X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/f4d5ec3485963c3f4b47a2b4c48b2710609997ac..3264d5867e80421dae61c288d9f6eec36550fc15:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 035353c..3ac242e 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -1,27 +1,29 @@ + by Petter Reinholdtsen 2012-2015 with input from Martin Borg. --> - ]> + Free Culture "freeculture" - HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN - CULTURE AND CONTROL CREATIVITY + How big media uses technology and the law to lock down + culture and control creativity + + 2015-09-04 - 2004-03-25 + 1 Version 2004-02-10 @@ -30,6 +32,20 @@ Lawrence Lessig + - 1-59420-006-8 + 978-82-8067-010-6 2003063276 + http://free-culture.cc/ + - - - - -You can buy a copy of this book by clicking on one of the links below: - - -Amazon -B&N -Penguin - - - - - - -ALSO BY LAWRENCE LESSIG - - -The Future of Ideas: The Fate of the Commons in a Connected World - - -Code: And Other Laws of Cyberspace - + +Also by Lawrence Lessig + + + + + +The USA is lesterland: The nature of congressional corruption (2014) + + +Republic, lost: How money corrupts Congress - and a plan to stop it (2011) + + +Remix: Making art and commerce thrive in the hybrid economy (2008) + + +Code: Version 2.0 (2006) + + +The Future of Ideas: The Fate of the Commons in a Connected World (2001) + + +Code: And Other Laws of Cyberspace (1999) + + + + -To Eric Eldred—whose work first drew me to this cause, and for whom +To Eric Eldred — whose work first drew me to this cause, and for whom it continues still. + @@ -235,7 +258,7 @@ c INDEX -PREFACE +Preface Pogue, David At the end of his review of my first @@ -389,8 +412,8 @@ book is written. - -INTRODUCTION + +Introduction Wright brothers On December 17, 1903, on a windy North Carolina beach for just @@ -736,6 +759,7 @@ has introduced. Barlow, Joel +culturefree culture culturecommercial vs. noncommercial Webster, Noah @@ -914,9 +938,9 @@ 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. - + -The story that follows is about this war. Is it not about the +The story that follows is about this war. It is not about the centrality of technology to ordinary life. I don't believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group, for neither do I believe in a devil, corporate or @@ -1046,7 +1070,7 @@ to which most of us remain oblivious. -<quote>PIRACY</quote> +<quote>Piracy</quote> copyright lawEnglish @@ -1121,6 +1145,7 @@ piracy. ASCAP Dreyfuss, Rochelle Girl Scouts +creative propertyintellectual property rights creative propertyif value, then right theory of if value, then right theory @@ -1157,6 +1182,7 @@ creative property. It has never taken hold within our law. copyright lawon republishing vs. transformation of original work +creativityinnovation creativitylegal restrictions on Instead, in our tradition, intellectual property is an instrument. It @@ -1229,7 +1255,7 @@ context the current battles about behavior labeled piracy. -CHAPTER ONE: Creators +Chapter One: Creators animated cartoons cartoon films filmsanimated @@ -1405,6 +1431,7 @@ culture around us and makes it something different. +copyrightcopyright law copyrightduration of public domaindefined public domaintraditional term for conversion to @@ -1550,7 +1577,7 @@ flourish. As American graphic novelist Judd Winick said to me, The early days of comics in America are very much like what's going on in Japan now. … American comics were born out of copying each -other. … That's how [the artists] learn to draw—by going into comic +other. … That's how [the artists] learn to draw — by going into comic books and not tracing them, but looking at them and copying them and building from them. @@ -1646,8 +1673,8 @@ The term intellectual property is of relatively recent or Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), 293 n. 26. The term accurately -describes a set of property rights—copyright, patents, -trademark, and trade-secret—but the nature of those rights is +describes a set of property rights — copyright, patents, +trademark, and trade-secret — but the nature of those rights is very different. A large, diverse society cannot survive without property; a large, @@ -1758,7 +1785,7 @@ free culture. It is becoming much less so. -CHAPTER TWO: <quote>Mere Copyists</quote> +Chapter Two: <quote>Mere Copyists</quote> Daguerre, Louis camera technology photography @@ -2254,8 +2281,6 @@ your hoops. They actually needed to use a language that they didn't speak very well. But they had come to understand that they had a lot of power with this language. - @@ -2286,6 +2311,9 @@ entertainment is tragedy. ABC CBS +Cyber Rights (Godwin) +Godwin, Mike +Internetnews events on But in addition to this produced news about the tragedy of September 11, those of us tied to the Internet came to see a very different @@ -2333,6 +2361,7 @@ such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way—it's a kind of electronic Jerry Springer, available anywhere in the world. + political discourse Internetpublic discourse conducted on @@ -2706,13 +2735,14 @@ natural tendencies of today's digital kids. … We're building an architecture that unleashes 60 percent of the brain [and] a legal system that closes down that part of the brain. - We're building a technology that takes the magic of Kodak, mixes moving images and sound, and adds a space for commentary and an opportunity to spread that creativity everywhere. But we're building the law to close down that technology. +Kahle, Brewster + No way to run a culture, as Brewster Kahle, whom we'll meet in chapter , @@ -2721,7 +2751,7 @@ quipped to me in a rare moment of despondence. -CHAPTER THREE: Catalogs +Chapter Three: Catalogs Jordan, Jesse RPIRensselaer Polytechnic Institute (RPI) Rensselaer Polytechnic Institute (RPI) @@ -2765,7 +2795,6 @@ access to material from that institution. Businesses do this all the time, enabling employees to have access to material that people outside the business can't get. Universities do it as well. - Jordan, Jesse Microsoftnetwork file system of @@ -2980,7 +3009,7 @@ wrong message. And he wants to correct the record. -CHAPTER FOUR: <quote>Pirates</quote> +Chapter Four: <quote>Pirates</quote> piracyin development of content industry if value, then right theory @@ -2996,6 +3025,9 @@ now.
Film +Hollywood film industryfilm industry +Hollywood film industry +patentson film technology The film industry of Hollywood was built by fleeing pirates. @@ -3073,6 +3105,7 @@ filmmakers there could pirate his inventions without fear of the law. And the leaders of Hollywood filmmaking, Fox most prominently, did just that. + Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the @@ -3083,6 +3116,7 @@ time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edison's creative property. +
Recorded Music @@ -3123,6 +3157,8 @@ then, I could effectively pirate someone else's song without paying its composer anything. +Kittredge, Alfred +music publishing The composers (and publishers) were none too happy about @@ -3149,6 +3185,7 @@ Hackensack, N.J.: Rothman Reprints, 1976). + Sousa, John Philip The innovators who developed the technology to record other @@ -3172,6 +3209,7 @@ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). + American Graphophone Company player pianos sheet music @@ -3332,6 +3370,7 @@ As I described above, the law gives the composer (or copyright holder) an exclusive right to public performances of his work. The radio station thus owes the composer money for that performance. +radiomusic recordings played on But when the radio station plays a record, it is not only performing a copy of the composer's work. The radio station is @@ -3373,6 +3412,7 @@ the sale of her CDs. The public performance of her recording is not a her anything. + No doubt, one might argue that, on balance, the recording artists @@ -3528,7 +3568,7 @@ last. Every generation—until now.
-CHAPTER FIVE: <quote>Piracy</quote> +Chapter Five: <quote>Piracy</quote> There is piracy of copyrighted material. Lots of it. This piracy comes in many forms. The most @@ -3681,6 +3721,7 @@ permission of a property owner. That is exactly what property mea Asia, commercial piracy in piracyin Asia +open-source softwarefree software/open-source software (FS/OSS) free software/open-source software (FS/OSS) GNU/Linux operating system Linux operating system @@ -3779,9 +3820,11 @@ and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit. -innovation -Fanning, Shawn +Fanning, Shawn +innovationcreativity +innovation +Napster Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet @@ -3802,6 +3845,9 @@ Christensen's ideas, see Lawrence Lessig, Future, 89&ndas put together components that had been developed independently. +Kazaa +Napsternumber of registrations on +Napsterreplacement of The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the @@ -3822,6 +3868,7 @@ users to make content available to any number of other users. With a p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends. + According to a number of estimates, a huge proportion of Americans have tasted file-sharing technology. A study by Ipsos-Insight in @@ -3855,6 +3902,8 @@ carefully than the polarized voices around this debate usually do—the kinds of sharing that file sharing enables, and the kinds of harm it entails. +peer-to-peer (p2p) file sharingfour types of +Napsterrange of content on File sharers share different kinds of content. We can divide these @@ -3908,6 +3957,7 @@ to content that is not copyrighted or that the copyright owner wants to give away. + How do these different types of sharing balance out? @@ -3945,6 +3995,7 @@ cassette recording is a good example. As a study by Cap Gemini Ernst technology, the labels fought it. cassette recording +DAT (digital audio tape) See Cap Gemini Ernst & Young, Technology Evolution and the Music Industry's Business Model Crisis (2003), 3. This report describes the music industry's effort to stigmatize the budding @@ -4100,6 +4151,7 @@ publisher or the distributor has decided it no longer makes economic sense to the company to make it available. booksresales of +used record sales In real space—long before the Internet—the market had a simple @@ -4205,15 +4257,17 @@ found only with time. But isn't the war just a war against illegal sharing? Isn't the target just what you call type A sharing? +copyright infringement lawsuitszero tolerance in +Napsterinfringing material blocked by +peer-to-peer (p2p) file sharinginfringement protections in -You would think. And we should hope. But so far, it is not. The - effect +You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing alone has been felt far -beyond that one class of sharing. That much is obvious from the - Napster -case itself. When Napster told the district court that it had - developed -a technology to block the transfer of 99.4 percent of identified +beyond that one class of sharing. That much is obvious from the +Napster case itself. When Napster told the district court that it had +developed a technology to block the transfer of 99.4 percent of +identified + infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements @@ -4229,6 +4283,8 @@ account of the litigation and its toll on Napster, see Joseph Menn, York: Crown Business, 2003), 269–82. + + If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement. There is no way to @@ -4240,6 +4296,7 @@ The court's ruling means that we as a society must lose the benefits of p2p, even for the totally legal and beneficial uses they serve, simply to assure that there are zero copyright infringements caused by p2p. + Zero tolerance has not been our history. It has not produced the content industry that we know today. The history of American law has @@ -4283,6 +4340,7 @@ companies the right to the content, so long as they paid the statutory price. +copyright lawtwo central goals of @@ -4304,8 +4362,9 @@ Congress chose a path that would assure -Betamax +Betamax cassette recordingVCRs +SonyBetamax technology developed by In the same year that Congress struck this balance, two major producers and distributors of film content filed a lawsuit against @@ -4337,6 +4396,7 @@ for the architecture it chose. Congress, U.S.on copyright laws Congress, U.S.on VCR technology +Valenti, Jackon VCR technology MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs tapeworms. He warned, When there are @@ -4377,6 +4437,8 @@ Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti). + + It took eight years for this case to be resolved by the Supreme Court. In the interim, the Ninth Circuit Court of Appeals, which @@ -4395,6 +4457,7 @@ technology. Kozinski, Alex + But the Supreme Court reversed the decision of the Ninth Circuit. @@ -4470,6 +4533,7 @@ together, a pattern is clear: In each case throughout our history, a new technology changed the way content was distributed. +DAT (digital audio tape) These are the most important instances in our history, but there are other cases as well. The technology of digital audio tape (DAT), for example, @@ -4581,7 +4645,7 @@ is protected. -<quote>PROPERTY</quote> +<quote>Property</quote> @@ -4662,7 +4726,7 @@ from the implications that the copyright warriors would have us draw. -CHAPTER SIX: Founders +Chapter Six: Founders booksEnglish copyright law developed for copyright lawdevelopment of copyright lawEnglish @@ -5265,7 +5329,7 @@ protected. -CHAPTER SEVEN: Recorders +Chapter Seven: Recorders copyright lawfair use and documentary film Else, Jon @@ -5498,7 +5562,7 @@ not. -CHAPTER EIGHT: Transformers +Chapter Eight: Transformers Allen, Paul Alben, Alex Microsoft @@ -5744,9 +5808,12 @@ 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 -Alben, Alex +Alben, Alex +Boies, David +Court of AppealsNinth Circuit +Ninth Circuit Court of Appeals +Napster 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 @@ -5856,7 +5923,7 @@ curse, reserved for the few. -CHAPTER NINE: Collectors +Chapter Nine: Collectors archives, digital bots @@ -5910,6 +5977,7 @@ perhaps, you also have the power to find what you don't remember and what others might prefer you forget. Iraq war +Kahle, Brewster White House press releases The temptations remain, however. Brewster Kahle reports that the White House changes its own press releases without notice. A May 13, 2003, @@ -5950,6 +6018,7 @@ think that we have scads of archives of newspapers from tiny towns around the world, yet there is but one copy of the Internet—the one kept by the Internet Archive. +Kahle, Brewster Brewster Kahle is the founder of the Internet Archive. He was a very successful Internet entrepreneur after he was a successful computer @@ -6178,6 +6247,10 @@ Kahle describes,
bookstotal number of +filmstotal number of +music recordingspeer-to-peer (p2p) file sharing +music recordingsrecording industry +music recordingstotal number of It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of @@ -6217,12 +6290,14 @@ someone's property. And the law of property restricts the freedom that Kahle and others would exercise. + -CHAPTER TEN: <quote>Property</quote> +Chapter Ten: <quote>Property</quote> Johnson, Lyndon Kennedy, John F. +Valenti, Jackbackground of Jack Valenti has been the president of the Motion Picture Association of America since 1966. He first came @@ -6234,10 +6309,10 @@ running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. Disney, Inc. -Sony Pictures Entertainment MGM Paramount Pictures Twentieth Century Fox +Sony Pictures Entertainment Universal Pictures Warner Brothers @@ -6321,6 +6396,7 @@ 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, @@ -6463,8 +6539,8 @@ how four different modalities of regulation interact to support or weaken the right or regulation. I represented it with this diagram:
-How four different modalities of regulation interact to support or weaken the right or regulation. - + +
Madonna @@ -6592,8 +6668,9 @@ driving.
-Law has a special role in affecting the three. - + + +
architecture, constraint effected through @@ -6655,8 +6732,9 @@ Let's say this is the picture of copyright's regulation before the Internet:
-Copyright's regulation before the Internet. - + + +
architecture, constraint effected through lawas constraint modality @@ -6700,8 +6778,9 @@ after the fall of Saddam, but this time no government is justifying the looting that results.
-effective state of anarchy after the Internet. - + + +
Commerce, U.S. Department of regulationas establishment protectionism @@ -6958,12 +7037,16 @@ 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 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 @@ -7023,15 +7106,15 @@ particular concentration of market power. In terms of our model, we started here:
-Copyright's regulation before the Internet. - + +
We will end here:
-<quote>Copyright</quote> today. - + +
Let me explain how. @@ -7166,6 +7249,7 @@ from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. +CTEASonny Bono Copyright Term Extension Act (CTEA) (1998) Sonny Bono Copyright Term Extension Act (CTEA) (1998) public domainfuture patents vs. future copyrights in @@ -7525,8 +7609,8 @@ We can see this point abstractly by beginning with this largely empty circle.
-All potential uses of a book. - + +
booksthree types of uses of copyright lawcopies as core issue of @@ -7549,19 +7633,23 @@ it up, those acts are not regulated by copyright law, because those acts do not make a copy.
-Examples of unregulated uses of a book. - + +
Obviously, however, some uses of a copyrighted book are regulated by copyright law. Republishing the book, for example, makes a copy. It is therefore regulated by copyright law. Indeed, this particular use stands at the core of this circle of possible uses of a copyrighted work. It is the -paradigmatic use properly regulated by copyright regulation (see first -diagram on next page). +paradigmatic use properly regulated by copyright regulation (see +diagram in figure ). +
+ + +
fair use copyright lawfair use and @@ -7569,10 +7657,6 @@ Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these fair uses. -
-Republishing stands at the core of this circle of possible uses of a copyrighted work. - -
Constitution, U.S.First Amendment to First Amendment @@ -7586,13 +7670,8 @@ but the law denies the owner any exclusive right over such fair uses
-Unregulated copying considered <quote>fair uses.</quote> - -
- -
-Uses that before were presumptively unregulated are now presumptively regulated. - + +
copyrightusage restrictions attached to @@ -7654,6 +7733,10 @@ then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner's wish. +
+ + +
There are some people who think this makes perfect sense. My aim just now is not to argue about whether it makes sense or not. My aim @@ -7911,9 +7994,14 @@ software that publishers use to deliver e-books. It provides the technology, and the publisher delivers the content by using the technology. +
+ + +
-On the next page is a picture of an old version of my Adobe eBook -Reader. +In figure + +is a picture of an old version of my Adobe eBook Reader. As you can see, I have a small collection of e-books within this @@ -7928,17 +8016,13 @@ copy of Middlemarch, you'll see a fancy cover, and then a button at the bottom called Permissions. -
-Picture of an old version of Adobe eBook Reader - -
If you click on the Permissions button, you'll see a list of the permissions that the publisher purports to grant with this book.
-List of the permissions that the publisher purports to grant. - + +
@@ -7956,8 +8040,8 @@ Here's the e-book for another work in the public domain (including the translation): Aristotle's Politics.
-E-book of Aristotle;s <quote>Politics</quote> - + +
According to its permissions, no printing or copying is permitted @@ -7965,8 +8049,8 @@ at all. But fortunately, you can use the Read Aloud button to hear the book.
-List of the permissions for Aristotle;s <quote>Politics</quote>. - + +
Future of Ideas, The (Lessig) Lessig, Lawrence @@ -7977,8 +8061,8 @@ Ideas:
-List of the permissions for <quote>The Future of Ideas</quote>. - + +
No copying, no printing, and don't you dare try to listen to this book! @@ -8062,9 +8146,8 @@ domain. Yet when you clicked on Permissions for that book, you got the following report:
-List of the permissions for <quote>Alice's Adventures in -Wonderland</quote>. - + +
@@ -8387,13 +8470,21 @@ some uses that were illegal, the court held the companies producing the VCR responsible. -This led Conrad to draw the cartoon below, which we can adopt to -the DMCA. +This led Conrad to draw the cartoon in figure +, which we can adopt to the +DMCA. Conrad, Paul No argument I have can top this picture, but let me try to get close. +
+— On which item have the courts ruled that manufacturers and +retailers be held responsible for having supplied the +equipment? + +
The anticircumvention provisions of the DMCA target copyright circumvention technologies. Circumvention technologies can be used for @@ -8411,10 +8502,6 @@ practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses. -
-VCR/handgun cartoon. - -
Conrad, Paul The obvious point of Conrad's cartoon is the weirdness of a world @@ -8536,7 +8623,7 @@ media. Before this change happened, the different forms of media were owned by separate media companies. Now, the media is increasingly owned by only a few companies. Indeed, after the changes that the FCC announced in June 2003, most expect that within a few years, we will -live in a world where just three companies control more than percent +live in a world where just three companies control more than 85 percent of the media. @@ -8571,6 +8658,7 @@ Molly Ivins, Media Consolidation Must Be Stopped, Char 31 May 2003. +radioownership consolidation in The story with radio is even more dramatic. Before deregulation, the nation's largest radio broadcasting conglomerate owned fewer than @@ -8583,6 +8671,7 @@ market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues. cable television +newspapersownership consolidation of Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than @@ -8619,6 +8708,8 @@ James Fallows, The Age of Murdoch, Atlantic Monthly
+ + The pattern with Murdoch is the pattern of modern media. Not just large companies owning many radio stations, but a few companies @@ -8626,8 +8717,8 @@ owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do:
-Pattern of modern media ownership. - + +
@@ -8741,6 +8832,7 @@ Moyers, 25 April 2003, edited transcript available at +democracymedia concentration and This narrowing has an effect on what is produced. The product of such large and concentrated networks is increasingly homogenous. @@ -8793,6 +8885,7 @@ In addition to the copyright wars, we're in the middle of the drug wars. Government policy is strongly directed against the drug cartels; criminal and civil courts are filled with the consequences of this battle. +criminal justice system Let me hereby disqualify myself from any possible appointment to any position in government by saying I believe this war is a profound @@ -8819,6 +8912,9 @@ depend fundamentally upon the press to help inform Americans about these issues. advertising +commercials +televisionadvertising on +Nick and Norm anti-drug 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 @@ -8848,6 +8944,10 @@ 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? +Constitution, U.S.First Amendment to +First Amendment +Supreme Court, U.S.on television advertising bans +televisioncontroversy avoided by No. You cannot. Television stations have a general policy of avoiding controversial ads. Ads sponsored by the government are deemed @@ -8874,24 +8974,29 @@ 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 +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. +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 @@ -9093,7 +9198,7 @@ we could say the law began to look like this: Noncommercial - ©/Free + © / Free Free @@ -9224,11 +9329,11 @@ lawyer. -PUZZLES +Puzzles -CHAPTER ELEVEN: Chimera +Chapter Eleven: Chimera chimeras Wells, H. G. Country of the Blind, The (Wells) @@ -9507,7 +9612,7 @@ and will kill opportunities that could be extraordinarily valuable. -CHAPTER TWELVE: Harms +Chapter Twelve: Harms To fight piracy, to protect property, the content industry has launched a @@ -9562,6 +9667,8 @@ statement. You could write a poem to express your love, or you could weave together a string—a mash-up— of songs from your favorite artists in a collage and make it available on the Net. +democracydigital sharing within +Kodak cameras This digital capturing and sharing is in part an extension of the capturing and sharing that has always been integral to our culture, @@ -9594,7 +9701,7 @@ on remote topics of science or culture. There is a vast amount of creative work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. -Worldcom +WorldCom copyright infringement lawsuitsexaggerated claims of copyright infringement lawsuitsin recording industry doctors malpractice claims against @@ -9618,14 +9725,15 @@ See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldComMCI Wins U.S. District Court Approval for SEC Settlement (7 July 2003), available at link #37. -Worldcom +WorldCom 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. - The bill, modeled after California's tort reform model, was passed in the + +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,' Say Tort Reformers, amednews.com, 28 July 2003, available at @@ -9634,6 +9742,7 @@ and Senate Turns Back Malpractice Caps, CBSNews.com, 9 July 2003, available at link #39. President Bush has continued to urge tort reform in recent months. +tort reform Bush, George W. Can common sense recognize the absurdity in a world where @@ -10013,7 +10122,7 @@ creativity generally. Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to -produce an overregulatedregulated market. +produce an overregulated-regulated market. The building of a permission culture, rather than a free culture, is @@ -10185,6 +10294,8 @@ the story of the demise of Internet radio. artistsrecording industry payments to Kennedy, John F. +Monroe, Marilyn +radiomusic recordings played on @@ -10209,6 +10320,7 @@ than with the power of radio stations: Their lobbyists were quite good at stopping any efforts to get Congress to require compensation to the recording artists. + Enter Internet radio. Like regular radio, Internet radio is a technology to stream content from a broadcaster to a listener. The @@ -10830,6 +10942,7 @@ Brianna a Criminal? Toronto Star, 18 September 20 +Napsterrecording industry tracking users of Even this understates the espionage that is being waged by the RIAA. A report from CNN late last summer described a strategy the @@ -10890,6 +11003,7 @@ have already learned, our presumptions about innocence disappear in the middle of wars of prohibition. This war is no different. Says von Lohmann, +
So when we're talking about numbers like forty to sixty million @@ -10925,7 +11039,7 @@ effort through our democracy to change our law? -BALANCES +Balances @@ -10984,7 +11098,7 @@ success will require. -CHAPTER THIRTEEN: Eldred +Chapter Thirteen: Eldred Eldred, Eric Hawthorne, Nathaniel @@ -11099,6 +11213,7 @@ Sonny Bono, who, his widow, Mary Bono, says, believed that Bono, Mary Bono, Sonny +Valenti, Jackperpetual copyright term proposed by The full text is: Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to @@ -11493,6 +11608,7 @@ of Petitioners, Eldred v. Ashcroft +Kahle, Brewster Think practically about the consequence of this extension—practically, @@ -11750,6 +11866,7 @@ would not have interfered with anything. But this situation has now changed. +Kahle, Brewster archives, digital One crucially important consequence of the emergence of digital @@ -11791,6 +11908,7 @@ Brewster Kahle, then they will lower the costs for Random House, too. So won't Random House do as well as Brewster Kahle in spreading culture widely? + Maybe. Someday. But there is absolutely no evidence to suggest that publishers would be as complete as libraries. If Barnes & Noble @@ -11896,6 +12014,7 @@ retell this story to myself, I can never escape believing that my own mistake lost it. Steward, Geoffrey +Jones, Day, Reavis and Pogue (Jones Day) The mistake was made early, though it became obvious only at the very end. Our case had been supported @@ -11920,6 +12039,7 @@ Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, they would never vote against the most powerful media companies in the world. + I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. Of course I still @@ -12001,7 +12121,7 @@ In the Supreme Court, the briefs on our side were about as diverse as it gets. They included an extraordinary historical brief by the Free -Software Foundation (home of the GNU project that made GNU/ Linux +Software Foundation (home of the GNU project that made GNU/Linux possible). They included a powerful brief about the costs of uncertainty by Intel. There were two law professors' briefs, one by copyright scholars and one by First Amendment scholars. There was an @@ -12045,6 +12165,7 @@ to describe special-interest legislation gone wild. Morrison, Alan Public Citizen Reagan, Ronald +Jones, Day, Reavis and Pogue (Jones Day) The same effort at balance was reflected in the legal team we gathered to write our briefs in the case. The Jones Day lawyers had been with @@ -12273,6 +12394,7 @@ this central idea. Ayer, Don Reagan, Ronald Fried, Charles +Jones, Day, Reavis and Pogue (Jones Day) One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor @@ -12698,14 +12820,15 @@ in a time of such fruitful creative ferment. The best responses were in the cartoons. There was a gaggle of hilarious images—of Mickey in jail and the like. The best, from -my view of the case, was Ruben Bolling's, reproduced on the next page -(). The powerful and wealthy line is a bit -unfair. But the punch in the face felt exactly like that. +my view of the case, was Ruben Bolling's, reproduced in figure +. The powerful +and wealthy line is a bit unfair. But the punch in the face +felt exactly like that. Bolling, Ruben -
-Tom the Dancing Bug cartoon - +
+ + Bolling, Ruben
@@ -12720,7 +12843,7 @@ better lawyer would have made them see differently. -CHAPTER FOURTEEN: Eldred II +Chapter Fourteen: Eldred II The day Eldred was decided, fate would have it that I @@ -12766,6 +12889,8 @@ Congress allows for those works where its worth is at least $1. But for everything else, let the content go. Forbes, Steve +Democratic Party +Republican Party The reaction to this idea was amazingly strong. Steve Forbes endorsed it in an editorial. I received an avalanche of e-mail and letters @@ -12984,6 +13109,7 @@ introduced. On May 16, I posted on the Eldred Act blog, we are close. There was a general reaction in the blog community that something good might happen here. +Valenti, JackEldred Act opposed by But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA general counsel came to the congresswoman's office to give @@ -13115,8 +13241,8 @@ controlled by this dead (and often unfindable) hand of the past. - -CONCLUSION + +Conclusion Africa, medications for HIV patients in AIDS medications antiretroviral drugs @@ -13607,6 +13733,7 @@ its lobbying efforts. Boland, Lois +Patent and Trademark Office, U.S. What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting @@ -13664,7 +13791,7 @@ property system. That is, on the contrary, just what a property system is supposed to be about: giving individuals the right to decide what to do with their property. -Boland, Lois +Boland, Lois When Ms. Boland says that there is something wrong with a meeting which has as its purpose to disclaim or waive such rights, she's @@ -13738,7 +13865,7 @@ mistake. I have no illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about whether our government should speak the truth or not.) - + Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the @@ -13772,6 +13899,7 @@ 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. + If this is crazy, then let there be more crazies. Soon. @@ -13920,8 +14048,9 @@ potential is ever to be realized. - -AFTERWORD + +Afterword +copyrightvoluntary reform efforts on @@ -13942,6 +14071,8 @@ authors, musicians, filmmakers, scientists—all to tell this story in their own words, and to tell their neighbors why this battle is so important. +RCA + Once this movement has its effect in the streets, it has some hope of having an effect in Washington. We are still a democracy. What people @@ -13952,7 +14083,8 @@ sketch changes that Congress could make to better secure a free culture.
-US, NOW +Us, now +copyrightvoluntary reform efforts on Common sense is with the copyright warriors because the debate so far has been framed at the @@ -14397,9 +14529,10 @@ downloads increased, the used book price for his book increased, as well. +Leaphart, Walter Public Enemy + rap music -Leaphart, Walter These are examples of using the Commons to better spread proprietary content. I believe that is a wonderful and common use of the @@ -14469,7 +14602,7 @@ creativity to spread more easily.
-THEM, SOON +Them, soon We will not reclaim a free culture by individual action alone. It will also take important reforms of @@ -14551,7 +14684,7 @@ developed by others.
-REGISTRATION AND RENEWAL +Registration and renewal Under the old system, a copyright owner had to file a registration with the Copyright Office to register or renew a copyright. When @@ -14574,6 +14707,9 @@ doesn't follow that the government must actually administer the role. Instead, we should be creating incentives for private parties to serve the public, subject to standards that the government sets. +domain names +Internetdomain name registration on +Web sites, domain name registration of In the context of registration, one obvious model is the Internet. There are at least 32 million Web sites registered around the world. @@ -14600,7 +14736,7 @@ of registrations that would facilitate the licensing of content.
-MARKING +Marking It used to be that the failure to include a copyright notice on a creative work meant that the copyright was forfeited. That was a harsh @@ -15229,6 +15365,8 @@ controlling access. artistsrecording industry payments to +semiotic democracy +democracysemiotic Fisher would balk at the idea of allowing the system to lapse. His aim is not just to ensure that artists are paid, but also to ensure that @@ -15478,29 +15616,30 @@ keep your lawyers away.
- -NOTES + +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. + +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. - + + - -ACKNOWLEDGMENTS + +Acknowledgments This book is the product of a long and as yet unsuccessful struggle that began when I read of Eric Eldred's war to keep books free. Eldred's @@ -15569,91 +15708,226 @@ grateful for her perpetual patience and love. + + + + About this edition + +This edition of Free Culture is the result of +three years of volunteer work. The idea came from a discussion I had +around ten years ago with a friend about the copyright debate in +Norway, and how rarely the difficulties of long copyright made it into +the public debate. A bit more than three years ago I finally had a +look again at the idea and decided to publish a printed Norwegian +BokmÃ¥l version of Free Culture, translated and +formatted by volunteers. The new English edition is a by-product of +the translation process. + + + +Thanks to the Debian Edu / Skolelinux project, I already had +experience translating Docbook documents, and it seemed like a good +format for this book too. I found a Docbook formatted version of the +book created by Hans Schou. Initial testing showed lots of Docbook +validation errors in this version, but after some work I was able to +transform it to PDF and EPUB. This was the start of the translation +project. The Docbook file improved over time, and build rules were +added to create both English and BokmÃ¥l versions. Finally, a call for +volunteers went out to help me with the translation. + + + +Several people joined, and Anders Hagen Jarmund, Kirill Miazine, Odd +Kleiva, Kjetil Kilhavn og Kjetil T. Homme assisted with the initial +translation. Ralph Amissah and his SiSu version provided index +entries. Morten Sickel and Alexander Alemayhu helped with the +figures, redrawing some of the bitmaps as vector images. Wivi +Reinholdtsen, Ingrid Yrvin, Johannes Larsen and Gisle Hannemyr did +very valuable proofreading. HÃ¥kon Wium Lie helped me track down a +good replacement font without usage restrictions instead of the one in +the original PDF. The PDF typesetting is done using dblatex, which we +selected over the alternatives thanks to the invaluable and quick help +from Benoît Guillon and Andreas Hoenen. Thomas Gramstad donated ISBN +numbers needed for distribution to book stores. Marc Jeanmougin from +the inkscape community helped me replicate the original front cover. +The support of Lawrence Lessig helped me to complete the +project—I am very thankful he had the original screen shots +still available after 11 years. + + + +At the end of the project, when the translation was done and it was +time to publish, NUUG Foundation was asked and was willing to sponsor +books to members of the Norwegian parliament and other decision +makers. + + + +In addition to these great contributors, I am very grateful to Mari +and my family for their patience with me in this project. + + + +— Petter Reinholdtsen, Oslo 2015-09-07 + + + + + +Free culture: How big media uses technology and the law to lock down +culture and control creativity / Lawrence Lessig. + + +Copyright © 2004 Lawrence Lessig. Some rights reserved. + + -THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street New -York, New York + + -Copyright © Lawrence Lessig. All rights reserved. +Published in English and Norwegian BokmÃ¥l 2015 by Petter Reinholdtsen +with help from many volunteers. Typeset with dblatex using the font +Crimson Text. + -Excerpt from an editorial titled The Coming of Copyright Perpetuity, -The New York Times, January 16, 2003. Copyright -© 2003 by The New York Times Co. Reprinted with permission. +First published 2004 by The Penguin Press. + -Cartoon in by Paul Conrad, copyright Tribune -Media Services, Inc. All rights reserved. Reprinted with permission. +Excerpt from an editorial titled The Coming of Copyright +Perpetuity, The New York Times, January +16, 2003. Copyright © 2003 by The New York Times Co. Reprinted +with permission. -Diagram in courtesy of the office of FCC -Commissioner, Michael J. Copps. +Cartoon in figure + by +Paul Conrad, copyright Tribune Media Services, Inc. All rights +reserved. Reprinted with permission. -Library of Congress Cataloging-in-Publication Data +Diagram in figure + +courtesy of the office of FCC Commissioner, Michael J. Copps. + -Lessig, Lawrence. -Free culture : how big media uses technology and the law to lock down -culture and control creativity / Lawrence Lessig. +Cover created by Petter Reinholdtsen using inkscape. + -p. cm. +The quotes on the cover came from +. + -Includes index. +Portrait on the cover was created 2013 by ActuaLitté and licensed +under a Creative Commons Attribution-ShareAlike 2.0 license. It was +downloaded from +. + + + +Classifications: + -ISBN 1-59420-006-8 (hardcover) +(Dewey) +306.4, +306.40973, +306.46, +341.7582, +343.7309/9 -1. Intellectual property—United States. 2. Mass media—United States. +(UDK) 347.78 + -3. Technological innovations—United States. 4. Art—United States. I. Title. +(US Library of Congress) KF2979.L47 2004 + -KF2979.L47 +(ACM CRCS) K.4.1 + -343.7309'9—dc22 +Thomas Gramstad Forlag donated the ISBN numbers. + -This book is printed on acid-free paper. +Printing was sponsed by NUUG Foundation, +. + -Printed in the United States of America +Includes index. + + + -1 3 5 7 9 10 8 6 4 +The Docbook source is available from +. +Please report any issues with the book there. + -Designed by Marysarah Quinn + -&translationblock; +This book is licensed under a Creative Commons license. This license +permits non-commercial use of this work, so long as attribution is +given. For more information about the license visit +. -Without limiting the rights under copyright reserved above, no part of -this publication may be reproduced, stored in or introduced into a -retrieval system, or transmitted, in any form or by any means -(electronic, mechanical, photocopying, recording or otherwise), -without the prior written permission of both the copyright owner and -the above publisher of this book. +This book is a proof reading draft. Please visit the github URL above +to get the latest version. + -The scanning, uploading, and distribution of this book via the -Internet or via any other means without the permission of the -publisher is illegal and punishable by law. Please purchase only -authorized electronic editions and do not participate in or encourage -electronic piracy of copyrighted materials. 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