@@ -244,52 +361,56 @@ Unlike actual law, Internet software has no capacity to punish. It doesn't affect people who aren't online (and only a tiny minority of the world population is). And if you don't like the Internet's system, you can always flip off the modem. -David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000. +David Pogue, "Don't Just Chat, Do Something," New York Times , 30 January 2000.
@@ -318,12 +441,13 @@ power—political, corporate, media, cultural—should be anathema to conservatives. The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and the greatest expression of democracy. William Safire, -"The Great Media Gulp," New York Times, 22 May 2003. +"The Great Media Gulp," New York Times , 22 May 2003. +Safire, William
A glass of water was poured before the microphone in Yonkers; it -sounded like a glass of water being poured. . . . A paper was -crumpled and torn; it sounded like paper and not like a crackling -forest fire. . . . Sousa marches were played from records and a - piano -solo and guitar number were performed. . . . The music was -projected with a live-ness rarely if ever heard before from a radio -"music box." -Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong +sounded like a glass of water being poured. … A paper was crumpled +and torn; it sounded like paper and not like a crackling forest +fire. … Sousa marches were played from records and a piano solo +and guitar number were performed. … The music was projected with a +live-ness rarely if ever heard before from a radio "music +box." +Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209.
I thought Armstrong would invent some kind of a filter to remove -static from our AM radio. I didn't think he'd start a revolution— -start up a whole damn new industry to compete with RCA. -See "Saints: The Heroes and Geniuses of the Electronic Era," First - Electronic -Church of America, at www.webstationone.com/fecha, available at +static from our AM radio. I didn't think he'd start a +revolution— start up a whole damn new industry to compete with +RCA. @@ -572,14 +699,15 @@ Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author described, + See "Saints: The Heroes and Geniuses of the +Electronic Era," First Electronic Church of America, at +www.webstationone.com/fecha, available at link #1 .Sarnoff, David 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. @@ -644,21 +772,19 @@ different. Ideas that were as solid as rock in one age, but that, left to themselves, would crumble in another, are sustained through this subtle corruption of our political -process. RCA had what the Causbys did not: the power to stifle the - effect -of technological change. +process. RCA had what the Causbys did not: the power to stifle the +effect of technological change.Lessing, 226. -There's no single inventor of the Internet. Nor is there any good -date upon which to mark its birth. Yet in a very short time, the - Internet +There's no single inventor of the Internet. Nor is there any good date +upon which to mark its birth. Yet in a very short time, the Internet has become part of ordinary American life. According to the Pew -Internet and American Life Project, 58 percent of Americans had - access -to the Internet in 2002, up from 49 percent two years before. +The Internet has set the stage for this erasure and, pushed by big +media, the law has now affected it. For the first time in our +tradition, the ordinary ways in which individuals create and share +culture fall within the reach of the regulation of the law, which has +expanded to draw within its control a vast amount of culture and +creativity that it never reached before. The technology that preserved +the balance of our history—between uses of our culture that were +free and uses of our culture that were only upon permission—has +been undone. The consequence is that we are less and less a free +culture, more and more a permission culture. -Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look -at Internet Access and the Digital Divide," Pew Internet and American -Life Project, 15 April 2003: 6, available at +Internet and American Life Project, 58 percent of Americans had access +to the Internet in 2002, up from 49 percent two years +before. That number could well exceed two thirds of the nation by the end @@ -676,37 +802,38 @@ don't affect them directly. They are the proper subject of a book about the Internet. But this is not a book about the Internet. +Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at +Internet Access and the Digital Divide," Pew Internet and American +Life Project, 15 April 2003: 6, available at link #2 .-Instead, this book is about an effect of the Internet beyond the - Internet -itself: an effect upon how culture is made. My claim is that the -Internet has induced an important and unrecognized change in that -process. That change will radically transform a tradition that is as old as -the Republic itself. Most, if they recognized this change, would reject -it. Yet most don't even see the change that the Internet has introduced. +Instead, this book is about an effect of the Internet beyond the +Internet itself: an effect upon how culture is made. My claim is that +the Internet has induced an important and unrecognized change in that +process. That change will radically transform a tradition that is as +old as the Republic itself. Most, if they recognized this change, +would reject it. Yet most don't even see the change that the Internet +has introduced. We can glimpse a sense of this change by distinguishing between -commercial and noncommercial culture, and by mapping the law's - regulation -of each. By "commercial culture" I mean that part of our culture -that is produced and sold or produced to be sold. By "noncommercial -culture" I mean all the rest. When old men sat around parks or on +commercial and noncommercial culture, and by mapping the law's +regulation of each. By "commercial culture" I mean that part of our +culture that is produced and sold or produced to be sold. By +"noncommercial culture" I mean all the rest. When old men sat around +parks or on street corners telling stories that kids and others consumed, that was -noncommercial culture. When Noah Webster published his "Reader," -or Joel Barlow his poetry, that was commercial culture. +noncommercial culture. When Noah Webster published his "Reader," or +Joel Barlow his poetry, that was commercial culture. + + Barlow, Joel Webster, Noah At the beginning of our history, and for just about the whole of our tradition, noncommercial culture was essentially unregulated. Of -course, if your stories were lewd, or if your song disturbed the peace, -then the law might intervene. But the law was never directly concerned -with the creation or spread of this form of culture, and it left this - culture -"free." The ordinary ways in which ordinary individuals shared and -transformed their culture—telling stories, reenacting scenes from plays -or TV, participating in fan clubs, sharing music, making tapes—were -left alone by the law. +course, if your stories were lewd, or if your song disturbed the +peace, then the law might intervene. But the law was never directly +concerned with the creation or spread of this form of culture, and it +left this culture "free." The ordinary ways in which ordinary +individuals shared and transformed their culture—telling +stories, reenacting scenes from plays or TV, participating in fan +clubs, sharing music, making tapes—were left alone by the law. The focus of the law was on commercial creativity. At first slightly, @@ -714,7 +841,6 @@ then quite extensively, the law protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial marketplace. - -This is also, of -course, an important part of creativity and culture, and it has become -an increasingly important part in America. But in no sense was it - dominant -within our tradition. It was instead just one part, a controlled -part, balanced with the free. +This is also, of course, an important part of creativity and culture, +and it has become an increasingly important part in America. But in no +sense was it dominant within our tradition. It was instead just one +part, a controlled part, balanced with the free.Brandeis, Louis D. This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. @@ -724,75 +850,72 @@ right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, 198–200. + Brandeis, Louis D. This rough divide between the free and the controlled has now been erased. -The Internet has set the stage for this erasure and, -pushed by big media, the law has now affected it. For the first time in -our tradition, the ordinary ways in which individuals create and share -culture fall within the reach of the regulation of the law, which has - expanded -to draw within its control a vast amount of culture and - creativity -that it never reached before. The technology that preserved the -balance of our history—between uses of our culture that were free and -uses of our culture that were only upon permission—has been undone. -The consequence is that we are less and less a free culture, more and -more a permission culture. + -See Jessica Litman, Digital Copyright (New York: Prometheus Books, +See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13. -+ Litman, Jessica -This change gets justified as necessary to protect commercial - creativity. -And indeed, protectionism is precisely its motivation. But the -protectionism that justifies the changes that I will describe below is not -the limited and balanced sort that has defined the law in the past. This -is not a protectionism to protect artists. It is instead a protectionism -to protect certain forms of business. Corporations threatened by the -potential of the Internet to change the way both commercial and -noncommercial culture are made and shared have united to induce -lawmakers to use the law to protect them. It is the story of RCA and -Armstrong; it is the dream of the Causbys. +This change gets justified as necessary to protect commercial +creativity. And indeed, protectionism is precisely its +motivation. But the protectionism that justifies the changes that I +will describe below is not the limited and balanced sort that has +defined the law in the past. This is not a protectionism to protect +artists. It is instead a protectionism to protect certain forms of +business. Corporations threatened by the potential of the Internet to +change the way both commercial and noncommercial culture are made and +shared have united to induce lawmakers to use the law to protect +them. It is the story of RCA and Armstrong; it is the dream of the +Causbys. For the Internet has unleashed an extraordinary possibility for many -to participate in the process of building and cultivating a culture that -reaches far beyond local boundaries. That power has changed the - marketplace -for making and cultivating culture generally, and that change -in turn threatens established content industries. The Internet is thus to -the industries that built and distributed content in the twentieth - century -what FM radio was to AM radio, or what the truck was to the -railroad industry of the nineteenth century: the beginning of the end, -or at least a substantial transformation. Digital technologies, tied to the -Internet, could produce a vastly more competitive and vibrant market -for building and cultivating culture; that market could include a much -wider and more diverse range of creators; those creators could produce -and distribute a much more vibrant range of creativity; and depending -upon a few important factors, those creators could earn more on average -from this system than creators do today—all so long as the RCAs of our -day don't use the law to protect themselves against this competition. - --Yet, as I argue in the pages that follow, that is precisely what is - happening -in our culture today. These modern-day equivalents of the early -twentieth-century radio or nineteenth-century railroads are using their -power to get the law to protect them against this new, more efficient, -more vibrant technology for building culture. They are succeeding in -their plan to remake the Internet before the Internet remakes them. +to participate in the process of building and cultivating a culture +that reaches far beyond local boundaries. That power has changed the +marketplace for making and cultivating culture generally, and that +change in turn threatens established content industries. The Internet +is thus to the industries that built and distributed content in the +twentieth century what FM radio was to AM radio, or what the truck was +to the railroad industry of the nineteenth century: the beginning of +the end, or at least a substantial transformation. Digital +technologies, tied to the Internet, could produce a vastly more +competitive and vibrant market for building and cultivating culture; +that market could include a much wider and more diverse range of +creators; those creators could produce and distribute a much more +vibrant range of creativity; and depending upon a few important +factors, those creators could earn more on average from this system +than creators do today—all so long as the RCAs of our day don't +use the law to protect themselves against this competition. + ++Yet, as I argue in the pages that follow, that is precisely what is +happening in our culture today. These modern-day equivalents of the +early twentieth-century radio or nineteenth-century railroads are +using their power to get the law to protect them against this new, +more efficient, more vibrant technology for building culture. They are +succeeding in their plan to remake the Internet before the Internet +remakes them. It doesn't seem this way to many. The battles over copyright and the @@ -801,12 +924,11 @@ Internet seem remote to most. To the few who follow them, they seem mainly about a much simpler brace of questions—whether "piracy" will be permitted, and whether "property" will be protected. The "war" that has been waged against the technologies of the Internet—what - Motion -Picture Association of America (MPAA) president Jack Valenti +Motion Picture Association of America (MPAA) president Jack Valenti calls his "own terrorist war" —has been framed as a battle about the rule of law and respect for property. To know which side to take in this war, most think that we need only decide whether we're for property or @@ -814,12 +936,11 @@ against it. Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates -Use New Tools to Turn the Net into an Illicit Video Club," New York -Times, 17 January 2002. +Use New Tools to Turn the Net into an Illicit Video Club," New York +Times , 17 January 2002.If those really were the choices, then I would be with Jack Valenti -and the content industry. I, too, am a believer in property, and - especially -in the importance of what Mr. Valenti nicely calls "creative - property." -I believe that "piracy" is wrong, and that the law, properly tuned, -should punish "piracy," whether on or off the Internet. +and the content industry. I, too, am a believer in property, and +especially in the importance of what Mr. Valenti nicely calls +"creative property." I believe that "piracy" is wrong, and that the +law, properly tuned, should punish "piracy," whether on or off the +Internet. But those simple beliefs mask a much more fundamental question @@ -832,93 +953,90 @@ These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. -And as Professor Neil Netanel powerfully argues, + +-Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law -Journal 106 (1996): 283. +And as Professor Neil Netanel powerfully argues, + -copyright law, - properly -balanced, protected creators against private control. Our tradition -was thus neither Soviet nor the tradition of patrons. It instead carved out -a wide berth within which creators could cultivate and extend our culture. +copyright law, properly balanced, protected creators against private +control. Our tradition was thus neither Soviet nor the tradition of +patrons. It instead carved out a wide berth within which creators +could cultivate and extend our culture.+Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law +Journal 106 (1996): 283. +Netanel, Neil Weinstock Yet the law's response to the Internet, when tied to changes in the -technology of the Internet itself, has massively increased the effective -regulation of creativity in America. To build upon or critique the - culture -around us one must ask, Oliver Twist–like, for permission first. -Permission is, of course, often granted—but it is not often granted to -the critical or the independent. We have built a kind of cultural - nobility; -those within the noble class live easily; those outside it don't. But it -is nobility of any form that is alien to our tradition. - - --The story that follows is about this war. Is it 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 otherwise. It is not a - morality -tale. Nor is it a call to jihad against an industry. - --It is instead an effort to understand a hopelessly destructive war - inspired -by the technologies of the Internet but reaching far beyond its -code. And by understanding this battle, it is an effort to map peace. -There is no good reason for the current struggle around Internet - technologies -to continue. There will be great harm to our tradition and -culture if it is allowed to continue unchecked. We must come to - understand -the source of this war. We must resolve it soon. - --Like the Causbys' battle, this war is, in part, about "property." -The property of this war is not as tangible as the Causbys', and no -innocent chicken has yet to lose its life. Yet the ideas surrounding this -"property" are as obvious to most as the Causbys' claim about the - sacredness -of their farm was to them. We are the Causbys. Most of us -take for granted the extraordinarily powerful claims that the owners of -"intellectual property" now assert. Most of us, like the Causbys, treat -these claims as obvious. And hence we, like the Causbys, object when -a new technology interferes with this property. It is as plain to us as it -was to them that the new technologies of the Internet are "trespassing" -upon legitimate claims of "property." It is as plain to us as it was to -them that the law should intervene to stop this trespass. - +technology of the Internet itself, has massively increased the +effective regulation of creativity in America. To build upon or +critique the culture around us one must ask, Oliver Twist–like, +for permission first. Permission is, of course, often +granted—but it is not often granted to the critical or the +independent. We have built a kind of cultural nobility; those within +the noble class live easily; those outside it don't. But it is +nobility of any form that is alien to our tradition. ++The story that follows is about this war. Is it 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 +otherwise. It is not a morality tale. Nor is it a call to jihad +against an industry. + ++It is instead an effort to understand a hopelessly destructive war +inspired by the technologies of the Internet but reaching far beyond +its code. And by understanding this battle, it is an effort to map +peace. There is no good reason for the current struggle around +Internet technologies to continue. There will be great harm to our +tradition and culture if it is allowed to continue unchecked. We must +come to understand the source of this war. We must resolve it soon. + ++ Causby, Thomas Lee + Causby, Tinie +Like the Causbys' battle, this war is, in part, about "property." The +property of this war is not as tangible as the Causbys', and no +innocent chicken has yet to lose its life. Yet the ideas surrounding +this "property" are as obvious to most as the Causbys' claim about the +sacredness of their farm was to them. We are the Causbys. Most of us +take for granted the extraordinarily powerful claims that the owners +of "intellectual property" now assert. Most of us, like the Causbys, +treat these claims as obvious. And hence we, like the Causbys, object +when a new technology interferes with this property. It is as plain to +us as it was to them that the new technologies of the Internet are +"trespassing" upon legitimate claims of "property." It is as plain to +us as it was to them that the law should intervene to stop this +trespass. + ++ Causby, Thomas Lee Causby, Tinie And thus, when geeks and technologists defend their Armstrong or -Wright brothers technology, most of us are simply unsympathetic. - Common -sense does not revolt. Unlike in the case of the unlucky Causbys, -common sense is on the side of the property owners in this war. Unlike +Wright brothers technology, most of us are simply unsympathetic. +Common sense does not revolt. Unlike in the case of the unlucky +Causbys, common sense is on the side of the property owners in this +war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side. -My hope is to push this common sense along. I have become - increasingly -amazed by the power of this idea of intellectual property -and, more importantly, its power to disable critical thought by policy -makers and citizens. There has never been a time in our history when -more of our "culture" was as "owned" as it is now. And yet there has -never been a time when the concentration of power to control the uses -of culture has been as unquestioningly accepted as it is now. +My hope is to push this common sense along. I have become increasingly +amazed by the power of this idea of intellectual property and, more +importantly, its power to disable critical thought by policy makers +and citizens. There has never been a time in our history when more of +our "culture" was as "owned" as it is now. And yet there has never +been a time when the concentration of power to control the + uses of culture has been as unquestioningly +accepted as it is now.-The puzzle is, Why? -Is it because we have come to understand a truth about the value -and importance of absolute property over ideas and culture? Is it - because -we have discovered that our tradition of rejecting such an - absolute -claim was wrong? +The puzzle is, Why? Is it because we have come to understand a truth +about the value and importance of absolute property over ideas and +culture? Is it because we have discovered that our tradition of +rejecting such an absolute claim was wrong? Or is it because the idea of absolute property over ideas and culture @@ -932,22 +1050,22 @@ radical shift away from our tradition of free culture yet another example of a political system captured by a few powerful special interests? -Does common sense lead to the extremes on this question because -common sense actually believes in these extremes? Or does common -sense stand silent in the face of these extremes because, as with - Armstrong -versus RCA, the more powerful side has ensured that it has the -more powerful view? +Does common sense lead to the extremes on this question because common +sense actually believes in these extremes? Or does common sense stand +silent in the face of these extremes because, as with Armstrong versus +RCA, the more powerful side has ensured that it has the more powerful +view? ++ Causby, Thomas Lee Causby, Tinie -I don't mean to be mysterious. My own views are resolved. I believe -it was right for common sense to revolt against the extremism of the -Causbys. I believe it would be right for common sense to revolt against -the extreme claims made today on behalf of "intellectual property." -What the law demands today is increasingly as silly as a sheriff - arresting -an airplane for trespass. But the consequences of this silliness will -be much more profound. +I don't mean to be mysterious. My own views are resolved. I believe it +was right for common sense to revolt against the extremism of the +Causbys. I believe it would be right for common sense to revolt +against the extreme claims made today on behalf of "intellectual +property." What the law demands today is increasingly as silly as a +sheriff arresting an airplane for trespass. But the consequences of +this silliness will be much more profound. @@ -957,25 +1075,22 @@ ideas. My method is not the usual method of an academic. I don't want to -plunge you into a complex argument, buttressed with references to - obscure -French theorists—however natural that is for the weird sort we -academics have become. Instead I begin in each part with a collection -of stories that set a context within which these apparently simple ideas -can be more fully understood. +plunge you into a complex argument, buttressed with references to +obscure French theorists—however natural that is for the weird +sort we academics have become. Instead I begin in each part with a +collection of stories that set a context within which these apparently +simple ideas can be more fully understood. The two sections set up the core claim of this book: that while the -Internet has indeed produced something fantastic and new, our - government, -pushed by big media to respond to this "something new," is +Internet has indeed produced something fantastic and new, our +government, pushed by big media to respond to this "something new," is destroying something very old. Rather than understanding the changes the Internet might permit, and rather than taking time to let "common -sense" resolve how best to respond, we are allowing those most - threatened -by the changes to use their power to change the law—and more -importantly, to use their power to change something fundamental about -who we have always been. +sense" resolve how best to respond, we are allowing those most +threatened by the changes to use their power to change the +law—and more importantly, to use their power to change something +fundamental about who we have always been. We allow this, I believe, not because it is right, and not because @@ -987,16 +1102,18 @@ to which most of us remain oblivious.
@@ -1005,37 +1122,35 @@ A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying copies and disposing of them for his own use.+ -Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). + Bach v.Longman , 98 Eng. Rep. 1274 (1777) (Mansfield).
@@ -1668,7 +1801,7 @@ 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.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, in fact, any special knowledge of the art. It can be employed without preliminary study, without a darkroom and without chemicals. - Coe, Brian -Brian Coe, The Birth of Photography (New York: Taplinger Publishing, +Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53. +Coe, Brian
@@ -2026,10 +2161,10 @@ 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 @@ -2078,7 +2213,7 @@ world and presented them as slide shows with text. Some offered open letters. There were sound recordings. There was anger and frustration. There were attempts to provide context. There was, in short, an extraordinary worldwide barn raising, in the sense Mike Godwin uses -the term in his book Cyber Rights, around a news event that had +the term in his book @@ -2102,13 +2237,13 @@ that this mix of captured images, sound, and commentary can be widely spread practically instantaneously.Cyber Rights , around a news event that had captured the attention of the world. There was ABC and CBS, but there was also the Internet.-September 11 was not an aberration. It was a beginning. Around -the same time, a form of communication that has grown dramatically -was just beginning to come into public consciousness: the Web-log, or -blog. The blog is a kind of public diary, and within some cultures, 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. +September 11 was not an aberration. It was a beginning. Around the +same time, a form of communication that has grown dramatically was +just beginning to come into public consciousness: the Web-log, or +blog. The blog is a kind of public diary, and within some cultures, +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.But in the United States, blogs have taken on a very different @@ -2151,8 +2286,8 @@ persuade each other of the "right" result, and in criminal cases at least, they had to agree upon a unanimous result for the process to come to an end. -See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans. -Henry Reeve (New York: Bantam Books, 2000), ch. 16. +See, for example, Alexis de Tocqueville, Democracy in America , +bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.@@ -2160,37 +2295,31 @@ Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some are pushing to create just such an institution. --And in some towns in -New England, something close to deliberation remains. But for most -of us for most of the time, there is no time or place for "democratic - deliberation" -to occur. - -Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of - Political -Philosophy 10 (2) (2002): 129. - -More bizarrely, there is generally not even permission for it to - occur. -We, the most powerful democracy in the world, have developed a -strong norm against talking about politics. It's fine to talk about - politics -with people you agree with. But it is rude to argue about politics -with people you disagree with. Political discourse becomes isolated, -and isolated discourse becomes more extreme. ++And in some towns in New England, something close to deliberation +remains. But for most of us for most of the time, there is no time or +place for "democratic deliberation" to occur. + +Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of +Political Philosophy 10 (2) (2002): 129. ++More bizarrely, there is generally not even permission for it to +occur. We, the most powerful democracy in the world, have developed a +strong norm against talking about politics. It's fine to talk about +politics with people you agree with. But it is rude to argue about +politics with people you disagree with. Political discourse becomes +isolated, and isolated discourse becomes more extreme. We say what our -friends want to hear, and hear very little beyond what our friends say. + -Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), +Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), 65–80, 175, 182, 183, 192. -
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. @@ -2677,13 +2799,13 @@ 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." - -+
@@ -2866,79 +2998,79 @@ introduction of automatic music players has not deprived any composer of anything he had before their introduction." Rather, the machines increased the sales of sheet music.@@ -2830,9 +2961,10 @@ rights. To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th 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 +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
+@@ -3128,102 +3250,99 @@ United Artists Television, Inc.).
-Our point here is that unlike the problem of whether you have -any copyright protection at all, the problem here is whether - copyright -holders who are already compensated, who already have a -monopoly, should be permitted to extend that monopoly. . . . The +Our point here is that unlike the problem of whether you have any +copyright protection at all, the problem here is whether copyright +holders who are already compensated, who already have a monopoly, +should be permitted to extend that monopoly. … The question here is how much compensation they should have and how far back they should carry their right to compensation. + -Copyright Law Revision—CATV, 216 (statement of Edwin M. - Zimmerman, -acting assistant attorney general). +Copyright Law Revision—CATV, 216 (statement of Edwin M. +Zimmerman, acting assistant attorney general). + Zimmerman, Edwin Zimmerman, Edwin
-By the above decision . . . near 200,000 pounds worth of what -was honestly purchased at public sale, and which was yesterday -thought property is now reduced to nothing. The Booksellers of -London and Westminster, many of whom sold estates and houses -to purchase Copy-right, are in a manner ruined, and those who -after many years industry thought they had acquired a - competency -to provide for their families now find themselves without a -shilling to devise to their successors. +By the above decision … near 200,000 pounds worth of what was +honestly purchased at public sale, and which was yesterday thought +property is now reduced to nothing. The Booksellers of London and +Westminster, many of whom sold estates and houses to purchase +Copy-right, are in a manner ruined, and those who after many years +industry thought they had acquired a competency to provide for their +families now find themselves without a shilling to devise to their +successors. -@@ -4822,35 +4868,33 @@ Ibid. "Ruined" is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords -meant that the booksellers could no longer control how culture in - England -would grow and develop. Culture in England was thereafter free. -Not in the sense that copyrights would not be respected, for of course, -for a limited time after a work was published, the bookseller had an - exclusive -right to control the publication of that book. And not in the -sense that books could be stolen, for even after a copyright expired, you -still had to buy the book from someone. But free in the sense that the +meant that the booksellers could no longer control how culture in +England would grow and develop. Culture in England was thereafter + Ibid. free . Not in the sense that copyrights would not +be respected, for of course, for a limited time after a work was +published, the bookseller had an exclusive right to control the +publication of that book. And not in the sense that books could be +stolen, for even after a copyright expired, you still had to buy the +book from someone. Butfree in the sense that the culture and its growth would no longer be controlled by a small group -of publishers. As every free market does, this free market of free culture -would grow as the consumers and producers chose. English culture -would develop as the many English readers chose to let it develop— -chose in the books they bought and wrote; chose in the memes they -repeated and endorsed. Chose in a competitive context, not a context -in which the choices about what culture is available to people and -how they get access to it are made by the few despite the wishes of -the many. --At least, this was the rule in a world where the Parliament is - antimonopoly, -resistant to the protectionist pleas of publishers. In a world -where the Parliament is more pliant, free culture would be less - protected. +of publishers. As every free market does, this free market of free +culture would grow as the consumers and producers chose. English +culture would develop as the many English readers chose to let it +develop— chose in the books they bought and wrote; chose in the +memes they repeated and endorsed. Chose in a +competitive +context , not a context in which the choices about what +culture is available to people and how they get access to it are made +by the few despite the wishes of the many. ++At least, this was the rule in a world where the Parliament is +antimonopoly, resistant to the protectionist pleas of publishers. In a +world where the Parliament is more pliant, free culture would be less +protected. -
-The Simpsons fiasco was for me a great lesson in the gulf - between -what lawyers find irrelevant in some abstract sense, and -what is crushingly relevant in practice to those of us actually -trying to make and broadcast documentaries. I never had any -doubt that it was "clearly fair use" in an absolute legal sense. But -I couldn't rely on the concept in any concrete way. Here's why: +The Simpsons fiasco was for me a great lesson in the gulf between what +lawyers find irrelevant in some abstract sense, and what is crushingly +relevant in practice to those of us actually trying to make and +broadcast documentaries. I never had any doubt that it was "clearly +fair use" in an absolute legal sense. But I couldn't rely on the +concept in any concrete way. Here's why:-Before our films can be broadcast, the network requires -that we buy Errors and Omissions insurance. The carriers - require -a detailed "visual cue sheet" listing the source and - licensing -status of each shot in the film. They take a dim view of -"fair use," and a claim of "fair use" can grind the application -process to a halt. +Before our films can be broadcast, the network requires that we buy +Errors and Omissions insurance. The carriers require a detailed +"visual cue sheet" listing the source and licensing status of each +shot in the film. They take a dim view of "fair use," and a claim of +"fair use" can grind the application process to a halt. -I probably never should have asked Matt Groening in the -first place. But I knew (at least from folklore) that Fox had a -history of tracking down and stopping unlicensed Simpsons -usage, just as George Lucas had a very high profile litigating -Star Wars usage. So I decided to play by the book, thinking -that we would be granted free or cheap license to four seconds -of Simpsons. As a documentary producer working to - exhaustion -on a shoestring, the last thing I wanted was to risk legal -trouble, even nuisance legal trouble, and even to defend a +I probably never should have asked Matt Groening in the first +place. But I knew (at least from folklore) that Fox had a history of +tracking down and stopping unlicensed Simpsons usage, just as George +Lucas had a very high profile litigatingStar Wars usage. So I decided +to play by the book, thinking that we would be granted free or cheap +license to four seconds ofSimpsons . As a documentary producer working +to exhaustion on a shoestring, the last thing I wanted was to risk +legal trouble, even nuisance legal trouble, and even to defend a principle. +Lucas, George -I did, in fact, speak with one of your colleagues at Stanford -Law School . . . who confirmed that it was fair use. He also -confirmed that Fox would "depose and litigate you to within -an inch of your life," regardless of the merits of my claim. He -made clear that it would boil down to who had the bigger - legal -department and the deeper pockets, me or them. +I did, in fact, speak with one of your colleagues at Stanford Law +School … who confirmed that it was fair use. He also confirmed +that Fox would "depose and litigate you to within an inch of your +life," regardless of the merits of my claim. He made clear that it +would boil down to who had the bigger legal department and the deeper +pockets, me or them. @@ -5040,26 +5075,26 @@ money.
+-So we very mechanically went about looking up the film clips. -We made some artistic decisions about what film clips to - include—of -course we were going to use the "Make my day" clip -from Dirty Harry. But you then need to get the guy on the ground -who's wiggling under the gun and you need to get his - permission. -And then you have to decide what you are going to pay -him. +So we very mechanically went about looking up the film clips. We made +some artistic decisions about what film clips to include—of +course we were going to use the "Make my day" clip from Dirty +Harry . But you then need to get the guy on the ground who's wiggling +under the gun and you need to get his permission. And then you have +to decide what you are going to pay him.-We decided that it would be fair if we offered them the - dayplayer -rate for the right to reuse that performance. We're talking -about a clip of less than a minute, but to reuse that performance -in the CD-ROM the rate at the time was about $600. -So we had to identify the people—some of them were hard to -identify because in Eastwood movies you can't tell who's the guy -crashing through the glass—is it the actor or is it the stuntman? -And then we just, we put together a team, my assistant and some -others, and we just started calling people. +We decided that it would be fair if we offered them the dayplayer rate +for the right to reuse that performance. We're talking about a clip of +less than a minute, but to reuse that performance in the CD-ROM the +rate at the time was about $600. So we had to identify the +people—some of them were hard to identify because in Eastwood +movies you can't tell who's the guy crashing through the +glass—is it the actor or is it the stuntman? And then we just, +we put together a team, my assistant and some others, and we just +started calling people.
-Everyone thought it would be too hard. Everyone just threw up -their hands and said, "Oh, my gosh, a film, it's so many - copyrights, -there's the music, there's the screenplay, there's the director, -there's the actors." But we just broke it down. We just put it into -its constituent parts and said, "Okay, there's this many actors, this -many directors, . . . this many musicians," and we just went at it -very systematically and cleared the rights. +Everyone thought it would be too hard. Everyone just threw up their +hands and said, "Oh, my gosh, a film, it's so many copyrights, there's +the music, there's the screenplay, there's the director, there's the +actors." But we just broke it down. We just put it into its +constituent parts and said, "Okay, there's this many actors, this many +directors, … this many musicians," and we just went at it very +systematically and cleared the rights.
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.
--Absolutely. I think that if there were some fair-licensing - mechanism—where -you weren't subject to hold-ups and you weren't +Absolutely. I think that if there were some fair-licensing +mechanism—where you weren't subject to hold-ups and you weren't subject to estranged former spouses—you'd see a lot more of this work, because it wouldn't be so daunting to try to put together a -retrospective of someone's career and meaningfully illustrate it -with lots of media from that person's career. You'd build in a cost -as the producer of one of these things. You'd build in a cost of - paying -X dollars to the talent that performed. But it would be a -known cost. That's the thing that trips everybody up and makes -this kind of product hard to get off the ground. If you knew I have -a hundred minutes of film in this product and it's going to cost me -X, then you build your budget around it, and you can get - investments -and everything else that you need to produce it. But if you -say, "Oh, I want a hundred minutes of something and I have no -idea what it's going to cost me, and a certain number of people are -going to hold me up for money," then it becomes difficult to put -one of these things together. +retrospective of someone's career and meaningfully illustrate it with +lots of media from that person's career. You'd build in a cost as the +producer of one of these things. You'd build in a cost of paying X +dollars to the talent that performed. But it would be a known +cost. That's the thing that trips everybody up and makes this kind of +product hard to get off the ground. If you knew I have a hundred +minutes of film in this product and it's going to cost me X, then you +build your budget around it, and you can get investments and +everything else that you need to produce it. But if you say, "Oh, I +want a hundred minutes of something and I have no idea what it's going +to cost me, and a certain number of people are going to hold me up for +money," then it becomes difficult to put one of these things together.
-Do you remember when Dan Quayle was interacting with - Murphy -Brown? Remember that back and forth surreal experience of -a politician interacting with a fictional television character? If you -were a graduate student wanting to study that, and you wanted to -get those original back and forth exchanges between the two, the +Do you remember when Dan Quayle was interacting with Murphy Brown? +Remember that back and forth surreal experience of a politician +interacting with a fictional television character? If you were a +graduate student wanting to study that, and you wanted to get those +original back and forth exchanges between the two, the -60 Minutes episode that came out after it . . . it would be almost -impossible. . . . Those materials are almost unfindable. . . . + 60 Minutes episode that came out after it … it would be almost +impossible. … Those materials are almost unfindable. …
-It looks like there's about two to three million recordings of - music. -Ever. There are about a hundred thousand theatrical releases -of movies, . . . and about one to two million movies [distributed] -during the twentieth century. There are about twenty-six million -different titles of books. All of these would fit on computers that -would fit in this room and be able to be afforded by a small - company. -So we're at a turning point in our history. Universal access is -the goal. And the opportunity of leading a different life, based on -this, is . . . thrilling. It could be one of the things humankind -would be most proud of. Up there with the Library of Alexandria, -putting a man on the moon, and the invention of the printing -press. +It looks like there's about two to three million recordings of music. +Ever. There are about a hundred thousand theatrical releases of +movies, … and about one to two million movies [distributed] during +the twentieth century. There are about twenty-six million different +titles of books. All of these would fit on computers that would fit in +this room and be able to be afforded by a small company. So we're at +a turning point in our history. Universal access is the goal. And the +opportunity of leading a different life, based on this, is +… thrilling. It could be one of the things humankind would be most +proud of. Up there with the Library of Alexandria, putting a man on +the moon, and the invention of the printing press.
-No matter the lengthy arguments made, no matter the charges -and the counter-charges, no matter the tumult and the shouting, -reasonable men and women will keep returning to the - fundamental -issue, the central theme which animates this entire debate: - Creative -property owners must be accorded the same rights and protection -resident in all other property owners in the nation. That is the issue. +No matter the lengthy arguments made, no matter the charges and the +counter-charges, no matter the tumult and the shouting, reasonable men +and women will keep returning to the fundamental issue, the central +theme which animates this entire debate: Creative property +owners must be accorded the same rights and protection resident in all +other property owners in the nation . That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest.Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. -4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the - Subcommittee -on Courts, Civil Liberties, and the Administration of Justice of -the Committee on the Judiciary of the House of Representatives, 97th -Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti). +4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the +Subcommittee on Courts, Civil Liberties, and the Administration of +Justice of the Committee on the Judiciary of the House of +Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack +Valenti).
@@ -7775,6 +7710,7 @@ the VCR responsible.@@ -7759,10 +7694,10 @@ but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important. -Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, + Sony Corporation of America v.Universal City Studios, Inc ., 464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the VCR. See -James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of -the VCR (New York: W. W. Norton, 1987), 270–71. +James Lardner,Fast Forward: Hollywood, the Japanese, and the Onslaught of +the VCR (New York: W. W. Norton, 1987), 270–71.
FCC Oversight: Hearing Before the Senate Commerce, Science and Transportation Committee, 108th Cong., 1st sess. (22 May 2003) -(statement of Senator John McCain).
@@ -8015,7 +7961,7 @@ integration may matter.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 @@ -7980,8 +7925,9 @@ systems now distribute News Corp. content in Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that system will serve the same function in the United States. -James Fallows, "The Age of Murdoch," Atlantic Monthly (September +James Fallows, "The Age of Murdoch," Atlantic Monthly (September 2003): 89. +Fallows, James
@@ -8102,29 +8043,27 @@ their channel and then distribute worldwide everything that goes through their controlled distribution system, then what you get is fewer and fewer actual voices participating in the process. [We -u]sed to have dozens and dozens of thriving independent - production -companies producing television programs. Now you have less -than a handful. +u]sed to have dozens and dozens of thriving independent production +companies producing television programs. Now you have less than a +handful. -"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill +"Barry Diller Takes on Media Deregulation," Now with Bill Moyers , Bill Moyers, 25 April 2003, edited transcript available atlink #31 .
@@ -8865,12 +8769,11 @@ eMusic opposes music piracy. We are a distributor of copyrighted material, and we want to protect those rights. -But building a technology fortress that locks in the clout of -the major labels is by no means the only way to protect copyright -interests, nor is it necessarily the best. It is simply too early to - answer -that question. Market forces operating naturally may very -well produce a totally different industry model. +But building a technology fortress that locks in the clout of the +major labels is by no means the only way to protect copyright +interests, nor is it necessarily the best. It is simply too early to +answer that question. Market forces operating naturally may very well +produce a totally different industry model. This is a critical point. The choices that industry sectors make @@ -8882,17 +8785,14 @@ which they will be able to access digital media and the equipment that they will require to do so. Poor choices made this early in the game will retard the growth of this market, hurting everyone's interests. + +WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital +Entertainment on the Internet and Other Media: Hearing Before the +Subcommittee on Telecommunications, Trade, and Consumer Protection, +House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter +Harter, vice president, Global Public Policy and Standards, +EMusic.com), available in LEXIS, Federal Document Clearing House +Congressional Testimony File. - WIPO and the DMCA One Year Later: Assessing Consumer Access to -Digital Entertainment on the Internet and Other Media: Hearing Before -the Subcommittee on Telecommunications, Trade, and Consumer - Protection, -House Committee on Commerce, 106th Cong. 29 (1999) (statement -of Peter Harter, vice president, Global Public Policy and Standards, - EMusic.com), -available in LEXIS, Federal Document Clearing House - Congressional -Testimony File. -
+BMW I asked why, with all the storage capacity and computer power in the car, there was no way to play MP3 files. I was told that BMW engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this - forward -for release stateside. Even today, no new cars are sold in the -United States with bona fide MP3 players. . . . - Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June +forward for release stateside. Even today, no new cars are sold in the +United States with bona fide MP3 players. … + + +Rafe Needleman, "Driving in Cars with MP3s," Business 2.0 , 16 June 2003, available at -link #43 . I am grateful to Dr. Mohammad Al-Ubaydli -for this example. +link #43 . I am grateful +to Dr. Mohammad Al-Ubaydli for this example. +Needleman, Rafe
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 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 restrictive licenses on it. This tyranny -was broken only when it became possible for men freely to - acquire -printing presses and freely to run them. FM in this sense -was as great an invention as the printing presses, for it gave radio -the opportunity to strike off its shackles. - Lessing, 239. +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 +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 +restrictive licenses on it. This tyranny was broken only when it +became possible for men freely to acquire printing presses and freely +to run them. FM in this sense was as great an invention as the +printing presses, for it gave radio the opportunity to strike off its +shackles. + +Lessing, 239.
-then all of a sudden a lot of basic civil liberty protections - 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, 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." +then all of a sudden a lot of basic civil liberty protections +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, +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."
So when we're talking about numbers like forty to sixty million Americans that are essentially copyright infringers, you create a situation where the civil liberties of those people are very much in -peril in a general matter. [I don't] think [there is any] analog -where you could randomly choose any person off the street and be -confident that they were committing an unlawful act that could -put them on the hook for potential felony liability or hundreds of -millions of dollars of civil liability. Certainly we all speed, but -speeding isn't the kind of an act for which we routinely forfeit -civil liberties. Some 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 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. +peril in a general matter. [I don't] think [there is any] analog where +you could randomly choose any person off the street and be confident +that they were committing an unlawful act that could put them on the +hook for potential felony liability or hundreds of millions of dollars +of civil liability. Certainly we all speed, but speeding isn't the +kind of an act for which we routinely forfeit civil liberties. Some +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 +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.
-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. …
-justice scalia: You say that the functional equivalent of an - unlimited -time would be a violation [of the Constitution], but that's -precisely the argument that's being made by petitioners here, that -a limited time which is extendable is the functional equivalent of -an unlimited time. +justice scalia: You say that the functional equivalent of an unlimited +time would be a violation [of the Constitution], but that's precisely +the argument that's being made by petitioners here, that a limited +time which is extendable is the functional equivalent of an unlimited +time.
In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of -copyright perpetuity. The public domain has been a grand - experiment, -one that should not be allowed to die. The ability to draw -freely on the entire creative output of humanity is one of the - reasons -we live in a time of such fruitful creative ferment. +copyright perpetuity. The public domain has been a grand experiment, +one that should not be allowed to die. The ability to draw freely on +the entire creative output of humanity is one of the reasons we live +in a time of such fruitful creative ferment.
@@ -14111,8 +13855,9 @@ a copyright runs. And they don't make sense as an amorphous grant. Consider each limitation in turn. -Term: If Congress wants to grant a derivative right, then that right -should be for a much shorter term. It makes sense to protect John + Term: If Congress wants to grant a derivative +right, then that right should be for a much shorter term. It makes +sense to protect John Grisham's right to sell the movie rights to his latest novel (or at least @@ -14120,100 +13865,91 @@ I'm willing to assume it does); but it does not make sense for that right to run for the same term as the underlying copyright. The derivative right could be important in inducing creativity; it is not important long after the creative work is done. +Grisham, John -Scope: Likewise should the scope of derivative rights be narrowed. -Again, there are some cases in which derivative rights are important. -Those should be specified. But the law should draw clear lines around -regulated and unregulated uses of copyrighted material. When all -"reuse" of creative material was within the control of businesses, - perhaps -it made sense to require lawyers to negotiate the lines. It no longer -makes sense for lawyers to negotiate the lines. Think about all the - creative -possibilities that digital technologies enable; now imagine - pouring -molasses into the machines. That's what this general requirement -of permission does to the creative process. Smothers it. + Scope: Likewise should the scope of derivative +rights be narrowed. Again, there are some cases in which derivative +rights are important. Those should be specified. But the law should +draw clear lines around regulated and unregulated uses of copyrighted +material. When all "reuse" of creative material was within the control +of businesses, perhaps it made sense to require lawyers to negotiate +the lines. It no longer makes sense for lawyers to negotiate the +lines. Think about all the creative possibilities that digital +technologies enable; now imagine pouring molasses into the +machines. That's what this general requirement of permission does to +the creative process. Smothers it.-This was the point that Alben made when describing the making of -the Clint Eastwood CD. While it makes sense to require negotiation -for foreseeable derivative rights—turning a book into a movie, or a -poem into a musical score—it doesn't make sense to require - negotiation -for the unforeseeable. Here, a statutory right would make much -more sense. +This was the point that Alben made when describing the making of the +Clint Eastwood CD. While it makes sense to require negotiation for +foreseeable derivative rights—turning a book into a movie, or a +poem into a musical score—it doesn't make sense to require +negotiation for the unforeseeable. Here, a statutory right would make +much more sense. -In each of these cases, the law should mark the uses that are - protected, -and the presumption should be that other uses are not - protected. -This is the reverse of the recommendation of my colleague Paul -Goldstein. - Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial - Jukebox -(Stanford: Stanford University Press, 2003), 187–216. +In each of these cases, the law should mark the uses that are +protected, and the presumption should be that other uses are not +protected. This is the reverse of the recommendation of my colleague +Paul Goldstein. + - His view is that the law should be written so that expanded -protections follow expanded uses. +His view is that the law should be written so that +expanded protections follow expanded uses.+ +Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial +Jukebox (Stanford: Stanford University Press, 2003), 187–216. +Goldstein, Paul -Goldstein's analysis would make perfect sense if the cost of the - legal +Goldstein's analysis would make perfect sense if the cost of the legal system were small. But as we are currently seeing in the context of -the Internet, the uncertainty about the scope of protection, and the - incentives -to protect existing architectures of revenue, combined with a -strong copyright, weaken the process of innovation. +the Internet, the uncertainty about the scope of protection, and the +incentives to protect existing architectures of revenue, combined with +a strong copyright, weaken the process of innovation. The law could remedy this problem either by removing protection beyond the part explicitly drawn or by granting reuse rights upon - certain -statutory conditions. Either way, the effect would be to free a great -deal of culture to others to cultivate. And under a statutory rights -regime, that reuse would earn artists more income. +certain statutory conditions. Either way, the effect would be to free +a great deal of culture to others to cultivate. And under a statutory +rights regime, that reuse would earn artists more income. - +