X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/blobdiff_plain/fd34c9d6bff45327c5e2a443b5f6ed9c4adade4e..7f56d8e544dc5665bbc84407b30fc7017968c4fd:/freeculture.xml diff --git a/freeculture.xml b/freeculture.xml index 586d326..fe7c168 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -1,13 +1,13 @@ + - @@ -35,30 +35,67 @@ - - 2004 - Lawrence Lessig - - + + + + Intellectual property—United States. + + + Mass media—United States. + + + Technological innovations—United States. + + + Art—United States. + + + + + + The Penguin Press +
New York
+ + + + 2004 + Lawrence Lessig + - + + + + + + + + + + Creative Commons, Some rights reserved + + + + + This version of Free Culture 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, click the icon above, or visit http://creativecommons.org/licenses/by-nc/1.0/ - + ABOUT THE AUTHOR LAWRENCE LESSIG -(http://www.lessig.org), +(http://www.lessig.org), professor of law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons -(http://creativecommons.org). +(http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier @@ -71,6 +108,32 @@ clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals. + + + + + + + + + + 1-59420-006-8 + + + 2003063276 + @@ -156,6 +219,7 @@ Includes index. ISBN 1-59420-006-8 (hardcover) + 1. Intellectual property—United States. 2. Mass media—United States. @@ -206,13 +270,6 @@ materials. Your support of the author's rights is appreciated. To Eric Eldred—whose work first drew me to this cause, and for whom it continues still. - - -
-Creative Commons, Some rights reserved - -
- @@ -587,10 +644,10 @@ The audience was hearing something no one had thought possible:
A glass of water was poured before the microphone in Yonkers; it -sounded like a glass of water being poured. . . . A paper was crumpled +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 +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 @@ -640,8 +697,8 @@ described, The forces for FM, largely engineering, could not overcome the weight of strategy devised by the sales, patent, and legal offices to subdue this threat to corporate position. For FM, if allowed to develop -unrestrained, posed . . . a complete reordering of radio power -. . . and the eventual overthrow of the carefully restricted AM system +unrestrained, posed … a complete reordering of radio power +… and the eventual overthrow of the carefully restricted AM system on which RCA had grown to power.Lessing, 226. @@ -755,6 +812,8 @@ 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. +Barlow, Joel +Webster, Noah At the beginning of our history, and for just about the whole of our @@ -1477,9 +1536,9 @@ Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga 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 +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. @@ -1655,7 +1714,9 @@ free culture. It is becoming much less so. CHAPTER TWO: "Mere Copyists" -Daguerre, Louis + + photography + In 1839, Louis Daguerre invented the first practical technology for producing what we would call "photographs." Appropriately enough, they @@ -1664,6 +1725,7 @@ expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) +Daguerre, Louis Yet despite high prices, the demand for daguerreotypes was strong. @@ -1675,6 +1737,7 @@ the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. +Talbot, William Eastman, George @@ -1704,7 +1767,7 @@ Reese V. Jenkins, Images and Enterprise (Baltimore: Johns The principle of the Kodak system is the separation of the work that any person whomsoever can do in making a photograph, from the work -that only an expert can do. . . . We furnish anybody, man, woman or +that only an expert can do. … We furnish anybody, man, woman or child, who has sufficient intelligence to point a box straight and press a button, with an instrument which altogether removes from the practice of photography the necessity for exceptional facilities or, @@ -1728,7 +1791,7 @@ improved. Roll film thus became the basis for the explosive growth of popular photography. Eastman's camera first went on sale in 1888; one year later, Kodak was printing more than six thousand negatives a day. From 1888 through 1909, while industrial production was rising by 4.7 -percent, photographic equipment and material sales increased by +percent, photographic equipment and material sales increased by 11 percent. Jenkins, 177. @@ -1748,7 +1811,7 @@ glimpse of places they would never otherwise see. Amateur photography gave them the ability to record their own lives in a way they had never been able to do before. As author Brian Coe notes, "For the first time the snapshot album provided the man on the street with a -permanent record of his family and its activities. . . . For the first +permanent record of his family and its activities. … For the first time in history there exists an authentic visual record of the appearance and activities of the common man made without [literary] interpretation or bias." @@ -1876,6 +1939,7 @@ doing something with media. By doing, they think. By tinkering, they learn. + These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has @@ -1896,7 +1960,7 @@ learning more and more of something teachers call "media literacy." "Media literacy," as Dave Yanofsky, the executive director of Just -Think!, puts it, "is the ability . . . to understand, analyze, and +Think!, puts it, "is the ability … to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it." @@ -1949,7 +2013,7 @@ California's Annenberg Center for Communication and dean of the USC School of Cinema-Television, explained to me, the grammar was -about "the placement of objects, color, . . . rhythm, pacing, and +about "the placement of objects, color, … rhythm, pacing, and texture." @@ -2087,10 +2151,10 @@ you. [But i]nstead, if you say, "Well, with all these things that you can do, let's talk about this issue. Play for me music that you think reflects that, or show me images that you think reflect that, or draw for me something that reflects that." Not by giving a kid a video -camera and . . . saying, "Let's go have fun with the video camera and +camera and … saying, "Let's go have fun with the video camera and make a little movie." But instead, really help you take these elements that you understand, that are your language, and construct meaning -about the topic. . . . +about the topic. … That empowers enormously. And then what happens, of @@ -2399,8 +2463,8 @@ extraordinary to report. John Seely Brown is the chief scientist of the Xerox Corporation. -His work, as his Web site describes it, is "human learning and . . . the -creation of knowledge ecologies for creating . . . innovation." +His work, as his Web site describes it, is "human learning and … the +creation of knowledge ecologies for creating … innovation." Brown thus looks at these technologies of digital creativity a bit @@ -2431,7 +2495,7 @@ FS/OSS technology works can tinker with the code. This opportunity creates a "completely new kind of learning platform," -as Brown describes. "As soon as you start doing that, you . . . +as Brown describes. "As soon as you start doing that, you … unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it." Each effort is a kind of @@ -2442,7 +2506,7 @@ In this process, "the concrete things you tinker with are abstract. They are code." Kids are "shifting to the ability to tinker in the abstract, and this tinkering is no longer an isolated activity that you're doing in your garage. You are tinkering with a community -platform. . . . You are tinkering with other people's stuff. The more +platform. … You are tinkering with other people's stuff. The more you tinker the more you improve." The more you improve, the more you learn. @@ -2452,8 +2516,8 @@ collaborative way when that content is part of the Web. As Brown puts it, "the Web [is] the first medium that truly honors multiple forms of intelligence." Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web amplifies much more than -text. "The Web . . . says if you are musical, if you are artistic, if -you are visual, if you are interested in film . . . [then] there is a +text. "The Web … says if you are musical, if you are artistic, if +you are visual, if you are interested in film … [then] there is a lot you can start to do on this medium. [It] can now amplify and honor these multiple forms of intelligence." @@ -2478,7 +2542,8 @@ freedom that technology, and curiosity, would otherwise ensure. These restrictions have become the focus of researchers and scholars. Professor Ed Felten of Princeton (whom we'll see more of in chapter -10) has developed a powerful argument in favor of the "right to +) +has developed a powerful argument in favor of the "right to tinker" as it applies to computer science and to knowledge in general. @@ -2497,7 +2562,7 @@ and want to learn." "Yet," as Brown continued, and as the balance of this book will evince, "we are building a legal system that completely suppresses the -natural tendencies of today's digital kids. . . . We're building an +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." @@ -2510,7 +2575,8 @@ the law to close down that technology. "No way to run a culture," as Brewster Kahle, whom we'll meet in -chapter 9, quipped to me in a rare moment of despondence. +chapter , +quipped to me in a rare moment of despondence. @@ -2613,8 +2679,8 @@ them, he was increasingly astonished. "It was absurd," he told me. "I don't think I did anything -wrong. . . . I don't think there's anything wrong with the search -engine that I ran or . . . what I had done to it. I mean, I hadn't +wrong. … I don't think there's anything wrong with the search +engine that I ran or … what I had done to it. I mean, I hadn't modified it in any way that promoted or enhanced the work of pirates. I just modified the search engine in a way that would make it easier to use"—again, a search engine, @@ -2715,7 +2781,7 @@ activist:
I was definitely not an activist [before]. I never really meant to be -an activist. . . . [But] I've been pushed into this. In no way did I +an activist. … [But] I've been pushed into this. In no way did I ever foresee anything like this, but I think it's just completely absurd what the RIAA has done. @@ -2723,7 +2789,7 @@ absurd what the RIAA has done. Jesse's parents betray a certain pride in their reluctant activist. As his father told me, Jesse "considers himself very conservative, and so do -I. . . . He's not a tree hugger. . . . I think it's bizarre that they would +I. … He's not a tree hugger. … I think it's bizarre that they would pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record." @@ -2795,6 +2861,7 @@ Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright" (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics, Working Paper No. 159. +Fox, William General Film Company Picker, Randal C. @@ -2832,6 +2899,9 @@ Edison's creative property. The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. + + Fourneaux, Henri + At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player @@ -2861,11 +2931,13 @@ then made copies of those recordings. Because of this gap in the law, then, I could effectively pirate someone else's song without paying its composer anything. + The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it, +Kittredge, Alfred
@@ -2882,6 +2954,7 @@ Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in Legislative History of the Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). +Kittredge, Alfred
@@ -2931,6 +3004,7 @@ To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). +American Graphophone Company The law soon resolved this battle in favor of the composer @@ -3184,7 +3258,7 @@ General Edwin Zimmerman put it, Our point here is that unlike the problem of whether you have any copyright protection at all, the problem here is whether copyright holders who are already compensated, who already have a monopoly, -should be permitted to extend that monopoly. . . . The +should be permitted to extend that monopoly. … The question here is how much compensation they should have and @@ -3228,7 +3302,7 @@ permission or compensation—has grown with the Internet." — then every industry affected by copyright today is the product and beneficiary of a certain kind of -piracy. Film, records, radio, cable TV. . . . The list is long and +piracy. Film, records, radio, cable TV. … The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation—until now. @@ -3342,7 +3416,7 @@ less money than they otherwise would have had. For an analysis of the economic impact of copying technology, see Stan Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), -144–90. "In some instances . . . the impact of piracy on the +144–90. "In some instances … the impact of piracy on the copyright holder's ability to appropriate the value of the work will be negligible. One obvious instance is the case where the individual engaging in pirating would not have purchased an original even if @@ -3393,6 +3467,7 @@ Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose. +GNU/Linux operating system Linux operating system Microsoft @@ -3420,6 +3495,7 @@ means giving the property owner the right to say who gets access to what—at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong. +GNU/Linux operating system Linux operating system @@ -3655,7 +3731,7 @@ regulating technology was the answer. Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record -turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was +turnaround. "In the end," Cap Gemini concludes, "the `crisis' … was not the fault of the tapers—who did not [stop after MTV came into being]—but had to a large extent resulted from stagnation in musical @@ -3867,7 +3943,8 @@ unavailable?" For unlike the piracy I described in the first section of this chapter, much of the "piracy" that file sharing enables is plainly -legal and good. And like the piracy I described in chapter 4, much of +legal and good. And like the piracy I described in chapter +, much of this piracy is motivated by a new way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the recording industry, and @@ -4082,7 +4159,7 @@ together, a pattern is clear: -Table +Pattern of Court and Congress response @@ -4580,7 +4657,7 @@ way to protect authors. This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary chutzpah. Until then, as law professor Raymond Patterson has put it, -"The publishers . . . had as much concern for authors as a cattle +"The publishers … had as much concern for authors as a cattle rancher has for cattle." Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt @@ -4763,7 +4840,7 @@ reported:
-By the above decision . . . near 200,000 pounds worth of what was +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 @@ -4863,16 +4940,16 @@ 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 +… 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 +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 +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. @@ -4971,7 +5048,7 @@ 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 +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 @@ -5135,7 +5212,7 @@ 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 +directors, … this many musicians," and we just went at it very systematically and cleared the rights.
@@ -5162,7 +5239,7 @@ Did it make sense, I asked Alben, that this is the way a new work has to be made? -For, as he acknowledged, "very few . . . have the time and resources, +For, as he acknowledged, "very few … have the time and resources, and the will to do this," and thus, very few such works would ever be made. Does it make sense, I asked him, from the standpoint of what anybody really thought they were ever giving rights for originally, that @@ -5171,9 +5248,9 @@ you would have to go clear rights for these kinds of clips?
I don't think so. When an actor renders a performance in a movie, -he or she gets paid very well. . . . And then when 30 seconds of +he or she gets paid very well. … And then when 30 seconds of that performance is used in a new product that is a retrospective -of somebody's career, I don't think that that person . . . should be +of somebody's career, I don't think that that person … should be compensated for that.
@@ -5480,8 +5557,8 @@ 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 -impossible. . . . Those materials are almost unfindable. . . . +60 Minutes episode that came out after it … it would be almost +impossible. … Those materials are almost unfindable. … @@ -5653,13 +5730,13 @@ 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 +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 +… 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. @@ -5700,6 +5777,7 @@ 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. Johnson, Lyndon +Kennedy, John F. The MPAA is the American branch of the international Motion Picture @@ -6243,7 +6321,7 @@ should be especially wary of the request. It is always a bad deal for the government to get into the business of regulating speech markets. The risks and dangers of that game are precisely why our framers created the First Amendment to our Constitution: "Congress -shall make no law . . . abridging the freedom of speech." So when +shall make no law … abridging the freedom of speech." So when Congress is being asked to pass laws that would "abridge" the freedom of speech, it should ask— carefully—whether such regulation is justified. @@ -6361,12 +6439,13 @@ publishers, nor even primarily the purpose of rewarding authors. The Progress Clause expressly limits the term of copyrights. As we saw -in chapter 6, the English limited the term of copyright so as to -assure that a few would not exercise disproportionate control over -culture by exercising disproportionate control over publishing. We can -assume the framers followed the English for a similar purpose. Indeed, -unlike the English, the framers reinforced that objective, by -requiring that copyrights extend "to Authors" only. +in chapter , +the English limited the term of copyright so as to assure that a few +would not exercise disproportionate control over culture by exercising +disproportionate control over publishing. We can assume the framers +followed the English for a similar purpose. Indeed, unlike the +English, the framers reinforced that objective, by requiring that +copyrights extend "to Authors" only. The design of the Progress Clause reflects something about the @@ -7327,6 +7406,7 @@ on the Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful book is in the public domain. Yet when you clicked on Permissions for that book, you got the following report: +Alice's Adventures in Wonderland (Carroll)
List of the permissions for "Alice's Adventures in @@ -7596,9 +7676,10 @@ The bizarreness of these arguments is captured in a cartoon drawn in the VCR could be banned because it was a copyright-infringing technology: It enabled consumers to copy films without the permission of the copyright owner. No doubt there were uses of the technology -that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>," for example, had -testified in that case that he wanted people to feel free to tape -Mr. Rogers' Neighborhood. +that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>," +for example, had testified in that case that he wanted people to feel +free to tape Mr. Rogers' Neighborhood. +<indexterm><primary>Conrad, Paul</primary></indexterm> </para> <blockquote> <para> @@ -7633,6 +7714,7 @@ the VCR responsible. <para> This led Conrad to draw the cartoon below, which we can adopt to the DMCA. +<indexterm><primary>Conrad, Paul</primary></indexterm> </para> <para> No argument I have can top this picture, but let me try to get close. @@ -7664,6 +7746,7 @@ circumvention technologies) are illegal. Flash: <emphasis>No one ever died from copyright circumvention</emphasis>. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do. +<indexterm><primary>Conrad, Paul</primary></indexterm> </para> <para> The Aibo and RIAA examples demonstrate how copyright owners are @@ -7834,7 +7917,7 @@ put it in a recent article about Rupert Murdoch, <para> Murdoch's companies now constitute a production system unmatched in its integration. They supply content—Fox movies -. . . Fox TV shows . . . Fox-controlled sports broadcasts, plus +… Fox TV shows … Fox-controlled sports broadcasts, plus newspapers and books. They sell the content to the public and to advertisers—in newspapers, on the broadcast network, on the cable channels. And they operate the physical distribution system @@ -8113,9 +8196,12 @@ diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects Ad," SFGate.com, 16 June 2003, available at <ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground was that the criticism was "too controversial." +<indexterm><primary>ABC</primary></indexterm> <indexterm><primary>Comcast</primary></indexterm> <indexterm><primary>Marijuana Policy Project</primary></indexterm> +<indexterm><primary>NBC</primary></indexterm> <indexterm><primary>WJOA</primary></indexterm> +<indexterm><primary>WRC</primary></indexterm> </para></footnote> </para> <para> @@ -8226,7 +8312,7 @@ that copyright law has undergone. In 1790, the law looked like this: </para> <table id="t2"> -<title> +Law status in 1790
@@ -8264,7 +8350,7 @@ By the end of the nineteenth century, the law had changed to this:
- +Law status at the end of ninetheenth centory @@ -8303,7 +8389,7 @@ we could say the law began to look like this:
- +Law status in 1975 @@ -8336,7 +8422,7 @@ that the law now looks like this:
- +Law status now @@ -8379,10 +8465,12 @@ I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the -reasons sketched especially in chapters 7 and 8, one might well wonder -whether it does more harm than good for commercial transformation. -More commercial transformative work would be created if derivative -rights were more sharply restricted. +reasons sketched especially in chapters + and +, one +might well wonder whether it does more harm than good for commercial +transformation. More commercial transformative work would be created +if derivative rights were more sharply restricted. The issue is therefore not simply whether copyright is property. Of @@ -8510,7 +8598,7 @@ is affected," he reports. "What affects it?" the father asks. "Those queer things that are -called the eyes . . . are diseased . . . in such a way as to affect +called the eyes … are diseased … in such a way as to affect his brain." @@ -8532,7 +8620,7 @@ different from the DNA of the skin. This possibility is an underused plot for murder mysteries. "But the DNA shows with 100 percent certainty that she was not the person whose blood was at the -scene. . . ." +scene. …" @@ -8635,6 +8723,7 @@ subpoenas issued to universities to reveal student file-sharer identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003, D3, available at link #36. +Conyers, John, Jr. Berman, Howard L. @@ -8888,7 +8977,8 @@ critical or reflective. Part of the reason for this fear of illegality has to do with the -changing law. I described that change in detail in chapter 10. But an +changing law. I described that change in detail in chapter +. But an even bigger part has to do with the increasing ease with which infractions can be tracked. As users of file-sharing systems discovered in 2002, it is a trivial matter for copyright owners to get @@ -8910,10 +9000,12 @@ right to cultivate and transform them is not similarly free. Lawyers rarely see this because lawyers are rarely empirical. As I -described in chapter 7, in response to the story about documentary -filmmaker Jon Else, I have been lectured again and again by lawyers -who insist Else's use was fair use, and hence I am wrong to say that the -law regulates such a use. +described in chapter +, in +response to the story about documentary filmmaker Jon Else, I have +been lectured again and again by lawyers who insist Else's use was +fair use, and hence I am wrong to say that the law regulates such a +use. @@ -8957,7 +9049,7 @@ As Jed Horovitz, the businessman behind Video Pipeline, said to me, We're losing [creative] opportunities right and left. Creative people are being forced not to express themselves. Thoughts are not being expressed. And while a lot of stuff may [still] be created, it still -won't get distributed. Even if the stuff gets made . . . you're not +won't get distributed. Even if the stuff gets made … you're not going to get it distributed in the mainstream media unless you've got a little note from a lawyer saying, "This has been @@ -9002,12 +9094,13 @@ against the competitors of tomorrow. This is the single most dramatic effect of the shift in regulatory -strategy that I described in chapter 10. The consequence of this -massive threat of liability tied to the murky boundaries of copyright -law is that innovators who want to innovate in this space can safely -innovate only if they have the sign-off from last generation's -dominant industries. That lesson has been taught through a series of -cases that were designed and executed to teach venture capitalists a +strategy that I described in chapter . The consequence of this massive +threat of liability tied to the murky boundaries of copyright law is +that innovators who want to innovate in this space can safely innovate +only if they have the sign-off from last generation's dominant +industries. That lesson has been taught through a series of cases +that were designed and executed to teach venture capitalists a lesson. That lesson—what former Napster CEO Hank Barry calls a "nuclear pall" that has fallen over the Valley—has been learned. @@ -9141,7 +9234,7 @@ engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this forward for release stateside. Even today, no new cars are sold in the -United States with bona fide MP3 players. . . . +United States with bona fide MP3 players. … Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June @@ -9281,11 +9374,14 @@ When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. -As I described in chapter 10, despite this feature of copyright as -regulation, and subject to important qualifications outlined by Jessica -Litman in her book Digital Copyright, - Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, -2001). +As I described in chapter , despite this feature of copyright as +regulation, and subject to important qualifications outlined by +Jessica Litman in her book Digital +Copyright, + +Jessica Litman, Digital Copyright (Amherst, +N.Y.: Prometheus Books, 2001). Litman, Jessica overall this history of copyright @@ -9344,14 +9440,16 @@ the story of the demise of Internet radio. -As I described in chapter 4, when a radio station plays a song, the -recording artist doesn't get paid for that "radio performance" unless -he or she is also the composer. So, for example if Marilyn Monroe had -recorded a version of "Happy Birthday"—to memorialize her famous +As I described in chapter , when a radio station plays a song, the recording +artist doesn't get paid for that "radio performance" unless he or she +is also the composer. So, for example if Marilyn Monroe had recorded a +version of "Happy Birthday"—to memorialize her famous performance before President Kennedy at Madison Square Garden— then whenever that recording was played on the radio, the current copyright owners of "Happy Birthday" would get some money, whereas Marilyn Monroe would not. +Kennedy, John F. The reasoning behind this balance struck by Congress makes some @@ -9403,7 +9501,7 @@ An almost unlimited number of FM stations was possible in the shortwaves, thus ending the unnatural restrictions imposed on radio in the crowded longwaves. If FM were freely developed, the number of stations would be limited only by economics and competition rather -than by technical restrictions. . . . Armstrong likened the situation +than by technical restrictions. … Armstrong likened the situation that had grown up in radio to that following the invention of the printing press, when governments and ruling interests attempted to control this new instrument of mass communications by imposing @@ -9592,7 +9690,7 @@ some testimony about what they thought a willing buyer would pay to a willing seller, and it was much higher. It was ten times higher than what radio stations pay to perform the same songs for the same period of time. And so the attorneys representing the -webcasters asked the RIAA, . . . "How do you come up with a +webcasters asked the RIAA, … "How do you come up with a rate that's so much higher? Why is it worth more than radio? @@ -9600,7 +9698,7 @@ rate that's so much higher? Why is it worth more than radio? here we have hundreds of thousands of webcasters who want to pay, and that should establish the market rate, and if you set the rate so high, you're going to drive the small webcasters out -of business. . . ." +of business. …" And the RIAA experts said, "Well, we don't really model this as an @@ -9719,6 +9817,7 @@ compliance literature). We pride ourselves on our "free society," but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law. +alcohol prohibition This state of affairs is not without consequence. It is a particularly @@ -9902,11 +10001,11 @@ explains,
then all of a sudden a lot of basic civil liberty protections -evaporate to one degree or another. . . . If you're a copyright +evaporate to one degree or another. … If you're a copyright infringer, how can you hope to have any privacy rights? If you're a copyright infringer, how can you hope to be secure against seizures of your computer? How can you hope to continue to receive Internet -access? . . . Our sensibilities change as soon as we think, "Oh, well, +access? … Our sensibilities change as soon as we think, "Oh, well, but that person's a criminal, a lawbreaker." Well, what this campaign against file sharing has done is turn a remarkable percentage of the American Internet-using population into "lawbreakers." @@ -10023,7 +10122,7 @@ people use drugs, and I think that's the closest analog, [but] many have noted that the war against drugs has eroded all of our civil liberties because it's treated so many Americans as criminals. Well, I think it's fair to say that file sharing is an order of magnitude -larger number of Americans than drug use. . . . If forty to sixty +larger number of Americans than drug use. … If forty to sixty million Americans have become lawbreakers, then we're really on a slippery slope to lose a lot of civil liberties for all forty to sixty million of them. @@ -10170,16 +10269,17 @@ protect noncommercial pornographers. As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's -collection of poems New Hampshire was slated to pass into the public -domain. Eldred wanted to post that collection in his free public -library. But Congress got in the way. As I described in chapter 10, -in 1998, for the eleventh time in forty years, Congress extended the -terms of existing copyrights—this time by twenty years. Eldred -would not be free to add any works more recent than 1923 to his -collection until 2019. Indeed, no copyrighted work would pass into -the public domain until that year (and not even then, if Congress -extends the term again). By contrast, in the same period, more than 1 -million patents will pass into the public domain. +collection of poems New Hampshire was slated to +pass into the public domain. Eldred wanted to post that collection in +his free public library. But Congress got in the way. As I described +in chapter , in 1998, for the eleventh time in forty years, +Congress extended the terms of existing copyrights—this time by +twenty years. Eldred would not be free to add any works more recent +than 1923 to his collection until 2019. Indeed, no copyrighted work +would pass into the public domain until that year (and not even then, +if Congress extends the term again). By contrast, in the same period, +more than 1 million patents will pass into the public domain. @@ -10220,9 +10320,9 @@ different. As you know, the Constitution says,
-Congress has the power to promote the Progress of Science . . . -by securing for limited Times to Authors . . . exclusive Right to -their . . . Writings. . . . +Congress has the power to promote the Progress of Science … +by securing for limited Times to Authors … exclusive Right to +their … Writings. …
@@ -10231,7 +10331,7 @@ clause of Article I, section 8 of our Constitution. Every other clause granting power to Congress simply says Congress has the power to do something—for example, to regulate "commerce among the several states" or "declare War." But here, the "something" is something quite -specific—to "promote . . . Progress"—through means that +specific—to "promote … Progress"—through means that are also specific— by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times." @@ -10518,6 +10618,7 @@ But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter. +Nashville Songwriters Association As we've seen, our constitutional system requires limits on @@ -11065,6 +11166,7 @@ copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments. +GNU/Linux operating system Linux operating system Eagle Forum @@ -11073,6 +11175,8 @@ Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union. +American Association of Law Libraries +National Writers Union But two briefs captured the policy argument best. One made the @@ -11723,11 +11827,15 @@ 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 on the next page +(). 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 + +
The image that will always stick in my head is that evoked by the quote from The New York Times. That "grand experiment" we call the @@ -11811,7 +11919,8 @@ where copyright owners could be identified. Berne Convention (1908) -As I described in chapter 10, formalities in copyright law were +As I described in chapter , formalities in copyright law were removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted. @@ -12075,6 +12184,7 @@ any copyright owner's desire to exercise continued control over his content. It would simply liberate what Kevin Kelly calls the "Dark Content" that fills archives around the world. So when the warriors oppose a change like this, we should ask one simple question: +Kelly, Kevin What does this industry really want? @@ -12129,9 +12239,8 @@ controlled by this dead (and often unfindable) hand of the past. - + CONCLUSION - There are more than 35 million people with the AIDS virus worldwide. Twenty-five million of them live in sub-Saharan Africa. @@ -12210,7 +12319,7 @@ Owns the Knowledge Economy? (New York: The New Press, 2003), 37. However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association -characterized it, "The U.S. government pressured South Africa . . . +characterized it, "The U.S. government pressured South Africa … not to permit compulsory licensing or parallel imports." @@ -12425,6 +12534,7 @@ Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free in the early 1980s. And it included "open source and free software." +academic journals PLoS (Public Library of Science) @@ -12514,6 +12624,8 @@ Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. +"copyleft" licenses +GNU/Linux operating system Linux operating system @@ -12789,7 +12901,7 @@ available at Eminem has just been sued for "sampling" someone else's music. -Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," +Jon Wiederhorn, "Eminem Gets Sued … by a Little Old Lady," mtv.com, 17 September 2003, available at link #68. @@ -12848,12 +12960,9 @@ potential is ever to be realized. - - - - + + AFTERWORD - @@ -12954,8 +13063,9 @@ What made it assured? Well, if we think in terms of the modalities I described in chapter -10, your privacy was assured because of an inefficient architecture -for gathering data and hence a market constraint (cost) on anyone who +, your +privacy was assured because of an inefficient architecture for +gathering data and hence a market constraint (cost) on anyone who wanted to gather that data. If you were a suspected spy for North Korea, working for the CIA, no doubt your privacy would not be assured. But that's because the CIA would (we hope) find it valuable @@ -12977,6 +13087,7 @@ at. You know this because at the side of the page, there's a list of and the function of cookies on the Net, it is easier to collect the data than not. The friction has disappeared, and hence any "privacy" protected by the friction disappears, too. +cookies, Internet Amazon, of course, is not the problem. But we might begin to worry @@ -13064,6 +13175,7 @@ Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds's "Linux" kernel was added to produce the GNU/Linux operating system. +GNU/Linux operating system Linux operating system @@ -13090,6 +13202,9 @@ Finally, consider a very recent example that more directly resonates with the story of this book. This is the shift in the way academic and scientific journals are produced. + + academic journals + As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them @@ -13163,6 +13278,7 @@ distribution of content. But competition in our tradition is presumptively a good—especially when it helps spread knowledge and science. +
@@ -13285,6 +13401,8 @@ Commons license after the book went out of print. He then monitored used book store prices for the book. As predicted, as the number of downloads increased, the used book price for his book increased, as well. +Free for All (Wayner) +Wayner, Peter These are examples of using the Commons to better spread proprietary @@ -13395,8 +13513,9 @@ default is control, and "formalities" are banished. Why? -As I suggested in chapter 10, the motivation to abolish formalities -was a good one. In the world before digital technologies, formalities +As I suggested in chapter , the motivation to abolish formalities was a +good one. In the world before digital technologies, formalities imposed a burden on copyright holders without much benefit. Thus, it was progress when the law relaxed the formal requirements that a copyright owner must bear to protect and secure his work. Those @@ -13711,6 +13830,7 @@ University Press, 1967), 32. The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law's greatest judges, Judge Benjamin Kaplan. +Kaplan, Benjamin
@@ -13820,10 +13940,11 @@ an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance. -File-sharing networks complicate this model by enabling the -spread of content for which the performer has not been paid. But of -course, that's not all the file-sharing networks do. As I described in -chapter 5, they enable four different kinds of sharing: +File-sharing networks complicate this model by enabling the spread of +content for which the performer has not been paid. But of course, +that's not all the file-sharing networks do. As I described in chapter +, they enable +four different kinds of sharing: @@ -13859,7 +13980,8 @@ effect of sharing is actually not very harmful, the need for regulation is significantly weakened. -As I said in chapter 5, the actual harm caused by sharing is +As I said in chapter , the actual harm caused by sharing is controversial. For the purposes of this chapter, however, I assume the harm is real. I assume, in other words, that type A sharing is significantly greater than type B, and is the dominant use of sharing @@ -14332,9 +14454,7 @@ keep your lawyers away.
- - - + NOTES @@ -14422,4 +14542,5 @@ grateful for her perpetual patience and love. +