, the 60 Minutes episode that came out after it . . . it would be almost @@ -5613,199 +5532,179 @@ impossible. . . . Those materials are almost unfindable. . . . Why is that? Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is recorded on videotape is not? How is it that we've created a world -where researchers trying to understand the effect of media on - nineteenthcentury -America will have an easier time than researchers trying to - understand -the effect of media on twentieth-century America? +where researchers trying to understand the effect of media on +nineteenthcentury America will have an easier time than researchers +trying to understand the effect of media on twentieth-century America? In part, this is because of the law. Early in American copyright law, -copyright owners were required to deposit copies of their work in - libraries. -These copies were intended both to facilitate the spread of -knowledge and to assure that a copy of the work would be around once -the copyright expired, so that others might access and copy the work. +copyright owners were required to deposit copies of their work in +libraries. These copies were intended both to facilitate the spread +of knowledge and to assure that a copy of the work would be around +once the copyright expired, so that others might access and copy the +work. -These rules applied to film as well. But in 1915, the Library of - Congress -made an exception for film. Film could be copyrighted so long -as such deposits were made. But the filmmaker was then allowed to -borrow back the deposits—for an unlimited time at no cost. In 1915 -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 -Slide, Nitrate Won't Wait: A History of Film Preservation in the United -States ( Jefferson, N.C.: McFarland & Co., 1992), 36. +These rules applied to film as well. But in 1915, the Library +of Congress made an exception for film. Film could be copyrighted so +long as such deposits were made. But the filmmaker was then allowed to +borrow back the deposits—for an unlimited time at no cost. In +1915 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 Slide, Nitrate Won't Wait: A History of Film +Preservation in the United States ( Jefferson, N.C.: McFarland & +Co., 1992), 36. The same is generally true about television. Television broadcasts were originally not copyrighted—there was no way to capture the broadcasts, so there was no fear of "theft." But as technology enabled -capturing, broadcasters relied increasingly upon the law. The law - required -they make a copy of each broadcast for the work to be - "copyrighted." -But those copies were simply kept by the broadcasters. No -library had any right to them; the government didn't demand them. -The content of this part of American culture is practically invisible to -anyone who would look. +capturing, broadcasters relied increasingly upon the law. The law +required they make a copy of each broadcast for the work to be +"copyrighted." But those copies were simply kept by the +broadcasters. No library had any right to them; the government didn't +demand them. The content of this part of American culture is +practically invisible to anyone who would look. Kahle was eager to correct this. Before September 11, 2001, he and -his allies had started capturing television. They selected twenty - stations -from around the world and hit the Record button. After - September -11, Kahle, working with dozens of others, selected twenty stations -from around the world and, beginning October 11, 2001, made their -coverage during the week of September 11 available free on-line. - Anyone -could see how news reports from around the world covered the +his allies had started capturing television. They selected twenty +stations from around the world and hit the Record button. After +September 11, Kahle, working with dozens of others, selected twenty +stations from around the world and, beginning October 11, 2001, made +their coverage during the week of September 11 available free on-line. +Anyone could see how news reports from around the world covered the events of that day. -Kahle had the same idea with film. Working with Rick Prelinger, -whose archive of film includes close to 45,000 "ephemeral films" -(meaning films other than Hollywood movies, films that were never -copyrighted), Kahle established the Movie Archive. Prelinger let Kahle -digitize 1,300 films in this archive and post those films on the Internet -to be downloaded for free. Prelinger's is a for-profit company. It sells +Kahle had the same idea with film. Working with Rick Prelinger, whose +archive of film includes close to 45,000 "ephemeral films" (meaning +films other than Hollywood movies, films that were never copyrighted), +Kahle established the Movie Archive. Prelinger let Kahle digitize +1,300 films in this archive and post those films on the Internet to be +downloaded for free. Prelinger's is a for-profit company. It sells copies of these films as stock footage. What he has discovered is that -after he made a significant chunk available for free, his stock footage -sales went up dramatically. People could easily find the material they -wanted to use. Some downloaded that material and made films on -their own. Others purchased copies to enable other films to be made. -Either way, the archive enabled access to this important part of our - culture. -Want to see a copy of the "Duck and Cover" film that instructed -children how to save themselves in the middle of nuclear attack? Go to -archive.org, and you can download the film in a few minutes—for free. +after he made a significant chunk available for free, his stock +footage sales went up dramatically. People could easily find the +material they wanted to use. Some downloaded that material and made +films on their own. Others purchased copies to enable other films to +be made. Either way, the archive enabled access to this important +part of our culture. Want to see a copy of the "Duck and Cover" film +that instructed children how to save themselves in the middle of +nuclear attack? Go to archive.org, and you can download the film in a +few minutes—for free. -Here again, Kahle is providing access to a part of our culture that -we otherwise could not get easily, if at all. It is yet another part of what -defines the twentieth century that we have lost to history. The law -doesn't require these copies to be kept by anyone, or to be deposited in -an archive by anyone. Therefore, there is no simple way to find them. +Here again, Kahle is providing access to a part of our culture that we +otherwise could not get easily, if at all. It is yet another part of +what defines the twentieth century that we have lost to history. The +law doesn't require these copies to be kept by anyone, or to be +deposited in an archive by anyone. Therefore, there is no simple way +to find them. -The key here is access, not price. Kahle wants to enable free access to -this content, but he also wants to enable others to sell access to it. His -aim is to ensure competition in access to this important part of our - culture. -Not during the commercial life of a bit of creative property, but - during -a second life that all creative property has—a noncommercial life. +The key here is access, not price. Kahle wants to enable free access +to this content, but he also wants to enable others to sell access to +it. His aim is to ensure competition in access to this important part +of our culture. Not during the commercial life of a bit of creative +property, but during a second life that all creative property +has—a noncommercial life. For here is an idea that we should more clearly recognize. Every bit -of creative property goes through different "lives." In its first life, if the +of creative property goes through different "lives." In its first +life, if the -creator is lucky, the content is sold. In such cases the commercial - market -is successful for the creator. The vast majority of creative property -doesn't enjoy such success, but some clearly does. For that content, -commercial life is extremely important. Without this commercial - market, -there would be, many argue, much less creativity. +creator is lucky, the content is sold. In such cases the commercial +market is successful for the creator. The vast majority of creative +property doesn't enjoy such success, but some clearly does. For that +content, commercial life is extremely important. Without this +commercial market, there would be, many argue, much less creativity. -After the commercial life of creative property has ended, our - tradition -has always supported a second life as well. A newspaper delivers -the news every day to the doorsteps of America. The very next day, it is -used to wrap fish or to fill boxes with fragile gifts or to build an archive -of knowledge about our history. In this second life, the content can -continue to inform even if that information is no longer sold. +After the commercial life of creative property has ended, our +tradition has always supported a second life as well. A newspaper +delivers the news every day to the doorsteps of America. The very next +day, it is used to wrap fish or to fill boxes with fragile gifts or to +build an archive of knowledge about our history. In this second life, +the content can continue to inform even if that information is no +longer sold. -The same has always been true about books. A book goes out of -print very quickly (the average today is after about a year +). After +it is out of print, it can be sold in used book stores without the +copyright owner getting anything and stored in libraries, where many +get to read the book, also for free. Used book stores and libraries +are thus the second life of a book. That second life is extremely +important to the spread and stability of culture. + +The same has always been true about books. A book goes out of print +very quickly (the average today is after about a year -). After it is -out of print, it can be sold in used book stores without the copyright -owner getting anything and stored in libraries, where many get to read -the book, also for free. Used book stores and libraries are thus the - second -life of a book. That second life is extremely important to the -spread and stability of culture. - Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 -and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, "The -First Sale Doctrine in the Era of Digital Networks," Boston College Law - Review -44 (2003): 593 n. 51. - -Yet increasingly, any assumption about a stable second life for - creative -property does not hold true with the most important components -of popular culture in the twentieth and twenty-first centuries. For -these—television, movies, music, radio, the Internet—there is no - guarantee -of a second life. For these sorts of culture, it is as if we've replaced -libraries with Barnes & Noble superstores. With this culture, what's -accessible is nothing but what a certain limited market demands. - Beyond -that, culture disappears. +and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, +"The First Sale Doctrine in the Era of Digital Networks," Boston +College Law Review 44 (2003): 593 n. 51. + +Yet increasingly, any assumption about a stable second life for +creative property does not hold true with the most important +components of popular culture in the twentieth and twenty-first +centuries. For these—television, movies, music, radio, the +Internet—there is no guarantee of a second life. For these sorts +of culture, it is as if we've replaced libraries with Barnes & +Noble superstores. With this culture, what's accessible is nothing but +what a certain limited market demands. Beyond that, culture +disappears. For most of the twentieth century, it was economics that made this -so. It would have been insanely expensive to collect and make - accessible -all television and film and music: The cost of analog copies is - extraordinarily -high. So even though the law in principle would have -restricted the ability of a Brewster Kahle to copy culture generally, the +so. It would have been insanely expensive to collect and make +accessible all television and film and music: The cost of analog +copies is extraordinarily high. So even though the law in principle +would have restricted the ability of a Brewster Kahle to copy culture +generally, the -real restriction was economics. The market made it impossibly difficult -to do anything about this ephemeral culture; the law had little - practical -effect. +real restriction was economics. The market made it impossibly +difficult to do anything about this ephemeral culture; the law had +little practical effect. -Perhaps the single most important feature of the digital revolution -is that for the first time since the Library of Alexandria, it is feasible to -imagine constructing archives that hold all culture produced or - distributed -publicly. Technology makes it possible to imagine an archive of all -books published, and increasingly makes it possible to imagine an -archive of all moving images and sound. +Perhaps the single most important feature of the digital revolution is +that for the first time since the Library of Alexandria, it is +feasible to imagine constructing archives that hold all culture +produced or distributed publicly. Technology makes it possible to +imagine an archive of all books published, and increasingly makes it +possible to imagine an archive of all moving images and sound. -The scale of this potential archive is something we've never - imagined -before. The Brewster Kahles of our history have dreamed about it; -but we are for the first time at a point where that dream is possible. As +The scale of this potential archive is something we've never imagined +before. The Brewster Kahles of our history have dreamed about it; but +we are for the first time at a point where that dream is possible. As Kahle describes, -It looks like there's about two to three million recordings of - music. -Ever. There are about a hundred thousand theatrical releases -of movies, . . . and about one to two million movies [distributed] -during the twentieth century. There are about twenty-six million -different titles of books. All of these would fit on computers that -would fit in this room and be able to be afforded by a small - company. -So we're at a turning point in our history. Universal access is -the goal. And the opportunity of leading a different life, based on -this, is . . . thrilling. It could be one of the things humankind -would be most proud of. Up there with the Library of Alexandria, -putting a man on the moon, and the invention of the printing -press. +It looks like there's about two to three million recordings of music. +Ever. There are about a hundred thousand theatrical releases of +movies, . . . and about one to two million movies [distributed] during +the twentieth century. There are about twenty-six million different +titles of books. All of these would fit on computers that would fit in +this room and be able to be afforded by a small company. So we're at +a turning point in our history. Universal access is the goal. And the +opportunity of leading a different life, based on this, is +. . . thrilling. It could be one of the things humankind would be most +proud of. Up there with the Library of Alexandria, putting a man on +the moon, and the invention of the printing press. @@ -5813,258 +5712,236 @@ Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of libraries or archives could be. When the commercial life of creative property ends, I don't know. But it does. And whenever it does, Kahle -and his archive hint at a world where this knowledge, and culture, - remains -perpetually available. Some will draw upon it to understand it; +and his archive hint at a world where this knowledge, and culture, +remains perpetually available. Some will draw upon it to understand +it; -some to criticize it. Some will use it, as Walt Disney did, to re-create -the past for the future. These technologies promise something that had -become unimaginable for much of our past—a future for our past. The -technology of digital arts could make the dream of the Library of -Alexandria real again. +some to criticize it. Some will use it, as Walt Disney did, to +re-create the past for the future. These technologies promise +something that had become unimaginable for much of our past—a +future for our past. The technology of digital arts could make the +dream of the Library of Alexandria real again. -Technologists have thus removed the economic costs of building -such an archive. But lawyers' costs remain. For as much as we might -like to call these "archives," as warm as the idea of a "library" might -seem, the "content" that is collected in these digital spaces is also - someone's -"property." And the law of property restricts the freedoms that -Kahle and others would exercise. +Technologists have thus removed the economic costs of building such an +archive. But lawyers' costs remain. For as much as we might like to +call these "archives," as warm as the idea of a "library" might seem, +the "content" that is collected in these digital spaces is also +someone's "property." And the law of property restricts the freedoms +that Kahle and others would exercise. CHAPTER TEN: "Property" -Jack Valenti has been the president of the Motion Picture - Association -of America since 1966. He first came to Washington, D.C., -with Lyndon Johnson's administration—literally. The famous picture -of Johnson's swearing-in on Air Force One after the assassination of +Jack Valenti has been the president of the Motion Picture Association +of America since 1966. He first came to Washington, D.C., with Lyndon +Johnson's administration—literally. The famous picture of +Johnson's swearing-in on Air Force One after the assassination of President Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. -The MPAA is the American branch of the international Motion -Picture Association. It was formed in 1922 as a trade association whose -goal was to defend American movies against increasing domestic - criticism. -The organization now represents not only filmmakers but - producers -and distributors of entertainment for television, video, and -cable. Its board is made up of the chairmen and presidents of the seven -major producers and distributors of motion picture and television - programs -in the United States: Walt Disney, Sony Pictures - Entertainment, -MGM, Paramount Pictures, Twentieth Century Fox, Universal -Studios, and Warner Brothers. +The MPAA is the American branch of the international Motion Picture +Association. It was formed in 1922 as a trade association whose goal +was to defend American movies against increasing domestic criticism. +The organization now represents not only filmmakers but producers and +distributors of entertainment for television, video, and cable. Its +board is made up of the chairmen and presidents of the seven major +producers and distributors of motion picture and television programs +in the United States: Walt Disney, Sony Pictures Entertainment, MGM, +Paramount Pictures, Twentieth Century Fox, Universal Studios, and +Warner Brothers. -Valenti is only the third president of the MPAA. No president -before him has had as much influence over that organization, or over -Washington. As a Texan, Valenti has mastered the single most - important +Valenti is only the third president of the MPAA. No president before +him has had as much influence over that organization, or over +Washington. As a Texan, Valenti has mastered the single most important political skill of a Southerner—the ability to appear simple and -slow while hiding a lightning-fast intellect. To this day, Valenti plays -the simple, humble man. But this Harvard MBA, and author of four +slow while hiding a lightning-fast intellect. To this day, Valenti +plays the simple, humble man. But this Harvard MBA, and author of four books, who finished high school at the age of fifteen and flew more than fifty combat missions in World War II, is no Mr. Smith. When Valenti went to Washington, he mastered the city in a quintessentially Washingtonian way. -In defending artistic liberty and the freedom of speech that our - culture -depends upon, the MPAA has done important good. In crafting +In defending artistic liberty and the freedom of speech that our +culture depends upon, the MPAA has done important good. In crafting the MPAA rating system, it has probably avoided a great deal of speech-regulating harm. But there is an aspect to the organization's mission that is both the most radical and the most important. This is -the organization's effort, epitomized in Valenti's every act, to redefine -the meaning of "creative property." +the organization's effort, epitomized in Valenti's every act, to +redefine the meaning of "creative property." -In 1982, Valenti's testimony to Congress captured the strategy - perfectly: +In 1982, Valenti's testimony to Congress captured the strategy +perfectly: -No matter the lengthy arguments made, no matter the charges -and the counter-charges, no matter the tumult and the shouting, -reasonable men and women will keep returning to the - fundamental -issue, the central theme which animates this entire debate: - Creative -property owners must be accorded the same rights and protection -resident in all other property owners in the nation. That is the issue. -That is the question. And that is the rostrum on which this entire -hearing and the debates to follow must rest. +No matter the lengthy arguments made, no matter the charges and the +counter-charges, no matter the tumult and the shouting, reasonable men +and women will keep returning to the fundamental issue, the central +theme which animates this entire debate: Creative property owners must +be accorded the same rights and protection resident in all other +property owners in the nation. That is the issue. That is the +question. And that is the rostrum on which this entire hearing and the +debates to follow must rest. Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. -4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the - Subcommittee -on Courts, Civil Liberties, and the Administration of Justice of -the Committee on the Judiciary of the House of Representatives, 97th -Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti). +4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the +Subcommittee on Courts, Civil Liberties, and the Administration of +Justice of the Committee on the Judiciary of the House of +Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack +Valenti). The strategy of this rhetoric, like the strategy of most of Valenti's -rhetoric, is brilliant and simple and brilliant because simple. The - "central -theme" to which "reasonable men and women" will return is this: +rhetoric, is brilliant and simple and brilliant because simple. The +"central theme" to which "reasonable men and women" will return is +this: "Creative property owners must be accorded the same rights and - protections -resident in all other property owners in the nation." There are -no second-class citizens, Valenti might have continued. There should -be no second-class property owners. +protections resident in all other property owners in the nation." +There are no second-class citizens, Valenti might have +continued. There should be no second-class property owners. This claim has an obvious and powerful intuitive pull. It is stated with such clarity as to make the idea as obvious as the notion that we -use elections to pick presidents. But in fact, there is no more extreme a -claim made by anyone who is serious in this debate than this claim of -Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps -the nation's foremost extremist when it comes to the nature and scope -of "creative property." His views have no reasonable connection to our -actual legal tradition, even if the subtle pull of his Texan charm has -slowly redefined that tradition, at least in Washington. - --While "creative property" is certainly "property" in a nerdy and - precise -sense that lawyers are trained to understand, +it has never been the case, nor should it be, that +"creative property owners" have been "accorded the same rights and +protection resident in all other property owners." Indeed, if creative +property owners were given the same rights as all other property +owners, that would effect a radical, and radically undesirable, change +in our tradition. + +use elections to pick presidents. But in fact, there is no more +extreme a claim made by anyone who is serious in this debate than this +claim of Valenti's. Jack Valenti, however sweet and however brilliant, +is perhaps the nation's foremost extremist when it comes to the nature +and scope of "creative property." His views have no reasonable +connection to our actual legal tradition, even if the subtle pull of +his Texan charm has slowly redefined that tradition, at least in +Washington. + ++While "creative property" is certainly "property" in a nerdy and +precise sense that lawyers are trained to understand, -it has never been the -case, nor should it be, that "creative property owners" have been - "accorded -the same rights and protection resident in all other property -owners." Indeed, if creative property owners were given the same rights -as all other property owners, that would effect a radical, and radically -undesirable, change in our tradition. - -Lawyers speak of "property" not as an absolute thing, but as a bundle of -rights that are sometimes associated with a particular object. Thus, my -"property right" to my car gives me the right to exclusive use, but not the -right to drive at 150 miles an hour. For the best effort to connect the - ordinary -meaning of "property" to "lawyer talk," see Bruce Ackerman, Private -Property and the Constitution (New Haven: Yale University Press, 1977), -26–27. - -Valenti knows this. But he speaks for an industry that cares squat -for our tradition and the values it represents. He speaks for an industry -that is instead fighting to restore the tradition that the British - overturned -in 1710. In the world that Valenti's changes would create, a -powerful few would exercise powerful control over how our creative +Lawyers speak of "property" not as an absolute thing, but as a bundle +of rights that are sometimes associated with a particular +object. Thus, my "property right" to my car gives me the right to +exclusive use, but not the right to drive at 150 miles an hour. For +the best effort to connect the ordinary meaning of "property" to +"lawyer talk," see Bruce Ackerman, Private Property and the +Constitution (New Haven: Yale University Press, 1977), 26–27. + +Valenti knows this. But he speaks for an industry that cares squat for +our tradition and the values it represents. He speaks for an industry +that is instead fighting to restore the tradition that the British +overturned in 1710. In the world that Valenti's changes would create, +a powerful few would exercise powerful control over how our creative culture would develop. I have two purposes in this chapter. The first is to convince you -that, historically, Valenti's claim is absolutely wrong. The second is to -convince you that it would be terribly wrong for us to reject our - history. -We have always treated rights in creative property differently -from the rights resident in all other property owners. They have never -been the same. And they should never be the same, because, however -counterintuitive this may seem, to make them the same would be to +that, historically, Valenti's claim is absolutely wrong. The second is +to convince you that it would be terribly wrong for us to reject our +history. We have always treated rights in creative property +differently from the rights resident in all other property +owners. They have never been the same. And they should never be the +same, because, however counterintuitive this may seem, to make them +the same would be to -fundamentally weaken the opportunity for new creators to create. - Creativity -depends upon the owners of creativity having less than perfect -control. - --Organizations such as the MPAA, whose board includes the most -powerful of the old guard, have little interest, their rhetoric - notwithstanding, -in assuring that the new can displace them. No organization -does. No person does. (Ask me about tenure, for example.) But what's -good for the MPAA is not necessarily good for America. A society that -defends the ideals of free culture must preserve precisely the - opportunity -for new creativity to threaten the old. -To get just a hint that there is something fundamentally wrong in +fundamentally weaken the opportunity for new creators to create. +Creativity depends upon the owners of creativity having less than +perfect control. + ++Organizations such as the MPAA, whose board includes the most powerful +of the old guard, have little interest, their rhetoric +notwithstanding, in assuring that the new can displace them. No +organization does. No person does. (Ask me about tenure, for example.) +But what's good for the MPAA is not necessarily good for America. A +society that defends the ideals of free culture must preserve +precisely the opportunity for new creativity to threaten the old. To +get just a hint that there is something fundamentally wrong in Valenti's argument, we need look no further than the United States Constitution itself. -The framers of our Constitution loved "property." Indeed, so -strongly did they love property that they built into the Constitution an -important requirement. If the government takes your property—if it -condemns your house, or acquires a slice of land from your farm—it is -required, under the Fifth Amendment's "Takings Clause," to pay you -"just compensation" for that taking. The Constitution thus guarantees -that property is, in a certain sense, sacred. It cannot ever be taken from -the property owner unless the government pays for the privilege. +The framers of our Constitution loved "property." Indeed, so strongly +did they love property that they built into the Constitution an +important requirement. If the government takes your property—if +it condemns your house, or acquires a slice of land from your +farm—it is required, under the Fifth Amendment's "Takings +Clause," to pay you "just compensation" for that taking. The +Constitution thus guarantees that property is, in a certain sense, +sacred. It cannot ever be taken from the property owner unless the +government pays for the privilege. Yet the very same Constitution speaks very differently about what Valenti calls "creative property." In the clause granting Congress the -power to create "creative property," the Constitution requires that after -a "limited time," Congress take back the rights that it has granted and -set the "creative property" free to the public domain. Yet when - Congress -does this, when the expiration of a copyright term "takes" your -copyright and turns it over to the public domain, Congress does not -have any obligation to pay "just compensation" for this "taking." - Instead, -the same Constitution that requires compensation for your land +power to create "creative property," the Constitution requires that +after a "limited time," Congress take back the rights that it has +granted and set the "creative property" free to the public domain. Yet +when Congress does this, when the expiration of a copyright term +"takes" your copyright and turns it over to the public domain, +Congress does not have any obligation to pay "just compensation" for +this "taking." Instead, the same Constitution that requires +compensation for your land -requires that you lose your "creative property" right without any - compensation -at all. +requires that you lose your "creative property" right without any +compensation at all. The Constitution thus on its face states that these two forms of -property are not to be accorded the same rights. They are plainly to be -treated differently. Valenti is therefore not just asking for a change in -our tradition when he argues that creative-property owners should be -accorded the same rights as every other property-right owner. He is - effectively -arguing for a change in our Constitution itself. +property are not to be accorded the same rights. They are plainly to +be treated differently. Valenti is therefore not just asking for a +change in our tradition when he argues that creative-property owners +should be accorded the same rights as every other property-right +owner. He is effectively arguing for a change in our Constitution +itself. Arguing for a change in our Constitution is not necessarily wrong. There was much in our original Constitution that was plainly wrong. -The Constitution of 1789 entrenched slavery; it left senators to be - appointed -rather than elected; it made it possible for the electoral college -to produce a tie between the president and his own vice president (as it -did in 1800). The framers were no doubt extraordinary, but I would be -the first to admit that they made big mistakes. We have since rejected -some of those mistakes; no doubt there could be others that we should -reject as well. So my argument is not simply that because Jefferson did -it, we should, too. +The Constitution of 1789 entrenched slavery; it left senators to be +appointed rather than elected; it made it possible for the electoral +college to produce a tie between the president and his own vice +president (as it did in 1800). The framers were no doubt +extraordinary, but I would be the first to admit that they made big +mistakes. We have since rejected some of those mistakes; no doubt +there could be others that we should reject as well. So my argument is +not simply that because Jefferson did it, we should, too. Instead, my argument is that because Jefferson did it, we should at least try to understand why. Why did the framers, fanatical property -types that they were, reject the claim that creative property be given the -same rights as all other property? Why did they require that for - creative -property there must be a public domain? +types that they were, reject the claim that creative property be given +the same rights as all other property? Why did they require that for +creative property there must be a public domain? -To answer this question, we need to get some perspective on the - history -of these "creative property" rights, and the control that they - enabled. -Once we see clearly how differently these rights have been -defined, we will be in a better position to ask the question that should -be at the core of this war: Not whether creative property should be - protected, -but how. Not whether we will enforce the rights the law gives to -creative-property owners, but what the particular mix of rights ought to -be. Not whether artists should be paid, but whether institutions designed -to assure that artists get paid need also control how culture develops. +To answer this question, we need to get some perspective on the +history of these "creative property" rights, and the control that they +enabled. Once we see clearly how differently these rights have been +defined, we will be in a better position to ask the question that +should be at the core of this war: Not whether creative property +should be protected, but how. Not whether we will enforce the rights +the law gives to creative-property owners, but what the particular mix +of rights ought to be. Not whether artists should be paid, but whether +institutions designed to assure that artists get paid need also +control how culture develops. @@ -6082,19 +5959,17 @@ weaken the right or regulation. I represented it with this diagram: ![]()